Consent and Amendment No. 5
Dated as of July 29, 1994
to
RESTATED AND AMENDED CREDIT AGREEMENT
Dated as of July 27, 1992
This Consent and Amendment No. 5 ("Amendment No. 5")
dated as of July 29, 1994, is entered into among RHI Holdings,
Inc., a Delaware corporation ("RHI"), and Citicorp North America,
Inc., a Delaware corporation and the sole "Senior Lender" (as
defined in the Credit Agreement referred to below) of RHI.
PRELIMINARY STATEMENT. RHI and Citicorp North America,
Inc., as a Senior Lender of RHI, are parties, among others, to
that certain Restated and Amended Credit Agreement dated as of
July 27, 1992, as amended (the "Credit Agreement"). Capitalized
terms used herein without definition are used herein as defined
in the Credit Agreement.
RHI has formed a Subsidiary, Fairchild Germany, Inc., a
Delaware corporation ("FGI"), and FGI has acquired 100% of the
Capital Stock of Convac GmbH, a corporation organized under the
laws of Germany ("Convac Germany"), which at the time of such
acquisition had certain Subsidiaries including Convac Equipment
for Semiconductor Technology Ltd., a corporation organized under
the laws of the United Kingdom; Convac USA, Inc., a Delaware
corporation ("Convac USA"); Convac France S.A., a corporation
organized under the laws of France; and Convac Trading AG, a
corporation organized under the laws of Switzerland. Following
the consummation of such acquisition, 100% of the Capital Stock
of Convac USA was transferred to FGI, whereupon Convac USA and
Applied Process Technology, Inc., a California corporation
("APT") in which Convac USA owns a 90% equity interest, became
Subsidiaries of FGI.
In connection with the transactions described above, RHI has
requested (i) the amendment of certain negative covenants in the
Credit Agreement and (ii) certain consents with respect to
certain Indebtedness of Convac Germany and its Subsidiaries and
the acquisition by Convac USA of an additional 10% of the Capital
Stock of APT as more particularly described in that certain
letter dated July 19, 1994, a copy of which is attached hereto as
Exhibit A (the "Consent Request") and made a part hereof.
Subject to the terms and conditions stated herein, RHI
and its Senior Lender have agreed to further amend the Credit
Agreement as hereinafter set forth and the Senior Lender has
agreed to consent to the transactions described in Section 2
hereof.
SECTION 1. Amendments to the Credit Agreement.
Subject to the satisfaction of the conditions precedent
set forth in Section 3 below, the Credit Agreement is hereby
amended as follows:
1.1 Section 11.14 is amended to delete clause (a) thereof in
its entirety and to substitute the following therefor:
(a) in the case of RHI, in any Fiscal Year of RHI, in an
aggregate amount in excess of the sum of (i)
$1,250,000 plus leasehold improvements made with
respect to the Virginia Real Property and (ii) RHI's
Selling Price of Fixed Assets for such Fiscal Year,
1.2 Section 11.01B(h) of the Credit Agreement is amended to
delete the provisions thereof in their entirety and to substitute
the following therefor:
(h) Indebtedness of a Foreign Subsidiary of RHI; provided
that the proceeds of such Indebtedness are used by
such Foreign Subsidiary or RHI in the routine conduct
of its business;
1.4 Section 11.06B is amended to delete the number
"$500,000" at the end thereof and to substitute therefor the
number "$2,000,000".
SECTION 2. Consent. (A) Subject to the satisfaction
of the conditions precedent set forth in Section 3 below, the
sole Senior Lender of RHI hereby consents to the following:
(a) the Indebtedness of Subsidiaries of RHI identified on
Exhibits 1 through 5 attached to the Consent Request,
notwithstanding any provision in Section 11.01B of the Credit
Agreement to the contrary; and
(b) RHI's advance of approximately $300,000 in cash to
Convac USA to facilitate Convac USA's acquisition of the balance
of the issued and outstanding Capital Stock of APT representing
ten percent (10%) of all issued and outstanding Capital Stock of
APT as more particularly described in the Consent Request and
such acquisition by Convac USA.
SECTION 3. Conditions Precedent to Amendment No. 5;
Effectiveness. The amendments set forth in SECTION 1 above shall
become effective and be deemed effective as of the date hereof,
and the consents set forth in SECTION 2 above shall become
effective as of June 10, 1994, if, and only if, the
Administrative Agent shall have received on or before August 8,
1994: (i) a facsimile or original executed copy of this
Amendment executed by RHI and Citicorp North America, Inc. as the
sole Senior Lender of RHI and (ii) an amendment to the Rexnord
Holdings Pledge Agreement executed by RHI for delivery to the
Collateral Trustee pursuant to which the Capital Stock of FGI is
pledged as additional security for RHI's Obligations.
SECTION 4. Representations and Warranties. RHI hereby
represents and warrants as follows:
4.1 This Amendment No. 5 and the Credit Agreement as
previously executed and amended and as amended hereby, constitute
legal, valid and binding obligations of RHI and are enforceable
against RHI in accordance with their terms.
4.2 No Event of Default or Potential Event of Default
exists or would result from any of the transactions contemplated
by this Amendment No. 5, except Events of Default or Potential
Events of Default which would arise but for the consents granted
herein.
4.3 Upon the effectiveness of this Amendment No. 5, RHI
hereby reaffirms all covenants, representations and warranties
made in the Credit Agreement to the extent the same are not
amended hereby, and agrees that all such covenants,
representations and warranties shall be deemed to have been
remade as of the date this Amendment No. 5 becomes effective
(unless a representation and warranty is stated to be given on
and as of a specific date, in which case such representation and
warranty shall be true, correct and complete as of such date).
SECTION 5. Reference to and Effect on the Credit
Agreement.
5.1 Upon the effectiveness of this Amendment No. 5,
each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import shall
mean and be a reference to the Credit Agreement, as amended
hereby, and each reference to the Credit Agreement in any other
document, instrument or agreement executed and/or delivered in
connection with the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended hereby.
5.2 Except as specifically amended above, the Credit
Agreement, the Notes and all other Loan Documents shall remain in
full force and effect and are hereby ratified and confirmed.
5.3 The execution, delivery and effectiveness of this
Amendment No. 5 shall not operate as a waiver of any right, power
or remedy of any Senior Lender or Agent or the Administrative
Agent under the Credit Agreement, the Notes or any of the other
Loan Documents, nor constitute a waiver of any provision
contained therein, except as specifically set forth herein.
SECTION 6. Execution in Counterparts. This Amendment
No. 5 may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed counterpart of this
Amendment No. 5 by telecopier shall be effective as delivery of a
manually executed counterpart of this Amendment No. 5.
SECTION 7. Governing Law. This Amendment No. 5 shall
be governed by and construed in accordance with the laws of the
State of New York.
SECTION 8. Headings. Section headings in this
Amendment No. 5 are included herein for convenience of reference
only and shall not constitute a part of this Amendment No. 5 for
any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 5 to be executed by their respective officers
thereunto duly authorized as of the date first above written.
RHI HOLDINGS, INC.
By: Karen Schneckenburger
Title: Treasurer
CITICORP NORTH AMERICA, INC.,
individually as a Senior Lender of
RHI
By: Emily Rosensheck
Title: Vice President