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CONFORMED COPY
AMENDMENT NO. 12
TO
THIRD AMENDED AND RESTATED
CREDIT AND REIMBURSEMENT AGREEMENT
AMENDMENT No. 12 dated as of November 1, 2000 among ORBITAL SCIENCES
CORPORATION (the "COMPANY"), the BANKS listed on the signature pages hereof and
MORGAN 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. 12
Effective Date (as defined in Section 9 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:
"AMENDMENT NO. 12 EFFECTIVE DATE" means the date of effectiveness of
Amendment No. 12 to this Agreement.
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"ATI" means Atlantic Technologies LLC, an Alabama limited liability
company, and its successors.
"ATI ACQUISITION" means the acquisition by MDAT of substantially all of
the assets of ATI on the terms and conditions set forth in the ATI Asset
Purchase Agreement.
"ATI ACQUISITION DATE" means the date of consummation of the ATI
Acquisition.
"ATI ASSET PURCHASE AGREEMENT" means the Asset Purchase Agreement dated
as of October 6, 2000 among ATI, Atlantic Photogrammetric Technologies, L.P., an
Alabama limited partnership (collectively, the "VENDORS") and MDAT (the
"PURCHASER") distributed to the Banks prior to the Amendment No. 12 Effective
Date.
"MDAT" means MD Atlantic Technologies, Inc., a Delaware corporation,
and its successors.
"ORBCOMM" means, collectively, OCC, ORBCOMM Global and ORBCOMM Global
Capital Corp.
"ORBCOMM WRITE-DOWN" means, collectively, non-recurring write-downs
not in excess of $125,500,000 in the aggregate relating to the Company's
Investment in ORBCOMM and ORBCOMM-related balance sheet items.
(b) The following definitions set forth in Section 1.01 of the Credit
Agreement are amended to read in their entirety as follows:
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net Income for
such period plus, to the extent deducted in determining such Consolidated Net
Income, without duplication, the aggregate amount of (i) consolidated interest
expense, (ii) income tax expense, (iii) depreciation, amortization and other
similar non-cash charges, (iv) 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, (v)
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, (vi) solely for any period ended on
or prior to February 22, 2000, Excluded Charges, up to an aggregate amount equal
to $5,000,000, (vii) solely for the fiscal quarter ended June 30, 2000, non-cash
charges with respect to the settlement of shareholder litigation in an aggregate
amount not to exceed $11,500,000 and (viii) the ORBCOMM Write-down.
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"CONSOLIDATED LOSS RATIO" means, for any calendar month, the percentage
equivalent of a fraction (i) the numerator of which is the gross credit write
offs of Receivables by all the Borrowers during such month, other than gross
credit write offs included in the ORBCOMM Write-down not to exceed $71,600,000
and (ii) the denominator of which is the amount of Receivables of all the
Borrowers outstanding at the end of such month.
"CONSOLIDATED NET WORTH" means, at any date, the consolidated
stockholders' equity of the Company and its Consolidated Subsidiaries as of such
date plus the amount by which such consolidated stockholders' equity shall have
been reduced by reason of the ORBCOMM Write-down.
"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 extent of 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, (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), (vii) solely for
the fiscal quarter ended June 30, 2000, non-cash charges with respect to the
settlement of shareholder litigation in an aggregate amount not to exceed
$11,500,000 and (viii) the ORBCOMM Write-down.
SECTION 3. Amendments of the Information Covenant. (a) Section 5.01(i)
of the Credit Agreement is hereby amended to read in its entirety as follows:
(x) no later than November 22, 2000, a statement of
projected domestic cash flows of the Company and its Consolidated
Subsidiaries for each month in the six month period from and
including December 2000 to and including May 2001 and (y) no later
than the 22nd day after the end of each calendar month (starting
December 2000 and ending December 2001) a statement
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of projected domestic cash flows of the Company and its
Consolidated Subsidiaries for each month in the immediately
succeeding six month period setting forth in each case (a) at
least the financial information set forth in the projected
statement of domestic cash flows of the Company and its
Consolidated Subsidiaries for the fourth fiscal quarter of the
fiscal year 2000, a copy of which has been delivered to the Banks
prior to the Amendment No. 12 Effective Date, (b) accounts
receivable at the last day of the most recently ended calendar
month, (c) available domestic cash on hand and amounts available
for borrowing under this Agreement at the last day of the most
recently ended calendar month, and (d) the actual domestic cash
flows of the Company and its Consolidated Subsidiaries for the
most recently ended calendar month setting forth operating cash
flow as a single line item and cash flows from financing and
investing activities as separate line items;
(b) Section 5.01 of the Credit Agreement is further amended by (i)
deleting the word "and" at the end of clause (k) thereof, (ii) redesignating
clause (l) thereof as clause (m) and (iii) adding the following new clause (l)
immediately after clause (k):
(l) simultaneously with the delivery of each set of
financial statements referred to in clauses 5.01(a) and 5.01(b)
above in respect of a fiscal period ending on or prior to December
31, 2001, a reconciliation of financial results for the fiscal
quarter ended at the date of such financial statements to the
projected financial results for such fiscal quarter delivered
pursuant to Section 5.22, specifying for each of the Company and
MDA (i) consolidated cash flows and consolidated income, detailing
separately revenues, gross profit, operating income, interest
expense, income tax, depreciation, amortization and non-cash
charges for each such fiscal quarter and (ii) summary financial
information with respect to each division of the Company and its
Subsidiaries; provided that such summary information (x) will
detail separately revenues, gross profit, and operating income
with respect to each such division and (y) will be in such detail
as shall be necessary in order to permit a reconciliation of such
information with the information set forth in the projected
statements of income delivered by the Company pursuant to Section
5.22; and
SECTION 4. Amendment of the Investments Covenant to Permit the ATI
Acquisition. Section 5.07 of the Credit Agreement is amended by (i) deleting
the word "and" immediately following clause (x) in the last paragraph thereof,
(ii)
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adding the word "; and" immediately following clause (y) in the last paragraph
thereof and (iii) inserting the following new clause immediately following
clause (y) of the last paragraph thereof:
(z) on and after the Amendment No. 12 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, the Cooler
Acquisition and the ATI Acquisition.
SECTION 5. Change in the Additional Financial Information Covenant.
Section 5.22 of the Credit Agreement is hereby amended to read in its entirety
as follows:
The Company will deliver to each of the Banks, on or prior
to November 15, 2000 (i) quarterly projected financial statements
for the Company and its Consolidated Subsidiaries for each of the
five fiscal quarters ending December 31, 2001, and annual
projected financial statements for the Company and its
Consolidated Subsidiaries for each of the three fiscal years
ending December 31, 2004, including the consolidated income
statements, consolidated balance sheets, and consolidated cash
flows for each such fiscal quarter or year and (ii) summary
financial information with respect to each division of the Company
and its Subsidiaries; provided that such summary information (x)
will include in any event revenues, gross profit, operating
income, selling, general and administrative expenses and capital
expenditures with respect to each such division and (y) will be in
such detail as shall be necessary in order to permit a
reconciliation of such information with the information set forth
in the projected statements of income, balance sheets and cash
flows delivered by the Company pursuant to clause (i).
SECTION 6. Change in the Events of Default. Sections 6.01 of the Credit
Agreement is amended by (i) adding the words "(other than ORBCOMM)" immediately
after the words "the Company or any Subsidiary" in clauses (h) and (i) thereof
and (ii) adding the words "(other than ORBCOMM)" immediately after the words
"Company and/or any of its Subsidiaries" in clause (k) thereof.
SECTION 7. Representations and Warranties. The Company represents and
warrants that the representations and warranties set forth in Section 4.06(c),
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except for developments relating to ORBCOMM as previously disclosed to the
Banks, and Section 4.12 of the Credit Agreement are true and correct on and as
of the Amendment No. 12 Effective Date except that, in the case of Section 4.12,
such representation and warranty shall not apply to the original financial
statements for the fiscal years ended December 31, 1997, 1998 and 1999 delivered
by the Company to the Banks pursuant to the Credit Agreement (but with respect
to financial statements for such fiscal years, shall apply to the restated
financial statements for such fiscal years delivered by the Company to the Banks
on or about April, 2000).
SECTION 8. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 9. 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. 12
EFFECTIVE DATE") on which the following conditions shall have been satisfied:
(i) receipt by the Administrative Agent of 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);
(ii) the fact that the Fairchild Sale shall have been consummated
and proceeds of the Fairchild Sale shall have been applied in accordance
with Section 2.10 of the Credit Agreement;
(iii) receipt by the Administrative Agent of an amendment fee for
the account of each Bank from which the Administrative Agent shall have
received a signed counterpart hereof (or satisfactory confirmation of its
signing a counterpart hereof) not later than the date of satisfaction of
the condition in clause (i) in an amount equal to 20 basis points of such
Bank's Commitment; and
(iv) payment in full of all expenses payable by the Company
pursuant to Section 10.03 of the Credit Agreement with respect to which
the Company shall have received invoices prior to October 30, 2000.
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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/ Kenneth H. Sunshine
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Title: Senior Vice President and Treasurer
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Renee Toft
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Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ Todd S. Meller
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Title: Managing Director
BANK OF AMERICA, N.A., f/k/a
NATIONSBANK, N.A.
By /s/ Michael J. Landini
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Title: Senior Vice President
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FIRST UNION COMMERCIAL CORPORATION
By /s/ Scott Santa Cruz
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Title: Vice President
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLAND BRANCHES
By /s/ Marguerite Sutton
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Title: Vice President
By /s/ Paddy Dowling
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Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By /s/ Marianne T. Meil
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Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By /s/ John R. Blasi
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Title: Vice President
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WACHOVIA BANK, N.A.
By /s/ Roberts A. Bass
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Title: Senior Vice President
CHEVY CHASE BANK
By /s/ Gill Waller
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Title: Vice President
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent and
as Collateral Agent
By /s/ Renee Toft
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Title: Vice President
Acknowledged by:
ENGINEERING TECHNOLOGIES, INC.
By /s/ Kenneth H. Sunshine
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Title: Senior Vice President and Treasurer
ORBITAL SPACE SYSTEMS, INC.
By /s/ Kenneth H. Sunshine
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Title: Senior Vice President and Treasurer
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ORBITAL COMMERCIAL SYSTEMS, INC.
By /s/ Kenneth H. Sunshine
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Title: Senior Vice President and Treasurer
ORBITAL INTERNATIONAL, INC.
By /s/ Kenneth H. Sunshine
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Title: Senior Vice President and Treasurer
ORBITAL SERVICES CORPORATION
By /s/ Kenneth H. Sunshine
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Title: Senior Vice President and Treasurer
ORBITAL NAVIGATION CORPORATION
By /s/ David W. Thompson
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Title: President
ORBLINK LLC
By /s/ Kenneth H. Sunshine
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Title: Senior Vice President and Treasurer
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