AMENDMENT NO. 1
to
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 26, 1996
THIS AMENDMENT NO. 1 ("Amendment") is entered into as of
January 21, 1997 by and among Fairchild Holding Corp., a Delaware
corporation (the "U.S. Borrower"), Kaysel, a private unlimited
liability company formed under the laws of The Republic of Ireland
d/b/a/ Fairchild Finance Company (the "U.K. Borrower"), and the
institutions identified on the signature pages hereof as Lenders.
Capitalized terms used herein but not defined herein shall have the
meanings provided in the Credit Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the U.S. Borrower, the U.K. Borrower, and the Lenders
are parties to that certain Amended and Restated Credit Agreement
dated as of July 26, 1996 (together with the Exhibits and Schedules
thereto, the "Credit Agreement"), pursuant to which the Lenders have
agreed to provide certain financial accommodations to the Borrowers;
and
WHEREAS, the U.S. Borrower has requested an amendment of
Section 10.01 of the Credit Agreement to permit the incurrence of
certain intercompany Indebtedness in addition to that heretofore
permitted thereunder and the waiver of Lenders' rights and remedies
arising due to the amendment of the Tax Allocation Agreement
pursuant to a Tenth Amended and Restated Tax Allocation Agreement
dated as of December 23, 1996 attached hereto as Exhibit 1 and made
a part hereof (the "Tenth Amended Tax Allocation Agreement");
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Amendment to Credit Agreement; Waiver. Effective as of
January 21, 1997, upon satisfaction of the conditions precedent set
forth in Section 2 below, (a) the Credit Agreement is hereby amended
to delete the provisions of Section 10.01(g) in their entirety and
substitute the following therefor:
(g) Indebtedness arising from intercompany loans (i) from the
U.S. Borrower to any of its Subsidiaries which is a Guarantor or
from any such Subsidiary to the U.S. Borrower or any other such
Subsidiary, (ii) from the U.K. Borrower to any of the European
Subsidiary Borrowers, (iii) from the U.K. Borrower to the U.S.
Borrower in the amount of $1,450,000 evidenced by a promissory note
in form and substance satisfactory to the Administrative Agent, (iv)
from RHI to the U.S. Borrower provided that such loans are
subordinated to the payment and performance of the Obligations and
are evidenced by a promissory note in form and substance
satisfactory to the Administrative Agent, (v) in an aggregate amount
outstanding at any time not to exceed $10,000,000 from the U.S.
Borrower to Subsidiaries not described in clauses (i) through (iii)
above or from such Subsidiaries to the U.S. Borrower, and (vi) from
the U.S. Borrower to Technologies in an aggregate amount outstanding
at any time not to exceed the amount which is equal to (a)
$25,000,000 minus (b) the amount of Indebtedness outstanding under
clause (v) above;
and (b) the rights and remedies of the Lenders arising due to the
execution of the Tenth Amended Tax Allocation Agreement are hereby
waived.
2. Conditions to Effectiveness. This Amendment shall become
effective as of January 21, 1997 upon receipt by the Administrative
Agent, by no later than January 21, 1997, of executed counterparts
of this Amendment signed on behalf of the Borrower and the Requisite
Lenders.
3. Representations, Warranties and Covenants.
3.1 The Borrowers hereby represent and warrant that this
Amendment and the Credit Agreement, as amended hereby, constitute
the legal, valid and binding obligations of the Borrowers and are
enforceable against the Borrowers in accordance with their terms.
3.2 The Borrowers hereby represent and warrant that, before
and after giving effect to this Amendment, no Event of Default or
Potential Event of Default has occurred and is continuing except
under Section 9.13 with respect to execution of the Tenth Amended
Tax Allocation Agreement.
3.3 Each Borrower hereby reaffirms all agreements, covenants,
representations and warranties made in the Credit Agreement, to the
extent the same are not amended hereby, and made in the other Loan
Documents to which it is a party; and agrees that all such
agreements, covenants, representations and warranties shall be
deemed to have been remade as of the effective date of this
Amendment. To the extent the Credit Agreement is amended hereby to
modify or add agreements, covenants and/or representations and
warranties, such agreements, covenants and/or representations and
warranties are made as of the date on which this Amendment becomes
effective with respect thereto.
4. Reference to and Effect on the Credit Agreement.
4.1 Upon the effectiveness of this Amendment, 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.
4.2 Except as specifically amended above, the Credit Agreement
shall remain in full force and effect, and is hereby ratified and
confirmed.
4.3 The execution, delivery, and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as
a waiver of any right, power or remedy of the Administrative Agent
or Lenders, or constitute a waiver of any provision of any of the
Loan Documents.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
6. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
7. Counterparts. This Amendment may be executed by one or
more of the parties hereto on any number of separate counterparts,
each of which shall be deemed an original and all of which, taken
together, shall be deemed to constitute one and the same instrument.
Delivery of an executed counterpart of this Amendment by facsimile
transmission shall be effective as delivery of a manually executed
counterpart hereof.
IN WITNESS WHEREOF, this Amendment has been duly executed as of
the day and year first above written.
FAIRCHILD HOLDING CORP.
Karen L. Schneckenburger
Vice President & Treasurer
KAYSEL
Karen L. Schneckenburger
Attorney
CITICORP USA, INC.
Timothy L. Freeman
Attorney-in-Fact
NATIONSBANK, N.A.
Michael R. Heredia
Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE
David Bouhl F.V.P.
Head of Corporate Banking, Chicago
UNION BANK OF CALIFORNIA
Cedric M. Henly
Credit Officer
Cary Moore
Vice President