Exhibit 8
FIRST AMENDMENT
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FIRST AMENDMENT (this "Amendment"), dated as of June 11, 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 ("▇▇▇▇▇▇▇▇", and together with Adience and Newco, the
"Borrowers"), the lenders party to the Credit Agreement referred to below (the
"Banks") and BANKERS TRUST COMPANY, as Administrative Agent (in such capacity,
the "Administrative Agent"). 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 :
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WHEREAS, Holdings, the Borrowers, the 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. Section 1.01(d) of the Credit Agreement is hereby amended by (i)
deleting clause (iv) thereof in its entirety and inserting the following new
clause (iv) in lieu thereof:
"(iv) shall not exceed for any Bank at the time of the making of any
such Revolving Loans, and after giving effect thereto, that aggregate
principal amount (for this purpose, using the Dollar Equivalent of each
outstanding Sterling Revolving Loan) which, when added to the sum of
(I) the aggregate principal amount of all other Revolving Loans then
outstanding from such Bank (for this purpose, using the Dollar Equivalent
of each Sterling Revolving Loan then outstanding from such Bank) and (II)
the product of (A) such Bank's RL Percentage and (B) the sum of (x) the
aggregate amount of all Letter of Credit Outstandings (for this purpose,
using the Dollar Equivalent thereof in the case of ▇▇▇▇▇▇▇▇ Letter of
Credit Outstandings) (exclusive of Unpaid Drawings which are repaid with
the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time, (y) the aggregate principal
amount of all Swingline Loans (exclusive of Swingline Loans which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) then outstanding and (z) the
aggregate principal amount (for this purpose, using the Dollar Equivalent
of each outstanding Sterling Swingline Loan) of all Sterling Swingline
Loans (exclusive of Sterling Swingline Loans which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) then outstanding, equals the Revolving Loan
Commitment of such Bank at such time,";
and (ii) deleting clause (vi) thereof in its entirety and inserting the
following new clause (vi) in lieu thereof:
"(vi) shall not, in the case of Sterling Revolving Loans, at any time
exceed in aggregate outstanding principal amount, when added to (x) the
aggregate amount of all ▇▇▇▇▇▇▇▇ Letter of Credit Outstandings (exclusive
of any Unpaid Drawings with respect thereto which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Sterling Revolving Loans) and (y) the aggregate principal
amount of all Sterling Swingline Loans (exclusive of Sterling Swingline
Loans which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Sterling Revolving Loans) then
outstanding, the amount of the Sterling Revolving Sub-Limit."
2. Section 1.01(e) of the Credit Agreement is hereby amended by
deleting clause (iv) thereof and inserting the following new clause (iv) in lieu
thereof:
"(iv) shall not exceed in aggregate principal amount at any time
outstanding, when combined with the sum of (I) the aggregate principal
amount of all Revolving Loans (for this purpose, using the Dollar
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Equivalent of each outstanding Sterling Revolving Loan) then outstanding,
(II) the aggregate amount of all Letter of Credit Outstandings at such time
and (III) the aggregate principal amount of all Sterling Swingline Loans
(for this purpose, using the Dollar Equivalent of each outstanding Sterling
Swingline Loan) then outstanding, an amount equal to the Total Revolving
Loan Commitment at such time (after giving effect to any reductions to the
Total Revolving Loan Commitment on such date),".
3. Section 1.01 of the Credit Agreement is hereby amended by
inserting the following new clauses (g) and (h) immediately after existing
clause (f) thereof:
"(g) Subject to the terms and conditions set forth herein, BTCo in its
individual capacity agrees to make, from time to time after the First
Amendment Effective Date and prior to the Swingline Expiry Date, a
revolving loan or revolving loans (each a "Sterling Swingline Loan" and,
collectively, the "Sterling Swingline Loans") to ▇▇▇▇▇▇▇▇, which Sterling
Swingline Loans (i) shall be made and denominated in Pounds Sterling, (ii)
shall bear interest as provided in Section 1.08(g), (iii) may be repaid and
reborrowed in accordance with the provisions hereof, (iv) shall not exceed
in aggregate principal amount (for this purpose, using the Dollar
Equivalent of each outstanding Sterling Swingline Loan) at any time
outstanding, when combined with the sum of (I) the aggregate principal
amount of all Revolving Loans (for this purpose, using the Dollar
Equivalent of each outstanding Sterling Revolving Loan) then outstanding,
(II) the aggregate amount of Letter of Credit Outstandings (for this
purpose, using the Dollar Equivalent thereof in the case of ▇▇▇▇▇▇▇▇ Letter
of Credit Outstandings) at such time and (III) the aggregate principal
amount of all Swingline Loans then outstanding, an amount equal to the
Total Revolving Loan Commitment (after giving effect to any reductions to
the Total Revolving Loan Commitment on such date), (v) shall not exceed in
the aggregate principal amount at any time outstanding, when combined with
the sum of (I) the aggregate principal amount of all Sterling Revolving
Loans then outstanding and (II) the aggregate amount of ▇▇▇▇▇▇▇▇ Letter of
Credit Outstandings at such time, an amount equal to the Sterling Revolving
Sub-Limit and (vi) shall not exceed in aggregate principal amount at any
time outstanding, the Maximum Sterling Swingline Amount. BTCo shall not be
obligated to make any Sterling Swingline Loan at a time when a Bank Default
exists unless BTCo has entered into arrangements satisfactory to it to
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eliminate BTCo's risk with respect to the Defaulting Bank's or Banks'
participation in such Sterling Swingline Loans, including by cash
collateralizing such Defaulting Bank's or Banks' RL Percentage of the
outstanding Sterling Swingline Loans.
(h) On any Business Day, BTCo may, in its sole discretion, give notice
to the Banks that its outstanding Sterling Swingline Loans shall be funded
with a Borrowing of Sterling Revolving Loans (PROVIDED that such notice
shall be deemed to have been automatically given upon the occurrence of a
Default or an Event of Default under Section 10.05 or upon the exercise of
any of the remedies provided in the last paragraph of Section 10), in which
case a Borrowing of Sterling Revolving Loans (each such Borrowing, a
"Mandatory Sterling Borrowing") shall be made on the immediately succeeding
Business Day by all Banks with a Revolving Loan Commitment (without giving
effect to any reductions thereto pursuant to the last paragraph of Section
10) PRO RATA based on each Bank's RL Percentage (determined before giving
effect to any termination of the Revolving Loan Commitments pursuant to the
last paragraph of Section 10) and the proceeds thereof shall be applied
directly to BTCo to repay BTCo for such outstanding Sterling Swingline
Loans. Each such Bank hereby irrevocably agrees to make Sterling Revolving
Loans upon one Business Day's notice pursuant to each Mandatory Sterling
Borrowing in the amount and in the manner specified in the preceding
sentence and on the date specified in writing by BTCo notwithstanding (i)
that the amount of the Mandatory Sterling Borrowing may not comply with the
minimum amount for Borrowings otherwise required hereunder, (ii) whether
any conditions specified in Section 6 are then satisfied, (iii) whether a
Default or an Event of Default then exists, (iv) the date of such Mandatory
Sterling Borrowing and (v) the amount of the Total Revolving Loan
Commitment at such time or the Sterling Revolving Sub-Limit. In the event
that any Mandatory Sterling Borrowing cannot for any reason be made on the
date otherwise required above (including, without limitation, as a result
of the commencement of a proceeding under any bankruptcy, reorganization,
dissolution, insolvency, receivership, administration or liquidation or
similar law with respect to ▇▇▇▇▇▇▇▇), then each such Bank hereby agrees
that it shall forthwith purchase (as of the date the Mandatory Sterling
Borrowing would otherwise have occurred, but adjusted for any payments
received from ▇▇▇▇▇▇▇▇ on or after such date and prior to such purchase)
from BTCo such participations in the outstanding Sterling Swingline Loans
as shall be necessary to cause such Banks to share in
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such Sterling Swingline Loans ratably based upon their respective RL
Percentages (determined before giving effect to any termination of the
Revolving Loan Commitments pursuant to the last paragraph of Section 10),
PROVIDED that (x) all interest payable on the Sterling Swingline Loans
shall be for the account of BTCo until the date as of which the respective
participation is required to be purchased and, to the extent attributable
to the purchased participation, shall be payable to the participant from
and after such date and (y) at the time any purchase of participations
pursuant to this sentence is actually made, the purchasing Bank shall be
required to pay BTCo interest on the principal amount of the participation
purchased for each day from and including the day upon which the Mandatory
Sterling Borrowing would otherwise have occurred to but excluding the date
of payment for such participation, at the rate otherwise applicable to
Sterling Swingline Loans."
4. Section 1.02 of the Credit Agreement is hereby amended by
deleting the proviso appearing at the end of the second sentence thereof and by
deleting the third sentence thereof in its entirety, and inserting the following
new text in lieu thereof:
"; provided that (x) Mandatory Borrowings shall be made in the amounts
required by Section 1.01(f) and (y) Mandatory Sterling Borrowings shall be
made in the amounts required by Section 1.01(h). The aggregate principal
amount of each Borrowing of (x) Swingline Loans shall be not less than
$100,000 and (y) Sterling Swingline Loans shall be not less than L100,000."
5. Section 1.03(a) of the Credit Agreement is hereby amended by
deleting the first parenthetical appearing therein and inserting the following
new parenthetical in lieu thereof:
"(excluding Borrowings of (w) Swingline Loans, (x) Revolving Loans
incurred pursuant to a Mandatory Borrowing, (y) Sterling Swingline Loans
and (z) Revolving Loans incurred pursuant to a Mandatory Sterling
Borrowing)".
6. Section 1.03 of the Credit Agreement is hereby amended by (i)
redesignating clause (c) thereof as clause "(d)" and (ii) inserting the
following new clause (c) immediately after existing clause (b)(ii) thereof:
"(c)(i) Whenever ▇▇▇▇▇▇▇▇ desires to incur Sterling Swingline Loans
hereunder, it shall give BTCo not later than 12:00 noon (London
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time) on the date that a Sterling Swingline Loan is to be incurred, written
notice or telephonic notice promptly confirmed in writing of each Sterling
Swingline Loan to be incurred hereunder. Each such notice shall be
irrevocable and specify in each case (A) the date of Borrowing (which shall
be a Business Day) and (B) the aggregate principal amount of the Sterling
Swingline Loans to be made pursuant to such Borrowing.
(ii) Mandatory Sterling Borrowings shall be made upon the notice
specified in Section 1.01(h), with ▇▇▇▇▇▇▇▇ irrevocably agreeing, by its
incurrence of any Sterling Swingline Loan, to the making of the Mandatory
Sterling Borrowings as set forth in Section 1.01(h)."
7. Section 1.03(d) of the Credit Agreement (after giving effect to
the amendment in paragraph 6 above) is hereby amended by inserting the words "or
Sterling Swingline Loans" immediately after the words "Swingline Loans"
appearing in the first parenthetical therein.
8. Section 1.04 of the Credit Agreement is hereby amended by
deleting the first sentence thereof in its entirety and inserting the following
new first sentence in lieu thereof:
"No later than 12:00 Noon (New York time or, in the case of any
Sterling Loan to be made available in London after the Initial Borrowing
Date, London time, if so requested by ▇▇▇▇▇▇▇▇) on the date specified in
each Notice of Borrowing (or (w) in the case of Swingline Loans, no later
than 2:00 P.M. (New York time) on the date specified in Section 1.03(b)(i),
(x) in the case of Mandatory Borrowings, no later than 12:00 Noon (New York
time) on the date specified in Section 1.01(f), (y) in the case of Sterling
Swingline Loans, no later than 2:00 P.M. (London time) on the date
specified in Section 1.03(c)(i) or (z) in the case of Mandatory Sterling
Borrowings, no later than 12:00 Noon (London time) on the date specified in
Section 1.01(h)), each Bank with a Commitment of the respective Tranche
will make available its PRO RATA portion (determined in accordance with
Section 1.07) of each such Borrowing requested to be made on such date (or
in the case of Swingline Loans and Sterling Swingline Loans, BTCo shall
make available the full amount thereof) in the manner provided below."
9. Section 1.05(a) of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (v) thereof and inserting
a
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comma in lieu thereof and (ii) deleting the period appearing at the end of
clause (vi) thereof and inserting the following text in lieu thereof:
"and (vii) if Sterling Swingline Loans, by a promissory note
substantially in the form of Exhibit B-7, with blanks appropriately
completed in conformity herewith (the "Sterling Swingline Note")."
10. Section 1.05 of the Credit Agreement is hereby amended by (i)
redesignating clause (h) thereof as clause "(i)" and (ii) inserting the
following new clause (h) immediately after existing clause (g) thereof:
"(h) The Sterling Swingline Note issued to BTCo shall (i) be executed
by ▇▇▇▇▇▇▇▇, (ii) be payable to the order of BTCo and be dated the First
Amendment Effective Date (or if issued thereafter, the date of issuance),
(iii) be in a stated principal amount equal to the Maximum Sterling
Swingline Amount and be payable in Pounds Sterling in the principal amount
of the outstanding Sterling Swingline Loans evidenced thereby, (iv) mature
on the Swingline Expiry Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Sterling Swingline
Loans evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 4.01, and mandatory repayment as provided in Section
4.02 and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents (to the extent and in the manner provided therein)."
11. Section 1.06 of the Credit Agreement is hereby amended by
inserting the following parenthetical immediately after the words "outstanding
principal amount of such Dollar Loans" appearing therein:
"(other than Swingline Loans, which may not be converted pursuant to
this Section 1.06)".
12. Section 1.07 of the Credit Agreement is hereby amended by
inserting the text "or a Mandatory Sterling Borrowing, as the case may be,"
immediately after the words "Mandatory Borrowing" appearing therein.
13. Section 1.08 of the Credit Agreement is hereby amended by
inserting the following new clause (g) immediately after existing clause (f):
"(g) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, ▇▇▇▇▇▇▇▇ hereby agrees to pay interest in respect of
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the unpaid principal amount of each Sterling Swingline Loan made to it from
the date the proceeds thereof are made available to it until such Sterling
Swingline Loan is repaid at a rate per annum which shall be equal to the
sum of the Applicable Margin for Sterling Revolving Loans plus the
Overnight LIBOR Rate plus the MLA Cost, which interest shall be payable at
the time such Sterling Swingline Loan is repaid or converted into a
Mandatory Sterling Borrowing, provided that overdue principal and, to the
extent permitted by law, overdue interest in respect of each Sterling
Swingline Loan shall bear interest at a rate per annum equal to 2% per
annum in excess of the Applicable Margin for Sterling Revolving Loans plus
the Overnight LIBOR Rate plus the MLA Cost."
14. Section 1.09 of the Credit Agreement is hereby amended by (i)
deleting the text "at the option of the Borrower, be one, two, three or
six-month period," appearing therein and (ii) inserting the following new text
in lieu thereof:
"(x) at the option of Adience or Newco, as the case may be, be one,
two, three or six-month period, and (y) at the option of ▇▇▇▇▇▇▇▇, be one,
two, three or six-month period, or, if available to each of the Banks with
a Revolving Loan Commitment, one or two-week period,".
15. Section 1.13 of the Credit Agreement is hereby amended by
(i) deleting the word "and" appearing at the end of clause (i)(x) of the proviso
appearing in the first sentence thereof and inserting a comma in lieu thereof
and (ii) inserting the following new clause (i)(z) immediately after the word
"and" appearing at the end of clause (i)(y) of the proviso appearing in the
first sentence thereof:
"(z) in the case of the replacement of the Revolving Loan Commitments,
BTCo an amount equal to such Replaced Bank's RL Percentage of any Mandatory
Borrowing and/or Mandatory Sterling Borrowing, in each case to the extent
such amount was not theretofore funded by such Replaced Bank and".
16. Section 2.02(a) of the Credit Agreement is hereby amended by (i)
deleting the text of clause (i)(y) thereof in its entirety and inserting the
following new text in lieu thereof:
"when added to the sum of (I) the aggregate principal amount of all
Revolving Loans (for this purpose, using the Dollar Equivalent of each
outstanding Sterling Revolving Loan) then outstanding, (II) the aggregate
principal amount of all Swingline Loans then outstanding and
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(III) the aggregate principal of all Sterling Swingline Loans (for this
purpose, using the Dollar Equivalent of each outstanding Sterling Swingline
Loan) then outstanding, the Total Revolving Loan Commitment at such time,";
and (ii) deleting clauses (ii) and (iii) thereof in their entirety and inserting
the following new clauses (ii) and (iii) in lieu thereof:
"(ii) no Adience Letter of Credit shall be issued the Stated Amount
(expressed in Dollars) of which, when added to the Adience Letter of Credit
Outstandings (expressed in Dollars) (exclusive of Unpaid Drawings with
respect thereto which are repaid on the date of, and prior to the issuance
of, the respective Adience Letter of Credit) at such time would exceed,
when added to the sum of (I) the aggregate principal amount of all Dollar
Revolving Loans (expressed in Dollars) then outstanding and (II) the
aggregate principal amount of all Swingline Loans (expressed in Dollars)
then outstanding, the Dollar Revolving Sub-Limit, (iii) no ▇▇▇▇▇▇▇▇ Letter
of Credit shall be issued the Stated Amount (expressed in Pounds Sterling)
of which, when added to the ▇▇▇▇▇▇▇▇ Letter of Credit Outstandings
(expressed in Pounds Sterling) (exclusive of Unpaid Drawings with respect
thereto which are repaid on the date of, and prior to the issuance of, the
respective ▇▇▇▇▇▇▇▇ Letter of Credit) at such time would exceed, when added
to the sum of (I) the aggregate principal amount of all Sterling Revolving
Loans (expressed in Pounds Sterling) then outstanding and (II) the
aggregate principal amount of all Sterling Swingline Loans (expressed in
Pounds Sterling) then outstanding, the Sterling Revolving Sub-Limit,".
17. Section 4.01 of the Credit Agreement is hereby amended by
(i) deleting the third parenthetical appearing in clause (i) thereof in its
entirety and inserting the following new parenthetical in lieu thereof:
"(or same day notice in the case of (x) Swingline Loans, provided such
notice is given prior to 11:00 A.M. (New York time) and (y) Sterling
Swingline Loans, provided such notice is given prior to 11:00 A.M. (London
time))";
and (ii) deleting the parenthetical appearing in clause (ii)(x) thereof in its
entirety and inserting the following new parenthetical in lieu thereof:
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"(or (x) in the case of Swingline Loans, $100,000, and (y) in the case
of Sterling Swingline Loans, L50,000)".
18. Section 4.02(a) of the Credit Agreement is hereby amended by
deleting clause (i) thereof in its entirety and inserting the following new
clause (i) in lieu thereof:
"(i) On any day on which the sum of the aggregate outstanding
principal amount of Swingline Loans, the aggregate outstanding principal
amount of Sterling Swingline Loans (for this purpose, using the Dollar
Equivalent thereof), the aggregate outstanding principal amount of
Revolving Loans (for this purpose, using the Dollar Equivalent thereof in
the case of outstanding Sterling Revolving Loans) and the Letter of Credit
Outstandings (for this purpose, using the Dollar Equivalent thereof in the
case of ▇▇▇▇▇▇▇▇ Letter of Credit Outstandings) exceeds the Total Revolving
Loan Commitment as then in effect, the Revolving Loan Borrowers shall
prepay on such day the principal of Swingline Loans and, after the
Swingline Loans have been repaid in full, Sterling Swingline Loans and,
after the Sterling Swingline Loans have been repaid in full, Revolving
Loans (allocated between Dollar Revolving Loans and Sterling Revolving
Loans as the Revolving Loan Borrowers may elect) in an amount (for this
purpose, taking the Dollar Equivalent of payments in Pounds Sterling made
with respect to the Sterling Swingline Loans and Sterling Revolving Loans)
equal to such excess. If, after giving effect to the prepayment in full of
all outstanding Swingline Loans, Sterling Swingline Loans and Revolving
Loans, the aggregate amount of the Letter of Credit Outstandings (for this
purpose, using the Dollar Equivalent thereof in the case of ▇▇▇▇▇▇▇▇ Letter
of Credit Outstandings) exceeds the Total Revolving Loan Commitment as then
in effect, the respective Revolving Loan Borrowers shall pay to the
Administrative Agent at the appropriate Payment Office on such day an
amount of cash or Cash Equivalents or Foreign Cash Equivalents equal to the
amount of such excess (up to a maximum amount equal to the Letter of Credit
Outstandings at such time), such cash, Cash Equivalents or Foreign Cash
Equivalents to be held as security for all obligations of the respective
Revolving Loan Borrower or Borrowers hereunder in a cash collateral account
to be established by the Administrative Agent, PROVIDED that so long as no
Default under Section 10.01 or 10.05 and no Event of Default is then in
existence, such cash, Cash Equivalents or Foreign Cash Equivalents shall be
released (subject to continued compliance with clauses (ii) and (iii)
below) to the respective Revolving
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Loan Borrower at such time (if any), as, and to the extent that, the
aggregate amount of such cash, Cash Equivalents and Foreign Cash
Equivalents at such time on deposit with the Administrative Agent exceeds
the amount by which the Letter of Credit Outstandings at such time exceed
the amount of the Total Revolving Loan Commitment as then in effect."
19. Section 4.02(a) of the Credit Agreement is hereby further amended
by deleting clause (iii) thereof in its entirety and inserting the following new
clause (iii) in lieu thereof:
"(iii) If on any date the sum of the aggregate outstanding
principal amount of Sterling Revolving Loans, the aggregate outstanding
principal amount of Sterling Swingline Loans and the ▇▇▇▇▇▇▇▇ Letter of
Credit Outstandings exceeds the Sterling Revolving Sub-Limit as then in
effect, ▇▇▇▇▇▇▇▇ shall prepay on such day principal of outstanding Sterling
Swingline Loans and, after the Sterling Swingline Loans have been repaid in
full, Sterling Revolving Loans in an amount equal to such excess. If,
after giving effect to the prepayment in full of all outstanding Sterling
Swingline Loans and Sterling Revolving Loans, the aggregate amount of the
▇▇▇▇▇▇▇▇ Letter of Credit Outstandings exceeds the Sterling Revolving
Sub-Limit as then in effect, ▇▇▇▇▇▇▇▇ shall pay to the Administrative Agent
at the appropriate Payment Office on such day an amount of cash, Cash
Equivalents or Foreign Cash Equivalents equal to the amount of such excess
(up to a maximum amount equal to the ▇▇▇▇▇▇▇▇ Letter of Credit Outstandings
at such time), such cash, Cash Equivalents or Foreign Cash Equivalents to
be held as security for all obligations of ▇▇▇▇▇▇▇▇ hereunder in a cash
collateral account to be established by the Administrative Agent, PROVIDED
that, so long as no Default under Section 10.01 or 10.05 and no Event of
Default is then in existence, such cash, Cash Equivalents or Foreign Cash
Equivalents shall be released (subject to continued compliance with
preceding clause (i)) to ▇▇▇▇▇▇▇▇ at such time (if any) as, and to the
extent that, the aggregate amount of such cash, Cash Equivalents and
Foreign Cash Equivalents at such time on deposit with the Administrative
Agent exceeds the amount by which the ▇▇▇▇▇▇▇▇ Letter of Credit
Outstandings at such time exceed the amount of the Sterling Revolving
Sub-Limit as then in effect."
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20. Section 6.02(a) of the Credit Agreement is hereby amended by (i)
deleting the parenthetical appearing in the first sentence thereof and inserting
the following new parenthetical in lieu thereof:
"(excluding Swingline Loans and Sterling Swingline Loans)";
and (ii) inserting the following new sentence at the end thereof:
"Prior to the making of any Sterling Swingline Loan, BTCo shall have
received the notice required by Section 1.03(c)(i)."
21. The definition of "Bank Default" appearing in Section 11.01 of
the Credit Agreement is hereby amended by inserting the text ", 1.01(h)"
immediately after the text "Section 1.01(d), 1.01(f)" appearing therein.
22. Section 11.01 of the Credit Agreement is hereby amended by
deleting the definitions of "Euro Rate", "Interest Determination Date", "Loan",
"Maturity Date", "Minimum Borrowing Amount", "Required Banks", "Sterling Loan",
"Total Unutilized Revolving Loan Commitment" and "Tranche" appearing therein and
inserting the following new definitions in the appropriate alphabetical order:
"Euro Rate" shall mean and include each of the Eurodollar Rate, the
Sterling Euro Rate and the Overnight LIBOR Rate.
"Interest Determination Date" shall mean, with respect to any Euro
Rate Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Euro Rate Loan.
"Loan" shall mean each Adience B Term Loan, each Newco A Term Loan,
each Newco B Term Loan, each Revolving Loan, each Swingline Loan and each
Sterling Swingline Loan.
"Maturity Date" shall mean, with respect to any Tranche of Loans, the
A Term Loan Maturity Date, the B Term Loan Maturity Date, the Revolving
Loan Maturity Date or the Swingline Expiry Date, as the case may be.
"Minimum Borrowing Amount" shall mean (i) in the case of Newco A Term
Loans, L2,000,000, (ii) in the case of B Term Loans, $5,000,000, (iii) in
the case of Dollar Revolving Loans, $1,000,000, (iv) in the case of
Sterling Revolving Loans, L500,000, (v) in the case
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of Swingline Loans, $250,000 and (vi) in the case of Sterling Swingline
Loans, L125,000.
"Required Banks" shall mean Non-Defaulting Banks the sum of whose
outstanding Term Loans (or, if prior to the Initial Borrowing Date, Term
Loan Commitments) and Revolving Loan Commitments (or after the termination
thereof, outstanding Revolving Loans and RL Percentage of Swingline Loans,
Sterling Swingline Loans and Letter of Credit Outstandings) represent an
amount greater than 50% of the sum of all outstanding Term Loans (or, if
prior to the Initial Borrowing Date, the Term Loan Commitments) of
Non-Defaulting Banks and the Total Revolving Loan Commitment less the
Revolving Loan Commitments of Defaulting Banks (or after the termination of
the Total Revolving Loan Commitment, the sum of the then total outstanding
Revolving Loans of Non-Defaulting Banks, and the aggregate RL Percentages
of all Non-Defaulting Banks of the total outstanding Swingline Loans, the
total outstanding Sterling Swingline Loans and Letter of Credit
Outstandings at such time). For purposes of determining Required Banks,
all outstanding Loans and Commitments and Letter of Credit Outstandings, as
the case may be, that are denominated in Dollars will be calculated in
Dollars and all Loans and Commitments and Letter of Credit Outstandings, as
the case may be, denominated in Pounds Sterling will be calculated
according to the Dollar Equivalent thereof.
"Sterling Loan" shall mean each Newco A Term Loan, each Sterling
Revolving Loan and each Sterling Swingline Loan.
"Total Unutilized Revolving Loan Commitment" shall mean, at any time,
an amount equal to the remainder of (x) the Total Revolving Loan Commitment
then in effect, less (y) the sum of (I) the aggregate principal amount of
Revolving Loans then outstanding (or the Dollar Equivalent thereof in the
case of Sterling Revolving Loans then outstanding), (II) the aggregate
principal amount of Swingline Loans then outstanding, (III) the then
aggregate amount of Letter of Credit Outstandings (for this purpose, using
the Dollar Equivalent thereof in the case of ▇▇▇▇▇▇▇▇ Letter of Credit
Outstandings) and (IV) the aggregate principal amount of Sterling Swingline
Loans then outstanding (for this purpose, using the Dollar Equivalent
thereof).
"Tranche" shall mean the respective facility and commitments utilized
in making Loans hereunder, with there being six separate
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Tranches, I.E., Adience B Term Loans, Newco A Term Loans, Newco B Term
Loans, Revolving Loans, Swingline Loans and Sterling Swingline Loans.
23. The definition of "Holdings Excess Cash Flow" appearing in
Section 11.01 of the Credit Agreement is hereby amended by inserting the words
"or Swingline Loans" immediately after the words "Revolving Loans" but before
the comma appearing in clause (y) of the second parenthetical contained in
clause (ii)(b) thereof.
24. The definition of "Newco Excess Cash Flow" appearing in Section
11.01 of the Credit Agreement is hereby amended by inserting the words "or
Sterling Swingline Loans" immediately after the words "Revolving Loans" but
before the comma appearing in clause (y) of the parenthetical contained in
clause (ii)(b) thereof.
25. Section 11.01 of the Credit Agreement is hereby amended by
inserting the following new definitions in the appropriate alphabetical order:
"First Amendment" shall mean the First Amendment, dated as of June 11,
1997, to this Agreement.
"First Amendment Effective Date" shall have the meaning provided in
the First Amendment.
"Mandatory Sterling Borrowing" shall have the meaning provided in
Section 1.01(h).
"Maximum Sterling Swingline Amount" shall mean L5,000,000.
"Overnight LIBOR Rate" shall mean the offered quotation to first-class
banks in the London interbank Eurodollar market by BTCo for Pounds Sterling
overnight deposits of amounts in immediately available funds comparable to
the outstanding principal amount of the Sterling Swingline Loan of BTCo
commencing as of 11:00 A.M. (London time) on the date of Borrowing of the
respective Borrowing of Sterling Swingline Loans; provided, that in the
event the Administrative Agent has made any determination pursuant to
Section 1.10(a)(i) in respect of Sterling Loans, or in the circumstances
described in clause (i) to the proviso to Section 1.10(b) in respect of
Sterling Loans, the Overnight LIBOR Rate determined pursuant to this
definition shall instead be the rate determined by BTCo as the all-in-cost
of funds for BTCo to fund such Sterling Swingline Loan.
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"Sterling Swingline Loan" shall have the meaning provided in Section
1.01(g).
"Sterling Swingline Note" shall have the meaning provided in Section
1.05(a).
26. Section 13.12(a) of the Credit Agreement is hereby amended by
inserting the following new clause (t) immediately before clause (u) appearing
in the second proviso thereof:
"(t) without the consent of BTCo, amend, modify or waive any provision
relating to the rights or obligations with respect to Swingline Loans or
Sterling Swingline Loans, as the case may be (including, without
limitation, the obligations of other Banks with Revolving Loan Commitments
to fund Mandatory Borrowings or Mandatory Sterling Borrowings, as the case
may be),".
27. The Credit Agreement is hereby further amended by inserting as a
new Exhibit B-7 to the Credit Agreement the form of Exhibit B-7 attached hereto.
28. In order to induce the Banks to enter into this Amendment, the
Borrower hereby represents and warrants that (x) no Default or Event of Default
exists on the First Amendment Effective Date (as defined below), both before and
after giving effect to this Amendment, and (y) all of the representations and
warranties contained in the Credit Agreement and the other Credit Documents
shall be true and correct in all material respects as of the First Amendment
Effective Date, both before and after giving effect to this Amendment, with the
same effect as though such representations and warranties had been made on and
as of the First Amendment Effective Date (it being understood that any
representation or warranty made as of a specified date shall be required to be
true and correct in all material respects only as of such specified date).
29. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provisions of the Credit
Agreement or any other Credit Document.
30. 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.
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31. 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.
32. This Amendment shall become effective on the date (the "First
Amendment Effective Date") when Holdings, the Borrowers and each Bank shall have
signed a counterpart of this Amendment (whether the same or different
counterparts) and shall have delivered (including by way of telecopier) the same
to the Administrative Agent at the Notice Office. The Administrative Agent
shall promptly notify Adience and the Banks in writing of the First Amendment
Effective Date.
33. From and after the First Amendment Effective Date, all references
in the Credit Agreement and the other Credit Documents to the Credit Agreement
shall be deemed to be references to the Credit Agreement as modified hereby.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
REFRACO INC.
By /s/ Bragi ▇. ▇▇▇▇▇
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Title: Executive Vice President
ADIENCE, INC.
By /s/ Bragi ▇. ▇▇▇▇▇
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Title: Executive Vice President
REFRACO HOLDINGS LIMITED
By /s/ Bragi ▇. ▇▇▇▇▇
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Title: Director and Secretary
REFRACO (UK) LIMITED
By /s/ Bragi ▇. ▇▇▇▇▇
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Title: Director and Secretary
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
FLEET NATIONAL BANK
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Senior Vice President