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EXHIBIT 10.2.5
FIFTH AMENDMENT TO NOTE AGREEMENT
THIS FIFTH AMENDMENT to Note Agreement dated as of December 23, 1997
("Fifth 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, the First Amendment to Note Agreement
dated as of June 30, 1995, the Second Amendment to Note Agreement dated as of
March 15, 1996, the Third Amendment to Note Agreement dated as of July 31, 1996
and the Fourth Amendment to Note Agreement dated as of March 31, 1997 (as
amended, the "Note Agreement").
B. 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.
C. 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
Note Agreement.
D. The Company and the Purchaser now desire to further amend,
effective on and as of December 29, 1997 (the "Effective Date"), certain of the
terms of the Note Agreement.
E. Capitalized terms used herein shall have the respective
meanings ascribed thereto in the Note Agreement unless herein defined or the
context shall otherwise require.
F. All requirements of law have been fully complied with and all
other acts and things necessary to make this Fifth 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, for 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 5.7 Consolidated Funded Debt Maintenance Ratio.
The Company will not at any time permit the ratio of Consolidated Funded Debt
(excluding Non-Recourse ORBIMAGE Debt) to Consolidated Total Capitalization to
exceed:
RATIO OF CONSOLIDATED FUNDED
DEBT TO CONSOLIDATED TOTAL
CAPITALIZATION
DURING THE PERIOD
Closing Date through December 30, 1995 .45 to 1.00
December 31, 1995 through December 31, 1997 .40 to 1.00
January 1, 1998 through September 29, 1998 .50 to 1.00
September 30, 1998 and thereafter .45 to 1.00
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Section 1.2. Section 5.13 of the Note Agreement is hereby amended as
follows:
(a) Section 5.13(a)(2) of the Note Agreement is hereby amended by
adding the following at the end thereof immediately preceding
the semi-colon:
", provided that Ashtech may merge into Magellan
pursuant to the Merger Agreement (the "Ashtech
Merger")."
(b) Section 5.13(c) of the Note Agreement is hereby amended as
follows:
(i) The second proviso or clause (3) of the Note
Agreement is hereby amended (i) by deleting the
phrase "Magellan Corporation, a Delaware corporation
and a Wholly-owned Subsidiary of the Company," and
substituting therefor the phrase "Magellan
Corporation, a Delaware corporation and a Subsidiary
of the Company ("Magellan")", and (ii) by deleting
the number "15%" and substituting therefor the number
"25%";
(ii) Clause (B) of the Note Agreement is hereby amended by
substituting a semi-colon for the period and adding
the word "or" at the end thereof; and
(iii) New clauses (7) and (8) shall be added to read as
follows:
"(7) the issue of shares representing in the
aggregate not more than 34% (on a fully-diluted
basis) of the outstanding capital stock of Magellan
to the securityholders of Ashtech Inc. ("Ashtech")
pursuant to the Agreement and Plan of Merger dated as
of November 28, 1997 among the Company, Magellan and
Ashtech (the "Merger Agreement"); or
"(8) until the first anniversary of the effective
date of the Ashtech Merger, the deposit by the
Company into escrow of shares of capital stock of
Magellan held by the Company having a value of not
more than $1,500,000 to secure contingent indemnity
obligations of the Company under the Merger
Agreement."
Section 1.3. Section 5.15 of the Note Agreement is hereby amended by
adding the following at the end thereof immediately preceding the period:
", provided that the Company may guarantee or otherwise offer
its credit in support of Magellan's Indebtedness in which
event and notwithstanding Section 8.2 hereof, 100% of such
Indebtedness shall be included in all computations pursuant to
Sections 5.6, 5.7, 5.8 and 5.9 hereof."
Section 1.4. Paragraph (g) of the definition of "Consolidated Net Income"
set forth in Section 8.1 of the Note Agreement is hereby amended such that it
shall read in its entirety as follows:
"(g) any portion of the net earnings of any Subsidiary which
for any reason is unavailable for payment of dividends to the
Company or any other Subsidiary, provided that the Company
shall be permitted to include the net earnings of Magellan
which are otherwise unavailable for payment of dividends to
the Company by reason of restrictions contained in the
documentation relating to any credit facilities to which it is
a party"; and
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Section 1.5. Section 8.2 of the Note Agreement is hereby amended by
adding the following new sentence at the end thereof:
"Except as provided in the proviso to Section 5.15, for
purposes of Sections 5.6, 5.7, 5.8 and 5.9 and related
definitions, only the percentage of equity, gross revenues,
Indebtedness, Rentals, Interest Expense and other expenses,
charges and income equal to the percentage of the equity of
Magellan held directly or indirectly by the Company at the
time of determination shall be included in such computation."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Section 2.1. To induce the Purchaser to execute and deliver this Fifth
Amendment, the Company represents and warrants to Purchaser (which
representations shall survive the execution and delivery of this Fifth
Amendment) that:
(a) this Fifth Amendment has been duly authorized, executed and
delivered by it and 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 Fifth 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;
(c) the execution, delivery and performance by the Company of this
Fifth 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 3.1(c); and
(d) as of the date hereof and after giving effect to this Fifth
Amendment, duly executed by the Company and the Purchaser,
shall have been delivered to the Purchaser;
SECTION 3. CONDITIONS TO EFFECTIVENESS OF FIFTH AMENDMENT.
Section 3.1. This Fifth Amendment shall not become effective until, and
shall become effective when, each and every one of the following conditions
shall have been satisfied:
(a) the Company shall have paid the Purchaser, as consideration
for its agreement to enter into this Amendment, the sum of
$50,000;
(b) executed counterparts of this Fifth Amendment, duly executed
by the Company and the Purchaser, shall have been delivered to
the Purchaser;
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(c) the Purchaser shall have received a copy of a fully executed
counterpart of Amendment No. 1 to the Bank Credit Agreement
substantially in the form of Exhibit A hereto; and
(d) the representations and warranties of the Company set forth in
Section 2 hereof shall be true and correct on and with respect
to the date hereof.
Upon receipt of all of the foregoing, this Fifth Amendment shall on the
Effective Date become effective.
SECTION 4. MISCELLANEOUS.
Section 4.1. Except as modified and expressly amended by this Fifth
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 4.2. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Fifth Amendment may refer to the Note Agreement without making specific
reference to this Fifth Amendment but nevertheless all such references shall
include this Fifth Amendment unless the context otherwise requires.
Section 4.3. This Fifth Amendment shall be governed by and construed in
accordance with the laws of the State of Illinois.
Section 4.4. This Fifth Amendment may be executed and delivered in any
number of counterparts, each of such counterparts constituting an original, but
all together only one Fifth 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. Sunshine
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Its Vice President & Treasurer
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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