1
EXHIBIT 10.1.8
FORM
AMENDMENT NO. 8 AND WAIVER
TO
THIRD AMENDED AND RESTATED
CREDIT AND REIMBURSEMENT AGREEMENT
AMENDMENT No. 8 and WAIVER dated as of April 13, 2000 among
ORBITAL SCIENCES CORPORATION (the "COMPANY"), the BANKS listed on the signature
pages hereof and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Administrative
Agent (the "ADMINISTRATIVE AGENT") and as Collateral Agent (the "COLLATERAL
AGENT").
WITNESSETH:
WHEREAS, the parties hereto have heretofore entered into a Third
Amended and Restated Credit and Reimbursement Agreement dated as of December 21,
1998 (as amended from time to time, the "CREDIT AGREEMENT"); and
WHEREAS, the Company has asked the Banks to waive compliance by
the Company with certain covenants set forth in the Credit Agreement for the
period from and including the Amendment No. 8 Effective Date (as defined in the
Credit Agreement as amended hereby) to and including January 1, 2001 (the
"WAIVER PERIOD"), and the Banks are willing to do so, subject to the terms and
conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definition; 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 No. 8
Effective Date (as defined in Section 21 below) refer to the Credit Agreement as
amended hereby.
SECTION 2. Amendments to the Definitions. (a) Section 1.01 of the Credit
Agreement is amended by adding therein the following definitions in alphabetical
order:
2
"AMENDMENT NO. 8 EFFECTIVE DATE" means the date of effectiveness of
Amendment No. 8 and Waiver to this Agreement.
"**** ACQUISITION" means the ******* acquisition .
"DEBT ISSUANCE" means any issuance of Debt by the Company or any of its
wholly-owned domestic subsidiaries after the Amendment No. 8 Effective Date
(including without limitation any Debt convertible into equity) in the capital
markets (whether in a registered offering or in a private placement).
"MDA FINANCING" means the credit agreement to which MDA will become a
party providing for loans thereunder to be used by MDA for working capital
purposes and for [other purposes]; provided that the aggregate principal amount
of Debt that may be incurred under such credit agreement shall not exceed
$210,000,000 Canadian Dollars.
"NML DEBT" means Debt of the Company under the Note Agreement dated as of
June 1, 1995 between the Company and The Northwestern Mutual Life Insurance
Company.
"RESTATEMENT DATE" means the date of effectiveness of the restatement
described in Section 5.23.
"SENIOR DEBT" means at any date (i) Debt of the Company under this
Agreement plus (ii) the NML Debt plus (iii) other Debt of the Company (other
than (x) Debt owed to any Subsidiary and (y) other Debt so long as such other
Debt is subordinated to Debt of the Company under this Agreement on terms
satisfactory to the Required Banks) plus (iv) Debt of Subsidiaries of the
Company (other than (w) any Guarantees of the NML Debt, (x) Guarantees of Debt
under this Agreement, (y) Debt of any Subsidiary owed to the Company or any
other Subsidiary and (z) other Debt of any Subsidiary Guarantor so long as such
other Debt is subordinated to such Subsidiary Guarantor's Guarantee of Debt
under this Agreement on terms satisfactory to the Required Banks).
"SENIOR LEVERAGE RATIO" means on any date the ratio of Senior Debt on
such date to Consolidated EBITDA for the period of four consecutive fiscal
quarters most recently ended on or prior to such date.
"SUBSIDIARY GUARANTOR" means any Subsidiary of the Company that has
Guaranteed the obligations of the Company under the Financing Documents.
(b) The following definitions set forth in Section 1.01 of the Credit
Agreement are amended to read in their entirety as follows:
2
3
"CONSOLIDATED DEBT" means at any date, without duplication, the sum of
(i) the Debt of the Company and its Consolidated Subsidiaries determined on a
consolidated basis (other than Debt consisting of performance bonds and letters
of credit issued for the account of MDA in an aggregate amount not in excess of
$48,000,000 to support certain contractual obligations, including obligations in
an aggregate amount of approximately $20,000,000 for construction of the
Radarsat 2 satellite, of approximately $8,000,000 under a contract with respect
to a Malaysian ground station, of approximately $3,000,000 under a contract with
respect to a Taiwanese ground station and of approximately $17,000,000 with
respect to miscellaneous performance bonds) plus (ii) the portion of the Debt
(other than Excluded ORBCOMM Debt) of any Person accounted for by the Company on
the equity method properly allocable to the direct or indirect interest of the
Company in such Person, all determined as of such date.
"EQUITY ISSUANCE" means any issuance of equity securities by the Company
or any of its domestic wholly-owned Subsidiaries, other than (i) any such
issuance to the Company or any of its domestic wholly-owned Subsidiaries, (ii)
any such issuance pursuant to employee benefit arrangements in the ordinary
course of business, (iii) any such issuance pursuant to the warrants
contemplated by Section 16 of Amendment No. 6 and (iv) any such issuance
pursuant to the conversion of any Debt, so long as neither the Company nor any
of its domestic wholly-owned Subsidiaries receives any Net Cash Proceeds in
connection with any such issuance described in this clause (iv).
"REDUCTION EVENT" means any Asset Sale, Debt Issuance or Equity Issuance.
SECTION 3. Waiver of Compliance with Certain Covenants. (a) The Banks
waive (i) compliance by the Company with the provisions of Sections 5.01(a),
5.01(b), 5.01(c), 5.01(d), 5.08, 5.09, 5.10 and 5.17 of the Credit Agreement on
or prior to the Amendment No. 8 Effective Date and (ii) any Default arising
under Sections 6.01(c) or 6.01(d) of the Credit Agreement by reason of such
noncompliance.
(b) Each of the waivers granted pursuant to subsection (a) above shall
expire on the earliest of (i) close of business (New York City time) on the last
day of the Waiver Period, (ii) the first date on which the Company shall, or
shall permit any other Borrower to, breach any of its obligations set forth in
Section 18 and (iii) the first date on which an Event of Default shall occur and
be continuing under the Credit Agreement.
(c) Except as provided in subsection (a) above, this Section 3 shall not
3
4
operate as a waiver of any right, remedy, power or privilege of the Banks under
any Financing Document or of any other term or condition of any Financing
Document.
SECTION 4. Increase in Commitment Reduction Amount. Sections 2.10(d) and
2.10(e) of the Credit Agreement are amended to read in their entirety as
follows:
(d) If a Reduction Event shall occur, the Commitments shall be
automatically and ratably reduced by an amount equal to 50% of the Net Cash
Proceeds with respect to such Reduction Event; provided that (i) if such portion
of such Net Cash Proceeds, when aggregated with the corresponding portions of
the Net Cash Proceeds of all other Reduction Events not theretofore so applied,
is less than $1,000,000, such Net Cash Proceeds shall be deposited in the
Restricted Account pending application pursuant to this subsection (d) in
connection with a subsequent Reduction Event, (ii) the aggregate amount of the
reductions of the Commitments effected pursuant to this subsection (d) as a
result of Reduction Events consummated on or before August 1, 2000 shall not
exceed $40,000,000, (iii) the aggregate amount of the reductions of the
Commitments effected pursuant to this subsection (d) as a result of Reduction
Events consummated after August 1, 2000 shall not exceed $20,000,000 and (iv) in
no event shall the Commitments be reduced below $85,000,000 pursuant to this
subsection (d). Each such reduction shall be effective as of the day of receipt
by the Company or any of its domestic wholly-owned Subsidiaries, as the case may
be, of the relevant Net Cash Proceeds.
(e) To the extent not theretofore reduced to the same or a lesser amount,
the Commitments shall be automatically and ratably reduced on each date set
forth below to the aggregate amount set forth below opposite such date:
---------------------------------------
DATE AGGREGATE AMOUNT
---------------------------------------
August 1, 2000 Target Amount
---------------------------------------
July 1, 2001 $85,000,000
---------------------------------------
"TARGET AMOUNT" means (i) if the Restatement Date has occurred pursuant to
Section 5.23 on or prior to May 31, 2000, $125,000,000 and (ii) otherwise,
$105,000,000.
SECTION 5. Additional Fees. A new Section 2.17 to the Credit Agreement is
added immediately after Section 2.16 thereof, to read in its entirety as
follows:
4
5
SECTION 2.17. Additional Fees. On the date that is the earlier of (i) May
31, 2000 and (ii) the Restatement Date, the Company shall pay to the
Administrative Agent for the account of each Bank which was entitled to a fee
pursuant to Section 21 of Amendment No.8 and Waiver to this Agreement, a fee in
an amount equal to 0.125% of such Bank's Commitment as in effect on such date.
SECTION 6. Amendment of the Investments Covenant. Section 5.07 of the
Credit Agreement is amended by adding the following sentence at the end thereof:
Notwithstanding any provision of this Agreement (including the foregoing
clauses of this Section 5.07), after the Amendment No.8 Effective Date, the
Company will not and will not permit any Subsidiary to, consummate any
acquisition of any other Person or all of the components of an entire line of
business or division of any other Person (whether by purchase of stock or
assets, by merger, consolidation or otherwise) without the prior written consent
of the Required Banks, other than the .......... Acquisition.
SECTION 7. Change in the Minimum Net Worth Covenant. Section 5.08 of the
Credit Agreement is 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 set forth below will not be less than (i) the
amount set forth in the table below opposite such fiscal quarter plus (ii) 50%
of Consolidated Net Income for each fiscal quarter of the Company ended after
March 31, 2000, 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 March
31, 2000 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 March 31, 2000 and on or prior to such date.
------------------------------------------
FISCAL QUARTER ENDED AMOUNT
------------------------------------------
6/30/00 $300,000,000
------------------------------------------
9/30/00 $290,000,000
------------------------------------------
12/31/00 $270,000,000
------------------------------------------
Thereafter $476,100,000
------------------------------------------
5
6
SECTION 8. Change in the Leverage Ratio, Addition of Senior Leverage
Ratio. Section 5.09 of the Credit Agreement is amended to read in its entirety
as follows:
SECTION 5.09. (a) Leverage. The Consolidated Leverage Ratio will at no
date during any period set forth below exceed the ratio set forth below opposite
such period:
---------------------------------------------------
PERIOD RATIO
---------------------------------------------------
Amendment No. 8 Effective Date- 12/30/00 4.50
---------------------------------------------------
12/31/00 - 1/1/01 4.80
---------------------------------------------------
Thereafter 3.50
---------------------------------------------------
(b) Senior Leverage. The Senior Leverage Ratio will at no date during any
period set forth below exceed the ratio set forth below opposite such period:
---------------------------------------------------
PERIOD RATIO
---------------------------------------------------
Amendment No. 8 Effective Date- 12/30/00 3.50
---------------------------------------------------
Thereafter 3.60
---------------------------------------------------
SECTION 9. Change in the Consolidated Fixed Charge Ratio. Section 5.10 of
the Credit Agreement is amended to read in its entirety as follows:
SECTION 5.10. Consolidated Fixed Charge Ratio. At the last day of any
fiscal quarter set forth below, the ratio of Earnings Available for Fixed
Charges to Consolidated Fixed Charges, in each case for the four consecutive
fiscal quarters then ended, will not be less than the ratio set forth below
opposite such fiscal quarter:
----------------------------------------------------
FISCAL QUARTER ENDED RATIO
----------------------------------------------------
6/30/00 0.75:1
----------------------------------------------------
9/30/00 0.90:1
----------------------------------------------------
12/31/00 0.90:1
----------------------------------------------------
Thereafter 1.50:1
----------------------------------------------------
6
7
SECTION 10. Additional Exception For Negative Pledge. (a) Section 5.14 of
the Credit Agreement is amended by (i) deleting the "and" at the end of clause
(s) thereof, (ii) renumbering clause (t) thereof as clause (u), and (iii) adding
a new clause (t) immediately after clause (s) thereof, to read in its entirety
as follows:
(t) Liens on assets of MDA and its subsidiaries securing Debt and
other obligations of MDA and such subsidiaries under the MDA Financing;
and
SECTION 11. Change in the Subsidiary Debt Covenant, Addition of an MDA
Covenant. Section 5.17 of the Credit Agreement is hereby amended to read in its
entirety as follows:
SECTION 5.17. (a) Subsidiary Debt. Total Debt of all of the Company's
Subsidiaries (excluding (i) Loans and Letter of Credit Liabilities hereunder and
any Guarantees thereof, (ii) Debt of a Subsidiary to the Company or to a
Wholly-Owned Subsidiary of the Company, (iii) Debt of MDA or any of its
Subsidiaries and (iv) any Guarantees of the NML Debt) will at no time exceed 5%
of Consolidated Net Worth.
(b) MDA Equity. The Company will cause MDA to comply with the covenant
set forth in the Credit Agreement evidencing the MDA Financing requiring MDA to
maintain a minimum consolidated equity level; provided that failure by the
Company to comply with this Subsection (b) at any time shall not constitute an
Event of Default hereunder unless at such time such failure by MDA to comply
with such covenant in such Credit Agreement constitutes an event of default
thereunder which has not been waived by the lenders to the MDA Financing.
SECTION 12. Change in Consolidated Capital Expenditures. Section 5.20 of
the Credit Agreement is hereby amended to read in its entirety as follows:
SECTION 5.20. Consolidated Capital Expenditures. At any date the
aggregate amount of Consolidated Capital Expenditures (other than the *****
Acquisition) for the period from and including January 1, 2000 to and including
such date will not exceed $60,700,000.
SECTION 13. New Bankers' Meeting Covenant. Section 5.21 of the Credit
Agreement is amended to read in its entirety as follows:
7
8
SECTION 5.21. Bankers' Meeting. The Company shall:
(a) At the request of the Administrative Agent, after delivery of the
financial information described in Section 5.22, host a tele-conference, at
which the Company shall (i) discuss with the Banks its detailed strategic
initiatives for fiscal year 2000 and (ii) provide the Banks in reasonable detail
information regarding such strategic initiatives, as well as any other
information regarding the Company and its Subsidiaries as any Bank may
reasonably request.
(b) At the request of the Administrative Agent, after delivery of the
financial information described in Section 5.22, (i) host a bankers meeting, at
which meeting the senior management of the Company shall present in reasonable
detail the financial condition, results of operation, current status of business
and affairs of the Company and the business plan, budget and projections of the
Company for the period from and including January 1, 2000 to and including the
Termination Date, and (ii) provide the Banks in reasonable detail information
regarding the financial condition, business plans and projections of the Company
and its Subsidiaries, as well as any other information regarding the Company and
its Subsidiaries as any Bank may reasonably request.
SECTION 14. Delivery of Additional Financial Information. A new Section
5.22 to the Credit Agreement is added immediately after Section 5.21 thereof, to
read in its entirety as follows:
SECTION 5.22. Additional Financial Information. The Company will deliver
to each of the Banks, on or prior to May 15, 2000 (i) a consolidated balance
sheet of the Company and its Consolidated Subsidiaries as of December 31, 1999,
December 31, 1998 and December 31, 1997 and the related consolidated statements
of operations and cash flows for each such fiscal year, together with
consolidating balance sheets, statements of operations and operating cash flows
for each such fiscal year for each of the Company's Consolidated Subsidiaries,
setting forth in each case in comparative form the figures for the previous
fiscal year, all such consolidated statements reported on in a manner consistent
with the guidelines provided to the Company by the Securities and Exchange
Commission by the Company's independent auditors with respect to the relevant
fiscal year, (ii) a projected balance sheet of the Company and its Consolidated
Subsidiaries as of December 31, 2000 and the related projected statements of
operations and cash flows for such fiscal year and (iii) summary financial
information with respect to each division of the Company and its Subsidiaries;
provided that such summary information (x) will include in any event revenues,
gross profit, operating income, selling, general and administrative expenses and
capital expenditures with respect to each such division and (y) will
8
9
be in such detail as shall be necessary in order to permit a reconciliation of
such information with the information set forth in the projected statements of
operations and cash flows delivered by the Company pursuant to clause (ii).
SECTION 15. Execution of a Restatement. (a) A new Section 5.23 to the
Credit Agreement is added immediately after Section 5.22 thereof, to read in its
entirety as follows:
SECTION 5.23. Restatement Date. (a) The Company and the Banks will use
their respective best efforts to enter into a restatement of this Agreement on
or prior to May 31, 2000 pursuant to which amendment the obligations of the
Company hereunder shall be restructured in a manner satisfactory to the Company
and the Banks.
(b) The Company and the Banks acknowledge and agree that it is
currently contemplated that, pursuant to the restatement of the Credit
Agreement contemplated by Section 5.23 of the Credit Agreement as amended
hereby, (i) the compliance levels applicable to the covenants set forth
in Sections 5.08, 5.09 and 5.10 of the Credit Agreement will be reset for
such fiscal quarter as the Company shall have provided financial
projections to levels mutually agreed upon by the Company and the
Required Banks on the basis of such updated financial projections
consistent with the methodology and intent used in deriving the covenant
levels applicable during the Waiver Period (as defined in Amendment No.8
and Waiver to this Agreement), (ii) the Company shall be permitted to
consummate the acquisition identified to the Banks as the "Cooler
Acquisition" substantially on the terms described by the Company to the
Banks prior to the Amendment No. 8 Effective Date (but not other
acquisitions), (iii) the Company shall be permitted to consummate an
issuance of convertible Debt substantially on the terms described by the
Company to the Banks prior to the Amendment No. 8 Effective Date and (iv)
the mandatory reductions of the Commitments effected by Sections 2.10(d)
and (e) of the Credit Agreement as amended hereby shall not be changed.
SECTION 16. Additional Events of Default. (a) Section 6.01(b) of the
Credit Agreement is amended to read in its entirety as follows:
(b) (i) any fee payable pursuant to Section 2.17 shall not be paid when
due or (ii) any interest on any Loan, any fees (other than any fee described in
clause (i)) or commissions or any other amount payable under any Financing
Document, shall not be paid within one (1) Domestic Business Day after the due
date thereof;
9
10
(b) Section 6.01(c) of the Credit Agreement is amended to read in its
entirety as follows:
(c) any Borrower shall fail to observe or perform any covenant or
agreement contained in Sections 5.01(g) and 5.07 to 5.22 inclusive;
SECTION 17. Amendment to Amendment and Waivers Section. Clause (iii) of
section 10.05 of the Credit Agreement is amended to read in its entirety as
follows:
(iii) postpone the date fixed for any payment of principal or interest on
any Loan, or any fees hereunder or for termination or scheduled reduction
of any Commitment,
SECTION 18. Limitation on New Extensions of Credit. The Company agrees
that neither Company nor any other Borrower shall deliver a Notice of Borrowing
under the Credit Agreement or a request for issuance of a Letter of Credit under
the Credit Agreement or otherwise request any Bank (including the LC Bank) to
extend any credit to the Company or any other Borrower under the Credit
Agreement, and that, notwithstanding any provision of the Credit Agreement
(including Sections 2.01, 2.03 and 3.02), on and after the date hereof, no Bank
(including the LC Bank) shall be required to make any Loan, or issue or
participate in any Letter of Credit (it being understood that nothing in this
sentence shall be construed to prohibit the Company from delivering a Notice of
Interest Rate Election with respect to any Loan outstanding prior to the
Amendment No. 6 Effective Date and continuing or converting such Loan on the
terms set forth in such Notice of Interest Rate Election).
SECTION 19. Amendment to Pricing Schedule. The Pricing Schedule to the
Credit Agreement is amended by substituting the date "January 1, 2001" for the
date "April 30, 2000" set forth in paragraph immediately after the table set
forth therein.
SECTION 20. New York Law. This Amendment and Waiver shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 21. Counterparts, Effectiveness. This Amendment and 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 Amendment and Waiver shall become effective on the date (the
"AMENDMENT NO. 8 EFFECTIVE DATE") on which the Administrative Agent shall have
received:
10
11
(i) duly executed counterparts hereof signed by the Company 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) for the ratable account of each Bank from which approval of this
Amendment and Waiver shall have been received at or prior to the later of (i)
the time the condition in clause (i) is satisfied and (ii) 5:00 P.M., New York
City time, on April 13, 2000, an amendment fee in an amount equal to 0.125% of
the amount of such Bank's Commitment as in effect on such date; provided that
the Administrative Agent shall have received duly executed counterparts hereof
signed by the Required Banks (or, in the case of any Bank 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 Bank). The determination of
the Administrative Agent as to timing of the receipt of a Bank's approval shall
be conclusive, absent manifest error.
11
12
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
and Waiver to be duly executed as of the date first above written.
ORBITAL SCIENCES CORPORATION
By
------------------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By
------------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By
------------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., f/k/a
By
------------------------------------------
Name:
Title:
12
13
FIRST UNION COMMERCIAL CORPORATION
By
------------------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN
ISLAND BRANCHES
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By
------------------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By
------------------------------------------
Name:
Title:
13
14
WACHOVIA BANK, N.A.
By
------------------------------------------
Name:
Title:
CHEVY CHASE BANK
By
------------------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent and
as Collateral Agent
By
------------------------------------------
Name:
Title:
Acknowledged by:
ENGINEERING TECHNOLOGIES, INC.
By
------------------------------------------
Name:
Title:
ORBITAL SPACE SYSTEMS, INC.
By
------------------------------------------
Name:
Title:
14
15
ORBITAL COMMERCIAL SYSTEMS, INC.
By
------------------------------------------
Name:
Title:
ORBITAL INTERNATIONAL, INC.
By
------------------------------------------
Name:
Title:
ORBITAL SERVICES CORPORATION
By
------------------------------------------
Name:
Title:
ORBITAL NAVIGATION CORPORATION
By
------------------------------------------
Name:
Title:
ORBLINK LLC
By
------------------------------------------
Name:
Title:
15
