Exhibit 10(a) 4
FOURTH AMENDMENT
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FOURTH AMENDMENT, dated as of June 20, 1995 (this "Amendment"), to the
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Credit Agreement, dated as of December 8, 1993 (as amended prior to the date
hereof and as further amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among ICF XXXXXX INTERNATIONAL, INC. a Delaware
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corporation (the "Borrower"), the lenders parties thereto (the "Lenders") and
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CHEMICAL BANK, a New York banking corporation, as agent (in such capacity, the
"Agent").
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WITNESSETH:
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WHEREAS, the Company, the Lenders and the Agent are parties to the Credit
Agreement; and
WHEREAS, the Company has requested that the Lenders and the Agent agree to
amend certain provisions of the Credit Agreement, and the Lenders and the Agent
are agreeable to such request upon the terms and subject to the conditions set
forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other valuable consideration the receipt of which is
hereby acknowledged, the Company, the Lenders and the Agent hereby agree as
follows:
1. Definitions. All terms defined in the Credit Agreement shall have
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such defined meanings when used herein unless otherwise defined herein.
2. Amendment of Subsection 1.1. (a) Subsection 1.1 of the Credit
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Agreement is hereby amended by adding, in proper alphabetical order, the
following new definitions:
"ICF Xxxxxx Government Programs": ICF Xxxxxx Government Programs,
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Inc., a Delaware corporation, a wholly owned Subsidiary of the Borrower,
and a 50% owner of Xxxxxx-Xxxx.
"K-HFC": Xxxxxx-Xxxx Funding Company, L.L.C., a limited liability
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company formed under the laws of the State of Delaware, owned in the
following percentages by Xxxxxx-Xxxx (98%), ICF Xxxxxx Government Programs
(1%), and CH2M Hill Federal Group, Ltd. (1%), a wholly owned subsidiary of
CH2M Hill Companies, Ltd.'
"Xxxxxx-Xxxx": Xxxxxx-Xxxx Company, LLC, a limited liability company
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formed under the laws of the State of Colorado, equally owned by ICF Xxxxxx
Government Programs and CH2M Hill Federal Group, Ltd., a wholly owned
subsidiary of CH2M Hill Companies, Ltd.
(b) Subsection 1.1 of the Credit Agreement is hereby further amended
by adding at the end of the definition of "Subsidiary" the following new
sentence:
"Notwithstanding the foregoing definition, the term "Subsidiary" or
"Subsidiaries" shall not include Xxxxxx-Xxxx or K-HFC for the purposes
of its use in the definitions of (i) "Consolidated Net Income"
(except, for any period, to the extent by the Borrower or any of its
Subsidiaries (other than Xxxxxx-Xxxx or K-HFC)), (ii) "Borrowing Base"
(as incorporated in the term "Domestic Subsidiaries" as used therein)
and (iii) "Capital Expenditure", "Consolidated Interest Expense",
"Consolidated Lease Expense", "Consolidated Net Worth", "Restricted
Cash Amount", and "Unrestricted Cash Amount"."
3. Amendment of Subsection 4.15. Subsection 4.15 of the Credit Agreement
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is hereby amended by adding at the end thereof the following sentence:
"Notwithstanding the foregoing, (i) for all purposes under this subsection,
there shall be excluded all amounts allocable to Xxxxxx-Xxxx and K-HFC and (ii)
ICF Xxxxxx Government Programs shall be required to become a Subsidiary
Guarantor prior to September 30, 1995", such that Subsection 4.15 thereafter
reads, as amended:
"4.15 Subsidiaries. the Subsidiaries of the Borrower listed on Schedule
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III, as supplemented from time to time, constitute all of the Subsidiaries
of the Borrower. The Borrower and the Subsidiary Guarantors collectively
(a) own (directly and not through other Subsidiaries) at least 90% of the
assets of the Borrower and its consolidated Domestic Subsidiaries on a
consolidated basis and (b) received at least 90% of the gross revenues and
90% of the Consolidated Net Income received by the Borrower and its
consolidated Domestic Subsidiaries on a consolidated basis for the fiscal
quarter most closely preceding the fiscal quarter during which this
representation is made or deemed made. The Borrower and the Domestic
Subsidiaries collectively (a) own (directly and not through other
Subsidiaries) at least 75% of the assets of the Borrower and its
consolidated Subsidiaries on a consolidated basis and (b) received at least
75% of the gross revenues and 75% of the Consolidated Net Income received
by the Borrower and its consolidated Subsidiaries on a consolidated basis
for the fiscal quarter most closely preceding the fiscal quarter during
which this representation is made or deemed made. Notwithstanding the
foregoing, (i) for all purposes under this subsection, there shall be
excluded all amounts allocable to Xxxxxx-Xxxx and K-HFC and (ii) ICF Xxxxxx
Government Programs shall be required to become a Subsidiary Guarantor
prior to September 30, 1995."
4. Amendment of Subsection 6.2. Subsection 6.2 of the Credit Agreement
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is hereby amended by adding at the end thereof the following new clause (i) (and
by adjusting the placement of the word "and" and the punctuation at the end of
each clause as appropriate):
"(j) concurrently with the delivery of the financial statements referred
to in subsections 6.1(a), (b) and (c) for each applicable period
thereunder, consolidated balance sheets and the related statements of
income and retained earnings and of cash flows of the Borrower and its
consolidated Subsidiaries excluding all amounts attributable to Xxxxxx-Xxxx
and K-HFC (except to the extent that such amounts are required to be
included in the calculation of Consolidated Net Income in accordance
subsection 1.1), such financial statements to be certified by a Responsible
Officer as being fairly stated in all material respects (subject to normal
year-end adjustments, in the case of such quarterly financial statements)."
5. Amendment of Subsection 7.2. Subsection 7.2 of the Credit Agreement
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is hereby amended by adding at the end thereof the following new clause (k) (and
by adjusting the placement of the word "and" and the punctuation at the end of
each clause as appropriate):
"(k) Indebtedness incurred by Xxxxxx-Xxxx and K-HFC, with respect to
which (a) the sole legal recourse for collection of principal, premium, if
any, and interest on such Indebtedness is against the specific property
identified in the instruments evidencing or securing such Indebtedness and
(b) neither the Borrower nor any Subsidiary of the Borrower, other than
Xxxxxx-Xxxx and K-HFC, is directly or indirectly liable to make any payment
or has any Guarantee Obligation (other than in under letters of credit or
Guarantee Obligations permitted under subsection 7.10(k)(i))."
6. Amendment of Subsection 7.3. Subsection 7.3 of the Credit Agreement
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is hereby amended by adding at the end thereof the following new clause (l) (and
by adjusting the placement of the word "and" and the punctuation at the end of
each clause as appropriate):
"(l) Liens created by or securing Indebtedness permitted under and
described in subsection 7.2(k) and Liens directly related to the
assignment, sale, or other disposition of U.S. Department of Energy
receivables by Xxxxxx-Xxxx and K-HFC permitted under and described in
subsection 7.6(h)."
7. Amendment of Subsection 7.6. Subsection 7.6 of the Credit Agreement
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is hereby amended by adding at the end thereof the following new clause (h) (and
by adjusting the placement of the word "and" and the punctuation at the end of
each clause as appropriate):
"(h) the assignment, sale, or other disposition of U.S. Department of
Energy receivables by Xxxxxx-Xxxx and K-HFC in connection with the
financing thereof."
8. Amendment of Subsection 7.10. (a) Subsection 7.10 of the Credit
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Agreement is hereby amended by adding to the end thereof the following new
clause (k)
(and by adjusting the placement of the word "and" and the punctuation at the end
of each clause as appropriate):
"(k) (i) letters of credit or other Guarantee Obligations issued for
the benefit of Xxxxxx-Xxxx and K-HFC for the purpose of supporting
financing of ineligible receivables (including unbilled receivables) of
Xxxxxx-Xxxx and K-HFC, in an aggregate face amount not to exceed $6,000,000
at any time outstanding, (ii) additional advances, loans, extensions of
credit, capital contributions to, or any other investment in, Xxxxxx-Xxxx
and K-HFC by the Borrower of ICF Xxxxxx Government Programs, in an
aggregate amount not to exceed $1,000,000 at any time outstanding and (iii)
letters of credit or other Guarantee Obligations issued for the benefit of
Xxxxxx-Xxxx and K-HFC for the purpose of supporting workers compensation
insurance obligations in an aggregate face amount not to exceed $1,500,000
at any time outstanding; provided that the items permitted under the
foregoing clauses (i), (ii) and (iii) be directly related Xxxxxx-Xxxx'x
Performance Based Integrating Management contract with the U.S. Department
of Energy at the Rocky Flats Environmental Technology Site near Golden,
Colorado, or Xxxxxx-Xxxx'x and K-HFC's financing arrangements related
thereto, and provided, further, that the aggregate amount at any time
outstanding pursuant to such clauses (i), (ii) and (iii) shall not exceed
the excess of $12,500,000 over the amount of investments outstanding
pursuant to subsection 7.10(I) at such time, and provided, further, that
except as expressly set forth in this clause (k), the letters of credit,
Guarantee Obligations, advances, loans, extensions of credit, capital
contributions and investments permitted under and described in this clause
(k) shall be neither subject to the limitations of, nor deemed permitted
under, any other clause of subsection 7.10."
9. Representations; No Default. On and as of the date hereof, and after
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giving effect to this Amendment, the Company confirms, reaffirms and restates
that the representations and warranties set forth in Section 4 of the Credit
Agreement and in the other Loan Documents are true and correct in all material
respects, provided that the references to the Credit Agreement therein shall be
deemed to be references to this Amendment and to the Credit Agreement as amended
by this Amendment.
10. Conditions to Effectiveness. This Amendment shall become effective on
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and as of the date (the "Amendment Effective Date") that the Agent shall have
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received counterparts of this Amendment, duly executed and delivered by a duly
authorized officer of each of the Company, the Agent, and the Required Lenders,
along with the written consent of each Subsidiary Guarantor in the form attached
hereto.
11. Limited Amendment. Except as expressly waived and amended herein, the
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Credit Agreement shall continue to be, and shall remain, in full force and
effect. This Amendment shall not be deemed to be a waiver of, or consent to, or
a modification or amendment of, any other term or condition of the Credit
Agreement or any other Loan Document or to prejudice any other right or rights
which the Lenders may now have or may have in the future under or in connection
with the Credit Agreement or any of the
instruments or agreements referred to therein, as the same may be amended from
time to time.
12. Cost and Expenses. The Company agrees to pay or reimburse the Agent
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for all its reasonable and customary out-of-pocket costs and expenses incurred
in connection with the preparation, negotiation and execution of this Amendment,
and the consummation of the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of its counsel.
13. Counterparts. This Amendment may be executed by one or more of the
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parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
14. Governing Law. This amendment shall be governed by, and construed and
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interpreted in accordance with, the laws of the state of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective duly authorized officers as of the
date first above written.
