FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment"), made and entered into as of October ___, 2000, 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, are parties to a
certain Amended and Restated Loan Agreement, dated as of December 30, 1999 (the
"Loan Agreement"; capitalized terms used herein and not defined herein shall
have the meanings assigned to them in the Loan Agreement), pursuant to which GE
Capital, as sole Lender thereunder, makes certain financial accommodations to
Borrower.
B. Pursuant to a certain Consent Letter, dated as of October 4, 2000
("Consent Letter"), between Borrower and GE Capital, as Agent and sole Lender,
at the request of Borrower, subject to the satisfaction of the conditions set
forth therein, GE Capital has (i) consented to (a) the consummation of the "AGL
Acquisition", (b) the obtaining by "AGL" of the "GE Capital India Loan", (c) the
entrance by Borrower with AGL into the "Technical Assistance Agreement" and the
"Supply Agreement" and (d) Borrower's transfer of the "AGL Equipment" to AGL and
(ii) has agreed to issue the "India Guaranty" (with all such capitalized terms
having the meaning assigned to them in Section 1 below).
C. In fulfillment of one such condition precedent, Borrower desires to
enter with GE Capital into this Amendment.
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 adding therein the following terms:
"AGL" means the Atlas Gears Limited, an Indian corporation.
"AGL Acquisition" means the acquisition by T-H Licensing, as the
designee of Borrower, of the AGL Acquired Shares for a cash
purchase price not in excess of U.S. $4,500,000 pursuant to the AGL
Subscription Agreement in accordance with the terms of the AGL
Shareholders Agreement.
"AGL Acquired Shares" means shares of Capital Stock in an amount
equal to approximately seventy-six percent (76%) of the issued and
outstanding Capital Stock of AGL.
"AGL Equipment" means equipment of Borrower having an aggregate
book value not in excess of $6,000,000 to be transferred by
Borrower to AGL following the consummation of the AGL Acquisition.
"AGL Put/Call Rights" means the put rights of the Indian Promoters
and the call rights of Borrower, in respect of the Capital Stock of
AGL, set forth in the AGL Shareholders Agreement.
"AGL Shareholders Agreement" means that certain Shareholders
Agreement, dated as of September 4, 2000, between Borrower and the
Indian Promoters, as amended pursuant to that certain Supplemental
Agreement, dated as of October 1, 2000, between Borrower and the
Indian Promoters, and, subject to the provisions of Section 6.23
hereof, as such agreement may be amended or modified from time to
time.
"AGL Subscription Agreement" means that certain Share Subscription
Agreement dated as of September 7, 2000, among Borrower, the Indian
Promoters and AGL, as such agreement may be amended or modified
from time to time, subject to the provisions of Section 6.23
hereof.
"Consent Letter" means that certain Consent Letter dated as of
October 4, 2000 issued by GE Capital, as Agent and sole Lender, to
Borrower.
"GE Capital India" means GE Capital Services India, a company
incorporated under the Companies Act, 1956 having its registered
office at AIFACS Building, 1 Rafi Marg, New Delhi - 110 001.
"GE Capital India Loan" means the loan facility consisting of a
revolving credit facility and a multiple disbursements term loan in
the maximum aggregate principal amount of U.S. $7,000,000, obtained
by AGL from GE Capital India pursuant to the GE Capital India Loan
Documents, the proceeds of which will be used by AGL to refinance
existing debt and to expand and refurbish its plant facility.
"GE Capital India Base Loan Documents" means, collectively, the GE
Capital India Loan Agreement and each hypothecation agreement,
mortgage or other security agreement of any type or nature
heretofore or hereafter executed and delivered by Borrower, T-H
Licensing, AGL or any of Borrower's other Affiliates, in any way
relating to or in furtherance of the GE Capital India Loan
Agreement, in each case, either as originally executed or, subject
to the provisions of Section 6.23 hereof, as the same may from time
to time be supplemented, modified, amended restated, extended or
supplanted.
"GE Capital India Loan Documents" means, collectively, the GE
Capital India Base Loan Documents and all other agreements of any
type or nature heretofore or hereafter executed and delivered by
Borrower, T-H Licensing, AGL or any of Borrower's other Affiliates
in any way relating to or in furtherance of the GE Capital India
Loan Agreement, in each case either as originally executed or,
subject to the provisions of Section 6.23 hereof, as the same may
from time to time be supplemented, modified, amended, restated,
extended or supplanted.
"GE Capital India Loan Agreement" means the, collectively, the Loan
Agreement, dated as of October __, 2000, between AGL and GE
Capital India (regarding the revolving credit facility portion of
the GE Capital India Loan), and the Loan Agreement, dated as of
October __, 2000, between AGL and GE Capital India (regarding the
term loan portion of the GE Capital India Loan), in each case,
either as originally executed or, subject to the provisions of
Section 6.23 hereof, as the same may from time to time be
supplemented, modified, amended, restated, extended or supplanted.
"India Guaranty" means the guaranty by GE Capital on behalf of the
Lenders of the obligations of AGL under the GE Capital India Loan
up to the maximum amount of $7,000,000.
"India Guaranty Obligations" means all obligations incurred by
Lenders under or in respect of the India Guaranty.
"Indian Promoters" has the meaning assigned to it in the AGL
Shareholders Agreement.
"Supply Agreement" means that certain agreement to be entered into
between Borrower and AGL, pursuant to which, at Borrower's request
AGL will manufacture to Borrower's specifications and supply to
Borrower certain products from time to time, as such agreement may
be amended or modified from time to time, subject to the provisions
of Section 6.23 hereof.
"Technical Assistance Agreement" means that certain agreement to be
entered into between Borrower and AGL, pursuant to which Borrower
will grant to AGL a non-exclusive, non-transferable and revocable
license to use certain technical knowledge and documentation in its
manufacturing and sales activities in exchange for the payment of
certain royalties, as such agreement may be amended or modified
from time to time, subject to the provisions of Section 6.23
hereof.
"T-H Licensing Pledge Agreement" means the stock pledge agreement,
covering at least sixty-five percent (65%) of the shares of the
issued and outstanding Capital Stock of AGL, executed by T-H
Licensing in favor of the Agent, either as originally executed or
as the same from time to time may be supplemented, modified,
amended, restated, extended or supplanted.
(ii) The definition of "Loan Documents" set forth in Section 1.1
of the Loan Agreement shall be deemed amended by inserting a comma after
the words "Lancer Pledge Agreement" therein followed by the words
"T-H Licensing Pledge Agreement".
(iii) The definition of "Restricted Payment" set forth in Section 1.1 of the
Loan Agreement shall be deemed amended by deleting the word "and" after clause
(e) thereof and by inserting after clause (f) thereof a new clause (g) to read
as follows:
(g) any payment by Borrower, T-H Licensing or any other
Subsidiary of Borrower made to purchase shares of Capital Stock of AGL
pursuant to the AGL Put/Call Rights.
(b) Addition of New Section 2.2A to the Loan Agreement. The Loan
Agreement shall be deemed further amended by inserting the following new
Section 2.2A immediately after Section 2.2 thereof:
Section 2.2A India Guaranty
(a) Subject to the terms and conditions hereof, on the date of
the closing of the GE Capital India Loan, GE Capital shall issue the India
Guaranty to GE Capital India. The India Guaranty shall terminate on the
earlier of (i) the effective date of any written release and termination
by GE Capital India of all obligations of GE Capital under the India
Guaranty and (ii) payment in full of the obligations of AGL to GE Capital
India under the GE Capital India Loan Agreement and termination of the
GE Capital India Loan Agreement.
(b) Upon the issuance by GE Capital of the India Guaranty, each other Lender
shall be deemed to have purchased from GE Capital a participation therein, in an
amount equal to that Lender's Pro Rata Share of the amount of the India Guaranty
Obligations so incurred. Without limiting the scope and nature of each Lender's
participation in the India Guaranty Obligations, to the extent that GE Capital
has not been reimbursed by Borrower for any payment required to be made by GE
Capital in respect of the India Guaranty, each Lender shall, according to its
Pro Rata Share, reimburse GE Capital promptly upon demand for the amount of such
payment. The obligation of each Lender to so reimburse GE Capital shall be
absolute and unconditional and shall not be affected by the occurrence of a
Default, an Event of Default, the Commitment Termination Date or any other
occurrence or event, nor be modified or diminished for any reason or in any
manner whatsoever, including, without limitation, by virtue of any claim, action
or defense that Borrower or AGL may have or assert against GE Capital India in
respect of the GE Capital India Loan Documents or against GE Capital in respect
of its reimbursement obligations hereunder. Any such reimbursement shall not
relieve or otherwise impair the obligation of Borrower to reimburse GE Capital
for the amount of any payment made by GE Capital in respect of the India
Guaranty Obligations together with interest as hereinafter provided.
(c) Borrower agrees to pay to GE Capital, within one (1) Business Day after
demand therefor, a principal amount equal to any payment made by GE Capital in
respect of the India Guaranty Obligations, together with interest on such amount
from the date of any payment made by GE Capital through the date of payment by
Borrower at the Floating Rate or, if then in effect, at the Default Rate. The
principal amount of any such payment made by Borrower to GE Capital shall be
used to reimburse GE Capital for the payment made by it in respect of such India
Guaranty Obligations. Each Lender that has reimbursed GE Capital pursuant to
Section 2.2A(b) for its Pro-Rata Share of any payment made by GE Capital in
respect of any India Guaranty Obligations shall thereupon acquire a
participation, to the extent of such reimbursement, in the claim of GE Capital
against Borrower under this Section 2.2A(c).
(d) If Borrower fails to make any payment required by Section 2.2A(c), the
Agent may, without notice to or the consent of Borrower, notify each Lender that
an Advance is to be made by Lenders under Section 2.1 in an aggregate amount
equal to the amount paid by GE Capital in respect of the India Guaranty
Obligations in accordance with the procedures provided in Section 2.1(c) (or may
deem any reimbursement made by Lenders pursuant to Section 2.2A(b) to constitute
the funding of such Advance) and, for this purpose, the conditions precedent set
forth in Sections 8.1 and 8.2 shall not apply. The proceeds of such Advance
shall be paid to GE Capital to reimburse it for the payment made by it in
respect of such India Guaranty Obligations.
(e) The obligation of Borrower to pay to GE Capital the amount of any payment
made by GE Capital in respect of the India Guaranty Obligations shall be
absolute, unconditional and irrevocable, and Borrower's unconditional
obligations to GE Capital hereunder shall not be modified or diminished for any
reason or in any manner whatsoever, including, without limitation, by virtue of
any claim, action or defense that Borrower may have or assert against GE Capital
India under or in respect of the GE Capital India Loan Documents. Borrower
hereby agrees that any action taken by GE Capital, if taken in good faith, in
furtherance of the performance of its obligations under the GE Capital India
Guaranty shall be binding on Borrower and shall not impose any resulting
liability on GE Capital, other than as a result of the gross negligence or
willful misconduct of GE Capital.
(f) In the event that any India Guaranty Obligation, whether or not then due
and payable shall for any reason be outstanding on the Commitment Termination
Date, then:
(i) Borrower will pay to the Agent (A) Cash or Cash
Equivalents in an amount equal to the then outstanding India Guaranty
Obligations or (B) provide a back-up letter of credit or guaranty from
a financial institution satisfactory to the Agent in such amount, in
form and substance satisfactory to the Agent. Such Cash or Cash
Equivalents, in the case of clause (A) above, shall be held by the
Agent in a Cash Collateral Account. The Cash Collateral Account shall
be held in the name of the Agent (as a cash collateral account), for
its benefit and the ratable benefit of the Lenders, and shall be under
the sole dominion and control of the Agent and subject to the terms of
this Section 2.2A(f). Borrower hereby pledges, and grants to the
Agent a security interest in, all Cash or Cash Equivalents held in the
Cash Collateral Account from time to time and all proceeds thereof, as
security for the payment of all amounts due in respect of the India
Guaranty Obligations, whether or not then due.
(ii) From time to time after Cash or Cash Equivalents are
deposited in the Cash Collateral Account, the Agent may apply such
Cash or Cash Equivalents then held in the Cash Collateral Account to
the payment of any amounts, in such order as the Agent may elect, as
shall be or shall become due and payable by Borrower to the Agent, GE
Capital or any other Lender in respect of such India Guaranty
Obligations.
(iii) The Agent shall invest the Cash in the Cash Collateral Account or
deposit such Cash in an interest-bearing account, as the Agent deems appropriate
in its sole discretion. Interest and earnings on the Cash or Cash Equivalents
in the Cash Collateral Account shall become a part of the Cash Collateral
Account and shall be held and disbursed by the Agent in accordance with this
Section 2.2A(f).
(iv) Neither Borrower nor any Person claiming on behalf of or through Borrower
shall have any right to withdraw any of the Cash or Cash Equivalents held in the
Cash Collateral Account, except that upon the termination of all India Guaranty
Obligations of GE Capital and the payment of all amounts payable by Borrower to
the Agent, GE Capital and the other Lenders in respect thereof, any Cash or Cash
Equivalents remaining in the Cash Collateral Account shall be returned to
Borrower.
(g) Borrower's reimbursement obligations to GE Capital hereunder in
respect of the India Guaranty Obligations shall be secured by all of the
Collateral.
(h) Borrower's reimbursement obligations under this Section 2.2A
shall terminate upon the later to occur of (A) the termination of the
India Guaranty in the manner provided in Section 2.2A(a) hereof and (B) the
reimbursement by Borrower to GE Capital, pursuant to the provisions hereof,
of all amounts paid by GE Capital in respect of the India Guaranty
Obligations, together with all accrued and unpaid interest thereon.
(c) Amendment to Section 2.7 of the Loan Agreement. Section 2.7 of
the Loan Agreement shall be deemed to be deleted in its entirety and the
following revised Section 2.7 substituted in lieu thereof:
Section 2.7 Single Loan. The Term Loans, the Advances, the
Letter of Credit Obligations, the India Guaranty Obligations and all
other Obligations of Borrower arising under this Agreement shall
constitute one general obligation of Borrower secured by a first
priority security interest in the Collateral (subject only to Permitted
Encumbrances).
(d) Addition of new Section 3.7A to the Loan Agreement. The Loan
Agreement shall be deemed further amended by inserting the following new
Section 3.7A immediately after Section 3.7 thereof:
3.7A India Guaranty Fees. From and after the date of
issuance of the India Guaranty and for so long as the India Guaranty
remains in effect or any India Guaranty Obligations remain outstanding,
Borrower shall pay to the Agent for the account of each Lender according
to that Lender's Pro Rata Share of the India Guaranty Obligations a
guaranty fee in an amount equal to the quotient of (i) an amount equal
to (A) the highest amount outstanding under the GE Capital India Loan
during the month then ending multiplied by (B) one percent (1%), divided
by (ii) 360. India Guaranty fees shall accrue daily during each month
during which the India Guaranty is in effect or any India Guaranty
Obligations remain outstanding and shall be payable monthly in arrears
on each Monthly Payment Date and on the Commitment Termination Date.
(e) Amendment to Section 4.1 of the Loan Agreement. Section 4.1 of
the Loan Agreement shall be deemed amended by changing the word "state" in
the first sentence thereof to "jurisdiction".
(f) Amendment to Section 4.5 of the Loan Agreement. Section 4.5 of
the Loan Agreement shall be deemed amended by inserting after the name
"T-H Licensing" therein the phrase "and AGL".
(g) Amendment to Section 4.24 of the Loan Agreement. Section 4.24
of the Loan Agreement shall be deemed to be deleted in its entirety and the
following revised Section 4.24 shall be deemed substituted in lieu thereof:
Section 4.24 Ownership of Capital Stock. Schedule 4.24 sets
forth, as of the date of this Agreement and the Closing Date, the number
of issued and authorized shares of each class of Capital Stock of
Borrower, T-H Licensing and AGL, and the ownership of such shares.
Except as set forth in Schedule 4.24, no Capital Stock (or any
securities, instrument, warrants, options or purchase rights, conversion
or exchange rights, calls, commitments or claims of a character
convertible into or exercisable for Capital Stock) of Borrower, T-H
Licensing or AGL is subject to issuance under any security, instrument,
warrant, option or purchase rights, conversion or exchange rights, call,
commitment or claim of any character.
Schedule 4.24 to the Loan Agreement shall be deemed to be
amended by adding thereto the information set forth on Annex I attached
hereto.
(h) Amendment to Section 5.3 of the Loan Agreement. Section 5.3 of
the Loan Agreement shall be deemed amended by changing the word "state" in
the first sentence thereof to "jurisdiction".
(i) Amendment to Section 6.1 of the Loan Agreement. Section 6.1 of
the Loan Agreement shall be deemed amended by adding a new clause (a)(iv)
immediately after clause (a)(iii) thereof to read as follows:
(iv) the transfer of the AGL Equipment by Borrower to AGL in
accordance with the provisions of the Consent Letter.
(j) Amendment to Section 6.2 of the Loan Agreement. Section 6.2 of
the Loan Agreement shall be deemed amended by adding the following subclause
(vi) immediately after subclause (v) thereof:
(vi) Subject to the terms of the Consent Letter, Borrower and
T-H Licensing may consummate the AGL Acquisition and concurrently
therewith Borrower may transfer the AGL Equipment to AGL.
(k) Amendment to Section 6.3 of the Loan Agreement. Section 6.3 of
the Loan Agreement shall be deemed to be amended by adding immediately after
subclause (l) thereof a new subclause (m) to read as follows:
and (m) the purchase by Borrower or T-H Licensing of shares of
Capital Stock of AGL from the Indian Promoters pursuant to the exercise
of the AGL Put/Call Rights, so long as no Default or Event of Default
shall have occurred and be continuing or will result from the making of
any such purchase.
(l) Amendment to Section 6.7 of the Loan Agreement. Section 6.7 of
the Loan Agreement shall be deemed amended by deleting clause (a) thereof in its
entirety and substituting in lieu thereof the following revised clause (a):
(a) Liens created by the Loan Documents and the GE Capital
India Loan Documents,
(m) Amendment to Section 6.8 of the Loan Agreement. Section 6.8 of
the Loan Agreement shall be deemed amended by inserting immediately after
clause (m) thereof the following new clause (n):
and (n) Indebtedness of AGL under the AGL Loan Documents.
(n) Amendment to Section 6.9 of the Loan Agreement. Section 6.9 of
the Loan Agreement shall be deemed amended by adding the following clause (d)
at the end of such Section:
(d) Borrower may enter into the Technical Assistance
Agreement and the Supply Agreement with AGL pursuant to the provisions
of the Consent Letter.
(o) Amendment to Section 6.12 of the Loan Agreement. Section 6.12 of
the Loan Agreement shall be deemed amended by adding the following clauses (f),
at the end of such Section:
and (f) Investments in AGL consisting of (1) Investments in
the Capital Stock of AGL pursuant to the consummation of the AGL
Acquisition and, to the extent permitted pursuant to Section 6.3,
Investments in the Capital Stock of AGL in connection with the exercise
of the AGL Put/Call Rights (2) the transfer of the AGL Equipment to AGL
and (3) advances to AGL in an amount not in excess of $100,000 in the
aggregate in any Fiscal Year to fund administrative and operating
expenses of AGL; provided that any of the Investments permitted pursuant
to this clause (f) may be made by Borrower to T-H Licensing and by T-H
Licensing to AGL.
(p) New Section 6.23 to the Loan Agreement. The Loan Agreement shall
be deemed further amended by adding immediately after Section 6.22
thereof a new Section 6.23 to read as follows:
6.23 Amendments to Certain Documents. Borrower shall not, nor
permit any Subsidiary to (a) amend, modify or change, or consent or
agree to any amendment, modification or change to, the GE Capital India
Base Loan Documents or amend, modify or change in any material respect,
or consent or agree to any amendment, modification or change in any
material respect to, any of the other GE Capital India Loan Documents or
(b) amend, modify or change in any material respect, or consent or agree
to any amendment, modification or change in any material respect to, the
AGL Shareholders Agreement, the AGL Subscription Agreement, the Supply
Agreement or the Technical Assistance Agreement.
(q) Amendment to Section 9.1 of the Loan Agreement. Section 9.1 of
the Loan Agreement shall be deemed amended by inserting the following
phrase at the beginning of clause (e) thereof:
(i) any "Event of Default" (as defined therein) shall occur
under the GE Capital India Loan Agreement or (ii)
(r) Amendments to Section 9.2 of the Loan Agreement. Section 9.2 of
the Loan Agreement shall be deemed to be amended as follows:
(i) the following phrase shall be inserted after the words
"Letter of Credit Obligations" in subsection (a)(i) thereof:
"or India Guaranty Obligations"
(ii) Subsection (a)(ii) thereof is hereby deleted in its entirety
and the following revised subsection (a)(ii) is hereby substituted in
lieu thereof:
(ii) The Majority Lenders may request the Agent to, and
the Agent thereupon shall, terminate the Lenders' Commitment,
declare all or any part of the unpaid principal of the Notes,
all interest accrued and unpaid thereon and all other
Obligations payable under the Loan Documents to be forthwith
due and payable, direct the Letter of Credit Issuer to declare
all amounts due under the Letter of Credit Applications to be
forthwith due and payable and direct GE Capital India to
terminate its commitments under the GE Capital India Loan
Agreement and declare all amounts payable thereunder to be
forthwith due and payable, whereupon the same shall become and
be forthwith due and payable, without protest, presentment for
payment, notice of dishonor, demand or further notice of any
kind, all of which are expressly waived by Borrower to the
fullest extent permitted by applicable Laws; and
(iii) Subsection (a)(iii) thereof is hereby amended by adding
at the end of such subsection "and the Cash Collateral Account
contemplated by Section 2.2A(g)".
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) Conditions Precedent to Consent Letter. All conditions precedent
to the effectiveness of the Consent Letter shall have been satisfied.
(b) 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).
(c) 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.
(d) 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.
(e) No Material Adverse Effect. Since December 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.
(f) 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 Agreements
(a) Except as set forth expressly herein and above, all terms of the
Loan Agreement and the other Loan Documents 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.
(f) At the request of the Agent at any time hereafter, Borrower shall
cause T-H Licensing to deliver to GE Capital India a pledge in form and
substance satisfactory to the Agent of all of the AGL Acquired Shares as
security for the obligations of AGL to GE Capital India under the GE Capital
India Loan Documents, which pledge agreement shall be subject only to the Liens
of the Agent pursuant to the T-H Licensing Pledge Agreement.
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:
Richard A. Bush
Vice President-Chief Financial Officer
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
By:
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Lender
By:
Name:
Title:
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 ____ day of
October, 2000.
T-H LICENSING, INC.
By:
Name:
Title:
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 thereof 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 ____ day of
October, 2000.
LANCER INDUSTRIES INC.
By:
Name:
Title:
