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Exhibit 10.2
AMENDMENT NO. 10
TO
THIRD AMENDED AND RESTATED
CREDIT AND REIMBURSEMENT AGREEMENT
AMENDMENT No. 10 dated as of June 7, 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 and the Banks wish to amend the Credit Agreement as
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. 10
Effective Date (as defined in Section 20 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:
"ADDITIONAL DEBT DATE" means the first date on or after the Amendment No.
10 Effective Date on which the Company or any of its wholly-owned domestic
Subsidiaries shall have consummated one or more Debt Issuances pursuant to which
Debt in an aggregate principal or face amount at least equal to $100,000,000
shall have been issued.
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"AMENDMENT NO. 10 EFFECTIVE DATE" means the date of effectiveness of
Amendment No. 10 to this Agreement.
"COOLER ACQUISITION" means the acquisition by the Company from Thermo
Electron Corporation of all of the issued and outstanding common stock of
Xxxxxxx Research Corporation or all or substantially all of its assets
substantially on the terms set forth in the Letter of Intent, dated March 16,
2000 between the Company and Thermo Electron Corporation provided by the Company
to the Banks prior to the Amendment No. 10 Effective Date.
"COOLER ACQUISITION DATE" means the date of consummation of the Cooler
Acquisition.
"MDA SHARE SALE" means the sale or other disposition of shares of common
stock of MDA pursuant to a registered offering substantially on the terms
described by the Company to the Banks prior to the Amendment No. 10 Effective
Date.
(b) The following definition set forth in Section 1.01 of the Credit
Agreement is amended to read in its entirety as follows:
"EARNINGS AVAILABLE FOR FIXED CHARGES" means, for any period,
Consolidated Net Income for such period (excluding therefrom (i) any
extraordinary items of gain or loss, (ii) any gain or loss of any other Person
accounted for pursuant to the equity method, except in the case of gain to the
extent of cash distributions received from such Person during the relevant
period), plus the aggregate amounts deducted in determining Consolidated Net
Income for such period in respect of (i) interest and rental expense, (ii)
income taxes, (iii) write-offs with respect to the investment made by the
Company in CCI International N.V. for any fiscal quarter ended prior to December
31, 1999, up to an aggregate amount equal to $21,400,000, (iv) Excluded Charges,
up to an aggregate amount equal to $5,000,000, (v) one-time accounting charges
resulting in adjustments to earnings for each of the fiscal quarters of the
fiscal year ended December 31, 1998, up to an aggregate amount equal to
$35,600,000 and (vi) non-cash asset impairment charges incurred on or prior to
December 31, 1999 up to an aggregate amount equal to $17,027,000, non-cash
write-downs up to an aggregate amount equal to $14,820,000 incurred on or prior
to December 31, 1999 and other non-cash charges similar to depreciation and
amortization (but not including depreciation or amortization).
SECTION 3. Increase in Commitment Reduction and Mandatory Prepayments
Under Certain Circumstances. (a) Section 2.10(d) of the Credit Agreement is
amended by inserting the phrase ", subject to the provisions of
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subsection (f)(iii) below" immediately after the words ";provided that"
contained therein.
(b) Section 2.10(e) of the Credit Agreement is amended by inserting the
phrase "subject to subsection (f)(ii) below," immediately before the words "the
Commitments" contained therein.
(c) Section 2.10(f) of the Credit Agreement is hereby redesignated as
Section 2.10(g) thereof.
(d) A new Section 2.10(f) to the Credit Agreement is added immediately
after Section 2.10(e) thereof, to read in its entirety as follows:
(f) (i) If the Cooler Acquisition Date has occurred and the
Additional Debt Date has not occurred on or prior to the Cooler
Acquisition Date, then on the Cooler Acquisition Date the
Commitments shall be automatically and ratably reduced by an
aggregate amount equal to $10,000,000 (in addition to any
reduction of the Commitments that may be effected on the Cooler
Acquisition Date pursuant to subsections (d) or (e) above).
(ii) If the Cooler Acquisition Date has occurred on or
prior to any date set forth below and the Additional Debt Date has
not occurred on or prior to the Cooler Acquisition Date, then 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 opposite
such dates:
------------------------------------------------------------------------
DATE AGGREGATE AMOUNT
------------------------------------------------------------------------
August 1, 2000 $115,000,000
------------------------------------------------------------------------
July 1, 2001 $75,000,000
------------------------------------------------------------------------
(iii) If the Cooler Acquisition Date has occurred and the
Additional Debt Date has not occurred on or prior to the Cooler
Acquisition Date, then (i) the aggregate amount of the reduction
of the Commitments effected pursuant to Section 2.10(d) as a
result of Reduction Events consummated on or before August 1, 2000
shall not exceed $50,000,000, (ii) the aggregate amount of the
reduction of the Commitments effected pursuant to Section 2.10(d)
as a result of Reduction Events consummated after August 1, 2000
shall not exceed $30,000,000 and (iii) in no event shall the
Commitments be reduced pursuant to Section 2.10(d) below
$75,000,000.
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(e) New Sections 2.10(h) and 2.10(i) are added immediately after Section
2.10(g) of the Credit Agreement, to read in their entirety as follows:
(h) If the Cooler Acquisition Date has occurred and the
Additional Debt Date has not occurred on or prior to the Cooler
Acquisition Date, then on the Cooler Acquisition Date, in addition
to any prepayment of the Loans to be made by the Borrowers
pursuant to Section 2.10(f), the Borrowers shall prepay, together
with accrued interest thereon, Loans in an aggregate principal
amount equal to $10,000,000. Any prepayment of the Loans made
pursuant to this subsection (h) shall not cause any reduction of
the Commitments.
(i) Each prepayment of the Loans made by the Borrowers
pursuant to this Section 2.10 shall be applied to prepay such
Group or Groups of Loans as the Borrowers shall designate (or,
absent any such designation, as the Administrative Agent shall
determine), and shall be applied to prepay ratably the Loans of
the several Banks included in each such Group or Groups of Loans.
SECTION 4. Limitation on New Extensions of Credit. (a) The following
phrase is added at the end of Section 2.01 of the Credit Agreement: ",subject to
the provisions of Sections 2.02(e) and 2.02(f).".
(b) New Sections 2.02(e) and (f) to the Credit Agreement are added
immediately after Section 2.02(d) thereof, to read in their entirety as follows:
(e) The Company agrees that, except as permitted in
subsection (f) below, on and after the Amendment No. 10 Effective
Date, neither Company nor any other Borrower shall deliver a
Notice of Borrowing or a request for issuance of a Letter of
Credit or otherwise request any Bank (including the LC Bank) to
extend any credit to the Company or any other Borrower, and that,
notwithstanding any other provision hereof, on and after the
Amendment No.10 Effective Date, 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 or
any Loan made on or after the Cooler Acquisition Date and
permitted to be made pursuant to subsection (f) below and
continuing or converting any such Loan on the terms set forth in
such Notice of Interest Rate Election).
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(f) If the Cooler Acquisition Date has occurred and the
Additional Debt Date has not occurred on or prior to the Cooler
Acquisition Date and the Borrowers shall have complied with their
obligations under Section 2.10(h), the Company or any other
Borrower may deliver a Notice of Borrowing or request for issuance
of a Letter of Credit, on any date (a "test date") on or after the
Cooler Acquisition Date, and the Banks (including the LC Bank)
shall be required to make such requested Loan, or issue or
participate in such requested Letter of Credit (subject to
satisfaction of the conditions set forth in Section 3.03 and, if
applicable, Section 3.04); provided that after giving effect to
any such Loan or issuance of or participation in any such Letter
of Credit, the portion of the total Exposure of all the Banks that
has been incurred on or after the Cooler Acquisition Date and that
is outstanding on such test date shall not exceed $10,000,000 (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 or any Loan permitted to be made
pursuant to this subsection (f) and continuing or converting any
such Loan on the terms set forth in such Notice of Interest Rate
Election).
(c) The following phrase is added at the beginning of Section 2.03 of the
Credit Agreement: "Subject to the provisions of Sections 2.02(e) and 2.02(f),".
(d) Section 3.03 of the Credit Agreement is amended by:
(i) deleting the "and" at the end of clause (c) thereof;
(ii) deleting the period at the end of clause (d) thereof and
substituting it with ";and"; and
(iii) inserting new clauses (e) and (f) immediately after clause
(d) thereof to read in their entirety as follows:
(e) (A) the Cooler Acquisition Date shall have occurred and
the Additional Debt Date shall not have occurred on or prior to
the Cooler Acquisition Date and (B) after giving effect to such
Credit Event (and the application of the proceeds thereof), the
portion of the total Exposure of all the Banks that has been
incurred on or after the Cooler Acquisition Date and that is
outstanding on such date does not exceed $10,000,000; and
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(f) the Borrowers shall have complied with their
obligations under Sections 2.10(g) and 2.10(h).
SECTION 5. Amendment of the Investments Covenant To Permit the Cooler
Acquisition. Section 5.07 of the Credit Agreement is amended by:
(i) deleting the "and" at the end of clause (o) thereof,
(ii) renumbering clause (p) thereof as clause (q) and
substituting a reference to "clause (q)" for the reference to "clause
(p)" contained therein;
(iii) adding a new clause (p) immediately after clause (o)
thereof, to read in its entirety as follows:
(p) Investments consisting of the acquisition of capital
stock of Xxxxxxx Research Corporation constituting the
consummation of the Cooler Acquisition; provided that (i) such
Investments are made after the Amendment No. 10 Effective Date and
after the date on which the Company and its wholly-owned domestic
Subsidiaries shall have generated aggregate cash proceeds of not
less than $140,000,000 consisting of (A) Net Cash Proceeds
generated by any one or more (x) Asset Sales (other than the MDA
Share Sale) which would reduce Consolidated EBITDA by less than
the expected increase in Consolidated EBITDA resulting from the
Cooler Acquisition, (y) Debt Issuances, and/or (z) Equity
Issuances, and/or (B) not more than $40,000,000 in aggregate cash
proceeds resulting from (x) Net Cash Proceeds from the MDA Share
Sale, and/or (y) cash proceeds from any one or more sale/leaseback
transactions, asset based financing and/or other issuances of Debt
not constituting Debt Issuances, (ii) the aggregate amount of cash
consideration paid by the Company and its Subsidiaries with
respect to the Cooler Acquisition does not exceed $38,000,000,
(iii) the aggregate value of the stock of the Company issued as
consideration with respect to the Cooler Acquisition does not
exceed $38,000,000, (iv) neither the Company nor any of its
Subsidiaries shall pay any consideration with respect to the
Cooler Acquisition, except the consideration described in clauses
(ii) and (iii) of this proviso and (v) on the Cooler Acquisition
Date, the Borrowers shall comply with their obligations under
Sections 2.10(g) and (h); and
(iv) amending the last sentence thereof to read in its entirety
as follows:
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Notwithstanding any provision of this Agreement (including
the foregoing clauses of this Section 5.07) (x) after the
Amendment No. 8 Effective Date and prior to the Amendment No.10
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 DataQuick
Acquisition and (y) on and after the Amendment No.10 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 DataQuick Acquisition and the
Cooler Acquisition.
SECTION 6. 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 $225,000,000
------------------------------------------------------------------------
9/30/00 $200,000,000
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12/31/00 $190,000,000
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FISCAL QUARTER ENDED AMOUNT
------------------------------------------------------------------------
3/31/01 $175,000,000
------------------------------------------------------------------------
6/30/01 $165,000,000
------------------------------------------------------------------------
9/30/01 $190,000,000
------------------------------------------------------------------------
12/31/01 and thereafter $190,000,000
------------------------------------------------------------------------
SECTION 7. Change in the Leverage Ratio and the 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 in Column I below opposite such period (or, if the
Additional Debt Date shall have occurred on or prior to the last
day of such period, the ratio set forth in Column II below
opposite such period):
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PERIOD COLUMN I COLUMN II
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Amendment No. 10 4.70:1 4.85:1
Effective Date - 6/30/00
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7/1/00-9/30/00 4.85:1 5.50:1
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10/1/00-12/31/00 4.85:1 6.30:1
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1/1/01-3/31/01 4.50:1 6.00:1
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4/1/01-6/30/01 4.50:1 5.35:1
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7/1/01-9/30/01 3.00:1 3.75:1
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10/1/01 and thereafter 3.00:1 3.75:1
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(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:
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PERIOD RATIO
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Amendment No. 10 Effective Date - 3.5:1
6/30/00
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7/1/00- 9/30/00 3.1:1
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10/1/00- 12/31/00 3.5:1
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1/1/01-6/30/01 3.0:1
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7/1/01 and thereafter 2.0:1
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SECTION 8. 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 in Column I below opposite such
fiscal quarter (or, if the Additional Debt Date shall have
occurred on or prior to the last day of such fiscal quarter, the
ratio set forth in Column II below opposite such fiscal quarter):
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FISCAL QUARTER ENDED COLUMN 1 COLUMN II
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6/30/00 1.15:1 1.15:1
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9/30/00 1.15:1 1.15:1
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12/31/00 0.85:1 0.75:1
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3/31/01 1.00:1 0.75:1
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6/30/01 1.10:1 0.75:1
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9/30/01 1.75:1 1.50:1
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12/31/01 and thereafter 1.75:1 1.50:1
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SECTION 9. Additional Exception for Negative Pledge. Section 5.14 of the
Credit Agreement is amended by (i) deleting the "and" at the end of clause (t)
thereof, (ii) renumbering clause (u) thereof as clause (v), and (iii) adding a
new clause (u) immediately after clause (t) thereof, to read in its entirety as
follows:
(u) Liens on the shares of MDA pursuant to Section 13 of
the Secondary Option Agreement contemplated by the MDA Transaction
Agreement; and
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SECTION 10. Amendment of the Subsidiary Debt Covenant and the MDA
Covenant. Section 5.17 of the Credit Agreement is amended to read in its
entirety as follows:
SECTION 5.17. Subsidiary Debt. (a) 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 on or after the
Amendment No. 10 Effective Date exceed 5% of Consolidated Net
Worth. For purposes of this subsection (a), any preferred stock of
a Subsidiary held by a Person other than the Company or a
Wholly-Owned Subsidiary of the Company shall be included, at the
higher of its voluntary or involuntary liquidation value, in the
"Debt" of such Subsidiary.
(b) MDA Equity. On and after the Amendment No. 8
Effective Date, 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 11. 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 on or after the Amendment No. 10 Effective Date the aggregate
amount of Consolidated Capital Expenditures (i) for the period
from and including January 1, 2000 to and including December 31,
2000 (other than the DataQuick Acquisition and the Cooler
Acquisition, to the extent either constitutes Consolidated Capital
Expenditures) will not exceed $60,700,000, (ii) for the period
from and including January 1, 2001 to and including December 31,
2001 will not exceed $50,000,000 and (iii) for the period from and
including January 1, 2002 to and including December 31, 2002 will
not exceed $50,000,000.
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SECTION 12. Release of Amounts in the Restricted Account. (a) A new
Section 5.24 is added immediately after Section 5.23 of the Credit Agreement, to
read in its entirety as follows:
SECTION 5.24. Restricted Account. (a) Releases. The
Borrowers and the Banks agree that amounts on deposit in the
Restricted Account (other than amounts deposited therein pursuant
to Section 2.10(d)) shall be released therefrom from time to time
upon request of the Company, so long as at the time no Default
shall have occurred and be continuing, as follows: (A) upon
consummation of the security arrangements contemplated by Section
5.19(d) of the Credit Agreement, $5,000,000 shall be released; (B)
on the date on which the aggregate amount of the Commitments shall
have been reduced to $150,000,000 or less, so long as the
Additional Debt Date shall not have occurred on or prior to such
date, $10,000,000 shall be released; (C) if no amounts have been
released pursuant to clause (B) or if the full amount required to
be deposited pursuant to subsection (b) has been so deposited, on
the date on which the aggregate amount of the Commitments shall
have been reduced to $85,000,000 (or, if the Cooler Acquisition
Date shall have occurred and the Additional Debt Date shall not
have occurred on or prior to the Cooler Acquisition Date,
$75,000,000) or less, $10,000,000 shall be released; (D) amounts
deposited therein (including pursuant to subsection (b)) not
theretofore released pursuant to clauses (A), (B) and (C) shall be
released from time to time, so long as after giving effect to such
release the Company's cash balances do not exceed $10,000,000 and
(E) any such request for release shall be accompanied by a
certificate signed by a duly authorized officer of the Company (on
which the Collateral Agent may conclusively rely) to the effect
that the applicable conditions set forth above have been satisfied
in connection with such release.
(b) Deposits. On the Additional Debt Date, the Borrowers
shall deposit in the Restricted Account an amount equal to
$10,000,000; provided that the Borrowers shall not be required to
deposit any such amount (i) unless prior to the Additional Debt
Date, amounts on deposit in the Restricted Account shall have been
released pursuant to clause (B) of subsection (a) above or (ii) if
on the Additional Debt Date the aggregate amount of the
Commitments does not exceed (x) if the Cooler Acquisition Date has
occurred and the Additional Debt Date has not occurred on or prior
to the Cooler Acquisition Date, $75,000,000, (y) otherwise
$85,000,000.
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(b) The Borrowers and the Banks agree that the provisions set forth in
Section 5(d) of Amendment No. 6 to the Credit Agreement dated as of December 21,
1999 regarding the release of amounts on deposit in the Restricted Account shall
cease to be in effect on and as of the Amendment No. 10 Effective Date.
SECTION 13. Additional Events of Default. (a) 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), 5.07 to 5.22
inclusive and Section 5.24;
(a) A new Section 6.01(n) to the Credit Agreement is added immediately
after Section 6.01(m) thereof, to read in its entirety as follows:
(n) the Company or any other Borrower shall deliver a
Notice of Borrowing or a request for issuance of a Letter of
Credit or otherwise request any Bank to extend any credit to the
Company or any other Borrower under the Credit Agreement, except
as permitted pursuant to Section 2.02(f);
SECTION 1. Amendment to Pricing Schedule. The Pricing Schedule to the
Credit Agreement is amended by substituting the date "December 21, 2002" for the
date "January 1, 2001" set forth in paragraph immediately after the table set
forth therein.
SECTION 2. Release of Lien on Certain MDA Shares. (a) The Banks hereby
agree that, in the event the Company consummates the MDA Share Sale (as defined
in the Credit Agreement as amended hereby) at any time prior to the delivery by
the Company to the Collateral Agent of all of the capital stock of New MDH (as
defined in Amendment No. 6 to the Credit Agreement), the Lien on such shares so
sold or otherwise transferred (the "MDA SUBJECT SHARES") (including all proceeds
thereof other than proceeds thereof which must be paid to the Banks pursuant to
Section 15(a)(ii)) shall be released upon and subject to the following terms and
conditions:
(i) the MDA Subject Shares shall constitute no more than 14.67% of
the aggregate amount of shares of MDA held directly or indirectly by the
Company;
(ii) on the date of consummation of the MDA Share Sale (the "MDA
SHARE SALE DATE"), the Borrowers shall comply with their obligations
under Section 2.10(g) of the Credit Agreement; and
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(iii) the Company shall have delivered to the Administrative Agent
and the Collateral Agent a certificate, dated the MDA Share Sale Date,
duly executed by the chief financial officer of the Company and
certifying that the terms and conditions set forth in clauses (i) and
(ii) of this Section 15(a) shall have been complied with on and as of the
MDA Share Sale Date.
The Company agrees that failure to satisfy the conditions set forth in
clauses (i) through (iii), inclusive, of this Section 15(a) in the event the
Company consummates the MDA Share Sale pursuant to a registered offering
substantially on the terms described by the Company to the Banks prior to the
Amendment No. 10 Effective Date shall constitute an Event of Default.
(a) The Company agrees to cause the conditions set forth in clauses (i)
through (iii), inclusive, of Section 15(a) to be satisfied in the event that the
MDA Share Sale is consummated at any time on or after the delivery to the
Collateral Agent of all of the capital stock of New MDH and agrees that any
failure to do so shall constitute an Event of Default.
(b) The Banks hereby authorize the Collateral Agent to execute any
release instruments to evidence the release of the Lien on the MDA Shares (and
the portion of the proceeds thereof which are not required to be paid to the
Banks pursuant to Section 15(a)(ii) above) effected pursuant to subsection (a)
of this Section 15. In doing so, the Collateral Agent shall be entitled to rely
fully on the certificate described in clause (iii) of Section 15(a), and shall
have no obligation to independently verify whether the Company shall have
complied with the terms and conditions set forth in Section 15(a). For the
avoidance of doubt, the Banks and the Company acknowledge and agree that,
without limiting any other rights that the Company may have, in no event shall
the terms of this Section 15 affect the agreements set forth in Sections 5(c),
5(f) or 5(g) of Amendment No. 6 to Credit Agreement, which shall continue to
remain in full force and effect on and after the Amendment No. 10 Effective
Date.
(d) The Company agrees that on and after the date on which the Company
delivers to the Collateral Agent all of the capital stock of New MDH, the
Company will not permit New MDH to transfer any of the shares of capital stock
of MDA held by New MDH to any other Subsidiary of the Company other than to a
Subsidiary (i) which is a Subsidiary Guarantor, (ii) which is incorporated in
the United States, (iii) which does not owe any Debt to any Person other than to
any Borrower or Subsidiary Guarantor, and (iv) all of the capital stock of which
has been subjected to a Lien on substantially the same terms as the Lien granted
over the capital stock of New MDH as of such date, and agrees that any failure
to
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comply with the provisions of this subsection (d) shall constitute an Event of
Default.
SECTION 3. Covenants and Waivers Prior to Amendment No. 10 Effective
Date. (a) The Banks and the Company hereby acknowledge and agree that the
amendments set forth in this Amendment No. 10 to Credit Agreement, including,
without limitation, the amendments to Sections 5.08, 5.09, 5.10 and 5.17, are
intended to amend the Credit Agreement only in respect of the time periods
occurring after the Amendment No. 10 Effective Date, and in no event shall such
amendments retroactively amend or alter the provisions of the Credit Agreement
which were in effect prior to the Amendment No. 10 Effective Date.
(b) The Banks and the Company acknowledge and agree that, with respect to
the waivers granted pursuant to Section 3(a) of Amendment No. 8 to Credit
Agreement (the "EXISTING WAIVERS") (i) at no time shall any failure of the
Company to comply with any Section of the Credit Agreement specified in the
Existing Waivers constitute an Event of Default if such failure occurred prior
to the Amendment No. 10 Effective Date, (ii) in no event shall the Existing
Waivers be subject to revocation, (iii) the Waiver Period (as defined in
Amendment No. 8 to the Credit Agreement) with respect to the Existing Waivers
shall terminate on the Amendment No. 10 Effective Date and (iv) commencing on
the Amendment No. 10 Effective Date, the Company shall be obligated to comply
with the requirements of the Sections 5.08, 5.09, 5.10 and 5.17 of the Credit
Agreement (as amended hereby) which relate to periods on or after the Amendment
No. 10 Effective Date and failure by the Company to do so shall entitle the
Agents and the Banks to exercise rights and remedies under the Financing
Documents in accordance with their terms.
SECTION 4. Representations and Warranties. (a) Section 4.06(c) of the
Credit Agreement is amended by replacing the date "September 30, 1998" contained
therein with the date "March 31, 2000".
(b) Section 4.07 of the Credit Agreement is amended by inserting after
the words "by the Company to the Banks" the words "or disclosed in the Company's
annual report on form 10-K for the 1999 fiscal year as filed with the Securities
and Exchange Commission prior to the Amendment No. 10 Effective Date".
(c) The Company represents and warrants that:
(i) The consolidated balance sheets of the Company and its
Consolidated Subsidiaries as of December 31, 1999, December 31,1998, and
December 31, 1997, respectively, and the related consolidated statements
of operations and cash flows for each such fiscal year, delivered
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to the Banks prior to the Amendment No. 10 Effective Date pursuant to
Section 5.22 of the Credit Agreement, fairly present in all material
respects, in conformity with generally accepted accounting principles,
the consolidated financial position of the Company and its Consolidated
Subsidiaries as of the respective dates thereof, and their consolidated
results of operations and cash flows for such fiscal years.
(ii) The consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of March 31, 2000 and the related
consolidated statements of operations and cash flows for the three months
then ended, together with the consolidating balance sheet, statement of
operations and operating cash flows for such quarter for each of the
Company's Consolidated Subsidiaries delivered to the Banks prior to the
Amendment No. 10 Effective Date fairly present in all material respects,
in conformity with generally accepted accounting principles applied on a
basis consistent with the financial statements referred to in subsection
(i), the consolidated financial position of the Company and its
Consolidated Subsidiaries, as of such date, and their consolidated
results of operations and cash flows for such three month period (subject
to normal year-end adjustments).
(iii) The projections delivered by the Company to the Banks prior
to the Amendment No. 10 Effective Date in accordance with Section 5.22 of
the Credit Agreement (including the projected balance sheet of the
Company and its Consolidated Subsidiaries as of December 31, 2000 and
related projected statement of operations and cash flows for such fiscal
year) have been prepared by the Company in good faith based on
assumptions believed to be reasonable at the time.
(iv) Since March 31, 2000 there has been no material adverse
change in the business, financial position or results of operations of
the Company and its Consolidated Subsidiaries, taken as a whole, and no
event has taken place which is reasonably likely to have such a material
adverse effect in the future.
(v) The Company intends to consummate the MDA Share Sale (or to
cause New MDH to consummate) a sale of shares of common stock of MDA
pursuant to a registered offering substantially on the terms described by
the Company to the Banks prior to the Amendment No. 10 Effective Date)
for cash proceeds in the amount currently estimated to be not less than
$22,000,000, subject to the rights of underwriters to reduce the number
of shares of MDA to be sold pursuant thereto.
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SECTION 5. Restatement Date. The Banks and the Company acknowledge and
agree that this Amendment No. 10 shall constitute the restatement of the Credit
Agreement contemplated by Section 5.23 of the Credit Agreement and the
Restatement Date referred to in Section 2.10(e) of the Credit Agreement shall be
the Amendment No. 10 Effective Date.
SECTION 6. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. 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 NO. 10
EFFECTIVE DATE") on which the Administrative Agent shall have received:
(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) payment in full of all the fees payable by the Company
pursuant to Section 2.17 of the Credit Agreement, for the account of each
of the Banks entitled to such fees pursuant to the terms of such Section.
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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
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Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By
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Name:
Title:
THE BANK OF NOVA SCOTIA
By
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Name:
Title:
BANK OF AMERICA, N.A., f/k/a
NATIONSBANK, N.A.
By
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Name:
Title:
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FIRST UNION COMMERCIAL CORPORATION
By
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Name:
Title:
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLAND BRANCHES
By
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Name:
Title:
By
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Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By
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Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By
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Name:
Title:
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WACHOVIA BANK, N.A.
By
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Name:
Title:
CHEVY CHASE BANK
By
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Name:
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent and as
Collateral Agent
By
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Name:
Title:
Acknowledged by:
ENGINEERING TECHNOLOGIES, INC.
By
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Name:
Title:
ORBITAL SPACE SYSTEMS, INC.
By
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Name:
Title:
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ORBITAL COMMERCIAL SYSTEMS, INC.
By
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Name:
Title:
ORBITAL INTERNATIONAL, INC.
By
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Name:
Title:
ORBITAL SERVICES CORPORATION
By
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Name:
Title:
ORBITAL NAVIGATION CORPORATION
By
---------------------------------------------------
Name:
Title:
ORBLINK LLC
By
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Name:
Title:
20
