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FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF
THE SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the fiscal year ended December 31, 1997 Commission File No. 1-12248
ICF KAISER INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 54-1437073
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9300 Lee Highway, Fairfax, Virginia 22031-1207
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (703) 934-3600
Securities registered pursuant to Section 12(b) of the Act:
Common Stock, par value $0.01 per share
Preferred Stock Purchase Rights
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
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Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ X ]
The aggregate market value of Common Stock held by non-affiliates of the
registrant was $47.9 million based on the New York Stock Exchange Composite Tape
closing price of such stock ($2.50) on March 11, 1998.
On March 11, 1998, there were 22,691,174 shares of Common Stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the ICF Kaiser International, Inc. Proxy Statement for the 1998
Annual Meeting of Shareholders are incorporated by reference in Part III hereof.
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PART I
Item 1. Business
ICF Kaiser International, Inc. through its operating subsidiaries is one of
the nation's largest engineering, construction, program management, and
consulting services companies. The Company's Environment and Facilities
Management, ICF Kaiser Engineers and Constructors, and Consulting Groups provide
fully integrated services in the public and private sectors in a variety of
areas including environment, infrastructure, transportation, industry, energy,
information technology, housing, economic development, and microelectronics
markets. The "Company" or "ICF Kaiser" in this Report refers to ICF Kaiser
International, Inc. and/or any of its consolidated subsidiaries.
For the year ended December 31, 1997, ICF Kaiser reported gross and service
revenue of $1.1 billion and $426.1 million, respectively. Service revenue is
derived by deducting the costs of subcontracted services and direct project
costs from gross revenue and adding the Company's share of the equity in income
of unconsolidated joint ventures and affiliated companies. Effective December
31, 1995, the Company changed its fiscal year end from February 28 to December
31. During the years ended December 31, 1997 and 1996, and the ten months ended
December 31, 1995, the Company operated predominantly in one industry segment,
in which it provided engineering, construction, program management, consulting,
and other professional services.
<TABLE>
<CAPTION>
Year Ended Year Ended Ten Months Ended
December 31, 1997 December 31, 1996 December 31, 1995
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(dollars in thousands)
<S> <C> <C> <C>
Gross revenue................. $1,108,116 $1,248,443 $916,744
Service revenue............... $ 426,086 $ 532,116 $425,896
Operating income.............. $ 18,069 $ 21,180 $ 17,505
Assets........................ $ 398,466 $ 365,973 $369,517
</TABLE>
As of December 31, 1997, the Company's contract backlog totaled
approximately $4.1 billion compared to $4.7 billion as of December 31, 1996.
Most of the Company's backlog relates to public-sector environmental projects
that span from one to five years. Approximately 26% of the $4.1 billion backlog
is expected to be worked off during the fiscal year ending December 31, 1998.
See "Backlog."
The Company's headquarters is located at 9300 Lee Highway, Fairfax,
Virginia 22031-1207, and its telephone number is (703) 934-3600. The Company's
five regional headquarters are located as follows:
<TABLE>
<CAPTION>
Western United States Eastern United States Asia/Pacific Europe/Africa/ Latin America
- --------------------- ------------------------ -------------------- ------------------------- ----------------------------
Middle East
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<S> <C> <C> <C> <C>
2101 Webster Street Gateway View Plaza Q.V. 1 Building, Regal House, Botafogo Rua Lauro
Suite 1000 1600 West Carson St. George's Terrace, London Road, Muller 116-c.j.-2301
Oakland, CA Pittsburgh, PA Perth, WA 6000 Twickenham, Middlesex, Rio de Janeiro-RJ
94612-3060 15220 Australia TW1-3QQ, England Brazil CEP 22.290-160
(510) 419-6000 (412) 497-2000 61-9-366-5366 44-181-892-4433 5-521-542-4997
</TABLE>
Other domestic offices include Tempe, Arizona; Los Angeles, Sacramento, San
Diego, San Rafael, and Sherman Oaks, California; Golden and Lakewood, Colorado;
Washington, DC; Ft. Lauderdale, Jacksonville, Miami, Orlando, and Tampa,
Florida; Atlanta and Savannah, Georgia; Boise, Idaho; Chicago, Illinois;
Ashland, Kentucky; Ruston, Louisiana; Baltimore, Beltsville, Edgewood, and
Lexington Park, Maryland; Boston, Massachusetts; Kansas City, Missouri; Las
Vegas, Nevada; Iselin and Mount Arlington, New Jersey; Albuquerque and Los
Alamos, New Mexico; New York, New York; Greensboro and Research Triangle Park,
North Carolina; Middletown, Pennsylvania; Greenville, South Carolina; Baytown
and Houston, Texas; Lehi and Ogden, Utah; Richmond, Virginia; and Richland and
Seattle, Washington. The Company's other international offices include Brisbane
and Sydney, Australia; Toronto, Ontario, Canada; Ostrava and Prague, Czech
Republic; Paris, France; Hong Kong; Budapest, Hungary; Mexico City, Mexico;
Panama City, Panama; Manila, the Philippines; Lisbon, Portugal; Moscow, Russia;
Taipei, Taiwan; and Istanbul, Turkey.
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ICF Kaiser International, Inc. is a Delaware corporation incorporated in
1987 under the name American Capital and Research Corporation. It is the
successor to ICF Incorporated, a nationwide consulting firm organized in 1969.
In 1988, the Company acquired the Kaiser Engineers business, which dates from
1914. As of February 28, 1998, ICF Kaiser employed 4,772 persons.
OVERVIEW OF MARKETS SERVED BY THE COMPANY
Environmental. In the environmental market, the Company provides services
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in connection with the remediation of hazardous and radioactive waste, waste
minimization and disposal, risk assessment, global warming and acid rain,
alternative fuels, and clean up of harbors and waterways. Demand for ICF
Kaiser's environmental services is driven by a number of factors, including the
need to restore contaminated sites formerly used for weapons production or
military bases; the need to comply with federal, state, and municipal
environmental regulation and enforcement regarding the quality of the
environment; the need to bring aging production facilities into compliance with
current environmental regulations; the need to minimize waste generation on an
ongoing basis; and the need to reduce or forestall liability associated with
pollution-related injury and damage. In addition, there is a growing
international market arising from the increased awareness of the need for
additional and/or initial environmental regulations, studies, and remediation.
A significant portion of future U.S. Departments of Defense (DOD) and
Energy (DOE) environmental expenditures will be directed to cleaning up hundreds
of military bases with thousands of contaminated sites and to restoring
contaminated former nuclear weapons facilities. DOD has stated that there is an
urgent need to ensure that the hazardous wastes present at these sites (often
located near population centers) do not pose a threat to the surrounding
population, and, in connection with the closure of many military bases, there is
an economic incentive to make sure that the environmental restoration enables
these sites to be developed commercially by the private sector. DOE has long
recognized the need to stabilize and safely store nuclear weapons materials such
as plutonium, to clean up areas contaminated with hazardous and radioactive
waste, and restore the weapons sites to the public.
Significant environmental laws have been enacted in the United States in
response to public concern about the environment. These laws and the
implementing regulations affected nearly every industrial activity, and efforts
to comply with the requirements of these laws create demand for the Company's
services. The principal federal legislation that has created a substantial
market for the Company, and therefore has the most significant effect on the
Company's business, includes the following: The Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) of 1980, as amended by the
Superfund Amendments and Reauthorization Act (SARA) of 1986, established the
Superfund program to clean up existing, often abandoned hazardous waste sites
and provides for penalties and punitive damages for noncompliance with U.S.
Environmental Protection Agency (EPA) orders. The Resource Conservation and
Recovery Act (RCRA) of 1976, as amended by the Hazardous and Solid Waste
Amendments of 1984 (HSWA), provides a comprehensive scheme for the regulation of
hazardous waste from the time of generation to its ultimate disposal (and
sometimes thereafter), as well as the regulation of persons engaged in the
treatment, storage, and disposal of hazardous waste. The Clean Air Act as
amended in 1970 empowered EPA to establish and enforce National Ambient Air
Quality Standards, National Emission Standards for Hazardous Air Pollutants and
limits on the emission of various pollutants. The 1990 amendments to the Clean
Air Act substantially increase the number of sources emitting a regulated air
pollutant which will be required to obtain an operating permit; the amendments
also address the issues of acid rain, and ozone protection. The Clean Water Act
of 1972, originally the Federal Water Pollution Control Act of 1948, established
a system of standards, permits and enforcement procedures for the discharge of
pollutants to surface water from industrial, municipal, and other wastewater
sources. The Toxic Substance Control Act, enacted in 1976, established
requirements for identifying and controlling toxic chemical hazards to human
health and the environment.
Infrastructure and Transportation. Both the domestic and international
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infrastructure and transportation markets are driven by the need to maintain and
expand ports, roads, highways, rail and bus systems, bridges, people movers,
airports, and water resource facilities. Increasingly, environmental concerns,
such as wastewater treatment and the reduction of automotive air pollutant
emissions, have become a driving force behind new infrastructure and
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transportation initiatives. These markets primarily are funded by government
dollars, although the private sector is seeking an increased role, particularly
in international projects where there is a critical need for infrastructure and
transportation projects because of the population growth of major cities.
Industry. The industry market in a modern, global economy provides the
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base for the production of industrial metals and chemicals. This market is
driven by the need to maintain and retrofit existing plants, to build new
facilities such as those required for the burgeoning microelectronics industry,
to replace aging production capacity with newer, more efficient and more
environmentally responsible facilities, and to reduce costs, improve quality,
and enhance competitiveness. Basic industrial materials include iron, steel,
alumina / aluminum, chemicals, and copper.
Other Markets. Traditionally DOD has maintained most of its own facilities
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and performed its own facility activities, but it is now in the process of
transferring many of these responsibilities to private contractors and private
owners. The "privatization" market has been created by the government's selling
an asset or revenue stream--such as military housing and electric, water, and
wastewater utilities on a military base--to a private company, which is then
responsible for maintenance and operation. The "outsourcing" market has been
created by private contractors' taking over site activities currently conducted
by government, often military, personnel. The information technology market is
driven by the increasing need for software and software tools to manage such
diverse activities as financial management, accounting, and reporting
capabilities; forecasting wholesale power pricing by independent and electric
bulk power marketers; energy-use patterns; and energy use, billing, and
monitoring.
BUSINESS GROUPS
The Company is organized into three business groups: Environment and
Facilities Management (EFM); ICF Kaiser Engineers and Constructors (E&C); and
Consulting.
Environment and Facilities Management
The EFM Group oversees major program management and technical support
contracts for U.S. government agencies, particularly DOE and DOD. Examples of
current projects include providing technical support for environmental
restoration projects at certain of DOE's former weapons production facilities;
conducting hazardous, toxic, and radioactive waste cleanups for the U.S. Army
under two Total Environmental Restoration Contracts (TERC); and providing
technical and analytical support to the EPA Superfund, RCRA, and other
environmental programs. Another focus of this Group is to provide support to
DOD's privatization and outsourcing initiatives.
The Company's largest single DOE contract is managed by the EFM Group and
performed through Kaiser-Hill Company, LLC, a limited liability company owned
equally by the Company and CH2M Hill Companies, Ltd. (Kaiser-Hill). In 1995,
Kaiser-Hill won DOE's Performance Based Integrating Management contract at the
DOE's Rocky Flats Environmental Technology Site near Denver, Colorado. Rocky
Flats is a former DOE nuclear weapons-production facility, and under the five-
year contract, Kaiser-Hill is working to stabilize and safely store more than 14
tons of plutonium at the site, to clean up areas contaminated with hazardous and
radioactive waste, and to restore much of the 6,000-acre site to the public.
Under the multi-year TERC contracts, the EFM Group is providing
environmental restoration services to the U.S. Army Corps of Engineers (USACE)
at federal installations in California, Arizona, Nevada, and Utah (USACE South
Pacific Division) and in the Eastern Atlantic states encompassing USACE's
Baltimore, Maryland, District. The services provided under the TERCs include
remedial investigation and feasibility studies of contaminated sites and
performing remedial action and site cleanup activities. The Group also provides
environmental services to USACE, Savannah (Georgia) District, under several
contracts, including a contract to support the Corps' South Atlantic Division.
Tasks performed by the Group under this contract include site assessments, risk
assessments, remedial investigations, feasibility studies, remedial design, and
construction support at sites throughout the Savannah District, especially at
the Milan Army Ammunition Plant in Tennessee. Under a similar contract with the
U.S. Army Environmental Center, the Group is providing a full range of technical
support for site
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investigation and remediation projects at Aberdeen Proving Ground and other Army
facilities. Under contracts with DOE, the Group also is conducting environmental
restoration and cleanup activities at DOE's Los Alamos National Laboratory in
New Mexico and providing support services for major projects at DOE's Hanford
Site in Richland, Washington.
Effective January 1, 1998, the Company transferred its private-sector
environmental services business from the ICF Kaiser Engineers and Constructors
Group to its then-named Federal Programs Group. The newly named Environment and
Facilities Management Group now is responsible for all of the Company's
environmental services to private-sector businesses, including compliance
planning, audits, and permitting; risk assessment, site investigations, and
feasibility studies; remedial design, construction, and construction management;
operation and maintenance of remedial systems; decontamination and
decommissioning of facilities; and community relations, Clean Air Act
strategies, and expert witness support. Private-sector environmental clients
include chemical plants; aerospace manufacturers; iron, steel, and aluminum
producers; oil and gas refineries; pharmaceutical companies; the communications
industry; and heavy industrial manufacturers. Representative projects include
providing investigation and cleanup services at a former textile dye plant in
Virginia, including remediation of lead-contaminated hot spots and demolition of
a warehouse; remedial design, procurement, and construction management services
for a Superfund site remediation project; and engineering and specification
development for an in-situ groundwater remediation system at a paint
manufacturing facility in Maryland.
ICF Kaiser Engineers and Constructors
All of the E&C Group's markets are global in nature, and the Group provides
engineering, construction, program management, and consulting services in
numerous technology sectors through companies managed and staffed by local
professionals in Australia, Brazil, the Czech Republic, England, France, Mexico,
the Philippines, Portugal, Russia, Taiwan, Turkey, and the United States as well
as through project offices throughout the world. To capitalize on international
opportunities while minimizing its business development risks, the Group has
established international business relationships through joint ventures,
marketing agreements, and direct equity investments.
Industry Services. The E&C Group's engineering, construction, project
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management, and consulting services to the industrial market involve work with
the iron, steel, alumina / aluminum, copper, and other minerals and metals
industries as well as chemicals, petrochemicals, and refineries. Current
projects include detailed design engineering, procurement, and construction
management for the expansion of an alumina refinery in Western Australia;
engineering and design services for an aluminum expansion project in the
Midwestern United States; design, procurement, construction, and technology for
four nitric acid plants in the United States and Canada; and upgrades for coke
manufacturing operations at a major steelworks in China.
The Group assists clients in private industry by providing the engineering,
construction, and program management skills needed to maintain and retrofit
existing plants and replace aging production capacity with newer, more
environmentally responsible facilities. The Group's largest current
international industrial project is a mini-mill project for Nova Hut, a.s., an
integrated steel maker based in the Ostrava region of the Czech Republic. In
March 1996, ICF Kaiser was awarded a contract to provide turnkey engineering and
construction of the first phase of a facility that will receive liquid steel
from Nova Hut's existing steelmaking facilities, a ladle metallurgy furnace, and
single-strand dual slab caster, site development, and related infrastructure.
Under a second-phase contract awarded in 1997, the E&C Group is installing an
equalizing furnace, a reversing two-stand steckel mill, and associated
facilities. The successful startup in late 1997 included preliminary acceptance
of the first phase of the facility by the owners as well as production of steel
ahead of schedule. It is expected that the second phase will be completed in
late 1999.
Infrastructure Services. The E&C Group is helping rebuild the
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infrastructure of rail and bus systems, highways and bridges, airports, high-
speed rail, peoplemovers, and water resources projects in domestic and
international markets. Budget constraints at the federal, state, and local
government levels have hindered infrastructure market growth, but the Group
remains active in major U.S. metropolitan areas, providing planning, design,
construction management, and program management services in Seattle (light rail
project), San Francisco (commuter rail system renovation), and Orlando (light
rail initiative).
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In the international infrastructure market, the Group's large-scale
construction infrastructure skills are at work in Manila, the Philippines, where
it is the program manager for the construction of a light rail transit line, a
project for which ICF Kaiser supported development and financing since
inception; in Portugal, where the Group provides program management of the
overhaul and upgrade of Portugal's main intercity freight and passenger rail
lines; and in Turkey, where the Group is providing construction management
services for the first phase of a light rail system as part of a joint venture.
The major ports of many of the world's cities have serious water pollution
problems, and the E&C Group is helping to improve the condition of many harbors
and waterways. In its largest harbor project, the Group continues as the
construction manager of the cleanup of Boston Harbor, one of the largest
environmental projects in the country, under a contract extension that runs
through 1998. Since the inception of the project in 1988, the Group has served
as its construction manager and currently manages construction workers,
engineers, architects, and support personnel working to construct a wastewater
treatment plant on Deer Island in Boston Harbor, Massachusetts. In Brazil, the
E&C Group is providing program management services for the construction of
sanitation and wastewater systems for communities surrounding Guanabara Bay.
Consulting
The Consulting Group serves customers in domestic and international
markets, including both public- and private-sector organizations. Among its
major customers are U.S. government agencies, especially EPA; U.S. private-
sector organizations, particularly major energy producers, such as utilities and
oil companies; and governments and businesses around the world, as well as
multinational banks, development organizations, and treaty organizations. The
Consulting Group draws upon the talents of its multidisciplinary professional
staff to support customers within five lines of business.
Energy. This line of business supports the development of corporate and
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technical plans for managing power resources and energy projects (including
transmission and distribution, power generation, and customer service), provides
economic assessments of short- and long-term market conditions for various
fuels, and provides expert support in litigation and regulatory proceedings. The
Consulting Group assists its customers in identifying market opportunities,
commercializing new technologies, and developing public policy; it links energy
markets with energy technology.
Environmental. This line of business assists customers in developing
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plans and policies, evaluating options for managing environmental
responsibilities in the most cost-effective manner, and identifying and
employing the best available technologies and practices. The Group has special
expertise in such areas as industrial and municipal waste management, air
pollution control, chemical accident prevention, and groundwater and drinking
water management. The Consulting Group also provides technical and regulatory
support to EPA's Office of Solid Waste, focusing on human health and ecological
risk assessment and waste characterization.
Global environmental issues are also a particular area of focus within the
Consulting Group. The Consulting Group works with U.S., international, and
private-sector organizations that fund global environmental work and has been
actively involved in supporting international environmental treaties. Working on
global change issues for EPA for 15 years, the Company supports the EPA's Global
Change Division, providing services related to the reduction of methane and
other greenhouse gases.
Transportation. Transportation-related capabilities include an in-depth
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working knowledge of the legislative and policy issues facing the transportation
industry; broad modeling and economic analytical capabilities that evaluate the
full range of economic and policy trade-offs inherent in transportation
decisions; and extensive planning and mission support experience with
multinational and government organizations that operate in transportation-
related areas throughout the globe.
Economic and Community Development. This practice provides training,
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technical assistance, program support, and research services related to
affordable housing and community development. Additionally, the Consulting
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Group helps federal agencies, cities, states, and nonprofit organizations to
design and implement programs that provide affordable, cost-effective housing,
to promote business and economic development, and to help revitalize
deteriorated neighborhoods.
Information Management. The Group assists clients in developing decision
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support systems that facilitate the collection and use of information to track
performance, identify opportunities, and improve decision making. The Group
offers a number of simulation models and proprietary applications. By combining
consulting expertise with information technology skills, the Group helps its
customers deal with the unique challenges of their business environments.
GENERAL INFORMATION ABOUT THE COMPANY
Competition and Contract Award Process
The market for the Company's services is highly competitive. The Company
and its consolidated subsidiaries compete with many other engineering,
construction, program management, and consulting services firms ranging from
small firms to large multinational firms having substantially greater financial,
management, and marketing resources than the Company. Other competitive factors
include quality of services, technical qualifications, reputation, geographic
presence, price, and the availability of key professional personnel.
Private-Sector Work. Competition for private-sector work generally is
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based on several factors, including quality of work, reputation, price, and
marketing approach. The Company's objective is to establish and maintain a
strong competitive position in its areas of operations by adhering to its basic
philosophy of delivering high-quality work in a timely fashion within its
clients' budget constraints.
Public-Sector Work. Most of the Company's contracts with public-sector
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clients are awarded through a competitive bidding process that places no limit
on the number or type of offerors. The process usually begins with a government
Request for Proposal (RFP) that delineates the size and scope of the proposed
contract. Proposals are evaluated by the government on the basis of technical
merit (for example, response to mandatory solicitation provisions, corporate and
personnel qualifications, and experience) and cost. The Company believes that
its experience and ongoing work strengthen its technical qualifications and,
thereby, enhance its ability to compete successfully for future government work.
Teaming Arrangements and Joint Ventures. In both the private and public
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sectors, the Company, acting either as a prime contractor or as a subcontractor,
may join with other firms to form a team or a joint venture that competes for a
single contract or submits a single proposal. Because a team of firms or a joint
venture almost always can offer a stronger set of qualifications than any firm
standing alone, these arrangements often are very important to the success of a
particular competition or proposal. The Company maintains a large network of
business relationships with other companies and has drawn repeatedly upon these
relationships to form winning teams.
Contract Structure. The Company's consolidated subsidiaries operate under
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a number of different types of contract structures with its private- and public-
sector clients, the most common of which are Cost Plus and Fixed Price. Under
Cost Plus contracts, the Company's costs are reimbursed with a fee (either fixed
or percentage of cost) and/or an incentive or award fee offered to provide
inducement for effective project management. A variation of Cost Plus contracts
are time-and-materials contracts under which the Company is paid at a specified
fixed hourly rate for direct labor hours worked. Under Fixed-Price contracts,
the Company is paid a predetermined amount for all services provided as detailed
in the design and performance specifications agreed to at the project's
inception, and under which the Company retains more performance risk than under
Cost Plus contracts. While these Fixed-Price contracts can result in higher
profit margins, they also can be costly if the Company experiences cost overruns
that are not recoverable from the client.
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Customers
The Company's domestic clients include DOE and other federal departments
and agencies; major corporations in the energy, transportation, chemical, steel,
aluminum, mining, and manufacturing industries; utilities; and a variety of
state and local government agencies throughout the United States. DOE accounted
for approximately 56% of the Company's consolidated gross revenue for the year
ended December 31, 1997, approximately 69% for the year ended December 31, 1996,
and approximately 68% for the ten months ended December 31, 1995.
The Company's international clients include both private firms and foreign
government agencies. For the years ended December 31, 1997 and 1996, and for
the ten months ended December 31, 1995, foreign clients accounted for
approximately 14.2%, 5.8%, and 4.7% of the Company's consolidated gross revenue,
respectively. For information concerning gross revenue, operating income, and
identifiable assets of the Company's business by geographic area, see Note 15 to
the consolidated financial statements.
Backlog
Backlog refers to the aggregate amount of gross contract revenue remaining
to be earned pursuant to signed contracts extending beyond one year. At December
31, 1997, the Company's contract backlog was approximately $4.1 billion in gross
revenue, down from approximately $4.7 billion in gross revenue at December 31,
1996. The Kaiser-Hill Performance Based Integrating Management contract at
Rocky Flats near Denver, Colorado, represents approximately 56% of the Company's
total backlog at December 31, 1997. The Company expects that approximately 26%
of the backlog at December 31, 1997, will be worked off during 1998. Because of
the nature of its contracts, the Company is unable to calculate the amount or
timing of service revenue that might be earned pursuant to these contracts. The
Company believes that backlog is not a predictor of future gross or service
revenue.
Differences in contracting practices between the public and private sectors
result in the Company's backlog being weighted heavily toward contracts
associated with departments and agencies of the federal government. Backlog
under contracts with the federal government that extend beyond the government's
current fiscal year includes the full contract amount, including, in many cases,
amounts anticipated to be earned in option periods and certain performance fees,
even though annual funding of the amounts under such contracts generally must be
appropriated by Congress before funds can be expended during any year under such
contracts. In addition, departments and/or agencies must allocate the
appropriated funds to these specific contracts and thereafter authorize work or
task orders to be performed under these specific contracts. Such authorizations
are generally for periods considerably shorter than the duration of the work the
Company expects to perform under a particular contract and generally cover only
a percentage of the contract revenue. Because of these factors, the amount of
federal government contract backlog for which funds have been appropriated and
allocated, and task orders issued, at any given date is a substantially smaller
amount than the total federal government contract backlog as of that date. In
the event that option periods under any given contract are not exercised or
funds are not appropriated, allocated, or authorized to be spent under any given
contract, the amount of backlog attributable to that contract would not result
in revenue to the Company. All contracts and subcontracts with departments
and/or agencies of the federal government are subject to termination, reduction,
or modification at any time at the discretion of the government.
Potential Environmental Liability
The assessment, analysis, remediation, handling, management, and disposal
of hazardous substances necessarily involve significant risks, including the
possibility of damages or personal injuries caused by the escape of hazardous
materials into the environment, and the possibility of fines, penalties, or
other regulatory action. These risks include potentially large civil and
criminal liabilities for violations of environmental laws and regulations, and
liabilities to customers and to third parties for damages arising from
performing services for clients.
Potential Liabilities Arising Out of Environmental Laws and Regulations
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All facets of the Company's business are conducted in the context of a
rapidly developing and changing statutory and regulatory framework. The
Company's operations and services are affected by and subject to regulation
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by a number of federal agencies, including EPA and the Occupational Safety and
Health Administration, as well as applicable state and local regulatory
agencies.
CERCLA addresses cleanup of sites at which there has been a release or
threatened release of hazardous substances into the environment. Increasingly,
there are efforts to expand the reach of CERCLA to make environmental
contractors responsible for cleanup costs by claiming that environmental
contractors are owners or operators of hazardous waste facilities or that they
arranged for treatment, transportation, or disposal of hazardous substances.
Several recent court decisions have accepted these claims. Should the Company be
held responsible under CERCLA for damages caused while performing services or
otherwise, it may be forced to bear such liability by itself, notwithstanding
the potential availability of contribution or indemnity from other parties.
RCRA governs hazardous waste generation, treatment, transportation,
storage, and disposal. RCRA, or EPA-approved state programs at least as
stringent, govern waste handling activities involving wastes classified as
"hazardous." Substantial fees and penalties may be imposed under RCRA and
similar state statutes for any violation of such statutes and the regulations
thereunder.
Potential Liabilities Involving Clients and Third Parties
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In performing services for its clients, the Company could potentially be
liable for breach of contract, personal injury, property damage, and negligence
(including improper or negligent performance or design, failure to meet
specifications, and breaches of express or implied warranties). The damages
available to a client, should it prevail in its claims, are potentially large
and could include consequential damages.
Environmental contractors, in connection with work performed for clients,
potentially face liabilities to third parties from various claims, including
claims for property damage or personal injury stemming from a release of
hazardous substances or otherwise. Claims for damage to third parties could
arise in a number of ways, including through a sudden and accidental release or
discharge of contaminants or pollutants during the performance of services;
through the inability, despite reasonable care, of a remedial plan to contain or
correct an ongoing seepage or release of pollutants; through the inadvertent
exacerbation of an existing contamination problem; or through reliance on
reports or recommendations prepared by the Company. Personal injury claims could
arise contemporaneously with performance of the work or long after completion of
the project as a result of alleged exposure to toxic or hazardous substances. In
addition, increasing numbers of claimants assert that companies performing
environmental remediation should be adjudged strictly liable, i.e., liable for
damages even though its services were performed using reasonable care, on the
grounds that such services involved "abnormally dangerous activities."
Clients frequently attempt to shift various liabilities arising out of
remediation of their own environmental problems to contractors through
contractual indemnities. Such provisions seek to require the Company to assume
liabilities for damage or personal injury to third parties and property and for
environmental fines and penalties. The Company has endeavored to protect itself
from potential liabilities resulting from pollution or environmental damage by
obtaining indemnification from its private-sector clients and intends to
continue this practice in the future. Under most of these contracts, the Company
has been successful in obtaining such indemnification; however, such
indemnification generally is not available if such liabilities arise as a result
of breaches by the Company of specified standards of care or if the indemnifying
party has insufficient assets to cover the liability. The Company's subsidiary,
ICF Kaiser Remediation Company, is the entity through which the Company intends
to increase its remediation activities performed for public- and private-sector
clients. The Company will continue its efforts to minimize the risks and
potential liability associated with its remediation activities by performing all
remediation contracts in a professional manner and by carefully reviewing any
and all remediation contracts it signs in an effort to ensure that its
environmental clients accept responsibility for their own environmental
problems.
For EPA contracts involving field services in connection with Superfund
response actions, the Company is eligible for indemnification under Section 119
of CERCLA for pollution and environmental damage liability resulting from
release or threatened release of hazardous substances. Some of the Company's
clients (including private clients, DOE, and DOD) are Potentially Responsible
Parties (PRPs) under CERCLA. Under the Company's contracts with these PRPs, the
Company has the right to seek contribution from these PRPs for liability imposed
on the Company in connection with its work at these clients' CERCLA sites and
generally qualifies for the limitations on liabilities under
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CERCLA Section 119(a). In addition, in connection with contracts involving field
services at certain of DOE's weapons facilities, the Company is indemnified
under the Price-Anderson Act, as amended, against liability claims arising out
of contractual activities involving a nuclear incident. Recently, EPA has
constricted significantly the circumstances under which it will indemnify its
contractors against liabilities incurred in connection with CERCLA projects.
There are other proposals both in Congress and at the regulatory agencies to
further restrict indemnification of contractors from third-party claims.
Under Kaiser-Hill's contract with DOE, Kaiser-Hill is not responsible
for, and DOE pays all costs associated with, any liability (including without
limitation, a claim involving strict or absolute liability and any civil fine or
penalty, expense, or remediation cost, but limited to those of a civil nature),
which may be incurred by, imposed on, or asserted against Kaiser-Hill arising
out of any act or failure to act, condition, or exposure which occurred before
Kaiser-Hill assumed responsibility on July 1, 1995 ("pre-existing conditions").
To the extent the acts or omissions of Kaiser-Hill constitute willful
misconduct, lack of good faith, or failure to exercise prudent business judgment
on the part of Kaiser-Hill's managerial personnel and cause or add to any
liability, expense, or remediation cost resulting from pre-existing conditions,
Kaiser-Hill is responsible, but only for the incremental liability, expense, or
remediation caused by Kaiser-Hill.
The Kaiser-Hill contract further provides that Kaiser-Hill shall be
reimbursed for the reasonable cost of bonds and insurance allocable to the Rocky
Flats contract and for liabilities (and expenses incidental to such liabilities,
including litigation costs) to third parties not compensated by insurance or
otherwise. The exception to this reimbursement provision applies to liabilities
caused by the willful misconduct or lack of good faith of Kaiser-Hill's
managerial personnel or the failure to exercise prudent business judgment by
Kaiser-Hill's managerial personnel.
In connection with its services to its environmental, infrastructure, and
industrial clients, the Company works closely with federal and state government
environmental compliance agencies, and occasionally contests the conclusions
those agencies reach regarding the Company's compliance with permits and related
regulations. To date, the Company never has paid a fine in a material amount or
had material liability imposed on it for pollution or environmental damage in
connection with its services; however, there can be no assurance that the
Company will not have substantial liability imposed on it for any such damage in
the future.
Insurance
The Company has a comprehensive risk management and insurance program that
provides a structured approach to protecting the Company. Included in this
program are coverages for general, automobile, pollution impairment, and
professional liability; for workers' compensation; and for employers and
property liability. The Company believes that the insurance it maintains,
including self-insurance, is in such amounts and protects against such risks as
is customarily maintained by similar businesses operating in comparable markets.
At this time, the Company expects to continue to be able to obtain general,
automobile, and professional liability; workers' compensation; and employers and
property insurance in amounts generally available to firms in its industry.
There can be no assurance that this situation will continue, and if insurance of
these types is not available, it could have a material adverse effect on the
Company.
The Company has pollution insurance coverage on a claims-made basis, in
amounts and on terms that are economically reasonable, against possible
liabilities that may be incurred in connection with its conduct of its
environmental business. An uninsured claim arising out of the Company's
environmental activities, however, if successful and of sufficient magnitude,
could have a material adverse effect on the Company.
Government Regulation
The Company has a substantial number of cost-reimbursement contracts with
the U.S. government, the costs of which are subject to audit by the U.S.
government. As a result of pending audits related to fiscal years 1986 forward,
the government has asserted, among other things, that certain costs claimed as
reimbursable under government contracts either were not allowable or not
allocated in accordance with federal procurement regulations. The Company is
actively working with the government to resolve these issues. The Company has
provided for its estimate of the potential effect of issues that have been
quantified, including its estimate of disallowed costs for the periods currently
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under audit and for periods not yet audited. Many of the issues, however, have
not been quantified by the government or the Company, and others are qualitative
in nature, and their potential financial impact, if any, is not quantifiable by
the government or the Company at this time. This provision will be reviewed
periodically as discussions with the government progress.
The Company may, from time to time, either individually or in conjunction
with other government contractors operating in similar types of businesses, be
involved in U.S. government investigations for alleged violations of procurement
or other federal laws and regulations. The Company currently is the subject of
a number of U.S. government investigations and is cooperating with the
responsible government agencies involved. No charges presently are known to
have been filed against the Company by these agencies. Management does not
believe that there will be any material adverse effect on the Company's
financial position, results of operations, or cash flows as a result of these
investigations.
Federal agencies that are the Company's regular customers (including DOE,
EPA, and DOD) have formal policies against awarding contracts that would present
actual or potential conflicts of interest with other activities of the
contractor. Because the Company provides a broad range of services in
environmental and related fields for the federal government, state governments,
and private customers, there can be no assurance that government conflict-of-
interest policies will not restrict the Company's ability to pursue business in
the future.
Because some of the Company's consolidated subsidiaries provide the federal
government with nuclear energy and defense-related services, these subsidiaries
and a substantial number of their employees are required to have and maintain
security clearances from the federal government. These subsidiaries and their
employees have been able to obtain these security clearances in the past, and
the Company has no reason to believe that there would be any problems in this
area in the future; however, there can be no assurance that the required
security clearances will be obtained and maintained in the future. Because of
its nuclear energy and defense-related services, the Company is subject to
foreign ownership, control, and influence (FOCI) regulations imposed by the
federal government and designed to prevent the release of classified information
to contractors who are under foreign control or influence. FOCI issues arise
particularly in connection with foreign ownership of the Company's Common Stock,
foreign bank participation in the Company's credit line and increased foreign
sources of the Company's gross revenue. The Company has implemented procedures
designed to insulate such subsidiaries from any FOCI that might affect the
Company. There can be no assurance that such measures will prevent FOCI policies
from affecting the ability of the Company's subsidiaries to secure and maintain
certain types of federal government contracts.
Employees
As of February 28, 1998, ICF Kaiser employed 4,772 persons, and the Company
believes that its relations with its employees are good. Of the total
employees, 1,728 persons are employed at Kaiser-Hill's Rocky Flats site in
Colorado. A total of 1,314 of the Rocky Flats employees are represented by the
United Steelworkers of America, Local 8031; almost all of the union employees
are contracted out to other companies working at Rocky Flats. The Company
believes that its relations with the union are good.
Description of the Company's Capital Stock
The authorized capital stock of the Company consists of 90,000,000 shares
of Common Stock, par value $0.01 per share (Common Stock) and 2,000,000 shares
of preferred stock, par value $0.01 per share. As of March 27, 1998, the
outstanding capital stock of the Company consisted of 24,715,831 shares of
Common Stock and no shares of preferred stock. The outstanding Common Stock
figure excludes all shares held in escrow in connection with a 1995 acquisition.
Common Stock. Each share of Common Stock has one vote per share on all
------------
matters submitted to a vote of shareholders. The Company's Amended and Restated
Certificate of Incorporation provides that no action may be taken by the holders
of shares of Common Stock by written consent in lieu of holding a meeting of
shareholders.
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The Company has never paid cash dividends on its Common Stock. The Board
of Directors anticipates that for the foreseeable future no cash dividends will
be paid on its Common Stock and that the Company's earnings will be retained for
use in the business. The Board of Directors determines the Company's Common
Stock dividend policy based on the Company's results of operations, payment of
dividends on preferred stock (if any is outstanding), financial condition,
capital requirements, and other circumstances. The Company's debt and credit
agreements currently do not permit dividends to be paid on its common stock.
Holders of Common Stock have no preemptive or other rights to subscribe for
additional shares of Company stock. Upon liquidation, dissolution, or winding up
of the Company, each share of Common Stock will share equally in assets legally
available for distribution to stockholders.
The transfer agent and registrar for the Common Stock is First Chicago
Trust Company of New York, 14 Wall Street, Mail Suite 4680, New York, New York
10005. The shareholder relations telephone number at First Chicago is (201)
324-0498, and the First Chicago Web site address is http://www.fctc.com.
Since September 14, 1993, the Common Stock has been traded on the New York
Stock Exchange under the symbol "ICF." From December 14, 1989, to September 13,
1993, the Common Stock was traded on the NASDAQ National Market.
Preferred Stock. Preferred stock is available for issuance from time to
---------------
time at the discretion of the Board of Directors of the Company and without
shareholder approval. For each series of preferred stock it establishes, the
Board of Directors has authority to prescribe the number of shares in that
series and the dividend rate. In addition, the Board of Directors has authority
to prescribe the voting rights, conversion privileges, redemption, sinking fund
provisions and liquidation rights, if any, and any other rights, preferences,
and limitations of the particular series. The issuance of preferred stock could
decrease the amount of earnings and assets available for distribution to the
holders of Common Stock or adversely affect the rights and powers, including
voting rights, of the holders of Common Stock. Additionally, the issuance of
preferred stock could have the effect of delaying, deferring, or preventing a
change in control of the Company without further action by the shareholders.
The Company's debt and credit agreements currently do not permit dividends to be
paid on its preferred stock.
Senior Debt Warrants Issued in 1996. A total of 105,000 Senior Debt
-----------------------------------
Warrants (the 1996 Warrants) were issued by the Company under a warrant
agreement (the 1996 Warrant Agreement) dated December 23, 1996, between the
Company and The Bank of New York, a New York banking corporation, as warrant
agent. Each 1996 Senior Warrant entitles the holder thereof to acquire one
share of Common Stock of the Company, subject to adjustment, upon payment of the
exercise price of $2.30 (the Purchase Price), subject to adjustment as described
below. All outstanding 1996 Warrants terminate and become void on December 31,
1999 (the Expiration Date). The 1996 Warrants are subject to the terms
contained in the 1996 Warrant Agreement. The Common Stock issuable upon
exercise of the 1996 Warrants has been registered with the SEC and listed on the
New York Stock Exchange.
A total of 600,000 Senior Subordinated Debt Warrants (the 1994 Warrants)
were issued by the Company under a warrant agreement (the 1994 Warrant
Agreement) dated January 11, 1994, between the Company and The Bank of New York,
a New York banking corporation, as warrant agent. Each 1994 Warrant entitles the
holder thereof to acquire one share of Common Stock of the Company, subject to
adjustment, upon payment of the exercise price of $5.00 (the Purchase Price),
subject to adjustment as described below. All outstanding 1994 Warrants
terminate and become void on December 31, 1998 (the Expiration Date). The 1994
Warrants are subject to the terms contained in the 1994 Warrant Agreement. The
Common Stock issuable upon exercise of the 1994 Warrants has been registered
with the SEC and listed on the New York Stock Exchange.
If the Company proposes to enter into a transaction that would constitute a
Non-Surviving Combination if consummated, the Company must give written notice
thereof to the holders of the 1996 Warrants and of the 1994 Warrants promptly
after an agreement is reached with respect to the Non-Surviving Combination but
in no event less than 30 days prior to the consummation thereof. The 1996
Warrant Agreement and the 1994 Warrant Agreement define a Non-Surviving
Combination as any merger, consolidation, or other business combination by the
Company with one or more persons (other than a wholly owned subsidiary of the
Company) in which the Company is not the
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survivor, or a sale of all or substantially all of the assets of the Company to
one or more such other persons, if consideration (other than consideration which
includes Common Stock or securities convertible into, or exercisable or
exchangeable for, Common Stock or rights or options to acquire Common Stock or
such other securities) is distributed to holders of Common Stock in exchange for
all or substantially all of their equity interest in the Company.
In a Non-Surviving Combination, the surviving entity (the Survivor) will be
obligated to distribute or pay to each holder of 1996 Warrants and each holder
of the 1994 Warrants, upon payment of the Purchase Price prior to the Expiration
Date, the number of shares of stock or other securities or other property
(including any cash) of the Survivor that would have been distributable or
payable on account of the Common Stock if such holder's warrants had been
exercised immediately prior to such Non-Surviving Combination. Following the
consummation of a Non-Surviving Combination, the 1996 Warrants and the 1994
Warrants will represent only the right to receive such shares of stock or other
property from the Survivor upon payment of the Purchase Price prior to the
Expiration Date.
The number of shares of Common Stock issuable upon the exercise of each
1996 Warrant and each 1994 Warrant and the Purchase Price are subject to
adjustment in certain events, including (a) a dividend or distribution on the
Company's Common Stock in shares of its Common Stock or a combination,
subdivision, reorganization, or reclassification of Common Stock, (b) the
issuance of shares of Common Stock for a consideration per share less than the
market price per share at the time of issuance, (c) the issuance of rights,
warrants, or options for the purchase of Common Stock or for the purchase of
securities convertible into or exchangeable for Common Stock where the aggregate
amount of consideration per share of Common Stock received or receivable by the
Company is less than the market price per share at the time of issuance of such
right, warrant, or option, (d) the issuance of any securities convertible into
or exchangeable for Common Stock where the aggregate amount of consideration per
share of Common Stock received or receivable by the Company is less than the
market price per share of Common Stock on the date of issuance of such
convertible or exchangeable security, and (e) a dividend or distribution on the
Company's Common Stock of cash, evidences of its indebtedness, other securities,
or other properties or assets other than any cash dividend which, when
aggregated with all other cash dividends paid in the year prior to the
declaration of such cash dividend, does not exceed 10% of the market price per
share of Common Stock on the date of such declaration. If the terms of any of
the Company's outstanding rights, warrants, or options for the purchase of
Common Stock or securities convertible into or exchangeable for Common Stock
change, in each case where the issuance thereof caused an adjustment in the
terms of the 1996 Warrants (including by way of expiration of such securities
but excluding by way of antidilution provisions thereof triggering an adjustment
of the terms thereof upon the occurrence of an event that would cause an
adjustment of the terms of the 1996 Warrant), then the Purchase Price and the
number of shares of Common Stock issuable upon the exercise of each 1996 Warrant
shall be readjusted to take account of such change. Notwithstanding the
foregoing, no adjustment in the Purchase Price or the number of shares of Common
Stock issuable upon exercise of 1996 Warrants will be required (i) until
cumulative adjustments would result in an adjustment of at least 1% in the
Purchase Price, (ii) for the granting, in a transaction which would otherwise
trigger an adjustment, of any rights, warrants, or options or the issuance of
any Common Stock to officers, directors, or employees of, or consultants or
advisors to, the Company where such issuances are registered with the SEC on
Form S-8 and do not, in the aggregate exceed 5% of the number of shares of
Common Stock outstanding (assuming the exercise of the options so granted and
all rights, warrants, options, and convertible securities then outstanding), or
(iii) the issuance of Common Stock pursuant to any dividend reinvestment plan
where the purchase price of Common Stock thereunder is no less than 95% of the
market price on the date of issuance.
Senior Subordinated Debt Warrants Issued in 1989. In 1989, in connection
------------------------------------------------
with the issuance of senior subordinated notes that were redeemed by the Company
in 1994, the Company issued warrants to purchase 1,778,512 shares of Common
Stock. In 1994, the Company repurchased 1,503,424 of such warrants, leaving
outstanding warrants to purchase 275,088 shares of Common Stock (the 1989
Warrants). The 1989 Warrants, which will expire on May 15, 1999, are exercisable
at any time at an exercise price of $6.87 per share, subject to anti-dilution
adjustment upon the occurrence of certain events, including any issuance of
Common Stock, options, or warrants at less than the higher of market value or
$6.87 per share.
The holders of the 1989 Warrants have certain rights to require the Company
to register the shares of Common Stock underlying the 1989 Warrants for resale.
In addition, the Company may not grant to any purchaser
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of unregistered securities any demand registration rights without giving the
holders of the 1989 Warrants the same rights on a pro rata basis as they would
have in a demand registration initiated by them.
Shareholder Rights Plan. On January 13, 1992, the Board of Directors of
-----------------------
the Company declared a dividend distribution to shareholders of record at the
close of business on January 31, 1992 (the Record Date) of one Right for each
outstanding share of Common Stock. Each Right entitles the registered holder of
Common Stock to purchase from the Company a unit consisting of one 1/100th of a
share (a Preferred Stock Unit) of Series 4 Junior Preferred Stock (the Series 4
Preferred Stock), at a purchase price of $50.00 per Preferred Stock Unit (the
Purchase Price), subject to adjustment. The Rights also are subject to
antidilution adjustments. The description of the Rights is set forth in a Rights
Agreement (the Rights Agreement) between the Company and the Rights Agent. The
Rights Agent is First Chicago Trust Company of New York.
A Distribution Date (the Distribution Date) for the Rights will occur upon
the earlier of (i) 10 business days following a Stock Acquisition Date, which is
the public announcement that a person or group of affiliated or associated
persons has acquired, or obtained the right to acquire, beneficial ownership of
20% or more of the outstanding shares of Common Stock (such person or group
referred to herein as an Acquiring Person) or (ii) 10 business days following
the commencement of a tender offer or exchange offer that would if consummated
result in a person or group becoming an Acquiring Person. The Rights are not
exercisable until the Distribution Date and will expire at the close of business
on January 13, 2002, unless redeemed earlier by the Company as described below.
Until the Distribution Date (i) the Rights will be evidenced by the Common Stock
certificates and will be transferred with and only with such certificates and
(ii) the surrender for transfer of any certificates for Common Stock outstanding
will also constitute the transfer of the Rights associated with the Common Stock
represented by such certificate.
In the event that, at any time following the Distribution Date, a person
becomes an Acquiring Person, then each holder of a Right (other than the
Acquiring Person) will thereafter have the right to receive, (x) upon exercise
and payment of the Purchase Price, Common Stock (or, in certain circumstances,
cash, property, or other securities of the Company) having a value equal to two
times the Purchase Price of the Right or (y) at the discretion of the Board of
Directors, upon exercise and without payment of the Purchase Price, Common Stock
(or, in certain circumstances, cash, property, or other securities of the
Company) having a value equal to the Purchase Price of the Right. For example,
at a Purchase Price of $50.00 per Right, each Right not owned by an Acquiring
Person (or by certain related parties) following the event set forth above would
entitle its holder to purchase $100 worth of Common Stock (or other
consideration, as noted above) for $50.00. Assuming that the Common Stock has a
per share value of $10.00 at such time, the holder of each Right would be
entitled to purchase 10 shares of Common Stock for a total aggregate purchase
price of $50.00. However, Rights are not exercisable following the occurrence of
the event set forth above until such time as the Rights are no longer redeemable
by the Company as set forth below.
In the event that, at any time following the Stock Acquisition Date, (i)
the Company is acquired in a merger or other business combination transaction in
which the Company is not the surviving corporation, (ii) the Company is the
surviving corporation in a merger with any Person (as defined in the Rights
Agreement) and its Common Stock is changed into or exchanged for stock or other
securities of any other Person or cash or any other property, or (iii) 50% or
more of the Company's assets or earning power is sold or transferred, each
holder of a Right (except Rights held by an Acquiring Person or which previously
have been exercised as set forth above) shall thereafter have the right to
receive, upon exercise, common stock of the acquiring Company having a value
equal to two times the Purchase Price of the Right. The events set forth in this
paragraph and in the immediately preceding paragraph are referred to as the
Triggering Events.
As noted above, following the occurrence of any of the events described
above, all Rights that are, or (under certain circumstances specified in the
Rights Agreement) were, beneficially owned by any Acquiring Person will be null
and void.
The Purchase Price payable, and the number of Preferred Stock Units or
other securities or property issuable upon exercise of the Rights, are subject
to amendment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination, or reclassification of, the Series 4
Preferred Stock, (ii) if holders of the
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Series 4 Preferred Stock are granted certain rights or warrants to subscribe for
Series 4 Preferred Stock or convertible securities at less than the current
market price of the Series 4 Preferred Stock, or (iii) upon the distribution to
holders of the Series 4 Preferred Stock of evidences of indebtedness or assets
(excluding regular quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above). With certain exceptions, no
adjustment in the Purchase Price will be required until cumulative adjustments
amount to at least 1% of the Purchase Price. In addition, to the extent that the
Company does not have sufficient shares of Common Stock issuable upon exercise
of the Rights following the occurrence of a Triggering Event, the Company may,
under certain circumstances, reduce the Purchase Price. No fractional Preferred
Stock Units will be issued and, in lieu thereof, an adjustment in cash will be
made.
In general, the Company may redeem the Rights in whole, but not in part, at
a price of $0.01 per Right (payable in cash, Common Stock, or other
consideration deemed appropriate by the Board of Directors), at any time until
10 business days following the Stock Acquisition Date. After the redemption
period has expired, the Company's right of redemption may be reinstated if an
Acquiring Person reduces its beneficial ownership to less than 10% of the
outstanding shares of Common Stock in a transaction or series of transactions
not involving the Company and there are no other Acquiring Persons. Immediately
upon the action of the Board of Directors ordering redemption of the Rights, and
without any notice to the holder of such Rights prior to such redemption, the
Rights will terminate and the only right of the holders of Rights will be to
receive the $0.01 redemption price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the right
to vote or to receive dividends.
Other than those provisions relating to the principal economic terms of the
Rights (except with respect to increasing the Purchase Price under certain
circumstances described in the Rights Agreement), any of the provisions of the
Rights Agreement may be amended by the Board of Directors of the Company prior
to the Distribution Date. After the Distribution Date, the provisions of the
Rights Agreement may be amended by the Board in order to cure any ambiguity, to
make changes that do not adversely affect the interests of holders of Rights
(excluding the interests of any Acquiring Person) or to shorten or lengthen any
time period under the Rights Agreement. However, no amendment to adjust the time
period governing redemption shall be made when the Rights are not redeemable.
One Right was distributed to shareholders of the Company for each share of
Common Stock owned of record by them at the close of business on the Record
Date. Until the Distribution Date, the Company will issue a Right with each
share of Common Stock so that all shares of Common Stock have attached Rights.
The Rights may be deemed to have certain anti-takeover effects. The Rights
generally may cause substantial dilution to a person or group that attempts to
acquire the Company under circumstances not approved by the Board of Directors
of the Company. The Rights should not interfere with any merger or other
business combination approved by the Board of Directors of the Company since the
Board of Directors may, at its option, at any time prior to the close of
business on the earlier of (i) the 10th business day following the Stock
Acquisition Date or (ii) January 13, 2002, redeem all but not less than all of
the then outstanding Rights at $0.01 per Right.
Provisions Affecting Changes of Control and Extraordinary Transactions. In
----------------------------------------------------------------------
addition to the Shareholder Rights Plan, certain provisions of the Company's
Amended and Restated Certificate of Incorporation and By-laws and other
agreements could have the effect of delaying, deferring, or preventing a change
in control of the Company or other extraordinary corporate transaction.
The Company's Amended and Restated Certificate of Incorporation and By-laws
provide for classification of the Board of Directors into three classes, as
nearly equal in number as possible, with one class of directors being elected
each year for three-year terms. Under Delaware law, members of a classified
board may be removed only for cause. Thus, at least two years would be required
to effect a change of control in the Board of Directors, unless a shareholder
had sufficient voting power to amend or repeal the Amended and Restated
Certificate of Incorporation and By-law provisions relating to classification of
the Board of Directors.
In addition, the Amended and Restated Certificate of Incorporation imposes
supermajority voting requirements for certain corporate transactions that apply
if a majority of the Board of Directors has not served in such positions for at
least 12 months. Under those circumstances, the approval of two-thirds of the
voting power of the
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Company's capital stock would be required in order for the Company to (i) merge
with or consolidate into any other entity, other than a subsidiary of the
Company, (ii) sell, lease, or assign all or substantially all of the assets or
properties of the Company, or (iii) amend the voting provisions of the Amended
and Restated Certificate of Incorporation. Other Amended and Restated
Certificate of Incorporation provisions of the type referred to above include
(i) the denial of the right of holders of Common Stock to take action by written
consent in lieu of at a shareholders' meeting and (ii) the ability of the Board
of Directors to determine the rights and preferences (including voting rights)
of the Company's authorized but unissued preferred stock, and then to issue such
stock. Such By-law provisions include those that (i) require advance nomination
of directors, (ii) require advance notice of business to be conducted at
shareholders' meetings, and (iii) provide that shareholders owning at least 50%
of the voting power of the capital stock are required to call a special meeting
of shareholders.
With the exception of the provision that authorizes the Board of Directors to
fix the terms of and issue authorized but unissued shares of preferred stock,
the approval of the holders of at least two-thirds of the voting power of the
Company's capital stock is required to amend, alter, or repeal, or to adopt
provisions inconsistent with, the Amended and Restated Certificate of
Incorporation and By-law provisions described above, regardless of whether a
majority of the members of the Board of Directors has served in such positions
for more than 12 months at the time of such action.
In addition, the 1989 Warrants described above provide that, if the Company is
a party to a merger or other extraordinary corporate transaction in which the
Company's outstanding Common Stock is exchanged for securities or other
consideration (including cash), the holders thereof shall have the right to
elect, within 60 days after notice, to receive, at the holder's election, (i)
the consideration which the warrant holder would have received had the warrants
been exercised immediately prior to the transaction or (ii) the number of shares
of the acquiring party's voting stock determined by reference to a formula that
gives effect to the fair market value of the consideration paid for the
Company's Common Stock in the transaction. If such a transaction constitutes a
Change of Control Event (as described above), each of the holders of the 1989
Warrants also has the right to exercise the warrants they hold within the 60-day
notice period referred to above and receive cash in an amount equal to the fair
market value of the highest per share consideration paid in connection with the
transaction, computed as if the warrants had been exercised immediately prior to
consummation of the transaction.
Delaware Takeover Statute. Section 203 of the Delaware General Corporation
-------------------------
Law (the Delaware Takeover Statute) applies to Delaware corporations with a
class of voting stock listed on a national securities exchange, authorized for
quotation on an inter-dealer quotation system, or held of record by 2,000 or
more persons, and restricts transactions which may be entered into by such a
corporation and certain of its stockholders. The Delaware Takeover Statute
provides, in essence, that a stockholder acquiring more than 15% of the
outstanding voting shares of a corporation subject to the statute (an Interested
Stockholder), but less than 85% of such shares, may not engage in certain
Business Combinations with the corporation for a period of three years
subsequent to the date on which the stockholder became an Interested
Stockholder, unless (i) prior to such date the corporation's board of directors
approved either the Business Combination or the transaction in which the
stockholder became an Interested Stockholder or (ii) the Business Combination is
approved by the corporation's board of directors and authorized by a vote of at
least 66 2/3% of the outstanding voting stock of the corporation not owned by
the Interested Stockholder.
The Delaware Takeover Statute defines the term Business Combination to
encompass a wide variety of transactions with or caused by an Interested
Stockholder in which the Interested Stockholder receives or could receive a
benefit on other than a pro rata basis with other stockholders, including
mergers, certain asset sales, certain issuances of additional shares to the
Interested Stockholder, transactions with the corporation which increase the
proportionate interest of the Interested Stockholder, or transactions in which
the Interested Stockholder receives certain other benefits.
15
<PAGE>
Item 2. Properties
The Company's operations are conducted in leased facilities or in facilities
provided by the federal government or other clients. The Company's headquarters
is located at 9300 Lee Highway, Fairfax, Virginia 22031-1207, and its telephone
number is (703) 934-3600.
The Company's regional headquarters and other offices are listed on page 1
of this Report. Because the Company's operations generally do not require the
maintenance of unique facilities, suitable office space is available for lease
in all of the areas served. The Company believes that adequate space to conduct
its operations will be available for the foreseeable future. For information
concerning an investment by the Company in the Fairfax, Virginia, land and
buildings where the Company's headquarters are located, see Notes 4 and 10 to
the consolidated financial statements.
Item 3. Legal Proceedings
In the course of the Company's normal business activities, various claims or
charges have been asserted and litigation commenced against the Company arising
from or related to properties, injuries to persons, and breaches of contract, as
well as claims related to acquisitions and dispositions. Claimed amounts may
not bear any reasonable relationship to the merits of the claim or to a final
court award. In the opinion of management, an adequate reserve has been
provided for final judgments, if any, in excess of insurance coverage, that
might be rendered against the Company in such litigation. See "General
Information about the Company -- Potential Environmental Liability" and "--
Government Regulation."
Item 4. Submission of Matters to a Vote of Security Holders
None
Item 10. Executive Officers of the Registrant
The names of the Company's executive officers, who are elected annually,
and their ages (as of March 20, 1998), principal corporate positions, and
business experience are set forth below.
Kenneth L. Campbell, 41, has been Executive Vice President and Chief
Financial Officer of ICF Kaiser International, Inc. since July 1997. From July
1996 through June 1997, Mr. Campbell was Chief Operating Officer of Perseus, an
international merchant bank based in Washington, D.C. He previously was employed
by ICF Kaiser from 1988 through June 1996, holding a variety of senior
management positions, including Senior Vice President and Treasurer (1994-1996)
and Senior Vice President for Corporate Development (1993-1994). Mr. Campbell
first worked for the Company in 1980 as an economic consultant, rejoining the
Company in 1988 to assist with the acquisition of Kaiser Engineers. Mr. Campbell
has been a director of ICF Kaiser International, Inc. since May 1997. Mr.
Campbell graduated from Wesleyan University (B.A.) and the University of
Pennsylvania, Wharton Graduate School of Finance (M.B.A.).
James O. Edwards, 54, has been Chairman of the Board and Chief Executive
Officer of ICF Kaiser International, Inc. since 1987. He also was President of
ICF Kaiser International, Inc. from 1987 to 1990. In 1974, he joined ICF
Incorporated, the predecessor of ICF Kaiser International, Inc. and was its
Chairman and Chief Executive Officer from 1986 until the 1987 establishment of
ICF Kaiser International, Inc. Mr. Edwards graduated from Northwestern
University (B.S.I.E.) and Harvard University (M.B.A., High Distinction, George
F. Baker Scholar).
Michael F. Gaffney, 48, has been Executive Vice President and Director of
Corporate Development since July 1997. Mr. Gaffney joined ICF Kaiser
International, Inc. in June 1994 as Vice President of Special Projects for the
Engineering and Construction Group; he was Group Senior Vice President for
Business Development of the Company's Engineers and Constructors Group
immediately prior to his promotion in July 1997. For the nine years prior to
joining ICF Kaiser, Mr. Gaffney held a number of management positions with
Jacobs Engineering Group
16
<PAGE>
Inc., leaving that firm as Vice President of Operations in Jacobs' Pasadena,
California, office. Mr. Gaffney graduated from California Western College
(B.S.).
Michael K. Goldman, 46, has been an Executive Vice President since 1990 and
the Chief Administrative Officer of the Company since 1995. He has held senior
management positions in several of the Company's operating subsidiaries since
1980. Prior to joining the Company, Mr. Goldman was in the private practice of
law. Mr. Goldman graduated from Harvard University (B.A., M.B.A. High
Distinction, George F. Baker Scholar) and the University of California at
Berkeley (J.D.).
Thomas P. Grumbly, 48, has been President of the Environment and Facilities
Management (EFM) Group of ICF Kaiser International, Inc. since its formation on
January 1, 1998. He also is an Executive Vice President. He joined the Company
in April 1997 as an Executive Vice President and President of the Company's
Federal Programs Group and was responsible for combining the Company's private
environmental practice with its federal programs practice into the EFM Group in
late 1997. Mr. Grumbly was Under Secretary of the U. S. Department of Energy in
1997 prior to joining ICF Kaiser; he had been DOE's Assistant Secretary for
Environmental Management prior to becoming Under Secretary. From 1987 to 1993
when he joined DOE, Mr. Grumbly was President of Clean Sites, Inc., a non-profit
organization dedicated to solving U.S. hazardous waste problems. Mr. Grumbly
graduated from Cornell University (B.A.), University of Toronto (M.A.), and the
University of California, Berkeley (Master in Public Policy).
Sudhakar Kesavan, 43, has been an Executive Vice President of the Company
and President of the Company's Consulting Group since December 1996. He has
held senior management positions in the Company's Consulting Group since 1983.
Prior to joining the Company, Mr. Kesavan worked for the Indian subsidiary of
the Royal Dutch/Shell company. Mr. Kesavan graduated from the Indian Institute
of Technology (B. Tech), Indian Institute of Management (P.G.D.M.), and the
Massachusetts Institute of Technology. (S.M.).
Timothy P. O'Connor, 33, has been Senior Vice President and Treasurer of
ICF Kaiser International, Inc. since February 1998. Mr. O'Connor joined the
Company in May 1995 and became Vice President and Treasurer in January 1997.
From 1990 until 1995, Mr. O'Connor was employed by Lockheed Martin Corporation
of Bethesda, Maryland, where he held a number of financial positions, including
assistant cash manager, project manager, and senior financial analyst. Prior to
that, Mr. O'Connor worked for Lazard Freres and Co. of New York, as an
accountant and institutional representative. Mr. O'Connor, who is a Certified
Cash Manager, graduated from the University of Delaware (B.S.).
Marcy A. Romm, 39, has been Senior Vice President and Director of Human
Resources of the Company since 1993. She has held Human Resources positions at
ICF Kaiser since 1984. Ms. Romm graduated from George Washington University
(B.A., M.B.A.).
Marc Tipermas, 50, has been President and Chief Operating Officer of ICF
Kaiser International, Inc. since April 1997. He had been Executive Vice
President and Director of Corporate Development for the Company from 1993 to
1997 and held senior management positions in several of ICF Kaiser's operating
subsidiaries since joining the Company in 1981. From 1977 to 1981, Dr. Tipermas
was employed by the U.S. Environmental Protection Agency where he was the
Director of the Superfund Policy and Program Management Office from 1980 to
1981. Prior to joining EPA, he was Assistant Professor of Political Science at
the State University of New York at Buffalo from 1975 to 1977. Dr. Tipermas has
been a director of ICF Kaiser International, Inc. since 1993. Dr. Tipermas
graduated from the Massachusetts Institute of Technology (S.B.) and Harvard
University (A.M., Ph.D.).
David Watson, 53, has been an Executive Vice President and President of the
Engineers and Constructors Group since December 1995. From 1989 to November
1995, he was with Day & Zimmerman International, Inc., an engineering and
construction firm. From 1989 to 1993 he was President of that firm's Advanced
Dzign Systems; in 1993 he led that firm's venture into the international
marketplace by taking the position of President of D&Z International, an off-
shore international unit, where he established a strategy to pursue engineering
and construction work in China and Russia. Prior to joining Day & Zimmerman,
Mr. Watson was with Stearns Catalytic, Inc. and Burmah Oil Company. Mr. Watson
graduated from Loughborough University of Technology, Loughborough,
Leicestershire, England (B. Tech).
17
<PAGE>
Paul Weeks, II, 54, has been Senior Vice President, General Counsel, and
Secretary of ICF Kaiser International, Inc. since 1990. He joined ICF
Incorporated in May 1987 as its Vice President, General Counsel, and Secretary.
From 1973 to 1987 he was employed by Communications Satellite Corporation, where
from 1983 to 1987 he was Assistant General Counsel for Corporate Matters. Mr.
Weeks graduated from Princeton University (B.S.E.E.) and The National Law Center
of George Washington University (J.D.).
PART II
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters
Since September 14, 1993, the Common Stock has traded on the New York Stock
Exchange (NYSE) under the symbol "ICF". At March 11, 1998, the Company's record
date for its 1998 Annual Meeting of Shareholders, there were 1,502 shareholders
of record; the Company believes that there are approximately 4,500 beneficial
owners of Common Stock.
On March 20, 1998, the closing price of the Common Stock as reported by the
NYSE was $2.8125. The following table sets forth, for the periods indicated,
the high and low sales prices on the NYSE for the Common Stock:
<TABLE>
<CAPTION>
Common Stock Price
High Low
<S> <C> <C>
Year Ended December 31, 1996
First Quarter............................................. $4.375 $2.625
Second Quarter............................................ 3.375 2.375
Third Quarter............................................. 3.250 2.000
Fourth Quarter............................................ 2.375 1.750
Year Ended December 31, 1997
First Quarter............................................. $2.625 $1.875
Second Quarter............................................ 2.750 1.875
Third Quarter............................................. 2.875 2.125
Fourth Quarter............................................ 2.813 2.000
</TABLE>
The Company's Transfer Agent and Registrar is First Chicago Trust Company
of New York, P.O. Box 2536, Jersey City, NJ 07303-2536. The
Shareholder Relations telephone number is (201) 324-0498, and the First Chicago
Web site address is http://www.fctc.com.
The Company has never paid cash dividends on its Common Stock. The Board of
Directors anticipates that no cash dividends will be paid on its Common Stock
for the foreseeable future and that the Company's earnings will be retained for
use in the business.
The Board of Directors determines the Company's Common Stock dividend
policy based on the Company's results of operations, payment of dividends on
preferred stock, financial condition, capital requirements, and other
circumstances. The Company's debt agreements currently do not permit dividends
to be paid on its capital stock. See Note 5 to the consolidated financial
statements.
18
<PAGE>
Item 6. Selected Financial Data
The selected consolidated financial data of the Company for the years ended
December 31, 1997 and 1996, the ten months ended December 31, 1995, and each
year in the two-year period ended February 28, 1995, have been derived from the
Company's audited consolidated financial statements. This information should be
read in conjunction with the consolidated financial statements and the related
notes thereto appearing elsewhere in this Report and "Management's Discussion
and Analysis of Financial Condition and Results of Operations." Certain
reclassifications have been made to the prior period financial statements to
conform to the presentation used in the December 31, 1997, financial statements.
SELECTED CONSOLIDATED FINANCIAL DATA
(in thousands except per share data)
<TABLE>
<CAPTION>
Ten Months
Year Ended Year Ended Ended Year Ended February 28,
December 31, December 31, December 31, -----------------------
1997 1996 1995 1995 1994
------------ ------------ ------------ ----------- ------------
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Gross revenue $ 1,108,116 $ 1,248,443 $ 916,744 $ 861,518 $ 651,657
Service revenue(1) 426,086 532,116 425,896 459,786 382,708
Operating income (loss) 18,069 21,180 17,505 13,688 (5,230)
Income (loss) before income taxes, minority
interest, and extraordinary item 2,561 14,484 6,303 1,239 (12,877)
Income (loss) before minority interests and
extraordinary item 5,880 11,877 4,212 (1,661) (12,528)
Net income (loss) before extraordinary item (4,987) 5,834 2,252 (1,661) (12,528)
Net income (loss) (4,987) 5,834 2,252 (1,661) (18,497)
Net income (loss) available for common
shareholders (4,987) 3,656 449 (3,815) (25,322)
BASIC AND DILUTED EARNINGS (LOSS) PER SHARE:
Before extraordinary item $ (0.22) $ 0.17 $ 0.02 $ (0.18) $ (0.92)
Extraordinary loss on early
extinguishment of debt - - - - (0.29)
----------- ----------- --------- --------- ---------
Total $ (0.22) $ 0.17 $ 0.02 $ (0.18) $ (1.21)
=========== =========== ========= ========= =========
Weighted average common shares
outstanding - basic 22,382 22,035 21,132 20,957 20,886
Weighted average common shares
outstanding - diluted 22,382 22,057 21,606 20,957 20,886
BALANCE SHEET DATA (END OF PERIOD):
Total assets $ 398,466 $ 365,973 $ 369,517 $ 281,422 $ 281,198
Working capital 90,521 113,898 84,589 91,640 87,648
Long-term liabilities 145,590 161,951 125,818 133,130 130,752
Redeemable preferred stock - - 19,787 19,617 20,212
Shareholders' equity 27,327 34,892 28,427 27,624 30,780
</TABLE>
- -------------------
(1) Service revenue is derived by deducting the costs of subcontracted services
and direct project costs from gross revenue and adding the Company's share
of the equity in income of unconsolidated joint ventures and affiliated
companies.
19
<PAGE>
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations
OVERVIEW
The Company achieved several important milestones in 1997 that will better
position it for long-term expansion and profitable growth. Through sales
successes, cost reductions, and cost-containment initiatives, the Company
replaced significant 1996 earnings that did not recur in 1997. More
specifically, the Company was forced to address and minimize the impact of the
loss of the rebid for its then single largest contract, the Management and
Integration Services contract with the U.S. Department of Energy's Hanford
Nuclear Site, which had contributed $12.0 million to the Company's 1996
operating results. Additionally, the Company sold for a pretax profit of $9.4
million the majority of its interests in entities owning and operating a
pulverized coal injection facility, which in 1996 generated over $5.6 million in
operating margins .
The Company continued to grow internationally and completed the formation of
several important strategic teaming relationships with other major international
companies. Many marketing activities targeting large contracts have been
successful. The Company believes these successes will continue because the
Company has proven abilities and resources that give it a competitive advantage
in serving both government and commercial customers.
The Company achieved improved diversification in its customer base in 1997.
In addition to the continued focus on customer diversification, the Company is
also experiencing a shift in the mix of the types of contracts under which it
performs. The large commercial project market will continue to require the
Company to undertake fixed-price contracts in which the Company retains more
performance risk than in other contract types. Due to this risk transfer
element, these types of contracts can contain premiums for potentially higher
profit margins than cost-reimbursable type contracts, but this contract type can
also pose more risk. For example, the 1997 results would have been
significantly better if not for a fourth-quarter negative adjustment of $6.9
million to operating income for the adverse impacts of cost overruns on a fixed-
price contract involving the construction of a plant to produce nitric acid
scheduled for completion in 1998 -- the Company's first significant overrun on a
fixed-price project since 1992. As a result of this overrun, the Company is
adding increased emphasis on its internal policies and activities with the aim
of strengthening the management processes needed in performing this type of
work.
The Company ended 1997 with $4.1 billion in contract backlog. The reduction
from $4.7 billion at December 31, 1996, is due primarily to the impact of the
completion of another year of the Rocky Flats contract which resulted in the
conversion of approximately $600 million of the 1996 backlog into revenue in
1997. Exclusive of the Rocky Flats backlog at December 31, 1997, the Company's
backlog grew by 4% over December 31, 1996. The backlog at December 31, 1997, was
distributed among the Company's business base in similar proportions to last
year.
Beyond 1997, in addition to growth expected from new business development, the
Company will continue to evaluate reasonable opportunities for acquisitions that
will enhance and complement its customer offerings. Although 1997 operating
results were not significantly impacted by any major acquisitions, the Company
did complete an acquisition on March 17, 1998, of a construction management
company specializing in fabrication plants and other facilities for
semiconductor and microelectronics customers. The acquired company will
continue servicing its primary customers while expanding that base and
integrating the Company's engineering capability to grow the business and
improve profit margins.
20
<PAGE>
Highlights by the Company's operating groups are as follows (in millions):
<TABLE>
<CAPTION>
Year Ended Year Ended
December 31, 1997 December 31, 1996
------------------------------------------------------------------
Gross Service Gross Service
Revenue Revenue Revenue Revenue
------------------------------------------------------------------
<S> <C> <C> <C> <C>
Environment and Facilities Management $ 649.6 $206.5 $ 895.8 $323.6
Engineers and Constructors 367.9 148.8 266.8 136.7
Consulting (1) 90.8 69.6 86.9 68.4
Other (0.2) 1.2 (1.0) 3.4
-------- ------ -------- ------
$1,108.1 $426.1 $1,248.5 $532.1
======== ====== ======== ======
</TABLE>
(1) During 1996, the Group accelerated its ability to invoice certain indirect
costs on cost-reimbursable contracts, resulting in $3.3 million of
revenue.
Environment and Facilities Management Group (EFM)
The EFM Group derives significant revenue from several large environmental
projects with the federal government. One of these projects is the U.S.
Department of Energy's Rocky Flats Closure Project. This project
generated 1997 gross revenue of $588.7 million, an increase of $44.9 million, or
8%, over 1996. Other growth is largely attributable to Total Environmental
Restoration Contracts (TERCs) in Baltimore and Sacramento for the U.S. Army
Corps of Engineers, which have a maximum contract value of $590 million. In
1997, EFM was awarded $82.3 million in task orders under these two TERCs. Gross
revenue generated from the TERC projects totaled $20.5 million in 1997, an
increase of $18.4 million over 1996. Beyond 1997, EFM is also focusing on
developing a line of business to address facilities privatization and
outsourcing opportunities with the U.S. government.
Engineers and Constructors Group (E&C)
In November 1997, the E&C Group successfully completed the majority of the
first phase of the Group's largest project, to construct a mini-mill for an
integrated steel maker in the Czech Republic. This project represented $78.8
million of the Group's total $101.1 million increase in 1997 gross revenue over
1996. The second and larger phase of the project continues to be a major
activity for the Group in 1998. The Group's Asia-Pacific region also achieved
significant revenue and margin growth in 1997, which is expected to continue in
1998.
During 1997, notwithstanding the provision for the nitric acid project, the
E&C Group continued its efforts to improve profitability of its domestic
operations. These efforts included management changes, cost-reduction
initiatives, improved training and project management reviews, as well as
redirection of marketing efforts to concentrate on large-scale projects. The
ability of the E&C Group to increase its operating income is directly dependent
upon the success of the Company's marketing strategies on large-scale projects
and upon profitable management of awarded work.
Consulting Group
The Consulting Group completed 1997 with the highest gross revenue, almost
$91 million, and with the largest work force in its history, now totaling nearly
700 employees. The Consulting Group historically has derived significant
revenue from the U.S. Environmental Protection Agency (EPA) -- a client that the
Company is firmly committed to serving. Notably, in 1997, the percentage of the
Group's revenue derived from EPA represented less than half of the total
Consulting Group revenue for the first time. The Group's successful
diversification strategy has expanded the customer base to include
international, private-sector, and other federal and state agencies and
departments while maintaining the volume of revenue from EPA. Business
development efforts in all five lines of business -- energy, environment,
economic and community development, transportation, and information management--
are directed at broadening the Group's base of customers.
21
<PAGE>
RESULTS OF OPERATIONS
Selected elements of the Consolidated Statements of Operations are
summarized in the following table (dollars in millions):
<TABLE>
<CAPTION>
Year Ended Year Ended Ten Months Ended
December 31, December 31, December 31,
1997 1996 1995 /(1)/
-----------------------------------------------------------
<S> <C> <C> <C>
Gross revenue $1,108.1 $1,248.4 $ 916.7
Service revenue $ 426.1 $ 532.1 $ 425.9
Service revenue as a percentage of gross revenue 38.5% 42.6% 46.5%
Operating expenses as a percentage of service revenue:
Direct labor and fringe benefits 68.0% 71.5% 71.8%
Group overhead 20.3% 18.0% 16.1%
Corporate general and administrative 5.2% 4.6% 6.0%
Depreciation and amortization 2.3% 1.9% 2.0%
Operating income as a percentage of service revenue 4.2% 4.0% 4.1%
</TABLE>
/(1)/ Effective December 31, 1995, the Company changed its annual reporting
period from a fiscal year ending on February 28 to a calendar year
ending on December 31. As a result, the accompanying consolidated
financial statements include only ten months of operations in 1995.
Typically, it is not the results from any individual contract that most
effectively depict developments in the financial operations of a contracting
business; however, as the Company continues in the execution of a strategy
favoring a shift toward larger projects, the timing of activities on such large
projects has generated and could continue to generate results that do not
adequately explain trends in the underlying business unless their individual
results are understood.
A key element in the analysis of the Company's results of operations for the
periods reported herein is the impact on gross revenue and service revenue of
the operations of two of the Company's largest contracts. In April 1995, the
U.S. Department of Energy awarded Kaiser-Hill Company, LLC (Kaiser-Hill) with
the Rocky Flats contract. Kaiser-Hill is equally owned by the Company and CH2M
Hill Companies, Ltd. The cost-reimbursable contract is for a five-year term with
a total award value expected of $3.0 billion. The operating results of Kaiser-
Hill are consolidated with the Company's other majority-owned or -controlled
subsidiaries and have had significant impact on trends in the consolidated
results during the early phases of the contract. In August 1996, the Company was
unsuccessful in its rebid to provide management and integration services to the
U.S. Department of Energy (DOE) for the Hanford Site in Richland, Washington
(the Hanford contract). Additionally, the Company's then-existing contract to
perform services at Hanford, scheduled for expiration in March 1997, was
effectively terminated on October 1, 1996.
Gross Revenue
The following graph depicts the gross revenue impact of these two contracts
discussed above, as well as the remainder of the Company's business.
[graph appears here]
Excluding the Rocky Flats and Hanford contracts, gross revenue increased by
$107.3 million, or 26.0%, from 1996 to 1997. Approximately $59.6 million, or
55.5%, of this increase was due to large quantities of direct material purchases
for a contract to construct a mini-mill for an integrated steel maker in the
Czech Republic. Gross
22
<PAGE>
revenue also increased in each of the Company's business areas, most notably
from operations in international sectors, particularly in the European and Asia-
Pacific regions. The Hanford contract generated $293.4 million, or 23.5%, of
total 1996 gross revenue and Rocky Flats gross revenue increased by $45.0
million, or 8.3% from 1996.
Had the reported amounts for 1995 included the actual results for a full 12
months, 1996 gross revenue would have increased over 1995 by $202.5 million, or
19%. Excluding the Rocky Flats and Hanford contracts, gross revenue increased
$28.7 million, or 7.5%, in 1996 over 1995. Gross revenue from the Rocky Flats
contract increased by $266.2 million, or 96%, in 1996 over the contract's start-
up year in 1995. Conversely, the termination of the Hanford contract in 1996
accounts for a $92.4 million, or 24%, decrease in gross revenue from 1995.
The Company recognized a provision for contract loss of $6.9 million in the
fourth quarter of 1997, representing the financial statement impact of cost
overruns on a large fixed-price nitric acid project scheduled to be completed in
1998. Such an adjustment on a fixed-price project was the first for the Company
since 1992. The Company intends to pursue claims vigorously with various
parties related to this contract, which may result in reductions in the
estimated loss at contract completion.
Late in 1997, the Company entered into several new joint-venture
arrangements for the purpose of executing several large contract awards and for
bidding on future large contract opportunities. Operating activities of the
newly created ventures were not significant to the Company's consolidated
results of operations in 1997. However, as the use of joint ventures continues
to be an increasingly important market force in the Company's ability to win
large contracts, it is possible that larger portions of the Company's operating
results will be generated by entities that will not be consolidated with the
remainder of the Company's subsidiaries for financial reporting purposes, but
will instead include only the Company's equity in the joint-venture results.
Service Revenue
Service revenue is derived by deducting the costs of subcontracted services
and third-party direct material costs from gross revenue and adding the
Company's equity in income of unconsolidated joint ventures and affiliated
companies. Management regularly analyzes operating margins and other ratios in
relation to service revenue rather than gross revenue believing that the
resulting ratios more appropriately reflect the Company's direct activities.
The following graph depicts the service revenue impact of the two contracts
discussed above, as well as the remainder of the Company's business.
[graph appears here]
Excluding the Rocky Flats and Hanford contracts, service revenue increased
by $15.8 million, or 6.4%, from 1996 to 1997. The increase, most notably, was
generated by those operations in the Company's European and Asia-Pacific
regions. The total decrease, however, in 1997 service revenue compared to 1996
of $106.0 million, or 19.9%, is due primarily to the Hanford contract which
generated $119.2 million, or 22.4%, of total service revenue in 1996. Equity in
income of joint ventures and affiliates also decreased by $1.7 million due
primarily to the sale of the majority of the Company's interests in entities
owning and operating a pulverized coal injection facility in December of 1996.
Had the reporting period for 1995 included the actual results for a full 12
months, service revenue would have been higher by $67.8 million and total
service revenue growth in 1996 would have been $38.4 million or 7.8%. The total
growth was a combination of the Rocky Flats contract generating an additional
$76.7 million in service revenue in 1996; a $45.2 million, or 27%, decrease in
service revenue from the Hanford contract; and all other business activities
collectively achieving a $7.2 million, or 3.0%, increase in service revenue in
1996 over 1995.
Service revenue as a percentage of gross revenue decreased from prior years
by 9.6% and 8.4% in 1997 and 1996, respectively, as larger amounts of direct
material purchases and subcontracted services were required for the contracts
performed during those years. If the Company continues to grow in the areas of
large environmental
23
<PAGE>
monitoring and facilities management activities and in larger engineering and
construction projects, this trend in lower service margin percentages may
continue.
Operating Expenses
Direct labor and fringe benefit costs decreased $90.8 million, or 23.8%,
from 1996 to 1997. The loss of the Hanford contract accounted for $102.1
million of the decrease and the Rocky Flats contract resulted in a decrease of
$9.3 million. Direct labor and fringe benefit costs for all of the Company's
other business activities increased in 1997 over 1996 by $20.5 million, or
16.6%.
Direct labor and fringe benefit costs as a percentage of service revenue
decreased to 68.0% in 1997 from 71.5% in 1996. This reduction is largely the
result of a fixed-price project that generated $12.3 million of gross margin
(service revenue less direct labor and fringe benefit costs) for which direct
labor and fringe benefit costs represented only 20.9% of its total service
revenue in 1997. This contract's gross margin represented 9.2% of the Company's
total contract gross margin generated in 1997. Based on the remaining
uncompleted phases of the contract, management does not expect the gross margin
results to remain at 1997 levels, and the significance of this single project to
the Company's overall operating results is expected to decline after 1997.
The direct labor and fringe benefit costs increased $74.3 million between
the ten months ended December 31, 1995 and calendar 1996. The additional two
months in 1996 versus 1995 represents $34.9 million, or 47.0%, of the increase.
The first full year of operations of the Rocky Flats contract in 1996 accounted
for an increase in direct labor and fringe benefit costs of $69.5 million.
Federal budget reductions at the Hanford Site and the effective termination of
the Hanford contract on October 1, 1996 resulted in a reduction in these costs
of $47.0 million. Direct labor and fringe benefit costs for all other contract
activities increased by $16.9 million, or 15.8% in 1996 over 1995.
Excluding the Rocky Flats and the Hanford contracts, the Company's direct
labor and fringe benefit costs as a percentage of service revenue were 55.6%,
50.4%, and 48.1% for the fiscal periods ended December 31, 1997, 1996, and 1995,
respectively.
[graph appears here]
General and administrative, or indirect, expenses are incurred within each
of the Company's operating groups and at the corporate level. Total group
overhead represents those general and administrative costs incurred by the
Company's operating groups for which an indirect benefit is generally not
derived by any other operating group. Conversely, corporate general and
administrative costs consist of expenses incurred by the Company which provide
some indirect benefit to all operating groups. Total indirect expenses,
including depreciation and amortization, decreased by $12.1 million, or 9.3%, in
1997 from 1996 as a result of the Company's cost-reduction initiatives
undertaken in late 1996 and 1997. Significant reductions were realized in
indirect salaries, facilities expenses, consultants costs, and amortization
expense. Total indirect expenses remained flat in 1996 versus 1995 as increased
marketing efforts directed at large-scale domestic and international contract
opportunities were offset by reductions in corporate general and administrative
expense spending.
Gain on Sale of Investment
In December 1996, the Company sold the majority of its interests in
entities owning and operating a pulverized coal injection facility for $16.6
million, resulting in a $9.4 million pretax gain in 1996. The buyer exercised
its option on January 5, 1998, to purchase the remaining investment for $2.4
million. The Company recognized a total pretax gain on the latter option of
$1.0 million during 1997 as the carrying value of the option was increased to
reflect fair market value. The Company's investment in this operation generated
$0.8 million and $2.8 million in equity income in 1997 and 1996, respectively.
24
<PAGE>
Interest Expense
Interest expense increased $0.9 million in 1997 from 1996. An increase in
interest expense of $1.8 million was a result of the Company's 1996 issuance of
$15 million in 12% Senior Notes due in 2003, the proceeds from which were used
to redeem preferred stock. This increase in interest expense was offset
partially by a one-time, $0.9 million reduction in interest expense as a result
of the Company's favorable resolution of potential interest costs associated
with a foreign income tax matter. Interest expense increased a total of $4.1
million in 1996 over 1995, $2.7 million because of the additional two months in
the 1996 reporting period versus 1995, and an additional $1.2 million in 1996
due to the interest rate on the Company's 12% Subordinated Notes due in 2003
being increased effective March 8, 1996, from 12% to 13%. The Company's average
annual debt outstanding and the related average effective interest rates for
1997, 1996, and the ten months ended December 31, 1995, were $140.8 million and
13%, $131.0 million and 13.2%, and $123.7 million and 12.9%, respectively.
Interest income increased by $0.5 million in 1997 over 1996 as a result of
the earnings on increased available cash balances. The Company's cash flows
generated a net increase in cash, after foreign currency conversion, at December
31, 1997, of $2.4 million over December 31, 1996.
Income Tax Expense
The Company recognized a tax benefit totaling $3.3 million in 1997 versus a
tax expense of $2.6 million in 1996. The income tax provision for both years
excludes the third-party's ownership interest in Kaiser-Hill's income because
Kaiser-Hill is a flow-through entity for tax purposes. The Kaiser-Hill third-
party ownership interest exclusion for 1997 was larger than in 1996 due to
greater Kaiser-Hill income, thereby positively affecting the 1997 tax provision
by $1.7 million. Furthermore, in 1997, the Company completed a research and
experimental expenditures study for certain open tax years resulting in the
recognition of an income tax benefit of $1.9 million for research tax credits.
The tax expense for 1996 also reflects the reversal of valuation allowances on
deferred tax assets totaling $2.1 million, whereas no such reversal occurred in
1997. This valuation allowance reversal also represents the primary difference
between the 18% effective tax rate in 1996 versus the 33.2% effective tax rate
for 1995.
LIQUIDITY AND CAPITAL RESOURCES
The Company generated significant cash flows from operations during 1997,
due in part to increased activity in large commercial projects that had
provisions in the contract terms for milestone-based payments. Differences in
the timing of the cash payments made to suppliers on some of these large
projects versus the collection of customer trade receivables also contributed
favorably to the 1997 cash flows. Cash flows generated from operations in 1996
were impacted favorably by similar timing differences and impacted negatively by
the Company's timing of supplier payments made related to the termination of the
Hanford contract in late 1996.
Total investing cash flows of $8.0 million were generated from several non-
recurring transactions. Proceeds totaling $16.5 million from the December 31,
1996, sale of the majority of the Company's ownership interests in the
pulverized coal injection facility were collected in 1997. The Company's $4.9
million use of cash for fixed asset purchases in 1997 remained relatively
consistent with that of 1996 and includes the implementation costs of new
accounting and project management software, which began in 1995 and increased in
1996. The Company anticipates completing the majority of this software project
in 1998.
On November 12, 1997, the Company entered into an investment, the purpose
of which was to reduce significantly remaining fixed operating lease costs for
the corporate headquarters. The Company obtained a percentage ownership in the
underlying leaseholds and buildings as a result of this investment. The Company
contributed $1.5 million for a 20% ownership interest in a limited liability
company (the Investment Company) and other investors contributed $4.5 million
for the remaining 80% ownership interest. The Company also committed to make
additional annual capital contributions to the Investment Company totaling
$600,000 during each of the first three years and $700,000 during each of the
fourth through ninth years of the Investment Company. The
25
<PAGE>
Investment Company, in turn, contributed $6 million in exchange for a 20%
ownership interest in a limited liability company (the Operating Company) that
leases the property and owns the buildings leased primarily by the Company for
its corporate headquarters. The Operating Company agreement provides that the
Investment Company ownership will increase to 80% in fixed annual 12% increments
in each of the 11th through 15th year of the Operating Company. The ownership
percentage of the other investors will be correspondingly decreased. Finally,
under a separate option agreement, the Investment Company has an option to
purchase the property on which the Company's corporate headquarters buildings
are located.
Management estimates that this investment and associated lease
restructuring will reduce the Company's facilities commitment costs by up to $14
million over the life of this new investment/leasing relationship with
approximately $11 million of the savings being realized in the first five years.
Transaction costs totaling $1.7 million will be amortized over 15 years of the
life of the Operating Company.
Financing activities in 1997 included the net repayment of $16.5 million in
borrowings outstanding on the Company's revolving credit facility and $13.9
million in distributions of Kaiser-Hill earnings to the minority interest owner.
In December 1997, the Company entered into an amended and restated
revolving credit facility, retaining many of the same terms as the former
facility, while increasing total borrowing capacity by $25 million to a total of
$65 million. As of December 31, 1997, the Company's total available capacity
under the facility, as limited by the facility and by the indentures of its
Senior and Subordinated Notes, was $60 million. Total available borrowing is
based on certain percentages of the Company's total accounts receivable which
qualify to serve as collateral. On December 31, 1997, the Company had $4.0
million outstanding in cash borrowings, $22.7 million outstanding in contract
performance letters of credit, and $22.7 million of additional credit available.
Partially as a result of recording a $6.9 million provision for the
financial statement impacts of cost overruns on a fixed-price nitric acid
project, discussed under Overview, the Company was not in compliance
with certain financial covenants of the revolving credit facility at December
31, 1997. On March 12, 1998, the Company obtained an amendment to the credit
facility that excludes the relevant project results from inclusion in the
computations of these covenants. This amendment also requires the Company to
update the banks with respect to the total costs to complete the referenced
project and to obtain the banks' consent prior to making certain large
acquisitions. Management anticipates being able to comply with all covenants set
forth in the amended credit facility.
Financing activities in 1996 consisted mainly of the private placement
issuance on December 23 of 15,000 Units, each Unit consisting of $1,000
principal amount of the Company's 12% Senior Notes due 2003, Series A (Series A
Senior Notes). The net proceeds from the issuance of the Series A Senior Notes
and borrowings under the credit facility were used to repurchase the majority of
the Company's Series 2D Senior Preferred Stock and Series 2D Warrants in
December 1996 for $20 million. The Series A Senior Notes were exchanged for
substantially identical Series B Senior Notes in March 1997.
Kaiser-Hill has a $50 million receivables purchase facility to support its
working capital requirements under the Rocky Flats contract. The facility
contains certain program fees, specified minimum tangible net worth
requirements, and default provisions for delinquent receivables. The facility
expires on June 30, 1998, and is non-recourse to Kaiser-Hill's owners. The
Company anticipates being able to renegotiate the facility in annual increments
beyond the 1998 expiration.
Lastly, the Company experienced a significant devaluation in the reported
value of its foreign currency in 1997 primarily from balances denominated in
Australian dollars. The Australian currency values have experienced declines in
value as a result of the Asian financial crisis that surfaced in the fourth
quarter of 1997. The Company, however, has not experienced any losses to date
as a result of the decline in the currency valuation or from the Asian financial
crisis.
26
<PAGE>
Liquidity and Capital Resource Outlook
The Company believes that current projected levels of cash flows, together
with the availability of financing under the Company's revolving credit
facility, will be adequate to conduct planned business activities, debt service
requirements, planned investments, and capital expenditures and to ensure
compliance with debt covenants for the near term. The Company does, however,
continually explore options that would provide additional capital for longer-
term objectives and operating needs, including replacements for the Company's
long-term debt and additional equity infusions. The Company may take advantage
of the near-term opportunity to redeem the Series B Senior Notes and the
Subordinated Notes, both due in 2003, which can be called on December 31, 1998,
at an 8% call premium.
The revolving credit facility limits the Company's ability to make
acquisitions and other investments, and the indentures governing the Company's
Series B Senior Notes and Subordinated Notes limit the Company's ability to make
restricted payments, including certain payments in connection with investments
and acquisitions. These revolving credit facility and indenture limitations
would make it likely that the Company would issue additional equity securities
in order to fund any significant acquisitions or to invest significant amounts
in joint ventures throughout the terms of the limitations.
OTHER MATTERS
Acquisition
On February 18, 1998, the Company's Board of Directors approved the
acquisition of ICT Spectrum Constructors, Inc., a contractor based in Boise,
Idaho, specializing in construction management of fabrication plants for
semiconductor and microelectronics manufacturers. The transaction closed on
March 17, 1998, and business will continue under the name ICF Kaiser Advanced
Technology, Inc. Each share of ICT Spectrum stock was exchanged for shares of
ICF Kaiser stock, resulting in the issuance of 1.5 million new unregistered
shares of ICF Kaiser common stock. The exchanged ICF Kaiser shares carry a
guarantee that the fair market value of each share of stock will reach $5.36 by
March 1, 2001. In the event the fair market value does not attain the
guaranteed level, the Company is obligated to make up the shortfall either
through the payment of cash or by issuing additional shares of common stock.
Given that the fair market value of each share of stock currently is
significantly below the amount of the guarantee and that the Company's current
revolving credit facility and indentures restrict the amount of cash that can be
used to make up the shortfall, the Company will be required to assume that any
periodic shortfall from the guaranteed price will be settled through the
issuance of additional shares of common stock. Under the terms of the
acquisition, however, total contingently issuable shares of common stock cannot
exceed 1.5 million. Any contingent shares assumed issued will be included in
the diluted earnings per share calculations for applicable future reporting
periods until the earlier of the contingency resolution or March 1, 2001. The
new shares issued to complete the acquisition also contain restrictions
preventing their sale prior to March 1, 2001. The acquisition will be accounted
for as a purchase and will generate approximately $5.0 million in goodwill,
which will be amortized over 12 years.
Impact of Year 2000 Issue
Similar to many organizations that use computer programs in their
operations, the Company is addressing the impact of the Year 2000 issue on its
business. The Year 2000 issue is the result of computer programs being written
using two digits rather than four to define the year. Any of the Company's
computer programs that have date-sensitive software may recognize a date using
"00" as the year 1900 rather than the year 2000. This could result in a system
failure or miscalculations causing disruptions of operations, including, among
other things, a temporary inability to process transactions, generate financial
information, or engage in similar normal business activities.
Management's ongoing assessment of its business software tools combined
with the impending risks of the Year 2000 issue led the Company in 1995 to begin
investment in new financial and project management software.
27
<PAGE>
The implementation of the new application began in 1995, and all phases of
implementation are scheduled for completion by the end of 1998. The Company then
should have sufficient time to test new applications prior to the year 2000.
Some of the applications have been operating since 1996. Because the Company is
replacing its main business software applications, the costs of the new
software, external consultants, and the internal cost of implementation labor is
being capitalized and amortized over a period of three years. This investment in
the new software application was $0.9 million in 1997, $2.6 million in 1996, and
$1.4 million in 1995. Depreciation expense related to these investments totaled
$0.9 million in 1997 and $0.6 million in 1996. The total remaining costs of this
Year 2000 project is estimated to be less than $2.0 million.
Apart from internal risks associated with the Year 2000 issue, the Company
does not believe that it has significant exposures from third parties with whom
it transacts business. The Company also is evaluating the potential for Year
2000 processing issues in products or services that it has sold to customers.
Based on the service orientation of the Company's business, management does not
anticipate significant exposures from customers related to Year 2000 issues.
Forward-Looking Statements
From time to time, certain disclosures in reports and statements released
by the Company, or statements made by its officers or directors, will be
forward-looking in nature. These forward-looking statements may contain
information related to the Company's intent, belief, or expectation with respect
to contract awards and performance, potential acquisitions and joint ventures,
and cost-cutting measures. In addition, these forward-looking statements
contain a number of factual assumptions made by the Company regarding, among
other things, future economic, competitive, and market conditions. Because the
accurate prediction of any future facts or conditions may be difficult and
involve the assessment of events beyond the Company's control, actual results
may differ materially from those expressed or implied in such forward-looking
statements.
The Company is availing itself of the safe harbor provisions provided in
the Private Securities Litigation Reform Act of 1995 by cautioning readers that
forward-looking statements that use words such as the Company "anticipates,"
"expects," "estimates," and "believes" are subject to certain risks and
uncertainties which could cause actual results of operations to differ
materially from expectations. These forward-looking statements will be contained
in the Company's federal securities laws filings or in written or oral
statements made by the Company's officers and directors to press, potential
investors, securities analysts, and others. Any such written or oral forward-
looking statements should be considered in context with the risk factors
discussed below:
. the Company may not be able to maintain existing contracts at current levels
and may not be able to realize increased contract performance levels assumed
for contracts. The Company is involved in a number of fixed-price contracts
under which the Company can benefit from cost savings or performance
efficiencies, but if certain pricing and performance assumptions prove
inaccurate, unrecoverable cost overruns can occur.
. the Company may not be awarded new contracts for which it is competing in its
established markets or these awards may be delayed; in addition, the Company
may not be able to win contracts in the new markets it is targeting. General
economic conditions in the international arena, especially the Asia-Pacific
region, could negatively impact the Company's current international business
and its ability to expand into new international markets.
. the Company is very dependent on federal government contracts, which are
subject to annual funding approvals and cost audits, and may be terminated at
any time, with or without cause; a large number of federal government
contracts are included in the Company's contract backlog, which potentially
means that not all contract backlog will become future revenue of the
Company.
. the Company may not be able to complete acquisitions and/or enter into joint
ventures, and if completed, acquisitions and joint ventures may take more
time to contribute favorably to the Company's financial results than is
currently assumed. The Company is highly leveraged and is subject to
restrictive covenants that limit its ability to fund potential acquisitions
and joint ventures beyond certain levels established in its debt agreements.
28
<PAGE>
. a large portion of the Company's business has been and is generated either
directly or indirectly as a result of federal and state environmental laws,
regulations, and programs; a reduction in the number or scope of these laws,
regulations, or programs could materially affect the Company's business. In
addition, environmental work poses risks of large civil and criminal
liabilities for violations of environmental laws and regulations, and
liabilities to customers and to third parties for damages arising from the
Company's performing environmental services to its clients. A large fine or
penalty imposed on the Company could negatively impact contract performance
fees under certain existing contracts or otherwise negatively affect the
Company's financial results.
Item 8. Financial Statements and Supplementary Data
The Financial Statements and Supplementary Data appear on pages F-1 through F-31
and S-1 hereto.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosures
None
PART III
Item 10. Directors and Executive Officers of the Registrant
Information regarding the directors of the Registrant is included under the
caption "Election of Directors" in the Company's Proxy Statement for the 1998
Annual Meeting of Shareholders (the Proxy Statement) and is incorporated herein
by reference. Information regarding executive officers of the Registrant is
included under a separate caption in Part I hereof. Information regarding
compliance with Section 16(a) of the Exchange Act is included under the caption
"Section 16(a) Beneficial Ownership Reporting Compliance" in the Company's Proxy
Statement and is incorporated herein by reference.
Item 11. Executive Compensation
Information regarding this item is included under the caption "Executive
Compensation" in the Company's Proxy Statement and is incorporated herein by
reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management
Information regarding this item is included under the caption "Voting
Securities of the Company and Certain Shareholdings" in the Company's Proxy
Statement and is incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions
Information regarding this item is included under the captions "Compensation &
Human Resources Committee Interlocks and Insider Participation," "Agreements and
Transactions with Certain Directors and Nominees," "Agreements and Transactions
with Executive Officers Named in the Summary Compensation Table," and
"Agreements and Transactions with Other Executive Officers" in the Company's
Proxy Statement and is incorporated herein by reference.
29
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
(a) Documents filed as part of this Report
<TABLE>
<CAPTION>
Page
<S> <C>
1. Consolidated Financial Statements of ICF Kaiser International, Inc. and Subsidiaries
a. Report of Independent Accountants.............................................................. F-1
b. Consolidated Balance Sheets as of December 31, 1997 and December 31, 1996...................... F-2
c. Consolidated Statements of Operations for the years ended December 31, 1997 and 1996, and the
ten months ended December 31, 1995............................................................. F-3
d. Consolidated Statements of Shareholders' Equity for the years ended December 31, 1997 and 1996,
and the ten months ended December 31, 1995..................................................... F-4
e. Consolidated Statements of Cash Flows for the years ended December 31, 1997 and 1996,
and the ten months ended December 31, 1995..................................................... F-5
f. Notes to Consolidated Financial Statements..................................................... F-6
2. Supplemental Schedule Relating to the Consolidated Financial Statements of ICF Kaiser International,
Inc. and Subsidiaries for the years ended December 31, 1997 and 1996, and the ten months ended
December 31, 1995.
a. Schedule II: Valuation and Qualifying Accounts................................................. S-1
</TABLE>
All Schedules except the one listed above have been omitted because they are
not applicable or not required or because the required information is included
elsewhere in the financial statements in this filing.
(b) Exhibits
3. Exhibits (listed according to the number assigned in the table in Item 601
of Regulation S-K).
Exhibit No. 3 -- Articles of Incorporation and By-laws of the Registrant
- ------------------------------------------------------------------------
3(a) Restated Certificate of Incorporation of ICF Kaiser International, Inc.
(restated through June 26, 1993) (Incorporated by reference to Exhibit No. 3(a)
to Quarterly Report on Form 10-Q (Registrant No. 1- 12248) for the second
quarter of fiscal 1994 filed with the Commission on October 15, 1993)
3(b) Amended and Restated By-laws of ICF Kaiser International, Inc. (as amended
through June 23, 1995) (Incorporated by reference to Exhibit No. 3(b) to
Quarterly Report on Form 10-Q Registrant No. 1-12248 for the second quarter of
fiscal 1995 filed with the Commission on October 13, 1995)
Exhibit No. 3 -- Articles of Incorporation and By-laws of the Subsidiary
- ------------------------------------------------------------------------
Guarantors
- ----------
3(c) Articles of Incorporation of Cygna Consulting Engineers and Project
Management, Inc. (Incorporated by reference to Exhibit No. 3(c) to Registration
Statement on Form S-1 Registration No. 333-19519 filed with the Commission on
January 10, 1997)
3(d) By-laws of Cygna Consulting Engineers and Project Management, Inc.
(Incorporated by reference to Exhibit No. 3(d) to Registration Statement on
Form S-1 Registration No. 333-19519 filed with the Commission on January 10,
1997)
30
<PAGE>
3(e) Certificate of Incorporation of ICF Kaiser Government Programs, Inc.
(Incorporated by reference to Exhibit No. 3(e) to Registration Statement on Form
S-1 Registration No. 333-19519 filed with the Commission on January 10, 1997)
3(f) By-laws of ICF Kaiser Government Programs, Inc. (Incorporated by reference
to Exhibit No. 3(f) to Registration Statement on Form S-1 Registration No. 333-
19519 filed with the Commission on January 10, 1997)
3(g) Certificate of Incorporation of PCI Operating Company, Inc. (Incorporated
by reference to Exhibit No. 3(g) to Registration Statement on Form S-1
Registration No. 333-19519 filed with the Commission on January 10, 1997)
3(h) By-laws of PCI Operating Company, Inc. (Incorporated by reference to
Exhibit No. 3(h) to Registration Statement on Form S-1 Registration No. 333-
19519 filed with the Commission on January 10, 1997)
3(i) Certificate of Incorporation of Systems Applications International, Inc.
(Incorporated by reference to Exhibit No. 3(i) to Registration Statement on
Form S-1 Registration No. 333-19519 filed with the Commission on January 10,
1997)
3(j) By-laws of Systems Applications International, Inc. (Incorporated by
reference to Exhibit No. 3(j) to Registration Statement on Form S-1
Registration No. 333-19519 filed with the Commission on January 10, 1997)
3(k) Certificate of Incorporation of EDA, Incorporated
3(l) Amended and Restated By-laws of EDA, Incorporated
3(m) Certificate of Incorporation of ICF Kaiser Systems, Inc.
3(n) By-laws of ICF Kaiser Systems, Inc.
3(o) Certificate of Incorporation of Global Trade & Investment, Inc.
3(p) Amended and Restated By-laws of Global Trade & Investment, Inc.
3(q) Certificate of Incorporation of ICF Kaiser Europe, Inc.
3(r) By-laws of ICF Kaiser Europe, Inc.
3(s) Certificate of Incorporation of ICF Kaiser / Georgia Wilson, Inc.
3(t) By-laws of ICF Kaiser / Georgia Wilson, Inc.
3(u) Certificate of Incorporation of ICF Kaiser Overseas Engineering, Inc.
3(v) Amended and Restated By-laws of ICF Kaiser Overseas Engineering, Inc.
3(w) Certificate of Incorporation of ICF Kaiser Engineers Pacific, Inc.
3(x) Amended and Restated By-laws of ICF Kaiser Engineers Pacific, Inc.
3(y) Certificate of Incorporation of ICF Kaiser Remediation Company
3(z) By-laws of ICF Kaiser Remediation Company
Exhibit No. 4 -- Instruments Defining the Rights of Security Holders, including
- -------------------------------------------------------------------------------
Indentures
- ----------
4(a) Indenture dated as of January 11, 1994, between ICF Kaiser International,
Inc. and The Bank of New York, as Trustee (Incorporated by reference to Exhibit
No. 4(a) to Quarterly Report on Form 10-Q Registrant No. 1-12248 for the third
quarter of fiscal 1994 filed with the Commission on January 14, 1994)
1. First Supplemental Indenture dated as of February 17, 1995.
(Incorporated by reference to Exhibit No. 4(a)(1) to Annual Report on Form 10-K
Registrant No. 1-12248 for fiscal year 1995 filed with the Commission on May 23,
1995)
2. Second Supplemental Indenture dated September 1, 1995 (Incorporated by
reference to Exhibit No. 4(a) (2) to Registration Statement on Form S-1
Registration No. 33-64655 filed with the Commission on November 30, 1995)
31
<PAGE>
3. Third Supplemental Indenture dated October 20, 1995 (Incorporated by
reference to Exhibit No. 4(a)(3) to Registration Statement on Form S-1
Registration No. 33-64655 filed with the Commission on November 30, 1995)
4. Fourth Supplemental Indenture dated as of March 8, 1996 (Incorporated by
reference to Exhibit No. 4 (a)(4) to Transition Report on Form 10-K Registrant
No. 1-12248 for the transition period from March 1, 1995 to December 31, 1995
filed with the Commission on March 29, 1996)
5. Fifth Supplemental Indenture dated as of June 24, 1996 (Incorporated by
reference to Exhibit No. 4 (a)(5) to Registration Statement on Form S-1
Registration No. 333-16937 filed with the Commission on November 27, 1996)
6. Sixth Supplemental Indenture dated as of December 3, 1997
4(b) Form of 12% Senior Subordinated Note due 2003 (Incorporated by reference
to Exhibit No. 4(b) to Quarterly Report on Form 10-Q Registrant No. 1- 12248 for
the third quarter of fiscal 1994 filed with the Commission on January 14, 1994)
4(c) Form of Common Stock Purchase Warrant expiring May 15, 1999 (as amended
and restated through January 11, 1994) (Incorporated by reference to Exhibit No.
4(e) to Quarterly Report on Form 10-Q Registrant No. 1-12248 for the third
quarter of fiscal 1994 filed with the Commission on January 14, 1994)
4(d) Rights Agreement, dated as of January 13, 1992, between ICF Kaiser
International, Inc. and Office of the Secretary, ICF Kaiser International, Inc.
as Rights Agent, including (1) Form of Certificate of Designations of Series 4
Junior Preferred Stock; (2) Form of Rights Certificate; and (3) Summary of
Rights to Purchase Preferred Stock (Incorporated by reference to Exhibit No.
4(h) to Quarterly Report on Form 10-Q Registrant No. 0-18025 for the third
quarter of fiscal 1992 filed with the Commission on January 14, 1992)
4(e) Warrant Agreement dated as of January 11, 1994, between the Registrant and
The Bank of New York, as Warrant Agent (Incorporated by reference to Exhibit No.
4(c) to Quarterly Report on Form 10-Q Registrant No. 1-12248 for the third
quarter of fiscal 1994 filed with the Commission on January 14, 1994)
4(f) Form of Warrant expiring December 31, 1998 (Incorporated by reference to
Exhibit No. 4(d) to Quarterly Report on Form 10-Q Registrant No. 1- 12248 for
the third quarter of fiscal 1994 filed with the Commission on January 14, 1994)
4(g) Indenture dated as of December 23, 1996, between ICF Kaiser International,
Inc. and the Bank of New York, as Trustee, including Guarantees, dated December
23, 1996, by each of the Subsidiary Guarantors (Incorporated by reference to
Exhibit No. 4(g) to Registration Statement on Form S-1 Registration No. 333-
19519 filed with the Commission on January 10, 1997)
1. First Supplemental Indenture dated as of December 3, 1997
4(h) Form of 12% Senior Note due 2003, Series B (Incorporated by reference to
Exhibit No. 4(i) to Registration Statement on Form S-1 Registration No. 333-
19519 filed with the Commission on January 10, 1997)
4(i) Warrant Agreement dated as of December 23, 1996, between ICF Kaiser
International, Inc. and The Bank of New York, as Warrant Agent (Incorporated by
reference to Exhibit No. 4(j) to Registration Statement on Form S-1
Registration No. 333-19519 filed with the Commission on January 10, 1997)
4(j) Form of Warrant expiring December 31, 1999 issued under Warrant Agreement
dated as of December 23, 1996 (Incorporated by reference to Exhibit No. 4(k) to
Registration Statement on Form S-1 Registration No. 333-19519 filed with the
Commission on January 10, 1997)
32
<PAGE>
Exhibit No. 10 -- Material Contracts
- ------------------------------------
10(a) Amended and Restated Credit Agreement dated as of December 3, 1997, with
CoreStates Bank N.A., as agent
1. Amendment No. 1 dated as of March 12, 1998
10(b) Amended and Restated Security Agreement dated as of December 3, 1997,
with CoreStates Bank N.A., as agent
10(c) ICF Kaiser International, Inc. Employee Stock Ownership Plan (as amended
and restated as of March 1, 1993) (and further amended with respect to name
change only as of June 26, 1993) (Incorporated by reference to Exhibit No.
10(c) to Quarterly Report on Form 10-Q Registrant No. 1-12248 for the second
quarter of fiscal 1994 filed with the Commission on October 15, 1993)
1. Amendment No. 1 dated April 24, 1995 (Incorporated by reference to
Exhibit No. 10(l)(1) to Annual Report on Form 10-K Registrant No. 1- 12248 for
fiscal 1995 filed with the Commission on May 23, 1995)
2. Amendment No. 2 dated December 15, 1995 (Incorporated by reference to
Exhibit No. 10(b)(2) to Transition Report on Form 10-K Registrant No. 1- 12248
for the transition period from March 1, 1995 to December 31, 1995 filed with the
Commission on March 29, 1996)
3. Amendment No. 3 dated December 13, 1996 (Incorporated by reference to
Exhibit No. 10(b)(3) to Registration Statement on Form S-1 Registration No. 333-
19519 filed with the Commission on January 10, 1997)
10(d) Trust Agreement with Vanguard Fiduciary Trust Company dated as of August
31, 1995, for ICF Kaiser International Inc. Employee Stock Ownership Plan
(Incorporated by reference to Exhibit No. 10(c) to Registration Statement on
Form S-1 Registration No. 33-64655 filed with the Commission on November 30,
1995)
10(e) ICF Kaiser International, Inc. Retirement Plan (as amended and restated
as of March 1, 1993) (and further amended with respect to name change only as of
June 26, 1993) (Incorporated by reference to Exhibit No. 10(d) to Quarterly
Report on Form 10-Q Registrant No. 1-12248 for the second quarter of fiscal 1994
filed with the Commission on October 15, 1993)
1. Amendment No. 1 dated April 24, 1995 (Incorporated by reference to
Exhibit No. 10(d)(1) to Annual Report on Form 10-K Registrant No. 1-12248 filed
with the Commission on May 23, 1995.)
2. Amendment No. 2 dated December 15, 1995 (Incorporated by reference to
Exhibit No. 10(d)(2) to Transition Report on Form 10-K Registrant No. 1- 12248
for the transition period from March 1, 1995 to December 31, 1995 filed with the
Commission on March 29, 1996)
3. Amendment No. 3 dated December 13, 1996 (Incorporated by reference to
Exhibit No. 10(d)(3) to Registration Statement on Form S-1 Registration No.
333-19519 filed with the Commission on January 10, 1997)
10(f) Trust Agreement with Vanguard Fiduciary Trust Company dated as of August
31, 1995, for ICF Kaiser International, Inc. Retirement Plan (Incorporated by
reference to Exhibit No. 10(e) to Registration Statement on Form S-1
(Registration No. 33-64655) filed with the Commission on November 30, 1995)
10(g) Consolidated, Amended and Restated Deed of Lease Agreement between HMCE
Associates Limited Partnership R.L.L.P. (as Landlord) and ICF Kaiser Hunters
Branch Leasing, Inc. (as Tenant), dated November 12, 1997, for the lease of the
Registrant's headquarters in Fairfax, Virginia known as Hunters Branch Phase I
10(h) Consolidated, Amended and Restated Deed of Lease Agreement between HMCE
Associates Limited Partnership R.L.L.P. (as Landlord) and ICF Kaiser Hunters
Branch Leasing, Inc. (as Tenant), dated November 12,
33
<PAGE>
1997, for the lease of space in the building adjacent to the Registrant's
headquarters in Fairfax, Virginia known as Hunters Branch Phase II
10(i) Contribution Agreement by and among HMCE Associates Limited Partnership
R.L.L.P.; ICF Kaiser Hunters Branch Leasing, Inc.; and IFA Nutley Partners, LLC
dated November 3, 1997
10(j) ICF Kaiser International, Inc. Stock Incentive Plan (as amended and
restated through March 1, 1996) (Incorporated by reference to Exhibit No. 10(j)
to Registration Statement on Form S-1 Registration No. 333-16937 filed with the
Commission on November 27, 1996)
10(k) Contract (#DE-AC3495RF00825) between Kaiser-Hill Company, LLC, a
subsidiary of the Corporation, and the U.S. Department of Energy dated as of
April 4, 1995. [IN ACCORDANCE WITH RULE 202 OF REGULATION S-T, THIS EXHIBIT NO.
10(K) WAS FILED IN PAPER ON MAY 23, 1995, ON FORM SE PURSUANT TO A CONTINUING
HARDSHIP EXEMPTION is incorporated herein by reference thereto]
1. Modifications 1 to 40 to Contract #DE-AC3495RF00825. (Incorporated by
reference to Exhibit No. 10(p)(l) to Registration Statement on Form S-1
Registration No. 333-16937 filed with the Commission on November 27, 1996)
2. Modifications 42 to 46 to Contract #DE-AC3495RF00825 (Modification 41
not received) (Incorporated by reference to Exhibit No. 10(p)(2) to Annual
Report on Form 10-K (Registrant No. 1-12248) filed with the Commission on March
25, 1997)
3. Modifications 47 to 81 to Contract #DE-AC3495RF00825 (Modifications 72
and 78 not received)
10(l) ICF Kaiser International, Inc. Section 401(k) Plan (as amended and
restated as of March 1, 1993) (and further amended with respect to name change
only as of June 26, 1993) (Incorporated by reference to Exhibit No. 10(f) to
Quarterly Report on Form 10-Q (Registrant No. 1-12248) for the second quarter of
fiscal 1994 filed with the Commission on October 15, 1993)
1. Amendment No. 1 dated April 24, 1995 (Incorporated by reference to
Exhibit No. 10(p)(1) to Annual Report on Form 10-K Registrant No. 1-12248 for
fiscal 1995 filed with the Commission on May 23, 1995)
2. Amendment No. 2 dated December 15, 1995 (Incorporated by reference to
Exhibit No. 10(p)(2) to Transition Report on Form 10-K Registrant No. 1- 12248
for the transition period from March 1, 1995 to December 31, 1995 filed with the
Commission on March 29, 1996)
3. Amendment No. 3 dated December 13, 1996 (Incorporated by reference to
Exhibit No. 10(q)(3) to Registration Statement on Form S-1 Registration No.
333-19519 filed with the Commission on January 10, 1997)
10(m) Trust Agreement with Vanguard Fiduciary Trust Company dated as of March
1, 1989, for the ICF Kaiser International, Inc. Section 401(k) Plan
(Incorporated by reference to Exhibit No. 28(b) to Registration Statement on
Form S-8 (Registration No. 33-51460) filed with the Commission on August 31,
1992)
Exhibit No. 10 -- Material Contracts (management contracts, compensatory plans,
- -------------------------------------------------------------------------------
or arrangements.)
- -----------------
10(aa) Agreement dated as of May 19, 1997 with James O. Edwards, Chairman and
Chief Executive Officer of the Registrant (Incorporated by reference to Exhibit
No. 10(ll) to Quarterly Report on Form 10-Q Registrant No. 1-12248 for the
second quarter of fiscal 1997 filed with the Commission on August 14, 1997)
10(bb) ICF Kaiser International, Inc. 1998 Compensation (IC) Plan for Senior
Executives (adopted by the Board of Directors on February 27, 1998)
34
<PAGE>
10(cc) ICF Kaiser International, Inc. Non-employee Director Stock Option Plan
(as amended and restated as of June 26, 1993) (Incorporated by reference to
Exhibit No. 10(bb) to Quarterly Report on Form 10-Q (Registrant No. 1- 12248)
for the second quarter of fiscal 1994 filed with the Commission on October 15,
1993)
10(dd) Agreement dated as of May 19, 1997 with Marc Tipermas, President and
Chief Operating Officer of the Registrant (Incorporated by reference to Exhibit
No. 10(mm) to Quarterly Report on Form 10-Q Registrant No. 1-12248 for the
second quarter of fiscal 1997 filed with the Commission on August 14, 1997)
10(ee) ICF Kaiser International, Inc. Senior Executive Officers Severance Plan
as approved by the Compensation Committee of the Board of Directors on April 4,
1994, and adopted by the Board of Directors on May 5, 1994, as further amended
through May 1, 1997
10(ff) Employment Agreement with Michael K. Goldman, Executive Vice President
of the Registrant, effective as of February 28, 1994. (Incorporated by reference
to Exhibit No. 10(jj) to Annual Report on Form 10-K Registrant No. 1-12248 for
fiscal 1995 filed with the Commission on May 23, 1995)
10(gg) ICF Kaiser International, Inc. Consultants, Agents and Part-Time
Employees Stock Plan dated as of June 23, 1995 (Incorporated by reference to
Exhibit No. 99 to Registration Statement on Form S-8 Registration No. 33-60665
filed with the Commission on June 28, 1995)
10(hh) ICF Kaiser International, Inc. Stock Incentive Plan (as amended and
restated through March 1, 1996) (Incorporated by reference to Exhibit No. 10 (j)
to Registration Statement on Form S-1 Registration No. 333-16937 filed with the
Commission on November 27, 1996)
10(ii) Amended Employment Agreement dated as of December 1, 1996, with David
Watson, Executive Vice President and President, ICF Kaiser Engineers and
Constructors Group of the Registrant (Incorporated by reference to Exhibit No.
10(kk) to Annual Report on Form 10-K (Registrant No. 1-12248) filed with the
Commission on March 25, 1997).
10(jj) Amended and Restated Employment Agreement dated as of July 1,1997 with
Kenneth L. Campbell, Executive Vice President and Chief Financial Officer of the
Registrant (Incorporated by reference to Exhibit No. 10(nn) to Quarterly Report
on Form 10-Q Registrant No. 1-12248 for the second quarter of fiscal 1997 filed
with the Commission on August 14, 1997)
10(kk) Employment Agreement with Michael F. Gaffney, Executive Vice President
of the Registrant, effective as of January 1, 1997
10(ll) Letter Agreement with Cowen Incorporated and Jarrod M. Cohen, dated as
of March 13, 1998
10(mm) ICF Kaiser International, Inc. Non-employee Directors Compensation and
Phantom Stock Plan as adopted by the Board of Directors on February 28, 1997,
with an effective date of March 1, 1997
10(nn) Letter Agreement with Tennenbaum & Co., L.L.C. and Michael E.
Tennenbaum, dated as of March 13, 1998
Exhibit No. 21 -- Consolidated Subsidiaries of the Registrant as of December 31,
1997
Exhibit No. 23 -- Consent of Coopers & Lybrand L.L.P.
Exhibit No. 27 -- Financial Data Schedule
(c) Reports on Form 8-K
None
35
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
ICF Kaiser International, Inc.
(Registrant)
Date: March 27, 1998 By /s/ James O. Edwards
-------------------------------------
James O. Edwards,
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
(1) Principal executive officer
Date: March 27, 1998 By /s/ James O. Edwards
-------------------------------------
James O. Edwards,
Chairman and Chief Executive Officer
(2) Principal financial and accounting officer
Date: March 27, 1998 By /s/ Kenneth L. Campbell
------------------------------------
Kenneth L. Campbell,
Executive Vice President and
Chief Financial Officer
36
<PAGE>
(3) Board of Directors
Date: March 27, 1998 By /s/ Kenneth L. Campbell
------------------------------------
Kenneth L. Campbell,
Director
Date: March 27, 1998 By /s/ Tony Coelho
------------------------------------
Tony Coelho,
Director
Date: March 27, 1998 By /s/ James O. Edwards
------------------------------------
James O. Edwards,
Director
Date: March 27, 1998 By /s/ Maynard H. Jackson
------------------------------------
Maynard H. Jackson,
Director
Date: March 27, 1998 By /s/ Thomas C. Jorling
------------------------------------
Thomas C. Jorling,
Director
Date: March 27, 1998 By /s/ Hazel R. O'Leary
------------------------------------
Hazel R. O'Leary,
Director
Date: March 27, 1998 By /s/ Keith M. Price
------------------------------------
Keith M. Price,
Director
Date: March 27, 1998 By /s/ James T. Rhodes
------------------------------------
James T. Rhodes,
Director
Date: March 27, 1998 By /s/ Marc Tipermas
------------------------------------
Marc Tipermas,
Director
37
<PAGE>
Report of Independent Accountants
To the Board of Directors and Shareholders
ICF Kaiser International, Inc.
We have audited the consolidated financial statements and financial statement
schedule of ICF Kaiser International, Inc. and Subsidiaries listed in Item 14(a)
of this Form 10-K. These financial statements and financial statement schedule
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements and financial statement
schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of ICF Kaiser
International, Inc. and Subsidiaries as of December 31, 1997 and 1996, and the
consolidated results of their operations and their cash flows for the years
ended December 31, 1997 and 1996, and the ten months ended December 31, 1995, in
conformity with generally accepted accounting principles. In addition, in our
opinion, the financial statement schedule referred to above, when considered in
relation to the basic financial statements taken as a whole, presents fairly, in
all material respects, the information required to be included therein.
COOPERS & LYBRAND L.L.P.
McLean, Virginia
March 26, 1998
F-1
<PAGE>
<TABLE>
<CAPTION>
ICF KAISER INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
- ------------------------------------------------------------------------------------------------
DECEMBER 31,
--------------------------------
1997 1996
- ------------------------------------------------------------------------------------------------
(In thousands, except shares)
<S> <C> <C>
Assets
Current Assets
Cash and cash equivalents $ 19,198 $ 16,761
Contract receivables, net 264,030 223,278
Prepaid expenses and other current assets 14,490 27,096
Deferred income taxes 15,281 9,739
-------- --------
Total Current Assets 312,999 276,874
-------- --------
Fixed Assets
Furniture, equipment, and leasehold improvements 51,446 48,410
Less depreciation and amortization (39,648) (37,208)
-------- --------
11,798 11,202
-------- --------
Other Assets
Goodwill, net 47,323 49,699
Investments in and advances to affiliates 7,038 6,443
Other 19,308 21,755
-------- --------
73,669 77,897
-------- --------
Total Assets $398,466 $365,973
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Debt currently payable $ 15 $ 43
Accounts payable 120,368 73,891
Accrued salaries and benefits 37,654 45,779
Other accrued expenses 26,902 20,582
Deferred revenue 36,527 21,829
Income taxes payable 1,012 852
-------- --------
Total Current Liabilities 222,478 162,976
Long-term Liabilities
Long-term debt 141,004 156,519
Other 4,586 5,432
-------- --------
Total Liabilities 368,068 324,927
-------- --------
Commitments and Contingencies
Minority Interest 3,071 6,154
Shareholders' Equity
Preferred Stock - -
Common Stock, par value $.01 per share:
Authorized-90,000,000 shares
Issued and outstanding- 22,475,904 and 22,311,842 shares 225 223
Additional Paid-in Capital 67,116 66,983
Notes Receivable Collateralized by Common Stock (2,422) (1,732)
Accumulated Deficit (34,225) (29,238)
Cumulative Translation Adjustment (3,367) (1,344)
-------- --------
Total Shareholders' Equity 27,327 34,892
-------- --------
Total Liabilities and Shareholders' Equity $398,466 $365,973
======== ========
- ------------------------------------------------------------------------------------------------
See notes to consolidated financial statements.
</TABLE>
F-2
<PAGE>
<TABLE>
<CAPTION>
ICF KAISER INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
- -----------------------------------------------------------------------------------------------------------------------------
YEAR YEAR TEN MONTHS
ENDED ENDED ENDED
DECEMBER 31, DECEMBER 31, DECEMBER 31,
1997 1996 1995
- -----------------------------------------------------------------------------------------------------------------------------
(In thousands, except per share amounts)
<S> <C> <C> <C>
GROSS REVENUE $1,108,116 $1,248,443 $ 916,744
Subcontract and direct material costs (677,431) (720,342) (493,971)
Provision for contract loss (6,900) - -
Equity in income of joint ventures
and affiliated companies 2,301 4,015 3,123
---------- ---------- ---------
SERVICE REVENUE 426,086 532,116 425,896
OPERATING EXPENSES
Direct labor and fringe benefits 289,571 380,400 306,100
Group overhead 86,792 95,747 68,703
Corporate general and administrative 22,059 24,441 25,231
Depreciation and amortization 9,595 10,348 8,357
---------- ---------- ---------
OPERATING INCOME 18,069 21,180 17,505
OTHER INCOME (EXPENSE)
Gain on sale of investment 1,018 9,384 -
Interest income 1,750 1,254 2,053
Interest expense (18,276) (17,334) (13,255)
---------- ---------- ---------
INCOME BEFORE INCOME TAXES AND
MINORITY INTEREST 2,561 14,484 6,303
Income tax provision (benefit) (3,319) 2,607 2,091
---------- ---------- ---------
INCOME BEFORE MINORITY INTEREST 5,880 11,877 4,212
Minority interest in net income of subsidiaries 10,867 6,043 1,960
---------- ---------- ---------
NET INCOME (LOSS) (4,987) 5,834 2,252
Preferred stock dividends and accretion - 2,178 1,803
---------- ---------- ---------
NET INCOME (LOSS) AVAILABLE FOR COMMON SHAREHOLDERS $ (4,987) $ 3,656 $ 449
========== ========== =========
BASIC EARNINGS (LOSS) PER SHARE $ (0.22) $ 0.17 $ 0.02
========== ========== =========
DILUTED EARNINGS (LOSS) PER SHARE $ (0.22) $ 0.17 $ 0.02
========== ========== =========
WEIGHTED AVERAGE SHARES FOR BASIC EARNINGS PER SHARE 22,382 22,035 21,132
Effect of dilutive stock options - 22 474
---------- ---------- ---------
WEIGHTED AVERAGE SHARES FOR DILUTED EARNINGS PER SHARE 22,382 22,057 21,606
========== ========== =========
- -----------------------------------------------------------------------------------------------------------------------------
See notes to consolidated financial statements.
</TABLE>
F-3
<PAGE>
<TABLE>
<CAPTION>
ICF KAISER INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
- -------------------------------------------------------------------------------------------------------------------------
COMMON STOCK
-------------------- ADDITIONAL CUMULATIVE
PAR PAID-IN NOTES ACCUMULATED TRANSLATION SHAREHOLDERS'
SHARES VALUE CAPITAL RECEIVABLE (DEFICIT) ADJUSTMENT EQUITY
- ------------------------------------------------------------------------------------------------------------------------
(In thousands, except shares)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE, MARCH 1, 1995 21,011,369 $210 $63,786 $(1,732) $(33,343) $(1,297) $27,624
Net income - - - - 2,252 - 2,252
Preferred stock dividends - - - - (1,633) - (1,633)
Preferred stock accretion - - - - (170) - (170)
Issuances of common stock 314,422 4 1,167 - - - 1,171
Reacquisition of common stock (61,963) (1) (256) - - - (257)
Foreign currency
translation adjustment - - - - - (517) (517)
Other - - (43) - - - (43)
---------- ---- ------- ------- -------- ------- -------
BALANCE, DECEMBER 31, 1995 21,263,828 213 64,654 (1,732) (32,894) (1,814) 28,427
Net income - - - - 5,834 - 5,834
Preferred stock dividends - - - - (1,965) - (1,965)
Preferred stock accretion - - - - (213) - (213)
Issuances of common stock 1,153,014 11 2,650 - - - 2,661
Reacquisition of common stock (105,000) (1) (426) - - - (427)
Foreign currency
translation adjustment - - - - - 470 470
Other - - 105 - - - 105
---------- ---- ------- ------- -------- ------- -------
BALANCE, DECEMBER 31, 1996 22,311,842 223 66,983 (1,732) (29,238) (1,344) 34,892
Net loss - - - (4,987) - (4,987)
Issuances of common stock 319,300 3 644 - - - 647
Reacquisition of common stock (155,238) (1) (511) - - - (512)
Foreign currency
translation adjustment (2,023) (2,023)
Other - - - (690) - - (690)
------------ ---- ------- ------- -------- ------- -------
BALANCE, DECEMBER 31, 1997 22,475,904 $225 $67,116 $(2,422) $(34,225) $(3,367) $27,327
========== ==== ======= ======= ======== ======= =======
- ----------------------------------------------------------------------------------------------------------------------
See notes to consolidated financial statements.
</TABLE>
F-4
<PAGE>
<TABLE>
<CAPTION>
ICF KAISER INTERNATIONAL, INC AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
- -------------------------------------------------------------------------------------------------------------------------
YEAR YEAR TEN MONTHS
ENDED ENDED ENDED
DECEMBER 31, DECEMBER 31, DECEMBER 31,
1997 1996 1995
- -------------------------------------------------------------------------------------------------------------------------
(In thousands)
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net income (loss) $ (4,987) $ 5,834 $ 2,252
Adjustments to reconcile net income (loss) to net cash
provided by (used in) operating activities:
Depreciation and amortization 9,595 10,348 8,357
Provision for losses 1,195 1,881 601
Provision for deferred income taxes (5,542) 2,127 1,253
Earnings in excess of cash distributions from
joint ventures and affiliated companies (91) (374) (1,105)
Minority interest in net income of subsidiaries 10,867 6,043 1,960
Gain on sale of investment (1,018) (9,384) -
Changes in operating assets and liabilities,
net of acquisitions and dispositions:
Contract receivables, net (42,494) 2,638 (88,743)
Prepaid expenses and other current assets (2,268) 1,843 (3,826)
Accounts payable and accrued expenses 41,573 (24,781) 78,801
Deferred revenue 14,698 7,727 3,314
Other liabilities 3,296 (2,202) (3,625)
Other operating activities 2,682 (492) (5,296)
-------- -------- --------
Net Cash Provided by (Used in) Operating Activities 27,506 1,208 (6,057)
-------- -------- --------
INVESTING ACTIVITIES
Investments in subsidiaries and affiliates, net of cash acquired (4,074) (1,317) (2,010)
Sales of subsidiaries and/or investments 17,028 - 735
Purchases of fixed assets (4,888) (4,932) (1,759)
Sales of fixed assets - 22 1,035
-------- -------- --------
Net Cash Provided by (Used in) Investing Activities 8,066 (6,227) (1,999)
-------- -------- --------
FINANCING ACTIVITIES
Borrowings under revolving credit facility 104,500 114,000 16,000
Principal payments on revolving credit facility (121,000) (98,500) (17,173)
Proceeds from issuance of senior notes - 14,700 -
Repurchase of preferred stock - (20,000) -
Distribution of income to minority interest (13,950) (2,428) -
Capital contribution from minority interest - - 500
Proceeds from issuances of common stock 213 383 406
Repurchases of common stock (251) - (257)
Preferred stock dividends - (2,615) (1,471)
Debt issuance costs (624) (1,427) -
Other financing activities - 924 (1,308)
-------- -------- --------
Net Cash Provided by (Used in) Financing Activities (31,112) 5,037 (3,303)
-------- -------- --------
Effect of Exchange Rate Changes on Cash (2,023) 386 (517)
-------- -------- --------
Increase (Decrease) in Cash and Cash Equivalents 2,437 404 (11,876)
Cash and Cash Equivalents at Beginning of Period 16,761 16,357 28,233
-------- -------- --------
Cash and Cash Equivalents at End of Period $ 19,198 $ 16,761 $ 16,357
======== ======== ========
SUPPLEMENTAL CASH FLOW INFORMATION IS AS FOLLOWS:
Cash payments for interest $ 18,649 $ 24,701 $ 7,898
Cash payments for income taxes 402 765 1,306
Non-cash transactions:
Issuance of common stock 434 2,175 765
Reacquisition of common stock (261) (427) -
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
See notes to consolidated financial statements.
F-5
<PAGE>
ICF KAISER INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Nature of Operations
ICF Kaiser International, Inc. and subsidiaries (the Company) provides
engineering, construction, program management, and consulting services primarily
to clients in a variety of market areas, including industry, transportation,
infrastructure, environment, energy, information technology, housing, economic
development, and microelectronics.
2. Significant Accounting Policies
Principles of Consolidation: The consolidated financial statements include all
majority-owned or controlled subsidiaries, including Kaiser-Hill Company, LLC,
effective July 1, 1995 (Kaiser-Hill). Investments in unconsolidated joint-
ventures and affiliated companies are accounted for using the equity method.
The difference between the cost of joint-venture investments and the Company's
underlying equity is amortized on a straight-line basis over the estimated lives
of the related investments. All significant intercompany balances and
transactions have been eliminated.
Change in Fiscal Year Reporting: Effective December 31, 1995, the Company
changed from a fiscal year ending February 28 to a calendar year ending
December 31. The accompanying consolidated financial statements, therefore,
include results of operations for only ten months in 1995.
Revenue Recognition: The Company's revenue is derived primarily from long-term
contracts of various types. Revenue on time-and-materials contracts is
recognized based on actual hours delivered times the contracted hourly billing
rate, plus the costs incurred for any materials. Revenue on fixed-priced
contracts is recognized using the percentage-of-completion method and is
comprised of the portion of expected total contract earnings represented by
actual costs incurred to date as a percentage of the contract's total estimated
costs at completion. Revenue on cost-reimbursable contracts is recognized to
the extent of costs incurred plus a proportionate amount of the contracted fee.
Certain cost-reimbursable contracts also include provisions for earning
performance-based incentive fees. Such incentive fees are included in revenue
at the time the amounts can be reasonably determined. Provisions for
anticipated contract losses are recognized at the time they become estimable.
During the year ended December 31, 1996, the Company accelerated its process for
obtaining approval from the U.S. government to invoice certain indirect costs on
cost-reimbursable contracts, prior to the completion of government audits of
such costs. The net effect of the accelerated ability to invoice these costs
resulted in the recognition of approximately $3.3 million of operating income in
1996.
Use of Estimates: The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities, the
disclosed amounts of contingent assets and liabilities at the date of the
financial statements, and the amounts of revenue and expenses recognized during
the reporting period. Actual results could differ from those estimates.
Foreign Currency Translation: Results of operations for foreign entities are
translated using the average exchange rates during the period. Assets and
liabilities are translated to U.S. dollars using the exchange rate in effect at
the balance sheet date. Resulting translation adjustments are reflected in
shareholders' equity as cumulative translation adjustment.
Cash Equivalents and Restricted Cash: The Company considers all highly liquid
financial instruments purchased with original maturities of three months or less
to be cash equivalents. Other assets as of December 31, 1997, included $600,000
of restricted cash in a short-term investment, which supported a letter of
credit for one of the Company's subsidiaries. Cash of the Company's wholly
owned insurance company is restricted from use by the Company and is included in
prepaid expenses on the balance sheet. Restricted cash balances of the
Company's wholly owned insurance company totaled $1,165,000 at December 31,
1997.
F-6
<PAGE>
Fixed Assets: Furniture and equipment are carried at cost, or fair value at
acquisition if acquired through the purchase of a business, and are depreciated
using the straight-line method over their estimated useful lives, ranging from
three to ten years. Leasehold improvements are carried at cost and are
amortized using the straight-line method over the remaining lease terms.
Capitalized Software Development Costs: Certain costs, including consultants
and internal labor, incurred to develop major software applications for Company
use are capitalized and amortized over the estimated economic life of the
software. Unamortized capitalized software development costs were approximately
$3.4 million and $3.5 million at December 31, 1997 and 1996, respectively.
Goodwill: Goodwill represents the excess of cost of acquired businesses over
the fair value of the identifiable net tangible and intangible assets acquired.
Goodwill is amortized using the straight-line method over the period for which
the Company estimates it will benefit directly from the acquisitions. The range
of estimated benefit from the Company's historical acquisitions ranges from five
to 40 years. The Company periodically evaluates these ranges and the
recoverability of goodwill by comparing the estimated future undiscounted
operational cash flows for each underlying acquisition to the respective
carrying value of goodwill. Accumulated amortization was $17,463,000 and
$15,079,000, at December 31, 1997 and 1996, respectively.
Income Taxes: Deferred tax assets and liabilities represent the tax effects of
differences between the financial statement carrying amounts and the tax basis
carrying amounts of the Company's assets and liabilities. These differences are
calculated based upon the statutory tax rates in effect in the years in which
the differences are expected to reverse. The effect of subsequent changes in
tax rates on deferred tax balances is recognized in the period in which a tax
rate change is enacted. The Company evaluates its ability to benefit from all
deferred tax assets and establishes reserve allowances for amounts it believes
may not be realizable.
A provision for U.S. income taxes is not made for the undistributed earnings of
the Company's foreign subsidiaries because the Company intends to reinvest the
undistributed earnings in continuing operations indefinitely. Undistributed
earnings of foreign subsidiaries for which income taxes have not been provided
amounted to approximately $6.4 million at December 31, 1997.
Net Income (Loss) Per Common Share: In 1997 the Company adopted the Statement of
Financial Accounting Standards No. 128, Earnings per Share (SFAS No. 128). All
EPS computation periods presented in these financial statements have been
restated to conform to SFAS No. 128. Basic EPS is computed by dividing income
available to common shareholders by the weighted average number of common shares
outstanding for the period. Diluted EPS includes the weighted average effect of
dilutive securities assumed to have been issued during the period. The assumed
proceeds from the exercise of dilutive securities are used to purchase common
stock at the average market price during the period. The difference between the
number of shares assumed issued and the number of shares assumed purchased is
added to the basic EPS denominator.
Concentrations of Credit Risk: The Company maintains cash balances primarily in
overnight Eurodollar deposits, investment-grade commercial paper, bank
certificates of deposit, and U.S. government securities. The Company grants
uncollateralized credit to its customers. Approximately 52% of the Company's
contract receivables at December 31, 1997, were from agencies of the U.S.
government (see Note 3). When practical and in order to mitigate its credit
risk from commercial customers, the Company obtains advance funding of costs for
industrial construction work.
Stock-based Compensation: Statement of Financial Accounting Standards No. 123,
Accounting for Stock-based Compensation (SFAS No. 123), encourages companies to
adopt a fair-value method of accounting for employee stock options and similar
equity instruments. The fair-value method requires compensation cost to be
measured at the grant date based on the value of the award and to be recognized
over the service period. As permitted, the Company has continued to account for
its stock-based compensation in
F-7
<PAGE>
accordance with the provisions of Accounting Principles Board Opinion No. 25
(APB 25), "Accounting for Stock Issued to Employees."
Recent Accounting Pronouncements: In June 1997, the FASB issued SFAS No. 130,
"Reporting Comprehensive Income." SFAS No. 130 establishes standards for
reporting and displaying comprehensive income and its components in the
financial statements. The Company will be required to implement SFAS No. 130 in
1998.
Also in June 1997, the FASB issued SFAS No. 131, "Disclosures About Segments of
an Enterprise and Related Information." SFAS No. 131 establishes standards for
the manner in which public companies report information about operating segments
in annual and interim financial statements. The Company is currently evaluating
the operating segment information that it will be required to report. The
Company will be required to implement SFAS No. 131 in 1998.
Reclassifications: Certain reclassifications have been made to the prior-period
financial statements in order to conform to the 1997 presentation.
3. Contract Receivables
Contract receivables consisted of the following (in thousands):
<TABLE>
<CAPTION>
December 31,
--------------------------------------
1997 1996
--------------------------------------
U.S. government agencies:
<S><C> <C> <C>
Currently due $ 19,650 $ 30,322
Retention 2,695 4,041
Unbilled 114,921 107,051
-------- --------
137,266 141,414
-------- --------
Commercial clients and state and municipal governments:
Currently due 97,909 61,255
Retention 18,952 4,855
Unbilled 17,045 25,204
-------- --------
133,906 91,314
-------- --------
271,172 232,728
Less allowances for uncollectible receivables (7,142) (9,450)
-------- --------
$264,030 $223,278
======== ========
</TABLE>
Unbilled receivables result from revenue that has been earned but not billed.
The unbilled receivables can be invoiced at contractually defined intervals or
milestones, as well as upon completion of the contract or the U.S. government
cost audit. Retention balances are billable at contract completion or upon
attainment of other specified contract milestones. Other unbilled amounts
consist primarily of indirect costs that will be billed on cost-reimbursable
contracts upon completion of government cost audits. Consistent with industry
practice, these receivables are classified as current assets. Unbilled
receivables with U.S. government agencies includes $4.4 million in claims to
which the Company believes it is entitled, and recovery of which may take more
than one year. The Company anticipates that the remaining unbilled receivables
will be substantially billed and collected within one year.
F-8
<PAGE>
4. Joint Ventures and Affiliated Companies
The Company has ownership interests in certain unconsolidated corporate joint
ventures and affiliated companies. The Company's net investments in and
advances to these corporate joint ventures and affiliated companies totaled $7.0
million and $6.4 million at December 31, 1997 and 1996, respectively. The
ownership percentages range from 20% to 50%.
Combined summarized financial information of all of the Company's unconsolidated
corporate joint ventures and affiliated companies is as follows (in thousands):
<TABLE>
<CAPTION>
December 31, December 31, December 31,
1997 1996 1995
-------------- --------------- --------------
<S> <C> <C> <C>
Current assets $23,508 $26,558 $19,017
Non-current assets 4,507 7,887 15,857
Current liabilities 20,479 13,314 17,404
Non-current liabilities - 53 446
Gross revenue 41,183 28,742 41,262
Net income 7,870 11,930 6,606
</TABLE>
In December 1996, the Company sold the majority of its interests in entities
owning and operating a pulverized coal injection facility for $16.6 million
resulting in a $9.4 million pretax gain. The buyer exercised an option on
January 5, 1998, to purchase the remaining equity investment for $2.4 million.
The Company recognized a total pretax gain of $1.0 million during 1997 as the
carrying value of the option was increased to reflect fair market value. The
sales price for both installments is included in other current assets in the
accompanying balance sheets and was collected in January of each of the
subsequent years.
On November 12, 1997, the Company entered into an investment, the purpose of
which was to restructure significantly remaining fixed operating lease costs
for its corporate headquarters, resulting in a percentage ownership in the
underlying leaseholds and buildings. The Company contributed $1.5 million for a
20% ownership interest in a limited liability company (the Investment Company)
and other investors contributed $4.5 million for the remaining 80% ownership
interest. The Company has committed to make additional annual capital
contributions to the Investment Company totaling $600,000 during each of the
first three years of the Investment Company and $700,000 during each of the
fourth through ninth years of the Investment Company.
The Investment Company in turn invested $6.0 million in exchange for a 20%
interest in a limited liability company (the Operating Company) that leases the
property and owns the buildings leased primarily by the Company for its
corporate headquarters. The Operating Company agreement provides that the
Investment Company ownership will increase to 80% in fixed annual 12% increases
in each of the 11th through 15th years of the Operating Company. The ownership
percentage of the other investor(s) will be correspondingly decreased. Under a
separate option agreement, the Investment Company has an option to purchase the
property on which the Company's corporate headquarters buildings are located.
Concurrent with these investments, the Company restructured its lease agreements
with the Operating Company, essentially terminating the existing lease
agreements that originally expired in 2002 and 2004, and replacing them with new
leases expiring in 15 years (see Note 10 for the summarized lease commitments).
F-9
<PAGE>
5. Long-Term Debt
The Company's long-term debt was as follows (in thousands):
<TABLE>
<CAPTION>
December 31,
----------------------------------------
1997 1996
------------------ ------------------
<S> <C> <C>
12% Senior Subordinated Notes due 2003 $125,000 $124,500
12% Senior Notes due 2003, Series A - 15,000
12% Senior Notes due 2003, Series B 15,000 -
Revolving credit facility 4,000 20,500
Other notes, due in 1998 15 43
-------- --------
144,015 160,043
Less unamortized discount 2,996 3,481
-------- --------
141,019 156,562
Less current maturities 15 43
-------- --------
$141,004 $156,519
======== ========
</TABLE>
Scheduled maturities of long-term debt outstanding at December 31, 1997, are
$4,000,000 in 2000 and $140,000,000 in 2003.
Senior and Subordinated Notes
On December 23, 1996, the Company privately issued 15,000 Units, each Unit
consisting of $1,000 principal amount of the 12% Senior Notes due in 2003,
Series A (Series A Senior Notes), and seven warrants, each to purchase one share
of the Company's common stock at an exercise price of $2.30 per share. The
warrants contain certain anti-dilution provisions and expire on December 31,
1999. Interest accrues on the Series A Senior Notes at 13% until the Company
achieves and maintains a specified level of earnings.
In January 1997, the Company registered $15.0 million of 12% Senior Notes due in
2003, Series B (Series B Senior Notes) with the U.S. Securities and Exchange
Commission (SEC). In March 1997, the Company completed an offer to all
existing holders of Series A Senior Notes and exchanged the Series A Senior
Notes for Series B Senior Notes. The terms of the Series B Senior Notes are
substantially identical (including principal amount, interest rate, and
maturity) to the terms of the Series A Senior Notes.
On January 11, 1994, the Company issued 125,000 Units, each Unit consisting of
$1,000 principal amount of the Company's 12% Senior Subordinated Notes due 2003
(Subordinated Notes) and 4.8 warrants, each to purchase one share of the
Company's common stock at an exercise price of $5.00 per share. The warrants
expire on December 31, 1998, and additional warrants may be issued under certain
anti-dilution provisions. In March 1996, the interest rate on the Subordinated
Notes was increased by 1% until the Company achieves and maintains a specified
level of earnings. The Company's obligations under the Subordinated Notes are
subordinate to its obligations under the Company's revolving credit facility and
the Series B Senior Notes.
Interest payments are due semiannually on the Series B Senior Notes and the
Subordinated Notes (collectively, the Notes). The Notes may not be prepaid at
the Company's option prior to December 31, 1998. Subsequent to that date, the
Company may prepay the Notes at a premium. Payment of the principal, premium, if
any, and interest on the Notes is unconditionally guaranteed by 12 of the
F-10
<PAGE>
Company's wholly owned subsidiaries. The indentures governing the
Notes contain business and financial covenants, including restrictions on
additional indebtedness, dividends, acquisitions and certain types of
investments, and asset sales. At December 31, 1997, the fair value of the
Series B Senior Notes and Subordinated Notes was approximately $16.4 million and
$130.0 million, respectively. At December 31, 1996, the fair value of the
Series B Senior and Subordinated Notes was approximately $14.7 million and
$118.9 million, respectively. The fair value was derived using an average of
quoted market prices obtained from financial institutions. Debt issuance costs
of the Notes totaling $4.0 million and $4.6 million at December 31, 1997 and
1996, respectively, are being amortized over the terms of the Notes.
Credit Facility
In December 1997, the Company entered into an amended and restated credit
agreement with a consortium of banks which provides an additional $25 million in
revolving credit for a total of $65 million (the Revolver). While the amended
and restated agreement retains many of the same terms as the agreement for the
former facility, it also modified certain financial covenants and obligated the
Company to pledge the stock of certain additional domestic and foreign
subsidiaries to the banks. The Company and certain of its subsidiaries, which
are guarantors of the Revolver, have granted a security interest in certain
accounts receivable and certain other assets. The Revolver limits the payments
of cash dividends on common stock, prohibits the issuance of certain types of
additional indebtedness, limits certain investments and acquisitions, and
requires the maintenance of specified financial ratios. Total available credit
is based on a percentage of eligible billed and unbilled accounts receivable, up
to a maximum of $60 million.
Primarily as a result of a 1997 provision totaling $6.9 million for the
financial statement impact of cost overruns on a fixed-price nitric acid project
scheduled for completion in 1998, the Company was not in compliance with
certain financial covenants of the Revolver at December 31, 1997. On March 12,
1998, the Company obtained an amendment to the Revolver that exempted the
relevant project results from inclusion in the computations of these covenants.
This amendment also requires the Company to update the banks with respect to the
costs to complete the project for which a reserve was taken and to obtain the
banks' consent prior to making certain large acquisitions. As of December 31,
1997, the Company was in compliance with its financial covenants under the
amended Revolver.
The Revolver contains provisions for Eurodollar-based and other Federal Funds-
based interest rate borrowing alternatives with margins dependent upon the
Company's financial operating results, and expires on December 3, 2000. As of
December 31, 1997, the Company had $4.0 million in cash borrowings and $22.7
million of letters of credit outstanding under the Revolver. The letters of
credit outstanding under the Revolver are in support of contract performance
guarantees, primarily on international projects. As of December 31, 1997, the
Company had $22.7 million of additional credit available under the Revolver.
Kaiser-Hill has a $50 million receivables purchase facility to support its
working capital requirements under a U.S. Department of Energy contract. The
receivables purchase facility contains certain program fees, requires the
subsidiary to maintain a specified tangible net worth, and contains certain
letter of credit and default provisions for delinquent receivables. The
receivables purchase facility expires on June 30, 1998, and is non-recourse to
the Company and its other consolidated subsidiaries.
6. Contingencies and Uncertainties
In the course of the Company's normal business activities, various claims or
charges have been asserted and litigation commenced against the Company arising
from or related to properties, injuries to persons, and breaches of contract, as
well as claims related to acquisitions and dispositions. Claimed amounts may
not bear any reasonable relationship to the merits of the claim or to a final
court award. Management has provided for estimates of reserves necessary to
cover final judgments, if any, in excess of insurance coverage, that might be
rendered against the Company in such litigation.
F-11
<PAGE>
The Company may from time to time, either individually or in conjunction with
other government contractors operating in similar types of businesses, be
involved in U.S. government investigations for alleged violations of
procurement regulations or other federal laws and regulations. The Company
currently is the subject of a number of U.S. government investigations and is
cooperating with the responsible government agencies involved. No charges
presently are known to have been filed against the Company by these agencies.
Management does not believe that there will be any material effect on the
Company's financial position, results of operations, or cash flows as a result
of these investigations.
The Company has a substantial number of cost-reimbursement contracts with the
U.S. government, the costs of which are subject to audit by the U.S. government.
As a result of pending audits related to fiscal years 1986 forward, the
government has asserted, among other things, that certain costs claimed as
reimbursable under government contracts either were not allowable or not
allocated in accordance with federal procurement regulations. The Company is
actively working with the government to resolve these issues. Audits have not
been completed for any years after 1987. The Company has provided for its
estimate of the potential effect of issues that have been quantified, including
its estimate of disallowed costs for the periods currently under audit and for
periods not yet audited. Many of the issues, however, have not been quantified
by the government or the Company, and others are qualitative in nature, and
their potential financial impact, if any, is not quantifiable by the government
or the Company at this time. Provisions for reserves will be reviewed
periodically as progress with the government ensues.
7. Income Taxes
The components of income (loss) before income taxes and minority interests and
the related provision (benefit) for income taxes are as follows (in thousands):
F-12
<PAGE>
<TABLE>
<CAPTION>
Year Ended Ten Months
---------------------------------- Ended
December 31, December 31, December 31,
1997 1996 1995
-------------- --------------- --------------
<S> <C> <C> <C>
Income (loss) before income taxes
and minority interests:
Domestic $ 675 $13,900 $ 7,419
Foreign 1,886 584 (1,116)
------- ------- -------
$ 2,561 $14,484 $ 6,303
======= ======= =======
Provision (benefit) for income taxes:
Federal:
Current $ 129 $ - $ 171
Deferred (4,231) 1,660 2,020
------- ------- -------
(4,102) 1,660 2,191
------- ------- -------
State:
Current 374 55 258
Deferred (854) 864 293
------- ------- -------
(480) 919 551
------- ------- -------
Foreign:
Current 764 425 409
Deferred 499 (397) (1,060)
------- ------- -------
1,263 28 (651)
------- ------- -------
$(3,319) $ 2,607 $ 2,091
======= ======= =======
</TABLE>
The tax effects of the principal temporary differences and carryforwards that
give rise to the Company's deferred tax asset (net) are as follows (in
thousands):
F-13
<PAGE>
<TABLE>
<CAPTION>
December 31,
----------------------------------
1997 1996
-------------- ---------------
<S> <C> <C>
Reserves for adjustments and allowances $13,162 $ 9,377
Vacation and incentive compensation accruals 3,275 4,514
Tax credit carryforwards 2,472 2,522
Net operating loss carryforwards 555 1,111
Gain on sale of investment (767) (5,011)
Unbilled revenue (1,680) (1,082)
Other (516) (462)
------- --------
16,501 10,969
Valuation allowance (1,220) (1,230)
------- --------
$15,281 $ 9,739
======= ========
</TABLE>
At December 31, 1997, the Company had deferred tax assets of $0.6 million
related to net operating loss carryforwards that expire within the next five
years. Additionally, the Company had deferred tax assets of $2.5 million
related to tax credit carryforwards, of which $1.0 million has no expiration and
$1.5 million expires by 2011. The Company believes that expected levels of
pretax earnings, when adjusted for nondeductible expenses such as goodwill
amortization, will generate sufficient future taxable income to be able to
realize the net $15.3 million deferred tax asset within the next five years.
The $1.2 million valuation allowance is attributed to foreign tax benefits not
currently assured of realization.
In 1996, the Company recognized a gain on the sale of an investment that would
generate substantial taxable income. As a result, the Company partially
reversed the valuation allowance on deferred tax assets. The effective income
tax provision (benefit) varied from the federal statutory income tax provision
(benefit) because of the following differences (in thousands):
F-14
<PAGE>
<TABLE>
<CAPTION>
Year Year Ten Months
Ended Ended Ended
December 31, December 31, December 31,
1997 1996 1995
-------------- -------------- --------------
<S> <C> <C> <C>
Income tax (benefit) computed at federal
statutory tax rate $ 896 $ 5,069 $2,143
Change in tax (benefit) from:
Goodwill amortization 1,024 996 737
Minority interest earnings of (3,803) (2,115) (693)
State income taxes (312) 597 364
Foreign taxes 316 (427) (580)
Valuation allowance - (2,100) -
Business meals, entertainment 441 587 468
Research and experimentation credits (1,881) - (348)
------- ------- ------
$(3,319) $ 2,607 $2,091
======= ======= ======
</TABLE>
Kaiser-Hill, is a flow-through entity for tax purposes and is owned equally by a
third party. The tax rate effect of the outside party's share of income is
reflected above as minority interest earnings.
In 1997, the Company reached a favorable settlement of a long-standing foreign
tax matter for one of its U.S. branches doing business overseas. This
settlement resulted in a reduction in interest expense of $0.9 million for the
year ended December 31, 1997.
8. Preferred Stock
The Company has 2,000,000 shares of authorized preferred stock of which only a
portion has been designated. In 1992, the Company issued 200 shares of Series
2D Senior Preferred Stock for $20 million. The stock had a mandatory redemption
date of January 13, 1997, and was redeemed in December 1996 for $20 million. The
other designated series of preferred stock consist of 200 shares of Series 1
Junior Convertible Preferred Stock, par value $0.01 per share and 500,000 shares
of Series 4 Junior Preferred Stock, par value $0.01 per share. There were no
preferred shares issued or outstanding as of December 31, 1997 or 1996.
9. Common Stock
Notes Receivable Collaterized by Common Stock: Certain current and former
members of senior management have outstanding notes to the Company for which
725,648 shares of the Company's common stock serve as the collateral.
Shareholder Rights Plan: The Shareholder Rights Plan (Rights Plan) is designed
to provide the Board of Directors (the Board) with the ability to negotiate with
a person or group that might, in the future, make an unsolicited attempt to
acquire control of the Company, whether through the accumulation of shares in
F-15
<PAGE>
the open market or through a tender offer that does not offer an adequate price.
The Rights Plan provides for one Right (Right) for each outstanding share of the
Company's common stock. Each Right entitles the holder to purchase 1/100 of a
share of Series 4 Junior Preferred Stock at a purchase price of $50. The Rights
generally may cause substantial dilution to a person or group that attempts to
acquire the Company on terms not approved by the Board. The Rights should not
interfere with any merger or other business combination approved by the Board
because the Board may, at its option, following the acquisition by any person or
group of 20% of the outstanding shares of the Company's common stock, redeem the
Rights upon payment of the redemption price of $0.01 per Right. Current bank
and debt covenants restrict the funds available for payment of the redemption
price. Unless redeemed earlier by the Board, unexercised Rights expire on
January 13, 2002.
10. Leases
Future minimum payments on noncancelable operating leases for office space and
equipment with initial or remaining terms in excess of one year were as follows
at December 31, 1997 (in thousands):
<TABLE>
<CAPTION>
Year Ended Operating
December 31, Leases
- --------------------------------
<S> <C>
1998 $ 19,409
1999 16,929
2000 13,885
2001 10,755
2002 9,611
Thereafter 79,470
--------
$150,059
========
</TABLE>
The total rental expense for all operating leases was $27,576,000, $31,686,000,
and $24,950,000 for the years ended December 31, 1997 and 1996, and the ten
months ended December 31, 1995, respectively. Sublease rental income was
$4,617,000, $3,887,000, and $3,189,000 for the years ended December 31, 1997 and
1996, and the ten months ended December 31, 1995, respectively. Minimum future
sublease rentals to be received under noncancelable subleases during 1998, 1999,
and 2000, are approximately $5,210,000, $4,038,000, and $1,833,000,
respectively.
11. Stock-Based Compensation
As of December 31, 1997, the Company has three fixed stock option plans and an
employee stock purchase plan (together, the Stock Plans).
Fixed Stock Option Plans: The Company's Stock Incentive Plan (Incentive Plan)
provides for the issuance of options, stock appreciation rights, restricted
shares, and restricted stock units of up to an aggregate of 6,000,000 shares of
the Company's common stock. Awards are made to employees at the discretion of
the Compensation and Human Resources Committee of the Board (Committee). The
vesting period for each grant under the Plan is determined by the Committee;
grants generally vest in equal installments over three to six years. At
December 31, 1997, 1,870,212 shares were available for grant under this plan.
The Company's Non-Employee Directors Stock Option Plan (Non-Employee Plan)
provides that each director of the Company who is not an employee of the Company
receive an option to purchase 3,000 shares of the Company's common stock for
each year of service. Options granted under this plan become
F-16
<PAGE>
fully exercisable at the close of business following the date of grant. The Non-
Employee Plan does not specify a maximum number of shares for which options may
be granted. As of December 31, 1997, there are 135,000 shares of common stock
reserved for issuance upon the exercise of options granted under this plan, of
which 78,000 are outstanding at December 31, 1997. On February 28, 1997, the
Board of Directors suspended this plan and adopted the Company's Non-Employee
Directors Compensation and Phantom Stock Plan under which non-employee directors
are given annual phantom stock awards (PSA). In lieu of option grants, each year
each non-employee director of the Company will be granted a PSA equal to $20,000
of common stock on the date of grant. Three years after each PSA grant, the
Company will pay each non-employee director, in cash, the value of the shares to
which the PSA relates. Any increases in value of the PSA after the date of grant
and prior to the cash payment will be expensed in the period of the value
increase. PSAs granted in 1997 totaled 48,545, with an initial share value of
$2.06.
The Company's Consultants, Agents, and Part-Time Employees Stock Plan
(Consultants Plan) provides for the issuance of options or restricted shares of
up to 1.0 million shares of the Company's common stock to consultants, agents,
and part-time employees at the discretion of the Company's Chief Executive
Officer. The vesting period is a minimum of one year. At December 31, 1997,
772,200 shares were available for the granting of options under this plan.
All three fixed stock-option plans provide that the option or grant price is
not to be less than the fair market value on the date of grant. Under the
Incentive and Non-Employee Directors Plans, an option's maximum term is ten
years. As of December 31, 1997, there have been no options granted under these
plans with terms greater than five years. An option's maximum term under the
Consultants Plan is five years.
Stock option activity under the option plans granted for the periods indicated
is as follows:
<TABLE>
<CAPTION>
Weighted-average
Shares Option Price Exercise Price
----------------- ---------------- --------------------
<S> <C> <C> <C>
Balance, February 28, 1995 2,416,579 $2.34 to $17.00 $6.54
Granted 678,400 $3.50 to $ 4.42 $4.04
Canceled (257,080) $8.25 $8.25
Expired (382,060) $2.64 to $16.23 $9.82
Exercised (4,166) $2.64 to $ 2.68 $2.68
---------
Balance, December 31, 1995 2,451,673 $2.34 to $17.00 $5.16
Granted 187,200 $1.90 to $ 3.77 $3.30
Expired (451,940) $2.50 to $17.00 $8.69
Exercised (4,002) $3.00 to $ 3.50 $2.68
---------
Balance, December 31, 1996 2,182,931 $1.90 to $ 9.59 $4.29
Granted 885,019 $1.91 to $ 4.00 $2.39
Expired (572,961) $2.23 to $ 9.59 $5.77
---------
Balance, December 31, 1997 2,494,989 $1.90 to $ 6.90 $3.27
=========
</TABLE>
F-17
<PAGE>
Options exercisable at December 31, 1997, and December 31, 1996, were 1,217,617
and 1,169,715, respectively. The weighted-average remaining contractual life on
options outstanding at December 31, 1997, was 2.5 years. There were 6,500
exercisable options outstanding at a price below the fair market value of the
Company's common stock at December 31, 1997.
The following is a summary of fixed stock options outstanding at December 31,
1997:
<TABLE>
<CAPTION>
Options outstanding:
Number Weighted-average
Range of Outstanding at Remaining Weighted-average
Exercise Prices December 31, 1997 Contractual Life Exercise Price
- --------------------- ----------------- ----------------- --------------------
<S> <C> <C> <C>
$1.90 to $2.50 837,370 3.88 years $2.19
$2.51 to $3.50 481,359 1.90 years $2.90
$3.51 to $5.00 1,065,946 1.94 years $4.09
$5.01 to $6.50 104,314 0.42 years $5.12
$6.51 to $8.00 6,000 0.10 years $6.85
</TABLE>
<TABLE>
<CAPTION>
Options exercisable:
Number
Range of Exercisable at Weighted-average
Exercise Prices December 31, 1997 Exercise Price
- -------------------- ---------------------- -------------------
<S> <C> <C>
$1.90 to $2.50 65,500 $2.35
$2.51 to $3.50 334,934 $2.87
$3.51 to $5.00 706,869 $4.11
$5.01 to $6.50 104,314 $5.12
$6.51 to $8.00 6,000 $6.85
</TABLE>
Employee Stock Purchase Plan: The Company's Stock Purchase Plan provides for
the sale of up to 2,000,000 shares of common stock to all eligible employees.
Employees may elect to withhold up to 10% of annual base earnings for the
purchase of the Company's common stock. Options to purchase shares of common
stock are offered quarterly with a purchase price equal to 90% of the lower of
the closing market price on the first trading day of the month preceding the
quarter or the last trading day of the quarter. During the years ended December
31, 1997 and 1996, 101,927 and 140,411 shares were sold under the plan,
respectively.
Pro Forma Compensation Cost: No compensation cost has been recognized for the
Stock Plans in the periods presented. Had compensation cost for awards granted
under the Company's Stock Plans been recorded, net income (loss) would have been
reduced to $(5.7) million [$(0.26) per share], $5.2 million [$0.14 per share],
and $1.9 million [$0.01 per share] for the years ended December 31, 1997, 1996,
and the ten months ended December 31, 1995, respectively. Per share amounts are
for both basic and diluted earnings per share.
The fair value of each option grant under the fixed-price option plans and the
fair value of the employees' purchase rights under the employee stock purchase
plan are estimated on the date of grant for pro forma computations using the
Black-Scholes option-pricing model. The dividend yield was assumed to be zero
for both periods below. The weighted-average of all other significant
assumptions for and the weighted average fair value of grants made during the
years ended December 31, 1997, 1996, and the ten months ended December 31, 1995,
are as follows:
F-18
<PAGE>
<TABLE>
<CAPTION>
Year Ended Ten Months
--------------------------------------- Ended
December 31, December 31, December 31,
1997 1996 1995
----------------- ----------------- ----------------------
<S> <C> <C> <C>
Fixed Stock Option Plans:
Volatility 61.4% 63.4% 58.9%
Risk-free interest rate 6.2% 5.8% 6.5%
Expected lives 5.0 years 5.0 years 4.6 years
Fair value of grants $1.22 $1.92 $2.30
Employee Stock Purchase Plan:
Volatility 61.4% 63.4% 58.9%
Risk-free interest rate 5.1% 5.0% 5.5%
Expected lives 0.3 years 0.3 years 0.3 years
Fair value of grants $1.40 $0.95 $0.66
</TABLE>
12. Earnings Per Share
Options to purchase 2,494,989 shares of common stock with a weighted-average
remaining contractual life of 2.5 years, exercise prices ranging from $1.90 to
$6.90 per share, and a weighted-average exercise price of $3.27 per share, were
outstanding at December 31, 1997, and were not included in the computation of
diluted earnings per share for 1997 due to their anti-dilutive impact. In
addition, warrants to purchase 980,088 shares of common stock with a weighted-
average remaining contractual life of 1.23 years, exercise prices ranging from
$2.30 to $6.87 per share, and a weighted-average exercise price of $5.24 per
share, were outstanding at December 31, 1997, and were not included in the
computation of diluted earnings per share due to their anti-dilutive impact. On
February 27, 1998, pursuant to the Stock Incentive Plan, the Company's Board of
Directors approved the issuance of 203,860 shares of restricted stock and
438,000 options to buy shares of common stock with an exercise price of $2.50.
13. Employee Benefit Plans
The Company and certain of its subsidiaries sponsor a number of benefit plans
covering substantially all employees who meet minimum length of service
requirements. These plans include a defined-contribution retirement plan,
profit-sharing plan that provides for contributions by the Company based on a
percentage of covered compensation, and a 401(k) Plan that allows employees to
defer portions of their salary, subject to certain limitations. Total expense
for these plans for the years ended December 31, 1997 and 1996, and the ten
months ended December 31, 1995, was $7,266,000, $7,427,000, and $5,711,000,
respectively. As of December 31, 1997, the Retirement Plan, 401(k) Plan, and a
discontinued Employee Stock Ownership Plan owned 862,480, 368,934, and 1,680,178
shares, respectively, of the Company's common stock.
Certain of the Company's employees are covered by union-sponsored, collectively
bargained, multi-employer benefit plans. Contributions and costs are determined
in accordance with the provisions of negotiated labor contracts or terms of the
plans. Pension expense for these plans was $482,000, $9,097,000, and $6,384,000
for the years ended December 31, 1997 and 1996, and the ten months ended
December 31, 1995, respectively.
F-19
<PAGE>
14. Other Postretirement Benefits
The Company provides certain postretirement benefits to a limited group of
retirees. The cost of these benefits is funded when paid and limited to a fixed
amount per participant.
The funded status of the plan is as follows (in thousands):
<TABLE>
<CAPTION>
December 31,
--------------------------------------
1997 1996
----------------- -----------------
Accumulated postretirement benefit
<S> <C> <C>
obligation (APBO) $ 5,508 $ 6,161
Unamortized transition obligation (9,467) (10,447)
Unrecognized net gain 6,263 6,617
------- --------
Accrued postretirement benefit cost $ 2,304 $ 2,331
======= ========
</TABLE>
The net periodic postretirement benefit cost consists of the following (in
thousands):
<TABLE>
<CAPTION>
Year Year Ten Months
Ended Ended Ended
December 31, December 31, December 31,
1997 1996 1995
--------------- --------------- ---------------
<S> <C> <C> <C>
Interest cost $ 412 $ 525 $ 541
Amortization of transition obligation 980 980 830
Amortization of unrecognized net gain (563) (409) (214)
----- ------ ------
Net periodic postretirement benefit cost $ 829 $1,096 $1,157
===== ====== ======
</TABLE>
All service cost related to the participants' benefits is included in the
transition obligation. The discount rate at both December 31, 1997 and 1996,
was 7%. The 1997 health care cost trend rate is 5%, effective until 2013 when
the cost will be in excess of the Company's maximum obligation. If the trend
rate were increased by 1% for each year, the APBO as of December 31, 1997, would
increase by approximately $180,000 or 3%.
15. Business Segment, Major Customers, and Foreign Operations
Business Segment: The Company operates predominantly in one industry segment in
which it provides engineering, construction, program management, and consulting
services.
Major Customers: Gross revenue from the U.S. Department of Energy was
$622,190,000, $866,361,000, and $623,149,000 for the years ended December 31,
1997 and 1996, and the ten months ended December 31, 1995, respectively.
Foreign Operations: Gross revenue and operating income from foreign operations
and foreign assets of all consolidated subsidiaries and branches were as follows
(in thousands):
F-20
<PAGE>
<TABLE>
<CAPTION>
Year Year Ten Months
Ended Ended Ended
December 31, December 31, December 31,
1997 1996 1995
----------------- ------------------ --------------
<S> <C> <C> <C>
Foreign gross revenue:
Europe $ 86,937 $ 37,105 $ 14,237
Asia-Pacific 44,871 31,327 28,002
Other 25,876 3,676 1,189
---------- ---------- --------
157,684 72,108 43,428
Domestic gross revenue 950,432 1,176,335 873,316
---------- ---------- --------
Total gross revenue $1,108,116 $1,248,443 $916,744
========== ========== ========
Foreign operating income (loss):
Europe $ 11,153 $ 1,346 $ 1,426
Asia-Pacific 2,209 1,002 2,511
Other 785 (422) 20
---------- ---------- --------
14,147 1,926 3,957
Domestic operating income 3,922 19,254 13,548
---------- ---------- --------
Total operating income $ 18,069 $ 21,180 $ 17,505
========== ========== ========
Foreign assets:
Europe $ 34,900 $ 17,666 $ 12,905
Asia-Pacific 15,071 13,562 11,024
Other 833 24 137
---------- ---------- --------
50,804 31,252 24,066
Domestic assets 347,662 334,721 345,451
---------- ---------- --------
Total assets $ 398,466 $ 365,973 $369,517
========== ========== ========
</TABLE>
16. Subsequent Acquisition
On February 18, 1998, the Company's Board of Directors approved the acquisition
of ICT Spectrum Constructors, Inc., a contractor based in Boise, Idaho,
specializing in construction management of fabrication plants and other
facilities for semiconductor and microelectronics customers. The transaction
closed on March 17, 1998. Each share of ICT Spectrum stock was exchanged for
shares of ICF Kaiser stock, resulting in the issuance of 1.5 million shares of
ICF Kaiser common stock. The exchanged ICF Kaiser shares carry the guarantee
that the fair market value of each share of stock will reach $5.36 by March 1,
2001. In the event the fair market value does not attain the guaranteed level,
the Company is obligated to make up the shortfall either through the payment of
cash or by issuing additional shares of common stock, depending upon the
Company's preference. Given that the fair market value of the stock is
significantly below the amount of the guarantee and that the Company's current
Revolver and indentures restrict the amount of cash that can be used to make up
the shortfall, the Company will be required to assume that any
F-21
<PAGE>
periodic shortfall from the guaranteed price will be settled through the
issuance of additional shares of common stock. Total contingently issuable
shares of common stock, however, cannot exceed 1.5 million. Any additional
shares assumed issued will be included in the diluted earnings per share
calculations for applicable future reporting periods until the earlier of the
contingency resolution or March 1, 2001. The exchanged shares also contain
restrictions preventing their sale prior to March 1, 2001. The acquisition will
be accounted for as a purchase and will generate approximately $5.0 million in
goodwill which will be amortized over 12 years.
17. Selected Quarterly Financial Information (Unaudited)
Financial information for the quarters in 1997 and 1996 is presented in the
following tables (in thousands, except per share amounts):
<TABLE>
<CAPTION>
Year Ended December 31, 1997:
Fourth Third Second First
Quarter Quarter Quarter Quarter
---------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Gross revenue $268,400 $332,173 $241,586 $265,957
Service revenue 96,424 116,103 109,581 103,978
Operating income (loss) (3,112) 7,194 7,389 6,598
Net income (loss) (5,157) 120 3 47
Basic earnings (loss) per share $ (0.23) $ 0.01 $ - $ -
Dilutive earnings (loss) per share $ (0.23) $ 0.01 $ - $ -
</TABLE>
<TABLE>
<CAPTION>
Year Ended December 31, 1996:
Fourth Third Second First
Quarter Quarter Quarter Quarter
---------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Gross revenue $225,033 $379,971 $332,320 $311,119
Service revenue 98,469 138,780 150,342 144,525
Operating income 10 5,087 8,615 7,468
Net income 2,114 763 1,633 1,324
Basic earnings per share $ 0.07 $ 0.01 $ 0.05 $ 0.04
Dilutive earnings per share $ 0.07 $ 0.01 $ 0.05 $ 0.04
</TABLE>
At March 11, 1998, there were 22,691,174 shares of common stock outstanding
held by 1,502 holders of record.
18. Guarantor Subsidiaries
As a result of registering the Series B Senior Notes with the SEC in January
1997, the Company now is required to provide financial information for wholly
owned subsidiaries of ICF Kaiser International, Inc. (Subsidiary Guarantors)
which unconditionally guarantee the payment of the principal, premium, if any,
and interest on the Company's Subordinated Notes, and the Series B Senior Notes
(see Note 5). The Subsidiary Guarantors are Cygna Consulting Engineers and
Project Management, Inc; ICF Kaiser Government Programs, Inc; PCI Operating
Company, Inc; Systems Applications International, Inc; EDA, Incorporated; Global
Trade & Investment, Inc; ICF Kaiser Europe, Inc; ICF Kaiser/Georgia Wilson, Inc;
ICF Kaiser Overseas Engineering, Inc;
F-22
<PAGE>
ICF Kaiser Engineers Pacific, Inc; ICF Kaiser Remediation Company; and
ICF Kaiser Systems, Inc.
Presented below is condensed consolidating financial information for ICF Kaiser
International, Inc. (Parent Company), the Subsidiary Guarantors, and the Non-
Guarantor Subsidiaries as of and for the years ended December 31, 1997 and 1996,
and the ten months ended December 31, 1995.
Investments in subsidiaries have been presented using the equity method of
accounting. The Company does not have a formal tax-sharing arrangement with its
subsidiaries and has allocated taxes to its subsidiaries based on the Company's
overall effective tax rate. Therefore, the Subsidiary Guarantors are combined
in the presentation below.
F-23
<PAGE>
ICF Kaiser International, Inc. and Subsidiaries
CONDENSED CONSOLIDATING BALANCE SHEET
December 31, 1997
(In thousands)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
ICF Kaiser
Parent Subsidiary Non-Guarantor International, Inc.
Company Guarantors Subsidiaries Eliminations Consolidated
--------- ---------- ------------- ------------ -------------------
<S> <C> <C> <C> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents $ (5,665) $ 10,259 $ 14,604 $ - $ 19,198
Contract receivables, net 3,210 97,055 163,765 - 264,030
Intercompany receivables, net 136,629 1,989 (138,618) - -
Prepaid expenses and other
current assets 4,181 479 9,830 - 14,490
Deferred income taxes 14,749 - 532 - 15,281
-------- -------- --------- ------------ --------
Total Current Assets 153,104 109,782 50,113 - 312,999
-------- -------- --------- ------------ --------
Fixed Assets
Furniture, equipment, and
leasehold improvements 9,728 2,505 39,213 - 51,446
Less depreciation and amortization (5,361) (2,275) (32,012) - (39,648)
-------- -------- --------- ------------ --------
4,367 230 7,201 - 11,798
-------- -------- --------- ------------ --------
Other Assets
Goodwill, net - 4,793 42,530 - 47,323
Other 50,528 1,847 22,082 (48,111) 26,346
-------- -------- --------- ------------ --------
50,528 6,640 64,612 (48,111) 73,669
-------- -------- --------- ------------ --------
Total Assets $207,999 $116,652 $ 121,926 $(48,111) $398,466
======== ======== ========= ============ ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Current portion of long-term debt $ - $ - $ 15 $ - $ 15
Accounts payable and other
accrued expenses 23,186 80,026 35,121 - 138,333
Accrued salaries and employee
benefits 6,938 16,722 13,994 - 37,654
Other 4,138 905 41,433 - 46,476
-------- -------- --------- ------------ --------
Total Current Liabilities 34,262 97,653 90,563 - 222,478
Long-term Liabilities
Long-term debt, less current portion 141,004 - - - 141,004
Other 2,437 26 2,123 - 4,586
-------- -------- --------- ------------ --------
Total Liabilities 177,703 97,679 92,686 - 368,068
-------- -------- --------- ------------ --------
Minority Interests in Subsidiaries - 3,071 - - 3,071
Shareholders' Equity
Common Stock 214 149 128 (266) 225
Additional Paid-in Capital 66,888 2,796 58,548 (61,116) 67,116
Accumulated Earnings (Deficit) (34,384) 13,221 (26,333) 13,271 (34,225)
Other Equity (2,422) (264) (3,103) - (5,789)
-------- -------- --------- ------------ --------
Total Shareholders' Equity 30,296 15,902 29,240 (48,111) 27,327
-------- -------- --------- ------------ --------
Total Liabilities and
Shareholders' Equity $207,999 $116,652 $ 121,926 $(48,111) $398,466
======== ======== ========= ============ ========
</TABLE>
F-24
<PAGE>
<TABLE>
<CAPTION>
ICF Kaiser International, Inc. and Subsidiaries
CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
Year Ended December 31, 1997
(In thousands)
- ------------------------------------------------------------------------------------------------------------------------
ICF Kaiser
Parent Subsidiary Non-Guarantor International, Inc.
Company Guarantors Subsidiaries Eliminations Consolidated
-------- ---------- ------------- ------------ -------------------
<S> <C> <C> <C> <C> <C>
GROSS REVENUE $ 727 $ 608,467 $ 498,922 $ - $1,108,116
Subcontract and direct material costs (608) (428,550) (248,273) - (677,431)
Provision for contract loss - - (6,900) - (6,900)
Equity in income of joint ventures and
affiliated companies and subsidiaries (6,059) - 2,562 5,798 2,301
------- --------- --------- ----------- ----------
SERVICE REVENUE (5,940) 179,917 246,311 5,798 426,086
OPERATING EXPENSES
Operating expenses (3,982) 156,315 246,089 - 398,422
Depreciation and amortization 2,350 1,092 6,153 - 9,595
------- --------- --------- ----------- ----------
OPERATING INCOME (4,308) 22,510 (5,931) 5,798 18,069
OTHER INCOME (EXPENSE)
Gain on Sale of Investment - - 1,018 - 1,018
Interest and investment income 570 671 567 (58) 1,750
Interest expense (570) (1,004) (16,755) 53 (18,276)
------- --------- --------- ----------- ----------
INCOME (LOSS) BEFORE INCOME TAXES AND
MINORITY INTERESTS (4,308) 22,177 (21,101) 5,793 2,561
Income tax provision (benefit) 679 4,624 (8,622) - (3,319)
------- --------- --------- ----------- ----------
INCOME BEFORE MINORITY INTERESTS (4,987) 17,553 (12,479) 5,793 5,880
Minority interests in net income of subsidiaries - 10,867 - - 10,867
------- --------- --------- ----------- ----------
NET INCOME AVAILABLE FOR
COMMON SHAREHOLDERS $(4,987) $ 6,686 $ (12,479) $5,793 $ (4,987)
======= ========= ========= =========== ==========
</TABLE>
F-25
<PAGE>
<TABLE>
<CAPTION>
ICF Kaiser International, Inc. and Subsidiaries
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
Year Ended December 31, 1997
(In thousands)
- -----------------------------------------------------------------------------------------------------------------------------------
ICF Kaiser
Parent Subsidiary Non-Guarantor International, Inc.
Company Guarantors Subsidiaries Eliminations Consolidated
---------- ---------- -------------- ------------ -------------------
<S><C> <C> <C> <C> <C> <C> <C>
Net Cash Provided by (Used in) Operating Activities $ 21,088 $ 9,389 $(3,465) $ 494 $ 27,506
--------- -------- ------- ----------- ---------
INVESTING ACTIVITIES
Sales of subsidiaries and subsidiary assets - 2,763 14,265 - 17,028
Purchases of fixed assets (1,871) (53) (2,964) - (4,888)
Investments in subsidiaries and affiliates,
net of cash acquired - (100) (3,974) - (4,074)
--------- -------- ------- ----------- ---------
Net Cash Provided by (Used) in Investing Activities (1,871) 2,610 7,327 - 8,066
--------- -------- ------- ----------- ---------
FINANCING ACTIVITIES
Borrowings under credit facility 104,500 - - - 104,500
Principal payments on credit facility (121,000) - - - (121,000)
Distribution of income to minority interest - (13,950) - - (13,950)
Proceeds from issuances of common stock 213 - - - 213
Repurchases of common stock (251) - - - (251)
Debt issuance costs (624) - - - (624)
--------- -------- ------- ----------- ---------
Net Cash Used in Financing Activities (17,162) (13,950) - - (31,112)
--------- -------- ------- ----------- ---------
Effect of Exchange Rate Changes on Cash - - (2,023) - (2,023)
--------- -------- ------- ----------- ---------
Increase (Decrease) in Cash and Cash Equivalents 2,055 (1,951) 1,839 494 2,437
Cash and Cash Equivalents at Beginning of Period (7,720) 12,210 12,765 (494) 16,761
--------- -------- ------- ----------- ---------
Cash and Cash Equivalents at End of Period $ (5,665) $ 10,259 $14,604 $ - $ 19,198
========= ======== ======= =========== =========
</TABLE>
F-26
<PAGE>
<TABLE>
<CAPTION>
ICF Kaiser International, Inc. and Subsidiaries
CONDENSED CONSOLIDATING BALANCE SHEET
December 31, 1996
(In thousands)
- -----------------------------------------------------------------------------------------------------------------------------------
ICF Kaiser
Parent Subsidiary Non-Guarantor International, Inc.
Company Guarantors Subsidiaries Eliminations Consolidated
-------- ---------- ------------- ------------ -------------------
<S> <C> <C> <C> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents $ (7,720) $12,210 $ 12,765 $ (494) $ 16,761
Contract receivables, net 183 80,803 142,292 - 223,278
Intercompany receivables, net 155,653 (8,102) (147,551) - -
Prepaid expenses and other current assets 4,509 383 22,535 (331) 27,096
Deferred income taxes 12,504 - (2,765) - 9,739
-------- ------- --------- -------- --------
Total Current Assets 165,129 85,294 27,276 (825) 276,874
-------- ------- --------- -------- --------
Fixed Assets
Furniture, equipment, and leasehold improvements 7,243 2,453 38,714 - 48,410
Less depreciation and amortization (3,430) (2,203) (31,575) - (37,208)
-------- ------- --------- -------- --------
3,813 250 7,139 - 11,202
-------- ------- --------- -------- --------
Other Assets
Goodwill, net - 5,182 44,517 - 49,699
Other 58,494 3,377 20,666 (54,339) 28,198
-------- ------- --------- -------- --------
58,494 8,559 65,183 (54,339) 77,897
-------- ------- --------- -------- --------
Total Assets $227,436 $94,103 $ 99,598 $(55,164) $365,973
======== ======= ========= ======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Current portion of long-term debt $ - $ - $ 43 $ - $ 43
Accounts payable and other accrued expenses 16,467 54,012 18,679 - 89,158
Accrued salaries and employee benefits 10,242 22,820 12,717 - 45,779
Other 4,454 1,365 22,208 (31) 27,996
-------- ------- --------- -------- --------
Total Current Liabilities 31,163 78,197 53,647 (31) 162,976
Long-term Liabilities
Long-term debt, less current portion 157,306 - - (787) 156,519
Other 2,731 285 2,416 - 5,432
-------- ------- --------- -------- --------
Total Liabilities 191,200 78,482 56,063 (818) 324,927
-------- ------- --------- -------- --------
Minority Interests in Subsidiaries - 6,154 - - 6,154
Shareholders' Equity
Common Stock 223 147 128 (275) 223
Additional Paid-in Capital 66,983 2,796 42,047 (44,843) 66,983
Accumulated Earnings (Deficit) (29,238) 6,530 2,698 (9,228) (29,238)
Other Equity (1,732) (6) (1,338) - (3,076)
-------- ------- --------- -------- --------
Total Shareholders' Equity 36,236 9,467 43,535 (54,346) 34,892
-------- ------- --------- -------- --------
Total Liabilities and Shareholders' Equity $227,436 $94,103 $ 99,598 $(55,164) $365,973
======== ======= ========= ======== ========
</TABLE>
F-27
<PAGE>
<TABLE>
<CAPTION>
ICF Kaiser International, Inc. and Subsidiaries
CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
Year Ended December 31, 1996
(In thousands)
- ------------------------------------------------------------------------------------------------------------------------
ICF Kaiser
Parent Subsidiary Non-Guarantor International, Inc.
Company Guarantors Subsidiaries Eliminations Consolidated
-------- ---------- ------------- ------------ -------------------
<S> <C> <C> <C> <C> <C>
GROSS REVENUE $ 2,024 $ 565,858 $ 680,561 $ - $1,248,443
Subcontract and direct material costs (777) (385,014) (334,551) - (720,342)
Equity in income of joint ventures and
affiliated companies and subsidiaries 5,081 - 5,825 (6,891) 4,015
------- --------- --------- ------- ----------
SERVICE REVENUE 6,328 180,844 351,835 (6,891) 532,116
OPERATING EXPENSES
Operating expenses (1,835) 168,247 334,179 (3) 500,588
Depreciation and amortization 2,065 1,636 6,647 - 10,348
------- --------- --------- ------- ----------
OPERATING INCOME 6,098 10,961 11,009 (6,888) 21,180
OTHER INCOME (EXPENSE)
Gain on Sale of Investment - 1,649 7,735 - 9,384
Interest and investment income 284 395 844 (269) 1,254
Interest expense (284) (1,089) (16,169) 208 (17,334)
------- --------- --------- ------- ----------
INCOME (LOSS) BEFORE INCOME TAXES AND
MINORITY INTERESTS 6,098 11,916 3,419 (6,949) 14,484
Income tax provision (benefit) 264 1,243 1,100 - 2,607
------- --------- --------- ------- ----------
INCOME BEFORE MINORITY INTERESTS 5,834 10,673 2,319 (6,949) 11,877
Minority interests in net income of subsidiaries - 6,043 - - 6,043
------- --------- --------- ------- ----------
NET INCOME 5,834 4,630 2,319 (6,949) 5,834
Preferred stock dividends and accretion 2,178 - - - 2,178
------- --------- --------- ------- ----------
NET INCOME AVAILABLE FOR
COMMON SHAREHOLDERS $ 3,656 $ 4,630 $ 2,319 $(6,949) $ 3,656
======= ========= ========= ======= ==========
</TABLE>
F-28
<PAGE>
<TABLE>
<CAPTION>
ICF Kaiser International, Inc. and Subsidiaries
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
Year Ended December 31, 1996
(In thousands)
- -----------------------------------------------------------------------------------------------------------------------------------
ICF Kaiser
Parent Subsidiary Non-Guarantor International, Inc.
Company Guarantors Subsidiaries Eliminations Consolidated
---------- ---------- ------------- ------------ -------------------
<S> <C> <C> <C> <C> <C>
Net Cash Provided by (Used in) Operating Activities $(16,387) $14,075 $ 2,650 $ 870 $ 1,208
-------- ------- ------- ------- --------
INVESTING ACTIVITIES
Purchases of fixed assets (2,002) (227) (2,703) - (4,932)
Investments in subsidiaries and affiliates,
net of cash acquired - (225) (1,092) - (1,317)
Sale of fixed assets - - 22 - 22
-------- ------- ------- ------- --------
Net Cash Used in Investing Activities (2,002) (452) (3,773) - (6,227)
-------- ------- ------- ------- --------
FINANCING ACTIVITIES
Borrowings under credit facility 114,000 - - - 114,000
Principal payments on credit facility (98,500) - - - (98,500)
Proceeds from issuance of senior notes and related warrants 14,700 - - - 14,700
Repurchases of preferred stock (20,000) - - - (20,000)
Distribution of income to minority interest - (2,428) - - (2,428)
Proceeds from issuances of common stock 383 - - - 383
Preferred stock dividends (2,615) - - - (2,615)
Debt issuance costs (1,427) - - - (1,427)
Other financing activities - - 924 - 924
-------- ------- ------- ------- --------
Net Cash Used in Financing Activities 6,541 (2,428) 924 - 5,037
-------- ------- ------- ------- --------
Effect of Exchange Rate Changes on Cash - - 386 - 386
-------- ------- ------- ------- --------
Increase (Decrease) in Cash and Cash Equivalents (11,848) 11,195 187 870 404
Cash and Cash Equivalents at Beginning of Period 4,128 1,015 12,578 (1,364) 16,357
-------- ------- ------- ------- --------
Cash and Cash Equivalents at End of Period $ (7,720) $12,210 $12,765 $ (494) $ 16,761
======== ======= ======= ======= ========
</TABLE>
F-29
<PAGE>
<TABLE>
<CAPTION>
ICF Kaiser International, Inc. and Subsidiaries
CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
Ten Months Ended December 31, 1995
(In thousands)
- ----------------------------------------------------------------------------------------------------------------------------------
ICF Kaiser
Parent Subsidiary Non-Guarantor International, Inc.
Company Guarantors Subsidiaries Eliminations Consolidated
------------ ------------- -------------- ------------- -------------------
<S> <C> <C> <C> <C> <C>
GROSS REVENUE $ 1,539 $ 288,741 $ 626,464 $ - $ 916,744
Subcontract and direct material costs (1,037) (192,267) (300,667) - (493,971)
Equity in income of joint ventures and
affiliated companies and subsidiaries 754 - 2,962 (593) 3,123
------- --------- --------- ----- ---------
SERVICE REVENUE 1,256 96,474 328,759 (593) 425,896
OPERATING EXPENSES
Operating expenses (2,502) 91,934 311,157 (55) 400,534
Depreciation and amortization 1,349 946 6,062 - 8,357
Unusual items, net 1,700 - (2,200) - (500)
------- --------- --------- ----- ---------
OPERATING INCOME 709 3,594 13,740 (538) 17,505
OTHER INCOME (EXPENSE)
Interest income 488 269 1,319 (23) 2,053
Interest expense 1,147 (491) (13,934) 23 (13,255)
------- --------- --------- ----- ---------
INCOME BEFORE INCOME TAXES AND
MINORITY INTERESTS 2,344 3,372 1,125 (538) 6,303
Income tax provision (benefit) 92 434 1,565 - 2,091
------- --------- --------- ----- ---------
INCOME BEFORE MINORITY INTERESTS 2,252 2,938 (440) (538) 4,212
Minority interests in net income of subsidiaries - 2,039 (79) - 1,960
------- --------- --------- ----- ---------
NET INCOME 2,252 899 (361) (538) 2,252
Preferred stock dividends and accretion 1,803 - - - 1,803
------- --------- --------- ----- ---------
NET INCOME AVAILABLE FOR
COMMON SHAREHOLDERS $ 449 $ 899 $ (361) $(538) $ 449
======= ========= ========= ===== =========
</TABLE>
F-30
<PAGE>
ICF KAISER INTERNATIONAL, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
Ten Months Ended December 31, 1995
(In thousands)
================================================================================
<TABLE>
<CAPTION>
ICF Kaiser
Parent Subsidiary Non-Guarantor International, Inc.
Company Guarantors Subsidiaries Eliminations Consolidated
----------- ---------- ------------- ------------ --------------------
<S> <C> <C> <C> <C> <C>
Net Cash Provided by (Used in) Operating Activities $ (6,297) $1,136 $ 468 $(1,364) $(6,057)
-------- ------ ------- ------------ --------
INVESTING ACTIVITIES
Purchases of fixed assets (92) (279) (1,388) - (1,759)
Investments in subsidiaries and affiliates,
net of (1,000) (350) (660) - (2,010)
cash
acquired
Sale of subsidiaries and subsidiary assets - - 735 - 735
Sale of fixed assets - - 1,035 - 1,035
-------- ------ ------- ------------ --------
Net Cash Used in Investing Activities (1,092) (629) (278) - (1,999)
-------- ------ ------- ------------ --------
FINANCING ACTIVITIES
Borrowings under credit facility 16,000 - - - 16,000
Principal payments on credit facility (16,000) - (1,173) - (17,173)
Subsidiary capital contribution from minority interest - 500 - - 500
Proceeds from issuances of common stock 406 - - - 406
Repurchases of common stock (257) - - - (257)
Preferred stock dividends (1,471) - - - (1,471)
Other financing activities - - (1,308) - (1,308)
-------- ------ ------- ------------ --------
Net Cash Used in Financing Activities (1,322) 500 (2,481) - (3,303)
-------- ------ ------- ------------ --------
Effect of Exchange Rate Changes on Cash - - (517) - (517)
-------- ------ ------- ------------ --------
Increase (Decrease) in Cash and Cash Equivalents (8,711) 1,007 (2,808) (1,364) (11,876)
Cash and Cash Equivalents at Beginning of Period 12,839 8 15,386 - 28,233
-------- ------ ------- ------------ --------
Cash and Cash Equivalents at End of Period $ 4,128 $1,015 $12,578 $(1,364) $ 16,357
======== ====== ======= ============ ========
</TABLE>
F-31
<PAGE>
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
ICF KAISER INTERNATIONAL, INC AND SUBSIDIARIES
(in thousands)
<TABLE>
<CAPTION>
Column A Column B Column C Column D Column E
- ----------------------------------------------------------------------------------------------------------------------------------
Additions
------------------------------
Balance at beginning Charged to costs Balance at end
Description of Period and expenses Other Deductions of period
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Year Ended December 31, 1997
Deducted from asset account:
Allowance for doubtful accounts $ 9,450 $ 1,195 1,150 (5) 4,653 (1) $ 7,142
Deducted from asset account and
included in other liabilities:
provision for future losses on contracts 1,517 494 812 1,199
------------------------------------------------------------------------------------
$10,967 $ 1,689 $ 1,150 $ 5,465 $ 8,341
====================================================================================
Year Ended December 31, 1996
Deducted from asset account:
Allowance for doubtful accounts $ 9,435 $ 1,881 175 (3) 3,490 (1) $ 9,450
1,449 (5)
Deducted from asset account and
included in other liabilities:
provision for future losses on contracts 2,274 300 491 (4) 1,548 (2) 1,517
------------------------------------------------------------------------------------
$11,709 $ 2,181 $ 2,115 $ 5,038 $10,967
====================================================================================
Ten Months Ended December 31, 1995
Deducted from asset account:
Allowance for doubtful accounts $ 9,864 $ 601 $ 62 (3) $ 1,092 (1) $ 9,435
Deducted from asset account and
included in other liabilities:
provision for future losses on contracts 843 1,119 545 (4) 233 (2) 2,274
------------------------------------------------------------------------------------
$10,707 $ 1,720 $ 607 $ 1,325 $11,709
====================================================================================
</TABLE>
(1) Reflects amounts written off against the allowance and related accounts
receivable accounts and settlement of doubtful accounts.
(2) Reflects losses charged against the provision for contract losses.
(3) Reflects net allowance for doubtful accounts from the purchase of a
subsidiary.
(4) Reflects provision for future contract losses provided for in connection
with the purchase of a subsidiary.
(5) Reflects other additions to reserves.
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. 3 -- ARTICLES OF INCORPORATION AND BY-LAWS OF THE REGISTRANT
- ------------------------------------------------------------------------
3(a) Restated Certificate of Incorporation of ICF Kaiser International,
Inc. (restated through June 26, 1993) (Incorporated by reference to Exhibit No.
3(a) to Quarterly Report on Form 10-Q (Registrant No. 1- 12248) for the second
quarter of fiscal 1994 filed with the Commission on October 15, 1993)
3(b) Amended and Restated By-laws of ICF Kaiser International, Inc. (as
amended through June 23, 1995) (Incorporated by reference to Exhibit No. 3(b) to
Quarterly Report on Form 10-Q Registrant No. 1-12248 for the second quarter of
fiscal 1995 filed with the Commission on October 13, 1995)
Exhibit No. 3 -- Articles of Incorporation and By-laws of the Subsidiary
- ------------------------------------------------------------------------
Guarantors
- ----------
3(c) Articles of Incorporation of Cygna Consulting Engineers and Project
Management, Inc. (Incorporated by reference to Exhibit No. 3(c) to Registration
Statement on Form S-1 Registration No. 333-19519 filed with the Commission on
January 10, 1997)
3(d) By-laws of Cygna Consulting Engineers and Project Management, Inc.
(Incorporated by reference to Exhibit No. 3(d) to Registration Statement on
Form S-1 Registration No. 333-19519 filed with the Commission on January 10,
1997)
3(e) Certificate of Incorporation of ICF Kaiser Government Programs, Inc.
(Incorporated by reference to Exhibit No. 3(e) to Registration Statement on Form
S-1 Registration No. 333-19519 filed with the Commission on January 10, 1997)
3(f) By-laws of ICF Kaiser Government Programs, Inc. (Incorporated by
reference to Exhibit No. 3(f) to Registration Statement on Form S-1 Registration
No. 333-19519 filed with the Commission on January 10, 1997)
3(g) Certificate of Incorporation of PCI Operating Company, Inc.
(Incorporated by reference to Exhibit No. 3(g) to Registration Statement on Form
S-1 Registration No. 333-19519 filed with the Commission on January 10, 1997)
3(h) By-laws of PCI Operating Company, Inc. (Incorporated by reference to
Exhibit No. 3(h) to Registration Statement on Form S-1 Registration No. 333-
19519 filed with the Commission on January 10, 1997)
3(i) Certificate of Incorporation of Systems Applications International,
Inc. (Incorporated by reference to Exhibit No. 3(i) to Registration Statement on
Form S-1 Registration No. 333-19519 filed with the Commission on January 10,
1997)
3(j) By-laws of Systems Applications International, Inc. (Incorporated by
reference to Exhibit No. 3(j) to Registration Statement on Form S-1
Registration No. 333-19519 filed with the Commission on January 10, 1997)
3(k) Certificate of Incorporation of EDA, Incorporated
3(l) Amended and Restated By-laws of EDA, Incorporated
3(m) Certificate of Incorporation of ICF Kaiser Systems, Inc.
3(n) By-laws of ICF Kaiser Systems, Inc.
3(o) Certificate of Incorporation of Global Trade & Investment, Inc.
3(p) Amended and Restated By-laws of Global Trade & Investment, Inc.
<PAGE>
3(q) Certificate of Incorporation of ICF Kaiser Europe, Inc.
3(r) By-laws of ICF Kaiser Europe, Inc.
3(s) Certificate of Incorporation of ICF Kaiser / Georgia Wilson, Inc.
3(t) By-laws of ICF Kaiser / Georgia Wilson, Inc.
3(u) Certificate of Incorporation of ICF Kaiser Overseas Engineering, Inc.
3(v) Amended and Restated By-laws of ICF Kaiser Overseas Engineering, Inc.
3(w) Certificate of Incorporation of ICF Kaiser Engineers Pacific, Inc.
3(x) Amended and Restated By-laws of ICF Kaiser Engineers Pacific, Inc.
3(y) Certificate of Incorporation of ICF Kaiser Remediation Company
3(z) By-laws of ICF Kaiser Remediation Company
Exhibit No. 4 -- Instruments Defining the Rights of Security Holders, including
- -------------------------------------------------------------------------------
Indentures
- ----------
4(a) Indenture dated as of January 11, 1994, between ICF Kaiser
International, Inc. and The Bank of New York, as Trustee (Incorporated by
reference to Exhibit No. 4(a) to Quarterly Report on Form 10-Q Registrant No. 1-
12248 for the third quarter of fiscal 1994 filed with the Commission on January
14, 1994)
1. First Supplemental Indenture dated as of February 17, 1995.
(Incorporated by reference to Exhibit No. 4(a)(1) to Annual Report on Form 10-K
Registrant No. 1-12248 for fiscal year 1995 filed with the Commission on May 23,
1995)
2. Second Supplemental Indenture dated September 1, 1995 (Incorporated by
reference to Exhibit No. 4(a) (2) to Registration Statement on Form S-1
Registration No. 33-64655 filed with the Commission on November 30, 1995)
3. Third Supplemental Indenture dated October 20, 1995 (Incorporated by
reference to Exhibit No. 4(a)(3) to Registration Statement on Form S-1
Registration No. 33-64655 filed with the Commission on November 30, 1995)
4. Fourth Supplemental Indenture dated as of March 8, 1996 (Incorporated
by reference to Exhibit No. 4 (a)(4) to Transition Report on Form 10-K
Registration No. 1-12248 for the transition period from March 1, 1995 to
December 31, 1995 filed with the Commission on March 29, 1996)
5. Fifth Supplemental Indenture dated as of June 24, 1996 (Incorporated
by reference to Exhibit No. 4 (a)(5) to Registration Statement on Form S-1
Registration No. 333-16937 filed with the Commission on November 27, 1996)
6. Sixth Supplemental Indenture dated as of December 3, 1997
4(b) Form of 12% Senior Subordinated Note due 2003 (Incorporated by
reference to Exhibit No. 4(b) to Quarterly Report on Form 10-Q Registrant No. 1-
12248 for the third quarter of fiscal 1994 filed with the Commission on January
14, 1994)
4(c) Form of Common Stock Purchase Warrant expiring May 15, 1999 (as
amended and restated through January 11, 1994) (Incorporated by reference to
Exhibit No. 4(e) to Quarterly Report on Form 10-Q Registrant No. 1-12248 for the
third quarter of fiscal 1994 filed with the Commission on January 14, 1994)
<PAGE>
4(d) Rights Agreement, dated as of January 13, 1992, between ICF Kaiser
International, Inc. and Office of the Secretary, ICF Kaiser International, Inc.
as Rights Agent, including (1) Form of Certificate of Designations of Series 4
Junior Preferred Stock; (2) Form of Rights Certificate; and (3) Summary of
Rights to Purchase Preferred Stock (Incorporated by reference to Exhibit No.
4(h) to Quarterly Report on Form 10-Q Registrant No. 0-18025 for the third
quarter of fiscal 1992 filed with the Commission on January 14, 1992)
4(e) Warrant Agreement dated as of January 11, 1994, between the Registrant
and The Bank of New York, as Warrant Agent (Incorporated by reference to Exhibit
No. 4(c) to Quarterly Report on Form 10-Q Registrant No. 1-12248 for the third
quarter of fiscal 1994 filed with the Commission on January 14, 1994)
4(f) Form of Warrant expiring December 31, 1998 (Incorporated by reference
to Exhibit No. 4(d) to Quarterly Report on Form 10-Q Registrant No. 1- 12248 for
the third quarter of fiscal 1994 filed with the Commission on January 14, 1994)
4(g) Indenture dated as of December 23, 1996, between ICF Kaiser
International, Inc. and The Bank of New York, as Trustee, including Guarantees,
dated December 23, 1996, by each of the Subsidiary Guarantors (Incorporated by
reference to Exhibit No. 4(g) to Registration Statement on Form S-1 Registration
No. 333-19519 filed with the Commission on January 10, 1997)
1. First Supplemental Indenture dated as of December 3, 1997
4(h) Form of 12% Senior Note due 2003, Series B (Incorporated by reference
to Exhibit No. 4(i) to Registration Statement on Form S-1 Registration No. 333-
19519 filed with the Commission on January 10, 1997)
4(i) Warrant Agreement dated as of December 23, 1996, between ICF Kaiser
International, Inc. and The Bank of New York, as Warrant Agent (Incorporated by
reference to Exhibit No. 4(j) to Registration Statement on Form S-1
Registration No. 333-19519 filed with the Commission on January 10, 1997)
4(j) Form of Warrant expiring December 31, 1999 issued under Warrant
Agreement dated as of December 23, 1996 (Incorporated by reference to Exhibit
No. 4(k) to Registration Statement on Form S-1 Registration No. 333-19519 filed
with the Commission on January 10, 1997)
Exhibit No. 10 -- Material Contracts
- ------------------------------------
10(a) Amended and Restated Credit Agreement dated as of December 3, 1997,
with CoreStates Bank N.A., as agent
1. Amendment No. 1 dated as of March 12, 1998
10(b) Amended and Restated Security Agreement dated as of December 3, 1997,
with CoreStates Bank N.A., as agent
10(c) ICF Kaiser International, Inc. Employee Stock Ownership Plan (as
amended and restated as of March 1, 1993) (and further amended with respect to
name change only as of June 26, 1993) (Incorporated by reference to Exhibit No.
10(c) to Quarterly Report on Form 10-Q Registrant No. 1-12248 for the second
quarter of fiscal 1994 filed with the Commission on October 15, 1993)
1. Amendment No. 1 dated April 24, 1995 (Incorporated by reference to
Exhibit No. 10(l)(1) to Annual Report on Form 10-K Registrant No. 1- 12248 for
fiscal 1995 filed with the Commission on May 23, 1995)
2. Amendment No. 2 dated December 15, 1995 (Incorporated by reference to
Exhibit No. 10(b)(2) to Transition Report on Form 10-K Registrant No. 1- 12248
for the transition period from March 1, 1995 to December 31, 1995 filed with the
Commission on March 29, 1996)
<PAGE>
3. Amendment No. 3 dated December 13, 1996 (Incorporated by reference to
Exhibit No. 10(b)(3) to Registration Statement on Form S-1 Registration No. 333-
19519 filed with the Commission on January 10, 1997)
10(d) Trust Agreement with Vanguard Fiduciary Trust Company dated as of
August 31, 1995, for ICF Kaiser International Employee Stock Ownership Plan
(Incorporated by reference to Exhibit No. 10(c) to Registration Statement on
Form S-1 Registrant No. 33-64655 filed with the Commission on November 30, 1995)
10(e) ICF Kaiser International, Inc. Retirement Plan (as amended and
restated as of March 1, 1993) (and further amended with respect to name change
only as of June 26, 1993) (Incorporated by reference to Exhibit No. 10(d) to
Quarterly Report on Form 10-Q Registrant No. 1-12248 for the second quarter of
fiscal 1994 filed with the Commission on October 15, 1993)
1. Amendment No. 1 dated April 24, 1995 (Incorporated by reference to
Exhibit No. 10(d)(1) to Annual Report on Form 10-K Registrant No. 1-12248 filed
with the Commission on May 23, 1995.)
2. Amendment No. 2 dated December 15, 1995 (Incorporated by reference to
Exhibit No. 10(d)(2) to Transition Report on Form 10-K Registrant No. 1- 12248
for the transition period from March 1, 1995 to December 31, 1995 filed with the
Commission on March 29, 1996)
3. Amendment No. 3 dated December 13, 1996 (Incorporated by reference to
Exhibit No. 10(d)(3) to Registration Statement on Form S-1 Registration No.
333-19519 filed with the Commission on January 10, 1997)
10(f) Trust Agreement with Vanguard Fiduciary Trust Company dated as of
August 31, 1995, for ICF Kaiser International, Inc. Retirement Plan
(Incorporated by reference to Exhibit No. 10(e) to Registration Statement on
Form S-1 (Registrant No. 33-64655) filed with the Commission on November 30,
1995)
10(g) Consolidated, Amended and Restated Deed of Lease Agreement between
HMCE Associates Limited Partnership R.L.L.P. (as Landlord) and ICF Kaiser
Hunters Branch Leasing, Inc. (as Tenant), dated November 12, 1997, for the lease
of the Registrant's headquarters in Fairfax, Virginia known as Hunters Branch
Phase I
10(h) Consolidated, Amended and Restated Deed of Lease Agreement between
HMCE Associates Limited Partnership R.L.L.P. (as Landlord) and ICF Kaiser
Hunters Branch Leasing, Inc. (as Tenant), dated November 12, 1997, for the lease
of space in the building adjacent to the Registrant's headquarters in Fairfax,
Virginia known as Hunters Branch -- Phase II
10(i) Contribution Agreement by and among HMCE Associates Limited
Partnership R.L.L.P.; ICF Kaiser Hunters Branch Leasing, Inc.; and IFA Nutley
Partners, LLC dated November 3, 1997
10(j) ICF Kaiser International, Inc. Stock Incentive Plan (as amended and
restated through March 1, 1996) (Incorporated by reference to Exhibit No. 10(j)
to Registration Statement on Form S-1 Registrant No. 333-16937 filed with the
Commission on November 27, 1996)
10(k) Contract (#DE-AC3495RF00825) between Kaiser-Hill Company, LLC, a
subsidiary of the Corporation, and the U.S. Department of Energy dated as of
April 4, 1995. [IN ACCORDANCE WITH RULE 202 OF REGULATION S-T, THIS EXHIBIT NO.
10(o) WAS FILED IN PAPER ON MAY 23, 1995, ON FORM SE PURSUANT TO A CONTINUING
HARDSHIP EXEMPTION is incorporated herein by reference thereto]
1. Modifications 1 to 40 to Contract #DE-AC3495RF00825. (Incorporated by
reference to Exhibit No. 10(p)(l) to Registration Statement on Form S-1
Registration No. 333-16937 filed with the Commission on November 27, 1996)
2. Modifications 42 to 46 to Contract #DE-AC3495RF00825 (Modification 41
not received) (Incorporated by reference to Exhibit No. 10(p)(2) to Annual
Report on Form 10-K (Registrant No. 1-12248) filed with the Commission on May
25, 1997)
<PAGE>
3. Modifications 47 to XX to Contract #DE-AC3495RF00825
10(l) ICF Kaiser International, Inc. Section 401(k) Plan (as amended and
restated as of March 1, 1993) (and further amended with respect to name change
only as of June 26, 1993) (Incorporated by reference to Exhibit No. 10(f) to
Quarterly Report on Form 10-Q Registrant No. 1-12248 (Registrant No. 1-12248)
for the second quarter of fiscal 1994 filed with the Commission on October 15,
1993)
1. Amendment No. 1 dated April 24, 1995 (Incorporated by reference to
Exhibit No. 10(p)(1) to Annual Report on Form 10-K Registrant No. 1-12248 for
fiscal 1995 filed with the Commission on May 23, 1995)
2. Amendment No. 2 dated December 15, 1995 (Incorporated by reference to
Exhibit No. 10(p)(2) to Transition Report on Form 10-K Registrant No. 1- 12248
for the transition period from March 1, 1995 to December 31, 1995 filed with the
Commission on March 29, 1996)
3. Amendment No. 3 dated December 13, 1996 (Incorporated by reference to
Exhibit No. 10(q)(3) to Registration Statement on Form S-1 Registration No.
333-19519 filed with the Commission on January 10, 1997)
10(m) Trust Agreement with Vanguard Fiduciary Trust Company dated as of
March 1, 1989, for the ICF Kaiser International, Inc. Section 401(k) Plan
(Incorporated by reference to Exhibit No. 28(b) to Registration Statement on
Form S-8 (Registration No. 33-51460) filed with the Commission on August 31,
1992)
Exhibit No. 10 -- Material Contracts (management contracts, compensatory plans,
- -------------------------------------------------------------------------------
or arrangements.)
- -----------------
10(aa) Agreement dated as of May 19, 1997 with James O. Edwards, Chairman and
Chief Executive Officer of the Registrant (Incorporated by reference to Exhibit
No. 10(ll) to Quarterly Report on Form 10-Q Registrant No. 1-12248 for the
second quarter of fiscal 1997 filed with the Commission on August 14, 1997)
10(bb) ICF Kaiser International, Inc. 1998 Compensation (IC) Plan for Senior
Executives (adopted by the Board of Directors on February 27, 1998)
10(cc) ICF Kaiser International, Inc. Non-employee Director Stock Option Plan
(as amended and restated as of June 26, 1993) (Incorporated by reference to
Exhibit No. 10(bb) to Quarterly Report on Form 10-Q (Registrant No. 1- 12248)
for the second quarter of fiscal 1994 filed with the Commission on October 15,
1993)
10(dd) Agreement dated as of May 19, 1997 with Marc Tipermas, President and
Chief Operating Officer of the Registrant (Incorporated by reference to Exhibit
No. 10(mm) to Quarterly Report on Form 10-Q Registrant No. 1-12248 for the
second quarter of fiscal 1997 filed with the Commission on August 14, 1997)
10(ee) ICF Kaiser International, Inc. Senior Executive Officers Severance
Plan as approved by the Compensation Committee of the Board of Directors on
April 4, 1994, and adopted by the Board of Directors on May 5, 1994, as further
amended through May 1, 1997
10(ff) Employment Agreement with Michael K. Goldman, Executive Vice President
of the Registrant, effective as of February 28, 1994. (Incorporated by reference
to Exhibit No. 10(jj) to Annual Report on Form 10-K Registrant No. 1-12248 for
fiscal 1995 filed with the Commission on May 23, 1995)
10(gg) ICF Kaiser International, Inc. Consultants, Agents and Part-Time
Employees Stock Incentive Plan dated as of June 23, 1995 (Incorporated by
reference to Exhibit No. 99 to Registration Statement on Form S-8 Registration
No. 33-60665 filed with the Commission on June 28, 1995)
10(hh) ICF Kaiser International, Inc. Stock Incentive Plan (as amended and
restated through March 1, 1996) (Incorporated by reference to Exhibit No. 10 (j)
to Registration Statement on Form S-1 Registration No. 333-16937 filed with the
Commission on November 27, 1996)
<PAGE>
10(ii) Amended Employment Agreement dated as of December 1, 1996, with David
Watson, Executive Vice President and President, ICF Kaiser Engineers and
Constructors Group of the Registrant (Incorporated by reference to Exhibit No.
10(kk) to Annual Report on Form 10-K (Registrant No. 1-12248) filed with the
Commission on May 25, 1997).
10(jj) Amended and Restated Employment Agreement dated as of July 1,1997 with
Kenneth L. Campbell, Executive Vice President and Chief Financial Officer of the
Registrant (Incorporated by reference to Exhibit No. 10(nn) to Quarterly Report
on Form 10-Q Registrant No. 1-12248 for the second quarter of fiscal 1997 filed
with the Commission on August 14, 1997)
10(kk) Employment Agreement with Michael F. Gaffney, Executive Vice President
of the Registrant, effective as of January 1, 1997
10(ll) Letter Agreement with Cowen Incorporated and Jarrod M. Cohen, dated as
of March 13, 1998
10(mm) ICF Kaiser International, Inc. Non-employee Directors Compensation and
Phantom Stock Plan as adopted by the Board of Directors on February 28, 1997,
with an effective date of March 1, 1997
10(nn) Letter Agreement with Tennenbaum & Co., L.L.C. and Michael E.
Tennenbaum, dated as of March 13, 1998
Exhibit No. 21 -- Consolidated Subsidiaries of the Registrant as of
December 31, 1997
Exhibit No. 23 -- Consent of Coopers & Lybrand L.L.P.
Exhibit No. 27 -- Financial Data Schedule
<PAGE>
Exhibit 3(k)
ARTICLES OF INCORPORATION
OF
ENERBANK DESIGN ASSOCIATES, INC.
The name of the incorporator is John H. W. Cole. The incorporator is 18
years old or older.
The address of the incorporator is as follows: 1015 Twentieth Street,
N.W., Suite 200, Washington, D.C. 20036.
ARTICLE I - NAME
------- - ----
The name of this corporation is ENERBANK DESIGN ASSOCIATES, INC.
ARTICLE II - EFFECTIVE DATE
------- -- --------------
This corporation shall exist perpetually, commencing as of the date of
approval of these Articles.
ARTICLE III - PURPOSES
------- --- --------
This corporation may engage in any activity or business permitted under the
laws of the United States of America and of this State.
ARTICLE IV - CAPITAL STOCK
------- -- ------- -----
This corporation is authorized to issue Ten Thousand (10,000) shares of One
Dollar ($1.00) par value common stock.
ARTICLE V - PRINCIPAL OFFICE AND RESIDENT AGENT
------- - -----------------------------------
The name of the initial Resident Agent of this corporation and his street
address are as follows: Daniel Milliron, 1109 Spring Street, Suite 200, Silver
Spring, Maryland 20910.
ARTICLE VI - BOARD OF DIRECTORS
----------- -------------------
This corporation shall have one (1) director initially. The number of
directors may be either increased or decreased from time to time as provided in
the Bylaws, but shall never be less than one (1). The name of the initial
director of this corporation is Daniel Milliron. The address of the initial
director is 1109 Spring Street, Suite 200, Silver Spring, Maryland 20910.
ARTICLE VII - AMENDMENT
------------ ----------
This corporation reserves the right to amend or repeal any provisions
contained in these Articles of Incorporation, or any amendment hereto, and any
right conferred upon the shareholders is subject to this reservation.
ARTICLE VIII - BYLAWS
---------------------
The initial Bylaws shall be adopted by the Board of Directors. The power
to alter, amend, or repeal the Bylaws or adopt new Bylaws is vested in the Board
of Directors, subject to repeal or change by action of the Shareholders.
ARTICLE IX - CUMULATIVE VOTING
---------- ------------------
At each election for directors every shareholder entitled to vote at such
election shall have the right to cumulate his votes by giving one candidate as
many votes as the number of directors to be elected at that time multiplied by
the number of his shares, or by distributing such votes on the same principle
among any number of such candidates.
<PAGE>
In any election of directors by the shareholders, each shareholder of
record entitled to vote shall have the right to cumulate his shares and to give
one candidate as many votes as shall equal the number of directors to be elected
multiplied by the number of shares owned by such stockholder, or to distribute
them on the same principle among as many candidates as he sees fit; provided,
however, that notice shall be given by any shareholder to the President or a
Vice President of the Corporation not less than twenty-four (24) hours before
the time fixed for the holding of the meeting for the election of directors that
he intends to accumulate his votes as such election. This right to vote
cumulatively shall not be further restricted or qualified by any provision in
the Bylaws of this corporation.
IN WITNESS WHEREOF, I, the undersigned, being the incorporator, for the
purpose of forming a corporation to do business in the State of Maryland and
under the laws of Maryland, have signed these articles and acknowledge same to
be my act, declaring and certifying that the facts herein stated are true, and
do set my hand and seal October 19, 1987.
Witness John H. W. Cole
<PAGE>
ARTICLES OF MERGER
------------------
TO; Superintendent of Corporations
Department of Consumer and Regulatory Affairs
Pursuant to the District of Columbia Business Corporation Act, Section 29-
368, Enerbank Corporation, a corporation organized under the laws of the
District of Columbia and Enerbank Design Associates, Inc., a corporation
organized under the laws of the State of Maryland, hereby submit and declare the
following Articles of Merger:
1. Plan of Merger Enerbank Corporation shall be merged into Enerbank
--------------
Design Associates, Inc. in accordance with the Plan of Merger attached to
these Articles as Exhibit "A".
2. Outstanding Shares; Classes of Shares.
-------------------------------------
(a) Enerbank Corporation has only one class of stock. On the date of
approval of the Plan of Merger by its stockholders Enerbank Corporation had
issued and outstanding 100 shares of its stock.
(b) Enerbank Design Associates, Inc. has only one class of stock. On
the date of approval by the Plan of Merger by its stockholders Enerbank Design
Associates, Inc. had issued and outstanding 1,000 shares of its stock.
3. Number of Shares Approving Merger.
---------------------------------
(a) 100 shares of stock of Enerbank Corporation voted for the merger.
No shares of stock voted against it.
(b) 1,000 shares of stock of Enerbank Design Associates, Inc. voted
for the merger. No shares of stock voted against it.
4. Jurisdiction.
------------
(a) Enerbank Corporation is a corporation organized under the laws of
the District of Columbia.
(b) Enerbank Design Associates, Inc. is a corporation organized under
the laws of the State of Maryland. The agreement required by Section 29-371 of
the Business Corporations Act is enclosed herewith.
DATED AND EXECUTED THIS 21/ST/ DAY OF OCTOBER, 1987.
ATTEST: Enerbank Corporation
ATTEST: Enerbank Design
Associates, Inc.
EXHIBIT "A"
Plan of Merger
--------------
WHEREAS, Enerbank Corporation is a corporation duly organized and
authorized to conduct business in the District of Columbia; and
WHEREAS, Enerbank Design Associates, Inc. is a corporation duly organized
and authorized to conduct business in the State of Maryland; and
WHEREAS, It is in the best interests of said corporations and their
stockholders to merge said corporations, with Enerbank Design Associates, Inc.
being the surviving corporation of said merger.
NOW THEREFORE, the following Plan of Merger is approved by the directors of
Enerbank Corporation and Enerbank Design Associates, Inc..
1. Enerbank Corporation shall be merged into Enerbank Design Associates,
Inc., which shall be the surviving corporation of the merger and shall conduct
all business theretofore conducted by Enerbank Corporation.
2. No Amendment to the Articles of Incorporation of Enerbank Design
Associates, Inc. is contemplated.
3. The merger shall be effective as of the date on which these articles of
merger are approved.
4. As of the effective date of the merger, all of the shares of stock of
Enerbank Corporation shall be surrendered, and its shareholders shall be issued
1,000 shares of stock of Enerbank Design Associates, Inc. in exchange therefor.
No other consideration shall be given to the shareholders of Enerbank
Corporation.
5. The bylaws, principal place of business, officers, directors and
resident agent of Enerbank Design Associates, Inc. shall be the same as that
prior to the merger.
<PAGE>
Agreement of Foreign Corporation
--------------------------------
WHEREAS, Enerbank Design Associates, Inc. is a corporation organized under
the laws of the State of Maryland (hereinafter referred to as "Surviving
Corporation"); and
WHEREAS, Pursuant to Articles of Merger executed simultaneously herewith,
Enerbank Corporation, a corporation organized under the laws of the District of
Columbia (hereinafter referred to as the "Merged Corporation") is to be merged
with Surviving Corporation; and
WHEREAS, As a condition to its approval of said merger the laws of the
District of Columbia require that Surviving Corporation agree to certain
requirements as to service of process, conduct of business, and treatment of
dissenting shareholders.
NOW THEREFORE, Surviving Corporation agrees as follows:
1. The above recitals are true and correct and are made a part hereof.
2. Surviving Corporation agrees that to the extent it shall conduct
business in the District of Columbia it shall comply with the provisions of the
Business Corporation Act of the District of Columbia.
3. Surviving Corporation agrees that it may be served with process in the
District of Columbia in any proceeding for the enforcement of any obligation of
any domestic corporation which is a party to said merger and in any proceeding
for the enforcement of the rights of a dissenting shareholder of Merging
Corporation.
4. Surviving Corporation hereby irrevocably appoints the Mayor of the
District of Columbia as its agent to accept service of process in any such
proceeding.
5. Surviving Corporation agrees that it will promptly pay to the
dissenting shareholders of Merging Corporation, the amount, if any, to which
they are entitled under the provisions of the Business Corporation Act with
respect to the rights of dissenting shareholders.
6. The Mayor may mail a copy of any process against Surviving Corporation
which may be served to the following postal address: 1109 Spring Street, Suite
200, Silver Springs, Maryland 20910.
Dated and executed October 21st, 1987.
Enerbank Design Associates, Inc.
"Surviving Corporation"
<PAGE>
ARTICLES OF AMENDMENT TO ARTICLES OF
ORGANIZATION OF ENERBANK DESIGN ASSOCIATES, INC.
Pursuant to a special meeting of the Board of the Director and a special
meeting of the shareholders of Enerbank Design Associates, Inc. ("Corporation")
held on August 1, 1993, the Corporation has decided to amend its charter due to
the unanimous vote of the Board of the Director and the unanimous vote of the
shareholders to change the name of the Corporation. The Board of Director and
all of the shareholders of the Corporation voted in favor of the following
amendment to the charter. The name of the Corporation shall be amended from
Enerbank Design Associates, Inc. to:
EDA, Incorporated
Accordingly, because all of the requirements have been satisfied pursuant
to the Corporations and Associations Article of the Maryland Code, the
Corporation files this Articles of Amendment so that the Corporation shall be
known from this day forth as EDA, Incorporated.
I, Daniel Milliron, President of Enerbank Design Associates, Inc., hereby
acknowledge on behalf of Enerbank Design Associates, Inc. that the foregoing
Articles of Amendment are the corporate act of said corporation under the
penalties of perjury.
Daniel Milliron, President
Attest
<PAGE>
ARTICLES OF MERGER
BETWEEN
ICF KAISER DISAPPEARING, INC.
AND
EDA, INCORPORATED
THIS IS TO CERTIFY THAT:
FIRST: ICF Kaiser Disappearing, Inc. and EDA, Incorporated agree to merge
in the manner hereinafter set forth.
SECOND: EDA, Incorporated is the corporation to survive the merger (the
"Surviving Corporation").
THIRD: Both the Surviving Corporation and ICF Kaiser Disappearing, Inc.
(the "Merging Corporation") are incorporated under the laws of the State of
Maryland.
FOURTH: The principal office of the Surviving Corporation in the State of
Maryland is located in Montgomery County, and the principal office of the
Merging Corporation in the State of Maryland is located in the City of
Baltimore.
FIFTH: The Merging Corporation owns no interest in land in the State of
Maryland.
SIXTH: The charter of the Surviving Corporation will not be amended as a
result of the merger.
SEVENTH: The total number of shares of all classes of stock which each
corporation party to these Articles has the authority to issue and the number of
shares of each class are as follows:
(a) Surviving Corporation
---------------------
The total number of shares of all classes of stock which the Surviving
Corporation has authority to issue is 10,000 shares of common stock, $1.00 par
value per share. The aggregate par value of all shares of all classes having a
par value is $10,000.
(b) Merging Corporation
-------------------
The total number of shares of all classes of stock which the Merging
Corporation has authority to issue is 100 shares of common stock, $1.00 par
value per share. The aggregate par value of all shares of all classes having a
par value is $100.
EIGHTH: Upon the Effective Date, the Merging Corporation shall be merged
into the Surviving Corporation; and, thereupon, the Surviving Corporation shall
possess any and all purposes and powers of the Merging Corporation; and all
leases, licenses, property, rights, privileges, and powers of whatever nature
and description of the Merging Corporation shall be transferred to, vested in,
and devolved upon the Surviving Corporation, without further act or deed,
subject to all of the debts and obligations of the Merging Corporation.
At 5:00 p.m., Eastern Daylight Time, on the Effective Date, each share of
common stock, $1.00 par value per share, of the Merging Corporation shall be
converted into one share of common stock, $1.00 par value per share, of the
Surviving Corporation ("New Shares"), without the necessity of any action on the
part of the holder thereof. At that time, the Surviving Corporation shall issue
a certificate to ICF Kaiser International, Inc., a Delaware corporation,
representing the New Shares, and each share of common stock, $1.00 par value per
share, of the Surviving Corporation existing prior to the Effective Date ("Old
Shares") shall be cancelled and retired.
Upon surrender of the certificates evidencing Old Shares, persons who were
shareholders of the Surviving Corporation prior to the Effective Date shall
receive shares of common stock, $0.01 par value per share, of ICF Kaiser
International, Inc. and other consideration in accordance with the Agreement and
Plan of Merger approved by the shareholders of the Merging Corporation and the
Surviving Corporation. From and after the Effective Date, each holder of an
outstanding certificate or certificates which prior thereto represented Old
Shares shall, upon surrender of the same, be entitled to receive in exchange
therefor the consideration into which the shares therefore represented by the
certificate or certificates so surrendered shall have been converted as provided
in the foregoing sentence. Until so surrendered, each such outstanding
certificate which prior to the Effective Date represented Old
<PAGE>
Shares shall be deemed for all corporate purposes to evidence the right to
receive the consideration into which such Old Shares shall have been so
converted.
NINTH: The terms and conditions of the transaction described in these
Articles were duly advised, authorized and approved by the Merging Corporation
in the manner and by the vote required by the laws of the State of Maryland and
the charter of the Merging Corporation, as follows:
(a) The Board of Directors of the Merging Corporation, by written
consent signed by all the members thereof and filed with the minutes of
proceedings of the Board, adopted a resolution declaring that the terms and
conditions of the transaction described herein were advisable and directing that
the proposed transaction be submitted for consideration by the shareholders of
the Merging Corporation.
(b) A consent in writing, setting forth approval of the terms and
conditions of the transaction described herein as so proposed, was signed by the
sole shareholder of the Merging Corporation, and such consent is filed with the
records of shareholder meetings of the Merging Corporation.
TENTH: The terms and conditions of the transaction described in these
Articles were duly advised, authorized and approved by the Surviving Corporation
in the manner and by the vote required by the laws of the State of Maryland and
the charter of the Surviving Corporation, as follows:
(a) The Board of Directors of the Surviving Corporation, by written
consent to such action signed by all the members thereof and filed with the
minutes of proceedings of the Board, adopted a resolution declaring that the
terms and conditions of the transaction described herein were advisable and
directing that the proposed transaction be submitted for consideration by the
shareholders of the Surviving Corporation.
(b) A consent in writing, setting forth approval of the terms and
conditions of the transaction described herein as so proposed, was signed by the
sole shareholder of the Surviving Corporation, and such consent is filed with
the records of shareholder meetings of the Surviving Corporation.
ELEVENTH: These Articles of Merger shall become effective at 5:00 p.m.,
Eastern Daylight Time, on the date they are accepted for recordation by the
Department of Assessments and Taxation of the State of Maryland (the "Effective
Date").
TWELFTH: Each undersigned President acknowledges these Articles of Merger
to be the corporate act of the respective corporate party on whose behalf he has
signed, and further, as to all matters or facts required to be verified under
oath, each President acknowledges that to the best of his knowledge, information
and belief, these matters and facts relating to the corporation on whose behalf
he has signed are true in all material respects and that this statement is made
under the penalties for perjury.
IN WITNESS WHEREOF, these Articles of Merger have been duly executed by the
parties hereto this 28th day of July, 1995.
ATTEST: ICF Kaiser Disappearing, Inc.
ATTEST: EDA, Incorporated
<PAGE>
Exhibit 3(l)
AMENDED AND RESTATED
BY-LAWS
of
EDA, INCORPORATED
ARTICLE I
---------
Offices
Section 1.01. Registered Office in Maryland. The registered office shall be in
- ------------ -----------------------------
Baltimore City, Maryland. The name of the registered agent of the Corporation
at such location is Corporation Service Company (CSC-Lawyers Incorporating
Service Company).
Section 1.02. Principal Office. The Board of Directors is granted full power
- ------------ ----------------
and authority to fix and thereafter change the location of the principal office
of the Corporation at any location within the United States.
Section 1.03. Other Offices. The Corporation may have such other offices
- ------------ -------------
either within or without the State of Maryland as the Board of Directors may
from time to time determine.
ARTICLE II
----------
Meetings of Stockholders
Section 2.01. Time and Place of Meeting. Annual meetings of the stockholders
- ------------ -------------------------
for the purpose of electing directors, making reports of the affairs of the
Corporation and transacting such other business as may properly come before the
meeting shall be held at such place, within or without the State of Maryland, on
such date and at such time as the Board of Directors shall each year fix, which
date shall be within thirteen months subsequent to the later of the date of
incorporation or the last annual meeting of stockholders. Meetings of
stockholders for any other purpose may be held at such time and place, within
or without the State of Maryland, as shall be fixed by the Board of Directors
and stated in the notice of meeting. If no other place is fixed by the Board of
Directors, meetings of stockholders shall be held at the principal executive
office of the Corporation. Failure to hold the annual meeting at the designated
time shall not work a forfeiture or dissolution of the Corporation.
Section 2.02. Notice of Meeting. Written notice of meetings of stockholders,
- ------------- ------------------
stating the place, date and hour thereof, and in the case of a special meeting,
the purpose or purposes for which the meeting is being called, shall be given
not less than ten nor more than sixty days before the date of the meeting to
each stockholder entitled to vote thereat.
Section 2.03. Qualified Voters. The officer who has charge of the stock ledger
- ------------ ----------------
of the Corporation shall prepare, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder for any purpose germane to
the meeting during ordinary business hours for a period of at least ten days
prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or if not
so specified, at the place where the meeting is to be held. The list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present and entitled to
vote.
Section 2.04. Special Meetings. Special meetings of the stockholders may be
- ------------- ----------------
called by the Board of Directors or by the President or by a writing signed by
stockholders owning a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote at such meeting. Such
call shall state the purpose or purposes of the proposed meeting. The Secretary
shall give notice of such meeting to the stockholders entitled to vote thereat,
in accordance with such call.
Section 2.05. Business at Special Meetings. Business transacted at any special
- ------------- ----------------------------
meeting of stockholders shall be limited to the purposes stated in the notice.
Section 2.06. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time without notice other than announcement at
the meeting (if the adjournment is not for more than thirty days and a new
record date for the determination of stockholders entitled to vote is not
fixed), until a quorum shall be present or represented. At such
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
EDA, INCORPORATED
Page 2 of 9
adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified.
Section 2.07. Vote Required. When a quorum is present at any meeting, the vote
- ------------- -------------
of the holders of a majority of the shares of stock having voting power voting,
in person or by proxy, on a question shall decide any question brought before
such meeting, unless the question is one upon which by express provision of the
statutes, the Certificate of Incorporation or these By-laws a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section 2.08. Proxies. Each stockholder shall at every meeting of the
- ------------- -------
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after three years from its date unless the proxy provides for a
longer period. No proxy or power of attorney to vote shall be used to vote at a
meeting of the stockholders unless it shall have been filed with the Secretary
of the meeting when required by the inspectors of election. All questions
regarding the qualification of voters, the validity of proxies and the
acceptance or rejection of votes shall be decided by two inspectors of election
who shall be appointed by the Board of Directors, or if not so appointed, then
by the presiding officer of the meeting.
Section 2.09. Presiding Officer. The President of the Corporation shall
- ------------- -----------------
preside over all meetings of stockholders.
Section 2.10. Consent. Whenever the vote of stockholders at a meeting thereof
- ------------- -------
is required or permitted to be taken in connection with any corporate action by
any provisions of the statutes, the By-laws or the Certificate of Incorporation,
the meeting and vote may be dispensed with if the number of stockholders who
would have been entitled to vote upon the action if such meeting were held,
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting, shall consent in writing to such
corporate action being taken. Prompt notice shall be given by the Secretary to
all stockholders of the taking of corporate action without a meeting by less
than unanimous written consent.
ARTICLE III
-----------
Directors
Section 3.01. Number and Election. The number of directors which shall
- ------------ -------------------
constitute the whole Board shall be no less than one (1) or more than ten (10).
By amendment of this By-law, the number may be increased or decreased from time
to time by the Board of Directors or stockholders within the limits permitted by
law, but no decrease in the number of directors shall change the term of any
director in office at the time thereof. The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 3.02, and each
director shall hold office until his successor is elected and accepts office
unless he earlier resigns or is removed. Directors need not be stockholders. A
director may resign at any time upon written notice to the Corporation or orally
at any meeting of the directors or stockholders.
Section 3.02. Removal and Vacancies. A director may be removed with or without
- ------------- ---------------------
cause by a majority vote of the holders of the outstanding shares entitled to
vote. [Subject to any Stockholder's Agreement] Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and accept office, unless
sooner displaced.
Section 3.03. Management, The business of the Corporation shall be managed by
- ------------- ----------
its Board of Directors, which may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these By-laws directed or required to be
exercised or done by the stockholders.
Section 3.04. Place of Meetings. The Board of Directors of the Corporation may
- ------------- -----------------
hold meetings, both regular and special, either within or without the State of
Maryland. Meetings may be held by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 3.05. Annual Meeting. The first meeting of each newly elected Board of
- ------------ --------------
Directors shall be held immediately following the adjournment of the annual
meeting of stockholders and at the place thereof. No notice of such meeting
shall be necessary to the directors in order legally to constitute the meeting,
provided a quorum is present. In the event
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
EDA, INCORPORATED
Page 3 of 9
such meeting is not so held, the meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for special
meetings of the Board of Directors.
Section 3.06. Notice for Regular Meetings. Regular meetings of the Board of
- ------------- ---------------------------
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board of Directors.
Section 3.07. Special Meetings. Special meetings of the Board of Directors may
- ------------- ----------------
be called by a majority of the Board of Directors or the President and shall be
held on notice by letter mailed or delivered for transmission not later than on
the third day immediately preceding the day of such meeting, or by written
notice delivered or received not later than the day immediately preceding the
day of such meeting. Neither the business to be transacted at, nor the purpose
of, any special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
Section 3.08. Quorum. At meetings of the Board of Directors, a majority of the
- ------------- ------
full number of directors shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
Section 3.09. Chairman of the Board. At its first meeting after each annual
- ------------- ---------------------
meeting of stockholders, the Board of Directors shall elect from among its
members a Chairman. The Board of Directors may also choose a Vice Chairman from
among its members. The Chairman shall preside at all meetings of the Board of
Directors, and shall perform such other duties as the Board may prescribe. The
Chairman may participate and act in any meeting of the Board of Directors as a
director. The Vice Chairman, if any, shall act under the direction of the
Chairman and in the absence or disability of the Chairman shall perform the
duties and exercise the powers of the Chairman. The Chairman and the Vice
Chairman, if any, (i) shall hold their respective offices at the pleasure of the
Board of Directors, and (ii) may be removed with or without cause at any time by
the Board of Directors. Any vacancy occurring in the office of the Chairman or
Vice Chairman by death, resignation, removal or otherwise shall be filled by the
Board of Directors.
Section 3.10. Committees. The Board of Directors may, by resolution adopted by
- ------------- ----------
a majority of the whole Board, designate one or more committees of the Board of
Directors, each committee to consist of one or more of the directors of the
Corporation, which, to the extent provided in the resolution, may have and
exercise any or all the powers of the Board of Directors in the management of
the business and affairs of the Corporation including, but not limited to, the
power and authority of the Board of Directors: (i) to authorize the seal of the
Corporation to be affixed to all papers; (ii) to declare a dividend; (iii) to
authorize the issuance of stock; (iv) to the extent authorized in the resolution
or resolutions providing for the issuance of shares of stock adopted by the
Board of Directors, fix any of the preferences or rights of such shares relating
to dividends, redemption, dissolution, any distribution of assets of the
Corporation or the conversion into, or the exchange of such shares for shares of
any other class or classes or any other series of the same of any other class or
classes of stock of the Corporation. Such committee or committees shall have
such name or names as may be determined from time to time by the Board of
Directors. The member or members of any such committee present at any meeting
and not disqualified from voting may, whether or not they constitute a quorum,
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any absent or disqualified member. At meetings of such
committees, a majority of the members or alternate members at any meeting at
which there is a quorum shall be the act of the committee.
Section 3.11. Committee Minutes. The committees shall keep regular minutes of
- ------------- -----------------
their proceedings and report the same to the Board of Directors.
Section 3.12. Consent. Any action required or permitted to be taken at any
- ------------- -------
meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of the
Board of Directors or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or committee.
Section 3.13. Compensation. The directors may be paid their expenses of
- ------------- ------------
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of committees of the Board of Directors may be allowed like reimbursement and
compensation for attending committee meetings.
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
EDA, INCORPORATED
Page 4 of 9
ARTICLE IV
----------
Notices
Section 4.01. Notice. Notices to directors and stockholders mailed to them at
- ------------ ------
their addresses appearing on the books of the Corporation shall be deemed to be
given at the time when deposited in the United States mail, postage prepaid. An
affidavit of the Secretary or an Assistant Secretary or of the transfer agent of
the Corporation that the notice has been given shall, in the absence of fraud,
be prima facie evidence of the facts stated therein.
Section 4.02. Waiver. Whenever any notice is required to be given under the
- ------------ ------
provisions of the statute, the Certificate of Incorporation or of these By-laws,
a waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Neither the business to be transacted at, nor the purposes
of, any meeting need be specified in such waiver. Attendance at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE V
---------
Officers
Section 5.01. Election. The officers of the Corporation shall be chosen by the
- ------------ --------
Board of Directors at its first meeting after each annual meeting of
stockholders and shall be a President, a Secretary and a Treasurer. The Board
of Directors may also choose one or more Vice Presidents and one or more
Assistant Secretaries and Assistant Treasurers. Two or more offices may be held
by the same person.
Section 5.02. Other Officers. The Board of Directors may appoint such other
- ------------- --------------
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
Section 5.03. Salaries. The salaries of all officers of the Corporation shall
- ------------- --------
be fixed by or under the direction of the Board of Directors.
Section 5.04. Vacancies. The officers of the Corporation shall hold office at
- ------------- ---------
the pleasure of the Board of Directors. Any officer may be removed with or
without cause at any time by the Board of Directors. Each officer shall hold
his office until his successor is elected and qualified or until his earlier
resignation or removal. The Board of Directors may fill any vacancy occurring
in any office of the Corporation by death, resignation, removal or otherwise.
Section 5.05. President. The President shall serve as Chief Executive Officer
- ------------- ---------
of the Corporation, shall have general and active management of the business of
the Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He shall execute on behalf of the
Corporation, and may affix or cause the seal to be affixed to, all instruments
requiring such execution except to the extent the signing and execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation. He shall perform such additional duties and have such
additional powers as the Board of Directors may from time to time prescribe.
Section 5.06. Vice Presidents. The Vice Presidents shall act under the
- ------------- ---------------
direction of the President and in the absence or disability of the President
shall perform the duties and exercise the powers of the President. They shall
perform such other duties and have such other powers as the President or the
Board of Directors may from time to time prescribe. The Board of Directors may
designate one or more Executive Vice Presidents or may otherwise specify the
order of seniority of the Vice Presidents. The duties and powers of the
President shall descend to the Vice Presidents in such specified order of
seniority.
Section 5.07. Secretary. The Secretary shall act under the direction of the
- ------------- ---------
President. Subject to the direction of the President, he shall attend all
meetings of the Board of Directors and all meetings of the stockholders and
record the proceedings in a book to be kept for that purpose. He shall perform
like duties for committees when required. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the
President or the Board of Directors. He shall keep in safe custody the seal of
the Corporation and, when authorized by the President or the Board of Directors,
cause it to be affixed to any instrument requiring it.
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
EDA, INCORPORATED
Page 5 of 9
Section 5.08. Assistant Secretaries. The Assistant Secretaries shall act under
- ------------- ---------------------
the direction of the President. In the order of their seniority, unless
otherwise determined by the President or the Board of Directors, they shall, in
the absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary. They shall perform such other duties and have such
other powers as the President or the Board of Directors may from time to time
prescribe.
Section 5.09. Treasurer. The Treasurer shall act under the direction of the
- ------------- ---------
President. Subject to the direction of the President he shall have custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the President or the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation. He may affix or cause to be affixed the seal of the Corporation to
documents so requiring.
Section 5.10. Assistant Treasurers. The Assistant Treasurers in the order of
- ------------- --------------------
their seniority, unless otherwise determined by the President or the Board of
Directors, shall, in the absence or disability of the Treasurer, perform the
duties and exercise the powers of the Treasurer. They shall perform such other
duties and have such other powers as the President or the Board of Directors may
from time to time prescribe.
ARTICLE VI
----------
Certificates of Stock
Section 6.01. Certificate. Every holder of stock in the Corporation shall be
- ------------ -----------
entitled to have a certificate signed by the Chairman or Vice-Chairman of the
Board of Directors, or the President or a Vice President, and by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in the Corporation.
Every such certificate shall contain a statement of the restrictions provided in
Section 4 of this Article.
Section 6.02. Facsimile Signature. Any or all the signatures on the
- ------------- -------------------
certificate may be facsimiles. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, such certificate may be issued with the same effect as
though the person had not ceased to be such officer, transfer agent or
registrar. The seal of the Corporation or a facsimile thereof may, but need
not, be affixed to certificates of stock.
Section 6.03. Lost Certificates. The Board of Directors may direct a new
- ------------- -----------------
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 6.04. Transfer. Upon surrender to the Corporation or the transfer
- ------------- --------
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books,
provided, however, the Corporation shall have no obligation to issue new
certificates, cancel old certificates or record transactions unless and until it
is satisfied that (i) all provisions of the Certificate of Incorporation, these
By-laws and any legends on the certificate regarding transfer of shares and
restrictions on such transfers have been complied with, and (ii) all other
applicable restrictions, including restrictions imposed by law, including
federal and state securities law, and by any stockholders agreement to which the
Corporation is a party, have been complied with.
Section 6.05. Record Date. The Board of Directors may fix in advance a date,
- ------------- -----------
not more than sixty days nor less than ten days preceding the date of any
meeting of stockholders, or not more than sixty days before the date for the
payment of any dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall go into effect,
or a date in connection with obtaining a consent, as a record date for the
determination of the stockholders entitled to notice of, and to vote at, any
such meeting and any adjournment thereof, or entitled to
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
EDA, INCORPORATED
Page 6 of 9
receive payment of any such dividend, or to any such allotment of rights, or to
exercise the rights in respect of any such change, conversion or exchange of
capital stock, or to give such consent, and in such case such stockholders and
only such stockholders as shall be stockholders of record on the date so fixed
shall be entitled to such notice of, and to vote at, such meeting and any
adjournment thereof, or to receive payment of such dividend, or to receive such
allotment of rights, or to exercise such rights, or to give such consent, as the
case may be notwithstanding any transfer of any stock on the books of the
Corporation after any such record date fixed as aforesaid.
Section 6.06. Recognition of Ownership. The Corporation shall be entitled to
- ------------- ------------------------
recognize the person registered on its books as the owner of shares to be the
exclusive owner for all purposes including voting and dividends, and the
Corporation shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Maryland.
ARTICLE VII
-----------
Miscellaneous
Section 7.01. Reserves. There may be set aside out of any funds of the
- ------------ --------
Corporation available for dividends such sum or sums as the Board of Directors
may from time to time, in its absolute discretion, think proper, as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for the purchase of additional
property, or for such other purpose as the directors shall think conducive to
the interest of the Corporation, and the Board of Directors may modify or
abolish any such reserve.
Section 7.02. Checks, Demands and Notes. All checks or demands for money and
- ------------- -------------------------
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
Section 7.03. Fiscal Year. The fiscal year of the Corporation shall be as
- ------------- -----------
fixed by the Board of Directors.
Section 7.04. Seal. The corporate seal shall have inscribed thereon the name
- ------------- ----
of the Corporation and the words "Corporate Seal". The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or in any manner
reproduced.
ARTICLE VIII
------------
Indemnification
Section 8.01. Indemnification of Directors and Officers for Actions, Suits, or
- ------------ ----------------------------------------------------------------
Proceedings Other Than By Or In The Right of the Corporation. To the full
- ------------------------------------------------------------
extent permitted by law, the Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was or has agreed to become a director or
officer of the Corporation or is or was serving or has agreed to serve at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise (including employee
benefit plans) or by reason of any action alleged to have been taken or omitted
in such capacity against costs, charges, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with any threatened, pending or completed
action, suit or proceeding and any appeal therefrom including but not limited to
liability and expenses incurred on account of profits realized by him in the
purchase or sale of securities of the Corporation, if and only if he acted in
--------------
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful; the
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
---- ----------
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 8.02. Indemnification of Directors and Officers for Actions or Suits By
- ------------- -----------------------------------------------------------------
Or In The Right of the Corporation. To the full extent permitted by law, the
- ----------------------------------
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was or has agreed to become a director or officer of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director or officer of
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
EDA, INCORPORATED
Page 7 of 9
another corporation, partnership, joint venture, trust or other enterprise
(including employee benefit plans), or by reason of any action alleged to have
been taken or omitted in such capacity, against costs, charges and expenses
(including attorneys' fees) actually and reasonably incurred by him or on his
behalf in connection with the defense or settlement of any threatened, pending
or completed action or suit and any appeal therefrom, or the defense or
settlement of any claim, issue or matter, if and only if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of such liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such costs, charges and expenses which the court shall deem
proper.
Section 8.03. Indemnification of Others for Actions, Suits, or Proceedings
- ------------- ------------------------------------------------------------
Other Than By Or In The Right of the Corporation. To the full extent permitted
- ------------------------------------------------
by law, the Corporation, in the sole discretion of the Board of Directors of the
Corporation, may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation), by reason of the fact that he
is or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with any threatened,
pending or completed action, suit or proceeding and any appeal therefrom,
including but not limited to liability and expenses incurred on account of
profits realized by him in the purchase or sale of securities of the
Corporation, if and only if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful; the termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 8.04. Indemnification of Others for Actions or Suits By Or In The Right
- ------------- -----------------------------------------------------------------
of the Corporation. To the full extent permitted by law, the Corporation, in
- ------------------
the sole discretion of the Board of Directors of the Corporation, may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of any threatened, pending or
completed action or suit and any appeal therefrom, or the defense or settlement
of any claim, issue or matter, if and only if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of such liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such costs,
charges and expenses which the court shall deem proper.
Section 8.05. Indemnification for Costs, Charges and Expenses of Successful
- ------------- -------------------------------------------------------------
Party. Notwithstanding the other provisions of these By-laws, to the extent
- -----
that a director or officer of the Corporation or other person indemnified under
Sections 8.01 through 8.04, herein, has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, he shall be indemnified against
all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or on his behalf in connection therewith.
Section 8.06. Determination of Right to Indemnification. Unless otherwise
- ------------- -----------------------------------------
ordered by a court, any indemnification under Sections 8.01 through 8.04,
herein, shall be paid by the Corporation unless a determination is made (i) by
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (ii) if such a
quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
EDA, INCORPORATED
Page 8 of 9
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders, that indemnification of an individual entitled to indemnification
under Sections 8.01 through 8.04, herein, is not proper in the circumstances
because he has not met the applicable standard of conduct set forth in Sections
8.01 through 8.04, herein.
Section 8.07. Advance Payment of Costs, Charges and Expenses. To the full
- ------------- ----------------------------------------------
extent permitted by law, the Corporation shall, upon request, pay costs, charges
and expenses (including attorneys' fees) incurred by a person entitled to
indemnification pursuant to Sections 8.01 and 8.02, herein, and, if applicable,
pursuant to Sections 8.03 and 8.04, herein, in defending a civil or criminal
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding; provided, however, that the payment of such costs, charges
and expenses incurred by a director or officer in his capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer) in advance of the final disposition of
such action, suit or proceeding shall be made only upon receipt of an
undertaking by or on behalf of the director or officer to repay all amounts so
advanced in the event that it shall ultimately be determined that such director
or officer is not entitled to be indemnified by the Corporation as authorized
in these By-laws; such costs, charges and expenses incurred by other employees,
agents and contractors may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
Section 8.08. Procedure for Indemnification. Any indemnification or advance of
- ------------- -----------------------------
costs, charges and expenses provided for in Sections 8.01 through 8.07, herein,
shall be made promptly, and in any event within sixty (60) days, upon the
written request of the person entitled to indemnification; the right to
indemnification or advances as granted by these By-laws shall be enforceable by
a director or officer or other person indemnified hereunder in any court of
competent jurisdiction. If the Corporation denies such request, in whole or in
part, or if no disposition thereof is made within sixty (60) days, such person's
costs, charges and expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation; it shall be a defense to
any such action (other than an action brought to enforce a claim for the advance
of costs, charges and expenses pursuant to Section 8.07, herein, where the
required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in Sections 8.01 through
8.04, herein, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in Sections 8.01 through 8.04, herein, nor the
fact that there has been an actual determination by the Corporation (including
its Board of Directors, its independent legal counsel, and its stockholders)
that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 8.09. Authorization of Corporation Officers. The proper officers of
- ------------- -------------------------------------
the Corporation are, and each of them acting without the other is, authorized to
take any action, for and in the name of the Corporation, which he deems
necessary or appropriate (as conclusively presumed from the taking of such
action) to carry out and effect the foregoing Sections 8.01 through 8.08.
Section 8.10. Other Rights; Continuation of Right to Indemnification. The
- ------------- ------------------------------------------------------
indemnification and advancement of expenses provided by these By-laws shall not
be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law
(present or future, common or statutory), by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding office or
while employed by or acting as agent for the Corporation, and shall continue as
to a person who has ceased to serve in the capacity making him eligible for
indemnification, and shall inure to the benefit of the estate, heirs, executors
and administrators of such person; all rights to indemnification under these By-
laws shall be deemed to be a contract between the Corporation and each director
and officer of the Corporation and, as applicable, any other person indemnified
hereunder who serves or served in such capacity at any time while these By-laws
as well as the relevant provisions of the General Corporation Law of the State
of Maryland or any other applicable laws are or were in effect; any repeal or
modification hereof or of such provisions of such law shall not in any way
diminish any rights to indemnification of such director or officer or other
person entitled to indemnification or the obligations of the Corporation arising
hereunder.
Section 8.11. Savings Clause. If Sections 8.01 through 8.10 of these By-laws
- ------------- --------------
or any portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall nevertheless indemnify each
director and officer, and may indemnify any other person entitled to
indemnification, as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
EDA, INCORPORATED
Page 9 of 9
Corporation, to the full extent permitted by any applicable portion of these By-
laws that shall not have been invalidated and to the full extent permitted by
applicable law. To the full extent permitted by law, the Corporation may enter
into and perform agreements with persons, including, without limitation, present
and former officers, directors and employees of the Corporation and of companies
acquired by or merged with the Corporation, obligating the Corporation, among
other things, to provide indemnification and advancement of costs, charges and
expenses to such persons in addition to any indemnification or advancement which
may be available to such person under Sections 8.01 through 8.10 of these By-
laws.
Section 8.12. Insurance. The Board of Directors may cause the Corporation to
- ------------- ---------
purchase and maintain insurance on behalf of any person who is or was or has
agreed to become a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director or officer of another
corporation, or as its representative in a partnership, joint venture, trust or
other enterprise (including employee benefit plans) against any liability
asserted against such person and incurred in any such capacity or arising out
of such status, whether or not the Corporation would have the power to indemnify
such person.
Section 8.13. Amendment of By-laws. The Board of Directors may from time to
- ------------- --------------------
time adopt further By-laws with respect to indemnification and may amend these
and such By-laws to provide at all times the fullest indemnification permitted
by the General Corporation Law of the State of Maryland.
ARTICLE IX
----------
Amendments
Section 9.01. Amendment by Stockholders. These By-laws may be amended by a
- ------------ -------------------------
majority vote of all the stock issued and outstanding and entitled to vote at
any annual or special meeting of the stockholders, provided notice of intention
to amend shall have been contained in the notice of the meeting.
Section 9.02. Amendment by Board of Directors. The Board of Directors by a
- ------------- -------------------------------
majority vote of the whole Board at any meeting may amend these By-laws,
including By-laws adopted by the stockholders, but the stockholders may from
time to time specify particular provisions of the By-laws which shall not be
amended by the Board of Directors.
<PAGE>
Exhibit 3(m)
CERTIFICATE OF INCORPORATION
OF
ICF KAISER SYSTEMS, INC.
SECTION 1.01. NAME.
The name of the Corporation is ICF Kaiser Systems, Inc.
SECTION 2.01. REGISTERED OFFICE AND AGENT.
The registered office of the Corporation in the State of Delaware is located in
the County of New Castle, at 1013 Centre Road, Wilmington 19805. Its registered
agent at such address is Corporation Service Company.
SECTION 3.01. PURPOSES.
The purpose of the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of
Delaware.
SECTION 4.01. AUTHORIZED SHARES.
The total number of shares of capital stock which the Corporation shall have
authority to issue is one thousand (1,000) shares of Common Stock having a par
value of one dollar ($1.00) per share.
SECTION 5.01. INCORPORATOR.
The name and mailing address of the incorporator is John T. Cassella, 9300 Lee
Highway, Fairfax, Virginia 22031-1207.
SECTION 5.02. DURATION.
The Corporation is to have perpetual existence.
SECTION 6.01. LIMITATION OF LIABILITY.
(a) No person shall be liable to the Corporation for any loss or damage suffered
by it on account of any action taken or omitted to be taken by him or her as a
director or officer of the Corporation, if such person (i) in good faith
exercised or used the same degree of diligence, care and skill as an ordinarily
prudent person would have exercised or used under similar circumstances, or (ii)
took, or omitted to take, such action in good faith reliance upon advice of
counsel for the Corporation, or upon books of account or reports made to the
Corporation by any of its officers or by an independent certified public
accountant, or by an appraiser selected with reasonable care by the Board of
Directors or by any committee designated by the Board of Directors, or in good
faith reliance upon other records of the Corporation.
(b) No director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that the foregoing shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the Corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
SECTION 7.01. RATIFICATION BY STOCKHOLDERS.
Any contract, transaction or act of the Corporation, the Board of Directors, or
a committee of the Board of Directors which shall be approved or ratified by a
majority of a quorum of the stockholders entitled to vote at any meeting or,
without a meeting, by the written consent of the holders of a majority of the
stock entitled to vote shall be as valid and binding as though approved or
ratified by every stockholder of the Corporation; but any failure of the
stockholders to approve or ratify such contract, transaction or act, when and if
submitted, shall not be deemed in any way to invalidate the same or to deprive
the Corporation, its directors or officers, of their right to proceed with such
contract, transaction or act.
SECTION 8.01. INDEMNIFICATION OF DIRECTORS AND OFFICERS FOR ACTIONS, SUITS, OR
PROCEEDINGS OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION.
To the full extent permitted by law, the Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
<PAGE>
Certificate of Incorporation of Kaiser Systems, Inc.
Page 2
criminal, administrative or investigative (other than an action by or in the
right of the Corporation), by reason of the fact that he or she is or was or has
agreed to become a director or officer of the Corporation or is or was serving
or has agreed to serve at the request of the Corporation as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans), or by reason of any action
alleged to have been taken or omitted in such capacity, against costs, charges,
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her on his or her behalf
in connection with any threatened, pending or completed action, suit or
proceeding and any appeal therefrom, including but not limited to liability and
expenses incurred on account of profits realized by him or her in the purchase
or sale of securities of the Corporation, if and only if he or she acted in good
--------------
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful; the termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent
---- ----------
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
SECTION 8.02. INDEMNIFICATION OF DIRECTORS AND OFFICERS FOR ACTIONS OR SUITS BY
OR IN THE RIGHT OF THE CORPORATION.
To the full extent permitted by law, the Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he or she is or was
or has agreed to become a director or officer of the Corporation or is or was
serving or has agreed to serve at the request of the Corporation as a director
or officer of another corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans), or by reason of any action
alleged to have been taken or omitted in such capacity, against costs, charges
and expenses (including attorneys' fees) actually and reasonably incurred by him
or her on his or her behalf in connection with the defense or settlement of any
threatened, pending or completed action or suit and any appeal therefrom, or the
defense or settlement of any claim, issue or matter, if and only if he or she
--------------
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Corporation except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of such liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such costs, charges and expenses which the Court of Chancery or
such other court shall deem proper.
SECTION 8.03. INDEMNIFICATION OF OTHERS FOR ACTIONS, SUITS, OR PROCEEDINGS
OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION.
To the full extent permitted by law, the Corporation, in the sole discretion of
the Board of Directors of the Corporation, may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by
reason of the fact that he or she is or was or has agreed to become an employee,
agent or contractor of the Corporation, or is or was serving or has agreed to
serve at the request of the Corporation as a director, officer, employee, agent
or contractor of another corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans), or by reason of any action
alleged to have been taken or omitted in such capacity, against costs, charges,
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her or on his or her
behalf in connection with any threatened, pending or completed action, suit or
proceeding and any appeal therefrom, including but not limited to liability and
expenses incurred on account of profits realized by him or her in the purchase
or sale of securities of the Corporation, if and only if he or she acted in good
--------------
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful; the
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
---- ----------
itself, create a presumption that the person did not act in good faith and in a
manner which he or she reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
<PAGE>
Certificate of Incorporation of Kaiser Systems, Inc.
Page 3
SECTION 8.04. INDEMNIFICATION OF OTHERS FOR ACTIONS OR SUITS BY OR IN THE RIGHT
OF THE CORPORATION.
To the full extent permitted by law, the Corporation, in the sole discretion of
the Board of Directors of the Corporation, may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he or she is or was or has
agreed to become an employee, agent or contractor of the Corporation, or is or
was serving or has agreed to serve at the request of the Corporation as a
director, officer, employee, agent or contractor of another corporation,
partnership, joint venture, trust or other enterprise (including employee
benefit plans), or by reason of any action alleged to have been taken or omitted
in such capacity, against costs, charges and expenses (including attorneys'
fees) actually and reasonably incurred by him or her or on his or her behalf in
connection with the defense or settlement of any threatened, pending or
completed action or suit and any appeal therefrom, or the defense or settlement
of any claim, issue or matter, if and only if he or she acted in good faith and
-----------
in a manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs, charges and expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 8.05. INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES OF SUCCESSFUL
PARTY.
Notwithstanding the other provisions of this Certificate, to the extent that a
director or officer of the Corporation or other person indemnified under
Sections 9.01 through 9.04, herein, has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, he or she shall be indemnified
against all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or her or on his or her behalf in connection
therewith.
SECTION 8.06. DETERMINATION OF RIGHT TO INDEMNIFICATION.
Unless otherwise ordered by a court, any indemnification under Sections 9.01
through 9.04, herein, shall be paid by the Corporation unless a determination is
made (i) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders, that indemnification of an individual
entitled to indemnification under Sections 9.01 through 9.04, herein, is not
proper in the circumstances because he or she has not met the applicable
standard of conduct set forth in Sections 9.01 through 9.04, herein.
SECTION 8.07. ADVANCE PAYMENT OF COSTS, CHARGES AND EXPENSES.
To the full extent permitted by law, the Corporation shall, upon request, pay
costs, charges and expenses (including attorneys' fees) incurred by a person
entitled to indemnification pursuant to Sections 9.01 and 9.02, herein, and, if
applicable, pursuant to Sections 9.03 and 9.04, herein, in defending a civil or
criminal action, suit or proceeding in advance of the final disposition of such
action, suit or proceeding; provided, however, that the payment of such costs,
-------- -------
charges and expenses incurred by a director or officer in his or her capacity as
a director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer) in advance of the final
disposition of such action, suit or proceeding shall be made only upon receipt
of an undertaking by or on behalf of the director or officer to repay all
amounts so advanced in the event that it shall ultimately be determined that
such director or officer is not entitled to be indemnified by the Corporation as
authorized in this certificate; such costs, charges and expenses incurred by
other employees, agents and contractors may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
SECTION 8.08. PROCEDURE FOR INDEMNIFICATION.
Any indemnification or advance of costs, charges and expenses provided for in
Sections 9.01 through 9.07, herein, shall be made promptly, and in any event
within sixty days, upon the written request of the person entitled to
indemnification; the right to indemnification or advances as granted by this
Certificate shall be enforceable by a director or officer or other person
indemnified hereunder in any court of competent jurisdiction. If the Corporation
denies such request, in whole or in part, or if no disposition thereof is made
within sixty days, such person's costs,
<PAGE>
Certificate of Incorporation of Kaiser Systems, Inc.
Page 4
charges and expenses incurred in connection with successfully establishing his
right to indemnification, in whole or in part, in any such action shall also be
indemnified by the Corporation; it shall be a defense to any such action (other
than an action brought to enforce a claim for the advance of costs, charges and
expenses pursuant to Section 9.07, herein, where the required undertaking, if
any, has been received by the Corporation) that the claimant has not met the
standard of conduct set forth in Sections 9.01 through 9.04, herein. Neither the
failure of the Corporation (including its Board of Directors, its independent
legal counsel, and its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in Sections 9.01 through 9.04, herein, nor the fact that there has
been an actual determination by the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
SECTION 8.09. AUTHORIZATION OF CORPORATION OFFICERS.
The proper officers of the Corporation are, and each of them acting without the
other is, authorized to take any action, for and in the name of the Corporation,
which the officer deems necessary or appropriate (as conclusively presumed from
the taking of such action) to carry out and effect the foregoing Sections 9.01
through 9.08.
SECTION 8.10. THEIR RIGHTS; CONTINUATION OF RIGHT TO INDEMNIFICATION.
The indemnification and advancement of expenses provided by this Certificate
shall not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law
(present or future, common or statutory), by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding
office or while employed by or acting as an agent for the Corporation, and shall
continue as to a person who has ceased to serve in the capacity making him or
her eligible for indemnification, and shall inure to the benefit of the estate,
heirs, executors and administrators of such person; all rights to
indemnification under this Certificate shall be deemed to be a contract between
the Corporation and each director and officer of the Corporation and, as
applicable, any other person indemnified hereunder who serves or served in such
capacity at any time while this Certificate as well as the relevant provisions
of the Delaware General Corporation Law or any other applicable laws are or were
in effect; any repeal or modification hereof or of such provisions of such law
shall not in any way diminish any rights to indemnification of such director or
officer or other person entitled to indemnification or the obligations of the
Corporation arising hereunder.
SECTION 8.11. SAVINGS CLAUSE.
If this Certificate or any portion hereof shall be invalidated on any ground by
any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify each director and officer, and may indemnify any other person entitled
to indemnification, as to costs, charges and expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement with respect to any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Corporation, to the
full extent permitted by any applicable portion of this Certificate that shall
not have been invalidated and to the full extent permitted by applicable law. To
the full extent permitted by law, the Corporation may enter into and perform
agreements with persons, including, without limitation, present and former
officers, directors and employees of the Corporation and of companies acquired
by or merged with the Corporation, obligating the Corporation, among other
things, to provide indemnification and advancement of costs, charges and
expenses to such persons in addition to any indemnification or advancement which
may be available to such person under Sections 9.01 through 9.10 of this
Certificate.
SECTION 8.12. INSURANCE.
The Board of Directors may cause the Corporation to purchase and maintain
insurance on behalf of any person who is or was or has agreed to become a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, or as its
representative in a partnership, joint venture, trust or other enterprise
(including employee benefit plans), against any liability asserted against such
person and incurred in any such capacity or arising out of such status, whether
or not the Corporation would have the power to indemnify such person.
<PAGE>
Certificate of Incorporation of Kaiser Systems, Inc.
Page 5
SECTION 8.13. ADOPTION OF BY-LAWS.
The Board of Directors may from time to time adopt By-laws with respect to
indemnification and may amend such By-laws to provide at all times the fullest
indemnification permitted by the General Corporation Law of the State of
Delaware.
SECTION 9.01. SETTLEMENT OF DEBTS.
Whenever a compromise or arrangement is proposed between this Corporation and
its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting
of the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing three
fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
SECTION 10.01. ELECTIONS OF DIRECTORS.
Elections of directors need not be by written ballot unless the By-laws of the
Corporation shall so provide.
SECTION 11.01. STOCKHOLDERS MEETINGS, RECORDS.
Stockholders meetings may be held within or without the State of Delaware, as
the By-laws may provide. The books of the Corporation may be kept (subject to
any provision in the General Corporation Law of the State of Delaware) outside
of the State of Delaware at such place or places as may be designated from time
to time by the Board of Directors (or duly authorized committee of the Board of
Directors) or in the By-laws of the Corporation.
SECTION 12.01. BY-LAWS.
The Board of Directors (or a duly authorized committee of the Board of
Directors) of the Corporation shall have the power to make and, except as may be
expressly stated in the By-laws, to alter and repeal its By-laws.
SECTION 13.01. AMENDMENT OF CERTIFICATE OF INCORPORATION.
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this certificate, in the manner now or hereafter
prescribed by the General Corporation Law of Delaware, and all rights conferred
upon stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF the undersigned, being the incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate hereby
declaring and certifying that this is my act and deed and the facts herein
stated are true, and accordingly have hereto set my signature this 9th day of
December 1996.
/s/ John T. Cassella
<PAGE>
Exhibit 3(n)
BY-LAWS of
ICF KAISER SYSTEMS, INC.
ARTICLE I
---------
Offices
Section 1.01. Registered Office in Delaware. The registered office shall be in
- ------------ -----------------------------
Wilmington, Delaware. The name of the registered agent of the Corporation at
such location is Corporation Service Company.
Section 1.02. Principal Office. The Board of Directors is granted full power
- ------------ ----------------
and authority to fix and thereafter change the location of the principal office
of the Corporation at any location within the United States.
Section 1.03. Other Offices. The Corporation may have such other offices
- ------------ -------------
either within or without the State of Delaware as the Board of Directors may
from time to time determine.
ARTICLE II
----------
Meetings of Stockholders
Section 2.01. Time and Place of Meeting. Annual meetings of the stockholders
- ------------ -------------------------
for the purpose of electing directors, making reports of the affairs of the
Corporation and transacting such other business as may properly come before the
meeting shall be held at such place, within or without the State of Delaware, on
such date and at such time as the Board of Directors shall each year fix, which
date shall be within thirteen months subsequent to the later of the date of
incorporation or the last annual meeting of stockholders. Meetings of
stockholders for any other purpose may be held at such time and place, within
or without the State of Delaware, as shall be fixed by the Board of Directors
and stated in the notice of meeting. If no other place is fixed by the Board of
Directors, meetings of stockholders shall be held at the principal executive
office of the Corporation. Failure to hold the annual meeting at the designated
time shall not work a forfeiture or dissolution of the Corporation.
Section 2.02. Notice of Meeting. Written notice of meetings of stockholders,
- ------------- ------------------
stating the place, date and hour thereof, and in the case of a special meeting,
the purpose or purposes for which the meeting is being called, shall be given
not less than ten nor more than sixty days before the date of the meeting to
each stockholder entitled to vote thereat.
Section 2.03. Qualified Voters. The officer who has charge of the stock ledger
- ------------ ----------------
of the Corporation shall prepare, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder for any purpose germane to
the meeting during ordinary business hours for a period of at least ten days
prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or if not
so specified, at the place where the meeting is to be held. The list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present and entitled to
vote.
Section 2.04. Special Meetings. Special meetings of the stockholders may be
- ------------- ----------------
called by the Board of Directors or by the President or by a writing signed by
stockholders owning a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote at such meeting. Such
call shall state the purpose or purposes of the proposed meeting. The Secretary
shall give notice of such meeting to the stockholders entitled to vote thereat,
in accordance with such call.
Section 2.05. Business at Special Meetings. Business transacted at any special
- ------------- ----------------------------
meeting of stockholders shall be limited to the purposes stated in the notice.
Section 2.06. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time without notice other than announcement at
the meeting (if the adjournment is not for more than thirty days and a new
record date for the determination of stockholders entitled to vote is not
fixed), until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
<PAGE>
BY-LAWS OF
ICF KAISER SYSTEMS, INC.
Page 2 of 9
Section 2.07. Vote Required. When a quorum is present at any meeting, the vote
- ------------- -------------
of the holders of a majority of the shares of stock having voting power voting,
in person or by proxy, on a question shall decide any question brought before
such meeting, unless the question is one upon which by express provision of the
statutes, the Certificate of Incorporation or these By-laws a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section 2.08. Proxies. Each stockholder shall at every meeting of the
- ------------- -------
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after three years from its date unless the proxy provides for a
longer period. No proxy or power of attorney to vote shall be used to vote at a
meeting of the stockholders unless it shall have been filed with the Secretary
of the meeting when required by the inspectors of election. All questions
regarding the qualification of voters, the validity of proxies and the
acceptance or rejection of votes shall be decided by two inspectors of election
who shall be appointed by the Board of Directors, or if not so appointed, then
by the presiding officer of the meeting.
Section 2.09. Presiding Officer. The President of the Corporation shall
- ------------- -----------------
preside over all meetings of stockholders.
Section 2.10. Consent. Whenever the vote of stockholders at a meeting thereof
- ------------- -------
is required or permitted to be taken in connection with any corporate action by
any provisions of the statutes, the By-laws or the Certificate of Incorporation,
the meeting and vote may be dispensed with if the number of stockholders who
would have been entitled to vote upon the action if such meeting were held,
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting, shall consent in writing to such
corporate action being taken. Prompt notice shall be given by the Secretary to
all stockholders of the taking of corporate action without a meeting by less
than unanimous written consent.
ARTICLE III
-----------
Directors
Section 3.01. Number and Election. The number of directors which shall
- ------------ -------------------
constitute the whole Board shall be no less than one (1) or more than ten (10).
By amendment of this By-law, the number may be increased or decreased from time
to time by the Board of Directors or stockholders within the limits permitted by
law, but no decrease in the number of directors shall change the term of any
director in office at the time thereof. The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 3.02, and each
director shall hold office until his successor is elected and accepts office
unless he earlier resigns or is removed. Directors need not be stockholders. A
director may resign at any time upon written notice to the Corporation or orally
at any meeting of the directors or stockholders.
Section 3.02. Removal and Vacancies. A director may be removed with or without
- ------------- ---------------------
cause by a majority vote of the holders of the outstanding shares entitled to
vote. [Subject to any Stockholder's Agreement] Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and accept office, unless
sooner displaced.
Section 3.03. Management, The business of the Corporation shall be managed by
- ------------- ----------
its Board of Directors, which may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these By-laws directed or required to be
exercised or done by the stockholders.
Section 3.04. Place of Meetings. The Board of Directors of the Corporation may
- ------------- -----------------
hold meetings, both regular and special, either within or without the State of
Delaware. Meetings may be held by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 3.05. Annual Meeting. The first meeting of each newly elected Board of
- ------------ --------------
Directors shall be held immediately following the adjournment of the annual
meeting of stockholders and at the place thereof. No notice of such meeting
shall be necessary to the directors in order legally to constitute the meeting,
provided a quorum is present. In the event such meeting is not so held, the
meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors.
<PAGE>
BY-LAWS OF
ICF KAISER SYSTEMS, INC.
Page 3 of 9
Section 3.06. Notice for Regular Meetings. Regular meetings of the Board of
- ------------- ---------------------------
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board of Directors.
Section 3.07. Special Meetings. Special meetings of the Board of Directors
- ------------- ----------------
may be called by a majority of the Board of Directors or the President and shall
be held on notice by letter mailed or delivered for transmission not later than
on the third day immediately preceding the day of such meeting, or by written
notice delivered or received not later than the day immediately preceding the
day of such meeting. Neither the business to be transacted at, nor the purpose
of, any special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
Section 3.08. Quorum. At meetings of the Board of Directors, a majority of
- ------------- ------
the full number of directors shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
Section 3.09. Chairman of the Board. At its first meeting after each annual
- ------------- ---------------------
meeting of stockholders, the Board of Directors shall elect from among its
members a Chairman. The Board of Directors may also choose a Vice Chairman from
among its members. The Chairman shall preside at all meetings of the Board of
Directors, and shall perform such other duties as the Board may prescribe. The
Chairman may participate and act in any meeting of the Board of Directors as a
director. The Vice Chairman, if any, shall act under the direction of the
Chairman and in the absence or disability of the Chairman shall perform the
duties and exercise the powers of the Chairman. The Chairman and the Vice
Chairman, if any, (i) shall hold their respective offices at the pleasure of the
Board of Directors, and (ii) may be removed with or without cause at any time by
the Board of Directors. Any vacancy occurring in the office of the Chairman or
Vice Chairman by death, resignation, removal or otherwise shall be filled by the
Board of Directors.
Section 3.10. Committees. The Board of Directors may, by resolution adopted by
- ------------- ----------
a majority of the whole Board, designate one or more committees of the Board of
Directors, each committee to consist of one or more of the directors of the
Corporation, which, to the extent provided in the resolution, may have and
exercise any or all the powers of the Board of Directors in the management of
the business and affairs of the Corporation including, but not limited to, the
power and authority of the Board of Directors: (i) to authorize the seal of the
Corporation to be affixed to all papers; (ii) to declare a dividend; (iii) to
authorize the issuance of stock; (iv) to adopt a certificate of ownership and
merger pursuant to Section 253, of Title 8, Delaware Code; and (v) to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board of Directors as provided in Section 151(a) of
Title 8, Delaware Code, fix any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution of assets of
the Corporation or the conversion into, or the exchange of such shares for
shares of any other class or classes or any other series of the same of any
other class or classes of stock of the Corporation. Such committee or
committees shall have such name or names as may be determined from time to time
by the Board of Directors. The member or members of any such committee present
at any meeting and not disqualified from voting may, whether or not they
constitute a quorum, unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any absent or disqualified
member. At meetings of such committees, a majority of the members or alternate
members at any meeting at which there is a quorum shall be the act of the
committee.
Section 3.11. Committee Minutes. The committees shall keep regular minutes of
- ------------- -----------------
their proceedings and report the same to the Board of Directors.
Section 3.12. Consent. Any action required or permitted to be taken at any
- ------------- -------
meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of the
Board of Directors or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or committee.
Section 3.13. Compensation. The directors may be paid their expenses of
- ------------- ------------
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of committees of the Board of Directors may be allowed like reimbursement and
compensation for attending committee meetings.
ARTICLE IV
----------
Notices
<PAGE>
BY-LAWS OF
ICF KAISER SYSTEMS, INC.
Page 4 of 9
Section 4.01. Notice. Notices to directors and stockholders mailed to them at
- ------------ ------
their addresses appearing on the books of the Corporation shall be deemed to be
given at the time when deposited in the United States mail, postage prepaid. An
affidavit of the Secretary or an Assistant Secretary or of the transfer agent of
the Corporation that the notice has been given shall, in the absence of fraud,
be prima facie evidence of the facts stated therein.
Section 4.02. Waiver. Whenever any notice is required to be given under the
- ------------ ------
provisions of the statute, the Certificate of Incorporation or of these By-laws,
a waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Neither the business to be transacted at, nor the purposes
of, any meeting need be specified in such waiver. Attendance at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE V
---------
Officers
Section 5.01. Election. The officers of the Corporation shall be chosen by the
- ------------ --------
Board of Directors at its first meeting after each annual meeting of
stockholders and shall be a President, a Secretary and a Treasurer. The Board
of Directors may also choose one or more Vice Presidents and one or more
Assistant Secretaries and Assistant Treasurers. Two or more offices may be held
by the same person.
Section 5.02. Other Officers. The Board of Directors may appoint such other
- ------------- --------------
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
Section 5.03. Salaries. The salaries of all officers of the Corporation shall
- ------------- --------
be fixed by or under the direction of the Board of Directors.
Section 5.04. Vacancies. The officers of the Corporation shall hold office at
- ------------- ---------
the pleasure of the Board of Directors. Any officer may be removed with or
without cause at any time by the Board of Directors. Each officer shall hold
his office until his successor is elected and qualified or until his earlier
resignation or removal. The Board of Directors may fill any vacancy occurring
in any office of the Corporation by death, resignation, removal or otherwise.
Section 5.05. President. The President shall serve as Chief Executive Officer
- ------------- ---------
of the Corporation, shall have general and active management of the business of
the Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He shall execute on behalf of the
Corporation, and may affix or cause the seal to be affixed to, all instruments
requiring such execution except to the extent the signing and execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation. He shall perform such additional duties and have such
additional powers as the Board of Directors may from time to time prescribe.
Section 5.06. Vice Presidents. The Vice Presidents shall act under the
- ------------- ---------------
direction of the President and in the absence or disability of the President
shall perform the duties and exercise the powers of the President. They shall
perform such other duties and have such other powers as the President or the
Board of Directors may from time to time prescribe. The Board of Directors may
designate one or more Executive Vice Presidents or may otherwise specify the
order of seniority of the Vice Presidents. The duties and powers of the
President shall descend to the Vice Presidents in such specified order of
seniority.
Section 5.07. Secretary. The Secretary shall act under the direction of the
- ------------- ---------
President. Subject to the direction of the President, he shall attend all
meetings of the Board of Directors and all meetings of the stockholders and
record the proceedings in a book to be kept for that purpose. He shall perform
like duties for committees when required. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the
President or the Board of Directors. He shall keep in safe custody the seal of
the Corporation and, when authorized by the President or the Board of Directors,
cause it to be affixed to any instrument requiring it.
Section 5.08. Assistant Secretaries. The Assistant Secretaries shall act under
- ------------- ---------------------
the direction of the President. In the order of their seniority, unless
otherwise determined by the President or the Board of Directors, they shall, in
the absence or
<PAGE>
BY-LAWS OF
ICF KAISER SYSTEMS, INC.
Page 5 of 9
disability of the Secretary, perform the duties and exercise the powers of the
Secretary. They shall perform such other duties and have such other powers as
the President or the Board of Directors may from time to time prescribe.
Section 5.09. Treasurer. The Treasurer shall act under the direction of the
- ------------- ---------
President. Subject to the direction of the President he shall have custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the President or the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation. He may affix or cause to be affixed the seal of the Corporation to
documents so requiring.
Section 5.10. Assistant Treasurers. The Assistant Treasurers in the order of
- ------------- --------------------
their seniority, unless otherwise determined by the President or the Board of
Directors, shall, in the absence or disability of the Treasurer, perform the
duties and exercise the powers of the Treasurer. They shall perform such other
duties and have such other powers as the President or the Board of Directors may
from time to time prescribe.
ARTICLE VI
----------
Certificates of Stock
Section 6.01. Certificate. Every holder of stock in the Corporation shall be
- ------------ -----------
entitled to have a certificate signed by the Chairman or Vice-Chairman of the
Board of Directors, or the President or a Vice President, and by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in the Corporation.
Every such certificate shall contain a statement of the restrictions provided in
Section 4 of this Article.
Section 6.02. Facsimile Signature. Any or all the signatures on the
- ------------- -------------------
certificate may be facsimiles. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, such certificate may be issued with the same effect as
though the person had not ceased to be such officer, transfer agent or
registrar. The seal of the Corporation or a facsimile thereof may, but need
not, be affixed to certificates of stock.
Section 6.03. Lost Certificates. The Board of Directors may direct a new
- ------------- -----------------
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 6.04. Transfer. Upon surrender to the Corporation or the transfer
- ------------- --------
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books,
provided, however, the Corporation shall have no obligation to issue new
certificates, cancel old certificates or record transactions unless and until it
is satisfied that (i) all provisions of the Certificate of Incorporation, these
By-laws and any legends on the certificate regarding transfer of shares and
restrictions on such transfers have been complied with, and (ii) all other
applicable restrictions, including restrictions imposed by law, including
federal and state securities law, and by any stockholders agreement to which the
Corporation is a party, have been complied with.
Section 6.05. Record Date. The Board of Directors may fix in advance a date,
- ------------- -----------
not more than sixty days nor less than ten days preceding the date of any
meeting of stockholders, or not more than sixty days before the date for the
payment of any dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall go into effect,
or a date in connection with obtaining a consent, as a record date for the
determination of the stockholders entitled to notice of, and to vote at, any
such meeting and any adjournment thereof, or entitled to receive payment of any
such dividend, or to any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital stock, or to give
such consent, and in such case such stockholders and only
<PAGE>
BY-LAWS OF
ICF KAISER SYSTEMS, INC.
Page 6 of 9
such stockholders as shall be stockholders of record on the date so fixed shall
be entitled to such notice of, and to vote at, such meeting and any adjournment
thereof, or to receive payment of such dividend, or to receive such allotment of
rights, or to exercise such rights, or to give such consent, as the case may be
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid.
Section 6.06. Recognition of Ownership. The Corporation shall be entitled to
- ------------- ------------------------
recognize the person registered on its books as the owner of shares to be the
exclusive owner for all purposes including voting and dividends, and the
Corporation shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE VII
-----------
Miscellaneous
Section 7.01. Reserves. There may be set aside out of any funds of the
- ------------ --------
Corporation available for dividends such sum or sums as the Board of Directors
may from time to time, in its absolute discretion, think proper, as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for the purchase of additional
property, or for such other purpose as the directors shall think conducive to
the interest of the Corporation, and the Board of Directors may modify or
abolish any such reserve.
Section 7.02. Checks, Demands and Notes. All checks or demands for money and
- ------------- -------------------------
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
Section 7.03. Fiscal Year. The fiscal year of the Corporation shall be as
- ------------- -----------
fixed by the Board of Directors.
Section 7.04. Seal. The corporate seal shall have inscribed thereon the name
- ------------- ----
of the Corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE VIII
------------
Indemnification
Section 8.01. Indemnification of Directors and Officers for Actions, Suits, or
- ------------ ----------------------------------------------------------------
Proceedings Other Than By Or In The Right of the Corporation. To the full
- ------------------------------------------------------------
extent permitted by law, the Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was or has agreed to become a director or
officer of the Corporation or is or was serving or has agreed to serve at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise (including employee
benefit plans) or by reason of any action alleged to have been taken or omitted
in such capacity against costs, charges, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with any threatened, pending or completed
action, suit or proceeding and any appeal therefrom including but not limited to
liability and expenses incurred on account of profits realized by him in the
purchase or sale of securities of the Corporation, if and only if he acted in
--------------
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful; the
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
---- ----------
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 8.02. Indemnification of Directors and Officers for Actions or Suits By
- ------------- -----------------------------------------------------------------
Or In The Right of the Corporation. To the full extent permitted by law, the
- ----------------------------------
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was or has agreed to become a director or officer of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise (including employee benefit plans), or by
reason of any action alleged to have been taken or omitted in such capacity,
against costs, charges and expenses (including
<PAGE>
BY-LAWS OF
ICF KAISER SYSTEMS, INC.
Page 7 of 9
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of any threatened, pending or
completed action or suit and any appeal therefrom, or the defense or settlement
of any claim, issue or matter, if and only if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such costs, charges and expenses which the
Court of Chancery or such other court shall deem proper.
Section 8.03. Indemnification of Others for Actions, Suits, or Proceedings
- ------------- ------------------------------------------------------------
Other Than By Or In The Right of the Corporation. To the full extent permitted
- ------------------------------------------------
by law, the Corporation, in the sole discretion of the Board of Directors of the
Corporation, may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation), by reason of the fact that he
is or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with any threatened,
pending or completed action, suit or proceeding and any appeal therefrom,
including but not limited to liability and expenses incurred on account of
profits realized by him in the purchase or sale of securities of the
Corporation, if and only if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful; the termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 8.04. Indemnification of Others for Actions or Suits By Or In The Right
- ------------- -----------------------------------------------------------------
of the Corporation. To the full extent permitted by law, the Corporation, in
- ------------------
the sole discretion of the Board of Directors of the Corporation, may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of any threatened, pending or
completed action or suit and any appeal therefrom, or the defense or settlement
of any claim, issue or matter, if and only if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such costs, charges and expenses which the
Court of Chancery or such other court shall deem proper.
Section 8.05. Indemnification for Costs, Charges and Expenses of Successful
- ------------- -------------------------------------------------------------
Party. Notwithstanding the other provisions of these By-laws, to the extent
- -----
that a director or officer of the Corporation or other person indemnified under
Sections 8.01 through 8.04, herein, has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, he shall be indemnified against
all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or on his behalf in connection therewith.
Section 8.06. Determination of Right to Indemnification. Unless otherwise
- ------------- -----------------------------------------
ordered by a court, any indemnification under Sections 8.01 through 8.04,
herein, shall be paid by the Corporation unless a determination is made (i) by
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (ii) if such a
quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so
<PAGE>
BY-LAWS OF
ICF KAISER SYSTEMS, INC.
Page 8 of 9
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders, that indemnification of an individual entitled to indemnification
under Sections 8.01 through 8.04, herein, is not proper in the circumstances
because he has not met the applicable standard of conduct set forth in Sections
8.01 through 8.04, herein.
Section 8.07. Advance Payment of Costs, Charges and Expenses. To the full
- ------------- ----------------------------------------------
extent permitted by law, the Corporation shall, upon request, pay costs, charges
and expenses (including attorneys' fees) incurred by a person entitled to
indemnification pursuant to Sections 8.01 and 8.02, herein, and, if applicable,
pursuant to Sections 8.03 and 8.04, herein, in defending a civil or criminal
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding; provided, however, that the payment of such costs, charges
and expenses incurred by a director or officer in his capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer) in advance of the final disposition of
such action, suit or proceeding shall be made only upon receipt of an
undertaking by or on behalf of the director or officer to repay all amounts so
advanced in the event that it shall ultimately be determined that such director
or officer is not entitled to be indemnified by the Corporation as authorized
in these By-laws; such costs, charges and expenses incurred by other employees,
agents and contractors may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
Section 8.08. Procedure for Indemnification. Any indemnification or advance of
- ------------- -----------------------------
costs, charges and expenses provided for in Sections 8.01 through 8.07, herein,
shall be made promptly, and in any event within sixty (60) days, upon the
written request of the person entitled to indemnification; the right to
indemnification or advances as granted by these By-laws shall be enforceable by
a director or officer or other person indemnified hereunder in any court of
competent jurisdiction. If the Corporation denies such request, in whole or in
part, or if no disposition thereof is made within sixty (60) days, such person's
costs, charges and expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation; it shall be a defense to
any such action (other than an action brought to enforce a claim for the advance
of costs, charges and expenses pursuant to Section 8.07, herein, where the
required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in Sections 8.01 through
8.04, herein, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in Sections 8.01 through 8.04, herein, nor the
fact that there has been an actual determination by the Corporation (including
its Board of Directors, its independent legal counsel, and its stockholders)
that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 8.09. Authorization of Corporation Officers. The proper officers of
- ------------- -------------------------------------
the Corporation are, and each of them acting without the other is, authorized to
take any action, for and in the name of the Corporation, which he deems
necessary or appropriate (as conclusively presumed from the taking of such
action) to carry out and effect the foregoing Sections 8.01 through 8.08.
Section 8.10. Other Rights; Continuation of Right to Indemnification. The
- ------------- ------------------------------------------------------
indemnification and advancement of expenses provided by these By-laws shall not
be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law
(present or future, common or statutory), by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding office or
while employed by or acting as agent for the Corporation, and shall continue as
to a person who has ceased to serve in the capacity making him eligible for
indemnification, and shall inure to the benefit of the estate, heirs, executors
and administrators of such person; all rights to indemnification under these By-
laws shall be deemed to be a contract between the Corporation and each director
and officer of the Corporation and, as applicable, any other person indemnified
hereunder who serves or served in such capacity at any time while these By-laws
as well as the relevant provisions of the Delaware General Corporation Law or
any other applicable laws are or were in effect; any repeal or modification
hereof or of such provisions of such law shall not in any way diminish any
rights to indemnification of such director or officer or other person entitled
to indemnification or the obligations of the Corporation arising hereunder.
Section 8.11. Savings Clause. If Sections 8.01 through 8.10 of these By-laws
- ------------- --------------
or any portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall nevertheless indemnify each
director and officer, and may indemnify any other person entitled to
indemnification, as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the
<PAGE>
BY-LAWS OF
ICF KAISER SYSTEMS, INC.
Page 9 of 9
Corporation, to the full extent permitted by any applicable portion of these By-
laws that shall not have been invalidated and to the full extent permitted by
applicable law. To the full extent permitted by law, the Corporation may enter
into and perform agreements with persons, including, without limitation, present
and former officers, directors and employees of the Corporation and of companies
acquired by or merged with the Corporation, obligating the Corporation, among
other things, to provide indemnification and advancement of costs, charges and
expenses to such persons in addition to any indemnification or advancement which
may be available to such person under Sections 8.01 through 8.10 of these By-
laws.
Section 8.12. Insurance. The Board of Directors may cause the Corporation to
- ------------- ---------
purchase and maintain insurance on behalf of any person who is or was or has
agreed to become a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director or officer of another
corporation, or as its representative in a partnership, joint venture, trust or
other enterprise (including employee benefit plans) against any liability
asserted against such person and incurred in any such capacity or arising out
of such status, whether or not the Corporation would have the power to indemnify
such person.
Section 8.13. Amendment of By-laws. The Board of Directors may from time to
- ------------- --------------------
time adopt further By-laws with respect to indemnification and may amend these
and such By-laws to provide at all times the fullest indemnification permitted
by the General Corporation Law of the State of Delaware.
ARTICLE IX
----------
Amendments
Section 9.01. Amendment by Stockholders. These By-laws may be amended by a
- ------------ -------------------------
majority vote of all the stock issued and outstanding and entitled to vote at
any annual or special meeting of the stockholders, provided notice of intention
to amend shall have been contained in the notice of the meeting.
Section 9.02. Amendment by Board of Directors. The Board of Directors by a
- ------------- -------------------------------
majority vote of the whole Board at any meeting may amend these By-laws,
including By-laws adopted by the stockholders, but the stockholders may from
time to time specify particular provisions of the By-laws which shall not be
amended by the Board of Directors.
<PAGE>
Exhibit 3(o)
CERTIFICATE OF INCORPORATION
OF
GLOBAL TRADE & INVESTMENT, INC.
Section 1.01. Name. The name of the Corporation is Global Trade & Investment,
- ------------ ----
Inc.
Section 2.01. Registered Office and Agent. The registered office of the
- ------------ ---------------------------
Corporation in the State of Delaware is located at 1013 Centre Road, Wilmington,
County of New Castle. Its registered agent at such address is Corporation
Service Company.
Section 3.01. Purposes. The purposes of the Corporation are:
- ------------ --------
(a) to engage in the business of providing consulting and information
services for international trade related matters;
(b) to purchase, sell, lease, trade, hold, license, grant rights in
or with respect to, and manage property (both real and personal,
tangible and intangible) assets and rights;
(c) to provide services of any kind or nature, to third parties and
affiliates; and
(d) to engage in any lawful act or activities for which corporations
may be organized under the General Corporation law of Delaware.
Section 4.01. Authorized Shares. The total number of shares of stock which the
- ------------ -----------------
Corporation shall have authority to issue is one thousand (1000) shares of
common stock having a par value of $1.00 per share and entitled to vote at any
annual or special meeting of the stockholders of the Corporation.
Section 5.01. Incorporator. The name and mailing address of the incorporator
- ------------ ------------
is: Mark E. Mazo, 1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004.
Section 5.01. Duration. The Corporation is to have perpetual existence.
- ------------ --------
Section 6.01. Initial Board of Directors. The names and mailing addresses of
- ------------ --------------------------
the persons who are to serve as directors of the Corporation until the first
annual meeting of stockholders or until their successors are elected and qualify
are:
Mr. Douglas W. McMinn 1850 K Street, N.W.
Washington, D.C. 20006
Mr. Nicholas Burakow 1850 K Street, N.W.
Washington, D.C. 20006
James O. Edwards 9300 Lee Highway
Fairfax, Virginia 22031
Raymond E. List 9300 Lee Highway
Fairfax, Virginia 22031
The powers of the incorporator shall terminate upon the filing of this
Certificate of Incorporation.
Section 7.01. Limitation of Liability.
- ------------- -----------------------
(a) No person shall be liable to the Corporation for any loss or
damage suffered by it on account of nay action taken or omitted to be taken by
him as a director of officer of the Corporation, if such person (i) in good
faith exercised or used the same degree of diligence, care and skill as an
ordinarily prudent man would have exercised or used under similar circumstances,
or (ii) took, or omitted to take, such action in good faith reliance upon advice
of counsel for the Corporation, or upon books of account or reports made to the
Corporation by any of its officers or by an independent certified public
accountant, or by an appraiser selected with reasonable care by the Board of
Directors or by any committee designated by the Board of Directors, or in good
faith reliance upon other records of the Corporation.
(b) No director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that the foregoing shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
<PAGE>
under Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit.
Section 8.01. Ratification by Stockholders. Any contract, transaction or act
- ------------- ----------------------------
of the Corporation, the Board of Directors, or a committee of the Board of
Directors which shall be approved or ratified by a majority of a quorum of the
stockholders entitled to vote at any meeting or, without a meeting, by the
written consent of the holders of a majority of the stock entitled to vote,
shall be as valid and binding as though approved or ratified by every
stockholder of the Corporation; but any failure or the stockholders to approve
or ratify such contract, transaction or act, when and if submitted, shall not be
deemed in any way to invalidate the same or to deprive the Corporation, its
directors or officers, of their right to proceed with such contract, transaction
or act.
Section 9.01. Indemnification of Directors and Officers for Actions, Suits, or
- ------------- ----------------------------------------------------------------
Proceedings Other than by or in the Right of the Corporation. To the full
- ------------------------------------------------------------
extent permitted by law, the Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in right of the Corporation), by
reason of the fact that he is or was or has agreed to become a director or
officer of the Corporation or is or was serving or has agreed to serve at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise (including employee
benefit plans), or by reason of any action alleged to have taken or omitted in
such capacity, against costs, charges, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with any threatened, pending or completed
action, suit or proceeding and any appeal therefrom including but not limited to
liability and expenses incurred on account of profits realized by him in the
purchase or sale of securities of the Corporation, if and only if he acted in
--------------
good faith and in a manner he reasonably believed to be in or not opposed to be
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful; the
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
---- ----------
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 9.02. Indemnification of Directors and Officers for Actions or Suits by
- ------------- -----------------------------------------------------------------
or in the Right of the Corporation. To the full extent permitted by law, the
- -----------------------------------
Corporation, in the sole discretion of the Board of Directors of the
Corporation, may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was or has agreed to become an employee, agent or contractor
of the Corporation, or is or was serving or has agreed to serve at the request
of the Corporation as a director, officer, employee, agent or contractor of
another corporation, partnership, joint venture, trust or other enterprise
(including employee benefit plans), or by reason of any action alleged to have
been taken or omitted in such capacity, against costs, charges and expenses
(including attorneys' fees) actually and reasonably incurred by him or on his
behalf in connection with the defense or settlement of any threatened, pending
or completed action or suit and any appeal therefrom, or the defense or
settlement of any claim, issue or matter, if and only if he acted in good faith
--------------
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstance of the case, such person is fairly
and reasonably entitled to indemnity for such costs, charges and expenses which
the Court of Chancery or such other court shall deem proper.
Section 9.03. Indemnification of Others for Actions, Suites, or Proceedings
- ------------- -------------------------------------------------------------
Other Than By or In the Right of the Corporation. To the full extent permitted
- ------------------------------------------------
by law, the Corporation, in the sole discretion of the Board of Directors of the
Corporation, may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation), by reason of the fact that his
or she is or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against cost, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her or on his or her behalf in connection with any
threatened, pending or completed action, suit or proceeding and any appeal
therefrom, including but not limited to liability and expenses incurred on
account of profits realized by him or her in the purchase or sale of securities
of the Corporation, if and only if he or she acted in good faith and in a manner
--------------
he or she reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; the termination of any
<PAGE>
action, suit or proceeding by judgment, order settlement, conviction, or upon a
pleas of nolo contendere or its equivalent shall not, of itself, create a
---- ----------
presumption that the person did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 9.04. Indemnification of Others for Actions or Suits By or In the Right
- ------------- -----------------------------------------------------------------
of the Corporation. To the full extent permitted by law, the Corporation, in
- ------------------
the sole discretion of the Board of Directors of the Corporation, may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he or
she is or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against cost, charges, expenses (including
attorneys' fees) actually and reasonably incurred by him or her or on his or
her behalf in connection with the defense or settlement of any threatened,
pending or completed action or suit and any appeal therefrom, or the defense or
settlement of any claim, issue or matter, if any only if he or she acted in good
--------------
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Corporation except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs, charges and expenses
which the Court of Chancery or such other court shall deem proper.
Section 9.05. Indemnification for Costs, Charges and Expenses of Successful
- ------------- -------------------------------------------------------------
Party. Notwithstanding the other provisions of this Certificate, to the extent
- -----
that a director or officer of the Corporation has been successful on the merits
or otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, he shall be indemnified against
all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or on his behalf in connection therewith.
Section 9.06. Determination of Right to Indemnification. Unless other wise
- ------------- -----------------------------------------
ordered by a court, any indemnification under Sections 9.01 through 9.04,
herein, shall be paid by the Corporation unless a determination is made (1) by
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (2) if such a quorum
is not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders, that indemnification of an individual entitled to indemnification
under Section 9.01 through 9.04, herein, is not proper in the circumstances
because he has not met the applicable standard of conduct set forth in Section
9.01 through 9.04, herein.
Section 9.07. Advance Payment of Costs, Charges and Expenses. To the full
- ------------- ----------------------------------------------
extent permitted by law, the Corporation shall, upon request, pay costs, charges
and expenses (including attorneys' fees) incurred by a person entitled to
indemnification pursuant to Sections 9.01 and 9.02, therein, and, if applicable,
pursuant to Sections 9.03 and 9.04, herein, in defending a civil or criminal
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding; provided, however, that the payment of such costs, charges
and expenses incurred by a director or officer in his capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer) in advance of the final disposition of
such action, suit or proceeding shall be made only upon receipt of an
undertaking by or on behalf of the director or officer to repay all amounts so
advanced in the event that it shall ultimately be determined that such director
or officer is not entitled to be indemnified by the Corporation as authorized in
this certificate; such costs, charges and expenses incurred by other employees,
agents and contractors may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
Section 9.08. Procedure for Indemnification. Any indemnification or advance of
- ------------- -----------------------------
costs, charges and expenses provided for in Sections 9.01 through 9.07, herein,
shall be made promptly, and in any event within sixty days, upon the written
request of the person entitled to indemnification; the right to indemnification
or advances as granted by this Certificate shall be enforceable by a director of
officer in any court of competent jurisdiction. If the Corporation denies such
request, in whole or in part, or if no disposition thereof is made within sixty
days, such person's costs, charges and expenses incurred in connection with
successfully establishing his right to indemnification, in whole or in part, in
any such action shall also be indemnified by the Corporation; it shall be a
defense to any such action (other than an action brought to enforce a claim for
the advance of costs, charges and expenses pursuant to Section 9.07, herein,
where the required undertaking, if any, has been received by the Corporation)
that the claimant has not met the standard of conduct set forth in Sections 9.01
through 9.04, herein, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation
<PAGE>
(including its Board of Directors, its independent legal counsel, and its
shareholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in Sections 9.01
through 9.04, herein, not the fact that there has been an actual determination
by the Corporation (including its Board of Directors, its independent legal
counsel, and its shareholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
Section 9.09. Authorization of Corporation Officers. The proper officers of
- ------------- -------------------------------------
the Corporation are, and each of them acting without the other is, authorized to
take any action, for and in the name of the Corporation, which he deems
necessary or appropriate (as conclusively presumed from the taking of such
action) to carry out and effect the foregoing Sections 9.01 through 9.08.
Section 9.10. Other Rights; Continuation of Right to Indemnification. The
- ------------- ------------------------------------------------------
indemnification and advancement of expenses provided by this Certificate shall
not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law
(present or future, common or statutory), by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding office or
while employed by or acting as agent for the Corporation, and shall continue as
to a person who has ceased to serve in the capacity making him eligible for
indemnification, and shall inure to the benefit of the estate, heirs, executors
and administrators of such person; all rights to indemnification under this
Certificate shall be deemed to be a contract between the Corporation and each
director and officer of the Corporation who serves or served in such capacity at
any time while this Certificate as well as the relevant provisions of the
Delaware General Corporation Law or any other applicable laws are or were in
effect; any repeal or modification hereof or of such provisions of such law
shall not in any way diminish any rights to indemnification of such director or
officer entitled to indemnification or the obligations of the Corporation
arising hereunder.
Section 9.11. Savings Clause. If this Certificate or any portion hereof shall
- ------------- --------------
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director and officer, and may
indemnify any other person entitled to indemnification, as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including as action by or in the
right of the Corporation, to the full extent permitted by any applicable portion
of this Certificate that shall not have been invalidated and to the full extent
permitted by applicable law. To the full extent permitted by law, the
Corporation may enter into and perform agreements with persons, including,
without limitation, present and former officers, directors and employees of the
Corporation and of companies acquired by or merged with the Corporation,
obligating the Corporation, among other things, to provide indemnification and
advancement of costs, charges and expenses to such persons in addition to any
indemnification or advancement which may be available to such person under
Section 9.01 through 9.10 of this Certificate.
Section 9.12. Insurance. The Board of Directors may cause the Corporation to
- ------------- ---------
purchase and maintain insurance on behalf of any person who is or was or has
agreed to become a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director or officer of another
corporation, or as its representative in a partnership, joint venture, trust or
other enterprise, including employee benefit plans, against any liability
asserted against such person and incurred in any such capacity or arising out of
such status, whether or not the Corporation would have the power to indemnify
such person.
Section 9.13. Adoption of By-laws. The Board of Directors may from time to
- ------------- -------------------
time adopt By-laws with respect to indemnification and may amend such By-laws to
provide at all times the fullest indemnification permitted by the General
Corporation Law of the State of Delaware.
Section 10.01. Settlement of Debts. Whenever a compromise or arrangement is
- -------------- -------------------
proposed between this Corporation and its creditors or any class of them and/or
between this Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application in a
summary way of this Corporation or of any creditor or stockholder thereof or on
the application of any receiver or receivers appointed for this Corporation
under the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of section 291 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
<PAGE>
Section 11.01. Elections of Directors. Elections of directors need not be by
- -------------- ----------------------
written ballot unless the By-laws of the Corporation shall so provide.
Section 12.01. Stockholders Meetings, Records. Stockholders meetings may be
- -------------- ------------------------------
held within or without the State of Delaware, as the By-laws may provide. The
books of the Corporation may be kept (subject to any provision in the General
Corporation Law of the State of Delaware) outside of the State of Delaware at
such place or places as may be designated from time to time by the Board of
Directors (or duly authorized committee of the Board of Directors) or in the By-
laws of the Corporation.
Section 13.01. By-laws. The Board of Directors (or a duly authorized committee
- -------------- -------
of the Board of Directors) of the Corporation shall have the power to make,
alter or repeal its By-laws.
Section 14.01. Amendment of Certificate of Incorporation. The Corporation
- -------------- -----------------------------------------
reserves the right to amend, alter, change or repeal any provision contained in
this certificate, in the manner now or hereafter prescribed by the General
Corporation Law of the State of Delaware, and all rights conferred upon
stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF the undersigned, being the incorporator
hereinbefore named, for the purpose of forming a corporation pursuant to the
General Corporation Law of the State of Delaware, does make this certificate
hereby declaring and certifying that this is my act and deed and the facts
herein stated are true, and accordingly have hereto set my signature this 8th
day of December, 1987.
Mark E. Mazo
District of Columbia:
BE IT REMEMBERED that on 8th December, 1987, personally came before
me, a Notary Public for the District of Columbia, Mark E. Mazo, the subscriber
to the foregoing Certificate of Incorporation, known to me personally to be
such, and acknowledged the said Certificate to be his act and deed and that the
facts therein stated are truly set forth.
GIVEN under my hand and seal of office the day and year aforesaid.
Notary Public
<PAGE>
Exhibit 3(p)
AMENDED AND RESTATED BY-LAWS
of
GLOBAL TRADE & INVESTMENT, INC.
ARTICLE I
---------
Offices
Section 1.01. Registered Office in Delaware. The registered office shall be in
- ------------ -----------------------------
Wilmington, Delaware. The name of the registered agent of the Corporation at
such location is Corporation Service Company.
Section 1.02. Principal Office. The Board of Directors is granted full power
- ------------ ----------------
and authority to fix and thereafter change the location of the principal office
of the Corporation at any location within the United States.
Section 1.03. Other Offices. The Corporation may have such other offices
- ------------ -------------
either within or without the State of Delaware as the Board of Directors may
from time to time determine.
ARTICLE II
----------
Meetings of Stockholders
Section 2.01. Time and Place of Meeting. Annual meetings of the stockholders
- ------------ -------------------------
for the purpose of electing directors, making reports of the affairs of the
Corporation and transacting such other business as may properly come before the
meeting shall be held at such place, within or without the State of Delaware, on
such date and at such time as the Board of Directors shall each year fix, which
date shall be within thirteen months subsequent to the later of the date of
incorporation or the last annual meeting of stockholders. Meetings of
stockholders for any other purpose may be held at such time and place, within
or without the State of Delaware, as shall be fixed by the Board of Directors
and stated in the notice of meeting. If no other place is fixed by the Board of
Directors, meetings of stockholders shall be held at the principal executive
office of the Corporation. Failure to hold the annual meeting at the designated
time shall not work a forfeiture or dissolution of the Corporation.
Section 2.02. Notice of Meeting. Written notice of meetings of stockholders,
- ------------- ------------------
stating the place, date and hour thereof, and in the case of a special meeting,
the purpose or purposes for which the meeting is being called, shall be given
not less than ten nor more than sixty days before the date of the meeting to
each stockholder entitled to vote thereat.
Section 2.03. Qualified Voters. The officer who has charge of the stock ledger
- ------------ ----------------
of the Corporation shall prepare, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder for any purpose germane to
the meeting during ordinary business hours for a period of at least ten days
prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or if not
so specified, at the place where the meeting is to be held. The list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present and entitled to
vote.
Section 2.04. Special Meetings. Special meetings of the stockholders may be
- ------------- ----------------
called by the Board of Directors or by the President or by a writing signed by
stockholders owning a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote at such meeting. Such
call shall state the purpose or purposes of the proposed meeting. The Secretary
shall give notice of such meeting to the stockholders entitled to vote thereat,
in accordance with such call.
Section 2.05. Business at Special Meetings. Business transacted at any special
- ------------- ----------------------------
meeting of stockholders shall be limited to the purposes stated in the notice.
Section 2.06. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time without notice other than announcement at
the meeting (if the adjournment is not for more than thirty days and a new
record date for the determination of stockholders entitled to vote is not
fixed), until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
GLOBAL TRADE & INVESTMENT, INC.
Page 2 of 9
Section 2.07. Vote Required. When a quorum is present at any meeting, the vote
- ------------- -------------
of the holders of a majority of the shares of stock having voting power voting,
in person or by proxy, on a question shall decide any question brought before
such meeting, unless the question is one upon which by express provision of the
statutes, the Certificate of Incorporation or these By-laws a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section 2.08. Proxies. Each stockholder shall at every meeting of the
- ------------- -------
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after three years from its date unless the proxy provides for a
longer period. No proxy or power of attorney to vote shall be used to vote at a
meeting of the stockholders unless it shall have been filed with the Secretary
of the meeting when required by the inspectors of election. All questions
regarding the qualification of voters, the validity of proxies and the
acceptance or rejection of votes shall be decided by two inspectors of election
who shall be appointed by the Board of Directors, or if not so appointed, then
by the presiding officer of the meeting.
Section 2.09. Presiding Officer. The President of the Corporation shall
- ------------- -----------------
preside over all meetings of stockholders.
Section 2.10. Consent. Whenever the vote of stockholders at a meeting thereof
- ------------- -------
is required or permitted to be taken in connection with any corporate action by
any provisions of the statutes, the By-laws or the Certificate of Incorporation,
the meeting and vote may be dispensed with if the number of stockholders who
would have been entitled to vote upon the action if such meeting were held,
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting, shall consent in writing to such
corporate action being taken. Prompt notice shall be given by the Secretary to
all stockholders of the taking of corporate action without a meeting by less
than unanimous written consent.
ARTICLE III
-----------
Directors
Section 3.01. Number and Election. The number of directors which shall
- ------------ -------------------
constitute the whole Board shall be no less than one (1) or more than ten (10).
By amendment of this By-law, the number may be increased or decreased from time
to time by the Board of Directors or stockholders within the limits permitted by
law, but no decrease in the number of directors shall change the term of any
director in office at the time thereof. The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 3.02, and each
director shall hold office until his successor is elected and accepts office
unless he earlier resigns or is removed. Directors need not be stockholders. A
director may resign at any time upon written notice to the Corporation or orally
at any meeting of the directors or stockholders.
Section 3.02. Removal and Vacancies. A director may be removed with or without
- ------------- ---------------------
cause by a majority vote of the holders of the outstanding shares entitled to
vote. [Subject to any Stockholder's Agreement] Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and accept office, unless
sooner displaced.
Section 3.03. Management, The business of the Corporation shall be managed by
- ------------- ----------
its Board of Directors, which may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these By-laws directed or required to be
exercised or done by the stockholders.
Section 3.04. Place of Meetings. The Board of Directors of the Corporation may
- ------------- -----------------
hold meetings, both regular and special, either within or without the State of
Delaware. Meetings may be held by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 3.05. Annual Meeting. The first meeting of each newly elected Board of
- ------------ --------------
Directors shall be held immediately following the adjournment of the annual
meeting of stockholders and at the place thereof. No notice of such meeting
shall be necessary to the directors in order legally to constitute the meeting,
provided a quorum is present. In the event such meeting is not so held, the
meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors.
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
GLOBAL TRADE & INVESTMENT, INC.
Page 3 of 9
Section 3.06. Notice for Regular Meetings. Regular meetings of the Board of
- ------------- ---------------------------
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board of Directors.
Section 3.07. Special Meetings. Special meetings of the Board of Directors may
- ------------- ----------------
be called by a majority of the Board of Directors or the President and shall be
held on notice by letter mailed or delivered for transmission not later than on
the third day immediately preceding the day of such meeting, or by written
notice delivered or received not later than the day immediately preceding the
day of such meeting. Neither the business to be transacted at, nor the purpose
of, any special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
Section 3.08. Quorum. At meetings of the Board of Directors, a majority of the
- ------------- ------
full number of directors shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
Section 3.09. Chairman of the Board. At its first meeting after each annual
- ------------- ---------------------
meeting of stockholders, the Board of Directors shall elect from among its
members a Chairman. The Board of Directors may also choose a Vice Chairman from
among its members. The Chairman shall preside at all meetings of the Board of
Directors, and shall perform such other duties as the Board may prescribe. The
Chairman may participate and act in any meeting of the Board of Directors as a
director. The Vice Chairman, if any, shall act under the direction of the
Chairman and in the absence or disability of the Chairman shall perform the
duties and exercise the powers of the Chairman. The Chairman and the Vice
Chairman, if any, (i) shall hold their respective offices at the pleasure of the
Board of Directors, and (ii) may be removed with or without cause at any time by
the Board of Directors. Any vacancy occurring in the office of the Chairman or
Vice Chairman by death, resignation, removal or otherwise shall be filled by the
Board of Directors.
Section 3.10. Committees. The Board of Directors may, by resolution adopted by
- ------------- ----------
a majority of the whole Board, designate one or more committees of the Board of
Directors, each committee to consist of one or more of the directors of the
Corporation, which, to the extent provided in the resolution, may have and
exercise any or all the powers of the Board of Directors in the management of
the business and affairs of the Corporation including, but not limited to, the
power and authority of the Board of Directors: (i) to authorize the seal of the
Corporation to be affixed to all papers; (ii) to declare a dividend; (iii) to
authorize the issuance of stock; (iv) to adopt a certificate of ownership and
merger pursuant to Section 253, of Title 8, Delaware Code; and (v) to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board of Directors as provided in Section 151(a) of
Title 8, Delaware Code, fix any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution of assets of
the Corporation or the conversion into, or the exchange of such shares for
shares of any other class or classes or any other series of the same of any
other class or classes of stock of the Corporation. Such committee or
committees shall have such name or names as may be determined from time to time
by the Board of Directors. The member or members of any such committee present
at any meeting and not disqualified from voting may, whether or not they
constitute a quorum, unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any absent or disqualified
member. At meetings of such committees, a majority of the members or alternate
members at any meeting at which there is a quorum shall be the act of the
committee.
Section 3.11. Committee Minutes. The committees shall keep regular minutes of
- ------------- -----------------
their proceedings and report the same to the Board of Directors.
Section 3.12. Consent. Any action required or permitted to be taken at any
- ------------- -------
meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of the
Board of Directors or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or committee.
Section 3.13. Compensation. The directors may be paid their expenses of
- ------------- ------------
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of committees of the Board of Directors may be allowed like reimbursement and
compensation for attending committee meetings.
ARTICLE IV
----------
Notices
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
GLOBAL TRADE & INVESTMENT, INC.
Page 4 of 9
Section 4.01. Notice. Notices to directors and stockholders mailed to them at
- ------------ ------
their addresses appearing on the books of the Corporation shall be deemed to be
given at the time when deposited in the United States mail, postage prepaid. An
affidavit of the Secretary or an Assistant Secretary or of the transfer agent of
the Corporation that the notice has been given shall, in the absence of fraud,
be prima facie evidence of the facts stated therein.
Section 4.02. Waiver. Whenever any notice is required to be given under the
- ------------ ------
provisions of the statute, the Certificate of Incorporation or of these By-laws,
a waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Neither the business to be transacted at, nor the purposes
of, any meeting need be specified in such waiver. Attendance at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE V
---------
Officers
Section 5.01. Election. The officers of the Corporation shall be chosen by the
- ------------ --------
Board of Directors at its first meeting after each annual meeting of
stockholders and shall be a President, a Secretary and a Treasurer. The Board
of Directors may also choose one or more Vice Presidents and one or more
Assistant Secretaries and Assistant Treasurers. Two or more offices may be held
by the same person.
Section 5.02. Other Officers. The Board of Directors may appoint such other
- ------------- --------------
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
Section 5.03. Salaries. The salaries of all officers of the Corporation shall
- ------------- --------
be fixed by or under the direction of the Board of Directors.
Section 5.04. Vacancies. The officers of the Corporation shall hold office at
- ------------- ---------
the pleasure of the Board of Directors. Any officer may be removed with or
without cause at any time by the Board of Directors. Each officer shall hold
his office until his successor is elected and qualified or until his earlier
resignation or removal. The Board of Directors may fill any vacancy occurring
in any office of the Corporation by death, resignation, removal or otherwise.
Section 5.05. President. The President shall serve as Chief Executive Officer
- ------------- ---------
of the Corporation, shall have general and active management of the business of
the Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He shall execute on behalf of the
Corporation, and may affix or cause the seal to be affixed to, all instruments
requiring such execution except to the extent the signing and execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation. He shall perform such additional duties and have such
additional powers as the Board of Directors may from time to time prescribe.
Section 5.06. Vice Presidents. The Vice Presidents shall act under the
- ------------- ---------------
direction of the President and in the absence or disability of the President
shall perform the duties and exercise the powers of the President. They shall
perform such other duties and have such other powers as the President or the
Board of Directors may from time to time prescribe. The Board of Directors may
designate one or more Executive Vice Presidents or may otherwise specify the
order of seniority of the Vice Presidents. The duties and powers of the
President shall descend to the Vice Presidents in such specified order of
seniority.
Section 5.07. Secretary. The Secretary shall act under the direction of the
- ------------- ---------
President. Subject to the direction of the President, he shall attend all
meetings of the Board of Directors and all meetings of the stockholders and
record the proceedings in a book to be kept for that purpose. He shall perform
like duties for committees when required. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the
President or the Board of Directors. He shall keep in safe custody the seal of
the Corporation and, when authorized by the President or the Board of Directors,
cause it to be affixed to any instrument requiring it.
Section 5.08. Assistant Secretaries. The Assistant Secretaries shall act under
- ------------- ---------------------
the direction of the President. In the order of their seniority, unless
otherwise determined by the President or the Board of Directors, they shall, in
the absence or
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
GLOBAL TRADE & INVESTMENT, INC.
Page 5 of 9
disability of the Secretary, perform the duties and exercise the powers of the
Secretary. They shall perform such other duties and have such other powers as
the President or the Board of Directors may from time to time prescribe.
Section 5.09. Treasurer. The Treasurer shall act under the direction of the
- ------------- ---------
President. Subject to the direction of the President he shall have custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the President or the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation. He may affix or cause to be affixed the seal of the Corporation to
documents so requiring.
Section 5.10. Assistant Treasurers. The Assistant Treasurers in the order of
- ------------- --------------------
their seniority, unless otherwise determined by the President or the Board of
Directors, shall, in the absence or disability of the Treasurer, perform the
duties and exercise the powers of the Treasurer. They shall perform such other
duties and have such other powers as the President or the Board of Directors may
from time to time prescribe.
ARTICLE VI
----------
Certificates of Stock
Section 6.01. Certificate. Every holder of stock in the Corporation shall be
- ------------ -----------
entitled to have a certificate signed by the Chairman or Vice-Chairman of the
Board of Directors, or the President or a Vice President, and by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in the Corporation.
Every such certificate shall contain a statement of the restrictions provided in
Section 4 of this Article.
Section 6.02. Facsimile Signature. Any or all the signatures on the
- ------------- -------------------
certificate may be facsimiles. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, such certificate may be issued with the same effect as
though the person had not ceased to be such officer, transfer agent or
registrar. The seal of the Corporation or a facsimile thereof may, but need
not, be affixed to certificates of stock.
Section 6.03. Lost Certificates. The Board of Directors may direct a new
- ------------- -----------------
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 6.04. Transfer. Upon surrender to the Corporation or the transfer
- ------------- --------
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books,
provided, however, the Corporation shall have no obligation to issue new
certificates, cancel old certificates or record transactions unless and until it
is satisfied that (i) all provisions of the Certificate of Incorporation, these
By-laws and any legends on the certificate regarding transfer of shares and
restrictions on such transfers have been complied with, and (ii) all other
applicable restrictions, including restrictions imposed by law, including
federal and state securities law, and by any stockholders agreement to which the
Corporation is a party, have been complied with.
Section 6.05. Record Date. The Board of Directors may fix in advance a date,
- ------------- -----------
not more than sixty days nor less than ten days preceding the date of any
meeting of stockholders, or not more than sixty days before the date for the
payment of any dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall go into effect,
or a date in connection with obtaining a consent, as a record date for the
determination of the stockholders entitled to notice of, and to vote at, any
such meeting and any adjournment thereof, or entitled to receive payment of any
such dividend, or to any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital stock, or to give
such consent, and in such case such stockholders and only
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
GLOBAL TRADE & INVESTMENT, INC.
Page 6 of 9
such stockholders as shall be stockholders of record on the date so fixed shall
be entitled to such notice of, and to vote at, such meeting and any adjournment
thereof, or to receive payment of such dividend, or to receive such allotment of
rights, or to exercise such rights, or to give such consent, as the case may be
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid.
Section 6.06. Recognition of Ownership. The Corporation shall be entitled to
- ------------- ------------------------
recognize the person registered on its books as the owner of shares to be the
exclusive owner for all purposes including voting and dividends, and the
Corporation shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE VII
-----------
Miscellaneous
Section 7.01. Reserves. There may be set aside out of any funds of the
- ------------ --------
Corporation available for dividends such sum or sums as the Board of Directors
may from time to time, in its absolute discretion, think proper, as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for the purchase of additional
property, or for such other purpose as the directors shall think conducive to
the interest of the Corporation, and the Board of Directors may modify or
abolish any such reserve.
Section 7.02. Checks, Demands and Notes. All checks or demands for money and
- ------------- -------------------------
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
Section 7.03. Fiscal Year. The fiscal year of the Corporation shall be as
- ------------- -----------
fixed by the Board of Directors.
Section 7.04. Seal. The corporate seal shall have inscribed thereon the name
- ------------- ----
of the Corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE VIII
------------
Indemnification
Section 8.01. Indemnification of Directors and Officers for Actions, Suits, or
- ------------ ----------------------------------------------------------------
Proceedings Other Than By Or In The Right of the Corporation. To the full
- ------------------------------------------------------------
extent permitted by law, the Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was or has agreed to become a director or
officer of the Corporation or is or was serving or has agreed to serve at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise (including employee
benefit plans) or by reason of any action alleged to have been taken or omitted
in such capacity against costs, charges, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with any threatened, pending or completed
action, suit or proceeding and any appeal therefrom including but not limited to
liability and expenses incurred on account of profits realized by him in the
purchase or sale of securities of the Corporation, if and only if he acted in
--------------
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful; the
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
---- ----------
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 8.02. Indemnification of Directors and Officers for Actions or Suits By
- ------------- -----------------------------------------------------------------
Or In The Right of the Corporation. To the full extent permitted by law, the
- ----------------------------------
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was or has agreed to become a director or officer of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise (including employee benefit plans), or by
reason of any action alleged to have been taken or omitted in such capacity,
against costs, charges and expenses (including
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
GLOBAL TRADE & INVESTMENT, INC.
Page 7 of 9
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of any threatened, pending or
completed action or suit and any appeal therefrom, or the defense or settlement
of any claim, issue or matter, if and only if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such costs, charges and expenses which the
Court of Chancery or such other court shall deem proper.
Section 8.03. Indemnification of Others for Actions, Suits, or Proceedings
- ------------- ------------------------------------------------------------
Other Than By Or In The Right of the Corporation. To the full extent permitted
- ------------------------------------------------
by law, the Corporation, in the sole discretion of the Board of Directors of the
Corporation, may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation), by reason of the fact that he
is or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with any threatened,
pending or completed action, suit or proceeding and any appeal therefrom,
including but not limited to liability and expenses incurred on account of
profits realized by him in the purchase or sale of securities of the
Corporation, if and only if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful; the termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 8.04. Indemnification of Others for Actions or Suits By Or In The Right
- ------------- -----------------------------------------------------------------
of the Corporation. To the full extent permitted by law, the Corporation, in
- ------------------
the sole discretion of the Board of Directors of the Corporation, may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of any threatened, pending or
completed action or suit and any appeal therefrom, or the defense or settlement
of any claim, issue or matter, if and only if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such costs, charges and expenses which the
Court of Chancery or such other court shall deem proper.
Section 8.05. Indemnification for Costs, Charges and Expenses of Successful
- ------------- -------------------------------------------------------------
Party. Notwithstanding the other provisions of these By-laws, to the extent
- -----
that a director or officer of the Corporation or other person indemnified under
Sections 8.01 through 8.04, herein, has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, he shall be indemnified against
all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or on his behalf in connection therewith.
Section 8.06. Determination of Right to Indemnification. Unless otherwise
- ------------- -----------------------------------------
ordered by a court, any indemnification under Sections 8.01 through 8.04,
herein, shall be paid by the Corporation unless a determination is made (i) by
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (ii) if such a
quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
GLOBAL TRADE & INVESTMENT, INC.
Page 8 of 9
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders, that indemnification of an individual entitled to indemnification
under Sections 8.01 through 8.04, herein, is not proper in the circumstances
because he has not met the applicable standard of conduct set forth in Sections
8.01 through 8.04, herein.
Section 8.07. Advance Payment of Costs, Charges and Expenses. To the full
- ------------- ----------------------------------------------
extent permitted by law, the Corporation shall, upon request, pay costs, charges
and expenses (including attorneys' fees) incurred by a person entitled to
indemnification pursuant to Sections 8.01 and 8.02, herein, and, if applicable,
pursuant to Sections 8.03 and 8.04, herein, in defending a civil or criminal
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding; provided, however, that the payment of such costs, charges
and expenses incurred by a director or officer in his capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer) in advance of the final disposition of
such action, suit or proceeding shall be made only upon receipt of an
undertaking by or on behalf of the director or officer to repay all amounts so
advanced in the event that it shall ultimately be determined that such director
or officer is not entitled to be indemnified by the Corporation as authorized
in these By-laws; such costs, charges and expenses incurred by other employees,
agents and contractors may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
Section 8.08. Procedure for Indemnification. Any indemnification or advance of
- ------------- -----------------------------
costs, charges and expenses provided for in Sections 8.01 through 8.07, herein,
shall be made promptly, and in any event within sixty (60) days, upon the
written request of the person entitled to indemnification; the right to
indemnification or advances as granted by these By-laws shall be enforceable by
a director or officer or other person indemnified hereunder in any court of
competent jurisdiction. If the Corporation denies such request, in whole or in
part, or if no disposition thereof is made within sixty (60) days, such person's
costs, charges and expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation; it shall be a defense to
any such action (other than an action brought to enforce a claim for the advance
of costs, charges and expenses pursuant to Section 8.07, herein, where the
required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in Sections 8.01 through
8.04, herein, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in Sections 8.01 through 8.04, herein, nor the
fact that there has been an actual determination by the Corporation (including
its Board of Directors, its independent legal counsel, and its stockholders)
that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 8.09. Authorization of Corporation Officers. The proper officers of
- ------------- -------------------------------------
the Corporation are, and each of them acting without the other is, authorized to
take any action, for and in the name of the Corporation, which he deems
necessary or appropriate (as conclusively presumed from the taking of such
action) to carry out and effect the foregoing Sections 8.01 through 8.08.
Section 8.10. Other Rights; Continuation of Right to Indemnification. The
- ------------- ------------------------------------------------------
indemnification and advancement of expenses provided by these By-laws shall not
be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law
(present or future, common or statutory), by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding office or
while employed by or acting as agent for the Corporation, and shall continue as
to a person who has ceased to serve in the capacity making him eligible for
indemnification, and shall inure to the benefit of the estate, heirs, executors
and administrators of such person; all rights to indemnification under these By-
laws shall be deemed to be a contract between the Corporation and each director
and officer of the Corporation and, as applicable, any other person indemnified
hereunder who serves or served in such capacity at any time while these By-laws
as well as the relevant provisions of the Delaware General Corporation Law or
any other applicable laws are or were in effect; any repeal or modification
hereof or of such provisions of such law shall not in any way diminish any
rights to indemnification of such director or officer or other person entitled
to indemnification or the obligations of the Corporation arising hereunder.
Section 8.11. Savings Clause. If Sections 8.01 through 8.10 of these By-laws
- ------------- --------------
or any portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall nevertheless indemnify each
director and officer, and may indemnify any other person entitled to
indemnification, as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
GLOBAL TRADE & INVESTMENT, INC.
Page 9 of 9
Corporation, to the full extent permitted by any applicable portion of these By-
laws that shall not have been invalidated and to the full extent permitted by
applicable law. To the full extent permitted by law, the Corporation may enter
into and perform agreements with persons, including, without limitation, present
and former officers, directors and employees of the Corporation and of companies
acquired by or merged with the Corporation, obligating the Corporation, among
other things, to provide indemnification and advancement of costs, charges and
expenses to such persons in addition to any indemnification or advancement which
may be available to such person under Sections 8.01 through 8.10 of these By-
laws.
Section 8.12. Insurance. The Board of Directors may cause the Corporation to
- ------------- ---------
purchase and maintain insurance on behalf of any person who is or was or has
agreed to become a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director or officer of another
corporation, or as its representative in a partnership, joint venture, trust or
other enterprise (including employee benefit plans) against any liability
asserted against such person and incurred in any such capacity or arising out
of such status, whether or not the Corporation would have the power to indemnify
such person.
Section 8.13. Amendment of By-laws. The Board of Directors may from time to
- ------------- --------------------
time adopt further By-laws with respect to indemnification and may amend these
and such By-laws to provide at all times the fullest indemnification permitted
by the General Corporation Law of the State of Delaware.
ARTICLE IX
----------
Amendments
Section 9.01. Amendment by Stockholders. These By-laws may be amended by a
- ------------ -------------------------
majority vote of all the stock issued and outstanding and entitled to vote at
any annual or special meeting of the stockholders, provided notice of intention
to amend shall have been contained in the notice of the meeting.
Section 9.02. Amendment by Board of Directors. The Board of Directors by a
- ------------- -------------------------------
majority vote of the whole Board at any meeting may amend these By-laws,
including By-laws adopted by the stockholders, but the stockholders may from
time to time specify particular provisions of the By-laws which shall not be
amended by the Board of Directors.
<PAGE>
Exhibit 3(q)
CERTIFICATE OF INCORPORATION
OF
ICF KAISER EUROPE, INC.
SECTION 1.01. NAME.
- ------------- -----
The name of the Corporation is ICF Kaiser Europe, Inc.
SECTION 2.01. REGISTERED OFFICE AND AGENT.
- ------------- ----------------------------
The registered office of the Corporation in the State of Delaware is located in
the County of New Castle, at 1013 Centre Road, Wilmington 19805. Its registered
agent at such address is Corporation Service Company.
SECTION 3.01. PURPOSES.
- ------------- ---------
The purpose of the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of
Delaware.
SECTION 4.01. AUTHORIZED SHARES.
- ------------- ------------------
The total number of shares of capital stock which the Corporation shall have
authority to issue is one thousand (1,000) shares of Common Stock having a par
value of one dollar ($1.00) per share.
SECTION 5.01. INCORPORATOR.
- ------------- -------------
The name and mailing address of the incorporator is Paul Weeks, II, 9300 Lee
Highway, Fairfax, Virginia 22031-1207.
SECTION 5.02. DURATION.
- ------------- ---------
The Corporation is to have perpetual existence.
SECTION 6.01. LIMITATION OF LIABILITY.
- ------------- ------------------------
(a) No person shall be liable to the Corporation for any loss or damage suffered
by it on account of any action taken or omitted to be taken by him or her as a
director or officer of the Corporation, if such person (i) in good faith
exercised or used the same degree of diligence, care and skill as an ordinarily
prudent person would have exercised or used under similar circumstances, or (ii)
took, or omitted to take, such action in good faith reliance upon advice of
counsel for the Corporation, or upon books of account or reports made to the
Corporation by any of its officers or by an independent certified public
accountant, or by an appraiser selected with reasonable care by the Board of
Directors or by any committee designated by the Board of Directors, or in good
faith reliance upon other records of the Corporation.
(b) No director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that the foregoing shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the Corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
SECTION 7.01. RATIFICATION BY STOCKHOLDERS.
- ------------- -----------------------------
Any contract, transaction or act of the Corporation, the Board of Directors, or
a committee of the Board of Directors which shall be approved or ratified by a
majority of a quorum of the stockholders entitled to vote at any meeting or,
without a meeting, by the written consent of the holders of a majority of the
stock entitled to vote shall be as valid and binding as though approved or
ratified by every stockholder of the Corporation; but any failure of the
stockholders to approve or ratify such contract, transaction or act, when and if
submitted, shall not be deemed in any way to invalidate the same or to deprive
the Corporation, its directors or officers, of their right to proceed with such
contract, transaction or act.
SECTION 8.01. INDEMNIFICATION OF DIRECTORS AND OFFICERS FOR ACTIONS, SUITS,
- ------------- -------------------------------------------------------------
OR PROCEEDINGS OTHER THAN BY OR IN THE RIGHT OF THE
---------------------------------------------------
CORPORATION.
------------
<PAGE>
Certificate of Incorporation of
ICF Kaiser Europe, Inc.
Page 2
To the full extent permitted by law, the Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Corporation), by reason of the fact that he or she is or was or has agreed to
become a director or officer of the Corporation or is or was serving or has
agreed to serve at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise
(including employee benefit plans), or by reason of any action alleged to have
been taken or omitted in such capacity, against costs, charges, expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her on his or her behalf in
connection with any threatened, pending or completed action, suit or proceeding
and any appeal therefrom, including but not limited to liability and expenses
incurred on account of profits realized by him or her in the purchase or sale of
securities of the Corporation, if and only if he or she acted in good faith and
--------------
in a manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful;
the termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent
---- ----------
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
SECTION 8.02. INDEMNIFICATION OF DIRECTORS AND OFFICERS FOR ACTIONS OR SUITS
- ------------- --------------------------------------------------------------
BY OR IN THE RIGHT OF THE CORPORATION.
--------------------------------------
To the full extent permitted by law, the Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he or she is or was
or has agreed to become a director or officer of the Corporation or is or was
serving or has agreed to serve at the request of the Corporation as a director
or officer of another corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans), or by reason of any action
alleged to have been taken or omitted in such capacity, against costs, charges
and expenses (including attorneys' fees) actually and reasonably incurred by him
or her on his or her behalf in connection with the defense or settlement of any
threatened, pending or completed action or suit and any appeal therefrom, or the
defense or settlement of any claim, issue or matter, if and only if he or she
--------------
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Corporation except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of such liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such costs, charges and expenses which the Court of Chancery or
such other court shall deem proper.
SECTION 8.03. INDEMNIFICATION OF OTHERS FOR ACTIONS, SUITS, OR PROCEEDINGS
- ------------- ------------------------------------------------------------
OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION.
-------------------------------------------------
To the full extent permitted by law, the Corporation, in the sole discretion of
the Board of Directors of the Corporation, may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by
reason of the fact that he or she is or was or has agreed to become an employee,
agent or contractor of the Corporation, or is or was serving or has agreed to
serve at the request of the Corporation as a director, officer, employee, agent
or contractor of another corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans), or by reason of any action
alleged to have been taken or omitted in such capacity, against costs, charges,
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her or on his or her
behalf in connection with any threatened, pending or completed action, suit or
proceeding and any appeal therefrom, including but not limited to liability and
expenses incurred on account of profits realized by him or her in the purchase
or sale of securities of the Corporation, if and only if he or she acted in good
--------------
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful; the
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
---- ----------
itself, create a presumption that the person did not act in good faith and in a
manner which he or she reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 8.04. INDEMNIFICATION OF OTHERS FOR ACTIONS OR SUITS BY OR IN THE
- ------------- -----------------------------------------------------------
RIGHT OF THE CORPORATION.
-------------------------
<PAGE>
Certificate of Incorporation of
ICF Kaiser Europe, Inc.
Page 3
To the full extent permitted by law, the Corporation, in the sole discretion of
the Board of Directors of the Corporation, may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he or she is or was or has
agreed to become an employee, agent or contractor of the Corporation, or is or
was serving or has agreed to serve at the request of the Corporation as a
director, officer, employee, agent or contractor of another corporation,
partnership, joint venture, trust or other enterprise (including employee
benefit plans), or by reason of any action alleged to have been taken or omitted
in such capacity, against costs, charges and expenses (including attorneys'
fees) actually and reasonably incurred by him or her or on his or her behalf in
connection with the defense or settlement of any threatened, pending or
completed action or suit and any appeal therefrom, or the defense or settlement
of any claim, issue or matter, if and only if he or she acted in good faith and
-----------
in a manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs, charges and expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 8.05. INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES OF SUCCESSFUL
- ------------- -------------------------------------------------------------
PARTY.
------
Notwithstanding the other provisions of this Certificate, to the extent that a
director or officer of the Corporation or other person indemnified under
Sections 9.01 through 9.04, herein, has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, he or she shall be indemnified
against all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or her or on his or her behalf in connection
therewith.
SECTION 8.06. DETERMINATION OF RIGHT TO INDEMNIFICATION.
- ------------- ------------------------------------------
Unless otherwise ordered by a court, any indemnification under Sections 9.01
through 9.04, herein, shall be paid by the Corporation unless a determination is
made (i) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders, that indemnification of an individual
entitled to indemnification under Sections 9.01 through 9.04, herein, is not
proper in the circumstances because he or she has not met the applicable
standard of conduct set forth in Sections 9.01 through 9.04, herein.
SECTION 8.07. ADVANCE PAYMENT OF COSTS, CHARGES AND EXPENSES.
- ------------- -----------------------------------------------
To the full extent permitted by law, the Corporation shall, upon request, pay
costs, charges and expenses (including attorneys' fees) incurred by a person
entitled to indemnification pursuant to Sections 9.01 and 9.02, herein, and, if
applicable, pursuant to Sections 9.03 and 9.04, herein, in defending a civil or
criminal action, suit or proceeding in advance of the final disposition of such
action, suit or proceeding; provided, however, that the payment of such costs,
-------- -------
charges and expenses incurred by a director or officer in his or her capacity as
a director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer) in advance of the final
disposition of such action, suit or proceeding shall be made only upon receipt
of an undertaking by or on behalf of the director or officer to repay all
amounts so advanced in the event that it shall ultimately be determined that
such director or officer is not entitled to be indemnified by the Corporation as
authorized in this certificate; such costs, charges and expenses incurred by
other employees, agents and contractors may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
SECTION 8.08. PROCEDURE FOR INDEMNIFICATION.
- ------------- ------------------------------
Any indemnification or advance of costs, charges and expenses provided for in
Sections 9.01 through 9.07, herein, shall be made promptly, and in any event
within sixty days, upon the written request of the person entitled to
indemnification; the right to indemnification or advances as granted by this
Certificate shall be enforceable by a director or officer or other person
indemnified hereunder in any court of competent jurisdiction. If the Corporation
denies such request, in whole or in part, or if no disposition thereof is made
within sixty days, such person's costs, charges and expenses incurred in
connection with successfully establishing his right to indemnification, in whole
or in part, in any such action shall also be indemnified by the Corporation; it
shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of costs, charges and expenses pursuant to Section 9.07,
herein, where the required undertaking, if any, has been received by the
Corporation) that the claimant has not met the standard of conduct set forth in
Sections 9.01 through 9.04, herein. Neither the failure of the Corporation
(including its Board
<PAGE>
Certificate of Incorporation of
ICF Kaiser Europe, Inc.
Page 4
of Directors, its independent legal counsel, and its stockholders) to have made
a determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in Sections 9.01 through 9.04, herein,
nor the fact that there has been an actual determination by the Corporation
(including its Board of Directors, its independent legal counsel, and its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
SECTION 8.09. AUTHORIZATION OF CORPORATION OFFICERS.
- ------------- --------------------------------------
The proper officers of the Corporation are, and each of them acting without the
other is, authorized to take any action, for and in the name of the Corporation,
which the officer deems necessary or appropriate (as conclusively presumed from
the taking of such action) to carry out and effect the foregoing Sections 9.01
through 9.08.
SECTION 8.10. OTHER RIGHTS; CONTINUATION OF RIGHT TO INDEMNIFICATION.
- ------------- -------------------------------------------------------
The indemnification and advancement of expenses provided by this Certificate
shall not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law
(present or future, common or statutory), by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding
office or while employed by or acting as an agent for the Corporation, and shall
continue as to a person who has ceased to serve in the capacity making him or
her eligible for indemnification, and shall inure to the benefit of the estate,
heirs, executors and administrators of such person; all rights to
indemnification under this Certificate shall be deemed to be a contract between
the Corporation and each director and officer of the Corporation and, as
applicable, any other person indemnified hereunder who serves or served in such
capacity at any time while this Certificate as well as the relevant provisions
of the Delaware General Corporation Law or any other applicable laws are or were
in effect; any repeal or modification hereof or of such provisions of such law
shall not in any way diminish any rights to indemnification of such director or
officer or other person entitled to indemnification or the obligations of the
Corporation arising hereunder.
SECTION 8.11. SAVINGS CLAUSE.
- ------------- ---------------
If this Certificate or any portion hereof shall be invalidated on any ground by
any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify each director and officer, and may indemnify any other person entitled
to indemnification, as to costs, charges and expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement with respect to any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Corporation, to the
full extent permitted by any applicable portion of this Certificate that shall
not have been invalidated and to the full extent permitted by applicable law. To
the full extent permitted by law, the Corporation may enter into and perform
agreements with persons, including, without limitation, present and former
officers, directors and employees of the Corporation and of companies acquired
by or merged with the Corporation, obligating the Corporation, among other
things, to provide indemnification and advancement of costs, charges and
expenses to such persons in addition to any indemnification or advancement which
may be available to such person under Sections 9.01 through 9.10 of this
Certificate.
SECTION 8.12. INSURANCE.
- ------------- ----------
The Board of Directors may cause the Corporation to purchase and maintain
insurance on behalf of any person who is or was or has agreed to become a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, or as its
representative in a partnership, joint venture, trust or other enterprise
(including employee benefit plans), against any liability asserted against such
person and incurred in any such capacity or arising out of such status, whether
or not the Corporation would have the power to indemnify such person.
SECTION 8.13. ADOPTION OF BY-LAWS.
- ------------- --------------------
The Board of Directors may from time to time adopt By-laws with respect to
indemnification and may amend such By-laws to provide at all times the fullest
indemnification permitted by the General Corporation Law of the State of
Delaware.
SECTION 9.01. SETTLEMENT OF DEBTS.
- ------------- --------------------
Whenever a compromise or arrangement is proposed between this Corporation and
its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware
<PAGE>
Certificate of Incorporation of
ICF Kaiser Europe, Inc.
Page 5
may, on the application in a summary way of this Corporation or of any creditor
or stockholder thereof or on the application of any receiver or receivers
appointed for this Corporation under the provisions of Section 291 of Title 8 of
the Delaware Code or on the application of trustees in dissolution or of any
receiver or receivers appointed for this Corporation under the provisions of
Section 279 of Title 8 of the Delaware Code, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
SECTION 10.01. ELECTIONS OF DIRECTORS.
- -------------- -----------------------
Elections of directors need not be by written ballot unless the By-laws of the
Corporation shall so provide.
SECTION 11.01. STOCKHOLDERS MEETINGS, RECORDS.
- -------------- -------------------------------
Stockholders meetings may be held within or without the State of Delaware, as
the By-laws may provide. The books of the Corporation may be kept (subject to
any provision in the General Corporation Law of the State of Delaware) outside
of the State of Delaware at such place or places as may be designated from time
to time by the Board of Directors (or duly authorized committee of the Board of
Directors) or in the By-laws of the Corporation.
SECTION 12.01. BY-LAWS.
- -------------- --------
The Board of Directors (or a duly authorized committee of the Board of
Directors) of the Corporation shall have the power to make and, except as may be
expressly stated in the By-laws, to alter and repeal its By-laws.
SECTION 13.01. AMENDMENT OF CERTIFICATE OF INCORPORATION.
- -------------- ------------------------------------------
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this certificate, in the manner now or hereafter
prescribed by the General Corporation Law of Delaware, and all rights conferred
upon stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF the undersigned, being the incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this certificate hereby declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereto set my signature this 18th day of July 1997.
/s/ Paul Weeks, II
<PAGE>
Exhibit 3(r)
BY-LAWS OF
ICF KAISER EUROPE, INC.
ARTICLE I
---------
Offices
Section 1.01. Registered Office in Delaware. The registered office shall be in
- ------------ -----------------------------
Wilmington, Delaware. The name of the registered agent of the Corporation at
such location is Corporation Service Company.
Section 1.02. Principal Office. The Board of Directors is granted full power
- ------------ ----------------
and authority to fix and thereafter change the location of the principal office
of the Corporation at any location within the United States.
Section 1.03. Other Offices. The Corporation may have such other offices
- ------------ -------------
either within or without the State of Delaware as the Board of Directors may
from time to time determine.
ARTICLE II
----------
Meetings of Stockholders
Section 2.01. Time and Place of Meeting. Annual meetings of the stockholders
- ------------ -------------------------
for the purpose of electing directors, making reports of the affairs of the
Corporation and transacting such other business as may properly come before the
meeting shall be held at such place, within or without the State of Delaware, on
such date and at such time as the Board of Directors shall each year fix, which
date shall be within thirteen months subsequent to the later of the date of
incorporation or the last annual meeting of stockholders. Meetings of
stockholders for any other purpose may be held at such time and place, within or
without the State of Delaware, as shall be fixed by the Board of Directors and
stated in the notice of meeting. If no other place is fixed by the Board of
Directors, meetings of stockholders shall be held at the principal executive
office of the Corporation. Failure to hold the annual meeting at the designated
time shall not work a forfeiture or dissolution of the Corporation.
Section 2.02. Notice of Meeting. Written notice of meetings of stockholders,
- ------------ -----------------
stating the place, date and hour thereof, and in the case of a special meeting,
the purpose or purposes for which the meeting is being called, shall be given
not less than ten nor more than sixty days before the date of the meeting to
each stockholder entitled to vote thereat.
Section 2.03. Qualified Voters. The officer who has charge of the stock ledger
- ------------ ----------------
of the Corporation shall prepare, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder for any purpose germane to
the meeting during ordinary business hours for a period of at least ten days
prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or if not
so specified, at the place where the meeting is to be held. The list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present and entitled to
vote.
Section 2.04. Special Meetings. Special meetings of the stockholders may be
- ------------- ----------------
called by the Board of Directors or by the President or by a writing signed by
stockholders owning a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote at such meeting. Such
call shall state the purpose or purposes of the proposed meeting. The Secretary
shall give notice of such meeting to the stockholders entitled to vote thereat,
in accordance with such call.
Section 2.05. Business at Special Meetings. Business transacted at any special
- ------------ ----------------------------
meeting of stockholders shall be limited to the purposes stated in the notice.
Section 2.06. Quorum. The holders of a majority of the stock issued and
- ------------ ------
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time without notice other than announcement at
the meeting (if the adjournment is not for more than thirty days and a new
record date for the determination of stockholders entitled to vote is not
fixed), until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might
<PAGE>
BY-LAWS OF ICF KAISER EUROPE, INC.
Page 2 of 10
have been transacted at the meeting as originally notified.
Section 2.07. Vote Required. When a quorum is present at any meeting, the vote
- ------------ -------------
of the holders of a majority of the shares of stock having voting power voting,
in person or by proxy, on a question shall decide any question brought before
such meeting, unless the question is one upon which by express provision of the
statutes, the Certificate of Incorporation or these By-laws a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section 2.08. Proxies. Each stockholder shall at every meeting of the
- ------------ -------
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after three years from its date unless the proxy provides for a
longer period. No proxy or power of attorney to vote shall be used to vote at a
meeting of the stockholders unless it shall have been filed with the Secretary
of the meeting when required by the inspectors of election. All questions
regarding the qualification of voters, the validity of proxies and the
acceptance or rejection of votes shall be decided by two inspectors of election
who shall be appointed by the Board of Directors, or if not so appointed, then
by the presiding officer of the meeting.
Section 2.09. Presiding Officer. The President of the Corporation shall
- ------------ -----------------
preside over all meetings of stockholders.
Section 2.10. Consent. Whenever the vote of stockholders at a meeting thereof
- ------------ -------
is required or permitted to be taken in connection with any corporate action by
any provisions of the statutes, the By-laws or the Certificate of Incorporation,
the meeting and vote may be dispensed with if the number of stockholders who
would have been entitled to vote upon the action if such meeting were held,
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting, shall consent in writing to such
corporate action being taken. Prompt notice shall be given by the Secretary to
all stockholders of the taking of corporate action without a meeting by less
than unanimous written consent.
ARTICLE III
-----------
Directors
Section 3.01. Number and Election. The number of directors which shall
- ------------ -------------------
constitute the whole Board shall be no less than one (1) or more than ten (10).
By amendment of this By-law, the number may be increased or decreased from time
to time by the Board of Directors or stockholders within the limits permitted by
law, but no decrease in the number of directors shall change the term of any
director in office at the time thereof. The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 3.02, and each
director shall hold office until his successor is elected and accepts office
unless he earlier resigns or is removed. Directors need not be stockholders. A
director may resign at any time upon written notice to the Corporation or orally
at any meeting of the directors or stockholders.
Section 3.02. Removal and Vacancies. A director may be removed with or without
- ------------ ---------------------
cause by a majority vote of the holders of the outstanding shares entitled to
vote. [Subject to any Stockholder's Agreement] Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and accept office, unless
sooner displaced.
Section 3.03. Management, The business of the Corporation shall be managed by
- ------------ ----------
its Board of Directors, which may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these By-laws directed or required to be
exercised or done by the stockholders.
Section 3.04. Place of Meetings. The Board of Directors of the Corporation may
- ------------ -----------------
hold meetings, both regular and special, either within or without the State of
Delaware. Meetings may be held by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 3.05. Annual Meeting. The first meeting of each newly elected Board of
- ------------ --------------
Directors shall be held immediately following the adjournment of the annual
meeting of stockholders and at the place thereof. No notice of such meeting
shall be necessary to the directors in order legally to constitute the meeting,
provided a quorum is present. In the event such meeting is not so held, the
meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors.
<PAGE>
BY-LAWS OF ICF KAISER EUROPE, INC.
Page 3 of 10
Section 3.06. Notice for Regular Meetings. Regular meetings of the Board of
- ------------ ---------------------------
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board of Directors.
Section 3.07. Special Meetings. Special meetings of the Board of Directors may
- ------------ ----------------
be called by a majority of the Board of Directors or the President and shall be
held on notice by letter mailed or delivered for transmission not later than on
the third day immediately preceding the day of such meeting, or by written
notice delivered or received not later than the day immediately preceding the
day of such meeting. Neither the business to be transacted at, nor the purpose
of, any special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
Section 3.08. Quorum. At meetings of the Board of Directors, a majority of the
- ------------ ------
full number of directors shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
Section 3.09. Chairman of the Board. At its first meeting after each annual
- ------------ ---------------------
meeting of stockholders, the Board of Directors shall elect from among its
members a Chairman. The Board of Directors may also choose a Vice-Chairman from
among its members. The Chairman shall preside at all meetings of the Board of
Directors, and shall perform such other duties as the Board may prescribe. The
Chairman may participate and act in any meeting of the Board of Directors as a
director. The Vice-Chairman, if any, shall act under the direction of the
Chairman and in the absence or disability of the Chairman shall perform the
duties and exercise the powers of the Chairman. The Chairman and the Vice-
Chairman, if any, (i) shall hold their respective offices at the pleasure of the
Board of Directors, and (ii) may be removed with or without cause at any time by
the Board of Directors. Any vacancy occurring in the office of the Chairman or
Vice Chairman by death, resignation, removal or otherwise shall be filled by the
Board of Directors.
Section 3.10. Committees. The Board of Directors may, by resolution adopted by
- ------------ ----------
a majority of the whole Board, designate one or more committees of the Board of
Directors, each committee to consist of one or more of the directors of the
Corporation, which, to the extent provided in the resolution, may have and
exercise any or all the powers of the Board of Directors in the management of
the business and affairs of the Corporation including, but not limited to, the
power and authority of the Board of Directors: (i) to authorize the seal of the
Corporation to be affixed to all papers; (ii) to declare a dividend; (iii) to
authorize the issuance of stock; (iv) to adopt a certificate of ownership and
merger pursuant to Section 253, of Title 8, Delaware Code; and (v) to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board of Directors as provided in Section 151(a) of
Title 8, Delaware Code, fix any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution of assets of
the Corporation or the conversion into, or the exchange of such shares for
shares of any other class or classes or any other series of the same of any
other class or classes of stock of the Corporation. Such committee or
committees shall have such name or names as may be determined from time to time
by the Board of Directors. The member or members of any such committee present
at any meeting and not disqualified from voting may, whether or not they
constitute a quorum, unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any absent or disqualified
member. At meetings of such committees, a majority of the members or alternate
members at any meeting at which there is a quorum shall be the act of the
committee.
Section 3.11. Committee Minutes. The committees shall keep regular minutes of
- ------------ -----------------
their proceedings and report the same to the Board of Directors.
Section 3.12. Consent. Any action required or permitted to be taken at any
- ------------ -------
meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of the
Board of Directors or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or committee.
Section 3.13. Compensation. The directors may be paid their expenses of
- ------------ ------------
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of committees of the Board of Directors may be allowed like reimbursement and
compensation for attending committee meetings.
<PAGE>
BY-LAWS OF ICF KAISER EUROPE, INC.
Page 4 of 10
ARTICLE IV
----------
Notices
Section 4.01. Notice. Notices to directors and stockholders mailed to them at
- ------------ ------
their addresses appearing on the books of the Corporation shall be deemed to be
given at the time when deposited in the United States mail, postage prepaid. An
affidavit of the Secretary or an Assistant Secretary or of the transfer agent of
the Corporation that the notice has been given shall, in the absence of fraud,
be prima facie evidence of the facts stated therein.
----- -----
Section 4.02. Waiver. Whenever any notice is required to be given under the
- ------------ ------
provisions of the statute, the Certificate of Incorporation or of these By-laws,
a waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Neither the business to be transacted at, nor the purposes
of, any meeting need be specified in such waiver. Attendance at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE V
---------
Officers
Section 5.01. Election. The officers of the Corporation shall be chosen by the
- ------------ --------
Board of Directors at its first meeting after each annual meeting of
stockholders and shall be a President, a Secretary and a Treasurer. The Board
of Directors may also choose one or more Vice Presidents and one or more
Assistant Secretaries and Assistant Treasurers. Two or more offices may be held
by the same person.
Section 5.02. Other Officers. The Board of Directors may appoint such other
- ------------ --------------
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
Section 5.03. Salaries. The salaries of all officers of the Corporation shall
- ------------ --------
be fixed by or under the direction of the Board of Directors.
Section 5.04. Vacancies. The officers of the Corporation shall hold office at
- ------------ ---------
the pleasure of the Board of Directors. Any officer may be removed with or
without cause at any time by the Board of Directors. Each officer shall hold
his office until his successor is elected and qualified or until his earlier
resignation or removal. The Board of Directors may fill any vacancy occurring
in any office of the Corporation by death, resignation, removal or otherwise.
Section 5.05. President. The President shall serve as Chief Executive Officer
- ------------ ---------
of the Corporation, shall have general and active management of the business of
the Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He shall execute on behalf of the
Corporation, and may affix or cause the seal to be affixed to, all instruments
requiring such execution except to the extent the signing and execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation. He shall perform such additional duties and have such
additional powers as the Board of Directors may from time to time prescribe.
Section 5.06. Vice Presidents. The Vice Presidents shall act under the
- ------------ ---------------
direction of the President and in the absence or disability of the President
shall perform the duties and exercise the powers of the President. They shall
perform such other duties and have such other powers as the President or the
Board of Directors may from time to time prescribe. The Board of Directors may
designate one or more Executive Vice Presidents or may otherwise specify the
order of seniority of the Vice Presidents. The duties and powers of the
President shall descend to the Vice Presidents in such specified order of
seniority.
Section 5.07. Secretary. The Secretary shall act under the direction of the
- ------------ ---------
President. Subject to the direction of the President, he shall attend all
meetings of the Board of Directors and all meetings of the stockholders and
record the proceedings in a book to be kept for that purpose. He shall perform
like duties for committees when required. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the
President or the Board of Directors. He shall keep in safe custody the seal of
the Corporation and, when authorized by the President or the Board of Directors,
cause it to be affixed to any instrument requiring it.
<PAGE>
BY-LAWS OF ICF KAISER EUROPE, INC.
Page 5 of 10
Section 5.08. Assistant Secretaries. The Assistant Secretaries shall act under
- ------------ ---------------------
the direction of the President. In the order of their seniority, unless
otherwise determined by the President or the Board of Directors, they shall, in
the absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary. They shall perform such other duties and have such
other powers as the President or the Board of Directors may from time to time
prescribe.
Section 5.09. Treasurer. The Treasurer shall act under the direction of the
- ------------ ---------
President. Subject to the direction of the President he shall have custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the President or the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation. He may affix or cause to be affixed the seal of the Corporation to
documents so requiring.
Section 5.10. Assistant Treasurers. The Assistant Treasurers in the order of
- ------------ --------------------
their seniority, unless otherwise determined by the President or the Board of
Directors, shall, in the absence or disability of the Treasurer, perform the
duties and exercise the powers of the Treasurer. They shall perform such other
duties and have such other powers as the President or the Board of Directors may
from time to time prescribe.
ARTICLE VI
----------
Certificates of Stock
Section 6.01. Certificate. Every holder of stock in the Corporation shall be
- ------------ -----------
entitled to have a certificate signed by the Chairman or Vice-Chairman of the
Board of Directors, or the President or a Vice President, and by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in the Corporation.
Every such certificate shall contain a statement of the restrictions provided in
Section 4 of this Article.
Section 6.02. Facsimile Signature. Any or all the signatures on the
- ------------ -------------------
certificate may be facsimiles. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, such certificate may be issued with the same effect as
though the person had not ceased to be such officer, transfer agent or
registrar. The seal of the Corporation or a facsimile thereof may, but need
not, be affixed to certificates of stock.
Section 6.03. Lost Certificates. The Board of Directors may direct a new
- ------------ -----------------
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 6.04. Transfer. Upon surrender to the Corporation or the transfer
- ------------ --------
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books,
provided, however, the Corporation shall have no obligation to issue new
certificates, cancel old certificates or record transactions unless and until it
is satisfied that (i) all provisions of the Certificate of Incorporation, these
By-laws and any legends on the certificate regarding transfer of shares and
restrictions on such transfers have been complied with, and (ii) all other
applicable restrictions, including restrictions imposed by law, including
federal and state securities law, and by any stockholders agreement to which the
Corporation is a party, have been complied with.
Section 6.05. Record Date. The Board of Directors may fix in advance a date,
- ------------- -----------
not more than sixty days nor less than ten days preceding the date of any
meeting of stockholders, or not more than sixty days before the date for the
payment of any dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall go into effect,
or a date in connection with obtaining a consent, as a record date for the
determination
<PAGE>
BY-LAWS OF ICF KAISER EUROPE, INC.
Page 6 of 10
of the stockholders entitled to notice of, and to vote at, any such meeting and
any adjournment thereof, or entitled to receive payment of any such dividend, or
to any such allotment of rights, or to exercise the rights in respect of any
such change, conversion or exchange of capital stock, or to give such consent,
and in such case such stockholders and only such stockholders as shall be
stockholders of record on the date so fixed shall be entitled to such notice of,
and to vote at, such meeting and any adjournment thereof, or to receive payment
of such dividend, or to receive such allotment of rights, or to exercise such
rights, or to give such consent, as the case may be notwithstanding any transfer
of any stock on the books of the Corporation after any such record date fixed as
aforesaid.
Section 6.06. Recognition of Ownership. The Corporation shall be entitled to
- ------------ ------------------------
recognize the person registered on its books as the owner of shares to be the
exclusive owner for all purposes including voting and dividends, and the
Corporation shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE VII
-----------
Miscellaneous
Section 7.01. Reserves. There may be set aside out of any funds of the
- ------------ --------
Corporation available for dividends such sum or sums as the Board of Directors
may from time to time, in its absolute discretion, think proper, as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for the purchase of additional
property, or for such other purpose as the directors shall think conducive to
the interest of the Corporation, and the Board of Directors may modify or
abolish any such reserve.
Section 7.02. Checks, Demands and Notes. All checks or demands for money and
- ------------ -------------------------
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
Section 7.03. Fiscal Year. The fiscal year of the Corporation shall be as
- ------------ -----------
fixed by the Board of Directors.
Section 7.04. Seal. The corporate seal shall have inscribed thereon the name
- ------------ ----
of the Corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE VIII
------------
Indemnification
Section 8.01. Indemnification of Directors and Officers for Actions, Suits, or
- ------------ ----------------------------------------------------------------
Proceedings Other Than By or In the Right of the Corporation. To the full
- ------------------------------------------------ -----------
extent permitted by law, the Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was or has agreed to become a director or
officer of the Corporation or is or was serving or has agreed to serve at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise (including employee
benefit plans) or by reason of any action alleged to have been taken or omitted
in such capacity against costs, charges, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with any threatened, pending or completed
action, suit or proceeding and any appeal therefrom including but not limited to
liability and expenses incurred on account of profits realized by him in the
purchase or sale of securities of the Corporation, if and only if he acted in
--------------
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful; the
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
---- ----------
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 8.02. Indemnification of Directors and Officers for Actions or Suits By
- ------------ --------------------------------------------- -------------------
or In the Right of the Corporation. To the full extent permitted by law, the
- ----------------------------------
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a
<PAGE>
BY-LAWS OF ICF KAISER EUROPE, INC.
Page 7 of 10
judgment in its favor by reason of the fact that he is or was or has agreed to
become a director or officer of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise
(including employee benefit plans), or by reason of any action alleged to have
been taken or omitted in such capacity, against costs, charges and expenses
(including attorneys' fees) actually and reasonably incurred by him or on his
behalf in connection with the defense or settlement of any threatened, pending
or completed action or suit and any appeal therefrom, or the defense or
settlement of any claim, issue or matter, if and only if he acted in good faith
--------------
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs, charges and expenses
which the Court of Chancery or such other court shall deem proper.
Section 8.03. Indemnification of Others for Actions, Suits, or Proceedings
- ------------ ------------------------------------------------ -----------
Other Than By or In the Right of the Corporation. To the full extent permitted
- ------------------------------------------------
by law, the Corporation, in the sole discretion of the Board of Directors of the
Corporation, may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation), by reason of the fact that he
is or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with any threatened,
pending or completed action, suit or proceeding and any appeal therefrom,
including but not limited to liability and expenses incurred on account of
profits realized by him in the purchase or sale of securities of the
Corporation, if and only if he acted in good faith and in a manner he reasonably
--------------
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful; the termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
----
contendere or its equivalent, shall not, of itself, create a presumption that
- ----------
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 8.04. Indemnification of Others for Actions or Suits By or In the Right
- ------------ ------------------------------------------------- ---------------
of the Corporation. To the full extent permitted by law, the Corporation, in
- ------------------
the sole discretion of the Board of Directors of the Corporation, may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of any threatened, pending or
completed action or suit and any appeal therefrom, or the defense or settlement
of any claim, issue or matter, if and only if he acted in good faith and in a
--------------
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such costs, charges and expenses which the
Court of Chancery or such other court shall deem proper.
Section 8.05. Indemnification for Costs, Charges and Expenses of Successful
- ------------ -------------------------------------------------- ----------
Party. Notwithstanding the other provisions of these By-laws, to the extent
- -----
that a director or officer of the Corporation or other person indemnified under
Sections 8.01 through 8.04, herein, has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, he shall be indemnified against
all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or on his behalf in connection therewith.
<PAGE>
BY-LAWS OF ICF KAISER EUROPE, INC.
Page 8 of 10
Section 8.06. Determination of Right to Indemnification. Unless otherwise
- ------------ -----------------------------------------
ordered by a court, any indemnification under Sections 8.01 through 8.04,
herein, shall be paid by the Corporation unless a determination is made (i) by
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (ii) if such a
quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(iii) by the stockholders, that indemnification of an individual entitled to
indemnification under Sections 8.01 through 8.04, herein, is not proper in the
circumstances because he has not met the applicable standard of conduct set
forth in Sections 8.01 through 8.04, herein.
Section 8.07. Advance Payment of Costs, Charges and Expenses. To the full
- ------------ ----------------------------------------------
extent permitted by law, the Corporation shall, upon request, pay costs, charges
and expenses (including attorneys' fees) incurred by a person entitled to
indemnification pursuant to Sections 8.01 and 8.02, herein, and, if applicable,
pursuant to Sections 8.03 and 8.04, herein, in defending a civil or criminal
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding; provided, however, that the payment of such costs, charges
-------- -------
and expenses incurred by a director or officer in his capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer) in advance of the final disposition of
such action, suit or proceeding shall be made only upon receipt of an
undertaking by or on behalf of the director or officer to repay all amounts so
advanced in the event that it shall ultimately be determined that such director
or officer is not entitled to be indemnified by the Corporation as authorized
in these By-laws; such costs, charges and expenses incurred by other employees,
agents and contractors may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
Section 8.08. Procedure for Indemnification. Any indemnification or advance of
- ------------ -----------------------------
costs, charges and expenses provided for in Sections 8.01 through 8.07, herein,
shall be made promptly, and in any event within sixty (60) days, upon the
written request of the person entitled to indemnification; the right to
indemnification or advances as granted by these By-laws shall be enforceable by
a director or officer or other person indemnified hereunder in any court of
competent jurisdiction. If the Corporation denies such request, in whole or in
part, or if no disposition thereof is made within sixty (60) days, such person's
costs, charges and expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation; it shall be a defense to
any such action (other than an action brought to enforce a claim for the advance
of costs, charges and expenses pursuant to Section 8.07, herein, where the
required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in Sections 8.01 through
8.04, herein, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in Sections 8.01 through 8.04, herein, nor the
fact that there has been an actual determination by the Corporation (including
its Board of Directors, its independent legal counsel, and its stockholders)
that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 8.09. Authorization of Corporation Officers. The proper officers of
- ------------ -------------------------------------
the Corporation are, and each of them acting without the other is, authorized to
take any action, for and in the name of the Corporation, which he deems
necessary or appropriate (as conclusively presumed from the taking of such
action) to carry out and effect the foregoing Sections 8.01 through 8.08.
Section 8.10. Other Rights; Continuation of Right to Indemnification. The
- ------------ ------------------------------------------------------
indemnification and advancement of expenses provided by these By-laws shall not
be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law
(present or future, common or statutory), by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding office or
while employed by or acting as agent for the Corporation, and shall continue as
to a person who has ceased to serve in the capacity making him eligible for
indemnification, and shall inure to the benefit of the estate, heirs, executors
and administrators of such person; all rights to indemnification under these By-
laws shall be deemed to be a contract between the Corporation and each director
and officer of the Corporation and, as applicable, any other person indemnified
hereunder who serves or served in such capacity at any time while these By-laws
as well as the relevant provisions of the Delaware General Corporation Law or
any other applicable laws are or were in effect; any repeal or modification
hereof or of such provisions of such law shall not in any way diminish any
rights to indemnification of such director or officer or other person entitled
to indemnification or the obligations of the Corporation arising hereunder.
<PAGE>
BY-LAWS OF ICF KAISER EUROPE, INC.
Page 9 of 10
Section 8.11. Savings Clause. If Sections 8.01 through 8.10 of these By-laws
- ------------ --------------
or any portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall nevertheless indemnify each
director and officer, and may indemnify any other person entitled to
indemnification, as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Corporation, to the full extent
permitted by any applicable portion of these By-laws that shall not have been
invalidated and to the full extent permitted by applicable law. To the full
extent permitted by law, the Corporation may enter into and perform agreements
with persons, including, without limitation, present and former officers,
directors and employees of the Corporation and of companies acquired by or
merged with the Corporation, obligating the Corporation, among other things, to
provide indemnification and advancement of costs, charges and expenses to such
persons in addition to any indemnification or advancement which may be available
to such person under Sections 8.01 through 8.10 of these By-laws.
Section 8.12. Insurance. The Board of Directors may cause the Corporation to
- ------------ ---------
purchase and maintain insurance on behalf of any person who is or was or has
agreed to become a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director or officer of another
corporation, or as its representative in a partnership, joint venture, trust or
other enterprise (including employee benefit plans) against any liability
asserted against such person and incurred in any such capacity or arising out of
such status, whether or not the Corporation would have the power to indemnify
such person.
Section 8.13. Amendment of By-laws. The Board of Directors may from time to
- ------------ --------------------
time adopt further By-laws with respect to indemnification and may amend these
and such By-laws to provide at all times the fullest indemnification permitted
by the General Corporation Law of the State of Delaware.
ARTICLE IX
----------
Amendments
Section 9.01. Amendment by Stockholders. These By-laws may be amended by a
- ------------ -------------------------
majority vote of all the stock issued and outstanding and entitled to vote at
any annual or special meeting of the stockholders, provided notice of intention
to amend shall have been contained in the notice of the meeting.
Section 9.02. Amendment by Board of Directors. The Board of Directors by a
- ------------ -------------------------------
majority vote of the whole Board at any meeting may amend these By-laws,
including By-laws adopted by the stockholders, but the stockholders may from
time to time specify particular provisions of the By-laws which shall not be
amended by the Board of Directors.
<PAGE>
Exhibit 3(s)
CERTIFICATE OF INCORPORATION
OF
ICF KAISER / GEORGIA WILSON, INC.
SECTION 1.01. NAME.
- ------------- -----
The name of the Corporation is ICF Kaiser / Georgia Wilson, Inc.
SECTION 2.01. REGISTERED OFFICE AND AGENT.
- ------------- ----------------------------
The registered office of the Corporation in the State of Delaware is located in
the County of New Castle, at 1013 Centre Road, Wilmington 19805. Its registered
agent at such address is Corporation Service Company.
SECTION 3.01. PURPOSES.
- ------------- ---------
The purpose of the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of
Delaware.
SECTION 4.01. AUTHORIZED SHARES.
- ------------- ------------------
The total number of shares of capital stock which the Corporation shall have
authority to issue is one thousand (1,000) shares of Common Stock having a par
value of one dollar ($1.00) per share.
SECTION 5.01. INCORPORATOR.
- ------------- -------------
The name and mailing address of the incorporator is John T. Cassella, 9300 Lee
Highway, Fairfax, Virginia 22031-1207.
SECTION 5.02. DURATION.
- ------------- ---------
The Corporation is to have perpetual existence.
SECTION 6.01. LIMITATION OF LIABILITY.
- ------------- ------------------------
(a) No person shall be liable to the Corporation for any loss or damage suffered
by it on account of any action taken or omitted to be taken by him or her as a
director or officer of the Corporation, if such person (i) in good faith
exercised or used the same degree of diligence, care and skill as an ordinarily
prudent person would have exercised or used under similar circumstances, or (ii)
took, or omitted to take, such action in good faith reliance upon advice of
counsel for the Corporation, or upon books of account or reports made to the
Corporation by any of its officers or by an independent certified public
accountant, or by an appraiser selected with reasonable care by the Board of
Directors or by any committee designated by the Board of Directors, or in good
faith reliance upon other records of the Corporation.
(b) No director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that the foregoing shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the Corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
SECTION 7.01. RATIFICATION BY STOCKHOLDERS.
- ------------- -----------------------------
Any contract, transaction or act of the Corporation, the Board of Directors, or
a committee of the Board of Directors which shall be approved or ratified by a
majority of a quorum of the stockholders entitled to vote at any meeting or,
without a meeting, by the written consent of the holders of a majority of the
stock entitled to vote shall be as valid and binding as though approved or
ratified by every stockholder of the Corporation; but any failure of the
stockholders to approve or ratify such contract, transaction or act, when and if
submitted, shall not be deemed in any way to invalidate the same or to deprive
the Corporation, its directors or officers, of their right to proceed with such
contract, transaction or act.
SECTION 8.01. INDEMNIFICATION OF DIRECTORS AND OFFICERS FOR ACTIONS, SUITS,
- ------------- -------------------------------------------------------------
OR PROCEEDINGS OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION.
----------------------------------------------------------------
To the full extent permitted by law, the Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Corporation), by reason of the fact that he or she is or was or has agreed to
become a director or officer of the Corporation or is or was serving or has
agreed to serve at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise
(including employee benefit plans), or by reason
<PAGE>
Certificate of Incorporation of
ICF Kaiser / Georgia Wilson, Inc.
Page 2
of any action alleged to have been taken or omitted in such capacity, against
costs, charges, expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her on his
or her behalf in connection with any threatened, pending or completed action,
suit or proceeding and any appeal therefrom, including but not limited to
liability and expenses incurred on account of profits realized by him or her in
the purchase or sale of securities of the Corporation, if and only if he or she
--------------
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful; the termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
---- ----------
its equivalent shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
SECTION 8.02. INDEMNIFICATION OF DIRECTORS AND OFFICERS FOR ACTIONS OR SUITS
- ------------- --------------------------------------------------------------
BY OR IN THE RIGHT OF THE CORPORATION.
--------------------------------------
To the full extent permitted by law, the Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he or she is or was
or has agreed to become a director or officer of the Corporation or is or was
serving or has agreed to serve at the request of the Corporation as a director
or officer of another corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans), or by reason of any action
alleged to have been taken or omitted in such capacity, against costs, charges
and expenses (including attorneys' fees) actually and reasonably incurred by him
or her on his or her behalf in connection with the defense or settlement of any
threatened, pending or completed action or suit and any appeal therefrom, or the
defense or settlement of any claim, issue or matter, if and only if he or she
--------------
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Corporation except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of such liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such costs, charges and expenses which the Court of Chancery or
such other court shall deem proper.
SECTION 8.03. INDEMNIFICATION OF OTHERS FOR ACTIONS, SUITS, OR PROCEEDINGS
- ------------- ------------------------------------------------------------
OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION.
-------------------------------------------------
To the full extent permitted by law, the Corporation, in the sole discretion of
the Board of Directors of the Corporation, may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by
reason of the fact that he or she is or was or has agreed to become an employee,
agent or contractor of the Corporation, or is or was serving or has agreed to
serve at the request of the Corporation as a director, officer, employee, agent
or contractor of another corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans), or by reason of any action
alleged to have been taken or omitted in such capacity, against costs, charges,
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her or on his or her
behalf in connection with any threatened, pending or completed action, suit or
proceeding and any appeal therefrom, including but not limited to liability and
expenses incurred on account of profits realized by him or her in the purchase
or sale of securities of the Corporation, if and only if he or she acted in good
--------------
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful; the
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
---- ----------
itself, create a presumption that the person did not act in good faith and in a
manner which he or she reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 8.04. INDEMNIFICATION OF OTHERS FOR ACTIONS OR SUITS BY OR IN THE
- ------------- -----------------------------------------------------------
RIGHT OF THE CORPORATION.
-------------------------
To the full extent permitted by law, the Corporation, in the sole discretion of
the Board of Directors of the Corporation, may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he or she is or was or has
agreed to become an employee, agent or contractor of the Corporation, or is or
was serving or has agreed to serve at the request of the Corporation as a
director, officer, employee, agent or contractor of another corporation,
partnership, joint venture, trust or other enterprise (including employee
benefit plans), or by reason of any action alleged to have been taken or omitted
in such capacity, against costs, charges and expenses (including attorneys'
fees) actually and reasonably incurred by him or her or on his or her behalf in
connection with the defense or settlement of any threatened, pending or
completed action or suit and any appeal
<PAGE>
Certificate of Incorporation of
ICF Kaiser / Georgia Wilson, Inc.
Page 3
therefrom, or the defense or settlement of any claim, issue or matter, if and
---
only if he or she acted in good faith and in a manner he or she reasonably
- -------
believed to be in or not opposed to the best interests of the Corporation except
that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of such liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such costs, charges and expenses which the Court of Chancery or
such other court shall deem proper.
SECTION 8.05. INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES OF SUCCESSFUL
- ------------- -------------------------------------------------------------
PARTY.
------
Notwithstanding the other provisions of this Certificate, to the extent that a
director or officer of the Corporation or other person indemnified under
Sections 9.01 through 9.04, herein, has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, he or she shall be indemnified
against all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or her or on his or her behalf in connection
therewith.
SECTION 8.06. DETERMINATION OF RIGHT TO INDEMNIFICATION.
- ------------- ------------------------------------------
Unless otherwise ordered by a court, any indemnification under Sections 9.01
through 9.04, herein, shall be paid by the Corporation unless a determination is
made (i) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders, that indemnification of an individual
entitled to indemnification under Sections 9.01 through 9.04, herein, is not
proper in the circumstances because he or she has not met the applicable
standard of conduct set forth in Sections 9.01 through 9.04, herein.
SECTION 8.07. ADVANCE PAYMENT OF COSTS, CHARGES AND EXPENSES.
- ------------- -----------------------------------------------
To the full extent permitted by law, the Corporation shall, upon request, pay
costs, charges and expenses (including attorneys' fees) incurred by a person
entitled to indemnification pursuant to Sections 9.01 and 9.02, herein, and, if
applicable, pursuant to Sections 9.03 and 9.04, herein, in defending a civil or
criminal action, suit or proceeding in advance of the final disposition of such
action, suit or proceeding; provided, however, that the payment of such costs,
-------- -------
charges and expenses incurred by a director or officer in his or her capacity as
a director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer) in advance of the final
disposition of such action, suit or proceeding shall be made only upon receipt
of an undertaking by or on behalf of the director or officer to repay all
amounts so advanced in the event that it shall ultimately be determined that
such director or officer is not entitled to be indemnified by the Corporation as
authorized in this certificate; such costs, charges and expenses incurred by
other employees, agents and contractors may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
SECTION 8.08. PROCEDURE FOR INDEMNIFICATION.
- ------------- ------------------------------
Any indemnification or advance of costs, charges and expenses provided for in
Sections 9.01 through 9.07, herein, shall be made promptly, and in any event
within sixty days, upon the written request of the person entitled to
indemnification; the right to indemnification or advances as granted by this
Certificate shall be enforceable by a director or officer or other person
indemnified hereunder in any court of competent jurisdiction. If the Corporation
denies such request, in whole or in part, or if no disposition thereof is made
within sixty days, such person's costs, charges and expenses incurred in
connection with successfully establishing his right to indemnification, in whole
or in part, in any such action shall also be indemnified by the Corporation; it
shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of costs, charges and expenses pursuant to Section 9.07,
herein, where the required undertaking, if any, has been received by the
Corporation) that the claimant has not met the standard of conduct set forth in
Sections 9.01 through 9.04, herein. Neither the failure of the Corporation
(including its Board of Directors, its independent legal counsel, and its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in
Sections 9.01 through 9.04, herein, nor the fact that there has been an actual
determination by the Corporation (including its Board of Directors, its
independent legal counsel, and its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
SECTION 8.09. AUTHORIZATION OF CORPORATION OFFICERS.
- ------------- --------------------------------------
<PAGE>
Certificate of Incorporation of
ICF Kaiser / Georgia Wilson, Inc.
Page 4
The proper officers of the Corporation are, and each of them acting without the
other is, authorized to take any action, for and in the name of the Corporation,
which the officer deems necessary or appropriate (as conclusively presumed from
the taking of such action) to carry out and effect the foregoing Sections 9.01
through 9.08.
SECTION 8.10. OTHER RIGHTS; CONTINUATION OF RIGHT TO INDEMNIFICATION.
- ------------- -------------------------------------------------------
The indemnification and advancement of expenses provided by this Certificate
shall not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law
(present or future, common or statutory), by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding
office or while employed by or acting as an agent for the Corporation, and shall
continue as to a person who has ceased to serve in the capacity making him or
her eligible for indemnification, and shall inure to the benefit of the estate,
heirs, executors and administrators of such person; all rights to
indemnification under this Certificate shall be deemed to be a contract between
the Corporation and each director and officer of the Corporation and, as
applicable, any other person indemnified hereunder who serves or served in such
capacity at any time while this Certificate as well as the relevant provisions
of the Delaware General Corporation Law or any other applicable laws are or were
in effect; any repeal or modification hereof or of such provisions of such law
shall not in any way diminish any rights to indemnification of such director or
officer or other person entitled to indemnification or the obligations of the
Corporation arising hereunder.
SECTION 8.11. SAVINGS CLAUSE.
- ------------- ---------------
If this Certificate or any portion hereof shall be invalidated on any ground by
any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify each director and officer, and may indemnify any other person entitled
to indemnification, as to costs, charges and expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement with respect to any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Corporation, to the
full extent permitted by any applicable portion of this Certificate that shall
not have been invalidated and to the full extent permitted by applicable law. To
the full extent permitted by law, the Corporation may enter into and perform
agreements with persons, including, without limitation, present and former
officers, directors and employees of the Corporation and of companies acquired
by or merged with the Corporation, obligating the Corporation, among other
things, to provide indemnification and advancement of costs, charges and
expenses to such persons in addition to any indemnification or advancement which
may be available to such person under Sections 9.01 through 9.10 of this
Certificate.
SECTION 8.12. INSURANCE.
- ------------- ----------
The Board of Directors may cause the Corporation to purchase and maintain
insurance on behalf of any person who is or was or has agreed to become a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, or as its
representative in a partnership, joint venture, trust or other enterprise
(including employee benefit plans), against any liability asserted against such
person and incurred in any such capacity or arising out of such status, whether
or not the Corporation would have the power to indemnify such person.
SECTION 8.13. ADOPTION OF BY-LAWS.
- ------------- --------------------
The Board of Directors may from time to time adopt By-laws with respect to
indemnification and may amend such By-laws to provide at all times the fullest
indemnification permitted by the General Corporation Law of the State of
Delaware.
SECTION 9.01. SETTLEMENT OF DEBTS.
- ------------- --------------------
Whenever a compromise or arrangement is proposed between this Corporation and
its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting
of the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing three
fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
<PAGE>
Certificate of Incorporation of
ICF Kaiser / Georgia Wilson, Inc.
Page 5
SECTION 10.01. ELECTIONS OF DIRECTORS.
- -------------- -----------------------
Elections of directors need not be by written ballot unless the By-laws of the
Corporation shall so provide.
SECTION 11.01. STOCKHOLDERS MEETINGS, RECORDS.
- -------------- -------------------------------
Stockholders meetings may be held within or without the State of Delaware, as
the By-laws may provide. The books of the Corporation may be kept (subject to
any provision in the General Corporation Law of the State of Delaware) outside
of the State of Delaware at such place or places as may be designated from time
to time by the Board of Directors (or duly authorized committee of the Board of
Directors) or in the By-laws of the Corporation.
SECTION 12.01. BY-LAWS.
- -------------- --------
The Board of Directors (or a duly authorized committee of the Board of
Directors) of the Corporation shall have the power to make and, except as may be
expressly stated in the By-laws, to alter and repeal its By-laws.
SECTION 13.01. AMENDMENT OF CERTIFICATE OF INCORPORATION.
- -------------- ------------------------------------------
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this certificate, in the manner now or hereafter
prescribed by the General Corporation Law of Delaware, and all rights conferred
upon stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF the undersigned, being the incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this certificate hereby declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereto set my signature this 3rd day of July 1996.
/s/ John T. Cassella
<PAGE>
Exhibit 3(t)
BY-LAWS OF
ICF KAISER/GEORGIA WILSON, INC.
ARTICLE I
---------
Offices
Section 1.01. Registered Office in Delaware. The registered office shall be in
- ------------ -----------------------------
Wilmington, Delaware. The name of the registered agent of the Corporation at
such location is Corporation Service Company.
Section 1.02. Principal Office. The Board of Directors is granted full power
- ------------ ----------------
and authority to fix and thereafter change the location of the principal office
of the Corporation at any location within the United States.
Section 1.03. Other Offices. The Corporation may have such other offices
- ------------ -------------
either within or without the State of Delaware as the Board of Directors may
from time to time determine.
ARTICLE II
----------
Meetings of Stockholders
Section 2.01. Time and Place of Meeting. Annual meetings of the stockholders
- ------------ -------------------------
for the purpose of electing directors, making reports of the affairs of the
Corporation and transacting such other business as may properly come before the
meeting shall be held at such place, within or without the State of Delaware, on
such date and at such time as the Board of Directors shall each year fix, which
date shall be within thirteen months subsequent to the later of the date of
incorporation or the last annual meeting of stockholders. Meetings of
stockholders for any other purpose may be held at such time and place, within
or without the State of Delaware, as shall be fixed by the Board of Directors
and stated in the notice of meeting. If no other place is fixed by the Board of
Directors, meetings of stockholders shall be held at the principal executive
office of the Corporation. Failure to hold the annual meeting at the designated
time shall not work a forfeiture or dissolution of the Corporation.
Section 2.02. Notice of Meeting. Written notice of meetings of stockholders,
- ------------ -----------------
stating the place, date and hour thereof, and in the case of a special meeting,
the purpose or purposes for which the meeting is being called, shall be given
not less than ten nor more than sixty days before the date of the meeting to
each stockholder entitled to vote thereat.
Section 2.03. Qualified Voters. The officer who has charge of the stock ledger
- ------------ ----------------
of the Corporation shall prepare, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder for any purpose germane to
the meeting during ordinary business hours for a period of at least ten days
prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or if not
so specified, at the place where the meeting is to be held. The list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present and entitled to
vote.
Section 2.04. Special Meetings. Special meetings of the stockholders may be
- ------------ ----------------
called by the Board of Directors or by the President or by a writing signed by
stockholders owning a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote at such meeting. Such
call shall state the purpose or purposes of the proposed meeting. The Secretary
shall give notice of such meeting to the stockholders entitled to vote thereat,
in accordance with such call.
Section 2.05. Business at Special Meetings. Business transacted at any special
- ------------ ----------------------------
meeting of stockholders shall be limited to the purposes stated in the notice.
Section 2.06. Quorum. The holders of a majority of the stock issued and
- ------------ ------
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time without notice other than announcement at
the meeting (if the adjournment is not for more than thirty days and a new
record date for the determination of stockholders entitled to vote is not
fixed), until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
<PAGE>
BY-LAWS OF
ICF KAISER/GEORGIA WILSON, INC.
Page 2 of 9
Section 2.07. Vote Required. When a quorum is present at any meeting, the vote
- ------------ -------------
of the holders of a majority of the shares of stock having voting power voting,
in person or by proxy, on a question shall decide any question brought before
such meeting, unless the question is one upon which by express provision of the
statutes, the Certificate of Incorporation or these By-laws a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section 2.08. Proxies. Each stockholder shall at every meeting of the
- ------------ -------
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after three years from its date unless the proxy provides for a
longer period. No proxy or power of attorney to vote shall be used to vote at a
meeting of the stockholders unless it shall have been filed with the Secretary
of the meeting when required by the inspectors of election. All questions
regarding the qualification of voters, the validity of proxies and the
acceptance or rejection of votes shall be decided by two inspectors of election
who shall be appointed by the Board of Directors, or if not so appointed, then
by the presiding officer of the meeting.
Section 2.09. Presiding Officer. The President of the Corporation shall
- ------------ -----------------
preside over all meetings of stockholders.
Section 2.10. Consent. Whenever the vote of stockholders at a meeting thereof
- ------------ -------
is required or permitted to be taken in connection with any corporate action by
any provisions of the statutes, the By-laws or the Certificate of Incorporation,
the meeting and vote may be dispensed with if the number of stockholders who
would have been entitled to vote upon the action if such meeting were held,
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting, shall consent in writing to such
corporate action being taken. Prompt notice shall be given by the Secretary to
all stockholders of the taking of corporate action without a meeting by less
than unanimous written consent.
ARTICLE III
-----------
Directors
Section 3.01. Number and Election. The number of directors which shall
- ------------ -------------------
constitute the whole Board shall be no less than one (1) or more than ten (10).
By amendment of this By-law, the number may be increased or decreased from time
to time by the Board of Directors or stockholders within the limits permitted by
law, but no decrease in the number of directors shall change the term of any
director in office at the time thereof. The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 3.02, and each
director shall hold office until his successor is elected and accepts office
unless he earlier resigns or is removed. Directors need not be stockholders. A
director may resign at any time upon written notice to the Corporation or orally
at any meeting of the directors or stockholders.
Section 3.02. Removal and Vacancies. A director may be removed with or without
- ------------ ---------------------
cause by a majority vote of the holders of the outstanding shares entitled to
vote. [Subject to any Stockholder's Agreement] Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and accept office, unless
sooner displaced.
Section 3.03. Management, The business of the Corporation shall be managed by
- ------------ ----------
its Board of Directors, which may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these By-laws directed or required to be
exercised or done by the stockholders.
Section 3.04. Place of Meetings. The Board of Directors of the Corporation may
- ------------ -----------------
hold meetings, both regular and special, either within or without the State of
Delaware. Meetings may be held by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 3.05. Annual Meeting. The first meeting of each newly elected Board of
- ------------ --------------
Directors shall be held immediately following the adjournment of the annual
meeting of stockholders and at the place thereof. No notice of such meeting
shall be necessary to the directors in order legally to constitute the meeting,
provided a quorum is present. In the event such meeting is not so held, the
meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors.
<PAGE>
BY-LAWS OF
ICF KAISER/GEORGIA WILSON, INC.
Page 3 of 9
Section 3.06. Notice for Regular Meetings. Regular meetings of the Board of
- ------------ ---------------------------
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board of Directors.
Section 3.07. Special Meetings. Special meetings of the Board of Directors may
- ------------ ----------------
be called by a majority of the Board of Directors or the President and shall be
held on notice by letter mailed or delivered for transmission not later than on
the third day immediately preceding the day of such meeting, or by written
notice delivered or received not later than the day immediately preceding the
day of such meeting. Neither the business to be transacted at, nor the purpose
of, any special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
Section 3.08. Quorum. At meetings of the Board of Directors, a majority of the
- ------------ ------
full number of directors shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
Section 3.09. Chairman of the Board. At its first meeting after each annual
- ------------ ---------------------
meeting of stockholders, the Board of Directors shall elect from among its
members a Chairman. The Board of Directors may also choose a Vice Chairman from
among its members. The Chairman shall preside at all meetings of the Board of
Directors, and shall perform such other duties as the Board may prescribe. The
Chairman may participate and act in any meeting of the Board of Directors as a
director. The Vice Chairman, if any, shall act under the direction of the
Chairman and in the absence or disability of the Chairman shall perform the
duties and exercise the powers of the Chairman. The Chairman and the Vice
Chairman, if any, (i) shall hold their respective offices at the pleasure of the
Board of Directors, and (ii) may be removed with or without cause at any time by
the Board of Directors. Any vacancy occurring in the office of the Chairman or
Vice Chairman by death, resignation, removal or otherwise shall be filled by the
Board of Directors.
Section 3.10. Committees. The Board of Directors may, by resolution adopted by
- ------------ ----------
a majority of the whole Board, designate one or more committees of the Board of
Directors, each committee to consist of one or more of the directors of the
Corporation, which, to the extent provided in the resolution, may have and
exercise any or all the powers of the Board of Directors in the management of
the business and affairs of the Corporation including, but not limited to, the
power and authority of the Board of Directors: (i) to authorize the seal of the
Corporation to be affixed to all papers; (ii) to declare a dividend; (iii) to
authorize the issuance of stock; (iv) to adopt a certificate of ownership and
merger pursuant to Section 253, of Title 8, Delaware Code; and (v) to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board of Directors as provided in Section 151(a) of
Title 8, Delaware Code, fix any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution of assets of
the Corporation or the conversion into, or the exchange of such shares for
shares of any other class or classes or any other series of the same of any
other class or classes of stock of the Corporation. Such committee or
committees shall have such name or names as may be determined from time to time
by the Board of Directors. The member or members of any such committee present
at any meeting and not disqualified from voting may, whether or not they
constitute a quorum, unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any absent or disqualified
member. At meetings of such committees, a majority of the members or alternate
members at any meeting at which there is a quorum shall be the act of the
committee.
Section 3.11. Committee Minutes. The committees shall keep regular minutes of
- ------------ -----------------
their proceedings and report the same to the Board of Directors.
Section 3.12. Consent. Any action required or permitted to be taken at any
- ------------ -------
meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of the
Board of Directors or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or committee.
Section 3.13. Compensation. The directors may be paid their expenses of
- ------------ ------------
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of committees of the Board of Directors may be allowed like reimbursement and
compensation for attending committee meetings.
<PAGE>
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ICF KAISER/GEORGIA WILSON, INC.
Page 4 of 9
ARTICLE IV
----------
Notices
Section 4.01. Notice. Notices to directors and stockholders mailed to them at
- ------------ ------
their addresses appearing on the books of the Corporation shall be deemed to be
given at the time when deposited in the United States mail, postage prepaid. An
affidavit of the Secretary or an Assistant Secretary or of the transfer agent of
the Corporation that the notice has been given shall, in the absence of fraud,
be prima facie evidence of the facts stated therein.
----- -----
Section 4.02. Waiver. Whenever any notice is required to be given under the
- ------------ ------
provisions of the statute, the Certificate of Incorporation or of these By-laws,
a waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Neither the business to be transacted at, nor the purposes
of, any meeting need be specified in such waiver. Attendance at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE V
---------
Officers
Section 5.01. Election. The officers of the Corporation shall be chosen by the
- ------------ --------
Board of Directors at its first meeting after each annual meeting of
stockholders and shall be a President, a Secretary and a Treasurer. The Board
of Directors may also choose one or more Vice Presidents and one or more
Assistant Secretaries and Assistant Treasurers. Two or more offices may be held
by the same person.
Section 5.02. Other Officers. The Board of Directors may appoint such other
- ------------ --------------
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
Section 5.03. Salaries. The salaries of all officers of the Corporation shall
- ------------ --------
be fixed by or under the direction of the Board of Directors.
Section 5.04. Vacancies. The officers of the Corporation shall hold office at
- ------------ ---------
the pleasure of the Board of Directors. Any officer may be removed with or
without cause at any time by the Board of Directors. Each officer shall hold
his office until his successor is elected and qualified or until his earlier
resignation or removal. The Board of Directors may fill any vacancy occurring
in any office of the Corporation by death, resignation, removal or otherwise.
Section 5.05. President. The President shall serve as Chief Executive Officer
- ------------ ---------
of the Corporation, shall have general and active management of the business of
the Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He shall execute on behalf of the
Corporation, and may affix or cause the seal to be affixed to, all instruments
requiring such execution except to the extent the signing and execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation. He shall perform such additional duties and have such
additional powers as the Board of Directors may from time to time prescribe.
Section 5.06. Vice Presidents. The Vice Presidents shall act under the
- ------------ ---------------
direction of the President and in the absence or disability of the President
shall perform the duties and exercise the powers of the President. They shall
perform such other duties and have such other powers as the President or the
Board of Directors may from time to time prescribe. The Board of Directors may
designate one or more Executive Vice Presidents or may otherwise specify the
order of seniority of the Vice Presidents. The duties and powers of the
President shall descend to the Vice Presidents in such specified order of
seniority.
Section 5.07. Secretary. The Secretary shall act under the direction of the
- ------------ ---------
President. Subject to the direction of the President, he shall attend all
meetings of the Board of Directors and all meetings of the stockholders and
record the proceedings in a book to be kept for that purpose. He shall perform
like duties for committees when required. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the
President or the Board of Directors. He shall keep in safe custody the seal of
the Corporation and, when authorized by the President or the Board of Directors,
cause it to be affixed to any instrument requiring it.
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Page 5 of 9
Section 5.08. Assistant Secretaries. The Assistant Secretaries shall act under
- ------------ ---------------------
the direction of the President. In the order of their seniority, unless
otherwise determined by the President or the Board of Directors, they shall, in
the absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary. They shall perform such other duties and have such
other powers as the President or the Board of Directors may from time to time
prescribe.
Section 5.09. Treasurer. The Treasurer shall act under the direction of the
- ------------ ---------
President. Subject to the direction of the President he shall have custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the President or the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation. He may affix or cause to be affixed the seal of the Corporation to
documents so requiring.
Section 5.10. Assistant Treasurers. The Assistant Treasurers in the order of
- ------------ --------------------
their seniority, unless otherwise determined by the President or the Board of
Directors, shall, in the absence or disability of the Treasurer, perform the
duties and exercise the powers of the Treasurer. They shall perform such other
duties and have such other powers as the President or the Board of Directors may
from time to time prescribe.
ARTICLE VI
----------
Certificates of Stock
Section 6.01. Certificate. Every holder of stock in the Corporation shall be
- ------------ -----------
entitled to have a certificate signed by the Chairman or Vice-Chairman of the
Board of Directors, or the President or a Vice President, and by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in the Corporation.
Every such certificate shall contain a statement of the restrictions provided in
Section 4 of this Article.
Section 6.02. Facsimile Signature. Any or all the signatures on the
- ------------ -------------------
certificate may be facsimiles. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, such certificate may be issued with the same effect as
though the person had not ceased to be such officer, transfer agent or
registrar. The seal of the Corporation or a facsimile thereof may, but need
not, be affixed to certificates of stock.
Section 6.03. Lost Certificates. The Board of Directors may direct a new
- ------------ -----------------
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 6.04. Transfer. Upon surrender to the Corporation or the transfer
- ------------ --------
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books,
provided, however, the Corporation shall have no obligation to issue new
certificates, cancel old certificates or record transactions unless and until it
is satisfied that (i) all provisions of the Certificate of Incorporation, these
By-laws and any legends on the certificate regarding transfer of shares and
restrictions on such transfers have been complied with, and (ii) all other
applicable restrictions, including restrictions imposed by law, including
federal and state securities law, and by any stockholders agreement to which the
Corporation is a party, have been complied with.
Section 6.05. Record Date. The Board of Directors may fix in advance a date,
- ------------ -----------
not more than sixty days nor less than ten days preceding the date of any
meeting of stockholders, or not more than sixty days before the date for the
payment of any dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall go into effect,
or a date in connection with obtaining a consent, as a record date for the
determination of the stockholders entitled to notice of, and to vote at, any
such meeting and any adjournment thereof, or entitled to
<PAGE>
BY-LAWS OF
ICF KAISER/GEORGIA WILSON, INC.
Page 6 of 9
receive payment of any such dividend, or to any such allotment of rights, or to
exercise the rights in respect of any such change, conversion or exchange of
capital stock, or to give such consent, and in such case such stockholders and
only such stockholders as shall be stockholders of record on the date so fixed
shall be entitled to such notice of, and to vote at, such meeting and any
adjournment thereof, or to receive payment of such dividend, or to receive such
allotment of rights, or to exercise such rights, or to give such consent, as the
case may be notwithstanding any transfer of any stock on the books of the
Corporation after any such record date fixed as aforesaid.
Section 6.06. Recognition of Ownership. The Corporation shall be entitled to
- ------------ ------------------------
recognize the person registered on its books as the owner of shares to be the
exclusive owner for all purposes including voting and dividends, and the
Corporation shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE VII
-----------
Miscellaneous
Section 7.01. Reserves. There may be set aside out of any funds of the
- ------------ --------
Corporation available for dividends such sum or sums as the Board of Directors
may from time to time, in its absolute discretion, think proper, as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for the purchase of additional
property, or for such other purpose as the directors shall think conducive to
the interest of the Corporation, and the Board of Directors may modify or
abolish any such reserve.
Section 7.02. Checks, Demands and Notes. All checks or demands for money and
- ------------ -------------------------
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
Section 7.03. Fiscal Year. The fiscal year of the Corporation shall be as
- ------------ -----------
fixed by the Board of Directors.
Section 7.04. Seal. The corporate seal shall have inscribed thereon the name
- ------------ ----
of the Corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE VIII
------------
Indemnification
Section 8.01. Indemnification of Directors and Officers for Actions, Suits, or
- ------------ ----------------------------------------------------------------
Proceedings Other Than By Or In The Right of the Corporation. To the full
- ------------------------------------------------ -----------
extent permitted by law, the Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was or has agreed to become a director or
officer of the Corporation or is or was serving or has agreed to serve at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise (including employee
benefit plans) or by reason of any action alleged to have been taken or omitted
in such capacity against costs, charges, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with any threatened, pending or completed
action, suit or proceeding and any appeal therefrom including but not limited to
liability and expenses incurred on account of profits realized by him in the
purchase or sale of securities of the Corporation, if and only if he acted in
--------------
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful; the
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
---- ----------
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 8.02. Indemnification of Directors and Officers for Actions or Suits By
- ------------ --------------------------------------------- -------------------
Or In The Right of the Corporation. To the full extent permitted by law, the
- ----------------------------------
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was or has agreed to become a director or officer of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director or officer of
<PAGE>
BY-LAWS OF
ICF KAISER/GEORGIA WILSON, INC.
Page 7 of 9
another corporation, partnership, joint venture, trust or other enterprise
(including employee benefit plans), or by reason of any action alleged to have
been taken or omitted in such capacity, against costs, charges and expenses
(including attorneys' fees) actually and reasonably incurred by him or on his
behalf in connection with the defense or settlement of any threatened, pending
or completed action or suit and any appeal therefrom, or the defense or
settlement of any claim, issue or matter, if and only if he acted in good faith
--------------
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs, charges and expenses
which the Court of Chancery or such other court shall deem proper.
Section 8.03. Indemnification of Others for Actions, Suits, or Proceedings
- ------------ ------------------------------------------------ -----------
Other Than By Or In The Right of the Corporation. To the full extent permitted
- ------------------------------------------------
by law, the Corporation, in the sole discretion of the Board of Directors of the
Corporation, may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation), by reason of the fact that he
is or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with any threatened,
pending or completed action, suit or proceeding and any appeal therefrom,
including but not limited to liability and expenses incurred on account of
profits realized by him in the purchase or sale of securities of the
Corporation, if and only if he acted in good faith and in a manner he reasonably
--------------
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful; the termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
----
contendere or its equivalent, shall not, of itself, create a presumption that
- ----------
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 8.04. Indemnification of Others for Actions or Suits By Or In The Right
- ------------ ------------------------------------------------- ---------------
of the Corporation. To the full extent permitted by law, the Corporation, in
- ------------------
the sole discretion of the Board of Directors of the Corporation, may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of any threatened, pending or
completed action or suit and any appeal therefrom, or the defense or settlement
of any claim, issue or matter, if and only if he acted in good faith and in a
--------------
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such costs, charges and expenses which the
Court of Chancery or such other court shall deem proper.
Section 8.05. Indemnification for Costs, Charges and Expenses of Successful
- ------------ -------------------------------------------------- ----------
Party. Notwithstanding the other provisions of these By-laws, to the extent
- -----
that a director or officer of the Corporation or other person indemnified under
Sections 8.01 through 8.04, herein, has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, he shall be indemnified against
all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or on his behalf in connection therewith.
Section 8.06. Determination of Right to Indemnification. Unless otherwise
- ------------ -----------------------------------------
ordered by a court, any indemnification under Sections 8.01 through 8.04,
herein, shall be paid by the Corporation unless a determination is made (i) by
the
<PAGE>
BY-LAWS OF
ICF KAISER/GEORGIA WILSON, INC.
Page 8 of 9
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (ii) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders, that indemnification of an individual entitled to indemnification
under Sections 8.01 through 8.04, herein, is not proper in the circumstances
because he has not met the applicable standard of conduct set forth in Sections
8.01 through 8.04, herein.
Section 8.07. Advance Payment of Costs, Charges and Expenses. To the full
- ------------ ----------------------------------------------
extent permitted by law, the Corporation shall, upon request, pay costs, charges
and expenses (including attorneys' fees) incurred by a person entitled to
indemnification pursuant to Sections 8.01 and 8.02, herein, and, if applicable,
pursuant to Sections 8.03 and 8.04, herein, in defending a civil or criminal
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding; provided, however, that the payment of such costs, charges
-------- -------
and expenses incurred by a director or officer in his capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer) in advance of the final disposition of
such action, suit or proceeding shall be made only upon receipt of an
undertaking by or on behalf of the director or officer to repay all amounts so
advanced in the event that it shall ultimately be determined that such director
or officer is not entitled to be indemnified by the Corporation as authorized
in these By-laws; such costs, charges and expenses incurred by other employees,
agents and contractors may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
Section 8.08. Procedure for Indemnification. Any indemnification or advance of
- ------------ -----------------------------
costs, charges and expenses provided for in Sections 8.01 through 8.07, herein,
shall be made promptly, and in any event within sixty (60) days, upon the
written request of the person entitled to indemnification; the right to
indemnification or advances as granted by these By-laws shall be enforceable by
a director or officer or other person indemnified hereunder in any court of
competent jurisdiction. If the Corporation denies such request, in whole or in
part, or if no disposition thereof is made within sixty (60) days, such person's
costs, charges and expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation; it shall be a defense to
any such action (other than an action brought to enforce a claim for the advance
of costs, charges and expenses pursuant to Section 8.07, herein, where the
required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in Sections 8.01 through
8.04, herein, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in Sections 8.01 through 8.04, herein, nor the
fact that there has been an actual determination by the Corporation (including
its Board of Directors, its independent legal counsel, and its stockholders)
that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 8.09. Authorization of Corporation Officers. The proper officers of
- ------------ -------------------------------------
the Corporation are, and each of them acting without the other is, authorized to
take any action, for and in the name of the Corporation, which he deems
necessary or appropriate (as conclusively presumed from the taking of such
action) to carry out and effect the foregoing Sections 8.01 through 8.08.
Section 8.10. Other Rights; Continuation of Right to Indemnification. The
- ------------ ------------------------------------------------------
indemnification and advancement of expenses provided by these By-laws shall not
be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law
(present or future, common or statutory), by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding office or
while employed by or acting as agent for the Corporation, and shall continue as
to a person who has ceased to serve in the capacity making him eligible for
indemnification, and shall inure to the benefit of the estate, heirs, executors
and administrators of such person; all rights to indemnification under these By-
laws shall be deemed to be a contract between the Corporation and each director
and officer of the Corporation and, as applicable, any other person indemnified
hereunder who serves or served in such capacity at any time while these By-laws
as well as the relevant provisions of the Delaware General Corporation Law or
any other applicable laws are or were in effect; any repeal or modification
hereof or of such provisions of such law shall not in any way diminish any
rights to indemnification of such director or officer or other person entitled
to indemnification or the obligations of the Corporation arising hereunder.
Section 8.11. Savings Clause. If Sections 8.01 through 8.10 of these By-laws
- ------------ --------------
or any portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall nevertheless indemnify each
director and officer, and may indemnify any other person entitled to
indemnification, as to costs, charges and expenses
<PAGE>
BY-LAWS OF
ICF KAISER/GEORGIA WILSON, INC.
Page 9 of 9
(including attorneys' fees), judgments, fines and amounts paid in settlement
with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, including an action by or in the right of the
Corporation, to the full extent permitted by any applicable portion of these By-
laws that shall not have been invalidated and to the full extent permitted by
applicable law. To the full extent permitted by law, the Corporation may enter
into and perform agreements with persons, including, without limitation, present
and former officers, directors and employees of the Corporation and of companies
acquired by or merged with the Corporation, obligating the Corporation, among
other things, to provide indemnification and advancement of costs, charges and
expenses to such persons in addition to any indemnification or advancement which
may be available to such person under Sections 8.01 through 8.10 of these By-
laws.
Section 8.12. Insurance. The Board of Directors may cause the Corporation to
- ------------ ---------
purchase and maintain insurance on behalf of any person who is or was or has
agreed to become a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director or officer of another
corporation, or as its representative in a partnership, joint venture, trust or
other enterprise (including employee benefit plans) against any liability
asserted against such person and incurred in any such capacity or arising out
of such status, whether or not the Corporation would have the power to indemnify
such person.
Section 8.13. Amendment of By-laws. The Board of Directors may from time to
- ------------ --------------------
time adopt further By-laws with respect to indemnification and may amend these
and such By-laws to provide at all times the fullest indemnification permitted
by the General Corporation Law of the State of Delaware.
ARTICLE IX
----------
Amendments
Section 9.01. Amendment by Stockholders. These By-laws may be amended by a
- ------------ -------------------------
majority vote of all the stock issued and outstanding and entitled to vote at
any annual or special meeting of the stockholders, provided notice of intention
to amend shall have been contained in the notice of the meeting.
Section 9.02. Amendment by Board of Directors. The Board of Directors by a
- ------------ -------------------------------
majority vote of the whole Board at any meeting may amend these By-laws,
including By-laws adopted by the stockholders, but the stockholders may from
time to time specify particular provisions of the By-laws which shall not be
amended by the Board of Directors.
<PAGE>
Exhibit 3(u)
CERTIFICATE OF INCORPORATION
OF
OVERSEAS CONSTRUCTORS & ENGINEERS, INC.
1. The name of the corporation is:
OVERSEAS CONSTRUCTORS & ENGINEERS, INC.
2. The address of its registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Company.
3. The nature of the business or purposes to be conducted or promoted is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
4. The total number of shares of Common Stock which the corporation shall have
authority to issue is one hundred thousand (100,000) and the par value of each
such shares is One Dollar ($1.00) amounting in the aggregate to One Hundred
Thousand Dollars ($100,000.00).
5. The board of directors is authorized to make, alter or repeal the by-laws of
the corporation. Election of directors need not be by written ballot.
6. The name and mailing address of the incorporator is:
L. M. Custis
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of
Delaware, do make this certificate, hereby declaring and certifying that this is
my act and deed and the facts herein stated are true, and accordingly have
hereunto set my hand this 12th day of April, 1988.
L. M. Custis
<PAGE>
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED
OFFICE AND REGISTERED AGENT
OF
OVERSEAS CONSTRUCTORS & ENGINEERS, INC.
The Board of Directors of:
OVERSEAS CONSTRUCTORS & ENGINEERS, INC.
a corporation of the State of Delaware, on this 26th day of December, A.D. 1990,
do hereby resolve and order that the location of the Registered Office of this
Corporation within this State be, and the same hereby is: 1014 Centre Road, in
the City of Wilmington, in the County of New Castle, Delaware, 19805.
The name of the Registered Agent therein and in charge thereof upon
whom process against the Corporation may be served, is: CORPORATION SERVICE
COMPANY.
OVERSEAS CONSTRUCTORS & ENGINEERS, INC.
a Corporation of the State of Delaware, does hereby certify that the foregoing
is a true copy of a resolution adopted by the Board of Directors at a meeting
held as herein stated.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by its President and Secretary, this 26th day of December, A.D. 1990.
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
OVERSEAS CONSTRUCTORS & ENGINEERS, INC.
Overseas Constructors & Engineers, Inc., a corporation organized and existing
and by virtue of the General Corporation Law of the State of Delaware, DOES
HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation at a meeting
duly convened and held, adopted the following resolution:
RESOLVED that the Board hereby declares it advisable and in the best interest of
the Company that Article 1 of the Certificate of Incorporation be amended to
read as follows:
The name of the corporation is "ICF Kaiser Overseas Engineering,
Inc."
SECOND: That the said amendment has been consented to and authorized
by the holders of a majority of the issued and outstanding stock entitled to
vote by written consent given in accordance with the provisions of Section 228
of the General Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 and 228 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, said corporation has caused this Certificate to be
signed by, Alvin S. Rapp, its President, and attested by Paul Weeks, II, its
Secretary, this 21st day of July A.D. 1995.
Alvin S. Rapp, President
Paul Weeks, II, Secretary
<PAGE>
Exhibit 3(v)
AMENDED AND RESTATED BY-LAWS
of
ICF KAISER OVERSEAS ENGINEERING, INC.
ARTICLE I
---------
Offices
Section 1.01. Registered Office in Delaware. The registered office shall be in
- ------------- -----------------------------
Wilmington, Delaware. The name of the registered agent of the Corporation at
such location is Corporation Service Company.
Section 1.02. Principal Office. The Board of Directors is granted full power
- ------------- ----------------
and authority to fix and thereafter change the location of the principal office
of the Corporation at any location within the United States.
Section 1.03. Other Offices. The Corporation may have such other offices
- ------------- -------------
either within or without the State of Delaware as the Board of Directors may
from time to time determine.
ARTICLE II
----------
Meetings of Stockholders
Section 2.01. Time and Place of Meeting. Annual meetings of the stockholders
- ------------- -------------------------
for the purpose of electing directors, making reports of the affairs of the
Corporation and transacting such other business as may properly come before the
meeting shall be held at such place, within or without the State of Delaware, on
such date and at such time as the Board of Directors shall each year fix, which
date shall be within thirteen months subsequent to the later of the date of
incorporation or the last annual meeting of stockholders. Meetings of
stockholders for any other purpose may be held at such time and place, within
or without the State of Delaware, as shall be fixed by the Board of Directors
and stated in the notice of meeting. If no other place is fixed by the Board of
Directors, meetings of stockholders shall be held at the principal executive
office of the Corporation. Failure to hold the annual meeting at the designated
time shall not work a forfeiture or dissolution of the Corporation.
Section 2.02. Notice of Meeting. Written notice of meetings of stockholders,
- ------------- ------------------
stating the place, date and hour thereof, and in the case of a special meeting,
the purpose or purposes for which the meeting is being called, shall be given
not less than ten nor more than sixty days before the date of the meeting to
each stockholder entitled to vote thereat.
Section 2.03. Qualified Voters. The officer who has charge of the stock ledger
- ------------- ----------------
of the Corporation shall prepare, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder for any purpose germane to
the meeting during ordinary business hours for a period of at least ten days
prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or if not
so specified, at the place where the meeting is to be held. The list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present and entitled to
vote.
Section 2.04. Special Meetings. Special meetings of the stockholders may be
- ------------- ----------------
called by the Board of Directors or by the President or by a writing signed by
stockholders owning a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote at such meeting. Such
call shall state the purpose or purposes of the proposed meeting. The Secretary
shall give notice of such meeting to the stockholders entitled to vote thereat,
in accordance with such call.
Section 2.05. Business at Special Meetings. Business transacted at any special
- ------------- ----------------------------
meeting of stockholders shall be limited to the purposes stated in the notice.
Section 2.06. Quorum. The holders of a majority of the stock issued and
- ------------- ------
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time without notice other than announcement at
the meeting (if the adjournment is not for more than thirty days and a new
record date for the determination of stockholders entitled to vote is not
fixed), until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
ICF KAISER OVERSEAS ENGINEERING, INC.
Page 2 of 9
Section 2.07. Vote Required. When a quorum is present at any meeting, the vote
- ------------- -------------
of the holders of a majority of the shares of stock having voting power voting,
in person or by proxy, on a question shall decide any question brought before
such meeting, unless the question is one upon which by express provision of the
statutes, the Certificate of Incorporation or these By-laws a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section 2.08. Proxies. Each stockholder shall at every meeting of the
- ------------- -------
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after three years from its date unless the proxy provides for a
longer period. No proxy or power of attorney to vote shall be used to vote at a
meeting of the stockholders unless it shall have been filed with the Secretary
of the meeting when required by the inspectors of election. All questions
regarding the qualification of voters, the validity of proxies and the
acceptance or rejection of votes shall be decided by two inspectors of election
who shall be appointed by the Board of Directors, or if not so appointed, then
by the presiding officer of the meeting.
Section 2.09. Presiding Officer. The President of the Corporation shall
- ------------- -----------------
preside over all meetings of stockholders.
Section 2.10. Consent. Whenever the vote of stockholders at a meeting thereof
- ------------- -------
is required or permitted to be taken in connection with any corporate action by
any provisions of the statutes, the By-laws or the Certificate of Incorporation,
the meeting and vote may be dispensed with if the number of stockholders who
would have been entitled to vote upon the action if such meeting were held,
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting, shall consent in writing to such
corporate action being taken. Prompt notice shall be given by the Secretary to
all stockholders of the taking of corporate action without a meeting by less
than unanimous written consent.
ARTICLE III
-----------
Directors
Section 3.01. Number and Election. The number of directors which shall
- ------------- -------------------
constitute the whole Board shall be no less than one (1) or more than ten (10).
By amendment of this By-law, the number may be increased or decreased from time
to time by the Board of Directors or stockholders within the limits permitted by
law, but no decrease in the number of directors shall change the term of any
director in office at the time thereof. The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 3.02, and each
director shall hold office until his successor is elected and accepts office
unless he earlier resigns or is removed. Directors need not be stockholders. A
director may resign at any time upon written notice to the Corporation or orally
at any meeting of the directors or stockholders.
Section 3.02. Removal and Vacancies. A director may be removed with or without
- ------------- ---------------------
cause by a majority vote of the holders of the outstanding shares entitled to
vote. [Subject to any Stockholder's Agreement] Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and accept office, unless
sooner displaced.
Section 3.03. Management, The business of the Corporation shall be managed by
- ------------- ----------
its Board of Directors, which may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these By-laws directed or required to be
exercised or done by the stockholders.
Section 3.04. Place of Meetings. The Board of Directors of the Corporation may
- ------------- -----------------
hold meetings, both regular and special, either within or without the State of
Delaware. Meetings may be held by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 3.05. Annual Meeting. The first meeting of each newly elected Board of
- ------------- --------------
Directors shall be held immediately following the adjournment of the annual
meeting of stockholders and at the place thereof. No notice of such meeting
shall be necessary to the directors in order legally to constitute the meeting,
provided a quorum is present. In the event such meeting is not so held, the
meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors.
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
ICF KAISER OVERSEAS ENGINEERING, INC.
Page 3 of 9
Section 3.06. Notice for Regular Meetings. Regular meetings of the Board of
- ------------- ---------------------------
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board of Directors.
Section 3.07. Special Meetings. Special meetings of the Board of Directors may
- ------------- ----------------
be called by a majority of the Board of Directors or the President and shall be
held on notice by letter mailed or delivered for transmission not later than on
the third day immediately preceding the day of such meeting, or by written
notice delivered or received not later than the day immediately preceding the
day of such meeting. Neither the business to be transacted at, nor the purpose
of, any special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
Section 3.08. Quorum. At meetings of the Board of Directors, a majority of the
- ------------- ------
full number of directors shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
Section 3.09. Chairman of the Board. At its first meeting after each annual
- ------------- ---------------------
meeting of stockholders, the Board of Directors shall elect from among its
members a Chairman. The Board of Directors may also choose a Vice Chairman from
among its members. The Chairman shall preside at all meetings of the Board of
Directors, and shall perform such other duties as the Board may prescribe. The
Chairman may participate and act in any meeting of the Board of Directors as a
director. The Vice Chairman, if any, shall act under the direction of the
Chairman and in the absence or disability of the Chairman shall perform the
duties and exercise the powers of the Chairman. The Chairman and the Vice
Chairman, if any, (i) shall hold their respective offices at the pleasure of the
Board of Directors, and (ii) may be removed with or without cause at any time by
the Board of Directors. Any vacancy occurring in the office of the Chairman or
Vice Chairman by death, resignation, removal or otherwise shall be filled by the
Board of Directors.
Section 3.10. Committees. The Board of Directors may, by resolution adopted by
- ------------- ----------
a majority of the whole Board, designate one or more committees of the Board of
Directors, each committee to consist of one or more of the directors of the
Corporation, which, to the extent provided in the resolution, may have and
exercise any or all the powers of the Board of Directors in the management of
the business and affairs of the Corporation including, but not limited to, the
power and authority of the Board of Directors: (i) to authorize the seal of the
Corporation to be affixed to all papers; (ii) to declare a dividend; (iii) to
authorize the issuance of stock; (iv) to adopt a certificate of ownership and
merger pursuant to Section 253, of Title 8, Delaware Code; and (v) to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board of Directors as provided in Section 151(a) of
Title 8, Delaware Code, fix any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution of assets of
the Corporation or the conversion into, or the exchange of such shares for
shares of any other class or classes or any other series of the same of any
other class or classes of stock of the Corporation. Such committee or
committees shall have such name or names as may be determined from time to time
by the Board of Directors. The member or members of any such committee present
at any meeting and not disqualified from voting may, whether or not they
constitute a quorum, unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any absent or disqualified
member. At meetings of such committees, a majority of the members or alternate
members at any meeting at which there is a quorum shall be the act of the
committee.
Section 3.11. Committee Minutes. The committees shall keep regular minutes of
- ------------- -----------------
their proceedings and report the same to the Board of Directors.
Section 3.12. Consent. Any action required or permitted to be taken at any
- ------------- -------
meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of the
Board of Directors or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or committee.
Section 3.13. Compensation. The directors may be paid their expenses of
- ------------- ------------
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of committees of the Board of Directors may be allowed like reimbursement and
compensation for attending committee meetings.
ARTICLE IV
----------
Notices
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
ICF KAISER OVERSEAS ENGINEERING, INC.
Page 4 of 9
Section 4.01. Notice. Notices to directors and stockholders mailed to them at
- ------------- ------
their addresses appearing on the books of the Corporation shall be deemed to be
given at the time when deposited in the United States mail, postage prepaid. An
affidavit of the Secretary or an Assistant Secretary or of the transfer agent of
the Corporation that the notice has been given shall, in the absence of fraud,
be prima facie evidence of the facts stated therein.
Section 4.02. Waiver. Whenever any notice is required to be given under the
- ------------- ------
provisions of the statute, the Certificate of Incorporation or of these By-laws,
a waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Neither the business to be transacted at, nor the purposes
of, any meeting need be specified in such waiver. Attendance at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE V
---------
Officers
Section 5.01. Election. The officers of the Corporation shall be chosen by the
- ------------- --------
Board of Directors at its first meeting after each annual meeting of
stockholders and shall be a President, a Secretary and a Treasurer. The Board
of Directors may also choose one or more Vice Presidents and one or more
Assistant Secretaries and Assistant Treasurers. Two or more offices may be held
by the same person.
Section 5.02. Other Officers. The Board of Directors may appoint such other
- ------------- --------------
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
Section 5.03. Salaries. The salaries of all officers of the Corporation shall
- ------------- --------
be fixed by or under the direction of the Board of Directors.
Section 5.04. Vacancies. The officers of the Corporation shall hold office at
- ------------- ---------
the pleasure of the Board of Directors. Any officer may be removed with or
without cause at any time by the Board of Directors. Each officer shall hold
his office until his successor is elected and qualified or until his earlier
resignation or removal. The Board of Directors may fill any vacancy occurring
in any office of the Corporation by death, resignation, removal or otherwise.
Section 5.05. President. The President shall serve as Chief Executive Officer
- ------------- ---------
of the Corporation, shall have general and active management of the business of
the Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He shall execute on behalf of the
Corporation, and may affix or cause the seal to be affixed to, all instruments
requiring such execution except to the extent the signing and execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation. He shall perform such additional duties and have such
additional powers as the Board of Directors may from time to time prescribe.
Section 5.06. Vice Presidents. The Vice Presidents shall act under the
- ------------- ---------------
direction of the President and in the absence or disability of the President
shall perform the duties and exercise the powers of the President. They shall
perform such other duties and have such other powers as the President or the
Board of Directors may from time to time prescribe. The Board of Directors may
designate one or more Executive Vice Presidents or may otherwise specify the
order of seniority of the Vice Presidents. The duties and powers of the
President shall descend to the Vice Presidents in such specified order of
seniority.
Section 5.07. Secretary. The Secretary shall act under the direction of the
- ------------- ---------
President. Subject to the direction of the President, he shall attend all
meetings of the Board of Directors and all meetings of the stockholders and
record the proceedings in a book to be kept for that purpose. He shall perform
like duties for committees when required. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the
President or the Board of Directors. He shall keep in safe custody the seal of
the Corporation and, when authorized by the President or the Board of Directors,
cause it to be affixed to any instrument requiring it.
Section 5.08. Assistant Secretaries. The Assistant Secretaries shall act under
- ------------- ---------------------
the direction of the President. In the order of their seniority, unless
otherwise determined by the President or the Board of Directors, they shall, in
the absence or
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
ICF KAISER OVERSEAS ENGINEERING, INC.
Page 5 of 9
disability of the Secretary, perform the duties and exercise the powers of the
Secretary. They shall perform such other duties and have such other powers as
the President or the Board of Directors may from time to time prescribe.
Section 5.09. Treasurer. The Treasurer shall act under the direction of the
- ------------- ---------
President. Subject to the direction of the President he shall have custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the President or the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation. He may affix or cause to be affixed the seal of the Corporation to
documents so requiring.
Section 5.10. Assistant Treasurers. The Assistant Treasurers in the order of
- ------------- --------------------
their seniority, unless otherwise determined by the President or the Board of
Directors, shall, in the absence or disability of the Treasurer, perform the
duties and exercise the powers of the Treasurer. They shall perform such other
duties and have such other powers as the President or the Board of Directors may
from time to time prescribe.
ARTICLE VI
----------
Certificates of Stock
Section 6.01. Certificate. Every holder of stock in the Corporation shall be
- ------------- -----------
entitled to have a certificate signed by the Chairman or Vice-Chairman of the
Board of Directors, or the President or a Vice President, and by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in the Corporation.
Every such certificate shall contain a statement of the restrictions provided in
Section 4 of this Article.
Section 6.02. Facsimile Signature. Any or all the signatures on the
- ------------- -------------------
certificate may be facsimiles. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, such certificate may be issued with the same effect as
though the person had not ceased to be such officer, transfer agent or
registrar. The seal of the Corporation or a facsimile thereof may, but need
not, be affixed to certificates of stock.
Section 6.03. Lost Certificates. The Board of Directors may direct a new
- ------------- -----------------
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 6.04. Transfer. Upon surrender to the Corporation or the transfer
- ------------- --------
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books,
provided, however, the Corporation shall have no obligation to issue new
certificates, cancel old certificates or record transactions unless and until it
is satisfied that (i) all provisions of the Certificate of Incorporation, these
By-laws and any legends on the certificate regarding transfer of shares and
restrictions on such transfers have been complied with, and (ii) all other
applicable restrictions, including restrictions imposed by law, including
federal and state securities law, and by any stockholders agreement to which the
Corporation is a party, have been complied with.
Section 6.05. Record Date. The Board of Directors may fix in advance a date,
- ------------- -----------
not more than sixty days nor less than ten days preceding the date of any
meeting of stockholders, or not more than sixty days before the date for the
payment of any dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall go into effect,
or a date in connection with obtaining a consent, as a record date for the
determination of the stockholders entitled to notice of, and to vote at, any
such meeting and any adjournment thereof, or entitled to receive payment of any
such dividend, or to any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital stock, or to give
such consent, and in such case such stockholders and only
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
ICF KAISER OVERSEAS ENGINEERING, INC.
Page 6 of 9
such stockholders as shall be stockholders of record on the date so fixed shall
be entitled to such notice of, and to vote at, such meeting and any adjournment
thereof, or to receive payment of such dividend, or to receive such allotment of
rights, or to exercise such rights, or to give such consent, as the case may be
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid.
Section 6.06. Recognition of Ownership. The Corporation shall be entitled to
- ------------- ------------------------
recognize the person registered on its books as the owner of shares to be the
exclusive owner for all purposes including voting and dividends, and the
Corporation shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE VII
-----------
Miscellaneous
Section 7.01. Reserves. There may be set aside out of any funds of the
- ------------- --------
Corporation available for dividends such sum or sums as the Board of Directors
may from time to time, in its absolute discretion, think proper, as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for the purchase of additional
property, or for such other purpose as the directors shall think conducive to
the interest of the Corporation, and the Board of Directors may modify or
abolish any such reserve.
Section 7.02. Checks, Demands and Notes. All checks or demands for money and
- ------------- -------------------------
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
Section 7.03. Fiscal Year. The fiscal year of the Corporation shall be as
- ------------- -----------
fixed by the Board of Directors.
Section 7.04. Seal. The corporate seal shall have inscribed thereon the name
- ------------- ----
of the Corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE VIII
------------
Indemnification
Section 8.01. Indemnification of Directors and Officers for Actions, Suits, or
- ------------- ----------------------------------------------------------------
Proceedings Other Than By Or In The Right of the Corporation. To the full
- ------------------------------------------------------------
extent permitted by law, the Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was or has agreed to become a director or
officer of the Corporation or is or was serving or has agreed to serve at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise (including employee
benefit plans) or by reason of any action alleged to have been taken or omitted
in such capacity against costs, charges, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with any threatened, pending or completed
action, suit or proceeding and any appeal therefrom including but not limited to
liability and expenses incurred on account of profits realized by him in the
purchase or sale of securities of the Corporation, if and only if he acted in
--------------
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful; the
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
---- ----------
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 8.02. Indemnification of Directors and Officers for Actions or Suits By
- ------------- -----------------------------------------------------------------
Or In The Right of the Corporation. To the full extent permitted by law, the
- ----------------------------------
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was or has agreed to become a director or officer of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise (including employee benefit plans), or by
reason of any action alleged to have been taken or omitted in such capacity,
against costs, charges and expenses (including employee benefit plans), or by
reason of any action alleged to have been taken or omitted in such capacity,
against costs, charges and expenses (including
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
ICF KAISER OVERSEAS ENGINEERING, INC.
Page 7 of 9
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of any threatened, pending or
completed action or suit and any appeal therefrom, or the defense or settlement
of any claim, issue or matter, if and only if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such costs, charges and expenses which the
Court of Chancery or such other court shall deem proper.
Section 8.03. Indemnification of Others for Actions, Suits, or Proceedings
- ------------- ------------------------------------------------------------
Other Than By Or In The Right of the Corporation. To the full extent permitted
- ------------------------------------------------
by law, the Corporation, in the sole discretion of the Board of Directors of the
Corporation, may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation), by reason of the fact that he
is or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with any threatened,
pending or completed action, suit or proceeding and any appeal therefrom,
including but not limited to liability and expenses incurred on account of
profits realized by him in the purchase or sale of securities of the
Corporation, if and only if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful; the termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 8.04. Indemnification of Others for Actions or Suits By Or In The Right
- ------------- -----------------------------------------------------------------
of the Corporation. To the full extent permitted by law, the Corporation, in
- ------------------
the sole discretion of the Board of Directors of the Corporation, may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of any threatened, pending or
completed action or suit and any appeal therefrom, or the defense or settlement
of any claim, issue or matter, if and only if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such costs, charges and expenses which the
Court of Chancery or such other court shall deem proper.
Section 8.05. Indemnification for Costs, Charges and Expenses of Successful
- ------------- -------------------------------------------------------------
Party. Notwithstanding the other provisions of these By-laws, to the extent
- -----
that a director or officer of the Corporation or other person indemnified under
Sections 8.01 through 8.04, herein, has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, he shall be indemnified against
all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or on his behalf in connection therewith.
Section 8.06. Determination of Right to Indemnification. Unless otherwise
- ------------- -----------------------------------------
ordered by a court, any indemnification under Sections 8.01 through 8.04,
herein, shall be paid by the Corporation unless a determination is made (i) by
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (ii) if such a
quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
ICF KAISER OVERSEAS ENGINEERING, INC.
Page 8 of 9
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders, that indemnification of an individual entitled to indemnification
under Sections 8.01 through 8.04, herein, is not proper in the circumstances
because he has not met the applicable standard of conduct set forth in Sections
8.01 through 8.04, herein.
Section 8.07. Advance Payment of Costs, Charges and Expenses. To the full
- ------------- ----------------------------------------------
extent permitted by law, the Corporation shall, upon request, pay costs, charges
and expenses (including attorneys' fees) incurred by a person entitled to
indemnification pursuant to Sections 8.01 and 8.02, herein, and, if applicable,
pursuant to Sections 8.03 and 8.04, herein, in defending a civil or criminal
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding; provided, however, that the payment of such costs, charges
and expenses incurred by a director or officer in his capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer) in advance of the final disposition of
such action, suit or proceeding shall be made only upon receipt of an
undertaking by or on behalf of the director or officer to repay all amounts so
advanced in the event that it shall ultimately be determined that such director
or officer is not entitled to be indemnified by the Corporation as authorized
in these By-laws; such costs, charges and expenses incurred by other employees,
agents and contractors may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
Section 8.08. Procedure for Indemnification. Any indemnification or advance of
- ------------- -----------------------------
costs, charges and expenses provided for in Sections 8.01 through 8.07, herein,
shall be made promptly, and in any event within sixty (60) days, upon the
written request of the person entitled to indemnification; the right to
indemnification or advances as granted by these By-laws shall be enforceable by
a director or officer or other person indemnified hereunder in any court of
competent jurisdiction. If the Corporation denies such request, in whole or in
part, or if no disposition thereof is made within sixty (60) days, such person's
costs, charges and expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation; it shall be a defense to
any such action (other than an action brought to enforce a claim for the advance
of costs, charges and expenses pursuant to Section 8.07, herein, where the
required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in Sections 8.01 through
8.04, herein, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in Sections 8.01 through 8.04, herein, nor the
fact that there has been an actual determination by the Corporation (including
its Board of Directors, its independent legal counsel, and its stockholders)
that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 8.09. Authorization of Corporation Officers. The proper officers of
- ------------- -------------------------------------
the Corporation are, and each of them acting without the other is, authorized to
take any action, for and in the name of the Corporation, which he deems
necessary or appropriate (as conclusively presumed from the taking of such
action) to carry out and effect the foregoing Sections 8.01 through 8.08.
Section 8.10. Other Rights; Continuation of Right to Indemnification. The
- ------------- ------------------------------------------------------
indemnification and advancement of expenses provided by these By-laws shall not
be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law
(present or future, common or statutory), by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding office or
while employed by or acting as agent for the Corporation, and shall continue as
to a person who has ceased to serve in the capacity making him eligible for
indemnification, and shall inure to the benefit of the estate, heirs, executors
and administrators of such person; all rights to indemnification under these By-
laws shall be deemed to be a contract between the Corporation and each director
and officer of the Corporation and, as applicable, any other person indemnified
hereunder who serves or served in such capacity at any time while these By-laws
as well as the relevant provisions of the Delaware General Corporation Law or
any other applicable laws are or were in effect; any repeal or modification
hereof or of such provisions of such law shall not in any way diminish any
rights to indemnification of such director or officer or other person entitled
to indemnification or the obligations of the Corporation arising hereunder.
Section 8.11. Savings Clause. If Sections 8.01 through 8.10 of these By-laws
- ------------- --------------
or any portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall nevertheless indemnify each
director and officer, and may indemnify any other person entitled to
indemnification, as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
ICF KAISER OVERSEAS ENGINEERING, INC.
Page 9 of 9
Corporation, to the full extent permitted by any applicable portion of these By-
laws that shall not have been invalidated and to the full extent permitted by
applicable law. To the full extent permitted by law, the Corporation may enter
into and perform agreements with persons, including, without limitation, present
and former officers, directors and employees of the Corporation and of companies
acquired by or merged with the Corporation, obligating the Corporation, among
other things, to provide indemnification and advancement of costs, charges and
expenses to such persons in addition to any indemnification or advancement which
may be available to such person under Sections 8.01 through 8.10 of these By-
laws.
Section 8.12. Insurance. The Board of Directors may cause the Corporation to
- ------------- ---------
purchase and maintain insurance on behalf of any person who is or was or has
agreed to become a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director or officer of another
corporation, or as its representative in a partnership, joint venture, trust or
other enterprise (including employee benefit plans) against any liability
asserted against such person and incurred in any such capacity or arising out
of such status, whether or not the Corporation would have the power to indemnify
such person.
Section 8.13. Amendment of By-laws. The Board of Directors may from time to
- ------------- --------------------
time adopt further By-laws with respect to indemnification and may amend these
and such By-laws to provide at all times the fullest indemnification permitted
by the General Corporation Law of the State of Delaware.
ARTICLE IX
----------
Amendments
Section 9.01. Amendment by Stockholders. These By-laws may be amended by a
- ------------- -------------------------
majority vote of all the stock issued and outstanding and entitled to vote at
any annual or special meeting of the stockholders, provided notice of intention
to amend shall have been contained in the notice of the meeting.
Section 9.02. Amendment by Board of Directors. The Board of Directors by a
- ------------- -------------------------------
majority vote of the whole Board at any meeting may amend these By-laws,
including By-laws adopted by the stockholders, but the stockholders may from
time to time specify particular provisions of the By-laws which shall not be
amended by the Board of Directors.
<PAGE>
EXHIBIT 3(w)
ARTICLES OF INCORPORATION
OF
KAISER ENGINEERS NEVADA COMPANY
KNOW ALL MEN BY THESE PRESENTS:
That we, the undersigned, have voluntarily associated ourselves together
for the purpose of forming a corporation under the laws of the Sate of Nevada,
relating to general corporations.
We do hereby certify:
FIRST: That the name of the corporation is KAISER ENGINEERS NEVADA
------
COMPANY.
SECOND: The principal office of this corporation is to be located at 177
-------
West Proctor Street, Carson City, Nevada, but the corporation may maintain an
office in such towns, cities, and places outside the State of Nevada as the
Board of Directors may from time to time determine or as may be designed by the
By-Laws of said corporation.
THIRD: The nature of the business, or objects of purposes proposed to be
------
transacted, promoted or carried on are:
Operation, management, engineering, construction management, maintenance
and technical services for low radiation and other waste sites, and all
business related thereto and all lawful activities.
FOURTH: The amount of the total authorized capital stock of this
-------
corporation is Twenty-Five Thousand Dollars ($25,000.00), divided into twenty-
five thousand (25,000.00) shares with the par value of One Dollar ($1.00) per
share.
FIFTH: Such stock may be issued from time to time without action by the
------
stockholders for such consideration as may be fixed from time to time by the
Board of Directors, in shares so issued, the full consideration for which has
been paid or delivered, shall be deemed full paid stock, and the holder of such
shares shall not be liable for any further payment thereon.
All of the stock of this corporation shall be known as common
stock, and each share of stock will be entitled to one vote.
SIXTH: The members of the governing board of this corporation shall be
------
styled directors and their numbers shall not be less than three, nor more than
nine.
The names and post office addresses of the first Board of Directors are as
follows:
NAMES ADDRESS
----- ---------
WILLIAM C. STIT 1800 Harrison Street
Oakland, CA 94612
RAYMOND E. LIST 1800 Harrison Street
Oakland, CA 94612
MICHAEL K. GOLDMAN 1800 Harrison Street
Oakland, CA 94612
SEVENTH: The capital stock of this corporation, after the amount of the
--------
subscription price or par value has been paid in, shall not be subject to
assessment to pay debts of the corporation, and no paid up stock and no stock
issued as fully paid, shall ever be assessable or assessed.
EIGHTH: The name and post office address of the incorporator is as
-------
follows:
NAME ADDRESS
---- ---------
GARY A. SHEERIN 549 Ruby Lane
Carson City, Nevada 89706
NINTH: The period of existence of this corporation shall be perpetual.
------
<PAGE>
IN WITNESS WHEREOF, I, the incorporator hereinabove named, have hereunto
set my hand this 28th day of November, 1989.
GARY A. SHEERIN
STATE OF NEVADA )
COUNTY OF )
On this 28th day of November, 1989, before me, the undersigned Notary
Public in and for said County and State, personally appeared GARY A. SHEERIN,
known to me to be the person described in and who executed the foregoing
instrument, and who acknowledged to me that he did so freely and voluntarily and
for the uses and purposes therein mentioned.
WITNESS my hand and official seal.
Notary Public
<PAGE>
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
KAISER ENGINEERS NEVADA COMPANY, a corporation organized under the laws of
the State of Nevada, by its President and Assistant Secretary does hereby
certify:
1. That the board of directors of said corporation at a meeting duly
convened and held on the 1st day of July, 1990, passed a resolution
declaring that the following change and amendment in the Articles of
Incorporation is advisable.
RESOLVED that article ONE of said Articles of Incorporation be amended
to read as follows:
"The name of this corporation is
KAISER ENGINEERS SOUTHERN COMPANY
2. That the number of shares of the corporation outstanding and
entitled to vote on an amendment to the Articles of Incorporation is
twenty-five thousand (25,000); that the said change and amendment has been
consented to and authorized by the written consent of stockholders holding
at least a majority of each class of stock outstanding an entitled to vote
thereon.
IN WITNESS WHEREOF, the said KAISER ENGINEERS NEVADA COMPANY has caused
this certificate to be signed by its president and its assistant secretary and
its corporate seal to be hereto affixed this 4th day of October, 1990.
KAISER ENGINEERS NEVADA COMPANY
R. E. List, President
R. E. Bonitz, Assistant Secretary
STATE OF CALIFORNIA )
COUNTY OF ALAMEDA )
On October 4, 1990 personally appeared before me a Notary Public, R.
E. List and R. E. Bonitz, who acknowledged that they executed the above
instruments.
Notary Public
<PAGE>
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION
Kaiser Engineers Nevada Company
-------------------------------
Name of Corporation
We the undersigned R.E. List (President) and R. E. Bonitz (Assistant Secretary)
--------------------- ----------------------------------
of Kaiser Engineers Nevada Company do hereby certify:
--------------------------------
That the Board of Directors of said corporation at a meeting duly convened
and held on the 1st day of July, 1990, adopted a resolution to amend the
--- ---- --
original articles as follows:
Article 1 is hereby amended to read as follows:
--
The name of the corporation is:
Kaiser Engineers Southern Company
The number of shares of the corporation outstanding and entitled to vote on an
amendment to the Articles of Incorporation are 25,000; that the said change(s)
------
and amendment has been consented to and approved by a majority vote of the
stockholders holding at least a majority of each class of stock outstanding and
entitled to vote thereon.
E. List, President
E. Bonitz, Assistant Secretary
State of California
--------------------
County of Alameda County
---------------------
On October 4, 1990, personally appeared before me, a Notary Public, R.
--------------- --
E. List and R. E. Bonitz who acknowledge that they executed the above
- -------------------------
instrument.
Signature of Notary
<PAGE>
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION
(After Issuance of Stock)
KAISER ENGINEERS SOUTHERN COMPANY
name of corporation
We the undersigned Vice President and Assistant Secretary of Kaiser Engineers
Southern Company do hereby certify:
That the Board of Directors of said corporation at a meeting duly
convened, held on the 1st day of November, 1994 adopted a resolution to amend
the original Articles as follows:
Article 1 is hereby amended to read as follows:
"The name of the corporation is
KAISER ENGINEERS PACIFIC, INC."
The number of shares of the corporation outstanding and entitled to
vote on an amendment of the Articles of Incorporation is twenty-five thousand
(25,000); that the said change and amendment has been consented to and
authorized by the written consent of stockholders holding at least a majority of
each class of stock outstanding and entitled to vote thereon.
IN WITNESS WHEREOF, the said KAISER ENGINEERS SOUTHERN COMPANY has
caused this certificate to be signed by its vice president and its assistant
secretary and its corporate seal to be hereto affixed this 1st day of November,
1994.
KAISER ENGINEERS SOUTHERN COMPANY
State of California
County of Alameda
On this 27th day of January, 1995, personally appeared before me a Notary
Public, Michael Wright and Richard E. Bonitz, who acknowledged that they
executed the above instrument.
Notary Public
<PAGE>
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION
(After Issuance of Stock)
KAISER ENGINEERS PACIFIC, INC.
We the undersigned Vice President and Assistant Secretary of Kaiser Engineers
Pacific, Inc., a Nevada Corporation (the "Corporation") Do certify:
1. That the Board of Directors of the Corporation, by unanimous Written
Consent on January 31, 1997, adopted Resolutions to amend the original Articles
as follows:
RESOLVED, that Article ONE of the Incorporation be amended to read as
follows:
"The name of the corporation is
ICF KAISER ENGINEERS PACIFIC, INC."
2. The number of shares of the Corporation outstanding and entitled to
vote on an amendment of the Articles of Incorporation is twenty-five thousand
(25,000); that the said change and amendment has been consented to and
authorized by the written consent of the sole stockholder of the corporation on
January 31, 1997.
IN WITNESS WHEREOF, the said KAISER ENGINEERS PACIFIC, INC. has caused
this certificate to be signed by its Vice President and Assistant Secretary and
its corporate seal to be hereto affixed this 7th day of February 1997.
KAISER ENGINEERS PACIFIC, INC.
COMMONWEALTH OF VIRGINIA
COUNTY OF FAIRFAX
I, Cynthia L. Hathaway, a notary public, do hereby certify that on
this 7th day of February 1997, personally appeared before me Paul Weeks, II, and
John T. Cassella, who being by me first duly sworn, declared that they are
respectively the Vice President and the Assistant Secretary of Kaiser Engineers
Pacific, Inc., and that they signed the foregoing Certificate of Amendment as
Vice President and Assistant Secretary, respectively, and that the statements
therein contained are true.
Cynthia Louise Hathaway, Notary Public
My Commission Expires November 30, 1999
<PAGE>
Exhibit 3(x)
AMENDED AND RESTATED BY-LAWS
of
ICF KAISER ENGINEERS PACIFIC, INC.
ARTICLE I
---------
Offices
Section 1.01. Registered Office in Nevada. The registered office shall be in
- ------------ ---------------------------
Carson City, Nevada. The name of the registered agent of the Corporation at
such location is Corporation Service Company (CSC Services of Nevada, Inc.).
Section 1.02. Principal Office. The Board of Directors is granted full power
- ------------ ----------------
and authority to fix and thereafter change the location of the principal office
of the Corporation at any location within the United States.
Section 1.03. Other Offices. The Corporation may have such other offices
- ------------ -------------
either within or without the State of Nevada as the Board of Directors may from
time to time determine.
ARTICLE II
----------
Meetings of Stockholders
Section 2.01. Time and Place of Meeting. Annual meetings of the stockholders
- ------------ -------------------------
for the purpose of electing directors, making reports of the affairs of the
Corporation and transacting such other business as may properly come before the
meeting shall be held at such place, within or without the State of Nevada, on
such date and at such time as the Board of Directors shall each year fix, which
date shall be within thirteen months subsequent to the later of the date of
incorporation or the last annual meeting of stockholders. Meetings of
stockholders for any other purpose may be held at such time and place, within
or without the State of Nevada, as shall be fixed by the Board of Directors and
stated in the notice of meeting. If no other place is fixed by the Board of
Directors, meetings of stockholders shall be held at the principal executive
office of the Corporation. Failure to hold the annual meeting at the designated
time shall not work a forfeiture or dissolution of the Corporation.
Section 2.02. Notice of Meeting. Written notice of meetings of stockholders,
- ------------- ------------------
stating the place, date and hour thereof, and in the case of a special meeting,
the purpose or purposes for which the meeting is being called, shall be given
not less than ten nor more than sixty days before the date of the meeting to
each stockholder entitled to vote thereat.
Section 2.03. Qualified Voters. The officer who has charge of the stock ledger
- ------------ ----------------
of the Corporation shall prepare, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder for any purpose germane to
the meeting during ordinary business hours for a period of at least ten days
prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or if not
so specified, at the place where the meeting is to be held. The list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present and entitled to
vote.
Section 2.04. Special Meetings. Special meetings of the stockholders may be
- ------------- ----------------
called by the Board of Directors or by the President or by a writing signed by
stockholders owning a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote at such meeting. Such
call shall state the purpose or purposes of the proposed meeting. The Secretary
shall give notice of such meeting to the stockholders entitled to vote thereat,
in accordance with such call.
Section 2.05. Business at Special Meetings. Business transacted at any special
- ------------- ----------------------------
meeting of stockholders shall be limited to the purposes stated in the notice.
Section 2.06. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time without notice other than announcement at
the meeting (if the adjournment is not for more than thirty days and a new
record date for the determination of stockholders entitled to vote is not
fixed), until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
ICF KAISER ENGINEERS PACIFIC, INC.
Page 2 of 9
Section 2.07. Vote Required. When a quorum is present at any meeting, the vote
- ------------- -------------
of the holders of a majority of the shares of stock having voting power voting,
in person or by proxy, on a question shall decide any question brought before
such meeting, unless the question is one upon which by express provision of the
statutes, the Certificate of Incorporation or these By-laws a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section 2.08. Proxies. Each stockholder shall at every meeting of the
- ------------- -------
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after three years from its date unless the proxy provides for a
longer period. No proxy or power of attorney to vote shall be used to vote at a
meeting of the stockholders unless it shall have been filed with the Secretary
of the meeting when required by the inspectors of election. All questions
regarding the qualification of voters, the validity of proxies and the
acceptance or rejection of votes shall be decided by two inspectors of election
who shall be appointed by the Board of Directors, or if not so appointed, then
by the presiding officer of the meeting.
Section 2.09. Presiding Officer. The President of the Corporation shall
- ------------- -----------------
preside over all meetings of stockholders.
Section 2.10. Consent. Whenever the vote of stockholders at a meeting thereof
- ------------- -------
is required or permitted to be taken in connection with any corporate action by
any provisions of the statutes, the By-laws or the Certificate of Incorporation,
the meeting and vote may be dispensed with if the number of stockholders who
would have been entitled to vote upon the action if such meeting were held,
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting, shall consent in writing to such
corporate action being taken. Prompt notice shall be given by the Secretary to
all stockholders of the taking of corporate action without a meeting by less
than unanimous written consent.
ARTICLE III
-----------
Directors
Section 3.01. Number and Election. The number of directors which shall
- ------------ -------------------
constitute the whole Board shall be no less than one (1) or more than ten (10).
By amendment of this By-law, the number may be increased or decreased from time
to time by the Board of Directors or stockholders within the limits permitted by
law, but no decrease in the number of directors shall change the term of any
director in office at the time thereof. The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 3.02, and each
director shall hold office until his successor is elected and accepts office
unless he earlier resigns or is removed. Directors need not be stockholders. A
director may resign at any time upon written notice to the Corporation or orally
at any meeting of the directors or stockholders.
Section 3.02. Removal and Vacancies. A director may be removed with or without
- ------------- ---------------------
cause by a majority vote of the holders of the outstanding shares entitled to
vote. [Subject to any Stockholder's Agreement] Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and accept office, unless
sooner displaced.
Section 3.03. Management, The business of the Corporation shall be managed by
- ------------- ----------
its Board of Directors, which may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these By-laws directed or required to be
exercised or done by the stockholders.
Section 3.04. Place of Meetings. The Board of Directors of the Corporation may
- ------------- -----------------
hold meetings, both regular and special, either within or without the State of
Nevada. Meetings may be held by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 3.05. Annual Meeting. The first meeting of each newly elected Board of
- ------------ --------------
Directors shall be held immediately following the adjournment of the annual
meeting of stockholders and at the place thereof. No notice of such meeting
shall be necessary to the directors in order legally to constitute the meeting,
provided a quorum is present. In the event such meeting is not so held, the
meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors.
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Section 3.06. Notice for Regular Meetings. Regular meetings of the Board of
- ------------- ---------------------------
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board of Directors.
Section 3.07. Special Meetings. Special meetings of the Board of Directors may
- ------------- ----------------
be called by a majority of the Board of Directors or the President and shall be
held on notice by letter mailed or delivered for transmission not later than on
the third day immediately preceding the day of such meeting, or by written
notice delivered or received not later than the day immediately preceding the
day of such meeting. Neither the business to be transacted at, nor the purpose
of, any special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
Section 3.08. Quorum. At meetings of the Board of Directors, a majority of the
- ------------- ------
full number of directors shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
Section 3.09. Chairman of the Board. At its first meeting after each annual
- ------------- ---------------------
meeting of stockholders, the Board of Directors shall elect from among its
members a Chairman. The Board of Directors may also choose a Vice Chairman from
among its members. The Chairman shall preside at all meetings of the Board of
Directors, and shall perform such other duties as the Board may prescribe. The
Chairman may participate and act in any meeting of the Board of Directors as a
director. The Vice Chairman, if any, shall act under the direction of the
Chairman and in the absence or disability of the Chairman shall perform the
duties and exercise the powers of the Chairman. The Chairman and the Vice
Chairman, if any, (i) shall hold their respective offices at the pleasure of the
Board of Directors, and (ii) may be removed with or without cause at any time by
the Board of Directors. Any vacancy occurring in the office of the Chairman or
Vice Chairman by death, resignation, removal or otherwise shall be filled by the
Board of Directors.
Section 3.10. Committees. The Board of Directors may, by resolution adopted by
- ------------- ----------
a majority of the whole Board, designate one or more committees of the Board of
Directors, each committee to consist of one or more of the directors of the
Corporation, which, to the extent provided in the resolution, may have and
exercise any or all the powers of the Board of Directors in the management of
the business and affairs of the Corporation including, but not limited to, the
power and authority of the Board of Directors: (i) to authorize the seal of the
Corporation to be affixed to all papers; (ii) to declare a dividend; (iii) to
authorize the issuance of stock; (iv) to the extent authorized in the resolution
or resolutions providing for the issuance of shares of stock adopted by the
Board of Directors, fix any of the preferences or rights of such shares relating
to dividends, redemption, dissolution, any distribution of assets of the
Corporation or the conversion into, or the exchange of such shares for shares of
any other class or classes or any other series of the same of any other class or
classes of stock of the Corporation. Such committee or committees shall have
such name or names as may be determined from time to time by the Board of
Directors. The member or members of any such committee present at any meeting
and not disqualified from voting may, whether or not they constitute a quorum,
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any absent or disqualified member. At meetings of such
committees, a majority of the members or alternate members at any meeting at
which there is a quorum shall be the act of the committee.
Section 3.11. Committee Minutes. The committees shall keep regular minutes of
- ------------- -----------------
their proceedings and report the same to the Board of Directors.
Section 3.12. Consent. Any action required or permitted to be taken at any
- ------------- -------
meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of the
Board of Directors or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or committee.
Section 3.13. Compensation. The directors may be paid their expenses of
- ------------- ------------
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of committees of the Board of Directors may be allowed like reimbursement and
compensation for attending committee meetings.
ARTICLE IV
----------
Notices
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Page 4 of 9
Section 4.01. Notice. Notices to directors and stockholders mailed to them at
- ------------ ------
their addresses appearing on the books of the Corporation shall be deemed to be
given at the time when deposited in the United States mail, postage prepaid. An
affidavit of the Secretary or an Assistant Secretary or of the transfer agent of
the Corporation that the notice has been given shall, in the absence of fraud,
be prima facie evidence of the facts stated therein.
Section 4.02. Waiver. Whenever any notice is required to be given under the
- ------------ ------
provisions of the statute, the Certificate of Incorporation or of these By-laws,
a waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Neither the business to be transacted at, nor the purposes
of, any meeting need be specified in such waiver. Attendance at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE V
---------
Officers
Section 5.01. Election. The officers of the Corporation shall be chosen by the
- ------------ --------
Board of Directors at its first meeting after each annual meeting of
stockholders and shall be a President, a Secretary and a Treasurer. The Board
of Directors may also choose one or more Vice Presidents and one or more
Assistant Secretaries and Assistant Treasurers. Two or more offices may be held
by the same person.
Section 5.02. Other Officers. The Board of Directors may appoint such other
- ------------- --------------
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
Section 5.03. Salaries. The salaries of all officers of the Corporation shall
- ------------- --------
be fixed by or under the direction of the Board of Directors.
Section 5.04. Vacancies. The officers of the Corporation shall hold office at
- ------------- ---------
the pleasure of the Board of Directors. Any officer may be removed with or
without cause at any time by the Board of Directors. Each officer shall hold
his office until his successor is elected and qualified or until his earlier
resignation or removal. The Board of Directors may fill any vacancy occurring
in any office of the Corporation by death, resignation, removal or otherwise.
Section 5.05. President. The President shall serve as Chief Executive Officer
- ------------- ---------
of the Corporation, shall have general and active management of the business of
the Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He shall execute on behalf of the
Corporation, and may affix or cause the seal to be affixed to, all instruments
requiring such execution except to the extent the signing and execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation. He shall perform such additional duties and have such
additional powers as the Board of Directors may from time to time prescribe.
Section 5.06. Vice Presidents. The Vice Presidents shall act under the
- ------------- ---------------
direction of the President and in the absence or disability of the President
shall perform the duties and exercise the powers of the President. They shall
perform such other duties and have such other powers as the President or the
Board of Directors may from time to time prescribe. The Board of Directors may
designate one or more Executive Vice Presidents or may otherwise specify the
order of seniority of the Vice Presidents. The duties and powers of the
President shall descend to the Vice Presidents in such specified order of
seniority.
Section 5.07. Secretary. The Secretary shall act under the direction of the
- ------------- ---------
President. Subject to the direction of the President, he shall attend all
meetings of the Board of Directors and all meetings of the stockholders and
record the proceedings in a book to be kept for that purpose. He shall perform
like duties for committees when required. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the
President or the Board of Directors. He shall keep in safe custody the seal of
the Corporation and, when authorized by the President or the Board of Directors,
cause it to be affixed to any instrument requiring it.
Section 5.08. Assistant Secretaries. The Assistant Secretaries shall act under
- ------------- ---------------------
the direction of the President. In the order of their seniority, unless
otherwise determined by the President or the Board of Directors, they shall, in
the absence or
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
ICF KAISER ENGINEERS PACIFIC, INC.
Page 5 of 9
disability of the Secretary, perform the duties and exercise the powers of the
Secretary. They shall perform such other duties and have such other powers as
the President or the Board of Directors may from time to time prescribe.
Section 5.09. Treasurer. The Treasurer shall act under the direction of the
- ------------- ---------
President. Subject to the direction of the President he shall have custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the President or the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation. He may affix or cause to be affixed the seal of the Corporation to
documents so requiring.
Section 5.10. Assistant Treasurers. The Assistant Treasurers in the order of
- ------------- --------------------
their seniority, unless otherwise determined by the President or the Board of
Directors, shall, in the absence or disability of the Treasurer, perform the
duties and exercise the powers of the Treasurer. They shall perform such other
duties and have such other powers as the President or the Board of Directors may
from time to time prescribe.
ARTICLE VI
----------
Certificates of Stock
Section 6.01. Certificate. Every holder of stock in the Corporation shall be
- ------------ -----------
entitled to have a certificate signed by the Chairman or Vice-Chairman of the
Board of Directors, or the President or a Vice President, and by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in the Corporation.
Every such certificate shall contain a statement of the restrictions provided in
Section 4 of this Article.
Section 6.02. Facsimile Signature. Any or all the signatures on the
- ------------- -------------------
certificate may be facsimiles. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, such certificate may be issued with the same effect as
though the person had not ceased to be such officer, transfer agent or
registrar. The seal of the Corporation or a facsimile thereof may, but need
not, be affixed to certificates of stock.
Section 6.03. Lost Certificates. The Board of Directors may direct a new
- ------------- -----------------
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 6.04. Transfer. Upon surrender to the Corporation or the transfer
- ------------- --------
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books,
provided, however, the Corporation shall have no obligation to issue new
certificates, cancel old certificates or record transactions unless and until it
is satisfied that (i) all provisions of the Certificate of Incorporation, these
By-laws and any legends on the certificate regarding transfer of shares and
restrictions on such transfers have been complied with, and (ii) all other
applicable restrictions, including restrictions imposed by law, including
federal and state securities law, and by any stockholders agreement to which the
Corporation is a party, have been complied with.
Section 6.05. Record Date. The Board of Directors may fix in advance a date,
- ------------- -----------
not more than sixty days nor less than ten days preceding the date of any
meeting of stockholders, or not more than sixty days before the date for the
payment of any dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall go into effect,
or a date in connection with obtaining a consent, as a record date for the
determination of the stockholders entitled to notice of, and to vote at, any
such meeting and any adjournment thereof, or entitled to receive payment of any
such dividend, or to any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital stock, or to give
such consent, and in such case such stockholders and only
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AMENDED AND RESTATED BY-LAWS OF
ICF KAISER ENGINEERS PACIFIC, INC.
Page 6 of 9
such stockholders as shall be stockholders of record on the date so fixed shall
be entitled to such notice of, and to vote at, such meeting and any adjournment
thereof, or to receive payment of such dividend, or to receive such allotment of
rights, or to exercise such rights, or to give such consent, as the case may be
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid.
Section 6.06. Recognition of Ownership. The Corporation shall be entitled to
- ------------- ------------------------
recognize the person registered on its books as the owner of shares to be the
exclusive owner for all purposes including voting and dividends, and the
Corporation shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Nevada.
ARTICLE VII
-----------
Miscellaneous
Section 7.01. Reserves. There may be set aside out of any funds of the
- ------------ --------
Corporation available for dividends such sum or sums as the Board of Directors
may from time to time, in its absolute discretion, think proper, as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for the purchase of additional
property, or for such other purpose as the directors shall think conducive to
the interest of the Corporation, and the Board of Directors may modify or
abolish any such reserve.
Section 7.02. Checks, Demands and Notes. All checks or demands for money and
- ------------- -------------------------
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
Section 7.03. Fiscal Year. The fiscal year of the Corporation shall be as
- ------------- -----------
fixed by the Board of Directors.
Section 7.04. Seal. The corporate seal shall have inscribed thereon the name
- ------------- ----
of the Corporation and the words "Corporate Seal". The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or in any manner
reproduced.
ARTICLE VIII
------------
Indemnification
Section 8.01. Indemnification of Directors and Officers for Actions, Suits, or
- ------------ ----------------------------------------------------------------
Proceedings Other Than By Or In The Right of the Corporation. To the full
- ------------------------------------------------------------
extent permitted by law, the Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was or has agreed to become a director or
officer of the Corporation or is or was serving or has agreed to serve at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise (including employee
benefit plans) or by reason of any action alleged to have been taken or omitted
in such capacity against costs, charges, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with any threatened, pending or completed
action, suit or proceeding and any appeal therefrom including but not limited to
liability and expenses incurred on account of profits realized by him in the
purchase or sale of securities of the Corporation, if and only if he acted in
--------------
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful; the
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
---- ----------
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 8.02. Indemnification of Directors and Officers for Actions or Suits By
- ------------- -----------------------------------------------------------------
Or In The Right of the Corporation. To the full extent permitted by law, the
- ----------------------------------
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was or has agreed to become a director or officer of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise (including employee benefit plans), or by
reason of any action alleged to have been taken or omitted in such capacity,
against costs, charges and expenses (including
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
ICF KAISER ENGINEERS PACIFIC, INC.
Page 7 of 9
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of any threatened, pending or
completed action or suit and any appeal therefrom, or the defense or settlement
of any claim, issue or matter, if and only if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of such liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such costs,
charges and expenses which the court shall deem proper.
Section 8.03. Indemnification of Others for Actions, Suits, or Proceedings
- ------------- ------------------------------------------------------------
Other Than By Or In The Right of the Corporation. To the full extent permitted
- ------------------------------------------------
by law, the Corporation, in the sole discretion of the Board of Directors of the
Corporation, may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation), by reason of the fact that he
is or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with any threatened,
pending or completed action, suit or proceeding and any appeal therefrom,
including but not limited to liability and expenses incurred on account of
profits realized by him in the purchase or sale of securities of the
Corporation, if and only if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful; the termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 8.04. Indemnification of Others for Actions or Suits By Or In The Right
- ------------- -----------------------------------------------------------------
of the Corporation. To the full extent permitted by law, the Corporation, in
- ------------------
the sole discretion of the Board of Directors of the Corporation, may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of any threatened, pending or
completed action or suit and any appeal therefrom, or the defense or settlement
of any claim, issue or matter, if and only if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of such liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such costs,
charges and expenses which the court shall deem proper.
Section 8.05. Indemnification for Costs, Charges and Expenses of Successful
- ------------- -------------------------------------------------------------
Party. Notwithstanding the other provisions of these By-laws, to the extent
- -----
that a director or officer of the Corporation or other person indemnified under
Sections 8.01 through 8.04, herein, has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, he shall be indemnified against
all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or on his behalf in connection therewith.
Section 8.06. Determination of Right to Indemnification. Unless otherwise
- ------------- -----------------------------------------
ordered by a court, any indemnification under Sections 8.01 through 8.04,
herein, shall be paid by the Corporation unless a determination is made (i) by
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (ii) if such a
quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(iii) by the stockholders, that indemnification of an
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AMENDED AND RESTATED BY-LAWS OF
ICF KAISER ENGINEERS PACIFIC, INC.
Page 8 of 9
individual entitled to indemnification under Sections 8.01 through 8.04, herein,
is not proper in the circumstances because he has not met the applicable
standard of conduct set forth in Sections 8.01 through 8.04, herein.
Section 8.07. Advance Payment of Costs, Charges and Expenses. To the full
- ------------- ----------------------------------------------
extent permitted by law, the Corporation shall, upon request, pay costs, charges
and expenses (including attorneys' fees) incurred by a person entitled to
indemnification pursuant to Sections 8.01 and 8.02, herein, and, if applicable,
pursuant to Sections 8.03 and 8.04, herein, in defending a civil or criminal
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding; provided, however, that the payment of such costs, charges
and expenses incurred by a director or officer in his capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer) in advance of the final disposition of
such action, suit or proceeding shall be made only upon receipt of an
undertaking by or on behalf of the director or officer to repay all amounts so
advanced in the event that it shall ultimately be determined that such director
or officer is not entitled to be indemnified by the Corporation as authorized
in these By-laws; such costs, charges and expenses incurred by other employees,
agents and contractors may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
Section 8.08. Procedure for Indemnification. Any indemnification or advance of
- ------------- -----------------------------
costs, charges and expenses provided for in Sections 8.01 through 8.07, herein,
shall be made promptly, and in any event within sixty (60) days, upon the
written request of the person entitled to indemnification; the right to
indemnification or advances as granted by these By-laws shall be enforceable by
a director or officer or other person indemnified hereunder in any court of
competent jurisdiction. If the Corporation denies such request, in whole or in
part, or if no disposition thereof is made within sixty (60) days, such person's
costs, charges and expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation; it shall be a defense to
any such action (other than an action brought to enforce a claim for the advance
of costs, charges and expenses pursuant to Section 8.07, herein, where the
required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in Sections 8.01 through
8.04, herein, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in Sections 8.01 through 8.04, herein, nor the
fact that there has been an actual determination by the Corporation (including
its Board of Directors, its independent legal counsel, and its stockholders)
that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 8.09. Authorization of Corporation Officers. The proper officers of
- ------------- -------------------------------------
the Corporation are, and each of them acting without the other is, authorized to
take any action, for and in the name of the Corporation, which he deems
necessary or appropriate (as conclusively presumed from the taking of such
action) to carry out and effect the foregoing Sections 8.01 through 8.08.
Section 8.10. Other Rights; Continuation of Right to Indemnification. The
- ------------- ------------------------------------------------------
indemnification and advancement of expenses provided by these By-laws shall not
be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law
(present or future, common or statutory), by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding office or
while employed by or acting as agent for the Corporation, and shall continue as
to a person who has ceased to serve in the capacity making him eligible for
indemnification, and shall inure to the benefit of the estate, heirs, executors
and administrators of such person; all rights to indemnification under these By-
laws shall be deemed to be a contract between the Corporation and each director
and officer of the Corporation and, as applicable, any other person indemnified
hereunder who serves or served in such capacity at any time while these By-laws
as well as the relevant provisions of the General Corporation Law of the State
of Nevada or any other applicable laws are or were in effect; any repeal or
modification hereof or of such provisions of such law shall not in any way
diminish any rights to indemnification of such director or officer or other
person entitled to indemnification or the obligations of the Corporation arising
hereunder.
Section 8.11. Savings Clause. If Sections 8.01 through 8.10 of these By-laws
- ------------- --------------
or any portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall nevertheless indemnify each
director and officer, and may indemnify any other person entitled to
indemnification, as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Corporation, to the full extent
permitted by any applicable portion of these By-laws that shall not have been
invalidated
<PAGE>
AMENDED AND RESTATED BY-LAWS OF
ICF KAISER ENGINEERS PACIFIC, INC.
Page 9 of 9
and to the full extent permitted by applicable law. To the full extent permitted
by law, the Corporation may enter into and perform agreements with persons,
including, without limitation, present and former officers, directors and
employees of the Corporation and of companies acquired by or merged with the
Corporation, obligating the Corporation, among other things, to provide
indemnification and advancement of costs, charges and expenses to such persons
in addition to any indemnification or advancement which may be available to such
person under Sections 8.01 through 8.10 of these By-laws.
Section 8.12. Insurance. The Board of Directors may cause the Corporation to
- ------------- ---------
purchase and maintain insurance on behalf of any person who is or was or has
agreed to become a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director or officer of another
corporation, or as its representative in a partnership, joint venture, trust or
other enterprise (including employee benefit plans) against any liability
asserted against such person and incurred in any such capacity or arising out
of such status, whether or not the Corporation would have the power to indemnify
such person.
Section 8.13. Amendment of By-laws. The Board of Directors may from time to
- ------------- --------------------
time adopt further By-laws with respect to indemnification and may amend these
and such By-laws to provide at all times the fullest indemnification permitted
by the General Corporation Law of the State of Nevada.
ARTICLE IX
----------
Amendments
Section 9.01. Amendment by Stockholders. These By-laws may be amended by a
- ------------ -------------------------
majority vote of all the stock issued and outstanding and entitled to vote at
any annual or special meeting of the stockholders, provided notice of intention
to amend shall have been contained in the notice of the meeting.
Section 9.02. Amendment by Board of Directors. The Board of Directors by a
- ------------- -------------------------------
majority vote of the whole Board at any meeting may amend these By-laws,
including By-laws adopted by the stockholders, but the stockholders may from
time to time specify particular provisions of the By-laws which shall not be
amended by the Board of Directors.
<PAGE>
Exhibit 3(y)
CERTIFICATE OF INCORPORATION
OF
ICF KAISER GCH, INC.
SECTION 1.01. NAME.
- ------------- -----
The name of the Corporation is ICF Kaiser GCH, Inc.
SECTION 2.01. REGISTERED OFFICE AND AGENT.
- ------------- ----------------------------
The registered office of the Corporation in the State of Delaware is located in
the County of New Castle, at 1013 Centre Road, Wilmington 19805. Its registered
agent at such address is Corporation Service Company.
SECTION 3.01. PURPOSES.
- ------------- ---------
The purpose of the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of
Delaware.
SECTION 4.01. AUTHORIZED SHARES.
- ------------- ------------------
The total number of shares of capital stock which the Corporation shall have
authority to issue is one thousand (1,000) shares of Common Stock having a par
value of one dollar ($1.00) per share.
SECTION 5.01. INCORPORATOR.
- ------------- -------------
The name and mailing address of the incorporator is Paul Weeks, II, 9300 Lee
Highway, Fairfax, Virginia 22031-1207.
SECTION 5.02. DURATION.
- ------------- ---------
The Corporation is to have perpetual existence.
SECTION 6.01. LIMITATION OF LIABILITY.
- ------------- ------------------------
(a) No person shall be liable to the Corporation for any loss or damage suffered
by it on account of any action taken or omitted to be taken by him or her as a
director or officer of the Corporation, if such person (i) in good faith
exercised or used the same degree of diligence, care and skill as an ordinarily
prudent person would have exercised or used under similar circumstances, or (ii)
took, or omitted to take, such action in good faith reliance upon advice of
counsel for the Corporation, or upon books of account or reports made to the
Corporation by any of its officers or by an independent certified public
accountant, or by an appraiser selected with reasonable care by the Board of
Directors or by any committee designated by the Board of Directors, or in good
faith reliance upon other records of the Corporation.
(b) No director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that the foregoing shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the Corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
SECTION 7.01. RATIFICATION BY STOCKHOLDERS.
- ------------- -----------------------------
Any contract, transaction or act of the Corporation, the Board of Directors, or
a committee of the Board of Directors which shall be approved or ratified by a
majority of a quorum of the stockholders entitled to vote at any meeting or,
without a meeting, by the written consent of the holders of a majority of the
stock entitled to vote shall be as valid and binding as though approved or
ratified by every stockholder of the Corporation; but any failure of the
stockholders to approve or ratify such contract, transaction or act, when and if
submitted, shall not be deemed in any way to invalidate the same or to deprive
the Corporation, its directors or officers, of their right to proceed with such
contract, transaction or act.
SECTION 8.01. INDEMNIFICATION OF DIRECTORS AND OFFICERS FOR ACTIONS, SUITS,
- ------------- -------------------------------------------------------------
OR PROCEEDINGS OTHER THAN BY OR IN THE RIGHT OF THE
---------------------------------------------------
CORPORATION.
-----------
<PAGE>
CERTIFICATE OF INCORPORATION OF
ICF KAISER GCH, INC.
Page 2 of 6
To the full extent permitted by law, the Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Corporation), by reason of the fact that he or she is or was or has agreed to
become a director or officer of the Corporation or is or was serving or has
agreed to serve at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise
(including employee benefit plans), or by reason of any action alleged to have
been taken or omitted in such capacity, against costs, charges, expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her on his or her behalf in
connection with any threatened, pending or completed action, suit or proceeding
and any appeal therefrom, including but not limited to liability and expenses
incurred on account of profits realized by him or her in the purchase or sale of
securities of the Corporation, if and only if he or she acted in good faith and
--------------
in a manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful;
the termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent
---- ----------
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
SECTION 8.02. INDEMNIFICATION OF DIRECTORS AND OFFICERS FOR ACTIONS OR SUITS
- ------------- --------------------------------------------------------------
BY OR IN THE RIGHT OF THE CORPORATION.
--------------------------------------
To the full extent permitted by law, the Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he or she is or was
or has agreed to become a director or officer of the Corporation or is or was
serving or has agreed to serve at the request of the Corporation as a director
or officer of another corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans), or by reason of any action
alleged to have been taken or omitted in such capacity, against costs, charges
and expenses (including attorneys' fees) actually and reasonably incurred by him
or her on his or her behalf in connection with the defense or settlement of any
threatened, pending or completed action or suit and any appeal therefrom, or the
defense or settlement of any claim, issue or matter, if and only if he or she
--------------
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Corporation except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of such liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such costs, charges and expenses which the Court of Chancery or
such other court shall deem proper.
SECTION 8.03. INDEMNIFICATION OF OTHERS FOR ACTIONS, SUITS, OR PROCEEDINGS
- ------------- ------------------------------------------------------------
OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION.
-------------------------------------------------
To the full extent permitted by law, the Corporation, in the sole discretion of
the Board of Directors of the Corporation, may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by
reason of the fact that he or she is or was or has agreed to become an employee,
agent or contractor of the Corporation, or is or was serving or has agreed to
serve at the request of the Corporation as a director, officer, employee, agent
or contractor of another corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans), or by reason of any action
alleged to have been taken or omitted in such capacity, against costs, charges,
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her or on his or her
behalf in connection with any threatened, pending or completed action, suit or
proceeding and any appeal therefrom, including but not limited to liability and
expenses incurred on account of profits realized by him or her in the purchase
or sale of securities of the Corporation, if and only if he or she acted in good
--------------
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful; the
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
---- ----------
itself, create a presumption that the person did not act in good faith and in a
manner which he or she reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 8.04. INDEMNIFICATION OF OTHERS FOR ACTIONS OR SUITS BY OR IN THE
- ------------- -----------------------------------------------------------
RIGHT OF THE CORPORATION.
-------------------------
To the full extent permitted by law, the Corporation, in the sole discretion of
the Board of Directors of the Corporation, may
<PAGE>
CERTIFICATE OF INCORPORATION OF
ICF KAISER GCH, INC.
Page 3 of 6
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he or
she is or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or her or on his or her
behalf in connection with the defense or settlement of any threatened, pending
or completed action or suit and any appeal therefrom, or the defense or
settlement of any claim, issue or matter, if and only if he or she acted in good
-----------
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Corporation except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs, charges and expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 8.05. INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES OF SUCCESSFUL
- ------------- -------------------------------------------------------------
PARTY.
------
Notwithstanding the other provisions of this Certificate, to the extent that a
director or officer of the Corporation or other person indemnified under
Sections 9.01 through 9.04, herein, has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, he or she shall be indemnified
against all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or her or on his or her behalf in connection
therewith.
SECTION 8.06. DETERMINATION OF RIGHT TO INDEMNIFICATION.
- ------------- ------------------------------------------
Unless otherwise ordered by a court, any indemnification under Sections 9.01
through 9.04, herein, shall be paid by the Corporation unless a determination is
made (i) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders, that indemnification of an individual
entitled to indemnification under Sections 9.01 through 9.04, herein, is not
proper in the circumstances because he or she has not met the applicable
standard of conduct set forth in Sections 9.01 through 9.04, herein.
SECTION 8.07. ADVANCE PAYMENT OF COSTS, CHARGES AND EXPENSES.
- ------------- -----------------------------------------------
To the full extent permitted by law, the Corporation shall, upon request, pay
costs, charges and expenses (including attorneys' fees) incurred by a person
entitled to indemnification pursuant to Sections 9.01 and 9.02, herein, and, if
applicable, pursuant to Sections 9.03 and 9.04, herein, in defending a civil or
criminal action, suit or proceeding in advance of the final disposition of such
action, suit or proceeding; provided, however, that the payment of such costs,
-------- -------
charges and expenses incurred by a director or officer in his or her capacity as
a director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer) in advance of the final
disposition of such action, suit or proceeding shall be made only upon receipt
of an undertaking by or on behalf of the director or officer to repay all
amounts so advanced in the event that it shall ultimately be determined that
such director or officer is not entitled to be indemnified by the Corporation as
authorized in this certificate; such costs, charges and expenses incurred by
other employees, agents and contractors may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
SECTION 8.08. PROCEDURE FOR INDEMNIFICATION.
- ------------- ------------------------------
Any indemnification or advance of costs, charges and expenses provided for in
Sections 9.01 through 9.07, herein, shall be made promptly, and in any event
within sixty days, upon the written request of the person entitled to
indemnification; the right to indemnification or advances as granted by this
Certificate shall be enforceable by a director or officer or other person
indemnified hereunder in any court of competent jurisdiction. If the Corporation
denies such request, in whole or in part, or if no disposition thereof is made
within sixty days, such person's costs, charges and expenses incurred in
connection with successfully establishing his right to indemnification, in whole
or in part, in any such action shall also be indemnified by the Corporation; it
shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of costs, charges and expenses pursuant to Section 9.07,
herein, where the required undertaking, if any, has been received by the
Corporation) that the claimant has not met the standard of conduct set forth in
Sections 9.01 through 9.04, herein. Neither the failure of the Corporation
(including its Board of Directors, its independent legal counsel, and its
stockholders) to have made a determination prior to the commencement of such
<PAGE>
CERTIFICATE OF INCORPORATION OF
ICF KAISER GCH, INC.
Page 4 of 6
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in
Sections 9.01 through 9.04, herein, nor the fact that there has been an actual
determination by the Corporation (including its Board of Directors, its
independent legal counsel, and its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
SECTION 8.09. AUTHORIZATION OF CORPORATION OFFICERS.
- ------------- --------------------------------------
The proper officers of the Corporation are, and each of them acting without the
other is, authorized to take any action, for and in the name of the Corporation,
which the officer deems necessary or appropriate (as conclusively presumed from
the taking of such action) to carry out and effect the foregoing Sections 9.01
through 9.08.
SECTION 8.10. OTHER RIGHTS; CONTINUATION OF RIGHT TO INDEMNIFICATION.
- ------------- -------------------------------------------------------
The indemnification and advancement of expenses provided by this Certificate
shall not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law
(present or future, common or statutory), by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding
office or while employed by or acting as an agent for the Corporation, and shall
continue as to a person who has ceased to serve in the capacity making him or
her eligible for indemnification, and shall inure to the benefit of the estate,
heirs, executors and administrators of such person; all rights to
indemnification under this Certificate shall be deemed to be a contract between
the Corporation and each director and officer of the Corporation and, as
applicable, any other person indemnified hereunder who serves or served in such
capacity at any time while this Certificate as well as the relevant provisions
of the Delaware General Corporation Law or any other applicable laws are or were
in effect; any repeal or modification hereof or of such provisions of such law
shall not in any way diminish any rights to indemnification of such director or
officer or other person entitled to indemnification or the obligations of the
Corporation arising hereunder.
SECTION 8.11. SAVINGS CLAUSE.
- ------------- ---------------
If this Certificate or any portion hereof shall be invalidated on any ground by
any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify each director and officer, and may indemnify any other person entitled
to indemnification, as to costs, charges and expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement with respect to any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Corporation, to the
full extent permitted by any applicable portion of this Certificate that shall
not have been invalidated and to the full extent permitted by applicable law. To
the full extent permitted by law, the Corporation may enter into and perform
agreements with persons, including, without limitation, present and former
officers, directors and employees of the Corporation and of companies acquired
by or merged with the Corporation, obligating the Corporation, among other
things, to provide indemnification and advancement of costs, charges and
expenses to such persons in addition to any indemnification or advancement which
may be available to such person under Sections 9.01 through 9.10 of this
Certificate.
SECTION 8.12. INSURANCE.
- ------------- ----------
The Board of Directors may cause the Corporation to purchase and maintain
insurance on behalf of any person who is or was or has agreed to become a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, or as its
representative in a partnership, joint venture, trust or other enterprise
(including employee benefit plans), against any liability asserted against such
person and incurred in any such capacity or arising out of such status, whether
or not the Corporation would have the power to indemnify such person.
SECTION 8.13. ADOPTION OF BY-LAWS.
- ------------- --------------------
The Board of Directors may from time to time adopt By-laws with respect to
indemnification and may amend such By-laws to provide at all times the fullest
indemnification permitted by the General Corporation Law of the State of
Delaware.
SECTION 9.01. SETTLEMENT OF DEBTS.
- ------------- --------------------
Whenever a compromise or arrangement is proposed between this Corporation and
its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware
<PAGE>
CERTIFICATE OF INCORPORATION OF
ICF KAISER GCH, INC.
Page 5 of 6
may, on the application in a summary way of this Corporation or of any creditor
or stockholder thereof or on the application of any receiver or receivers
appointed for this Corporation under the provisions of Section 291 of Title 8 of
the Delaware Code or on the application of trustees in dissolution or of any
receiver or receivers appointed for this Corporation under the provisions of
Section 279 of Title 8 of the Delaware Code, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
SECTION 10.01. ELECTIONS OF DIRECTORS.
- -------------- -----------------------
Elections of directors need not be by written ballot unless the By-laws of the
Corporation shall so provide.
SECTION 11.01. STOCKHOLDERS MEETINGS, RECORDS.
- -------------- -------------------------------
Stockholders meetings may be held within or without the State of Delaware, as
the By-laws may provide. The books of the Corporation may be kept (subject to
any provision in the General Corporation Law of the State of Delaware) outside
of the State of Delaware at such place or places as may be designated from time
to time by the Board of Directors (or duly authorized committee of the Board of
Directors) or in the By-laws of the Corporation.
SECTION 12.01. BY-LAWS.
- -------------- --------
The Board of Directors (or a duly authorized committee of the Board of
Directors) of the Corporation shall have the power to make and, except as may be
expressly stated in the By-laws, to alter and repeal its By-laws.
SECTION 13.01. AMENDMENT OF CERTIFICATE OF INCORPORATION.
- -------------- ------------------------------------------
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this certificate, in the manner now or hereafter
prescribed by the General Corporation Law of Delaware, and all rights conferred
upon stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF the undersigned, being the incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the General Corporation Law
of the State of Delaware, do make this certificate hereby declaring and
certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereto set my signature this 11th day of October 1994.
Paul Weeks, II
<PAGE>
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION OF
ICF KAISER GCH, INC.
ICF Kaiser GCH, Inc., a corporation organized and existing under the
General Corporation Law of Delaware (the "Corporation"), hereby does certify:
FIRST: That the Corporation has not received any payments for its stock.
SECOND: That the Sole Director of the Corporation, by the written consent
filed with minutes of the Board, adopted a resolution proposing and declaring
advisable the following amendment of the Certificate of Incorporation of the
Corporation:
RESOLVED, that the Certificate of Incorporation of the Corporation be
amended by deleting Section 1.01 in its entirety and inserting in its place
the following new language:
Section 1.01. Name. The name of the Corporation is ICF Kaiser Remediation
------------ ----
Company.
THIRD: That the aforesaid amendment was duly adopted in accordance with the
applicable provisions of Section 241 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, ICF Kaiser GCH, Inc. has caused this Certificate to be
signed by Charles A. Debelius, its President and attested by Cynthia L.
Hathaway, its Assistant Secretary, this 1st day of March 1995.
ICF Kaiser GCH, Inc.
(Now: ICF KAISER REMEDIATION COMPANY)
By: /s/Charles A. Debelius
President
Attest:
By: /s/Cynthia L. Hathaway
Assistant Secretary
<PAGE>
Exhibit 3(z)
BYLAWS OF
ICF KAISER REMEDIATION COMPANY
ARTICLE I
---------
Offices
Section 1.01. Registered Office in Delaware. The registered office shall be in
- ------------ -----------------------------
Wilmington, Delaware. The name of the registered agent of the Corporation at
such location is Corporation Service Company.
Section 1.02. Principal Office. The Board of Directors is granted full power
- ------------ ----------------
and authority to fix and thereafter change the location of the principal office
of the Corporation at any location within the United States.
Section 1.03. Other Offices. The Corporation may have such other offices
- ------------ -------------
either within or without the State of Delaware as the Board of Directors may
from time to time determine.
ARTICLE II
----------
Meetings of Stockholders
Section 2.01. Time and Place of Meeting. Annual meetings of the stockholders
- ------------ -------------------------
for the purpose of electing directors, making reports of the affairs of the
Corporation and transacting such other business as may properly come before the
meeting shall be held at such place, within or without the State of Delaware, on
such date and at such time as the Board of Directors shall each year fix, which
date shall be within thirteen months subsequent to the later of the date of
incorporation or the last annual meeting of stockholders. Meetings of
stockholders for any other purpose may be held at such time and place, within
or without the State of Delaware, as shall be fixed by the Board of Directors
and stated in the notice of meeting. If no other place is fixed by the Board of
Directors, meetings of stockholders shall be held at the principal executive
office of the Corporation. Failure to hold the annual meeting at the designated
time shall not work a forfeiture or dissolution of the Corporation.
Section 2.02. Notice of Meeting. Written notice of meetings of stockholders,
- ------------ -----------------
stating the place, date and hour thereof, and in the case of a special meeting,
the purpose or purposes for which the meeting is being called, shall be given
not less than ten nor more than sixty days before the date of the meeting to
each stockholder entitled to vote thereat.
Section 2.03. Qualified Voters. The officer who has charge of the stock ledger
- ------------ ----------------
of the Corporation shall prepare, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder for any purpose germane to
the meeting during ordinary business hours for a period of at least ten days
prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or if not
so specified, at the place where the meeting is to be held. The list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present and entitled to
vote.
Section 2.04. Special Meetings. Special meetings of the stockholders may be
- ------------- ----------------
called by the Board of Directors or by the President or by a writing signed by
stockholders owning a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote at such meeting. Such
call shall state the purpose or purposes of the proposed meeting. The Secretary
shall give notice of such meeting to the stockholders entitled to vote thereat,
in accordance with such call.
Section 2.05. Business at Special Meetings. Business transacted at any special
- ------------ ----------------------------
meeting of stockholders shall be limited to the purposes stated in the notice.
Section 2.06. Quorum. The holders of a majority of the stock issued and
- ------------ ------
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time without notice other than announcement at
the meeting (if the adjournment is not for more than thirty days and a new
record date for the determination of stockholders entitled to vote is not
fixed), until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
<PAGE>
BY-LAWS OF ICF KAISER REMEDIATION COMPANY
PAGE 2 OF 9
Section 2.07. Vote Required. When a quorum is present at any meeting, the vote
- ------------ -------------
of the holders of a majority of the shares of stock having voting power voting,
in person or by proxy, on a question shall decide any question brought before
such meeting, unless the question is one upon which by express provision of the
statutes, the Certificate of Incorporation or these By-laws a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section 2.08. Proxies. Each stockholder shall at every meeting of the
- ------------ -------
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after three years from its date unless the proxy provides for a
longer period. No proxy or power of attorney to vote shall be used to vote at a
meeting of the stockholders unless it shall have been filed with the Secretary
of the meeting when required by the inspectors of election. All questions
regarding the qualification of voters, the validity of proxies and the
acceptance or rejection of votes shall be decided by two inspectors of election
who shall be appointed by the Board of Directors, or if not so appointed, then
by the presiding officer of the meeting.
Section 2.09. Presiding Officer. The President of the Corporation shall
- ------------ -----------------
preside over all meetings of stockholders.
Section 2.10. Consent. Whenever the vote of stockholders at a meeting thereof
- ------------ -------
is required or permitted to be taken in connection with any corporate action by
any provisions of the statutes, the By-laws or the Certificate of Incorporation,
the meeting and vote may be dispensed with if the number of stockholders who
would have been entitled to vote upon the action if such meeting were held,
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting, shall consent in writing to such
corporate action being taken. Prompt notice shall be given by the Secretary to
all stockholders of the taking of corporate action without a meeting by less
than unanimous written consent.
ARTICLE III
-----------
Directors
Section 3.01. Number and Election. The number of directors which shall
- ------------ -------------------
constitute the whole Board shall be no less than one (1) or more than ten (10).
By amendment of this By-law, the number may be increased or decreased from time
to time by the Board of Directors or stockholders within the limits permitted by
law, but no decrease in the number of directors shall change the term of any
director in office at the time thereof. The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 3.02, and each
director shall hold office until his successor is elected and accepts office
unless he earlier resigns or is removed. Directors need not be stockholders. A
director may resign at any time upon written notice to the Corporation or orally
at any meeting of the directors or stockholders.
Section 3.02. Removal and Vacancies. A director may be removed with or without
- ------------ ---------------------
cause by a majority vote of the holders of the outstanding shares entitled to
vote. [Subject to any Stockholder's Agreement] Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, though less than a
quorum, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and accept office, unless
sooner displaced.
Section 3.03. Management, The business of the Corporation shall be managed by
- ------------ ----------
its Board of Directors, which may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these By-laws directed or required to be
exercised or done by the stockholders.
Section 3.04. Place of Meetings. The Board of Directors of the Corporation may
- ------------ -----------------
hold meetings, both regular and special, either within or without the State of
Delaware. Meetings may be held by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 3.05. Annual Meeting. The first meeting of each newly elected Board of
- ------------ --------------
Directors shall be held immediately following the adjournment of the annual
meeting of stockholders and at the place thereof. No notice of such meeting
shall be necessary to the directors in order legally to constitute the meeting,
provided a quorum is present. In the event such meeting is not so held, the
meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors.
Section 3.06. Notice for Regular Meetings. Regular meetings of the Board of
- ------------ ---------------------------
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board of Directors.
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Section 3.07. Special Meetings. Special meetings of the Board of Directors may
- ------------ ----------------
be called by a majority of the Board of Directors or the President and shall be
held on notice by letter mailed or delivered for transmission not later than on
the third day immediately preceding the day of such meeting, or by written
notice delivered or received not later than the day immediately preceding the
day of such meeting. Neither the business to be transacted at, nor the purpose
of, any special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
Section 3.08. Quorum. At meetings of the Board of Directors, a majority of the
- ------------ ------
full number of directors shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
Section 3.09. Chairman of the Board. At its first meeting after each annual
- ------------ ---------------------
meeting of stockholders, the Board of Directors shall elect from among its
members a Chairman. The Board of Directors may also choose a Vice Chairman from
among its members. The Chairman shall preside at all meetings of the Board of
Directors, and shall perform such other duties as the Board may prescribe. The
Chairman may participate and act in any meeting of the Board of Directors as a
director. The Vice Chairman, if any, shall act under the direction of the
Chairman and in the absence or disability of the Chairman shall perform the
duties and exercise the powers of the Chairman. The Chairman and the Vice
Chairman, if any, (i) shall hold their respective offices at the pleasure of the
Board of Directors, and (ii) may be removed with or without cause at any time by
the Board of Directors. Any vacancy occurring in the office of the Chairman or
Vice Chairman by death, resignation, removal or otherwise shall be filled by the
Board of Directors.
Section 3.10. Committees. The Board of Directors may, by resolution adopted by
- ------------ ----------
a majority of the whole Board, designate one or more committees of the Board of
Directors, each committee to consist of one or more of the directors of the
Corporation, which, to the extent provided in the resolution, may have and
exercise any or all the powers of the Board of Directors in the management of
the business and affairs of the Corporation including, but not limited to, the
power and authority of the Board of Directors: (i) to authorize the seal of the
Corporation to be affixed to all papers; (ii) to declare a dividend; (iii) to
authorize the issuance of stock; (iv) to adopt a certificate of ownership and
merger pursuant to Section 253, of Title 8, Delaware Code; and (v) to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board of Directors as provided in Section 151(a) of
Title 8, Delaware Code, fix any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution of assets of
the Corporation or the conversion into, or the exchange of such shares for
shares of any other class or classes or any other series of the same of any
other class or classes of stock of the Corporation. Such committee or
committees shall have such name or names as may be determined from time to time
by the Board of Directors. The member or members of any such committee present
at any meeting and not disqualified from voting may, whether or not they
constitute a quorum, unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any absent or disqualified
member. At meetings of such committees, a majority of the members or alternate
members at any meeting at which there is a quorum shall be the act of the
committee.
Section 3.11. Committee Minutes. The committees shall keep regular minutes of
- ------------ -----------------
their proceedings and report the same to the Board of Directors.
Section 3.12. Consent. Any action required or permitted to be taken at any
- ------------ -------
meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of the
Board of Directors or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board or committee.
Section 3.13. Compensation. The directors may be paid their expenses of
- ------------ ------------
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of committees of the Board of Directors may be allowed like reimbursement and
compensation for attending committee meetings.
ARTICLE IV
----------
Notices
Section 4.01. Notice. Notices to directors and stockholders mailed to them at
- ------------ ------
their addresses appearing on the books of the Corporation shall be deemed to be
given at the time when deposited in the United States mail, postage prepaid. An
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BY-LAWS OF ICF KAISER REMEDIATION COMPANY
PAGE 4 OF 9
affidavit of the Secretary or an Assistant Secretary or of the transfer agent of
the Corporation that the notice has been given shall, in the absence of fraud,
be prima facie evidence of the facts stated therein.
----- -----
Section 4.02. Waiver. Whenever any notice is required to be given under the
- ------------ ------
provisions of the statute, the Certificate of Incorporation or of these By-laws,
a waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Neither the business to be transacted at, nor the purposes
of, any meeting need be specified in such waiver. Attendance at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE V
---------
Officers
Section 5.01. Election. The officers of the Corporation shall be chosen by the
- ------------ --------
Board of Directors at its first meeting after each annual meeting of
stockholders and shall be a President, a Secretary and a Treasurer. The Board
of Directors may also choose one or more Vice Presidents and one or more
Assistant Secretaries and Assistant Treasurers. Two or more offices may be held
by the same person.
Section 5.02. Other Officers. The Board of Directors may appoint such other
- ------------ --------------
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
Section 5.03. Salaries. The salaries of all officers of the Corporation shall
- ------------ --------
be fixed by or under the direction of the Board of Directors.
Section 5.04. Vacancies. The officers of the Corporation shall hold office at
- ------------ ---------
the pleasure of the Board of Directors. Any officer may be removed with or
without cause at any time by the Board of Directors. Each officer shall hold
his office until his successor is elected and qualified or until his earlier
resignation or removal. The Board of Directors may fill any vacancy occurring
in any office of the Corporation by death, resignation, removal or otherwise.
Section 5.05. President. The President shall serve as Chief Executive Officer
- ------------ ---------
of the Corporation, shall have general and active management of the business of
the Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He shall execute on behalf of the
Corporation, and may affix or cause the seal to be affixed to, all instruments
requiring such execution except to the extent the signing and execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation. He shall perform such additional duties and have such
additional powers as the Board of Directors may from time to time prescribe.
Section 5.06. Vice Presidents. The Vice Presidents shall act under the
- ------------ ---------------
direction of the President and in the absence or disability of the President
shall perform the duties and exercise the powers of the President. They shall
perform such other duties and have such other powers as the President or the
Board of Directors may from time to time prescribe. The Board of Directors may
designate one or more Executive Vice Presidents or may otherwise specify the
order of seniority of the Vice Presidents. The duties and powers of the
President shall descend to the Vice Presidents in such specified order of
seniority.
Section 5.07. Secretary. The Secretary shall act under the direction of the
- ------------ ---------
President. Subject to the direction of the President, he shall attend all
meetings of the Board of Directors and all meetings of the stockholders and
record the proceedings in a book to be kept for that purpose. He shall perform
like duties for committees when required. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the
President or the Board of Directors. He shall keep in safe custody the seal of
the Corporation and, when authorized by the President or the Board of Directors,
cause it to be affixed to any instrument requiring it.
Section 5.08. Assistant Secretaries. The Assistant Secretaries shall act under
- ------------ ---------------------
the direction of the President. In the order of their seniority, unless
otherwise determined by the President or the Board of Directors, they shall, in
the absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary. They shall perform such other duties and have such
other powers as the President or the Board of Directors may from time to time
prescribe.
Section 5.09. Treasurer. The Treasurer shall act under the direction of the
- ------------ ---------
President. Subject to the direction of the
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BY-LAWS OF ICF KAISER REMEDIATION COMPANY
PAGE 5 OF 9
President he shall have custody of the corporate funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the Corporation and shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. He shall disburse the funds of the
Corporation as may be ordered by the President or the Board of Directors, taking
proper vouchers for such disbursements, and shall render to the President and
the Board of Directors at its regular meetings, or when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. He may affix or cause to be affixed the
seal of the Corporation to documents so requiring.
Section 5.10. Assistant Treasurers. The Assistant Treasurers in the order of
- ------------ --------------------
their seniority, unless otherwise determined by the President or the Board of
Directors, shall, in the absence or disability of the Treasurer, perform the
duties and exercise the powers of the Treasurer. They shall perform such other
duties and have such other powers as the President or the Board of Directors may
from time to time prescribe.
ARTICLE VI
----------
Certificates of Stock
Section 6.01. Certificate. Every holder of stock in the Corporation shall be
- ------------ -----------
entitled to have a certificate signed by the Chairman or Vice-Chairman of the
Board of Directors, or the President or a Vice President, and by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in the Corporation.
Every such certificate shall contain a statement of the restrictions provided in
Section 4 of this Article.
Section 6.02. Facsimile Signature. Any or all the signatures on the
- ------------ -------------------
certificate may be facsimiles. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, such certificate may be issued with the same effect as
though the person had not ceased to be such officer, transfer agent or
registrar. The seal of the Corporation or a facsimile thereof may, but need
not, be affixed to certificates of stock.
Section 6.03. Lost Certificates. The Board of Directors may direct a new
- ------------- -----------------
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 6.04. Transfer. Upon surrender to the Corporation or the transfer
- ------------ --------
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books,
provided, however, the Corporation shall have no obligation to issue new
certificates, cancel old certificates or record transactions unless and until it
is satisfied that (i) all provisions of the Certificate of Incorporation, these
By-laws and any legends on the certificate regarding transfer of shares and
restrictions on such transfers have been complied with, and (ii) all other
applicable restrictions, including restrictions imposed by law, including
federal and state securities law, and by any stockholders agreement to which the
Corporation is a party, have been complied with.
Section 6.05. Record Date. The Board of Directors may fix in advance a date,
- ------------- -----------
not more than sixty days nor less than ten days preceding the date of any
meeting of stockholders, or not more than sixty days before the date for the
payment of any dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall go into effect,
or a date in connection with obtaining a consent, as a record date for the
determination of the stockholders entitled to notice of, and to vote at, any
such meeting and any adjournment thereof, or entitled to receive payment of any
such dividend, or to any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital stock, or to give
such consent, and in such case such stockholders and only such stockholders as
shall be stockholders of record on the date so fixed shall be entitled to such
notice of, and to vote at, such meeting and any adjournment thereof, or to
receive payment of such dividend, or to receive such allotment of rights, or to
exercise such rights, or to give such consent, as the case may be
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid.
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PAGE 6 OF 9
Section 6.06. Recognition of Ownership. The Corporation shall be entitled to
- ------------ ------------------------
recognize the person registered on its books as the owner of shares to be the
exclusive owner for all purposes including voting and dividends, and the
Corporation shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE VII
-----------
Miscellaneous
Section 7.01. Reserves. There may be set aside out of any funds of the
- ------------ --------
Corporation available for dividends such sum or sums as the Board of Directors
may from time to time, in its absolute discretion, think proper, as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for the purchase of additional
property, or for such other purpose as the directors shall think conducive to
the interest of the Corporation, and the Board of Directors may modify or
abolish any such reserve.
Section 7.02. Checks, Demands and Notes. All checks or demands for money and
- ------------ -------------------------
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
Section 7.03. Fiscal Year. The fiscal year of the Corporation shall be as
- ------------ -----------
fixed by the Board of Directors.
Section 7.04. Seal. The corporate seal shall have inscribed thereon the name
- ------------ ----
of the Corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE VIII
------------
Indemnification
Section 8.01. Indemnification of Directors and Officers for Actions, Suits, or
- ------------ ----------------------------------------------------------------
Proceedings Other Than By Or In The Right of the Corporation. To the full
- ------------------------------------------------ -----------
extent permitted by law, the Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was or has agreed to become a director or
officer of the Corporation or is or was serving or has agreed to serve at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise (including employee
benefit plans) or by reason of any action alleged to have been taken or omitted
in such capacity against costs, charges, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with any threatened, pending or completed
action, suit or proceeding and any appeal therefrom including but not limited to
liability and expenses incurred on account of profits realized by him in the
purchase or sale of securities of the Corporation, if and only if he acted in
--------------
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful; the
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
---- ----------
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 8.02. Indemnification of Directors and Officers for Actions or Suits By
- ------------ --------------------------------------------- -------------------
Or In The Right of the Corporation. To the full extent permitted by law, the
- ----------------------------------
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was or has agreed to become a director or officer of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise (including employee benefit plans), or by
reason of any action alleged to have been taken or omitted in such capacity,
against costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or on his behalf in connection with the defense or
settlement of any threatened, pending or completed action or suit and any appeal
therefrom, or the defense or settlement of any claim, issue or matter, if and
------
only if he acted in good faith and in a manner he reasonably believed to be in
- -------
or not opposed to the best interests of the Corporation except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon
<PAGE>
BY-LAWS OF ICF KAISER REMEDIATION COMPANY
PAGE 7 OF 9
application that, despite the adjudication of such liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such costs, charges and expenses which the Court of Chancery or
such other court shall deem proper.
Section 8.03. Indemnification of Others for Actions, Suits, or Proceedings
- ------------ ------------------------------------------------ -----------
Other Than By Or In The Right of the Corporation. To the full extent permitted
- ------------------------------------------------
by law, the Corporation, in the sole discretion of the Board of Directors of the
Corporation, may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation), by reason of the fact that he
is or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with any threatened,
pending or completed action, suit or proceeding and any appeal therefrom,
including but not limited to liability and expenses incurred on account of
profits realized by him in the purchase or sale of securities of the
Corporation, if and only if he acted in good faith and in a manner he reasonably
--------------
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful; the termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
----
contendere or its equivalent, shall not, of itself, create a presumption that
- ----------
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 8.04. Indemnification of Others for Actions or Suits By Or In The Right
- ------------ ------------------------------------------------- ---------------
of the Corporation. To the full extent permitted by law, the Corporation, in
- ------------------
the sole discretion of the Board of Directors of the Corporation, may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was or has agreed to become an employee, agent or contractor of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contractor of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans), or by reason of any action alleged to have been taken
or omitted in such capacity, against costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection with the defense or settlement of any threatened, pending or
completed action or suit and any appeal therefrom, or the defense or settlement
of any claim, issue or matter, if and only if he acted in good faith and in a
--------------
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such costs, charges and expenses which the
Court of Chancery or such other court shall deem proper.
Section 8.05. Indemnification for Costs, Charges and Expenses of Successful
- ------------ -------------------------------------------------- ----------
Party. Notwithstanding the other provisions of these By-laws, to the extent
- -----
that a director or officer of the Corporation or other person indemnified under
Sections 8.01 through 8.04, herein, has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, he shall be indemnified against
all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or on his behalf in connection therewith.
Section 8.06. Determination of Right to Indemnification. Unless otherwise
- ------------ -----------------------------------------
ordered by a court, any indemnification under Sections 8.01 through 8.04,
herein, shall be paid by the Corporation unless a determination is made (i) by
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (ii) if such a
quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(iii) by the stockholders, that indemnification of an individual entitled to
indemnification under Sections 8.01 through 8.04, herein, is not proper in the
circumstances because he has not met the applicable standard of conduct set
forth in Sections 8.01 through 8.04, herein.
Section 8.07. Advance Payment of Costs, Charges and Expenses. To the full
- ------------ ----------------------------------------------
extent permitted by law, the Corporation shall, upon request, pay costs, charges
and expenses (including attorneys' fees) incurred by a person entitled to
indemnification pursuant to Sections 8.01 and 8.02, herein, and, if applicable,
pursuant to Sections 8.03 and 8.04,
<PAGE>
BY-LAWS OF ICF KAISER REMEDIATION COMPANY
PAGE 8 OF 9
herein, in defending a civil or criminal action, suit or proceeding in advance
of the final disposition of such action, suit or proceeding; provided, however,
-------- -------
that the payment of such costs, charges and expenses incurred by a director or
officer in his capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such person while a director or officer)
in advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be indemnified by
the Corporation as authorized in these By-laws; such costs, charges and expenses
incurred by other employees, agents and contractors may be so paid upon such
terms and conditions, if any, as the Board of Directors deems appropriate.
Section 8.08. Procedure for Indemnification. Any indemnification or advance of
- ------------ -----------------------------
costs, charges and expenses provided for in Sections 8.01 through 8.07, herein,
shall be made promptly, and in any event within sixty (60) days, upon the
written request of the person entitled to indemnification; the right to
indemnification or advances as granted by these By-laws shall be enforceable by
a director or officer or other person indemnified hereunder in any court of
competent jurisdiction. If the Corporation denies such request, in whole or in
part, or if no disposition thereof is made within sixty (60) days, such person's
costs, charges and expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation; it shall be a defense to
any such action (other than an action brought to enforce a claim for the advance
of costs, charges and expenses pursuant to Section 8.07, herein, where the
required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in Sections 8.01 through
8.04, herein, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in Sections 8.01 through 8.04, herein, nor the
fact that there has been an actual determination by the Corporation (including
its Board of Directors, its independent legal counsel, and its stockholders)
that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 8.09. Authorization of Corporation Officers. The proper officers of
- ------------ -------------------------------------
the Corporation are, and each of them acting without the other is, authorized to
take any action, for and in the name of the Corporation, which he deems
necessary or appropriate (as conclusively presumed from the taking of such
action) to carry out and effect the foregoing Sections 8.01 through 8.08.
Section 8.10. Other Rights; Continuation of Right to Indemnification. The
- ------------ ------------------------------------------------------
indemnification and advancement of expenses provided by these By-laws shall not
be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law
(present or future, common or statutory), by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding office or
while employed by or acting as agent for the Corporation, and shall continue as
to a person who has ceased to serve in the capacity making him eligible for
indemnification, and shall inure to the benefit of the estate, heirs, executors
and administrators of such person; all rights to indemnification under these By-
laws shall be deemed to be a contract between the Corporation and each director
and officer of the Corporation and, as applicable, any other person indemnified
hereunder who serves or served in such capacity at any time while these By-laws
as well as the relevant provisions of the Delaware General Corporation Law or
any other applicable laws are or were in effect; any repeal or modification
hereof or of such provisions of such law shall not in any way diminish any
rights to indemnification of such director or officer or other person entitled
to indemnification or the obligations of the Corporation arising hereunder.
Section 8.11. Savings Clause. If Sections 8.01 through 8.10 of these By-laws
- ------------ --------------
or any portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall nevertheless indemnify each
director and officer, and may indemnify any other person entitled to
indemnification, as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Corporation, to the full extent
permitted by any applicable portion of these By-laws that shall not have been
invalidated and to the full extent permitted by applicable law. To the full
extent permitted by law, the Corporation may enter into and perform agreements
with persons, including, without limitation, present and former officers,
directors and employees of the Corporation and of companies acquired by or
merged with the Corporation, obligating the Corporation, among other things, to
provide indemnification and advancement of costs, charges and expenses to such
persons in addition to any indemnification or advancement which may be available
to such person under Sections 8.01 through 8.10 of these By-laws.
<PAGE>
BY-LAWS OF ICF KAISER REMEDIATION COMPANY
PAGE 9 OF 9
Section 8.12. Insurance. The Board of Directors may cause the Corporation to
- ------------ ---------
purchase and maintain insurance on behalf of any person who is or was or has
agreed to become a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director or officer of another
corporation, or as its representative in a partnership, joint venture, trust or
other enterprise (including employee benefit plans) against any liability
asserted against such person and incurred in any such capacity or arising out
of such status, whether or not the Corporation would have the power to indemnify
such person.
Section 8.13. Amendment of By-laws. The Board of Directors may from time to
- ------------ --------------------
time adopt further By-laws with respect to indemnification and may amend these
and such By-laws to provide at all times the fullest indemnification permitted
by the General Corporation Law of the State of Delaware.
ARTICLE IX
----------
Amendments
Section 9.01. Amendment by Stockholders. These By-laws may be amended by a
- ------------ -------------------------
majority vote of all the stock issued and outstanding and entitled to vote at
any annual or special meeting of the stockholders, provided notice of intention
to amend shall have been contained in the notice of the meeting.
Section 9.02. Amendment by Board of Directors. The Board of Directors by a
- ------------ -------------------------------
majority vote of the whole Board at any meeting may amend these By-laws,
including By-laws adopted by the stockholders, but the stockholders may from
time to time specify particular provisions of the By-laws which shall not be
amended by the Board of Directors.
<PAGE>
Exhibit 4(a)(6)
================================================================================
ICF KAISER INTERNATIONAL, INC., Issuer
and
CYGNA CONSULTING ENGINEERS AND PROJECT MANAGEMENT, INC., Existing Guarantor
ICF KAISER GOVERNMENT PROGRAMS, INC., Existing Guarantor
PCI OPERATING COMPANY, INC., Existing Guarantor
SYSTEMS APPLICATIONS INTERNATIONAL, INC., Existing Guarantor
and
EDA, INCORPORATED, New Guarantor
GLOBAL TRADE & INVESTMENT, INC., New Guarantor
ICF KAISER EUROPE, INC., New Guarantor
ICF KAISER / GEORGIA WILSON, INC. , New Guarantor
ICF KAISER OVERSEAS ENGINEERING, INC., New Guarantor
ICF KAISER ENGINEERS PACIFIC, INC., New Guarantor
ICF KAISER REMEDIATION COMPANY, New Guarantor
and
ICF KAISER SYSTEMS, INC., New Guarantor
TO
THE BANK OF NEW YORK, Trustee
---------------
Sixth Supplemental Indenture
Dated as of December 3, 1997
to
Indenture dated as of January 11, 1994, as supplemented
---------------
$125,000,000 12% Senior Subordinated Notes due 2003
==============================================================================
<PAGE>
Exhibit 4(a)(6)
THIS SIXTH SUPPLEMENTAL INDENTURE, dated as of December 3, 1997, is entered
into by and among ICF KAISER INTERNATIONAL, INC., a Delaware corporation (the
"Company"), THE BANK OF NEW YORK, a New York banking corporation (the
"Trustee"), the following existing GUARANTORS:
Cygna Consulting Engineers and Project Management, Inc., a Delaware
corporation ("Cygna");
ICF Kaiser Government Programs, Inc., a Delaware corporation ("ICFK-GP");
PCI Operating Company, Inc., a Delaware corporation ("PCI"); and
Systems Applications International, Inc., a Delaware corporation "(SAI")
and the following new GUARANTORS:
EDA, Incorporated, a Maryland corporation ("EDA");
Global Trade & Investment, Inc., a Delaware corporation ("Global");
ICF Kaiser Europe, Inc., a Delaware corporation ("ICFK Europe");
ICF Kaiser / Georgia Wilson, Inc., a Delaware corporation ("ICFK/GW");
ICF Kaiser Overseas Engineering, Inc., a Delaware corporation ("ICFK
Overseas");
ICF Kaiser Engineers Pacific, Inc., a Delaware corporation ("ICFK
Pacific");
ICF Kaiser Remediation Company, a Delaware corporation ("Remcon"); and
ICF Kaiser Systems, Inc., a Delaware corporation ("ICFK Systems").
WITNESSETH:
WHEREAS, each new Guarantor is either a direct or an indirect Wholly Owned
Restricted Subsidiary of the Company;
WHEREAS, on December 3, 1997, the Company entered into an Amended and
Restated Credit Agreement with CoreStates Bank, N.A., as Agent, the banking
institutions named therein (the "Banks"), and certain subsidiaries of the
Company named therein (the "Subsidiary Guarantors"), as a successor Bank Credit
Agreement;
WHEREAS, as a condition to the Company's being permitted to include the
Accounts Receivable of the new Guarantors in the Borrowing Base as defined in
and provided for under the Bank Credit Agreement, the new Guarantors must become
Subsidiary Guarantors under the Bank Credit Agreement;
WHEREAS, EDA, Global, ICFK Europe, ICFK/GW, ICFK Overseas, ICFK Pacific,
Remcon, and ICFK Systems have determined that it is desirable to become
Subsidiary Guarantors under the Bank Credit Agreement;
WHEREAS, the Company and the Trustee have heretofore executed and delivered
an Indenture dated as of January 11, 1994 as supplemented (the "Indenture"), for
the purpose of issuing $125,000,000 of 12% Senior Subordinated Notes due 2003
(the "Notes"), and Section 10.01 of the Indenture provides that the Company
(when authorized by a Board Resolution) and the Trustee for the Notes, at any
time and from time to time, may enter into one or more indentures supplemental
thereto, in form satisfactory to such Trustee, for any of the purposes set forth
in said Section 10.01 (each a "Supplemental Indenture");
WHEREAS, Section 5.11 of the Indenture requires that, prior to or
concurrently with the new Guarantors becoming Subsidiary Guarantors under the
Bank Credit Agreement, the Company must cause the new Guarantors to execute and
deliver to the Trustee a Supplemental Indenture and a Indenture Guarantee
(substantially in the form attached as Exhibit B to the Indenture) pursuant to
which the new Guarantors will unconditionally guarantee the payment of principal
of, premium, if any, and interest on the Notes;
WHEREAS, Section 5.11 of the Indenture further provides that the Indenture
Guarantee referenced in the immediately preceding clause shall be subordinated
in right of payment to any subsidiary guarantee granted by the new Guarantors
pursuant to the Bank Credit Agreement;
-2-
<PAGE>
WHEREAS, ICFK-GP became a Subsidiary Guarantor of the Bank Credit Agreement
on May 6, 1996, and was already a Guarantor of the Indenture as of September 1,
1995;
WHEREAS, Cygna, PCI, and SAI became Subsidiary Guarantors under the Bank
Credit Agreement on June 24, 1996, and became Guarantors of the Indenture as of
June 24, 1996;
WHEREAS, EDA, Global, ICFK Europe, ICFK/GW, ICFK Overseas, ICFK Pacific,
Remcon, and ICFK Systems will become Subsidiary Guarantors under the Bank Credit
Agreement on December 3, 1997, and have determined that it is desirable
simultaneously or concurrently to become new Guarantors under the Indenture;
WHEREAS, the execution and delivery of this Supplemental Indenture has been
duly authorized by the Executive Committee of the Board of Directors of the
Company on October 17, 1997;
WHEREAS, the execution and delivery of this Supplemental Indenture has been
duly authorized by the Boards of Directors of each of the existing Guarantors as
of November 14, 1997;
WHEREAS, the execution and delivery of this Supplemental Indenture and the
Indenture Guarantees have been duly authorized by the Boards of Directors of
each of the new Guarantors as of November 14, 1997;
WHEREAS, the Company and the Guarantors have determined that it is
desirable to enter into this Sixth Supplemental Indenture and have requested the
Trustee to join with them in the execution of this Sixth Supplemental Indenture;
and
WHEREAS, the Trustee has accepted the trusts created by this Sixth
Supplemental Indenture and in evidence thereof has joined in the execution
hereof;
NOW, THEREFORE, THIS SIXTH SUPPLEMENTAL INDENTURE WITNESSETH, that, in
consideration of the premises and of acceptance by the Trustee of the trusts
created hereby and by the Indenture, and also for and in consideration of the
sum of One Dollar to the Company duly paid by the Trustee at or before the
execution and delivery of this Supplemental Indenture, the receipt of which is
hereby acknowledged, IT IS HEREBY COVENANTED AND AGREED, by and among the
Company, the existing and new Guarantors, and the Trustee, as follows:
1. Terms defined in the Indenture are used herein as therein defined.
2. ICFK-GP acknowledges that it has executed and delivered to the Trustee
the Second Supplemental Indenture and an Indenture Guarantee, both as of
September 1, 1995.
3. Each of Cygna, PCI, and SAI hereby acknowledge that each has executed
and delivered to the Trustee the Fifth Supplemental Indenture and an Indenture
Guarantee, all as of June 24, 1996.
4. Each of EDA, Global, ICFK Europe, ICFK/GW, ICFK Overseas, ICFK Pacific,
and ICFK Systems hereby acknowledge its execution and delivery of an Indenture
Guarantee dated as of December 3, 1997, in the form authorized by and attached
as Exhibit B to the Indenture.
5. The following sundry provisions shall be a part of this Sixth
Supplemental Indenture:
Section 5.01. Effect of Supplemental Indenture. Upon the execution and
--------------------------------
delivery of this Sixth Supplemental Indenture by the Company and the Trustee,
the Indenture shall be supplemented in accordance herewith, and this Sixth
Supplemental Indenture shall form a part of the Indenture for all purposes, and
every Holder of Notes heretofore or hereafter authenticated and delivered under
the Indenture shall be bound thereby.
Section 5.02. Indenture Remains in Full Force and Effect. Except as
------------------------------------------
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
-3-
<PAGE>
Section 5.03. Indenture and Sixth Supplemental Indenture Construed Together.
-------------------------------------------------------------
This Sixth Supplemental Indenture is an Indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Sixth Supplemental
Indenture shall henceforth be read and construed together.
Section 5.04. Confirmation and Preservation of Indenture. The Indenture as
------------------------------------------
supplemented by this Sixth Supplemental Indenture is in all respects confirmed
and preserved.
Section 5.05 Conflict with Trust Indenture Act. If any provision of this
---------------------------------
Sixth Supplemental Indenture limits, qualifies, or conflicts with any provision
of the Trust Indenture Act that is required under such Act to be part of and
govern any provision of this Sixth Supplemental Indenture, the provision of such
Act shall control. If any provision of this Sixth Supplemental Indenture
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the provision of such Act shall be deemed to apply to the
Indenture as so modified or to be excluded by this Sixth Supplemental Indenture,
as the case may be.
Section 5.06 Separability Clause. In case any provision in this Sixth
-------------------
Supplemental Indenture shall be invalid, illegal, or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 5.07 Terms Defined in the Indenture. All capitalized terms not
------------------------------
otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
Section 5.08 Effect of Headings. The Article and Section headings herein are
------------------
for convenience only and shall not affect the construction hereof.
Section 5.09 Benefits of Sixth Supplemental Indenture, etc. Nothing in this
---------------------------------------------
Sixth Supplemental Indenture, the Indenture, or the Notes, express or implied,
shall give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders of the Notes, any benefit of
any legal or equitable right, remedy, or claim under the Indenture, this Sixth
Supplemental Indenture, or the Notes.
Section 5.10 Successors and Assigns. All covenants and agreements in this
----------------------
Sixth Supplemental Indenture by the Company and the Guarantors shall bind their
successors and assigns, whether so expressed or not.
Section 5.11 Trustee Not Responsible for Recitals. The recitals contained
------------------------------------
herein shall be taken as the statements of the Company and the Guarantors, and
the Trustee assumes no responsibility for their correctness.
Section 5.12 Certain Duties and Responsibilities of the Trustee. In entering
--------------------------------------------------
into this Sixth Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee, whether or not
elsewhere herein so provided.
Section 5.13 Governing Law. This Sixth Supplemental Indenture shall be
-------------
governed by and construed in accordance with the laws of the State of New York,
without regard to the conflicts of law principles thereof.
Section 5.14 Counterparts. This Sixth Supplemental Indenture may be executed
------------
in counterparts, each of which, when so executed, shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Sixth Supplemental
Indenture to be duly executed, and the Company, the existing and new Guarantors,
and the Trustee have caused their respective corporate seals to be hereunto
affixed and attested, all as of December 3, 1997.
ICF KAISER INTERNATIONAL, INC.
-4-
<PAGE>
CYGNA CONSULTING ENGINEERS AND PROJECT
MANAGEMENT, INC.
ICF KAISER GOVERNMENT PROGRAMS, INC.
PCI OPERATING COMPANY, INC.
SYSTEMS APPLICATIONS INTERNATIONAL, INC.
EDA, INCORPORATED
GLOBAL TRADE & INVESTMENT, INC.
ICF KAISER EUROPE, INC.
ICF KAISER / GEORGIA WILSON, INC.
ICF KAISER OVERSEAS ENGINEERING, INC.
ICF KAISER PACIFIC, INC.
ICF KAISER REMEDIATION COMPANY
ICF KAISER SYSTEMS, INC.
THE BANK OF NEW YORK, as Trustee
-5-
<PAGE>
Exhibit 4(g)(1)
================================================================================
ICF KAISER INTERNATIONAL, INC., Issuer
and
CYGNA CONSULTING ENGINEERS AND PROJECT MANAGEMENT, INC., Existing Guarantor
ICF KAISER GOVERNMENT PROGRAMS, INC., Existing Guarantor
PCI OPERATING COMPANY, INC., Existing Guarantor
SYSTEMS APPLICATIONS INTERNATIONAL, INC., Existing Guarantor
and
EDA, INCORPORATED, New Guarantor
GLOBAL TRADE & INVESTMENT, INC., New Guarantor
ICF KAISER EUROPE, INC., New Guarantor
ICF KAISER / GEORGIA WILSON, INC. , New Guarantor
ICF KAISER OVERSEAS ENGINEERING, INC., New Guarantor
ICF KAISER ENGINEERS PACIFIC, INC., New Guarantor
ICF KAISER REMEDIATION COMPANY, New Guarantor
and
ICF KAISER SYSTEMS, INC., New Guarantor
TO
THE BANK OF NEW YORK, Trustee
---------------
First Supplemental Indenture
Dated as of December 3, 1997
to
Indenture dated as of December 23, 1996
---------------
$15,000,000 12% Senior Notes due 2003, Series B
==============================================================================
<PAGE>
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of December 3, 1997, is entered
into by and among ICF KAISER INTERNATIONAL, INC., a Delaware corporation (the
"Company"), THE BANK OF NEW YORK, a New York banking corporation (the
"Trustee"), the following existing GUARANTORS:
Cygna Consulting Engineers and Project Management, Inc., a Delaware
corporation ("Cygna");
ICF Kaiser Government Programs, Inc., a Delaware corporation ("ICFK-GP");
PCI Operating Company, Inc., a Delaware corporation ("PCI"); and
Systems Applications International, Inc., a Delaware corporation "(SAI")
and the following new GUARANTORS:
EDA, Incorporated, a Maryland corporation ("EDA");
Global Trade & Investment, Inc., a Delaware corporation ("Global");
ICF Kaiser Europe, Inc., a Delaware corporation ("ICFK Europe");
ICF Kaiser / Georgia Wilson, Inc., a Delaware corporation ("ICFK/GW");
ICF Kaiser Overseas Engineering, Inc., a Delaware corporation ("ICFK
Overseas");
ICF Kaiser Engineers Pacific, Inc., a Delaware corporation ("ICFK
Pacific");
ICF Kaiser Remediation Company, a Delaware corporation ("Remcon"); and
ICF Kaiser Systems, Inc., a Delaware corporation ("ICFK Systems").
WITNESSETH:
WHEREAS, each new Guarantor is either a direct or an indirect Wholly Owned
Restricted Subsidiary of the Company;
WHEREAS, on December 3, 1997, the Company entered into an Amended and Restated
Credit Agreement with CoreStates Bank, N.A., as Agent, the banking institutions
named therein (the "Banks"), and certain subsidiaries of the Company named
therein (the "Subsidiary Guarantors"), as a successor Bank Credit Agreement;
WHEREAS, as a condition to the Company's being permitted to include the
Accounts Receivable of the new Guarantors in the Borrowing Base as defined in
and provided for under the Bank Credit Agreement, the new Guarantors must become
Subsidiary Guarantors under the Bank Credit Agreement;
WHEREAS, EDA, Global, ICFK Europe, ICFK/GW, ICFK Overseas, ICFK Pacific,
Remcon, and ICFK Systems have determined that it is desirable to become
Subsidiary Guarantors under the Bank Credit Agreement;
WHEREAS, the Company and the Trustee have heretofore executed and delivered an
Indenture dated as of December 23, 1996 (the "Indenture"), for the purpose of
issuing $15,000,000 of 12% Senior Notes due 2003, Series B (the "Notes"), and
Section 10.01 of the Indenture provides that the Company (when authorized by a
Board Resolution) and the Trustee for the Notes, at any time and from time to
time, may enter into one or more indentures supplemental thereto, in form
satisfactory to such Trustee, for any of the purposes set forth in said Section
10.01 (each a "Supplemental Indenture");
WHEREAS, Section 5.11 of the Indenture requires that, prior to or concurrently
with the new Guarantors becoming Subsidiary Guarantors under the Bank Credit
Agreement, the Company must cause the new Guarantors to execute and deliver to
the Trustee a Supplemental Indenture and a Indenture Guarantee (substantially in
the form attached as Exhibit G to the Indenture) pursuant to which the new
Guarantors will unconditionally guarantee the payment of principal of, premium,
if any, and interest on the Notes;
WHEREAS, ICFK-GP became a Subsidiary Guarantor of the Bank Credit Agreement on
May 6, 1996, and was a Guarantor of the Indenture at the time the Notes were
issued;
-2-
<PAGE>
WHEREAS, Cygna, PCI, and SAI became Subsidiary Guarantors under the Bank
Credit Agreement on June 24, 1996, and were Guarantors of the Indenture at the
time the Notes were issued;
WHEREAS, EDA, Global, ICFK Europe, ICFK/GW, ICFK Overseas, ICFK Pacific,
Remcon, and ICFK Systems will become Subsidiary Guarantors under the Bank Credit
Agreement on December 3, 1997, and have determined that it is desirable
simultaneously or concurrently to become new Guarantors under the Indenture;
WHEREAS, the execution and delivery of this Supplemental Indenture has been
duly authorized by the Executive Committee of the Board of Directors of the
Company on October 17, 1997;
WHEREAS, the execution and delivery of this Supplemental Indenture has been
duly authorized by the Boards of Directors of each of the existing Guarantors as
of November 14, 1997;
WHEREAS, the execution and delivery of this Supplemental Indenture and the
Indenture Guarantees have been duly authorized by the Boards of Directors of
each of the new Guarantors as of November 14, 1997;
WHEREAS, the Company and the Guarantors have determined that it is desirable
to enter into this First Supplemental Indenture and have requested the Trustee
to join with them in the execution of this First Supplemental Indenture; and
WHEREAS, the Trustee has accepted the trusts created by this First
Supplemental Indenture and in evidence thereof has joined in the execution
hereof;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH, that, in
consideration of the premises and of acceptance by the Trustee of the trusts
created hereby and by the Indenture, and also for and in consideration of the
sum of One Dollar to the Company duly paid by the Trustee at or before the
execution and delivery of this Supplemental Indenture, the receipt of which is
hereby acknowledged, IT IS HEREBY COVENANTED AND AGREED, by and among the
Company, the existing and new Guarantors, and the Trustee, as follows:
1. Terms defined in the Indenture are used herein as therein defined.
2. Each of Cygna, ICFK-GP, PCI, and SAI hereby acknowledge that each has
executed and delivered to the Trustee an Indenture Guarantee, all as of December
23, 1996.
3. Each of EDA, Global, ICFK Europe, ICFK/GW, ICFK Overseas, ICFK Pacific,
and ICFK Systems hereby acknowledge its execution and delivery of an Indenture
Guarantee dated as of December 3, 1997, in the form authorized by and attached
as Exhibit G to the Indenture.
4. The following sundry provisions shall be a part of this First Supplemental
Indenture:
Section 4.01. Effect of Supplemental Indenture. Upon the execution and
--------------------------------
delivery of this First Supplemental Indenture by the Company and the Trustee,
the Indenture shall be supplemented in accordance herewith, and this First
Supplemental Indenture shall form a part of the Indenture for all purposes, and
every Holder of Notes heretofore or hereafter authenticated and delivered under
the Indenture shall be bound thereby.
Section 4.02. Indenture Remains in Full Force and Effect. Except as
------------------------------------------
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
Section 4.03. Indenture and First Supplemental Indenture Construed Together.
-------------------------------------------------------------
This First Supplemental Indenture is an Indenture supplemental to and in
implementation of the Indenture, and the Indenture and this First Supplemental
Indenture shall henceforth be read and construed together.
Section 4.04. Confirmation and Preservation of Indenture. The Indenture as
------------------------------------------
supplemented by this First Supplemental Indenture is in all respects confirmed
and preserved.
-3-
<PAGE>
Section 4.05 Conflict with Trust Indenture Act. If any provision of this
---------------------------------
First Supplemental Indenture limits, qualifies, or conflicts with any provision
of the Trust Indenture Act that is required under such Act to be part of and
govern any provision of this First Supplemental Indenture, the provision of such
Act shall control. If any provision of this First Supplemental Indenture
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the provision of such Act shall be deemed to apply to the
Indenture as so modified or to be excluded by this First Supplemental Indenture,
as the case may be.
Section 4.06 Separability Clause. In case any provision in this First
-------------------
Supplemental Indenture shall be invalid, illegal, or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 4.07 Terms Defined in the Indenture. All capitalized terms not
------------------------------
otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
Section 4.08 Effect of Headings. The Article and Section headings herein are
------------------
for convenience only and shall not affect the construction hereof.
Section 4.09 Benefits of First Supplemental Indenture, etc. Nothing in this
---------------------------------------------
First Supplemental Indenture, the Indenture, or the Notes, express or implied,
shall give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders of the Notes, any benefit of
any legal or equitable right, remedy, or claim under the Indenture, this First
Supplemental Indenture, or the Notes.
Section 4.10 Successors and Assigns. All covenants and agreements in this
----------------------
First Supplemental Indenture by the Company and the Guarantors shall bind their
successors and assigns, whether so expressed or not.
Section 4.11 Trustee Not Responsible for Recitals. The recitals contained
------------------------------------
herein shall be taken as the statements of the Company and the Guarantors, and
the Trustee assumes no responsibility for their correctness.
Section 4.12 Certain Duties and Responsibilities of the Trustee. In entering
--------------------------------------------------
into this First Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee, whether or not
elsewhere herein so provided.
Section 4.13 Governing Law. This First Supplemental Indenture shall be
-------------
governed by and construed in accordance with the laws of the State of New York,
without regard to the conflicts of law principles thereof.
Section 4.14 Counterparts. This First Supplemental Indenture may be executed
------------
in counterparts, each of which, when so executed, shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and the Company, the existing and new Guarantors,
and the Trustee have caused their respective corporate seals to be hereunto
affixed and attested, all as of December 3, 1997.
ICF KAISER INTERNATIONAL, INC.
CYGNA CONSULTING ENGINEERS AND PROJECT
MANAGEMENT, INC.
ICF KAISER GOVERNMENT PROGRAMS, INC.
PCI OPERATING COMPANY, INC.
SYSTEMS APPLICATIONS INTERNATIONAL, INC.
EDA, INCORPORATED
-4-
<PAGE>
GLOBAL TRADE & INVESTMENT, INC.
ICF KAISER EUROPE, INC.
ICF KAISER / GEORGIA WILSON, INC.
ICF KAISER OVERSEAS ENGINEERING, INC.
ICF KAISER PACIFIC, INC.
ICF KAISER REMEDIATION COMPANY
ICF KAISER SYSTEMS, INC.
THE BANK OF NEW YORK, as Trustee
-5-
<PAGE>
EXHIBIT 10(a)
________________________________________________________________________________
AMENDED AND RESTATED CREDIT AGREEMENT
among
ICF KAISER INTERNATIONAL, INC.,
CERTAIN SUBSIDIARIES THEREOF, AS GUARANTORS,
and
THE BANKING INSTITUTIONS NAMED HEREIN
with
CORESTATES BANK, N.A.
as Agent
December 3, 1997
________________________________________________________________________________
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TABLE OF CONTENTS
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I. CERTAIN DEFINITIONS................................................................ 1
1.1 Definitions.................................................................. 1
1.2 Accounting Terms............................................................. 17
II. THE CREDIT......................................................................... 18
2.1 The Loans.................................................................... 18
(a) Revolving Credit Loans................................................. 18
2.2 The Revolving Credit Notes................................................... 19
2.3 Funding Procedures........................................................... 19
2.4 Interest..................................................................... 21
(a) Base Rate............................................................... 21
(b) LIBO Rate............................................................... 21
(c) Conversions of Loans.................................................... 21
(d) Default Rate............................................................ 22
(e) Applicable Margins...................................................... 22
2.5 Letters of Credit............................................................ 22
(a) General Requirements.................................................... 22
(b) Letter of Credit Requests............................................... 23
(c) Letter of Credit Participations......................................... 23
(d) Agreement to Repay Letter of Credit Drawings, Collateral, etc........... 26
2.6 Fees......................................................................... 27
(a) Commitment Fee.......................................................... 27
(b) Letter of Credit Fees................................................... 28
(c) Fronting Fee............................................................ 28
(d) Closing Fee............................................................. 28
2.7 Reduction or Termination of Aggregate Revolving Loan Commitment.............. 28
(a) Notice of Voluntary Reduction or Termination............................ 28
(b) Mandatory Termination................................................... 28
(c) Mandatory Reduction..................................................... 28
2.8 Prepayments.................................................................. 29
(a) Mandatory Prepayments................................................... 29
(b) Base Rate Loans......................................................... 29
(c) LIBO Rate Loans......................................................... 30
2.9 Payments..................................................................... 30
(a) LIBO Loans.............................................................. 30
(b) Base Rate Loans......................................................... 30
(c) Letter of Credit Fees................................................... 30
(d) Form of Payments, Application of Payments, Payment Administration, Etc.. 30
(e) Net Payments............................................................ 31
2.10 Changes in Circumstances; Yield Protection................................... 32
2.11 Illegality................................................................... 33
III. REPRESENTATIONS AND WARRANTIES..................................................... 34
3.1 Organization, Standing....................................................... 34
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3.2 Corporate Authority, Validity Etc....................................... 34
3.3 Litigation.............................................................. 35
3.4 ERISA................................................................... 35
3.5 Financial Statements.................................................... 35
3.6 Not in Default; Judgments, etc.......................................... 36
3.7 Taxes................................................................... 36
3.8 Permits, Licenses, Etc.................................................. 36
3.9 Compliance With Laws.................................................... 36
3.10 Solvency................................................................ 37
3.11 No Burdensome Agreements................................................ 37
3.12 Subsidiaries, Investments, Etc.......................................... 37
3.13 Amounts Owed to or from Affiliates; Intercompany Agreements............. 37
(a) Affiliates....................................................... 37
(b) Intercompany Agreements.......................................... 38
3.14 Subsidiaries............................................................ 38
3.15 Maintenance of Insurance................................................ 38
3.16 U.S. Government Contracts............................................... 38
3.17 Margin Stock............................................................ 38
3.18 Properties.............................................................. 38
3.19 Change.................................................................. 38
3.20 Disclosure Generally.................................................... 38
IV. SECURITY....................................................................... 39
4.1 Security Documents...................................................... 39
V. CONDITIONS PRECEDENT........................................................... 39
5.1 All Loans and Letters of Credit......................................... 39
(a) Documents......................................................... 39
(b) Covenants; Representations........................................ 39
(c) Defaults.......................................................... 39
(d) Change............................................................ 39
(e) Lock-Box Accounts................................................. 40
(f) Fees and Reimbursable Expenses.................................... 40
(g) Actions to Perfect Liens.......................................... 40
(h) Amended and Restated Security Agreement........................... 40
5.2 Conditions to Effectiveness............................................. 40
(a) Articles, Bylaws.................................................. 40
(b) Evidence of Authorization......................................... 40
(c) Legal Opinions.................................................... 40
(d) Incumbency........................................................ 41
(e) Notes............................................................. 41
(f) Documents......................................................... 41
(g) Consents.......................................................... 41
(h) Other Agreements.................................................. 41
(i) Change............................................................ 41
(j) Due Diligence Review.............................................. 41
VI. AFFIRMATIVE COVENANTS.......................................................... 41
6.1 Financial Statements and Reports........................................ 41
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(a) Annual Statements........................................................... 41
(b) Quarterly Statements........................................................ 42
(c) Statements excluding Kaiser-Hill............................................ 42
(d) Financial Statements and Reports Sent to Shareholders or Filed With the SEC. 43
(e) No Default.................................................................. 43
(f) Compliance.................................................................. 43
(g) Borrowing Base Certificate.................................................. 43
(h) Projections................................................................. 43
(i) ERISA....................................................................... 44
(j) Material Changes............................................................ 44
(k) Other Information........................................................... 44
(l) Quarterly Status Reports.................................................... 44
6.2 Corporate Existence............................................................... 44
6.3 ERISA............................................................................. 44
6.4 Compliance with Regulations....................................................... 45
6.5 Conduct of Business; Permits and Approvals; Compliance with Laws.................. 45
6.6 Maintenance of Insurance.......................................................... 45
6.7 Payment of Debt; Payment of Taxes; Etc............................................ 45
6.8 Notice of Events.................................................................. 45
6.9 Inspection Rights................................................................. 46
6.10 Generally Accepted Accounting Principles.......................................... 46
6.11 Use of Proceeds................................................................... 47
6.12 Further Assurances................................................................ 47
VII. NEGATIVE COVENANTS....................................................................... 47
7.1 Merger, Consolidation............................................................. 47
7.2 Indebtedness for Borrowed Money................................................... 47
7.3 Liens............................................................................. 48
7.4 Guarantees........................................................................ 48
7.5 Margin Stock...................................................................... 48
7.6 Acquisitions and Investments...................................................... 48
7.7 Transfer of Assets; Nature of Business............................................ 50
7.8 Restricted Payments............................................................... 50
7.9 Accounting Change................................................................. 51
7.10 Modification of Indenture......................................................... 51
7.11 New Subsidiaries and Subsidiary Guarantors........................................ 51
VIII. FINANCIAL COVENANTS...................................................................... 51
8.1 Fixed Charge Coverage............................................................. 52
8.2 Interest Coverage................................................................. 52
8.3 Senior Funded Indebtedness to EBITDA.............................................. 52
8.4 Indebtedness for Borrowed Money to Total Capitalization........................... 52
8.5 Indebtedness for Borrowed Money to EBITDA......................................... 52
IX. GUARANTY................................................................................. 53
9.1 Guaranty.......................................................................... 53
9.2 No Impairment of Guaranty......................................................... 54
9.3 Continuation and Reinstatement, Etc............................................... 54
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9.4 Representations and Warranties................................................... 55
X. DEFAULT.................................................................................. 55
10.1 Events of Default............................................................... 55
(a) Payments................................................................ 55
(b) Covenants............................................................... 55
(c) Representations, Warranties, Etc........................................ 55
(d) Bankruptcy, Etc......................................................... 55
(e) Certain Other Defaults.................................................. 56
(f) Judgments............................................................... 56
(g) Attachments............................................................. 56
(h) Change in Control....................................................... 56
XI. AGENT.................................................................................... 57
11.1 Appointment and Authorization................................................... 57
11.2 Duties and Obligations.......................................................... 57
11.3 The Agent as a Bank............................................................. 58
11.4 Independent Credit Decisions.................................................... 58
11.5 Indemnification................................................................. 58
11.6 Successor Agent................................................................. 59
11.7 Allocations Made By Agent....................................................... 59
XII. MISCELLANEOUS............................................................................ 59
12.1 Waiver.......................................................................... 59
12.2 Amendments...................................................................... 59
12.3 Governing Law................................................................... 60
12.4 Participations and Assignments.................................................. 60
12.5 Captions........................................................................ 61
12.6 Notices......................................................................... 61
12.7 Sharing of Collections, Proceeds and Set-Offs; Application of Payments.......... 61
12.8 Expenses of the Agent; Indemnification of the Agent and the Banks............... 62
12.9 Survival of Warranties and Certain Agreements................................... 63
12.10 Severability.................................................................... 63
12.11 Banks' Obligations Several; Independent Nature of Banks' Rights................. 63
12.12 No Fiduciary Relationship....................................................... 64
12.13 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.................................. 64
12.14 WAIVER OF JURY TRIAL............................................................ 64
12.15 Counterparts; Effectiveness..................................................... 65
12.16 Use of Defined Terms............................................................ 65
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EXHIBITS
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A Commitments
B Security Agreement
C Revolving Credit Note
D Loan Requests
E Opinion of Counsel for Borrower
F Officer's Certificate
G Borrowing Base Certificate
H Form of Joinder Agreement
I Form of Insurance
6.1(l) Form of Contract Status Report
SCHEDULES
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1.1(b) Existing Liens
2.4(e) Applicable Margins
2.5(a) Existing Letters of Credit
3.3 Litigation
3.5 Liabilities
3.7 Taxes
3.12 Subsidiaries
3.13 Intercompany Debt; Intercompany Agreements; Dividends
7.4 Existing Guarantees
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AMENDED AND RESTATED CREDIT AGREEMENT
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THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 3, 1997
(this "AGREEMENT"), is entered into by and among ICF KAISER INTERNATIONAL, INC.
("BORROWER"), a Delaware corporation, each of its subsidiaries signatories
hereto (each a "Subsidiary Guarantor" and collectively the "Subsidiary
Guarantors"), the banking institutions signatories hereto (each, a "BANK" and
collectively, the "BANKS") and CORESTATES BANK, N.A., as agent for the Banks
under this Agreement (in such capacity, the "AGENT").
WITNESSETH:
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WHEREAS, the Borrower, certain of the Subsidiary Guarantors and certain of
the Banks are parties to a Credit Agreement, dated as of May 6, 1996, as amended
(the "1996 Credit Agreement"), providing for a secured revolving credit facility
for loans and letters of credit, which revolving credit facility is used to
provide working capital to the Borrower and its Subsidiaries and for general
corporate purposes;
WHEREAS, the Borrower, the Subsidiary Guarantors, the Banks and the Agent
have agreed to amend the 1996 Credit Agreement as provided herein, to add
subsidiaries as Subsidiary Guarantors, to add banking institutions as Banks, and
to amend and restate the 1996 Credit Agreement as so amended.
I. CERTAIN DEFINITIONS.
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I.1 DEFINITIONS. As used in this Agreement, the following terms shall
have these meanings:
"1996 SENIOR NOTES" shall mean the Borrower's 12% Senior Notes due 2003,
Series A, issued December 23, 1996, and all 12% Senior Notes due 2003, Series
B, issued March 7, 1997, in exchange therefor.
"ACCOUNT" shall mean all rights to payment for goods sold or leased or for
services rendered, whether or not such rights have been earned by performance.
"ACQUISITION" shall have the meaning set forth in Section 7.6(d).
"ADDITIONAL AMOUNT" shall have the meaning set forth in Section 2.1(a)(6).
"AFFILIATE" shall mean any Person (other than a Subsidiary) (1) which
directly or indirectly controls, or is controlled by, or is under common control
with Borrower or a Subsidiary; (2) which directly or indirectly beneficially
owns or holds ten percent (10%) or more of any class of voting stock of Borrower
or any Subsidiary; or (3) ten percent (10%) or more of whose voting stock of
which is directly or indirectly beneficially owned or held by Borrower or a
Subsidiary. The term control shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by contract, or
otherwise.
"AGREEMENT" shall mean this Credit Agreement, as amended, supplemented, or
modified from time to time and all exhibits and schedules attached hereto.
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"AGGREGATE REVOLVING LOAN COMMITMENT" shall have the meaning set forth in
Section 2.1(a)(1).
"APPLICABLE MARGIN" shall mean the margin applicable to Base Rate Loans and
to LIBO Rate Loans determined in accordance with Schedule 2.4(e) hereto.
"BASE RATE" shall mean, for any day, the higher of the Federal Funds Rate
plus 1/2 of 1% per annum or the prime commercial lending rate of the Agent, as
announced from time to time at its head office, calculated on the basis of the
actual number of days elapsed in a year of 365/366 days.
"BASE RATE LOANS" shall mean Revolving Credit Loans accruing interest based
on the Base Rate.
"BLOCKED ACCOUNT AGREEMENTS" shall have the meaning set forth in the
Security Agreement.
"BORROWING BASE" shall mean the sum of (i) 85% of Eligible Domestic Billed
Accounts Receivable, (ii) 50% of Eligible Unbilled Accounts Receivable and (iii)
90% of Eligible Foreign Billed Accounts Receivable; provided, however, that the
maximum Borrowing Base value of Eligible Unbilled Accounts Receivable shall not
exceed $15,000,000.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday, or other
day on which commercial banks in Philadelphia are authorized or required to
close under the laws of the Commonwealth of Pennsylvania and, if the applicable
day relates to a LIBO Rate Loan, or notice with respect to a LIBO Rate Loan, a
day on which dealings in Dollar deposits are also carried on in the London
interbank market and banks are open for business in London ("London Business
Day").
"CAPITAL EXPENDITURES" shall mean expenditures for any fixed assets or
improvements, replacements, substitutions or additions thereto which have a
useful life of more than one year, including assets acquired pursuant to a
Capitalized Lease but not including any such expenditures that constitute
Investments made in accordance with Section 7.6, less 50% of Capital
Expenditures of Kaiser-Hill and K-H Funding.
"CAPITAL STOCK" shall mean any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person other than a corporation, and
any and all warrants or options to purchase any of the foregoing.
"CAPITALIZED LEASE" shall mean all lease obligations of any Person for any
property (whether real, personal or mixed) which have been or should be
capitalized on the books of the lessee in accordance with Generally Accepted
Accounting Principles.
"CHANGE OF CONTROL" means any of the following: (i) the sale, lease,
conveyance or other disposition of all or substantially all of Borrower's assets
as an entirety or substantially as
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an entirety to any Person or "group" (within the meaning of Section 13(d)(3) of
the Exchange Act) in one or a series of transactions, provided that a
transaction where the holders of all classes of voting Capital Stock of Borrower
immediately prior to such transaction own, directly or indirectly, more than 50%
of the aggregate voting power of all classes of voting Capital Stock of such
Person or group immediately after such transactions shall not be a Change of
Control; (ii) the acquisition by Borrower and any of its Subsidiaries of 50% or
more of all classes of voting Capital Stock of Borrower in one transaction or a
series of related transactions; (iii) the approval by Borrower of a plan of
liquidation of Borrower; (iv) any transaction or series of transactions (as a
result of a tender offer, merger, consolidation or otherwise) that results in,
or that is in connection with, (a) any Person, including a "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) that includes such Person,
acquiring "beneficial ownership" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of 50% or more of the aggregate voting power of
all classes of voting Capital Stock of Borrower or any Person that possesses
"beneficial ownership" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of 50% or more of the aggregate voting power of all
classes of voting Capital Stock of Borrower, or (b) less than 50% (measured by
the aggregate voting power of all classes) of Borrower's voting Capital Stock
being registered under Section 12(b) or 12(g) of the Exchange Act; or (v) a
majority of the Board of Directors of Borrower not being comprised of Continuing
Directors.
"CLOSING DATE" shall mean December 3, 1997.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and all rules and regulations with respect thereto in effect from time
to time.
"COLLATERAL" shall have the meaning set forth in the Security Agreement.
"COMMITMENT FEE" shall have the meaning set forth in Section 2.6(a).
"COMMITMENT PERCENTAGE" shall mean with respect to each Bank the percentage
set forth opposite its name on Exhibit A to this Agreement.
"CONSOLIDATED FIXED CHARGES" shall mean for any period, Consolidated
Interest Expense, Consolidated Lease Expense and dividends payable by Borrower
on its Capital Stock, determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles, for such period, less 50% of the
Consolidated Fixed Charges of Kaiser-Hill and K-H Funding.
"CONSOLIDATED INTEREST EXPENSE" shall mean for any period, interest expense
of Borrower and its Subsidiaries other than its Single Purpose Subsidiaries for
such period, determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles (net of interest income for such period).
"CONSOLIDATED LEASE EXPENSE" shall mean for any period, the aggregate
rental expenses of Borrower and its Subsidiaries other than its Single Purpose
Subsidiaries, determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles, payable in respect of such period under leases
(other than capitalized leases) for real and/or personal property (net of income
from subleases thereof).
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"CONSOLIDATED NET INCOME" shall mean for any period, the consolidated net
income (or deficit) of Borrower and its Subsidiaries other than its Single
Purpose Subsidiaries for such period (taken as a cumulative whole), determined
in accordance with Generally Accepted Accounting Principles, provided that there
shall be excluded therefrom (a) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary or is merged into or consolidated with
Borrower or any Subsidiary except mergers accounted for under the pooling of
interests method, (b) the income (or deficit) of any Person (other than a
Subsidiary) in which Borrower or any Subsidiary has an ownership interest,
except to the extent that Borrower or such Subsidiary has received, or has the
right to receive, such income, (c) the undistributed earnings of any Subsidiary
to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is not at the time permitted by the terms of
any contractual obligation or requirement of law applicable to such Subsidiary,
(d) any aggregate net gain (but not any aggregate net loss) during such period
arising from the sale, exchange or other disposition of capital assets (such
term to include all fixed assets, whether tangible or intangible, all inventory
sold in conjunction with the disposition of fixed assets and all securities),
(e) any write-up of any asset, (f) any net gain from the collection of the
proceeds of life insurance policies, (g) any gain arising from the acquisition
of any securities, or the extinguishment, under Generally Accepted Accounting
Principles, of any Indebtedness for Borrowed Money of Borrower or any
Subsidiary, (h) in the case of a successor to Borrower by consolidation or
merger or as a transferee of its assets, any earnings of the successor
corporation prior to such consolidation, merger or transfer of assets and (i)
any deferred credit representing the excess of equity in any Subsidiary at the
date of acquisition over the cost of the investment in such Subsidiary;
provided, however, that Consolidated Net Income shall include the consolidated
net income of Kaiser-Hill and K-H Funding to the extent included in the
consolidated net income of Borrower in accordance with Generally Accepted
Accounting Principles.
"CONSOLIDATED NET WORTH" shall mean the aggregate amount of the capital
stock accounts plus (or minus in the case of a deficit) the retained earnings of
Borrower and its Subsidiaries determined on a consolidated basis in accordance
with Generally Accepted Accounting Principles.
"CONTINUING DIRECTOR" of Borrower as of any date means a member of the
Board of Directors of Borrower who (i) was a member of the Board of Directors of
Borrower on the date hereof or (ii) was nominated for election or elected to the
Board of Directors of Borrower with the affirmative vote of at least a majority
of the directors who were Continuing Directors at the time of such nomination or
election.
"CREDIT RECLASSIFICATIONS" shall mean net credit balances on an individual
account basis which remain outstanding for greater than 90 days.
"DEBT" shall mean, as of any date of determination, with respect to
Borrower and its Subsidiaries, without duplication, (i) all items which in
accordance with Generally Accepted Accounting Principles would be included in
determining total liabilities as shown on the liability side of a consolidated
balance sheet of Borrower and its Subsidiaries as of the date on which Debt is
to be determined, (ii) all indebtedness secured by any Lien on any property or
asset owned or held by Borrower or any Subsidiary subject thereto, whether or
not the indebtedness
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secured thereby shall have been assumed, (iii) all indebtedness of others with
respect to which Borrower or any Subsidiary has become liable by way of a
guarantee (including, any obligation of the guaranteeing person, whether or not
contingent, (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (1) for the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (d) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect thereof, (iv)
all contingent liabilities of Borrower or any Subsidiary, including but not
limited to contingent liabilities in connection with outstanding letters of
credit, and (v) lease obligations that, in conformity with Generally Accepted
Accounting Principles, have been or should be capitalized on such entity's
balance sheet.
"DEFAULT RATE" shall mean 2% per annum above the interest rate otherwise
applicable on all Loans and Unpaid Drawings and 2% per annum above the rate of
all fees otherwise applicable to Letters of Credit.
"DEFERRED REVENUE" shall mean with respect to any Accounts due from any
Person to which Borrower has a liability to provide services as a result of
billings in excess of the value of work performed, the lesser of (a) such excess
and (b) the amount of such Accounts due from such Person.
"DISCOUNTED TREASURIES" shall have the meaning set forth in Section 2.5(d).
"DOCUMENTARY LETTER OF CREDIT" shall mean a letter of credit issued for the
account of Borrower in the ordinary course of business of Borrower to secure the
deferred purchase price of goods.
"DOLLARS" shall mean the lawful currency of the United States of America.
"DOMESTIC SUBSIDIARY" shall mean as to any Person, a Subsidiary of such
Person the jurisdiction of incorporation of which is, and the chief executive
office of which is located in, one of the States of the United States or the
District of Columbia.
"DRAWING" shall have the meaning set forth in Section 2.5(d).
"EBIT" shall mean, for any period, Consolidated Net Income plus the sum of
(a) Consolidated Interest Expense and (b) income tax expense to the extent such
items are taken into account in determining Consolidated Net Income.
"EBITDA" shall mean, for any period, Consolidated Net Income plus the sum
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of (a) Consolidated Interest Expense, (b) income tax expense, (c) depreciation
expense, (d) amortization expense, (e) extraordinary or unusual losses or other
losses not incurred in the ordinary course of business included in the
calculation of net income, (f) any non-cash charge against net income required
to be recognized in connection with the issuance of capital stock to
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employees (whether upon lapse of vesting restrictions, exercise of employee
options or otherwise) and (g) any non-cash charge against net income required to
be recognized in connection with employee benefit plans, less extraordinary or
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unusual gains or other gains not incurred in the ordinary course of business
included in the calculation of net income, in each case to the extent such items
are taken into account in determining Consolidated Net Income.
"ELIGIBLE DOMESTIC BILLED ACCOUNTS RECEIVABLE" shall mean, as of the time
of submission of a Borrowing Base Certificate pursuant to Section 6.1(f),
Accounts that represent a valid obligation from actual sale and delivery of
goods or rendition of services to or for the benefit of such account debtor
arising in the ordinary course of business invoiced by Borrower and the
Subsidiary Guarantors on or prior to the Receivables Record Date applicable to
such Borrowing Base Certificate and which have been outstanding less than 90
days from the date of such invoice, excluding (a) intercompany accounts, (b)
accounts as to which the account debtor of which is not incorporated or
otherwise organized under the laws of one of the States, territories or
possessions of the United States, the District of Columbia, or the Commonwealth
of Puerto Rico, (c) accounts as to which the account debtor of which is a debtor
in any bankruptcy, insolvency, or reorganization proceedings, (d) any non-trade
Accounts and (e) Accounts which the Agent or the Required Banks, exercising
reasonable discretion, have otherwise determined to be unacceptable to them,
provided, that Eligible Domestic Billed Accounts Receivable shall be reduced by
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the sum of (a) the amount at such date of reserves against such reductions in
accounts otherwise qualifying as Eligible Domestic Billed Accounts Receivable,
as from time to time Borrower shall determine in the ordinary course of its
business, (b) any retainages or variances, (c) Deferred Revenue, (d) Unapplied
Cash and (e) Credit Reclassification.
"ELIGIBLE FOREIGN BILLED ACCOUNTS RECEIVABLE" shall mean, as of the time of
submission of a Borrowing Base Certificate pursuant to Section 6.1(f), Accounts
that represent a valid obligation from actual sale and delivery of goods or
rendition of services to or for the benefit of an account debtor that is not
incorporated or otherwise organized under the laws of one of the States,
territories or possessions of the United States, the District of Columbia, or
the Commonwealth of Puerto Rico arising in the ordinary course of business
invoiced by Borrower or the Subsidiary Guarantors on or prior to the Receivables
Record Date applicable to such Borrowing Base Certificate and which have been
outstanding less than 90 days from the date of such invoice, where such obligor
is covered by a letter of credit or is a member of the OECD, or Borrower or the
Subsidiary Guarantor has obtained insurance in form and substance substantially
as attached hereto as Exhibit I or other guarantee similar to a letter of credit
satisfactory to the Agent, provided that Foreign Billed Accounts Receivable
shall be reduced by the sum of (a) the amount at such date of reserves against
such reductions in accounts otherwise qualifying as Foreign Billed Accounts
Receivable, as from time to time Borrower shall determine in the ordinary course
of its business, (b) any retainages or variances, (c) Deferred Revenue, (d)
Unapplied Cash and (e) Credit Reclassification.
"ELIGIBLE UNBILLED ACCOUNTS RECEIVABLE" shall mean, as of the time of
submission of a Borrowing Base Certificate pursuant to Section 6.1(f), Accounts
of Borrower or a Subsidiary Guarantor that represent a valid obligation from
actual sale and delivery of goods or rendition of services to or for the benefit
of the applicable account debtor completed within thirty days of the applicable
Receivables Record Date and arising in the ordinary course of business that are
not invoiced as of such Receivables Record Date but otherwise meeting the
criteria set forth in the
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definition of "Eligible Domestic Billed Accounts Receivable"or "Eligible Foreign
Billed Accounts Receivable" in all respects, and subject to reductions
comparable to reductions taken in account in such definition.
"ENVIRONMENTAL CONTROL STATUTES" shall mean each and every applicable
federal, state, county or municipal statute, ordinance, rule, regulation, order,
directive or requirement, together with all successor statutes, ordinances,
rules, regulations, orders, directives or requirements, of any Governmental
Authority, including without limitation laws in any way related to Hazardous
Substances.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
"ERISA AFFILIATE" shall mean any corporation which is a member of the same
controlled group of corporations as Borrower within the meaning of Section
414(b) of the Code, or any trade or business which is under common control with
Borrower within the meaning of Section 414(c) of the Code.
"EVENT OF DEFAULT" shall have the meaning set forth in Section 10.1.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that (i) if the day for which such rate is to be determined is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" shall mean generally accepted
accounting principles as in effect from time to time in the United States,
consistently applied.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"HAZARDOUS SUBSTANCE" shall mean (a) any substance designated pursuant to
section 311(b)(2)(A) of the Federal Water Pollution Control Act, (b) any
element, compound, mixture, solution or substance designated pursuant to section
102 of CERCLA, (c) any hazardous waste having the characteristics identified
under or listed pursuant to section 3001 of the Solid Waste Disposal Act (but
not including any waste the regulation of which under the Solid Waste Disposal
Act has been suspended by Act of Congress), (d) any toxic pollutant listed under
section 307(a) of the Federal Water Pollution Control Act, (e) any hazardous air
pollutant listed under section 112 of the Clean Air Act, and (f) any imminently
hazardous chemical substance or mixture with respect to which the Administrator
has taken action pursuant to section 7 of the Toxic Substances Control Act. The
term specifically includes petroleum, including crude oil or any faction
thereof, asbestos, asbestos containing materials and urea formaldehyde
insulation.
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The term does not include natural gas, natural gas liquids, liquefied natural
gas, or synthetic gas useable for fuel (or mixtures of natural gas and such
synthetic gas).
"HUNTERS BRANCH INVESTMENT" shall mean the direct or indirect Investment by
the Borrower or any Subsidiary in the buildings and associated land at 9300
and/or 9302 Lee Highway, Fairfax, Virginia.
"ICF KAISER BRAZIL HOLDINGS" shall mean ICF Kaiser Brazil Holdings, Inc., a
corporation organized under the laws of the State of Delaware which will have as
its sole purpose the ownership of ICF Kaiser Participacoes Ltda.
"ICF KAISER HUNTERS BRANCH" shall mean ICF Kaiser Hunters Branch Leasing,
Inc., a corporation (however denominated) organized under the laws of the State
of Delaware, created in order to own the Hunters Branch Investment either
directly or indirectly.
"ICF KAISER NETHERLANDS" shall mean ICF Kaiser Netherlands B.V., a
corporation organized under the laws of the country of Netherlands which is an
indirect wholly owned Subsidiary of Borrower and a Subsidiary Guarantor.
"ICF KAISER PARTICIPACOES LTDA." shall mean the entity (however
denominated) organized under the laws of Brazil which will own substantially all
of the capital stock of IESA following the IESA Investment.
"IESA" shall mean Internacional de Engenharia S.A., a corporation organized
under the laws of Brazil, together with its subsidiaries IESA-Technologia de
Sistemas Ltda., Servap Engenharia e Consultoria Ltda., IESA Negocios Ltda., IESA
Participacoes Ltda., and Project Engineering Ltd/Cayman Islands.
"IESA INVESTMENT" shall mean the Investment in and eventual ownership of
substantially all of the capital stock of IESA by ICF Kaiser Participacoes Ltda.
"INDEBTEDNESS FOR BORROWED MONEY" shall mean without duplication (i) all
indebtedness, liabilities, and obligations, now existing or hereafter arising
for money borrowed by Borrower and its Subsidiaries (other than indebtedness of
Borrower to any Subsidiary or of any Subsidiary to Borrower or any one or more
other Subsidiaries of Borrower), whether or not evidenced by any note,
indenture, or agreement (including, without limitation, the Notes and any
indebtedness for money borrowed from a Borrower Affiliate) (ii) Letter of Credit
Outstandings, and (iii) all indebtedness of others for money borrowed (including
a Borrower Affiliate) with respect to which Borrower or a Subsidiary has become
liable by way of a guarantee or indemnity.
"INDEMNITEES" shall have the meaning set forth in Section 12.8(b).
"INDENTURES" shall mean the Indenture dated as of December 23, 1996 between
Borrower and The Bank of New York and the Indenture dated as of January 11, 1994
between Borrower and The Bank of New York.
"INTERCOMPANY AGREEMENTS" shall have the meaning set forth in Section
3.13(b).
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"INTERCOMPANY DEBT" shall have the meaning set forth in Section 3.13.
"INTEREST PERIOD" shall mean with respect to any LIBO Rate Loan, each
period commencing on the date any such Loan is made, or, with respect to a Loan
being renewed, the last day of the next preceding Interest Period with respect
to a Loan, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day of the calendar month) in the
first, second, third or sixth calendar month thereafter as selected under the
procedures specified in Section 2.3, if the Banks are then offering LIBO Rate
Loans for such period; provided that each LIBO Rate Loan Interest Period which
would otherwise end on a day which is not a Business Day (or, for purposes of
Loans to be repaid in London, such day is not a London Business Day) shall end
on the next succeeding Business Day (or London Business Day, as appropriate)
unless such next succeeding Business Day (or London Business Day, as
appropriate) falls in the next succeeding calendar month, in which case the
Interest Period shall end on the next preceding Business Day (or London Business
Day, as appropriate).
"INVESTMENT" in any Person shall mean, without duplication:
(a) the acquisition (whether for cash, property, services or
securities or otherwise) of Capital Stock, bonds, notes, debentures,
partnership or other ownership interests or other securities of such
Person; and
(b) any deposit with, or advance, loan or other extension of credit
to, such Person or guarantee or assumption of, or other contingent
obligation with respect to, Indebtedness for Borrowed Money of such Person,
other than Indebtedness for Borrowed Money permitted by Section 7.2 or
guarantees permitted by Section 7.4;
provided, however, that the term "INVESTMENT" shall not include:
--------- -------
(i) extensions of trade credit and advances to customers and
suppliers and other contractual and trade relationships, requiring
repayment within reasonable commercial periods, to the extent made in the
ordinary course of business consistent with past practice and in accordance
with normal industry practice;
(ii) loans and advances to non-executive employees of Borrower
and its Subsidiaries requiring repayment within commercially reasonable
periods and made in the ordinary course of business consistent with past
practice, provided that the aggregate amount of loans and advances under
this clause (ii) shall not exceed $250,000 at any one time;
(iii) investments of Borrower in any Subsidiary existing prior
to the time of such investment (other than a Single Purpose Subsidiary) and
by any Subsidiary in Borrower or any other Subsidiary existing prior to the
time of such investment (other than a Single Purpose Subsidiary) of
Borrower;
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<PAGE>
(iv loans to officers of Borrower and its Subsidiaries in
connection with any relocation of residence, approved by a majority of the
independent members of the Board of Directors of Borrower, provided that
--------
the aggregate of amount of loans under this clause (iv) shall not exceed
$1,000,000 in any fiscal year; and
(v investments in the form, or out of the net proceeds of the
sale (other than to a Subsidiary or employee stock ownership plan of
Borrower) of, Capital Stock of Borrower.
"ISSUING BANK" shall have the meaning set forth in Section 2.5(a).
"KAISER-HILL" shall mean Kaiser-Hill Company, LLC, a limited liability
company indirectly owned equally by Borrower and CH2M Hill Companies, Ltd.
"K-H FUNDING" shall mean Kaiser-Hill Funding Company, L.L.C., a limited
liability company formed under the laws of the State of Delaware, owned in the
following percentages by Kaiser-Hill (98%), ICF Kaiser Government Programs, Inc.
(1%), and CH2M Hill Federal Group, Ltd. (1%), a wholly owned subsidiary of CH2M
Hill Companies, Ltd.
"L/C BANK" shall have the meaning set forth in Section 2.5(a).
"LETTER OF CREDIT" shall mean a Documentary Letter of Credit or a Standby
Letter of Credit issued hereunder, and shall include all existing Letters of
Credit described in Schedule 2.5(a) hereto which were issued by a Bank and
remain outstanding on the date of this Agreement.
"LETTER OF CREDIT OUTSTANDINGS" shall mean, at any time, the aggregate
Stated Amount of all outstanding Letters of Credit plus the aggregate amount of
Unpaid Drawings.
"LIBO RATE" shall mean, for the applicable Interest Period, (i) the rate,
rounded upwards to the next one-sixteenth of one percent, determined by the
Agent two London Business Days prior to the date of the corresponding LIBO Rate
Loan, at which the Agent is offered deposits in Dollars at approximately 11:00
A.M., London time, by leading banks in the interbank eurodollar market for
delivery on the date of such Loan in an amount and for a period comparable to
the amount and Interest Period of such Loan and in like funds, divided by (ii) a
number equal to one (1.0) minus the LIBO Rate Reserve Percentage. The LIBO Rate
shall be adjusted automatically with respect to any LIBO Rate Loan outstanding
on the effective date of any change in the LIBO Rate Reserve Percentage, as of
such effective date. LIBO Rate shall be calculated on the basis of the number
of days elapsed in a year of 360 days.
"LIBO RATE LOANS" shall mean Revolving Credit Loans accruing interest based
on the LIBO Rate.
"LIBO RATE RESERVE PERCENTAGE" shall mean, for any LIBO Rate Loan for any
Interest Period therefor, the daily average of the stated maximum rate
(expressed as a decimal) at which reserves (including any marginal,
supplemental, or emergency reserves) are required to be maintained during such
Interest Period under Regulation D by the Agent against "Eurocurrency
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liabilities" (as such terms is used in Regulation D) but without benefit of
credit proration, exemptions, or offsets that might otherwise be available to
the Agent from time to time under Regulation D. Without limiting the effect of
the foregoing, the LIBO Rate Reserve Percentage shall reflect any other reserves
required to be maintained by the Agent against (1) any category of liabilities
which includes deposits by reference to which the rate for LIBO Rate Loans is to
be determined; or (2) any category of extension of credit or other assets which
include LIBO Rate Loans.
"LIEN" shall mean any lien, mortgage, security interest, chattel mortgage,
pledge or other encumbrance (statutory or otherwise) of any kind securing
satisfaction of an obligation, including any agreement to give any of the
foregoing, any conditional sales or other title retention agreement, any lease
in the nature thereof, and the filing of or the agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction or similar
evidence of any encumbrance, whether within or outside the United States.
"LOAN" shall mean a Revolving Credit Loan.
"LOAN DOCUMENTS" shall mean this Agreement, the Notes, the Security
Agreement, the Blocked Account Agreements and each other agreement, document and
instrument referred to herein or therein.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as defined in ERISA
Section 4001(a)(3).
"NON-RECOURSE INDEBTEDNESS" shall mean Indebtedness for Borrowed Money of a
Single Purpose Subsidiary with respect to which (a) the sole legal recourse for
collection of principal, premium, if any, and interest on such Indebtedness is
against (i) the specific property identified in the instruments evidencing or
securing such Indebtedness and such property was acquired with the proceeds of
such Indebtedness or such Indebtedness was incurred within 90 days of the
acquisition of such property, and/or (ii) the Capital Stock of such Single
Purpose Subsidiary, provided that such Single Purpose Subsidiary has no assets
other than the specific property acquired with the proceeds of such Indebtedness
for Borrowed Money, capital contributed to such Subsidiary in compliance with
the terms of this Agreement, and such other assets as may be reasonably required
for the limited operations of such Subsidiary, and (b) neither Borrower nor any
Subsidiary of Borrower, other than the referent Single Purpose Subsidiary, is
directly or indirectly liable to make any payment thereon, has any guarantee
obligation in respect of such Indebtedness for Borrowed Money or such Single
Purpose Subsidiary or has pledged or granted any lien or encumbrances on any
assets as collateral or security with respect thereto, other than the capital
stock of the referent Single Purpose Subsidiary.
"NOTES" shall mean the Revolving Credit Notes.
"OBLIGATIONS" shall mean all now existing or hereafter arising debts,
obligations, covenants, and duties of payment or performance of every kind,
matured or unmatured, direct or contingent, owing, arising, due, or payable to
the Banks or the Agent by or from Borrower arising out of this Agreement or any
other Loan Document, including, without limitation, all
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obligations to repay principal of and interest on all the Revolving Credit
Loans, to make reimbursements or payments with respect to Letters of Credit, and
to pay interest, fees, costs, charges, expenses, professional fees, and all sums
chargeable to Borrower under the Loan Documents, whether or not evidenced by any
note or other instrument.
"OPERATING LEASE" shall mean an operating lease as defined by Generally
Accepted Accounting Principles, excluding all leases the expenses for which may
be charged to a customer of Borrower or a Subsidiary pursuant to the written
terms of the contract with such customer.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
successor thereto.
"PENSION PLAN" shall mean, at any time, any Plan (including a Multiemployer
Plan), the funding requirements of which (under ERISA Section 302 or Code
Section 412) are, or at any time within the six years immediately preceding the
time in question, were in whole or in part, the responsibility of Borrower or
any ERISA Affiliate.
"PERMITTED BUSINESSES" shall mean the businesses of providing consulting,
engineering or construction services to public and private sector clients in the
environment, energy, infrastructure and industry markets.
"PERMITTED LIENS" shall mean:
(a) any Liens for current taxes, assessments and other governmental
charges not yet due and payable or being contested in good faith by
Borrower or one or more of its Subsidiaries by appropriate proceedings and
for which adequate reserves have been established by Borrower or one or
more of its Subsidiaries as reflected in Borrower's or one or more of its
Subsidiaries' financial statements;
(b) any mechanic's, materialman's, carrier's, warehousemen's or
similar Liens for sums not yet due or being contested in good faith by
Borrower or one or more of its Subsidiaries by appropriate proceedings and
for which adequate reserves have been established by Borrower or one or
more of its Subsidiaries as reflected in Borrower's or one or more of its
Subsidiaries' financial statements;
(c) Liens in favor of the Banks under the Loan Documents;
(d) easements, rights-of-way, restrictions and other similar
encumbrances on the real property or fixtures of Borrower or one or more of
its Subsidiaries incurred in the ordinary course of business which
individually or in the aggregate are not substantial in amount and which do
not in any case materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of Borrower
or any of its Subsidiaries;
(e) Liens (other than Liens imposed on any property of Borrower or one
or more of its Subsidiaries or any ERISA Affiliate pursuant to ERISA or
section 412 of the Code) incurred or deposits made in the ordinary course
of
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business, including Liens in connection with workers' compensation,
unemployment insurance and other types of social security and Liens to
secure performance of tenders, statutory obligations, trade contracts
(other than for Indebtedness for Borrowed Money), surety and appeal bonds
(in the case of appeal bonds such Lien shall not secure any reimbursement
or indemnity obligation in an amount greater than $250,000), bids, leases
that are not capitalized leases, performance bonds, sales contracts and
other similar obligations, deposits securing liability to insurance
carriers under insurance or self-insurance arrangements, in each case, not
incurred in connection with the obtaining of credit or the payment of a
deferred purchase price, and which do not, in the aggregate, result in a
material adverse effect on the business, operations, assets or condition
(financial or otherwise) of Borrower or one or more of its Subsidiaries;
(f) Liens existing upon the date hereof as set forth in Schedule
1.1(b) hereto.
(g) Liens securing obligations incurred to finance the deferred
purchase price of property, provided that (i) such Liens shall be created
--------
within 120 days after the acquisition of such property, (ii) such Liens do
not at any time encumber any property other than the property financed by
such obligations, (iii) the amount of the obligation secured thereby is not
increased, and (iv) the principal amount of an obligation secured by any
such Lien shall at no time exceed the lesser of (A) 100% of the original
purchase price of such property and (B) the fair value (as determined in
good faith by the Board of Directors of Borrower) of such property at the
time it was acquired;
(h) Liens securing obligations assumed in connection with Investments
made in accordance with Section 7.6, provided that (i) such Liens exist at
--------
the time of the Investment and were not created in anticipation thereof,
(ii) any such Lien is not spread to cover any additional property or assets
after the time of such Investment, and (iii) the amount of the obligation
secured by any such Lien is not increased;
(i) Liens securing Non-Recourse Indebtedness; and
(j) Liens (not otherwise permitted hereunder) which secure obligations
not exceeding (as to Borrower and its Subsidiaries) $500,000 in aggregate
amount at any time outstanding, provided that such Liens are limited to
assets other than Accounts.
"PERSON" shall mean any individual, corporation, partnership, joint
venture, association, company, business trust or entity.
"PLAN" shall mean an employee benefit plan as defined in Section 3(3) of
ERISA, other than a Multiemployer Plan, whether formal or informal and whether
or not legally binding.
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"POTENTIAL DEFAULT" shall mean an event, condition or circumstance, that
with the giving of notice or lapse of time or both would become an Event of
Default.
"PROHIBITED TRANSACTION" shall mean a transaction that is prohibited under
Code Section 4975 or ERISA Section 406 and not exempt under Code Section 4975 or
ERISA Section 408.
"RECEIVABLES RECORD DATE" shall mean, as to any Borrowing Base Certificate
submitted pursuant to Section 6.1(f) hereof, the last calendar day of the
immediately preceding calendar month.
"REGULATION" shall mean any statute, law, ordinance, regulation, order or
rule of any United States or foreign, federal, state, local or other government
or governmental body, including, without limitation, those covering or related
to banking, financial transactions, securities, public utilities, environmental
control, energy, safety, health, transportation, bribery, record keeping,
zoning, antidiscrimination, antitrust, wages and hours, employee benefits, and
price and wage control matters.
"REGULATORY CHANGE" shall mean any change after the date of this Agreement
in United States, federal, state or foreign laws or regulations (including
Regulation D of the Board of Governors of the Federal Reserve System) or the
adoption or making after such date of any interpretations, directives or
requests of or under any United States federal, state, or foreign laws or
(whether or not having the force of law) by any court or governmental or
monetary authority charged with the interpretation or administration thereof
applying to a class of banks including any one of the Banks but excluding any
foreign office of any Bank.
"RELEASE OF HAZARDOUS SUBSTANCES" shall mean any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, or disposing into the environment of any Hazardous Substances
(including the abandonment or discarding of barrels, containers, and other
closed receptacles containing any Hazardous Substance), but excludes the normal
application of fertilizer or pesticides.
"REPORTABLE EVENT" shall mean, with respect to a Pension Plan: (a) Any of
the events set forth in ERISA Sections 4043(c) (other than a reportable event as
to which the provision of 30 days' notice to the PBGC is waived under the
applicable statute or regulations) or 4063(a) or the regulations thereunder, (b)
an event requiring Borrower or any ERISA Affiliate to provide security to a
Pension Plan under Code Section 401(a)(29) and (c) any failure by Borrower or
any ERISA Affiliate to make payments required by Code Section 412(m).
"REQUIRED BANKS" shall mean Banks whose outstanding Revolving Loan
Commitments equal or exceed 66_% of the total of such Revolving Loan
Commitments.
"REVOLVER TERMINATION DATE" shall have the meaning set forth in Section
2.1.
"REVOLVING LOAN COMMITMENT" shall have the meaning set forth in Section
2.1.
"REVOLVING CREDIT LOAN" or "LOAN" shall have the meaning set forth in
Section 2.1.
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"REVOLVING CREDIT NOTE" shall have the meaning set forth in Section 2.2.
"SECURITY AGREEMENT" shall mean the Amended and Restated Security
Agreement, dated as of the date hereof, among Borrower, the Subsidiary
Guarantors and the Agent in the form of Exhibit B hereto.
"SECURITY DOCUMENTS" shall mean the Security Agreement and all financing
statements, documents and instruments contemplated by such agreements to create,
perfect and maintain the lien of the Agent in and to the Collateral.
"SENIOR FUNDED INDEBTEDNESS" shall mean as of the date of determination,
the sum of (i) Indebtedness for Borrowed Money, excluding Subordinated Debt and
guarantees to the extent included in Indebtedness for Borrowed Money; (ii)
Capitalized Lease obligations; and (iii) obligations in connection with bankers'
acceptances, of Borrower and its Subsidiaries, determined on a consolidated
basis in accordance with Generally Accepted Accounting Principles.
"SINGLE PURPOSE SUBSIDIARY" shall mean as to any Person, a Subsidiary of
such Person the activities of which, including its Subsidiaries and partnerships
or other entities owned, or the management of which are otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by such
Single Purpose Subsidiary, are limited to (a) ownership of all or a portion of
the interests in a single project constituting one or more Permitted Businesses,
either directly or through the ownership of the Capital Stock of another Person,
and (b) the development, engineering, design, project management, construction
or operation of such project; ICF Kaiser Brazil Holdings, ICF Kaiser
Participacoes Ltda., and IESA shall be deemed to be Single Purpose Subsidiaries
for all purposes hereunder.
"SOLVENT" shall mean, with respect to any Person, that the aggregate
present fair saleable value of such Person's assets is in excess of the total
amount of its probable liabilities on its existing debts as they become absolute
and matured, such Person has not incurred debts beyond its foreseeable ability
to pay such debts as they mature, and such Person has capital adequate to
conduct the business it is presently engaged in or is about to engage in.
"STANDBY LETTER OF CREDIT" shall mean a letter of credit issued for the
account of Borrower, other than a Documentary Letter of Credit.
"STATED AMOUNT" of each Letter of Credit shall mean, at any time, the
maximum amount available to be drawn thereunder, determined without regard to
whether any conditions to drawing could then be met.
"SUBORDINATED DEBT" shall mean Borrower's Senior Subordinated Notes due
2003 and any other Indebtedness for Borrowed Money subordinated to payment of
the Obligations in a manner satisfactory to the Required Banks in their sole
discretion.
"SUBSIDIARY" shall mean as to any Person, (i) a corporation of which shares
of stock or other ownership interests having ordinary voting power (other than
stock having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such corporation
are at the time owned, or the management of which is otherwise
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controlled, directly or indirectly through one or more intermediaries, or both,
by such Person and (ii) any limited liability company in which such Person,
directly or indirectly, owns at least a majority of the ownership interests
having ordinary voting power, or the management of which is otherwise
controlled, directly or indirectly, through one or more intermediaries by such
Person, or both; provided, however, that in no event shall either Kaiser-Hill or
-------- -------
K-H Funding constitute a Subsidiary within the meaning of this definition;
unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
Borrower.
"TAXES" shall have the meaning set forth in Section 2.9(e)(1).
"TERMINATION EVENT" shall mean, with respect to a Pension Plan: (a) a
Reportable Event, (b) the termination of a Pension Plan, or the filing of a
notice of intent to terminate a Pension Plan, or the treatment of a Pension Plan
amendment as a termination under ERISA Section 4041(c), (c) the institution of
proceedings to terminate a Pension Plan under ERISA Section 4042(a) or (d) the
appointment of a trustee to administer any Pension Plan under ERISA Section
4042(b).
"TOTAL CAPITALIZATION" shall mean as of the date of determination, the sum
of (i) the Consolidated Net Worth of Borrower and its Subsidiaries at such date
and (ii) the outstanding principal amount of the Indebtedness for Borrowed Money
of Borrower and its Subsidiaries at such date.
"TRANSACTION" shall mean the establishment of the facility contemplated by
this Agreement.
"UNAPPLIED CASH" shall mean Accounts of Borrower which have been paid by
the relevant obligor but which payments have not yet been reflected on the
accounts receivables records of Borrower.
"UNFUNDED PENSION LIABILITIES" shall mean, with respect to any Pension Plan
at any time, the amount determined by taking the accumulated benefit obligation,
as disclosed in accordance with Statement of Accounting Standards No. 87, over
the fair market value of Pension Plan assets.
"UNPAID DRAWING" shall have the meaning set forth in Section 2.5(d).
"UNRECOGNIZED RETIREE WELFARE LIABILITY" shall mean, with respect to any
Plan that provides post-retirement benefits other than pension benefits, the
amount of the accumulated post-retirement benefit obligation, as determined in
accordance with Statement of Financial Accounting Standards No. 106, as of the
most recent valuation date. For purposes of determining the aggregate amount of
the Unrecognized Retiree Welfare Liability, Plans maintained by a Subsidiary
that is not otherwise a ERISA Affiliate shall be taken into account.
I.2 ACCOUNTING TERMS. All accounting terms used herein shall be construed
----------------
in accordance with Generally Accepted Accounting Principles consistent with
those applied in the preparation of the financial statements referred to in
Section
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3.5, and all financial data submitted pursuant to this Agreement shall be
prepared in accordance with such principles.
II. THE CREDIT.
-----------
II.1 THE LOANS
---------
(a) REVOLVING CREDIT LOANS.
(1 Subject to the terms and conditions hereof, each Bank
agrees, severally and not jointly with the other Banks, to make revolving credit
loans (collectively called the "REVOLVING CREDIT LOANS" and individually a
"REVOLVING CREDIT LOAN") to Borrower from time to time during the period
commencing the date hereof and ending three (3) years from the date hereof, or
on any earlier date as provided in Sections 2.7(b) and 10.1 hereof (the
"REVOLVER TERMINATION DATE"), in principal amounts not to exceed at any time
outstanding in the aggregate the amount set forth opposite the name of each such
Bank on Exhibit A hereto under the caption "Revolving Loan Commitment" (each
such amount being hereinafter called such Bank's "REVOLVING LOAN COMMITMENT" and
collectively, the Banks' "AGGREGATE REVOLVING LOAN COMMITMENT"). All Loans shall
be made by the Banks simultaneously and pro rata in accordance with the
--- ----
Revolving Loan Commitments. The failure of any one or more of the Banks to make
Revolving Credit Loans in accordance with its or their obligations shall not
relieve the other Banks of their several obligations under this subsection, but
in no event shall the aggregate amount at any one time outstanding which any
Bank shall be required to lend under this Section 2.1(a), when added to such
Bank's Commitment Percentage of Letter of Credit Outstandings at such time,
exceed the amount of such Bank's Revolving Loan Commitment at that time.
(2 Borrower may request Revolving Credit Loans to bear
interest at either the Base Rate or LIBO Rate options described in Section 2.4.
The Revolving Credit Loans outstanding at any one time may involve any
combination of such interest rate options in such amounts as Borrower may
determine, subject to the terms and conditions hereof, including the requirement
concerning minimum Loan requests and the requirements that (i) no request may be
made which would require more than one interest rate option or more than one
Interest Period to apply to a single Revolving Credit Loan, and (ii), in the
case of LIBO Rate Loans, (a) not more than five such Loans may be outstanding at
any one time, in the aggregate and (b) no LIBO Rate Loan may have an Interest
Period extending beyond the Revolver Termination Date.
(3 Notwithstanding the foregoing, Borrower shall not be
entitled to a Revolving Credit Loan if, after giving effect to such Revolving
Credit Loan, (A) the unpaid principal amount of the Revolving Credit Loans to
Borrower then outstanding plus the Letter of Credit Outstandings at such time
would exceed the least of (i) the Aggregate Revolving Loan Commitment, (ii) the
then current Borrowing Base or (iii) $60,000,000 until such time as the
Indentures each have been terminated or modified to permit a greater level of
indebtedness under this Agreement or (B) the unpaid principal amount of the
Revolving Credit Loans to Borrower then outstanding would exceed $25,000,000.
(4 Except for Revolving Credit Loans which exhaust the
full remaining amount permitted by clause (3) above, and conversions which
result in the conversion
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of all Revolving Credit Loans subject to a particular interest rate option, each
of which hereof may be in lesser amounts, each Loan when made and each
conversion of Loans of one type into Loans of another type hereunder shall be in
an amount at least equal to $1,000,000, or if greater, then in such minimum
amount plus $1,000,000 multiples.
(5 Within the limits of clause (3) above, the Aggregate
Revolving Loan Commitment and the Borrowing Base, Borrower may borrow, prepay
(in accordance with Section 2.8) and reborrow Revolving Credit Loans. All
Revolving Credit Loans shall, in any event, be repaid by Borrower on the
Revolver Termination Date.
(6 If any principal of a LIBO Rate Loan shall be repaid
(whether upon prepayment or acceleration) or converted to a Base Rate Loan
pursuant to Section 2.3 prior to the last day of the Interest Period applicable
to such LIBO Rate Loan or if Borrower fails for any reason to borrow a LIBO Rate
Loan after giving irrevocable notice pursuant to Section 2.3, Borrower shall pay
to each Bank, in addition to the principal and interest then to be paid, such
additional amounts as may be necessary to compensate each Bank for all direct
and indirect costs and losses (including losses resulting from redeployment of
prepaid or unborrowed funds at rates lower than the cost of such funds to such
Bank and including lost profits) incurred or sustained by such Bank (the
"ADDITIONAL AMOUNT") as a result of such repayment or failure to borrow. The
Additional Amount (which each Bank shall take reasonable measures to minimize)
shall be specified in a written notice or certificate delivered to Borrower by
the Agent in the form provided by each Bank sustaining such costs or losses.
Such notice or certificate shall contain a calculation in reasonable detail of
the Additional Amount to be compensated and shall be conclusive as to the facts
and the amounts stated therein, absent manifest error.
II.2 THE REVOLVING CREDIT NOTES. The Revolving Credit Loans made by each
--------------------------
Bank shall all be evidenced by a single promissory note of Borrower (each such
promissory note, as it may be amended, extended, modified or renewed, a
"REVOLVING CREDIT NOTE") in principal face amount equal to such Bank's Revolving
Loan Commitment, payable to the order of such Bank and otherwise in the form
attached hereto as Exhibit C. The Revolving Credit Notes shall be dated the
Closing Date, shall bear interest at the rate per annum and shall be payable as
to principal and interest in accordance with the terms hereof, and shall be
delivered in substitution for any Revolving Credit Note previously delivered to
such Bank. The Revolving Credit Notes shall mature upon the Revolver Termination
Date and, upon maturity each outstanding Revolving Credit Loan evidenced thereby
shall be due and payable. The Agent shall maintain records of all Loans
evidenced by the Revolving Credit Notes and of all payments thereon, which
records shall be conclusive absent manifest error.
II.3 FUNDING PROCEDURES.
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(a) Each request for a Revolving Credit Loan or the conversion or
renewal of an interest rate with respect to a Loan shall be made not later than
11:00 A.M. on a Business Day by delivery to the Agent of a written request
signed by Borrower, or in the alternative a telephone request followed promptly
by written confirmation of the request, specifying the date and amount of the
Loan to be made, converted or renewed, selecting the interest rate option
applicable thereto and specifying in the case of LIBO Rate Loans the Interest
Period. The form of request attached hereto as Exhibit D shall be used to
request the making, conversion or renewal of Revolving
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Credit Loans, unless otherwise agreed. Each request shall be received not less
than one Business Day prior to the date of the proposed borrowing, conversion or
renewal in the case of Base Rate Loans, and three London Business Days prior to
the date of the proposed borrowing, conversion or renewal in the case of LIBO
Rate Loans. No request shall be effective until actually received in writing by
the Agent.
(b) Upon receipt of a request for a Loan and if the conditions
precedent provided herein shall be satisfied at the time of such request, the
Agent promptly (and not later than 2:00 P.M. on the date of receipt of such
request) shall notify each Bank of such request and of such Bank's ratable share
of such Loan. Upon receipt by the Agent the request for a Loan shall not be
revocable by Borrower.
(c) Not later than 11:00 A.M. on the date of each Loan, each Bank
shall make available (except as provided in clause (d) below) its ratable share
of such Loan, in immediately available funds, to the Agent at the address set
forth opposite its name on the signature page hereof or at such office or
account in London as the Agent shall specify to Borrower and the Banks. Unless
an officer of the Agent active on Borrower's accounts knows that any applicable
condition specified herein has not been satisfied, the Agent will make the funds
so received from the Banks immediately available to Borrower on the date of each
Loan by a credit to the account of Borrower at the Agent's aforesaid address.
(d) If the Agent has notified the Banks as contemplated by Section
2.3(b) hereof, then unless the Agent shall have been notified by any Bank at
least one Business Day prior to the date of the making, conversion or renewal of
any LIBO Rate Loan, or by 3:00 P.M. on the date a Base Rate Loan is requested,
that such Bank does not intend to make available to the Agent such Bank's
portion of the total amount of the Loan to be made, converted or renewed on such
date, the Agent may assume that such Bank has made such amount available to the
Agent on the date of the Loan and the Agent may, in reliance upon such
assumption, make available to Borrower a corresponding amount. If and to the
extent such Bank shall not have so made such funds available to the Agent, such
Bank agrees to repay the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to Borrower until the date such amount is repaid to the Agent, at the
Federal Funds Rate plus 50 basis points for three Business Days, and thereafter
at the Base Rate. If such Bank shall repay to the Agent such corresponding
amount, such amounts so repaid shall constitute such Bank's Loan for purposes of
this Agreement. If such Bank does not repay such corresponding amount forthwith
upon the Agent's demand therefor, the Agent shall promptly notify Borrower, and
Borrower immediately shall pay such corresponding amount to the Agent, without
any prepayment penalty or premium, but with interest on the amount repaid, for
each day from the date such amount is made available to Borrower until the date
such amount is repaid to the Agent, at the rate of interest applicable at the
time to such Loan. Nothing herein shall be deemed to relieve any Bank of its
obligation to fulfill its Revolving Loan Commitment hereunder or to prejudice
any rights which Borrower may have against any Bank as a result of any default
by such Bank hereunder.
(e) If the Banks make, convert or renew a Loan on a day on which all
or any part of an outstanding Loan from the Banks is to be repaid, each Bank
shall apply the proceeds of its new Loan to make such repayment and only an
amount equal to the difference (if any)
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between the amount being borrowed and the amount being repaid shall be made
available by such Bank to the Agent as provided in clause (c).
II.4 INTEREST.
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(a) BASE RATE. Each Base Rate Loan shall bear interest on the
principal amount thereof from the date made until such Loan is paid in full or
converted, at a rate per annum equal to the Base Rate plus the Applicable Margin
determined from time to time.
(b) LIBO RATE. Each LIBO Rate Loan shall bear interest on the
principal amount thereof from the date made until such Loan is paid in full or
converted, at a fixed rate per annum equal to the LIBO Rate plus the Applicable
Margin determined from time to time.
(i After receipt of a request for a LIBO Rate Loan, the Agent
shall proceed to determine the LIBO Rate to be applicable thereto. The
Agent shall give prompt notice by telephone or facsimile to Borrower and to
each Bank of the LIBO Rate thus determined in respect of each LIBO Rate
Loan or any change therein.
(ii In the event Borrower fails or is not permitted to select
an Interest Period for any LIBO Rate Loan within the time period and
otherwise as provided herein, such Loan shall be automatically converted
into a Base Rate Loan on the last day of the Interest Period for such Loan.
(c) CONVERSIONS OF LOANS. Borrower shall have the right to convert
Base Rate Loans into LIBO Loans, and vice versa, from time to time, provided
that: (i) Borrower shall give the Agent notice of each permitted conversion as
provided in Section 2.3 hereof; (ii) LIBO Rate Loans may be converted only as of
the last day of the applicable Interest Period for such Loans; and (iii) without
the consent of each of the Banks, no Base Rate Loan may be converted into a LIBO
Rate Loan and no Interest Period may be renewed if on the proposed date of
conversion an Event of Default, or Potential Default, exists or would thereby
occur. The Agent shall use its best efforts to notify Borrower of the
effectiveness of such conversion, and the new interest rate to which the
converted Loan is subject, as soon as practicable after the conversion;
provided, however, that any failure to give such notice shall not affect
Borrower's obligations or the Banks' rights and remedies hereunder in any way
whatsoever.
(d) DEFAULT RATE.
(i If any Event of Default specified in Section 10.1(a) or
Section 10.1(d) shall occur; or
(ii If any other Event of Default occurs and the Notes are
declared to be immediately due and payable;
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THEN, the rate of interest applicable to each Loan then outstanding, all Unpaid
Drawings and the fees applicable to all Letters of Credit provided for in
Section 2.6(c) shall be the Default Rate. Unless waived by the Required Banks,
the Default Rate shall apply from the date of the Event of Default until the
date such Event of Default or breach is cured, and interest accruing at the
Default Rate shall be payable upon demand.
(e) APPLICABLE MARGINS. The margin applicable to Base Rate Loans and
the LIBO Rate Loans (in each such case, the "APPLICABLE MARGIN") will be
determined from time to time based on the ratio of Indebtedness for Borrowed
Money to EBITDA. Upon receipt by the Agent of the quarterly financial statements
required to be delivered pursuant to Section 6.1(b), the Agent shall determine
the ratio of Indebtedness for Borrowed Money to EBITDA for the quarterly period
covered by such statements. The Agent shall thereupon determine the Applicable
Margin corresponding to such ratio, in each case pursuant to the schedule
attached as Schedule 2.4(e) hereto. Any adjustment to the Applicable Margins
shall become effective five Business Days following receipt by the Agent of the
financial statements required pursuant to Section 6.1(b) hereof or, if Borrower
fails to provide financial statements within the time period required by Section
6.1(b) hereof, and such financial statements cause the Applicable Margins to
increase, such adjustment of the Applicable Margins shall become effective
retroactive to the date five Business Days following the date the financial
statements were required under Section 6.1(b) to be furnished. Any adjustment in
such Applicable Margins shall affect the Applicable Margin of Base Rate Loans
then in effect or thereafter made, and shall apply to the Applicable Margin of
LIBO Rate Loans thereafter made.
II.5 LETTERS OF CREDIT.
------------------
(a) GENERAL REQUIREMENTS.
(1 Subject to and upon the terms and conditions herein set
forth, Borrower may request CoreStates Bank, N.A. ("L/C BANK") or, upon the
written consent of L/C Bank and the requested Bank, any other Bank at any time
and from time to time prior to the Revolver Termination Date, to issue, and
subject to the terms and conditions contained herein such Bank (the "ISSUING
BANK") shall issue, for the account of Borrower, one or more Letters of Credit
in such form as is approved by the Issuing Bank in its sole discretion. The
Borrower agrees not to request the issuance of any Letter of Credit for use by,
in connection with, or for IESA, ICF Kaiser Participacoes Ltda., and/or ICF
Kaiser Brazil Holdings unless the Borrower has obtained the prior written
consent of the Agent for the issuance of such Letter of Credit.
(2 Notwithstanding the foregoing, no Letter of Credit
shall be issued the Stated Amount of which, when added to the Letter of Credit
Outstandings and outstanding principal amount of Revolving Credit Loans at such
time, would exceed the least of (i) the Aggregate Revolving Loan Commitment (ii)
the Borrowing Base or (iii)$60,000,000 until such time as the Indentures each
have been terminated or modified to permit a greater level of indebtedness under
this Agreement.
(3 (i No Letter of Credit shall bear an expiry date later
than the Revolver Termination Date, and (ii) the aggregate Stated Amount of all
Letters of Credit containing any term or provision that extends the expiry date
or otherwise renews such Letter of
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Credit without explicit action being taken by the Issuing Bank outstanding at
any time shall not exceed $3,000,000.
(b) LETTER OF CREDIT REQUESTS.
(1 Whenever Borrower desires that a Letter of Credit be issued
for its account, Borrower shall give the Issuing Bank (with copies to be sent to
the Agent and each other Bank) at least five Business Days' prior written
request therefor (or such shorter period of notice as the Issuing Bank may agree
upon with Borrower from time to time).
(2 The execution and delivery of each request for a Letter of
Credit shall be deemed to be a representation and warranty by Borrower that such
Letter of Credit may be issued in accordance with, and will not violate the
requirements of, this Section 2.5. Unless the Issuing Bank has received notice
from the Agent or the Required Banks before it issues the respective Letter of
Credit that one or more of the conditions specified in Section 5.1 are not then
satisfied, or that the issuance of such Letter of Credit would violate this
Section 2.5, then the Issuing Bank may issue the requested Letter of Credit for
the account of Borrower in accordance with the terms of this Agreement and, with
respect to any matters not specifically covered by this Agreement, in accordance
with the Issuing Bank's usual and customary practices.
(c) LETTER OF CREDIT PARTICIPATIONS.
(1 Immediately upon the issuance by the Issuing Bank of any
Letter of Credit (or in the case of the existing Letters of Credit, upon the
effective date of this Agreement), the Issuing Bank shall be deemed to have sold
and transferred to each Bank (other than the Issuing Bank), and each such Bank
shall be deemed irrevocably and unconditionally to have purchased and received
from the Issuing Bank, without recourse or warranty, an undivided interest and
participation, to the extent of such Bank's Commitment Percentage, in such
Letter of Credit, each substitute letter of credit, each drawing made thereunder
and the obligations of Borrower under this Agreement with respect thereto, and
any security therefor or guaranty pertaining thereto. Upon any change in the
Revolving Loan Commitments of the Banks, it is hereby agreed that, with respect
to all outstanding Letters of Credit and Unpaid Drawings, there shall be an
automatic adjustment to the participations pursuant to this Section 2.5(c) to
reflect the new Commitment Percentages of the assigning and assignee Banks.
(2 In determining whether to pay under any Letter of Credit,
the Issuing Bank shall have no obligation relative to the Banks other than to
confirm that any documents required to be delivered under such Letter of Credit
appear to have been delivered and that they appear to comply on their face with
the requirements of such Letter of Credit. Any action taken or omitted to be
taken by the Issuing Bank under or in connection with any Letter of Credit if
taken or omitted in the absence of gross negligence or wilful misconduct, shall
not create for the Issuing Bank any resulting liability to any Bank.
(3 In the event that the Issuing Bank makes any payment under
any Letter of Credit and Borrower shall not have reimbursed such amount in full
in cash to the Issuing Bank pursuant to and as required by Section 2.5(d), the
Issuing Bank shall promptly notify the Agent, which shall promptly notify each
Bank of such failure, and each Bank shall
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promptly and unconditionally pay to the Agent for the account of the Issuing
Bank, the amount of such Bank's Commitment Percentage of such unreimbursed
payment in same day funds. Such payment shall be made to the Agent at the
address set forth opposite its name on the signature page hereof or at such
office or account in London as the Agent shall specify to the Banks. If the
Agent so notifies, prior to 11:00 A.M. on any Business Day, any Bank required to
fund a payment under a Letter of Credit, such Bank shall make its required
payment on the same Business Day. If and to the extent such Bank shall not have
so made its Commitment Percentage of the amount of such payment available to the
Agent for the account of the Issuing Bank, such Bank agrees to pay to the Agent
for the account of the Issuing Bank, forthwith on demand, such amount, together
with interest thereon, for each day from such date until the date such amount is
paid to the Agent for the account of the Issuing Bank at the Federal Funds Rate
plus 50 basis points. The failure of any Bank to make available to the Agent for
the account of the Issuing Bank its Commitment Percentage of any payment under
any Letter of Credit shall not relieve any other Bank of its obligation
hereunder to make available to the Agent for the account of the Issuing Bank its
Commitment Percentage of any payment under any Letter of Credit on the date
required, as specified above; but no Bank shall be responsible for the failure
of any other Bank to make available to the Agent for the account of the Issuing
Bank such other Bank's Commitment Percentage of any such payment.
(4 Whenever the Issuing Bank receives a payment of a reimbursement
obligation as to which the Agent has received for the account of the Issuing
Bank any payments from the Banks pursuant to clause (3) above, the Issuing Bank
shall pay to the Agent and the Agent shall promptly pay to each Bank which has
paid its Commitment Percentage thereof, in same day funds, an amount equal to
such Bank's Commitment Percentage thereof.
(5 Upon the request of any Bank, the Issuing Bank shall furnish to
such Bank copies of any Letter of Credit to which the Issuing Bank is party and
such other documentation relating to such Letter of Credit as may reasonably be
requested by such Bank.
(6 As between Borrower on the one hand and the Issuing Bank and the
Banks on the other hand, Borrower assumes all risks of the acts and omissions
of, or misuse of the Letters of Credit by the respective beneficiaries of such
Letters of Credit. Without limiting the generality of the foregoing, neither
the Issuing Bank nor any other Bank shall be responsible (except in the case of
its gross negligence or willful misconduct) for the following:
(i the form, validity, sufficiency, accuracy, genuineness
or legal effect of any documents submitted by any party in connection with
the application for and issuance of or any drawing under such Letters of
Credit, even if it should in fact prove to be in any respects invalid,
insufficient, inaccurate, fraudulent or forged;
(ii the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign any such Letter of Credit
or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason;
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(iii failure of the beneficiary of any such Letter of
Credit to comply fully with conditions required in order to draw upon
such Letter of Credit, other than material conditions or instructions
that expressly appear in such Letter of Credit;
(iv errors, omissions, interruptions or delays in the
transmission or delivery of any messages by mail, cable, telegraph,
telecopier, telex or otherwise, whether or not they are encoded;
(v errors in interpretation of technical terms;
(vi any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under any such Letter
of Credit or the proceeds thereof;
(vii the misapplication by the beneficiary of any such
Letter of Credit of the proceeds of any drawing of any such Letter of
Credit; and
(viii any consequences arising from causes beyond the
control of the Issuing Bank, including without limitation any acts of
governments.
(7 The obligations of the Banks to make payments to the Agent
for the account of the Issuing Bank with respect to Letters of Credit issued in
conformity with this Agreement shall be irrevocable and not subject to any
qualification or exception whatsoever (except that no Bank shall be obligated to
reimburse any Issuing Bank for wrongful payments made as a result of acts or
omissions constituting wilful misconduct or gross negligence by such Issuing
Bank) and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including, without limitation, any of the
following circumstances:
(i any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(ii the existence of any claim, setoff, defense or other
right which Borrower may have at any time against a beneficiary named
in a Letter of Credit, any transferee of any Letter of Credit (or any
Person for whom any such transferee may be acting), the Agent, the
Issuing Bank, any Bank, or any other Person, whether in connection
with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions;
(iii any draft, certificate or any other document presented
under the Letter of Credit shall prove to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein shall
prove to be untrue or inaccurate in any respect;
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(iv the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents;
(v the occurrence of any Potential Default or Event of
Default; or
(vi the termination of this Agreement or any Revolving
Loan Commitment (but only with respect to Letters of Credit issued
prior to such termination).
(d) AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS, COLLATERAL, ETC.
(1 Borrower agrees to reimburse the Issuing Bank, in
immediately available funds, for any payment made by the Issuing Bank under any
Letter of Credit issued for the benefit of Borrower (each such amount so paid
until reimbursed, an "UNPAID DRAWING") immediately after, and in any event on
the date of, such payment, with interest on the amount so paid by the Issuing
Bank, to the extent not reimbursed prior to 11:00 A.M. (Philadelphia time) on
the date of such payment such interest shall accrue, from and including the date
paid to but excluding the date reimbursement is made as provided above, at a
rate per annum equal to the Base Rate plus 200 basis points, such interest to be
payable promptly following demand.
(2 The obligations of Borrower under this Section 2.5(d) to
reimburse the Issuing Bank with respect to Unpaid Drawings (including, in each
case, interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which Borrower may have or have had against any Bank (including in its capacity
as the Issuing Bank or as a participant in any Letter of Credit), including,
without limitation, any defense based upon any non-application or misapplication
by the beneficiary of the proceeds of any drawing under a Letter of Credit
(each, a "DRAWING"); provided, however, that Borrower shall not be obligated to
reimburse the Issuing Bank for any wrongful payment made by the Issuing Bank
under a Letter of Credit as a result of acts or omissions constituting wilful
misconduct or gross negligence on the part of the Issuing Bank.
(3 On the Revolver Termination Date, Borrower shall deliver to
the Agent cash or U.S. Treasury Bills with maturities of not more than ninety
(90) days from the date of delivery (discounted in accordance with customary
banking practice to present value to determine amount) ("DISCOUNTED TREASURIES")
in an amount equal at all times to one hundred and five percent (105%) of the
Letter of Credit Outstandings, such cash or Discounted Treasuries and all
interest earned thereon to constitute cash collateral for Borrower's
reimbursement obligation with respect to all Letters of Credit outstanding on
the Revolver Termination Date. If such cash collateral or Discounted Treasuries
have not been deposited within five (5) days after the date required, one or
more of the Banks shall be entitled to charge any account maintained by Borrower
or any wholly owned Subsidiary with such Bank or Banks to the extent necessary
to create such cash collateral for the benefit of all Banks. Any cash collateral
deposited under this paragraph, and all interest earned thereon, shall be held
by the Agent and invested and reinvested at the expense and the written
direction of Borrower, in U.S. Treasury Bills with maturities of no
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more than ninety (90) days from the date of investment. Upon expiration of such
Letters of Credit or reimbursement by Borrower of Unpaid Drawings thereunder and
if no Event of Default or Potential Default then exists, any such collateral
shall be released to Borrower.
(e) TRADE COLLATERAL. Borrower hereby grants to the Bank issuing a
Documentary Letter of Credit an absolute security interest in and unqualified
right to possession and disposal of all property shipped under or in connection
with each Documentary Letter of Credit issued, created or entered into by such
Bank, and in and to all shipping documents, documents of title, or drafts drawn
under a Documentary Letter of Credit, together with the proceeds of each and all
of the foregoing, as and to the extent required by the applicable application
for each Documentary Letter of Credit when issued, until such time as all the
obligations and liabilities of Borrower to such Bank under or with reference to
such Documentary Letter of Credit, and all other Obligations, now or hereafter
incurred, have been fully paid and discharged. Borrower will execute and
deliver to each Bank from time to time all such other agreements, instruments
and other documents (including without limitation all requested financing and
continuation statements) and do all such further acts and things as a Bank may
reasonably request in order to further evidence or carry out the intent of this
Section or to perfect the lien and security interest created hereby or intended
so to be.
II.6 FEES.
----
(a) COMMITMENT FEE. Borrower shall pay to the Agent on behalf of
each Bank as compensation for such Bank's Revolving Loan Commitment a fee (the
"COMMITMENT FEE"), pro rata based upon each Bank's Commitment Percentage,
computed at the rate of 5/8 of 1% per annum on the average daily amount of the
unused portion of the Aggregate Revolving Loan Commitment accrued from and after
the date hereof. The unused portion of the Aggregate Revolving Loan Commitment
shall mean the Aggregate Revolving Loan Commitment less the sum of the aggregate
unpaid principal of outstanding Revolving Credit Loans plus the Letter of Credit
Outstandings. The Commitment Fee shall be payable in arrears on the first
Business Day of each January, April, July and October, commencing July 1, 1996
(for the three month period or portion thereof ended on the preceding day), and
on the Revolver Termination Date. Payment shall be made to the Agent on behalf
of the Banks and the Agent shall promptly forward to each Bank the pro rata
amount due such Bank. The Commitment Fee shall be calculated on the basis of a
360-day year for the actual number of days elapsed.
(b) LETTER OF CREDIT FEES. The fee applicable to Letters of Credit
shall be computed at the applicable LIBO Rate Applicable Margin per annum as
provided in Schedule 2.4(e) hereto on the average daily amount of Letter of
Credit Outstandings accrued from and after the date hereof. Such fee shall be
due and payable by the Borrower to the Banks (on the basis of each Bank's
Commitment Percentage) quarterly in arrears on and through the first Business
Day of each January, April, July and October, commencing July 1, 1996 (for the
three-month period or portion thereof ended on the preceding day) and on the
Revolver Termination Date.
(c) FRONTING FEE. Borrower agrees to pay to the Issuing Bank, for
its own account, (A) a fee (the "FRONTING FEE") equal to one-eighth of one
percent (1/8%) per annum of the aggregate face amount of the outstanding Letters
of Credit which shall be computed and paid
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on a quarterly basis, in arrears, on the first Business Day of each calendar
quarter, beginning in the first calendar quarter after the date hereof, in each
case for the actual number of days elapsed over a 360 day year, and (B)
customary issuance, amendment, extension, cancellation and administration fees
and charges for each Letter of Credit, due and payable upon demand of the
Issuing Bank.
(d) CLOSING FEE. Borrower shall pay to the Agent the fees set forth
in the term sheet dated October 15, 1997 executed by Borrower.
II.7 REDUCTION OR TERMINATION OF AGGREGATE REVOLVING LOAN COMMITMENT.
---------------------------------------------------------------
(a) NOTICE OF VOLUNTARY REDUCTION OR TERMINATION. Borrower may at any
time, on not less than three Business Days' written notice by Borrower to the
Agent, terminate or permanently reduce the Aggregate Revolving Loan Commitment
pro rata among the Banks, provided that any reduction shall be in the amount of
$3,000,000 or a multiple thereof.
(b) MANDATORY TERMINATION. In the event the Aggregate Revolving Loan
Commitment is terminated by Borrower, the Revolver Termination Date shall
accelerate and Borrower shall, simultaneously with such termination, repay the
Base Rate Loans and LIBO Rate Loans in accordance with Section 2.8, and shall
deliver to the Agent cash or Discounted Treasuries relating to Letter of Credit
Outstandings in accordance with Section 2.5(d)(3).
(c) MANDATORY REDUCTION. Except to the extent (i) proceeds arise from
a sale that is permitted by Section 7.7(i) through (iv) hereof, or (ii)
otherwise agreed by the Required Banks, the Aggregate Revolving Loan Commitment
shall be reduced from time to time by the full amount of net cash proceeds of
assets sold by Borrower or any Subsidiary on or after the date hereof, if and to
the extent the aggregate amount of all such sales after the date hereof exceed
15% of the lesser of (i) total assets of Borrower and its Subsidiaries on a
consolidated basis or (ii) EBITDA for the immediately preceding four fiscal
quarters, determined as of the end of the fiscal quarter immediately preceding
such sale.
II.8 PREPAYMENTS.
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(a) MANDATORY PREPAYMENTS. If at any time (a) the aggregate
outstanding Revolving Credit Loans plus Letter of Credit Outstandings exceed the
lesser of (y) the then Aggregate Revolving Loan Commitment or (z) the then
current Borrowing Base or (b) the unpaid principal amount of the Revolving
Credit Loans to Borrower then outstanding exceed $25,000,000, Borrower shall
make a prepayment of principal in respect of the Base Rate Loans in such amount
as is necessary to assure that the aggregate principal amount of Loans
outstanding immediately after such reduction plus Letter of Credit Outstandings
will not exceed the lesser of the then Aggregate Revolving Loan Commitment and
the then current Borrowing Base. If prepayment in full of the Base Rate Loans
does not reduce the amount of all Loans outstanding plus Letter of Credit
Outstandings to an amount that will not exceed the lesser of the then Aggregate
Revolving Loan Commitment and the then current
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Borrowing Base, Borrower shall deposit with the Agent cash and Discounted
Treasuries in an amount sufficient to repay that portion of the principal amount
of LIBO Rate Loans outstanding, with interest thereon through the end of each
applicable Interest Period, as is necessary to assure that the aggregate
principal amount of Loans outstanding immediately after such reduction of the
Base Rate Loans less the principal amount of LIBO Loans repaid by such
collateral plus Letter of Credit Outstandings will not exceed the lesser of the
then Aggregate Revolving Loan Commitment and the then current Borrowing Base,
such collateral to be held by the Agent on behalf of the Banks until each such
maturity date and then applied to the repayment of such Loans. If, upon
prepayment in full of the Base Rate Loans and deposit of cash and Discounted
Treasuries in an amount sufficient to repay the principal amount of the LIBO
Rate Loans, the Letter of Credit Outstandings exceed the lesser of the then
Aggregate Revolving Loan Commitment and the then current Borrowing Base,
Borrower shall deposit with the Agent cash and Discounted Treasuries in an
amount equal to one hundred five percent (105%) of the amount by which Letters
of Credit Outstandings exceed the lesser of the then Aggregate Revolving Loan
Commitment and the then current Borrowing Base, such collateral to be held by
the Agent on behalf of the Banks to reimburse the Issuing Bank for the amount of
any Unpaid Drawings. Upon reduction of Letter of Credit Outstandings to an
amount equal to the lesser of the then Aggregate Revolving Loan Commitment and
the then current Borrowing Base and if no Event of Default or Potential Default
then exists, any such collateral held for reimbursement of Unpaid Drawings of
Letters of Credit shall be released to Borrower. If Borrower sells or otherwise
disposes of assets requiring a reduction in the Aggregate Revolving Loan
Commitment pursuant to Section 2.7(c) hereof, Borrower shall use the proceeds of
each such sale or disposition to prepay the Revolving Credit Loans, unless the
Required Banks consent in writing to the waiver of this provision, such waiver
being required for each sale or disposition.
(b) BASE RATE LOANS. In addition, on one Business Day's notice by
Borrower to the Agent and the Banks, Borrower may, at its option, prepay the
Base Rate Loans in whole at any time or in part from time to time, provided that
each partial prepayment shall be in the principal amount of multiples of
$1,000,000.
(c) LIBO RATE LOANS. On three Business Days' notice by Borrower to
the Agent and the Banks, Borrower may prepay any LIBO Rate Loan provided that if
Borrower shall prepay a LIBO Rate Loan prior to the last day of the applicable
Interest Period, or shall fail to borrow any LIBO Rate Loan on the date such
Loan is to be made, Borrower shall pay to each Bank, in addition to the
principal and interest then to be paid in the case of a prepayment, the
Additional Amount incurred or sustained by such Bank as a result of such
prepayment or failure to borrow as provided in Section 2.1(a)(6).
II.9 PAYMENTS.
(a) LIBO LOANS. Accrued interest on LIBO Loans with Interest Periods
of one, two or three months shall be due and payable on the last day of such
Interest Period. Accrued interest on LIBO Loans with Interest Periods of six
months shall be due and payable at the end of the third month and on the last
day of such Interest Period.
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(b) BASE RATE LOANS. Accrued interest on all Base Rate Loans shall
be due and payable on the first Business Day of each calendar month and upon the
Revolver Termination Date.
(c) LETTER OF CREDIT FEES. Accrued Letter of Credit fees on all
Letters of Credit shall be due and payable on the first Business Day of each
calendar quarter and upon the Revolver Termination Date.
(d) FORM OF PAYMENTS, APPLICATION OF PAYMENTS, PAYMENT
ADMINISTRATION, ETC. Provided that no Event of Default or Potential Default
thenexists and except as provided in Section 2.8(a) hereof, all payments and
prepayments shall be applied to the Loans in such order and to such extent as
shall be specified by Borrower, by written notice to the Agent at the time of
such payment or prepayment. If no such written notice is received by the Agent
or if an Event of Default or Potential Default then exists, the payment or
prepayment shall be applied to the Loans in such order and to such extent as the
Agent shall determine in accordance with Section 12.7. Except as otherwise
provided herein, all payments of principal, interest, fees, or other amounts
payable by Borrower hereunder shall be remitted to the Agent on behalf of the
Banks at the address set forth opposite its name on the signature page hereof or
at such office or account in London as the Agent shall specify to Borrower and
the Banks, in immediately available funds not later than 2:00 P.M. on the day
when due. The Agent will promptly distribute to each Bank by wire transfer in
immediately available funds each Bank's pro rata share of such payment based
upon such Bank's Commitment Percentage. Whenever any payment is stated as due on
a day which is not a Business Day, the maturity of such payment shall, except as
otherwise provided in the definition of "Interest Period" in Section 1.1, be
extended to the next succeeding Business Day and interest and fees shall
continue to accrue during such extension. Borrower authorizes the Agent to
deduct from any account of Borrower or any wholly owned Subsidiary maintained at
the Agent or over which the Agent has control any amount payable under this
Agreement, the Notes or any other Loan Document which is not paid in a timely
manner. The Agent's failure to deliver any bill, statement or invoice with
respect to amounts due under this Section or under any Loan Document shall not
affect Borrower's obligation to pay any installment of principal, interest or
any other amount under this Agreement when due and payable.
(e) NET PAYMENTS.
(1) All payments made to the Banks and the Agent by Borrower
hereunder, under any Note or under any other Loan Document will be made without
setoff, counterclaim or other defense. All such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction or any political subdivision or
taxing authority thereof or therein (but excluding, except as provided below,
any tax imposed on or measured by the gross or net income of a Bank (including
all interest, penalties or similar liabilities related thereto) pursuant to the
laws of the United States of America or any political subdivision thereof, or
taxing authority of the United States of America or any political subdivision
thereof, in which the principal office or applicable lending office of such Bank
is located), and all interest, penalties or similar liabilities with respect
thereto
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(collectively, together with any amounts payable pursuant to the next sentence,
"TAXES"). Borrower shall also reimburse each Bank, upon the written request of
such Bank, for Taxes imposed on or measured by the gross or net income of such
Bank pursuant to the laws of the United States of America (or any State or
political subdivision thereof), or the jurisdiction (or any political
subdivision or taxing authority thereof) in which the principal office or
applicable lending office of such Bank is located as such Bank shall determine
are payable by such Bank due to the amount of Taxes paid to or on behalf of such
Bank pursuant to this or the preceding sentence. If any Taxes are so levied or
imposed, Borrower agrees to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every payment of all amounts due
hereunder, under any Note or under any other Loan Document, after withholding or
deduction for or on account of any Taxes, will not be less than the amount
provided for herein or in such Note. Borrower will furnish to the Agent upon
request certified copies of tax receipts evidencing such payment by Borrower.
Borrower will indemnify and hold harmless the Agent and each Bank, and reimburse
the Agent or such Bank upon its written request, for the amount of any Taxes so
levied or imposed and paid or withheld by such Bank.
(2) Notwithstanding the preceding paragraph (1), Borrower shall
be entitled, to the extent required to do so by law, to deduct or withhold Taxes
imposed by the United States of America (or any political subdivision or taxing
authority thereof) from interest, fees or other amounts payable hereunder for
the account of any Person other than a Bank (x) that is a domestic corporation
(as such term is defined in Section 7701 of the Code) for federal income tax
purposes (but excluding any foreign office of any Bank) or (y) that has
necessary forms on file with Borrower for the applicable year to the extent
deduction or withholding of such Taxes is not required as a result of the filing
of such forms, provided that if Borrower shall so deduct or withhold any such
Taxes, it shall provide a statement to the Agent and such Bank, setting forth
the amount of such Taxes so deducted or withheld, the applicable rate and any
other information or documentation which such Bank may reasonably request for
assisting such Bank to obtain any allowable credits or deductions for the taxes
so deducted or withheld in the jurisdiction or jurisdictions in which such Bank
is subject to tax.
II.10 CHANGES IN CIRCUMSTANCES; YIELD PROTECTION.
------------------------------------------
(a) If any Regulatory Change or compliance by the Banks with any
request made after the date of this Agreement by the Board of Governors of the
Federal Reserve System or by any Federal Reserve Bank or other central bank or
fiscal, monetary or similar authority (in each case whether or not having the
force of law) shall:
(i) impose, modify or make applicable any reserve, special
deposit, Federal Deposit Insurance Corporation premium or similar
requirement or imposition against assets held by, or deposits in or
for the account of, or loans made by, or any other acquisition of
funds for loans or advances by, the Banks;
(ii) impose on the Banks any other condition regarding the Notes
or the Letters of Credit;
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(iii) subject the Banks to, or cause the withdrawal or
termination of any previously granted exemption with respect to, any
tax (including any withholding tax but not including any income tax
not currently causing the Banks to be subject to withholding) or any
other levy, impost, duty, charge, fee or deduction on or from any
payments due from Borrower; or
(iv) change the basis of taxation of payments from Borrower to
the Banks (other than by reason of a change in the method of taxation
of a Bank's net income);
and the result of any of the foregoing events is to increase the cost to a Bank
of making or maintaining any Loan or Letter of Credit or to reduce the amount of
principal, interest or fees to be received by the Bank hereunder in respect of
any Loan or Letter of Credit, the Agent will immediately so notify Borrower. If
a Bank determines in good faith that the effects of the change resulting in such
increased cost or reduced amount cannot reasonably be avoided or the cost
thereof mitigated, then upon notice by the Agent to Borrower, Borrower shall pay
to such Bank on each interest payment date of the Loan or, as to those increased
costs or reduced amounts relating to Letters of Credit within thirty days of
such notice, such additional amount as shall be necessary to compensate the Bank
for such increased cost or reduced amount.
(b) If any Bank shall determine that any Regulation regarding capital
adequacy or the adoption of any Regulation regarding capital adequacy, which
Regulation is applicable to banks (or their holding companies) generally and not
such Bank (or its holding company) specifically, or any change therein, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Bank (or its holding company) with
any such request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency, has
the effect of reducing the rate of return on such Bank's capital as a
consequence of its obligations hereunder to a level below that which such Bank
could have achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, Borrower shall promptly pay to the
Agent for the account of such Bank, upon the demand of such Bank, such
additional amount or amounts as will compensate such Bank for such reduction.
(c) If the Agent shall determine (which determination will be made
after consultation with any Bank requesting same and shall be, in the absence of
fraud or manifest error, conclusive and binding upon all parties hereto) that by
reason of abnormal circumstances affecting the interbank eurodollar or
applicable eurocurrency market adequate and reasonable means do not exist for
ascertaining the LIBO Rate to be applicable to the requested LIBO Rate Loan or
that eurodollar or eurocurrency funds in amounts sufficient to fund all the LIBO
Rate Loans are not obtainable on reasonable terms, the Agent shall give notice
of such inability or determination by telephone to Borrower and to each Bank at
least two Business Days prior to the date of the proposed Loan and thereupon the
obligations of the Banks to make, convert other Loans to, or renew such LIBO
Rate Loan shall be excused, subject, however, to the right of Borrower at any
time thereafter to submit another request.
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<PAGE>
(d) Determination by a Bank for purposes of this Section 2.10 of the
effect of any Regulatory Change or other change or circumstance referred to
above on its costs of making or maintaining Loans or Letters of Credit or on
amounts receivable by it in respect of the Loans or Letters of Credit, and of
the additional amounts required to compensate such Bank in respect of any
additional costs, shall be made in good faith and shall be evidenced by a
certificate, signed by an officer of such Bank and delivered to Borrower, as to
the fact and amount of the increased cost incurred by or the reduced amount
accruing to the Bank owing to such event or events. Such certificate shall be
prepared in reasonable detail and shall be conclusive as to the facts and
amounts stated therein, absent manifest error.
(e) The affected Bank will notify Borrower of any event occurring
after the date of this Agreement that will entitle the Bank to compensation
pursuant to this Section as promptly as practicable after it obtains knowledge
thereof and determines to request such compensation. Said notice shall be in
writing, shall specify the applicable Section or Sections of this Agreement to
which it relates and shall set forth the amount of amounts then payable pursuant
to this Section 2.10. Borrower shall pay such Bank the amount shown as due on
such notice within 10 days after its receipt of the same.
II.11 ILLEGALITY. Notwithstanding any other provision in this Agreement,
----------
if the adoption of any applicable Regulations, or any change therein, or any
change in the interpretation or administration thereof by any governmental
authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by the Banks with any request or directive
(whether or not having the force of law) of any such authority, central bank, or
comparable agency shall make it unlawful or impossible for the Banks to (1)
maintain their Revolving Loan Commitments, then upon notice to Borrower by the
Agent, the Revolving Loan Commitments shall terminate; or (2) maintain or fund
their LIBO Rate Loans, then upon notice to Borrower of such event, Borrower's
outstanding LIBO Rate Loans shall be converted into Base Rate Loans.
III. REPRESENTATIONS AND WARRANTIES
------------------------------
Borrower represents and warrants to the Banks as to itself and each
Subsidiary or Subsidiary Guarantor, as the case may be, that:
III.1 ORGANIZATION, STANDING. Borrower and each Subsidiary Guarantor (i)
----------------------
is a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, (ii) has the corporate power and
authority necessary to own its assets, carry on its business and enter into and
perform its obligations hereunder, under each Loan Document to which it is a
party and (iii) is qualified to do business and is in good standing in each
jurisdiction where the nature of its business or the ownership of its properties
requires such qualification except where the failure to be so qualified would
not have a material adverse effect on the business, operations, assets or
condition (financial or otherwise) of Borrower and its Subsidiaries taken as a
whole.
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III.2 CORPORATE AUTHORITY, VALIDITY ETC. The making and performance of
---------------------------------
the ETC. Loan Documents to which it is a party are within the power and
authority of Borrower and each Subsidiary Guarantor and have been duly
authorized by all necessary corporate action. The making and performance of the
Loan Documents do not and under present law will not require any consent or
approval of any of Borrower's or any Subsidiary Guarantor's shareholders or any
other person, do not and under present law will not violate any law, rule,
regulation order, writ, judgment, injunction, decree, determination or award, do
not violate any provision of its charter or by-laws, do not and will not result
in any breach of any material agreement, lease or instrument to which it is a
party, by which it is bound or to which any of its assets are or may be subject,
and do not and will not give rise to any Lien, other than Liens in favor of the
Banks under the Loan Documents, upon any of its assets. The number of shares and
classes of the capital stock of Borrower and each Subsidiary Guarantor and the
ownership thereof are accurately set forth on Schedule 3.12 attached hereto; all
such shares are validly issued, fully paid and non-assessable, and the issuance
and sale thereof are in compliance with all applicable federal and state
securities and other applicable laws; and the shareholders' ownership thereof is
free and clear of any liens or encumbrances or other contractual restrictions.
Further, neither Borrower nor any Subsidiary Guarantor is in default under any
material agreement, lease or instrument except to the extent such default
reasonably could not have a material adverse effect on the business, operations,
assets or condition (financial or otherwise) of Borrower and its Subsidiaries
taken as a whole and except to the extent such default reasonably could not have
a material adverse effect on Borrower's ability to perform its obligations under
the Loan Documents. No authorizations, approvals or consents of, and no filings
or registrations with, any governmental or regulatory authority or agency are
necessary for the execution, delivery or performance by Borrower or any
Subsidiary Guarantor of any Loan Document to which Borrower is a party or for
the validity or enforceability thereof. Each Loan Document, when executed and
delivered, will be the legal, valid and binding obligation of Borrower and each
Subsidiary Guarantor, enforceable against it in accordance with its terms except
to the extent that such enforcement may be limited by applicable bankruptcy,
insolvency, and other similar laws affecting creditors' rights generally.
III.3 LITIGATION. Except as disclosed on Schedule 3.3, there are no
----------
actions, suits or proceedings pending or, to Borrower's knowledge, threatened
against or affecting Borrower or any Subsidiary or any assets of Borrower or any
Subsidiary before any court, government agency, or other tribunal which if
adversely determined reasonably could have a material adverse effect on the
financial condition, operations or assets of Borrower and its Subsidiaries taken
as a whole or upon the ability of Borrower or any Subsidiary Guarantor to
perform under the Loan Documents. The status (including the tribunal, the nature
of the claim and the amount in controversy) of each such litigation matter as of
the date of this Agreement is set forth in Schedule 3.3.
III.4 ERISA. Borrower and each Subsidiary and ERISA Affiliate is in
-----
compliance in all material respects with all applicable provisions of ERISA and
the regulations promulgated thereunder; and, (a) neither Borrower, any
Subsidiary, nor any ERISA Affiliate maintains or contributes to or has
maintained or contributed to any multi employer plan (as defined in section 4001
of ERISA) under which Borrower, any Subsidiary or any ERISA Affiliate could have
any withdrawal liability; (b) neither Borrower, any Subsidiary, nor any ERISA
Affiliate, sponsors or maintains any Plan under which there is an accumulated
funding
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deficiency within the meaning of (S)412 of the Code, whether or not waived; (c)
the aggregate liability for accrued benefits and other ancillary benefits under
each Plan that is or will be sponsored or maintained by Borrower, any Subsidiary
or any ERISA Affiliate (determined on the basis of actuarial assumptions
utilized by the actuary for the plan in preparing the most recent Annual Report)
does not exceed the aggregate fair market value of the assets under each such
defined benefit pension Plan; (d) the aggregate liability of Borrower and each
Subsidiary and each ERISA Affiliate arising out of or relating to a failure of
any Plan to comply with the provisions of ERISA or the Code, will not have a
material adverse effect on Borrower or any Subsidiary; and (e) there does not
exist any unfunded liability (determined on the basis of actuarial assumptions
utilized by the actuary for the plan in preparing the most recent Annual Report)
of Borrower, any Subsidiary or ERISA Affiliate under any plan, program or
arrangement providing post-retirement life or health benefits.
III.5 FINANCIAL STATEMENTS. The consolidated financial statements of
--------------------
Borrower and its Subsidiaries as of and for the year ended December 31, 1996
consisting in each case of a balance sheet, a statement of operations, a
statement of shareholders' equity, a statement of cash flows and accompanying
footnotes, present fairly, in all material respects, the financial position,
results of operations and cash flows of Borrower and its Subsidiaries as of the
dates and for the periods referred to, in conformity with Generally Accepted
Accounting Principles. Except as set forth on Schedule 3.5, there are no
liabilities, fixed or contingent, which are not reflected in such financial
statements, other than liabilities which are not required to be reflected in
such balance sheets. There has been no material adverse change in the business,
operations or assets or condition (financial or otherwise) of Borrower or any of
the Subsidiary Guarantors since December 31, 1996.
III.6 NOT IN DEFAULT; JUDGMENTS, ETC. No Event of Default or Potential
------------------------------
Default under any Loan Document has occurred and is continuing. Borrower and its
Subsidiaries have satisfied all judgments and neither Borrower nor any
Subsidiary is in default with respect to any judgment, writ, injunction, decree,
rule, or regulation of any court, arbitrator, or federal, state, municipal, or
other governmental authority, commission, board bureau, agency, or
instrumentality, domestic or foreign.
III.7 TAXES. Borrower and each Subsidiary has filed all federal, state,
-----
local and foreign tax returns and reports which it is required by law to file
and has paid all taxes, including wage taxes, assessments, withholdings and
other governmental charges which are presently due and payable (other than those
being contested in good faith by appropriate proceedings and disclosed on
Schedule 3.7). The tax charges, accruals and reserves on the books of Borrower
and each Subsidiary are adequate to pay all such taxes that have accrued but are
not presently due and payable. Borrower and each Subsidiary Guarantor is a
member of an affiliated group of corporations filing consolidated returns for
United States federal income tax purposes, and Borrower is the "common parent"
of such group.
III.8 PERMITS, LICENSES, ETC. Borrower and each Subsidiary possesses all
----------------------
permits, licenses, franchises, trademarks, trade names, copyrights and patents
necessary to the conduct of its business as presently conducted or as presently
proposed to be conducted, except where the failure to possess the same would not
have a material effect on the financial condition, operations or assets of
Borrower and its Subsidiaries taken as a whole.
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<PAGE>
III.9 COMPLIANCE WITH LAWSIII.9 COMPLIANCE WITH LAWS.
-----------------------------------------------
(a) Borrower and each Subsidiary is in compliance in all material
respects with all Regulations applicable to its business (including obtaining
all authorizations, consents, approvals, orders, licenses, exemptions from, and
making all filings or registrations or qualifications with, any court or
governmental department, public body or authority, commission, board, bureau,
agency, or instrumentality), the noncompliance with which reasonably could have
a material adverse effect on the business, operations, assets or condition
(financial or otherwise) of Borrower and its Subsidiaries taken as a whole.
(b) Hazardous Wastes, Substances and Petroleum Products.
---------------------------------------------------
(1) Borrower and each Subsidiary: (i) has received all permits
and filed all material notifications necessary to carry on their respective
business(es); and (ii) is in compliance in all respects with all Environmental
Control Statutes.
(2) Neither Borrower nor any Subsidiary has given any written or
oral notice, nor has it failed to give required notice, to the Environmental
Protection Agency ("EPA") or any state or local agency with regard to any actual
or imminently threatened Release of Hazardous Substances on properties owned,
leased or operated by Borrower or any Subsidiary or used in connection with the
conduct of its business and operations.
(3) Neither Borrower nor any Subsidiary has received notice that
it is potentially responsible for costs of clean-up or remediation of any actual
or imminently threatened Release of Hazardous Substances pursuant to any
Environmental Control Statute.
(4) No real property owned or leased by Borrower or any
Subsidiary is in material violation of any Environmental Control Statutes, no
Hazardous Substances are present on said real property and neither Borrower nor
any Subsidiary has been identified in any litigation, administrative proceedings
or investigation as a potentially responsible party for any liability under any
Environmental Control Statutes.
III.10 SOLVENCY. Borrower and each Subsidiary Guarantor, on a consolidated
--------
basis, are, and after giving effect to the transactions contemplated hereby,
will be, Solvent.
III.11 NO BURDENSOME AGREEMENTS. Neither Borrower nor any Subsidiary is a
------------------------
party to or bound by any agreement or instrument or subject to any corporate or
other restriction, the performance or observance of which now has or, as far as
Borrower or any Subsidiary can reasonably foresee, may have a materially adverse
effect on the financial condition, operations or assets of Borrower or of
Borrower and its Subsidiaries taken as a whole.
III.12 SUBSIDIARIES, INVESTMENTS, ETC. Set forth in Schedule 3.12 hereto
------------------------------
is a complete and correct list, as of the date of this Agreement, of all
Subsidiaries (and the respective jurisdiction of incorporation of each such
Subsidiary), and of all
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Investments held by Borrower in any joint venture or other Person. Except as
disclosed in Schedule 3.12 hereto, as of the date hereof, Borrower owns,
directly or through a Subsidiary, free and clear of Liens, the percentage and
nature of ownership interests of each Subsidiary as set forth in Schedule 3.12
and all such interests are validly issued, fully paid and non-assessable, and
Borrower (or the respective Subsidiary) also owns, free and clear of Liens, all
such Investments. Schedule 3.12 also sets forth as to each Subsidiary the
percentage and nature of ownership interests, and names of the record and
beneficial owners of all such issued and outstanding interests. Except as set
forth on Schedule 3.12, all of the issued and outstanding Capital Stock of each
Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable and held free and clear of all Liens whatsoever, and there are no
outstanding subscriptions, options, warrants, calls, conversion or exchange
rights, commitments or agreements of any character obligating any Subsidiary to
issue, deliver or sell additional Capital Stock of any class or any securities
convertible into or exchangeable for any such Capital Stock.
III.13 AMOUNTS OWED TO OR FROM AFFILIATES; INTERCOMPANY AGREEMENTS.
-----------------------------------------------------------
(a) AFFILIATES. Except as disclosed on Schedule 3.13 as of the date
of this Agreement, there is not outstanding and unpaid any debt, loan, advance,
guaranty or investment (i) by Borrower or any Subsidiary to or for the benefit
of any Subsidiary or Borrower Affiliate or (ii) to Borrower or any Subsidiary
from any Subsidiary or Borrower Affiliate (collectively, "INTERCOMPANY DEBT"),
and there has not been paid (1) by Borrower to or for the benefit of any
Borrower Affiliate or (2) to Borrower or any Subsidiary from any Subsidiary or
Borrower Affiliate, any amount for management, administrative, operational,
consulting, brokerage or other services. Neither Borrower nor any Subsidiary has
prepaid to or for the benefit of any Subsidiary or Borrower Affiliate any
Intercompany Debt or amount for management, administrative, operational,
consulting, brokerage or other services.
(b) INTERCOMPANY AGREEMENTS. Except as disclosed on Schedule 3.13
hereto as of the date of this Agreement, there are no agreements between
Borrower or any Subsidiary and any Subsidiary or Borrower Affiliate relating to
the extension of any funds to Borrower, the sharing of any costs among Borrower
and any Subsidiary or Borrower Affiliate or the provision of any management,
administrative, operational, consulting, brokerage or other services to Borrower
("INTERCOMPANY AGREEMENTS").
III.14 SUBSIDIARIES. The Subsidiaries of Borrower listed on Schedule 3.12,
------------
as supplemented from time to time, constitute all of the Subsidiaries of
Borrower. Borrower and the Subsidiary Guarantors collectively own (directly and
not through other Subsidiaries) at least 90% of the assets of Borrower and its
consolidated Domestic Subsidiaries on a consolidated basis. Borrower and the
Domestic Subsidiaries collectively own (directly and not through other
Subsidiaries) at least 75% of the assets of Borrower and its consolidated
Subsidiaries on a consolidated basis.
III.15 MAINTENANCE OF INSURANCE. Borrower maintains insurance with
------------------------
financially sound and reputable insurance companies or associations in such
amounts and covering such risks as are usually carried by companies engaged in
the same
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<PAGE>
or a similar business and similarly situated, which insurance may provide for
reasonable deductibility from coverage thereof.
III.16 U.S. GOVERNMENT CONTRACTS. Neither the Borrower nor any Subsidiary
-------------------------
is in receipt of any notice from any governmental authority that Borrower is
disqualified, barred or suspended from bidding on or performing any contract or
proposed contract.
III.17 MARGIN STOCK. Borrower has not and will not use or permit any
------------
proceeds of the Loans to be used, either directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of buying or carrying margin
stock within the meaning of Regulation U of the Board of Governors of the
Federal Reserve Systems, as amended from time to time.
III.18 PROPERTIES. Borrower has good title to, or in the case of leased
----------
property has valid leasehold interests in, all of its material properties and
assets (whether real or personal, tangible or intangible).
III.19 CHANGE. No material adverse change shall have occurred in the
------
business, operations, property, financial condition or prospects of the Borrower
since December 31, 1996.
III.20 DISCLOSURE GENERALLY. The representations and statements made by or
--------------------
on behalf of Borrower or any Subsidiary in connection with this credit facility
and each Loan hereunder, including representations and statements in each of the
Loan Documents, do not contain any untrue statement of a material fact or omit
to state a material fact or any fact necessary to make the representations made
not materially misleading. No written information, exhibit, report or financial
statement furnished by Borrower or any Subsidiary to the Banks in connection
with this Agreement, the Loans, or any Loan Document, contains any material
misstatement of fact or omits to state a material fact or any fact necessary to
make the statements contained therein not materially misleading.
IV. SECURITY.
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IV.1 SECURITY DOCUMENTS. As security for the punctual payment in full of
------------------
all Obligations, the Agent on behalf of the Banks shall have and shall continue
to have a valid first lien on and security interest in all the Collateral (as
defined in the Security Agreement) of Borrower and each Subsidiary Guarantor,
excluding ICF Kaiser Netherlands, to the extent provided in the Security
Agreement. In addition, Borrower and the Subsidiary Guarantors or any of them,
excluding ICF Kaiser Netherlands, will obtain for the Banks a valid first lien
on and security interest in those assets of the nature of the Collateral of each
Person, a majority of the voting stock of which is held by Borrower or a
Subsidiary Guarantor to the extent provided in the Security Agreement, upon the
acquisition by any of them of a majority of the voting stock of any Person
through the purchase of capital stock or otherwise. The Borrower agrees to use
commercially reasonable efforts to obtain such a valid first lien on and
security interest in the Collateral of ICF Kaiser Netherlands. Upon the granting
of such lien, such assets shall become Collateral for all purposes of this
Agreement and the Security Agreement.
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V. CONDITIONS PRECEDENT.
--------------------
V.1 ALL LOANS AND LETTERS OF CREDIT..1 ALL LOANS AND LETTERS OF CREDIT.
The obligation of each Bank to make any Loan or issue any Letter of Credit, is
conditioned upon the following:
(a) DOCUMENTS. In the case of a Loan, Borrower shall have delivered
and the Agent shall have received a request for a Loan, as provided in Sections
2.1 and 2.3. In the case of a Letter of Credit the Issuing Bank shall have
received an appropriate request therefor.
(b) COVENANTS; REPRESENTATIONS. Each Person that is a party thereto
other than the Banks and the Agent shall be in compliance with all covenants,
agreements and conditions in each Loan Document and each representation and
warranty contained in each Loan Document shall be true with the same effect as
if such representation or warranty had been made on the date such Loan or Letter
of Credit is made or issued.
(c) DEFAULTS. Immediately prior to and after giving effect to such
transaction, no Event of Default or Potential Default shall exist.
(d) CHANGE. No material adverse change shall have occurred in the
financial condition or prospects of Borrower or Borrower and its Subsidiaries
taken as a whole since the date hereof.
(e) LOCK-BOX ACCOUNTS. The Agent and Borrower shall have entered
into one or more lock-box agreements, in form and substance satisfactory to the
Agent and the Banks, pursuant to Section 3 of the Security Agreement. The Agent
and the Banks shall have received evidence, in form and substance satisfactory
to them, that Borrower and each Subsidiary Guarantor shall have instructed all
of its account debtors to make all payments in respect of the Accounts to the
relevant Lock-Box Account (as defined in the Security Agreement).
(f) FEES AND REIMBURSABLE EXPENSES. The Agent shall have received
the fees and reimbursable expenses to be received on the date hereof referred to
in Sections 2.6(d) and 12.8(a) hereof.
(g) ACTIONS TO PERFECT LIENS. The Agent shall have received evidence
in form and substance reasonably satisfactory to it that all filings,
recordings, registrations and other actions, including, without limitation, the
filing of duly executed financing statements on form UCC-1, necessary or, in the
opinion of the Agent, desirable to perfect the Liens created by the Security
Documents shall have been completed.
(h) AMENDED AND RESTATED SECURITY AGREEMENT. The Borrower, the
Subsidiary Guarantors and the Agent shall have entered into the Security
Agreement.
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V.2 CONDITIONS TO EFFECTIVENESS. This Agreement shall not be effective
until each of the following conditions has been satisfied:
(a) ARTICLES, BYLAWS. The Banks shall have received copies of the
Articles or Certificates of Incorporation and Bylaws of Borrower and each of the
Subsidiary Guarantors, certified by such party's Secretary or Assistant
Secretary (or the certificate of such officer that the copies of such documents
previously delivered to the Banks are still true and complete); together with
Certificates of Good Standing from any jurisdiction where the nature of the
business of Borrower and each of the Subsidiary Guarantor or the ownership of
their respective properties requires such qualification except where the failure
to be so qualified would not have a material adverse effect on the business,
operations, assets or condition (financial or otherwise) of Borrower or Borrower
and its Subsidiaries taken as a whole;
(b) EVIDENCE OF AUTHORIZATION. The Banks shall have received copies
certified by the Secretary or Assistant Secretary of Borrower and each
Subsidiary Guarantor of all corporate or other action taken by such party to
authorize its execution and delivery and performance of the Loan Documents and
to authorize the Revolving Credit Loans and Letters of Credit hereunder,
together with such other related papers as the Banks shall reasonably require;
(c) LEGAL OPINIONS. The Banks shall have received a favorable
written opinion of Crowell & Moring LLP, Counsel for Borrower and the Subsidiary
Guarantors, which shall be addressed to the Banks and be dated the date of the
first Loan, in substantially the form attached as Exhibit E, and such other
legal opinion or opinions as the Banks may reasonably request;
(d) INCUMBENCY. The Banks shall have received a certificate signed
by the Secretary or Assistant Secretary of Borrower and each Subsidiary
Guarantor, together with the true signature of the officer or officers
authorized to execute and deliver the Loan Documents and certificates
thereunder, upon which the Banks shall be entitled to rely conclusively until
the Agent shall have received a further certificate of the appropriate Secretary
or Assistant Secretary amending the prior certificate and submitting the
signature of the officer or officers named in the new certificate as being
authorized to execute and deliver Loan Documents and certificates thereunder;
(e) NOTES. Each Bank shall have received an executed Note payable to
the order of such Bank and otherwise in the form of Exhibit C hereto.
(f) DOCUMENTS. The Agent shall have received all certificates,
instruments and other documents then required to be delivered pursuant to any
Loan Documents, in each instance in form and substance reasonably satisfactory
to the Agent and the Banks;
(g) CONSENTS. Borrower shall have provided to the Banks evidence
satisfactory to the Banks that all governmental, shareholder and third party
consents and approvals necessary in connection with the transactions
contemplated hereby have been obtained and remain in effect;
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<PAGE>
(h) OTHER AGREEMENTS. Borrower and each Subsidiary Guarantor shall
have executed and delivered each other Loan Document required hereunder;
(i) CHANGE. No material adverse change shall have occurred in the
financial condition or prospects of Borrower since December 31, 1996; and
(j) DUE DILIGENCE REVIEW. Each Bank shall be fully satisfied in its
sole discretion with the results of its review of, and its other due diligence
investigations with respect to, the business, management, finances, operations,
affairs, prospects, assets, existing and potential liabilities, obligations,
profits or condition of Borrower, and its environmental review of all real
property used in Borrower's business.
VI. AFFIRMATIVE COVENANTS
---------------------
Borrower covenants and agrees that, without the prior written consent of
the Required Banks, from and after the date hereof and so long as the Revolving
Loan Commitments are in effect or any Obligations remain unpaid or outstanding,
Borrower will:
VI.1 FINANCIAL STATEMENTS AND REPORTS. Furnish to the Agent and each of the
--------------------------------
Banks the following financial information:
(a) ANNUAL STATEMENTS. As soon as available but no later than one
hundred and five (105) days after the end of each fiscal year, a balance sheet
of Borrower and its Subsidiaries as of the end of such year and the prior year
in comparative form, and related statements of operations, shareholders' equity,
and cash flows for Borrower and its Subsidiaries for the fiscal year and the
prior fiscal year in comparative form. The financial statements shall be on a
consolidated basis and shall include consolidating information. The financial
statements shall be in reasonable detail with appropriate notes and be prepared
in accordance with Generally Accepted Accounting Principles. The annual
financial statements (other than the consolidating information) shall be
certified (without any qualification or exception) by independent public
accountants of nationally recognized standing acceptable to the Banks and such
consolidating information shall be certified by the Executive Vice President and
Chief Financial Officer of Borrower. Such financial statements shall be
accompanied by a report of such independent certified public accountants, and
such consolidating information shall be accompanied by a report of such
Executive Vice President and Chief Financial Officer, in each case stating that,
in the opinion of such accountants or officer, respectively, such financial
statements or consolidating information present fairly, in all material
respects, the financial position, and the results of operations and the cash
flows of Borrower and its Subsidiaries for the period then ended in conformity
with Generally Accepted Accounting Principles, except for inconsistencies
resulting from changes in accounting principles and methods agreed to by such
accountants or officer and specified in such report, and that, in the case of
such financial statements, the examination by such accountants of such financial
statements has been made in accordance with generally accepted auditing
standards and accordingly included examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements and assessing
the accounting principles used and significant estimates made, as well as
evaluating the overall financial statement presentation. Each financial
statement provided under this subsection
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(a) (other than the consolidating financial statements) shall be accompanied by
a certificate signed by such accountants either stating that during the course
of their examination nothing came to their attention which would cause them to
believe that any event has occurred and is continuing which constitutes an Event
of Default or Potential Default, or describing each such event. In addition to
the annual financial statements, Borrower shall, promptly upon receipt thereof,
furnish to the Banks a copy of each other report submitted to the board of
directors of Borrower by its independent accountants in connection with any
annual, interim or special audit made by them of the financial records of
Borrower and its Subsidiaries.
(b) QUARTERLY STATEMENTS. As soon as available but no later than
sixty (60) calendar days after the end of each fiscal quarter of each fiscal
year, a consolidated balance sheet of Borrower and its Subsidiaries and related
consolidated statements of operations, retained earnings and cash flows for such
quarterly period and for the period from the beginning of such fiscal year to
the end of such fiscal quarter, together with consolidating information,
excluding Kaiser-Hill, and a corresponding financial statement for the same
periods in the preceding fiscal year certified by the Executive Vice President
and Chief Financial Officer or the Vice President and Treasurer of Borrower as
having been prepared in with Generally Accepted Accounting Principles (subject
to changes resulting from audits and year-end adjustments).
(c) STATEMENTS EXCLUDING KAISER-HILL. As soon as available but no
later than sixty (60) calendar days after the end of each fiscal quarter of each
fiscal year, and as soon as available but no later than one hundred and five
(105) calendar days after the end of each fiscal year, a consolidated balance
sheet of Borrower and its Subsidiaries and related consolidated statements of
operations for such quarterly or annual period, as the case may be, excluding
all financial information relating to Kaiser-Hill, and a corresponding financial
statement for the same periods in the preceding fiscal year certified as correct
by the Executive Vice President and Chief Financial Officer or the Vice
President and Treasurer.
(d) FINANCIAL STATEMENTS AND REPORTS SENT TO SHAREHOLDERS OR FILED
WITH THE SEC. Within fifteen (15) days after the same are sent copies of all
financial statements and reports which Borrower and its Subsidiaries sends to
its shareholders, and within fifteen (15) days after the same are filed, copies
of all financial statements, notices, reports, and filings which Borrower may
make to, or file with, the Securities and Exchange Commission or any successor
or analogous Governmental Authority.
(e) NO DEFAULT. Within sixty (60) calendar days after the end of each
of the first three fiscal quarters of each fiscal year and within one hundred
five (105) calendar days after the end of each fiscal year, a certificate signed
by the Executive Vice President and Chief Financial Officer of Borrower
certifying that, to the best of such officer's knowledge, after due inquiry, (i)
Borrower and each Subsidiary Guarantor has complied with all covenants,
agreements and conditions in each Loan Document and that each representation and
warranty contained in each Loan Document is true and correct with the same
effect as though each such representation and warranty had been made on the date
of such certificate (except to the extent such representation or warranty
related to a specific prior date), and (ii) no event has
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occurred and is continuing which constitutes an Event of Default or Potential
Default, or describing each such event and the remedial steps being taken by
Borrower.
(f) COMPLIANCE. Within sixty (60) calendar days after the end of each
of the first three fiscal quarters of each fiscal year and within one hundred
five (105) calendar days after the end of each fiscal year, a certificate signed
by the Executive Vice President and Chief Financial Officer or the Vice
President and Treasurer of Borrower demonstrating compliance with all financial
covenants (including all relevant calculations) and representations contained in
this Agreement as of the end of such period. Such certificate will be
substantially in the form of Exhibit F hereto, or in such other form as the
Agent may reasonably request from time to time. The Executive Vice President and
Chief Financial Officer or the Vice President and Treasurer of Borrower shall
provide any and all reports, audits, and such other information as may be
reasonably requested by the Agent to substantiate such compliance by Borrower or
upon which said officer may have relied in signing such certificate.
(g) BORROWING BASE CERTIFICATE. Within twenty (20) calendar days
after the end of each month, a Borrowing Base Certificate in the form attached
hereto as Exhibit G signed by the Executive Vice President and Chief Financial
Officer or the Vice President and Treasurer of Borrower, together with an aging
of all Accounts, consolidating financial statements and such other information
as may be reasonably requested by the Agent to substantiate such Borrowing Base
Certificate.
(h) PROJECTIONS. Not later than 30 days prior to the end of each
fiscal year of Borrower, projections of the operating budget and cash flows for
Borrower and its Subsidiaries for the immediately following fiscal year,
satisfactory in form to the Agent and the Banks.
(i) ERISA. Within fifteen (15) Business Days of filing, all reports
and forms filed with respect to all Plans, except as filed in the normal course
of business and that would not result in an adverse action to be taken under
ERISA, and details of related information of a Reportable Event.
(j) MATERIAL CHANGES. Within five (5) Business Days of the occurrence
thereof, notice of any litigation, administrative proceeding, investigation,
business development, or change in financial condition which could reasonably be
expected to have a material adverse effect on the business, operations, assets
or condition (financial or otherwise) of Borrower or its Subsidiaries taken as a
whole.
(k) OTHER INFORMATION. All material press releases simultaneously
with release. In addition, promptly upon request by the Agent or the Banks from
time to time (which may be on a monthly or other basis), Borrower shall provide
such other information and reports regarding the operations, business affairs,
prospects and financial condition of Borrower or Affiliate as the Agent or the
Banks may reasonably request; provided, however, that Borrower shall not be
obligated to disclose any information with respect to such Affiliate if such
information has no relation to Borrower and disclosure thereof would violate any
applicable federal or state securities law.
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(l) QUARTERLY STATUS REPORTS. Within thirty (30) calendar days after
the end of each fiscal quarter of each fiscal year, a contract status report,
substantially in the form of Exhibit 6.1(l) hereto, listing the top twenty-five
(25) contracts by overall dollar value of Borrower and its Subsidiaries.
VI.2 CORPORATE EXISTENCE. Preserve its corporate existence and material
-------------------
franchises, licenses, patents, copyrights, trademarks and tradenames consistent
with good business practice. Maintain, keep, and preserve, and cause each
Subsidiary Guarantor to maintain, keep, and preserve, all of its properties
(tangible and intangible) necessary or useful in the conduct of its business in
good working order and condition, ordinary wear and tear expected.
VI.3 ERISA. (a) Comply in all material respects with the provisions of
-----
ERISA to the extent applicable to any Plan maintained for the employees of
Borrower, any Subsidiary or any ERISA Affiliate; (b) do or cause to be done all
such acts and things that are required to maintain the qualified status of each
Plan and tax exempt status of each trust forming part of such Plan; (c) not
incur any material accumulated funding deficiency (within the meaning of ERISA
and the regulations promulgated thereunder), or any material liability to the
PBGC (as established by ERISA); (d) permit any event to occur (i) as described
in Section 4042 of ERISA or (ii) which may result in the imposition of a lien on
its properties or assets; and (e) notify Banks in writing promptly after it has
come to the attention of senior management of Borrower of the assertion or
threat of any "reportable event" or other event described in Section 4042 of
ERISA (relating to the soundness of a Plan) or the PBGC's ability to assert a
material liability against it or impose a lien on Borrower's, any Subsidiary's,
or any ERISA Affiliates' properties or assets; and (f) refrain from engaging in
any Prohibited Transactions or actions causing possible liability under Section
502 of ERISA.
VI.4 COMPLIANCE WITH REGULATIONS. Comply in all material respects with all
---------------------------
Regulations applicable to its business, the noncompliance with which reasonably
could be expected to have a material adverse effect on the business, operations,
assets or condition (financial or otherwise) of Borrower or of Borrower and its
Subsidiaries taken as a whole.
VI.5 CONDUCT OF BUSINESS; PERMITS AND APPROVALS; COMPLIANCE WITH LAWS.
-----------------------------------------------------------------
Continue to engage in Permitted Businesses; maintain, and cause each Subsidiary
Guarantor to maintain, in full force and effect, its franchises, and all
licenses, patents, trademarks, trade names, contracts, permits, approvals and
other rights necessary to the conduct of its business.
VI.6 MAINTENANCE OF INSURANCE. Maintain insurance with financially sound
------------------------
and reputable insurance companies or associations in such amounts and covering
such risks as are usually carried by companies engaged in the same or a similar
business and similarly situated, which insurance may provide for reasonable
deductibility from coverage thereof.
VI.7 PAYMENT OF DEBT; PAYMENT OF TAXES; ETC. Promptly pay and discharge:
---------------------------------------
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<PAGE>
(a) all of its Debt in accordance with the terms thereof;
(b) all taxes, assessments, and governmental charges or levies
imposed upon it or upon its income and profits, upon any of its property,
real, personal or mixed, or upon any part thereof, before the same shall
become in default; or
(c) all lawful claims for labor, materials and supplies or otherwise,
which, if unpaid, might become a lien or charge upon such property or any
part thereof;
provided, however, that so long as Borrower first notifies the Agent of its
intention to do so, Borrower shall not be required to pay and discharge (or to
cause such Subsidiary to pay and discharge) any such Debt, tax, assessment,
charge, levy or claim so long as the failure to so pay or discharge does not
constitute or result in a Event of Default or Potential Default hereunder and so
long as no foreclosure or other similar proceedings shall have been commenced
against such property or any part thereof and so long as the validity thereof
shall be contested in good faith by appropriate proceedings diligently pursued
and it shall have set aside on its books adequate reserves with respect thereto.
VI.8 NOTICE OF EVENTS. Promptly upon discovery by Borrower or any officer
----------------
of Borrower of any of the events described in Subsections (a) through (f)
hereof, Borrower shall deliver to the Agent telephone notice, and within three
(3) calendar days of such telephone notice deliver to the Agent a written
notice, which describes the event and all action Borrower proposes to take with
respect thereto:
(a) an Event of Default or Potential Default under this Agreement;
(b) any default or event of default under a contract or contracts and
the default or event of default involves payments by Borrower or any
Subsidiary in an aggregate amount equal to or in excess of $1,000,000;
(c) a default or event of default under or as defined in any evidence
of or agreements for Indebtedness for Borrowed Money under which Borrower's
or any Subsidiary's liability is equal to or in excess of $1,000,000
singularly or in the aggregate, whether or not an event of default
thereunder has been declared by any party to such agreement or any event
which, upon the lapse of time or the giving of notice or both, would become
an event of default under any such agreement or instrument or would permit
any party to any such instrument agreement to terminate or suspend any
commitment to lend to Borrower or the Subsidiaries or to declare or to
cause any such indebtedness to be accelerated or payable before it would
otherwise be due;
(d) the institution of, any material adverse determination in, or the
entry of any default judgment or order or stipulated judgment or order in,
any suit, action, arbitration, administrative proceeding, criminal
prosecution or
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governmental investigation against Borrower or any Subsidiary in which the
amount in controversy is in excess of $1,000,000 singularly or in the
aggregate;
(e) any change in any Regulation, including, without limitation,
changes in tax laws and regulations, which could reasonably have a material
adverse impact on the ability of Borrower to perform its obligations under
the Loan Documents or a material adverse effect on the business,
operations, assets or condition (financial or otherwise) of Borrower and
its Subsidiaries taken as a whole; or
(f) the receipt of any notice from any governmental authority that
Borrower is disqualified, barred or suspended from bidding on or performing
any contract or proposed contract.
VI.9 INSPECTION RIGHTS. At any time during regular reasonably requested of
-----------------
Borrower by the Agent, permit the Agent on behalf of the Banks, or any Bank, or
any authorized officer, employee, agent, or representative of the Agent or any
Bank to examine and make abstracts from the records and books of account of
Borrower or any Subsidiary, wherever located and to visit the properties of
Borrower or any Subsidiary, as permitted by law; and to discuss the affairs,
finances, and accounts of Borrower or any Subsidiary with any of Borrower's or
any Subsidiary's officers, directors or independent accountants, as permitted by
law, which activities shall be at the expense of such Bank. The Banks shall also
have the right to have conducted by the Agent, one (1) financial and collateral
audit per year, and two (2) additional collateral audits per year. The Borrower
shall bear the expense of such audits.
VI.10 GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. Maintain its books and
----------------------------------------
records at all times in accordance with Generally Accepted Accounting
Principles.
VI.11 USE OF PROCEEDS. The proceeds of the Loans hereunder shall be used by
---------------
Borrower and its Subsidiaries for working capital and general corporate
purposes, including the issuance of Documentary Letters of Credit and Standby
Letters of Credit.
VI.12 FURTHER ASSURANCES. Do such further acts and things and execute and
-------------------
deliver to the Agent such additional assignments, agreements, powers and
instruments, as the Banks may reasonably require or reasonably deem advisable to
carry into affect the purposes of this Agreement or to better assure and confirm
unto the Banks rights, powers and remedies hereunder.
VII. NEGATIVE COVENANTS.
------------------
Borrower covenants and agrees that, without the prior written consent of
the Required Banks, from and after the date hereof and so long as the Revolving
Loan Commitments are in effect or any Obligations remain unpaid or outstanding,
Borrower will not, and will not permit any Subsidiary to:
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VII.1 MERGER, CONSOLIDATION. Merge or consolidate with or into any
---------------------
corporation except, if no Potential Default or Event of Default shall have
occurred and be continuing either immediately prior to or upon the consummation
of such transaction, a Subsidiary may be merged with or into Borrower or another
Subsidiary, subject to compliance with Section 7.11, or a Subsidiary may be
merged with or into another Person in connection with the acquisition of an
Investment permitted by Section 7.6.
VII.2 INDEBTEDNESS FOR BORROWED MONEY. Incur, create, or permit to exist
-------------------------------
any Indebtedness for Borrowed Money except:
(a) the Obligations;
(b) Subordinated Debt;
(c) Non-Recourse Indebtedness;
(d) Indebtedness incurred by Borrower or any Subsidiary to finance
the acquisition of property (whether pursuant to a loan, financing lease or
otherwise) in the ordinary course of business not exceeding in aggregate
principal amount at any one time outstanding of $1,000,000;
(e) the 1996 Senior Notes; and
(f) (1) Non-Recourse Indebtedness in the amount of $950,000 incurred
by ICF Kaiser Participacoes Ltda. in order to complete the IESA Investment;
(2) Non-Recourse Indebtedness incurred by IESA and/or ICF Kaiser
Participacoes Ltda. following the IESA Investment; and (3) Indebtedness for
Borrowed Money and other Debt of IESA existing as of the date of the
closing of the IESA Investment; provided that in each of (1), (2) and (3)
--------
above, neither the Borrower nor any Subsidiary other than ICF Kaiser Brazil
Holdings, ICF Kaiser Participacoes Ltda., or IESA shall be permitted (x) to
have any guarantee obligation in respect of such Indebtedness or Debt
otherwise permitted by this subsection or (y) to pledge or grant any lien
or encumbrances on any assets as collateral or security with respect to
such Indebtedness or Debt otherwise permitted by this subsection.
VII.3 LIENS. Create, assume or permit to exist any Lien on any property or
-----
assets, whether now owned or hereafter acquired, or upon any income or profits
therefrom, except Permitted Liens.
VII.4 GUARANTEES. Guarantee or otherwise in any way become or be
----------
responsible for indebtedness or obligations (including working capital
maintenance, take-or-pay contracts, etc.) of any other Person, contingently or
otherwise, except:
(a) the endorsement of negotiable instruments of deposit in the
normal course of business;
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(b) guarantees by Borrower or a Subsidiary issued to secure the
indebtedness or obligation of any Subsidiary, which underlying indebtedness
or obligation is permitted hereunder;
(c) guarantees (other than those described in subsection (a) and
(b)) made in the ordinary course of business; and
(d) existing guarantees described on Schedule 7.4 hereto.
VII.5 MARGIN STOCK. Use or permit any proceeds of the Loans to be used,
------------
either directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying margin stock within the meaning of Regulation U
of The Board of Governors of the Federal Reserve System, as amended from time to
time.
VII.6 ACQUISITIONS AND INVESTMENTS.
----------------------------
Make any Investments in any Person, except:
(a) Borrower may maintain its ownership interest in each of the
Subsidiaries listed on Schedule 3.12 at the percentage of ownership
disclosed on said Schedule.
(b) any Subsidiary may make and own Investments in Borrower;
(c) Borrower or any Subsidiary may acquire and hold stock,
obligations or securities received in settlement of debts owing to Borrower
or such Subsidiary;
(d) Borrower or any Subsidiary may make and own Investments in a
Person or acquire all or substantially all of the assets or Capital Stock
of any Person (an "ACQUISITION") provided that the aggregate amount of all
such Acquisitions after the date hereof shall not exceed $5,000,000 in the
aggregate and any single Acquisition shall not exceed $2,000,000;
(e) Borrower or any Subsidiary may acquire in the ordinary course of
business interests in project-related joint ventures similar to other joint
ventures in which Borrower or its Subsidiaries owns an interest on the date
hereof, provided that the aggregate amount of cash and fair value of other
--------
assets (other than services) contributed by Borrower and its Subsidiaries
shall not exceed $750,000 in any twelve-month period;
(f) Borrower or any Subsidiary may (i) make investments in Single
Purpose Subsidiaries and (ii) serve as partner, shareholder, member,
investor, developer and/or owner/operator/lessee of project finance
ventures in which the output of the project being developed is under
contract to a Person which is not an Affiliate of Borrower or any of its
Subsidiaries pursuant to a "take-or-pay", tolling or similar contract and
which Borrower, in its reasonable judgment, determines to be in a business
presently conducted by Borrower and/or its Subsidiaries, provided that such
--------
venture described in clause (ii)
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above is entered into during such time as no Default or Event of Default
has occurred and is continuing or would occur after giving effect thereto,
and provided, further, that the sum of (x) the aggregate investments and
-------- -------
commitments to make investments by Borrower and its Subsidiaries in all
such ventures described in clause (ii) above plus (y) such investments
described in clause (i) above shall not exceed an amount equal to
$7,500,000;
(g) Borrower or any Subsidiary may make and own:
(i) Investments in certificates of deposit or time deposits
having maturities in each case not exceeding one year from the date of
issuance thereof and issued by a Bank, or any FDIC-insured commercial
bank incorporated in the United States or any state thereof having a
combined capital and surplus of not less than $500,000,000;
(ii) Investments in marketable direct obligations issued or
unconditionally guaranteed by the United States of America, any agency
thereof, or backed by the full faith and credit of the United States
of America, in each case maturing within one year from the date of
issuance or acquisition thereof;
(iii) Investments in commercial paper issued by a corporation
incorporated in the United States or any State thereof maturing no
more than one year from the date of issuance thereof and, at the time
of acquisition, having a rating of A-1 (or better) by Standard &
Poor's Corporation or P-1 (or better) by Moody's Investors Service,
Inc.; and
(iv) Investments in money market mutual funds all of the assets
of which are invested in cash or investments described in clauses (i),
(ii) and (iii) of this paragraph (g).
(h) ICF Kaiser Hunters Branch may make such additional Hunters
Branch Investments in amounts not to exceed the amounts set forth below and
$6,000,000 in the aggregate without deducting any such Investments from the
$5,000,000 aggregate Acquisitions limit set forth in subsection (d) of this
Section 7.6:
$600,000 in each of years 1997, 1998 and 1999; and
$700,000 in each of years 2000, 2001, 2002, 2003, 2004, 2005 and
2006.
(i) ICF Kaiser Participacoes Ltda. may complete the IESA Investment,
provided that any cash from Borrower or any Subsidiary made available to
ICF Kaiser Participacoes Ltda. in connection with the IESA Investment
shall be limited to a maximum of $350,000; provided, further, that such
amount (when used) shall not be required to be deducted from the $5,000,000
aggregate Acquisitions limit set forth in subsection (d) of this Section
7.6.
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(j) Borrower or any Subsidiary may complete the Investment in KWA
Kenwalt Australia Pty Ltd., a corporation organized under the laws of the
country of Australia, provided that any cash from Borrower or any
Subsidiary used in connection with said Investment after the date hereof
shall be limited to a maximum of $300,000; provided, further, that such
amount (when used) shall not be required to be deducted from the $5,000,000
aggregate Acquisitions limit set forth in subsection (d) of this Section
7.6.
VII.7 TRANSFER OF ASSETS; NATURE OF BUSINESS. Except as otherwise provided
--------------------------------------
in this Agreement, sell, transfer, pledge, assign or otherwise dispose of any
assets of Borrower or any Subsidiary (including by means of dilution of
Borrower's or a Subsidiary's interest in a Person as and to the extent Borrower
or a Subsidiary receives a portion of the proceeds of the dilutive issuance)
unless (i) such sale or disposition shall be in the ordinary course of
Borrower's or such Subsidiary's business; (ii) sales or other dispositions of
assets from Borrower to a Subsidiary of Borrower, or from a Subsidiary of
Borrower to Borrower or one or more other Subsidiaries of Borrower so long as
such subsidiary meets the requirements of Section 3.14; (iii) sales of assets in
connection with sale and leaseback transactions otherwise in compliance with
this Agreement; or (iv) a mandatory reduction in the Aggregate Revolving Loan
Commitment is made to the extent required by Section 2.7(c), and, in any such
case, no Event of Default or Potential Default shall have occurred or will
thereby occur; provided, however, that no such sale transfer, pledge, assignment
or disposition shall include any of the Collateral; discontinue any substantial
part of the existing businesses of Borrower and its Subsidiaries taken as a
whole or change the nature of such businesses or otherwise change the legal form
of such businesses.
VII.8 RESTRICTED PAYMENTS. Make any redemptions, repurchases, dividends or
-------------------
distributions of any kind in respect of Borrower's Capital Stock, other than
redemptions, repurchases, dividends or distributions payable in the form of, or
with the net proceeds of the sale (other than to a Subsidiary or employee stock
ownership plan of Borrower) of, Capital Stock of Borrower.
VII.9 ACCOUNTING CHANGE. Make or permit any change in financial accounting
-----------------
policies or financial reporting practices, except as permitted by Generally
Accepted Accounting Principles or regulations of the Securities and Exchange
Commission.
VII.10 MODIFICATION OF INDENTURE. Consent to or permit any amendment,
modification or waiver of any material provision or term contained in (a) the
Indenture dated as of January 11, 1994, as supplemented through the Sixth
Supplemental Indenture, between Borrower and The Bank of New York, as Trustee,
relating to the 12% Senior Subordinated Notes due 2003 issued by Borrower or (b)
the Indenture dated as of December 23, 1996, as supplemented through the First
Supplemental Indenture, between the Borrower, the guarantors named therein and
The Bank of New York, as Trustee, relating to the 1996 Senior Notes unless,
fifteen (15) days before consenting to or permitting such amendment,
modification or waiver, Borrower shall furnish to the Agent and each of the
Banks a certificate signed by the Executive Vice President and Chief Financial
Officer or Vice President and Treasurer of Borrower certifying that, to the best
of such officer's knowledge, after due inquiry, immediately after such
amendment, modification or waiver, (i) Borrower has complied with all covenants,
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agreements and conditions in each Loan Document and each representation and
warranty contained in each Loan Document is true and correct with the same
effect as though each such representation and warranty had been made on the date
of such certificate (except to the extent such representation or warranty
related to a specific prior date), and (ii) no event has occurred and is
continuing that constitutes an Event of Default or Potential Default.
VII.11 NEW SUBSIDIARIES AND SUBSIDIARY GUARANTORS. Within fifteen (15)
------------------------------------------
days after each day on which the representation set forth in Section 3.14 would
be incorrect if made on such day, deliver to the Agent and each Bank a
supplement to Schedule 3.12 adding such Subsidiaries as shall be required in
order to render such representation correct and execute and deliver a Joinder
Agreement in the form attached hereto as Exhibit H and such other documents as
the Agent shall determine are necessary or desirable to add such additional
Subsidiary or Subsidiaries as Subsidiary Guarantors hereunder and to grant to
the Agent a first priority perfected security interest in all Collateral of such
additional Subsidiary Guarantors; provided, that in determining whether the
--------
representation set forth in Section 3.14 would be incorrect if made on any day,
Borrower may rely on the most recent financial statements of Borrower delivered
pursuant to Section 6.1(b) unless Borrower has taken any action which, to the
knowledge of Borrower, has caused such representation to be incorrect as of such
date of determination.
VIII. FINANCIAL COVENANTS.
-------------------
Borrower covenants and agrees that, without the prior written consent of
the Required Banks, from and after the date hereof and so long as the Revolving
Loan Commitments are in effect or any Obligations remain unpaid or outstanding,
Borrower will not:
VIII.1 FIXED CHARGE COVERAGE. Permit, as of the end of any fiscal quarter
---------------------
ending in the periods set forth below for the immediately preceding four fiscal
quarters, the ratio of (i) EBITDA less Capital Expenditures plus Consolidated
Lease Expenses of Borrower and its Subsidiaries, to (ii) Consolidated Fixed
Charges for such period to be less than the ratio set forth opposite such period
below:
Fiscal Quarters Ending
----------------------
December 31, 1997 through March 31, 1998 1.10:1.0
April 1, 1998 through September 30, 1998 1.15:1.0
October 1, 1998 and thereafter 1.20:1.0
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VIII.2 INTEREST COVERAGE. Permit, as of the end of any fiscal quarter
-----------------
ending in the periods set forth below for the immediately preceding four fiscal
quarters, the ratio of (i) EBITDA for such period to (ii) Consolidated Interest
Expense for such period to be less than the ratio set forth opposite such period
below:
Test Period
-----------
December 31, 1997 through March 31, 1998 1.55:1.0
April 1, 1998 through June 30, 1998 1.60:1.0
July 1, 1998 through September 30, 1998 1.70:1.0
October 1, 1998 and thereafter 1.80:1.0
VIII.3 SENIOR FUNDED INDEBTEDNESS TO EBITDA. Permit the ratio of Senior
------------------------------------
Funded Indebtedness on the last day of any fiscal quarter to EBITDA as of such
day for the immediately preceding four fiscal quarters to be greater than
2.5:1.0.
VIII.4 INDEBTEDNESS FOR BORROWED MONEY TO TOTAL CAPITALIZATION. Permit the
-------------------------------------------------------
ratio of Indebtedness for Borrowed Money to Total Capitalization on the last day
of any fiscal quarter to be greater than .86:1.0.
VIII.5 INDEBTEDNESS FOR BORROWED MONEY TO EBITDA. Permit the ratio of
-----------------------------------------
Indebtedness for Borrowed Money on the last day of any fiscal quarter ending in
the periods set forth below to EBITDA as of such day for the immediately
preceding four (4) fiscal quarters to be greater than the ratio set forth
opposite such period below:
Test Period
-----------
December 31, 1997 through June 30, 1998 6.75:1.0
July 1, 1998 through September 30, 1998 6.50:1.0
October 1, 1998 through December 31, 1998 6.00:1.0
January 1, 1999 through June 30, 1999 5.75:1.0
July 1, 1999 through December 31, 1999 5.00:1.0
January 1, 2000 and thereafter 4.75:1.0
; except as provided below, in all calculations made pursuant to this Article,
the Borrower shall exclude any and all amounts (positive and negative)
attributable to IESA, ICF Kaiser Participacoes Ltda., and/or ICF Kaiser Brazil
Holdings that otherwise might be includible in Capital Expenditures,
Consolidated Fixed Charges, Consolidated Interest Expense, Consolidated Lease
Expenses, Consolidated Net Income, Consolidated Net Worth, EBITDA, Indebtedness
for Borrowed Money, Senior Funded Indebtedness and Total Capitalization.
IX. GUARANTY.
--------
IX.1 GUARANTY.
--------
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(a) Each Subsidiary Guarantor unconditionally and irrevocably
guarantees the due and punctual payment by, and performance of, the Obligations
of Borrower. Each Subsidiary Guarantor further agrees that the Obligations may
be extended or renewed, in whole or in part, without notice or further assent
from it (except as may be otherwise required herein), and it will remain bound
upon this guaranty notwithstanding any extension or renewal of any Obligation.
(b) Each Subsidiary Guarantor waives presentation to, demand for
payment from and protest to, as the case may be, Borrower, any Subsidiary
Guarantor or any other guarantor of the Obligations, and also waives notice of
protest for nonpayment. The obligations of each Subsidiary Guarantor hereunder
shall not be affected by (i) the failure of the Agent or any Bank to assert any
claim or demand or to enforce any right or remedy against Borrower, any
Subsidiary Guarantor or any other guarantor of the Obligations under the
provisions of this Agreement, any other Loan Document, any other agreement or
otherwise; (ii) any extension or renewal of any provision hereof or thereof;
(iii) the failure of the Agent or any Bank to notify or obtain the consent of
any Subsidiary Guarantor with respect to any rescission, waiver, compromise,
acceleration, amendment or modification of any of the terms or provisions of
this Agreement, any other Loan Document or any other agreement; (iv) the
release, exchange, waiver or foreclosure of any security held by the Agent or
any Bank for the Obligations or any of them; (v) the failure of the Agent or a
Bank to exercise any right or remedy against any Subsidiary Guarantor or any
other guarantor of the Obligations; or (vi) the release or substitution of any
Subsidiary Guarantor.
(c) Each Subsidiary Guarantor further agrees that this guaranty
constitutes a guaranty of performance and of payment when due and not just of
collection, and expressly waives any right to require that any resort be had by
the Agent or any Bank to any security held for payment of the Obligations or to
any balance of any deposit, account or credit on the books of the Agent or any
Bank in favor of Borrower, any Subsidiary Guarantor or any other guarantor of
the Obligations or to any other Person.
(d) Each Subsidiary Guarantor hereby expressly assumes all
responsibilities to remain informed of the financial condition of Borrower and
any circumstances affecting the ability of Borrower to perform under this
Agreement or any other Loan Document.
(e) Each Subsidiary Guarantor's guaranty shall not be affected by the
genuineness, validity, regularity or enforceability of the Obligations, or any
other Loan Documents, or by the existence, validity, enforceability, perfection,
or extent of collateral therefor or by any other circumstances relating to the
Obligations which might otherwise constitute a defense to this Guaranty. The
Banks and the Agent make no representation or warranty in respect to any such
circumstances and have no duty or responsibility whatsoever to each Subsidiary
Guarantor in respect to the management and maintenance of the Obligations or any
collateral security for the Obligations.
IX.2 NO IMPAIRMENT OF GUARANTY. The obligations of each Subsidiary
-------------------------
Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including, without limitation, any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality
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or unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Subsidiary Guarantor
hereunder shall not be discharged or impaired or otherwise affected by the
failure of the Agent or any Bank to assert any claim or demand or to enforce any
remedy under this Agreement or any other agreement, by any waiver or
modification of any provision thereof, by any default, failure or modification
of any provision thereof, by any default, failure or delay, willful or
otherwise, in the performance of the Obligations, or by any other act or thing
or omission or delay to do any other act or thing which may or might in any
manner or to any extent vary the risk of such Subsidiary Guarantor or would
otherwise operate as a discharge of such Subsidiary Guarantor as a matter of
law, unless and until the Obligations are finally and indefeasibly paid in full.
IX.3 CONTINUATION AND REINSTATEMENT, ETC.
-----------------------------------
(a) Each Subsidiary Guarantor further agrees that its guaranty
hereunder shall continue to be effective or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any Obligation is rescinded or
is otherwise restored by any Bank. In furtherance of the provisions of this
Section 9.3, and not in limitation of any other right which the Agent or a Bank
may have at law or in equity against Borrower or a Subsidiary Guarantor by
virtue hereof, upon failure of Borrower to pay any Obligation when and as the
same shall become due, whether at maturity, by acceleration, after notice or
otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt
of written demand by the Agent or any Bank, forthwith pay or cause to be paid to
the Agent or such Bank in cash an amount equal to the unpaid amount of all the
Obligations with interest at the Default Rate.
(b) All rights of the Subsidiary Guarantors against Borrower, arising
as a result of the payment by any Subsidiary Guarantor of the sums to the Agent
or a Bank by way of right of subrogation or otherwise shall in all respects be
subordinated and junior in right of payment to the prior final and indefeasible
payment in full of all the Obligations to the Agent and the Banks. If any
amount shall be paid to such Subsidiary Guarantors for the account of Borrower,
such amount shall be held in trust for the benefit of the Banks and shall
forthwith be paid to the Banks to be credited and applied to the Obligations,
whether matured or unmatured.
(c) Each Subsidiary Guarantor shall have a right of contribution
from each other Subsidiary Guarantor with respect to any sums paid by a
Subsidiary Guarantor to a Bank hereunder, which right of contribution shall in
all respects be subordinated and junior in right of payment to the prior final
and indefeasible payment in full of the Obligations to the Agent and the Banks.
(d) The obligations of the Subsidiary Guarantors hereunder shall
terminate upon the final and indefeasible payment in full of the Obligations to
the Agent and the Banks. In addition, the Agent and the Banks shall release a
Subsidiary Guarantor from its obligations hereunder upon the disposition of all
of the capital stock of such Subsidiary Guarantor.
IX.4 REPRESENTATIONS AND WARRANTIES. Each Subsidiary Guarantor hereby
------------------------------
represents and warrants to the Agent and the Banks that each representation and
warranty by Borrower set forth in this Agreement and each other Loan
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Document relating to such Subsidiary Guarantor, including without limitation the
representations and warranties contained in Article III hereof, is true, correct
and complete in all respects.
X. DEFAULT.
-------
X.1 EVENTS OF DEFAULT. Borrower shall be in default if any one or more of
-----------------
the following events ("EVENT OF DEFAULT") occurs:
(a) PAYMENTS. Borrower fails to pay any principal of or interest on
any Note when due and payable (whether at maturity, by notice of intention to
prepay, or otherwise) or fails to pay when it is due and payable any other
amount payable under any Loan Document;
(b) COVENANTS.
(i) Borrower fails to observe or perform as and when required
any of the terms, conditions or covenants contained in any Loan
Document (other than those referred to in clause (ii) below); or
(ii) Borrower fails to observe or perform as and when required
any of the terms, conditions or covenants contained in Sections 6.2
(other than as to the corporate existence of Borrower), 6.5, 6.8(b),
6.8(c), and 6.8(d) of this Agreement, and such failure shall continue
for fifteen (15) days after Borrower obtains knowledge of such breach.
(c) REPRESENTATIONS, WARRANTIES, ETC. Any representation or warranty
made, or deemed made, by Borrower herein or in any Loan Document or in any
exhibit, schedule, report or certificate delivered pursuant hereto or thereto
shall prove to have been false, misleading or incorrect in any material respect
when made or deemed to have been made;
(d) BANKRUPTCY, ETC. Borrower is dissolved or liquidated, makes an
assignment for the benefit of creditors, files a petition in bankruptcy, is
adjudicated insolvent or bankrupt, petitions or applies to any tribunal for any
receiver or trustee, commences any proceeding relating to itself under any
bankruptcy, reorganization, readjustment of debt, dissolution or liquidation law
or statute of any jurisdiction, has commenced against it any such proceeding
which remains undismissed for a period of sixty (60) days, indicates its consent
to, approval of or acquiescence in any such proceeding, or any receiver of or
trustee for Borrower or any substantial part of the property of Borrower is
appointed, or Borrower suffers any such receivership or trusteeship to continue
undischarged for a period of sixty (60) days;
(e) CERTAIN OTHER DEFAULTS. If Borrower or any Subsidiary shall fail
to pay when due any Indebtedness for Borrowed Money which singularly or in the
aggregate exceeds $1,000,000, and such failure shall continue beyond any
applicable cure period, or Borrower or any Subsidiary shall suffer to exist any
default or event of default in the performance or observance, subject to any
applicable grace period, of any agreement, term, condition or covenant with
respect to any agreement or document relating to
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Indebtedness for Borrowed Money, if the effect of such default is to permit,
with the giving of notice or passage of time or both, the holders thereof, or
any trustee or agent for said holders, to terminate or suspend any commitment
(which is equal to or in excess of $1,000,000) to lend money or to cause or
declare any portion of any borrowings thereunder to become due and payable prior
to the date on which it would otherwise be due and payable, provided that during
any applicable cure period the Banks' obligations hereunder to make further
Loans or issue Letters of Credit shall be suspended;
(f) JUDGMENTS. Any judgments against Borrower or any Subsidiary or
any attachments against its assets or property for amounts in excess of
$1,000,000 in the aggregate remain unpaid, unstayed on appeal, undischarged,
unbonded and undismissed for a period of thirty (30) days;
(g) ATTACHMENTS. Any assets of Borrower or any Subsidiary shall be
subject to attachments, levies, or garnishments for amounts in excess of
$1,000,000 in the aggregate which have not been dissolved or satisfied within
thirty (30) days after service of notice thereof to Borrower or such Subsidiary;
or
(h) CHANGE IN CONTROL. A Change of Control shall occur.
Then and in every such event other than that specified in clause (d), the Agent
shall, at the written request of the Required Banks, terminate the Revolving
Loan Commitments and may declare the Revolving Loans and all other Obligations,
including without limitation accrued interest, to be, and the Revolving Loans
and all other Obligations shall thereupon become, due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by Borrower. Upon the occurrence of any event specified in clause
(d) above, the Revolving Loan Commitments shall automatically terminate and the
Revolving Loans and all other Obligations, including without limitation accrued
interest, shall immediately be due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by Borrower.
To the extent that the Obligations accelerated hereunder relate to Letters of
Credit, the amount becoming due and payable shall be the aggregate amount of the
Letter of Credit Outstandings, whether or not any drawings or claims have been
presented thereunder. Any date on which the Loans and such other obligations
are declared due and payable pursuant to this Section 10.1, shall be a Revolver
Termination Date for purposes of this Agreement.
XI. AGENT.
-----
XI.1 APPOINTMENT AND AUTHORIZATION. Each Bank hereby irrevocably appoints
-----------------------------
and authorizes the Agent to take such action on its behalf and to exercise such
powers under this Agreement and the Loan Documents as are specifically delegated
to the Agent by the terms hereof or thereof, together with such other powers as
are reasonably incidental thereto. The relationship between the Agent and each
Bank has no fiduciary aspects, and the Agent's duties (as Agent) hereunder are
acknowledged to be only ministerial and not involving the exercise of discretion
on its part. Nothing in this Agreement or any Loan Document shall be construed
to impose on the Agent any duties or responsibilities other than those for which
express provision is made herein or therein. In performing its duties
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<PAGE>
and functions hereunder, the Agent does not assume and shall not be deemed to
have assumed, and hereby expressly disclaims, any obligation with or for
Borrower. As to matters not expressly provided for in this Agreement or any Loan
Document, the Agent shall not be required to exercise any discretion or to take
any action or communicate any notice, but shall be fully protected in so acting
or refraining from acting upon the instructions of the Required Banks (or all
Banks, if required by the applicable Section of this Agreement) and their
respective successors and assigns; provided, however, that in no event shall the
Agent be required to take any action which exposes it to personal liability or
which is contrary to this Agreement, any Loan Document or applicable law, and
the Agent shall be fully justified in failing or refusing to take any action
hereunder unless it shall first be specifically indemnified to its satisfaction
by the Banks against any and all liability and expense which may be incurred by
it by reason of taking or omitting to take any such action. If an indemnity
furnished to the Agent for any purpose shall, in the reasonable opinion of the
Agent, be insufficient or become impaired, the Agent may call for additional
indemnity from the Banks and not commence or cease to do the acts for which such
indemnity is requested until such additional indemnity is furnished.
XI.2 DUTIES AND OBLIGATIONS. In performing its functions and duties
----------------------
hereunder on behalf of the Banks, the Agent shall exercise the same care and
skill as it would exercise in dealing with loans for its own account. Neither
the Agent nor any of its directors, officers, employees or other agents shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with this Agreement or any Loan Document except for its or their own
gross negligence or willful misconduct. Without limiting the generality of the
foregoing, the Agent (a) may consult with legal counsel and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith and in accordance with the advice of such experts; (b)
makes no representation or warranty to any Bank as to, and shall not be
responsible to any Bank for, any recital, statement, representation or warranty
made in or in connection with this Agreement, any Loan Document or in any
written or oral statement (including a financial or other such statement),
instrument or other document delivered in connection herewith or therewith or
furnished to any Bank by or on behalf of Borrower; (c) shall have no duty to
ascertain or inquire into Borrower's performance or observance of any of the
covenants or conditions contained herein or to inspect any of the property
(including the books and records) of Borrower or inquire into the use of the
proceeds of the Revolving Credit Loans or (unless the officers of the Agent
active in their capacity as officers of the Agent on Borrower's account have
actual knowledge thereof or have been notified in writing thereof) to inquire
into the existence or possible existence of any Event of Default or Potential
Default; (d) shall not be responsible to any Bank for the due execution,
legality, validity, enforceability, effectiveness, genuineness, sufficiency,
collectability or value of this Agreement or any other Loan Document or any
instrument or document executed or issued pursuant hereto or in connection
herewith, except to the extent that such may be dependent on the due
authorization and execution by the Agent itself; (e) except as expressly
provided herein in respect of information and data furnished to the Agent for
distribution to the Banks, shall have no duty or responsibility, either
initially or on a continuing basis, to provide to any Bank any credit or other
information with respect to Borrower, whether coming into its possession before
the making of the Loans or at any time or times thereafter; and (f) shall incur
no liability under or in respect of this Agreement or any other Loan Document
for, and shall be entitled to rely and act upon, any notice, consent,
certificate or other instrument or writing (which may be by facsimile
(telecopier), telegram, cable, or other electronic means) believed by it to be
genuine and correct and to have been signed or sent by the
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proper party or parties.
XI.3 THE AGENT AS A BANK. With respect to its Revolving Loan Commitment
-------------------
and the Loans made and to be made by it and the Letters of Credit issued and to
be issued by it, CoreStates Bank, N.A. shall have the same rights and powers
under this Agreement and all other Loan Documents as the other Banks and may
exercise the same as if it were not the Agent. The terms "Bank" and "Banks" as
used herein shall, unless otherwise expressly indicated, include CoreStates
Bank, N.A. in its individual capacity. CoreStates Bank, N.A. and any successor
Agent which is a commercial bank, and their respective affiliates, may accept
deposits from, lend money to, act as trustee under indentures of and generally
engage in any kind of business with, Borrower and its Affiliates from time to
time, all as if such entity were not the Agent hereunder and without any duty to
account therefor to any Bank.
XI.4 INDEPENDENT CREDIT DECISIONS. Each Bank acknowledges to the Agent
----------------------------
that it has, independently and without reliance upon the Agent or any other
Bank, and based upon such documents and information as it has deemed
appropriate, made its own independent credit analysis and decision to enter into
this Agreement. Each Bank also acknowledges that it will, independently or
through other advisers and representatives but without reliance upon the Agent
or any other Bank, and based upon such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or refraining from taking any action under this Agreement or any Loan
Document.
XI.5 INDEMNIFICATION. The Banks agree to indemnify the Agent (to the
---------------
extent not reimbursed by Borrower), ratably in proportion to each Bank's
Commitment Percentage, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Agent in such capacity in any way relating to or
arising out of this Agreement or any Loan Document or any action taken or
omitted to be taken by the Agent in such capacity hereunder or under any Loan
Document; provided that none of the Banks shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Agent's gross
negligence or willful misconduct. Without limiting the generality of the
foregoing, each Bank agrees to reimburse the Agent, promptly on demand, for such
Bank's ratable share (based upon the aforesaid apportionment) of any out-of-
pocket expenses (including counsel fees and disbursements) incurred by the Agent
in connection with the preparation, execution, administration or enforcement of,
or the preservation of any rights under, this Agreement and the Loan Documents
to the extent that the Agent is not reimbursed for such expenses by Borrower.
XI.6 SUCCESSOR AGENT. The Agent may resign at any time by giving written
---------------
notice of such resignation to the Banks and Borrower, such resignation to be
effective only upon the appointment of a successor Agent as hereinafter
provided. Upon any such notice of resignation, the Banks shall jointly appoint a
successor Agent upon written notice to Borrower and the retiring Agent. If no
successor Agent shall have been jointly appointed by such Banks and shall have
accepted such appointment within thirty (30) days after the retiring Agent shall
have given notice of resignation, the retiring Agent may, upon notice to
Borrower and the Banks, appoint a successor Agent. Upon its acceptance of any
appointment as Agent hereunder, the successor Agent shall succeed to and become
vested with all the rights, powers,
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privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations as Agent under this Agreement and the
Loan Documents. After any retiring Agent's resignation hereunder, the provisions
hereof shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was the Agent under this Agreement and the Loan Documents.
XI.7 ALLOCATIONS MADE BY AGENT. As between the Agent and the Banks,
-------------------------
unless a Bank objecting to a determination or allocation made by the Agent
pursuant to this Agreement delivers to the Agent written notice of such
objection within one hundred twenty (120) days after the date any distribution
was made by the Agent, such determination or allocation shall be conclusive on
such one hundred twentieth day and only those items expressly objected to in
such notice shall be deemed disputed by such Bank. The Agent shall not have any
duty to inquire as to the application by the Banks of any amounts distributed to
them.
XII. MISCELLANEOUS
-------------
XII.1 WAIVER. No failure or delay on the part of the Agent or any Bank or
------
any holder of any Note in exercising any right, power or remedy under any Loan
Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy under any
Loan Document. The remedies provided under the Loan Documents are cumulative and
not exclusive of any remedies provided by law.
XII.2 AMENDMENTS. No amendment, modification, termination or waiver of
----------
any Loan Document or any provision thereof nor any consent to any departure by
Borrower therefrom shall be effective unless the same shall have been approved
in writing by the Required Banks, be in writing and be signed by the Agent and
then any such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No notice to or demand on Borrower
shall entitle Borrower to any other or further notice or demand in similar or
other circumstances. Notwithstanding any other provision contained in any Loan
Document, no amendment, modification, termination or waiver shall affect the
manner of calculating the Borrowing Base, the payment of principal (including
without limitation the date when due), extend the Revolver Termination Date,
reduce any interest rate margin or any fee provided herein, increase any
Revolving Loan Commitment, release any Collateral, modify the definition of
"Required Bank" or adversely affect the security interest or any voting or
consent rights of the Banks herein without the written consent of all the Banks.
The rights and responsibilities of the Agent hereunder cannot be changed without
the Agent's prior written consent.
XII.3 GOVERNING LAW. The Loan Documents and all rights and obligations of
-------------
the parties thereunder shall be governed by and be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania without regard to
Pennsylvania or federal principles of conflict of laws.
XII.4 PARTICIPATIONS AND ASSIGNMENTS. This Agreement shall bind and
------------------------------
inure to the benefit of the parties and their respective successors
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<PAGE>
and assigns except that neither the Borrower nor any Subsidiary Guarantor may
assign any such Person's rights or obligations hereunder. Borrower hereby
acknowledges and agrees that a Bank may at any time: (a) grant participations in
all or any portion of its Revolving Loan Commitment, any Note or of its right,
title and interest therein or in or to any Loan Document (collectively,
"Participations") to any other lending office or to any other bank, lending
institution or other entity which has the requisite sophistication to evaluate
the merits and risks of investments in Participations ("Participants");
provided, however, that: (i) all amounts payable by Borrower hereunder shall be
determined as if such Bank had not granted such Participation; and (ii) any
agreement pursuant to which any Bank may grant a Participation: (x) shall
provide that such Bank shall retain the sole right and responsibility to enforce
the obligations of Borrower hereunder including, without limitation, the right
to approve any amendment, modification or waiver of any provisions of this
Agreement; (y) such participation agreement may provide that such Bank will not
agree to any modification, amendment or waiver of this Agreement without the
consent of the Participant if such modification, amendment or waiver would
reduce the principal of or rate of interest on the Loan or postpone the date
fixed for any payment of principal of or interest on the Loan; and (z) shall not
relieve such Bank from its obligations, which shall remain absolute, to make
Loans hereunder and issue (or assume a participation in) Letters of Credit
hereunder; and (b) each Bank may assign any of its rights or interests under the
Loan Documents (but only with the consent of Borrower and the Agent, which
consent shall not be unreasonably withheld), provided that: (i) each such
assignment shall be in an amount of at least $5,000,000 and the transferor
Bank's remaining interest shall be not less than 33% of its original Revolving
Loan Commitment; (ii) each such assignment by a Bank of its Loans, or Revolving
Credit Commitment shall be made in such manner so that the same portion of its
Loans, Note, Revolving Credit Commitment and obligations under Letters of Credit
is assigned to the respective assignee and (iii) each such assignment during the
existence of an Event of Default shall not require the consent of Borrower, but
if such assignment is made to a foreign entity or a Person controlled by a
foreign entity, the transferor Bank shall give the Borrower five (5) days notice
prior to such assignment. Upon execution and delivery by the assignee to
Borrower and the Agent of an instrument in writing pursuant to which such
assignee agrees to become a "Bank" hereunder (if not already a Bank) having the
Commitment (s) and Loans specified in such instrument, and upon consent thereto
by Borrower and the Agent, to the extent required above, the assignee shall
have, to the extent of such assignment (unless otherwise provided in such
assignment with the consent of Borrower and the Agent), the obligations, rights
and benefits of a Bank hereunder holding the Revolving Credit Commitment(s),
Loans (or portions thereof) and Letters of Credit or participations therein, as
applicable, assigned to it (in addition to the Revolving Credit Commitment(s),
Loans and Letters of Credit or participations therein, as applicable, if any,
theretofore held by such assignee) and the assigning Bank shall, to the extent
of such assignment, be released from the Commitment (s) (or portion (s) thereof)
so assigned. Upon each such assignment the assigning Bank shall pay the Agent an
assignment fee of $3,500.
XII.5 CAPTIONS. Captions in the Loan Documents are included for
--------
convenience of reference only and shall not constitute a part of any Loan
Document for any other purpose.
XII.6 NOTICES. All notices, requests, demands, directions, declarations
-------
and other communications between the Banks and Borrower or a Subsidiary
Guarantor provided
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<PAGE>
for in any Loan Document shall, except as otherwise expressly provided, be
mailed by registered or certified mail, return receipt requested, or
telegraphed, or telefaxed, or delivered in hand to the applicable party, in the
case of the Agent or any of the Banks, at its address indicated opposite its
name on the signature pages hereto, and, in the case of the Borrower or any
Subsidiary Guarantor, at its address indicated on Schedule 3.12 hereto. The
foregoing shall be effective and deemed received three days after being
deposited in the mails, postage prepaid, addressed as aforesaid and shall
whenever sent by telegram, telegraph or telefax or delivered in hand be
effective when received. Any party may change its address by a communication in
accordance herewith.
XII.7 SHARING OF COLLECTIONS, PROCEEDS AND SET-OFFS; APPLICATION OF
-------------------------------------------------------------
PAYMENTS.
- --------
(a) If any Bank, by exercising any right of set-off, counterclaim or
foreclosure against trade collateral or otherwise, receives payment of principal
or interest or other amount due on any Loan or Letter of Credit which is greater
than the percentage share of such Bank (determined as set forth below), the Bank
receiving such proportionately greater payment shall purchase such
participations in the Loans and Letter of Credit reimbursement obligations held
by the other Banks, and such other adjustments shall be made as may be required,
so that all such payments shall be shared by the Banks on the basis of their
percentage shares; provided that if all or any portion of such proportionately
greater payment of such indebtedness is thereafter recovered from, or must
otherwise be restored by, such purchasing Bank, the purchase shall be rescinded
and the purchase price restored to the extent of such recovery, but without
interest being paid by such purchasing Bank. The percentage share of each Bank
shall be based on the portion of the outstanding Loans of such Bank (prior to
receiving any payment for which an adjustment must be made under this Section
12.7(a)) in relation to the aggregate outstanding Loans of all the Banks.
Borrower agrees, to the fullest extent it may effectively do so under applicable
law, that any holder of a participation in a Loan or reimbursement obligation,
whether or not acquired pursuant to the foregoing arrangements, may exercise
rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of Borrower in the amount of such participation. If under any
applicable bankruptcy, insolvency or other similar law, any Bank receives a
secured claim in lieu of a set-off to which this Section would apply, such Bank
shall, to the extent practicable, exercise its rights in respect of such secured
claim in a manner consistent with the rights of the Banks entitled under this
Section to share in the benefits of any recovery on such secured claim.
(b) If an Event of Default or a Potential Default shall have occurred
and be continuing, the Agent and each Bank and Borrower agree that all payments
on account of the Loans and Letters of Credit shall be applied by the Agent and
the Banks as follows:
(1) First, to the Agent for any Agent fees then due and payable under
this Agreement until such fees are paid in full;
(2) Second, to the Agent for any fees, costs or expenses (including
expenses described in Section 12.8) incurred by the Agent under any of the
Loan Documents or this Agreement, then due and payable and not reimbursed
by Borrower or the Banks until such fees, costs and expenses are paid in
full;
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<PAGE>
(3) Third, to the Banks for their percentage shares of the Commitment
Fee then due and payable under this Agreement until such fee is paid in
full;
(4) Fourth, to the Banks for their respective shares of all costs,
expenses and fees then due and payable from Borrower until such costs,
expenses and fees are paid in full;
(5) Fifth, to the Banks for their percentage shares of all interest
then due and payable from Borrower until such interest is paid in full,
which percentage shares shall be calculated by determining each Bank's
percentage share (determined as set forth in Section 12.7(a)) of the
amounts allocated in (a) above; and
(6) Sixth, to the Banks for their percentage shares of the principal
amount of the Loans and reimbursement obligations with respect to Letters
of Credit then due and payable from Borrower until such principal is paid
in full, which percentage shares shall be calculated by determining each
Bank's percentage share (determined as set forth in Section 12.7(a)) of the
amounts allocated in (a) above.
XII.8 EXPENSES OF THE AGENT; INDEMNIFICATION OF THE AGENT AND THE BANKS.
-----------------------------------------------------------------
(a) Borrower will from time to time reimburse the Agent promptly
following demand for all out-of-pocket expenses (including the reasonable fees
and expenses of legal counsel) in connection with (i) the preparation of the
Loan Documents and any amendments or waivers thereto, (ii) the making of any
Loans, (iii) the administration of the Loan Documents, and (iv) the enforcement
of the Loan Documents; and reimburse the Banks for all out-of-pocket expenses
(including reasonable fees and expenses of legal counsel) in connection with the
enforcement of the Loan Documents.
(b) In addition to the payment of the foregoing expenses, Borrower
hereby agrees to indemnify, protect and hold the Agent, each Bank and any holder
of the Notes and the officers, directors, employees, agents, affiliates and
attorneys of the Agent, each Bank and such holder (collectively, the
"INDEMNITEES") harmless from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and
disbursements of any kind or nature, including reasonable fees and expenses of
legal counsel, and including legal fees and settlement costs whether or not the
transaction contemplated hereby is consummated, which may be imposed on,
incurred by, or asserted against such Indemnitee by Borrower or other third
parties and arise out of or relate to this Agreement or the other Loan Documents
or any other matter whatsoever related to the transactions contemplated by or
referred to in this Agreement or the other Loan Documents; provided, however,
that Borrower shall have no obligation to an Indemnitee hereunder to the extent
that the liability incurred by such Indemnitee has been determined by a court of
competent jurisdiction to be the result of gross negligence or willful
misconduct of such Indemnitee.
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<PAGE>
XII.9 SURVIVAL OF WARRANTIES AND CERTAIN AGREEMENTS. All agreements,
---------------------------------------------
representations and warranties made or deemed made herein shall survive the
execution and delivery of this Agreement, the making of the Loans hereunder and
the execution and delivery of the Notes. Notwithstanding anything in this
Agreement or implied by law to the contrary, the agreements of Borrower set
forth in Sections 2.5(d), 2.7(b), 2.9, 2.10 and 12.8 and the agreements of the
Banks set forth in Sections 11.1, 11.5 and 12.7 shall survive the payment of the
Loans and the termination of this Agreement. This Agreement shall remain in full
force and effect until the latest to occur of the termination of the Aggregate
Revolving Loan Commitment or the repayment in full of all amounts owed by
Borrower under any Loan Document.
XII.10 SEVERABILITY. The invalidity, illegality or unenforceability in
------------
any jurisdiction of any provision in or obligation under this Agreement, the
Notes or other Loan Documents shall not affect or impair the validity, legality
or enforceability of the remaining provisions or obligations under this
Agreement, the Notes or other Loan Documents or of such provision or obligation
in any other jurisdiction.
XII.11 BANKS' OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF BANKS' RIGHTS.
---------------------------------------------------------------
The obligation of each Bank hereunder is several and not joint and no Bank shall
be the agent of any other (except to the extent the Agent is authorized to act
as such hereunder). No Bank shall be responsible for the obligation or
commitment of any other Bank hereunder. In the event that any Bank at any time
should fail to make a Loan as herein provided, the other Banks, or any of them
as may then be agreed upon, at their sole option, may make the Loan that was to
have been made by the Bank so failing to make such Loan. Nothing contained in
any Loan Document and no action taken by Agent or any Bank pursuant hereto or
thereto shall be deemed to constitute Banks to be a partnership, an association,
a joint venture or any other kind of entity. The amounts payable at any time
hereunder to each Bank shall be a separate and independent debt, and, subject to
the terms of this Agreement, each Bank shall be entitled to protect and enforce
its rights arising out of this Agreement and it shall not be necessary for any
other Bank to be joined as an additional party in any proceeding for such
purpose.
XII.12 NO FIDUCIARY RELATIONSHIP. No provision in this Agreement or in
-------------------------
in any of the other Loan Documents and no course of dealing between the parties
shall be deemed to create any fiduciary duty by Agent or any Bank to Borrower.
XII.13 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. BORROWER, EACH
----------------------------------------------
SUBSIDIARY GUARANTOR, THE AGENT AND EACH BANK HEREBY CONSENTS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE EASTERN DISTRICT
OF PENNSYLVANIA AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING
OUT OF OR RELATING TO THE NOTES, THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS MAY
BE LITIGATED IN SUCH COURTS. EACH PARTY TO THIS AGREEMENT ACCEPTS FOR ITSELF AND
IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE
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<PAGE>
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT, SUCH
NOTE, OR SUCH OTHER LOAN DOCUMENT.
XII.14 WAIVER OF JURY TRIAL. BORROWER, EACH SUBSIDIARY GUARANTOR, THE
--------------------
AGENT AND EACH BANK HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE
LOAN DOCUMENTS, OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS AGREEMENT AND THE LENDER/BORROWER RELATIONSHIP ESTABLISHED HEREBY. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS
TRANSACTION, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH
OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. BORROWER, EACH
SUBSIDIARY GUARANTOR, THE AGENT AND EACH BANK ACKNOWLEDGE THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO THE TRANSACTION, THAT EACH HAS ALREADY RELIED ON THE
WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON
THE WAIVER IN THEIR RELATED FUTURE DEALINGS. BORROWER, EACH SUBSIDIARY
GUARANTOR, AGENT AND EACH BANK FURTHER WARRANTS AND REPRESENTS THAT EACH HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, AND THE WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT,
THE LOAN DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE
LOANS. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
XII.15 COUNTERPARTS; EFFECTIVENESS. This Agreement and any amendment
---------------------------
hereto or waiver hereof may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement and any amendments
hereto or waivers hereof shall become effective when the Agent shall have
received signed counterparts or notice by telecopy of the signature page that
the counterpart has been signed and is being delivered to the Agent or facsimile
that such counterparts have been signed by all the parties hereto or thereto.
XII.16 USE OF DEFINED TERMS. All words used herein in the singular or
--------------------
plural shall be deemed to have been used in the plural or singular where the
context or construction so requires. Any defined term used in the singular
preceded by "any" shall be taken to indicate any number of the members of the
relevant class.
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<PAGE>
[SIGNATURE PAGE TO CREDIT AGREEMENT]
IN WITNESS WHEREOF, Borrower, the Subsidiary Guarantors, and the Banks
have caused this Agreement to be executed by their proper corporate officers
thereunto duly authorized as of the day and year first above written.
ICF KAISER INTERNATIONAL, INC.
By:____________________________
Title:
CLEMENT INTERNATIONAL
CORPORATION CYGNA GROUP, INC.
By:______________________________ By:____________________________
Title: Title:
EXCELL DEVELOPMENT
HENRY J. KAISER COMPANY CONSTRUCTION, INC.
By:______________________________ By:____________________________
Title: Title:
ICF INFORMATION TECHNOLOGY,
INC. ICF INCORPORATED
By:______________________________ By:____________________________
Title: Title:
ICF KAISER ENGINEERS ICF KAISER ENGINEERS
CORPORATION (CALIFORNIA) CORPORATION
By:______________________________ By:____________________________
Title: Title:
ICF KAISER ENGINEERS ICF KAISER ENGINEERS
MASSACHUSETTS, INC. GROUP, INC.
By:______________________________ By:____________________________
Title: Title:
ICF KAISER GOVERNMENT
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<PAGE>
[SIGNATURE PAGE TO CREDIT AGREEMENT]
PROGRAMS, INC. ICF KAISER ENGINEERS, INC.
By:______________________________ By:____________________________
Title: Title:
ICF KAISER HOLDINGS
UNLIMITED, INC. ICF KAISER HANFORD COMPANY
By:______________________________ By:____________________________
Title: Title:
ICF RESOURCES INCORPORATED ICF LEASING CORPORATION, INC.
By:______________________________ By:____________________________
Title: Title:
KE SERVICES CORPORATION KE LIVERMORE, INC.
By:______________________________ By:____________________________
Title: Title:
KAISER ENGINEERS AND KAISER ENGINEERS INTERNATIONAL,
CONSTRUCTORS, INC. INC.
By:______________________________ By:____________________________
Title: Title:
SYSTEMS APPLICATIONS INTERNATIONAL, TUDOR ENGINEERING COMPANY
INC.
By:______________________________ By:____________________________
Title: Title:
CYGNA CONSULTING ENGINEERS AND
PCI OPERATING COMPANY, INC. PROJECT MANAGEMENT, INC.
By:______________________________ By:____________________________
Title: Title:
ICF KAISER SYSTEMS, INC. ICF KAISER/GEORGIA WILSON, INC.
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<PAGE>
[SIGNATURE PAGE TO CREDIT AGREEMENT]
By:______________________________ By:____________________________
Title: Title:
GLOBAL TRADE & INVESTMENT, INC. ICF KAISER ENGINEERS PACIFIC,
INC.
By:______________________________ By:____________________________
Title: Title:
EDA, INCORPORATED ICF KAISER REMEDIATION COMPANY
By:______________________________ By:____________________________
Title: Title:
ICF KAISER OVERSEAS ENGINEERING, ICF KAISER EUROPE, INC.
INC.
By:______________________________ By:____________________________
Title: Title:
ICF KAISER NETHERLANDS B.V.
By:______________________________
Title:
FC 1-8-3-16 CORESTATES BANK, N.A.,
1339 Chestnut Street, 3rd Floor as a Bank and as Agent
Philadelphia, PA 19101-7618
By:____________________________
Title:
7729 Leesburg Pike, Suite 500 SIGNET BANK
Falls Church, VA 22043
By:____________________________
Title:
World Trade Center NATIONAL BANK OF CANADA, a
401 East Pratt Street, Suite 631 Canadian Chartered Bank
-66-
<PAGE>
[SIGNATURE PAGE TO CREDIT AGREEMENT]
Baltimore, MD 21202
By:____________________________
Title:
By:____________________________
Title:
100 Federal Street BANKBOSTON, N.A.
Mail Code: 01-09-06
Boston, MA 02110 By:____________________________
Title:
-67-
<PAGE>
EXHIBIT A
COMMITMENTS
<TABLE>
<CAPTION>
Commitment Amount Percentage
<S> <C> <C>
CoreStates Bank, N.A. $20,000,000 30.769%
Signet Bank $15,000,000 23.077%
National Bank of Canada $15,000,000 23.077%
BankBoston, N.A. $15,000,000 23.077%
</TABLE>
<PAGE>
SCHEDULE 2.4(e)
<TABLE>
<CAPTION>
Indebtedness for Borrowed
Money to EBITDA Ratio Base Rate Margin LIBO Rate Margin
- --------------------- ---------------- ----------------
<S> <C> <C>
Less than 5x 0 1-1/2%
Equal to or greater than 5x 1/2% 2%
but less than 5-1/2x
Equal to or greater than 5-1/2x 3/4% 2-1/4%
but less than 6x
Equal to or greater than 6x 1% 2-1/2%
</TABLE>
<PAGE>
Exhibit No. 10(a)(1)
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment dated as of March 12, 1998 (the "Amendment") to the
Amended and Restated Credit Agreement, dated as of December 3, 1997, (the
"Credit Agreement"), is entered into by and among ICF Kaiser International, Inc.
("Borrower"), a Delaware corporation, each of its subsidiaries signatories
hereto (each a "Subsidiary Guarantor" and collectively the "Subsidiary
Guarantors"), the banking institutions signatories hereto (each, a "Bank" and
collectively, the "Banks") and CoreStates Bank, N.A., as agent for the Banks
under this Credit Agreement (in such capacity, the "Agent").
WITNESSETH
- ----------
WHEREAS, Borrower, each Subsidiary Guarantor, the Banks and the Agent are
parties to an Amended and Restated Credit Agreement, dated as of December 3,
1997 (the "Credit Agreement"), whereby the Banks have agreed to provide a
revolving credit facility for loans and for letters of credit;
WHEREAS, the Borrower and the Subsidiary Guarantors have requested, and the
Banks and the Agent have agreed, to amend the Credit Agreement in certain
respects, as provided herein.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Amendment to Credit Agreement.
-----------------------------
a. The definition of "EBITDA" in Section 1.1 of Article I is hereby
amended in order to add a new subsection (h), and such definition, as so
amended, shall read in its entirety as follows:
"EBITDA" shall mean, for any period, Consolidated Net Income plus the
sum of (a) Consolidated Interest Expense, (b) income tax expense, (c)
depreciation expense, (d) amortization expense, (e) extraordinary or
unusual losses or other losses not incurred in the ordinary course of
business included in the calculation of net income, (f) any non-cash charge
against net income required to be recognized in connection with the
issuance of capital stock to employees (whether upon lapse of vesting
restrictions, exercise of employee options or otherwise), (g) any non-cash
charge against net income required to be recognized in connection with
employee benefit plans, and (h) for the fourth fiscal quarter of 1997, an
amount not to exceed $9.3 million in connection with the four nitric acid
projects of the Borrower or any Subsidiary set forth in Schedule 1.1(a)
hereto, less extraordinary or unusual gains or other gains not incurred in
the ordinary course of business included in the calculation of net income,
in each case to the extent such items are taken into account in determining
Consolidated Net Income.
b. The definition of "Investment" in Section 1.1 of Article I is hereby
amended in order to add a new clause to the end of subsection (v) of such
definition, and such subsection (v), as so amended, shall read in its entirety
as follows:
(v) investments in the form, or out of the net proceeds of the sale
(other than to a Subsidiary or employee stock ownership plan of Borrower)
of, Capital Stock of Borrower, subject to the conditions set forth in
Section 7.6(d).
c. Section 6.1 of Article VI is hereby amended in order to add a new
subsection (m) together with a new Schedule 6.1(m), and such new subsection (m)
shall read in its entirety as follows and the new Schedule 6.1(m) is attached
hereto:
6.1 Financial Statements and Reports. Furnish to the Agent and each
--------------------------------
of the Banks the following financial information:
<PAGE>
(m) Nitric Acid Project Monthly Reports. Within 30 calendar days
after the end of any month and until all of the four nitric acid projects
of the Borrower or any Subsidiary set forth in Schedule 1.1(a) hereto are
completed, a nitric acid project monthly report for the immediately
preceding calendar month containing information with respect to the actual
cost to complete and cash flows of each nitric acid project set forth in
Schedule 1.1(a) hereto; in each such report, the actual information
required to be contained therein shall be compared to the projected cost to
complete and cash flows for each such nitric acid project as set forth in
Schedule 1.1(a).
d. Section 7.6(d) of Article VII is hereby amended in order to specify
that the dollar limitations apply to cash used for such Investments and
Acquisitions and to add four new clauses thereto, and such subsection (d) as so
amended, shall read in its entirety as follows:
7.6 Acquisitions and Investments.
----------------------------
Make any Investments in any Person, except:
(d) Borrower or any Subsidiary may make and own Investments in a
Person or acquire all or substantially all of the assets or Capital Stock
of any Person (an "Acquisition") provided that the aggregate amount of all
such Acquisitions after the date hereof shall not exceed $5,000,000 cash in
the aggregate and any single Acquisition shall not exceed $2,000,000 cash;
provided, further, (i) that the Borrower shall be required to obtain the
consent of the Required Banks for all proposed Acquisitions with a Total
Consideration greater than $2,000,000 (in cash) and $4,000,000 (in cash
and/or in the form of Capital Stock or any other consideration) (each such
Acquisition a "Large Acquisition"), (ii) that no later than 30 calendar
days prior to the closing on any proposed Large Acquisition, the Borrower
shall request such consent and shall provide the Agent and the Banks with
an information package on any such proposed Large Acquisition containing a
synopsis of the proposed Large Acquisition, actual and projected financial
information for the proposed Large Acquisition (three years historical and
five years projected), and pro forma covenant compliance under the Credit
Agreement assuming closing on such Large Acquisition, (iii) that for the
purposes of this subsection (d), Total Consideration shall include the
purchase price plus assumed liabilities (including contingent liabilities)
of any Large Acquisition, and (iv) that the Agent and the Required Banks
shall act on each such request for consent within 15 calendar days from
receipt of such request from the Borrower.
2. Conditions Precedent. The amendment to the Credit Agreement contained in
--------------------
Section 1 hereof shall be effective upon satisfaction of the following
conditions precedent.
(a) Evidence of Authorization. The Banks shall have received copies
certified by the Secretary or Assistant Secretary of Borrower and each
Subsidiary Guarantor of all corporate or other action taken by such party to
authorize its execution and delivery and performance of this First Amendment and
the Loan Documents as amended hereby, together with such other related papers as
the Banks shall reasonably require.
(b) Documents. The Agent shall have received all certificates, instruments
and other documents then required to be delivered pursuant to any Loan
Documents, in each instance in form and substance reasonably satisfactory to the
Agent and the Banks.
(c) Fee. The Agent shall have received for the account of the Banks the
previously agreed to amendment fee.
(d) Other Agreements. Borrower and each Subsidiary Guarantor shall have
executed and delivered each other Loan Document required hereunder.
3. Representations and Warranties.
------------------------------
Page 2 of 5
<PAGE>
(a) The Borrower confirms the accuracy of the representations and
warranties made in Article 3 of the Credit Agreement as of the date originally
given and restates to the Banks such representations and warranties on and as of
the date hereof as if originally given on such date.
(b) The Borrower confirms that as of the date of this First Amendment,
there has been no litigation, administrative proceeding, investigation, business
development, or change in financial condition which could reasonably be expected
to have a material adverse effect on the business, operations, assets or
condition (financial or otherwise) of the Borrower or its Subsidiaries taken as
a whole.
4. Covenants.
---------
(a) The Borrower warrants to the Banks that the Borrower is in compliance
and has complied with all covenants, agreements and conditions in each Loan
Document on and as of the date hereof, that no Potential Default or Event of
Default has occurred and is continuing on the date hereof and that, upon the
consummation of the transactions contemplated hereby, no Potential Default or
Event of Default shall have occurred and be continuing.
(b) The Borrowers shall provide to the Agent and its representatives all
requested access and assistance as shall be reasonably necessary for such due
diligence review as the Agent shall determine is necessary or advisable,
including without limitation a collateral audit.
5. Effect of Agreement.
-------------------
This Agreement amends the Loan Documents only to the extent and in the
manner herein set forth, and in all other respects the Loan Documents are
ratified and confirmed.
6. Counterparts.
------------
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures hereto were upon
the same instrument.
7. Governing Law.
-------------
This Agreement and all rights and obligations of the parties hereunder
shall be governed by and be construed and enforced in accordance with the laws
of Pennsylvania without regard to principles of conflict of law.
IN WITNESS WHEREOF, the Borrower, the Subsidiary Guarantors, and the Banks
have caused this Agreement to be executed by their proper corporate officers
thereunto duly authorized as of the day and year first above written.
CORESTATES BANK, N.A. ICF KAISER INTERNATIONAL, INC.
By: /s/ John D. Brady By: /s/ Kenneth L. Campbell
-------------------------- ------------------------------
Name: John D. Brady Name: Kenneth L. Campbell
Title: Vice President Title: Executive Vice President and
Chief Financial Officer
FIRST UNION COMMERCIAL CORP. NATIONAL BANK OF CANADA
By: /s/ S. Kelley By: /s/ Robert A. Incorvati
-------------------------- ------------------------------
Name: S. Kelley Name: Robert A. Incorvati
Title: Vice President Title: Vice President
By: /s/ Michael E. Williams
------------------------------
Name: Michael E. Williams
Title: Vice President/Manager
Page 3 of 5
<PAGE>
BANKBOSTON, N. A.
By: /s/ W. J. Sherald
--------------------------
Name: W. J. Sherald
Title: Vice President
The Subsidiary Guarantors:
- --------------------------------------------------------------------------------
CLEMENT INTERNATIONAL CORPORATION
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
CYGNA CONSULTING ENGINEERS & PROJECT MANAGEMENT,
INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
CYGNA GROUP, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
EDA, INCORPORATED
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
EXCELL DEVELOPMENT CONSTRUCTION, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
GLOBAL TRADE & INVESTMENT, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
HENRY J. KAISER COMPANY
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
ICF INCORPORATED
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
ICF INFORMATION TECHNOLOGY, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
ICF KAISER ENGINEERS (CALIFORNIA) CORPORATION
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
ICF KAISER ENGINEERS CORPORATION
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
ICF KAISER ENGINEERS GROUP, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
ICF KAISER ENGINEERS MASSCAHUSETTS, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
ICF KAISER ENGINEERS PACIFIC, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
ICF KAISER ENGINEERS, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
ICF KAISER EUROPE, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
ICF KAISER GOVERNMENT PROGRAMS, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
Page 4 of 5
<PAGE>
- --------------------------------------------------------------------------------
ICF KAISER HANFORD COMPANY
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
ICF KAISER HOLDINGS UNLIMITED, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
ICF KAISER NETHERLANDS B.V.
By its Managing Directors
ICF KAISER HOLDINGS UNLIMITED, INC.
Represented by: Michael K. Goldman, President
By: /s/ Michael K. Goldman
----------------------
ICF KAISER ENGINEERS EASTERN EUROPE, INC.
Represented by: Paul Weeks, II, Director & Secretary
By: /s/ Paul Weeks, II
------------------
- --------------------------------------------------------------------------------
ICF KAISER OVERSEAS ENGINEERING, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
ICF KAISER REMEDIATION COMPANY
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
ICF KAISER SYSTEMS, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
ICF KAISER/GEORGIA WILSON, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
ICF LEASING CORPORATION, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
ICF RESOURCES INCORPORATED
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
KAISER ENGINEERS AND CONSTRUCTORS, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
KAISER ENGINEERS INTERNATIONAL, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
KE LIVERMORE, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
KE SERVICES CORPORATION
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
PCI OPERATING COMPANY, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
SYSTEMS APPLICATIONS INTERNATIONAL, INC.
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
TUDOR ENGINEERING COMPANY
Name: Timothy P. O'Connor
By: /s/ Timothy P. O'Connor Title: Assistant Treasurer
-----------------------
- --------------------------------------------------------------------------------
Page 5 of 5
<PAGE>
Exhibit 10(b)
________________________________________________________________________________
AMENDED AND RESTATED SECURITY AGREEMENT
among
ICF KAISER INTERNATIONAL, INC.,
CERTAIN SUBSIDIARIES THEREOF
and
CORESTATES BANK, N.A.
as Agent
December 3, 1997
________________________________________________________________________________
<PAGE>
AMENDED AND RESTATED SECURITY AGREEMENT
----------------------------------------
THIS AMENDED AND RESTATED SECURITY AGREEMENT, dated as of December 3, 1997
(this "SECURITY AGREEMENT"), is entered into by and among ICF KAISER
INTERNATIONAL, INC. ("ICF KAISER" or "BORROWER"), a Delaware corporation, each
of its subsidiaries signatories hereto (each, a "SUBSIDIARY GUARANTOR" and
collectively the "SUBSIDIARY GUARANTORS") and CORESTATES BANK, N.A., as agent
for the Banks under the Credit Agreement referred to below (in such capacity,
the "AGENT"). ICF Kaiser and the Subsidiary Guarantors are sometimes referred
to herein collectively as the "DEBTORS" and individually as a "DEBTOR."
WITNESSETH:
----------
WHEREAS, ICF Kaiser, the Subsidiary Guarantors, the Agent and certain
financial institutions (the "Banks") are parties to a Credit Agreement, dated as
of May 6, 1996, as amended and restated pursuant to the Amended and Restated
Credit Agreement dated as of the date hereof (the "Credit Agreement"), providing
to ICF Kaiser a revolving credit facility for loans and letters of credit, which
loans and letters of credit are secured under and pursuant to a Security
Agreement, dated as of May 6, 1996, between the Debtors and the Agent, as
amended by the First Amendment dated as of December 17, 1996 and the Second
Amendment dated as of June 19, 1997 (the "1996 Security Agreement");
WHEREAS, it is a condition to the execution and delivery of the Credit
Agreement that this Security Agreement be executed and delivered; and
WHEREAS, ICF Kaiser, the Subsidiary Guarantors and the Agent desire to
amend the 1996 Security Agreement to add additional Subsidiary Guarantors and as
otherwise provided herein, and to restate the 1996 Security Agreement as so
amended.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound hereby, the parties hereto agree as follows:
1. DEFINITIONS.
(a) As used herein the following terms shall have the meanings
indicated:
"ACCOUNTS" shall mean all rights to payment for goods sold or leased
or for services rendered, whether or not such rights have been earned by
performance.
"AGENT" has the meaning set forth in the preliminary paragraph hereof,
and including any successor from time to time serving as "Agent" under the
Credit Agreement.
<PAGE>
"BLOCKED ACCOUNT" shall have the meaning assigned to such term in
Section 4(a) hereof.
"CASH CONCENTRATION ACCOUNTS" shall mean, collectively, account no.
1412209809 in the name of ICF Kaiser International, Inc., account no. 1412184330
in the name of ICF Kaiser International, Inc., and such other account or
accounts as ICF Kaiser and the Agent shall from time to time agree, each
maintained with CoreStates Bank, N.A. at its office at 1345 Chestnut Street,
Philadelphia, Pennsylvania, but under the sole control and dominion of the
Secured Party.
"CHATTEL PAPER" shall have the meaning assigned to such term under the
Uniform Commercial Code.
"COLLATERAL" shall mean all now-existing or hereafter acquired or
arising (i) Accounts, (ii) General Intangibles, Chattel Paper, Contracts and
Instruments, (iii) guarantees of any Accounts and all other security held for
the payment or satisfaction thereof, (iv) balance of any deposit, agency or
other account with any Bank, (v) Inventory, (vi) Equipment, (vii) Pledged
Securities and the certificates representing the Pledged Securities, (viii)
Patents and Trademarks, (ix) Discounted Treasuries delivered by the Debtors to
the Agent pursuant to the Credit Agreement, (x) books, records and other
property at any time evidencing or related to the foregoing, together with all
products and Proceeds (including insurance Proceeds) of any of the foregoing.
"CONTRACTS" shall have the meaning assigned to such term under the
Uniform Commercial Code.
"CREDIT AGREEMENT" shall mean the Credit Agreement among the Debtors,
the Agent and the Banks, as hereafter amended from time to time.
"EQUIPMENT" shall have the meaning assigned to such term under the
Uniform Commercial Code.
"GENERAL INTANGIBLES" shall have the meaning assigned to such term
under the Uniform Commercial Code.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" shall mean generally
accepted accounting principles as in effect in the United States from time to
time, consistently applied.
"GOVERNMENT ACCOUNTS" shall mean Accounts the account debtor of which
is the Government of the United States or any agency, department or
instrumentality thereof.
<PAGE>
"INSTRUMENTS" shall have the meaning assigned to such term under the
Uniform Commercial Code as in effect in the Commonwealth of Pennsylvania.
"INVENTORY" shall have the meaning assigned to such term under the
Uniform Commercial Code, and in any event, including all inventory, merchandise,
goods and other personal property that are held by or on behalf of a Person for
sale or lease or to be furnished under a contract of service or which gave rise
to any Account, including returned goods.
"LIEN" shall mean any lien, mortgage, security interest, chattel
mortgage, pledge or other encumbrance (statutory or otherwise) of any kind
securing satisfaction or performance of an obligation, including any agreement
to give any of the foregoing, any conditional sales or other title retention
agreement, any lease in the nature thereof, and the filing of or the agreement
to give any financing statement under the Uniform Commercial Code of any
jurisdiction or similar evidence of any encumbrance, whether within or outside
the United States.
"LOCKBOX ACCOUNT" shall have the meaning assigned to such term in
Section 4(a) hereof.
"OBLIGATIONS" shall mean all now existing or hereafter arising debts,
obligations, covenants, and duties of payment or performance of every kind,
matured or unmatured, direct or contingent, owing, arising, due, or payable to
the Banks or the Agent by or from ICF Kaiser or the Subsidiary Guarantors
arising out of the Credit Agreement or any other Loan Document, including,
without limitation, all obligations of ICF Kaiser to repay principal of and
interest on all the Revolving Credit Loans, to make reimbursements or payments
with respect to Letters of Credit, and to pay interest, fees, costs, charges,
expenses, professional fees, and all sums chargeable to the Debtors under the
Loan Documents, whether or not evidenced by any note or other instrument and all
obligations of each Subsidiary Guarantor in guaranty of the obligations of
Borrower.
"PATENTS AND TRADEMARKS" shall mean patents and trademarks owned,
directly or indirectly, by a Debtor.
"PLEDGED SECURITIES" shall mean all of the capital stock or other
ownership interests of those domestic Subsidiaries held directly by the Debtors
and 65% of the capital stock or other ownership interests of those foreign
Subsidiaries held directly by the Debtors, except ICF Kaiser Brazil Holdings,
Inc.
-3-
<PAGE>
Set forth in Schedule C hereto is a listing of each of the Pledged Securities
existing on the date hereof.
"PREVAILING INTEREST RATE" as of any date shall mean the highest rate
of interest then payable by the Debtors under the Credit Agreement.
"PROCEEDS" shall have the meaning assigned to such term under the
Uniform Commercial Code as in effect in the Commonwealth of Pennsylvania.
"SECURED PARTY" means the Agent.
"SELECTED GOVERNMENT CONTRACTS" shall mean all contracts between a
Debtor and the government of the United States or any department, agency or
instrumentality thereof the terms of which provide for gross payments to such
Debtor equal to or in excess of $1 million and other such contracts (without
regard to the amount of gross payments) which have been designated by ICF Kaiser
as "Selected Government Contracts."
"SUBSIDIARIES" shall mean as to any Person, (i) a corporation of which
shares of stock or other ownership interests having ordinary voting power (other
than stock having such power only by reason of the happening of a contingency)
to elect a majority of the board of directors or other managers of such
corporation are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person and (ii) any limited liability company or partnership in which
such Person, directly or indirectly, owns at least a majority of the ownership
interests having ordinary voting power, or the management of which is otherwise
controlled, directly or indirectly, through one or more intermediaries by such
Person, or both.
"UNIFORM COMMERCIAL CODE" shall mean the Uniform Commercial Code as in
effect from time to time in the Commonwealth of Pennsylvania.
(b) Capitalized terms used herein and not otherwise defined herein
shall have their respective meanings assigned in the Credit Agreement.
2. GRANT OF SECURITY.
To secure the payment, promptly when due, and the punctual performance
of all of the Obligations, each of the Debtors hereby pledges and assigns to the
Secured Party, and grants to the Secured Party and agrees that the Secured Party
-4-
<PAGE>
shall have, for itself and the ratable benefit of the Banks, a general
continuing lien upon and security interest in all its Collateral, which lien and
security interest shall be a general continuing first priority lien upon and
security interest in such Collateral.
3. BOOKS AND RECORDS.
The Debtors shall faithfully keep complete and accurate books and
records and make all necessary entries therein to reflect the amounts, identity
of account debtors and all events and transactions giving rise to the
Collateral and all payments, credits and adjustments applicable thereto, shall
keep the Secured Party fully and accurately informed as to the locations of all
such books and records related to the Collateral and shall permit the Secured
Party and its agents to have such access to them and to any other records
pertaining to the Debtors' business as the Secured Party may request from time
to time.
4. COLLECTION OF ACCOUNTS; ASSIGNMENT OF CLAIMS ACT
(a) Until otherwise notified by the Secured Party, the Debtors may
collect all amounts due on the Collateral from the respective account debtors or
obligors liable thereon, but the Proceeds so collected by the Debtors shall be
held by the Debtors in trust for the Secured Party. Each Debtor shall collect
such amounts by instructing the account debtor thereof to make payment either to
a Cash Concentration Account or to a lockbox account ("Lockbox Account") or
blocked deposit account ("Blocked Account") maintained with a bank that has
entered into a letter agreement with such Debtor and the Secured Party (a
"Blocked Account Agreement") in substantially the form of Exhibit A attached
hereto. After the occurrence of a Potential Default or an Event of Default, the
Secured Party may, and upon direction of the Required Banks shall, upon five
Business Days notice to ICF Kaiser, terminate the authority hereby given to the
Debtors to make such collections and, acting if it so chooses in the name of any
of the Debtors, collect any amounts due on the Collateral directly or through an
agent, sell, assign, compromise, discharge or extend the time for payment of any
Account or other Collateral, institute legal action for the collection of any
Account or other Collateral and do all acts and things necessary or incidental
thereto, and the Debtors hereby ratify all that the Secured Party shall lawfully
do under the authority hereby granted to it. After the occurrence of a
Potential Default or an Event of Default, the Secured Party may at any time, and
upon direction of the Required Banks shall, upon five Business Days notice to
ICF Kaiser, notify any account debtor on any Account or obligor with respect to
any other Collateral that the Collateral
-5-
<PAGE>
has been assigned to the Secured Party and is to be paid directly to the Secured
Party. Alternatively, at its election the Secured Party may, and upon direction
of the Required Banks shall, after the occurrence of a Potential Default or an
Event of Default, require the Debtors to, and in such event the Debtors at their
sole expense will, notify account debtors and obligors that payments are
thenceforth to be made directly to the Secured Party. After the occurrence of a
Potential Default or an Event of Default, the Debtors shall not, without the
written consent of the Secured Party at the direction of the Required Banks in
each case, compromise, discharge, extend the time for payment of or otherwise
grant any indulgence or allowance with respect to any Account or other
Collateral.
(b) The Debtors represent and warrant that (i) Schedule A contains a
true and correct listing of all Selected Government Contracts in effect on the
date hereof and (ii) as of the date hereof, the Selected Government Contracts
comprise at least seventy-five percent (75%) of the aggregate dollar amount of
all those Government Accounts of the Debtors for which invoices have been
issued. The Debtors have, as of the date hereof, provided to the Secured Party
executed copies of all notices and instruments (forms of which are attached
hereto as Exhibit B) necessary to allow the Secured Party to cause its security
interest in all Collateral arising from or related to Selected Government
Contracts to be entitled to the rights and benefits provided by compliance with
the Federal Assignment of Claims Act and any regulations thereunder. If any
Debtor enters into any Selected Government Contract subsequent to the date
hereof, the Debtor shall, within 45 days of the end of the calendar quarter
within which such Debtor entered into such Selected Government Contract, notify
the Secured Party in writing of such Selected Government Contract and execute
and deliver to the Secured Party all notices and instruments of the type
described in the preceding sentence that pertain to such new Selected Government
Contract. Notwithstanding the provisions of subparagraph (a) of this Section 4,
the Secured Party may, in its sole discretion, and upon direction of the
Required Banks shall, upon five Business Days notice to the Debtors, deliver or
file all such documentation relating to Selected Government Contracts with the
appropriate government officers and take all such other actions as may be
necessary to cause the interest of the Secured Party in such Selected Government
Contracts to satisfy the requirements of the Federal Assignment of Claims Act
and any regulations thereunder, and the Debtors will take all such additional
actions requested by the Secured Party to cause such result. No Debtor shall
execute or deliver any notice or instrument of the type described in this
paragraph (b) which names as assignee any party other than the Secured Party.
-6-
<PAGE>
(c) If any of the Collateral is or becomes evidenced by a promissory
note, draft, trade acceptance, Chattel Paper or Instrument, the Debtors will
promptly deliver the same to the Secured Party appropriately endorsed to the
Secured Party's order. Regardless of the form of such endorsement, each Debtor
hereby waives presentment, demand, notice of dishonor, protest and notice of
protest and all other notices with respect thereto. Upon obtaining knowledge
thereof, the Debtors will promptly notify the Secured Party of (i) any material
adverse change in the financial condition of any account debtor on a material
amount of the Accounts, or in the collectability of a material amount of the
Accounts or other Collateral, and (ii) all material claims, setoffs, rejections,
returns and adjustments which may result in a reduction of the liability of an
account debtor on a material amount of the Accounts included in the Collateral.
5. DEPOSIT OF PLEDGED SECURITIES; REREGISTRATION OF SHARES; RESERVATION
OF VOTING RIGHTS
(a) To perfect the security interest of the Secured Party in and to
the Pledged Securities, as provided herein, the Debtors have deposited with the
Secured Party such Pledged Securities as are in certificated form, in each case
endorsed in blank. At any time and from time to time the Secured Party may
cause all or any of the Pledged Securities to be transferred into its name or
into the name of its nominee or nominees.
(b) At any time after the occurrence and during the continuation of
an Event of Default, the Secured Party shall be entitled to exercise any and all
voting power with respect to the Pledged Securities and shall exercise such
power as directed by the Banks. At all other times each Debtor shall be entitled
to exercise as it thinks fit, but in a manner not inconsistent with the
provisions of the Credit Agreement, all voting power with respect to the Pledged
Securities.
6. ADDITIONAL COLLATERAL
In case any dividend of stock or other ownership interest shall be
declared on any of the Pledged Securities, or any shares of stock or fractions
thereof shall be issued pursuant to any stock split involving any of the Pledged
Securities, or any distribution of securities shall be made on any of the
Pledged Securities, whether pursuant to any recapitalization or reclassification
of the capital of any of the Debtors, a reorganization thereof, or otherwise,
the shares or other securities so distributed shall be delivered to the Secured
Party.
7. TITLE TO COLLATERAL.
-7-
<PAGE>
(a) Each Debtor has acquired or shall acquire absolute and exclusive
title to each and every item or unit of the Collateral attributable to such
Debtor free and clear of all Liens, except Permitted Liens as provided under the
Credit Agreement, and each Debtor shall warrant and defend its title to the
Collateral, subject to the rights of the Secured Party, against the claims and
demands of all persons whomsoever.
(b) The Secured Party may, at its sole election but without
obligation to do so, discharge any Lien not permitted under the Credit Agreement
and all expenses incurred by the Secured Party in so doing, together with
interest thereon at the Prevailing Interest Rate, shall be added to the
Obligations and shall be payable by the Debtors on demand.
8. TAXES AND LIENS.
Except for Permitted Liens, the Debtors shall immediately notify the
Secured Party in the event there ever arises against any of the Collateral any
lien, assessment, tax or other liability, whether or not entitled to priority
over the Secured Party's security interest hereunder. In any such event, whether
or not such notice is given, the Secured Party shall have the right (but shall
be under no obligation) to pay any tax or other liability of any of the Debtors
deemed by the Secured Party in good faith to affect the Secured Party's
interests hereunder. The Debtors shall repay to the Secured Party on demand all
sums which the Secured Party shall have paid under this section in respect of
taxes or other liabilities of any of the Debtors, with interest thereon at the
Prevailing Interest Rate, and the Debtors' liability to the Secured Party for
such repayment with interest shall be included in the Obligations. The Secured
Party shall be subrogated to the extent of any such payment by it to all the
rights and liens of the payee against the Debtors' assets. The Debtors shall
furnish to the Secured Party from time to time upon the Secured Party's request
proof satisfactory to the Secured Party of the making of all payments or
deposits required by applicable law to be made with respect to amounts withheld
by the Debtors from wages and salaries of employees and amounts contributed by
the Debtors on account of federal, state or other income or wage taxes and
amounts due under the Federal Insurance Contributions Act or the Federal
Unemployment Tax Act or any similar legislation.
9. SIGNIFICANT LOCATIONS; NAME.
(a) Each Debtor represents and warrants to the Secured Party that
none of the books and records relating to the Collateral is or will be located
or used at any location other than its respective locations identified in
Schedule B attached hereto, and that none of the Inventory or Equipment owned by
such Debtor (other than de minimis amounts) is or will be located at any
location other than its respective locations identified in Schedule B attached
hereto. The Debtors shall notify the Secured Party in writing prior to any
change in location of any such books and
-8-
<PAGE>
records. If any of the Collateral or any of the Debtors' records concerning any
of the Collateral are at any time to be located on premises leased by any
Debtor, or any premises owned by any Debtor subject to a mortgage or other lien,
the Debtors shall, at the request of the Secured Party, obtain and deliver to
the Secured Party, prior to the delivery of any such Collateral or books or
records to such premises, an agreement in form satisfactory to the Secured Party
waiving the landlord's, mortgagee's or other lienholder's right to enforce
against the Collateral or the Debtors' records concerning the same and assuring
the Secured Party's access to such Collateral and books and records to
facilitate the Secured Party's exercise of its rights to take possession
thereof. The location of each Debtor's chief executive office and, if different,
the location of each Debtor's principal place of business are set forth in
Schedule B, and the Debtors agree to provide the Secured Party prior written
notice of any change of any such chief executive office or principal place of
business of the Debtors. Debtors agree to use their good faith efforts to obtain
within 90 days of the date hereof from the landlord of the premises including
the chief executive office of ICF Kaiser a waiver of such landlord's rights to
enforce any interest against the Collateral.
(b) Each Debtor represents and warrants that at no time during the
past five years has such Debtor been known by or used any other name, including
any trade or fictitious name, except as disclosed in Schedule B. No Debtor
shall change its name without giving the Secured Party at least 30 days prior
written notice of such change.
10. FURTHER ASSURANCES; WAIVER OF PREEMPTIVE RIGHTS; MAINTENANCE OF
COLLATERAL.
(a) The Debtors shall execute and deliver to the Secured Party from
time to time all such other agreements, instruments and other documents
(including, without limitation, all requested financing and continuation
statements and government contract notices and all requested documents relating
to the creation, perfection or protection of liens and security interests in
jurisdictions outside of the United States) and do all such other and further
acts and things as the Secured Party may (and, upon the direction of the
Required Banks, shall) reasonably request in order further to evidence or carry
out the intent of this Agreement or to perfect and protect the liens and
security interests created hereby or intended so to be. In addition, if an
Event of Default or a Potential Default shall have occurred and be continuing,
at the request of the Secured Party each Debtor will execute and deliver to the
Secured Party all notices or instruments, and take all such other actions, as
may be required in order that the security interest of the Secured Party in all
Government Accounts and the Proceeds thereof shall satisfy the requirements of
the Federal Assignment of Claims Act and any regulations thereunder.
(b) The Debtors, for the Debtors and their respective successors and
assigns, do hereby irrevocably waive and release all preemptive, first-refusal
and other similar rights of the Debtors to purchase any or all of the Pledged
Securities upon any sale thereof by the Secured
-9-
<PAGE>
Party hereunder, whether such right to purchase arises under the Certificate or
Articles of Incorporation or any By-Law of the issuer of the Pledged Securities,
by operation of law or otherwise.
(c) The Debtors will maintain the Collateral in good condition and
repair, will give it suitable preventative maintenance in the case of machinery
and equipment, and will pay the cost of all repairs to or maintenance of the
same which may be required from time to time. The Debtors will not do or permit
to be done anything which might impair the value of any item of the Collateral
owned by any Debtor or the security intended to be afforded hereby. The Debtors
will immediately notify the Secured Party and the Banks of any event causing any
material loss or depreciation in value of the Collateral and of the extent of
such loss or depreciation. The Debtors, upon the Secured Party's request, will
permit the Secured Party at any time and from time to time, through its officers
or other agents, to have access to the Collateral for the purpose of inspecting
or, after an Event of Default, assembling and removing the same.
11. DEFAULT AND REMEDIES.
(a) The Debtors shall be in default hereunder upon the occurrence of
an Event of Default (as defined in the Credit Agreement).
(b) Except as otherwise provided in the Credit Agreement with respect
to an Event of Default occurring under Section 10.1(d) thereof, upon the
occurrence of any Event of Default and so long as the same shall be continuing,
the Secured Party may at its option exercise from time to time any and all
rights and remedies available to it under the Uniform Commercial Code or
otherwise, including the right to foreclose or otherwise realize upon any of the
Collateral and to dispose of any of the Collateral at one or more public or
private sales or other proceedings, and the Debtors agree that any of the Banks,
or the nominee of any Bank, may become the purchaser at any such sale or sales.
The Debtors agree that ten (10) days shall be reasonable prior notice of the
date of any public sale or other disposition of all or any part of the
Collateral, or of the date on or after which any private sale or other
disposition of the same may be made. All rights and remedies granted the
Secured Party hereunder or under any other agreement between the Secured Party
and any of the Debtors shall be deemed concurrent and cumulative and not
alternative, and the Secured Party may proceed with any number of remedies at
the same time or at different times until all the Obligations are fully
satisfied. The exercise of any one right or remedy shall not be deemed a waiver
or release of or any election against any other right or remedy, and the Secured
Party may proceed against any of the Debtors and the Collateral and any other
collateral granted by any of the Debtors to the Secured Party under any other
agreement, all in any order and through any available remedies. A waiver on any
one occasion shall not be construed as a waiver or bar on any future occasion.
All property of any
-10-
<PAGE>
kind held at any time by the Secured Party as Collateral shall stand as one
general continuing collateral security for all the Obligations and may be
retained by the Secured Party as security until all the Obligations are fully
satisfied. The Debtors shall pay to the Secured Party on demand any and all
expenses (including reasonable attorneys' fees and legal expenses) which may
have been incurred by the Secured Party, with interest at the Prevailing
Interest Rate, in connection with the custody, preservation, use, operation,
preparation for sale or sale of any of the Collateral, the incurring of all of
which are hereby authorized to the extent the Secured Party deems the same
advisable. The Debtors' liability to the Secured Party for any such payment with
interest at the Prevailing Interest Rate shall be included in the Obligations.
The Proceeds of any Collateral received by the Secured Party at any time before
or after default, whether from a sale or other disposition of Collateral or
otherwise, or the Collateral itself, shall be applied to the payment in full or
in part of such of the Obligations and in such order and manner as the Secured
Party may elect (except as may be otherwise provided in the Credit Agreement),
and the Debtors shall remain liable for any deficiency. Each Debtor to the
extent of its rights in the Collateral waives and releases any right to require
the Secured Party or the Banks to collect any of the Obligations from any
particular Collateral or any other collateral then held by the Secured Party or
the Banks under any theory of marshalling of assets or otherwise.
(c) If at any time when the Secured Party shall determine to exercise
its rights to sell all or any part of the Pledged Securities pursuant to this
Agreement, such Pledged Securities or the part thereof to be sold shall not, for
any reason, be effectively registered under the Securities Act of 1933 (the
"Securities Act"), the Secured Party is hereby expressly authorized to sell such
Pledged Securities or such part thereof by private sale in such manner and under
such circumstances as the Secured Party may deem necessary or advisable in order
that such sale may legally be effected without such registration. Without
limiting the generality of the foregoing, in any such event the Secured Party:
(i) may proceed to make such private sale whether or not a registration
statement for the purpose of registering the Pledged Securities or such part
thereof shall have been filed under the Securities Act; (ii) may approach and
negotiate with a restricted number of potential purchasers to effect such sale;
and (iii) may restrict such sale to purchasers as to their number, nature of
business, level of sophistication and investment intention (including without
limitation, to purchasers each of whom will represent and agree to the
satisfaction of the Secured Party that such purchaser is purchasing for its own
account, for investment, and not with a view to the distribution or sale of such
Pledged Securities or part thereof), it being understood that the Secured Party
may require each Debtor, and each Debtor hereby agrees upon the written request
of the Secured Party, to cause: (i) a legend or legends to be placed on the
certificates to be delivered to such purchasers to the effect that the offering
and sale of the Pledged Securities represented thereby have not been registered
under the Securities Act and setting forth or referring to any required
restrictions on the transferability of such Securities; (ii) the issuance of
stop transfer instructions to such Debtor's own securities and an appropriate
notation to be made in the appropriate records of such Debtor; and (iii) to be
delivered to the purchasers a signed written agreement of such Debtor that such
purchasers will
-11-
<PAGE>
be entitled to the rights of the Secured Party under this Agreement. In
addition, it is understood that such purchasers may be required as a condition
of any such sale to furnish a signed written agreement that the Pledged
Securities will not be sold without registration or other compliance with the
requirements of the Securities Act. In the event of any such sale, each Debtor
hereby consents and agrees that neither the Secured Party nor any Bank will
incur any responsibility or liability for selling all or any part of the Pledged
Securities at a price which the Secured Party or the Banks may deem reasonable
under the circumstances, notwithstanding the possibility that a substantially
higher price might be realized if the sale were public and deferred until after
registration as aforesaid.
(d) In addition, if at any time when the Secured Party shall determine
to exercise its rights to sell all or any part of the Pledged Securities
pursuant to this Agreement, such transfer may not be effected without approval
of federal or state agencies or authorities, including without limitation
approval of the United States Department of Energy or the United States
Department of Defense or the Federal Trade Commission and the Department of
Justice under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, the
Secured Party is hereby expressly authorized to take all actions as may be
necessary to obtain such approvals and to sell such Pledged Securities in such
manner and under such circumstances as the Secured Party may deem necessary or
advisable in order that such sale may legally be effected. In the event of any
such sale, each Debtor hereby consents and agrees that neither the Secured Party
nor any Bank will incur any responsibility or liability for selling all or any
part of the Pledged Securities at a price which the Agent or the Banks may deem
reasonable under the circumstances.
12. POWER OF ATTORNEY.
Each Debtor hereby irrevocably appoints any officer, employee or agent
of the Secured Party as such Debtor's true and lawful attorney-in-fact with
power to, upon the occurrence of an Event of Default: (i) endorse such Debtor's
name upon any notes, checks, drafts, money orders, or other instruments or
payments or other Collateral that may come into the Secured Party's possession;
(ii) sign and endorse such Debtor's name upon any invoices, assignments,
verifications and notices in connection with any of the Collateral, and any
instruments or documents relating thereto or to such Debtor's rights therein;
and (iii) at any time whether or not an Event of Default has occurred, to
execute in such Debtor's name and file one or more financing, amendment and
continuation statements covering the Collateral. Any such attorney of such
Debtor shall have full power to do any and all things necessary to be done with
respect to the above transactions as fully and effectually as such Debtor might
do, and such Debtor hereby ratifies all that said attorney shall lawfully do or
cause to be done by virtue hereof.
13. FINANCING STATEMENTS.
-12-
<PAGE>
Each Debtor shall execute all financing statements and amendments
thereto and continuations thereof as the Secured Party may request from time to
time to evidence the security interest granted, or intended to be granted, to
the Secured Party hereunder and will pay all filing fees and taxes, if any,
necessary to effect the filing thereof. Wherever permitted by law, each Debtor
authorizes the Secured Party to file financing statements with respect to the
Collateral without the signature of such Debtor. A copy of this Agreement or a
copy of any financing statement prepared in connection with this Agreement may
itself be filed as a financing statement.
14. RESIGNATION OR REMOVAL OF SECURED PARTY.
Subject to the appointment and acceptance of a successor Secured Party
as provided below, the Secured Party may resign at any time by giving at least
60 days' written notice thereof to ICF Kaiser, such resignation to be effective
upon the acceptance of the position of Secured Party by a successor Secured
Party. The Secured Party may be removed at any time with cause by written
notice from the Required Banks. Upon any such resignation or removal, the
Required Banks shall have the right to appoint a successor Secured Party which
shall be a bank or trust company selected by the Required Banks if there be such
an institution willing, able and legally qualified to perform the duties of the
Secured Party hereunder upon reasonable or customary terms. If, within 90 days
of notice of resignation by or removal of the Secured Party, a successor Secured
Party shall not have been appointed, the Secured Party may petition a court of
competent jurisdiction for the appointment of a successor Secured Party. Upon
the acceptance of any appointment as Secured Party hereunder by a successor
Secured Party, such successor Secured Party shall thereupon succeed to and
become vested with all the rights, title, interest and duties of the resigning
or removed Secured Party. On request of the successor Secured Party or the
Required Banks, the resigning or removed Secured Party shall execute and deliver
such assignments or other instruments and take such other actions as may
reasonably be requested to provide for or evidence the transfer to the successor
Secured Party all rights, title and interest of the resigning or removed Secured
Party (including without limitation the execution and delivery of appropriate
statements under the Uniform Commercial Code), and the resigning or removed
Secured Party thereafter shall be discharged from its duties and obligations
hereunder. Notwithstanding any such resignation or removal, the Secured Party
shall continue to be entitled to the benefits of Sections 10.5 and 11.8 of the
Credit Agreement in respect of any actions taken or omitted to be taken while it
was acting as Secured Party hereunder.
15. INSURANCE.
The Debtors shall maintain insurance at all times in accordance with
the requirements of Section 6.6 of the Credit Agreement. All such policies of
insurance shall name the Secured Party as lender loss payee and shall provide
for not less than thirty (30) days' prior written notice to the Secured Party of
intended cancellation or reduction in coverage. The
-13-
<PAGE>
Debtors shall furnish the Secured Party with certificates or other evidence
satisfactory to the Secured Party of compliance with the foregoing insurance
provisions. The Debtors expressly authorize their insurance carriers to pay
proceeds of all insurance policies covering all or any part of the Collateral
directly to the Secured Party.
16. MISCELLANEOUS.
(a) This Agreement shall continue in full force and effect so long as
any of the Obligations shall exist from time to time.
(b) No modification or waiver of any provision hereof shall be
effective unless the same is in writing and signed by the party against whom its
enforcement is sought. This Agreement may be signed in any number of
counterparts and by different parties in separate counterparts, all with the
same effect as if the signatures were on the same counterpart, and all
counterparts hereof, taken together, shall constitute but one and the same
Agreement.
(c) The representations, warranties, covenants and agreements
contained herein are all material and continuing, and any breach of any of them
shall constitute a material breach of this Agreement.
(d) All the rights and remedies of the Secured Party hereunder shall
be cumulative with and not alternative to or in lieu of the Secured Party's
rights and remedies under any other agreement or agreements.
(e) This Agreement shall bind and inure to the benefit of the parties
and their respective successors and assigns, except that no Debtor shall assign
any of such Debtor's obligations hereunder without the Secured Party's prior
written consent which shall be given at the direction of the Required Banks.
(f) Any provision hereof which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without affecting the validity or
enforceability of the remainder of this Agreement or the validity or
enforceability of such provision in any other jurisdiction.
(g) No persons other than the Debtors, the Banks, the Secured Party
and the respective assignees of the Banks and the Secured Party are intended to
be benefitted hereby or shall have any rights hereunder, as third-party
beneficiaries or otherwise. References in this Agreement to the "benefit of the
Banks" and similar references are intended to refer to an apportionment of
rights and benefits as among the Banks in accordance with the Credit Agreement.
-14-
<PAGE>
(h) Each Debtor acknowledges that this Agreement and the obligations
of the Debtors hereunder and the security created or intended to be created
hereby have constituted, and were intended by such Debtor to constitute, a
material inducement to the Banks to enter into the Credit Agreement, knowing
that the Banks and the Secured Party will rely upon this Agreement.
(i) All notices, requests, demands, directions, declarations or other
communications hereunder shall be given in the manner required under the Credit
Agreement.
(j) All issues arising hereunder shall be governed by and be construed
and enforced in accordance with the laws of the Commonwealth of Pennsylvania
without regard to Pennsylvania or federal principles of conflict of laws.
(k) Although the intent of the parties is for ICF Kaiser Netherlands
B.V. to create hereby a security interest in Collateral owned by it to the
extent possible under applicable law, the parties acknowledge and agree that,
notwithstanding anything in the Loan Documents to the contrary, the pledge of
the Pledged Securities issued by, and receivables owned by, ICF Kaiser
Netherlands B.V. shall be the subject of separate documentation governed by
Netherlands law to be completed as soon as practicable after the date hereof.
-15-
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed under due
authorization as of the day and year first above written.
9300 Lee Highway ICF KAISER INTERNATIONAL, INC.
Fairfax, VA 22031
By:___________________________
Title:
1339 Chestnut Street CORESTATES BANK, N.A., as Agent
P.O. Box 7618
Philadelphia, PA 19107-7618
By:____________________________
Title:
CLEMENT INTERNATIONAL
CORPORATION CYGNA GROUP, INC.
By:______________________________ By:____________________________
Title: Title:
EXCELL DEVELOPMENT
HENRY J. KAISER COMPANY CONSTRUCTION, INC.
By:______________________________ By:____________________________
Title: Title:
ICF INFORMATION TECHNOLOGY,
INC. ICF INCORPORATED
By:______________________________ By:____________________________
Title: Title:
ICF KAISER ENGINEERS ICF KAISER ENGINEERS
CORPORATION (CALIFORNIA) CORPORATION
-16-
<PAGE>
By:______________________________ By:____________________________
Title: Title:
ICF KAISER ENGINEERS ICF KAISER ENGINEERS
MASSACHUSETTS, INC. GROUP, INC.
By:______________________________ By:____________________________
Title: Title:
ICF KAISER GOVERNMENT
PROGRAMS, INC. ICF KAISER ENGINEERS, INC.
By:______________________________ By:____________________________
Title: Title:
ICF KAISER HOLDINGS
UNLIMITED, INC. ICF KAISER HANFORD COMPANY
By:______________________________ By:____________________________
Title: Title:
ICF RESOURCES INCORPORATED ICF LEASING CORPORATION, INC.
By:______________________________ By:____________________________
Title: Title:
KE SERVICES CORPORATION KE LIVERMORE, INC.
By:______________________________ By:____________________________
Title: Title:
KAISER ENGINEERS AND KAISER ENGINEERS INTERNATIONAL,
CONSTRUCTORS, INC. INC.
By:______________________________ By:____________________________
Title: Title:
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<PAGE>
SYSTEMS APPLICATIONS INTERNATIONAL, INC. TUDOR ENGINEERING COMPANY
By:______________________________ By:____________________________
Title: Title:
CYGNA CONSULTING ENGINEERS AND
PCI OPERATING COMPANY, INC. PROJECT MANAGEMENT, INC.
By:______________________________ By:____________________________
Title: Title:
ICF KAISER SYSTEMS, INC. ICF KAISER/GEORGIA WILSON, INC.
By:______________________________ By:____________________________
Title: Title:
GLOBAL TRADE & INVESTMENT, INC. ICF KAISER ENGINEERS PACIFIC,
INC.
By:______________________________ By:____________________________
Title: Title:
EDA, INCORPORATED ICF KAISER REMEDIATION COMPANY
By:______________________________ By:____________________________
Title: Title:
ICF KAISER OVERSEAS ENGINEERING, INC. ICF KAISER EUROPE, INC.
By:______________________________ By:____________________________
Title: Title:
ICF KAISER NETHERLANDS B.V.
By:______________________________
Title:
-18-
<PAGE>
EXHIBIT A TO SECURITY AGREEMENT
FORM OF LOCKBOX AND BLOCKED ACCOUNT LETTER
_______________ __, 1996
[Name and address
of Lockbox Bank or
Blocked Account Bank]
Re: [ICF KAISER INTERNATIONAL, INC.] [NAME OF GRANTOR]
-------------------------------- -----------------
Ladies and Gentlemen:
Reference is made to lockbox no. __________ into which certain monies,
instruments and other properties are deposited from time to time and deposit
account no. ___________ (collectively, the "Lockbox Account") [and the blocked
---------------
deposit account no. ____________ (the "Blocked Account")]* maintained with you
by [ICF Kaiser International, Inc.] [name of Grantor] (the "Grantor"). Pursuant
-------
to the Security Agreement, dated as of April __, 1996 (the "Security
--------
Agreement"), the Grantor has granted to CoreStates Bank, N.A. (the "Agent"), as
- ---------
agent for the banks referred to therein (the "Banks"), a security interest in
certain property of the Grantor, including, among other things, all now-existing
or hereafter acquired or arising (i) accounts, (ii) general intangibles, chattel
paper, and instruments derived from or related to any accounts, (iii) all
guarantees of any accounts and all other security held for the payment or
satisfaction thereof, (iv) goods or services the sale or lease of which gave
rise to any account, including returned goods, (v) balance of any deposit,
agency or other account with any Bank, (vi) United States government securities
delivered by the Grantor to the Agent, and (vii) all books, records and other
property at any time evidencing or related to the foregoing, together with all
products and proceeds (including insurance proceeds) of any of the foregoing.
It is a condition to the continued maintenance of the Lockbox Account [and the
Blocked Account] with you that you agree to this letter agreement.
By signing this letter agreement, you acknowledge notice of the
Security Agreement and confirm to the Agent that the description of the Lockbox
Account [and the Blocked Account] set forth on Schedule I hereto is correct and
that you have received no notice of any other pledge or assignment of the
Lockbox Account or the Blocked Account]. Further you hereby agree with the
Agent that:
(a) Notwithstanding anything to the contrary in any other agreement
relating to the Lockbox Account [and the Blocked Account], the Lockbox
Account [and the
______________________
* All bracketed language to be included in letters regarding Blocked Accounts.
<PAGE>
Blocked Account] is [are] and will be subject to the terms and conditions
of the Security Agreement, will be maintained solely for the benefit of the
Agent, will be entitled "CoreStates Bank, N.A., as Agent, Re: [Name of
Grantor]" and will be subject to written instructions only from an officer
of the Agent.
(b) You will collect mail from the Lockbox Account [and the Blocked
Account] on each of your business days at times that coincide with the
delivery of mail thereto.
(c) You will follow your usual operating procedures for the handling
of any remittance received in the Lockbox Account [and the Blocked Account]
that contains restrictive endorsements, irregularities (such as a variance
between the written and numerical amounts), undated or postdated items,
missing signatures, incorrect payees, etc.
(d) You will endorse and process all eligible checks and other
remittance items not covered by paragraph (c) and deposit such checks and
remittance items in the Lockbox Account [and the Blocked Account].
(e) You will maintain a record of all checks and other remittance
items received in the Lockbox Account [and the Blocked Account] and, in
addition to providing the Grantor with photostats, vouchers, enclosures,
etc. of such checks and remittance items on a daily basis, furnish to the
Agent (i) a monthly statement of the Lockbox Account [and the Blocked
Account] and (ii) a daily collection and check float report, to be
transmitted electronically to the Agent at: 215-973-6745.
(f) You will transfer, in same day funds, on each of your business
days, all amounts collected from the Lockbox Account [and the Blocked
Account] on such day to the following account (the "Cash Concentration
------------------
Account"):
-------
ICF Kaiser International, Inc.
Account No. [1412209809]
CoreStates Bank, N.A.
1345 Chestnut Street
Philadelphia, PA 19107
Attention: Kathleen Crouse
Each such transfer of funds shall neither comprise only part of a
remittance nor reflect the rounding off of any funds so transferred.
(g) All transfers referred to in paragraph (f) above shall be made by
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<PAGE>
the undersigned irrespective of, and without deduction for, any
counterclaim, defense, recoupment or set-off and shall be final, and the
undersigned will not seek to recover from the Agent for any reason any such
payment once made.
(h) All service charges and fees with respect to the Lockbox Account
[and the Blocked Account] shall be payable by the Grantor, and deposited
checks returned for any reason shall not be charged to the Lockbox Account
[and the Blocked Account].
(i) The Agent shall be entitled to exercise any and all rights of the
Grantor in respect of the Lockbox Account [and the Blocked Account] in
accordance with the terms of the Security Agreement, and the undersigned
shall comply in all respects with such exercise.
This letter agreement shall be binding upon you and your successors
and assigns and shall inure to the benefit of the Agent, the Banks and their
successors, transferees and assigns. You may terminate this letter agreement
only upon thirty days' prior written notice to the Grantor and the Agent. Upon
such termination you shall close the Lockbox Account [and the Blocked Account]
and transfer all funds in the Lockbox Account [and the Blocked Account] to the
Cash Concentration Account. After any such termination, you shall nonetheless
remain obligated promptly to transfer to the Cash Concentration Account all
funds and other property received in respect of the Lockbox Account [and the
Blocked Account].
-22-
<PAGE>
THIS LETTER AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA.
Very truly yours,
[ICF KAISER INTERNATIONAL, INC.]
[NAME OF GRANTOR]
By:_________________________
Title:
CORESTATES BANK, N.A., as Agent
By:_________________________
Title:
Acknowledged and agreed to as of
the date first above written:
[NAME OF LOCKBOX BANK OR
BLOCKED ACCOUNT BANK]
By:___________________________
Title:
-23-
<PAGE>
SCHEDULE I TO EXHIBIT A TO SECURITY AGREEMENT
<TABLE>
<CAPTION>
Name and Address of Lockbox Mailing Address of Lockbox Account
[Blocked Account Bank] [Blocked Account] Number
---------------------- ----------------- ------
<S> <C> <C>
</TABLE>
<PAGE>
EXHIBIT B TO SECURITY AGREEMENT
[Forms of notices and instruments relating to the Federal Assignment of Claims
Act]
<PAGE>
SCHEDULE A TO SECURITY AGREEMENT
1. List of Selected Government Contracts:
<PAGE>
SCHEDULE B TO SECURITY AGREEMENT
1. The location of each Debtor's chief executive office and, if not the
same, the location of each Debtor's principal place of business are as follows:
2. During the past five years no Debtor has used or been known by any
other name, including any trade or fictitious name, except as follows:
<PAGE>
SCHEDULE C TO SECURITY AGREEMENT
1. List of Pledged Securities:
<PAGE>
Exhibit 10(g)
CONSOLIDATED, AMENDED AND RESTATED DEED OF LEASE
THIS CONSOLIDATED, AMENDED AND RESTATED DEED OF LEASE is made and entered
into as of the 12 day of November, 1997, effective for all purposes as of the
1st day of January, 1997, by and between (i) HMCE ASSOCIATES LIMITED
PARTNERSHIP, R.L.L.P., a Virginia registered limited partnership, successor in
interest to HMCE Associates Limited Partnership (hereinafter re(Pounds)erred to
as "Landlord"), and (ii) ICF KAISER HUNTERS BRANCH LEASING, INC., a Delaware
corporation, successor in interest to ICF International, Inc. (hereinafter
referred to as "Tenant"), and referred to by singular pronouns of the neuter
gender, regardless of the number and gender of the parties involved.
WHEREAS, the Landlord and Tenant are parties to a certain Lease Agreement
dated January 30, 1987 (the "Lease"), pursuant to which Landlord leased to
Tenant certain office space containing approximately 196,749 square feet of net
rentable area in the office building known as "Hunter's Branch - Phase I" and
located in Fairfax, Virginia (the "Building"); and
WHEREAS, Landlord and Tenant entered into a First Amendment to Lease
Agreement dated August 31, 1987 (the "First Amendment"), wherein Landlord leased
to Tenant certain additional space in the Building containing, in the aggregate,
approximately 3,210 square feet of net rentable area; and
WHEREAS, Landlord and Tenant entered into a Second Amendment to Lease
Agreement dated September 23, 1987 (the "Second Amendment"), for the purpose of
complying with the requirements of Landlord's first Mortgagee; and
WHEREAS, Landlord and Tenant entered into a Third Amendment to Lease
Agreement dated February 12, 1990 (the "Third Amendment"), which modified
certain provisions of the Lease relating to Basic Rent and Operating Expense
Increases; and
WHEREAS, Landlord and Tenant now desire to consolidate, amend and restate
the Lease, the First Amendment, the Second Amendment and the Third Amendment in
this Consolidated, Amended and Restated Lease Agreement.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, the Leased Premises, for the Term (as defined
below), except that Landlord reserves and Tenant shall have no right in and to
(a) the use of the exterior faces of all perimeter walls of the Building, (b)
except as otherwise provided in Section 10(d), the use of the roof of the
Building, or (c) the use of the air space above the Building.
1. Definitions.
(a) General Interpretive Principles. For purposes of this Lease,
except as otherwise expressly provided or unless the context otherwise requires,
(i) the terms defined in this Section have the meanings assigned to them in this
Section and include the plural as well as the singular, and the use of any
gender herein shall be deemed to include the other genders; (ii) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles; (iii) references
herein to "Sections," "subsections," "paragraphs" and other subdivisions without
reference to a document are to designated Sections, subsections, paragraphs and
other subdivisions of this Lease; (iv) a reference to a sub-section without
further reference to a Section is a reference to such subsection as contained in
the same Section in which the reference appears, and this rule shall also apply
to paragraphs and other subdivisions; (v) the words "herein," "hereof,"
"hereunder" and other words of similar import refer to this Lease as a whole and
not to any particular provision; and (vi) the word "including" means "including,
but not limited to."
<PAGE>
(b) Special Lease Definitions. As used in this Lease the following
words and phrases shall have the meanings indicated:
Basic Rent: For each Lease Year, an amount equal to the product
obtained by multiplying the Rentable Area of the Leased Premises by the Rent per
Square Foot for such Lease Year.
Building: The office building known as the "ICF Kaiser Building,"
located at 9300 Lee Highway, Fairfax, Virginia 22031, on the land described in
Exhibit A to this Lease, including Tenant's non-exclusive right in and to the
parking deck and Landlord's leasehold estate in the underlying land.
Building Rentable Area: 201,929 square feet.
Comparison Month: The calendar month of March.
CPI: The Consumer Price Index for All Urban Consumers (CPI-U) --
All Items (1982-84 = 100) for the Washington, DC - MD - VA metropolitan area
currently prepared by the Bureau of Labor Statistics of the United States
Department of Labor and published bi-monthly. If, during the Term, the CPI
ceases to be published, then Landlord and Tenant shall mutually agree upon a
substitute index, it being understood and agreed that such substitute index
shall be similar index generally recognized as authoritative, and the parties
shall reconcile the base thereof with the base of the CPI. If the parties cannot
agree upon a substitute index, then the matter shall be submitted to arbitration
under the rules of the American Arbitration Association.
First Rental Period: As defined in (S)4.2(b) of the Ground Lease.
Inflation Adjustment: For the sixth Lease Year (i.e. commencing
November 1, 2003) and each Lease Year thereafter during the Term (including any
Renewal Period), the lesser of (i) 2.5% of the Rent per Square Foot for the
immediately preceding Lease Year or (ii) 225% of the percentage (if any) by
which (x) the CPI for the Comparison Month in the immediately preceding Lease
Year exceeds (y) the CPI for the Comparison Month in 1998. Exhibit C contains
an illustration of the operation of the Inflation Adjustment.
Initial Term: The period commencing on the Lease Commencement
Date and ending on October 31, 2012, but in any event the Initial Term shall end
on any date when this Lease is sooner terminated pursuant to its terms.
Land: The land described in Exhibit A.
Landlord's Notice Address: 1355 Piccard Drive, Suite 470,
Rockville, Maryland 20850.
Lease Commencement Date: January 1, 1997.
Leased Premises: The space containing 199,959 square feet of
Rentable Area , consisting of the part of the Second Floor outlined on the floor
plans of the Building attached hereto as Exhibit B, the entire First Floor, the
entire Third through Twelfth Floors inclusive, and the Penthouse.
Leasing Broker: The Carey Winston Company, which broker shall be
paid by Tenant.
Office Park: The project consisting of the Building, the office
building known as 9302 Lee Highway, Fairfax, Virginia 22031, and the common
areas and facilities serving both such buildings.
Office Space: The portion of the Building consisting of the First
through Twelfth Floors, inclusive.
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<PAGE>
Operating Expense Base: The quotient obtained by dividing (i)
$1,162,899.00, by (ii) the Building Rentable Area.
Operating Expense Commencement Date: January 1, 1998.
Operating Expense Increases: For the calendar year in which the
Operating Expense Commencement Date occurs and each calendar year thereafter
during the Term, an amount equal to Tenant's Proportionate Share of the excess
of Landlord's Operating Expenses for such calendar year over the product
obtained by multiplying the Operating Expense Base by the Building Rentable
Area.
Renewal Period: The additional period of five years for which
Tenant is permitted to extend the Initial Term of this Lease pursuant to Section
30.
Rent Commencement Date: January 1, 1997.
Rent per Square Foot: $24.00 during the period from January 1,
1997 through November 11, 1997 (i.e., total Basic Rent for such period shall be
$4,141,616.55). $24.50 for the period from November 12, 1997 through December
31, 1997, and for each of the second, third, fourth and fifth Lease Years (i.e.,
Basic Rent for such period shall be $4,898,995.50 per Lease Year). For the sixth
Lease Year, the Rent per Square Foot shall be an amount equal to $24.00,
increased by the Inflation Adjustment for the sixth Lease Year. For the seventh
Lease Year, and for each Lease Year thereafter during the Term, the Rent per
Square Foot shall be an amount equal to the Rent per Square Foot for the
immediately preceding Lease Year, increased by the Inflation Adjustment for the
Lease Year for which the computation is being made. The foregoing amounts are
net of the cost of electricity for the Leased Premises, which shall be billed to
and paid by Tenant.
Rentable Area: The net rentable area (in square feet) of all or
any part of the Leased Premises from time to time. The net rentable area of the
Leased Premises is agreed to be 199,959 square feet.
Second Rental Period: As defined in (S)4.2(c) of the Ground
Lease.
Security Deposit: $125,000.
Storage Space: The area, containing 5,855 square feet of Rentable
Area, located in the Penthouse, which is shown on the floor plans attached as
Exhibit B to this Lease.
Tenant's Notice Address: 9300 Lee Highway, Fairfax, Virginia
22031-1207, Attn: Lease Administrator, with a copy to the same address, Attn:
General Counsel.
Tenant's Proportionate Share: The percentage from time to time
which the Rentable Area of the Leased Premises is of the Building Rentable Area,
which percentage is acknowledged and agreed to be ninety-nine percent (99%) as
of the date of this Lease.
Term: The Initial Term and the Renewal Period, if any, as to
which Tenant shall have effectively exercised its right to extend, but in any
event the Term shall end on any date when this Lease is sooner terminated
pursuant to the terms hereof.
(c) General Definitions. As used in this Lease the following words
and phrases shall have the meanings indicated:
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<PAGE>
Additional Charges: All amounts payable by Tenant to Landlord
under this Lease other than Basic Rent. All Additional Charges shall be deemed
to be additional rent and all remedies applicable to the non-payment of Basic
Rent shall be applicable thereto.
Alterations: As defined in Section 9(a).
Business Days: All days except Saturdays, Sundays and the
following legal holidays: New Years Day, Memorial Day, Fourth of July, Labor
Day, Thanksgiving Day and Christmas Day.
Default Interest Rate: A rate per annum equal to the lesser of
(a) the sum of (i) the base rate of interest from time to time established and
publicly announced by NationsBank, N.A., Washington, D.C., in its sole
discretion, as its then-applicable base rate of interest to be used in
determining actual interest rates to be charged to certain of its borrowers,
said base rate to change from time to time as and when the change is announced
as being effective, plus (ii) two percent (2%), or (b) ten percent (10%) per
annum.
Event of Default: Any of the events set forth in Section 16(a) as
an event of default.
Floor: A floor of the Building located above the foundation slab
or above an area below grade level which is designated as a basement or cellar.
The term "Floor" preceded by a number shall mean the indicated floor of the
Building.
Ground Lease: The Lease Agreement dated May 29, 1986, between The
First Union National Bank of Virginia, as Trustee, as successor by merger to
First American Bank of Virginia, Trustee, as lessor, and Landlord, as lessee, as
amended by a First Amendment to Ground Lease, dated August 18, 1987, and as
further amended by a Second Amendment to Ground Lease dated September 22, 1987,
pursuant to which Landlord leases the land described in Exhibit A to this Lease.
Landlord: The landlord named herein or any subsequent owner or
lessee, from time to time, of the Landlord's interest in the Building.
Lease: This Deed of Lease, as amended from time to time, and all
Exhibits attached hereto.
Lease Year: The period of 12 months commencing on the Lease
Commencement Date and ending on the last day of the month which completes 12
full calendar months after the Lease Commencement Date, and each 12 month period
thereafter commencing on the first day after the end of the immediately
preceding Lease Year, except that the last Lease Year shall end on the last day
of the Term.
Legal Requirements: All laws, statutes, ordinances, orders,
rules, regulations and requirements of all federal, state and municipal
governments, and the appropriate agencies, officers, departments, boards and
commissions thereof, and the board of fire underwriters and/or the fire
insurance rating organization or similar organization performing the same or
similar functions, whether now or hereafter in force, applicable to the Building
or any part thereof and/or the Leased Premises, and notices from Landlord's
Mortgagee, as to the manner of use or occupancy or the maintenance, repair or
condition of the Leased Premises and/or the Building, and the usual and
customary requirements of the carriers of all fire insurance policies maintained
by Landlord on the Building.
Mortgage: Any mortgage, deed of trust or other security
instrument of record creating an interest in or affecting title to the Building
or the land on which it is constructed, or both, or any part thereof, including
a leasehold mortgage or subleasehold mortgage, and any and all renewals,
modifications, consolidations, or extensions of any such instrument; Mortgagee
shall mean the holder or beneficiary of any Mortgage.
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<PAGE>
Operating Expenses: The aggregate of all costs and expenses
reasonably and customarily paid or incurred on an accrual basis by Landlord in
connection with the management, operation, servicing and maintenance of the
Leased Premises, the Building, the Building parking facility and the land on
which the Building is constructed including, but not limited to, employees'
wages, salaries, welfare and pension benefits and other fringe benefits; payroll
taxes; Real Estate Taxes; the Net Annual Rental payable by Landlord under (and
as defined in) the Ground Lease; electricity charges for the main lobby, service
areas and other common areas of the Building and the operation of the Building
elevators; telephone service; painting of public or other common areas of the
Building; exterminating service; detection and security services; trash removal;
sewer and water charges; premiums for fire and casualty, liability, rent,
workers' compensation, sprinkler, water damage and other insurance; repairs and
maintenance to the Building; building, janitorial and cleaning supplies;
uniforms and dry cleaning; snow removal; landscaping maintenance; window
cleaning; service contracts for the maintenance of elevators, boilers, HVAC and
other mechanical, plumbing and electrical equipment; legal fees (other than
legal fees relating to the negotiation of leases with present or prospective
tenants of the Building or the enforcement of Landlord's rights under leases
with tenants for space in the Building); accounting fees; advertising;
management fees of four percent (4%) of gross Building rents (exclusive of
Operating Expense payments), whether or not paid to any Person having an
interest in or under common ownership with Landlord; one-half of all costs and
expenses of providing the shuttle bus services required by Section 31 (reduced
by all amounts received by Landlord or its affiliates for after- hours shuttle
bus service); dues and assessments to any property owners' association in which
the Building is a member; window glass replacement, repair and cleaning; repair
and maintenance of the grounds, including costs of landscaping, gardening and
planting; service contracts with independent contractors, including but not
limited to security and energy management service contractors; compensation
(including employment taxes, fringe benefits, salaries, wages, medical, surgical
and general welfare benefits [including health, accident and group life
insurance]) for all personnel employed by Landlord or its property management
company who perform duties in connection with the operation, management,
maintenance and repair of the Building (in each case, allocated among all
properties served by such employees on a reasonable basis, if such employees are
utilized by more than one property), including a proportionate share of the
salary and benefits of the property manager assigned to the Building, based upon
the number of properties served by such property manager, but in no event more
than one-fourth (1/4) of such salary and benefits; and all other expenses now or
hereafter reasonably and customarily incurred in connection with the operation,
maintenance, and management of first class office buildings in the Tysons Corner
area of Northern Virginia. If Landlord makes an expenditure for a capital
improvement to the Building to reduce Operating Expenses or to comply with Legal
Requirements not in effect at the time the Building was constructed, and if,
under generally accepted accounting principles, such expenditure is not a
current expense, the cost thereof shall be amortized over a period equal to the
useful life of such improvements, determined in accordance with generally
accepted accounting principles, and the amortized cost allocated to each
calendar year during the Term shall be treated as an Operating Expense. Except
as provided in the preceding sentence, capital expenditures, depreciation and
amortization shall not be included in Operating Expenses. Refunds of Real Estate
Taxes (reduced by Landlord's reasonable expenses in obtaining such refunds),
amounts received by Landlord from tenants of the Building for after-hours
heating and air conditioning service and other special services and (to the
extent that Operating Expenses include the cost of any repair or reconstruction
work) the amount of any insurance recoveries, shall be credited against
Operating Expenses in computing the amount thereof. Operating Expenses shall
also be reduced as provided in Section 3(b). Operating Expenses shall not
include financing or mortgage costs; depreciation expense; advertising for
vacant space or building promotion; leasing commissions; executive salaries or
compensation to any employee of Landlord or its property management company
above the rank of the property manager assigned to the Building; more than one-
fourth (1/4) of the salary and benefits of the property manager assigned to the
Building; the cost of tenant improvements; legal fees for leasing vacant space
in the Building or enforcing Landlord's rights under leases with tenants for
space in the Building; or charges for electricity used directly by Tenant or by
other tenants of the Building. Operating Expenses also shall not include: costs
of additional insurance premiums for the Building due to any tenant's operations
within such tenant's demised premises, which are payable by such tenant under
such tenant's lease; the cost of repairs or replacements incurred by reason of
fire or other casualty; or any other costs or expenses for which Landlord
actually receives reimbursement from any source (other than amounts paid by
tenants of the Building with respect to Operating Expenses), including, without
limitation, insurance proceeds, condemnation awards or warranties.
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<PAGE>
Penthouse: The Floor immediately above the Twelfth Floor.
Person: A natural person, a partnership, a corporation, a limited
liability company and any other form of business or legal association or entity.
Real Estate Taxes: All taxes, assessments, vault rentals, water
and sewer rents, if any, and other charges, if any, general, special or other
wise, including all assessments for schools, public betterments and general or
local improvements, levied or assessed upon or with respect to the ownership of
and/or all other taxable interests in the Building and the land on which it is
built imposed by any public or quasi-public authority having jurisdiction and
personal property taxes levied or assessed on Landlord's personal property used
in connection with the operation, maintenance and repair of the Building. Real
Estate Taxes shall not include any inheritance, estate, succession, transfer,
recordation, gift, franchise, corporation, income or profit tax or capital levy.
If at any time during the Term the methods of taxation shall be altered so that
in addition to or in lieu of or as a substitute for the whole or any part of any
Real Estate Taxes levied, assessed or imposed there shall be levied, assessed or
imposed (i) a tax, license fee, excise or other charge on the rents received by
Landlord, or (ii) any other type of tax or other imposition (except those
excluded from Real Estate Taxes in the preceding sentence) in lieu of, or as a
substitute for, or in addition to, the whole or any portion of any Real Estate
Taxes, then the same shall be included as Real Estate Taxes. A tax bill or true
copy thereof, together with any explanatory or detailed statement of the area or
property covered thereby, submitted by Landlord to Tenant shall be conclusive
evidence of the amount of taxes assessed or levied, as well as of the items
taxed. If any real property tax or assessment levied against the land, buildings
or improvements covered thereby or the rents reserved therefrom, shall be
evidenced by improvement or other bonds, or in other form, which may be paid in
annual installments, only the amount paid or payable in any Lease Year shall be
included as Real Estate Taxes for that Lease Year.
Taking: A taking of property or any interest therein or right
appurtenant or accruing thereto, by condemnation or eminent domain or by action,
proceedings, or agreement in lieu thereof, pursuant to governmental authority.
Tenant: The tenant named herein and any permitted assignee under
Section 15.
Tenant's Special Installations: As defined in Section 9(d).
Unavoidable Delays: Delays caused by strikes, acts of God,
lockouts, labor difficulties, riots, explosions, sabotage, accidents, inability
to obtain labor or materials, governmental restrictions, enemy action, civil
commotion, fire, unavoidable casualty or similar causes beyond the reasonable
control of the Landlord or the Tenant, as the case may be. No payment of any
monetary amounts required of, or the obtaining or delivery of any required
insurance policies by, either Landlord or Tenant shall be delayed or excused by
acts of Unavoidable Delay.
2. Condition of Premises.
Tenant accepts the Leased Premises in their as-is, where-is
condition as of the date of this Lease, subject to any and all deficiencies and
defects therein, and without any express or implied warranties of habitability,
fitness, fitness for a particular purpose or otherwise.
3. Rent and Additional Charges.
(a) Payment of Rent and Additional Charges. Tenant shall pay the
Basic Rent for each Lease Year in equal monthly installments in advance on the
first (1st) day of each month during the Term. The Basic Rent and all Additional
Charges shall be paid promptly when due, in lawful money of the United States,
without notice or demand and without deduction, diminution, abatement,
counterclaim or setoff of any amount or for any reason whatsoever, except as
otherwise expressly provided in subsections (b) and (g) and Sections 13 and
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<PAGE>
14, to Landlord by wire transfer to such bank account as Landlord may from time
to time designate. If Tenant makes any payment to Landlord by check (which, for
any payment other than by wire transfer, shall require Landlord's consent), such
payment shall be by check of Tenant and Landlord shall not be required to accept
the check of any other person, and any check received by Landlord shall be
deemed received subject to collection. If any check is mailed by Tenant, Tenant
shall post such check in sufficient time prior to the date when payment is due
so that such check will be received by Landlord on or before the date when
payment is due. Tenant shall assume the risk of lateness or failure of delivery
of the mails, and no lateness or failure of the mails will excuse Tenant from
its obligation to have made the payment in question when required under this
Lease. All bank service charges resulting from any bad checks shall be borne by
Tenant. The rent reserved under this Lease shall be the total of all Basic Rent
and Additional Charges, increased and adjusted as elsewhere herein provided,
payable during the entire Term and, accordingly, the methods of payment provided
for herein, namely, annual and monthly rental payments, are for convenience only
and are made on account of the total rent reserved hereunder.
(b) Payment of Operating Expense Increases. Tenant shall pay as
additional rent Operating Expense Increases for each calendar year, commencing
with the calendar year in which the Operating Expense Commencement Date occurs.
Landlord shall make a reasonable estimate of Tenant's Operating Expense
Increases for each calendar year (based on the projected Real Estate Taxes
payable for the real estate tax fiscal years included in such calendar year, the
other Operating Expenses for the preceding calendar year and known increases in
other Operating Expenses for the current calendar year), and Tenant shall pay to
Landlord 1/12th of the amount so estimated on the first day of each month in
advance, beginning on January 1, 1998 and continuing thereafter throughout the
Term. If Landlord's estimate of Tenant's Operating Expense Increases for any
calendar year is received by Tenant after January 1 of the calendar year, Tenant
shall pay to Landlord in a lump sum, within 15 days after receipt of the
estimate, the arrearages in the monthly estimates for each month in the calendar
year before receipt of the estimate and shall pay the remaining monthly
installments on the first day of each month in advance during the balance of the
calendar year. Within 150 days after the end of each calendar year, Landlord
shall submit to Tenant a statement prepared by an independent certified public
accountant setting forth in reasonable detail the Operating Expenses for such
calendar year and the amount of Tenant's Operating Expense Increases for such
calendar year. If Tenant's Operating Expense Increases so stated are more than
the amount theretofore paid by Tenant for Operating Expense Increases based on
Landlord's estimate, Tenant shall pay to Landlord the deficiency within 15 days
after the submission of such statement. If Tenant's Operating Expense Increases
so stated are less than the amount theretofore paid by Tenant for Operating
Expense Increases based on Landlord's estimate, Landlord shall refund to Tenant
the excess within 15 days after submission of such statement or Landlord, at its
option, shall credit the excess against the next monthly installment of Basic
Rent thereafter payable by Tenant under this Lease. Tenant, at its sole cost
and expense, shall have the right, at reasonable times and upon reasonable
notice given within 90 days after receipt of a statement for Tenant's Operating
Expense Increases for any calendar year, to audit the statements furnished to
Tenant for such calendar year. If either the Operating Expense Commencement
Date shall not coincide with the beginning of a calendar year or the last day of
the Term shall not coincide with the end of a calendar year, then the amount of
Operating Expense Increases payable for the calendar year in which the Operating
Expense Commencement Date or the last day of the Term occurs, as the case may
be, shall be pro-rated on a daily basis between Landlord and Tenant based on the
number of days in such calendar year after the Operating Expense Commencement
Date or before the last day of the Term. Tenant's obligations under this
subsection to pay Operating Expense Increases and Landlord's obligation to
reimburse Tenant for an overpayment of Operating Expenses shall survive the
expiration of the Term.
(c) Interest. If Tenant fails to make any payment of Basic Rent
or Additional Charges by the earlier to occur of (i) 5 business days after the
due date thereof or (ii) 7 days after the due date thereof, interest shall, at
Landlord's option, accrue on the unpaid portion thereof from the due date at the
Default Interest Rate, but in no event at a rate higher than the maximum rate
allowed by law, and shall be payable on demand.
(d) Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of any lesser amount than the amount stipulated to be paid hereunder
shall be deemed other than on account of the earliest
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<PAGE>
stipulated Basic Rent or Additional Charges; nor shall any endorsement or
statement on any check or letter be deemed an accord and satisfaction, and
Landlord may accept any check or payment without prejudice to Landlord's right
to recover the balance due or to pursue any other remedy available to Landlord.
(e) Late Payment Charge. If Tenant fails to pay any Basic Rent
or Additional Charges by the earlier to occur of (i) 5 business days after the
due date thereof or (ii) 7 days after the due date thereof, Tenant shall also
pay to Landlord on demand a late payment service charge (to cover Landlord's
administrative and overhead expenses of processing late payments) equal to the
greater of $100.00 or 5% of such unpaid sum for each and every calendar month or
part thereof after the due date that such sum has not been paid to Landlord.
Such payment shall be deemed liquidated damages and not a penalty, but shall not
excuse the untimely payment of rent.
(f) Reduction of Real Estate Taxes. Landlord shall give Tenant a
copy of any tax assessment notice with respect to the Building within 15 days
after receipt thereof. Landlord will use reasonable efforts to obtain a
reduction of Real Estate Taxes, provided Tenant makes a written request to
Landlord so to do and, in such request, agrees to pay its proportionate share of
the costs thereof as hereinafter provided, and Landlord receives such request
not less than 20 days prior to the last day on which Real Estate Tax reduction
proceedings for the particular real estate tax year in question may be
commenced. The method and manner of conducting proceedings for such reduction,
including the selection of counsel, shall be solely within the judgment and
determination of Landlord, and Landlord may cancel, discontinue or settle such
proceedings if, in Landlord's judgment, such cancellation, discontinuance or
settlement is advisable. Landlord shall keep Tenant informed of the status of
any such proceeding. If Landlord determines to cancel or discontinue such
proceeding, Tenant shall have the right, either alone or with other tenants of
the Building, to continue such proceeding at its or their own expense. To the
extent that the reasonable costs and expenses, including legal fees, of such
proceedings instituted and conducted by Landlord, requested by Tenant and
others, exceed the amount of any tax refund, Tenant shall pay that proportion of
such excess cost and expense which the Rentable Area of the Leased Premises
bears to the total rentable area leased to all tenants making such request at
the time it is made.
(g) Abatement of Basic Rent. If, because of Landlord's failure
to provide any of the services referred to in Sections 5(h), all or
substantially all of the Leased Premises becomes untenantable and Tenant is
unable to and does not, in fact, use all or substantially all of the Leased
Premises for the uses permitted by Section 6(a) for a continuous period of 10
Business Days, then provided the cause of such cessation of services is not the
result, in whole or in principal part, of Tenant's negligence or intentional
misconduct, Tenant shall be entitled to an abatement of Basic Rent for the
period of time in which Tenant is unable to use, and does not, in fact, use all
or substantially all of the Leased Premises for the uses permitted by Section
6(a). Any dispute between Landlord and Tenant as to Tenant's entitlement to an
abatement of Basic Rent shall be submitted to mediation pursuant to Section 28.
(h) Retroactive Rent Adjustment. Subject to the availability of
Net Cash Flow, as defined in Section 2.2 of the Limited Liability Company
Agreement of Hunters Branch Partners, L.L.C., reduced only by the Retroactive
Rent Adjustments described herein and in Tenant's Lease for premises in 9302 Lee
Highway, Vienna, Virginia ("Available Cash Flow"), Tenant shall receive
Retroactive Rent Adjustments in the following amounts for the following 12-month
periods ("Adjustment Years") during the Term:
<TABLE>
<CAPTION>
Adjustment Year Amount of Rent Adjustment
<S> <C>
11/1/97 - 10/31/98 $269,455.00
11/1/98 - 10/31/99 274,042.00
11/1/99 - 10/31/00 287,035.00
11/1/00 - 10/31/01 307,856.00
11/1/01 - 10/31/02 319,547.00
11/1/02 - 10/31/03 206,425.00
</TABLE>
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<TABLE>
<S> <C>
11/1/03 - 10/31/04 216,051.00
11/1/04 - 10/31/05 236,776.00
11/1/05 - 10/31/06 240,617.00
11/1/06 - 10/31/07 153,560.00
11/1/07 - 10/31/08 262,733.00
11/1/08 - 10/31/09 263,676.00
11/1/09 - 10/31/10 298,457.00
11/1/10 - 10/31/11 351,375.00
11/1/11 - 10/31/12 379,037.00
</TABLE>
Subject to Available Cash Flow, the Retroactive Rent Adjustment
shall be paid by Landlord to Tenant in equal monthly installments in arrears. If
the monthly installment of the Retroactive Rent Adjustment for any month is not
fully paid because of the lack of Available Cash Flow, then the unpaid portion
shall be paid in a later month of the Term (if any) when there is sufficient
Available Cash Flow to pay such unpaid portion. Landlord agrees that it will not
pay, and Tenant agrees that it will not accept, a Retroactive Rent Adjustment
for any month during any Adjustment Year unless the Annual Priority Return (as
defined in Section 2.2 of the Limited Liability Company Agreement of Hunters
Branch Partners, L.L.C.) for such month (together with accrued interest, if any)
has been paid by Hunters Branch Partners, L.L.C. to the Person entitled to
receive such payment.
(i) Lease Restructuring Fee. Upon execution of this Lease,
Tenant has paid Landlord a Lease Restructuring Fee in the amount of $660,767.80,
receipt of which is hereby acknowledged by Landlord.
4. Common Areas.
Throughout the Term, Tenant and its agents, employees and
business invitees shall have the non-exclusive right, in common with other
tenants of the Building and the adjacent office building, to use the public
lobbies, elevators, corridors, stairways, parking garage, sky walk, patios,
sidewalks, roadways and other common areas in the Building and the Land, and the
toilet rooms in public areas of multi-tenant floors in the Building. Landlord
shall have the right to rent parking spaces in the parking garage to persons
other than tenants of the Building and the adjacent office building with
Tenant's prior written approval, which approval shall not be unreasonably
withheld, and which approval shall be deemed given provided that (i) no third
party parking contract shall be for a period of more than one (1) month, (ii)
access to the parking garage shall be controlled by access or key cards, and
(iii) reasonable security shall be provided with respect to the parking garage
area. Landlord shall have the right at any time, without the Tenant's consent,
to change the arrangement or location of entrances, passageways, doors,
doorways, corridors, stairs, toilet rooms or other public portions of the
Building, provided any such change does not unreasonably obstruct Tenant's
access to the Leased Premises. The balconies on the tenth, eleventh and twelfth
floors of the Building shall be reserved for Tenant's exclusive use.
Notwithstanding anything to the contrary in this Lease, tenants of the other
building in the Office Park (9302 Lee Highway), their agents, employees and
business invitees will not have any right to use the internal lobbies,
elevators, corridors, stairways and toilet rooms in the Building.
5. Services and Utilities.
(a) Building Services. Throughout the Term, Landlord agrees
that the Building will be managed and maintained in accordance with generally
accepted industry practices and in a manner befitting a modern, first class
rental office building in Fairfax County, Virginia, and that, subject to Legal
Requirements, it will furnish to Tenant the following services:
(1) Subject to the provisions of subsection (b), normal and
usual electricity for lighting purposes and the operation of ordinary office
equipment;
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<PAGE>
(2) Adequate supplies for toilet rooms located in public areas
of the Building;
(3) Normal and usual cleaning and janitorial services after
business hours on Business Days in accordance with the standards set forth in
Exhibit D attached hereto and made a part hereof, provided, however, that
Landlord shall not provide cleaning and janitorial services to the double-
secured areas of the Leased Premises;
(4) Hot and cold running water in the toilet rooms located in
public areas of the Building and at valved outlets at the locations in the
Leased Premises shown on Tenant's Space Layout;
(5) Subject to the provisions of subsections (c) and (e),
heating and air-conditioning to the Leased Premises when required for the
comfortable occupancy of the Leased Premises, at reasonable temperatures,
pressures and degrees of humidity, and in reasonable volumes and velocities,
between the hours of 8:00 A.M. and 7:00 P.M. on Business Days and between the
hours of 9:00 A.M. and 1:00 P.M. on Saturdays unless Saturday is a legal
holiday;
(6) Automatically operated elevator facilities 24 hours a day,
seven days a week throughout the Term;
(7) All electric bulbs and fluorescent tubes in permanently
installed light fixtures in the Leased Premises and in the public areas of the
Building;
(8) Five (5) keys for the suite entry door to each portion of
the Leased Premises located on a separate Floor at no cost to Tenant, but all
additional keys, including replacements for lost keys, shall be issued only upon
the payment of a reasonable cost for each additional key;
(9) An electronic card security access system for the public
areas of the Building and the garage and a reasonable number of access cards for
use by Tenant's employees; and
(10) A fully-operational structured parking facility for use by
tenants of the Building with access limited to Persons authorized by Tenant or
Landlord.
(b) Electricity. Landlord shall not be liable in any way to
Tenant for any failure or defect in the supply or character of electrical energy
furnished to the Leased Premises by reason of any requirement, act or omission
of the public utility serving the Building with electricity. Tenant's use of
electrical energy in the Leased Premises shall not at any time exceed the
capacity of any of the electrical conductors and equipment in or otherwise
serving the Leased Premises as shown on Landlord's Building Plans. Tenant shall
not install or operate in the Leased Premises any electrically operated
equipment which uses electric current in excess of the capacity of the feeders
and panel boards serving the Leased Premises as shown on Landlord's Building
Plans without Landlord's written consent, which consent may be conditioned upon
Tenant's agreement to pay the cost of any additional wiring which may be
required for the operation of such equipment. In order to insure that such
capacity is not exceeded and to avert a possible adverse effect upon the
Building electrical service Tenant shall give notice to Landlord whenever Tenant
shall connect to the Building electrical distribution system any electrically
operated equipment other than lamps, typewriters and similar small office
machines. Any feeders or risers to supply Tenant's electrical requirements in
addition to those originally installed, and all other equipment proper and
necessary in connection with such feeders or risers, shall be installed by
Landlord upon Tenant's request, at the sole cost and expense of Tenant, provided
that, in Landlord's reasonable judgment, such additional feeders or risers are
permissible under applicable laws and insurance regulations and the installation
of such feeders or risers will not cause permanent damage or injury to the
Building or cause or create a dangerous condition or unreasonably interfere with
other tenants of the Building. All Floors occupied entirely by Tenant shall be
separately metered or sub-metered for electricity and all other parts of the
Leased Premises, may, at Landlord's option, be separately
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metered or sub-metered for electricity. Tenant shall pay (or reimburse Landlord
for) the cost of purchasing and installing separate electric meters or sub-
meters for each whole Floor and each part of a Floor included in the Leased
Premises, and for any other part of the Leased Premises which Landlord elects to
have metered or sub-metered. Tenant shall pay directly to the public utility
company all charges for electricity used by Tenant in all parts of the Leased
Premises which are separately metered, or Tenant shall reimburse Landlord
directly for its electrical usage in all parts of the Leased Premises which are
sub-metered. Landlord shall have the right from time to time to have a survey
made by an independent electrical engineer or electrical consulting firm to be
selected and paid for by Landlord to determine the amount of electricity
consumed by Tenant in the parts of the Leased Premises which do not consist of
an entire Floor. Tenant shall pay to Landlord, at monthly intervals upon receipt
of an invoice therefor, the cost of electricity it consumes in the parts of the
Leased Premises which do not consist of an entire Floor as determined by such
electrical engineer or consulting firm.
(c) Heating and Air-Conditioning. Landlord shall provide heat
and air-conditioning at times in addition to those specified in paragraph (5) of
subsection (a) at Tenant's expense, provided Tenant gives Landlord notice prior
to 3:00 P.M. (in the case of after-hours service on weekdays) and prior to 3:00
P.M. on Fridays or the day preceding a holiday (in the case of after-hours
service on Saturdays, Sundays or holidays).
(d) Maintenance of Pipes, Conduits, etc. Landlord reserves the
right to erect, use, maintain and repair pipes, conduits, cables, plumbing,
vents and wires in, to and through the Leased Premises as and to the extent that
Landlord may now or hereafter deem to be necessary or appropriate for the proper
operation and maintenance of the Building, or other tenants' installations in
the Building, and the right at all times to transmit water, heat, air-
conditioning and electric current through such pipes, conduits, cables,
plumbing, vents and wires, provided that Landlord, in the exercise of such
rights, shall not unreasonably inconvenience Tenant or unreasonably interfere
with Tenant's use of the Leased Premises.
(e) HVAC Specifications. Landlord agrees that the air-
conditioning system in the portion of the Leased Premises consisting of Office
Space will be capable of providing, and (unless otherwise ordered by federal,
state or local governmental authorities) the system shall provide, temperatures
of not more than 77 degrees F dry bulb and a relative humidity not in excess of
50% with outside conditions of 95 degrees F dry bulb and 78 degrees F wet bulb,
except as otherwise provided in this subsection. Landlord agrees that the
heating system in the portion of the Leased Premises consisting of Office Space
will be capable of providing, and (unless otherwise ordered by federal, state or
local governmental authorities) the system shall provide, temperatures of not
less than 70 degrees F whenever the outdoor dry bulb temperature is lower than
65 degrees F but no lower than 0 degrees F, with indoor relative humidity at
such level as not to permit the formation of condensation on the windows.
Landlord shall not be responsible if the normal operation of the Building air-
conditioning system shall fail to provide conditioned air at reasonable
temperatures, pressures or degrees of humidity or in reasonable volumes or
velocities in any portions of the Leased Premises consisting of Office Space
which (i) shall have a connected electrical load in excess of three watts per
square foot of Rentable Area of the Leased Premises for all purposes (including
lighting and power) or which shall have a human occupancy factor in excess of
one person for each 100 square feet of Rentable Area of the portion of the
Leased Premises consisting of Office Space (the average electrical load and
human occupancy factors for which the Building air-conditioning system is
designed), or (ii) because of rearrangement of partitioning or other Alterations
made by or on behalf of Tenant or any Person claiming through or under Tenant
(excepting work performed by Landlord for Tenant prior to Tenant's initial
occupancy of the Leased Premises).
(f) Access to HVAC Facilities. Landlord shall have unrestricted
access to any and all air-conditioning facilities in the Leased Premises for the
purposes of repairs, maintenance, alterations and improvements, but in
exercising its rights under this subsection Landlord shall use its best efforts
to minimize interference with Tenant's business in the Leased Premises.
Notwithstanding anything to the contrary herein or in Section 5(d), except in
the event of an emergency, Landlord may obtain access to the double-secured
areas of the Leased Premises only with the permission and assistance of Tenant's
Director of Facilities or his designee. Tenant shall provide Landlord with keys
to the double-secured areas of the Leased Premises. Tenant's Director of
Facilities, or his designee, shall be available to provide access to the double-
secured areas of the Leased Premises on
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a non-emergency basis promptly after Landlord's request for permission to enter
the same, and in any event no later than 24 hours after such request.
(g) Reduction of Air-Conditioning Use. Tenant agrees to use
reasonable efforts to keep or cause to be kept closed all window draperies or
venetian blinds in the Leased Premises as and when necessary because of the
sun's position whenever the air-conditioning system is in operation, and Tenant
agrees at all times to cooperate fully with Landlord and to abide by all the
reasonable regulations and requirements which Landlord may prescribe for the
proper functioning and protection of the Building air-conditioning system.
(h) Cessation of HVAC and Mechanical Services. Landlord
reserves the right to stop the service of heating, air-conditioning,
ventilating, elevator, plumbing, electricity or other mechanical systems or
facilities in the Building, if necessary by reason of accident or emergency, or
for repairs, alterations, replacements, additions or improvements which, in the
reasonable judgment of Landlord, are desirable or necessary, until said repairs,
alterations, replacements, additions or improvements shall have been completed.
The exercise of such right by Landlord shall not constitute an actual or
constructive eviction, in whole or in part, or relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Landlord or its
agents by reason of inconvenience or annoyance to Tenant, or injury to, or
interruption of, Tenant's business, or otherwise, or entitle Tenant to any
abatement or diminution of rent except as provided in Section 3(i). Except in
cases of emergency repairs, Landlord will give Tenant reasonable advance notice
of any contemplated stoppage of any such systems or facilities pursuant to the
foregoing. In all cases, Landlord will use due diligence to complete any such
repairs, alterations, replacements, additions or improvements promptly. Landlord
shall also perform any such work in a manner designed to minimize interference
with Tenant's normal business operations.
6. Use of Leased Premises.
(a) Permitted Uses. Tenant shall use and occupy the portion of
the Leased Premises consisting of Office Space solely for general office
purposes, and shall use and occupy the portion of the Leased Premises consisting
of Storage Space solely for storage, all in accordance with the applicable
zoning regulations and consistent with the character and dignity of the
Building, and shall not use, permit or suffer the use of the Leased Premises for
any other purpose whatsoever without the prior written consent of the Landlord.
Tenant shall not use, or permit the Leased Premises to be used, for the sale of
food, beverages or tobacco products, except that Tenant may operate on the
Leased Premises vending machines for the sale of food, beverages and tobacco
products to its employees. Tenant shall not permit or suffer the Leased Premises
to be occupied by anyone other than Tenant except as provided by Section 15.
Tenant shall at all times have access to the Leased Premises 24 hours a day,
seven days a week, subject, however, in all respects to all the terms, covenants
and conditions contained in this Lease. However, Landlord may regulate and
restrict access to the Building at times other than normal business hours on
Business Days for security purposes so long as Tenant's employees and agents
have reasonable access to the Leased Premises without unreasonable
inconvenience.
(b) Restrictions on Use. Throughout the Term, Tenant covenants
and agrees: (i) to pay 10 days before delinquency any and all taxes, assessments
and public charges levied, assessed or imposed upon Tenant's business conducted
in the Leased Premises, upon the leasehold estate created by this Lease or upon
Tenant's fixtures, furnishings or equipment in the Leased Premises; (ii) not to
use or permit or suffer the use of any portion of the Leased Premises for any
unlawful purpose; (iii) not to use the plumbing facilities for any purpose other
than that for which they were constructed, or dispose of any foreign substances
therein; (iv) not to place a load on any floor exceeding the floor load per
square foot which such floor was designed to carry in accordance with Landlord's
Building Plans, and not to install, operate or maintain in the Leased Premises
any heavy item of equipment except in such manner as to achieve a proper
distribution of weight; (v) not to strip, overload, damage or deface the Leased
Premises, or the hallways, stairways, elevators, parking facilities or other
public areas of the Building, or the fixtures therein or used therewith; (vi)
not to move any furniture or equipment into or out of the Leased Premises except
at such times as Landlord may from time to time reasonably designate; (vii) not
to use any floor adhesive in the installation of any carpeting; (viii) not to
install any other equipment of any kind or nature
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which will or may necessitate any changes, replacements or additions to, or in
the use of, the water system, heating system, plumbing system, air-conditioning
system or electrical system of the Leased Premises or the Building, without
first obtaining the written consent of Landlord; and (ix) at all times to comply
with all Legal Requirements.
(c) Compliance with Legal Requirements. Tenant will not use or
occupy the Leased Premises in violation of any Legal Requirements. If any
governmental authority, after the commencement of the Term, shall contend or
declare that the Leased Premises are being used for a purpose which is in
violation of any Legal Requirements, then Tenant shall, upon five days' notice
from Landlord, immediately discontinue such use of the Leased Premises. If
thereafter the governmental authority asserting such violation threatens,
commences or continues criminal or civil proceedings against Landlord for
Tenant's failure to discontinue such use, in addition to any and all rights,
privileges and remedies given to Landlord under this Lease for default therein,
Landlord shall have the right to terminate this Lease forthwith. Tenant shall
indemnify and hold Landlord harmless from and against any and all liability for
any such violation or violations.
(d) Compliance with Insurance Requirements. Tenant shall not do
any act, matter, thing or failure to act in respect of the Leased Premises
and/or the Building that will invalidate or be in conflict with fire insurance
policies covering the Building or any part thereof, and shall not do, or permit
anything to be done, in or upon the Leased Premises and/or the Building, or
bring or keep anything therein, which shall increase the rate of fire insurance
on the Building or on any property located therein. If, by reason of the failure
of Tenant to comply with the provisions of this subsection, the fire insurance
rate shall at any time be higher than it otherwise would be, then Tenant shall
reimburse Landlord and any other tenant of the Building, on demand, for that
part of all premiums for any insurance coverage that shall have been charged
because of such violation by Tenant and which Landlord or such other tenant, or
both, shall have paid on account of an increase in the rate or rates in its own
policies of insurance. Tenant shall not be responsible for any increase in fire
insurance rates generally applicable to office space in Fairfax County,
Virginia, and not resulting from the particular manner in which Tenant uses the
Leased Premises.
(e) No Flammable Substances. Tenant shall not bring or permit
to be brought or kept in or on the Leased Premises any flammable, combustible or
explosive fluid, material, chemical or substance except standard cleaning fluid,
standard equipment and materials (including magnetic tape) customarily used in
conjunction with business machines and equipment of the type used from time to
time by Tenant in reasonable quantities.
7. Care of Leased Premises.
(a) By Tenant. Tenant shall act with care in its use and
occupancy of the Leased Premises and the fixtures therein and, at Tenant's sole
cost and expense, shall make all repairs and replacements to the Leased
Premises, structural or otherwise, necessitated or caused by the acts, omissions
or negligence of Tenant or any Person claiming through or under Tenant or by the
use or occupancy or manner of use or occupancy of the Leased Premises by Tenant
or any such Person; however the foregoing provisions of this subsection shall be
subject to the provisions of Section 13. Without affecting Tenant's obligations
set forth in the preceding sentence, Tenant, at Tenant's sole cost and expense,
shall also (i) make all repairs and replacements, as and when necessary, to
Tenant's Special Installations and to any Alterations made or performed by or on
behalf of Tenant or any Person claiming through or under Tenant, (ii) perform
all maintenance and make all repairs and replacements, as and when necessary, to
any air-conditioning equipment, private elevators, escalators, conveyors or
mechanical systems (other than the standard equipment and systems serving the
Building) which may be installed in the Leased Premises, or elsewhere in the
Building and serving the Leased Premises, by Landlord, Tenant or others, (iii)
perform all maintenance and make all repairs and replacements, as and when
necessary, to the antennas and satellite dishes installed by Tenant on the roof
of the Building and make all repairs to the roof caused by such installation,
and (iv) perform regular cleaning and janitorial services in the double-secured
areas of the Leased Premises. However, except as otherwise provided in this
Lease, Tenant shall not have any right to install air-conditioning equipment,
elevators, escalators, conveyors or mechanical systems. In addition to the
foregoing, all damage or injury to the
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Leased Premises and to its fixtures, appurtenances and equipment or to the
Building or to its fixtures, appurtenances and equipment caused by Tenant moving
property in or out of the Building or by installation or removal of furniture,
fixtures or other property by Tenant shall be repaired, restored or replaced
promptly by Tenant, at its sole cost and expense, to the reasonable satisfaction
of Landlord. All such aforesaid repairs, restoration and replacements shall be
in quality and class equal to the original work or installation but in no event
need exceed Building standards.
(b) By Landlord. Except as otherwise provided in subsection
(a), Landlord shall perform the following maintenance and repairs as and when
necessary (the costs of which shall be Operating Expenses hereunder, to the
extent included in the definition of Operating Expenses in Section 1(c)): (i)
structural repairs to the Leased Premises and Building; (ii) maintenance and
repairs required in order to provide the elevator, plumbing, electrical, heating
and air-conditioning services to be furnished by Landlord pursuant to this
Lease; (iii) maintenance of and repairs to exterior portions of the Building,
including the windows, balconies and roof thereof; (iv) maintenance of and
repairs to the toilet rooms in the Building, and to the public lobbies,
elevators, corridors, stairways, parking garage, sky walk, patios, sidewalks,
roadways and other common areas in the Building and the Land; and (v) other
repairs to the Leased Premises and the Building necessary for Tenant's use and
enjoyment of the Leased Premises. Landlord's obligations to make repairs to the
Leased Premises under the preceding sentence shall not accrue until after notice
to Landlord of the necessity for any specific repair.
8. Rules and Regulations.
Tenant and its agents and employees shall comply with and observe
all reasonable rules and regulations concerning the use, management, operation,
safety and good order of the Leased Premises and the Building which may from
time to time be promulgated by Landlord, provided that such rules and
regulations are not inconsistent with the provisions of this Lease and do not
materially interfere with Tenant's use of the Leased Premises. Initial rules and
regulations, which shall be effective until amended by Landlord, are attached to
this Lease as Exhibit E hereto and made a part hereof. Tenant shall be deemed to
have received notice of any amendment to the rules and regulations when a copy
of such amendment has been delivered to Tenant at the Leased Premises or has
been mailed to Tenant in the manner prescribed for the giving of notices. If
Tenant disputes the reasonableness of any additional rule or regulation
hereafter made or adopted by Landlord, the parties agree to submit the question
of the reasonableness of such rule or regulation for decision to the governing
board for the time being of the Building Owners and Managers Association of
Washington, D.C., or to such impartial person or persons as it or the parties
hereto may designate, whose determination shall be final and conclusive upon the
parties hereto. Tenant may not dispute the reasonableness of any additional rule
or regulation unless Tenant's intention to do so shall be asserted by notice
given to Landlord within 15 days after notice is given to Tenant of the adoption
of any such additional rule or regulation. Landlord shall not be responsible to
Tenant for any violation of the rules and regulations, or the covenants or
agreements contained in any other lease, by any other tenant of the Building, or
such tenant's agents or employees, and Landlord may waive in writing, or
otherwise, any or all of the rules or regulations in respect of any one or more
tenants.
9. Tenant's Alterations and Installments.
(a) Restrictions on Alterations. Tenant shall not make or
perform, or permit the making or performance of, any alterations, installations,
improvements, additions or other physical changes in or about the Leased
Premises (referred to collectively as "Alterations") without Landlord's prior
consent. Landlord agrees not unreasonably to withhold or delay its consent to
any nonstructural Alterations proposed to be made by Tenant to adapt the Leased
Premises for Tenant's business purposes or the business purposes of any other
permitted occupant of the Leased Premises, except that Landlord shall have no
obligation to consent to any Alteration which will reduce the value or utility
of the Building or affect the outside appearance of the Building or the color or
style of any venetian blinds supplied by Landlord (except that Tenant may remove
any such venetian blinds provided Tenant promptly replaces such venetian blinds
with venetian blinds of a similar type and color). Notwithstanding the foregoing
provisions of this subsection or Landlord's consent to any Alterations, all
Alterations, whether made
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prior to or during the Term, shall be made and performed in conformity with and
subject to the following provisions: (i) all Alterations shall be made and
performed at Tenant's sole cost and expense and at such time and in such manner
as Landlord may reasonably from time to time designate; (ii) Alterations shall
be made only by contractors or mechanics approved by Landlord, such approval not
to be unreasonably withheld or delayed; (iii) no Alteration shall materially
affect any part of the Building other than the Leased Premises or adversely
affect any service required to be furnished by Landlord to Tenant or to any
other tenant or occupant of the Building; (iv) all business machines and
mechanical equipment shall be placed and maintained by Tenant in settings
sufficient in Landlord's reasonable judgment to absorb and prevent vibration,
noise and annoyance to other tenants or occupants of the Building; (v) Tenant
shall submit to Landlord reasonably detailed plans and specifications for each
proposed alteration and shall not commence any such Alteration without first
obtaining Landlord's approval of such plans and specifications, which approval
will not be unreasonably withheld or delayed; (vi) all Alterations in or to the
electrical facilities in or serving the Leased Premises shall be subject to the
provisions of Section 5 relating to exceeding electrical capacity; (vii)
notwithstanding Landlord's approval of plans and specifications for any
Alteration, all Alterations shall be made and performed in full compliance with
all Legal Requirements and in accordance with the Rules and Regulations; (viii)
all materials and equipment to be incorporated in the Leased Premises as a
result of all Alterations shall be of good quality; and (ix) Tenant shall
require any contractor performing Alterations to carry and maintain at all times
during the performance of the work, at no expense to Landlord, (i) a policy of
comprehensive public liability insurance, including contractor's liability
coverage, contractual liability coverage, completed operations coverage,
contractor's protective liability coverage and a broad form property damage
endorsement, naming Landlord and (at Landlord's request) any Mortgagee of the
Building and any management agent as additional named insureds), with such
policy to afford protection to the limit of not less than $2,000,000 with
respect to bodily injury or death to any number of persons in any one accident
and to the limit of not less than $1,000,000 to damage to the property of any
one owner from one occurrence, and (ii) workers' compensation or similar
insurance in the form and amounts required by the laws of the State of Virginia.
In the event the estimated cost of an Alteration (which shall include the
aggregate cost of a series of Alterations which are reasonably aggregated into a
single project) is in excess of $100,000.00, or in the event of an Alteration to
a structural member of, or mechanical system in, the Leased Premises, Landlord
shall have the right to place other and further restrictions and conditions
thereon prior to Tenant being authorized to commence such Alteration. Such
additional conditions may include, by way of illustration and not of limitation,
the requirement that the contractor be bonded or bondable. In the event of any
dispute between the parties as to whether or not Landlord has acted reasonably
in any case with respect to which Landlord is required, pursuant to the
provisions of this subsection (a), to do so, Tenant's sole remedy shall be to
submit such dispute to mediation pursuant to Section 28. If the determination in
any such mediation shall be adverse to Landlord, Landlord nevertheless shall not
be liable to Tenant for breach of Landlord's covenant to act reasonably, and
Tenant's sole remedy in such event shall be to proceed with the proposed
Alterations. However, if the parties are unable to settle such matter by
mediation, and such matter is submitted to litigation, Landlord's liability and
Tenant's remedies shall not be so limited.
(b) Tenant's Right to Cure. If Tenant shall be in default under
this Section by reason of the making of any Alteration not hereby authorized or
by reason of failure to give any notice or to obtain any approval required
herein, Tenant may cure such default within the applicable grace period provided
in this Lease for curing such default by removing such Alteration and restoring
the Leased Premises to their former condition, as provided in Section 7.
(c) Fixtures Become Landlord's Property. Except to the extent
specifically provided in subsection (e), all appurtenances, fixtures,
improvements, additions and other property attached to or installed in the
Leased Premises, whether by Landlord or Tenant or others, and whether at
Landlord's expense, or Tenant's expense, or the joint expense of Landlord and
Tenant, which are of a permanent nature or which cannot be removed without
structural damage to the Building, shall be and remain the property of Landlord.
Any replacements of any property of Landlord, whether made at Tenant's expense
or otherwise, shall be and remain the property of Landlord.
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(d) Tenant's Special Installations. All furniture, furnishings
and trade fixtures, excepting lighting fixtures and equipment, but including,
without limitation, murals, carpets, rugs, business machines and equipment,
vaults, vault doors and door frames, and vault equipment, if any, safe deposit
equipment, counterscreens, grillwork, cages, partitions which are moveable,
railings, raised floors, escalators, conveyors, stairs, elevators, paneling,
equipment relating to food preparation, food storage and serving, dishwashing
and cleaning devices and air-conditioning equipment, and any other moveable
property installed by, or at the expense of Tenant, including any such property
paid for with any allowance provided by Landlord to Tenant, shall remain the
property of Tenant and are referred to herein as "Tenant's Special
Installations". Tenant may at its expense remove any part of said property at
any time during the Term, and shall at its expense remove all of said property
at the expiration or other termination of the Term unless Landlord shall
otherwise consent in writing. Upon removal of any or all of said property Tenant
shall then repair all damage caused by such removal. Any of Tenant's Special
Installations which are not removed from the Leased Premises at the expiration
of the Term shall be deemed to have been abandoned by Tenant and may be disposed
of by Landlord without liability to Tenant.
(e) Mechanics' Liens. Notice is hereby given that Landlord
shall not be liable for any labor or materials furnished or to be furnished to
Tenant upon credit, and that no mechanic's, materialman's or other lien for any
such labor or materials shall attach to or affect the reversion or other estate
or interest of Landlord in and to the Leased Premises or the Building. Whenever
and as often as any mechanic's lien or materialman's lien shall have been filed
against the Leased Premises or the Building based upon any act or interest of
Tenant or of anyone claiming through Tenant, or if any lien or security interest
with respect thereto shall have been filed affecting any materials, machinery or
fixtures used in the construction, repair or operation thereof or annexed
thereto by Tenant or its successors in interest, Tenant shall forthwith take
such action by bonding, deposit or payment as will remove or satisfy the lien or
other security interest and in default thereof after the expiration of 20 days
after notice to Tenant, Landlord, in addition to any other remedy under this
Lease, may pay the amount secured by such lien or security interest or discharge
the same by deposit and the amount so paid or deposited shall be collectible as
additional rent. The provisions of this subsection shall not be applicable to
liens filed with respect to work done for Tenant's account by Landlord.
10. Name of Building; Tenant's Signs.
(a) Name. Provided that no Event of Default (as defined in
Section 16) or Event of Bankruptcy (as defined in Section 17) has occurred and
is continuing, throughout the Term, the Building shall be designated as the "ICF
Kaiser Building", and Landlord shall use that name in all advertising prepared
by, or at the direction of, Landlord in connection with the leasing of space in
the Building to the public. Notwithstanding the foregoing, if Tenant shall
change its corporate name, then Tenant shall have the right, by written notice
to Landlord, to require Landlord to re-designate the Building with a name
incorporating all or part of Tenant's new name, provided the same is not in
violation of any rule, regulation or statute having jurisdiction over the
Building or Landlord. In such event, Tenant shall bear all costs of changing the
signage on the Building, and Tenant shall, within fifteen (15) days after
receipt of an invoice therefor, reimburse Landlord for Landlord's reasonable
costs incurred in connection with the Building name change, including costs
incurred to change Landlord's advertising and costs of any required notices to
any governmental agencies. Landlord expressly reserves the right to have the
Building designated by a street number or numbers and to affix to the Building,
at locations designated by Landlord, signs indicating any such number or numbers
and the name of the Building (if any) as selected from time to time by Tenant in
accordance with the provisions of this subsection.
(b) Restrictions on Exterior Signs. Except as otherwise
provided in subsection (d), Landlord has not granted to Tenant any rights in or
to the roof or the outer side of the outside walls of the Building, control of
which is hereby reserved by Landlord. Tenant shall not display or erect any
lettering, signs, advertisements, awnings or other projections on the exterior
of the Leased Premises or in the interior of the Leased Premises if visible from
a public way, except for customary hallway door lettering.
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(c) Directory Tablets. Landlord, at its expense, shall
maintain the existing directory tablets (i) in the main lobby of the other
building in the Office Park, (ii) in the skywalk between the Building and the
other building in the Office Park (located at 9302 Lee Highway), and (iii) on
the walkway between the Building and the other building in the Office Park, upon
each of which Landlord, at Tenant's expense, will affix Tenant's name and a
reasonable number of names of its officers, partners or employees. The size,
color and style of such directories and names affixed thereto shall be selected
by Landlord.
(d) Tenant's Permitted Signs. Subject to Section 10(a) above,
Landlord shall permit Tenant throughout the Term to install and maintain,
subject to Legal Requirements, two suitable signs on the exterior of the
Building. The location, size, color and style of Tenant's exterior signs shall
be subject to Landlord's approval, such approval not to be unreasonably withheld
or delayed. Landlord hereby approves Tenant's signs which are currently on the
Building, and agrees that, if the name of the Building is changed pursuant to
Section 10(a), Tenant, at its expense, may replace such signs with similar signs
displaying the new name.
(e) Access to Roof. Throughout the Term, Landlord shall permit
Tenant to install and maintain, subject to Legal Requirements and the provisions
of this Section 10(e), not more than three (3) satellite or antenna dishes on
the roof of the Building ("Tenant's Roof Use").
(i) Landlord shall make available to Tenant access to and
locations mutually acceptable to Landlord and Tenant on the roof for the
construction, installation, maintenance, repair, operation and use of such
satellite or antenna dishes. Tenant shall screen such installations in a manner
mutually acceptable to Landlord and Tenant. Tenant shall have the right to
remove such satellite or antenna dishes and any related equipment from the
Building at the expiration or other termination of the Term of this Lease,
provided that Tenant repairs any damage occasioned by such removal. Tenant shall
pay all costs associated with the installation, maintenance, repair, use,
insurance and removal of such satellite or antenna dishes and any related
equipment.
(ii) Tenant shall give Landlord's Building manager reasonable
telephonic notice before any entry onto the roof of the Building by Tenant's
agents, employees or contractors, and shall permit Landlord's Building manager
to accompany Tenant's agents, employees or contractors on any such entry onto
the roof. Except as otherwise hereinafter set forth in this Section 10(e),
Landlord shall not be liable for any claims, losses, actions, damages,
liabilities or expenses arising from any satellite or antenna dishes or related
equipment installed by Tenant on the roof of the Building, or the installation,
maintenance, repair, use or removal of such dishes and related equipment, unless
caused by the negligence or willful misconduct of Landlord, its agents,
employees or contractors.
(iii) If Landlord permits any other party to install satellite or
antenna dishes on the roof of the Building, and such equipment interferes with
the operation of Tenant's equipment, then Landlord, at its expense, shall take
whatever measures may be necessary to eliminate such interference.
(iv) If the rate of any insurance carried by Landlord is
increased as a result of Tenant's Roof Use, then Tenant will pay to Landlord
within ten (10) days before the date Landlord is obligated to pay a premium on
the insurance (or within ten (10) days after Landlord delivers to Tenant a
certified statement from Landlord's insurance carrier stating that the rate
increase was caused by Tenant's Roof Use, whichever date is later), a sum equal
to the difference between the original premium and the increased premium
resulting from Tenant's Roof Use.
(v) Landlord has not made any representations or promises
pertaining to the suitability of the Building's roof for Tenant's Roof Use.
Tenant, solely for the purpose of this Section 10(e) and its right to rooftop
access hereunder, accepts the rooftop in its "as is" condition.
(vi) Tenant will obtain prior to installation, any and all
governmental licenses, approvals necessary for the installation, maintenance and
use of any equipment installed pursuant to this Section
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10(e). Tenant's Roof Use shall not in any way conflict with any applicable Legal
Requirements. Tenant shall indemnify and hold Landlord harmless from and against
any and all loss, cost (including reasonable attorney's fees incurred in
defending Landlord), damage or liability arising out of any violation by
Tenant's Roof Use of any applicable Legal Requirements.
(vii) Tenant's Roof Use shall be exercised: (1) in such manner
as will not create any hazardous condition or interfere with or impair the
operation of the heating, ventilation, air conditioning, plumbing, electrical,
fire protection, life, safety, public utilities or other systems or facilities
in the Building; (2) in compliance with all applicable Legal Requirements; (3)
in such a manner as will not unreasonably interfere with Landlord's operation or
maintenance of the Building; (4) at Tenant's cost, including the cost of
repairing any damage to the Building and any personal injury and/or property
damage caused by the installation, inspection, adjustment, maintenance, removal
or replacement of any of Tenant's equipment on the roof; and (5) in a manner
which will not void or invalidate any roof warranty then in effect with respect
to the roof of the Building. Tenant's Roof Use shall be used solely in the
ordinary course of Tenant's business operations (and not for resale by Tenant),
and any use of the roof outside of the ordinary course of Tenant's business
operations (such as, but not limited to, subleasing portions of the roof for
profit to third parties, in order for such third parties to establish
communications transmission facilities) shall be subject to Landlord's consent,
which consent shall not be unreasonably withheld, but may be conditioned, inter
alia, upon the payment by Tenant to Landlord of any net revenues paid to Tenant
in respect thereof.
11. Liability Insurance.
(a) Required Coverage. Tenant, at Tenant's sole cost and
expense, shall obtain and maintain in effect at all times during the Term, a
policy of comprehensive general public liability insurance with broad form
property damage endorsement, naming Landlord and (at Landlord's request) any
Mortgagee of the Building and any management agent as additional insured(s),
protecting Landlord, Tenant and any such Mortgagee and management agent against
any liability for bodily injury, death or property damage occurring upon, in or
about any part of the Building, including the roof, or the Land, the Leased
Premises or any appurtenances thereto, with such policies to afford protection
to the limit of $5,000,000 with respect to bodily injury or death to any one
person, to the limit of $5,000,000 with respect to bodily injury or death to any
number of persons in any one accident, and to the limit of $5,000,000 with
respect to damage to the property of any one owner from one occurrence. Such
comprehensive liability insurance may be effected by a policy or policies of
blanket insurance which cover other property in addition to the Leased Premises,
provided that the protection afforded thereunder shall be no less than that
which would have been afforded under a separate policy or policies relating only
to the Leased Premises and provided further that in all other respects any such
policy shall comply with the other provisions of this Section.
(b) Policy Requirements. The insurance policy required to be
obtained by Tenant under this Section: (i) shall be issued by insurance
companies rated A- or better in the most current issue of Best's Insurance
Reports, licensed to do business in the state in which the Building is located
and domiciled in the United States; and (ii) shall be written as primary policy
coverage and not contributing with or in excess of any coverage which Landlord
may carry. Neither the issuance of any insurance policy required under this
Lease, nor the minimum limits specified herein with respect to Tenant's
insurance coverage, shall be deemed to limit or restrict in any way Tenant's
liability arising under or out of this Lease. With respect to each insurance
policy required to be obtained by Tenant under this Section, on or before the
Lease Commencement Date, and at least 30 days before the expiration of the
expiring policy or certificate previously furnished, Tenant shall deliver to
Landlord a certificate of insurance therefor, together with evidence of payment
of all applicable premiums. Each insurance policy required to be carried
hereunder by or on behalf of Tenant shall provide (and any certificate
evidencing the existence of each such insurance policy shall certify) that such
insurance policy shall not be canceled unless Landlord shall have received 20
days' prior written notice of cancellation.
(c) Indemnification of Landlord. Except for the willful or
negligent acts or omissions of Landlord or its agents or employees, Tenant
hereby agrees to indemnify and hold harmless Landlord
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from and against any and all claims, losses, actions, damages, liabilities and
expenses (including attorneys' fees) that (i) arise from or are in connection
with Tenant's possession, use, occupancy, management, repair, maintenance or
control of the Leased Premises, or any portion thereof, or (ii) arise from or
are in connection with any willful or negligent act or omission of Tenant or
Tenant's agents, employees or subtenants, or (iii) result from any default,
breach, violation or nonperformance of this Lease or any provision therein by
Tenant, or (iv) arise from injury or death to persons or damage to property
sustained on or about the Leased Premises, or (v) arise from Tenant's
installation, maintenance, repair, use or removal of any rooftop satellite or
antenna dishes or related equipment. Tenant shall, at its own cost and expense,
defend any and all actions, suits and proceedings which may be brought against
Landlord with respect to the foregoing or in which Landlord may be impleaded.
Tenant shall pay, satisfy and discharge any and all money judgments which may be
recovered against Landlord in connection with the foregoing.
(d) Indemnification of Tenant. Except for the willful or
negligent acts or omissions of Tenant or its agents or employees, Landlord
hereby agrees to indemnify and hold harmless Tenant from and against any and all
claims, losses, actions, damages, liabilities and expenses (including attorneys'
fees) that (i) arise from or are in connection with Landlord's possession, use,
occupancy, management, repair, maintenance or control of the common areas of the
Building located on any Floor not wholly occupied by Tenant, or (ii) arise from
or are in connection with any willful or negligent act or omission of Landlord
or Landlord's agents or employees, or (iii) result from any default, breach,
violation or nonperformance of this Lease or any provision therein by Landlord,
or (iv) arise from injury or death to persons or damage to property sustained on
or about the common areas of the Building located on any Floor not wholly
occupied by Tenant. Landlord shall, at its own cost and expense, defend any and
all actions, suits and proceedings which may be brought against Tenant with
respect to the foregoing or in which Tenant may be impleaded. Landlord shall
pay, satisfy and discharge any and all money judgments which may be recovered
against Tenant in connection with the foregoing.
12. Fire Insurance.
(a) Required Coverage. Landlord shall, throughout the Term, at
its expense, keep the Building, but not Tenant's Special Installations,
Alterations or Tenant's furniture, furnishings, trade fixtures or property
removable by Tenant under the provisions of this Lease (including any rooftop
satellite or antenna dishes and related equipment), insured against all loss or
damage by fire with extended coverage in such amount as any first Mortgagee of
the Building may from time to time require. Tenant shall, throughout the Term,
at its expense, keep Tenant's Special Installations and Alterations and Tenant's
personal property, including any rooftop satellite or antenna dishes and related
equipment, insured against all loss or damage by fire with extended coverage in
an amount sufficient to prevent Tenant from becoming a co-insurer. Tenant's
policies of insurance shall contain, if available from the insurer, an
appropriate clause or endorsement under which the insurer agrees that such
policy shall not be canceled without at least 30 days notice to Landlord.
(b) Notice of Insurance Coverage. Landlord and Tenant will (i)
if requested, advise the other as to the provisions of fire and extended
coverage insurance policies obtained pursuant to this Section, and (ii) notify
the other promptly of any change in the terms of any such policy which would
affect such provisions.
(c) Mutual Waiver of Subrogation
(i) Notwithstanding anything to the contrary in this Lease,
whether the loss or damage is due to the negligence of Landlord or Landlord's
agents or employees, or any other cause, Tenant hereby releases Landlord and
Landlord's agents and employees from responsibility for and waives its entire
claim of recovery for (i) any and all loss or damage to the personal property of
Tenant located in the Building (excluding any personal property required to be
insured by Landlord pursuant to the provisions hereof), arising out of any of
the perils which are covered by Tenant's property insurance policy, with
extended coverage endorsements which Tenant is required to obtain under the
applicable provisions of this Lease, whether or not actually obtained.
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(ii) Notwithstanding anything to the contrary in this Lease,
whether the loss or damage is due to the negligence of Tenant or Tenant's agents
or employees, or any other cause, Landlord hereby releases Tenant and Tenant's
agents and employees from responsibility for and waives its entire claim of
recovery for any and all loss or damage to the Building or any personal property
of Landlord located about the Building and the Building generally and all
property attached thereto (excluding any such property required to be insured by
Tenant hereunder), arising out of any of the perils which are covered by
Landlord's property insurance policy which Landlord is required to obtain under
the applicable provisions of this Lease, whether or not actually obtained.
(iii) Landlord and Tenant shall each cause its respective
property insurance carrier(s) to consent to such waiver of all rights of
subrogation against the other, and to issue an endorsement to all policies of
property insurance obtained by such party confirming that the foregoing release
and waiver will not invalidate such policies.
13. Damage by Fire or Other Casualty.
In the event of loss of, or damage to, the Leased Premises or the
Building by fire or other casualty, the rights and obligations of the parties
hereto shall be as follows:
(a) Repair of Damage. If the Leased Premises or any part
thereof shall be damaged by fire or other casualty, Tenant shall give prompt
notice thereof to Landlord, and Landlord, upon receiving such notice, shall
proceed promptly and with reasonable diligence, subject to Unavoidable Delays,
to repair, or cause to be repaired, such damage in a manner designed to minimize
interference with Tenant's occupancy (but with no obligation to employ labor at
overtime or other premium pay rates). If the Leased Premises or any part thereof
shall be rendered untenantable by reason of such damage, whether to the Leased
Premises or the Building, the Basic Rent and Additional Charges shall
proportionately abate with respect thereto for the period from the date of such
damage to the date when such damage shall have been repaired for the portion of
the Leased Premises rendered untenantable. However, if, prior to the date when
all of such damage shall have been repaired, any part of the Leased Premises is
damaged shall be rendered tenantable and shall be used or occupied by Tenant or
any Person or Persons claiming through or under Tenant, then the amount by which
the Basic Rent and Additional Charges shall abate shall be equitably apportioned
for the period from the date of any such use.
(b) Termination of Lease by Landlord or Tenant. If as a result
of fire or other casualty more than one-half (1/2) of the Building Rentable
Area is rendered untenantable, Landlord within 60 days from the date of such
fire or casualty may terminate this Lease by notice to Tenant, specifying a
date, not less than 20 nor more than 40 days after the giving of such notice, on
which the Term shall expire as fully and completely as if such date were the
date herein originally fixed for the expiration of the Term. If the Leased
Premises are damaged as a result of fire or other casualty and if the damage to
the Leased Premises (but not including Tenant's Special Installations or
Alterations) is so extensive that such damage cannot be substantially repaired
within 240 days from the date of the fire or other casualty (except for
Unavoidable Delays), either Landlord or Tenant within 30 days from the date of
such fire or other casualty may terminate this Lease by notice to the other,
specifying a date, not less than 20 nor more than 40 days after the giving of
such notice, on which the Term shall expire as fully and completely as if such
date were the date originally fixed for the expiration of the Term. If either
Landlord or Tenant terminates this Lease, the Basic Rent and Additional Charges
shall be apportioned as of the date of such fire or other casualty. If neither
Landlord nor Tenant so elects to terminate this Lease, then Landlord shall
proceed to repair the damage to the Building and the damage to the Leased
Premises (but not Tenant's Special Installations or Alterations), if any shall
have occurred, and the Basic Rent and Additional Charges shall meanwhile be
apportioned and abated all as provided in subsection (a). However, if such
damage is not repaired and the Leased Premises and the Building restored to
reasonably the same condition as they were prior to such damage within 240 days
from the date of such damage (such 240-day period to-be extended by the period
of any Unavoidable Delays), Tenant, within 30 days from the expiration of such
240-day period (as the same may be extended), may terminate this Lease by notice
to Landlord, specifying a date not more than 60 days after the giving of such
notice on which the Term shall expire as fully and completely as if such date
were the date herein originally fixed for the expiration of the Term.
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(c) Termination of Lease by Landlord. If the Leased Premises
shall be rendered untenantable to the extent of eighty percent (80%) or more by
fire or other casualty during the last six months of the Term, Landlord or
Tenant may terminate this Lease upon notice to the other party given within 90
days after such fire or other casualty specifying a date, not less than 20 days
nor more than 40 days after the giving of such notice, on which the Term shall
expire as fully and completely as if such date were the date originally fixed
for the expiration of the Term. If either Landlord or Tenant terminates this
Lease pursuant to this subsection, the Basic Rent and Additional Charges shall
be apportioned as of the date of such fire or casualty.
(d) Limitation on Landlord's Repair Obligation. Landlord shall
not be required to repair or replace any of Tenant's Special Installations or
Alterations or any other personal property of Tenant and no damages,
compensation or claim shall be payable by Landlord for inconvenience, loss of
business or annoyance arising from any repair or restoration of any portion of
the Leased Premises or of the Building, but the foregoing shall not be deemed to
relieve Landlord of liability for its breach of any covenant of this Lease.
(e) Inapplicability of Other Laws. The provisions of this
Section shall be considered an express agreement governing any instance of
damage or destruction of the Building or the Leased Premises by fire or other
casualty, and any law now or hereafter in force providing for such a contingency
in the absence of express agreement shall have no application.
(f) Landlord Released from Liability. Notwithstanding any other
provision of this Lease, Landlord shall not be liable or responsible for, and
Tenant hereby releases Landlord and its partners, officers, directors, agents
and employees from, any and all liability or responsibility to Tenant or any
Person claiming by, through or under Tenant, by way of subrogation or otherwise,
for any injury, loss or damage to Tenant's property caused by any of the perils
insured against by the fire insurance policy with extended coverage endorsement
which is customarily issued in Fairfax County, Virginia, and Tenant shall
require its insurer(s) to include in all of Tenant's insurance policies which
could give rise to a right of subrogation against Landlord a clause or
endorsement whereby the insurer(s) shall waive any right of subrogation against
Landlord.
(g) Tenant Released from Liability. Notwithstanding any other
provision of this Lease, Tenant shall not be liable or responsible for, and
Landlord hereby releases Tenant and its partners, officers, directors, agents
and employees from, any and all liability or responsibility to Landlord or any
Person claiming by, through or under Landlord, by way of subrogation or
otherwise, for any injury, loss or damage to Landlord's property caused by any
of the perils insured against by the fire insurance policy with extended
coverage endorsement which is customarily issued in Fairfax County, Virginia,
and Landlord shall require its insurer(s) to include in all of Landlord's
insurance policies which could give rise to a right of subrogation against
Tenant a clause or endorsement whereby the insurer(s) shall waive any rights of
subrogation against Tenant.
(h) Insurance Proceeds. The proceeds payable under all fire and
other hazard insurance policies maintained by Landlord on the Building shall
belong to and be the property of Landlord, and Tenant shall not have any
interest in such proceeds. Tenant agrees to look to its own fire and hazard
insurance policies in the event of damage to Tenant's Special Installations or
Alterations or its personal property.
14. Condemnation.
(a) Effect of Taking. In the event of a Taking of the whole of
the Leased Premises, this Lease shall terminate as of the date of such Taking.
If only a part of the Leased Premises shall be so taken then, except as
otherwise provided in this subsection, this Lease shall continue in force and
effect but, from and after the date of the Taking, the Basic Rent and Additional
Charges shall be reduced on the basis of the square footage of the portion of
the Leased Premises so taken. If a part of the Building shall be taken, and if
either (i) the part of the Building so taken contains more than twenty-five
percent (25%) of the Rentable Area of the Leased Premises, immediately prior to
such Taking, or (ii) in Landlord's reasonable opinion, it shall be impracticable
to continue to
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operate the Building, then Landlord, at Landlord's option, may give to Tenant
within 60 days after the date upon which Landlord shall have received notice of
the Taking, a 30 days' notice of termination of this Lease. If a part of the
Building shall be taken, and if either (i) the part of the Building taken
contains more than thirty-five percent (35%) of the Rentable Area of the Leased
Premises immediately prior to such Taking, or (ii) by reason of such Taking, all
or substantially all of the Leased Premises becomes untenantable and Tenant is
unable and does not, in fact use all or substantially all of the Leased Premises
for the uses permitted by Section 6(a), then Tenant, at Tenant's option, may
give to Landlord within 60 days after the date upon which Tenant shall have
received notice of such Taking, a 30 days' notice of termination of this Lease.
If a 30 days' notice of termination is given by Landlord or Tenant, this Lease
shall terminate upon the expiration of the 30-day period. If this Lease is
terminated pursuant to the foregoing provisions of this subsection, then, to the
extent permitted by applicable law and such Taking, Tenant shall have access to
the Leased Premises in order to remove Tenant's Special Installations and any
other personal property then owned by Tenant and which Tenant is entitled to
remove pursuant to this Lease during the period of 30 days from the date Tenant
is permitted access therefor. If a Taking occurs which does not result in the
termination of this Lease, Landlord shall repair, alter and restore the
remaining portions of the Leased Premises to their former condition to the
extent that the same may be feasible.
(b) Award. Landlord shall have the exclusive right to receive
any and all awards made for damages to the Leased Premises and the Building
accruing by reason of a Taking or by reason of anything lawfully done in
pursuance of public or other authority. Tenant hereby releases and assigns to
Landlord all of Tenant's rights to such awards, and covenants to deliver such
further assignments and assurances thereof as Landlord may from time to time
request, hereby irrevocably designating and appointing Landlord as its attorney-
in-fact to execute and deliver in Tenant's name and behalf all such further
assignments thereof. However, Tenant shall have the right to make its own claim
against the condemning authority for a separate award for the value of any of
Tenant's Special Installations and Alterations, for moving and relocation
expenses and for such business damages and/or consequential damages as may be
allowed by law which do not constitute part of the compensation for the Building
and do not diminish the amount of the award to which Landlord would otherwise be
entitled.
15. Assignment and Subletting.
(a) Subletting to ICF Kaiser International, Inc. It is
understood and agreed that Tenant will sublet the entire Leased Premises to its
affiliate, ICF Kaiser International, Inc., for a basic rent in excess of the
Basic Rent payable hereunder. Upon the written request of Landlord or any
Mortgagee following an event of default under any loan secured by a Mortgage,
Tenant shall pay to Landlord one hundred percent (100%) of the amount of such
excess, monthly as received by Tenant from ICF Kaiser International, Inc.
(b) Assignment and Subletting Prohibited. Tenant shall not
mortgage, pledge, encumber, sell, assign or transfer this Lease, in whole or in
part, by operation of law or otherwise, or sublease all or any part of the
Leased Premises, without Landlord's written consent, which consent may be
withheld for any reason whatsoever except as provided in subsection (a) and
subsection (d). In connection with any request by Tenant for such consent to
assign or sublet, Tenant shall submit to Landlord, in writing, a statement
containing the name of the proposed assignee or subtenant, such information as
to its financial responsibility and standing as Landlord may reasonably require,
and all of the terms and provisions upon which the proposed assignment or
subletting is to be made, and, unless the proposed sublet area shall constitute
the entire Leased Premises, such statement shall be accompanied by a floor plan
delineating the proposed sublet area. Any attempted transfer, assignment,
subletting, mortgaging or encumbering of this Lease in violation of the
provisions of this Section shall be void and confer no rights upon any third
person. No permitted assignment or subletting shall relieve Tenant of any of its
obligations under this Lease.
(c) Merger and Consolidation. Notwithstanding the provisions of
subsection (b), Tenant shall have the privilege, without the consent of
Landlord, to assign its interest in this Lease to any corporation which is a
successor to Tenant, either by merger or consolidation, or to any corporation
which controls,
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is controlled by, or is under common control with, the Tenant. However, no such
assignment shall be valid unless, within 10 days after the consummation thereof,
Tenant shall deliver to Landlord (i) a duplicate original instrument of
assignment in form reasonably satisfactory to Landlord, duly executed by Tenant,
and (ii) an instrument in form and substance reasonably satisfactory to
Landlord, duly executed by the assignee, in which such assignee shall agree to
observe and perform, and to be personally bound by, all of the terms, covenants
and conditions of this Lease on Tenant's part to be observed and performed,
whether or not accruing prior to or after the date of such assignment and
whether or not relating to matters arising prior to such assignment.
(d) Permitted Subletting. Unless an Event of Default has
occurred and is continuing, Landlord shall not unreasonably withhold or delay
Landlord's consent to sublettings by Tenant of a part or parts of the Leased
Premises, but Landlord shall not be obligated to consent to a subletting for a
use prohibited by Section 6(a). Each such subletting shall be for undivided
occupancy by the subtenant of that part of the Floor affected thereby for the
use permitted under this Lease. Landlord may, however, withhold such consent if,
in Landlord's reasonable judgment, the proposed subtenant is not engaged in a
business consistent with the character and dignity of the Building, or will
impose any additional material burden upon Landlord in the operation of the
Building (to an extent greater than the burden to which Landlord would have been
put if Tenant continued to use, or used, such part of the Leased Premises for
its own purposes). In the event of any dispute between Landlord and Tenant as to
the reasonableness of Landlord's refusal to consent to any subletting such
dispute shall be submitted to mediation pursuant to Section 28. Except as
otherwise set forth in subsection (a), if any portion of the Leased Premises is
sublet at any time, and if the rent received by Tenant on account of such
subletting exceeds the Basic Rent, allocated to the space subject to the
sublease in the proportion of the area of such space to the Rentable Area of the
Leased Premises, plus actual out-of-pocket expenses incurred by Tenant in
connection with Tenant's subleasing of such space, including advertising,
attorneys' fees, brokerage commissions and the unamortized cost of preparing
such space for occupancy by the subtenant, then, except as otherwise provided in
the next sentence, Tenant shall pay to Landlord fifty percent (50%) of such
excess, monthly as received by Tenant from the subtenant. Except as otherwise
set forth in subsection (a), Landlord shall not share in any profit derived by
Tenant from the permitted subletting of all or any part of the space located on
the Floor designated by Tenant as its "Sublet Floor" in a notice given to
Landlord before Tenant enters into its first permitted sublease pursuant to this
subsection. Notwithstanding anything to the contrary in this Section 15(d),
Tenant shall have the right to sublet space in the Leased Premises to Tenant's
affiliates (hereinafter defined), subcontractors or consultants without notice
to or the consent of Landlord, and, except as set forth in Section 15(a),
without paying any portion of the profits of such subletting to Landlord. As
used herein, a "Tenant's affiliate" shall mean a corporation or other entity
which controls, is controlled by or is under common control with Tenant, or
which is a joint venture partner of Tenant.
(e) Collection of Rent from Assignee. If Tenant's interest in
this Lease is assigned, whether or not in violation of the provisions of this
Section, Landlord may collect rent from the assignee; if the Leased Premises or
any part thereof are sublet to, or occupied by, or used by, any Person other
than Tenant, whether or not in violation of this Section, Landlord, after
default by Tenant under this Lease, may collect rent from the subtenant, user or
occupant. In either case, Landlord shall apply the amount collected to the rents
reserved in this Lease, but neither any such assignment, subletting, occupancy
or use, whether with or without Landlord's prior consent, nor any such
collection or application, shall be deemed a waiver of any term, covenant or
condition of this Lease or the acceptance by Landlord of such assignee,
subtenant, occupant or user as tenant. The consent by Landlord to any assignment
or subletting shall not relieve Tenant from its obligation to obtain the express
prior consent of Landlord to any further assignment or subletting. The listing
of any name other than that of Tenant on any door of the Leased Premises or on
any directory in the Building, or otherwise, shall not operate to vest in the
Person so named any right or interest in this Lease or in the Leased Premises or
be deemed to constitute, or serve as a substitute for, any prior consent of
Landlord required under this Section, and it is understood that any such listing
shall constitute a privilege extended by Landlord which shall be revocable at
Landlord's will by notice to Tenant. Neither an assignment of Tenant's interest
in this Lease nor a subletting, occupancy or use of the Leased Premises or any
part thereof by any Person other than Tenant, nor the collection of rent by
Landlord from any Person other than Tenant as provided in this subsection, nor
the application of any such rent as provided in this subsection shall, in
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any circumstances, relieve Tenant from its obligation fully to observe and
perform the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed.
16. Default Provisions.
(a) Events of Default. Each of the following events shall be
deemed to be, and is referred to in this Lease as, an "Event of Default":
(1) A default by Tenant in making any payment of Basic Rent or
Additional Charges on the date such payment is due and payable which continues
for more than five days after Landlord shall have given Tenant a written notice
specifying such default; or
(2) If, within any period of 12 consecutive months, Landlord has
given two written notices to Tenant pursuant to paragraph (1), a further default
by Tenant, within the 12-month period after the giving of the second such
notice, in making any payment of Basic Rent or Additional Charges on the date
such payment is due which continues for more than 10 days after such payment is
due; or
(3) The neglect or failure of Tenant to perform or observe any
of the terms, covenants or conditions contained in this Lease on Tenant's part
to be performed or observed (other than those referred to in paragraph (1)
above) which is not remedied by Tenant (i) within 20 days after Landlord shall
have given to Tenant written notice specifying such neglect or failure, or (ii)
in the case of any such neglect or failure which cannot with due diligence and
in good faith be cured within 20 days, within such additional period, if any, as
may be reasonably required to cure such default with due diligence and in good
faith provided that Tenant commences the curing of the same within the 20-day
period (it being intended that, in connection with any such default which is not
susceptible of being cured with due diligence and in good faith within 20 days,
the time within which the Tenant is required to cure such default shall be
extended for such additional period as may be necessary for the curing thereof
with due diligence and in good faith); or
(4) The assignment, transfer, mortgaging or encumbering of this
Lease or the subletting of the Leased Premises in a manner not permitted by
Section 15; or
(5) The taking of this Lease or the Leased Premises, or any part
thereof, upon execution or by other process of law directed against Tenant, or
upon or subject to any attachment at the instance of any creditor of or claimant
against Tenant, which execution or attachment shall not be discharged or
disposed of within 30 days after the levy thereof.
(b) Landlord's Rights Upon Event of Default. Upon the
occurrence of an Event of Default, Landlord shall have the right, at its
election, then or at any time thereafter while such Event of Default shall
continue, either:
(1) To give Tenant written notice that this Lease will terminate
on a date to be specified in such notice, which date shall not be less than
three days after such notice if such notice is sent by registered or certified
mail, but which date may be the date of such notice or any date thereafter if
such notice is delivered in person, and on the date specified in such notice
Tenant's right to possession of the Leased Premises shall cease and this Lease
shall thereupon be terminated, but Tenant shall remain liable as provided in
subsection (c); or
(2) Without demand or notice, to reenter and take possession of
the Leased Premises, or any part thereof, and repossess the same as of
Landlord's former estate and expel Tenant and those claiming through or under
Tenant and remove the effects of both or either, either by summary proceedings,
or by action at law or in equity, without being deemed guilty of any manner of
trespass and without prejudice to any remedies for arrears of rent or preceding
breach of covenant.
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If Landlord elects to re-enter under paragraph (2), Landlord may
terminate this Lease, or, from time to time, without terminating this Lease, may
relet the Leased Premises, or any part thereof, as agent for Tenant for such
term or terms and at such rental or rentals and upon such other terms and
conditions as Landlord may deem advisable, with the right to make alterations
and repairs to the Leased Premises. No such re-entry or taking of possession of
the Leased Premises by Landlord shall be construed as an election on Landlord's
part to terminate this Lease unless a written notice of such intention is given
to Tenant under paragraph (1) or unless the termination thereof be decreed by a
court of competent jurisdiction. Tenant waives any right to the service of any
notice of Landlord's intention to reenter provided for by any present or future
law.
(c) Tenant's Liability for Damages. If Landlord terminates this
Lease pursuant to subsection (b), Tenant shall remain liable (in addition to
accrued liabilities) to the extent legally permissible for (i) the sum of (A)
all Basic Rent and Additional Charges provided for in this Lease until the date
this Lease would have expired had such termination not occurred, and (B) any and
all reasonable expenses incurred by Landlord in reentering the Leased Premises,
repossessing the same, making good any default of Tenant, painting, altering or
dividing the Leased Premises, combining the same with any adjacent space for any
new tenants, putting the same in proper repair, reletting the same (including
any and all reasonable attorney's fees and disbursements and reasonable
brokerage fees incurred in so doing), and any and all expenses which Landlord
may incur during the occupancy of any new tenant (other than expenses of a type
that are Landlord's responsibility under the terms of this Lease); less (ii) the
proceeds of any reletting. Tenant agrees to pay to Landlord the difference
between items (i) and (ii) above with respect to each month during the Term, at
the end of such month. Any suit brought by Landlord to enforce collection of
such difference for any one month shall not prejudice Landlord's right to
enforce the collection of any difference for any subsequent month. In addition
to the foregoing, Tenant shall pay to Landlord, whether or not the Lease is
terminated, such sums as the court which has jurisdiction thereover may adjudge
reasonable as attorney's fees with respect to any successful law suit or action
instituted by Landlord to enforce the provisions of this Lease. Landlord shall
have the right, at its sole option, to relet the whole or any part of this
Leased Premises for the whole of the unexpired Term, or longer, or from time to
time for shorter periods, for any rental then obtainable, giving such
concessions of rent and making such special repairs, alterations, decorations
and paintings for any new tenant as Landlord, in its sole and absolute
discretion, may deem advisable. Tenant's liability as aforesaid shall survive
the institution of summary proceedings and the issuance of any warrant
thereunder. Landlord shall be under no obligation to relet the Leased Premises,
but agrees to use its best efforts to do so.
(d) Liquidated Damages. If Landlord terminates this Lease
pursuant to subsection (b), Landlord shall have the right, at any time, at its
option, to require Tenant to pay to Landlord, on demand, as liquidated and
agreed final damages in lieu of Tenant's liability under subsection (c), an
amount equal to the difference discounted to the date of such demand at an
annual rate of interest equal to the then-current yield on actively traded U.S.
Treasury bonds with 10-year maturities, as published in the Federal Reserve
Statistical Release for the week prior to the date of such termination, between
(i) the Basic Rent and Additional Charges, computed on the basis of the then
current annual rate of Basic Rent and Additional Charges, which would have been
payable from the date of such demand to the date when this Lease would have
expired, if it had not been terminated, and (ii) the then fair rental value of
the Leased Premises for the same period. Upon exercise of this option by
Landlord and payment of such liquidated and agreed final damages, Tenant shall
be released from all further liability under this Lease with respect to the
period after the date of such demand. If, after the Event of Default giving rise
to the termination of this Lease, but before presentation of proof of such
liquidated damages, the Leased Premises, or any part thereof, shall be relet by
Landlord for a term of one year or more, the amount of rent reserved upon such
reletting shall be deemed to be the fair rental value for the part of the Leased
Premises so relet during the term of such reletting.
(e) Rights and Remedies Cumulative. The rights and remedies
herein conferred are cumulative and not exclusive of any other rights or
remedies, and shall be in addition to every other right, power and remedy that
Landlord may have, whether specifically granted herein, or presently or
hereafter existing at law, in equity, or by statute.
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17. Bankruptcy.
(a) Events of Bankruptcy. The following shall be Events of
Bankruptcy under this Lease: (i) Tenant's becoming insolvent, as that term is
defined in Title 11 of the United States Code (the "Bankruptcy Code"), or under
the insolvency laws of any state, district, commonwealth or territory of the
United States (the "Insolvency Laws"); (ii) the appointment of a receiver or
custodian for any or all of Tenant's property or assets, or the institution of a
foreclosure action upon any of Tenant's real or personal property; (iii) the
filing of a voluntary petition under the provisions of the Bankruptcy Code or
Insolvency Laws; (iv) the filing of an involuntary petition against Tenant as
the subject debtor under the Bankruptcy Code or Insolvency Laws, which either
(A) is not dismissed within sixty (60) days of filing, or (B) results in the
issuance of an order for relief against the debtor; or (iv) Tenant's making or
consenting to an assignment for the benefit of creditors or a common law
composition of creditors.
(b) Landlord's Rights Upon Event of Bankruptcy. Upon the
occurrence of an Event of Bankruptcy, Landlord shall have all rights and
remedies available to Landlord pursuant to Section 16; provided, however, that
while a case in which Tenant is the subject debtor under the Bankruptcy Code is
pending, Landlord shall not exercise its rights and remedies pursuant to Section
16 so long as (1) the Bankruptcy Code prohibits the exercise of such rights and
remedies, and (2) Tenant or its Trustee in Bankruptcy (hereinafter referred to
as "Trustee") (i) cures all defaults under this Lease, (ii) compensates Landlord
for monetary damages incurred as a result of such defaults, (iii) provides
adequate assurance of future performance on the part of Tenant as debtor in
possession or on the part of the assignee tenant, and (iv) complies with all
other requirements of the Bankruptcy Code.
18. Either Party May Perform the Other's Obligations.
If Tenant shall fail to keep or perform any of its obligations as
provided in this Lease in respect to (a) maintenance of insurance, (b) repairs
and maintenance of the Leased Premises, (c) compliance with Legal Requirements,
or (d) the making of any other payment or performance of any other obligation,
then Landlord may (but shall not be obligated to do so) upon the continuance of
such failure on Tenant's part for 10 days after written notice to Tenant (or
after such additional period, if any, as Tenant may reasonably require to cure
such failure if of a nature which cannot be cured within said 10 day period), or
without notice in the case of an emergency, and without waiving or releasing
Tenant from any obligation, and as an additional but not exclusive remedy, make
any such payment or perform any such obligation and all sums so paid by Landlord
and all necessary incidental costs and expenses, including attorney's fees,
incurred by Landlord in making such payment or performing such obligation,
together with interest thereon from the date of payment at the Default Interest
Rate, shall be deemed additional rent and shall be paid to Landlord on demand,
or at Landlord's option may be added to any installment of Basic Rent thereafter
falling due, and if not so paid by Tenant, Landlord shall have the same rights
and remedies as in the case of a default by Tenant in the payment of Basic Rent.
If Landlord shall fail to keep or perform any of its obligations as provided in
this Lease in respect to (a) maintenance of insurance, (b) repairs and
maintenance of the Leased Premises, the Building or the common areas, or (c) the
making of any other payment or performance of any other obligation, then Tenant
may (but shall not be obligated to do so) upon the continuance of such failure
on Landlord's part for 10 days after written notice to Landlord (or after such
additional period, if any, as Landlord may reasonably require to cure such
failure if of a nature which cannot be cured within said 10 day period), or
without notice in the case of an emergency, and without waiving or releasing
Landlord from any obligation, and as an additional but not exclusive remedy,
make any such payment or perform any such obligation and all sums so paid by
Tenant and all necessary incidental costs and expenses, including attorney's
fees, incurred by Tenant in making such payment or performing such obligation,
together with interest thereon from the date of payment at the Default Interest
Rate, shall be paid by Landlord to Tenant on demand.
19. Security Deposit.
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(a) Use and Application. Tenant has deposited with Landlord the
Security Deposit, as security for the prompt, full and faithful performance by
Tenant of each and every provision of this Lease and of all obligations of
Tenant hereunder. Landlord has invested the Security Deposit, and shall keep
the same invested, in (i) prime commercial paper, banker's acceptances or
certificates of deposit in United States commercial banks (having net assets in
excess of $100,000,000), in each case having a maturity of not more than 30
days, or (ii) obligations of the United States Government having a maturity of
not more than 90 days, or (iii) one or more mutual funds which invest their
assets primarily in investment of the type described in clauses (i) and (ii), or
(iv) one or more interest-bearing accounts in financial institutions the
deposits in which are insured by an agency of the United States. If an Event of
Default occurs, Landlord may use, apply or retain the whole or any part of the
Security Deposit for the payment of (i) any Basic Rent or Additional Charges
which Tenant may not have paid or which may become due after the occurrence of
such Event of Default, (ii) any sum expended by Landlord on Tenant's behalf in
accordance with the provisions of this Lease, or (iii) any sum which Landlord
may expend or be required to expend by reason of Tenant's default, including
damages or deficiency in the reletting of the Leased Premises as provided in
Section 16. The use, application or retention of the Security Deposit, or any
portion thereof, by Landlord shall not prevent Landlord from exercising any
other right or remedy provided by this Lease or by law and shall not operate as
a limitation on any recovery to which Landlord may otherwise be entitled. If
any portion of the Security Deposit is used, applied or retained by Landlord for
the purpose set forth above, Tenant agrees, within 10 days after a written
demand therefor is made by Landlord, to deposit cash with the Landlord in an
amount sufficient to restore the Security Deposit to its original amount.
(b) Return of Security Deposit. Provided that Tenant is not
then in default, the Security Deposit, or any balance thereof, and all accrued
interest or gains thereon, shall be returned to Tenant within thirty (30) days
after the expiration of the Term. In the absence of evidence satisfactory to
Landlord of any permitted assignment of the right to receive the Security
Deposit, or the remaining balance thereof, Landlord may return the same to the
original Tenant, regardless of one or more assignments of Tenant's interest in
this Lease or the Security Deposit. In such event, upon the return of the
Security Deposit (or balance thereof) to the original Tenant, Landlord shall be
completely relieved of liability under this Section.
(c) Return of Accrued Interest on Security Deposit. Within
thirty (30) days after the execution of this Lease by both parties hereto,
Landlord will return all accrued interest on the Security Deposit to Tenant.
(d) Transfer of Security Deposit. In the event of a transfer of
Landlord's interest in the Leased Premises, Landlord shall have the right to
transfer the Security Deposit to the transferee thereof. In such event, upon the
delivery by Landlord to Tenant of such transferee's written acknowledgment of
its receipt of the Security Deposit, Landlord shall be deemed to have been
released by Tenant from all liability or obligation for the return of the
Security Deposit, and Tenant agrees to look solely to such transferee for the
return of the Security Deposit and the transferee shall be bound by all
provisions of this Lease relating to the return of the Security Deposit.
(e) Restrictions on Encumbering. The Security Deposit shall not
be mortgaged, assigned or encumbered in any manner whatsoever by Tenant without
the prior written consent of Landlord.
(f) Letter of Credit. At any time during the Term, Tenant shall
have the right to deliver to Landlord a letter of credit in the amount of the
Security Deposit, to be held by Landlord as security for the performance by
Tenant of all of the obligations to be performed by it under this Lease. In such
event, Landlord shall refund the cash Security Deposit and all accrued interest
thereon to Tenant within fifteen (15) days after receipt of such letter of
credit. The letter of credit (and each replacement or renewal thereof) shall (i)
be irrevocable, (ii) be issued by NationsBank, N.A. or another national bank
having an office in Washington, D.C. or Fairfax County, Virginia, which has net
assets of $50,000,000 or more, (iii) be for a term of not less than 12 months
after the date of issuance, and (iv) authorize Landlord to draw thereon by a
sight draft delivered to the issuing bank accompanied by an affidavit of a
general partner, or executive officer, of Landlord that an Event of Default has
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occurred and is continuing or that Tenant has failed to deliver a replacement
letter of credit within the time required by this subsection. Tenant shall, on
or before the 30th day before the expiration date of the letter of credit then
being held by Landlord under this subsection, deliver to Landlord an extension
or renewal of the letter of credit for a period of not less than 12 months.
Tenant shall extend or renew the letter of credit, or any extension or renewal
thereof, for successive periods of at least 12 months each throughout the Term.
Upon the occurrence of an Event of Default or the Tenant's failure to deliver a
replacement letter of credit within the time required by this subsection,
Landlord shall be authorized to draw on the letter of credit then being held by
it. Landlord shall receive, hold and apply the proceeds of the letter of credit
in the same manner and on the same terms as the Security Deposit. All references
in this Lease to the "Security Deposit" shall be deemed to include the proceeds
of the letter of credit.
20. Subordination.
(a) Mortgages. This Lease and Tenant's interest hereunder shall
have priority over, and be senior to, the lien of any Mortgage made by Landlord
after the date of this Lease. However, if at any time or from time to time
during the Term, a Mortgagee or prospective Mortgagee requests that this Lease
be subject and subordinate to its Mortgage, this Lease and Tenant's interest
hereunder shall be subject and subordinate to the lien of such Mortgage and to
all renewals, modifications, replacements consolidations and extensions thereof
and to any and all advances made thereunder and the interest thereon. Tenant
agrees that, within 10 days after receipt of a written request therefor from
Landlord, it will, from time to time, execute and deliver any instrument or
other document required by any such Mortgagee to subordinate this Lease and its
interest in the Leased Premises to the lien of such Mortgage. If, at any time or
from time to time during the Term, a Mortgagee of a Mortgage made prior to the
date of this Lease shall request that this Lease have priority over the lien of
such Mortgage, and if Landlord consents thereto, this Lease shall have priority
over the lien of such Mortgage and all renewals, modifications, replacements,
consolidations and extensions thereof and all advances made thereunder and the
interest thereon, and Tenant shall, within 10 days after receipt of a written
request therefor from Landlord, execute, acknowledge and deliver any and all
documents and instruments confirming the priority of this Lease. In any event,
however, if this Lease shall have priority over the lien of a Mortgage, this
Lease shall not become subject or subordinate to the lien of any subordinate
Mortgage, and Tenant shall not execute any subordination documents or
instruments for any subordinate Mortgagee, without the written consent of the
prior Mortgagee.
(b) Ground Leases. This Lease and Tenant's interest hereunder
shall be subject and subordinate to each and every ground or underlying lease
hereafter made of the Building or the land on which it is constructed, or both,
and to all renewals, modifications, replacements and extensions thereof. Tenant
agrees that, within 10 days after receipt of written request therefor from
Landlord, it will, from time to time, execute, acknowledge and deliver any
instrument or other document required by any such lessor to subordinate this
Lease and its interest in the Leased Premises to such ground or underlying
lease.
(c) First Mortgagee's Right of Cure. If (i) the Building, or
any part thereof, or the land on which the Building is constructed, or the
Landlord's leasehold estate in the Building, is at any time subject to a first
Mortgage, and (ii) this Lease, or the Basic Rent and Additional Charges payable
under this Lease, is assigned to the first Mortgagee, and (iii) the Tenant is
given written notice of such assignment, including the name and address of the
assignee, then, in that event, Tenant shall not terminate this Lease or make any
abatement in the Basic Rent payable hereunder for any default on the part of the
Landlord without first giving written notice, in the manner provided elsewhere
in this Lease for the giving of notices, to such first Mortgagee, specifying the
default in reasonable detail, and affording such first Mortgagee a reasonable
opportunity to make performance, at its election, for and on behalf of the
Landlord.
(d) Non-Disturbance Agreement. Notwithstanding the provisions
of subsections (a) and (b), neither this Lease nor any right, title or interest
of Tenant in the Leased Premises shall be subordinate to the lien of any ground
or underlying lease or any Mortgage made or placed after the date of this Lease,
and Tenant shall not be required to subordinate this Lease or Tenant's interest
in the Leased Premises to any such ground or underlying lease or any such
Mortgage, unless such lease or Mortgage contains an express provision (or the
lessor
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or the Mortgagee or other party secured by the Mortgage agrees in writing) to
the effect that so long as this Lease has not been terminated by reason of the
occurrence of an Event of Default, the lessor or the Mortgagee (or other party
secured by the Mortgage) will be bound by all of the terms and provisions of
this Lease (except as otherwise set forth in such agreement), a default by the
Landlord under such lease or by the mortgagor under such Mortgage shall not have
any effect upon Tenant's right to occupy the Leased Premises in accordance with
all of the terms and conditions of this Lease, and the term, estate and options
of Tenant under this Lease shall not be terminated or otherwise affected by a
termination of such ground or underlying lease or a foreclosure and sale or
other action instituted under or in connection with such Mortgage.
Contemporaneously with the execution of this Lease, Landlord shall deliver to
Tenant a non-disturbance agreement, in form reasonably satisfactory to Tenant,
from the Mortgagee under any existing Mortgage, to the effect that so long as
this Lease has not been terminated by reason of the occurrence of an Event of
Default, the Mortgagee (or other party secured by the Mortgage) will be bound by
all of the terms and provisions of this Lease, a default by the mortgagor under
such Mortgage shall not have any effect upon Tenant's right to occupy the Leased
Premises in accordance with all of the terms and conditions of this Lease, and
the term, estate and options of Tenant under this Lease shall not be terminated
or otherwise affected by a foreclosure and sale or other action instituted under
or in connection with such Mortgage. Contemporaneously with the execution of
this Agreement, Landlord shall deliver to Tenant a non-disturbance agreement, in
form reasonably satisfactory to Tenant, from the lessor under the Ground Lease,
to the effect that so long as this Lease has not been terminated by reason of
the occurrence of an Event of Default, the lessor will be bound by all of the
terms and provisions of this Lease, a default by the Landlord under such Ground
Lease shall not have any effect upon Tenant's right to occupy the Leased
Premises in accordance with all of the terms and conditions of this Lease, and
the term, estate and options of Tenant under this Lease shall not be terminated
or otherwise affected by a termination of such Ground Lease.
21. Attornment.
In the event of (a) a transfer of Landlord's interest in the
Leased Premises, (b) the termination of any ground or underlying lease of the
Building or the land on which it is constructed, or both, or (c) the purchase of
the Building or Landlord's interest therein in a foreclosure sale or by deed in
lieu of foreclosure under any Mortgage or pursuant to a power of sale contained
in any Mortgage, then in any of such events Tenant shall, at Landlord's request,
attorn to and recognize the transferee or purchaser of Landlord's interest or
the lessor under the terminated ground or underlying lease, as the case may be,
as Landlord under this Lease for the balance then remaining of the Term, and
thereafter this Lease shall continue as a direct lease between such person, as
"Landlord," and Tenant, as "Tenant," except that such lessor, transferee or
purchaser shall not be liable for any act or omission of Landlord prior to such
lease termination or prior to such person's succession to title, nor be subject
to any offset, defense or counterclaim accruing prior to such lease termination
or prior to such person's succession to title, nor be bound by any payment of
Basic Rent or Additional Charges prior to such lease termination or prior to
such person's succession to title for more than one month in advance. Tenant
shall, upon request by Landlord or the transferee or purchaser of Landlord's
interest or the lessor under the terminated ground or underlying lease, as the
case may be, execute and deliver an instrument or instruments confirming the
foregoing provisions of this Section. Tenant hereby waives the provisions of any
present or future law or regulation which gives or purports to give Tenant any
right to terminate or otherwise adversely affect this Lease, or the obligations
of Tenant hereunder, upon or as a result of the termination of any such ground
or underlying lease or the completion of any such foreclosure and sale.
22. Quiet Enjoyment.
Landlord covenants that Tenant, upon paying the Basic Rent and
the Additional Charges provided for in this Lease, and upon performing and
observing all of the terms, covenants, conditions and provisions of this Lease
on Tenant's part to be kept, observed and performed, shall quietly hold, occupy
and enjoy the Leased Premises during the Term without hindrance, ejection or
molestation by Landlord or any party lawfully claiming through or under
Landlord.
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23. Landlord's Right of Access to Leased Premises.
(a) Right of Entry. Landlord and its agents shall have the
following rights in and about the Leased Premises: (i) to enter the Leased
Premises at all reasonable times to examine the Leased Premises or for any of
the purposes set forth in this Section or for the purpose of performing any
obligation of Landlord under this Lease or exercising any right or remedy
reserved to Landlord in this Lease, and if Tenant, its officers, partners,
agents or employees shall not be personally present or shall not open and permit
an entry into the Leased Premises at any time when such entry shall be necessary
or permissible, to use a master key or forcibly to enter the Leased Premises;
(ii) to erect, install, use and maintain pipes, ducts and conduits in and
through the Leased Premises which, when completed, will not substantially
interfere with the use or appearance or materially reduce the space afforded to
Tenant in the Leased Premises; (iii) to exhibit the Leased Premises to others at
reasonable times and for reasonable purposes; (iv) to make such repairs,
alterations or improvements, or to perform maintenance of all heating, air-
conditioning, elevator, plumbing, electrical and other mechanical facilities
installed by Landlord, as may be required from time to time by this Lease to be
made or performed by Landlord; (v) to take all materials into and upon the
Leased Premises that may be required in connection with any such repairs,
alterations, improvements or maintenance; and (vi) to alter, renovate and
decorate the Leased Premises at any time during the Term if Tenant shall have
removed all or substantially all of Tenant's property from the Leased Premises.
Landlord agrees to give prior notice before it exercises its rights under this
subsection, except that Landlord may enter the Leased Premises without notice in
the case of an emergency. In making such an entry, Landlord agrees to use
reasonable efforts to avoid interfering with the regular and usual conduct of
the Tenant's business. Notwithstanding anything to the contrary herein, Landlord
may obtain access to the double-secured areas of the Leased Premises only with
the permission and assistance of Tenant's Director of Facilities, except in the
event of an emergency posing a threat of immediate injury to persons or
property.
(b) Rights in Adjacent Areas. Except as otherwise provided in
Section 10, all parts (except surfaces facing the interior of the Leased
Premises) of all walls, windows and doors bounding the Leased Premises
(including exterior Building walls, corridor walls, doors and entrances), all
balconies, terraces and roofs adjacent to the Leased Premises, all space in or
adjacent to the Leased Premises used for shafts, stacks, stairways, chutes,
pipes, conduits, ducts, fan rooms, heating, air-conditioning, plumbing,
electrical and other mechanical facilities installed by Landlord, service
closets and other Building facilities, and the use thereof, as well as access
thereto through the Leased Premises for the purposes of operation, maintenance,
alteration and repair, are hereby reserved to Landlord. Nothing contained in
this Section shall impose any obligation upon Landlord with respect to the
operation, maintenance, alteration or repair of the Leased Premises or the
Building.
(c) Effect of Landlord's Entry. The exercise by Landlord or its
agents of any right reserved to Landlord in this Section shall not constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of rent, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Landlord, or its agents, or upon
any lessor under any ground or underlying lease, by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business, or
otherwise. Landlord agrees to exercise its rights under this Section in a manner
designed to minimize interference with Tenant's normal business operations,
without any obligation, however, to employ labor at overtime or other premium
pay rates.
24. Limitation on Landlord's Liability.
(a) Accidents, etc. Except for damages resulting from the
willful or negligent act or omission of Landlord, its agents, employees or
contractors, Landlord shall not be liable to Tenant, its employees, agents,
business invitees, licensees, customers, guests or trespassers, for any damage
or loss to the property of Tenant or others located on the Leased Premises, or
in the Building or the land on which it is built, or for any accident or injury
to Persons in the Leased Premises or the Building, resulting from the necessity
of repairing any portion of the Building; the use or operation (by Tenant or any
other Person or Persons whatsoever) of any elevators, or heating, cooling,
electrical or plumbing equipment or apparatus; the termination of this Lease by
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reason of the destruction of the Building or the Leased Premises; any fire,
robbery, theft, and/or any other casualty; any leaking in any part or portion of
the Leased Premises or the Building; any water, wind, rain, or snow that may
leak into, or flow from, any part of the Leased Premises or the Building; any
acts or omissions of any occupant of any space adjacent to or adjoining all or
any part of the Leased Premises; any water, gas, steam, fire, explosion,
electricity or falling plaster; the bursting, stoppage or leakage of any pipes,
sewer pipes, drains, conduits, appliances or plumbing works; or any other cause
whatsoever.
(b) Unavoidable Delays. Neither Landlord nor Tenant shall be
required to perform any of its obligations under any provision of this Lease, or
be liable for loss or damage for failure to do so, nor shall the other party be
released from any of its obligations under this Lease because of such party's
failure to perform, where such failure arises from or through Unavoidable Delays
or Legal Requirements. If Landlord or Tenant is so delayed or prevented from
performing any of its obligations during the Term, the period of such delay or
such prevention shall be deemed added to the time herein provided for the
performance of any such obligation. Lack of funds shall not be deemed an
Unavoidable Delay for purposes of this Section 24(b), and nothing in this
Section 24(b) shall excuse Tenant's failure to promptly pay any Basic Rent or
Additional Charges due under this Lease, or Landlord's or Tenant's failure to
maintain policies or deliver certificates of insurance required hereunder.
(c) Building Services. If Landlord shall fail to supply, or be
delayed in applying, any service expressly or impliedly to be supplied under
this Lease, or shall be unable to make, or be delayed in making, any repairs,
alterations, additions, improvements or decorations, or shall be unable to
supply, or be delayed in supplying, any equipment or fixtures, and if such
failure, delay or inability shall result from Unavoidable Delays, such failure,
delay or inability shall not constitute an actual or constructive eviction, in
whole or in part, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Landlord or its agents by reason of
inconvenience to Tenant, or injury to, or interruption of, Tenant's business, or
otherwise, or entitle Tenant to any abatement or diminution of rent except as
provided in Section 3(i).
(d) Liability Limited to Landlord's Estate. Notwithstanding any
provision to the contrary, Tenant shall look solely to the estate and property
of Landlord in and to the Building (or the proceeds received by Landlord on a
sale of such estate and property but not the proceeds of any financing or
refinancing thereof) in the event of any claim against Landlord arising out of
or in connection with this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Leased Premises, and Tenant agrees that the liability of
Landlord arising out of or in connection with this Lease, the relationship of
Landlord and Tenant or Tenant's use of the Leased Premises, shall be limited to
such estate and property of Landlord (or sale, insurance or condemnation
proceeds in connection therewith). No other properties or assets of Landlord
shall be subject to levy, execution or other enforcement procedures for the
satisfaction of any judgment (or other judicial process) or for the satisfaction
of any other remedy of Tenant arising out of or in connection with this Lease,
the relationship of Landlord and Tenant or Tenant's use of the Leased Premises,
and if Tenant shall acquire a lien on or interest in any other properties or
assets by judgment or otherwise, Tenant shall promptly release such lien on or
interest in such other properties and assets by executing, acknowledging and
delivering to Landlord an instrument to that effect prepared by Landlord's
attorneys.
25. Estoppel Certificates.
Tenant and Landlord each agrees, from time to time, within 15
days after written request therefor by the other party, to execute, acknowledge
and deliver to the other party a statement in writing certifying to the other
party, any Mortgagee, assignee of a Mortgagee, or any purchaser, of the Building
or the land on which it is constructed, or both, or any other Person designated
by the other party, as of the date of such statement, (i) that Tenant is in
possession of the Leased Premises; (ii) that this Lease is unmodified and in
full force and effect (or, if there have been modifications, that this Lease is
in full force and effect as modified and setting forth such modifications);
(iii) whether or not there are then existing any set-offs or defenses known to
such party against the enforcement of any right or remedy of the other party, or
any duty or obligation of such party, hereunder (and, if so, specifying the same
in detail); (iv) the dates, if any, to which any Basic Rent or Additional
Charges have been paid
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in advance; (v) that such party has no knowledge of any uncured defaults on the
part of the other party under this Lease (or, if such party has knowledge of any
such uncured defaults, specifying the same in detail); (vi) that such party has
no knowledge of any event having occurred that authorizes the termination of
this Lease by such party (or, if such party has such knowledge, specifying the
same in detail); (vii) the amount of any Security Deposit held by Landlord; and
(viii) any additional facts reasonably requested by any such Mortgagee, assignee
of a Mortgagee, purchaser or other Person.
26. Surrender of Leased Premises.
(a) Possession. Tenant shall, on or before the last day of the
Term, except as otherwise expressly provided elsewhere in this Lease, remove all
of its property and peaceably and quietly leave, surrender and yield up to the
Landlord the Leased Premises, free of subtenancies, broom clean and in good
order and condition except for reasonable wear and tear, damage by fire or other
casualty, or conditions requiring repair by Landlord hereunder at Landlord's
expense.
(b) Inspection of Leased Premises. At the time Tenant
surrenders the Leased Premises at the end of the Term, or within twenty (20)
days thereafter, Landlord and Tenant, or their respective agents, shall inspect
the Leased Premises and shall prepare and sign an inspection form to describe
the condition of the Leased Premises at the time of surrender.
(c) Survival. The provisions of this Section shall survive any
expiration or termination of this Lease.
27. Holding Over.
If Tenant shall hold over possession of the Leased Premises after
the end of the Term, Tenant shall be deemed to be occupying the Leased Premises
as a Tenant from month to month, at one hundred fifty percent (150%) of the
Basic Rent, adjusted to a monthly basis, and subject to all the other
conditions, provisions and obligations of this Lease insofar as the same are
applicable, or as the same shall be adjusted, to a month-to-month tenancy.
28. Mediation.
In any case in which it is provided by the terms of this Lease
that any matter shall be determined by mediation, then such mediation shall be
in accordance with the Commercial Mediation Rules then in effect of the American
Arbitration Association ("AAA"). The mediation proceeding shall be conducted in
Washington, D.C., by one mediator selected by the AAA. The cost of the
mediation, including filing fees with the AAA and the cost of the mediator,
shall be borne equally by the parties. In the mediation sessions, the parties
shall endeavor in good faith to resolve the claim or controversy at issue. Any
party or the mediator shall have the right to terminate the mediation at any
time after the first mediation session. Neither party may make any disclosure of
the existence or results of the mediation without the prior written consent of
the other party. The mediator may not make any disclosure of the existence or
results of the mediation without the prior written consent of both parties. No
discussions in the mediation shall be admissible in any litigation between the
parties, and the mediator shall not be subject to subpoena to testify to any
communication between the mediator and either party. If the parties are unable
to settle the matter by mediation, then either party may submit such matter to
litigation.
29. Parking.
Throughout the Term, Tenant shall be entitled to the use of 675
parking spaces in the structured parking facility for the Office Park (the
"Parking Spaces"), without additional charge therefor. The Parking Spaces shall
be available to Tenant and/or its employees on an unreserved basis, in common
with the other tenants of the Office Park.
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30. Renewal of Term.
Provided that this Lease shall be in full force and effect and
that Tenant shall not then be in default, Tenant shall have the right, at
Tenant's sole option, to extend the Lease for one (1) consecutive additional
period of five (5) years (such additional period being hereinafter referred to
as the "Renewal Period", if exercised, and included in the definition of the
Term). Such option to extend shall be exercised by Tenant giving written notice
of the exercise to Landlord at least twenty-four (24) months prior to the
expiration of the Initial Term of this Lease. The Renewal Period shall be for
the same Basic Rent payable during the last Lease Year of the Initial Term,
escalated at the commencement of the Renewal Period and at the commencement of
each Lease Year thereafter by the Inflation Adjustment, and upon the same terms,
covenants and conditions set forth in this Lease with respect to the Initial
Term, and Tenant's obligations to pay Operating Expense Increases pursuant to
Section 3(b) shall continue without interruption during the Renewal Period. In
the event Tenant defaults beyond any applicable cure period under this Lease
after providing notice of exercise of its renewal option but prior to the
expiration of the Initial Term, such exercise shall, at Landlord's option
exercised by written notice to Tenant, be void ab initio.
31. Shuttle Service.
Landlord shall provide for Tenant' s employees, other tenants of
the Building and other adjacent buildings owned by Landlord or its affiliates,
and the employees of such other tenants a private shuttle bus service between
the Building and the Vienna Metro Station. Subject to Unavoidable Delays, the
shuttle bus service shall be provided throughout the Term and continuously
during the hours between 7:00 a.m. and 8:00 p.m. on Business Days. Landlord
shall use shuttle buses which have reasonably adequate seating capacity taking
into account average passenger usage from time to time. Landlord shall provide
private shuttle bus service for Tenant's employees at times in addition to those
specified in this Section, at Tenant's expense, as mutually agreed upon by
Landlord and Tenant. Landlord shall charge Tenant for after-hours service at an
hourly rate from time to time established by Landlord, in its sole discretion,
but in no event will the rate per hour charged to Tenant be more than an amount
per hour which represents Landlord's reasonable estimate of its actual cost of
providing such after-hours service, including labor, cost of fuel, and wear and
tear on equipment, plus an allowance of 10% thereof to cover general overhead.
In the event the same after-hours service is also requested by other tenants of
the Building (or any other building owned by Landlord or its affiliates) in
addition to Tenant, the charge therefor to each tenant requesting such after-
hours service shall be a pro-rated amount based upon the net rentable area of
the leased premises of all tenants requesting such after-hours service. Payment
for such charges shall be due and payable to Landlord within 15 days after
Tenant's receipt of an invoice therefor. Any dispute between Landlord and Tenant
with respect to the adequacy of Landlord's shuttle bus service shall be
submitted to mediation pursuant to Section 28.
32. Leasing Commission.
Landlord and Tenant each represent and warrant to the other that
neither of them has employed any broker, other than The Carey Winston Company,
in carrying on the negotiations relative to this Lease. Tenant shall pay any
commission due The Carey Winston Company in connection with this Lease.
Landlord and Tenant shall each indemnify and hold harmless the other from and
against any claim or claims for brokerage or other commission arising from or
out of any breach of the foregoing representation and warranty.
33. Telephone Switch.
Tenant intends, at its expense, to install a telephone switch in
the Office Space to provide telephone service to the Leased Premises. Subject to
agreement by Landlord and Tenant on marketing arrangements and other matters,
Tenant shall have the right to use its telephone switch to provide telephone
service to other tenants of the Building and any adjacent office building
located in the Office Park. Tenant hereby agrees to indemnify and hold harmless
Landlord from and against any and all claims, cases, actions, damages,
liabilities and
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expenses (including attorneys' fees) that arise from or are in connection with
Tenant's provision of telephone services to other tenants.
34. General Provisions.
(a) Binding Effect. The covenants, conditions, agreements,
terms and provisions herein contained shall be binding upon, and shall inure to
the benefit of, the parties hereto and, subject to the provisions of Section 15,
each of their respective personal representatives, successors and assigns.
(b) Governing Law. It is the intention of the parties hereto
that this Lease (and the terms and provisions hereof) shall be construed and
enforced in accordance with the laws of the State of Virginia.
(c) Waivers. No failure by Landlord to insist upon the strict
performance of any term, covenant, agreement, provision, condition or limitation
of this Lease or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance by the Landlord of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any such breach or
of any such term, covenant, agreement, provision, condition or limitation. No
term, covenant, agreement, provision, condition or limitation of this Lease to
be kept, observed or performed by Landlord or by Tenant, and no breach thereof,
shall be waived, altered or modified except by a written instrument executed by
Landlord or by Tenant, as the case may be. No waiver of any breach shall affect
or alter this Lease, but each and every term, covenant, agreement, provision,
condition and limitation of this Lease shall continue in full force and effect
with respect to any other then existing or subsequent breach thereof.
(d) Notices. No notice, request, consent, approval, waiver or
other communication which may be or is required or permitted to be given under
this Lease shall be effective unless the same is in writing and is delivered in
person or sent by registered or certified mail, return receipt requested, first-
class postage prepaid, (1) if to Landlord, at Landlord's Notice Address, or (2)
if to Tenant, at Tenant's Notice Address, or at any other address that may be
given by one party to the other by notice pursuant to this subsection. Such
notices, if sent by registered or certified mail, shall be deemed to have been
given at the time of mailing.
(e) Entire Agreement. It is understood and agreed by and
between the parties hereto that this Lease contains the final and entire
agreement between said parties, and that they shall not be bound by any terms,
statements, conditions or representations, oral or written, express or implied,
not herein contained. It is understood and agreed, however, that the terms
hereof shall be modified, if so required, for the purpose of complying with or
fulfilling the requirements of any Mortgagee secured by a first Mortgage that
may now be or hereafter become a lien on the Building, provided, however, that
such modification shall not be in substantial derogation or diminution of any of
the rights of the parties hereunder, nor increase any of the obligation or
liabilities of the parties hereunder.
(f) Jury Trial. Landlord and Tenant each hereby waives all
right to trial by jury in any claim, action, proceeding or counterclaim by
either Landlord or Tenant against the other on any matters arising out of or in
any way connected with this Lease, the relationship of Landlord and Tenant
and/or Tenant's use or occupancy of the Leased Premises.
(g) Venue. Tenant hereby waives any objection to the venue of
any action filed by Landlord against Tenant in any state or federal court in the
jurisdiction in which the Building is located, and Tenant further waives any
right, claim or power, under the doctrine of forum non conveniens or otherwise,
to transfer any such action filed by Landlord to any other court.
(h) Corporate Authority. Concurrently with the signing of this
Lease, Tenant shall furnish to Landlord certified copies of the resolutions of
its Board of Directors (or of the executive committee of its Board of Directors)
authorizing Tenant to enter into this Lease; and Tenant shall also furnish to
Landlord evidence
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(reasonably satisfactory to Landlord and its counsel) that
Tenant is a duly organized corporation in good standing under the laws of the
jurisdiction of its incorporation, is qualified to do business in good standing
in the State of Virginia, has the power and authority to enter into this Lease,
and that all corporate action requisite to authorize Tenant to enter into this
Lease has been duly taken.
(i) Time of the Essence. Time is of the essence in the
performance of Landlord's and Tenant's obligations under this Lease.
(j) Gender. Wherever appropriate herein, the singular includes
the plural and the plural includes the singular.
(k) Invalidity. If any provision of this Lease shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not be affected thereby.
(1) Captions. The captions in this Lease are for convenience
only and shall not affect the interpretation of the provisions hereof.
(m) No Partnership. This Lease is not intended to create a
partnership or joint venture between Landlord and Tenant in the conduct of their
respective businesses.
(n) Counterparts. This Lease has been executed in several
counterparts, but all counterparts shall constitute one and the same instrument.
(o) Deed of Lease. To the extent required under applicable law
to make this Lease legally effective, this Lease shall constitute a deed of
lease.
35. Approval of Building Food Service Tenants.
Throughout the Lease Term, Landlord shall not lease any space in
the Building to a food service tenant, or approve the transfer of any lease of
space in the Building to a food service tenant, without Tenant's prior written
approval of such food service tenant, which approval shall not be unreasonably
withheld, conditioned or delayed.
36. Termination of Prior Lease.
This Lease entirely supersedes the Lease Agreement dated January
30, 1987, as amended by the First Amendment, the Second Amendment and the Third
Amendment, and the Lease Agreement dated January 30, 1987, as amended, is hereby
terminated.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to
be signed by their duly authorized partners or officers as of the day and year
first above written.
Landlord
HMCE ASSOCIATES LIMITED
PARTNERSHIP, R.L.L.P.
By /s/ David W. Evans
-------------------------
Tenant
ICF KAISER HUNTERS BRANCH LEASING, INC.
By /s/ Timothy P. O'Connor
-------------------------
Vice President and Assistant Treasurer
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Exhibit 10(h)
CONSOLIDATED, AMENDED AND RESTATED DEED OF LEASE
THIS CONSOLIDATED, AMENDED AND RESTATED DEED OF LEASE is made and entered
into as of the 12 day of November, 1997, effective for all purposes as of the
1st day of January, 1997, by and between (i) HMCE ASSOCIATES LIMITED
PARTNERSHIP, R.L.L.P., a Virginia registered limited partnership, successor in
interest to HB Limited Partnership, successor in interest to HMCE Associates
Limited Partnership (hereinafter re(Pounds)erred to as "Landlord"), and (ii) ICF
KAISER HUNTERS BRANCH LEASING, INC., a Delaware corporation, successor in
interest to American Capital & Research Corporation (hereinafter referred to as
"Tenant"), and referred to by singular pronouns of the neuter gender, regardless
of the number and gender of the parties involved.
WHEREAS, the Landlord and Tenant are parties to a certain Lease Agreement
dated April 27, 1988 (the "Lease"), pursuant to which Landlord leased to Tenant
certain office space containing approximately 105,057 square feet of net
rentable area in the office building known as "Hunter's Branch - Phase I,
Building 2" located in Fairfax, Virginia (the "Building"); and
WHEREAS, Landlord and Tenant entered into a First Amendment to Lease
Agreement dated July 29, 1988 (the "First Amendment"), which modified a
component of the rent payable under the Lease; and
WHEREAS, Landlord and Tenant entered into a Second Amendment to Lease
Agreement dated February 12, 1990 (the "Second Amendment"), which modified
certain provisions of the Lease relating to Basic Rent and Operating Expense
Increases; and
WHEREAS, Landlord and Tenant entered into a Third Amendment to Lease
Agreement dated December 22, 1992 (the "Third Amendment"), whereby Tenant
surrendered 167 rentable square feet of the leased premises to Landlord; and
WHEREAS, Landlord and Tenant now desire to consolidate, amend and restate
the Lease, the First Amendment, the Second Amendment and the Third Amendment in
this Consolidated, Amended and Restated Lease Agreement..
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, the Leased Premises, for the Term (as defined
below), except that Landlord reserves and Tenant shall have no right in and to
(a) the use of the exterior faces of all perimeter walls of the Building, (b)
except as otherwise provided in subsections (d) and (e) of Section 10, the use
of the roof of the Building, or (c) the use of the air space above the Building.
1. Definitions.
(a) General Interpretive Principles. For purposes of this Lease,
except as otherwise expressly provided or unless the context otherwise requires,
(i) the terms defined in this Section have the meanings assigned to them in this
Section and include the plural as well as the singular, and the use of any
gender herein shall be deemed to include the other genders; (ii) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles; (iii) references
herein to "Sections," "subsections," "paragraphs" and other subdivisions without
reference to a document are to designated Sections, subsections, paragraphs and
other subdivisions of this Lease; (iv) a reference to a sub-section without
further reference to a Section is a reference to such subsection as contained in
the same Section in which the reference appears, and this rule shall also apply
to paragraphs and other subdivisions; (v) the words "herein," "hereof,"
"hereunder" and other words of similar import refer to this Lease as a whole and
not to any particular provision; and (vi) the word "including" means "including,
but not limited to"; and (vii) a reference to an Exhibit without further
reference to another document is a reference to such Exhibit as an Exhibit to
this Lease.
<PAGE>
(b) Special Lease Definitions. As used in this Lease the following
words and phrases shall have the meanings indicated:
Basic Rent: For each Lease Year, an amount equal to the product
obtained by multiplying the Rentable Area of the Leased Premises by the Rent per
Square Foot for such Lease Year.
Building: The office building known as 9302 Lee Highway, Fairfax,
Virginia 22031, on the land described in Exhibit A to this Lease, including
Tenant's non-exclusive right in and to the parking deck and Landlord's leasehold
estate in the underlying land.
Building Rentable Area: 200,071 square feet, being the total net
rentable area of the Building consisting of Office Space..
Comparison Month: The calendar month of March.
CPI: The Consumer Price Index for All Urban Consumers (CPI-U) -- All
Items (1982-84 = 100) for the Washington, DC - MD - VA metropolitan area
currently prepared by the Bureau of Labor Statistics of the United States
Department of Labor and published bi-monthly. If, during the Term, the CPI
ceases to be published, then Landlord and Tenant shall mutually agree upon a
substitute index, it being understood and agreed that such substitute index
shall be similar index generally recognized as authoritative, and the parties
shall reconcile the base thereof with the base of the CPI. If the parties
cannot agree upon a substitute index, then the matter shall be submitted to
arbitration under the rules of the American Arbitration Association.
First Rental Period: As defined in (S)4.2(b) of the Ground Lease.
Inflation Adjustment: For the sixth Lease Year (i.e. commencing
November 1, 2003) and each Lease Year thereafter during the Term (including any
Renewal Period), the lesser of (i) 2.5% of the Rent per Square Foot for the
immediately preceding Lease Year or (ii) 225% of the percentage (if any) by
which (x) the CPI for the Comparison Month in the immediately preceding Lease
Year exceeds (y) the CPI for the Comparison Month in 1998. Exhibit C contains
an illustration of the operation of the Inflation Adjustment.
Initial Term: The period commencing on the Lease Commencement Date and
ending on October 31, 2012, but in any event the Initial Term shall end on any
date when this Lease is sooner terminated pursuant to its terms.
Land: The land described in Exhibit A.
Landlord's Notice Address: 1355 Piccard Drive, Suite 470, Rockville,
Maryland 20850.
Lease Commencement Date: January 1, 1997.
Leased Premises: The space containing 104,890 square feet of Rentable
Area, consisting of the part of the First Floor outlined on the floor plans of
the Building attached hereto as Exhibit B, the entire Second through Sixth
Floors inclusive, and the Penthouse.
Leasing Broker: The Carey Winston Company, which broker shall be paid
by Tenant.
Office Park: The project consisting of the Building, the office
building known as 9300 Lee Highway, Fairfax, Virginia 22031, and the common
areas and facilities serving both such buildings.
Office Space: The portion of the Building consisting of the First
through Twelfth Floors, inclusive.
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Operating Expense Base: The quotient obtained by dividing (i)
$1,086,869.00, by (ii) the Building Rentable Area.
Operating Expense Commencement Date: January 1, 1998.
Operating Expense Increases: For the calendar year in which the
Operating Expense Commencement Date occurs and each calendar year thereafter
during the Term, an amount equal to Tenant's Proportionate Share of the excess
of Landlord's Operating Expenses for such calendar year over the product
obtained by multiplying the Operating Expense Base by the Building Rentable
Area.
Renewal Period: The additional period of five years for which Tenant
is permitted to extend the Initial Term of this Lease pursuant to Section 30.
Rent Commencement Date: January l, 1997.
Rent per Square Foot: $23.16 during the period from January 1, 1997
through November 11, 1997 (i.e., total Basic Rent for such period shall be
$2,096,478.10). $23.64 for the period from November 12, 1997 through December
31, 1997, and for each of the second, third, fourth and fifth Lease Years (i.e.,
Basic Rent for such period shall be $2,479,599.60 per Lease Year). For the
sixth Lease Year, the Rent per Square Foot shall be an amount equal to $23.16,
increased by the Inflation Adjustment for the sixth Lease Year. For the seventh
Lease Year, and for each Lease Year thereafter during the Term, the Rent per
Square Foot shall be an amount equal to the Rent per Square Foot for the
immediately preceding Lease Year, increased by the Inflation Adjustment for the
Lease Year for which the computation is being made. The foregoing amounts are
net of the cost of electricity for the Leased Premises, which shall be billed to
and paid by Tenant.
Rentable Area: The net rentable area (in square feet) of all or any
part of the Leased Premises from time to time. The net rentable area of the
Leased Premises is agreed to be 104,890 square feet.
Second Rental Period: As defined in (S)4.2(c) of the Ground Lease.
Security Deposit: $125,000.
Storage Space: The area, containing approximately 5,855 square feet of
Rentable Area, located in the Penthouse, which is shown on the floor plans
attached as Exhibit B to this Lease.
Tenant's Notice Address: 9300 Lee Highway, Fairfax, Virginia 22031-
1207, Attn: Lease Administrator, with a copy to the same address, Attn: General
Counsel.
Tenant's Proportionate Share: The percentage from time to time which
the Rentable Area of the portion of the Leased Premises consisting of Office
Space is of the Building Rentable Area, which percentage is acknowledged and
agreed to be forty-nine and one-half percent (49.5%) as of the date of this
Lease.
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Exhibit
Term: The Initial Term and the Renewal Period, if any, as to which
Tenant shall have effectively exercised its right to extend, but in any event
the Term shall end on any date when this Lease is sooner terminated pursuant to
the terms hereof.
(c) General Definitions. As used in this Lease the following words
and phrases shall have the meanings indicated:
Additional Charges: All amounts payable by Tenant to Landlord under
this Lease other than Basic Rent. All Additional Charges shall be deemed to be
additional rent and all remedies applicable to the non-payment of Basic Rent
shall be applicable thereto.
Alterations: As defined in Section 9(a).
Business Days: All days except Saturdays, Sundays and the following
legal holidays: New Years Day, Memorial Day, Fourth of July, Labor Day,
Thanksgiving Day and Christmas Day.
Default Interest Rate: A rate per annum equal to the lesser of (a) the
sum of (i) the base rate of interest from time to time established and publicly
announced by NationsBank, N.A., Washington, D.C., in its sole discretion, as its
then-applicable base rate of interest to be used in determining actual interest
rates to be charged to certain of its borrowers, said base rate to change from
time to time as and when the change is announced as being effective, and (ii)
two percent (2%), or (b) ten percent (10%) per annum.
Event of Default: Any of the events set forth in Section 16(a) as an
event of default.
Floor: A floor of the Building located above the foundation slab or
above an area below grade level which is designated as a basement or cellar.
The term "Floor" preceded by a number shall mean the indicated floor of the
Building.
Ground Lease: The Lease Agreement dated November 3, 1987, between The
First Union National Bank of Virginia, as Trustee, as successor by merger to
First American Bank of Virginia, Trustee, as lessor, and Landlord, as lessee,
pursuant to which Landlord leases the land described in Exhibit A to this Lease.
Landlord: The landlord named herein or any subsequent owner or lessee,
from time to time, of the Landlord's interest in the Building.
Lease: This Deed of Lease, as amended from time to time, and all
Exhibits attached hereto.
Lease Year: The period of 12 months commencing on the Lease
Commencement Date and ending on the last day of the month which completes 12
full calendar months after the Lease Commencement Date, and each 12 month period
thereafter commencing on the first day after the end of the immediately
preceding Lease Year, except that the last Lease Year shall end on the last day
of the Term.
Legal Requirements: All laws, statutes, ordinances, orders, rules,
regulations and requirements of all federal, state and municipal governments,
and the appropriate agencies, officers, departments, boards and commissions
thereof, and the board of fire underwriters and/or the fire insurance rating
organization or similar organization performing the same or similar functions,
whether now or hereafter in force, applicable to the Building or any part
thereof and/or the Leased Premises, and notices from Landlord's Mortgagee, as to
the manner of use or occupancy or the maintenance, repair or condition of the
Leased Premises and/or the Building, and the usual and customary requirements of
the carriers of all fire insurance policies maintained by Landlord on the
Building.
Mortgage: Any mortgage, deed of trust or other security instrument of
record creating an interest in or affecting title to the Building or the land on
which it is constructed, or both, or any part thereof, including a
<PAGE>
leasehold mortgage or subleasehold mortgage, and any and all renewals,
modifications, consolidations, or extensions of any such instrument; Mortgagee
shall mean the holder or beneficiary of any Mortgage.
Operating Expenses: The aggregate of all costs and expenses reasonably
and customarily paid or incurred on an accrual basis by Landlord in connection
with the management, operation, servicing and maintenance of the Leased
Premises, the Building, the Building parking facility and the land on which the
Building is constructed including, but not limited to, employees' wages,
salaries, welfare and pension benefits and other fringe benefits; payroll taxes;
Real Estate Taxes; the Net Annual Rental payable by Landlord under (and as
defined in) the Ground Lease; electricity charges for the main lobby, service
areas and other common areas of the Building and the operation of the Building
elevators; telephone service; painting of public or other common areas of the
Building; exterminating service; detection and security services; trash removal;
sewer and water charges; premiums for fire and casualty, liability, rent,
workers' compensation, sprinkler, water damage and other insurance; repairs and
maintenance to the Building; building, janitorial and cleaning supplies;
uniforms and dry cleaning; snow removal; landscaping maintenance; window
cleaning; service contracts for the maintenance of elevators, boilers, HVAC and
other mechanical, plumbing and electrical equipment; legal fees (other than
legal fees relating to the negotiation of leases with present or prospective
tenants of the Building or the enforcement of Landlord's rights under leases
with tenants for space in the Building); accounting fees; advertising;
management fees of four percent (4%) of gross Building rents (exclusive of
Operating Expense payments), whether or not paid to any Person having an
interest in or under common ownership with Landlord; one-half of all costs and
expenses of providing the shuttle bus services required by Section 31 (reduced
by all amounts received by Landlord or its affiliates for after- hours shuttle
bus service); dues and assessments to any property owners' association in which
the Building is a member; window glass replacement, repair and cleaning; repair
and maintenance of the grounds, including costs of landscaping, gardening and
planting; service contracts with independent contractors, including but not
limited to security and energy management service contractors; compensation
(including employment taxes, fringe benefits, salaries, wages, medical, surgical
and general welfare benefits [including health, accident and group life
insurance]) for all personnel employed by Landlord or its property management
company who perform duties in connection with the operation, management,
maintenance and repair of the Building (in each case, allocated among all
properties served by such employees on a reasonable basis, if such employees are
utilized by more than one property), including a proportionate share of the
salary and benefits of the property manager assigned to the Building, based upon
the number of properties served by such property manager, but in no event more
than one-fourth (1/4) of such salary and benefits; and all other expenses now or
hereafter reasonably and customarily incurred in connection with the operation,
maintenance, and management of first class office buildings in the Tysons Corner
area of Northern Virginia. If Landlord makes an expenditure for a capital
improvement to the Building to reduce Operating Expenses or to comply with Legal
Requirements not in effect at the time the Building was constructed, and if,
under generally accepted accounting principles, such expenditure is not a
current expense, the cost thereof shall be amortized over a period equal to the
useful life of such improvements, determined in accordance with generally
accepted accounting principles, and the amortized cost allocated to each
calendar year during the Term shall be treated as an Operating Expense. Except
as provided in the preceding sentence, capital expenditures, depreciation and
amortization shall not be included in Operating Expenses. Refunds of Real
Estate Taxes (reduced by Landlord's reasonable expenses in obtaining such
refunds), amounts received by Landlord from tenants of the Building for after-
hours heating and air conditioning service and other special services and (to
the extent that Operating Expenses include the cost of any repair or
reconstruction work) the amount of any insurance recoveries, shall be credited
against Operating Expenses in computing the amount thereof. Operating Expenses
shall also be reduced as provided in Section 3(b). Operating Expenses shall not
include financing or mortgage costs; depreciation expense; advertising for
vacant space or building promotion; leasing commissions; executive salaries or
compensation to any employee of Landlord or its property management company
above the rank of the property manager assigned to the Building; more than one-
fourth (1/4) of the salary and benefits of the property manager assigned to the
Building; the cost of tenant improvements; legal fees for leasing vacant space
in the Building or enforcing Landlord's rights under leases with tenants for
space in the Building; or charges for electricity used directly by Tenant or by
other tenants of the Building. Operating Expenses also shall not include:
costs of additional insurance premiums for the Building due to any tenant's
operations within such tenant's demised premises, which are payable by such
tenant under such tenant's lease; the cost of repairs or replacements incurred
by reason of fire or other casualty; or any other costs or
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expenses for which Landlord actually receives reimbursement from any source
(other than amounts paid by tenants of the Building with respect to Operating
Expenses), including, without limitation, insurance proceeds, condemnation
awards or warranties.
Penthouse: The Floor immediately above the Twelfth Floor.
Person: A natural person, a partnership, a corporation, a limited
liability company and any other form of business or legal association or entity.
Real Estate Taxes: All taxes, assessments, vault rentals, water and
sewer rents, if any, and other charges, if any, general, special or other wise,
including all assessments for schools, public betterments and general or local
improvements, levied or assessed upon or with respect to the ownership of and/or
all other taxable interests in the Building and the land on which it is built
imposed by any public or quasi-public authority having jurisdiction and personal
property taxes levied or assessed on Landlord's personal property used in
connection with the operation, maintenance and repair of the Building. Real
Estate Taxes shall not include any inheritance, estate, succession, transfer,
recordation, gift, franchise, corporation, income or profit tax or capital levy.
If at any time during the Term the methods of taxation shall be altered so that
in addition to or in lieu of or as a substitute for the whole or any part of any
Real Estate Taxes levied, assessed or imposed there shall be levied, assessed or
imposed (i) a tax, license fee, excise or other charge on the rents received by
Landlord, or (ii) any other type of tax or other imposition (except those
excluded from Real Estate Taxes in the preceding sentence) in lieu of, or as a
substitute for, or in addition to, the whole or any portion of any Real Estate
Taxes, then the same shall be included as Real Estate Taxes. A tax bill or true
copy thereof, together with any explanatory or detailed statement of the area or
property covered thereby, submitted by Landlord to Tenant shall be conclusive
evidence of the amount of taxes assessed or levied, as well as of the items
taxed. If any real property tax or assessment levied against the land,
buildings or improvements covered thereby or the rents reserved therefrom, shall
be evidenced by improvement or other bonds, or in other form, which may be paid
in annual installments, only the amount paid or payable in any Lease Year shall
be included as Real Estate Taxes for that Lease Year.
Taking: A taking of property or any interest therein or right
appurtenant or accruing thereto, by condemnation or eminent domain or by action,
proceedings, or agreement in lieu thereof, pursuant to governmental authority.
Tenant: The tenant named herein and any permitted assignee under
Section 15.
Tenant's Special Installations: As defined in Section 9(d).
Unavoidable Delays: Delays caused by strikes, acts of God, lockouts,
labor difficulties, riots, explosions, sabotage, accidents, inability to obtain
labor or materials, governmental restrictions, enemy action, civil commotion,
fire, unavoidable casualty or similar causes beyond the reasonable control of
the Landlord or the Tenant, as the case may be.No payment of any monetary
amounts required of, or the obtaining or delivery of any required insurance
policies by, either Landlord or Tenant shall be delayed or excused by acts of
Unavoidable Delay.
2. Condition of Premises.
Tenant accepts the Leased Premises in their as-is, where-is condition
as of the date of this Lease, subject to any and all deficiencies and defects
therein, and without any express or implied warranties of habitability, fitness,
fitness for a particular purpose or otherwise.
3. Rent and Additional Charges.
(a) Payment of Rent and Additional Charges. Tenant shall pay the Basic
Rent for each Lease Year in equal monthly installments in advance on the first
(1st) day of each month during the Term. The Basic Rent and all Additional
Charges shall be paid promptly when due, in lawful money of the United States,
without notice or
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demand and without deduction, diminution, abatement, counterclaim or setoff of
any amount or for any reason whatsoever, except as otherwise expressly provided
in subsections (b) and (h) and Sections 13 and 14, to Landlord by wire transfer
to such bank account as Landlord may from time to time designate. If Tenant
makes any payment to Landlord by check (which, for any payment other than by
wire transfer, shall require Landlord's consent), such payment shall be by check
of Tenant and Landlord shall not be required to accept the check of any other
person, and any check received by Landlord shall be deemed received subject to
collection. If any check is mailed by Tenant, Tenant shall post such check in
sufficient time prior to the date when payment is due so that such check will be
received by Landlord on or before the date when payment is due. Tenant shall
assume the risk of lateness or failure of delivery of the mails, and no lateness
or failure of the mails will excuse Tenant from its obligation to have made the
payment in question when required under this Lease. All bank service charges
resulting from any bad checks shall be borne by Tenant. The rent reserved under
this Lease shall be the total of all Basic Rent and Additional Charges,
increased and adjusted as elsewhere herein provided, payable during the entire
Term and, accordingly, the methods of payment provided for herein, namely,
annual and monthly rental payments, are for convenience only and are made on
account of the total rent reserved hereunder.
(b) Payment of Operating Expense Increases. Tenant shall pay as
additional rent Operating Expense Increases for each calendar year, commencing
with the calendar year in which the Operating Expense Commencement Date occurs.
Landlord shall make a reasonable estimate of Tenant's Operating Expense
Increases for each calendar year (based on the projected Real Estate Taxes
payable for the real estate tax fiscal years included in such calendar year, the
other Operating Expenses for the preceding calendar year and known increases in
other Operating Expenses for the current calendar year), and Tenant shall pay to
Landlord 1/12th of the amount so estimated on the first day of each month in
advance, beginning on January 1, 1998 and continuing thereafter throughout the
Term. If Landlord's estimate of Tenant's Operating Expense Increases for any
calendar year is received by Tenant after January 1 of the calendar year, Tenant
shall pay to Landlord in a lump sum, within 15 days after receipt of the
estimate, the arrearages in the monthly estimates for each month in the calendar
year before receipt of the estimate and shall pay the remaining monthly
installments on the first day of each month in advance during the balance of the
calendar year. Within 150 days after the end of each calendar year, Landlord
shall submit to Tenant a statement prepared by an independent certified public
accountant setting forth in reasonable detail the Operating Expenses for such
calendar year and the amount of Tenant's Operating Expense Increases for such
calendar year. If Tenant's Operating Expense Increases so stated are more than
the amount theretofore paid by Tenant for Operating Expense Increases based on
Landlord's estimate, Tenant shall pay to Landlord the deficiency within 15 days
after the submission of such statement. If Tenant's Operating Expense Increases
so stated are less than the amount theretofore paid by Tenant for Operating
Expense Increases based on Landlord's estimate, Landlord shall refund to Tenant
the excess within 15 days after submission of such statement or Landlord, at its
option, shall credit the excess against the next monthly installment of Basic
Rent thereafter payable by Tenant under this Lease. Tenant, at its sole cost
and expense, shall have the right, at reasonable times and upon reasonable
notice given within 90 days after receipt of a statement for Tenant's Operating
Expense Increases for any calendar year, to audit the statements furnished to
Tenant for such calendar year. If either the Operating Expense Commencement
Date shall not coincide with the beginning of a calendar year or the last day of
the Term shall not coincide with the end of a calendar year, then the amount of
Operating Expense Increases payable for the calendar year in which the Operating
Expense Commencement Date or the last day of the Term occurs, as the case may
be, shall be pro-rated on a daily basis between Landlord and Tenant based on the
number of days in such calendar year after the Operating Expense Commencement
Date or before the last day of the Term. Tenant's obligations under this
subsection to pay Operating Expense Increases and Landlord's obligation to
reimburse Tenant for an overpayment of Operating Expenses shall survive the
expiration of the Term.
(c) Gross Up of Operating Expenses.
(1) If, during all or any part of a calendar year, any part of the
Building Rentable Area is leased to a tenant (hereinafter referred to as a
"Special Tenant") pursuant to a Lease in which operating expenses are not
defined to include substantially the same components as the Operating Expenses
(as defined in Section 1(c), the Operating Expenses for such calendar year shall
be deemed to equal the Operating Expenses, as reasonably
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estimated by Landlord, that would have been incurred by Landlord if all Special
Tenant's leases included substantially the same components as the Operating
Expenses.
(2) If the average occupancy level of the Building for any calendar
year is less than 95%, the Operating Expenses for such calendar year shall be
deemed to equal the amount of Operating Expenses, as reasonably estimated by
Landlord, that would have been incurred by Landlord during such calendar year if
the average occupancy level of the Building for the calendar year had been 95%.
For purposes of the preceding sentence, the "average occupancy level of the
Building" for any calendar year shall be the arithmetic average of the Building
Rentable Area occupied by tenants on the first day of each month during the
calendar year.
(3) If, during any calendar year, any part of the Building Rentable
Area is leased to a Special Tenant and the average occupancy level of the
Building is less than 95%, Landlord may make both the adjustments to Operating
Expenses in paragraph (1) and the adjustment to Operating Expenses in paragraph
(2).
(d) Interest. If Tenant fails to make any payment of Basic Rent or
Additional Charges by the earlier of (i) 5 business days after the due date
thereof or (ii) 7 days after the due date thereof, interest shall, at Landlord's
option, accrue on the unpaid portion thereof from the due date at the Default
Interest Rate, but in no event at a rate higher than the maximum rate allowed by
law, and shall be payable on demand.
(e) Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of any lesser amount than the amount stipulated to be paid hereunder
shall be deemed other than on account of the earliest stipulated Basic Rent or
Additional Charges; nor shall any endorsement or statement on any check or
letter be deemed an accord and satisfaction, and Landlord may accept any check
or payment without prejudice to Landlord's right to recover the balance due or
to pursue any other remedy available to Landlord.
(f) Late Payment Charge. If Tenant fails to pay any Basic Rent or
Additional Charges by the earlier of (i) 5 business days after the due date
thereof or (ii) 7 days after the due date thereof, Tenant shall also pay to
Landlord on demand a late payment service charge (to cover Landlord's
administrative and overhead expenses of processing late payments) equal to the
greater of $100.00 or 5% of such unpaid sum for each and every calendar month or
part thereof after the due date that such sum has not been paid to Landlord.
Such payment shall be deemed liquidated damages and not a penalty, but shall not
excuse the untimely payment of rent.
(g) Reduction of Real Estate Taxes. Landlord shall give Tenant a copy
of any tax assessment notice with respect to the Building within 15 days after
receipt thereof. Landlord will use reasonable efforts to obtain a reduction of
Real Estate Taxes, provided Tenant and other tenants in the Building which,
together with Tenant, occupy, collectively, at least fifty percent (50%) of the
Building Rentable Area, make a written request to Landlord so to do and, in such
request, each agrees to pay its proportionate share of the costs thereof as
hereinafter provided, and Landlord receives such request not less than 20 days
prior to the last day on which Real Estate Tax reduction proceedings for the
particular real estate tax year in question may be commenced. The method and
manner of conducting proceedings for such reduction, including the selection of
counsel, shall be solely within the judgment and determination of Landlord, and
Landlord may cancel, discontinue or settle such proceedings if, in Landlord's
judgment, such cancellation, discontinuance or settlement is advisable.
Landlord shall keep Tenant informed of the status of any such proceeding. If
Landlord determines to cancel or discontinue such proceeding, Tenant shall have
the right, either alone or with other tenants of the Building, to continue such
proceeding at its or their own expense. To the extent that the reasonable costs
and expenses, including legal fees, of such proceedings instituted and conducted
by Landlord, requested by Tenant and others, exceed the amount of any tax
refund, Tenant shall pay that proportion of such excess cost and expense which
the Rentable Area of the Leased Premises bears to the total rentable area leased
to all tenants making such request at the time it is made.
(h) Abatement of Basic Rent. If, because of Landlord's failure to
provide any of the services referred to in Sections 5(h), all or substantially
all of the Leased Premises becomes untenantable and Tenant is unable to and does
not, in fact, use all or substantially all of the Leased Premises for the uses
permitted by Section
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6(a) for a continuous period of 10 Business Days, then provided the cause of
such cessation of services is not the result, in whole or in principal part, of
Tenant's negligence or intentional misconduct, Tenant shall be entitled to an
abatement of Basic Rent for the period of time in which Tenant is unable to use,
and does not, in fact, use all or substantially all of the Leased Premises for
the uses permitted by Section 6(a). Any dispute between Landlord and Tenant as
to Tenant's entitlement to an abatement of Basic Rent shall be submitted to
mediation pursuant to Section 28.
(i) Retroactive Rent Adjustment. Subject to the availability of Net
Cash Flow, as defined in Section 2.2 of the Limited Liability Company Agreement
of Hunters Branch Partners, L.L.C., reduced only by the Retroactive Rent
Adjustments described herein and in Tenant's Lease for premises in 9300 Lee
Highway, Vienna, Virginia ("Available Cash Flow"), Tenant shall receive
Retroactive Rent Adjustments in the following amounts for the following 12-month
periods ("Adjustment Years") during the Term:
<TABLE>
<CAPTION>
Adjustment Year Amount of Rent Adjustment
<S> <C>
11/1/97 - 10/31/98 $134,728.00
11/1/98 - 10/31/99 137,021.00
11/1/99 - 10/31/00 143,517.00
11/1/00 - 10/31/01 153,928.00
11/1/01 - 10/31/02 159,774.00
11/1/02 - 10/31/03 103,212.00
11/1/03 - 10/31/04 108,026.00
11/1/04 - 10/31/05 118,388.00
11/1/05 - 10/31/06 120,309.00
11/1/06 - 10/31/07 76,780.00
11/1/07 - 10/31/08 131,366.00
11/1/08 - 10/31/09 131,838.00
11/1/09 - 10/31/10 149,229.00
11/1/10 - 10/31/11 175,687.00
11/1/11 - 10/31/12 189,519.00
</TABLE>
Subject to Available Cash Flow, the Retroactive Rent Adjustment shall
be paid by Landlord to Tenant in equal monthly installments in arrears. If the
monthly installment of the Retroactive Rent Adjustment for any month is not
fully paid because of the lack of Available Cash Flow, then the unpaid portion
shall be paid in a later month of the Term (if any) when there is sufficient
Available Cash Flow to pay such unpaid portion. Landlord agrees that it will
not pay, and Tenant agrees that it will not accept, a Retroactive Rent
Adjustment for any month during any Adjustment Year unless the Annual Priority
Return (as defined in Section 2.2 of the Limited Liability Company Agreement of
Hunters Branch Partners, L.L.C.) for such month (together with accrued interest,
if any) has been paid by Hunters Branch Partners, L.L.C. to the Person entitled
to receive such payment.
(j) Lease Restructuring Fee. Upon execution of this Lease, Tenant has
paid Landlord a Lease Restructuring Fee in the amount of $208,257.12, receipt of
which is hereby acknowledged by Landlord.
4. Common Areas.
Throughout the Term, Tenant and its agents, employees and business
invitees shall have the non-exclusive right, in common with other tenants of the
Building and the adjacent office building, to use the public lobbies, elevators,
corridors, stairways, parking garage, sky walk, patios, sidewalks, roadways and
other common areas in the Building and the Land, and the toilet rooms in public
areas of multi-tenant floors in the Building. Landlord shall have the right to
rent parking spaces in the parking garage to persons other than tenants of the
Building and the adjacent office building with Tenant's prior written approval,
which approval shall not be unreasonably withheld, and which approval shall be
deemed given provided that (i) no third party parking contract
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shall be for a period of more than one (1) month, (ii) access to the parking
garage shall be controlled by access or key cards, and (iii) reasonable security
shall be provided with respect to the parking garage area. Landlord shall have
the right at any time, without the Tenant's consent, to change the arrangement
or location of entrances, passageways, doors, doorways, corridors, stairs,
toilet rooms or other public portions of the Building, provided any such change
does not unreasonably obstruct Tenant's access to the Leased Premises.
5. Services and Utilities.
(a) Building Services. Throughout the Term, Landlord agrees that the
Building will be managed and maintained in accordance with generally accepted
industry practices and in a manner befitting a modern, first class rental office
building in Fairfax County, Virginia, and that, subject to Legal Requirements,
it will furnish to Tenant the following services:
(1) Subject to the provisions of subsection (b), normal and usual
electricity for lighting purposes and the operation of ordinary office
equipment;
(2) Adequate supplies for toilet rooms located in public areas of the
Building;
(3) Normal and usual cleaning and janitorial services after business
hours on Business Days in accordance with the standards set forth in Exhibit D
attached hereto and made a part hereof, provided, however, that Landlord shall
not provide cleaning and janitorial services to the double-secured areas of the
Leased Premises;
(4) Hot and cold running water in the toilet rooms located in public
areas of the Building and at valved outlets at the locations in the Leased
Premises shown on Tenant's Space Layout;
(5) Subject to the provisions of subsections (c) and (e), heating and
air-conditioning to the Leased Premises when required for the comfortable
occupancy of the Leased Premises, at reasonable temperatures, pressures and
degrees of humidity, and in reasonable volumes and velocities, between the hours
of 8:00 A.M. and 7:00 P.M. on Business Days and between the hours of 9:00 A.M.
and 1:00 P.M. on Saturdays unless Saturday is a legal holiday;
(6) Automatically operated elevator facilities 24 hours a day, seven
days a week throughout the Term;
(7) All electric bulbs and fluorescent tubes in permanently installed
light fixtures in the Leased Premises and in the public areas of the Building;
(8) Five (5) keys for the suite entry door to each portion of the
Leased Premises located on a separate Floor at no cost to Tenant, but all
additional keys, including replacements for lost keys, shall be issued only upon
the payment of a reasonable cost for each additional key;
(9) An electronic card security access system for the public areas of
the Building and the garage and a reasonable number of access cards for use by
Tenant's employees; and
(10) A fully-operational structured parking facility for use by
tenants of the Building with access limited to Persons authorized by Tenant or
Landlord.
(b) Electricity. Landlord shall not be liable in any way to Tenant
for any failure or defect in the supply or character of electrical energy
furnished to the Leased Premises by reason of any requirement, act or omission
of the public utility serving the Building with electricity. Tenant's use of
electrical energy in the Leased Premises shall not at any time exceed the
capacity of any of the electrical conductors and equipment in or otherwise
serving the Leased Premises as shown on Landlord's Building Plans. Tenant shall
not install or operate in the
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Leased Premises any electrically operated equipment which uses electric current
in excess of the capacity of the feeders and panel boards serving the Leased
Premises as shown on Landlord's Building Plans without Landlord's written
consent, which consent may be conditioned upon Tenant's agreement to pay the
cost of any additional wiring which may be required for the operation of such
equipment. In order to insure that such capacity is not exceeded and to avert a
possible adverse effect upon the Building electrical service Tenant shall give
notice to Landlord whenever Tenant shall connect to the Building electrical
distribution system any electrically operated equipment other than lamps,
typewriters and similar small office machines. Any feeders or risers to supply
Tenant's electrical requirements in addition to those originally installed, and
all other equipment proper and necessary in connection with such feeders or
risers, shall be installed by Landlord upon Tenant's request, at the sole cost
and expense of Tenant, provided that, in Landlord's reasonable judgment, such
additional feeders or risers are permissible under applicable laws and insurance
regulations and the installation of such feeders or risers will not cause
permanent damage or injury to the Building or cause or create a dangerous
condition or unreasonably interfere with other tenants of the Building. All
Floors occupied entirely by Tenant shall be separately metered or sub-metered
for electricity and all other parts of the Leased Premises, may, at Landlord's
option, be separately metered or sub-metered for electricity. Tenant shall pay
(or reimburse Landlord for) the cost of purchasing and installing separate
electric meters or sub-meters for each whole Floor and each part of a Floor
included in the Leased Premises, and for any other part of the Leased Premises
which Landlord elects to have metered or sub-metered. Tenant shall pay directly
to the public utility company all charges for electricity used by Tenant in all
parts of the Leased Premises which are separately metered, or Tenant shall
reimburse Landlord directly for its electrical usage in all parts of the Leased
Premises which are sub-metered. Landlord shall have the right from time to time
to have a survey made by an independent electrical engineer or electrical
consulting firm to be selected and paid for by Landlord to determine the amount
of electricity consumed by Tenant in the parts of the Leased Premises which do
not consist of an entire Floor. Tenant shall pay to Landlord, at monthly
intervals upon receipt of an invoice therefor, the cost of electricity it
consumes in the parts of the Leased Premises which do not consist of an entire
Floor as determined by such electrical engineer or consulting firm.
(c) Heating and Air-Conditioning. Landlord shall provide heat and
air-conditioning at times in addition to those specified in paragraph (5) of
subsection (a) at Tenant's expense, provided Tenant gives Landlord notice prior
to 3:00 P.M. ( in the case of after-hours service on weekdays) and prior to
3:00 P.M. on Fridays or the day preceding a holiday (in the case of after-hours
service on Saturdays, Sundays or holidays). In no event will the rate per hour
charged to Tenant for after-hours service be more than an amount per hour which
represents Landlord's reasonable estimate of its actual cost of providing such
after-hours heating and air-conditioning service, including labor and wear and
tear on equipment, but excluding the cost of electricity. Payment for such
charges shall be due and payable to Landlord within 15 days after Tenant's
receipt of an invoice therefor.
(d) Maintenance of Pipes, Conduits, etc. Landlord reserves the right
to erect, use, maintain and repair pipes, conduits, cables, plumbing, vents and
wires in, to and through the Leased Premises as and to the extent that Landlord
may now or hereafter deem to be necessary or appropriate for the proper
operation and maintenance of the Building, or other tenants' installations in
the Building, and the right at all times to transmit water, heat, air-
conditioning and electric current through such pipes, conduits, cables,
plumbing, vents and wires, provided that Landlord, in the exercise of such
rights, shall not unreasonably inconvenience Tenant or unreasonably interfere
with Tenant's use of the Leased Premises.
(e) HVAC Specifications. Landlord agrees that the air-conditioning
system in the portion of the Leased Premises consisting of Office Space will be
capable of providing, and (unless otherwise ordered by federal, state or local
governmental authorities) the system shall provide, temperatures of not more
than 77 degrees F dry bulb and a relative humidity not in excess of 50% with
outside conditions of 95 degrees F dry bulb and 78 degrees F wet bulb, except as
otherwise provided in this subsection. Landlord agrees that the heating system
in the portion of the Leased Premises consisting of Office Space will be capable
of providing, and (unless otherwise ordered by federal, state or local
governmental authorities) the system shall provide, temperatures of not less
than 70 degrees F whenever the outdoor dry bulb temperature is lower than 65
degrees F but no lower than 0 degrees F, with indoor relative humidity at such
level as not to permit the formation of condensation on the windows. Landlord
shall not be responsible if the normal
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operation of the Building air-conditioning system shall fail to provide
conditioned air at reasonable temperatures, pressures or degrees of humidity or
in reasonable volumes or velocities in any portions of the Leased Premises
consisting of Office Space which (i) shall have a connected electrical load in
excess of three watts per square foot of Rentable Area of the Leased Premises
for all purposes (including lighting and power) or which shall have a human
occupancy factor in excess of one person for each 100 square feet of Rentable
Area of the portion of the Leased Premises consisting of Office Space (the
average electrical load and human occupancy factors for which the Building air-
conditioning system is designed), or (ii) because of rearrangement of
partitioning or other Alterations made by or on behalf of Tenant or any Person
claiming through or under Tenant (excepting work performed by Landlord for
Tenant prior to Tenant's initial occupancy of the Leased Premises).
(f) Access to HVAC Facilities. Landlord shall have unrestricted
access to any and all air-conditioning facilities in the Leased Premises for the
purposes of repairs, maintenance, alterations and improvements, but in
exercising its rights under this subsection Landlord shall use its best efforts
to minimize interference with Tenant's business in the Leased Premises.
Notwithstanding anything to the contrary herein or in Section 5(d), except in
the event of an emergency, Landlord may obtain access to the double-secured
areas of the Leased Premises only with the permission and assistance of Tenant's
Director of Facilities or his designee. Tenant shall provide Landlord with keys
to the double-secured areas of the Leased Premises. Tenant's Director of
Facilities, or his designee, shall be available to provide access to the double-
secured areas of the Leased Premises on a non-emergency basis promptly after
Landlord's request for permission to enter the same, and in any event no later
than 24 hours after such request.
(g) Reduction of Air-Conditioning Use. Tenant agrees to use
reasonable efforts to keep or cause to be kept closed all window draperies or
venetian blinds in the Leased Premises as and when necessary because of the
sun's position whenever the air-conditioning system is in operation, and Tenant
agrees at all times to cooperate fully with Landlord and to abide by all the
reasonable regulations and requirements which Landlord may prescribe for the
proper functioning and protection of the Building air-conditioning system.
(h) Cessation of HVAC and Mechanical Services. Landlord reserves the
right to stop the service of heating, air-conditioning, ventilating, elevator,
plumbing, electricity or other mechanical systems or facilities in the Building,
if necessary by reason of accident or emergency, or for repairs, alterations,
replacements, additions or improvements which, in the reasonable judgment of
Landlord, are desirable or necessary, until said repairs, alterations,
replacements, additions or improvements shall have been completed. The exercise
of such right by Landlord shall not constitute an actual or constructive
eviction, in whole or in part, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Landlord or its agents by reason
of inconvenience or annoyance to Tenant, or injury to, or interruption of,
Tenant's business, or otherwise, or entitle Tenant to any abatement or
diminution of rent except as provided in Section 3(h). Except in cases of
emergency repairs, Landlord will give Tenant reasonable advance notice of any
contemplated stoppage of any such systems or facilities pursuant to the
foregoing. In all cases, Landlord will use due diligence to complete any such
repairs, alterations, replacements, additions or improvements promptly.
Landlord shall also perform any such work in a manner designed to minimize
interference with Tenant's normal business operations.
6. Use of Leased Premises.
(a) Permitted Uses. Tenant shall use and occupy the portion of the
Leased Premises consisting of Office Space solely for general office purposes,
and shall use and occupy the portion of the Leased Premises consisting of
Storage Space solely for storage, all in accordance with the applicable zoning
regulations and consistent with the character and dignity of the Building, and
shall not use, permit or suffer the use of the Leased Premises for any other
purpose whatsoever without the prior written consent of the Landlord. Tenant
shall not use, or permit the Leased Premises to be used, for the sale of food,
beverages or tobacco products, except that Tenant may operate on the Leased
Premises vending machines for the sale of food, beverages and tobacco products
to its employees. Tenant shall not permit or suffer the Leased Premises to be
occupied by anyone other than Tenant except as provided by Section 15. Tenant
shall at all times have access to the Leased Premises 24 hours a day,
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seven days a week, subject, however, in all respects to all the terms, covenants
and conditions contained in this Lease. However, Landlord may regulate and
restrict access to the Building at times other than normal business hours on
Business Days for security purposes so long as Tenant ' s employees and agents
have reasonable access to the Leased Premises without unreasonable
inconvenience.
(b) Restrictions on Use. Throughout the Term, Tenant covenants and
agrees: (i) to pay 10 days before delinquency any and all taxes, assessments and
public charges levied, assessed or imposed upon Tenant's business conducted in
the Leased Premises, upon the leasehold estate created by this Lease or upon
Tenant's fixtures, furnishings or equipment in the Leased Premises; (ii) not to
use or permit or suffer the use of any portion of the Leased Premises for any
unlawful purpose; (iii) not to use the plumbing facilities for any purpose other
than that for which they were constructed, or dispose of any foreign substances
therein; (iv) not to place a load on any floor exceeding the floor load per
square foot which such floor was designed to carry in accordance with Landlord's
Building Plans, and not to install, operate or maintain in the Leased Premises
any heavy item of equipment except in such manner as to achieve a proper
distribution of weight; (v) not to strip, overload, damage or deface the Leased
Premises, or the hallways, stairways, elevators, parking facilities or other
public areas of the Building, or the fixtures therein or used therewith; (vi)
not to move any furniture or equipment into or out of the Leased Premises except
at such times as Landlord may from time to time reasonably designate; (vii) not
to use any floor adhesive in the installation of any carpeting; (viii) not to
install any other equipment of any kind or nature which will or may necessitate
any changes, replacements or additions to, or in the use of, the water system,
heating system, plumbing system, air-conditioning system or electrical system of
the Leased Premises or the Building, without first obtaining the written consent
of Landlord; and (ix) at all times to comply with all Legal Requirements.
(c) Compliance with Legal Requirements. Tenant will not use or occupy
the Leased Premises in violation of any Legal Requirements. If any
governmental authority, after the commencement of the Term, shall contend
or declare that the Leased Premises are being used for a purpose which is
in violation of any Legal Requirements, then Tenant shall, upon five days'
notice from Landlord, immediately discontinue such use of the Leased
Premises. If thereafter the governmental authority asserting such
violation threatens, commences or continues criminal or civil proceedings
against Landlord for Tenant's failure to discontinue such use, in addition
to any and all rights, privileges and remedies given to Landlord under this
Lease for default therein, Landlord shall have the right to terminate this
Lease forthwith. Tenant shall indemnify and hold Landlord harmless from
and against any and all liability for any such violation or violations.
(d) Compliance with Insurance Requirements. Tenant shall not do,
permit or suffer to be done any act, matter, thing or failure to act in respect
of the Leased Premises and/or the Building that will invalidate or be in
conflict with fire insurance policies covering the Building or any part thereof,
and shall not do, or permit anything to be done, in or upon the Leased Premises
and/or the Building, or bring or keep anything therein, which shall increase the
rate of fire insurance on the Building or on any property located therein. If,
by reason of the failure of Tenant to comply with the provisions of this
subsection, the fire insurance rate shall at any time be higher than it
otherwise would be, then Tenant shall reimburse Landlord and any other tenant of
the Building, on demand, for that part of all premiums for any insurance
coverage that shall have been charged because of such violation by Tenant and
which Landlord or such other tenant, or both, shall have paid on account of an
increase in the rate or rates in its own policies of insurance. Tenant shall
not be responsible for any increase in fire insurance rates generally applicable
to office space in Fairfax County, Virginia, and not resulting from the
particular manner in which Tenant uses the Leased Premises.
(e) No Flammable Substances. Tenant shall not bring or permit to be
brought or kept in or on the Leased Premises any flammable, combustible or
explosive fluid, material, chemical or substance except standard cleaning fluid,
standard equipment and materials (including magnetic tape) customarily used in
conjunction with business machines and equipment of the type used from time to
time by Tenant in reasonable quantities.
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7. Care of Leased Premises.
(a) By Tenant. Tenant shall act with care in its use and occupancy of
the Leased Premises and the fixtures therein and, at Tenant's sole cost and
expense, shall make all repairs and replacements to the Leased Premises,
structural or otherwise, necessitated or caused by the acts, omissions or
negligence of Tenant or any Person claiming through or under Tenant or by the
use or occupancy or manner of use or occupancy of the Leased Premises by Tenant
or any such Person; however the foregoing provisions of this subsection shall be
subject to the provisions of Section 13. Without affecting Tenant's obligations
set forth in the preceding sentence, Tenant, at Tenant's sole cost and expense,
shall also (i) make all repairs and replacements, as and when necessary, to
Tenant's Special Installations and to any Alterations made or performed by or on
behalf of Tenant or any Person claiming through or under Tenant, (ii) perform
all maintenance and make all repairs and replacements, as and when necessary, to
any air-conditioning equipment, private elevators, escalators, conveyors or
mechanical systems (other than the standard equipment and systems serving the
Building) which may be installed in the Leased Premises, or elsewhere in the
Building and serving the Leased Premises, by Landlord, Tenant or others, (iii)
perform all maintenance and make all repairs and replacements, as and when
necessary, to the antennas and satellite dishes installed by Tenant on the roof
of the Building and make all repairs to the roof caused by such installation,
and (iv) perform regular cleaning and janitorial services in the double-secured
areas of the Leased Premises. However, except as otherwise provided in this
Lease, Tenant shall not have any right to install air-conditioning equipment,
elevators, escalators, conveyors or mechanical systems. In addition to the
foregoing, all damage or injury to the Leased Premises and to its fixtures,
appurtenances and equipment or to the Building or to its fixtures, appurtenances
and equipment caused by Tenant moving property in or out of the Building or by
installation or removal of furniture, fixtures or other property by Tenant shall
be repaired, restored or replaced promptly by Tenant, at its sole cost and
expense, to the reasonable satisfaction of Landlord. All such aforesaid
repairs, restoration and replacements shall be in quality and class equal to the
original work or installation but in no event need exceed Building standards.
(b) By Landlord. Except as otherwise provided in subsection (a),
Landlord shall perform the following maintenance and repairs as and when
necessary (the costs of which shall be Operating Expenses hereunder, to the
extent included in the definition of Operating Expenses in Section 1(c)): (i)
structural repairs to the Leased Premises and Building; (ii) maintenance and
repairs required in order to provide the elevator, plumbing, electrical, heating
and air-conditioning services to be furnished by Landlord pursuant to this
Lease; (iii) maintenance of and repairs to exterior portions of the Building,
including the windows, balconies and roof thereof; (iv) maintenance of and
repairs to the toilet rooms in the Building, and to the public lobbies,
elevators, corridors, stairways, parking garage, sky walk, patios, sidewalks,
roadways and other common areas in the Building and the Land; and (v) other
repairs to the Leased Premises and the Building necessary for Tenant's use and
enjoyment of the Leased Premises. Landlord's obligations to make repairs to the
Leased Premises (but not the Building) under the preceding sentence shall not
accrue until after notice to Landlord of the necessity for any specific repair.
8. Rules and Regulations.
Tenant and its agents and employees shall comply with and observe all
reasonable rules and regulations concerning the use, management, operation,
safety and good order of the Leased Premises and the Building which may from
time to time be promulgated by Landlord, provided that such rules and
regulations are not inconsistent with the provisions of this Lease and do not
materially interfere with Tenant's use of the Leased Premises. Initial rules
and regulations, which shall be effective until amended by Landlord, are
attached to this Lease as Exhibit E hereto and made a part hereof. Tenant shall
be deemed to have received notice of any amendment to the rules and regulations
when a copy of such amendment has been delivered to Tenant at the Leased
Premises or has been mailed to Tenant in the manner prescribed for the giving of
notices. If Tenant disputes the reasonableness of any additional rule or
regulation hereafter made or adopted by Landlord, the parties agree to submit
the question of the reasonableness of such rule or regulation for decision to
the governing board for the time being of the Building Owners and Managers
Association of Washington, D.C., or to such impartial person or persons as it or
the parties hereto may designate, whose determination shall be final and
conclusive upon the parties
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hereto. Tenant may not dispute the reasonableness of any additional rule or
regulation unless Tenant 's intention to do so shall be asserted by notice given
to Landlord within 15 days after notice is given to Tenant of the adoption of
any such additional rule or regulation. Landlord shall not be responsible to
Tenant for any violation of the rules and regulations, or the covenants or
agreements contained in any other lease, by any other tenant of the Building, or
such tenant's agents or employees, and Landlord may waive in writing, or
otherwise, any or all of the rules or regulations in respect of any one or more
tenants.
9. Tenant's Alterations and Installments.
(a) Restrictions on Alterations. Tenant shall not make or perform, or
permit the making or performance of, any alterations, installations,
improvements, additions or other physical changes in or about the Leased
Premises (referred to collectively as "Alterations") without Landlord's prior
consent. Landlord agrees not unreasonably to withhold or delay its consent to
any nonstructural Alterations proposed to be made by Tenant to adapt the Leased
Premises for Tenant's business purposes or the business purposes of any other
permitted occupant of the Leased Premises, except that Landlord shall have no
obligation to consent to any Alteration which will reduce the value or utility
of the Building or affect the outside appearance of the Building or the color or
style of any venetian blinds supplied by Landlord (except that Tenant may remove
any such venetian blinds provided Tenant promptly replaces such venetian blinds
with venetian blinds of a similar type and color). Notwithstanding the
foregoing provisions of this subsection or Landlord's consent to any
Alterations, all Alterations, whether made prior to or during the Term, shall be
made and performed in conformity with and subject to the following provisions:
(i) all Alterations shall be made and performed at Tenant's sole cost and
expense and at such time and in such manner as Landlord may reasonably from time
to time designate; (ii) Alterations shall be made only by contractors or
mechanics approved by Landlord, such approval not to be unreasonably withheld or
delayed; (iii) no Alteration shall materially affect any part of the Building
other than the Leased Premises or adversely affect any service required to be
furnished by Landlord to Tenant or to any other tenant or occupant of the
Building; (iv) all business machines and mechanical equipment shall be placed
and maintained by Tenant in settings sufficient in Landlord's reasonable
judgment to absorb and prevent vibration, noise and annoyance to other tenants
or occupants of the Building; (v) Tenant shall submit to Landlord reasonably
detailed plans and specifications for each proposed alteration and shall not
commence any such Alteration without first obtaining Landlord's approval of such
plans and specifications, which approval will not be unreasonably withheld or
delayed; (vi) all Alterations in or to the electrical facilities in or serving
the Leased Premises shall be subject to the provisions of Section 5 relating to
exceeding electrical capacity; (vii) notwithstanding Landlord's approval of
plans and specifications for any Alteration, all Alterations shall be made and
performed in full compliance with all Legal Requirements and in accordance with
the Rules and Regulations; (viii) all materials and equipment to be incorporated
in the Leased Premises as a result of all Alterations shall be of good quality;
and (ix) Tenant shall require any contractor performing Alterations to carry and
maintain at all times during the performance of the work, at no expense to
Landlord, (i) a policy of comprehensive public liability insurance, including
contractor's liability coverage, contractual liability coverage, completed
operations coverage, contractor's protective liability coverage and a broad form
property damage endorsement, naming Landlord and (at Landlord's request) any
Mortgagee of the Building and any management agent as additional named
insureds), with such policy to afford protection to the limit of not less than
$2,000,000 with respect to bodily injury or death to any number of persons in
any one accident and to the limit of not less than $1,000,000 to damage to the
property of any one owner from one occurrence, and (ii) workers' compensation or
similar insurance in the form and amounts required by the laws of the State of
Virginia. In the event the estimated cost of an Alteration (which shall include
the aggregate cost of a series of Alterations which are reasonably aggregated
into a single project) is in excess of $100,000.00, or in the event of an
Alteration to a structural member of, or mechanical system in, the Leased
Premises, Landlord shall have the right to place other and further restrictions
and conditions thereon prior to Tenant being authorized to commence such
Alteration. Such additional conditions may include, by way of illustration and
not of limitation, the requirement that the contractor be bonded or bondable.
In the event of any dispute between the parties as to whether or not Landlord
has acted reasonably in any case with respect to which Landlord is required,
pursuant to the provisions of this subsection (a), to do so, Tenant's sole
remedy shall be to submit such dispute to mediation pursuant to Section 28. If
the determination in any such mediation shall be adverse to Landlord, Landlord
nevertheless shall not be liable to
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Tenant for breach of Landlord's covenant to act reasonably, and Tenant's sole
remedy in such event shall be to proceed with the proposed Alterations. However,
if the parties are unable to settle such matter by mediation, and such matter is
submitted to litigation, Landlord's liability and Tenant's remedies shall not be
so limited.
(b) Tenant's Right to Cure. If Tenant shall be in default under this
Section by reason of the making of any Alteration not hereby authorized or by
reason of failure to give any notice or to obtain any approval required herein,
Tenant may cure such default within the applicable grace period provided in this
Lease for curing such default by removing such Alteration and restoring the
Leased Premises to their former condition, as provided in Section 7.
(c) Fixtures Become Landlord's Property. Except to the extent
specifically provided in subsection (e), all appurtenances, fixtures,
improvements, additions and other property attached to or installed in the
Leased Premises, whether by Landlord or Tenant or others, and whether at
Landlord's expense, or Tenant's expense, or the joint expense of Landlord and
Tenant, which are of a permanent nature or which cannot be removed without
structural damage to the Building, shall be and remain the property of Landlord.
Any replacements of any property of Landlord, whether made at Tenant's expense
or otherwise, shall be and remain the property of Landlord.
(d) Tenant's Special Installations. All furniture, furnishings and
trade fixtures, excepting lighting fixtures and equipment, but including,
without limitation, murals, carpets, rugs, business machines and equipment,
vaults, vault doors and door frames, and vault equipment, if any, safe deposit
equipment, counterscreens, grillwork, cages, partitions which are moveable,
railings, raised floors, escalators, conveyors, stairs, elevators, paneling,
equipment relating to food preparation, food storage and serving, dishwashing
and cleaning devices and air-conditioning equipment, and any other moveable
property installed by, or at the expense of Tenant, including any such property
paid for with any allowance provided by Landlord to Tenant, shall remain the
property of Tenant and are referred to herein as "Tenant's Special
Installations". Tenant may at its expense remove any part of said property at
any time during the Term, and shall at its expense remove all of said property
at the expiration or other termination of the Term unless Landlord shall
otherwise consent in writing. Upon removal of any or all of said property
Tenant shall then repair all damage caused by such removal. Any of Tenant's
Special Installations which are not removed from the Leased Premises at the
expiration of the Term shall be deemed to have been abandoned by Tenant and may
be disposed of by Landlord without liability to Tenant.
(e) Mechanics' Liens. Notice is hereby given that Landlord shall not
be liable for any labor or materials furnished or to be furnished to Tenant upon
credit, and that no mechanic's, materialman's or other lien for any such labor
or materials shall attach to or affect the reversion or other estate or interest
of Landlord in and to the Leased Premises or the Building. Whenever and as
often as any mechanic's lien or materialman's lien shall have been filed against
the Leased Premises or the Building based upon any act or interest of Tenant or
of anyone claiming through Tenant, or if any lien or security interest with
respect thereto shall have been filed affecting any materials, machinery or
fixtures used in the construction, repair or operation thereof or annexed
thereto by Tenant or its successors in interest, Tenant shall forthwith take
such action by bonding, deposit or payment as will remove or satisfy the lien or
other security interest and in default thereof after the expiration of 20 days
after notice to Tenant, Landlord, in addition to any other remedy under this
Lease, may pay the amount secured by such lien or security interest or discharge
the same by deposit and the amount so paid or deposited shall be collectible as
additional rent. The provisions of this subsection shall not be applicable to
liens filed with respect to work done for Tenant's account by Landlord.
10. Name of Building; Tenant's Signs.
(a) Name. Landlord agrees that, throughout the Term, it will not use
any name for the Building other than its street address without first obtaining
the Tenant's written consent, which Tenant agrees not unreasonably to withhold
or delay. Landlord expressly reserves the right to have the Building designated
by a street number or numbers and to affix to the Building, at locations
designated by Landlord, signs indicating any such number or numbers and the name
of the Building (if any) as selected from time to time by Landlord in accordance
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with the provisions of this subsection. Landlord agrees that it will not
install signs on the exterior of the Building, except for (i) signs for retail
tenants, and (ii) Tenant's signs permitted by subsection (d).
(b) Restrictions on Exterior Signs. Except as otherwise provided in
subsection (d), Landlord has not granted to Tenant any rights in or to the roof
or the outer side of the outside walls of the Building, control of which is
hereby reserved by Landlord. Tenant shall not display or erect any lettering,
signs, advertisements, awnings or other projections on the exterior of the
Leased Premises or in the interior of the Leased Premises if visible from a
public way, except for customary hallway door lettering.
(c) Directory Tablets. Landlord, at its expense, shall maintain the
existing directory tablets (i) in the main lobby of the Building, (ii) in the
skywalk between the Building and the other building in the Office Park, and
(iii) on the walkway between the Building and the other building in the Office
Park, upon each of which Landlord, at Tenant's expense, will affix Tenant's name
and a reasonable number of names of its officers, partners or employees. The
size, color and style of such directories and names affixed thereto shall be
selected by Landlord.
(d) Tenant's Permitted Signs. Landlord shall permit Tenant
throughout the Term to install and maintain, subject to Legal Requirements, two
suitable signs on the exterior of the Building. The location, size, color and
style of Tenant's exterior signs shall be subject to Landlord's approval, such
approval not to be unreasonably withheld or delayed. Landlord hereby approves
Tenant's signs which are currently on the Building, and agrees that, if Tenant's
name is changed, Tenant, at its expense, may replace such signs with similar
signs displaying the new name.
(e) Access to Roof. Throughout the Term, Landlord shall permit
Tenant to install and maintain, subject to Legal Requirements and the provisions
of this Section 10(e), not more than one (1) satellite or antenna dish on the
roof of the Building ("Tenant's Roof Use").
(i) Landlord shall make available to Tenant access to and a
location mutually acceptable to Landlord and Tenant on the roof for the
construction, installation, maintenance, repair, operation and use of such
satellite or antenna dishes. Tenant shall screen such installations in a manner
mutually acceptable to Landlord and Tenant. Tenant shall have the right to
remove such satellite or antenna dishes and any related equipment from the
Building at the expiration or other termination of the Term of this Lease,
provided that Tenant repairs any damage occasioned by such removal. Tenant shall
pay all costs associated with the installation, maintenance, repair, use,
insurance and removal of such satellite or antenna dishes and any related
equipment.
(ii) Tenant shall give Landlord's Building manager reasonable
telephonic notice before any entry onto the roof of the Building by Tenant's
agents, employees or contractors, and shall permit Landlord's Building manager
to accompany Tenant's agents, employees or contractors on any such entry onto
the roof. Except as otherwise hereinafter set forth in this Section 10(e),
Landlord shall not be liable for any claims, losses, actions, damages,
liabilities or expenses arising from any satellite or antenna dish or related
equipment installed by Tenant on the roof of the Building, or the installation,
maintenance, repair, use or removal of such dish and related equipment, unless
caused by the negligence or willful misconduct of Landlord, its agents,
employees or contractors.
(iii) Tenant's Roof Use shall be undertaken so as to not interfere
with the operation of other equipment on the roof of the Building or the roof of
the other building in the Office Park. If Tenant's equipment on the roof of the
Building interferes with the operation of any such other equipment, then Tenant,
at its expense, shall take whatever measures may be necessary to eliminate such
interference.
(iv) If the rate of any insurance carried by Landlord is increased
as a result of Tenant's Roof Use, then Tenant will pay to Landlord within ten
(10) days before the date Landlord is obligated to pay a premium on the
insurance (or within ten (10) days after Landlord delivers to Tenant a certified
statement from Landlord's insurance carrier stating that the rate increase was
caused by Tenant's Roof Use, whichever date is later), a sum equal to the
difference between the original premium and the increased premium resulting from
Tenant's Roof Use.
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(v) Landlord has not made any representations or promises pertaining
to the suitability of the Building's roof for Tenant's Roof Use. Tenant, solely
for the purpose of this Section 10(e) and its right to rooftop access hereunder,
accepts the rooftop in its "as is" condition.
(vi) Tenant will obtain prior to installation, any and all
governmental licenses, approvals necessary for the installation, maintenance and
use of any equipment installed pursuant to this Section 10(e). Tenant's Roof
Use shall not in any way conflict with any applicable Legal Requirements.
Tenant shall indemnify and hold Landlord harmless from and against any and all
loss, cost (including reasonable attorney's fees incurred in defending
Landlord), damage or liability arising out of any violation by Tenant's Roof Use
of any applicable Legal Requirements.
(vii) Tenant's Roof Use shall be exercised: (1) in such manner as
will not create any hazardous condition or interfere with or impair the
operation of the heating, ventilation, air conditioning, plumbing, electrical,
fire protection, life, safety, public utilities or other systems or facilities
in the Building; (2) in compliance with all applicable Legal Requirements; (3)
in such a manner as will not unreasonably interfere with Landlord's operation or
maintenance of the Building; (4) at Tenant's cost, including the cost of
repairing any damage to the Building and any personal injury and/or property
damage caused by the installation, inspection, adjustment, maintenance, removal
or replacement of any of Tenant's equipment on the roof; and (5) in a manner
which will not void or invalidate any roof warranty then in effect with respect
to the roof of the Building. Tenant's Roof Use shall be used solely in the
ordinary course of Tenant's business operations (and not for resale by Tenant),
and any use of the roof outside of the ordinary course of Tenant's business
operations (such as, but not limited to, subleasing portions of the roof for
profit to third parties, in order for such third parties to establish
communications transmission facilities) shall be subject to Landlord's consent,
which consent shall not be unreasonably withheld, but may be conditioned, inter
alia, upon the payment by Tenant to Landlord of any net revenues paid to Tenant
in respect thereof.
11. Liability Insurance.
(a) Required Coverage. Tenant, at Tenant's sole cost and expense,
shall obtain and maintain in effect at all times during the Term, a policy of
comprehensive general public liability insurance with broad form property damage
endorsement, naming Landlord and (at Landlord's request) any Mortgagee of the
Building and any management agent as additional insured(s), protecting Landlord,
Tenant and any such Mortgagee and management agent against any liability for
bodily injury, death or property damage occurring upon, in or about any part of
the Building, including the roof, or the Land, the Leased Premises or any
appurtenances thereto, with such policies to afford protection to the limit of
$5,000,000 with respect to bodily injury or death to any one person, to the
limit of $5,000,000 with respect to bodily injury or death to any number of
persons in any one accident, and to the limit of $5,000,000 with respect to
damage to the property of any one owner from one occurrence. Such comprehensive
liability insurance may be effected by a policy or policies of blanket insurance
which cover other property in addition to the Leased Premises, provided that the
protection afforded thereunder shall be no less than that which would have been
afforded under a separate policy or policies relating only to the Leased
Premises and provided further that in all other respects any such policy shall
comply with the other provisions of this Section.
(b) Policy Requirements. The insurance policy required to be
obtained by Tenant under this Section: (i) shall be issued by insurance
companies rated A- or better in the most current issue of Best's Insurance
Reports, licensed to do business in the state in which the Building is located
and domiciled in the United States; and (ii) shall be written as primary policy
coverage and not contributing with or in excess of any coverage which Landlord
may carry. Neither the issuance of any insurance policy required under this
Lease, nor the minimum limits specified herein with respect to Tenant's
insurance coverage, shall be deemed to limit or restrict in any way Tenant's
liability arising under or out of this Lease. With respect to each insurance
policy required to be obtained by Tenant under this Section, on or before the
Lease Commencement Date, and at least 30 days before the expiration of the
expiring policy or certificate previously furnished, Tenant shall deliver to
Landlord a certificate of insurance therefor, together with evidence of payment
of all applicable premiums. Each insurance policy required
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to be carried hereunder by or on behalf of Tenant shall provide (and any
certificate evidencing the existence of each such insurance policy shall
certify) that such insurance policy shall not be canceled unless Landlord shall
have received 20 days' prior written notice of cancellation.
(c) Indemnification of Landlord. Except for the willful or negligent
acts or omissions of Landlord or its agents or employees, Tenant hereby agrees
to indemnify and hold harmless Landlord from and against any and all claims,
losses, actions, damages, liabilities and expenses (including attorneys' fees)
that (i) arise from or are in connection with Tenant's possession, use,
occupancy, management, repair, maintenance or control of the Leased Premises, or
any portion thereof, or (ii) arise from or are in connection with any willful or
negligent act or omission of Tenant or Tenant's agents, employees or subtenants,
or (iii) result from any default, breach, violation or nonperformance of this
Lease or any provision therein by Tenant, or (iv) arise from injury or death to
persons or damage to property sustained on or about the Leased Premises, or (v)
arise from Tenant's installation, maintenance, repair, use or removal of any
rooftop satellite or antenna dishes or related equipment. Tenant shall, at its
own cost and expense, defend any and all actions, suits and proceedings which
may be brought against Landlord with respect to the foregoing or in which
Landlord may be impleaded. Tenant shall pay, satisfy and discharge any and all
money judgments which may be recovered against Landlord in connection with the
foregoing.
(d) Indemnification of Tenant. Except for the willful or negligent
acts or omissions of Tenant or its agents or employees, Landlord hereby agrees
to indemnify and hold harmless Tenant from and against any and all claims,
losses, actions, damages, liabilities and expenses (including attorneys' fees)
that (i) arise from or are in connection with Landlord's possession, use,
occupancy, management, repair, maintenance or control of the common areas of the
Building located on any Floor not wholly occupied by Tenant, or (ii) arise from
or are in connection with any willful or negligent act or omission of Landlord
or Landlord's agents or employees, or (iii) result from any default, breach,
violation or nonperformance of this Lease or any provision therein by Landlord,
or (iv) arise from injury or death to persons or damage to property sustained on
or about the common areas of the Building located on any Floor not wholly
occupied by Tenant. Landlord shall, at its own cost and expense, defend any and
all actions, suits and proceedings which may be brought against Tenant with
respect to the foregoing or in which Tenant may be impleaded. Landlord shall
pay, satisfy and discharge any and all money judgments which may be recovered
against Tenant in connection with the foregoing.
12. Fire Insurance.
(a) Required Coverage. Landlord shall, throughout the Term, at its
expense, keep the Building, but not Tenant's Special Installations, Alterations
or Tenant's furniture, furnishings, trade fixtures or property removable by
Tenant under the provisions of this Lease (including any rooftop satellite or
antenna dishes and related equipment), insured against all loss or damage by
fire with extended coverage in such amount as any first Mortgagee of the
Building may from time to time require. Tenant shall, throughout the Term, at
its expense, keep Tenant's Special Installations and Alterations and Tenant's
personal property, including any rooftop satellite or antenna dishes and related
equipment, insured against all loss or damage by fire with extended coverage in
an amount sufficient to prevent Tenant from becoming a co-insurer. Tenant's
policies of insurance shall contain, if available from the insurer, an
appropriate clause or endorsement under which the insurer agrees that such
policy shall not be canceled without at least 30 days notice to Landlord.
(b) Notice of Insurance Coverage. Landlord and Tenant will (i) if
requested, advise the other as to the provisions of fire and extended coverage
insurance policies obtained pursuant to this Section, and (ii) notify the other
promptly of any change in the terms of any such policy which would affect such
provisions.
(c) Mutual Waiver of Subrogation
(i) Notwithstanding anything to the contrary in this Lease, whether
the loss or damage is due to the negligence of Landlord or Landlord's agents or
employees, or any other cause, Tenant hereby releases Landlord and Landlord's
agents and employees from responsibility for and waives its entire claim of
recovery for (i)
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any and all loss or damage to the personal property of Tenant located in the
Building (excluding any personal property required to be insured by Landlord
pursuant to the provisions hereof), arising out of any of the perils which are
covered by Tenant's property insurance policy, with extended coverage
endorsements which Tenant is required to obtain under the applicable provisions
of this Lease, whether or not actually obtained.
(ii) Notwithstanding anything to the contrary in this Lease, whether
the loss or damage is due to the negligence of Tenant or Tenant's agents or
employees, or any other cause, Landlord hereby releases Tenant and Tenant's
agents and employees from responsibility for and waives its entire claim of
recovery for any and all loss or damage to the Building or any personal property
of Landlord located about the Building and the Building generally and all
property attached thereto (excluding any such property required to be insured by
Tenant hereunder), arising out of any of the perils which are covered by
Landlord's property insurance policy which Landlord is required to obtain under
the applicable provisions of this Lease, whether or not actually obtained.
(iii) Landlord and Tenant shall each cause its respective property
insurance carrier(s) to consent to such waiver of all rights of subrogation
against the other, and to issue an endorsement to all policies of property
insurance obtained by such party confirming that the foregoing release and
waiver will not invalidate such policies.
13. Damage by Fire or Other Casualty.
In the event of loss of, or damage to, the Leased Premises or the
Building by fire or other casualty, the rights and obligations of the parties
hereto shall be as follows:
(a) Repair of Damage. If the Leased Premises or any part thereof
shall be damaged by fire or other casualty, Tenant shall give prompt notice
thereof to Landlord, and Landlord, upon receiving such notice, shall proceed
promptly and with reasonable diligence, subject to Unavoidable Delays, to
repair, or cause to be repaired, such damage in a manner designed to minimize
interference with Tenant's occupancy (but with no obligation to employ labor at
overtime or other premium pay rates). If the Leased Premises or any part
thereof shall be rendered untenantable by reason of such damage, whether to the
Leased Premises or the Building, the Basic Rent and Additional Charges shall
proportionately abate with respect thereto for the period from the date of such
damage to the date when such damage shall have been repaired for the portion of
the Leased Premises rendered untenantable. However, if, prior to the date when
all of such damage shall have been repaired, any part of the Leased Premises is
damaged shall be rendered tenantable and shall be used or occupied by Tenant or
any Person or Persons claiming through or under Tenant, then the amount by which
the Basic Rent and Additional Charges shall abate shall be equitably apportioned
for the period from the date of any such use.
(b) Termination of Lease by Landlord or Tenant. If as a result of
fire or other casualty more than one-half (1/2) of the Leased Premises is
rendered untenantable, Landlord within 60 days from the date of such fire or
casualty may terminate this Lease by notice to Tenant, specifying a date, not
less than 20 nor more than 40 days after the giving of such notice, on which the
Term shall expire as fully and completely as if such date were the date herein
originally fixed for the expiration of the Term. If the Leased Premises are
damaged as a result of fire or other casualty and if the damage to the Leased
Premises (but not including Tenant's Special Installations or Alterations) is so
extensive that such damage cannot be substantially repaired within 240 days from
the date of the fire or other casualty (except for Unavoidable Delays), either
Landlord or Tenant within 30 days from the date of such fire or other casualty
may terminate this Lease by notice to the other, specifying a date, not less
than 20 nor more than 40 days after the giving of such notice, on which the Term
shall expire as fully and completely as if such date were the date originally
fixed for the expiration of the Term. If either Landlord or Tenant terminates
this Lease, the Basic Rent and Additional Charges shall be apportioned as of the
date of such fire or other casualty. If neither Landlord nor Tenant so elects
to terminate this Lease, then Landlord shall proceed to repair the damage to the
Building and the damage to the Leased Premises (but not Tenant's Special
Installations or Alterations), if any shall have occurred, and the Basic Rent
and Additional Charges shall meanwhile be apportioned and abated all as provided
in subsection (a). However, if such damage is not repaired and the Leased
Premises and the Building
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restored to reasonably the same condition as they were prior to such damage
within 240 days from the date of such damage (such 240-day period to-be extended
by the period of any Unavoidable Delays), Tenant, within 30 days from the
expiration of such 240-day period (as the same may be extended), may terminate
this Lease by notice to Landlord, specifying a date not more than 60 days after
the giving of such notice on which the Term shall expire as fully and completely
as if such date were the date herein originally fixed for the expiration of the
Term.
(c) Termination of Lease by Landlord. If the Leased Premises shall
be rendered untenantable to the extent of eighty percent (80%) or more by fire
or other casualty during the last six months of the Term, Landlord or Tenant may
terminate this Lease upon notice to the other party given within 90 days after
such fire or other casualty specifying a date, not less than 20 days nor more
than 40 days after the giving of such notice, on which the Term shall expire as
fully and completely as if such date were the date originally fixed for the
expiration of the Term. If either Landlord or Tenant terminates this Lease
pursuant to this subsection, the Basic Rent and Additional Charges shall be
apportioned as of the date of such fire or casualty.
(d) Limitation on Landlord's Repair Obligation. Landlord shall not be
required to repair or replace any of Tenant's Special Installations or
Alterations or any other personal property of Tenant and no damages,
compensation or claim shall be payable by Landlord for inconvenience, loss of
business or annoyance arising from any repair or restoration of any portion of
the Leased Premises or of the Building, but the foregoing shall not be deemed to
relieve Landlord of liability for its breach of any covenant of this Lease.
(e) Inapplicability of Other Laws. The provisions of this Section
shall be considered an express agreement governing any instance of damage or
destruction of the Building or the Leased Premises by fire or other casualty,
and any law now or hereafter in force providing for such a contingency in the
absence of express agreement shall have no application.
(f) Landlord Released from Liability. Notwithstanding any other
provision of this Lease, Landlord shall not be liable or responsible for, and
Tenant hereby releases Landlord and its partners, officers, directors, agents
and employees from, any and all liability or responsibility to Tenant or any
Person claiming by, through or under Tenant, by way of subrogation or otherwise,
for any injury, loss or damage to Tenant's property caused by any of the perils
insured against by the fire insurance policy with extended coverage endorsement
which is customarily issued in Fairfax County, Virginia, and Tenant shall
require its insurer(s) to include in all of Tenant's insurance policies which
could give rise to a right of subrogation against Landlord a clause or
endorsement whereby the insurer(s) shall waive any right of subrogation against
Landlord.
(g) Tenant Released from Liability. Notwithstanding any other
provision of this Lease, Tenant shall not be liable or responsible for, and
Landlord hereby releases Tenant and its partners, officers, directors, agents
and employees from, any and all liability or responsibility to Landlord or any
Person claiming by, through or under Landlord, by way of subrogation or
otherwise, for any injury, loss or damage to Landlord's property caused by any
of the perils insured against by the fire insurance policy with extended
coverage endorsement which is customarily issued in Fairfax County, Virginia,
and Landlord shall require its insurer(s) to include in all of Landlord's
insurance policies which could give rise to a right of subrogation against
Tenant a clause or endorsement whereby the insurer(s) shall waive any rights of
subrogation against Tenant.
(h) Insurance Proceeds. The proceeds payable under all fire and
other hazard insurance policies maintained by Landlord on the Building shall
belong to and be the property of Landlord, and Tenant shall not have any
interest in such proceeds. Tenant agrees to look to its own fire and hazard
insurance policies in the event of damage to Tenant's Special Installations or
Alterations or its personal property.
14. Condemnation.
(a) Effect of Taking. In the event of a Taking of the whole of the
Leased Premises, this Lease shall terminate as of the date of such Taking. If
only a part of the Leased Premises shall be so taken then,
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except as otherwise provided in this subsection, this Lease shall continue in
force and effect but, from and after the date of the Taking, the Basic Rent and
Additional Charges shall be reduced on the basis of the square footage of the
portion of the Leased Premises so taken. If a part of the Building shall be
taken, and if either (i) the part of the Building so taken contains more than
twenty-five percent (25%) of the Rentable Area of the Leased Premises,
immediately prior to such Taking, or (ii) in Landlord's reasonable opinion, it
shall be impracticable to continue to operate the Building, then Landlord, at
Landlord's option, may give to Tenant within 60 days after the date upon which
Landlord shall have received notice of the Taking, a 30 days' notice of
termination of this Lease. If a part of the Building shall be taken, and if
either (i) the part of the Building taken contains more than thirty-five percent
(35%) of the Rentable Area of the Leased Premises immediately prior to such
Taking, or (ii) by reason of such Taking, all or substantially all of the Leased
Premises becomes untenantable and Tenant is unable and does not, in fact use all
or substantially all of the Leased Premises for the uses permitted by Section
6(a), then Tenant, at Tenant's option, may give to Landlord within 60 days after
the date upon which Tenant shall have received notice of such Taking, a 30 days'
notice of termination of this Lease. If a 30 days' notice of termination is
given by Landlord or Tenant, this Lease shall terminate upon the expiration of
the 30-day period. If this Lease is terminated pursuant to the foregoing
provisions of this subsection, then, to the extent permitted by applicable law
and such Taking, Tenant shall have access to the Leased Premises in order to
remove Tenant's Special Installations and any other personal property then owned
by Tenant and which Tenant is entitled to remove pursuant to this Lease during
the period of 30 days from the date Tenant is permitted access therefor. If a
Taking occurs which does not result in the termination of this Lease, Landlord
shall repair, alter and restore the remaining portions of the Leased Premises to
their former condition to the extent that the same may be feasible.
(b) Award. Landlord shall have the exclusive right to receive any
and all awards made for damages to the Leased Premises and the Building accruing
by reason of a Taking or by reason of anything lawfully done in pursuance of
public or other authority. Tenant hereby releases and assigns to Landlord all of
Tenant's rights to such awards, and covenants to deliver such further
assignments and assurances thereof as Landlord may from time to time request,
hereby irrevocably designating and appointing Landlord as its attorney-in-fact
to execute and deliver in Tenant's name and behalf all such further assignments
thereof. However, Tenant shall have the right to make its own claim against the
condemning authority for a separate award for the value of any of Tenant's
Special Installations and Alterations, for moving and relocation expenses and
for such business damages and/or consequential damages as may be allowed by law
which do not constitute part of the compensation for the Building and do not
diminish the amount of the award to which Landlord would otherwise be entitled.
15. Assignment and Subletting.
(a) Subletting to ICF Kaiser International, Inc. It is understood and
agreed that Tenant will sublet the entire Leased Premises to its affiliate, ICF
Kaiser International, Inc., for a basic rent in excess of the Basic Rent payable
hereunder. Upon the written request of Landlord or any Mortgagee following an
event of default under any loan secured by a Mortgage, Tenant shall pay to
Landlord one hundred percent (100%) of the amount of such excess, monthly as
received by Tenant from ICF Kaiser International, Inc.
(b) Assignment and Subletting Prohibited. Tenant shall not mortgage,
pledge, encumber, sell, assign or transfer this Lease, in whole or in part, by
operation of law or otherwise, or sublease all or any part of the Leased
Premises, without Landlord's written consent, which consent may be withheld for
any reason whatsoever except as provided in subsection (a) and subsection (d).
In connection with any request by Tenant for such consent to assign or sublet,
Tenant shall submit to Landlord, in writing, a statement containing the name of
the proposed assignee or subtenant, such information as to its financial
responsibility and standing as Landlord may reasonably require, and all of the
terms and provisions upon which the proposed assignment or subletting is to be
made, and, unless the proposed sublet area shall constitute the entire Leased
Premises, such statement shall be accompanied by a floor plan delineating the
proposed sublet area. Any attempted transfer, assignment, subletting,
mortgaging or encumbering of this Lease in violation of the provisions of this
Section shall be void and confer no rights upon any third person. No permitted
assignment or subletting shall relieve Tenant of any of its obligations under
this Lease.
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(c) Merger and Consolidation. Notwithstanding the provisions of
subsection (b), Tenant shall have the privilege, without the consent of
Landlord, to assign its interest in this Lease to any corporation which is a
successor to Tenant, either by merger or consolidation, or to any corporation
which controls, is controlled by, or is under common control with, the Tenant.
However, no such assignment shall be valid unless, within 10 days after the
consummation thereof, Tenant shall deliver to Landlord (i) a duplicate original
instrument of assignment in form reasonably satisfactory to Landlord, duly
executed by Tenant, and (ii) an instrument in form and substance reasonably
satisfactory to Landlord, duly executed by the assignee, in which such assignee
shall agree to observe and perform, and to be personally bound by, all of the
terms, covenants and conditions of this Lease on Tenant's part to be observed
and performed, whether or not accruing prior to or after the date of such
assignment and whether or not relating to matters arising prior to such
assignment.
(d) Permitted Subletting. Unless an Event of Default has occurred
and is continuing, Landlord shall not unreasonably withhold or delay Landlord's
consent to sublettings by Tenant of a part or parts of the Leased Premises, but
Landlord shall not be obligated to consent to a subletting for a use prohibited
by Section 6(a). Each such subletting shall be for undivided occupancy by the
subtenant of that part of the Floor affected thereby for the use permitted under
this Lease. Landlord may, however, withhold such consent if, in Landlord's
reasonable judgment, the proposed subtenant is not engaged in a business
consistent with the character and dignity of the Building, or will impose any
additional material burden upon Landlord in the operation of the Building (to an
extent greater than the burden to which Landlord would have been put if Tenant
continued to use, or used, such part of the Leased Premises for its own
purposes). In the event of any dispute between Landlord and Tenant as to the
reasonableness of Landlord's refusal to consent to any subletting such dispute
shall be submitted to mediation pursuant to Section 28. Except as otherwise set
forth in subsection (a), if any portion of the Leased Premises is sublet at any
time, and if the rent received by Tenant on account of such subletting exceeds
the Basic Rent, allocated to the space subject to the sublease in the proportion
of the area of such space to the Rentable Area of the Leased Premises, plus
actual out-of-pocket expenses incurred by Tenant in connection with Tenant's
subleasing of such space, including advertising, attorneys' fees, brokerage
commissions and the unamortized cost of preparing such space for occupancy by
the subtenant, then, except as otherwise provided in the next sentence, Tenant
shall pay to Landlord fifty percent (50%) of such excess, monthly as received by
Tenant from the subtenant. Except as otherwise set forth in subsection (a),
Landlord shall not share in any profit derived by Tenant from the permitted
subletting of all or any part of the space located on the Floor designated by
Tenant as its "Sublet Floor" in a notice given to Landlord before Tenant enters
into its first permitted sublease pursuant to this subsection. Notwithstanding
anything to the contrary in this Section 15(d), Tenant shall have the right to
sublet space in the Leased Premises to Tenant's affiliates (hereinafter
defined), subcontractors or consultants without notice to or the consent of
Landlord, and, except as set forth in Section 15(a), without paying any portion
of the profits of such subletting to Landlord. As used herein, a "Tenant's
affiliate" shall mean a corporation or other entity which controls, is
controlled by or is under common control with Tenant, or which is a joint
venture partner of Tenant.
(e) Collection of Rent from Assignee. If Tenant's interest in this
Lease is assigned, whether or not in violation of the provisions of this
Section, Landlord may collect rent from the assignee; if the Leased Premises or
any part thereof are sublet to, or occupied by, or used by, any Person other
than Tenant, whether or not in violation of this Section, Landlord, after
default by Tenant under this Lease, may collect rent from the subtenant, user or
occupant. In either case, Landlord shall apply the amount collected to the
rents reserved in this Lease, but neither any such assignment, subletting,
occupancy or use, whether with or without Landlord's prior consent, nor any such
collection or application, shall be deemed a waiver of any term, covenant or
condition of this Lease or the acceptance by Landlord of such assignee,
subtenant, occupant or user as tenant. The consent by Landlord to any
assignment or subletting shall not relieve Tenant from its obligation to obtain
the express prior consent of Landlord to any further assignment or subletting.
The listing of any name other than that of Tenant on any door of the Leased
Premises or on any directory in the Building, or otherwise, shall not operate to
vest in the Person so named any right or interest in this Lease or in the Leased
Premises or be deemed to constitute, or serve as a substitute for, any prior
consent of Landlord required under this Section, and it is understood that any
such listing shall constitute a privilege extended by Landlord which shall be
revocable at Landlord's will by notice to Tenant. Neither an assignment of
Tenant's interest in this Lease nor a subletting, occupancy or use of the Leased
Premises or any part thereof by any
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Person other than Tenant as provided in this subsection, nor the application of
any such rent as provided in this subsection shall, in any circumstances,
relieve Tenant from its obligation fully to observe and perform the terms,
covenants and conditions of this Lease on Tenant's part to be observed and
performed.
16. Default Provisions.
(a) Events of Default. Each of the following events shall be deemed
to be, and is referred to in this Lease as, an "Event of Default":
(1) A default by Tenant in making any payment of Basic Rent or
Additional Charges on the date such payment is due and payable which continues
for more than five days after Landlord shall have given Tenant a written notice
specifying such default; or
(2) If, within any period of 12 consecutive months, Landlord has
given two written notices to Tenant pursuant to paragraph (1), a further default
by Tenant, within the 12-month period after the giving of the second such
notice, in making any payment of Basic Rent or Additional Charges on the date
such payment is due which continues for more than 10 days after such payment is
due; or
(3) The neglect or failure of Tenant to perform or observe any of the
terms, covenants or conditions contained in this Lease on Tenant's part to be
performed or observed (other than those referred to in paragraph (1) above)
which is not remedied by Tenant (i) within 20 days after Landlord shall have
given to Tenant written notice specifying such neglect or failure, or (ii) in
the case of any such neglect or failure which cannot with due diligence and in
good faith be cured within 20 days, within such additional period, if any, as
may be reasonably required to cure such default with due diligence and in good
faith provided that Tenant commences the curing of the same within the 20-day
period (it being intended that, in connection with any such default which is not
susceptible of being cured with due diligence and in good faith within 20 days,
the time within which the Tenant is required to cure such default shall be
extended for such additional period as may be necessary for the curing thereof
with due diligence and in good faith); or
(4) The assignment, transfer, mortgaging or encumbering of this Lease
or the subletting of the Leased Premises in a manner not permitted by Section
15; or
(5) The taking of this Lease or the Leased Premises, or any part
thereof, upon execution or by other process of law directed against Tenant, or
upon or subject to any attachment at the instance of any creditor of or claimant
against Tenant, which execution or attachment shall not be discharged or
disposed of within 30 days after the levy thereof.
(b) Landlord's Rights Upon Event of Default. Upon the occurrence of
an Event of Default, Landlord shall have the right, at its election, then or at
any time thereafter while such Event of Default shall continue, either:
(1) To give Tenant written notice that this Lease will terminate on a
date to be specified in such notice, which date shall not be less than three
days after such notice if such notice is sent by registered or certified mail,
but which date may be the date of such notice or any date thereafter if such
notice is delivered in person, and on the date specified in such notice Tenant's
right to possession of the Leased Premises shall cease and this Lease shall
thereupon be terminated, but Tenant shall remain liable as provided in
subsection (c); or
(2) Without demand or notice, to reenter and take possession of the
Leased Premises, or any part thereof, and repossess the same as of Landlord's
former estate and expel Tenant and those claiming through or under Tenant and
remove the effects of both or either, either by summary proceedings, or by
action at law or in
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equity, without being deemed guilty of any manner of trespass and without
prejudice to any remedies for arrears of rent or preceding breach of covenant.
If Landlord elects to re-enter under paragraph (2), Landlord may
terminate this Lease, or, from time to time, without terminating this Lease, may
relet the Leased Premises, or any part thereof, as agent for Tenant for such
term or terms and at such rental or rentals and upon such other terms and
conditions as Landlord may deem advisable, with the right to make alterations
and repairs to the Leased Premises. No such re-entry or taking of possession of
the Leased Premises by Landlord shall be construed as an election on Landlord's
part to terminate this Lease unless a written notice of such intention is given
to Tenant under paragraph (1) or unless the termination thereof be decreed by a
court of competent jurisdiction. Tenant waives any right to the service of any
notice of Landlord's intention to reenter provided for by any present or future
law.
(c) Tenant's Liability for Damages. If Landlord terminates this Lease
pursuant to subsection (b), Tenant shall remain liable (in addition to accrued
liabilities) to the extent legally permissible for (i) the sum of (A) all Basic
Rent and Additional Charges provided for in this Lease until the date this Lease
would have expired had such termination not occurred, and (B) any and all
reasonable expenses incurred by Landlord in reentering the Leased Premises,
repossessing the same, making good any default of Tenant, painting, altering or
dividing the Leased Premises, combining the same with any adjacent space for any
new tenants, putting the same in proper repair, reletting the same (including
any and all reasonable attorney's fees and disbursements and reasonable
brokerage fees incurred in so doing), and any and all expenses which Landlord
may incur during the occupancy of any new tenant (other than expenses of a type
that are Landlord's responsibility under the terms of this Lease); less (ii) the
proceeds of any reletting. Tenant agrees to pay to Landlord the difference
between items (i) and (ii) above with respect to each month during the Term, at
the end of such month. Any suit brought by Landlord to enforce collection of
such difference for any one month shall not prejudice Landlord's right to
enforce the collection of any difference for any subsequent month. In addition
to the foregoing, Tenant shall pay to Landlord, whether or not the Lease is
terminated, such sums as the court which has jurisdiction thereover may adjudge
reasonable as attorney's fees with respect to any successful law suit or action
instituted by Landlord to enforce the provisions of this Lease. Landlord shall
have the right, at its sole option, to relet the whole or any part of this
Leased Premises for the whole of the unexpired Term, or longer, or from time to
time for shorter periods, for any rental then obtainable, giving such
concessions of rent and making such special repairs, alterations, decorations
and paintings for any new tenant as Landlord, in its sole and absolute
discretion, may deem advisable. Tenant's liability as aforesaid shall survive
the institution of summary proceedings and the issuance of any warrant
thereunder. Landlord shall be under no obligation to relet the Leased Premises,
but agrees to use its best efforts to do so.
(d) Liquidated Damages. If Landlord terminates this Lease pursuant to
subsection (b), Landlord shall have the right, at any time, at its option, to
require Tenant to pay to Landlord, on demand, as liquidated and agreed final
damages in lieu of Tenant's liability under subsection (c), an amount equal to
the difference discounted to the date of such demand at an annual rate of
interest equal to the then-current yield on actively traded U.S. Treasury bonds
with 10-year maturities, as published in the Federal Reserve Statistical Release
for the week prior to the date of such termination, between (i) the Basic Rent
and Additional Charges, computed on the basis of the then current annual rate of
Basic Rent and Additional Charges, which would have been payable from the date
of such demand to the date when this Lease would have expired, if it had not
been terminated, and (ii) the then fair rental value of the Leased Premises for
the same period. Upon exercise of this option by Landlord and payment of such
liquidated and agreed final damages, Tenant shall be released from all further
liability under this Lease with respect to the period after the date of such
demand. If, after the Event of Default giving rise to the termination of this
Lease, but before presentation of proof of such liquidated damages, the Leased
Premises, or any part thereof, shall be relet by Landlord for a term of one year
or more, the amount of rent reserved upon such reletting shall be deemed to be
the fair rental value for the part of the Leased Premises so relet during the
term of such reletting.
(e) Rights and Remedies Cumulative. The rights and remedies herein
conferred are cumulative and not exclusive of any other rights or remedies, and
shall be in addition to every other right, power
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and remedy that Landlord may have, whether specifically granted herein, or
presently or hereafter existing at law, in equity, or by statute.
17. Bankruptcy.
(a) Events of Bankruptcy. The following shall be Events of
Bankruptcy under this Lease: (i) Tenant's becoming insolvent, as that term is
defined in Title 11 of the United States Code (the "Bankruptcy Code"), or under
the insolvency laws of any state, district, commonwealth or territory of the
United States (the "Insolvency Laws"); (ii) the appointment of a receiver or
custodian for any or all of Tenant's property or assets, or the institution of a
foreclosure action upon any of Tenant's real or personal property; (iii) the
filing of a voluntary petition under the provisions of the Bankruptcy Code or
Insolvency Laws; (iv) the filing of an involuntary petition against Tenant as
the subject debtor under the Bankruptcy Code or Insolvency Laws, which either
(A) is not dismissed within sixty (60) days of filing, or (B) results in the
issuance of an order for relief against the debtor; or (iv) Tenant's making or
consenting to an assignment for the benefit of creditors or a common law
composition of creditors.
(b) Landlord's Rights Upon Event of Bankruptcy. Upon the occurrence
of an Event of Bankruptcy, Landlord shall have all rights and remedies
available to Landlord pursuant to Section 16; provided, however, that while a
case in which Tenant is the subject debtor under the Bankruptcy Code is pending,
Landlord shall not exercise its rights and remedies pursuant to Section 16 so
long as (1) the Bankruptcy Code prohibits the exercise of such rights and
remedies, and (2) Tenant or its Trustee in Bankruptcy (hereinafter referred to
as "Trustee") (i) cures all defaults under this Lease, (ii) compensates Landlord
for monetary damages incurred as a result of such defaults, (iii) provides
adequate assurance of future performance on the part of Tenant as debtor in
possession or on the part of the assignee tenant, and (iv) complies with all
other requirements of the Bankruptcy Code.
18. Either Party May Perform the Other's Obligations.
If Tenant shall fail to keep or perform any of its obligations as
provided in this Lease in respect to (a) maintenance of insurance, (b) repairs
and maintenance of the Leased Premises, (c) compliance with Legal Requirements,
or (d) the making of any other payment or performance of any other obligation,
then Landlord may (but shall not be obligated to do so) upon the continuance of
such failure on Tenant's part for 10 days after written notice to Tenant (or
after such additional period, if any, as Tenant may reasonably require to cure
such failure if of a nature which cannot be cured within said 10 day period), or
without notice in the case of an emergency, and without waiving or releasing
Tenant from any obligation, and as an additional but not exclusive remedy, make
any such payment or perform any such obligation and all sums so paid by Landlord
and all necessary incidental costs and expenses, including attorney's fees,
incurred by Landlord in making such payment or performing such obligation,
together with interest thereon from the date of payment at the Default Interest
Rate, shall be deemed additional rent and shall be paid to Landlord on demand,
or at Landlord's option may be added to any installment of Basic Rent thereafter
falling due, and if not so paid by Tenant, Landlord shall have the same rights
and remedies as in the case of a default by Tenant in the payment of Basic Rent.
If Landlord shall fail to keep or perform any of its obligations as provided in
this Lease in respect to (a) maintenance of insurance, (b) repairs and
maintenance of the Leased Premises, the Building or the common areas, or (c) the
making of any other payment or performance of any other obligation, then Tenant
may (but shall not be obligated to do so) upon the continuance of such failure
on Landlord's part for 10 days after written notice to Landlord (or after such
additional period, if any, as Landlord may reasonably require to cure such
failure if of a nature which cannot be cured within said 10 day period), or
without notice in the case of an emergency, and without waiving or releasing
Landlord from any obligation, and as an additional but not exclusive remedy,
make any such payment or perform any such obligation and all sums so paid by
Tenant and all necessary incidental costs and expenses, including attorney's
fees, incurred by Tenant in making such payment or performing such obligation,
together with interest thereon from the date of payment at the Default Interest
Rate, shall be paid by Landlord to Tenant on demand.
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19. Security Deposit.
(a) Use and Application. Tenant has deposited with Landlord the
Security Deposit, as security for the prompt, full and faithful performance by
Tenant of each and every provision of this Lease and of all obligations of
Tenant hereunder. Landlord has invested the Security Deposit, and shall keep
the same invested, in (i) prime commercial paper, banker's acceptances or
certificates of deposit in United States commercial banks (having net assets in
excess of $100,000,000), in each case having a maturity of not more than 30
days, or (ii) obligations of the United States Government having a maturity of
not more than 90 days, or (iii) one or more mutual funds which invest their
assets primarily in investment of the type described in clauses (i) and (ii), or
(iv) one or more interest-bearing accounts in financial institutions the
deposits in which are insured by an agency of the United States. If an Event of
Default occurs, Landlord may use, apply or retain the whole or any part of the
Security Deposit for the payment of (i) any Basic Rent or Additional Charges
which Tenant may not have paid or which may become due after the occurrence of
such Event of Default, (ii) any sum expended by Landlord on Tenant's behalf in
accordance with the provisions of this Lease, or (iii) any sum which Landlord
may expend or be required to expend by reason of Tenant's default, including
damages or deficiency in the reletting of the Leased Premises as provided in
Section 16. The use, application or retention of the Security Deposit, or any
portion thereof, by Landlord shall not prevent Landlord from exercising any
other right or remedy provided by this Lease or by law and shall not operate as
a limitation on any recovery to which Landlord may otherwise be entitled. If
any portion of the Security Deposit is used, applied or retained by Landlord for
the purpose set forth above, Tenant agrees, within 10 days after a written
demand therefor is made by Landlord, to deposit cash with the Landlord in an
amount sufficient to restore the Security Deposit to its original amount.
(b) Return of Security Deposit. Provided that Tenant is not then in
default, the Security Deposit, or any balance thereof, and all accrued interest
or gains thereon, shall be returned to Tenant within thirty (30) days after the
expiration of the Term. In the absence of evidence satisfactory to Landlord of
any permitted assignment of the right to receive the Security Deposit, or the
remaining balance thereof, Landlord may return the same to the original Tenant,
regardless of one or more assignments of Tenant's interest in this Lease or the
Security Deposit. In such event, upon the return of the Security Deposit (or
balance thereof) to the original Tenant, Landlord shall be completely relieved
of liability under this Section.
(c) Return of Accrued Interest on Security Deposit. Within thirty
(30) days after the execution of this Lease by both parties hereto, Landlord
will return all accrued interest on the Security Deposit to Tenant.
(d) Transfer of Security Deposit. In the event of a transfer of
Landlord's interest in the Leased Premises, Landlord shall have the right to
transfer the Security Deposit to the transferee thereof. In such event, upon
the delivery by Landlord to Tenant of such transferee's written acknowledgment
of its receipt of the Security Deposit, Landlord shall be deemed to have been
released by Tenant from all liability or obligation for the return of the
Security Deposit, and Tenant agrees to look solely to such transferee for the
return of the Security Deposit and the transferee shall be bound by all
provisions of this Lease relating to the return of the Security Deposit.
(e) Restrictions on Encumbering. The Security Deposit shall not be
mortgaged, assigned or encumbered in any manner whatsoever by Tenant without the
prior written consent of Landlord.
(f) Letter of Credit. At any time during the Term, Tenant shall have
the right to deliver to Landlord a letter of credit in the amount of the
Security Deposit, to be held by Landlord as security for the performance by
Tenant of all of the obligations to be performed by it under this Lease. In
such event, Landlord shall refund the cash Security Deposit and all accrued
interest thereon to Tenant within fifteen (15) days after receipt of such letter
of credit. The letter of credit (and each replacement or renewal thereof) shall
(i) be irrevocable, (ii) be issued by NationsBank, N.A. or another national bank
having an office in Washington, D.C. or Fairfax County, Virginia, which has net
assets of $50,000,000 or more, (iii) be for a term of not less than 12 months
after the date of issuance, and (iv) authorize Landlord to draw thereon by a
sight draft delivered to the issuing bank
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accompanied by an affidavit of a general partner, or executive officer, of
Landlord that an Event of Default has occurred and is continuing or that Tenant
has failed to deliver a replacement letter of credit within the time required by
this subsection. Tenant shall, on or before the 30th day before the expiration
date of the letter of credit then being held by Landlord under this subsection,
deliver to Landlord an extension or renewal of the letter of credit for a period
of not less than 12 months. Tenant shall extend or renew the letter of credit,
or any extension or renewal thereof, for successive periods of at least 12
months each throughout the Term. Upon the occurrence of an Event of Default or
the Tenant's failure to deliver a replacement letter of credit within the time
required by this subsection, Landlord shall be authorized to draw on the letter
of credit then being held by it. Landlord shall receive, hold and apply the
proceeds of the letter of credit in the same manner and on the same terms as the
Security Deposit. All references in this Lease to the "Security Deposit" shall
be deemed to include the proceeds of the letter of credit.
20. Subordination.
(a) Mortgages. This Lease and Tenant's interest hereunder shall have
priority over, and be senior to, the lien of any Mortgage made by Landlord after
the date of this Lease. However, if at any time or from time to time during the
Term, a Mortgagee or prospective Mortgagee requests that this Lease be subject
and subordinate to its Mortgage, this Lease and Tenant's interest hereunder
shall be subject and subordinate to the lien of such Mortgage and to all
renewals, modifications, replacements consolidations and extensions thereof and
to any and all advances made thereunder and the interest thereon. Tenant agrees
that, within 10 days after receipt of a written request therefor from Landlord,
it will, from time to time, execute and deliver any instrument or other document
required by any such Mortgagee to subordinate this Lease and its interest in
the Leased Premises to the lien of such Mortgage. If, at any time or from time
to time during the Term, a Mortgagee of a Mortgage made prior to the date of
this Lease shall request that this Lease have priority over the lien of such
Mortgage, and if Landlord consents thereto, this Lease shall have priority over
the lien of such Mortgage and all renewals, modifications, replacements,
consolidations and extensions thereof and all advances made thereunder and the
interest thereon, and Tenant shall, within 10 days after receipt of a written
request therefor from Landlord, execute, acknowledge and deliver any and all
documents and instruments confirming the priority of this Lease. In any event,
however, if this Lease shall have priority over the lien of a Mortgage, this
Lease shall not become subject or subordinate to the lien of any subordinate
Mortgage, and Tenant shall not execute any subordination documents or
instruments for any subordinate Mortgagee, without the written consent of the
prior Mortgagee.
(b) Ground Leases. This Lease and Tenant's interest hereunder shall
be subject and subordinate to each and every ground or underlying lease
hereafter made of the Building or the land on which it is constructed, or both,
and to all renewals, modifications, replacements and extensions thereof. Tenant
agrees that, within 10 days after receipt of written request therefor from
Landlord, it will, from time to time, execute, acknowledge and deliver any
instrument or other document required by any such lessor to subordinate this
Lease and its interest in the Leased Premises to such ground or underlying
lease.
(c) First Mortgagee's Right of Cure. If (i) the Building, or any
part thereof, or the land on which the Building is constructed, or the
Landlord's leasehold estate in the Building, is at any time subject to a first
Mortgage, and (ii) this Lease, or the Basic Rent and Additional Charges payable
under this Lease, is assigned to the first Mortgagee, and (iii) the Tenant is
given written notice of such assignment, including the name and address of the
assignee, then, in that event, Tenant shall not terminate this Lease or make any
abatement in the Basic Rent payable hereunder for any default on the part of the
Landlord without first giving written notice, in the manner provided elsewhere
in this Lease for the giving of notices, to such first Mortgagee, specifying the
default in reasonable detail, and affording such first Mortgagee a reasonable
opportunity to make performance, at its election, for and on behalf of the
Landlord.
(d) Non-Disturbance Agreement. Notwithstanding the provisions of
subsections (a) and (b), neither this Lease nor any right, title or interest of
Tenant in the Leased Premises shall be subordinate to the lien of any ground or
underlying lease
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or any Mortgage made or placed after the date of this Lease, and Tenant shall
not be required to subordinate this Lease or Tenant's interest in the Leased
Premises to any such ground or underlying lease or any such Mortgage, unless
such lease or Mortgage contains an express provision (or the lessor or the
Mortgagee or other party secured by the Mortgage agrees in writing) to the
effect that so long as this Lease has not been terminated by reason of the
occurrence of an Event of Default, the lessor or the Mortgagee (or other party
secured by the Mortgage) will be bound by all of the terms and provisions of
this Lease (except as otherwise set forth in such agreement), a default by the
Landlord under such lease or by the mortgagor under such Mortgage shall not have
any effect upon Tenant's right to occupy the Leased Premises in accordance with
all of the terms and conditions of this Lease, and the term, estate and options
of Tenant under this Lease shall not be terminated or otherwise affected by a
termination of such ground or underlying lease or a foreclosure and sale or
other action instituted under or in connection with such Mortgage.
Contemporaneously with the execution of this Lease, Landlord shall deliver to
Tenant a non-disturbance agreement, in form reasonably satisfactory to Tenant,
from the Mortgagee under any existing Mortgage, to the effect that so long as
this Lease has not been terminated by reason of the occurrence of an Event of
Default, the Mortgagee (or other party secured by the Mortgage) will be bound by
all of the terms and provisions of this Lease, a default by the mortgagor under
such Mortgage shall not have any effect upon Tenant's right to occupy the Leased
Premises in accordance with all of the terms and conditions of this Lease, and
the term, estate and options of Tenant under this Lease shall not be terminated
or otherwise affected by a foreclosure and sale or other action instituted under
or in connection with such Mortgage. Contemporaneously with the execution of
this Agreement, Landlord shall deliver to Tenant a non-disturbance agreement, in
form reasonably satisfactory to Tenant, from the lessor under the Ground Lease,
to the effect that so long as this Lease has not been terminated by reason of
the occurrence of an Event of Default, the lessor will be bound by all of the
terms and provisions of this Lease, a default by the Landlord under such Ground
Lease shall not have any effect upon Tenant's right to occupy the Leased
Premises in accordance with all of the terms and conditions of this Lease, and
the term, estate and options of Tenant under this Lease shall not be terminated
or otherwise affected by a termination of such Ground Lease.
21. Attornment.
In the event of (a) a transfer of Landlord's interest in the Leased
Premises, (b) the termination of any ground or underlying lease of the Building
or the land on which it is constructed, or both, or (c) the purchase of the
Building or Landlord's interest therein in a foreclosure sale or by deed in lieu
of foreclosure under any Mortgage or pursuant to a power of sale contained in
any Mortgage, then in any of such events Tenant shall, at Landlord's request,
attorn to and recognize the transferee or purchaser of Landlord's interest or
the lessor under the terminated ground or underlying lease, as the case may be,
as Landlord under this Lease for the balance then remaining of the Term, and
thereafter this Lease shall continue as a direct lease between such person, as
"Landlord," and Tenant, as "Tenant," except that such lessor, transferee or
purchaser shall not be liable for any act or omission of Landlord prior to such
lease termination or prior to such person's succession to title, nor be subject
to any offset, defense or counterclaim accruing prior to such lease termination
or prior to such person's succession to title, nor be bound by any payment of
Basic Rent or Additional Charges prior to such lease termination or prior to
such person's succession to title for more than one month in advance. Tenant
shall, upon request by Landlord or the transferee or purchaser of Landlord's
interest or the lessor under the terminated ground or underlying lease, as the
case may be, execute and deliver an instrument or instruments confirming the
foregoing provisions of this Section. Tenant hereby waives the provisions of
any present or future law or regulation which gives or purports to give Tenant
any right to terminate or otherwise adversely affect this Lease, or the
obligations of Tenant hereunder, upon or as a result of the termination of any
such ground or underlying lease or the completion of any such foreclosure and
sale.
22. Quiet Enjoyment.
Landlord covenants that Tenant, upon paying the Basic Rent and the
Additional Charges provided for in this Lease, and upon performing and observing
all of the terms, covenants, conditions and provisions of this Lease on Tenant's
part to be kept, observed and performed, shall quietly hold, occupy and enjoy
the Leased Premises during the Term without hindrance, ejection or molestation
by Landlord or any party lawfully claiming through or under Landlord.
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23. Landlord's Right of Access to Leased Premises.
(a) Right of Entry. Landlord and its agents shall have the following
rights in and about the Leased Premises: (i) to enter the Leased Premises at all
reasonable times to examine the Leased Premises or for any of the purposes set
forth in this Section or for the purpose of performing any obligation of
Landlord under this Lease or exercising any right or remedy reserved to Landlord
in this Lease, and if Tenant, its officers, partners, agents or employees shall
not be personally present or shall not open and permit an entry into the Leased
Premises at any time when such entry shall be necessary or permissible, to use a
master key or forcibly to enter the Leased Premises; (ii) to erect, install, use
and maintain pipes, ducts and conduits in and through the Leased Premises which,
when completed, will not substantially interfere with the use or appearance or
materially reduce the space afforded to Tenant in the Leased Premises; (iii) to
exhibit the Leased Premises to others at reasonable times and for reasonable
purposes; (iv) to make such repairs, alterations or improvements, or to perform
maintenance of all heating, air-conditioning, elevator, plumbing, electrical and
other mechanical facilities installed by Landlord, as may be required from time
to time by this Lease to be made or performed by Landlord; (v) to take all
materials into and upon the Leased Premises that may be required in connection
with any such repairs, alterations, improvements or maintenance; and (vi) to
alter, renovate and decorate the Leased Premises at any time during the Term if
Tenant shall have removed all or substantially all of Tenant's property from the
Leased Premises. Landlord agrees to give prior notice before it exercises its
rights under this subsection, except that Landlord may enter the Leased Premises
without notice in the case of an emergency. In making such an entry, Landlord
agrees to use reasonable efforts to avoid interfering with the regular and usual
conduct of the Tenant's business. Notwithstanding anything to the contrary
herein, Landlord may obtain access to the double-secured areas of the Leased
Premises only with the permission and assistance of Tenant's Director of
Facilities, except in the event of an emergency posing a threat of immediate
injury to persons or property.
(b) Rights in Adjacent Areas. Except as otherwise provided in
Section 10, all parts (except surfaces facing the interior of the Leased
Premises) of all walls, windows and doors bounding the Leased Premises
(including exterior Building walls, corridor walls, doors and entrances), all
balconies, terraces and roofs adjacent to the Leased Premises, all space in or
adjacent to the Leased Premises used for shafts, stacks, stairways, chutes,
pipes, conduits, ducts, fan rooms, heating, air-conditioning, plumbing,
electrical and other mechanical facilities installed by Landlord, service
closets and other Building facilities, and the use thereof, as well as access
thereto through the Leased Premises for the purposes of operation, maintenance,
alteration and repair, are hereby reserved to Landlord. Nothing contained in
this Section shall impose any obligation upon Landlord with respect to the
operation, maintenance, alteration or repair of the Leased Premises or the
Building.
(c) Effect of Landlord's Entry. The exercise by Landlord or its
agents of any right reserved to Landlord in this Section shall not constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of rent, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Landlord, or its agents, or upon
any lessor under any ground or underlying lease, by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business, or
otherwise. Landlord agrees to exercise its rights under this Section in a
manner designed to minimize interference with Tenant's normal business
operations, without any obligation, however, to employ labor at overtime or
other premium pay rates.
24. Limitation on Landlord's Liability.
(a) Accidents, etc. Except for damages resulting from the willful or
negligent act or omission of Landlord, its agents, employees or contractors,
Landlord shall not be liable to Tenant, its employees, agents, business
invitees, licensees, customers, guests or trespassers, for any damage or loss to
the property of Tenant or others located on the Leased Premises, or in the
Building or the land on which it is built, or for any accident or injury to
Persons in the Leased Premises or the Building, resulting from the necessity of
repairing any portion of the Building; the use or operation (by Tenant or any
other Person or Persons whatsoever) of any elevators, or heating, cooling,
electrical or plumbing equipment or apparatus; the termination of this Lease by
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reason of the destruction of the Building or the Leased Premises; any fire,
robbery, theft, and/or any other casualty; any leaking in any part or portion of
the Leased Premises or the Building; any water, wind, rain, or snow that may
leak into, or flow from, any part of the Leased Premises or the Building; any
acts or omissions of any occupant of any space adjacent to or adjoining all or
any part of the Leased Premises; any water, gas, steam, fire, explosion,
electricity or falling plaster; the bursting, stoppage or leakage of any pipes,
sewer pipes, drains, conduits, appliances or plumbing works; or any other cause
whatsoever.
(b) Unavoidable Delays. Neither Landlord nor Tenant shall be required
to perform any of its obligations under any provision of this Lease, or be
liable for loss or damage for failure to do so, nor shall the other party be
released from any of its obligations under this Lease because of such party's
failure to perform, where such failure arises from or through Unavoidable Delays
or Legal Requirements. If Landlord or Tenant is so delayed or prevented from
performing any of its obligations during the Term, the period of such delay or
such prevention shall be deemed added to the time herein provided for the
performance of any such obligation. Lack of funds shall not be deemed an
Unavoidable Delay for purposes of this Section 24(b), and nothing in this
Section 24(b) shall excuse Tenant's failure to promptly pay any Basic Rent or
Additional Charges due under this Lease, or Landlord's or Tenant's failure to
maintain policies or deliver certificates of insurance required hereunder.
(c) Building Services. If Landlord shall fail to supply, or be
delayed in applying, any service expressly or impliedly to be supplied under
this Lease, or shall be unable to make, or be delayed in making, any repairs,
alterations, additions, improvements or decorations, or shall be unable to
supply, or be delayed in supplying, any equipment or fixtures, and if such
failure, delay or inability shall result from Unavoidable Delays, such failure,
delay or inability shall not constitute an actual or constructive eviction, in
whole or in part, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Landlord or its agents by reason of
inconvenience to Tenant, or injury to, or interruption of, Tenant's business, or
otherwise, or entitle Tenant to any abatement or diminution of rent except as
provided in Section 3(i).
(d) Liability Limited to Landlord's Estate. Notwithstanding any
provision to the contrary, Tenant shall look solely to the estate and property
of Landlord in and to the Building (or the proceeds received by Landlord on a
sale of such estate and property but not the proceeds of any financing or
refinancing thereof) in the event of any claim against Landlord arising out of
or in connection with this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Leased Premises, and Tenant agrees that the liability of
Landlord arising out of or in connection with this Lease, the relationship of
Landlord and Tenant or Tenant's use of the Leased Premises, shall be limited to
such estate and property of Landlord (or sale, insurance or condemnation
proceeds in connection therewith). No other properties or assets of Landlord
shall be subject to levy, execution or other enforcement procedures for the
satisfaction of any judgment (or other judicial process) or for the satisfaction
of any other remedy of Tenant arising out of or in connection with this Lease,
the relationship of Landlord and Tenant or Tenant's use of the Leased Premises,
and if Tenant shall acquire a lien on or interest in any other properties or
assets by judgment or otherwise, Tenant shall promptly release such lien on or
interest in such other properties and assets by executing, acknowledging and
delivering to Landlord an instrument to that effect prepared by Landlord's
attorneys.
25. Estoppel Certificates.
Tenant and Landlord each agrees, from time to time, within 15 days
after written request therefor by the other party, to execute, acknowledge and
deliver to the other party a statement in writing certifying to the other party,
any Mortgagee, assignee of a Mortgagee, or any purchaser, of the Building or the
land on which it is constructed, or both, or any other Person designated by the
other party, as of the date of such statement, (i) that Tenant is in possession
of the Leased Premises; (ii) that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that this Lease is in full force
and effect as modified and setting forth such modifications); (iii) whether or
not there are then existing any set-offs or defenses known to such party against
the enforcement of any right or remedy of the other party, or any duty or
obligation of such party, hereunder (and, if so, specifying the same in detail);
(iv) the dates, if any, to which any Basic Rent or Additional Charges have been
paid in advance; (v) that such party has no knowledge of any uncured defaults on
the part of the other party under this Lease (or, if such party has knowledge of
any such uncured defaults, specifying the same in detail); (vi) that such
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party has no knowledge of any event having occurred that authorizes the
termination of this Lease by such party (or, if such party has such knowledge,
specifying the same in detail); (vii) the amount of any Security Deposit held by
Landlord; and (viii) any additional facts reasonably requested by any such
Mortgagee, assignee of a Mortgagee, purchaser or other Person.
26. Surrender of Leased Premises.
(a) Possession. Tenant shall, on or before the last day of the Term,
except as otherwise expressly provided elsewhere in this Lease, remove all of
its property and peaceably and quietly leave, surrender and yield up to the
Landlord the Leased Premises, free of subtenancies, broom clean and in good
order and condition except for reasonable wear and tear, damage by fire or other
casualty, or conditions requiring repair by Landlord hereunder at Landlord's
expense.
(b) Inspection of Leased Premises. At the time Tenant surrenders the
Leased Premises at the end of the Term, or within twenty (20) days thereafter,
Landlord and Tenant, or their respective agents, shall inspect the Leased
Premises and shall prepare and sign an inspection form to describe the condition
of the Leased Premises at the time of surrender.
(c) Survival. The provisions of this Section shall survive any
expiration or termination of this Lease.
27. Holding Over.
If Tenant shall hold over possession of the Leased Premises after the
end of the Term, Tenant shall be deemed to be occupying the Leased Premises as a
Tenant from month to month, at one hundred fifty percent (150%) of the Basic
Rent, adjusted to a monthly basis, and subject to all the other conditions,
provisions and obligations of this Lease insofar as the same are applicable, or
as the same shall be adjusted, to a month-to-month tenancy.
28. Mediation.
In any case in which it is provided by the terms of this Lease that
any matter shall be determined by mediation, then such mediation shall be in
accordance with the Commercial Mediation Rules then in effect of the American
Arbitration Association ("AAA"). The mediation proceeding shall be conducted in
Washington, D.C., by one mediator selected by the AAA. The cost of the
mediation, including filing fees with the AAA and the cost of the mediator,
shall be borne equally by the parties. In the mediation sessions, the parties
shall endeavor in good faith to resolve the claim or controversy at issue. Any
party or the mediator shall have the right to terminate the mediation at any
time after the first mediation session. Neither party may make any disclosure
of the existence or results of the mediation without the prior written consent
of the other party. The mediator may not make any disclosure of the existence
or results of the mediation without the prior written consent of both parties.
No discussions in the mediation shall be admissible in any litigation between
the parties, and the mediator shall not be subject to subpoena to testify to any
communication between the mediator and either party. If the parties are unable
to settle the matter by mediation, then either party may submit such matter to
litigation.
29. Parking.
Throughout the Term, Tenant shall be entitled to the use of 334
parking spaces in the structured parking facility for the Office Park (the
"Parking Spaces"), without additional charge therefor. The Parking Spaces shall
be available to Tenant and/or its employees on an unreserved basis, in common
with the other tenants of the Office Park. If at any time Tenant leases any
additional space in the Building, Tenant shall be entitled, without charge, to
the use of one additional parking space in such parking facility for each 297
square feet of net rentable area of such space.
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30. Renewal of Term.
Provided that this Lease shall be in full force and effect and that
Tenant shall not then be in default, Tenant shall have the right, at Tenant's
sole option, to extend the Lease for one (1) consecutive additional period of
five (5) years (such additional period being hereinafter referred to as the
"Renewal Period", if exercised, and included in the definition of the Term).
Such option to extend shall be exercised by Tenant giving written notice of the
exercise to Landlord at least twenty-four (24) months prior to the expiration of
the Initial Term of this Lease. The Renewal Period shall be for the same Basic
Rent payable during the last Lease Year of the Initial Term, escalated at the
commencement of the Renewal Period and at the commencement of each Lease Year
thereafter by the Inflation Adjustment, and upon the same terms, covenants and
conditions set forth in this Lease with respect to the Initial Term, and
Tenant's obligations to pay Operating Expense Increases pursuant to Section 3(b)
shall continue without interruption during the Renewal Period. In the event
Tenant defaults beyond any applicable cure period under this Lease after
providing notice of exercise of its renewal option but prior to the expiration
of the Initial Term, such exercise shall, at Landlord's option exercised by
written notice to Tenant, be void ab initio.
31. Shuttle Service.
Landlord shall provide for Tenant' s employees, other tenants of the
Building and other adjacent buildings owned by Landlord or its affiliates, and
the employees of such other tenants a private shuttle bus service between the
Building and the Vienna Metro Station. Subject to Unavoidable Delays, the
shuttle bus service shall be provided throughout the Term and continuously
during the hours between 7:00 a.m. and 8:00 p.m. on Business Days. Landlord
shall use shuttle buses which have reasonably adequate seating capacity taking
into account average passenger usage from time to time. Landlord shall provide
private shuttle bus service for Tenant's employees at times in addition to those
specified in this Section, at Tenant's expense, as mutually agreed upon by
Landlord and Tenant. Landlord shall charge Tenant for after-hours service at an
hourly rate from time to time established by Landlord, in its sole discretion,
but in no event will the rate per hour charged to Tenant be more than an amount
per hour which represents Landlord's reasonable estimate of its actual cost of
providing such after-hours service, including labor, cost of fuel, and wear and
tear on equipment, plus an allowance of 10% thereof to cover general overhead.
In the event the same after-hours service is also requested by other tenants of
the Building (or any other building owned by Landlord or its affiliates) in
addition to Tenant, the charge therefor to each tenant requesting such after-
hours service shall be a pro-rated amount based upon the net rentable area of
the leased premises of all tenants requesting such after-hours service. Payment
for such charges shall be due and payable to Landlord within 15 days after
Tenant's receipt of an invoice therefor. Any dispute between Landlord and
Tenant with respect to the adequacy of Landlord's shuttle bus service shall be
submitted to mediation pursuant to Section 28.
32. Leasing Commission.
Landlord and Tenant each represent and warrant to the other that
neither of them has employed any broker, other than The Carey Winston Company,
in carrying on the negotiations relative to this Lease. Tenant shall pay any
commission due The Carey Winston Company in connection with this Lease.
Landlord and Tenant shall each indemnify and hold harmless the other from and
against any claim or claims for brokerage or other commission arising from or
out of any breach of the foregoing representation and warranty.
33. General Provisions.
(a) Binding Effect. The covenants, conditions, agreements, terms and
provisions herein contained shall be binding upon, and shall inure to the
benefit of, the parties hereto and, subject to the provisions of Section 15,
each of their respective personal representatives, successors and assigns.
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(b) Governing Law. It is the intention of the parties hereto that
this Lease (and the terms and provisions hereof) shall be construed and enforced
in accordance with the laws of the State of Virginia.
(c) Waivers. No failure by Landlord to insist upon the strict
performance of any term, covenant, agreement, provision, condition or limitation
of this Lease or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance by the Landlord of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any such breach or
of any such term, covenant, agreement, provision, condition or limitation. No
term, covenant, agreement, provision, condition or limitation of this Lease to
be kept, observed or performed by Landlord or by Tenant, and no breach thereof,
shall be waived, altered or modified except by a written instrument executed by
Landlord or by Tenant, as the case may be. No waiver of any breach shall affect
or alter this Lease, but each and every term, covenant, agreement, provision,
condition and limitation of this Lease shall continue in full force and effect
with respect to any other then existing or subsequent breach thereof.
(d) Notices. No notice, request, consent, approval, waiver or other
communication which may be or is required or permitted to be given under this
Lease shall be effective unless the same is in writing and is delivered in
person or sent by registered or certified mail, return receipt requested, first-
class postage prepaid, (1) if to Landlord, at Landlord's Notice Address, or (2)
if to Tenant, at Tenant's Notice Address, or at any other address that may be
given by one party to the other by notice pursuant to this subsection. Such
notices, if sent by registered or certified mail, shall be deemed to have been
given at the time of mailing.
(e) Entire Agreement. It is understood and agreed by and between the
parties hereto that this Lease contains the final and entire agreement between
said parties, and that they shall not be bound by any terms, statements,
conditions or representations, oral or written, express or implied, not herein
contained. It is understood and agreed, however, that the terms hereof shall be
modified, if so required, for the purpose of complying with or fulfilling the
requirements of any Mortgagee secured by a first Mortgage that may now be or
hereafter become a lien on the Building, provided, however, that such
modification shall not be in substantial derogation or diminution of any of the
rights of the parties hereunder, nor increase any of the obligation or
liabilities of the parties hereunder.
(f) Jury Trial. Landlord and Tenant each hereby waives all right to
trial by jury in any claim, action, proceeding or counterclaim by either
Landlord or Tenant against the other on any matters arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant and/or
Tenant's use or occupancy of the Leased Premises.
(g) Venue. Tenant hereby waives any objection to the venue of any
action filed by Landlord against Tenant in any state or federal court in the
jurisdiction in which the Building is located, and Tenant further waives any
right, claim or power, under the doctrine of forum non conveniens or otherwise,
to transfer any such action filed by Landlord to any other court.
(h) Corporate Authority. Concurrently with the signing of this Lease,
Tenant shall furnish to Landlord certified copies of the resolutions of its
Board of Directors (or of the executive committee of its Board of Directors)
authorizing Tenant to enter into this Lease; and Tenant shall also furnish to
Landlord evidence (reasonably satisfactory to Landlord and its counsel) that
Tenant is a duly organized corporation in good standing under the laws of the
jurisdiction of its incorporation, is qualified to do business in good standing
in the State of Virginia, has the power and authority to enter into this Lease,
and that all corporate action requisite to authorize Tenant to enter into this
Lease has been duly taken.
(i) Time of the Essence. Time is of the essence in the performance
of Landlord's and Tenant's obligations under this Lease.
(j) Gender. Wherever appropriate herein, the singular includes the
plural and the plural includes the singular.
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(k) Invalidity. If any provision of this Lease shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not be affected thereby.
(1) Captions. The captions in this Lease are for convenience only and
shall not affect the interpretation of the provisions hereof.
(m) No Partnership. This Lease is not intended to create a
partnership or joint venture between Landlord and Tenant in the conduct of their
respective businesses.
(n) Counterparts. This Lease has been executed in several
counterparts, but all counterparts shall constitute one and the same instrument.
(o) Deed of Lease. To the extent required under applicable law to
make this Lease legally effective, this Lease shall constitute a deed of lease.
34. Termination of Prior Lease.
This Lease entirely supersedes the Lease Agreement dated April 27,
1988, as amended by the First Amendment, the Second Amendment and the Third
Amendment, and the Lease Agreement dated April 27, 1988, as amended, is hereby
terminated.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
signed by their duly authorized partners or officers as of the day and year
first above written.
Landlord
HMCE ASSOCIATES LIMITED
PARTNERSHIP, R.L.L.P.
By /s/ David W. Evans
----------------------------
Tenant
ICF KAISER HUNTERS BRANCH LEASING,
INC.
By /s/ Timothy P. O'Commor
----------------------------
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Exhibit 10(i)
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT is made and entered into this 3rd day of
November, 1997, by and among (i) HMCE ASSOCIATES LIMITED PARTNERSHIP, R.L.L.P.
("HMCE"), a Virginia limited liability limited partnership, (ii) HB LIMITED
PARTNERSHIP, R.L.L.P. ("HB"), a Virginia limited liability limited partnership,
and (iii) IFA NUTLEY PARTNERS, LLC, a Delaware limited liability company
("IFA").
RECITALS
A. HMCE owns a leasehold estate in certain land in Fairfax County,
Virginia, and the building, improvements, fixtures and equipment thereon, which
has a street address of 9300 Lee Highway, Fairfax, Virginia.
B. HB owns a leasehold estate in certain land in Fairfax County,
Virginia, and the building, improvements, fixtures and equipment thereon, which
has a street address of 9302 Lee Highway, Vienna, Virginia.
C. HMCE, HB and IFA have agreed to form a limited liability company under
the laws of the State of Delaware, to be known as Hunters Branch Partners,
L.L.C. ("Hunters Branch LLC"), for the purpose of acquiring, owning and
operating the leasehold estates, buildings, improvements, fixtures and equipment
referred to in Recitals A and B.
D. HMCE and HB have agreed to transfer and convey to Hunters Branch LLC
the leasehold estates, buildings, improvements, fixtures, equipment and certain
other tangible and intangible assets and properties owned by each of them and
used by them in connection with the management, operation, maintenance and
repair of the buildings and improvements.
E. IFA has agreed to make certain capital contributions to Hunters Branch
LLC.
F. ICF Kaiser International, Inc. ("ICF Kaiser"), which is presently a
tenant in the buildings owned by HMCE and HB, has agreed to cancel and terminate
its existing leases, to cause one of its subsidiaries to enter into new leases
with Hunters Branch L.L.C. and to guaranty those new leases.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
Definitions
Section 1.1 General Interpretive Principles. For purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, (i) the terms defined in this Section have the meanings
assigned to them in this Section and include the plural as well as the singular,
and the use of any gender herein shall be deemed to include the other genders;
(ii) accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles; (iii)
references herein to "Articles," "Sections," "subsections," "paragraphs" and
other subdivisions without reference to a document are to designated Articles,
Sections, subsections, paragraphs and other subdivisions of this Agreement; (iv)
a reference to a subsection without further reference to a Section is a
reference to such subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to paragraphs and other
subdivisions; (v) a reference to an Exhibit or a Schedule without a further
reference to the document to which the Exhibit or Schedule is attached is a
reference to an Exhibit or Schedule to this Agreement; (vi) the words "herein,"
"hereof," "hereunder" and other words of similar import refer to this Agreement
as a whole and not to any particular provision; and (vii) the word "including"
means "including, but not limited to."
Section 1.2 Defined Terms. For all purposes of this Agreement, the
following terms shall have the respective meanings set forth below:
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"9300 Building" shall mean the building, fixtures and other
improvements located on the 9300 Land.
"9300 Ground Lease" shall mean the Ground Lease dated May 29,
1986, between Ground Lessor, as Landlord, and HMCE, as tenant, as recorded in
Deed Book 6398, at page 127, among the Land Records of Fairfax County, Virginia,
as amended by a First Amendment to Ground Lease dated August 18, 1987, recorded
in Deed Book 6847, at page 660, among said Land Records, a Second Amendment to
Ground Lease dated September 22, 1987, recorded in Deed Book 6859, at page 278,
among said Land Records, and a Third Amendment to Ground Lease dated June 23,
1988, recorded in Deed Book 7186, at page 1643, among said Land Records.
"9300 Land" shall mean the parcel of land, containing 6.97700
acres, more or less, described in Exhibit A-1.
"9300 ICF Space Lease" shall mean the Lease Agreement, dated
January 30, 1987, between HMCE, as landlord, and ICF Kaiser, as tenant, as
amended, pursuant to which ICF Kaiser leases all of the 9300 Building.
"9300 New ICF Space Lease" shall mean the Lease Agreement, dated
as of the Closing Date, substantially in the form attached as Exhibit H,
pursuant to which ICF Leasing will lease all of the 9300 Building.
"9300 Leasehold Estate" shall mean the leasehold estate in the
9300 Land and the 9300 Building created by the 9300 Ground Lease.
"9302 Building" shall mean the building, fixtures and other
improvements located on the 9302 Land.
"9302 Ground Lease" shall mean the Ground Lease dated November 3,
1987, between Ground Lessor, as Landlord, and HMCE, as tenant, as recorded in
Deed Book 6909, at page 793, among the Land Records of Fairfax County, Virginia,
as amended by a First Amendment to Ground Lease dated June 23, 1988, recorded in
Deed Book 7186, at page 1665, among said Land Records, and as assigned by HMCE
to HB pursuant to an Assignment and Assumption of Ground Lease dated April 1,
1990, recorded in Deed Book 7589, at page 682, among said Land Records.
"9302 Land" shall mean the parcel of land, containing 6.92704
acres, more or less, described in Exhibit A-2.
"9302 ICF Space Lease" shall mean the Lease Agreement, dated
April 27, 1988, between HMCE, as landlord, and American Capital and Research
Corporation, as tenant, as amended, pursuant to which ICF Kaiser leases a
portion of the 9302 Building.
"9302 New ICF Space Lease" shall mean the Lease Agreement, dated
as of the Closing Date, substantially in the form attached as Exhibit I,
pursuant to which ICF Leasing will lease a portion of the 9302 Building.
"9302 Leasehold Estate" shall mean the leasehold estate in the
9302 Land and the 9302 Building created by the 9302 Ground Lease.
"Additional Rent" shall mean all reimbursements of Operating
Expenses, administrative charges, reimbursements of Real Estate Taxes,
retroactive rent escalations, insurance cost reimbursements, and all other
amounts and charges payable by Tenants to HMCE and HB, as landlords, under their
Space Leases (other than Minimum Rent), but shall not include Security Deposits.
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"Agreement" shall mean this Agreement in its present form or as
it may be amended, modified or supplemented from time to time.
"Bill of Sale" shall mean a bill of sale substantially in the
form attached as Exhibit E.
"Buildings" shall mean the 9300 Building and the 9302 Building.
"Business Days" shall mean any day of the week other than
Saturday, Sunday or a day on which banking institutions in either New York, New
York, or Washington, D.C., are obligated or authorized by law to close.
"Certificate of Formation" shall mean the Certificate of
Formation of Hunters Branch LLC substantially in the form attached as Exhibit B.
"Closing" shall have the meaning set forth in Section 9.1.
"Closing Date" shall mean the date on which the closing of the
Nomura Loan is consummated.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Contracts" shall mean all written contracts and agreements
entered into by HMCE, HB or their management agent providing for the management,
operation, supply, maintenance, repair, advertising or promotion of the Real
Property, including service agreements, maintenance contracts, cleaning
contracts, employment contracts, contracts for the purchase or delivery of
labor, services, materials or supplies and equipment rental agreements or leases
of tangible personal property, but excluding insurance policies and any
currently existing property or asset management agreement(s).
"Delinquent Rent" shall mean Rent which is due and payable by a
Space Tenant on or before the Proration Date but has not been paid by the
Proration Date.
"Effective Date" shall mean the date of this Agreement.
"Existing TIAA Mortgage Loans" shall mean the loans made by TIAA
to HMCE and HB which are secured by Mortgages on the Leasehold Estates and the
Land and which will have an unpaid principal balance, as of the Effective Date,
of $32,648,358.28 (in the case of the loan for the 9300 Building) and
$30,376,731.58 (in the case of the loan for the 9302 Building).
"General Assignment" shall mean an Assignment of Licenses,
General Intangibles and Warranties substantially in the form attached as Exhibit
G.
"Governmental Authorities" shall mean any board, bureau,
commission, department or body of any municipal, county, state or federal
governmental unit, or any subdivision thereof, having or acquiring jurisdiction
over the Real Property or the management, operation, use or improvement thereof.
"Ground Leases" shall mean the 9300 Ground Lease and the 9302
Ground Lease.
"Ground Lessor" shall mean First Union Bank of Virginia, N.A.,
successor by merger to First American Bank of Virginia, as Trustee for J.
Willard Marriott, Jr., Richard E. Marriott and Snell Construction Corporation
under that certain trust agreement dated December 31, 1979.
"Ground Lease Assignment" shall mean an Assignment and Assumption
of Ground Leases substantially in the form attached as Exhibit D.
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"Ground Lease Rent" shall mean the rent payable to the Ground
Lessor under the Ground Leases.
"ICF Leasing" shall mean ICF Kaiser Hunters Branch Leasing, Inc.,
a Delaware corporation.
"ICF Kaiser Lease Guaranty" shall mean a Guaranty of Lease in the
form attached to the 9300 New ICF Space Lease and the 9302 New ICF Space Lease.
"LLC Agreement shall mean the Limited Liability Company Agreement
substantially in the form attached as Exhibit C.
"Land" shall mean the 9300 Land and the 9302 Land.
"Leasehold Estates" shall mean the 9300 Leasehold Estate and the
9302 Leasehold Estate.
"Licenses" shall mean all licenses, authorizations, approvals and
permits issued by Governmental Authorities relating to HMCE's and HB's (and not
any Space Tenant's) use, operation, ownership or maintenance of the Real
Property.
"Membership Interest" shall mean an interest as a Member in
Hunters Branch LLC.
"Minimum Rent" shall mean all base rent, minimum rent or basic
rent (including cost-of-living adjustments) payable in fixed installments and
fixed amounts for stated periods by Space Tenants under their Space Leases.
"Mortgage" shall mean a mortgage, deed of trust or other type of
security instrument of the type commonly given to secure loans or advances on,
or the unpaid purchase price of, real property in the jurisdiction in which such
real property is located.
"Nomura" shall mean Nomura Asset Capital Corporation.
"Nomura Commitment" is that certain commitment letter from Nomura
dated September 29, 1997 pursuant to which Nomura has agreed to make the Nomura
Loan.
"Nomura Loan" shall mean that certain loan to be made by Nomura
in the approximate amount of $58,000,000.00, secured by Mortgages on the Real
Property and the Leasehold Estates, pursuant to the Nomura Commitment.
"Operating Expenses" shall mean all costs, expenses, charges and
fees incurred by HMCE, HB or Hunters Branch LLC, as the case may be, relating to
the management, operation, maintenance and repair of the Real Property,
including Ground Lease Rent, electricity, gas, water and sewer charges,
telephone and other public utilities, common area maintenance charges, insurance
premiums, vault charges, personal property taxes, excise taxes on Rent, business
occupational taxes, periodic charges payable under Contracts, periodic fees
payable under transferable Licenses for the operation (as opposed to the
construction) of the Real Property which are assigned to Hunters Branch LLC,
salaries, wages, vacation and sick pay, pension, welfare and other fringe
benefits, employee-related taxes and other labor costs, but not including any
costs, expenses, charges or fees which are the direct responsibility of a Space
Tenant or any costs, expenses, charges or fees that are subject to cost-of-
living adjustments under a GSA Lease.
"Option Agreement" shall mean the Option Agreement between
Hunters Branch LLC, Ground Lessor and IFA substantially in the form attached as
Exhibit J.
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"Permitted Exceptions" shall mean (i) the lien of current Real
Estate Taxes not yet due and payable, (ii) the Space Leases and any additions,
renewals and replacements thereof, (iii) the state of facts which would be
disclosed by an accurate survey of the Real Property, and (iv) the additional
exceptions approved by Nomura.
"Person" shall mean an individual, estate, trust, partnership,
corporation, Governmental Authority or other legal entity.
"Personal Property" shall mean all furniture, furnishings,
fixtures, equipment, maintenance vehicles, tools and other tangible personal
property of every kind and description owned by HMCE and HB on, attached to or
used or useful in connection with the management, operation, maintenance and
repair of the Buildings, including HMCE's inventory of spare and replacement
parts and its inventory of consumable supplies.
"Property" shall mean that property being contributed by HMCE
pursuant to Section 2.3 of this Agreement.
"Proration Date" shall mean the Closing Date.
"Real Estate Taxes" shall mean all taxes, assessments, vault
rentals, and other charges, if any, general, special or otherwise, including all
assessments for schools, public betterments and general or local improvements,
levied or assessed upon or with respect to the ownership of and/or all other
taxable interests in the Real Property imposed by any public or quasi-public
authority having jurisdiction.
"Real Property" shall mean the Land and the Buildings.
"Reimbursable Expenses" shall mean all or a portion of the
Operating Expenses under Space Leases that are not Real Estate Taxes, which are
taken into account under a Space Tenant's Space Lease in determining the amount
of Additional Rent payable by the Tenant.
"Rent" shall mean, collectively, Minimum Rent and Additional
Rent.
"Security Deposits" shall mean all security deposits, access card
or key deposits, cleaning fees and other deposits (including any interest
accrued thereon in accordance with the terms of the Space Leases) relating to
space within the Buildings paid by Space Tenants to HMCE, HB or their managing
agent.
"Space Lease and Contract Assignment" shall mean an Assignment
and Assumption of Certain Leases, Tenancies and Written Agreements in the form
attached as Exhibit F, providing for the assignment and assumption of all Space
Leases and Contracts to Hunters Branch LLC.
"Space Leases" shall mean all written leases (other than
subleases entered into by Tenants), including all amendments, extensions,
modifications and supplements thereto, pursuant to which any Person uses or
occupies any part of the Real Property, including the 9300 ICF Space Lease and
the 9302 ICF Space Lease.
"Space Tenants" shall mean all Persons leasing or occupying space
within the Real Property pursuant to the Space Leases.
"TIAA" shall mean Teachers Insurance and Annuity Association of
America.
"Utility Deposits" shall mean all deposits made by HMCE and HB
with the Persons providing water, sewer, gas, electricity, telephone and other
public utilities to the Real Property.
"Warranties" shall mean all assignable warranties or guaranties
presently in effect from contractors, suppliers or manufacturers of personal
property installed in or used in connection with the Real Property or any work
performed or improvements included as a part of the Real Property.
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ARTICLE II
Formation of Hunters Branch LLC and Contribution of the Property
Section 2.1 Merger of HB into HMCE. On or before the Closing
Date, HB shall be merged into HMCE in a statutory merger pursuant to Section 50-
73.48:4 of the Code of Virginia (1950). HMCE shall be the surviving limited
partnership in the merger. As provided in Section 50-73:48:4 of the Code of
Virginia (1950), upon the filing of Articles of Merger with the Virginia State
Corporation Commission, title to all assets and property owned by HB shall be
vested in HMCE by operation of law and all debts, liabilities and obligations of
HB shall automatically become the debts, liabilities and obligations of HMCE.
Section 2.2 Formation of Hunters Branch LLC.
(a) Filing of Certificate of Formation. Before the Closing Date,
HMCE shall cause the Certificate of Formation to be filed with the Secretary of
State of the State of Delaware and shall cause Hunters Branch LLC to be
qualified to do business as a foreign limited liability company in the
Commonwealth of Virginia.
(b) Signing of LLC Agreement. On the Closing Date, and subject
to the terms and conditions of this Agreement, HMCE and IFA shall form Hunters
Branch LLC by executing and delivering the LLC Agreement, which shall be dated
as of the Closing Date.
Section 2.3 Property to be Contributed by HMCE. On the Closing
Date, and subject to the terms and conditions set forth in this Agreement, HMCE
(on its own behalf and as successor by merger to HB) agrees to convey, transfer
and assign the following property to Hunters Branch LLC, as a capital
contribution:
(a) all right, title and interest of HMCE in and to the
Leasehold Estates;
(b) the Personal Property;
(c) all right, title and interest of HMCE in and to the Space
Leases (including any right of HMCE in and to Security Deposits) and the
Contracts;
(d) all right, title and interest of HMCE, if any, in and to all
transferable Licenses;
(e) all right, title and interest of HMCE in and to the
Warranties; and
(f) the additional property, including money, described in
clauses (ii) and (iii) of Section 4.2(a) of the LLC Agreement.
HMCE shall transfer and assign good and marketable title to the Leasehold
Estates and good title to the Personal Property free and clear all liens,
encumbrances, easements, covenants, conditions, leases and other matters
affecting title, except for the Permitted Exceptions.
Section 2.4 Property to be Contributed by IFA. On the Closing Date, and
subject to the terms and conditions of this Agreement, IFA shall pay to Hunters
Branch LLC, as a capital contribution, the amounts required by Section 4.2(b) of
the LLC Agreement by wire transfer of immediately available funds to a bank
account designated by HMCE. If required to do so by TIAA, in connection with the
purchase and/or discharge of the Existing TIAA Mortgage Loans, IFA shall make a
part of the capital contribution by wire transfer of immediately available funds
to a bank account designated by TIAA, to be applied by TIAA as a principal
payment of the Existing TIAA Mortgage Loans.
Section 2.5 No Other Obligations Contributed or Assumed. Except as
provided in Section 2.3 and Section 2.4, and in Section 5.6, no other assets or
property of HB or HMCE shall be contributed to, and no other
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liabilities or obligations of HB or HMCE shall be assumed by, Hunters Branch
LLC. All other assets and liabilities of HMCE shall remain the assets and
liabilities of HB and/or HMCE, as applicable.
ARTICLE III
Representations and Warranties of HMCE and HB
HMCE and HB make the representations and warranties in this Article to ICF
Kaiser and IFA for the purpose of inducing them to execute and deliver this
Agreement and to consummate the transactions contemplated by this Agreement:
Section 3.1 Organization. Each of HMCE and HB is a limited partnership
duly organized, validly existing and in good standing under the laws of the
Commonwealth of Virginia.
Section 3.2 Authorization. The requisite number of the general and
limited partners of HMCE and HB required by the Limited Partnership Agreements
pursuant to which they are organized has authorized the execution and delivery
of this Agreement and the transactions contemplated hereby, and the individuals
who are executing and delivering this Agreement on behalf of HMCE and HB have
been fully authorized and empowered to do so.
Section 3.3 No Conflicting Agreements. The execution and delivery by HMCE
and HB of, and the performance and compliance by them with the terms and
provisions of, this Agreement do not violate any of the terms, conditions or
provisions of (i) their respective Limited Partnership Agreements, (ii) any
judgment, order, injunction, decree, regulation or ruling of any court or other
governmental authority to which they, or either of them, is subject, or (iii)
except for the documents evidencing and securing the Existing TIAA Mortgage
Loans, any agreement, contract, note, mortgage or indenture to which either of
them is a party or to which any of the property owned by either of them is
subject.
Section 3.4 Approvals. No authorization, consent, order, approval or
license from, filing with, or other act by any Governmental Authority or other
Person is or will be necessary to permit the valid execution and delivery by
HMCE and HB of this Agreement or the performance by either of them of the
obligations to be performed by them under this Agreement, which has not been
obtained.
Section 3.5 United States Person. Each of HMCE and HB is a "United States
person" within the meaning of Sections 1445(f)(3) and 7701(a)(30) of the
Internal Revenue Code of 1986, as amended.
Section 3.6 Brokers. Except for The Carey Winston Company in connection
with the 9300 New ICF Space Lease and the 9302 New ICF Space Lease (the fees of
which shall be paid by the tenant thereunder, Preminger & Glazer in connection
with the Nomura Loan and Carr American and The Evans Company as set forth in
Section 2.6 hereof), no agent, broker, or other Person acting pursuant to
express or implied authority of HMCE or HB is entitled to a commission or
finder's fee in connection with the transactions contemplated by this Agreement
or will be entitled to make any claim against IFA for a commission or finder's
fee. HMCE and HB have not dealt with any agent or broker in connection with the
transactions contemplated by this Agreement other than as set forth above.
Section 3.7 Investment Representation. HMCE represents and warrants that
the membership interest in Hunters Branch LLC to be received by it will be
acquired by it solely for its own account and with no intention of distributing
or reselling the membership interest in any transaction which would be in
violation of, or would cause the transactions contemplated herein to violate,
the securities laws of the United States of America, any state thereof or the
District of Columbia, without prejudice, however, to HMCE's right at all times
to sell or otherwise dispose of all or any part of the membership interest in
Hunters Branch LLC (subject to the limitations and qualifications set forth in
the LLC Agreement) under an exemption from registration available under the
Securities Act of 1933, as amended (the "Securities Act"), and any applicable
state or District of Columbia securities law, and subject, nevertheless, to the
disposition of HMCE's property being at all times within its control in
compliance with applicable state and federal regulations.
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Section 3.8 Pending Litigation. To the best knowledge of HMCE and HB,
there are no pending actions, suits, arbitrations, claims or proceedings, at
law, in equity or otherwise, affecting all or any portion of the Real Property
or in which HMCE or HB is a party, including judicial, municipal or
administrative proceedings in eminent domain, collection actions, building code
violations, health and safety violations, federal, state or local agency actions
regarding environmental matters, federal environmental protection agency, or
zoning violations, employment discrimination or unfair labor practices, or
worker's compensation, personal injuries or property damages alleged to have
occurred at the Real Property or by reason of the condition or use of or
construction on the Real Property.
Section 3.9 Default under Permitted Exceptions. Neither HMCE or HB has
received written notice that it is in default under any document, instrument or
agreement constituting a Permitted Exception, under the Space Leases, or under
any governmental requirements applicable to the Real Property.
Section 3.10 Leasing Commissions. No leasing commissions are currently
due or shall in the future become due for any current or extension terms of the
Space Leases in effect on October 1, 1997 (except as disclosed in Section 3.6)
and neither HMCE nor HB has any obligation to make tenant improvements for the
Space Tenants under any of such Space Leases.
Section 3.11 Compliance with Law. To the actual knowledge of HMCE and HB
(without independent investigation or inquiry), all applicable laws, ordinances,
rules, requirements, regulations and building codes of any Governmental
Authorities applicable to the Real Property have been complied with in all
material respects.
Section 3.12 Documents True. HMCE and HB have delivered to IFA a true,
correct and complete copy of each Contract described on Schedule 1 and each
Space Lease described on Schedule 2.
Section 3.13 No Options. There do not exist any rights of first offer or
refusals or options to purchase the Real Property or any portion thereof.
Section 3.14 Space Leases. The Space Leases constitute the entire
agreement between the parties thereto, have not been amended, modified or
supplemented, except for such amendments, modifications and supplements
described on Schedule 2, and there are no leases, tenancy or occupancy
agreements affecting the Real Property other than those described on Schedule 2.
All Space Leases are in full force and effect and there is no default existing
thereunder on the part of HMCE or HB as landlord, or on the part of any Space
Tenants. All services required to be supplied by the landlord under the Space
Leases and all tenant improvements required to be constructed by the landlord
under the Space Leases have been supplied and/or constructed, and neither HMCE
nor HB has received notice of its failure to supply or construct same. The Space
Lease Schedule is true, correct and complete in all material respects.
Notwithstanding the foregoing representation, for any Space Lease for which
Hunters Branch LLC receives a Space Tenant Estoppel Certificate confirming all
of the foregoing, Hunters Branch LLC shall rely on such Space Tenant Estoppel
Certificate in lieu of the foregoing representation, and the foregoing
representation, as to any Space Leases for which a Space Tenant Estoppel
Certificate is received shall not survive closing.
Section 3.15 Insurance Notices. Neither HMCE or HB has received any
written notice from any of its insurance carriers or any insurance carrier of
any Space Tenant of any defects or inadequacies in the Real Property, or any
portion thereof, which would adversely affect the insurability of the Real
Property or the cost of any such insurance. There are no pending insurance
claims instituted by HMCE or HB with respect to all or any portion of the Real
Property.
3.16 Structural Defects. To the best knowledge of HMCE and HB,
without independent investigation or inquiry, there are no material physical or
mechanical deficiencies in the Property except as disclosed on Schedule 3
attached hereto.
3.17 Environmental. To the best knowledge of HMCE and HB, without
independent investigation or inquiry, other than such substances in such amounts
as are customarily incident to a general office
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use, and then in such quantities and in such amounts as are not in violation of
any applicable federal, state or local statute or regulation applicable to
Hazardous Substances (as hereinafter defined), (i) no Hazardous Substances or
toxic substances have been treated, stored, handled or disposed of on, under or
at the Real Property; (ii) the Real Property has not been used for industrial
purposes or for the storage, treatment or disposal of hazardous waste or
materials; and (iii) the Real Property has never been listed by a governmental
agency as containing any oil, hazardous waste, hazardous material, chemical
waste or other toxic substance. Further, to the best knowledge of HMCE and HB,
without independent investigation or inquiry, there are no underground storage
tanks under, nor any asbestos or asbestos-containing materials which are
incorporated within any improvements upon, or otherwise located in, on, or under
the Real Property. HMCE and HB have provided to IFA full and complete disclosure
of all studies and information in their possession (or which are readily
available to them) regarding the environmental condition of the Real Property,
and the presence of any Hazardous Substances. Neither HMCE nor HB have
deposited, placed, stored or permitted to be deposited, placed or stored on,
under or in the Real Property, any Hazardous Substances. "Hazardous Substances",
as used herein, means any toxic or hazardous waste, pollutants or substances,
including, without limitation, petroleum products or by-products, asbestos
(irrespective of whether or not encapsulated) and substances defined or listed
as hazardous substances or toxic substances or similarly identified in or
pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, 41 U.S.C. Section 9601, et seq., hazardous materials
identified in or pursuant to the Hazardous Materials Transportation Act, 49
U.S.C. Section 1802, et seq., hazardous waste identified in or pursuant to the
Resource Conservation and Recovery Act of 1976, as amended, 15 U.S.C. Section
2601, et seq. or any hazardous or toxic substance or pollutant regulated under
any other applicable federal or local environmental law;
Section 3.18 Complete Contribution. The assets being contributed by HMCE
under this Agreement constitute all assets historically required for the
operation of the Real Property.
Section 3.19 Service Contracts. Except for the Contracts described on
Schedule 1, the Space Leases described on Schedule 2, and the Permitted
Exceptions, there are no service, maintenance, operating or other agreements
affecting all or any part of the Real Property that will be binding on Hunters
Branch L.L.C. after the Closing.
Section 3.20 Oral Agreements. There do not exist any unwritten agreements
with any Governmental Authority, vendor, Space Tenant, Ground Lessor or
adjoining property owner which is or could become binding on Hunters Branch LLC
or the Real Property after the Closing.
Section 3.21 Survival. All representations and warranties contained in
this Article shall survive the Closing, except that the representations and
warranties in Section 3.8 through Section 3.20, inclusive, shall terminate
twelve (12) months after the Closing Date unless, within the 12-month period,
HMCE receives notice of a breach of any such representation or warranty.
Section 3.22 Knowledge. For purposes of this Article III, the knowledge
of HMCE and HB shall be limited to the actual knowledge of David A. Evans and P.
Diane Tipton and shall not include knowledge imputed to HMCE and HB from any
other Person; which HMCE represents are those persons who are the
representatives of HMCE with the most substantive knowledge of the Real
Property, having performed reasonable and diligent inquiry as would be customary
for similar transactions as that contemplated hereby (except as otherwise
indicated in Section 3.11, Section 3.16 and Section 3.17), which inquiry
includes, but is not necessarily limited to inquiry of the existing property
manager.
ARTICLE IV
Representations and Warranties of IFA
IFA makes the representations and warranties in this Article to HMCE and HB
for the purpose of inducing them to execute and deliver this Agreement and to
consummate the transactions contemplated by this Agreement:
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Section 4.1 Organization. IFA is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware and is duly qualified as a foreign limited liability company in good
standing in the Commonwealth of Virginia.
Section 4.2 Authorization. The requisite number of the members of IFA
required by its limited liability company agreement pursuant to which it is
organized has authorized the execution and delivery of this Agreement and the
transactions contemplated hereby, and the individuals who are executing and
delivering this Agreement on behalf of IFA have been fully authorized and
empowered to do so.
Section 4.3 No Conflicting Agreements. The execution and delivery by IFA
of, and the performance and compliance by it with the terms and provisions of,
this Agreement do not violate any of the terms, conditions or provisions of (i)
IFA's limited liability company agreement, (ii) any judgment, order, injunction,
decree, regulation or ruling of any court or other governmental authority to
which it is subject, or (iii) any agreement, contract, note, mortgage or
indenture to which it is a party or to which any of the property owned by it is
subject.
Section 4.4 Approvals. No authorization, consent, order, approval or
license from, filing with, or other act by any Governmental Authority or other
Person is or will be necessary to permit the valid execution and delivery by IFA
of this Agreement or the performance by it of the obligations to be performed by
it under this Agreement, which has not been obtained.
Section 4.5 United States Person. IFA is a "United States person" within
the meaning of Sections 1445(f)(3) and 7701(a)(30) of the Internal Revenue Code
of 1986, as amended.
Section 4.6 Brokers. Except for The Carey Winston Company in connection
with the 9300 New Space Lease and the 9302 New Space Lease (the fees of which
shall be paid by the tenant thereunder, Preminger & Glazer in connection with
the Nomura Loan and Carr America and The Evans Company as set forth in Section
2.6 hereof), no agent, broker, or other Person acting pursuant to express or
implied authority of ICF Kaiser, ICF Leasing or IFA is entitled to a commission
or finder's fee in connection with the transactions contemplated by this
Agreement or will be entitled to make any claim against HMCE or HB for a
commission or finder's fee. ICF Kaiser, ICF Leasing and IFA have not dealt with
any agent or broker in connection with the transactions contemplated by this
Agreement other than as set forth above.
Section 4.7 Investment Representation. IFA represents and warrants that
the membership interest in Hunters Branch LLC to be received by it will be
acquired by it solely for its own account and with no intention of distributing
or reselling the membership interest in any transaction which would be in
violation of, or would cause the transactions contemplated herein to violate,
the securities laws of the United States of America, any state thereof or the
District of Columbia, without prejudice, however, to IFA's right at all times to
sell or otherwise dispose of all or any part of the membership interest in
Hunters Branch LLC (subject to the limitations and qualifications set forth in
the Limited Liability Company Agreement) under an exemption from registration
available under the Securities Act, and any applicable state or District of
Columbia securities law, and subject, nevertheless, to the disposition of IFA's
property being at all times within its control in compliance with applicable
state and federal regulations.
ARTICLE V
Additional Obligations of HMCE and HB
Section 5.1 Operating Records. On the Closing Date, HMCE shall deliver to
Hunters Branch LLC all books, records, operating reports, files and other
materials in its possession and control necessary to a complete continuity in
the operation of the Buildings, or copies thereof.
Section 5.2 Affirmative Covenants. Between the Effective Date and the
Closing Date, HMCE and HB agree that they will:
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(a) manage and operate the Buildings in the ordinary and usual manner
and maintain in full force and effect until the Closing Date their present
insurance policies described in the Insurance Schedule, or renewals thereof;
(b) at their expense, maintain the Buildings in their present order
and condition, make all necessary repairs and replacements and deliver the
Buildings on the Closing Date in substantially the same condition they are in on
the Effective Date, reasonable wear and tear and damage by casualty excepted;
(c) perform, observe and comply with all material terms and
provisions of all Space Leases to be performed, observed or complied with by
them as the landlord under such Space Leases;
(d) perform, observe and comply with all material terms and
provisions of the Ground Leases to be performed, observed or complied with by
them as the tenants under the Ground Leases; and
(e) timely make all payments of principal of and interest on the
Existing TIAA Mortgage Loans (except that HMCE will pay interest only on the
Existing TIAA Loan for the 9300 Building for the month of October), and
otherwise perform, observe and comply with all of the material terms and
provisions of the documents evidencing and securing the Existing TIAA Mortgage
Loans.
Section 5.3 Negative Covenants. Between the Effective Date and the
Closing Date, HMCE and HB agree that, without IFA's written consent in each
case, they will not:
(a) voluntarily grant, create, assume or permit to exist any
Mortgage, lien, lease, encumbrance, easement, covenant, condition, right-of-way
or restriction upon the Leasehold Estates or voluntarily take or permit any
action adversely affecting the title to the Leasehold Estates as such title
exists on the Effective Date;
(b) alter, amend, renew or extend any Space Lease;
(c) terminate any Space Lease, or accept a surrender of the leased
premises thereunder, except for nonpayment of rent or a material nonmonetary
default by the Tenant;
(d) remove any material item of Personal Property from the Buildings
unless the same is replaced with similar items of equal or better quality before
the Closing Date;
(e) defer or otherwise fail to make any repair, replacement or
improvement (excluding, however, capital improvements of a non-emergency nature)
which would or should be undertaken by a prudent owner of property similar to
the Real Property in the Washington, D.C. metropolitan area;
(f) allow the status of title to the Real Property to differ from
that which exists as of the Effective Date;
(g) incur or allow to exist any indebtedness, obligation or liability
other than as set forth in this Agreement
(h) liquidate any Security Deposit, except that a Security Deposit
may be applied to cure a monetary default under a Space Lease which is a failure
to pay rent for a period in excess of sixty (60) days; or
(i) commit or allow any waste to the Real Property.
IFA agrees that it will not unreasonably withhold, delay or condition its
consent with respect to any of the matters referred to in this Section 5.3(b) or
5.3(d).
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Section 5.4 Expenses. HMCE and HB agree to pay all expenses incurred by
them in connection with the negotiation, execution and performance of this
Agreement and the transactions contemplated hereby, including the fees and
expenses of its legal counsel.
Section 5.5 Further Assurances. HMCE agrees that it will, at any time and
from time to time after the Closing Date, upon request of Hunters Branch LLC do,
execute, acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered, at no material cost, expense or liability to HMCE,
all such further acts, deeds, assignments, transfers, conveyances and assurances
as may reasonably be required to carry out the terms of this Agreement.
Section 5.6 New Lease Obligations. All obligations for tenant
improvements and leasing commissions for Space Leases in effect on October 1,
1997 shall be the responsibility of HMCE and/or HB, as applicable. Neither HMCE
nor HB shall enter into any new leases or enter into any amendments,
modifications, or renewals of Space Leases or otherwise make any changes to any
of the Space Leases without the prior written consent of IFA, which IFA may
withhold in its reasonable discretion. In the event, subsequent to the date
hereof, HMCE or HB desires to enter into any new leases, HMCE or HB, as
applicable, shall provide IFA with a photocopy of each such lease for approval.
If IFA approves such new lease in writing, HMCE or HB may enter into the new
lease and such new leases shall be considered a part of the Space Leases
hereunder, and IFA shall (i) reimburse HMCE or HB for all tenant improvement and
brokerage commission costs provided for in the lease and incurred by HMCE or HB
in connection therewith, or (ii) on the Closing Date shall assume the obligation
to pay for all commissions, allowances and all other obligations to become due
under or in connection with such new lease(s) by the landlord.
ARTICLE VI
Additional Obligations of IFA
Section 6.1 Expenses. IFA agrees to pay all expenses incurred by it in
connection with the negotiation, execution and performance of this Agreement and
the transactions contemplated hereby, including the fees and expenses of its
legal counsel.
ARTICLE VII
Conditions Precedent to HMCE's Obligations
The obligations of HMCE to transfer and convey the Property to Hunters
Branch LLC and to perform the other covenants and obligations to be performed by
it on the Closing Date shall be subject to the following conditions (all or any
of which may be waived, in whole or in part, by HMCE):
Section 7.1 IFA's Representations and Warranties True. The
representations and warranties made by IFA in Article IV shall be true and
correct on the Effective Date and shall be true and correct in all material
respects on and as of the Closing Date with the same force and effect as though
such representations and warranties had been made on and as of such date; and
IFA shall have executed and delivered to HMCE a certificate, dated as of the
Closing Date, to the foregoing effect.
Section 7.2 IFA's Performance. IFA shall have performed all obligations
required by this Agreement to be performed by it on or before the Closing Date.
Section 7.3 Closing of Nomura Loan. On the Closing Date, Nomura shall
consummate the closing of the Nomura Loan in accordance with the Nomura
Commitment, unless the failure of such closing to occur is caused by a default
by HMCE or HB in performing any of the obligations to be performed by them under
this Agreement.
ARTICLE VIII
Conditions Precedent to IFA's Obligations
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The obligations of IFA to perform the covenants and obligations to be
performed by it on the Closing Date, including the obligation of IFA to make the
capital contribution described in Section 2.4 of this Agreement to Hunters
Branch LLC, shall be subject to the following conditions (all or any of which
may be waived, in whole or in part, by IFA):
Section 8.1 HMCE's and HB's Representations and Warranties True. The
representations and warranties made by HMCE and HB in Article III shall be true
and correct on the Effective Date and shall be true and correct in all material
respects on and as of the Closing Date with the same force and effect as if such
representations had been made on and as of such date; and HMCE shall have
executed and delivered to IFA a certificate, dated as of the Closing Date, to
the foregoing effect.
Section 8.2 HMCE's Performance. HMCE shall have performed all covenants
and obligations required by this Agreement to be performed by it on or before
the Closing Date.
Section 8.3 Title to Leasehold Estates. On the Closing Date, HMCE shall
be the sole owner of the Leasehold Estates and such title shall be marketable,
good of record and in fact, and free and clear of all Mortgages, liens,
encumbrances, easements, Leases, conditions and other matters affecting title
other than the Permitted Exceptions.
Section 8.4 Closing of Nomura Loan. On the Closing Date, Nomura shall
consummate the closing of the Nomura Loan in accordance with the Nomura
Commitment, unless the failure of such closing to occur is caused by a default
by ICF Kaiser or IFA in performing any of the obligations to be performed by it
under this Agreement.
Section 8.5 Condemnation. On the Closing Date, no part of the Land or
the Buildings shall be about to be acquired, or shall previously have been
acquired, by authority of any governmental agency in the exercise of its power
of eminent domain or by private purchase in lieu thereof, nor on the Closing
Date shall there be any threat or imminence of any such acquisition or purchase.
Section 8.6 Estoppel Certificates. IFA and Nomura shall have received
(i) estoppel certificates ("Space Tenant Estoppel Certificates") duly executed
by each of the Space Tenants. The Space Tenant Estoppel Certificates shall be
dated not more than thirty (30) days prior to the Closing Date. The Space Tenant
Estoppel Certificates shall be in the form of, and upon the terms contained in,
Exhibit K attached hereto, unless any estoppel form is attached to a Space
Lease, in which event the form required by such Space Lease shall be used, and
(ii) estoppel certificates (the "Ground Lease Estoppel Certificates") executed
by the Ground Lessor substantially in the form attached as Exhibit L. HMCE shall
deliver the Tenant Estoppel Certificates and Ground Lease Estoppel Certificates
to IFA as soon as reasonably possible after receipt thereof.
Section 8.7 Material Adverse Change. Between the Effective Date and the
Closing Date, there shall have been no material adverse change in the condition
of the Real Property.
ARTICLE IX
Closing
Section 9.1 Closing Date. The closing of the transactions contemplated
by this Agreement (the "Closing") shall take place on October 31, 1997,
simultaneously with the closing of the Nomura Loan. The Closing shall be held at
the office of an attorney-at-law, a title insurance company or a title insurance
agent in the Washington, D.C. metropolitan area mutually acceptable to HMCE and
IFA. Notwithstanding the foregoing, the Closing Date may be postponed by IFA by
written notice to HMCE, to a date not later than November 21, 1997. The date on
which closing is actually consummated is herein referred to as the "Closing
Date".
Section 9.2 HMCE's Deliveries to IFA. Subject to the terms and
conditions of this Agreement, HMCE shall deliver, or cause to be delivered, to
IFA on the Closing Date, the following:
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(a) the LLC Agreement, signed by HMCE;
(b) the Option Agreement, signed by the Ground Lessors and by HMCE in
its capacity as a member of Hunters Branch LLC;
(c) all documents or instruments required to be delivered by HMCE or
the Ground Lessor pursuant to or consistent with the Nomura Commitment,
including a subordination of the Ground Lessor's interest in the Ground Leases
to the deed(s) of trust to be recorded to secure the Nomura Loan, and
Subordination, Non-Disturbance and Attornment Agreements received by HMCE from
each of the Space Tenants, subordinating the Space Leases to the Mortgage
securing the Nomura Loan;
(d) evidence of HMCE's authority to consummate the transactions
contemplated by this Agreement;
(e) the Space Tenant Estoppel Certificates and Ground Lease Estoppel
Certificates received by HMCE from the Space Tenants and the Ground Lessor;
(f) all other documents, instruments, agreements and certificates
required by this Agreement to be signed and/or delivered by HMCE to IFA at the
Closing; and
(g) a legal opinion from counsel to HMCE confirming the existence of
HMCE and its authority to consummate the transactions contemplated hereby.
Section 9.3 IFA's Deliveries to HMCE. Subject to the terms and
conditions of this Agreement, IFA shall deliver, or cause to be delivered, to
HMCE, on the Closing Date, the following:
(a) the LLC Agreement, signed by IFA;
(b) the Option Agreement, signed by IFA;
(c) evidence of IFA's authority to consummate the transactions
contemplated by this Agreement; and
(d) all other documents, instruments, agreements and certificates
required by this Agreement to be signed and/or delivered by IFA to HMCE at the
Closing.
Section 9.4 IFA's Additional Deliveries to Hunters Branch LLC. Subject
to the terms and conditions of this Agreement, IFA shall cause to be delivered,
to Hunters Branch LLC on the Closing Date, the following:
(a) evidence of ICF Leasing's authority in respect of those
undertakings hereunder contemplated to be performed by it.
(b) evidence of ICF Kaiser's authority in respect of those
undertakings to be performed by it pursuant to the ICF Kaiser Lease Guaranty.
(c) all documents and instruments required by Nomura to be signed by
ICF Kaiser or ICF Leasing in order to consummate the Nomura Loan, but neither
ICF Kaiser nor ICF Leasing shall be obligated to sign or deliver any document or
instrument that imposes on it any personal liability for payment of the Nomura
Loan; and
(d) all other documents, instruments, agreements and certificates
required by this Agreement to be signed and/or delivered by ICF Kaiser to
Hunters Branch LLC at the Closing.
Section 9.5 Hunters Branch LLC's Deliveries. Subject to the terms and
conditions of this Agreement, IFA as Managing Member of Hunters Branch LLC,
shall deliver, or cause to be delivered, to ICF Kaiser and/or ICF Leasing, as
applicable, on the Closing Date, the following:
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(a) evidence of Hunters Branch LLC's authority to consummate the
transactions contemplated by this Agreement; and
(b) all other documents, instruments, agreements and certificates
required by this Agreement to be signed and/or delivered by Hunters Branch LLC
to ICF Kaiser or ICF Leasing at the Closing.
Section 9.6 HMCE's Deliveries to Hunters Branch LLC. Subject to the
terms and conditions of this Agreement, HMCE shall deliver, or cause to be
delivered, to Hunters Branch LLC on the Closing Date, the following:
(a) the Ground Lease Assignment for the 9300 Ground Lease and the
Ground Lease Assignment for the 9302 Ground Lease, both signed by HMCE.
(b) the Bill of Sale, signed by HMCE;
(c) the Space Lease and Contract Assignment, signed by HMCE;
(d) instruments terminating the 9300 ICF Space Lease and the 9302 ICF
Space Lease, signed by ICF Kaiser and HMCE;
(e) the 9300 New ICF Space Lease, signed by ICF Leasing and HMCE;
(f) the 9302 New ICF Space Lease, signed by ICF Leasing and HMCE;
(g) the ICF Kaiser Lease Guaranty;
(h) the General Assignment, signed by HMCE;
(i) all original insurance policies with respect to which premiums
are to be apportioned as of the Closing Date or, if unobtainable, true copies or
certificates thereof;
(j) a certification as to HMCE's non-foreign status which complies
with the provisions of Section 1445(b)(2) of the Code, any temporary or final
regulations promulgated thereunder, and any revenue procedures or other
officially published announcements of the Internal Revenue Service or the U.S.
Department of the Treasury in connection therewith;
(k) an Affidavit signed by HMCE, addressed to the title insurance
company(ies) designated by Nomura, with respect to the absence of claims which
would give rise to mechanics' liens, the absence of parties in possession of the
Buildings other than Space Tenants under the Space Leases (and other than
subtenants of Space Tenants) and the absence of unrecorded easements granted by
HMCE or HB, in the form customarily required by title insurance companies
insuring title to real property in Fairfax County, Virginia, to eliminate the
exceptions for those matters from Hunters Branch LLC's and Nomura's title
insurance policy(ies) for the Ground Leases;
(l) the Closing Statement referred to in Section 10.1;
(m) an original executed counterpart of each Space Lease and Contract
then in effect;
(n) all keys to the Buildings and the Personal Property, if any,
which are in HMCE's possession or control, or otherwise obtainable by HMCE
without undue burden or expense, with labels identifying each lock to which such
keys relate;
(o) all certificate(s) of occupancy, if any, for the Buildings in
HMCE's possession or otherwise obtainable by HMCE without undue burden or
expense;
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(p) letters signed by HMCE addressed to all Space Tenants in a form
approved by IFA (such approval not to be unreasonably withheld, delayed or
conditioned) notifying such Space Tenants of the transfer of ownership of the
Leasehold Estates and directing the Space Tenants to pay rent that becomes
payable after the Closing Date or rent that is unpaid on the Closing Date, or
both, to Hunters Branch LLC or at its direction;
(q) a rent roll, in substantially the same form required by Nomura to
be delivered to Nomura in connection with the Nomura Loan, setting forth all
past due and uncollected Rent owed by Space Tenants, all prepayments of Rent and
all Security Deposits, if any, held by HMCE, its managing agent or any other
Person under all Space Leases;
(r) state and local returns, if any, required to report the
transactions contemplated by this Agreement;
(s) all documents and instruments required by Nomura to be signed by
HMCE in order to consummate the Nomura Loan, but HMCE shall not be obligated to
sign or deliver any document or instrument that imposes personal liability on it
or its partners for payment of the Nomura Loan; and
(t) all other documents, instruments, agreements and certificates
required by this Agreement to be signed and/or delivered by HMCE to Hunters
Branch LLC at the Closing.
Section 9.7 Hunters Branch LLC's Deliveries to HMCE. Subject to the
terms and conditions of this Agreement, IFA, as Managing Member of Hunters
Branch LLC, shall deliver, or cause to be delivered, to HMCE on the Closing
Date, the following:
(a) the Ground Lease Assignment for the 9300 Ground Lease and the
Ground Lease Assignment for the 9302 Ground Lease, both signed by IFA as
Managing Member of Hunters Branch LLC;
(b) the Space Lease and Contract Assignment, signed by IFA, as
Managing Member of Hunters Branch LLC;
(c) the Closing Statement referred to in Section 10.1;
(d) evidence of Hunters Branch LLC's authority to consummate the
transactions contemplated by this Agreement;
(e) state and local returns, if any, required to report the
transactions contemplated by this Agreement, signed by IFA, as Managing Member
of Hunters Branch LLC; and
(p) all other documents, instruments, agreements and certificates
required by this Agreement to be signed and/or delivered by Hunters Branch LLC
to HMCE at the Closing.
ARTICLE X
Closing Adjustments and Prorations
Section 10.1 General. All rentals, revenues and other income generated
by the Buildings and all Real Estate Taxes and Operating Expenses related to the
Buildings shall be paid or shall be prorated between HMCE and Hunters Branch LLC
in accordance with the provisions of this Article. For purposes of the
prorations and adjustments to be made pursuant to this Article, Hunters Branch
LLC shall be deemed to own the Leasehold Estates and therefore be entitled to
any revenues and be responsible for any expenses for the entire day upon which
the Closing occurs. Any apportionments and prorations which are not expressly
provided for in this Article shall be made in accordance with the customary
practice in Fairfax County, Virginia. HMCE and IFA shall cause their accountants
to prepare a separate schedule of adjustments for the Buildings (the "Closing
Statement") before the Proration Date. Any net adjustment in favor of Hunters
Branch LLC shall be paid by HMCE in cash or cash equivalent at the Closing. Any
net adjustment in favor of HMCE shall be paid by Hunters Branch LLC in cash or
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cash equivalent at, or within 45 days after, the Closing. A copy of the Closing
Statement agreed upon by HMCE and Hunters Branch LLC shall be executed by HMCE
and IFA at the Closing.
Section 10.2 Rent. Rent shall be prorated at the Closing in accordance
with the following provisions:
(a) Minimum Rent. Subject to Section 10.2(c) (relating to Delinquent
Rent), Minimum Rent shall be prorated between HMCE and Hunters Branch LLC as of
the Proration Date on an accrual basis based on the actual number of days in the
month during which the Proration Date occurs. HMCE shall be entitled to all
Minimum Rent which accrues before the Proration Date and Hunters Branch LLC
shall be entitled to all Minimum Rent which accrues on and after the Proration
Date.
(b) Additional Rent. Subject to Section 10.2(c) (relating to
Delinquent Rent), monthly or other payments made by Tenants in advance based
upon projected or estimated Additional Rent shall be prorated between HMCE and
Hunters Branch LLC as of the Proration Date on an accrual basis based on the
actual number of days in the monthly or other period for which the advance
payment is made in which the Proration Date occurs. Such proration shall be
made separately for each Space Tenant who is obligated to pay Additional Rent on
the basis of the fiscal year set forth in the Space Tenant's Space Lease for the
determination and payment of Additional Rent. The actual fiscal year for
determination and payment of Additional Rent in which the Proration Date occurs
is hereinafter referred to as the "Applicable Additional Rent Fiscal Year."
Subject to the proration of advance payments required by the preceding sentence,
HMCE shall initially retain all monthly or other payments of Additional Rent
made by each Space Tenant for its Applicable Additional Rent Fiscal Year before
the Proration Date until the Final Closing Adjustment and Hunters Branch LLC
shall initially retain all such monthly or other payments of Additional Rent
made by each Space Tenant for its Applicable Additional Rent Fiscal year on and
after the Proration Date until the Final Closing Adjustment. HMCE and Hunters
Branch LLC shall prorate the total Additional Rent due from each Space Tenant
for the Space Tenant's Applicable Additional Rent Fiscal Year as a part of the
Final Closing Adjustment pursuant to Section 10.11(b).
(c) Delinquent Rent. Delinquent Rent shall be prorated between HMCE
and Hunters Branch LLC as of the Proration Date but not until it is actually
collected by Hunters Branch LLC after the Closing. Hunters Branch LLC shall pay
to HMCE when and as collected, and as soon as practicable following receipt, all
Delinquent Rent collected by Hunters Branch LLC after the Closing which is
attributable to the period before the Proration Date, net of the costs of
collection (including reasonable attorneys' fees and costs). As a part of the
Final Closing Adjustment, any Delinquent Rent which has not as yet been paid
shall be assigned to HMCE, but after the Closing and continuing through and
after the Final Closing Adjustment, without the express written consent of
Hunters Branch LLC, HMCE shall not take any action against a Space Tenant owing
Delinquent Rent which would affect such Space Tenant's right to occupy the
premises leased under its Space Lease, but HMCE may take any other action it
deems necessary or appropriate (in its own name but not in the name of Hunters
Branch LLC) to sue for and collect the Delinquent Rent. Delinquent Rent
collected by Hunters Branch LLC after the Closing, net of the costs of
collection (including reasonable attorneys' fees and costs), shall be applied in
the following order of priority:
(1) in the case of Delinquent Rent which is less than 31 days overdue
as of the Proration Date, against the Space Tenant's Rent obligations in the
chronological order in which they accrue; and
(2) second, in the case of Delinquent Rent which is more than 30 days
overdue as of the Proration Date, against the Space Tenant's Rent obligations in
the inverse chronological order in which they accrue.
(d) Other Rent Adjustments. All Rent payable by each Space Tenant
whose Space Lease was terminated before the Proration Date by the terms thereof
(or whose space lease was terminated by agreement prior to the Effective Date)
shall belong entirely to HMCE. All Rent payable by each Space Tenant whose
Lease commences on or after the Proration Date shall belong entirely to Hunters
Branch LLC.
Section 10.3 Taxes and Assessments.
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(a) Proration of Taxes at Closing. All non-delinquent Real Estate
Taxes assessed against the Land and the Buildings shall be prorated between HMCE
and Hunters Branch LLC on an accrual basis, based upon the actual current tax
bill. All Real Estate Taxes allocable to the period before the Proration Date
shall be the obligation of HMCE and all Real Estate Taxes allocable to the
period on and after the Proration Date shall be the obligation of Hunters Branch
LLC Any delinquent Real Estate Taxes assessed against the Land the Buildings
shall be paid (together with any interest and penalties) by HMCE at the Closing
in cash or cash equivalent.
(b) Post-Closing Refunds of Taxes. Any refunds of Real Estate Taxes
made after the Closing shall be held in trust by Hunters Branch LLC (and, if
received by HMCE, shall be delivered immediately to Hunters Branch LLC to be
held in trust in accordance with this Section) and shall first be applied to the
unreimbursed costs incurred in obtaining the refund, then paid to any Space
Tenants who are entitled to the same and the balance, if any, shall be paid to
HMCE (for the period prior to the Closing Date) and to Hunters Branch LLC (for
the period commencing on and after the Closing Date).
Section 10.4 Operating Expenses. All Operating Expenses and Ground Lease
Rent shall be prorated between HMCE and Hunters Branch LLC as of the Proration
Date on an accrual basis, based on the actual number of days in the month during
which the Proration Date occurs. HMCE shall be responsible for all Operating
Expenses and Ground Lease Rent attributable to the period before the Proration
Date and Hunters Branch LLC shall be responsible for all Operating Expenses and
Ground Lease Rent attributable to the period on and after the Proration Date.
To the extent commercially reasonable and practicable, HMCE and Hunters Branch
LLC shall obtain billings and meter readings as of the Business Day preceding
the Proration Date to aid in the proration of charges for gas, electricity and
other utility services which are not the direct responsibility of Space Tenants.
If billings or meter readings as of the Business Day preceding the Proration
Date are obtained, adjustments of any costs, expenses, charges or fees shown
thereon shall be made in accordance with such billings or meter readings. If
billings or meter readings as of the Business Day preceding the Proration Date
are not available for any utility service, the charges therefor shall be
adjusted at the Closing on the basis of the per diem charges for the most recent
prior period for which bills were issued and shall be further adjusted at the
Final Closing Adjustment on the basis of the actual bills for the current
period.
Section 10.5 Existing TIAA Mortgage Loans. HMCE shall be responsible
for all costs incurred by TIAA in connection with the Existing TIAA Mortgage
Loans except as set forth below. As of September 30, 1997, outstanding legal
fees charged by Debevoise and Plimpton (the "TIAA Counsel") in its
representation of TIAA in connection with the Existing TIAA Mortgage Loans were
in the amount of $45,135.45, which amount, as well as any additional legal fees
incurred by TIAA in connection with the Existing TIAA Mortgage Loans through the
Effective Date, shall be borne by Hunters Branch LLC. HMCE shall have no
obligation for any payment on account thereof except in respect of the
$30,000.00 contribution being made pursuant to Section 4.2(a) of the LLC
Agreement.
(a) Interest. Accrued interest shall be paid by HMCE at the Closing
through the Effective Date.
(b) Escrows. HMCE shall be credited with and Hunters Branch LLC
shall be charged with the amount of the escrows for Real Estate Taxes and
insurance, if any, held by or on behalf of TIAA on the Closing Date; provided
that TIAA delivers such amounts to Nomura for the account of Hunters Branch LLC.
Section 10.6 Security Deposits and Other Space Tenant Credits. Hunters
Branch LLC shall be credited with and HMCE shall be charged with an amount equal
to the sum of (i) all Security Deposits being (or required to be) held by HMCE
or any other Person under the Space Leases (including interest thereon if
required pursuant to the terms of any Space Leases), and (ii) the amount of any
other credits due to Space Tenants as of the Closing Date (other than credits
for free rent or other lease concessions unless in the form of monetary payments
to be made to any Space Tenant) in accordance with the terms of the Space
Leases. HMCE shall be entitled to retain all Security Deposits or other such
credits due Space Tenants for which Hunters Branch LLC receives credit and HMCE
is charged pursuant to this Section.
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Section 10.7 Utility Deposits. Hunters Branch LLC shall pay to HMCE at
the Closing the amount of all Utility Deposits, against a good and sufficient
transfer by HMCE to Hunters Branch LLC of all interest of HMCE in the Utility
Deposits, unless the utility company's policy is to refuse to honor such
assignment in which case HMCE shall be entitled to retain its Utility Deposits
and Hunters Branch LLC will post new Utility Deposits.
Section 10.8 Collection of Delinquent Rent. Hunters Branch LLC shall
have the right after the Closing to collect Delinquent Rent relating to the
period before the Proration Date, but shall not be obligated to do so. Hunters
Branch LLC shall act in a reasonable and diligent manner to collect Delinquent
Rent for the annual period in which the Proration Date occurs, but Hunters
Branch LLC shall not be required to retain counsel or to institute suit or
commence other legal action in order to collect Delinquent Rent. The legal fees
and related costs and expenses incurred in collecting Delinquent Rent shall be
paid by HMCE, subject to any reimbursement obtained in accordance with the Space
Tenant's Space Lease. Hunters Branch LLC shall not waive any Delinquent Rent or
modify or amend any Space Lease so as to reduce the Delinquent Rent owed by the
Space Tenant for any period for which HMCE is entitled to receive such
Delinquent Rent, without first obtaining HMCE's written consent. This Section
shall not prohibit HMCE from suing or taking other action to collect Delinquent
Rent pursuant to Section 10.2(c), subject to the limitations set forth in
Section 10.2(a).
Section 10.9 Credit for Free Rent. At the Closing, HMCE shall give
Hunters Branch LLC credit for an amount, determined on an accrual basis, equal
to the abatement of Minimum Rent for any period on and after the Closing Date to
which Space Tenants are entitled under Space Leases in effect on the Effective
Date.
Section 10.10 Required Statements and Reports.
(a) Exchange of Information. As soon as reasonably practical after
the Closing Date, HMCE shall deliver to Hunters Branch LLC a statement,
certified to be true and correct by HMCE, setting forth all Operating Expenses
incurred by HMCE during the period beginning on the first day of the calendar
year in which the Proration Date occurs (the "Calendar Year of Proration") and
ending on the day before the Proration Date and all reimbursements (if any)
received during such period by HMCE, as landlord, under the Space Leases for
each Space Tenant's share of Reimbursable Expenses for the Calendar Year of
Proration. As soon as reasonably practical after December 31 of the Calendar
Year of Proration, Hunters Branch LLC shall deliver to HMCE statements,
certified to be true and correct by Hunters Branch LLC, setting forth all
Operating Expenses incurred by Hunters Branch LLC during the period beginning on
the Proration Date and ending on the last day of the Calendar Year of Proration
and all reimbursements received during such period by Hunters Branch LLC, as
landlord, under the Space Leases for each Space Tenant's share of Reimbursable
Expenses for the Calendar Year of Proration.
(b) Hunters Branch LLC's Obligation to Bill Space Tenants. Hunters
Branch LLC shall bill each Space Tenant, at the time and in the manner required
by the Space Tenant's Space Lease, for the amount (if any) of Reimbursable
Expenses for the Calendar Year of Proration which the Space Tenant is obligated
to pay to Hunters Branch LLC, as landlord under the Space Tenant's Space Lease,
and shall prepare and deliver to each Space Tenant, at Hunters Branch LLC's
expense, all statements and other supporting information required by the Space
Tenant's Space Lease to substantiate the amount billed.
Section 10.11 Final Closing Adjustment. Within 180 days after the Closing
Date, HMCE and Hunters Branch LLC shall make a final adjustment to the
prorations made pursuant to this Article (the "Final Closing Adjustment"). The
Final Closing Adjustment shall be made in the following manner:
(a) General. All adjustments or prorations which could not be
determined at the Closing because of the lack of actual statements, bills or
invoices for the current period, the year-end adjustment of Additional Rent, or
any other reason shall be made as a part of the Final Closing Adjustment. Any
net adjustment in favor of Hunters Branch LLC shall be paid in cash or cash
equivalent by HMCE to Hunters Branch LLC no later than 20 days after the Final
Closing Adjustment. Any net adjustment in favor of HMCE shall be paid in cash
or cash equivalent by Hunters Branch LLC to HMCE no later than 20 days after the
Final Closing Adjustment.
(b) Additional Rent Adjustment. HMCE and Hunters Branch LLC shall
prorate the actual amount of Additional Rent paid by each Space Tenant for such
Space Tenant's Applicable Additional Rent Fiscal
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Year (as distinguished from the interim payments prorated as of the Proration
Date pursuant to Section 10.2(a)) as follows:
(1) HMCE shall be entitled to the portion of the actual amount of
Additional Rent paid by the Space Tenant equal to the product obtained by
multiplying such amount by a fraction, the numerator of which is the total
amount of Reimbursable Expenses incurred by HMCE during the portion of the Space
Tenant's Applicable Additional Rent Fiscal Year preceding the Proration Date and
the denominator of which is the total amount of Reimbursable Expenses incurred
by HMCE and Hunters Branch LLC during the Space Tenant's Applicable Additional
Rent Fiscal Year; and
(2) Hunters Branch LLC shall be entitled to the balance of the
Additional Rent paid by the Space Tenant.
If the sum of all interim payments on account of Additional Rent collected
and retained by HMCE from each Space Tenant for the Space Tenant's Applicable
Additional Rent Fiscal Year pursuant to Section 10.2(b) (reduced by a pro-rated
portion of the interim payment on account of Additional Rent paid for the month
or quarter in which the Proration Date occurs for which Hunters Branch LLC is
given credit pursuant to Section 10.2(b)) exceeds the amount of Additional Rent
to which HMCE is entitled with respect to such Space Tenant pursuant to
paragraph (1) above, HMCE shall pay such excess to Hunters Branch LLC If the
sum of all interim payments on account of Additional Rent collected and retained
by Hunters Branch LLC from each Space Tenant for the Space Tenant's Applicable
Additional Rent Fiscal Year pursuant to Section 10.2(b) (increased by a pro-
rated portion of the interim payment on account of Additional Rent paid for the
month or quarter in which the Proration Date occurs for which Hunters Branch LLC
is given credit pursuant to Section 10.2(b)) exceeds the amount of Additional
Rent to which Hunters Branch LLC is entitled with respect to such Space Tenant
pursuant to paragraph (2) above, Hunters Branch LLC shall pay the excess to
HMCE. The adjustment of interim payments received and actual Additional Rent
paid shall be made separately for each Space Tenant (as opposed to aggregating
all interim payments received by HMCE or Hunters Branch LLC from all Space
Tenants and offsetting the same against the entire amount of Additional Rent
payable by all Space Tenants). If the sum of the interim payments on account of
Additional Rent collected by HMCE and the interim payments on account of
Additional Rent collected by Hunters Branch LLC exceeds the Additional Rent
actually owed by the Space Tenant for the Space Tenant's Applicable Additional
Rent Fiscal Year, Hunters Branch LLC shall remit to, or give the Space Tenant
credit for, such excess and HMCE and Hunters Branch LLC shall make any necessary
adjustment between them in accordance with the immediately preceding sentences.
If the Space Tenant's Lease requires the Space Tenant to pay Additional Rent on
the basis of more than one category of Reimbursable Expenses, e.g., one or more
components of Operating Expenses and real estate taxes, the prorations required
by this Section 10.11(b) shall be made separately for each category.
(c) No Further Adjustments. Except for: (i) additional or
supplemental real estate taxes, real estate tax credits or rebates, or other
adjustments to real estate taxes due to back assessments, corrections to
previous tax bills or real estate tax appeals or contests, and (ii) any item of
Additional Rent which may be contested by a Space Tenant, the Final Closing
Adjustment shall be conclusive and binding upon HMCE and Hunters Branch LLC and
HMCE and Hunters Branch LLC hereby waive any right to contest after the Final
Closing Adjustment any prorations, apportionments or adjustments to be made
pursuant to this Section.
ARTICLE XI
Termination
Section 11.1 Reasons for Termination. This Agreement may be terminated
upon written notice given to the other party by:
(a) ICF Kaiser or IFA at the Closing, if any one of the conditions
set forth in Article VIII is not satisfied on the Closing Date; or
(b) HMCE at the Closing, if any of the conditions set forth in
Article VII is not satisfied on the Closing Date; or
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(c) ICF Kaiser, IFA or HMCE at any time after November 30, 1997, if
the Closing does not occur before the date on which a notice of termination is
given by one party to the other party.
Section 11.2 Effect of Termination. If any party terminates this
Agreement pursuant to Section 11.1, this Agreement shall become null and void
and no party shall have any further liability or obligation to any other party
under this Agreement, except as otherwise provided in the next sentence. If IFA
or HMCE terminates this Agreement pursuant to Section 11.1(a) or Section
11.1(b) because of a breach by the other party of any of the representations or
warranties made by the other party in this Agreement or the failure of the other
party to perform any of the covenants or agreements to be performed by it under
this Agreement, the terminating party may sue to recover its damages arising out
of such misrepresentation, breach of warranty or default.
Section 11.3 Right to Seek Specific Performance. If HMCE, IFA or ICF
Kaiser defaults in performing any of the covenants or agreements to be performed
by it under this Agreement, the other party shall have the right, instead of
terminating this Agreement pursuant to Section 11.1, to elect to permit this
Agreement to remain in effect and to sue for specific performance.
ARTICLE XII
Miscellaneous Provisions
Section 12.1 Entire Agreement. This Agreement, together with the
Exhibits hereto and any other agreements entered into by and among the parties
hereto simultaneously with, and dated the same day as, this Agreement, contains
the entire agreement between the parties relating to the transactions
contemplated by this Agreement; all prior negotiations between the parties are
merged by this Agreement; and there are no promises, agreements, conditions,
undertakings, warranties or representations, oral or written, express or
implied, between them other than as herein set forth. No change or modification
of this Agreement shall be valid unless the same is in writing and signed by the
parties hereto. No waiver of any of the provisions of this Agreement, or any
other agreement referred to herein, shall be valid unless in writing and signed
by the party against whom it is sought to be enforced.
Section 12.2 Survival of Agreements. All provisions of this Agreement
which, by their terms, are to be performed after the Closing Date, shall survive
the Closing.
Section 12.3 Counterparts. This Agreement may be executed in any number
of counterparts and it shall not be necessary that each party to this Agreement
execute each counterpart. Each counterpart so executed (or, if all parties do
not sign on the same counterpart, each group of counterparts signed by all
parties) shall be deemed to be an original, but all such counterparts together
shall constitute one and the same instrument. In making proof of this
Agreement, it shall not be necessary to account for more than one counterpart or
group of counterparts signed by all parties.
Section 12.4 Benefit and Burden. Neither HMCE nor HB may assign its
rights under this Agreement without IFA's prior written consent. Neither ICF
Kaiser nor IFA may assign its rights under this Agreement without HMCE's prior
written consent. Subject to the foregoing, all terms of this Agreement shall be
binding upon, and inure to the benefit of and be enforceable by, the respective
personal representatives, heirs, successors and assigns of the parties hereto.
Section 12.5 Governing Law. This Agreement is intended to be performed
in the jurisdiction in which the Buildings are located and shall be construed
and enforced in accordance with the laws of such jurisdiction, without resort to
conflicts of laws principles.
Section 12.6 Notices.
(a) Manner of Giving Notice. Each notice, request, demand, consent,
approval or other communication (hereafter in this Section referred to
collectively as "notices" and referred to singly as a "notice")
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which HMCE, HB, IFA or ICF Kaiser is required or permitted to give to any other
party pursuant to this Agreement shall be in writing and shall be deemed to have
been duly and sufficiently given if
(1) personally delivered with proof of delivery thereof (any notice
so delivered shall be deemed to have been received at the time so delivered),
(2) sent by Federal Express (or other similar overnight courier)
designating early morning delivery (any notice so delivered shall be deemed to
have been received on the next Business Day following receipt by the courier),
(3) sent by United States registered or certified mail, return
receipt requested, postage prepaid, at a post office regularly maintained by the
United States Postal Service (any notice so sent shall be deemed to have been
received two days after mailing in the United States), or
(4) sent by telecopier or facsimile machine which automatically
generates a transmission report that states the date and time of the
transmission the length of the document transmitted and the telephone number of
the recipient's telecopier or facsimile machine (with a copy thereof sent in
accordance with paragraph (2) above) (any notice so delivered shall be deemed to
have been received (i) on the date of transmission, if so transmitted before
5:30 p.m. (local time of the recipient) on a Business Day, or (ii) on the next
Business Day, if so transmitted on or after 5:30 p.m. (local time of the
recipient) on a Business Day or if transmitted on a day other than a Business
Day), addressed to the parties at their respective addresses designated pursuant
to subsection (b).
(b) Addresses for Notices. All notices shall be addressed to the
parties at the following addresses:
(1) if to HMCE or HB:
c/o Ms. P. Diane Tipton
The Evans Company
8251 Greensboro Drive, Suite 850
McLean, Virginia 22102
Telecopy Number: (703) 893-0617
with a copy to:
Joel N. Simon, Esq.
Arent Fox Kintner Plotkin & Kahn
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5339
Telecopy Number: (202) 857-6395
(2) if to IFA:
Mr. Richard L. Perlmutter
Argo Investment Company, LC
1355 Piccard Drive, Suite 470
Rockville MD 20850
Telecopy Number: (301) 948-7642
with a copy to:
Mr. Clayton Foulger
Foulger-Pratt Companies
1355 Piccard Drive, Suite 400
Rockville, MD 20850
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Telecopy Number: (301) 948-5949
with a copy to:
J. Richard Saas, Esq.
Tenenbaum & Saas, P.C.
4330 East-West Highway, Suite 1150
Bethesda, Maryland 20814
Telecopy Number: (301) 961-5305
Mr. Timothy O'Connor
ICF Kaiser International, Inc.
9300 Lee Highway
Fairfax, Virginia 22031-1207
Telecopy Number: (703) 934-3528
Paul Weeks, Esq.
ICF Kaiser International, Inc.
9300 Lee Highway
Fairfax, Virginia 22031-1207
Telecopy Number: (703) 934-3029
James J. Maiwurm, Esq.
Crowell & Moring, LLP
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2595
Telecopy Number: (202) 628-5116
Any party may, by notice given pursuant to this Section, change the person
or persons and/or address or addresses, or designate an additional person or
persons or an additional address or addresses, for its notices, but notice of a
change of address shall only be effective upon receipt. HMCE, IFA and ICF
Kaiser agree that they shall not refuse or reject delivery of any notice given
hereunder, that it will acknowledge, in writing, receipt of the same upon
request by the other party and that any notice rejected or refused by it shall
be deemed for all purposes of this Agreement to have been received by the
rejecting party on the date so refused or rejected, as conclusively established
by the records of the U.S. Postal Service or the courier service.
(c) Notice Given by Counsel. All Notices that are required or
permitted to be given under this Agreement may be given by the parties hereto or
by their respective counsel, who are hereby authorized to do so on the parties'
behalf.
Section 12.7 Press Release. HMCE and ICF Kaiser agree that before the
Closing Date they will not issue any press release, advertisement or other
public communication with respect to this Agreement or the transactions
contemplated hereby without the prior written consent of the other party hereto,
except to the extent required by law. If ICF Kaiser is required by law to issue
such a press release or other public communication before the Closing Date, at
least two Business Days before the issuance of the same it shall deliver a copy
of the proposed press release or other public communication to HMCE for its
review and approval, which approval shall not be unreasonably withheld or
delayed.
Section 12.8 Partial Invalidity. If any term or provision of this
Agreement or the application thereof to any persons or circumstances shall, to
any extent, be invalid or unenforceable, the remainder of this Agreement or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable shall not be affected
thereby, and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
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Section 12.9 Attorneys' Fees. In the event the parties shall become
engaged in any litigation or with each other in connection with or arising out
of this Agreement, the prevailing party shall be reimbursed and indemnified by
the party not prevailing in such litigation for all costs and expenses
reasonably incurred by the prevailing party in enforcing or establishing its
rights hereunder, including court costs and reasonable attorneys' fees and
disbursements. The prevailing party shall be determined by the court based upon
an assessment of which party's major arguments or positions taken in the
proceedings could fairly be said to have prevailed over the other party's major
arguments or positions on major disputed issues.
Section 12.10 Waiver of Jury Trial. Each party to this Agreement waives
trial by jury in any action, proceeding or counterclaim brought by such party
against any other party on any matter arising out of or in any way connected
with this Agreement.
Section 12.11 Time of the Essence. Except as otherwise provided in this
Agreement, time shall be of the essence with respect to each and every provision
of this Agreement.
Section 12.12 Arm's Length Transaction. Each of the parties hereto
represents and warrants to each of the other parties hereto that this Agreement
represents the result of arm's length third party negotiation by such party,
that each such party enters into this Agreement of its own accord and free will,
and that each such party has been represented in connection with the negotiation
hereof by competent legal and tax counsel of its own choice. No party hereto is
relying on any other party hereto concerning or in respect of any tax or other
treatment which may be given such party as a result of the transaction
contemplated hereby, each party hereto relying on its own professional advisors
in connection therewith.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above stated.
WITNESS: HMCE ASSOCIATES LIMITED
PARTNERSHIP, R.L.L.P.
/s/ Joel N. Simm By: /s/ David W. Evans
- ----------------------- --------------------------------------
David W. Evans, Authorized General Partner
HB LIMITED PARTNERSHIP, R.L.L.P.
By: HMCE Associates Limited
Partnership, R.L.L.P., its General
Partner
/s/ Joel N. Simm By: /s/ David W. Evans
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David W. Evans, Authorized General Partner
IFA NUTLEY PARTNERS, LLC
By: Hunters Branch Manager, Inc., its
Managing Member
/s/ Kary Hilliard
- ------------------------
By: /s/ Richard L. Perlmutter
-------------------------------------
Name: Richard L. Perlmutter
Title: Vice President
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EXHIBIT A-1
Description of 9300 Land
EXHIBIT A-2
Description of 9302 Land
EXHIBIT B
Certificate of Formation
EXHIBIT C
Form of Limited Liability Company Agreement
EXHIBIT D
Assignment and Assumption of Ground Leases
EXHIBIT E
Bill of Sale
EXHIBIT F
Assignment and Assumption of Certain Leases, Tenancies and Written Contracts
EXHIBIT G
Assignment of Licenses and Warranties and General Assignment
EXHIBIT H
Form of 9300 New ICF Space Lease
EXHIBIT I
Form of 9302 New ICF Space Lease
EXHIBIT J
Form of Option Agreement
EXHIBIT K
Form of Space Tenant Estoppel Certificate
EXHIBIT L
Form of Ground Lessor Estoppel Certificate
EXHIBIT M
Form of Lease Termination Agreement
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MODIFICATIONS TO CONTRACT DE-AC34-95RF00825 EXHIBIT 10(k)(3)
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<S> <C> <C>
03/20/97 A047 1. Article B.3, Obligation of Funds as Follows:
Funds Obligated to date $1,218,671,241.09
Funds Obligated by Mod A047 $ 4,200,000.00
Funds Obligated since inception of contract $1,222,871,241.09
05/06/97 M048 1. Section J, Attachment H, Performance Based Incentive Fee Rating Plans:
----------------------------------------------------------------------
Revised FY96 Rating Plan contained in this modification.
2. Section J, Attachment I, Performance Breakdown Structure Matrix for FY96.
-------------------------------------------------------------------------
Revised Section J, Attachment I, Performance Breakdown Structure for FY96
contained in this modification.
03/27/97 A049 1. Article B.3, Obligation of Funds as Follows:
Funds Obligated to date $1,222,871,241.09
Funds Obligated by Mod A049 $ 425,290.96
Funds Obligated since inception of contract $1,223,296,532.05
04/04/97 M050 1. Section H, Clause H.3, Technical Direction: Contracting Officers
-------------------------------------------
Representative (COR) designation changes.
06/24/97 M051 1. Clause H.30, Master Activity List Authorization Agreement is deleted in its
---------------------------------------------------------
entirety and replaced because of the introduction of other authorization
agreements in Clause H.31.
2. Clause H.31, Authorization Agreements is added (see Mod M051)
-------------------------------------
3. Section J, List of Attachments (Page J - 1) is deleted in its entirety and
------------------------------
replaced with a revised page J - 1, List of Attachments. This modification
recognizes a title change to Attachment B.
06/24/97 M051 4. Section J, Attachment B, Authorization Agreements (page AB - 1_ is deleted
-------------------------------------------------
(Cont.) in its entirety and replaced with a revised Attachment B, Authorization
Agreements contained in this modification.
06/20/97 M052 1. Clause B.2, Estimated Cost and Fee, is deleted in its entirety and replaced.
-----------------------------------
See details in Mod M052.
2. Section J, Attachment H, Performance Based Incentive Fee Rating Plans for FY97,
-------------------------------------------------------------------------------
which were added to this Contract in Mod M037, are revised (see Enclosure #1 in
Mod M052).
3. Section J, Attachment I, Performance Breakdown Structure for FY97 is deleted in
-----------------------------------------------------------------
its entirety and replaced with an updated Section J, Attachment I - Performance
Breakdown Structure Matrix, K-H Performance Objectives, Goals, and Measures for
FY97. The update reflects the changes to certain existing Performance Measures
and the addition of certain additional SuperStretch Performance Objectives, Goals,
and Measures, the numbers of which are identified in Item #2 above (see Enclosure #2
in Mod M052).
06/24/97 M053 The Key Personnel listing within Section J, Attachment G, Key Personnel is deleted in
--------------------------------------
its entirety and replaced.
04/29/97 A054 1. Article B.3, Obligation of Funds as Follows:
</TABLE>
<PAGE>
MODIFICATIONS TO CONTRACT DE-AC34-95RF00825 EXHIBIT 10(k)(3)
<TABLE>
<CAPTION>
DATE MOD CHANGES
- ---- --- -------
<S> <C> <C>
Funds Obligated to date $1,223,296.532.05
Funds Obligated by Mod A054 $ 28,013,868.55
Funds Obligated since inception of contract $1,251,310,400.60
07/02/97 M055 B.7 Estimated Cost and Fixed Fee
--------------------------------
The Contractor will provide support to EG&G Rocky Flats, Inc. as described in the
Tri-party Agreement between DOE RFFO, K-H, and EG&G and the Statement of Work. The
estimated Cost and Fixed fee is as follows:
Estimated Cost Fixed Fee
-------------- ---------
7/1/95 - 9/30/96 $673,440 $26,560
10/1/96 - 9/30/97 $256,745 $ 8,500
B.8 Directed Work
------------------
DOE RFFO may issue work authorizations to the Contractor which are not part of its
baseline activities. Support requested will generally be infrastructure for DOE
facilities and operations (telecommunications, building maintenance, utilities,
07/02/97 M055 personnel relocations, information resources, property management, etc.) or other
(Cont.) support activities where economics of scale indicate significant cost savings to the
government by combining support for DOE staff with general site support. The estimated
Cost and Fixed Fee for DOE directed work not anticipated at cost/fee negotiations and
not applicable to contract clause H.12(f) is as follows:
Estimated Cost Fixed Fee
-------------- ---------
10/1/95 - 9/30/96 $6,039,333 $210,000
05/28/97 A056 1. Article B.3, Obligation of Funds as Follows:
Funds Obligated to date $1,251,310,400.60
Funds Obligated by Mod A056 $ 11,953,430,97
Funds Obligated since inception of contract $1,263,263,831.57
10/20/97 M057 1. Section H, Table of Contents (pages H-1&2), is deleted in its entirety and replaced
-------------------------------------------
(Enclosure #1 in Mod M057) with revised pages H-1&2, Table of Contents. This change
recognized the title added for Clause H.31 in Mod M051. Page H-1 has been republished
without change.
2. Section H, Clause H.3, Technical Direction. In Subparagraph (b), the Contracting
-------------------------------------------
Officer's Rep (COR) designation to Roger A. Butler is hereby deleted. A COR
designation to Gerald A. Duffy is hereby added to subparagraph (b).
Subparagraph (b) is further revised by deleting the word "Deputy" from the position
title in the COR designation to Mike Weis, thereby revising his position title to read
"Assistant Manager for Performance Assessment."
3. Section I, Table of Contents. Pages I-3, I-4, I-7 and I-8 are deleted in their entirety
-----------------------------
and replaced with updated pages. Page I-3 corrects the title on Clause I.33 to agree with
the title shown on the Clause itself within Section I. Page I-7 recognizes Clause I.107
added in Mod M061. Pages I-4 and I-8 are republished without change.
09/17/97 M058 1. Section J, Attachment F: The List of DOE Directives is deleted in
------------------------
</TABLE>
<PAGE>
MODIFICATIONS TO CONTRACT DE-AC34-95RF00825 EXHIBIT 10(k)(3)
<TABLE>
<CAPTION>
DATE MOD CHANGES
- ---- --- -------
<S> <C> <C>
its entirety and replaced.
2. Section J, Attachment C, Item #20: Item #20 of the Reference Documents is deleted in its
----------------------------------
entirety and updated.
07/15/97 M059 1. Clause B.2, Estimated Cost and Fee, is deleted in its entirety and replaced.
-----------------------------------
2. Section J, Attachment H, Performance Based Incentive Fee Rating Plans, for FY97: The
--------------------------------------------------------------------------------
FY97 contents of Section J, Attachment H are revised.
06/26/97 A060 1. Article B.3, Obligation of Funds as Follows:
Funds Obligated to date $1,263,263,831.57
Funds Obligated by Mod A056 $ 680,798.75
Funds Obligated since inception of contract $1,263,944,630.32
08/27/97 A061 This modification is to add clause I.107 for Subcontracts for Commercial Items and
Commercial Components
07/30/97 A062 1. Article B.3, Obligation of Funds as Follows:
Funds Obligated to date $1,263,944,630.32
Funds Obligated by Mod A062 $ 11,252,879.21
Funds Obligated since inception of contract $1,275,197,509.53
01/25/98 A063 1. Clause B.6, Payment of Base Fee and Performance Based Incentive Fee, is amended by
--------------------------------------------------------------------
revising the title of paragraph (e) from "Loss of Incentive Fee" to "Loss of Incentive
Fee for Contractor Actions."
2. Clause B.6, Payment of Base Fee and Performance Based Incentive Fee, is further amended
--------------------------------------------------------------------
by adding new paragraphs (f) and (g) contained in this modification.
3. Clause H.21, Environmental, Safety and Health (Government Owned or Leased) is amended by
--------------------------------------------------------------------------
the addition of paragraphs (f) through (m) contained in this modification.
09/24/97 A064 1. Clause B.2, Estimated Cost and Fee, is deleted in its entirety and replaced.
-----------------------------------
2. Section J, Attachment H, Performance Based Incentive Fee Rating Plans, for FY97: The
--------------------------------------------------------------------------------
FY97 contents of Section J, Attachment H are hereby revised (See Enclosure #1 contained
in this modification). Rating Plans numbered 97-C4.35R, 97-C4.36R, 97-C4.37R, 97-C5.01R,
and 97-S7.01R are added to Contract. Also included in Enclosure #1 is an updated "List
of FY97 Rating Plans" which recognizes the above changes.
3. Section J, Attachment I, Performance Breakdown Structure, for FY97: This Attachment is
-------------------------------------------------------------------
deleted in its entirety and replaced with an updated Section J, Attachment I -Performance
Breakdown Structure Matrix, RFETS Performance Objectives, Goals, and Measures for FY97.
See Enclosure #2 contained in this modification. The update reflects the addition of the
five new Performance Measures identified above.
08/07/97 A065 1. Article B.3, Obligation of Funds as Follows:
</TABLE>
<PAGE>
MODIFICATIONS TO CONTRACT DE-AC34-95RF00825 EXHIBIT 10(k)(3)
<TABLE>
<CAPTION>
DATE MOD CHANGES
- ---- --- -------
<S> <C> <C>
Funds Obligated to date $1,275,197,509.53
Funds Obligated by Mod A065 $ 374,086.66
Funds Obligated since inception of contract $1,275,571,596.19
08/21/97 A066 1. Article B.3, Obligation of Funds as Follows:
Funds Obligated to date $1,275,571,596.19
Funds Obligated by Mod A066 $ 500,000.00
Funds Obligated since inception of contract $1,276,071,596.19
09/02/97 A067 1. Article B.3, Obligation of Funds as Follows:
Funds Obligated to date $1,276,071,596.19
Funds Obligated by Mod A067 $ -394,862.06
Funds Obligated since inception of contract $1,275,676,734.13
09/29/97 M068 1. Section J, Attachment B, Authorization Agreements (page AB-1) is deleted in its entirety
-------------------------------------------------------------
and replaced with a revised title page (Enclosure #1 contained in this modification) which
reflects one revised and three new Authorization Agreements.
2. Section J, Attachment B, is updated to include copies of a revised and three additional
------------------------
authorization agreements (Enclosure #2 contained in this modification) that have been
fully executed and incorporated into this Contract by reference, in accordance with
Clause H.31.
3. Correction to Section I, Clause I.107, Modification M061(a) on the Standard Form 30,
-------------------------------------
Item 14, incorrectly made reference to "Attached Pages" rather than to a one-page
attachment (b) inadvertently included, in the distribution of the executed modification,
17 pages of background information that was not intended to be part of the Contract
and should be removed from the Contract, and (d) contained errors and omissions in the
text of Clause I.10. The corrected version of Clause I.107 in its entirety is contained
in Modification M068.
10/28/97 M069 1. Section J, Attachment F: This List of DOE Directives is deleted in its entirety and
------------------------
replaced with the listing in Enclosure #1 contained in this Modification. Enclosure #1
reflects the addition of 7 new directives and the deletion of certain existing
directives. A copy of each added DOE Directive is provided in Enclosure #2 contained
in this Modification.
09/29/97 A070 1. Article B.3, Obligation of Funds as Follows:
Funds Obligated to date $1,275,676,734.13
Funds Obligated by Mod A070 $ 1,622,438.04
Funds Obligated since inception of contract $1,277,299,172.17
09/30/97 A071 1. Article B.3, Obligation of Funds as Follows:
Funds Obligated to date $1,277,299,172.17
Funds Obligated by Mod A071 $ 1,669,788.24
Funds Obligated since inception of contract $1,278,968,960.41
Mod 72 has not been received
</TABLE>
<PAGE>
MODIFICATIONS TO CONTRACT DE-AC34-95RF00825 EXHIBIT 10(k)(3)
<TABLE>
<CAPTION>
DATE MOD CHANGES
- ---- --- -------
<S> <C> <C>
12/4/97 M073 1. Section J, Attachment F: The List of DOE Directives is deleted in its entirety and
------------------------
replaced with the listing in Enclosure #1 contained in this Modification.
A copy of each added DOE is provided in Enclosure #2 contained in this Modification.
10/27/97 A074 1. Article B.3, Obligation of Funds as Follows:
Funds Obligated to date $1,278,968,960.41
Funds Obligated by Mod A074 $ 123,525,369.00
Funds Obligated since inception of contract $1,402,494,329.41
11/15/97 A075 1. Article B.3, Obligation of Funds as Follows:
Funds Obligated to date $1,402,494,329.41
Funds Obligated by Mod A075 $ 542,071.46
Funds Obligated since inception of contract $1,403,036,400.87
11/28/97 A076 1. Article B.3, Obligation of Funds as Follows:
Funds Obligated to date $1,403,036,400.87
Funds Obligated by Mod A076 $ 474,012,060.07
Funds Obligated since inception of contract $1,877,048,460.94
12/24/97 A077 1. Article B.3, Obligation of Funds as Follows:
Funds Obligated to date $1,877,048,460.94
Funds Obligated by Mod A077 $ -534,912.79
Funds Obligated since inception of contract $1,876,513,548.15
Mod 78 has not been received
3/13/98 M079 Section J, Attachment F: The List of DOE Directives is deleted in its entirety and replaced
------------------------
with the listing in Enclosure #1 contained in this Modification.
1/28/98 A080 1. Article B.3, Obligation of Funds as Follows:
Funds Obligated to date $1,876,513,548.15
Funds Obligated by Mod A080 $ 2,248,704.68
Funds Obligated since inception of contract $1,878,762,252.83
02/26/98 A081 1. Article B.3, Obligation of Funds as Follows:
Funds Obligated to date $1,878,762,252.83
Funds Obligated by Mod A081 $ -2,790,973.21
Funds Obligated since inception of contract $1,875,971,279.62
</TABLE>
<PAGE>
Exhibit 10(bb)
ANNUAL INCENTIVE COMPENSATION (IC) PLAN FOR SENIOR EXECUTIVES
-------------------------------------------------------------
I. Eligibility
EDWARDS, his direct reports (Campbell, Gaffney, Goldman, Tipermas), and the
three group presidents (Grumbly, Kesavan, Watson).
II. Payment
Awards will be paid partially in cash and partially in restricted stock that
vests over three years.
III. Calculation of Pools
Edwards and the four direct reports are paid solely from the "Corporate Pool".
The three group presidents are paid from the "Corporate Pool" and from their
"Group Pool," as shown below. Discretionary bonuses outside of this plan may be
granted to any of these individuals for meritorious performance.
IV. Determination of Corporate Pool
The size of the Corporate Pool is determined solely by the earnings-per-share
performance of ICF Kaiser International, as follows:
$80,000 plus 24,000 restricted shares for each $.01 EPS over $.10 EPS and below
$.20 EPS; $120,000 plus 36,000 restricted shares for each $.01 EPS over $.20
EPS. For example:
1998 EPS Cash Restricted Shares
-------- ---- -----------------
$0.10 $ 0 0
$0.15 $ 400,000 120,000
$0.20 $ 800,000 240,000
$0.25 $1,400,000 420,000
The final accounting for EPS may be adjusted by the Compensation and Human
Resources Committee, after discussion with the CEO, for any one-time voluntary
capital transaction, either positive or negative.
(Note: The EPS numbers must be net of the cash and restricted stock issued under
this plan. This means, for example, that, to yield an EPS of $.20, we would have
to earn approximately $0.26 before the target payment of $0.8 million of cash
under this plan, 240,000 shares of restricted stock [at an assumed $2.00 per
share] to be paid under this plan, and the 300,000 shares of restricted stock to
be paid under the LTI Plan.)
<PAGE>
Exhibit 10(ee)
ICF KAISER INTERNATIONAL, INC.
SENIOR EXECUTIVE OFFICERS SEVERANCE PLAN (SEOSP)
OBJECTIVE
- ---------
To provide compensation for select Senior Executives of ICF Kaiser
International, Inc. (ICF Kaiser or the Company) for the loss of their jobs.
PARTICIPANTS
- ------------
Participants in the SEOSP shall include the following positions in ICF
Kaiser:
. Chief Executive Officer
. President
. Chief Operating Officer
. Chief Financial Officer
. Executive Vice President, Corporate Development
. President, Consulting Group
. President, Federal Programs Group
. President, Engineers & Constructors Group
. Treasurer
. General Counsel
. Any officer as designated by the Compensation Committee of the Board
of Directors
Having once become a participant in the SEOSP unless such participant
provides express written consent waiving participation in the SEOSP, such
participant shall continue to be eligible to receive the benefits provided by
this SEOSP throughout such participant's employment with ICF Kaiser or its
affiliates.
ELIGIBILITY
- -----------
A participant is eligible to receive severance payments if ICF Kaiser
terminates participant's employment without "cause" or the participant elects to
terminate employment for "good reason".
For purposes of this policy, "good reason" and "cause" are defined as
follows:
. Good Reason --
(i) without participant's express written consent, the offices,
duties, responsibilities, compensation or benefits of the participant are
substantially reduced (except in connection with the termination of employment
voluntarily by the participant, by the Company for "cause," or in the case of
disability or death);
(ii) without the participant's express written consent the Company's
principal executive offices shall have been relocated outside the Washington, DC
metropolitan area, or the participant shall be based anywhere other than the
Washington, DC metropolitan area or other office location designated in the
participant's employment agreement (except for required travel on the Company's
business to an extent substantially consistent with participant's present
business obligations); or
(iii) the individuals who were directors of the Company at the
beginning of any immediately preceding 12 consecutive month period cease
for any reason to constitute a majority of the Board of Directors of the
Company or of the ultimate parent (if any) of the Company. For purposes of
this provision, a person elected, or nominated for election, as a director
by a vote of at least 2/3 of the then existing directors shall be deemed to
be a "director of the Company at the beginning of any immediately preceding
12 consecutive month period."
<PAGE>
. Cause --
(i) the continued, willful and deliberate failure of the
participant to perform participant's duties in a manner substantially
consistent with the manner prescribed by the Board of Directors or the
Chief Executive Officer of the Company consistent with law and
professional ethics (other than any such failure resulting from
participant's incapacity due to physical or mental illness);
(ii) the engaging by the participant in misconduct materially,
directly and demonstrably injurious to the Company; or
(iii) the conviction of the participant of commission of a felony,
whether or not such felony was committed in connection with the
Company's business.
(iv) In no event shall the failure to achieve profit or other
financial goals or alleged incompetence on the participant's part be
deemed to constitute "cause" so long as such failure or incompetence
does not result from the participant's failure to perform duties in
good faith.
SEVERANCE BENEFITS
- ------------------
Severance benefits will be computed in accordance with the following
schedule:
Length of Employment Number of Months of Average Salary
-------------------- ----------------------------------
. 0 - 6 years 6 months
. 7 + years 1 month for each year of service
Length of Employment shall be calculated in terms of completed years of
continuous employment from the participant's date of hire. A fractional year of
service in excess of 6 months shall count as a full year.
Average Salary shall be the participant's average monthly gross salary
(excluding all bonus) for the six months prior to termination of employment.
---------
Deductions will be made by ICF Kaiser of such amounts as may be required
to be withheld by applicable law and regulations.
SEOSP BENEFIT TO BE MINIMUM BENEFIT
- -----------------------------------
The severance benefit provided to a participant under this SEOSP is
intended to set a minimum severance benefit for the participant. On the one
hand, if a participant is entitled to a greater severance benefit in accordance
with the terms of another plan, contract or arrangement with ICF Kaiser or its
affiliates, the provisions of such plan, contract or arrangement shall prevail
and no severance benefit shall be paid pursuant to this SEOSP. On the other
hand, if a participant is entitled to the same or a lesser severance benefit in
accordance with the terms or another plan, contract or arrangement with ICF
Kaiser or its affiliates, additional severance payments shall be made by ICF
Kaiser pursuant to the SEOSP only to the extent required to make the
participant's aggregate severance benefits from ICF Kaiser and its affiliates
equal to those provided by the SEOSP. SEOSP participants shall not participate
in the severance pay plan set forth in the ICF
MUTUAL RELEASES
- ---------------
As a condition to a participant's receiving benefits under the SEOSP,
the participant and the Company shall exchange mutual general releases,
provided, however, that the obligations of the Company set forth in its
Certificate of Incorporation, By-laws or other document, to indemnify the
participant shall continue.
REPORTS TO THE COMPENSATION COMMITTEE
- -------------------------------------
The Company shall submit to the Compensation Committee, at least
semiannually, a report listing the participants in the SEOSP by name with their
then current severance benefit under the SEOSP in months and dollars.
<PAGE>
PAYMENT OF SEVERANCE BENEFITS
- -----------------------------
Severance benefits will be paid either: (i) in two installments, the first
of which shall be paid within five business days of the effective date of the
termination and be calculated by multiplying the total benefit due under this
plan by x-twelfths (x/12), where x equals the number of full months from date of
termination of employment to the end of the calendar year that includes the date
of termination of employment to the end of the calendar year that includes the
date of termination of employment; and the second of which shall be paid on
January 1, of the next calendar year and be the balance of the total benefit
due; or (ii) if so requested in writing by the participant and approved by the
Compensation Committee in its sole discretion, the total severance benefit shall
be paid to the participant in a lump sum within five days of the date of
termination. Severance payments will not be considered time worked for the
purposes of extension of other benefit coverage or continuous employment.
Severance pay will not be considered compensation for purposes of Retirement or
Section 401(k) Plans, and will not increase Years of Service for such Plans
purposes.
EFFECTIVE DATE April 4, 1994.
- --------------
As amended May 1, 1997
<PAGE>
Exhibit 10(kk)
[ICF Kaiser Letterhead]
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement"), effective as of January 1, 1997, by and
among ICF Kaiser International, Inc. ("Company"), a Delaware corporation and
Michael Gaffney, ("Executive"), a resident of Virginia.
WHEREAS, the Company desires to retain the services of Executive as Senior
Vice President, and Executive desires to serve in that capacity-, and
WHEREAS, the Company will benefit from the Executive's services in that role,
NOW THEREFORE, in consideration of the mutual covenants and agreements herein,
the parties hereby agree as follows:
1. Employment Period: Duties.
(a) Employment and Employment Period. The Company shall employ the
Executive to serve as Senior Vice President for a period of three years
commencing January 1, 1997 (the "Employment Period:).
(b) Duties and Responsibilities. The Executive shall have wide
responsibilities for Business Development for ICF Kaiser International, Inc. in
the engineering and construction area. The Executive will be a member of the
Management Group.
2. Compensation and Fringe Benefits.
(a) Base Compensation. For the 15 month period from January 1, 1997
through March 31, 1998, the Company shall pay Executive a base salary at a rate
of $230,000 per year in accordance with the Company's regular practice for
compensating senior management personnel. The Company shall pay Executive a base
salary at a rate of $250,000 per year from April 1, 1998 through March 31, 1999
and $275,000 from April 1, 1999 through March 31, 2000.
(b) Bonus Compensation. Executive will be eligible to receive an annual
bonus of up to 50% of his annual base compensation. Bonus will be determined as
follows:
60% based on sales targets, 20% based on ICF Kaiser Engineering and
Construction Group revenue and profit targets, and 20% on other qualitative
factors.
Bonuses are granted only to the extent the firm has generated sufficient profits
and only to those officers whose performance throughout the year is exemplary.
Bonus awards may be comprised of cash, stock options, or restricted stock. It
is corporate policy to make bonus payments only to eligible staff who are
employed by ICF Kaiser when bonuses are distributed.
(c) Fringe Benefits. The Executive shall be entitled to such fringe
benefits as are generally made available by the Company to senior management
personnel. Such benefits shall include participation in the Company's defined
contribution retirement plan, Section 401 (k) plan, and health, term life and
disability insurance programs. The Executive also will be reimbursed for
reasonable expenses incurred in connection with travel and entertainment related
to the Company's business and affairs which will be paid by the Company in a
manner, consistent with past practice and as amended by any subsequent changes
of Company Policy.
<PAGE>
[ICF Kaiser Letterhead]
3. Termination.
In the event the Company elects to terminate this Agreement without "cause"
the Company shall pay to the Executive a severance payment of $175,000. Cause
is defined as (i) the continued, willful and deliberate failure of the
participant to perform participant's duties in a manner substantially consistent
with the manner prescribed by the Board of Directors or the Chief Executive
Officer of the Company consistent with law, and professional ethics (other than
any such failure resulting from participant's incapacity due to physical or
mental illness) (ii) the engaging by the participant in misconduct materially,
directly and demonstrably injurious to the Company, or (iii) the conviction of
the participant of commission of a felony, whether or not such felony was
committed in connection with the Company's business. (iv) In no event shall the
failure to achieve profit or other financial goals or alleged incompetence on
the participant's part be deemed to constitute "cause" so long as such failure
or incompetence does not result from the participant's failure to perform duties
in good faith.
4. Non-Competition
The Executive will not engage or participate directly or indirectly as
principal, agent, employee, employer, consultant, stock holder, partner, or in
any other individual capacity whatsoever, in the conduct or management of, or
own any stock or any other equity investment in or debt of any business which is
competitive with any business conducted by the Company through the earlier of
the end of the Employment Period or six months following termination of the
Executive's employment by the Company.
5. Assignability
The Company's rights and obligations under this Agreement shall be
assignable by the Company as incident to the transfer, by merger or otherwise,
of all or substantially all of the business of the Company. In the event of any
such assignment by the Company, all rights and obligations of the Company
hereunder shall inure to the benefit of the assignee.
Executive
Michael Gaffney
ICF Kaiser International, Inc,
Marc Tipermas
Executive Vice President
2
<PAGE>
Exhibit 10(ll)
ICF KAISER INTERNATIONAL, INC.
9300 Lee Highway
Fairfax, Virginia 22031-2107
March 13, 1998
Jarrod M. Cohen
Cowen Incorporated
Financial Square
New York, NY 10005-3597
Dear Jarrod:
The purpose of this letter is to set forth the agreements we have reached
as a result of recent discussions. It will become effective on the date of your
execution of this letter (the "Effective Date").
As promptly as practicable after receipt of your written request at any
time between July 1, 1998 and December 31, 1998, the Board of Directors of ICF
Kaiser International, Inc. (the "Company") will take all steps necessary to
create, and elect you to fill, a vacancy in the class of 2000 on the Board of
Directors of the Company. As you know, the Board has been on record since early
1997 as to its intent to add several other outside directors to reach a total
size of twelve, with three management directors and nine outsiders. Consistent
with that intent, the Board has proposed to nominate Michael E. Tennenbaum for
election to the Company's Board of Directors at the 1998 annual meeting on the
terms outlined in the attachment.
For your part, you, Cowen & Company, Cowen Incorporated and Joseph M. Cohen
(the "Cohen Parties") agree as follows:
(a) You will not consent (and will withdraw any previously granted
consent) to be a nominee for election to the Company's Board of Directors at the
1998 annual meting of the Company's shareholders.
(b) At the Company's 1998 annual meeting of shareholders the Cohen Parties
will vote in favor of the nominees for election as directors proposed by the
Company's Board of Directors.
(c) During the period commencing on the Effective Date and ending on the
later of (x) December 31, 1998 or (y) if you elect to become a member of the
Board of Directors prior to December 31, 1998, the date you or any other
designee of the Cohen Parties ceases to be a member of the Board of Directors,
the Cohen Parties shall not, without the express written consent of a majority
of the directors of the Company other than the Cohen Parties or their designees:
(i) subject any of the Company's voting securities to a voting trust
or voting agreement;
(ii) solicit proxies or become a "participant" in a "solicitation"
(as such terms are defined in Regulation 14A under the Securities Exchange Act
of 1934, as amended (the "Exchange Act")), in opposition to any recommendation
of the Board of Directors of the
<PAGE>
Jarrod M. Cohen
March 13, 1998
Page 2
Company;
(iii) join a partnership, limited partnership, syndicate or other
group, or otherwise act in concert with any other person, for the purpose of
acquiring holding, voting or disposing of voting securities of the Company, or
otherwise become a "person" within the meaning of Section 13(d)(3) of the
Exchange Act (in each case other than solely with another Cohen Party);
(iv) become, alone or in conjunction with others, an "Acquiring
Person" as defined in the Company's Shareholder Rights Plan as adopted January
13, 1992; or
(v) dispose of any voting securities of the Company to any person
who, to the knowledge of the Cohen Parties, as a result of acquiring such voting
securities would become an "Acquiring Person" as defined in the Company's
Shareholder Rights Plan as adopted January 13, 1992.
(d) Each of the Cohen Parties shall be present, in person or by proxy, and
without further action hereby agree that they shall be deemed (to the extent
permitted by law) to be present, at all meetings of the stockholders of the
Company with respect to which the Cohen Parties receives notice so that all
voting securities of the Company owned by any of them may be counted for the
purpose of determining the presence of a quorum at such meetings.
(e) For purposes of this letter (x) "Affiliate" shall have the same meaning
as Affiliate under Rule 12b-2 under the Exchange Act, and (y) "Beneficial Owner"
shall have the same meaning as "Beneficial Owner" under Rule 13d-3 under the
Exchange Act, and "Beneficial Ownership" shall have a correlative meaning.
If the foregoing accurately summarizes our agreement, please sign where
indicated below.
Very truly yours,
ICF KAISER INTERNATIONAL, INC.
COWEN & COMPANY
COWEN INCORPORATED
Joseph M. Cohen
Jarrod M. Cohen
<PAGE>
Exhibit 10(mm)
ICF KAISER INTERNATIONAL, INC.
NON-EMPLOYEE DIRECTORS COMPENSATION AND PHANTOM STOCK PLAN
ADOPTED BY THE BOARD OF DIRECTORS ON FEBRUARY 28, 1997,
WITH AN EFFECTIVE DATE OF MARCH 1, 1997
1. PURPOSE. The purpose of the ICF Kaiser International, Inc. Non-employee
Directors Compensation and Phantom Stock Plan (the "Plan") is to advance the
interests of ICF Kaiser International, Inc. (the "Corporation") and its
shareholders by adequately compensating non-employee directors for the time
spent on the Corporation's matters and by encouraging increased equity
participation by members of the Board of Directors (the "Board") of the
Corporation who are not employees of the Corporation or any of its subsidiaries.
The Plan does this by enhancing the Corporation's ability to attract and retain
the services of experienced, able, and knowledgeable persons to serve as
directors and by providing additional incentive for such directors to make a
maximum contribution to the Corporation's success through continuing and
increased equity participation in the Corporation.
2. ADMINISTRATION. The Plan shall be administered by the Board. In addition
to its duties with respect to the Plan stated elsewhere in the Plan, the Board
shall have full authority, consistent with the Plan, to interpret the Plan, to
promulgate such rules and regulations with respect to the Plan as it deems
desirable, and to make all other determinations necessary or desirable for the
administration of the Plan. All decisions, determinations, and interpretations
of the Board shall be binding upon all persons.
3. ELIGIBILITY. All members of the Board who are not employees of the
Corporation or any of its subsidiaries (the "Non-employee Directors").
4. ANNUAL RETAINER. Each Non-employee Director shall be paid an annual cash
retainer in the amount of $20,000, payable quarterly in advance. A Non-employee
Director elected during a quarter shall be paid a $5,000 retainer upon his or
her election, and thereafter shall be paid his or her annual retainer quarterly
in advance.
5. PAYMENT FOR ATTENDANCE AT MEETINGS. Each Non-employee Director shall be
paid in cash $1,000 for each meeting of the Board of Directors or any Committee
of the Board of Directors that the Non-employee Director was entitled to and did
attend. Such payments shall be made quarterly in arrears for all meetings
attended during the immediately preceding quarter.
6. GRANT OF A PHANTOM STOCK AWARD. Each Non-employee Director shall be granted
a Phantom Stock Award ("PSA") at the annual meeting of the Board of Directors.
The stock to which the PSAs shall relate shall be shares of Common Stock, $0.01
par value, of the Corporation (the "Common Stock"). The PSA granted under the
Plan each year to each Non-employee Director shall equal $20,000 worth of shares
of Common Stock, determined in accordance with the provisions of Section 7.
Fractional PSAs shall not be granted; at the time of grant, the PSA shall be
rounded up to the next whole share of Common Stock to which the PSA relates.
7. TERMS OF PHANTOM STOCK AWARD.
a. DURATION OF PSA. The duration of the PSAs shall be three (3) years
from the date of grant.
b. EXERCISE OF PSA. Each PSA represents the right of the grantee thereof
to receive a cash amount equal to the fair market value on the date of exercise
of the total number of shares of Common Stock to which the PSA relates. Subject
to the provisions of Section 9 and without any further action by the grantee, a
PSA will be automatically exercised in full on behalf of any current or former
Non-employee Director on the date that is thirty-six (36) months following the
date of grant.
c. VALUE OF COMMON STOCK TO WHICH THE PSA RELATES. The fair market value
of the shares of Common Stock to which the PSA relates on any date shall be the
average of the closing price of a share of Common Stock on each of twenty (20)
consecutive trading days on the New York Stock Exchange (NYSE), with the
twentieth (20th) day being the last trading date immediately prior to the date
of grant of the PSA or the exercise date of the PSA, as the case may be. The
Corporation shall determine the closing price of a share of Common Stock by
using its stock transfer agent's NYSE data listing service. If such service
becomes unavailable, the Corporation shall determine the closing price of a
share of Common Stock by reference to the reports of the New York Stock
<PAGE>
NON-employee Directors Compensation and Phantom Stock Plan Page 2
Exchange Composite Transactions Listings. If no sales of Common Stock take place
on any of the twenty (20) consecutive days, then the closing price of the Common
Stock on the immediately preceding day shall be used for the non-trading day's
closing price.
d. PAYMENT UPON EXERCISE OF PSA. The Corporation shall pay the amount due
and owing to each Non-employee Director in cash promptly following the exercise
of the PSA.
8. WITHHOLDING. The Corporation shall, to the extent permitted by law, have
the right to deduct from any payment of any kind otherwise due to the Non-
employee Director under the Plan the amount of any taxes required by law to be
withheld with respect to the annual retainers, meeting payments, PSAs, and any
other compensation paid under the Plan.
9. EFFECT OF DEATH ON THE PSA. Notwithstanding the provisions of Section 7,
upon the death of the grantee prior to the exercise date of the PSAs, all PSAs
held by such deceased Non-employee Director shall be automatically exercised in
full, with the exercise date being the last trading day of the month in which
the Non-employee Director died. The Corporation shall make any payment due upon
such exercise to such Non-employee Director's legal representative.
10. NONTRANSFERABILITY OF PSAS. Subject to the provisions of Section 9, The
Non-employee Director shall not sell, transfer, assign, give, place in trust, or
otherwise dispose of or pledge, grant a security interest in, or otherwise
encumber his or her rights under the PSA granted pursuant to the Plan, and any
purported sale, transfer, pledge, or other disposition or encumbrance shall be
null and void. PSAs shall be exercisable only by the Corporation on behalf of
the Non-employee Director grantee, and the Corporation shall have no obligation
whatsoever to recognize a PSA transfer to any other person or to make any
payment due upon a PSA's exercise to any person other than the grantee.
11. NO RIGHTS AS A SHAREHOLDER. A Non-employee Director (or his or her legal
representative pursuant to the provisions of Section 9) shall have no rights as
a shareholder of the Corporation, and shall have no voting rights of any kind,
with respect to any shares of Common Stock to which the PSA relates.
12. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. If there is a change in the
number or kind of outstanding shares of Common Stock by reason of a stock
dividend, stock split, recapitalization, merger, consolidation, combination, or
other similar event, or if there is a distribution to the Corporation's Common
Stock shareholders other than a cash dividend, appropriate adjustments shall be
made by the Board to the number of shares of Common Stock to which the PSAs
relate, to the extent that the Board, in its sole discretion, determines that
such change makes such adjustment necessary or equitable.
13. LAWS AND REGULATIONS. The Plan and all of the Corporation's obligations
under the Plan shall be subject to all applicable laws, rules, and regulations.
14. AMENDMENT, CONSTRUCTION, AND TERMINATION OF THE PLAN. The Board may at any
time or times amend the Plan for the purpose of satisfying the requirements of
any changes in applicable laws, rules, or regulations or for any other purpose
which at the time may be permitted by law. Terms of the Plan will be construed
by the Board of Directors, and all determinations of the Board will be final and
binding on the Non-employee Directors. The Board may terminate the Plan at any
time with respect to prospective compensation payments and future PSA grants.
15. EFFECTIVE DATE. The effective date of the Plan shall be March 1, 1997.
<PAGE>
Exhibit 10(nn)
ICF KAISER INTERNATIONAL, INC.
9300 Lee Highway
Fairfax, Virginia 22031-2107
March 13, 1998
Mr. Michael E. Tennenbaum
Tennenbaum & Co., L.L.C.
1999 Avenue of the Stars, Suite 1010
Los Angeles, CA 90067-6022
Dear Michael:
The purpose of this letter is to set forth the agreements we have reached
as a result of discussions over the past several days. It will become effective
on the date of your execution of this letter (the "Effective Date").
The Board of Directors of ICF Kaiser International, Inc. (the "Company")
will nominate, recommend and solicit proxies for your election as a director,
for a three-year term, at the 1998 annual meeting of shareholders.
Also, the Board of Directors has acted to unconditionally and irrevocably
offer Jarrod Cohen the opportunity to join the Board at his written request at
any time between July 1, 1998 and December 31, 1998 for a term extending to the
annual meeting of shareholders in 2000, and until his successor is elected.
For your part, you and Tennenbaum & Co., L.L.C. (the "Tennenbaum Parties")
agree as follows:
(a) During the period commencing on the Effective Date and ending on the
earlier of (i) five years after the Effective Date and (ii) the day after the
date the Tennenbaum Parties and all of their Affiliates cease to be the
Beneficial Owners of any of the Company's voting securities ("Restricted
Securities"), the Tennenbaum Parties shall not, without the express written
consent of a majority of the directors of the Company not designated by the
Tennenbaum Parties pursuant to this Agreement, acquire, directly or indirectly,
any voting securities of the Company if, following such acquisition, such
Tennenbaum Parties, together with their Affiliates, would directly or indirectly
be the Beneficial Owners of voting securities of the Company representing in the
aggregate more than 19.5% of the total combined voting power of all issued and
outstanding securities of the Company (it being understood that this provision
shall not be violated if such Tennenbaum Parties and their Affiliates become
entitled to exercise voting power in excess of such percentage as a result of
any event or circumstance other than the acquisition by such Tennenbaum Parties
or their Affiliates of Beneficial Ownership of additional voting securities of
the Company). The Company hereby agrees that it shall not take any action,
including without limitation, any amendment to its Shareholders Rights plan,
that would prevent the Tennenbaum Parties from acquiring additional securities
within the limitations set forth herein.
(b) During the period (i) between the date hereof and May 1, 1998 and (ii)
that you or another person who is an Affiliate of the Tennenbaum Parties is a
member of the Board of Directors, and for a period of 90 days thereafter, the
Tennenbaum Parties shall not, without the express written consent of a majority
of the directors of the Company not designated by the Tennenbaum Parties
pursuant to this Agreement:
(x) subject any Restricted Securities to any voting trust or voting
agreement;
<PAGE>
Mr. Michael E. Tennenbaum
March 13, 1998
Page 2
(y-1) recruit, or engage in organizing persons not nominated by the
Board of Directors to oppose the Board of Directors nominated candidates in an
election; or
(y-2) financially support (including contributing money, lending
money, furnishing credit or entering into any other arrangements or contracts
regarding financing) a proxy contest for Board of Directors candidates to oppose
the candidates nominated by the Board of Directors; or
(y-3) provide any material, non-public information gained in your
position as Director to opposing Board candidates, except as required by law,
and then only after notice to the Company.
(z) join a partnership, limited partnership, syndicate or other
group, or otherwise act in concert with any other person, for the purpose of
acquiring holding, voting or disposing of voting securities of the Company, or
otherwise become a "person" within the meaning of Section 13(d)(3) of the
Exchange Act (in each case other than solely with another Tennenbaum Party).
(c) Each of the Tennenbaum Parties shall be present, in person or by proxy,
and without further action hereby agree that they shall be deemed (to
the extent permitted by law) to be present, at all meetings of the
stockholders of the Company with respect to which the Tennenbaum
Parties receive notice so that all voting securities of the Company
owned by any of them may be counted for the purpose of determining the
presence of a quorum at such meetings.
(d) For purposes of this letter (i) "Affiliate" shall have the same meaning
as Affiliate under Rule 12b-2 under the Exchange Act, and (ii)
"Beneficial Owner" shall have the same meaning as "Beneficial Owner"
under Rule 13d-3 under the Exchange Act, and "Beneficial Ownership"
shall have a correlative meaning.
The agreements set forth in paragraphs (a)-(d) above shall terminate and be
of no further effect in the event (i) you are not elected as a director of ICF
Kaiser, as contemplated herein, on or before May 30, 1998; or (ii) Jarrod Cohen
does not become a director upon his acceptance of the offer referred to above.
The Company hereby agrees to promptly reimburse the Tennenbaum Parties for
all reasonable and necessary documented out-of-pocket expenses incurred by them
(including, but not limited to fees and disbursements of counsel) in connection
with their proposals to the Board of Directors of the Company and the potential
solicitation of proxies for the election of directors to the Company, up to a
maximum of $25,000.
If the foregoing accurately summarizes our agreement, please sign where
indicated below.
Very truly yours,
ICF KAISER INTERNATIONAL, INC.
TENNENBAUM & CO., L.L.C.
Michael E. Tennenbaum, individually
<PAGE>
Exhibit 21
ICF KAISER
9300 Lee Highway, Fairfax, Virginia 22031
ICF Kaiser International, Inc.'s ownership of the following affiliated entities
which are less than wholly owned is indicated by an ownership percentage figure
in parentheses following the name of the entity.
<TABLE>
<CAPTION>
Jurisdiction
Entity Name Of Formation
- ---------------------------------------------------------------------------------------------
<S> <C>
I. Clement International Corporation Delaware
II. Newsys Environmental Technology System (15%) Taiwan
I. Cygna Group, Inc. Delaware
II. Liability Risk Management, Inc. California
I. EDA, Incorporated Maryland
I. ICF Cannon Associates, Inc. Delaware
I. First Patriot Bankshares Corporation (20,400 Common Shares) Virginia
I. ICF Consulting Associates, Inc. Delaware
I. ICF Incorporated Delaware
II. ICF/EKO (37.5%) Russia
II. WHX Corporation (56 Common Shares) Delaware
I. ICF Information Technology, Inc. Delaware
II. Phase Linear Systems Incorporated Delaware
I. ICF Kaiser Defense Programs, Inc. Delaware
II. Kaiser-Hill TERC Company, LLC (65%) Delaware
I. ICF Kaiser Development Corporation, Inc. Delaware
II. Global Trade & Investment, Inc. Delaware
II. ICF Kaiser Coke Chemicals, LLC (25%) Delaware
I. ICF Kaiser Engineers Group, Inc. Delaware
II. Henry J. Kaiser Company Nevada
II. ICF Florida First, Inc. Delaware
II. ICF Kaiser Engineers, Inc. Ohio
III. Henry J. Kaiser Company (Canada) Ltd. Canada
III. ICF Kaiser Engineers & Builders, Inc. Delaware
III. ICF Kaiser Engineers (California) Corporation Delaware
III. ICF Kaiser Engineers Corporation New York
III. ICF Kaiser Engineers of Michigan, Inc. Michigan
III. ICF Kaiser International Planning & Design, Inc. Pennsylvania
(33 1/3%)
III. ICF Kaiser Overseas Engineering, Inc. Delaware
III. ICF Kaiser Remediation Company Delaware
III. Kaiser Engineers Australia Pty. Limited (50%) Australia
IV. High Speed Rail Engineers Pty. Ltd. (25%) Australia
IV. ICF Kaiser Aluterv Hungary
IV. Kaiser Engineers (NZ) Ltd (99%) New Zealand
III. Kaiser Engineers and Constructors, Inc. Nevada
IV. ICF Kaiser Construcoes e Empreendimentos Ltda. (99%) Brazil
IV. ICF Pty. Ltd. (50%) Australia
IV. Kaiser Engineers Limited (0.02%) U.K.
IV. Kaiser Engineers Australia Pty. Limited (50%) Australia
IV. Kaiser Engenharia de Portugal S.A. (50%) Portugal
V. ICF Kaiser Construcoes e Empreendimentos Ltda. (1%) Brazil
IV. Kaiser Engineers (NZ) Ltd (1%) New Zealand
IV. Kaiser Engineers Pty. Ltd. (50%) Australia
IV. Kaiser Ingenieria de Chile Limitada (51%) Chile
III. Kaiser Engineers International, Inc. Nevada
IV. American Transit Consultants (33 1/3) Joint Venture
V. American Transit Consultants, Inc. Delaware
IV. ICF Pty. Ltd. (50%) Australia
IV. ICF Kaiser Panama S.A. Panama
IV. Kaiser Engenharia de Portugal S.A. (50%) Portugal
IV. Kaiser Engineers Pty. Ltd. (50%) Australia
IV. Kaiser Ingenieria de Chile Limitada (49%) Chile
III. Kaiser Engineers Limited (99.98%) U.K.
IV. Kaiser Engineers Technical Services Limited (80%) Cyprus
IV. Kaiser Engineers (UK) Limited (50%) U.K.
III. Kaiser Engineers (UK) Limited (50%) U.K.
IV. Kaiser Engineers Technical Services Limited (20%) Cyprus
III. Kaiser Engenharia e Constructoes Limitada Brazil
III. KE, Inc. Philippines
III. KE Services Corporation Delaware
III. Mueller Industries, Inc. (1,589 Common Shares) Delaware
III. PCI Operating Company, Inc. Delaware
II. ICF Technology Incorporated Delaware
II. International Waste Energy Systems, Inc. Delaware
II. KE Livermore, Inc. Delaware
II. LIFAC-North America Partnership (50%) Delaware
I. ICF Kaiser Engineers Massachusetts, Inc. Delaware
I. ICF Kaiser Engineers Pacific, Inc. Nevada
II. Waimana Kaiser Enterprises (48%) Hawaii
I. ICF Kaiser Europe, Inc. Delaware
I. ICF Kaiser / Georgia Wilson, Inc. Delaware
I. ICF Kaiser Government Programs, Inc. Delaware
II. Kaiser-Hill Company, LLC (50%) Colorado
III. Kaiser-Hill Funding Company, L.L.C. (98%) Delaware
II. Kaiser-Hill Funding Company, L.L.C. (1%) Delaware
I. ICF Kaiser Hanford Company Delaware
I ICF Kaiser Holdings Unlimited, Inc. Delaware
II. American Venture Investments Incorporated Delaware
III. American Venture Holdings, Inc. Delaware
II. Cygna Consulting Engineers and Project Management, Inc. California
II. Excell Development Construction, Inc. Delaware
II. ICF Kaiser Brazil Holdings, Inc. Delaware
III. ICF Kaiser Participacoes Ltda. Brazil
II. ICF Kaiser Engineers Eastern Europe, Inc. Delaware
III. ICF Kaiser Netherlands B.V. (10%) Netherlands
II. ICF Kaiser Hunters Branch Leasing, Inc. Delaware
II. ICF Kaiser Netherlands B.V. (90%) Netherlands
II. ICF Leasing Corporation, Inc. Delaware
II. Metro Rail Transit Corp. Limited (12%) Hong Kong
II. French Environmental Holdings, LLC (49%) France
I. ICF Kaiser Servicios Ambientales, S.A. de C.V. (66 2/3%) Mexico
I. ICF Kaiser Systems, Inc. Delaware
I. ICF Resources Incorporated Delaware
II. ICF R G.P. No. 1, Inc. Delaware
III. Gary PCI Ltd. L.P. Delaware
IV. Gary Coal Processing L.P. Delaware
II. HBG Hawaii, Inc. Delaware
III. Silversword, Inc. (50%) Delaware
IV. Silversword Ltd. L.P. Delaware
II. HBG International, Inc. Delaware
III. PyroCarbons, Ltd. (50%) Virginia
II. PCI Operating Company Partnership (49%) Delaware
I. Monument Select Insurance Company Vermont
I. Systems Applications, Inc. Nevada
I. Systems Applications International, Inc. Delaware
I. The K.S. Crump Group, Inc. Delaware
I. Tudor Engineering Company Delaware
</TABLE>
Page 1 of 1 Current as of December 31, 1997
<PAGE>
EXHIBIT 23
Consent of Independent Accountants
We consent to the incorporation by reference in the registration statements of
ICF Kaiser International, Inc. (the Company) on Forms S-8 [Registration Nos. 33-
42677 (Non-employee Directors Stock Option Plan), 33-42678 (Stock Incentive
Plan), 33-51460 (Section 401(k) Plan), 33-60663 (Retirement Plan), 33-60661 and
33-65351 (Employee Stock Ownership Plan), 33-60665 (Consultants, Agents and Part
Time Employees Stock Plan) and 33-51812 (Employee Stock Purchase Plan)] and on
Form S-3 [Registration No. 33-51677 (600,000 Warrants)], and [Registration No.
333-16937 (1,135,795 shares)] of our report dated March 26, 1998, on our audits
of the consolidated financial statements and financial statement schedule of ICF
Kaiser International, Inc. and Subsidiaries as of December 31, 1997 and 1996,
and the years ended December 31, 1997 and 1996, and the ten months ended
December 31, 1995, which report is included in the Company's Report on Form 10-
K.
McLean, Virginia
March 30, 1998
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 19,198,000
<SECURITIES> 0
<RECEIVABLES> 271,172,000
<ALLOWANCES> 7,142,000
<INVENTORY> 0
<CURRENT-ASSETS> 312,999,000
<PP&E> 51,446,000
<DEPRECIATION> 39,648,000
<TOTAL-ASSETS> 398,466,000
<CURRENT-LIABILITIES> 222,478,000
<BONDS> 141,004,000<F1>
0
0
<COMMON> 225,000
<OTHER-SE> 27,102,000
<TOTAL-LIABILITY-AND-EQUITY> 398,466,000
<SALES> 0
<TOTAL-REVENUES> 1,108,116<F2>
<CGS> 0
<TOTAL-COSTS> 973,902
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 1,195,000
<INTEREST-EXPENSE> 18,276,000
<INCOME-PRETAX> 2,561,000
<INCOME-TAX> (3,319,000)
<INCOME-CONTINUING> (4,987,000)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (4,987,000)
<EPS-PRIMARY> (0.22)
<EPS-DILUTED> (0.22)
<FN>
<F1>Excludes current portion of bonds, mortgages, and similar debt.
<F2>Represents gross revenue which includes costs of certain services
subcontracted to third parties and other reimbursable direct project costs, such
as materials procured by the Company on behalf of its customers.
</FN>
</TABLE>
