Exhibit 4(a)2
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ICF XXXXXX GOVERNMENT PROGRAMS, INC.,Issuer
and
ICF XXXXXX GOVERNMENT PROGRAMS, INC, Guarantor
TO
THE BANK OF NEW YORK, Trustee
_______________
Second Supplemental Indenture
Dated as of September 1, 1995
_______________
Notes
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THIS SECOND SUPPLEMENTAL INDENTURE, dated as of September 1, 1995, by and
among ICF XXXXXX INTERNATIONAL, INC., a Delaware corporation (the "Company"),
ICF XXXXXX GOVERNMENT PROGRAMS, INC., a Delaware corporation ("ICFK-GP" or the
"Guarantor"), and THE BANK OF NEW YORK, a New York banking corporation (the
"Trustee").
WITNESSETH:
WHEREAS, the Guarantor is a Wholly Owned Restricted Subsidiary of the
Company;
WHEREAS, the Guarantor is the 50% owner of Xxxxxx-Xxxx Company, LLC, a
Colorado limited liability company ("Xxxxxx-Xxxx"), an Unrestricted Subsidiary
of the Company;
WHEREAS, Xxxxxx-Xxxx in April 1995 was awarded Performance Based Integrated
Management Xxxxxxxx Xx. XX-XX00-00XX00000 dated as of April 4, 1995, as amended
or otherwise modified or supplemented, with the U.S. Department of Energy (the
"DOE Contract");
WHEREAS, in order to finance its activities, Xxxxxx-Xxxx entered into
arrangements pursuant to which it will sell receivables arising under the DOE
Contract (the "Xxxxxx-Xxxx Receivables Financing");
WHEREAS, in connection with the Company's obligation to arrange for the
issuance of standby letters of credit to support in part the Xxxxxx-Xxxx
Receivables Financing, a Fourth Amendment dated June 28, 1995, to the Company's
Bank Credit Agreement (the "Fourth Amendment") was entered into by the Company
in order to permit such issuances;
WHEREAS, as a condition to their signing the Fourth Amendment, the banks
and other financial institutions parties to the Bank Credit Agreement required
that the Company cause the Guarantor to become a Subsidiary Guarantor, as such
term is defined in the Bank Credit Agreement, no later than September 30, 1995;
WHEREAS, the Company and the Trustee have heretofore executed and delivered
an Indenture dated as of January 11, 1994 (the "Indenture"), as supplemented,
for the purpose of issuing 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"); and
WHEREAS, the Company has determined that Section 5.11 of the Indenture
requires that, prior to or concurrently with the issuance of ICFK-GP's guarantee
executed and delivered pursuant to the Bank Credit Agreement, the Company must
cause ICFK-GP to execute and deliver to the Trustee a Supplemental Indenture
pursuant to which ICFK-GP unconditionally guarantees the payment of principal
of, premium, if any, and interest on the Notes; and
WHEREAS, Section 5.11 of the Indenture further provides that the guarantee
referenced in the immediately preceding clause shall be subordinated in right of
payment to the guarantee granted by ICFK-GP pursuant to the Bank Credit
Agreement; and
WHEREAS, the Company and ICFK-GP have determined that it is desirable to
enter into this Second Supplemental Indenture; and
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WHEREAS, the execution and delivery of this Supplemental Indenture have
been duly authorized by Resolutions of the Boards of Directors of the Company
and ICFK-GP, and the Company and ICFK-GP have requested the Trustee to join with
them in the execution of this Second Supplemental Indenture; and
WHEREAS, the Trustee has accepted the trusts created by this Second
Supplemental Indenture and in evidence thereof has joined in the execution
hereof;
NOW, THEREFORE, THIS SECOND 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 Guarantor, and the Trustee, as follows:
1. Terms defined in the Indenture are used herein as therein defined.
2. The Table of Contents of the Indenture is hereby amended to add the
following exhibit reference:
EXHIBIT B FORM OF GUARANTEE
3. Section 1.01 of the Indenture is hereby amended to add the following
definitions in proper alphabetical order:
"Guarantee" shall mean any guarantee substantially in the form of
Exhibit B to the Indenture executed and delivered by any Restricted
Subsidiary pursuant to the provisions of Section 5.11 of the Indenture; any
such Guarantee shall be subordinated in right of payment to the guarantee
by such Subsidiary pursuant to the Bank Credit Agreement, as and to the
same extent that the Notes are subordinated pursuant to Article 11 of the
Indenture.
"Guarantor" shall mean any Restricted Subsidiary that has executed and
delivered a Guarantee;
"Supplemental Indenture" shall mean any supplemental indenture, in
form satisfactory to the Trustee, executed and delivered pursuant to (a)
Article 10 of the Indenture or (b) Sections 5.11 or 6.01(a)(A) of the
Indenture.
4. Section 5.11 of the Indenture is hereby amended as follows:
The final sentence of Section 5.11 is restated as follows:
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Any such guarantee shall be substantially in the form of Exhibit B to
the Indenture and shall be subordinated in right of payment to the
guarantee by such Subsidiary pursuant to the Bank Credit Agreement, as
and to the same extent that the Notes are subordinated pursuant to
Article 11 of the Indenture.
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5. The following sundry provisions shall be a part of this Second
Supplemental Indenture:
Section 5.01. Effect of Supplemental Indenture. Upon the execution and
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delivery of this Second Supplemental Indenture by the Company and the Trustee,
the Indenture shall be supplemented in accordance herewith, and this Second
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
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supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
Section 5.03. Indenture and Second Supplemental Indenture Construed
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Together. This Second Supplemental Indenture is an Indenture supplemental to
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and in implementation of the Indenture, and the Indenture and this Second
Supplemental Indenture shall henceforth be read and construed together.
Section 5.04. Confirmation and Preservation of Indenture. The Indenture
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as supplemented by this Second Supplemental Indenture is in all respects
confirmed and preserved.
Section 5.05 Conflict with Trust Indenture Act. If any provision of this
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Second 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 Second Supplemental Indenture, the provision of
such Act shall control. If any provision of this Second 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 Second Supplemental
Indenture, as the case may be.
Section 5.06 Separability Clause. In any case any provision in this
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Second 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
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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
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are for convenience only and shall not affect the construction hereof.
Section 5.09 Benefits of Second Supplemental Indenture, etc. Nothing in
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this Second 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 Second Supplemental Indenture, or the Notes.
Section 5.10 Successors and Assigns. All covenants and agreements in
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this Second Supplemental Indenture by the Company and the Guarantor shall bind
their successors and assigns, whether so expressed or not.
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Section 5.11 Trustee Not Responsible for Recitals. The recitals
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contained herein shall be taken as the statements of the Company and the
Guarantor, and the Trustee assumes no responsibility for their correctness.
Section 5.12 Certain Duties and Responsibilities of the Trustee. In
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entering into this Second 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 the Law. This Second Supplemental Indenture shall
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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 Second Supplemental Indenture may be
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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.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and the Company, the Guarantor, and
the Trustee have caused their respective corporate seals to be hereunto affixed
and attested, all as of September 1, 1995.
ICF XXXXXX INTERNATIONAL, INC.
By: ________________________________
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
[Seal]
ATTEST:
___________________________
Assistant Secretary
ICF XXXXXX GOVERNMENT PROGRAMS, INC.
By: ________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer
[Seal]
ATTEST:
___________________________
Assistant Secretary
THE BANK OF NEW YORK, as Trustee
By: ________________________________
Name:
Title:
[Seal]
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ATTEST:
Assistant Treasurer
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