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EXHIBIT 10.1.2
CONFORMED COPY
AMENDMENT NO. 2
TO
SECOND AMENDED AND RESTATED
CREDIT AND REIMBURSEMENT AGREEMENT
AMENDMENT No. 2 dated as of December 31, 1997 among ORBITAL
SCIENCES CORPORATION (the "Company"), ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK, the BANKS listed on the signature pages hereof and ▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as Administrative Agent (the "Administrative Agent") and
as Collateral Agent.
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into a Second
Amended and Restated Credit and Reimbursement Agreement dated as of August 5,
1997 (as amended from time to time, the "Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the terms of the Credit
Agreement as set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise
specifically defined herein, each term used herein that is defined in the
Credit Agreement shall have the meaning assigned to such term in the Credit
Agreement. Each reference to "hereof", "hereunder", "herein" and "hereby" and
each other similar reference and each reference to "this Agreement" and each
other similar reference contained in the Credit Agreement shall from and after
the Amendment Effective Date (as defined in Section 14 below) refer to the
Credit Agreement as amended hereby.
SECTION 2. Changes to Definitions. (a) The definitions of
"CLASS", "MAJOR CASUALTY PROCEEDS", "NET CASH PROCEEDS", "PREPAYMENT EVENT",
"PREPAYMENT PERCENTAGE", "TERM COMMITMENT" and "TERM LOAN" set forth in Section
1.01 of the Credit Agreement are hereby deleted in their entirety.
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(b) The definitions of "COMMITMENT", "CONSOLIDATED LEVERAGE RATIO",
"CONSOLIDATED TANGIBLE NET WORTH", "INTEREST PERIOD" and "REQUIRED BANKS" set
forth in Section 1.01 of the Credit Agreement are hereby amended to read in
their entirety as follows:
"COMMITMENT" means a Revolver Commitment.
"CONSOLIDATED LEVERAGE RATIO" means on any date the ratio of
Consolidated Debt on such date to Consolidated EBITDA for the period of
four consecutive fiscal quarters most recently ended on or prior to such
date.
"CONSOLIDATED TANGIBLE NET WORTH" means, at any date, Consolidated
Net Worth less consolidated Intangible Assets, all determined as of such
date. For purposes of this definition "INTANGIBLE ASSETS" means the amount
(to the extent reflected in determining such consolidated stockholders'
equity) of (i) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of assets of a going concern business
made within twelve months after the acquisition of such business)
subsequent to December 31, 1996 in the book value of any asset owned by the
Company or a Consolidated Subsidiary, and (ii) all goodwill, patents,
trademarks, service marks, trade names, anticipated future benefit of tax
loss carry-forwards not fully reserved, copyrights, organization or
developmental expenses and other intangible assets.
"INTEREST PERIOD" means, with respect to each Euro-Dollar Loan,
the period commencing on the date of borrowing specified in the applicable
Notice of Borrowing or on the date specified in an applicable Notice of
Interest Rate Election and ending one, two or three months thereafter as
the Borrower may elect in such notice; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar
Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall, subject to clause
(c) below, end on the last Euro- Dollar Business Day of a calendar
month; and
(c) any Interest Period which would otherwise end after
the Termination Date shall end on the Termination Date.
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"REQUIRED BANKS" means at any time Banks having at least 66 2/3%
of the aggregate amount of the Revolver Commitments or, if the Revolver
Commitments shall have been terminated, having at least 66 2/3% of the
aggregate Revolver Exposures at such time.
(c) New definitions of "CONSOLIDATED EBITDA" and "CONSOLIDATED NET WORTH"
are added in alphabetical order in Section 1.01 of the Credit Agreement, to
read in their entirety as follows:
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net
Income for such period plus, to the extent deducted in determining such
Consolidated Net Income, the aggregate amount of (i) consolidated interest
expense, (ii) income tax expense and (iii) depreciation, amortization and
other similar non-cash charges.
"CONSOLIDATED NET WORTH" means, at any date, the consolidated
stockholders' equity of the Company and its Consolidated Subsidiaries as of
such date.
SECTION 3. Restatement of Section Describing Types of Borrowings.
Section 1.03 of the Credit Agreement is hereby amended to read in its entirety
as follows:
SECTION 1.03. Types of Borrowings. The term "Borrowing"
denotes the aggregation of Loans of one or more Banks to be made to a
Borrower pursuant to Article 2 on the same date, all of which Loans are of
the same Type (subject to Article 8) and, except in the case of Base Rate
Loans, have the same initial Interest Period. The "Type" of a Loan refers
to the determination whether such Loan is a Euro-Dollar Loan or a Base Rate
Loan.
SECTION 4. Termination of Term Commitments and Reclassification of
Term Loans as Revolving Loans; Changes in Revolver Commitments. (a) Effective
on the Amendment Effective Date, (i) the Term Commitment of each Bank shall
terminate in its entirety and (ii) the Revolver Commitment of each Bank shall
be the amount set forth on the signature pages hereof opposite the name of such
Bank. On the Effective Date, each Term Loan of each Bank then outstanding shall
be reclassified as a Revolving Loan of such Bank, having the same Interest
Period as the Interest Period applicable to such Term Loan immediately prior to
the Effective Date and bearing interest for each day at the rate per annum
equal to the sum of the Euro-Dollar Margin for such day plus the Adjusted
London Interbank Offered Rate applicable to such Term Loan for such Interest
Period immediately prior to the Effective Date.
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(b) Section 2.01 of the Credit Agreement is hereby amended by (i) deleting
subsection (a) in its entirety and (ii) renumbering subsection (b) thereof as
subsection (a).
SECTION 5. Amendments to Method of Borrowing Section. Subsection
(a) of Section 2.02 of the Credit Agreement is hereby amended by deleting the
phrase "and Class" in clause (iii) thereof.
SECTION 6. Amendments to Maturity of Loans Section. Section 2.05
of the Credit Agreement is hereby amended to read in its entirety as follows:
SECTION 2.05. Maturity of Loans. Each Loan shall mature, and the
outstanding principal amount thereof shall be due and payable (together
with accrued interest thereon), on the Termination Date.
SECTION 7. Amendments to Optional Termination of Commitments
Section. The last sentence of Section 2.09 of the Credit Agreement is hereby
amended to read in its entirety as follows:
Other than as set forth in the first sentence of this Section, at no time
may the Company reduce or terminate any Revolver Commitments.
SECTION 8. Amendments to Mandatory Termination of Commitments
Section. Section 2.10 of the Credit Agreement is hereby amended by (i) deleting
subsection (a) in its entirety and (ii) renumbering subsection (b) thereof as
subsection (a).
SECTION 9. Amendments to Optional Prepayments Section. Subsection
(c) of Section 2.11 of the Credit Agreement is hereby deleted in its entirety.
SECTION 10. Amendments to the Net Worth Covenant. Section 5.08
of the Credit Agreement is hereby amended to read in its entirety as follows:
SECTION 5.08. Minimum Consolidated Net Worth. Consolidated Net
Worth at the last day of any fiscal quarter will not be less than (i)
$319,000,000 plus (ii) 50% of Consolidated Net Income for each fiscal
quarter of the Company ended after December 31, 1997 and on or prior to
such date and for which such Consolidated Net Income is positive (but with
no deduction on account of any fiscal quarter for which Consolidated Net
Income is negative) plus (iii) 100% of the aggregate amount by which
Consolidated Net Worth shall have been increased by reason of the issuance
and sale after December 31, 1997 and on or prior to such date of any
capital stock or the conversion or exchange of any Debt of the Company into
or with capital stock of the Company consummated after December 31, 1997
and on or prior to such date.
SECTION 11. Amendments to the Leverage Covenant. Section 5.09
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of the Credit Agreement is hereby amended to read in its entirety as follows:
SECTION 5.09. Leverage. The Consolidated Leverage Ratio will at no
time during any period set forth below exceed the ratio set forth below
opposite such period:
PERIOD RATIO
12/31/97-9/29/98 4.00:1
9/30/98-12/30/98 3.75:1
12/31/98 and thereafter 3.50:1
SECTION 12. Amendments to Assignments Section. The first sentence
of Section 10.06(c) of the Credit Agreement is hereby amended to read in its
entirety as follows:
Any Bank may at any time assign to one or more banks or other institutions
(each an "Assignee") all, or a proportionate part of all, of its rights and
obligations with respect to Revolver Commitment (and corresponding
Revolving Loans and Letter of Credit Liabilities), and such Assignee shall
assume such rights and obligations, pursuant to an Assignment and Assumption
Agreement in substantially the form of Exhibit F hereto executed by such
Assignee and such transferor Bank, with (and subject to) the subscribed
consent of the Company, the LC Bank and the Administrative Agent (which
consents shall not be unreasonably withheld); provided that (i) if an
Assignee is another Bank or an Affiliate of such transferor Bank, no such
consent shall be required, and (ii) immediately after giving effect to any
such assignment, (x) the transferor Bank's Revolver Commitment is equal to
either $0 or at least $3,000,000 and (y) the Assignee's Revolver Commitment
is at least equal to $3,000,000.
SECTION 13. New York Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 14. Counterparts; Effectiveness. This Amendment 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 Amendment shall become effective on the date (the "Amendment
Effective Date") on which the Administrative Agent shall have received:
(i) duly executed counterparts hereof signed by the Company and
the Banks (or, in the case of any party as to which an executed counterpart
shall not have been received, the Administrative Agent shall have received
telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such party); and
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(ii) an amendment fee, payable ratably to the Revolver Banks in
accordance with their Revolver Commitments as in effect on the Effective
Date immediately after giving effect to this amendment, in an amount equal
to .125% of the aggregate amount of such Revolver Commitments.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed as of the date first above written.
ORBITAL SCIENCES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. Sunshine
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Title: Vice President and Treasurer
Revolver Commitment:
$ 20,000,000 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
$ 17,500,000 THE BANK OF NOVA SCOTIA
By: /s/ J.R. Trimble
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Title: Senior Relationship Manager
$ 17,500,000 NATIONSBANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Assistant Vice President
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$ 15,000,000 FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
$ 15,000,000 BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
$ 15,000,000 THE SUMITOMO BANK, LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President and Manager
Total Revolver Commitments:
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$100,000,000
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