EXECUTION COPY
AMENDMENT NO. 1 (this "Agreement")
dated as of July 29, 1996, to that
certain Asset Purchase Agreement (the
"Asset Purchase Agreement") dated as of
January 23, 1996, between CINCINNATI
MILACRON INC., a Delaware corporation
(the "Purchaser"), and the other
Designated Purchasers (as defined
therein) set forth on the signature
pages thereto and THE FAIRCHILD
CORPORATION, a Delaware corporation (the
"Parent"), RHI HOLDINGS, INC., a
Delaware corporation ("RHI"), and the
Sellers (as defined therein) set forth
on the signature pages thereto. All
defined terms used herein but not
defined herein have the meanings set
forth in the Asset Purchase Agreement.
WHEREAS the Purchaser, the Designated Purchasers, the
Parent, RHI, the Sellers and their respective successors have agreed
to amend the Asset Purchase Agreement with respect to the Purchase
Price paid for the Business.
NOW, THEREFORE, the Purchaser, the Designated Purchasers,
the Parent, RHI, the Sellers and their respective successors agree as
follows:
SECTION 1.01. Purchase Price. Section 2.04(a) of the Asset
Purchase Agreement shall be amended to read as follows:
"(a) In consideration of the sale, assignment, transfer,
conveyance and delivery to the Designated Purchasers of the Acquired
Assets, Purchaser (or any other Designated Purchaser) (i) on the
Closing Date shall (A) pay to VSI Corporation (or any other Seller
designated by Parent) Sixty-Two Million Three Hundred Thousand Dollars
($62,300,000) (the "Cash Payment") by wire transfer of immediately
available funds to the account or accounts designated by Parent in a
written notice received by Purchaser at least two business days prior
to the Closing, and (B) deliver to VSI Corporation promissory notes
(the "Promissory Notes") payable to VSI Corporation (or any other
entity designated by Parent in a written notice received by Purchaser
at least two business days prior to the Closing) in the form of, and
containing the terms set forth in, Exhibits A, B and C hereto,
consisting, respectively, of (x) a Promissory Note (the "Secured
Note") in an aggregate
principal amount of One Hundred Sixty-Six Million Dollars
($166,000,000), (y) a Promissory Note (the "Unsecured Note") in an
aggregate principal amount of Four Million Three Hundred Thirty-One
Thousand Dollars ($4,331,000) and (z) a Promissory Note in the
aggregate principal amount of Eleven Million Seven Hundred Thousand
Dollars ($11,700,000) (the "Belgian Note") and (ii) on July 29, 1996
shall pay to VSI Corporation (or any other entity designated by
Parent) One Million Two Hundred Ninety-One Thousand Four Hundred
Forty-Four and 06/100 Dollars ($1,291,444.06) (the "Additional Cash
Payment") by wire transfer of immediately available funds to the
account or accounts designated by Parent in a written notice received
by Purchaser at least two business days prior to July 29, 1996;
provided, however, that the Purchaser shall satisfy and discharge in
full its obligation to pay the Additional Cash Payment on July 29,
1996 with a payment of $768,947.53, which represents the Additional
Cash Payment less an amount equal to $522,496.53 that is owed by the
Parent to the Purchaser pursuant to Section 2.04(c) in connection with
the reimbursement of the Purchaser of certain letter of credit fees
paid by the Purchaser on the Parent's behalf. The sum of the Cash
Payment, the aggregate principal amount of the Promissory Notes and
the Additional Cash Payment shall equal Two Hundred Forty-Five Million
Six Hundred Twenty-Two Thousand Four Hundred Forty-Four and 06/100
Dollars ($245,622,444.06) (the "Purchase Price").
SECTION 1.02. Purchase Price Adjustment. It is understood
and agreed that the principal amount of the Unsecured Note has been
adjusted from the amount of $5,376,555 to the amount of $4,331,000 in
accordance with Section 2.05 of the Asset Purchase Agreement. It is
further understood and agreed that, notwithstanding anything herein to
the contrary, the aggregate interest payment due from the Purchaser on
July 29, 1996 with respect to the Secured Note and the Unsecured Note
shall be reduced by the aggregate amount of $656,193.20, which
represents the amount by which the Purchaser overpaid the aggregate
interest payment due with respect to the Secured Note and the
Unsecured Note on April 29, 1996.
SECTION 1.03. Representation and Warranties. (a) The Parent
and Fairchild Holding Corp. each hereby represents and warrants to the
Purchaser that (i) Fairchild Holding Corp. is the successor to the
rights and obligations of VSI Corporation under the Asset Purchase
Agreement and (ii) the Bill of Conveyance, General Assignment and
Assumption Agreement, dated March 13, 1996, between
VSI Corporation and Fairchild Holding Corp. is a legal, valid and
binding agreement, enforceable against VSI Corporation and Fairchild
Holding Corp. in accordance with its terms.
(b) The Parent and Fairchild Convac GmbH each hereby
represents and warrants to the Purchaser that Fairchild Convac GmbH is
the entity formerly known as D-M-E Normalien GmbH.
(c) The Parent and JJS Limited each hereby represents and
warrants to the Purchaser that JJS Limited is the entity formerly
known as D-M-E Europe (UK) Limited.
SECTION 1.04. Acknowledgement. Each of the signatories
hereto acknowledges and agrees that payment of the Purchase Price as
contemplated by this Agreement will discharge and extinguish in full
all obligations of the Purchaser and the Designated Purchasers with
respect to the payment of the Purchase Price under the Asset Purchase
Agreement.
SECTION 1.05. Exhibits. Exhibits A and B to the Asset
Purchase Agreement shall be replaced in their entirety by Exhibits A
and B, respectively, hereto.
IN WITNESS WHEREOF, the Purchaser, the Designated
Purchasers, the Parent, RHI, the Sellers and their respective
successors have executed this Agreement by their duly authorized
officers as of the date first written above.
CINCINNATI MILACRON INC.,
by
/s/ Ronald D. Brown
------------------------------
Name: Ronald D. Brown
Title: Vice President-Finance
D-M-E COMPANY,
by
/s/ Ronald D. Brown
------------------------------
Name: Ronald D. Brown
Title: Vice President
D-M-E UK LIMITED, formerly known as
CHARTRETAIL LIMITED,
by
/s/ Jerry R. Lirette
------------------------------
Name: Jerry R. Lirette
Title: Director
D-M-E BELGIUM N.V.,
by
/s/ Jerry R. Lirette
------------------------------
Name: Jerry R. Lirette
Title: Director
by
/s/ Harold J. Faig
------------------------------
Name: Harold J. Faig
Title: Director
DME NORMALIEN GMBH, formerly known as
CINCINNATI MILACRON KUNSTOFFMASCHINEN
VERTRIEBSUND SERVICE GMBH,
by
/s/ Jerry R. Lirette
------------------------------
Name: Jerry R. Lirette
Title: Managing Director
THE FAIRCHILD CORPORATION,
by
/s/ Donald E. Miller
------------------------------
Name: Donald E. Miller
Title: Senior Vice President
and Secretary
RHI HOLDINGS, INC.,
by
/s/ Donald E. Miller
------------------------------
Name: Donald E. Miller
Title: Vice President and
Secretary
VSI CORPORATION,
by FAIRCHILD HOLDING CORP.,
as successor to VSI
CORPORATION,
by
/s/ Donald E. Miller
------------------------
Name: Donald E. Miller
Title: Vice President and
Secretary
FAIRCHILD CONVAC GMBH, formerly
known as D-M-E NORMALIEN GMBH,
by
/s/ Robert D. Busey
------------------------------
Name: Robert D. Busey
Title: Geschaftsfurhrer
JJS LIMITED, formerly known as
D-M-E EUROPE (UK) LIMITED,
by
/s/ John L. Flynn
------------------------------
Name: John L. Flynn
Title: Director