19
TFC/RHI/FHC AM1
AMENDMENT NO. 1
dated as of January 29, 1999
to
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 19, 1997
THIS AMENDMENT NO. 1 ("Amendment") is entered into as
of January 29, 1999 by and among The Fairchild Corporation, a
Delaware corporation, Fairchild Holding Corp., a Delaware
corporation, RHI Holdings, Inc., a Delaware corporation, 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 Borrowers and the Lenders and Issuing
Banks are parties to that certain Third Amended and Restated
Credit Agreement dated as of December 19, 1997 (together with the
Exhibits and Schedules thereto, the "Credit Agreement"), pursuant
to which the Lenders and Issuing Banks have agreed to provide
certain financial accommodations to the Borrowers; and
WHEREAS, in accordance with the requirements of Section
10.04 of the Credit Agreement, the Collateral Agent has consented
to the formation of a new Wholly-Owned Subsidiary of Mairoll,
Inc. under the laws of the State of Delaware and such Subsidiary
has been formed and is known as Warthog, Inc.;
WHEREAS, the Borrowers have requested certain
amendments to Article X of the Credit 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. Effective as of
January 29, 1999, upon satisfaction of the conditions precedent
set forth in Section 2 below, the Credit Agreement is hereby
amended as follows:
1.1 Section 1.01 is amended to (i) delete the
provisions of clause (ii)(b) of the definition of "Borrowing
Base" in its entirety and substitute the following therefor:
(b) the Banner Stock Availability;
and (ii) add the following definitions thereto:
"Banner Stock Availability" means an amount equal to forty
percent (40%) of the Market Value of the Banner Stock minus
forty percent (40%) of the cumulative amount of cash loaned,
advanced, dividended, distributed, invested, or otherwise
transferred by Banner to Fairchild from and after December
26, 1998.
"Commitment" means, with respect to a given Lender, the sum
of such Lender's Revolving Credit Commitment plus such
Lender's Term Loan Commitment.
"Farmingdale Property" means the Real Property located in
Farmingdale, New York and owned by Mairoll, Inc.
1.2 Section 10.01 is amended to (i) delete the phrase
"Intentionally omitted" from clause (h) thereof and substitute
the following therefor:
(h) Indebtedness owing to Banner in the principal amount of
$30,000,000 evidenced by a promissory note in the form set
forth on Exhibit 10.01-H attached hereto and made a part
hereto;
(ii) delete the word "and" at the end of clause (n) thereof and
(iii) delete the provisions of clause (o) thereof in their
entirety and substitute the following therefor:
(o) Indebtedness of Warthog, Inc., a Wholly-Owned
Subsidiary of Mairoll, Inc. owing to Fleet Bank, National
Association in an aggregate principal amount not to exceed
$35,000,000 at any time outstanding on the terms and
conditions set forth on Schedule 10.01-O attached hereto and
made a part hereof, subject to agreements in form and
substance satisfactory to the Collateral Agent; provided
that such agreements are executed and delivered on or before
May 31, 1999;
(p) Indebtedness of TFC in respect of the indemnity
described on Schedule 10.01-O, subject to an agreement in
form and substance satisfactory to the Collateral Agent;
(q) in addition to the Indebtedness permitted by clauses
(a) through (p) above, other unsecured Indebtedness and
secured Indebtedness of Subsidiaries of the Borrowers which
are not Domestic Subsidiaries in an aggregate amount which,
when combined with outstanding Accommodation Obligations
permitted under Section 10.05(d) and Section 10.05(j), does
not exceed $15,000,000 outstanding.
1.3 Section 10.02 is amended to (i) delete the
provisions of clause (i) thereof in its entirety and substitute
the following therefor:
(i) any transfers of any portion or all of the Capital
Stock or assets of the Spin-Off Businesses and any transfers
of assets required to consummate the Spin-Off;
(ii) delete the word "and" at the end of clause (j) thereof,
(iii) delete the "." at the end of clause (k) thereof and
substitute "; and" therefor, and (iv) add the following
provisions as clause (l) thereof:
(l) the transfer by Mairoll, Inc., a Wholly-Owned
Subsidiary of FHC, to Warthog, Inc., a Delaware corporation
and a Wholly-Owned Subsidiary of Mairoll, Inc., of the
Farmingdale Property.
1.4 Section 10.03 is amended to (i) delete the word
"and" at the end of clause (e) thereof, (ii) delete the "." at
the end of clause (f) thereof and substitute "; and" therefor,
and (iii) add the following provision as clause (g) thereof:
(g) Liens granted by Warthog, Inc., a Wholly-Owned
Subsidiary of Mairoll, Inc., in (i) the Farmingdale Property
and improvements made thereto, (ii) all fixtures,
furnishings, Equipment and other personal property used in
connection with the Farmingdale Property and such
improvements, and (iii) all leases, subleases, licenses,
concession agreements, contracts, and managerial agreements,
entered into with respect thereto and permits affecting the
Farmingdale Property and improvements made thereto.
1.5 Section 10.04 is amended to (i) delete the word
"and" at the end of clause (p) thereof, (ii) delete the "." at
the end of clause (q) thereof and substitute ";" therefor, and
(iii) add the following provisions as clause (r) and clause (s)
thereof:
(r) an Investment by Mairoll, Inc. in Warthog, Inc., a
Delaware corporation and Wholly-Owned Subsidiary of Mairoll,
Inc., in the form of a contribution to the capital of
Warthog, Inc. of the Farmingdale Property; and
(s) an Investment by RHI in Capital Stock of Mediadisc, a
corporation formed under the laws of France, aggregating
approximately a 35% interest therein, the amount of which
Investment shall be charged against the Investments
referenced in Section 10.17 and the subsequent Investment(s)
by Subsidiaries of RHI of all of the Capital Stock of Convac
France to Mediadisc immediately preceding the merger of
Convac France and Mediadisc permitted under Section
10.09(ix).
1.6 Section 10.05 is amended to (i) delete the word
"and" at the end of clause (h) thereof and (ii) delete clause (i)
thereof in its entirety and substitute the following therefor:
(i) Accommodation Obligations in the form of a "Completion
Guaranty" and a "Full Payment Guaranty" incurred by TFC for
the benefit of Fleet Bank, National Association, on the
terms and conditions set forth on Schedule 10.01-O, subject
to agreements in form and substance satisfactory to the
Collateral Agent; and
(j) in addition to the Accommodation Obligations permitted
by clauses (a) through (i) above, other unsecured
Accommodation Obligations in an aggregate amount which does
not exceed $10,000,000 at any time outstanding.
1.7 Section 10.09 is amended to (i) delete the word
"and" at the end of clause (vii) thereof, (ii) delete the "." at
the end of clause (viii) and substitute "; and" therefor, and
(iii) add the following provision as clause (ix) thereof:
(ix) the merger of Mediadisc with and into Convac France
with Convac France being the surviving corporation.
1.8 Section 10.17 is amended to delete the provisions
thereof in their entirety and substitute the following therefor:
10.17. Transactions with the Technologies Companies. ??
Notwithstanding anything to the contrary contained in this
Article X, prior to consummation of the Spin-Off, the
Technologies Companies may, directly or indirectly, (a)
incur Indebtedness from or receive the benefit of
Investments made by the Borrowers or any Subsidiary of the
Borrowers after the Effective Date and (b) receive the
benefit of Accommodation Obligations incurred by the
Borrowers or any Subsidiary of the Borrowers after the
Effective Date, in an amount (in the aggregate at any time
outstanding, exclusive of fees and interest with respect
thereto) not exceeding $42,000,000 and the Borrowers and any
Subsidiary of the Borrowers may make such Investments and
incur such Accommodation Obligations.
1.9 Schedule 1.01.10 is deleted in its entirety and
Schedule 1.01.10 attached hereto and made a part hereof is
substituted therefor.
2. Conditions to Effectiveness. The provisions of
this Amendment shall become effective as of January 29, 1999 upon
receipt by the Collateral Agent, by no later than 5:00 p.m. (New
York time) on February 5, 1999, of (i) executed counterparts of
this Amendment signed on behalf of the Borrowers and the
Requisite Lenders, (ii) payment in immediately available funds of
a fee for the account of each Lender having executed and
delivered this Amendment on or before such date in the amount of
0.05% of such Lender's Commitment.
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.
3.3 The Borrowers hereby reaffirm 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 Collateral 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. RHI HOLDINGS, INC.
By Karen L. Schneckenburger By Karen L. Schneckenburger
Vice President & Treasurer Vice President & Treasurer
THE FAIRCHILD CORPORATION
By Karen L. Schneckenburger
Vice President & Treasurer
Lenders:
CITICORP USA, INC. NATIONSBANK, N.A.
By: Suzanne Crymes By: Michael R. Heredia
Attorney-in-Fact Senior Vice President
CREDIT AGRICOLE INDOSUEZ BHF-BANK AKTIENGESELLSCHAFT
By: David Bouhl, F.V.P. By:
Head of Corporate Banking
Chicago
By: Dennis M. Toolan By:
Vice President
Senior Relationship Manager
PRIME INCOME TRUST SENIOR DEBT PORTFOLIO
By Boston Management and
Research as Investment
Adviser
By: Peter Gewirtz By: Scott H. Page
Authorized Signatory Vice President
KZH CRESCENT LLC KZH CRESCENT-2 LLC
By: Virginia Conway By: Virginia Conway
Authorized Agent Authorized Agent
KZH SHOSHONE LLC KZH SOLEIL-2 LLC
By: Virginia Conway By: Virginia Conway
Authorized Agent Authorized Agent
KZH ING-2 LLC KZH CRESCENT-3 LLC
By: Virginia Conway By: Virginia Conway
Authorized Agent Authorized Agent
PROVIDENT BANK OF MARYLAND MERRILL LYNCH PIERCE FENNER &
SMITH INCORPORATED
By: Robert L. Smith By: Neil Brisson
Assistant Vice President Director
UNION BANK OF CALIFORNIA, N.A. TORONTO DOMINION (TEXAS), INC.
By: J. Scott Jessup By____________________________
Vice President
COMPAGNIE FINANCIERE DE CIC NATEXIS BANQUE
ET DE L'UNION EUROPEENNE
By: Sean Mounier By: Pieter J. van Tulder
First Vice President
President and
Manager
Multinational Group
By: Brian O'Leary By: John Rigs
Vice President Vice President
BOEING CAPITAL CORPORATION FIRST DOMINION FUNDING I
By: James C. Hammersmith By: Andrew H. Marshak
Senior Documentation Officer Authorized Signatory
PAM CAPITAL FUNDING, INC. VAN KAMPEN PRIME RATE
By Highland Capital Management INCOME TRUST
Company as Collateral Manager
By: James Dondero, CFA, CPA By: Jeffrey W. Maillet
President Senior Vice President
And Director
BALANCED HIGH-YIELD FUND I LTD.
By BHF-Bank Aktiengesellschaft
acting through its New York
Branch as attorney-in-fact
By___________________________
Name:
Title:
By___________________________
Name:
Title:
EATON VANCE SENIOR INCOME TRUST
By Eaton Vance Management, as
Investment Advisor
By: Scott H. Page
Vice President
EXHIBIT 10.01-H
to
Third Amended and Restated Credit Agreement
dated as of December 19, 1998
Form of Subordinated Banner Note
Attached
SCHEDULE 1.01.10
to
Third Amended and Restated Credit Agreement
Dated as of December 19, 1997
as amended by Amendment No. 1 and Consent
dated as of January 29, 1999
SPIN-OFF BUSINESSES
I. Principal Spin-Off Businesses
Technologies Companies:
Fairchild Technologies GmbH
Convac France S.A.
Fairchild Technologies UK Ltd.
Convac Dresden GmbH
Fairchild Germany, Inc.
Convac USA, Inc.
Fairchild Technologies USA, Inc.
Fairchild CDI S.A.
Mediadisc??
CuTek Research, Inc.
Nacanco Paketleme Sanayi Ve Ticaret A.S.
Investments:
Holder Investment
TFC Billecart Expansion
Skinner Engine Company Preferred Stock
Teuza Fund
Rotlex
Nevatim Triangle Venture
Oramir Semiconductor Equipment Ltd.
Technical Devices Note Receivable
($914,193)
Stelfast Fasteners Note Receivable
($181,093)
Banner Industrial Products, Inc.
Plymouth Leasing Company
Banner Energy Corporation of Kentucky,
Inc. ("BECK")
Faircraft Sales Ltd.
Fairchild Export Sales Corporation
Aircraft Tire Corporation
Fairchild Titanium Technologies, Inc.
RHI Medical Resources, Inc.
S.A.R.L. Soustiel 2000
Bolshoi Fund (Antiques)
Celtronix Ltd.
Visionix Ltd.
Fairchild Scandinavian Bellyloading
Company -- Royalty Agreement with
Teleflex
MISAT Ltd.
Northking Insurance Company Limited, a
Bermuda corporation (re-
insurance collateral and guaranty)
Recycling Investments, Inc. ("RII")
Recycling Investments II, Inc. ("R-II")
Banner Capital Ventures, Inc.
Shared Technologies Cellular, Inc.
Tri-Fast S.A.R.L.
Sovereign Air Limited -- Bristol
Holdings
Banner Industrial Distribution, Inc.
MTA, Inc.
F.F. Handels GmbH
Aero International, Inc.
FHC S.S.E. Telecom, Inc. common stock &
warrants
Colt Royalty Agreement
Teuza Management and Development (1991)
Limited
Mairoll, Inc. (exclusive of Fastener
Business assets & liabilities)
A10 Inc.
Fairchild Arms International Ltd.
Oink Oink, Inc.
Fairchild Data Corporation
Communication Intelligence Corporation
(preferred stock)
D-M-E Iberica S.A.
Partes Para Moldes D-M-E S.A.
Banner Investments (UK) Limited
JJS Limited
Boussugue Note Receivable (FF 4,000,000)
Mairoll, Inc. V&V Redondo Beach Limited Partnership,
a California partnership (49%
interest)??
Hartz-Rex Associates, a New Jersey
partnership (49% interest)
A10 Inc. Fairchild Retiree Medical Services, Inc.
RII Eagle Environmental, Limited
Partnership, a Delaware partnership
(49.9% limited partnership interest)
R-II Eagle Environmental II, Limited
Partnership (49.9% limited partnership
interest)
BECK Jenkins Coal Dock Company, Inc. (shell
corporation; 80% owned)??
KenCoal Associates, an Ohio partnership
(80% interest; inactive entity with no
assets or liabilities)
Real Estate:
Owner Real Estate Location
FHC Sloane Street Real Property (London)
RHI West Milwaukee Real Property (Wisconsin)
Brady Lane Real Property (Indiana)
Burlington Real Property (Massachusetts)
Plymouth Leasing Trucking terminals located in Huron,
Company Ohio and leased to Conway
Freight and
Mansfield, Ohio (unoccupied)
BECK 700 acres of unimproved land in Kentucky
Faircraft Sales 50 acres including a coal mine in
Ltd. Vincennes, Indiana
II. Fairchild Finance Company
III. Other Non-Aerospace Businesses
SCHEDULE 10.01-O
to
Third Amended and Restated Credit Agreement
dated as of December 19, 1997
Farmingdale Financing Termsheet
Attached