Exhibit 4(d)(5)
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ICF ▇▇▇▇▇▇ INTERNATIONAL, INC., Issuer
and
CYGNA CONSULTING ENGINEERS AND PROJECT MANAGEMENT, INC., Guarantor
▇▇▇▇▇▇ GOVERNMENT PROGRAMS, INC., Guarantor
EDA, INCORPORATED, Guarantor
GLOBAL TRADE & INVESTMENT, INC., Guarantor
KAISER EUROPE, INC., Guarantor
ICF KAISER / ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, INC., Guarantor
ICF KAISER OVERSEAS ENGINEERING, INC., Guarantor
ICF ▇▇▇▇▇▇ ENGINEERS PACIFIC, INC., Guarantor
ICF KAISER ADVANCED TECHNOLOGY, INC., Guarantor
to
THE BANK OF NEW YORK, Trustee
_______________
Fifth Supplemental Indenture
Dated as of October 5, 1999
to
Indenture dated as of December 23, 1996
_______________
$15,000,000 12% Senior Notes due 2003, Series A and 12% Senior Notes due 2003,
Series B
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This FIFTH SUPPLEMENTAL INDENTURE, dated as of October 5, 1999, is entered
into by and among ICF ▇▇▇▇▇▇ International, Inc., a Delaware corporation (the
"Company"), The Bank of New York, a New York banking corporation (the
"Trustee"), and each of the following guarantors: Cygna Consulting Engineers and
Project Management, Inc., a Delaware corporation; ▇▇▇▇▇▇ Government Programs,
Inc., a Delaware corporation formerly named ICF ▇▇▇▇▇▇ Government Programs,
Inc.; EDA, Incorporated, a Maryland corporation; Global Trade & Investment,
Inc., a Delaware corporation; Kaiser Europe, Inc., a Delaware corporation
formerly named ICF Kaiser Europe, Inc.; ICF Kaiser / ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc., a
Delaware corporation; ICF Kaiser Overseas Engineering, Inc., a Delaware
corporation; ICF ▇▇▇▇▇▇ Engineers Pacific, Inc., a Delaware corporation; and ICF
Kaiser Advanced Technology, Inc., an Idaho corporation (collectively, the
"Guarantors").
WITNESSETH:
WHEREAS, the Company and the Trustee are parties to an Indenture dated
as of December 23, 1996 (the "Indenture"), relating to the Company's $15,000,000
12% Senior Notes due 2003, Series A and 12% Senior Notes due 2003, Series B
(collectively, the "Notes");
WHEREAS, the Company desires to purchase all of the outstanding Notes
for cash, in an aggregate amount not to exceed $13,200,000, plus accrued
interest from June 30, 1999, and, in connection therewith, obtain consents to
the adoption of amendments to the Indenture, as further described herein;
WHEREAS, Section 10.02 of the Indenture provides that the Company and
the Trustee may amend the Indenture or the Notes with the written consent
(including consents obtained in connection with a tender offer or exchange offer
for Notes) of the Holders of at least a majority in principal amount of the then
outstanding Notes (the "Requisite Holders");
WHEREAS, Section 10.02 of the Indenture further provides that the
Company, when authorized by a resolution of its Board of Directors, and the
Trustee may amend or supplement the Indenture and the Notes with the written
consent of the Requisite Holders;
WHEREAS, the Company has obtained the written consents of the
Requisite Holders to the amendments set forth below and written waivers from
such consenting Holders to the application of certain covenants and other
provisions contained in the Indenture;
WHEREAS, in accordance with Section 10.02 of the Indenture, the Board
of Directors of the Company has authorized the execution and delivery of this
Fifth Supplemental Indenture and the Company has filed with the Trustee evidence
of the consent of the Holders; and
WHEREAS, the Company, the Guarantors, and the Trustee desire to enter
into, execute and deliver this Fifth Supplemental Indenture in compliance with
the provisions of the Indenture;
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NOW, THEREFORE, in consideration of the premises and of the 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 Guarantors, and the Trustee, as follows:
ARTICLE 1
AMENDMENTS TO INDENTURE
Section 1.01 Amendment of Article 5. Effective on the date hereof,
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Article 5 is hereby amended by:
(a) deleting Sections 5.04 ("Limitations on Additional
Indebtedness"), 5.05 ("Limitations on Subsidiary Debt and Preferred Stock"),
5.06 ("Limitations on Restricted Payments"), 5.07 ("Limitations on Restrictions
on Distributions from Subsidiaries"), 5.08 ("Limitations on Transactions With
Affiliates"), 5.10 ("Restrictions on Sale of Stock of Subsidiaries"), 5.11
("Limitations on Guarantees"), 5.13 ("Corporate Existence"), 5.14 ("Stay,
Extension and Usury Laws"), 5.15 ("Insurance; Books and Records; Compliance with
Law"), and 5.16 ("Inspection and Confidentiality"), in their entirety without
substitution therefor;
(b) renumbering Section 5.09 ("Limitations on Asset Sales") to be
Section 5.04, Section 5.12 ("SEC Reports") to be Section 5.05, and Section 5.17
("Compliance Certificates") to be Section 5.06;
(c) inserting in paragraph (b) of Section 5.04 (as renumbered in
accordance with Section 1.01(b) above) the words "Section 5.04 of" between the
word "and" and the words "this Indenture (an 'Asset Sale Offer')";
(d) deleting the references to Section 5.09 in the four places where
they appear in paragraph (c) of Section 5.04 (as renumbered) and inserting in
lieu thereof references to Section 5.04;
(e) inserting a new paragraph (d) at the end of Section 5.04 to read
as follows:
"(d) Notwithstanding any provision contained in this
Indenture, the purchase of the Notes and consents to the
amendments set forth in the Fifth Supplemental Indenture to the
Indenture, shall be expressly permitted under this Indenture and
shall not be deemed to constitute a breach, violation or other
contravention of any provision contained in this Indenture."
(f) deleting the text of Section 5.05 (as renumbered) in its entirety
and inserting in lieu thereof the following text:
"The Company shall comply with the provisions of TIA section
314(a).";
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(g) deleting the reference to Section 5.12 in paragraph (b) of
Section 5.06 (as renumbered in accordance with Section 1.01(b) above) and
inserting in lieu thereof a reference to Section 5.05; and
(h) in accordance with the deletion of Section 5.11 pursuant to
paragraph (a) above,
(i) releasing the Guarantors, without further action of, or
execution and delivery of any further documents or instruments by the
Company, the Guarantors or the Trustee, from the Guarantees to which each
such Guarantor is (as applicable) party; and
(ii) deleting from the defined terms "Guarantee" and "Guarantor"
the text following the words "shall mean" and inserting in lieu thereof the
text "[intentionally deleted]".
Section 1.02 Amendment of Article 6. Effective on the date hereof,
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Article 6 is hereby amended by:
(a) deleting Section 6.01 and renumbering Section 6.02 to be Section
6.01; and
(b) deleting the phrase "in accordance with Section 6.01" in Section
6.01(a) (as renumbered in accordance with the immediately preceding Section
1.02(a) above).
Section 1.03 Amendment of Article 7. Effective on the date hereof,
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Article 7 is hereby amended by deleting the text of clause numbers (3) through
(8), inclusive, of Section 7.01 and inserting in lieu thereof for each such
deleted clause the following text: "[Intentionally deleted]".
ARTICLE 2
MISCELLANEOUS
Section 2.01 Effect of Supplemental Indenture. On the date hereof,
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the Indenture shall be supplemented in accordance herewith, and this Fifth
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 2.02 Indenture Remains in Full Force and Effect. Except as
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supplemented hereby and by the First through Fourth Supplemental Indentures, all
provisions in the Indenture shall remain in full force and effect.
Section 2.03 Indenture and Supplemental Indentures Construed
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Together. All provisions of this Fifth Supplemental Indenture shall be deemed
to be incorporated in, and made a
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part of, the Indenture; and the Indenture, as supplemented and amended by this
Fifth Supplemental Indenture, shall be read, taken and construed as one and the
same instrument.
Section 2.04 Confirmation and Preservation of Indenture. The
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Indenture, as supplemented and amended by the First through Fifth Supplemental
Indentures, is in all respects confirmed and preserved.
Section 2.05 Conflict with Trust Indenture Act. If any provision of
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this Fifth 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 Fifth Supplemental Indenture, the provision
of such Act shall control. If any provision of this Fifth Supplemental
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the provisions of such Act shall be deemed to apply
to the Indenture as so modified or to be excluded by this Fifth Supplemental
Indenture, as the case may be.
Section 2.06 Separability Clause. In case any provision in this
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Fifth 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 2.07 Terms Defined in the Indenture. All capitalized terms
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not otherwise defined herein (including capitalized terms used in the Recitals
hereto) shall have the meanings ascribed to them in the Indenture.
Section 2.08 Effect of Headings. The Article and Section headings in
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this Fifth Supplemental Indenture are for convenience only and shall not affect
the construction hereof.
Section 2.09 Benefits of Fifth Supplemental Indenture. Nothing in
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this Fifth 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, any benefit of any
legal or equitable right, remedy, or claim under the Indenture, the First
through Fifth Supplemental Indentures, or the Notes.
Section 2.10 Successors and Assigns. All covenants and agreements in
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this Fifth Supplemental Indenture by the Company and the Guarantors shall bind
their successors and assigns, whether so expressed or not.
Section 2.11 Trustee Not Responsible for Recitals. The recitals
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contained herein shall be taken as the statements of the Company and the
Guarantors, and the Trustee assumes no responsibility for their correctness.
Section 2.12 Certain Duties and Responsibilities of the Trustee. In
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entering into this Fifth 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.
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Section 2.13 GOVERNING LAW. THIS FIFTH 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 2.14 Counterparts. This Fifth Supplemental Indenture may be
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executed in any number of 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.
[Remainder of page intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
ICF ▇▇▇▇▇▇ INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
THE BANK OF NEW YORK, as Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
CYGNA CONSULTING ENGINEERS AND
PROJECT MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇▇▇ GOVERNMENT PROGRAMS, INC.
(formerly ICF ▇▇▇▇▇▇ Government Programs, Inc.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Treasurer
EDA, INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Treasurer
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GLOBAL TRADE & INVESTMENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Treasurer
KAISER EUROPE, INC.
(formerly ICF Kaiser Europe, Inc.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Treasurer
ICF KAISER / ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Treasurer
ICF KAISER OVERSEAS ENGINEERING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Treasurer
ICF ▇▇▇▇▇▇ ENGINEERS PACIFIC, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Treasurer
ICF KAISER ADVANCED TECHNOLOGY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Treasurer
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