EXHIBIT 10.1
AMENDMENT XX. 0
XXXXXXXXX XX. 0 (this "Amendment"), dated as of June 23, 2005, to the
Second Amended and Restated Credit Agreement dated as of August 9, 2004 (as
amended and as the same may be further amended, amended and restated,
supplemented or otherwise modified, renewed or replaced from time to time, the
"Credit Agreement"), among Oneida Ltd., as borrower (the "Borrower"), the
financial institutions from time to time party thereto (collectively, the
"Lenders") and JPMorgan Chase Bank, N.A. ("JPMorgan Chase"), as administrative
agent (the "Administrative Agent") and collateral agent (the "Collateral Agent")
for the Lenders.
INTRODUCTORY STATEMENT
A. All capitalized terms not otherwise defined in this Amendment are
used herein as defined in the Credit Agreement.
B. The Borrower and the Lenders have agreed to certain amendments to
the assignment provisions and financial reporting requirements contained in the
Credit Agreement as set forth below.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. Amendment to Section 5.1 of the Credit Agreement. Section
5.1 of the Credit Agreement is hereby amended by:
(A) deleting the words "and consolidating (by major business
line)" appearing in clauses (a)(ii) and (a)(iii) thereof;
(B) deleting the word "As" appearing at the beginning of
clause (a)(v) thereof and inserting in lieu thereof the words "To the extent not
provided by a financial advisor acceptable to the Administrative Agent in its
sole discretion, as"; and
(C) inserting the words "to the extent (whether in one
transaction or a series of related transactions) (i) the proceeds of such sale
(or related sales) exceed $20,000 or (ii) the proceeds of all sales in such
quarter exceeds $100,000 in the aggregate" immediately following the words "such
quarter" appearing in clause (b)(ii) thereof.
SECTION 2. Amendment to Section 10.3(b) of the Credit Agreement.
Section 10.3(b) of the Credit Agreement is hereby amended by (i) deleting clause
(ii) thereof in its entirety and (ii) renumbering clauses (iii) and (iv) as
clauses (ii) and (iii).
SECTION 3. Conditions to Effectiveness. This Amendment shall become
effective on the date on which each of the following conditions has been met
(the "Effective Date"):
(a) execution and delivery (including by facsimile) of this Amendment
by the Borrower, the Administrative Agent, and the Required Lenders;
(b) execution and delivery (including by facsimile) of the Consent and
Reaffirmation of Guarantors at the end hereof by the Guarantors;
(c) payment of outstanding professionals' fees and expenses of the
Administrative Agent and Collateral Agent; and
(d) delivery to the Administrative Agent of a certificate of an
Authorized Officer certifying that, after giving effect to this Amendment, no
Default or Event of Default shall exist and each of the representations and
warranties made by the Borrower or any of its Subsidiaries herein and in or
pursuant to the Fundamental Documents shall be true and correct in all material
respects as if made on and as of the date on which this Amendment becomes
effective.
SECTION 4. Restatement of Representations and Warranties. The Borrower
hereby restates and renews each and every representation and warranty heretofore
made by it in the Credit Agreement and the other Fundamental Documents as fully
as if made on the date hereof (but after giving effect to this Amendment).
SECTION 5. Effect of Amendment. Except as set forth expressly
hereinabove, all terms of the Credit Agreement and the other Fundamental
Documents shall be and remain in full force and effect, and shall constitute the
legal, valid, binding and enforceable obligations of the Borrower.
SECTION 6. Reaffirmation; No Novation. The Borrower expressly
acknowledges and agrees that: (i) there has not been, and this Amendment does
not constitute or establish, a novation with respect to the Credit Agreement or
any of the Fundamental Documents and (ii) nothing in this Amendment shall affect
or limit the Administrative Agent's and the Lenders' right to demand payment of
liabilities owing from the Borrower to the Administrative Agent and the Lenders
under, or to demand strict performance of the terms, provisions and conditions
of, the Credit Agreement and the other Fundamental Documents, to exercise any
and all rights, powers and remedies under the Credit Agreement or the other
Fundamental Documents or at law or in equity, or to do any and all of the
foregoing, immediately at any time after the occurrence of a Default or an Event
of Default which is not waived pursuant to the terms hereof, the Credit
Agreement or the other Fundamental Documents.
SECTION 7. Ratification. Except as expressly contemplated or provided
herein, the Borrower hereby restates, ratifies and reaffirms each and every
term, covenant and condition set forth in the Credit Agreement and the other
Fundamental Documents effective as of the date hereof.
SECTION 8. Release. For purposes of this Section, the following terms
shall have the following definitions:
(e) "Related Parties" shall mean, with respect to any released party,
such party's parents, subsidiaries, affiliates, successors, assigns,
predecessors in interest, officers, directors, employees, agents,
representatives, attorneys, financial advisors, accountants and shareholders, if
any.
(f) "Claims" shall mean any and all claims, losses, debts, liabilities,
demands, obligations, promises, acts, omissions, agreements, costs, expenses,
damages, injuries, suits, actions, causes of action, including without
limitation, any and all rights of setoff, recoupment or counterclaim of any kind
or nature whatsoever, in law or in equity, known or unknown, suspected or
unsuspected, contingent or fixed.
Excluding only the continuing obligations of the Lenders and the
Administrative Agent under the express terms of the Credit Agreement, the
Fundamental Documents and this Amendment, the Borrower hereby releases, acquits
and forever discharges the Lenders and the Administrative Agent, and each of
them, and their respective Related Parties, of and from any and all Claims
arising out of, related or in any way connected with the Credit Agreement, the
Fundamental Documents or the transactions contemplated by any thereof,
including, without limitation, any action or failure to act, prior to the
execution of this Amendment, in response to or otherwise in connection with the
events or circumstances arising under or otherwise related to the Credit
Agreement, the Fundamental Documents or any Defaults or Events of Default
occurring under the Credit Agreement or the Fundamental Documents.
SECTION 9. Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts and
transmitted by facsimile to the other parties, each of which when so executed
and delivered by facsimile shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same instrument.
SECTION 10. References. All references to the Credit Agreement in the
Credit Agreement and the other Fundamental Documents and the other documents and
instruments delivered pursuant to or in connection therewith shall mean the
Credit Agreement as modified hereby and as may in the future be amended,
restated, supplemented or otherwise modified from time to time.
SECTION 11. No Default. To induce the Administrative Agent and the
Lenders to enter into this Amendment, the Borrower hereby acknowledges and
agrees that, as of the date hereof, and after giving effect to the terms hereof,
there exists (i) no Default or Event of Default and (ii) no right of offset,
defense, counterclaim, claim or objection in favor of the Borrower arising out
of or with respect to any of the Loans or other obligations of the Borrower owed
to the Administrative Agent or the Lenders under the Credit Agreement.
SECTION 12. Further Assurances. The Borrower agrees to take such
further actions as the Administrative Agent shall reasonably request in
connection herewith to evidence the amendment herein contained.
SECTION 13. Governing Law. This Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of New York.
[SIGNATURES CONTAINED ON NEXT PAGE]
IN WITNESS WHEREOF, the Borrower, the Administrative Agent, and each of
the Lenders has caused this Amendment to be duly executed, under seal, by its
duly authorized officer as of the day and year first above written.
BORROWER:
ONEIDA LTD.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President &
Chief Financial Officer
JPMORGAN CHASE BANK, N.A.
as Administrative Agent, Collateral Agent,
Revolving Credit Lender and Tranche A Term
Loan Lender
By: /s/ XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
Title: Vice President
GREEN RIVER FUND
By: /s/ XXXX XXXXXXX
----------------
Name: Xxxx XxXxxxx
Title: General Partner
CALIFORNIA PUBLIC EMPLOYEES'S
RETIREMENT SYSTEM
By: Highland Capital management, L,P.
As Authorized Representative of the Board
By: /s/ XXXXX XXXXXXXX
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Name: Xxxxx Xxxxxxxx
Title: Treasurer
Highland Capital Management, L.P.
BANK OF AMERICA, NA
By: /s/ XXXXXXXX X. XXXXXX
----------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Associate
QUADRANGLE MASTER FUNDING LTD.
By: /s/ XXXXXX X. XXXXXXXXXX
------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Managing Principal
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ W. XXXXXX XXXXXXXXX
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Name: W. Xxxxxx XxXxxxxxx
Title: Duly Authorized Signatory
HSBC BANK USA, NATIONAL ASSOCIATION
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CONSENT, REAFFIRMATION AND AGREEMENT OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing Amendment No.
4 (the "Amendment") to the Second Amended and Restated Credit Agreement, dated
as of June 23, 2005 (as heretofore amended, the "Credit Agreement"), among
Oneida Ltd., as borrower, the lenders from time to time party thereto (the
"Lenders"), and JPMorgan Chase Bank, as Administrative Agent and Collateral
Agent, (ii) consents to the execution and delivery of the Amendment by the
parties thereto, (iii) reaffirms all of its obligations and covenants under the
Amended and Restated Consolidated Subsidiary Guarantee Agreement dated as of
August 9, 2004 (the "Guarantee") executed by it, (iv) agrees that none of such
obligations and covenants shall be affected by the execution and delivery of the
Amendment, (v) acknowledges and agrees that there exists no right of offset,
defense, counterclaim, claim or objection in favor of such Guarantor arising out
of or with respect to any of the Loans (as defined in the Credit Agreement) or
other obligations of such Guarantor owed to the Administrative Agent or the
Lenders under the Credit Agreement, the Guarantee or the other Fundamental
Documents (as defined in the Credit Agreement), and (vi) agrees to take such
further actions as the Administrative Agent shall reasonably require in
connection with the Amendment and to evidence the waivers therein contained.
This Consent and Reaffirmation may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same instrument.
[SIGNATURES CONTAINED ON NEXT PAGE]
IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Consent, Reaffirmation and Agreement as of the 23rd day of June, 2005.
BUFFALO CHINA, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
THC SYSTEMS, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
ENCORE PROMOTIONS, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
DELCO INTERNATIONAL, LTD.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
SAKURA, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
KENWOOD SILVER COMPANY, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
ONEIDA SILVERSMITHS, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
ONEIDA FOOD SERVICE, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
ONEIDA INTERNATIONAL, INC.
By: /s/ XXXXXX X. XXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
