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EXHIBIT 10.1.1
CONFORMED COPY
AMENDMENT NO. 1 TO
SECOND AMENDED AND RESTATED
CREDIT AND REIMBURSEMENT AGREEMENT
AMENDMENT NO. 1 TO
AMENDED AND RESTATED
COMPANY SECURITY AGREEMENT
AMENDMENT No. 1 dated as of December 19, 1997 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").
W I T N E S S E T H :
WHEREAS, the parties hereto and Magellan Corporation ("Magellan")
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 Company and the Collateral Agent have entered into an
Amended and Restated Company Security Agreement dated as of June 30, 1992 and
amended and restated as of August 5, 1997 (as amended from time to time, the
"Company Security Agreement"); and
WHEREAS, Magellan is currently a Borrower and a Guarantor under
the Credit Agreement and is party to a Security Agreement dated as of August 5,
1997 (as amended from time to time, the "Magellan Security Agreement") with the
Collateral Agent; and
WHEREAS, the Company has asked the Banks, and the Banks are
willing, on the terms and conditions set forth below, to release Magellan from
its obligations as Borrower and Guarantor under the Credit Agreement and to
release the security interests created under the Magellan Security Agreement;
and
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WHEREAS, the Company has entered into an Agreement and Plan of
Merger dated as of November 28, 1997 (the "Merger Agreement") with Ashtech Inc.
and Magellan; and
WHEREAS, in the absence of certain of the amendments effected by
this Amendment, the consummation of the transactions contemplated by the Merger
Agreement (the "Ashtech Merger") would constitute an Event of Default under the
Credit Agreement; and
WHEREAS, the parties hereto desire to amend the Credit Agreement
in order to effect the release of Magellan as a Borrower and a Guarantor, to
delete the Borrowing Base and any covenants relating thereto and to permit the
Company to consummate the Ashtech Merger without creating an Event of Default
under the Credit Agreement;
WHEREAS, the parties hereto desire to amend the Company Security
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 or the Company Security Agreement shall have the meaning
assigned to such term in the Credit Agreement or the Company Security
Agreement, as the case may be. 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 or the Company Security Agreement shall from and after the date
hereof refer to the Credit Agreement or the Company Security Agreement, as the
case may be, as amended hereby.
SECTION 2. Deletion of Definitions Relating to the Borrowing Base.
(a) The definitions of "BORROWING BASE", "BORROWING BASE CERTIFICATE",
"DESIGNATED ELIGIBLE COMMERCIAL CONTRACTOR","DESIGNATED STATE", "ELIGIBLE
ASSIGNED GOVERNMENT CONTRACT", "ELIGIBLE COMMERCIAL CONTRACT","ELIGIBLE
COMMERCIAL CONTRACTOR", "ELIGIBLE COMMERCIAL RECEIVABLE", "ELIGIBLE DD250
GOVERNMENT RECEIVABLE", "ELIGIBLE GOVERNMENT CONTRACT", "ELIGIBLE MILESTONE
GOVERNMENT RECEIVABLE", "ELIGIBLE NON-BILLED COMMERCIAL RECEIVABLES", "ELIGIBLE
NON-BILLED GOVERNMENT RECEIVABLES", "ELIGIBLE RECEIVABLE", "ELIGIBLE RETAINED
GOVERNMENT RECEIVABLE", "ELIGIBLE STATE COMMERCIAL RECEIVABLE", "FOREIGN
RECEIVABLE", "GOVERNMENT","NON-BILLED RECEIVABLES", "OBLIGOR" and "OTHER
ELIGIBLE GOVERNMENT RECEIVABLE" set forth in Section 1.01 of the Credit
Agreement are hereby deleted in their entirety.
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(b) The definitions of "Available LC Amount", "Borrower Subsidiaries" and
"Wholly-Owned Subsidiary" set forth in Section 1.01 of the Credit Agreement are
hereby amended to read in their entirety as follows:
"AVAILABLE LC AMOUNT" means, on any date, with respect to each
Borrower, an amount equal to the excess (if any) of $15,000,000 over the
aggregate Letter of Credit Liabilities of all other Borrowers on such date.
"BORROWER SUBSIDIARIES" means any Wholly-Owned Subsidiary of the
Company as to which an Election to Participate shall have been delivered to
the Administrative Agent and as to which an Election to Terminate shall not
have been delivered to the Administrative Agent. Each such Election to
Participate and Election to Terminate shall be duly executed on behalf of
such Wholly-Owned Subsidiary and the Company in such number of copies as
the Administrative Agent may request. The delivery of an Election to
Terminate shall not affect any obligation of a Borrower Subsidiary
theretofore incurred. The Administrative Agent shall promptly give notice
to the Banks of the receipt of any Election to Participate or Election to
Terminate.
"WHOLLY-OWNED SUBSIDIARY" means any Subsidiary all of the shares
of capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the
Company (or if such term is used with reference to any other Person, by
such other Person).
(c) A new definition of "Magellan Financing" is added in alphabetical order
in Section 1.01 of the Credit Agreement, to read in its entirety as follows:
"MAGELLAN FINANCING" means, collectively, (i) one or more credit
agreements to which Magellan is or may become a party providing for loans
thereunder to be used by Magellan for working capital purposes and (ii) a
credit facility to which Ashtech Inc. is a party providing for loans
thereunder to be used by Ashtech Inc. for working capital purposes;
provided that the aggregate principal amount of Debt that may be incurred
under the credit agreements described in clauses (i) and (ii) shall not
exceed $20,000,000.
SECTION 3. Treatment of Magellan for Purposes of the Financial
Covenants. A new sentence is added at the end of Section 1.02 of the Credit
Agreement, to read in its entirety as follows:
"For purposes of Sections 5.08, 5.09, 5.10, and 5.17 and related
definitions, only the percentage of Debt, net income, interest expense,
rental expense, income
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taxes, Intangible Assets and equity of Magellan equal to the percentage of
the equity of Magellan held directly or indirectly by the Company at the
relevant time shall be included in such computations."
SECTION 4. Amendment to Article 2 of the Credit Agreement. Section
2.15 of the Credit Agreement is hereby amended to read in its entirety as
follows:
SECTION 2.15. Deficiencies in the Borrowing Base. [Intentionally
omitted].
SECTION 5. Amendments to Conditions Precedent to All Credit
Events. Section 3.03 of the Credit Agreement is hereby amended as follows:
(i) by adding the word "and" at the end of clause (c) thereof;
(ii) by amending clause (d) to read in its entirety as follows:
"(d) solely if such Credit Event is the making of a
Revolving Loan to or the issuance of a Letter of Credit for the
account of any Borrower, the fact that, immediately after such
Credit Event, the aggregate Revolver Exposures of all Revolver
Banks in respect of all Borrowers will not exceed the aggregate
amount of the Revolver Commitments."; and
(iii) by deleting clause (e) thereof.
SECTION 6. Amendments to Conditions Precedent to First Borrowing
by Each Borrower Subsidiary. Section 3.04 of the Credit Agreement is hereby
amended by deleting the parenthetical "(other than Magellan)" contained in the
introductory sentence thereof.
SECTION 7. Amendments to the Representation and Warranty Regarding
Assignments. Section 4.05 of the Credit Agreement is hereby amended by
substituting the phrase "under the government contracts described therein" for
the phrase "under the Eligible Government Contracts described therein".
SECTION 8. Amendments to the Information Covenant. Section 5.01
of the Credit Agreement is hereby amended as follows:
(i) clauses (c), (d) and (e) thereof are hereby amended to read in their
entirety as follows:
"(c) [Intentionally omitted]
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(d) [Intentionally omitted]; and
(e) [Intentionally omitted];" and
(ii) clause (l) is hereby amended to read in its entirety as follows:
"(l) from time to time such additional information regarding the
financial position or business of the Company and its Subsidiaries as the
Collateral Agent or the Administrative Agent, at the request of any Bank,
may reasonably request."
SECTION 9. Additional Permitted Investment. Section 5.07 of the
Credit Agreement is amended to read in its entirety as follows:
" SECTION 5.07. Investments. Neither the Company nor any
Subsidiary will make or acquire any Investment in any Person other than:
(a) Investments in any Borrower;
(b) Investments (other than (i) Investments described in clause
(a) above and (ii) the ORBCOMM Global Guaranty)) in an aggregate principal
amount not exceeding $5,000,000 in direct or indirect Subsidiaries of the
Company immediately after such Investment is made or acquired;
(c) Temporary Cash Investments;
(d) Investments made by the Company, any of its Wholly-Owned
Subsidiaries or OCC in an aggregate principal amount not exceeding
$75,250,000, in any entity or entities through which the Company, any of
its Wholly-Owned Subsidiaries or OCC will develop, construct, operate
and/or market the ORBCOMM low-earth orbit satellite communications system;
(e) Investments (other than Investments described in clause (b)
above) made or acquired or committed to be made or acquired by MDA prior to
the date MDA was acquired by the Company and listed on Schedule III;
(f) the ORBCOMM Global Guaranty;
(g) Investments in Orbital Imaging (i) made on or prior to June
15, 1997; provided that (A) the aggregate amount of such Investments
("Rollover Investments") does not exceed the aggregate amount of
Investments made by the Company in the Orbital Imaging Project on or prior
to December 1, 1996 and (B) neither the Company nor any of its Subsidiaries
shall contribute any cash or assets
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in connection with, or as consideration for, the making of any such
Rollover Investment and (ii) in an aggregate principal amount not exceeding
$80,000,000 (in addition to Investments described in clause (i));
(h) Investments in an aggregate amount not exceeding $38,000,000
consisting of capital stock of Engineering Technologies, Inc. and CTA
Commercial Systems Inc. purchased by the Company pursuant to an Asset
Acquisition Agreement dated as of July 11, 1997 between CTA INCORPORATED
and the Company;
(i) Investments by the Company or any of its Subsidiaries
constituting "vendor financing" under contracts entered into in the
ordinary course of business;
(j) Investments made on or before the effective date of the
Ashtech Merger (as defined in Amendment No.1 to this Agreement dated as of
December 19, 1997 among the Company, the Banks, the Administrative Agent
and the Collateral Agent) consisting of cash in an aggregate amount not
exceeding $25,000,000 paid by the Company to the shareholders of Ashtech
Inc. as merger consideration for the Ashtech Merger;
(k) Investments (x) made by the Company on or before the
effective date of the Ashtech Merger consisting of subordinated unsecured
intercompany loans to Magellan in an aggregate principal amount not in
excess of $18,000,000 and (y) made by the Company after the effective date
of the Ashtech Merger consisting of subordinated unsecured intercompany
loans to Magellan in an aggregate principal amount not in excess of
$10,000,000, but in each case solely if such Investments are evidenced by
an intercompany note issued by Magellan for the account of the Company and
in form and substance satisfactory to the Collateral Agent and such
intercompany note is subject to a perfected first priority Lien in favor of
the Collateral Agent for the benefit of the Banks; and
(l) any Investment (other than any Investment in direct or
indirect Subsidiaries of the Company immediately after such Investment is
made or acquired) not otherwise permitted by the foregoing clauses of this
Section 5.07 if, immediately after such Investment is made or acquired, the
aggregate net book value of all Investments permitted by this clause (l)
does not exceed 12% of Consolidated Tangible Net Worth."
SECTION 10. Additional Permitted Lien. Section 5.14 of the Credit
Agreement is hereby amended as follows:
(a) the word "and" at the end of clause (p) thereof is hereby deleted;
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(b) clause (q) thereof is hereby relettered as clause (s); and
(c) new clauses (q) and (r) are hereby added immediately after clause (p)
thereof, to read in their entirety as follows:
"(q) Liens on assets of Magellan securing Debt and other
obligations of Magellan under the Magellan Financing;
(r) solely until the first anniversary of the effective
date of the Ashtech Merger, Liens on shares of capital stock of
Magellan held by the Company to secure contingent indemnity
obligations of the Company under the Agreement and Plan of Merger
dated as of November 28, 1997 among the Company, Ashtech Inc. and
Magellan; provided that the aggregate value (determined in
accordance with the Escrow Agreement attached as Exhibit C to such
Merger Agreement) of such shares subject to such Liens shall not
exceed at any time $1,500,000; and"
SECTION 11. Conforming Amendments to the Events of Default Section
of the Credit Agreement. Section 6.01(c) of the Credit Agreement is hereby
amended by deleting the references to "Sections 5.01(c) and 5.01(d)" set forth
therein.
SECTION 12. Amendments to the Amendments Section of the Credit
Agreement. Section 10.05 of the Credit Agreement is hereby amended as follows:
(i) clauses (iv) and (v) thereof are deleted in their entirety; and
(ii) clauses (vi) and (vii) are renumbered as clauses (iv) and (v),
respectively.
SECTION 13. Changes in Participants' Rights. The proviso set forth
in Section 10.06(b) of the Credit Agreement is hereby amended as follows:
"provided that such participation agreement may provide that such Bank will not
agree to any modification, amendment or waiver of this Agreement described in
clauses (i), (ii), (iii) or (iv) of Section 10.05 without the consent of the
Participant".
SECTION 14. Amendments to Exhibit D to the Credit Agreement.
(a) A new Section (J) is added at the end of Section 4 of Exhibit D to the
Credit Agreement, to read in its entirety as follows:
"(J) Within 30 days after entering into any contract with
any United States government agency (or, with respect to any such
contract in existence on the date hereof, within 30 days after the
date hereof) under which contract payments to the Borrower in an
amount in excess of
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$3,000,000 may be made, the Borrower shall deliver to such
government agency an instrument of assignment duly completed and
executed by the Borrower substantially in the form of Exhibit G-2
to the Credit Agreement."
(b) The first sentence of Section 5(B) of Exhibit D to the Credit Agreement
is hereby amended to read in its entirety as follows:
"The Borrower shall instruct all account debtors and other Persons
obligated in respect of (x) all Accounts in an amount in excess of
$1,000,000 and (y) all Accounts (regardless of the amount thereof) payable
pursuant to a contract under which the aggregate amount of payments to be
made exceeds $1,000,000 to make all payments in respect thereof either (i)
directly to the Collateral Agent (by instructing that such payments be
remitted to a post office box which shall be in the name and under the
control of the Collateral Agent) or (ii) to one or more other banks in any
state in the United States (by instructing that such payments be remitted
to a post office box which shall be in the name and under the control of
such bank) under a Lockbox Letter substantially in the form of Exhibit B
hereto duly executed by the Borrower and such bank or under other
arrangements, in form and substance reasonably satisfactory to the
Collateral Agent, pursuant to which the Borrower shall have irrevocably
instructed such other bank (and such other bank shall have agreed) to remit
all proceeds of such payments directly to the Collateral Agent for deposit
into the Collateral Account or as the Collateral Agent may otherwise
instruct such bank."
SECTION 15. Amendments to the Company Security Agreement.
(a) A new Section (J) is added at the end of Section 4 of the Company
Security Agreement, to read in its entirety as follows:
"(J) Within 30 days after entering into any contract with
any United States government agency (or, with respect to any such
contract in existence on December 19, 1997, on or prior to January
19, 1998) under which contract payments to the Debtor in an amount
in excess of $3,000,000 may be made, the Debtor shall deliver to
such government agency an instrument of assignment duly completed
and executed by the Debtor substantially in the form of Exhibit
G-2 to the Credit Agreement."
(b) The first sentence of Section 6(B) of the Company Security Agreement is
hereby amended to read in its entirety as follows:
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"The Debtor shall instruct all account debtors and other Persons obligated
in respect of (x) all Accounts in an amount in excess of $1,000,000 and (y)
all Accounts (regardless of the amount thereof) payable pursuant to a
contract under which the aggregate amount of payments to be made exceeds
$1,000,000 to make all payments in respect thereof either (i) directly to
the Collateral Agent (by instructing that such payments be remitted to a
post office box which shall be in the name and under the control of the
Collateral Agent) or (ii) to one or more other banks in any state in the
United States (by instructing that such payments be remitted to a post
office box which shall be in the name and under the control of such bank)
under a Lockbox Letter substantially in the form of Exhibit B hereto duly
executed by the Debtor and such bank or under other arrangements, in form
and substance reasonably satisfactory to the Collateral Agent, pursuant to
which the Debtor shall have irrevocably instructed such other bank (and
such other bank shall have agreed) to remit all proceeds of such payments
directly to the Collateral Agent for deposit into the Collateral Account or
as the Collateral Agent may otherwise instruct such bank."
SECTION 16. Release of Magellan as Borrower. (a) Magellan is
hereby released from all of its obligations as a Borrower and a Guarantor under
the Credit Agreement and the other Financing Documents. The release effected
pursuant to the immediately preceding sentence shall not release, discharge or
otherwise affect in any manner the obligations of the Company or any Borrower
Subsidiary as Guarantors pursuant to the Guaranty set forth in Article 9 of the
Credit Agreement of the obligations of Magellan under the Financing Documents.
(b) The security interests created under the Magellan Security Agreement
are hereby terminated. The Banks hereby consent to such termination and
acknowledge that the Collateral Agent may execute and deliver to Magellan such
documents as Magellan shall reasonably request to evidence such termination
(including without limitation UCC termination statements and notices of
termination of assignment with respect to any Eligible Government Contracts
which constitute Collateral under the Magellan Security Agreement).
(c) On or promptly after the Amendment Effective Date, each Bank will
cancel its Notes of Magellan and return them to Magellan.
SECTION 17. New York Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 18. 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
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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);
(ii) evidence satisfactory to it that the aggregate outstanding
principal amount of the Loans of Magellan shall have been repaid in full,
together with all accrued and unpaid interest thereon; and
(iii) the intercompany note evidencing the intercompany loans
described in clause (x) of Section 5.07(k) of the Credit Agreement as
amended hereby, which intercompany note shall be in form and substance
satisfactory to the Collateral Agent.
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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/ Xxxxxxx X. Sunshine
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Title: Vice President & Treasurer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxxx X. Xxxxx
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Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ J.R. Trimble
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Title: Senior Relationship Manager
FIRST UNION NATIONAL BANK,
(successor by merger to Signet Bank)
By /s/ Xxxx X. Xxxxxx
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Title: Vice President
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NATIONSBANK, N.A.
By /s/ Xxxxxxx X. Brick
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Title: Assistant Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By /s/ Xxxxxxxxx Xxxxxx
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Title: Vice President
THE SUMITOMO BANK, LIMITED
By /s/ Xxxxx X. Xxxxxxx
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Title: Vice President
By /s/ Xxxxx X. Xxxxx
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Title: Vice President and Manager
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