Exhibit 10.32
SEVENTH AMENDMENT TO LOAN AGREEMENT
THIS SEVENTH AMENDMENT TO LOAN AGREEMENT (this "Amendment"), made and
entered into as of May 19, 1999, but effective upon satisfaction of each of the
conditions precedent specified in Section 2 hereof, by and between FAIRFIELD
MANUFACTURING COMPANY, INC., a Delaware corporation ("Borrower"), and GENERAL
ELECTRIC CAPITAL CORPORATION, a New York corporation ("GE Capital"), as sole
"Lender" under the "Loan Agreement" hereinafter referred to and as agent for
itself and the other "Lenders" who may hereafter become parties to the Loan
Agreement (GE Capital, in such capacity, the "Agent").
RECITALS:
A. Borrower and GE Capital, as a Lender and as Agent, entered into a
certain Loan Agreement, dated as of July 7, 1993, as amended pursuant to a First
Amendment to Loan Agreement, dated as of September 30, 1994, a Second Amendment
to Loan Agreement, dated March 30, 1995, but effective as of December 31, 1994,
a Third Amendment to Loan Agreement, dated as of March 31, 1995, a Fourth
Amendment to Loan Agreement, dated as of December 5, 1996, a Fifth Amendment to
Loan Agreement, dated as of February 26, 1997, and a Sixth Amendment to Loan
Agreement, dated as of October 12, 1998 (the "Loan Agreement"; capitalized terms
used herein and not defined herein shall have the meanings ascribed to them in
the Loan Agreement) whereby, subject to the terms and conditions set forth
therein, GE Capital, as sole Lender thereunder, made the Commitment, the Debt
Repurchase Line and the Term Loans available to Borrower.
B. Pursuant to a certain Consent Letter, dated as of April 22, 1999,
between Borrower and GE Capital, as Agent and sole Lender (the "Consent
Letter"), at the request of Borrower, subject to the conditions precedent set
forth therein, GE Capital has consented to (i) Borrower's issuance of unsecured
senior subordinated notes in an aggregate principal amount of up to One Hundred
Million Dollars ($100,000,000), the proceeds of which will be used (A) to redeem
all outstanding Senior Subordinated Notes, (B) to pay in full all outstanding
Debt Repurchase Loans, (C) to make a prepayment of the Term Note in the amount
of at least Fifteen Million Dollars ($15,000,000) and (D) to pay transaction
costs in the amount of approximately Three Million Five Hundred Thousand Dollars
($3,500,000), (ii) Borrower's redemption of the Senior Subordinated Notes from
the proceeds of the 1999 Senior Subordinated Notes as described in the preceding
clause (i), and (iii) Borrower's issuance, in exchange for the 1999 Senior
Subordinated Notes of certain notes having terms substantially identical to the
1999 Senior Subordinated Notes, which notes, pursuant to a certain Exchange
Offer Registration Rights Agreement to be entered into by Borrower, will be the
subject of a registration statement with the Securities and Exchange Commission.
C. In satisfaction of one of the conditions precedent to GE Capital's
consent set forth in the Consent Letter, Borrower wishes to enter into this
Amendment with GE Capital.
In consideration of the premises and the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as follows:
1. Amendments to Loan Agreement. Effective upon fulfillment, to the
satisfaction of Lenders, of the conditions precedent set forth in Section 2
hereof, the Loan Agreement shall be deemed to be amended as follows:
(a) Amendments to Section 1.1 of the Loan Agreement.
(i) Section 1.1 of the Loan Agreement shall be deemed to be amended
by deleting the definitions of "Agreement", "Change of Control",
"Commitment", "Loan Documents" and "Subordinated Indebtedness" therein
in their entireties and substituting in lieu thereof the following
revised definitions of "Agreement", "Change of Control", "Commitment",
"Loan Documents" and "Subordinated Indebtedness":
"Agreement" means this Loan Agreement, either as originally executed
or as it may from time to time be supplemented, modified, amended,
renewed, extended or supplanted (including, without limitation, by
the First Amendment, the Second Amendment, the Third Amendment, the
Fourth Amendment, the Fifth Amendment, the Sixth Amendment and the
Seventh Amendment).
"Change of Control" means (a) the sale, in one or a series of
related transactions, of all or substantially all of Lancer's or
Borrower's assets as an entirety to any Person or related group of
Persons, (b) except as permitted under Section 6.2, the merger or
consolidation of Lancer or Borrower with or into another Person or
the consolidation or merger of any other Person with or into Lancer
or Borrower, (c) the failure of Lancer at any time (i) to maintain
in the aggregate a direct or indirect beneficial interest in
Borrower at least equal to 50% of the entire beneficial equity
interest held by all Persons in Borrower or (ii) to own
beneficially, directly or indirectly, Capital Stock representing
voting control of Borrower, or (d) a "Change of Control" as defined
in the Senior Subordinated Note Indenture or the 1999 Senior
Subordinated Note Indenture or any other indenture or governing
instrument with respect to any Subordinated Indebtedness.
"Commitment" means Twenty Million Dollars ($20,000,000), as such
amount may be increased to Forty Million Dollars ($40,000,000)
pursuant to the Subsequent Commitment Increases provided for in
Section 2.8, unless and until reduced to zero pursuant to Section
3.2(a).
"Loan Documents" means, collectively, this Agreement, the First
Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, the Sixth Amendment, the Seventh
Amendment, the Notes, the Blocked Account Agreements, the
Subsidiary Guaranty, the Collateral Documents, the Lancer
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Pledge Agreement and any other agreements of any type or nature
heretofore or hereafter executed and delivered by Borrower or any of
its Affiliates in favor of the Agent or Lenders in any way relating
to or in furtherance of this Agreement, in each case either as
originally executed or as the same may from time to time be
supplemented, modified, amended, restated, extended or supplanted.
"Subordinated Indebtedness" means the Indebtedness evidenced by or
in respect of (a) prior to the 1999 Debt Repayment, the Senior
Subordinated Notes, (b) the 1999 Senior Subordinated Notes and (c)
any refinancing of the 1999 Senior Subordinated Notes with the prior
written consent of the Majority Lenders on terms and conditions
satisfactory to the Majority Lenders (but in no event less favorable
to Borrower than the terms and conditions of the 1999 Senior
Subordinated Notes), which Indebtedness shall not exceed the
principal amount then outstanding under the 1999 Senior Subordinated
Notes and shall be subordinated in right of payment to the
Obligations in a manner reasonably satisfactory to the Majority
Lenders.
(ii) Section 1.1 of the Loan Agreement shall be deemed further
amended by adding therein, in appropriate alphabetical order, the
following additional definitions:
"Exchange Notes" means any Senior Subordinated Notes due 2008,
having terms substantially similar to the 1999 Senior Subordinated
Notes, in an aggregate principal amount not in excess of One Hundred
Million Dollars ($100,000,000), issued by Borrower to holders of the
1999 Senior Subordinated Notes in exchange therefor pursuant to the
Exchange Offer. From and after the issuance of any Exchange Notes in
exchange for 1999 Senior Subordinated Notes pursuant to the Exchange
Offer, such Exchange Notes shall be "1999 Senior Subordinated Notes"
for all purposes of this Agreement.
"Exchange Offer" means Borrower's offer to exchange the 1999 Senior
Subordinated Notes for the Exchange Notes pursuant to the terms of
the Exchange Offer Registration Rights Agreement.
"Exchange Offer Registration Rights Agreement" means the Exchange
Offer Registration Rights Agreement, dated as of May 19, 1999, made
by Borrower in favor of the holders of the 1999 Senior Subordianted
Notes, a copy of which has been delivered to the Agent, as such
Exchange Offer Registration Rights Agreement may be amended,
modified or supplemented after the Seventh Amendment Date, subject
to the limitations set forth in Section 6.4.
"1999 Debt Repayment" means, collectively, the redemption in full of
the Senior Subordinated Notes, the prepayment in full of the Debt
Repurchase Loans and the prepayment of at least Fifteen Million
Dollars ($15,000,000) of the outstanding
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principal balance of the Term Loans, all from the proceeds of the
issuance of the 1999 Senior Subordinated Notes.
"1999 Senior subordinated Note Indenture" means the Indenture, dated
as of May 19, 1999, between Borrower and First Union National Bank,
as trustee, pursuant to which the 1999 Senior Subordinated Notes
will be issued and governed, a copy of which has been delivered to
the Agent, as such Indenture may be amended, modified or
supplemented after the Seventh Amendment Date, subject to the
limitations set forth in Section 6.4.
"1999 Senior Subordinated Notes" means, collectively, the
$100,000,000 aggregate original principal amount of 1999 Senior
Subordinated Notes due 2008, being issued on May 19, 1999 pursuant
to the 1999 Senior Subordinated Note Indenture, in the form attached
to such Indenture, as such notes may be amended, modified,
supplemented, extended or renewed after the Seventh Amendment Date,
subject to the limitations set forth in Section 6.4.
"Seventh Amendment" means the Seventh Amendment to the Loan
Agreement, dated as of May 19, 1999, among Borrower, the Agent and
GE Capital, as sole Lender.
"Seventh Amendment Date" means May 19, 1999, or such later date as
all conditions precedent to the effectiveness of the Seventh
Amendment set forth in Section 2 thereof shall have been satisfied.
(b) Amendment to Section 2.8 to the Loan Agreement. The Loan
Agreement shall be deemed further amended by deleting Section 2.8
thereof in its entirety and substituting in lieu thereof the following
revised Section 2.8:
2.8 Subsequent Commitment Increases.
(a) Subsequent Commitment Increases. Subject to the
satisfaction of each of the conditions set forth in Section 2.8(b),
at Borrower's written request, delivered by Borrower to the Agent at
least fifteen (15) days prior to the requested increase date and
specifying the requested increase date (each individually a
"Subsequent Commitment Increase Date" and collectively the
"Subsequent Commitment Increase Dates"), the Commitment shall be
increased (each individually a "Subsequent Commitment Increase" and
collectively the "Subsequent Commitment Increases") on no more than
four Subsequent Commitment Increase Dates by an amount not in excess
of Twenty Million Dollars ($20,000,000) in the aggregate as to all
Subsequent Commitment Increases.
(b) Conditions Precedent to Subsequent Commitment Increases.
The obligations of the Lenders to make the Subsequent Commitment
Increases available to Borrower are
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subject to the following conditions precedent each of which shall be
satisfied prior to or on the applicable Subsequent Commitment
Increase Date:
(i) Unless and until the 1999 Senior Subordinated Notes have
been issued and the 1999 Debt Repayment has occurred, there shall be
no more than two Subsequent Commitment Increases, and, in any event,
there shall be no more than four (4) Subsequent Commitment
Increases.
(ii) Each Subsequent Commitment Increase shall be in a
minimum amount of Five Million Dollars ($5,000,000).
(iii) The Agent shall have received all of the following, each
dated as of the applicable Subsequent Commitment Increase Date and
all in form and substance satisfactory to the Agent and legal
counsel for the Agent:
(1) amendments to the then existing Revolving Credit
Note executed by Borrower in favor or each Lender pursuant to
which the principal amount of the Revolving Credit Note held by
each Lender shall be increased by an amount equal to such
Lender's Pro Rata Share of the Subsequent Commitment Increase;
(2) an Officer's Certificate affirming that the
conditions set forth in clauses (iv), (v), (vi), (vii) and
(viii) below have been satisfied;
(3) to the extent deemed necessary by the Agent, an
amendment to the Mortgage giving effect to the Subsequent
Commitment Increase, executed by Borrower, and in form
acceptable for recordation with the appropriate Governmental
Agency;
(4) to the extent deemed necessary by the Agent,
assurance from the Title Company that it is committed to cause
such amendment to the Mortgage to be recorded, and, upon
recordation of such amendment to issue an endorsement to the
title insurance policy issued by the Title Company with regard
to the Mortgage, in a form acceptable to the Agent, insuring
the continued validity and priority of the Mortgage as a lien
upon the Owned Real Property, subject to only those title
exceptions which are set forth in such title insurance policy
and such other title exceptions as may be approved by the Agent
in its sole discretion; and
(5) such other assurances, certificates, documents,
consents or opinions (in addition to those hereinbelow) as the
Agent may reasonably require.
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(iv) The representations and warranties contained in Article
4 shall be true and correct in all material respects on and as of
the Subsequent Commitment Increase Date as though made on and as of
that date (except to the extent that such representations and
warranties relate solely to an earlier date and except as affected
by transactions expressly contemplated by this Agreement).
(v) There shall not then be pending or, to the best
knowledge of Borrower, threatened, any litigation, arbitration,
injunction, proceeding, governmental investigation or inquiry
against or affecting Borrower or any Property of Borrower before any
Governmental Agency that could reasonably be expected to have a
Material Adverse Effect.
(vi) Each of Lancer, Borrower and each of Borrower's
Subsidiaries shall be in compliance with all the terms and
provisions of the Loan Documents to which it is party, and no
Default or Event of Default shall have occurred and be continuing.
(vii) Since March 31, 1999, there shall not have occurred:
(A) any event or circumstance that could reasonably be expected to
have a Material Adverse Effect, or (B) any dividends or other
distributions made to the stockholders of Borrower, except as
permitted by Section 6.3 of this Agreement or Section 7(b) of the
Lancer Pledge Agreement.
(viii) Lenders shall be satisfied that Borrower and its
Subsidiaries are in compliance with all applicable Laws, including,
without limitation, all Environmental Laws and all Laws pertaining
to labor, occupational safety and health and ERISA matters except to
the extent that noncompliance could not reasonably be expected to
have a Material Adverse Effect. Lenders shall be satisfied that the
consummation of the Subsequent Commitment Increase will not cause
Borrower or any Subsidiary to violate any Contractual Obligation to
which it is party or by which it is bound or any Laws applicable to
it.
(xi) Lenders shall be satisfied that Borrower's incurrence
of Indebtedness pursuant to the Subsequent Commitment Increase is
permissible pursuant to Section 1010 of the Senior Subordinated Note
Indenture, prior to the Debt Repayment Date, and Section 4.06 of the
1999 Senior Subordinated Note Indenture, and that after giving
effect thereto, each of the representations and warranties set forth
in Section 4.21 shall continue to be true and correct in all
respects and shall have received such assurances in regard thereto
as Lenders shall request, including, without limitation,
certifications of Senior Officers of Borrower and an opinion of
Borrower's counsel with regard to such matters, each to be in form
and substance satisfactory to Lenders.
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(x) Borrower shall pay to Lenders a fee for each Subsequent
Commitment Increase in an amount of one-fourth percent (.25%) of the
amount of such increase which fee shall be fully-earned and
non-refundable on the date of such increase.
(c) Amendment to Section 4.21 of the Loan Agreement. Section 4.21
of the Loan Agreement is hereby amended by deleting such Section in its entirety
and substituting in lieu thereof the following revised Section 4.21:
4.21 Subordination of Subordinated Indebtedness. (a) This
Agreement, as amended by the First Amendment, the Second Amendment,
the Third Amendment, the Fourth Amendment, the Fifth Amendment, the
Sixth Amendment and the Seventh Amendment, and the other Loan
Documents to which Borrower or any Subsidiary is party, and, to the
extent permissible under Section 1010 of the Senior Subordinated
Note Indenture, all further amendments, amendments and restatements,
renewals, extensions, restructurings, supplements, modifications,
refinancings, refundings, or replacements hereof and thereof
constitute the "Credit Agreement" within the meaning of the Senior
Subordinated Note Indenture, and the Term Loans, the Revolving
Credit Loan, the Letter of Credit Obligations, the Debt Repurchase
Loans and all other Obligations of Borrower to the Agent and the
Lenders under this Agreement, the Notes and any of the other Loan
Documents, and, to the extent permissible pursuant to Section 1010
of the Senior Subordinated Note Indenture, all further amendments,
amendments and restatements, renewals, extensions, restructurings,
supplements, modifications, refinancings, refundings and
replacements of any of the foregoing, constitute "Senior
Indebtedness" of Borrower within the meaning of the Senior
Subordinated Note Indenture, and the holders thereof from time to
time shall be entitled to all of the rights of a holder of "Senior
Indebtedness" pursuant to Article 13 of the Senior Subordinated Note
Indenture.
(b) This Agreement, as amended by the First Amendment, the
Second Amendment, the Third Amendment, the Fourth Amendment, the
Fifth Amendment, the Sixth Amendment and the Seventh Amendment and
the other Loan Documents to which Borrower or any Subsidiary is
party, and, to the extent permissible under Section 4.06 of the 1999
Senior Subordinated Note Indenture, all further amendments,
amendments and restatements, renewals, extensions, restructurings,
supplements, modifications, refinancings, refundings, or
replacements hereof and thereof constitute the "Credit Agreement"
within the meaning of the 1999 Senior Subordinated Note Indenture,
and the Term Loans, the Revolving Credit Loan, the Letter of Credit
Obligations, the Debt Repurchase Loans and all other Obligations of
Borrower to the Agent and the Lenders under this Agreement, the
Notes and any of the other Loan Documents, and, to the extent
permissible pursuant to Section 4.06 of the 1999 Senior Subordinated
Note Indenture, all further amendments, amendments and restatements,
renewals, extensions, restructurings, supplements, modifications,
refinancings, refundings and replacements of any of the foregoing,
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constitute "Senior Indebtedness" of Borrower within the meaning of
the 1999 Senior Subordinated Note Indenture, and the holders thereof
from time to time shall be entitled to all of the rights of a holder
of "Senior Indebtedness" pursuant to Article Eleven of the 1999
Senior Subordinated Note Indenture.
(d) Amendment to Section 4.25 of the Loan Agreement. Section 4.25 of
the Loan Agreement is hereby deleted in its entirety and the following revised
Section 4.25 is hereby substituted in lieu thereof.
4.25 Brokers; Transaction Fees. Neither Borrower nor any of
its Subsidiaries has any obligation to any Person in respect of any
finder's, broker's or investment banker's fee in connection herewith
or with any of the transactions contemplated hereby except customary
underwriting commissions and other customary offering expenses in
connection with the issuance of the 1999 Senior Subordinated Notes.
(e) Amendment to Section 5.10 of the Loan Agreement. Section 5.10 of
the Loan Agreement is deleted in its entirety and the following revised Section
5.10 is hereby substituted in lieu thereof:
5.10 Compliance With Agreements; Payment of Indebtedness.
Borrower shall, and shall cause each Subsidiary to, promptly and
fully comply with all Contractual Obligations under all agreements,
indentures, leases and/or instruments to which Borrower or any
Subsidiary is a party, whether such agreements, indentures, leases
or instruments are with the Lenders or another Person, where the
failure so to comply could reasonably be expected to have a Material
Adverse Effect. Without limitation of the foregoing, Borrower shall
pay, and shall cause each Subsidiary to pay, all Indebtedness in
respect of such Contractual Obligations, subject to the
subordination provisions contained in the Senior Subordinated Note
Indenture and the 1999 Senior Subordinated Note Indenture or any
other instruments or agreements evidencing Indebtedness of Borrower
or any Subsidiary.
(f) Amendments to Section 6.3 of the Loan Agreement. (i) Section 6.3
of the Loan Agreement is hereby amended by deleting clause (a) thereof in its
entirety and substituting in lieu thereof the following revised clause (a):
(a) (i) prior to the consummation of the 1999 Debt Repayment,
regularly scheduled payments of interest in respect of the Senior
Subordinated Notes (but only to the extent permitted to be made pursuant
to Section 1303 of the Senior Subordinated Note Indenture), (ii) the
redemption of the Senior Subordinated Notes as part of the 1999 Debt
Repayment and (iii) regularly scheduled payments of interest in respect
of the 1999 Senior Subordinated Notes (but only to the extent permitted
to be made pursuant to Section 11.03 of the 1999 Senior Subordinated
Note Indenture);
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(ii) Section 6.3 of the Loan Agreement is hereby further
amended by deleting subclause (C) of clause (k) thereof in its entirety
and substituting in lieu thereof the following revised subclause (C):
(C) such dividends are permitted to be paid (x) until
the 1999 Debt Repayment, under Section 1011 of the Senior
Subordinated Note Indenture as in effect on the Closing Date
(without requiring the obtaining of any waiver or consents from
the holders of the Senior Subordinated Notes), and (y) under
Section 4.08 of the 1999 Senior Subordinated Note Indenture as
in effect on the Seventh Amendment Date (without requiring the
obtaining of any waiver or consent from the holders of the 1999
Senior Subordinated Notes);
(iii) Section 6.3 of the Loan Agreement is hereby further
amended by adding the following clause (q) at the end of such
Section:
(q) the exchange of 1999 Senior Subordinated Notes for
the Exchange Notes pursuant to the Exchange Offer.
(g) Amendment to Section 6.4 of the Loan Agreement. Section 6.4 of
the Loan Agreement is hereby deleted in its entirety and the following
revised Section 6.4 is hereby substituted in lieu thereof;
6.4 Restrictions on Amendments, Etc. Borrower shall not (a) amend,
modify or change, or consent or agree to any amendment, modification or
change to, the Senior Subordinated Note Indenture, the 1999 Senior
Subordinated Note Indenture, any Subordinated Note, any 1999 Senior
Subordinated Note or the Exchange Offer Registration Rights Agreement or
any of the terms relating to Subordinated Indebtedness (other than (i)
any such amendment, modification or change which would extend the
maturity or reduce the amount of any payment of principal thereof or
which would reduce the rate or extend the date of payment of interest
thereon or other amounts with respect thereto and (ii) amendments of the
type described in Sections 901(4), (5) and (8) of the Senior
Subordinated Note Indenture and Sections 8.01(2), (3), (4) and (8) of
the 1999 Senior Subordinated Note Indenture, provided, however, that any
amendment, modification or change with respect to the definitions of
"Credit Agreement", "Designated Senior Indebtedness", "Senior
Indebtedness" or "Guarantor Senior Indebtedness" (as defined in the
Senior Subordinated Note Indenture and the 1999 Senior Subordinated Note
Indenture), "Senior Credit Facility" (as defined in the 1999 Senior
Subordinated Note Indenture) or with respect to Article 13 of the Senior
Subordinated Note Indenture or Article Eleven of the 1999 Senior
Subordinated Note Indenture shall require the consent of the Majority
Lenders); (b) designate any "Senior Indebtedness" other than the
Obligations as "Designated Senior Indebtedness" (as such terms are
defined in the Senior Subordinated Note Indenture and the 1999 Senior
Subordinated Note Indenture) or (c) amend, modify or change, or consent
or agree to any amendment, modification or change to, the Certificate of
Designations or any of the terms relating to the New Preferred Stock or
the Exchange Preferred Stock.
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(h) Amendments to Section 9.1 of the Loan Agreement.
(i) Section 9.1 of the Loan Agreement is hereby amended by deleting the
third parenthetical phrase in clause (e) thereof, which begins with the word
"including" and ends with the word "Indenture", and substituting in lieu thereof
the following parenthetical phrase: (including, without limitation, a "Change of
Control", as defined in the Senior Subordinated Note Indenture and the 1999
Senior Subordinated Note Indenture);
(ii) Section 9.1 of the Loan Agreement is hereby further amended by
deleting clause (j) thereof in its entirety and substituting in lieu
thereof the following revised clause (j):
(j) Subordinated Indebtedness. Any determination is made by a
court of competent jurisdiction that payment of principal or
interest or both is due to any holder of any Subordinated
Indebtedness which would not be permitted by Section 6.3, that the
Senior Subordinated Notes are not subordinated to the Obligations in
accordance with the terms of the Senior Subordinated Note Indenture
or that the 1999 Senior Subordinated Notes are not subordinated to
the Obligations in accordance with the terms of the 1999 Senior
Subordinated Note Indenture; or
(iii) Section 9.1 of the Loan Agreement is hereby further amended by
adding at the end of such Section a new clause (s) to read as follows:
(s) 1999 Debt Repayment. Borrower fails to complete the 1999
Debt Repayment on or prior to July 30, 1999.
2. Conditions Precedent. This Amendment shall not become effective
unless and until each of the following conditions precedent shall have been
fulfilled, to Lenders' and its counsel's satisfaction:
(a) Documents. The Agent shall have received all of the following,
all in form and substance reasonably satisfactory to the Agent and
legal counsel for the Agent:
(i) a reaffirmation of the Subsidiary Guaranty and Subsidiary
Security Agreement signed by T-H Licensing and a reaffirmation of the
Lancer Pledge Agreement signed by Lancer;
(ii) an Officer's Certificate affirming that the conditions set
forth in clauses (b), (c), (d), (e), (f) and (g) below have been
satisfied;
(iii) corporate resolutions of Borrower's Board of Directors
authorizing Borrower's execution, delivery and performance of this
Amendment, issuance of the 1999 Senior Subordinated Notes, execution and
delivery of the 1999 Senior Subordinated Notes.
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Indenture, the 1999 Senior Subordinated Notes, the Exchange Agreement
and the Exchange Notes and all related transactions, certified by
Borrower's Secretary or Assistant Secretary to be true, correct and
complete; and
(iv) such other assurances, certificates, documents, consents or
opinions (in addition to those described hereinbelow) as the Agent may
reasonably require.
(b) 1999 Senior Subordinated Notes. (i) Borrower shall have
delivered to Lenders a certificate of a Senior Officer certifying that
its issuance of the 1999 Senior Subordinated Notes, and the application
of the proceeds thereof in connection with the 1999 Debt Repayment, will
not violate the Senior Subordinated Notes Indenture or the Certificate
of Designations and, as applicable, attaching calculations so
demonstrating.
(ii) Borrower and as applicable, the other parties thereto, shall
have executed and delivered the Exchange Offer Registration Rights
Agreement and the 1999 Senior Subordinated Note Indenture and Borrower
shall have issued the 1999 Senior Subordinated Notes pursuant thereto.
(c) Representations and Warranties. The representations and
warranties contained in Article 4 of the Loan Agreement (as amended
hereby) shall be true and correct in all material respects on and as of
the effective date hereof as though made on and as of that date (except
to the extent that such representations and warranties relate solely to
an earlier date and except as affected by transactions expressly
contemplated by the Loan Agreement).
(d) Absence of Litigation. There shall not be pending or, to the
best knowledge of Borrower, threatened, any litigation, arbitration,
injunction, proceeding, governmental investigation or inquiry against or
affecting Borrower or any Property of Borrower before any Governmental
Agency that could reasonably be expected to have a Material Adverse
Effect.
(e) No Default; Contractual Obligations. After giving effect to
this Amendment, Lancer, Borrower and T-H Licensing shall be in
compliance with all the terms and provisions of the Loan Documents to
which they are party, and no Default or Event of Default shall have
occurred and be continuing. The execution and delivery by Borrower of
this Amendment and the consummation of the transactions contemplated
hereby shall not cause Borrower to violate any Contractual Obligation to
which it is party or by which it is bound.
(f) No Material Adverse Effect. Since March 31, 1999, there shall
not have occurred: (1) any event or circumstance that could reasonably
be expected to have a Material Adverse Effect, or (2) any dividends or
other distributions made to the stockholders of Borrower, except as
permitted by Section 6.3 of the Loan Agreement and Section 7(b) of the
Lancer Pledge Agreement.
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(g) Compliance with Laws. Lenders shall be satisfied that
Borrower and its Subsidiaries are in compliance with all applicable
Laws, including, without limitation, all Environmental Laws and all Laws
pertaining to labor, occupational safety and health and ERISA matters
except to the extent that noncompliance could not reasonably be expected
to have a Material Adverse Effect.
3. Other Agreement
(a) Except as set forth expressly herein and above, all terms of
the Loan Agreement and the other Loan Decuments shall be and remain in
full force and effect and shall constitute the legal, valid, binding and
enforceable obligations of Borrower to the Agent and Lenders. In
furtherance of the foregoing, Borrower acknowledges that from and after
the date hereof, it shall continue to be bound by all provisions of the
Loan Agreement as amended hereby. To the extent any terms and conditions
in any of the other Loan Documents shall contradict or be in conflict
with any terms or conditions of the Loan Agreement, after giving effect
to this Amendment, such terms and conditions are hereby deemed modified
and amended accordingly to reflect the terms and conditions of the Loan
Agreement as modified and amended hereby.
(b) Borrower agrees to pay on demand the reasonable fees and
out-of-pocket expenses of counsel to GE Capital incurred in connection
with the preparation, execution, delivery and enforcement of this
Amendment, the closing hereof, and any other transactions contemplated
hereby.
(c) To induce the Agent and Lenders to enter into this Amendment,
Borrower hereby acknowledges and agrees that, as of the date hereof,
there exists no right of offset, defense or counterclaim in favor of
Borrower as against the Agent or Lenders with respect to the
Obligations.
(d) This Amendment shall be governed by, and construed in
accordance with the laws of the State of New York applicable to
contracts made and performed in such State and all applicable laws of
the United States of America.
(e) This Amendment may be executed in two or more counterparts, all
of which shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
FAIRFIELD MANUFACTURING
COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxx
------------------------
Xxxxxxx X. Xxxx
Vice President-Finance
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
By: /s/ Xxxxxx X. Xxxxx
------------------------
Xxxxxx X. Xxxxx
Senior Vice President,
as duly authorized
GENERAL ELECTRIC CAPITAL
CORPORATION, as Lender
By: /s/ Xxxxxx X. Xxxxx
------------------------
Xxxxxx X. Xxxxx
Senior Vice President,
as duly authorized
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ACKNOWLEDGMENT OF GUARANTOR
The undersigned, T-H Licensing, Inc., hereby (a) acknowledges its
receipt of a copy of and consents to the within and foregoing Amendment, (b)
agrees to be bound by the provisions thereof and (c) acknowledges and agrees
that the Subsidiary Guaranty, the Subsidiary Security Agreement and all other
Loan Documents to which the undersigned is a party shall continue in full force
and effect from and after the execution and delivery of the within and foregoing
Amendment without diminution or impairment.
IN WITNESS WHEREOF, the undersigned has set its hand as of the 19th day
of May, 1999.
T-H LICENSING, INC.
By: /s/ Xxxxx Xxxxxxxx
-------------------
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ACKNOWLEDGMENT OF LANCER
The undersigned, Lancer Industries, Inc., hereby (a) acknowledges its
receipt of a copy of and consents to the within and foregoing amendment, (b)
agrees to be bound by the provisions therof and (c) acknowledges and agrees that
the Lancer Pledge Agreement shall continue in full force and effect from and
after the execution and delivery of the within and foregoing Amendment without
diminution or impairment.
IN WITNESS WHEREOF, the undersigned has set its hand as of the 19th
day of May, 1999.
LANCER INDUSTRIES, INC.
By: /s/ Xxxxx Xxxxxxxx
----------------------
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