EXHIBIT(b)(3)
FORM OF EXECUTION COPY
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement dated as of September 16, 1998
(this "Amendment"), is entered into among International Technology Corporation
(the "Company"), IT Corporation ("ITC"), OHM Corporation ("OHM"), OHM
Remediation Services Corp. ("OHM Remediation") and Beneco Enterprises, Inc.
("Beneco"; together with the Company, ITC, OHM and OHM Remediation, the
"Borrowers") and the Revolving Credit Lenders (as defined in the Credit
Agreement referred to below), and amends the Credit Agreement dated as of
February 25, 1998 and amended and restated as of June 11, 1998 (as amended
hereby and. as the same may be further amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") entered into among the
Borrowers, the institutions from time to time party thereto as lenders (the
"Lenders"), the institutions from time to time party thereto as issuing banks
(the "Issuing Banks"), Citicorp USA, Inc., in its capacity as administrative
Agent for the Lenders and the Issuing Banks (in such capacity, the
"Administrative Agent"), BankBoston, N.A., in its capacity as documentation
agent for the Lenders and the Issuing Banks, and Royal Bank of Canada and Credit
Lyonnais New York Branch, in their respective capacities as co-agents.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Credit Agreement.
WITNESSETH:
WHEREAS, the Borrowers have requested the Revolving Credit Lenders to
increase the aggregate Revolving Credit Commitments from $150,000,000 to
$185,000,000;
WHEREAS, pursuant to Section 13.07(b)(ii) of the Credit Agreement, the
consent of each of the Revolving Credit Lenders is required to increase the
amount of the Revolving Commitments;
NOW, THEREFORE, in consideration of the above premises, the Borrower and
the Revolving Credit Lenders agree as follows:
SECTION 1. Amendment to Exhibits and Schedules to the Credit Agreement.
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The Credit Agreement is, effective as of the Amendment Effective Date, hereby
amended as follows:
(a) The definition of "Revolving Credit Commitment" contained in Section
1.01 of the Credit Agreement is amended by deleting the amount "$150,000,000"
contained therein and replacing it with the amount "$185,000,000".
(b) The definition of "Revolving Credit Sublimit" contained in Section 1.01
of the Credit Agreement is amended in its entirety to read as follows:
"Revolving Credit Sublimit" means, with respect to any Borrower, the
amount set forth below opposite the name of such Borrower, which amount is the
maximum amount of Revolving Credit Obligations available to be extended to such
Borrower on and after the Merger Funding Date:
Borrower Amount
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The Company $ 10,000,000
ITC 185,000,000
OHM 10,000,000
OHM Remediation 50,000,000
Beneco $ 50,000,000
provided, however, the Revolving Credit Sublimit of any Borrower may be adjusted
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at the request of such Borrower by written notice of such request to the
Administrative Agent and the acceptance of such request by the Administrative
Agent in its reasonable discretion.
(c) The amount set forth opposite the name of each Revolving Credit Lender
under the heading "Revolving Credit Commitment" contained in Schedule 1.01.1 to
the Credit Agreement (as modified by each Assignment and Acceptance entered into
after the Merger Funding Date and prior to the date hereof) is hereby deleted in
its entirety and replaced with the amount set forth opposite the name of such
Lender on Schedule 1 attached hereto and made a part hereof
SECTION 2. Conditions Precedent to the Effectiveness of this Amendment.
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This Amendment shall become effective as of the date hereof on the date (the
"Amendment Effective Date") when the following conditions precedent have been
satisfied:
(a) Certain Documents. The Administrative Agent shall have received on or
before the Amendment Effective Date all of the following, all of which shall be
in form and substance satisfactory to the Administrative Agent, in sufficient
originally executed copies for each of the Lenders:
(i) this Amendment executed by the Borrowers and each Revolving
Credit Lender,
(ii) an Acknowledgment substantially in the form of Exhibit A
attached hereto executed by each Subsidiary Guarantor;
(iii) a Certificate of the Secretary of each Borrower,
certifying, among other things, (A) resolutions of the Board of Directors
of such Borrower authorizing, this Amendment, (B) the names and signatures
of the officers of such Borrower authorized, on behalf of such Borrower, to
execute this Amendment and (iii) that there have been no changes in the
Certificate of Incorporation and Bylaws of such Borrower since the Merger
Funding Date;
(iv) an opinion of counsel to the Borrowers addressing such
matters as the Administrative Agent or the Revolving Credit Lenders may
reasonably request; and
(v) such additional documentation as the Administrative Agent or
the Revolving Credit Lenders may reasonably require.
(b) Representations and Warranties. Each of the representations and
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warranties made by the Borrowers or the Subsidiary Guarantors in or pursuant to
the Credit Agreement, as amended by this Amendment, and the other Loan Documents
to which the Borrowers or any of the Guarantors is a party or by which the
Borrowers or any of the Subsidiary Guarantors is bound, shall be true and
correct in all
material respects on and as of the Amendment Effective Date (other than
representations and warranties in any such Loan Document which expressly speak
as of a different date).
(c) Corporate and Other Proceedings. All corporate and other
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proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Amendment shall be
satisfactory in all respects in form and substance to the Administrative Agent
and the Revolving Credit Lenders.
(d) No Events of Default. No Event of Default or Default shall have
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occurred and be continuing on the Amendment Effective Date.
(e) Consents. Each of the Borrowers and the Subsidiary Guarantors shall
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have received all consents and authorizations required pursuant to any material
Contractual Obligation with any other Person and shall have obtained all
consents and authorizations of, and effected all notices to and filings with,
any Governmental Authority as may be necessary to allow each of the Borrowers
and the Subsidiary Guarantors lawfully to consummate the transactions
contemplated in this Amendment. No such consent or authorization shall impose
any conditions upon the Borrowers or the Subsidiary Guarantors that are not
reasonably acceptable to the Revolving Credit Lenders.
(f) Fees Paid. On the Amendment Effective Date there shall have been paid
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to the Administrative Agent, for the account of the Revolving Credit Lenders,
for their respective individual accounts, all fees (including, without
limitation, the reasonable legal fees of counsel to the Administrative Agent and
all fees payable pursuant to Section 5(b) of this Amendment) due and payable on
or before the Amendment Effective Date.
SECTION 3. Representations and Warranties. Each Borrower hereby represents
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and warrants to the Lenders that (a) as of the date hereof no Event of Default
or Default under the Credit Agreement shall have occurred and be continuing and
(b) all of the representations and warranties of such Borrower contained in
Section 6.01 of the Credit Agreement and in any other Loan Document continue to
be true and correct as of the date of execution hereof in all material respects,
as though made on and as of such date (other than representations and warranties
in any such Loan Document which expressly speak as of a different date).
SECTION 4. Reference to and Effect on the Loan Documents.
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(a) Upon the effectiveness of this Amendment, on and after the date hereof,
each reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof" or words of like import, and each reference in the other Loan Documents
to the Credit Agreement, shall mean and be a reference to the Credit Agreement
as amended hereby.
(b) Except as specifically amended above, all of the terms of the Credit
Agreement and all other Loan Documents shall remain unchanged and in full force
and effect.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of any Lender, any Issuing Bank or the Administrative Agent under the
Credit Agreement or any of the Loan Documents, nor constitute a waiver of any
provision of the Credit Agreement or any of the Loan Documents.
SECTION 5. Fees, Costs and Expenses.
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(a) The Borrowers agree to pay on demand in accordance with the terms of
Section 13.02 of the Credit Agreement all costs and expenses of the
Administrative Agent in connection with the preparation,
reproduction, execution and delivery of this Amendment and all other Loan
Documents entered into in connection herewith, including the reasonable fees and
out-of-pocket expenses of Sidley & Austin, counsel for the Administrative Agent
with respect thereto.
(b) On the Amendment Effective Date the Borrowers agree to pay (1) to each
Revolving Credit Lender a consent fee equal to 0.075% of such Lender's Revolving
Credit Commitment on the Amendment Effective Date (immediately prior to giving
effect to any increase in such Commitment made pursuant to this Amendment) and
(2) to each Revolving Credit Lender that is increasing its Revolving Credit
Commitment on the Amendment Effective Date, a commitment fee equal to 0.375% of
the amount by which such Revolving Credit Lender's Revolving Credit Commitment
is being increased (after giving effect to this Amendment).
SECTION 6. Execution in Counterparts. This Amendment may be executed and
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delivered in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original and all of which taken together shall constitute one and the
same original agreement.
SECTION 7. Affirmation of Borrower Guaranties. Each of the Borrowers
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hereby consents to the terms of this Amendment in its capacity as a guarantor
under the Borrower Guaranty to which it is a party and agrees that the terms of
this Amendment shall not affect in any way its obligations and liabilities under
its Borrower Guaranty or any other Loan Document to which it is a party, all of
which obligations and liabilities shall remain in full force and effect and each
of which is hereby reaffirmed.
SECTION 8. Governing Law. This Amendment shall be interpreted, and the
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rights and liabilities of the parties determined, in accordance with the
internal law of the State of New York.
IN WITNESS WHEREOF, this Amendment has been duly executed on the date set forth
above.
INTERNATIONAL TECHNOLOGY
CORPORATION
By ________________________________
Name:
Title:
IT CORPORATION
By ________________________________
Name:
Title:
OHM CORPORATION
By ________________________________
Name:
Title:
OHM REMEDIATION SERVICES CORP.
By ________________________________
Name:
Title:
BENECO ENTERPRISES, INC.
By ________________________________
Name:
Title:
CITICORP USA, INC.,
By ________________________________
Name:
Title:
BANKBOSTON, N.A.
By ________________________________
Name:
Title:
ROYAL BANK OF CANADA
By ________________________________
Name:
Title:
CREDIT LYONNAIS
By ________________________________
Name:
Title:
BHF BANK AKTIENGESELLSCHAFT
By ________________________________
Name:
Title:
UNION BANK OF CALIFORNIA
By ________________________________
Name:
Title:
SOCIETE GENERALE
By ________________________________
Name:
Title:
SANWA BUSINESS CREDIT CORPORATION
By ________________________________
Name:
Title:
COMERICA BANK
By ________________________________
Name:
Title:
FLEET BANK, N.A.
By ________________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By ________________________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By ________________________________
Name:
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By ________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By ________________________________
Name:
Title:
BANCO ESPIRITO SANTO E COMERCIAL DE
LISBOA, NASSAU BRANCH
By ________________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By ________________________________
Name:
Title:
BANK POLSKA KASA OPIEKI S.A., PEKAO
S.A. GROUP, NEW YORK BRANCH
By ________________________________
Name:
Title:
SCHEDULE I
REVOLVING CREDIT COMMITMENTS
Lender Amount
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CITICORP USA, INC. $ 19,100,000
BANKBOSTON, N.A. 19,100,000
BHF BANK AKTIENGESELLSCHAFT 15,000,000
UNION BANK OF CALIFORNIA 15,000,000
CREDIT LYONNAIS 14,800,000
SOCIETE GENERALE 14,800,000
SANWA BUSINESS CREDIT 13,000,000
CORPORATION
ROYAL BANK OF CANADA 12,333,333
CONMERICA BANK 10,000,000
FLEET BANK, N.A. 7,400,000
THE INDUSTRIAL BANK OF 7,400,000
JAPAN, LIMITED
KEYBANK NATIONAL ASSOCIATION 7,400,000
THE MITSUBISHI TRUST AND 7,400,000
BANKING CORPORATION
THE BANK OF NOVA SCOTIA 7,400,000
PNC BANK, NATIONAL ASSOCIATION 6,166,667
BANCO ESPERIT'O SANTO E COMERCIAL 5,000,000
DE LISBOA, NASSAU BRANCH
BANK POLSKA KASA OPIEKI S.A., 3,700,000
PEKAO S.A. GROUP, NEW YORK BRANCH
Total $185,000,000
