SECOND AMENDMENT
Exhibit 4.4
SECOND AMENDMENT
THIS SECOND
AMENDMENT (this “Amendment”) dated as of December 7, 2006 to the Credit
Agreement referenced below is by and among Orbital Sciences Corporation, a Delaware corporation
(the “Borrower”), the Lenders identified on the signature pages hereto and Bank of America,
N.A., as administrative agent (the “Administrative Agent”).
W I T N E S S E T H
WHEREAS, $50 million in credit facilities have been established in favor of the Borrower
pursuant to the Amended and Restated Credit Agreement dated as of December 29, 2004 among the
Borrower, the Guarantors identified therein, the Lenders identified therein and the Administrative
Agent (as amended by that certain First Amendment, dated as of June 1, 2006 and as may be further
amended, modified and supplemented from time to time, the “Credit Agreement”); and
WHEREAS, the Borrower has requested certain modifications to the Credit Agreement and the
Required Lenders have agreed to the requested modifications on the terms and conditions set forth
herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein but not otherwise defined herein
shall have the meanings provided to such terms in the Credit Agreement.
2. Amendments.
2.1 Additional Definitions. Section 1.01 of the Credit Agreement is hereby amended by
adding the following new definitions to such Section in alphabetical order:
“Convertible Note Documents” means the Convertible Notes, the indenture
governing the Convertible Notes and all other definitive documents, instruments and
agreements relating thereto, in each case as amended, modified, supplemented,
refinanced and replaced in accordance with the provisions hereof.
“Convertible Notes” means those certain convertible senior subordinated
notes due 2026 issued by the Borrower, as amended, modified, supplemented,
refinanced or replaced in accordance with the provisions hereof.
2.2 Amendment to Definition of “Change of Control”. In Section 1.01 of the Credit
Agreement, clause (c) of the definition of “Change of Control” is hereby amended to read as
follows:
(c) the occurrence of a “Change of Control” under, and as defined in, the Senior
Note Indenture (so long as the “Change of Control” provision remains in effect under
the Senior Note Indenture), or the occurrence of a “Fundamental Change” under, and
as defined in, any of the Convertible Note Documents.
2.3 Amendment to Definition of “Consolidated Scheduled Funded Debt Payments”. In
Section 1.01 of the Credit Agreement, clause (c) of the definition of “Consolidated Funded Debt
Payments” is hereby amended to read as follows:
(c) shall not include (i) any voluntary prepayments or mandatory prepayments
required pursuant to Section 2.05 or (ii) amounts that may be classified as
debt as a result of the conversion rights under the Convertible Notes becoming
exercisable.
2.4 Amendment to Increase Additional Revolving Commitments. Section 2.01(b) of the
Credit Agreement is hereby amended by deleting the amount of “TWENTY-FIVE MILLION DOLLARS
($25,000,000)” in the third line thereof and substituting in lieu thereof the amount of “FIFTY
MILLION DOLLARS ($50,000,000).”
2.5 Amendment to Subsidiaries Covenant. Section 7.12 of the Credit Agreement is
hereby amended by amending and restating clause (c) thereof in its entirety to read as follows:
(c) Notwithstanding anything to the contrary contained herein, if at any time any
Person that is not a Guarantor provides a Guarantee of the Senior Notes or the
Convertible Notes, then the Borrower shall cause such Person to deliver to the
Administrative Agent, concurrent with such Person providing a Guarantee of the
Senior Notes or the Convertible Notes, as applicable, (i) a Joinder Agreement
pursuant to which such Person become a Guarantor and grants a Liens in its Property
pursuant to the Collateral Documents and (ii) if requested by the Administrative
Agent or the Required Lenders, documents of the types referred to in Sections
5.01(b) and 5.01(d) and favorable opinions of counsel to such Person
(which shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to in clause (i)), all in form, content
and scope reasonably satisfactory to the Administrative Agent.
2.6 Addition of Most Favored Lender Covenant. A new Section 7.14 is added to the
Credit Agreement to read as follows:
7.14 Most Favored Lenders.
If at any time the Borrower or any Subsidiary issues unsecured Indebtedness
permitted under Section 8.03(j)(ii) in an aggregate amount greater
than $15,000,000 and the terms of such Indebtedness contain any covenant or
event of default that is materially more restrictive than the covenants and
defaults contained in this Agreement, then (a) such covenant or event of
default shall be deemed incorporated by reference in this Agreement as if
set forth fully herein, effective as of the date when such covenant or event
of default became effective with respect to such Indebtedness, and (b) upon
the request of the Administrative Agent, the Borrower shall enter into an
amendment to this Agreement evidencing the incorporation of such covenant or
event of default provided, however that the Borrower shall
not be required to pay any fees (other than reasonable fees of counsel to
the Administrative Agent) with respect to any such amendment.
2.7 Amendment to Indebtedness Covenant. Section 8.03 of the Credit Agreement is
hereby amended by amending and restating clause (j) thereof in its entirety to read as follows:
(j) (i)
Indebtedness under the Convertible Notes and renewals, refinancings and
extensions thereof to the extent permitted under Section 8.12,
provided that (A) not later than ten (10) days after the issuance of the
Convertible Notes the Borrower shall launch a tender offer for the Senior Notes, (B)
the terms of the Convertible Notes are substantially
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similar to the draft of the
Description of Notes delivered to the Administrative Agent on November 30, 2006 and
(C) a portion of the cash proceeds of the Convertible Notes shall be used to, among
other things, repurchase all Senior Notes tendered by the holders thereof; and
(ii) any other unsecured Indebtedness (including unsecured Indebtedness
incurred in a refinancing or replacement of the Convertible Notes);
provided, however, that in the case of Indebtedness incurred
pursuant to this clause (ii), (1) such Indebtedness shall not have a scheduled
maturity earlier than six (6) months following the Maturity Date, not require any
amortization of principal or otherwise require a scheduled payment of any principal
sooner than six (6) months following the Maturity Date and (2) the Borrower shall
have delivered to the Administrative Agent a certificate of a Responsible Officer of
the Borrower demonstrating that, upon giving effect on a pro forma basis to (x) the
incurrence of such Indebtedness, (y) the application of the proceeds thereof and (z)
any other changes in Indebtedness occurring after the most recent fiscal quarter end
for which the Borrower has delivered financial statements pursuant to Section
7.01(a) or (b), the Loan Parties would be in compliance with the
financial covenants set forth in Section 8.11 as of such fiscal quarter end;
2.8 Amendment to Burdensome Agreements Covenants. Section 8.09 of the Credit
Agreement is hereby amended by amending and restating clause (viii) thereof in its entirety to read
as follows:
(viii) the Senior Note Documents and the Convertible Note Documents.
2.9
Amendment to Senior Notes Amendment and Prepayment Covenant. Section 8.12 of the
Credit Agreement is hereby amended by amending and restating Section 8.12 in its entirety to read
as follows:
8.12 Amendments and Refinancings of Senior Notes and Convertible Notes.
(a) Amend or modify any of the terms of any of the Senior Note Documents or the
Convertible Note Documents if such amendment or modification would add or change any
terms in a manner that, taken as a whole, is materially adverse to the Borrower or
any of its Subsidiaries (including any amendment or modification that would shorten
the final maturity or average life to maturity or require any payment to be made
sooner than originally scheduled or increase the interest rate applicable thereto).
(b) Make (or give any notice with respect thereto) any voluntary or optional
prepayment, redemption, defeasance or acquisition for value of (including without
limitation, by way of depositing money or securities with the trustee with respect
thereto before due for the purpose of paying when due), or refund, refinance or
exchange of any Senior Notes or Convertible Notes other than:
(i) regularly scheduled payments of principal and interest on the Senior Notes
and regularly scheduled payments of principal and interest on the Convertible Notes;
(ii) the repurchase of (i) up to 35% of the aggregate principal amount of the
Senior Notes with the net cash proceeds of any public offering of the Borrower’s
common stock within ninety (90) days of such public offering, to the extent
permitted
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under the Senior Note Indenture and (ii) all or any portion of the
Convertible Notes with the net cash proceeds of any public offering of the
Borrower’s common stock;
(iii) the repurchase of any Senior Notes or Convertible Notes with cash on hand
of the Borrower and its Subsidiaries, provided that, immediately after
giving effect to such repurchase, the outstanding principal amount of Loans shall be
zero and the Borrower shall have on hand at least $10,000,000 in cash and Cash
Equivalents;
(iv) the consummation of a tender offer for the Senior Notes on or after the
issuance of the Convertible Notes and the subsequent redemption of any remaining
Senior Notes in accordance with their terms;
(v) the repurchase, refinancing or replacement of the Convertible Notes and any
Senior Notes not repurchased with the proceeds of the Convertible Notes, in each
case through the issuance of unsecured Indebtedness permitted under Section
8.03(j)(ii);
(vi) payments made solely in common stock of the Borrower in connection with
the exercise of any conversion rights by the holders of the Convertible Notes; and
(vii) the conversion into cash of the outstanding principal amount of any
Convertible Notes so long as the Borrower shall have delivered to the Administrative
Agent a certificate of a Responsible Officer of the Borrower demonstrating that,
upon giving effect to such conversion on a pro forma basis, the Loan Parties would
be in compliance with the financial covenants set forth in Section 8.11 as of the
most recent fiscal quarter end for which the Borrower has delivered financial
statements pursuant to Section 7.01(a) or (b);
(c) Amend or modify any of the subordination provisions of the Convertible Note
Documents; or
(d) Make any payments of principal or interest in respect of the Convertible Notes
in contravention of the subordination provisions thereof.
2.10 Amendments to Events of Default. In Section 9.01 of the Credit Agreement, the
“.” at the end of clause (k) is replaced with “; or”, and a new clause (l) is added thereto to read
as follows:
(l) Subordination Provisions of Convertible Notes.
(i) any of the Obligations for any reason shall fail to be “Senior Debt” (or
any comparable term) under, and as defined in, any Convertible Note Document;
(ii) any Indebtedness shall constitute “Designated Senior Debt” (or any
comparable term) under, and as defined in, any Convertible Note Document, other than
(A) the Obligations and (B) any other Indebtedness with an initial principal amount
of at least $50 million; or
(iii) the subordination provisions of any Convertible Note Document shall, in
whole or in part, terminate, cease to be effective or cease to be legally valid,
binding and enforceable against any holder of such Convertible Notes.
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3. Conditions Precedent. This Amendment shall be effective as of the date hereof upon
receipt by the Administrative Agent of counterparts of this Amendment duly executed by the Borrower
and the Required Lenders.
4. Representations and Warranties. The Borrower represents and warrants that the
representations and warranties contained in the Loan Documents are true and correct in all material
respects on and as of the date hereof (except for those which expressly relate to an earlier date).
5. Reaffirmation of Security Interests. The Borrower (i) affirms that each of the
Liens granted in or pursuant to the Loan Documents are valid and subsisting and (ii) agrees that
this Amendment shall in no manner impair or otherwise adversely effect any of the Liens granted in
or pursuant to the Loan Documents.
6. No Other Changes. Except as expressly modified hereby, all of the terms and
provisions of the Loan Documents shall remain in full force and effect.
7. Counterparts. This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original and it shall not be necessary
in making proof of this Amendment to produce or account for more than one such counterpart.
8. Governing Law. This Amendment shall be deemed to be a contract made under, and for
all purposes shall be construed in accordance with, the laws of the State of New York.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Second
Amendment to be duly executed and delivered as of the date first above written.
| BORROWER: | ORBITAL SCIENCES CORPORATION, a Delaware corporation | |||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxxxx |
|||||
| Title: | Senior Vice President and Treasurer | |||||
| ADMINISTRATIVE AGENT: | BANK OF AMERICA, N.A., as Administrative Agent | |||||
| By: | /s/ Xxxxxxxx Xxxxxxx | |||||
| Name: | Xxxxxxxx Xxxxxxx |
|||||
| Title: | Vice President | |||||
| LENDERS: | BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender | |||||
| By: | /s/ Xxxxx X. Xxxxxxxxxxxxx | |||||
| Name: | ||||||
| Title: | Senior Vice President | |||||
| WACHOVIA BANK, NATIONAL ASSOCIATION | ||||||
| By: | /s/ Xxxxxx X. XxXxxx Xx. | |||||
| Name: | Xxxxxx X. XxXxxx Xx. |
|||||
| Title: | Director | |||||
| FIRST HORIZON BANK, A DIVISION OF FIRST TENNESSEE BANK NA | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
