Exhibit 10.1
FIRST MODIFICATION TO
SECOND AMENDED AND RESTATED BUSINESS LOAN
AND
SECURITY AGREEMENT AND
OTHER LOAN DOCUMENTS
THIS FIRST MODIFICATION TO
SECOND AMENDED AND RESTATED BUSINESS LOAN AND SECURITY AGREEMENT
AND OTHER LOAN DOCUMENTS (this “Modification”), dated as of
March 31, 2009, is made by and among (i) CITIZENS BANK OF
PENNSYLVANIA, a Pennsylvania state chartered bank (“
Citizens Bank ”), acting in its capacity as the
administrative agent for the Lenders (the “ Administrative
Agent ”), having offices at 8521 Leesburg Pike, Suite
405, Vienna, Virginia 22182; and (ii) ICF CONSULTING GROUP,
INC., a Delaware corporation (“ ICFG ”), ICF
INTERNATIONAL, INC., a Delaware corporation (“ ICF
International ”), and each other “Borrower”
party to the hereinafter referenced Loan Agreement from time to
time (together with ICFG and ICF International, each, a “
Borrower ” and collectively, the “
Borrowers ”), each having offices at 9300 Lee Highway,
Fairfax, Virginia 22031. Capitalized terms used but not defined
herein shall have the meanings attributed to such terms in the Loan
Agreement.
W
I T N
E S S E T H
T H A T
:
WHEREAS
, pursuant to the terms of a certain
Second Amended and Restated Business Loan and Security Agreement
dated as of February 20, 2008 (as amended, modified or
restated from time to time, the “ Loan Agreement
”), by and among the Borrowers, the Administrative Agent and
the Lenders, the Borrowers obtained loans and certain other
financial accommodations (collectively, the “ Loan
”) from the Lenders in the aggregate maximum principal amount
of Two Hundred Seventy-five Million and No/100 Dollars
($275,000,000.00); and
WHEREAS
, the Loan is evidenced by the Notes
and secured by, among other things, the collateral described in the
Loan Agreement; and
WHEREAS
, the Borrowers have requested that
the Administrative Agent and the Lenders consent to the sale, in
one or more offerings, of up to Two Hundred Million and No/100
Dollars ($200,000,000.00) of capital stock of ICF International
(the “ Stock Sale ”); and
WHEREAS
, the Borrowers have also requested
that the Administrative Agent and the Lenders consent to the
proposed acquisition by ICFG of all of the issued and outstanding
Capital Stock of Macro International Inc. (“ Macro
”), pursuant to that certain Stock Purchase Agreement dated
as of March 27, 2009 (the “ Macro Acquisition
Agreement ”), by and among the ICF International, ICFG,
infoGroup Inc. and Opinion Research Corporation, the sole
shareholder of Macro (the “ Macro Acquisition
”); and
WHEREAS
, the Administrative Agent and
Lenders have agreed to grant the Borrowers’ requests set
forth above, subject to the Borrowers’ agreement to modify
the interest rates charged on amounts advanced under the
Facilities, as well as other terms and provisions of the Loan
Agreement more particularly described herein; and
WHEREAS
, the Borrowers, the Administrative
Agent and the Lenders desire to enter into this Modification to
memorialize the agreements and understanding of the parties with
respect to the foregoing matters, as hereinafter
provided.
NOW THEREFORE
, for Ten and No/100 Dollars
($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Recitals . The foregoing
recitals are hereby incorporated herein by this reference and made
a part hereof, with the same force and effect as if fully set forth
herein.
2. Consent to the Stock Sale
. Subject to the terms and conditions of this Modification and the
other Loan Documents, the Administrative Agent and the Lenders
hereby consent, for all purposes for which such consent may be
necessary or required pursuant to Sections 7.1(b) and 7.8(a) of the
Loan Agreement, to the Stock Sale; provided that (i) the Stock
Sale shall occur on or before September 30, 2010,
(ii) the Stock Sale shall be consummated in accordance with
all applicable laws, and (iii) the proceeds of the Stock Sale,
net of normal and customary fees, costs and expenses incurred by
the Borrowers with respect thereto, shall be immediately used by
the Borrowers to reduce the outstanding principal balance of the
Loans.
3. Consent to the Macro
Acquisition . The Borrowers hereby represent and warrant that
the Macro Acquisition would have constituted a “Permitted
Acquisition” under Section 7.1(d) of the Loan Agreement,
but for the fact that the Macro Acquisition would violate
Section 7.1(d)(ii)(H) of the Loan Agreement absent the prior
written consent of the Required Lenders. The Administrative Agent
and the Lenders hereby consent to the Macro Acquisition, subject to
the following terms, covenants and conditions:
(a) ICFG shall acquire one hundred
percent (100%) of the issued and outstanding Capital Stock of
Macro, free and clear of all liens, claims, encumbrances and other
restrictions or limitations on transfer thereof (other than
Permitted Liens);
(b) the Macro Acquisition shall be
consummated substantially in accordance with the Macro Acquisition
Agreement (a copy of which shall be provided to the Administrative
Agent and its counsel prior to the Borrowers’ use of any Loan
proceeds for the Macro Acquisition), subject to the grant of any
waivers thereunder or modifications thereto;
(c) the Borrowers shall cause Macro
to be joined to the Loan Agreement, the Notes and the other Loan
Documents as a “Borrower” or “Maker” party
thereto (as applicable) pursuant to Section 1.10 of the Loan
Agreement by executing and/or delivering to the Administrative
Agent a Joinder Agreement and such other documents, instruments and
agreements requested by the Administrative Agent in connection
therewith; and
(d) the Borrowers shall timely
comply with all other requirements of Section 7.1(d) of the
Loan Agreement applicable to a “Permitted
Acquisition”.
4. Modification to Pricing
Grid . As a material inducement for the consents granted by the
Administrative Agent and the Lenders herein, the Borrowers hereby
agree to an increase in the interest rates charged on amounts
outstanding under the Loans. Accordingly, Exhibit
7 attached to the Loan Agreement is hereby deleted in
its entirety, and Exhibit 7 attached to this
Modification substituted in lieu thereof. It is understood and
agreed, however, that the Borrowers shall not be entitled to any
reduction in the Applicable Interest Rate below the rates
corresponding to Level II set forth on Exhibit
7 attached to this Modification until the date on which
a change in the pricing level would occur based on the
Borrowers’ audited financial statements for the Fiscal Year
ended December 31, 2009 submitted to the Administrative Agent
and the Lenders pursuant to the terms of the Loan Agreement. By way
of example and not of limitation, if the Borrowers’ Total
Leverage Ratio as of any date of determination shall be greater
than or equal to 3.00 to 1.00, the Applicable Interest Rate shall
be set at Level I, and if the Borrowers’ Total Leverage Ratio
as of any date of determination shall be less than 3.00 to 1.00,
the Applicable Interest Rate shall be set at Level II. Following
the Administrative Agent’s and the Lenders’
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receipt of the Borrowers’ Quarterly
Covenant Compliance /Non-Default Certificate based on the audited
financial statements for the Fiscal Year ended December 31,
2009, interest rate adjustments shall be made in the manner set
forth in the Notes, the Loan Agreement and the exhibits attached
thereto.
5. Conditions Precedent . As
a condition precedent to the effectiveness of this Modification,
the Administrative Agent and its counsel shall have received the
following, each in form and substance satisfactory to the
Administrative Agent and its counsel in all respects, a fully
executed copy of this Modification and such other documents,
instruments, certificates of good standing, corporate resolutions,
limited liability company consents, UCC financing statements,
opinions, certifications, and agreements as the Administrative
Agent may reasonably request, each in such form and content and
from such parties as the Administrative Agent shall
require.
6. Miscellaneous .
(a) Without limiting the
Borrowers’ obligation under Section 1.7(e) of the Loan
Agreement to pay the Administrative Agent’s costs and
expenses incurred in connection with the Loan (including, without
limitation, reasonable attorneys’ fees), simultaneously with
the execution and delivery of this Modification (and as a condition
precedent to its effectiveness), the Borrowers shall pay
(i) to the Lead Arranger, in immediately available funds, an
upfront fee (for the ratable benefit of the Lenders approving this
Modification) in the amount of Five Hundred Fifty Thousand and
No/100 Dollars ($550,000.00); (ii) to the Lead Arranger, those
fees set forth in that certain Letter Agreement dated as of
March 5, 2009 among the Lead Arranger, the Administrative
Agent and ICF International; and (iii) to the Administrative
Agent, all of the Administrative Agent’s reasonable legal
costs and expenses associated with this Modification and the
transactions referenced herein or contemplated hereby, including,
without limitation, the Administrative Agent’s reasonable
legal fees and expenses.
(b) Each Borrower hereby represents,
warrants, acknowledges and agrees that as of the date hereof
(i) there are no set-offs, defenses, deductions or
counterclaims against and no defaults under any of the Notes, the
Loan Agreement or any other Loan Document; (ii) no act, event
or condition has occurred which, with notice or the passage of
time, or both, would constitute a default under any of the Notes,
the Loan Agreement or any other Loan Document; (iii) all of
the representations and warranties of the Borrowers contained in
the Loan Agreement are true and correct as of the date hereof
(except to the extent that such representations and warranties
expressly relate solely to an earlier date), unless the Borrowers
are unable to remake and redate any such representation or
warranty, in which case the Borrowers have previously disclosed the
same to the Administrative Agent and the Lenders in writing, and
such inability does not constitute or give rise to an Event of
Default; (iv) all schedules attached to the Loan Agreement
with respect to any particular representation and warranty of the
Borrowers set forth in the Loan Agreement (as modified) remain
true, accurate and complete, as updated in writing to the
Administrative Agent as of the date of this Modification;
(v) all accrued and unpaid interest and fees payable with
respect to the Loan have been paid; and (vi) there has been no
material adverse change in the business, property or condition
(financial or otherwise) of the Borrowers since December 31,
2008.
(c) The Borrowers, and their
respective representatives, successors and assigns, hereby jointly
and severally, knowingly and voluntarily RELEASE, DISCHARGE, and
FOREVER WAIVE and RELINQUISH any and all claims, demands,
obligations, liabilities, defenses, affirmative defenses, setoffs,
counterclaims, actions, and causes of action of whatsoever kind or
nature, whether known or unknown, which they have, may have, or
might have or may assert now or in the future against the
Administrative Agent and/or the Lenders directly or indirectly,
arising out of, based upon, or in any manner connected with any
transaction, event, circumstance, action, failure to act, or
occurrence of any sort or type, in each case related to, arising
from or in connection with the Loan, whether known or unknown, and
which occurred, existed, was taken, permitted, or begun prior to
the date hereof (including,
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without limitation, any claim, demand,
obligation, liability, defense, counterclaim, action or cause of
action relating to or arising from the grant by the Borrowers to
the Administrative Agent and/or the Lenders of a security interest
in or encumbrance on collateral that is, was or may be subject to,
or an agreement by which the Borrowers are bound and which
contains, a prohibition on further mortgaging or encumbering the
same). The Borrowers hereby acknowledge and agree that the
execution of this Modification by the Administrative Agent and the
Lenders shall not constitute an acknowledgment of or an admission
by the Administrative Agent and/or the Lenders of the existence of
any such claims or of liability for any matter or precedent upon
which any liability may be asserted.
(d) Except as expressly set forth
herein, nothing contained in this Modification is intended to or
shall otherwise act to nullify, discharge, or release any
obligation incurred in connection with the Notes, the Loan
Agreement and/or the other Loan Documents or to waive or release
any collateral given by any Borrower to secure the Notes, nor shall
this Modification be deemed or considered to operate as a novation
of the Notes, the Loan Agreement or the other Loan Documents.
Except to the extent of any express conflict with this Modification
or except as otherwise expressly contemplated by this Modification,
all of the terms and conditions of the Notes, the Loan Agreement
and the other Lo
