Exhibit 10(ii)(4)
EXECUTION COPY
THIRD AMENDMENT TO CREDIT AGREEMENT
This Third Amendment to Credit Agreement dated as of March 5, 1999
(this "Amendment"), is entered into among The IT Group, Inc. (f/k/a
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 Lenders (as defined below) party hereto,
and amends the Credit Agreement dated as of February 25, 1998, as amended and
restated as of June 11, 1998 and as further amended pursuant to the First
Amendment to Credit Agreement dated as of September 16, 1998 and the Second
Amendment to Credit Agreement dated as of October 26, 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.
W I T N E S S E T H:
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WHEREAS, the Company has informed the Administrative Agent that the
Company intends (i) to acquire (the "EFM Acquisition") certain assets of the
Environmental & Facilities Management operations ("EFM") of ICF Xxxxxx
International, Inc. ("ICF") for a purchase price of (x) approximately
$82,000,000, for all assets of EFM other than its interest in the Xxxxxx-Xxxx
Company, LLC joint venture ("Kaiser Xxxx"), payable on the date of the
consummation of the EFM Acquisition (the "Closing EFM Purchase Price"), (y)
approximately $20,000,000 for ICF's interest in Kaiser Hill, which would be
payable on (or within 10 days after) the date of the consummation of the EFM
Acquisition in the event that CH2M Hill Federal Group, Ltd. does not exercise
its right of first refusal to acquire such interest (the "Closing Kaiser Xxxx
Purchase Price"), and (z) a deferred payment of approximately $25,000,000 (the
"Deferred Kaiser Hill Purchase Price"; together with the Closing EFM Purchase
Price and the Closing Kaiser Xxxx Purchase Price, the "EFM Purchase Price"),
which would be payable in the event certain government contracts of Kaiser Hill
were extended or were awarded to Kaiser after a successful rebidding of such
contracts and (ii) to acquire (the "Roche Acquisition"; together with the EFM
Acquisition, the "Acquisitions") the outstanding capital stock of Roche Ltee
Groupe Counseil ("Roche") for a purchase price of approximately
$10,000,000 (the "Roche Purchase Price") plus an earn-out of up to an additional
$9,200,000 based on certain performance criteria;
WHEREAS, the terms of each of the Acquisitions would satisfy the
conditions of a Permitted Acquisition (except as otherwise provided herein);
WHEREAS, the Company intends to finance the Acquisitions and the fees
and expenses to be incurred by the Company in connection therewith and with the
financing thereof (the "Transaction Costs") with proceeds from the issuance of
senior subordinated notes issued by the Company (the "Subordinated Notes"), the
gross proceeds of which are at least $175,000,000 (or, if the Company does not
purchase ICF's interest in Kaiser Xxxx, $150,000,000) but not greater than
$250,000,000;
WHEREAS, the terms of the Subordinated Notes shall be substantially
consistent with the terms thereof set forth on Exhibit B attached hereto and
made a part hereof (the "Subordinated Note Term Sheet");
WHEREAS, the Transaction Costs associated with the Acquisitions and
the financing provided by the Subordinated Notes are approximately $13,000,000;
WHEREAS, with respect to the Acquisitions and the transactions
contemplated thereby the Company has, among other things, requested the
Requisite Lenders, by amending the Credit Agreement or by otherwise providing
their consent, (i) to waive compliance with clause (c) of the definition of
Permitted Acquisition in respect of each Acquisition and clause (e) of the
definition of Permitted Acquisition in respect of the EFM Acquisition, (ii) to
increase the amount of Subordinated Notes that would otherwise be permitted
under the terms of the Credit Agreement from $150,000,000 to $250,000,000 and to
approve of the terms of such notes, (iii) to permit certain Indebtedness not in
excess of Cn.$2,000,000 assumed in connection with the Roche Acquisition to be
secured, (iv) to amend certain financial covenants contained in Article X of the
Credit Agreement and (v) to amend the definition of Change of Control to permit
certain sales by the Carlyle Investors of the 6% Preferred Stock (or Company
Common Stock into which such preferred stock may be converted in accordance with
its terms);
WHEREAS, pursuant to Section 13.07(b) of the Credit Agreement, the
consent of the Requisite Lenders is required to modify the Credit Agreement as
requested by the Company;
NOW, THEREFORE, in consideration of the above premises, the Borrowers
and the Lenders party hereto agree as follows:
SECTION 1. Amendment to the Credit Agreement. The Credit Agreement
---------------------------------
is, effective as of the Amendment Effective Date (as defined below), hereby
amended as follows:
(a) The definition of "Change of Control" is amended by adding the
following proviso immediately prior to the comma at the end of clause (i)
thereof:
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; provided, however, nothing in this clause (i) shall prohibit the Carlyle
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Investors from selling 6% Preferred Stock or Company Common Stock (into
which the 6% Preferred Stock has been converted in accordance with its
terms) from and after any sale by the Company of newly issued shares of
Company Common Stock in a public offering or private placement of such
shares or in connection with a Permitted Acquisition for which such shares
are being issued as part of the purchase price, as long as the number of
shares of 6% Preferred Stock (multiplied by the applicable conversion
factor of such shares into Company Common Stock) and Company Common Stock
sold by the Carlyle Investors at any time thereafter does not exceed the
aggregate number of shares of Company Common Stock issued by the Company in
such public offering or private placement or in connection with such
Permitted Acquisition
(b) The definition of "Permitted Subordinated Indebtedness" is amended
by replacing the amount "$150,000,000" in clause (i) thereof with the amount
"$250,000,000".
(c) Section 7.01(a) of the Credit Agreement is amended by inserting
the following parenthetical immediately following the phrase "Within thirty (30)
days after the end of each fiscal month in each Fiscal Year" at the beginning of
such section:
(or forty-five (45) days in the case of each such month ending on the last
day of a fiscal quarter)
(d) Section 9.03 of the Credit Agreement is amended by deleting the
"and" at the end of clause (d) thereof, replacing the period at the end of
clause (e) thereof with "; and" and adding the following new clause (f) at the
end thereof:
(f) Liens on the assets of Roche Ltee Groupe Counseil securing
Indebtedness permitted under Section 9.01(j)(ii), provided that such
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Indebtedness does not exceed a principal amount of Cn.$2,000,000 at
any time.
(e) Sections 10.01, 10.02, 10.03 and 10.04 of the Credit Agreement are
amended in their entirety to read as follows:
10.01 Minimum Consolidated Net Worth. The Company and its
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Subsidiaries shall maintain a Consolidated Net Worth at all times
during each period set forth below (commencing on the beginning of the
first day of such period through the end of the penultimate day of
such period) in an amount not less than the minimum amount set forth
opposite such period below; provided, however, in the event the
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Company or any of its Subsidiaries sells any of the discontinued
properties located in northern California, the after-tax equivalent of
any loss incurred by the Company and its Subsidiaries in connection
with any such sale shall thereafter be excluded in determining
Consolidated Net Worth:
3
Period Minimum
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The Merger Funding Date to the last day of the First Fiscal $210,000,000
Quarter of Fiscal Year 1999
The last day of the First Fiscal Quarter of Fiscal Year 1999 $214,000,000
to the last day of the Second Fiscal Quarter of Fiscal Year
1999
The last day of the Second Fiscal Quarter of Fiscal Year $217,000,000
1999 to the last day of the Third Fiscal Quarter of Fiscal
Year 1999
The last day of the Third Fiscal Quarter of Fiscal Year 1999 $223,000,000
to the last day of the Fourth Fiscal Quarter of Fiscal Year
1999
The last day of the Fourth Fiscal Quarter of Fiscal Year $228,000,000
1999 to the last day of the First Fiscal Quarter of Fiscal
Year 2000
The last day of the First Fiscal Quarter of Fiscal Year 2000 $232,000,000
to the last day of the Second Fiscal Quarter of Fiscal Year
2000
The last day of the Second Fiscal Quarter of the Fiscal Year $236,000,000
2000 to the last day of the Third Fiscal Quarter of Fiscal
Year 2000
The last day of the Third Fiscal Quarter of the Fiscal Year $243,000,000
2000 to the last day of the Fourth Fiscal Quarter of Fiscal
Year 2000
The last day of the Fourth Fiscal Quarter of Fiscal Year $249,000,000
2000 to the last day of the First Fiscal Quarter of Fiscal
Year 2001
The last day of the First Fiscal Quarter of Fiscal Year 2001 $254,000,000
to the last day of the Second Fiscal Quarter of Fiscal Year
2001
The last day of the Second Fiscal Quarter of the Fiscal Year $259,000,000
2001 to the last day of the Third Fiscal Quarter of Fiscal
Year 2001
4
Period Minimum
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The last day of the Third Fiscal Quarter of the Fiscal Year $267,000,000
2001 to the last day of the Fourth Fiscal Quarter of Fiscal
Year 2001
The last day of the Fourth Fiscal Quarter of Fiscal Year $274,000,000
2001 to the last day of the First Fiscal Quarter of Fiscal
Year 2002
The last day of the First Fiscal Quarter of Fiscal Year 2002 $281,000,000
to the last day of the Second Fiscal Quarter of Fiscal Year
2002
The last day of the Second Fiscal Quarter of the Fiscal Year $287,000,000
2002 to the last day of the Third Fiscal Quarter of Fiscal
Year 2002
The last day of the Third Fiscal Quarter of the Fiscal Year $296,000,000
2002 to the last day of the Fourth Fiscal Quarter of Fiscal
Year 2002
The last day of the Fourth Fiscal Quarter of Fiscal Year $306,000,000
2002 to the last day of the First Fiscal Quarter of Fiscal
Year 2003
The last day of the First Fiscal Quarter of Fiscal Year 2003 $314,000,000
to the last day of the Second Fiscal Quarter of Fiscal Year
2003
The last day of the Second Fiscal Quarter of Fiscal Year $321,000,000
2003 to the last day of the Third Fiscal Quarter of Fiscal
Year 2003
The last day of the Third Fiscal Quarter of Fiscal Year 2003 $333,000,000
to the last day of the Fourth Fiscal Quarter of Fiscal Year
2003
The last day of the Fourth Fiscal Quarter of Fiscal Year $344,000,000
2003 to the last day of the First Quarter of Fiscal Year
2004
The last day of the First Fiscal Quarter of Fiscal Year 2004 $353,000,000
to the last day of the Second Fiscal Quarter of Fiscal Year
2004
5
Period Minimum
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The last day of the Second Fiscal Quarter of the Fiscal Year $361,000,000
2004 to the last day of the Third Fiscal Quarter of Fiscal
Year 2004
The last day of the Third Fiscal Quarter of Fiscal Year 2004 $373,000,000
to the last day of the Fourth Fiscal Quarter of Fiscal Year
2004
The last day of the Fourth Fiscal Quarter of Fiscal Year $386,000,000
2004 to the last day of the First Fiscal Quarter of Fiscal
Year 2005
The last day of the First Fiscal Quarter of Fiscal Year 2005 $396,000,000
to the last day of the Second Fiscal Quarter of Fiscal Year
2005
The last day of the Second Fiscal Quarter of Fiscal Year $406,000,000
2005 to the last day of the Third Fiscal Quarter of Fiscal
Year 2005
The last day of the Third Fiscal Quarter of the Fiscal Year $420,000,000
2005 to the last day of the Fourth Fiscal Quarter of Fiscal
Year 2005
The last day of the Fourth Fiscal Quarter of Fiscal Year $435,000,000
2005 to the last day of the First Fiscal Quarter of Fiscal
Year 2006
From and after the last day of the First Fiscal Quarter of $438,000,000
Fiscal Year 2006
10.02 Minimum Fixed Charge Coverage Ratio. The Company and its
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Subsidiaries shall maintain a Fixed Charge Coverage Ratio on a
consolidated basis, as determined as of the end of the last day of each
fiscal quarter occurring after the Merger Funding Date set forth below,
for the four fiscal quarter period (or, if the period from July 1, 1998
to such day is less than four full fiscal quarters, such two or three
quarter period, as applicable) ending on such day, of at least the
minimum ratio set forth opposite such period:
Fiscal Quarter Minimum Ratio
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Fourth Fiscal Quarter of Fiscal Year 1998 1.05 to 1.0
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Fiscal Quarter Minimum Ratio
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First Fiscal Quarter of Fiscal Year 1999 1.10 to 1.0
Second Fiscal Quarter of Fiscal Year 1999 1.20 to 1.0
Third Fiscal Quarter of Fiscal Year 1999 1.30 to 1.0
Fourth Fiscal Quarter of Fiscal Year 1999 1.30 to 1.0
First Fiscal Quarter of Fiscal Year 2000 1.30 to 1.0
Second Fiscal Quarter of Fiscal Year 2000 1.40 to 1.0
Third Fiscal Quarter of Fiscal Year 2000 1.40 to 1.0
Fourth Fiscal Quarter of Fiscal Year 2000 1.50 to 1.0
First Fiscal Quarter of Fiscal Year 2001 1.50 to 1.0
Second Fiscal Quarter of Fiscal Year 2001 1.50 to 1.0
Third Fiscal Quarter of Fiscal Year 2001 1.50 to 1.0
Fourth Fiscal Quarter of Fiscal Year 2001 1.60 to 1.0
First Fiscal Quarter of Fiscal Year 2002 1.60 to 1.0
Second Fiscal Quarter of Fiscal Year 2002 1.70 to 1.0
Third Fiscal Quarter of Fiscal Year 2002 1.80 to 1.0
Fourth Fiscal Quarter of Fiscal Year 2002 1.90 to 1.0
First Fiscal Quarter of Fiscal Year 2003 through 1.90 to 1.0
the Fourth Fiscal Quarter of Fiscal Year 2003
First Fiscal Quarter of Fiscal Year 2004 2.00 to 1.0
Second Fiscal Quarter of Fiscal Year 2004 2.00 to 1.0
Third Fiscal Quarter of Fiscal Year 2004 and each
Fiscal Quarter thereafter 1.00 to 1.0
10.03 Minimum Interest Coverage Ratio. The Company and its
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Subsidiaries shall maintain an Interest Coverage Ratio on a consolidated
basis, as determined as of the end of the last day of each fiscal quarter
set forth below for the four fiscal quarter period (or, if the period
from July 1, 1998 to such day is less than four full fiscal quarters,
such two or three quarter period, as applicable) ending on such day, of
at least the minimum ratio set forth opposite such period:
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Fiscal Quarter Minimum Ratio
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Fourth Fiscal Quarter of Fiscal Year 1998 2.00 to 1.0
First Fiscal Quarter of Fiscal Year 1999 2.00 to 1.0
Second Fiscal Quarter of Fiscal Year 1999 2.20 to 1.0
Third Fiscal Quarter of Fiscal Year 1999 2.20 to 1.0
Fourth Fiscal Quarter of Fiscal Year 1999 2.20 to 1.0
First Fiscal Quarter of Fiscal Year 2000 2.30 to 1.0
Second Fiscal Quarter of Fiscal Year 2000 2.50 to 1.0
Third Fiscal Quarter of Fiscal Year 2000 2.60 to 1.0
Fourth Fiscal Quarter of Fiscal Year 2000 2.70 to 1.0
First Fiscal Quarter of Fiscal Year 2001 2.80 to 1.0
Second Fiscal Quarter of Fiscal Year 2001 2.90 to 1.0
Third Fiscal Quarter of Fiscal Year 2001 3.00 to 1.0
Fourth Fiscal Quarter of Fiscal Year 2001 3.10 to 1.0
First Fiscal Quarter of Fiscal Year 2002 3.20 to 1.0
Second Fiscal Quarter of Fiscal Year 2002 3.30 to 1.0
Third Fiscal Quarter of Fiscal Year 2002 and
each Fiscal Quarter thereafter 3.50 to 1.0
10.04 Maximum Leverage Ratio. The Company and its Subsidiaries
----------------------
shall maintain a Leverage Ratio on a consolidated basis, as determined
as of the end of the last day of each fiscal quarter set forth below
for the four fiscal quarter period (or, if the period from July 1,
1998 to such day is less than four fiscal quarters, such two or three
quarter period, as applicable) ending on such day (commencing on the
beginning of the first day of such period through the end of the last
day of such period) of not more than the maximum ratio set forth
opposite such period:
Fiscal Quarter Minimum Ratio
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Fourth Fiscal Quarter of Fiscal Year 1998 5.20 to 1.0
First Fiscal Quarter of Fiscal Year 1999 5.80 to 1.0
Second Fiscal Quarter of Fiscal Year 1999 5.30 to 1.0
Third Fiscal Quarter of Fiscal Year 1999 4.90 to 1.0
Fourth Fiscal Quarter of Fiscal Year 1999 4.50 to 1.0
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Fiscal Quarter Minimum Ratio
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First Fiscal Quarter of Fiscal Year 2000 4.20 to 1.0
Second Fiscal Quarter of Fiscal Year 2000 3.90 to 1.0
Third Fiscal Quarter of Fiscal Year 2000 3.70 to 1.0
Fourth Fiscal Quarter of Fiscal Year 2000 3.50 to 1.0
First Fiscal Quarter of Fiscal Year 2001 3.40 to 1.0
Second Fiscal Quarter of Fiscal Year 2001 3.30 to 1.0
Third Fiscal Quarter of Fiscal Year 2001 3.20 to 1.0
Fourth Fiscal Quarter of Fiscal Year 2001 3.00 to 1.0
First Fiscal Quarter of Fiscal Year 2002 2.90 to 1.0
Second Fiscal Quarter of Fiscal Year 2002 2.80 to 1.0
Third Fiscal Quarter of Fiscal Year 2002 2.60 to 1.0
Fourth Fiscal Quarter of Fiscal Year 2002 and
each Fiscal Quarter thereafter 2.50 to 1.0
provided, however, that in the event a Permitted Acquisition shall have
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been consummated during any above-referenced two, three or four fiscal
quarter periods, the Leverage Ratio shall be calculated including, on an
historical, pro forma consolidated basis giving effect to the subject
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Permitted Acquisition for such fiscal quarter period.
(f) Section 10.07 of the Credit Agreement is amended in its entirety
to read as follows:
10.07 Maximum Capital Expenditures. The Company shall not, and
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shall not permit any of its Subsidiaries to, make or incur Capital
Expenditures during any Fiscal Year set forth below in excess of the
maximum amount set forth below opposite such Fiscal Year:
Fiscal Year 1998 $20,000,000
Fiscal Year 1999 $26,000,000
Fiscal Year 2000 $29,000,000
Fiscal Year 2001 $31,000,000
Fiscal Year 2002 $32,000,000
Fiscal Year 2003 $33,000,000
Fiscal Year 2004 $35,000,000
Fiscal Year 2005 $36,000,000
Fiscal Year 2006 $38,000,000
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provided, however, if the maximum amount set forth above opposite any
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Fiscal Year exceeds the amount of Capital Expenditures made or incurred by
the Company and its Subsidiaries on a consolidated basis for such Fiscal
Year, then Capital Expenditures made or incurred by the Company and its
Subsidiaries on a consolidated basis for the next Fiscal Year may exceed
the maximum amount set forth above opposite such next Fiscal Year (but not
subsequent Fiscal Years) by the Dollar amount of such excess from the
immediately preceding Fiscal Year.
SECTION 2. Consents.
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(a) The Lenders party hereto, constituting the Requisite Lenders,
hereby:
(i) waive compliance with clause (c) of the definition of
Permitted Acquisition in respect of the Acquisitions and clause (e) of the
definition of Permitted Acquisition in respect of the EFM Acquisition (it
being understood and agreed that, with respect to each Acquisition, the
Borrowers shall otherwise comply with all other requirements for a
Permitted Acquisition on or prior to the consummation of such Acquisition);
and
(ii) acknowledge and agree that the Subordinated Notes constitute
Permitted Subordinated Indebtedness pursuant to clause (i) of the
definition thereof and consent to the terms of the Subordinated Notes as
required pursuant to such clause; provided that (A) the terms of the
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Subordinated Notes are substantially similar to those set forth on the
Subordinated Note Term Sheet; (B) the documentation evidencing the
Subordinated Notes, including the indenture governing the terms thereof, is
satisfactory to the Agents; (C) the proceeds of the Subordinated Notes are
used to pay the Roche Purchase Price, the EFM Purchase Price (to the extent
payable at the time of the issuance thereof) and the Transaction Costs; (D)
the gross proceeds received from the issuance of the Subordinated Notes are
not greater than $250,000,000; and (E) the proceeds of the Subordinated
Notes in excess of those used to fund payment of the Roche Purchase Price,
the EFM Purchase Price (to the extent payable at the time of the issuance
thereof) and the Transaction Costs shall be applied to the repayment of
Revolving Loans (without effecting any corresponding decrease in the
Revolving Credit Commitments).
(b) Subject to the following sentence, the Lenders party hereto,
constituting the Requisite Lenders, hereby consent to the amendment to the
Certificate of Incorporation of the Company changing the name of the Company
from "International Technology Corporation" to "The IT Group, Inc." and waive
any Event of Default that may have arisen as a result of the failure of the
Company to comply with the terms of Section 4(a) of the Borrower Security
Agreement to which the Company is a party in connection with such name change.
SECTION 3. Conditions Precedent to the Effectiveness of this
-------------------------------------------------
Amendment.
---------
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(a) 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:
(i) Certain Documents. The Administrative Agent shall have
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received on or before the Amendment Effective Date all of the
following, all of which shall be in form and substance satisfactory to
the Agents, in sufficient originally executed copies for each of the
Lenders:
(A) this Amendment executed by the Borrowers and Lenders
constituting the Requisite Lenders;
(B) an Acknowledgment substantially in the form of Exhibit A
attached hereto executed by each Subsidiary Guarantor;
(C) an execution copy of the acquisition agreements for each
Acquisition (the "Acquisition Agreements");
(D) such additional documentation as the Agents or the Requisite
Lenders may reasonably require.
(ii) Representations and Warranties. Each of the
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representations and 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).
(iii) Corporate and Other Proceedings. All corporate and other
-------------------------------
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.
(iv) No Events of Default. After giving effect to the waiver in
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Section 2(b) hereof, no Event of Default or Default shall have
occurred and be continuing on the Amendment Effective Date.
(v) Fees Paid. On the Amendment Effective Date the Borrowers
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shall have paid (A) to each Lender that has executed this Amendment
prior to the close of business on March 5, 1999, an amendment fee
equal to fifteen basis points (0.15%) of such Lender's outstanding
Term Loans and Revolving Credit Commitments, and (B) to the
Administrative Agent the fees set forth in that certain fee letter of
even date herewith.
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(b) Notwithstanding anything herein to the contrary, this Amendment
shall cease to be effective if any of the following conditions shall not have
been satisfied on or prior to the date of the consummation of any Acquisition,
or in the case of the EFM Acquisition, the date of the consummation of any
portion of such Acquisition on which a portion of the EFM Purchase Price is due
and payable (each a "Consummation Date"):
(i) Certain Documents. The Administrative Agent shall have
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received on or before the Consummation Date all of the following, all
of which shall be in form and substance satisfactory to the Agents, in
sufficient originally executed copies for each of the Lenders:
(A) the Officer's Certificate required pursuant to clause (C) of
the proviso to the definition of "Permitted Acquisition" relating to
the such Acquisition, together with such other documentation required
pursuant to such definition, including, without limitation, any
collateral documentation required to be executed in connection with
clause (g) thereof;
(B) an execution copy of the indenture governing the terms of the
Subordinated Notes (except in connection with the Roche Acquisition,
but only if such Acquisition is subject to the proviso set forth in
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clause (b)(ii) below); and
(C) such additional documentation as the Agents or the Requisite
Lenders may reasonably require.
(ii) Funding for the Acquisitions. The Company shall have
----------------------------
received gross proceeds from the issuance of the Subordinated Notes in
an amount of at least $175,000,000 (or, if the Company does not
purchase ICF's interest in Kaiser Xxxx, $150,000,000); provided,
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however, solely in the case of the Roche Acquisition, if the Company
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has not received proceeds from the issuance of the Subordinated Notes
by March 31, 1999, then this condition shall be satisfied in the
event, after giving effect to the consummation of the Roche
Acquisition, the Revolving Credit Availability on the Consummation
Date plus unrestricted cash that is not subject to a Lien in favor of
any other Person (other than the Administrative Agent) held by the
Borrowers on the Consummation Date is greater than $15,000,000.
(iii) Purchase Price; Transaction Costs. The purchase price paid
---------------------------------
or to be paid in connection with the assets of EFM (other than ICF's
interest in Kaiser Xxxx) shall not exceed the Closing EFM Purchase
Price and the purchase price paid or to be paid for ICF's interest in
Kaiser Hill shall not exceed the Closing Kaiser Xxxx Purchase Price
and the Deferred Kaiser Hill Purchase Price. The purchase price paid
in connection with the Roche Acquisition shall not exceed the Roche
Purchase Price (plus an
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earn-out of up to an additional $9,200,000 based on certain
performance criteria). The Transaction Costs shall not exceed
$13,000,000 in the aggregate.
(vi) Permitted Acquisition Requirements. All documentation and
----------------------------------
other requirements set forth in the definition of "Permitted
Acquisition" (to the extent not waived in this Amendment) shall have
been satisfied with respect to the consummation of such Acquisition.
(vii) No Event of Default. No Event of Default or Default shall
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have occurred and be continuing on the Consummation Date or would
result from the consummation of such Acquisition or the funding of the
Subordinated Notes on such date.
SECTION 4. Covenants.
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(a) The Company agrees that it will not amend, supplement or otherwise
modify the Acquisition Agreements, except for amendments, waivers or
modifications of such terms that do not change the substance of such agreement
in any material respect and do not, in the aggregate, materially and adversely
affect the interests of the Agents and the Lenders in the Loans, the Loan
Documents or the Collateral.
(b) The Borrowers agree to deliver to the Administrative Agent within
30 days after the date hereof (i) all UCC filings reflecting the new name of the
Company (both new UCC-1s and amendments to each UCC-1 of the Company filed in
connection with the Credit Agreement) which are appropriate to preserve the
perfection of the security interests granted by the Company to the
Administrative under the Borrower Security Agreement to which it is a party and
(ii) an Officer's Certificate stating that all such filings have been made.
SECTION 5. Representations and Warranties. Each Borrower hereby
------------------------------
represents and warrants to the Lenders that (a) as of the date hereof and after
giving effect to the terms of this Amendment, 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). In addition,
the Company hereby represents, warrants and covenants to the Lenders that, after
giving effect to this Amendment, consummation of each Acquisition will
constitute a Permitted Acquisition.
SECTION 6. Reference to and Effect on the Loan Documents.
---------------------------------------------
(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
13
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 7. 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
counsel for the Administrative Agent with respect thereto.
(b) On the Amendment Effective Date the Borrowers agree to pay the
fees set forth in Section 3(a)(v) of this Amendment.
SECTION 8. Execution in Counterparts. This Amendment may be executed
-------------------------
and 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 9. Affirmation of Borrower Guaranties. Each of the Borrowers
----------------------------------
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 10. Governing Law. This Amendment shall be interpreted, and
-------------
the 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.
THE IT GROUP, INC. (f/k/a
INTERNATIONAL TECHNOLOGY
CORPORATION)
14
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
IT CORPORATION
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
OHM CORPORATION
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
OHM REMEDIATION SERVICES CORP.
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
BENECO ENTERPRISES, INC.
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
15
[SIGNATURE BLOCKS FOR THE LENDERS]
CITICORP USA, INC. COMERCIA BANK
By /s/ Xxxxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxxx
------------------------------ ------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxx
Title: Managing Director Title: Assistant Vice President
BANKBOSTON, N.A. CYPRESSTREE INVESTMENT PARTNERS II, Ltd.
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager
By /s/ Xxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxx
------------------------------ ------------------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxx
Title: Division Executive Title: Principal
CREDIT LYONNAIS FLEET BANK, N.A.
NEW YORK BRANCH
By /s/ Xxxxxx Xxx By /s/ Xxxxxxxxxxx Mayruse
------------------------------ ------------------------------
Name: Xxxxxx Xxx Name: Xxxxxxxxxxx Mayruse
Title: Senior Vice President Title: Vice President
ROYAL BANK OF CANADA FLEET BUSINESS CREDIT CORPORATION
By /s/ Xxxx X. X'Xxxxxx By /s/ Xxxxxx Xxxxx
------------------------------ ------------------------------
Name: Xxxx X. X'Xxxxxx Name: Xxxxxx Xxxxx
Title: Manager Title: Assistant Vice President
AG CAPITAL FUNDING PARTNERS, L.P. THE INDUSTRIAL BANK OF JAPAN,
By Xxxxxx, Xxxxxx & Co., L.P. as LIMITED
Investment Advisor
By /s/ Xxxxxxx X. A By /s/ Takuya Honjo
------------------------------ ------------------------------
Name: Xxxxxxx X. A Name: Takuya Honjo
Title: Managing Director Title: Senior Vice President
ALLSTATE LIFE INSURANCE COMPANY KEYBANK NATIONAL ASSOCIATION
By /s/ Xxxxxx X. Xxxxxx By /s/ Xxxxx X. Xxxxx
------------------------------ ------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxx
Title: Authorized Signatory Title: SVP
By /s/ Xxxxxxxx X. Xxxxxx KISLAK NATIONAL BANK
------------------------------ By: ING CAPITAL ADVISORS, INC.,
Name: Xxxxxxxx X. Xxxxxx as Investment Advisor
Title: Authorized Signatory
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
ALLIANCE CAPITAL MANAGEMENT L.P. Name: Xxxxxxx X. Xxxxxxxx
as Manager on behalf of ALLIANCE Title: Senior Vice President &
CAPITAL FUNDING, L.L.C. by: Portfolio Manager
ALLIANCE CAPITAL MANAGEMENT L.P.
CORPORATION, General Partner of KZH CRESCENT-2 LLC
Alliance Capital Management L.P.
By /s/ Xxxxxxxx Xxxxxx
By /s/ Xxxxxxx X. Xxxxxxx ------------------------------
------------------------------ Name: Xxxxxxxx Xxxxxx
Name: Xxxxxxx X. Xxxxxxx Title: Authorized Agent
Title: Vice President
KZH CYPRESSTREE-1 LLC
ARCHIMEDES FUNDING LLC
By: ING CAPITAL ADVISORS, INC., By /s/ Xxxxxxxx Xxxxxx
as Collateral Manager ------------------------------
Name: Xxxxxxxx Xxxxxx
By /s/ Xxxxxxx X. Xxxxxxxx Title: Authorized Agent
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President & KZH HIGHLAND-2 LLC
Portfolio Manager
By /s/ Xxxxxxxx Xxxxxx
ARCHIMEDES FUNDING II, LTD. ------------------------------
By: ING CAPITAL ADVISORS, INC., Name: Xxxxxxxx Xxxxxx
as Collateral Manager Title: Authorized Agent
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------------ KZH SOLEIL LLC
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President & By /s/ Xxxxxxxx Xxxxxx
Portfolio Manager ------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
BANCO ESPIRITO SANTO E COMERCIAL
DE LISBOA, NASSAU BRANCH
KZH SOLEIL-2 LLC
By /s/ Xxxxx X. Xxxx
------------------------------ By /s/ Xxxxxxxx Xxxxxx
Name: Xxxxx X. Xxxx ------------------------------
Title: Senior Vice President Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
By /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
ML CLO XX XXXXXXX AMERICA
(CAYMAN) LTD.
BHF BANK AKTIENGESELLSCHAFT By: Xxxxxxx Investments, Inc.
as its Investment Manager
By /s/ Xxx D By /s/ Xxxxxx X. Xxxxxx
------------------------------ ------------------------------
Name: Xxx D Name: Xxxxxx X. Xxxxxx
Title: AVP Title: Vice President
By /s/ Xxxxxx Xxxxx
------------------------------ THE MITSUBISHI TRUST AND BANKING
Name: Xxxxxx Xxxxx CORPORATION
Title: AT
By /s/ Xxxxxxxx X. Xxxxxxx
BALANCED HIGH YIELD FUND I LIMITED ------------------------------
as a Lender Name: Xxxxxxxx X. Xxxxxxx
By: BHF-BANK AKTIENGESELLSCHAFT Title: Senior Vice President
acting through its New York Branch,
as attorney-in-fact
MOUNTAIN CLO TRUST
By /s/ Xxx D
------------------------------ By /s/ Kazoyoki Nishimura
Name: Xxx D ------------------------------
Title: AVP Name: Kazoyoki Nishimura
Title: Authorized Signatory
By /s/ Xxxxxx Xxxxx
------------------------------ PAMCO CAYMON LTD.
Name: Xxxxxx Xxxxx By: Highland Capital Management, L.P.
Title: AT as Collateral Manager
By /s/ Xxxx X. Xxxxx CFA
THE BANK OF NOVA SCOTIA ------------------------------
Name: Xxxx X. Xxxxx
By /s/ F.C.B. Xxxxx Title: Executive Vice President
------------------------------
Name: F.C.B. Xxxxx
Title: Senior Manager
Loan Operations OCTAGON LOAN TRUST
by Octagon Credit Investos,
as Manager
BANK POLSKA KASA OPIEKI S.A.
PEKAO S.A. GROUP, By /s/ Xxxxx X. XxXxxxx
NEW YORK BRANCH ------------------------------
Name: Xxxxx X. XxXxxxx
By /s/ Xxxxxx Xxxxxx Title: Managing Director
------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SENIOR DEBT PORTFOLIO
BY BOSTON MANAGEMENT AND RESEARCH
AS INVESTMENT ADVISOR
By /s/ Payson X. Xxxxxxxxx
------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
SOCIETE GENERALE
By /s/ Xxxxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Managing Director
UNION BANK OF CALIFORNIA
By /s/ A. Xxxxx Xxxxxxxxx
------------------------------
Name: A. Xxxxx Xxxxxxxxx
Title: Vice President
16
EXHIBIT A
ACKNOWLEDGMENT
--------------
Reference is hereby made to the Subsidiary Guaranties (as defined in
the Credit Agreement) to which each of the undersigned is a party. Each of the
undersigned hereby consents to the terms of the foregoing Third Amendment to
Credit Agreement and agrees that the terms thereof shall not affect in any way
its obligations and liabilities under the undersigned's Subsidiary Guaranty or
any other Loan Document, all of which obligations and liabilities shall remain
in full force and effect and each of which is hereby reaffirmed.
GRADIENT CORPORATION
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Title: Treasurer
IT-TULSA HOLDINGS, INC.
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Title: Treasurer
IT E&C OPERATIONS, INC.
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Title: Treasurer
PACIFIC ENVIRONMENTAL GROUP, INC.
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Title: Treasurer
UNIVERSAL PROFESSIONAL INSURANCE COMPANY
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Title: Treasurer
17
