Exhibit 11
SECOND AMENDMENT
----------------
SECOND AMENDMENT (this "Amendment"), dated as of June 12, 1997, among
REFRACO INC., a Delaware corporation (the "Borrower"), the lenders party to the
Term Loan Agreement referred to below on the date hereof and immediately before
giving effect to this Amendment (the "Existing Banks"), BANKERS TRUST COMPANY,
as Administrative Agent (in such capacity, the "Administrative Agent"), and each
of the lenders listed on Schedule A hereto (the "New Banks"). Unless otherwise
defined herein, all capitalized terms used herein shall have the respective
meanings provided such terms in the Term Loan Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the Borrower, the Existing Banks and the Administrative
Agent are parties to a Term Loan Agreement, dated as of April 15, 1997 (as
amended, modified or supplemented through the date hereof, the "Term Loan
Agreement"); and
WHEREAS, the parties hereto wish to amend the Term Loan Agreement as
provided herein;
NOW, THEREFORE, it is agreed:
1. Each of the Existing Banks severally and not jointly hereby
sells and assigns to each of the New Banks without recourse and without
representation or warranty (other than as expressly provided herein), and each
New Bank hereby purchases and assumes from each of the Existing Banks, that
interest in and to each of such Existing Bank's rights and obligations under the
Term Loan Agreement as of the date hereof which represents such New Bank's pro
rata share (for each such New Bank, its "Pro Rata Share") as set forth on such
Schedule B hereto (calculated after giving effect to this Amendment) of all of
the outstanding rights and obligations with respect to the outstanding Term
Loans. After giving effect to this Amendment, each Bank's outstanding Loans
will be as set forth on Schedule C hereto.
2. In accordance with the requirements of Section 11.04(b) of the
Term Loan Agreement, on the Second Amendment Effective Date (as defined below),
(i) the Term Loan Agreement shall be amended by deleting Schedule I thereto in
its entirety and by inserting in lieu thereof a new Schedule I in the form of
Schedule C hereto and (ii) the
Borrower agrees that it will issue to each Bank an appropriate Note in
conformity with the requirements of Section 1.04 of the Term Loan Agreement.
3. On and after the Second Amendment Effective Date, Schedule II to
the Term Loan Agreement shall be amended by deleting such Schedule in its
entirety and inserting in lieu thereof a new Schedule II in the form of Schedule
D hereto.
4. Each Existing Bank (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Term
Loan Agreement or the other Credit Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Term Loan
Agreement or the other Credit Documents or any other instrument or document
furnished pursuant thereto; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or any of its Subsidiaries or the performance or observance by the
Borrower or any of its Subsidiaries of any of their obligations under the Term
Loan Agreement or the other Credit Documents to which they are a party or any
other instrument or document furnished pursuant thereto.
5. Each New Bank (i) confirms that it has received a copy of the
Term Loan Agreement and the other Credit Documents, together with copies of the
financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Amendment; (ii) agrees that it will, independently
and without reliance upon the Administrative Agent or any other Bank and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Term Loan Agreement; (iii) confirms that it is an Eligible Transferee under
Section 11.04(b) of the Term Loan Agreement; (iv) appoints and authorizes the
Administrative Agent and the Collateral Agent to take such action as agent on
its behalf and to exercise such powers under the Term Loan Agreement and the
other Credit Documents as are delegated to the Administrative Agent and the
Collateral Agent, as the case may be, by the terms thereof, together with such
powers as are reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Term Loan Agreement are required to be performed by it as a Bank; and (vi) to
the extent legally entitled to do so, agrees to promptly submit the forms
described in Section 11.04(b) of the Term Loan Agreement.
6. Each of the Existing Banks, the New Banks and the
Administrative Agent hereby agree that all amounts accrued with respect to the
Loans prior to the delivery by such New Bank of the amount referred to in clause
(ii) of Section 11 of this Amendment shall be for the account of the Existing
Banks, and that all such amounts accrued on and
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after the delivery of such amount referred to in clause (ii) of such Section 11
shall be for the account of such New Bank based upon its relevant Pro Rata
Share.
7. In accordance with Section 11.04(b) of the Term Loan Agreement,
on and as of the date upon which each of the New Banks delivers the amounts
referred to in clause (ii) of Section 11 of this Amendment, each New Bank shall
become a "Bank" under, and for all purposes of, the Term Loan Agreement and the
other Credit Documents and, notwithstanding anything to the contrary in Section
11.15 of the Term Loan Agreement, the Administrative Agent shall record the
transfers contemplated hereby in the Register.
8. This Amendment is limited as specified and shall not constitute
a modification, acceptance or waiver of any other provision of the Term Loan
Agreement or any other Credit Document.
9. This Amendment may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent.
10. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
11. Subject to Section 12 of this Amendment, this Amendment shall
become effective on the date (the "Second Amendment Effective Date") when (i)
the Borrower, the Administrative Agent, each Existing Bank and each New Bank
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent at its Notice Office and (ii)
each New Bank shall have delivered to the Administrative Agent, for the accounts
of the Existing Banks, an amount equal to such New Bank's relevant Pro Rata
Share of the outstanding Loans being assigned to such New Bank.
12. Notwithstanding Section 11 of this Amendment, if for any reason
any New Bank shall not have (i) signed a counterpart hereof and delivered the
same to the Administrative Agent at its Notice Office on or prior to June 12,
1997 and (ii) delivered to the Administrative Agent an amount equal to such New
Bank's relevant Pro Rata Share of the outstanding Loans being assigned to such
New Bank on or prior to June 12, 1997, then, if each Existing Bank agrees, this
Amendment shall become effective notwithAmendstanding such failure, provided
that (x) Schedule C and Schedule D shall each be modified to delete any such New
Bank and such New Bank's relevant Pro Rata Share shall be reallocated to among
the Existing Banks in such manner as the Existing Banks shall
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agree and (y) the signature pages of this Amendment shall be deemed revised to
delete such New Bank's name therefrom.
13. From and after the Second Amendment Effective Date, all
references in the Term Loan Agreement and each of the Credit Documents to the
Term Loan Agreement shall be deemed to be references to the Term Loan Agreement
as amended hereby.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Amendment as of the date first above
written.
REFRACO INC.
By /s/ Bragi X. Xxxxx
---------------------------------
Title: Executive Vice President
EXISTING BANKS:
BANKERS TRUST COMPANY,
Individually and as
Administrative Agent
By /s/ Xxxx X. Xxxxxxxx
---------------------------------
Title: Vice President
NEW BANKS:
CYPRESS TREE INVESTMENT
MANAGEMENT COMPANY, INC.
As: Attorney-in-Fact and on behalf of First
Allmerica Life Insurance Company
By /s/ Xxxxxxx Xxxxxx
---------------------------------
Title: Assistant Vice President
DEBT STRATEGIES FUND, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Authorized Signatory
EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By /s/ Xxxx Xxxxxxxxxxx
---------------------------------
Title: Investment Officer
KZH HOLDING CORPORATION II
By /s/ Xxxxxxxx Xxxxxx
---------------------------------
Title: Authorized Agent
XXXXXXX XXXXX DEBT
STRATEGIES PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P.,
as Investment Advisor
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Authorized Signatory
ML CBO IV (CAYMAN) LTD.
By: Protective Asset Management,
L.L.C., as Collateral Manager
By /s/ Xxxxx Xxxxxxx
---------------------------------
Title: President
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO [A UNIT OF THE CHASE
MANHATTAN BANK]
By /s/ Xxxxx X. XxXxxxx
---------------------------------
Title: Managing Director
PRIME INCOME TRUST
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: V.P. Portfolio Manager
SENIOR HIGH INCOME PORTFOLIO, INC.
By /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Title: Authorized Signatory
THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
By: ING CAPITAL ADVISORS, INC.,
as Investment Advisor
By /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------
Title: Vice President & Portfolio Manager
ROYALTON COMPANY
By: Pacific Investment Management
Company, as its investment advisor
By /s/ Xxxxxxx Xxxxxxx
Title: Vice President
SCHEDULE A
to
Second Amendment
---------------
NEW BANKS
---------
CYPRESS TREE INVESTMENT MANAGEMENT COMPANY, INC.
DEBT STRATEGIES FUND, INC.
EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
KZH HOLDING CORPORATION II
XXXXXXX XXXXX DEBT STRATEGIES PORTFOLIO
ML CBO IV (CAYMAN) LTD.
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO
PRIME INCOME TRUST
ROYALTON COMPANY
SENIOR HIGH INCOME PORTFOLIO, INC.
THE ING CAPITAL SENIOR SECURED HIGH INCOME FUND, L.P.
SCHEDULE B
to
Second Amendment
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RELEVANT PERCENTAGES
--------------------
Bank Loans Commitment
---- ----- ----------
BANKERS TRUST COMPANY 8.57% 8.57%
CYPRESS TREE INVESTMENT 4.76% 4.76%
MANAGEMENT COMPANY, INC.
DEBT STRATEGIES FUND, INC. 4.92% 4.92%
DEBT STRATEGIES PORTFOLIO 4.92% 4.92%
EQUITABLE LIFE ASSURANCE 16.67% 16.67%
SOCIETY OF THE UNITED STATES
KZH HOLDING CORPORATION II 4.76% 4.76%
XXXXXXX XXXXX DEBT 4.92% 4.92%
STRATEGIES PORTFOLIO
ML CBO IV (CAYMAN) LTD. 4.76% 4.76%
OCTAGON CREDIT INVESTORS 18.10% 18.10%
LOAN PORTFOLIO
PRIME INCOME TRUST 18.10% 18.10%
ROYALTON COMPANY 4.76% 4.76%
SENIOR HIGH INCOME 4.92% 4.92%
PORTFOLIO, INC.
THE ING CAPITAL SENIOR 4.76% 4.76%
SECURED HIGH INCOME FUND,
L.P.
SCHEDULE C
to
Second Amendment
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COMMITMENTS
-----------
Bank; Commitment
---- ----------
BANKERS TRUST COMPANY $ 5,142,857.14
CYPRESS TREE INVESTMENT $ 2,857,142.86
MANAGEMENT COMPANY, INC.
DEBT STRATEGIES FUND, INC. $ 2,952,380.95
EQUITABLE LIFE ASSURANCE $10,000,000.00
SOCIETY OF THE UNITED STATES
KZH HOLDING CORPORATION II $ 2,857,142.85
XXXXXXX XXXXX DEBT $ 2,952,380.95
STRATEGIES PORTFOLIO
ML CBO IV (CAYMAN) LTD. $ 2,857,142.86
OCTAGON CREDIT INVESTORS $10,857,142.86
LOAN PORTFOLIO
PRIME INCOME TRUST $10,857,142.86
ROYALTON COMPANY $ 2,857,142.86
SENIOR HIGH INCOME $ 2,952,380.96
PORTFOLIO, INC.
THE ING CAPITAL SENIOR $ 2,857,142.85
SECURED HIGH INCOME FUND, L.P.
-------------
Total: $60,000,000.00
SCHEDULE D
to
Second Amendment
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BANK ADDRESSES
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BANKERS TRUST COMPANY 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
CYPRESS TREE INVESTMENT
MANAGEMENT COMPANY, INC. 000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES 1345 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
DEBT STRATEGIES FUND, INC. 000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
KZH HOLDING CORPORATION II c/o The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx/Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
SCHEDULE D
Page 2
XXXXXXX XXXXX DEBT STRATEGIES
PORTFOLIO 000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopies: (000) 000-0000
ML CBO IV (CAYMAN) LTD. 00000 Xxxx Xxxx
0 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: X.X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO 000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx XxXxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
PRIME INCOME TRUST c/o Xxxx Xxxxxx Intercapital, Inc.
Two Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
ROYALTON COMPANY 000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
SCHEDULE D
Page 3
SENIOR HIGH INCOME PORTFOLIO, INC 000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopies: (000) 000-0000
THE ING CAPITAL SENIOR SECURED HIGH
INCOME FUND, L.P. 000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
