W I T N E S S E T H :
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EXHIBIT 10.1.6
[CONFORMED COPY]
WAIVER NO. 2 UNDER CREDIT AGREEMENT
WAIVER NO. 2 dated as of February 29, 1996 among ORBITAL SCIENCES
CORPORATION (the "Company"), ORBITAL IMAGING CORPORATION and XXXXXXXXX SPACE
AND DEFENSE CORPORATION (together with the Company, the "Borrowers"), the BANKS
listed on the signature pages hereof (the "Banks"), XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Administrative Agent (the "Administrative Agent"), and
X.X. XXXXXX DELAWARE, as Collateral Agent.
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into an Amended
and Restated Credit and Reimbursement Agreement dated as of September 27, 1994
(as amended from time to time, the "Agreement"); and
WHEREAS, pursuant to the Agreement, the Company has agreed for itself
and each of its Subsidiaries (as defined in the Agreement) to comply with the
covenants set forth in the Agreement; and
WHEREAS, in the absence of this Waiver, the Company is in
noncompliance with one of such covenants; and
WHEREAS, the Company has asked the Banks, and the Banks are willing,
on the terms and conditions set forth below, to waive, among other things,
compliance with one of such covenants and the Defaults (as defined in the
Agreement) caused by such noncompliance;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions. Unless otherwise specifically defined
herein, each term used herein that is defined in the Agreement shall have the
meaning assigned to such term in the Agreement.
SECTION 2. Waiver of Compliance with the Consolidated Fixed Charge
Ratio Covenant. (a) The Banks waive (i) compliance by the Company with the
terms of Section 5.10 of the Agreement at December 31, 1995 and (ii)
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any Default arising under the Agreement by reason of such noncompliance;
provided that, the waivers granted under this Section 2 shall be effective
solely if the ratio of Earnings Available for Fixed Charges to Consolidated
Fixed Charges for the four consecutive fiscal quarters ended at December 31,
1995 is not less than 1.01 to 1.
(b) For purposes of calculating compliance by the Company with the
provisions of Section 5.10 of the Agreement on and after the date hereof, the
fiscal quarter of the Company ended December 31, 1995 shall be excluded from
any determination of any period of four consecutive fiscal quarters (e.g. the
fiscal quarters ended March 31, 1995, June 30, 1995, September 30, 1995 and
March 31, 1996 shall constitute four consecutive fiscal quarters for purposes
of Section 5.10 of the Agreement).
SECTION 3. No Other Waivers. Other than as specifically provided
herein, this Waiver shall not operate as a waiver of any right, remedy, power
or privilege of the Banks under the Agreement or any other Financing Document
or of any other term or condition of the Agreement or any other Financing
Document.
SECTION 4. New York Law. This Waiver shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 5. Counterparts; Effectiveness. This Waiver 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 Waiver shall become effective upon (i) receipt by the
Administrative Agent of duly executed counterparts hereof signed by the
Borrowers and the Required 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 (ii) receipt by
the Administrative Agent, for the account of each Bank, of a fee in an amount
equal to 1/8 of 1% of such Bank's Commitment as in effect on the date hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly
executed as of the date first above written.
ORBITAL SCIENCES CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
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Title: Executive Vice President
and Chief Financial
Officer
ORBITAL IMAGING CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
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Title: Chief Financial Officer
and Treasurer
XXXXXXXXX SPACE AND DEFENSE
CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
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Title: Treasurer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxxx X. X'Xxxxx
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Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ Xxxxx X. Xxxxxxx
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Title: Senior Relationship
Manager
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SIGNET BANK/VIRGINIA
By /s/ Xxxxxx X. Xxxxxx
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Title: Vice President
NATIONSBANK, N.A.
By /s/ Xxxxx X. Xxxxxxxx
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Title: Vice President
THE BANK OF TOKYO TRUST COMPANY
By /s/ Xxxxxxxxx X. Xxxxxx
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Title: Assistant Vice President
THE SUMITOMO BANK, LTD.
By /s/ Xxxxxxx Xxxxx
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Title: Vice President and
Manager
By /s/ X.X. Xxxxxxx
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Title: SVP and RM Midwest
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