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EXHIBIT 10.2.2
EXECUTION COPY
ORBITAL SCIENCES CORPORATION
SECOND AMENDMENT
DATED AS OF MARCH 15, 1996
TO
NOTE AGREEMENT
DATED AS OF JUNE 1, 1995
Re: $20,000,000 10.50% Senior Notes,
Due June 14, 2001
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SECOND AMENDMENT TO NOTE AGREEMENT
THIS SECOND AMENDMENT to Note Agreement dated as of March 15,
1996 (the or this "Second Amendment"), is entered into between Orbital Sciences
Corporation, a Delaware corporation (the "Company"), and The Northwestern
Mutual Life Insurance Company (the "Purchaser").
RECITALS:
A. The Company and the Purchaser have heretofore entered into the
Note Agreement dated as of June 1, 1995 and the First Amendment to Note
Agreement dated as of June 30, 1995 (as amended, the "Note Agreement").
B. On or about November 17, 1995, the Company consummated the
acquisition of XxxXxxxxx, Xxxxxxxxx and Associates Ltd., a corporation
incorporated under the laws of Canada ("XxxXxxxxx, Xxxxxxxxx"), upon the terms
and conditions and all as contemplated by that certain Notice of Special
Meeting of Shareholders and Holders of the 1988 Employee Share Options and the
1988 Key Employee Share Options of XxxXxxxxx, Xxxxxxxxx and Associates Ltd. and
Management information Circular dated October 6, 1995 (the "Information
Circular") relating to the Arrangement Involving XxxXxxxxx Xxxxxxxxx and
Associates Ltd., 3173623 Canada Inc. and the Company (the "XxxXxxxxx, Xxxxxxxxx
Arrangement").
C. The consummation of the XxxXxxxxx, Xxxxxxxxx Arrangement would
have been prohibited by the terms of the Note Agreement and in consequence
thereof, the Company requested the Purchaser to waive application of certain
terms of the Note Agreement in order to permit consummation of the XxxXxxxxx,
Xxxxxxxxx Arrangement and within 90 days thereafter enter into a second
amendment to the Note Agreement upon terms and conditions acceptable to the
Purchaser, for the purpose of amending such of the terms of the Note Agreement
as would be necessary in order to permit the acquisition and ownership of
XxxXxxxxx, Xxxxxxxxx on an ongoing basis.
D. On or about November 17, 1995, the Purchaser entered into such
waiver.
E. The Company and the Purchaser now desire to amend certain of
the terms of the Note Agreement in order to (i) permit the acquisition and
ownership of XxxXxxxxx, Xxxxxxxxx on an ongoing basis within the limitations of
the Note Agreement, (ii) waive certain other defaults and (iii) permit further
actions by the Company.
F. In consideration of the Purchaser's agreeing to amend the Note
Agreement as set forth herein, the Company has paid to the Purchaser a fee
equal to $50,000.
G. Capitalized terms used herein shall have the respective
meanings ascribed thereto in the Note Agreement unless herein defined or the
context shall otherwise require.
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H. All requirements of law have been fully complied with and all
other acts and things necessary to make this Second Amendment a valid, legal
and binding instrument according to its terms for the purposes herein expressed
have been done or performed.
NOW, THEREFORE, the Company and the Purchaser, in consideration of
good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, do hereby agree as follows:
SECTION 1. AMENDMENT.
Section 1.1. Section 5.1 of the Note Agreement shall be and
is hereby amended in its entirety to read as follows:
"The Company will preserve and keep in full force and effect,
and will cause each Subsidiary to preserve and keep in full
force and effect, its corporate existence and all licenses and
permits necessary to the proper conduct of its business,
provided that the foregoing shall not prevent any transaction
permitted by Section 5.13, and provided, further, that nothing
contained in this Section 5.1 shall be deemed or construed to
require the Company to maintain the corporate existence of any
Subsidiary or to maintain or cause any of its Subsidiaries to
maintain any such license or permit if the failure to preserve
and keep in full force and effect the corporate existence of
such Subsidiary or such permit or license, as the case may be,
would not, individually or in the aggregate, materially and
adversely affect the properties, business, prospects, profits
or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole."
Section 1.2. Section 5.8 of the Note Agreement shall be and is
hereby amended in its entirety to read as follows:
"Section 5.8. Fixed Charges Coverage Ratio. The Company will at
all times keep and maintain the Fixed Charges Coverage Ratio at not
less than:
DURING THE PERIOD MINIMUM RATIO LEVEL
March 31, 1996 through 1.35 to 1.00
June 30, 1996
June 30, 1996 and 1.50 to 1.00"
thereafter
Section 1.3. Section 5.13(c) of the Note Agreement shall be and
is hereby amended as follows:
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(a) Clause (3) shall be and is hereby amended in its entirety to
read as follows: "(3) the issue or grant of any right,
option or warrant to purchase capital stock of a Subsidiary or
other Securities exchangeable for or convertible into capital
stock of such Subsidiary to any employee or employees of such
Subsidiary, provided that after giving effect to the exercise
of such right, option, warrant or other convertible Security,
such holders of rights, options, warrants or convertible
Securities do not hold in the aggregate more than 10% of the
outstanding capital stock of such Subsidiary, provided further
that in the case of Magellan Corporation, a Delaware
corporation and a Wholly-owned Subsidiary of the Company,
after giving effect to the exercise of such right, option,
warrant, or other convertible Security, such holders of
rights, options, warrants or convertible Securities do not
hold in the aggregate more than 15% of the outstanding capital
stock of Magellan Corporation; or"
(b) Clause (5) is hereby amended by substituting a comma for the
period and adding the word "or" at the end thereof;
(c) A new clause (6) shall be added reading as follows:
"(6) the issue of XxxXxxxxx, Xxxxxxxxx Preferred
Stock by XxxXxxxxx, Xxxxxxxxx Holdings, in connection with
consummation of the XxxXxxxxx, Xxxxxxxxx Arrangement;"
Section 1.4. Section 8.1 of the Note Agreement shall be and is
hereby amended as follows:
(a) The following definitions shall be added thereto in
alphabetical order:
""XxxXxxxxx, Xxxxxxxxx Arrangement" shall mean that
certain arrangement involving XxxXxxxxx, Xxxxxxxxx and
Associates Ltd., 3173623 Canada Inc. and the Company as more
fully described in that certain Notice of Special Meeting of
Shareholders and Holders of the 1988 Employee Share Options
and the 1988 Key Employee Share Options of XxxXxxxxx,
Xxxxxxxxx and Associates Ltd. and Management Information
Circular dated October 6, 1995, which Arrangement was
consummated on November 17, 1995."
""XxxXxxxxx, Xxxxxxxxx Holdings" shall mean
XxxXxxxxx, Xxxxxxxxx Holdings, Inc. (formerly known as 3173623
Canada Inc.), a corporation incorporated under the laws of
Canada."
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""XxxXxxxxx, Xxxxxxxxx Preferred Stock" shall mean
the Exchangeable Non-Voting Shares of XxxXxxxxx, Xxxxxxxxx
Holdings as provided in the XxxXxxxxx Xxxxxxxxx Arrangement
and the 10,000 shares of Series B Preferred Shares of
XxxXxxxxx, Xxxxxxxxx Holdings, in each case issued in
connection with the consummation of the XxxXxxxxx, Xxxxxxxxx
Arrangement."
(b) The definition of "Consolidated Priority Funded Debt" shall be
and is hereby amended in its entirety to read as follows:
""Consolidated Priority Funded Debt" shall mean the
sum of (a) Consolidated Secured Funded Debt plus (b) all
Funded Debt of the Company's Subsidiaries, plus (c) all
preferred stock of Subsidiaries held by Persons other than the
Company or any Wholly-owned Subsidiary; provided, that the
XxxXxxxxx, Xxxxxxxxx Preferred Stock issued in connection with
the consummation of the XxxXxxxxx, Xxxxxxxxx Arrangement shall
not be included in any calculation of "Consolidated Priority
Funded Debt"."
(c) The definition of "Fixed Charges Coverage Ratio" shall be and
is hereby amended in its entirety to read as follows:
""Fixed Charges Coverage Ratio" shall mean (a) during
the period from and including March 31, 1996 through and
including June 29, 1996, the ratio of Adjusted Consolidated
Operating Earnings for the period from and including January
1, 1996 through and including March 31, 1996 to Consolidated
Fixed Charges for such fiscal quarter period, (b) during the
period from and including June 30, 1996 through and including
September 29, 1996, the ratio of Adjusted Consolidated
Operating Earnings for the period from and including January
1, 1996 through and including June 30, 1996 to Consolidated
Fixed Charges for such two fiscal quarter period, (c) during
the period from and including September 30, 1996 through and
including December 30, 1996, the ratio of Adjusted
Consolidated Operating Earnings for the period from and
including January 1, 1996 through and including September 30,
1996 to Consolidated Fixed Charges for such three fiscal
quarter period, and (d) during the period from and including
December 31, 1996 to the date of payment in full of the Notes,
the ratio of Adjusted Consolidated Operating Earnings for the
immediately preceding four fiscal quarter period to
Consolidated Fixed Charges for such four fiscal quarter
period."
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(d) Paragraph (e) of the definition of "Restricted Investment"
shall be and is hereby amended in its entirety to read as follows:
"(e)(1) Investments in commercial paper of
corporations organized under the laws of the United States or
any state thereof maturing in 360 days or less from the date
of issuance which, at the time of acquisition by the Company
or any Subsidiary, is accorded a rating of "A-1" or better by
Standard & Poor's Ratings Group or "P-1" by Xxxxx'x Investors
Service, Inc.; and (2) Investments by XxxXxxxxx, Xxxxxxxxx and
Associates Ltd., a corporation incorporated under the laws of
Canada ("MDA"), in commercial paper of corporations organized
under the laws of Canada or any province thereof maturing in
360 days or less from the date of issuance which, at the time
of acquisition by MDA, is accorded the highest rating by
Standard & Poor's Ratings Group or by Xxxxx'x Investors
Service, Inc.;"
(e) The definition of "Wholly-owned" shall be and is hereby
amended in its entirety to read as follows:
""Wholly-owned" when used in connection with any
Subsidiary shall mean a Subsidiary of which all of the issued
and outstanding shares of stock (except shares required as
directors' qualifying shares) and all Indebtedness for
borrowed money shall be owned by the Company and/or one or
more of its Wholly-owned Subsidiaries, provided, however, that
(a) so long as the Company shall own 90% or more of the Voting
Stock of ORBCOMM, ORBCOMM shall be deemed to be a Wholly-owned
Subsidiary and (b) so long as the Company shall own 100% or
more of the Voting Stock of XxxXxxxxx, Xxxxxxxxx Holdings,
XxxXxxxxx, Xxxxxxxxx Holdings shall be deemed to be a
Wholly-owned Subsidiary, notwithstanding that the Company does
not own the XxxXxxxxx, Xxxxxxxxx Preferred Stock, in each such
case for all purposes of this Agreement."
SECTION 2. WAIVER.
Section 2.1. Upon and by virtue of this Second Amendment
becoming effective as herein contemplated, the failure of the Company to comply
with the provisions of Section 5.8 (Fixed Charge Coverage Ratio) of the Note
Agreement for the period of October 1, 1995 through December 31, 1995 which
failure constitutes an Event of Default under the Note Agreement shall be
deemed to have been waived by the Purchaser. The Company understands and
agrees that the waiver contained in this
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Section 2.1 pertains only to the matters and to the extent herein described and
not to any other actions of the Company under, or matters arising in connection
with, the Note Agreement or to any rights which the Purchaser has arising by
virtue of any such other actions or matters.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Section 3.1. To induce the Purchaser to execute and deliver this
Second Amendment, the Company represents and warrants to the Purchaser (which
representations shall survive the execution and delivery of this Second
Amendment) that:
(a) this Second Amendment has been duly authorized, executed and
delivered by it and this Second Amendment constitutes the legal, valid
and binding obligation, contract and agreement of the Company
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or
limiting creditors' rights generally;
(b) the Note Agreement, as amended by this Second Amendment,
constitutes the legal, valid and binding obligations, contracts and
agreements of the Company enforceable against it in accordance with
its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable
principles relating to or limiting creditors' rights generally;
(c) the execution, delivery and performance by the Company of this
Second Amendment (i) has been duly authorized by all requisite
corporate action and, if required, shareholder action, (ii) does not
require the consent or approval of any governmental or regulatory body
or agency, and (iii) will not (A) violate (1) any provision of law,
statute, rule or regulation or its certificate of incorporation or
bylaws, (2) any order of any court or any rule, regulation or order of
any other agency or government binding upon it, or (3) any provision
of any material indenture, agreement or other instrument to which it
is a party or by which its properties or assets are or may be bound,
or (B) result in a breach or constitute (alone or with due notice or
lapse of time or both) a default under any indenture, agreement or
other instrument referred to in clause (iii)(A)(3) of this Section
2.1(c);
(d) as of the date hereof and after giving effect to this Second
Amendment, no Default or Event of Default has occurred which is
continuing; and
(e) Exhibit A attached to this Second Amendment correctly
describes all of the preferred stock of the Company and its
Subsidiaries issued in connection with the XxxXxxxxx, Xxxxxxxxx
Arrangement (as defined herein).
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SECTION 4. MISCELLANEOUS.
Section 4.1. This Second Amendment shall become effective and
binding upon the Company and the Purchaser on the date hereof upon the
acceptance hereof by the Purchaser in the space below.
Section 4.2. Except as modified and expressly amended by this
Second Amendment, the Note Agreement is in all respects ratified, confirmed and
approved and all of the terms, provisions and conditions thereof shall be and
remain in full force and effect.
Section 4.3. The Company agrees to pay all reasonable fees and
expenses of the Purchaser and its special counsel in connection with the
preparation of this Second Amendment.
Section 4.4. Any and all notices, requests, certificates and
other instruments executed and delivered after the execution and delivery of
this Second Amendment may refer to the Note Agreement without making specific
reference to this Second Amendment but nevertheless all such references shall
include this Second Amendment unless the context otherwise requires.
Section 4.5. This Second Amendment shall be governed by and
construed in accordance with the laws of the State of Illinois.
Section 4.6. This Second Amendment may be executed and delivered
in any number of counterparts, each of such counterparts constituting an
original, but all together only one Second Amendment.
IN WITNESS WHEREOF, the Company and the Purchaser have caused this
instrument to be executed, all as of the day and year first above written.
ORBITAL SCIENCES CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
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Its Executive Vice President and
Chief Financial Officer
Accepted and Agreed to:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By /s/ A. Xxxx Xxxxxxx
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Its Vice President
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PREFERRED STOCK ISSUED IN CONNECTION WITH THE
XXXXXXXXX, XXXXXXXXX ARRANGEMENT
PREFERRED STOCK ISSUED BY ORBITAL SCIENCES CORPORATION:
NUMBER AND DESCRIPTION OF SHARES HOLDER
One Share Of Series A Special Voting Preferred Stock, par Value State Street Exchange and Trust Company
$0.01 per share. This stock has no liquidation or dividend
rights; it entitles the holder to vote on behalf of the holders of
the Xxxxxxxxx, Xxxxxxxxx Holdings Inc. Exchangeable Shares at
meetings of the company's common stockholders.
PREFERRED SHARES ISSUED BY XXXXXXXXX, XXXXXXXXX HOLDINGS INC.:
10,000 Class B Preferred Shares Canadian Imperial Bank Of Commerce
2,784,516 Exchangeable Shares Public stockholders
(1,005,912 shares outstanding
on March 15, 1996)
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