Exhibit 9
SECOND AMENDMENT
----------------
SECOND AMENDMENT (this "Amendment"), dated as of June 12, 1997, among
REFRACO INC., a Delaware corporation ("Holdings"), ADIENCE, INC., a Delaware
corporation ("Adience"), REFRACO HOLDINGS LIMITED, a private limited company
organized under the laws of England with registered number 3354257 ("Newco"),
REFRACO (UK) LIMITED (formerly known as "Hepworth Refractories (Holdings)
Limited"), a private limited company organized under the laws of England with
registered number 00054713 ("Hepworth" and, together with Adience and Newco, the
"Borrowers"), the lenders party to the Credit Agreement referred to below on the
date hereof and immediately before giving effect to this Amendment (the
"Existing Banks"), FLEET NATIONAL BANK, as syndication agent, BANKERS TRUST
COMPANY, as Administrative Agent (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 Credit Agreement referred to below.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Holdings, the Borrowers, the Existing Banks, and the
Administrative Agent are parties to a Credit Agreement, dated as of April 15,
1997 (the "Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit 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 in
respect of the facilities set forth on Schedule B hereto under the Credit
Agreement as of the date hereof which represents such New Bank's pro rata share
(for each such New Bank, its "Pro Rata Share") of all of the outstanding rights
and obligations under the Credit Agreement in respect of the facilities as set
forth on such Schedule B hereto (calculated after giving effect to this
Amendment) that are being sold and
assigned to each New Bank pursuant to this Amendment, including, without
limitation, (w) in the case of any assignment of the outstanding Adience B Term
Loans, all rights and obligations with respect to such New Bank's Pro Rata Share
of such outstanding Adience B Term Loans, (x) in the case of any assignment of
the outstanding Newco A Term Loans, all rights and obligations with respect to
such New Bank's Pro Rata Share of such outstanding Newco A Term Loans, (y) in
the case of any assignment of the outstanding Newco B Term Loans, all rights and
obligations with respect to such New Bank's Pro Rata Share of such outstanding
Newco B Term Loans, and (z) in the case of any assignment of the Total Revolving
Loan Commitment, all rights and obligations with respect to such New Bank's Pro
Rata Share of the Total Revolving Loan Commitment and any outstanding Revolving
Loans and Letters of Credit. After giving effect to this Amendment, each Bank's
outstanding Adience B Term Loans, Newco A Term Loans, Newco B Term Loans and
Revolving Loan Commitment will be as set forth on Schedule C hereto.
2. In accordance with the requirements of Section 13.04(b) of the
Credit Agreement, on the Second Amendment Effective Date (as defined below), (i)
the Credit 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 Adience B Term Note, Newco A Term Note, Newco B Term Note and/or
Revolving Note in conformity with the requirements of Section 1.05 of the Credit
Agreement.
3. On the Second Amendment Effective Date, Schedule II to the
Credit 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
Credit Agreement or the other Credit Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
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 Holdings or
any of its Subsidiaries or the performance or observance by Holdings or any of
its Subsidiaries of any of their obligations under the Credit 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
Credit 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
-2-
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 Credit Agreement; (iii) confirms that it
is an Eligible Transferee under Section 13.04(b) of the Credit 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
Credit 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 Credit 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 13.04(b) of the Credit
Agreement.
6. Each of the Existing Banks, the New Banks and the
Administrative Agent hereby agree that all amounts accrued with respect to the
Adience B Term Loans, Newco A Term Loans, Newco B Term Loans, Revolving Loans,
Total Revolving Loan Commitment and Letters of Credit 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 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 13.04(b) of the Credit 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 Credit Agreement and the
other Credit Documents and, notwithstanding anything to the contrary in Section
13.15 of the Credit 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 Credit
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 Adience and the Administrative Agent.
-3-
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)
Holdings, the Borrowers, 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, (ii)
each New Bank shall have delivered to the Administrative Agent, for the account
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 and (iii) each
New Bank that is not a resident of the United Kingdom for United Kingdom tax
purposes that is purchasing Newco A Term Loans, Newco B Term Loans and/or
Sterling Revolving Loans shall have (x) in the case of any New Bank that is a
United States person (as defined in Section 7701(a)(30) of the Code), completed
a Form FD-13 and delivered the same to the Administrative Agent at its Notice
Office and (y) in the case of any other such New Bank that is not a resident of
the United Kingdom for United Kingdom tax purposes, completed such other
appropriate form, to the extent reasonably requested by Newco, and delivered the
same to the Administrative Agent at its Notice Office.
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 notwithstanding 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 among the Existing
Banks in such manner as the Existing Banks shall 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 Credit Agreement and each of the Credit Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
amended hereby.
* * *
-4-
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
ADIENCE, INC.
By /s/ Bragi X. Xxxxx
----------------------------------
Title: Executive Vice President
REFRACO HOLDINGS LIMITED
By /s/ Bragi X. Xxxxx
----------------------------------
Title: Director and Secretary
REFRACO (UK) LIMITED
By /s/ Bragi X. Xxxxx
----------------------------------
Title: Director and Secretary
EXISTING BANKS:
BANKERS TRUST COMPANY,
Individually and as
Administrative Agent
By /s/ Xxxx X. Xxxxxxxx
----------------------------------
Title: Vice President
FLEET NATIONAL BANK,
Individually and as
Syndication Agent
By /s/ Xxxx Xxxx
----------------------------------
Title: Senior Vice President
NEW BANKS:
CORESTATES BANK, N.A.
By /s/ Xxxx X. Xxxxxx
----------------------------------
Title: Vice President
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company,
its Investment Manager
By /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Title: Senior Vice President
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
KZH HOLDING CORPORATION II
By /s/ Xxxxxxxx Xxxxxx
----------------------------------
Title: Authorized Agent
LLOYDS BANK PLC
By /s/ Xxxxx Xxxxxx
----------------------------------
Title: Senior Vice President
By /s/ Xxxx X. Brimenonto
----------------------------------
Title: Vice President
XXXXXXX XXXXX PRIME RATE
PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management,
L.P., as Investment Advisor
By /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Title: Authoirzed Signatory
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
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: Vice President Portfolio Manager
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
---------
CORESTATES BANK, N.A.
CRESCENT/MACH I PARTNERS, L.P.
CYPRESS TREE INVESTMENT MANAGEMENT COMPANY, INC.
KZH HOLDING CORPORATION II
LLOYDS BANK PLC
XXXXXXX XXXXX PRIME RATE PORTFOLIO
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
ML CBO IV (CAYMAN) LTD.
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO
PRIME INCOME TRUST
ROYALTON COMPANY
THE ING CAPITAL SENIOR SECURED HIGH INCOME FUND, L.P.
SCHEDULE B
to
Second Amendment
----------------
RELEVANT PERCENTAGES
--------------------
Adience B Newco A Newco B
Term Loan Term Loan Term Loan Revolving Loan
Bank Commitment Commitment Commitment Commitment
---- ---------- ---------- ---------- ----------
BANKERS TRUST 8.73% 34.10% 17.46% 34.10%
COMPANY
CORESTATES 23.50% 23.50%
BANK, N.A.
CRESCENT MACH I 8.73%
PARTNERS, L.P.
CYPRESS TREE 4.76% 4.76%
INVESTMENT
MANAGEMENT
COMPANY, INC.
FLEET NATIONAL BANK 24.70% 24.70%
KZH HOLDING 4.76% 4.76%
CORPORATION II
LLOYDS BANK PLC 17.60% 17.60%
XXXXXXX XXXXX PRIME 11.27% 11.27%
RATE PORTFOLIO
XXXXXXX XXXXX SENIOR 11.27% 11.27%
FLOATING RATE FUND,
INC.
ML CBO IV 4.76% 4.76%
(CAYMAN) LTD.
OCTAGON CREDIT 18.10% 18.10%
INVESTORS LOAN
PORTFOLIO
PRIME INCOME TRUST 18.10% 18.10%
ROYALTON 4.76% 4.76%
COMPANY
RELEVANT PERCENTAGES
--------------------
Adience B Newco A Newco B
Term Loan Term Loan Term Loan Revolving Loan
Bank Commitment Commitment Commitment Commitment
---- ---------- ---------- ---------- ----------
THE ING CAPITAL
SENIOR SECURED
HIGH INCOME
FUND, L.P. 4.76% 4.76%
SCHEDULE C
to
Second Amendment
----------------
COMMITMENTS
-----------
Adience B Newco A Newco B
Term Loan Term Loan Term Loan Revolving Loan
Bank Commitment Commitment Commitment Commitment
---- ---------- ---------- ---------- ----------
BANKERS TRUST $ 3,055,555.55 L 10,461,684.98 $ 1,746,031.75 $11,941,176.47
COMPANY
CORESTATES L 7,214,955.16 $ 8,235,294.12
BANK, N.A.
CRESCENT/MACH I $ 3,055,555.56
PARTNERS, L.P.
CYPRESS TREE $ 1,666,666.66 $ 476,190.48
INVESTMENT
MANAGEMENT
COMPANY, INC.
FLEET NATIONAL BANK L 7,575,702.92 $ 8,647,058.82
KZH HOLDING $ 1,666,666.67 $ 476,190.48
CORPORATION II
LLOYDS BANK PLC L 5,411,216.37 $ 6,176,470.59
XXXXXXX XXXXX PRIME $ 3,944,444.45 $ 1,126,984.13
RATE PORTFOLIO
XXXXXXX XXXXX SENIOR $ 3,944,444.44 $ 1,126,984.12
FLOATING RATE FUND,
INC.
ML CBO IV $ 1,666,666.66 $ 476,190.48
(CAYMAN) LTD.
OCTAGON CREDIT $ 6,333,333.33 $ 1,809,523.81
INVESTORS LOAN
PORTFOLIO
PRIME INCOME TRUST $ 6,333,333.33 $ 1,809,523.81
ROYALTON COMPANY $ 1,666,666.66 $ 476,190.48
Adience B Newco A Newco B
Term Loan Term Loan Term Loan Revolving Loan
Bank Commitment Commitment Commitment Commitment
---- ---------- ---------- ---------- ----------
THE ING CAPITAL
SENIOR SECURED
HIGH INCOME
FUND, L.P. $ 1,666,666.67 $ 476,190.48
-------------- ---------------- -------------- --------------
TOTAL: $35,000,000.00 L 30,663,559.43 $10,000,000.00 $35,000,000.00
-------------- ---------------- -------------- --------------
-------------- ---------------- -------------- --------------
SCHEDULE D
to
Second Amendment
----------------
BANK ADDRESSES
--------------
BANKERS TRUST COMPANY 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
CORESTATES BANK, N.A. 0000 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
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
FLEET NATIONAL BANK 00 Xxxx 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
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
XXXXXXX XXXXX PRIME RATE
PORTFOLIO 000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
SCHEDULE D
Page 2
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC. 000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (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
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
