Exhibit 10.5
EXECUTION VERSION
AMENDED AND RESTATED CONSOLIDATED
SUBSIDIARY GUARANTEE AGREEMENT
This Amended and Restated Consolidated Subsidiary Guarantee Agreement
(as this agreement may be further amended, amended and restated, supplemented or
otherwise modified, renewed or replaced from time to time, the "Agreement"),
dated as of August 9, 2004, is executed by the parties listed on Schedule I
hereto (and together with each direct or indirect domestic subsidiary of Oneida
Ltd. (the "Borrower") which executes an Instrument of Assumption and Joinder
pursuant to Section 5.12 of the Credit Agreement (as defined herein), each a
"Guarantor" and together the "Guarantors") for the benefit of the Secured
Parties (as defined below) and JPMORGAN CHASE BANK ("JPMorgan Chase"), as
administrative agent and collateral agent (in such capacity, the "Administrative
Agent" and the "Collateral Agent", respectively) for the Secured Parties (the
Secured Parties collectively referred to herein as the "Beneficiaries").
RECITALS
A. WHEREAS, each Guarantor (other than Oneida International, Inc.) is a
wholly owned subsidiary of the Borrower;
B. WHEREAS, the Borrower, JPMorgan Chase, as administrative agent, and
the lenders from time to time party thereto (the "Existing Lenders") are parties
to that certain Amended and Restated Credit Agreement dated as of April 27, 2001
(as the same has been amended, supplemented or otherwise modified, the "Existing
Credit Agreement") pursuant to which the Existing Lenders made revolving loans
and a term loan to the Borrower;
C. WHEREAS, THC, as borrower, the Borrower, as guarantor, and Allstate
Insurance Company (together with its permitted assignees, "Allstate"), Allstate
Life Insurance Company (together with its permitted assignees, "Allstate Life")
and Pacific Life Insurance Company (together with its permitted assignees and
together with Allstate and Allstate Life, the "Existing Noteholders") are
parties to the 2001 Amended and Restated Note Purchase Agreement dated as of May
1, 2001 (as the same has been amended, supplemented or otherwise modified, the
"Existing Note Agreement") pursuant to which the Existing Noteholders purchased
certain notes (the "Existing Notes") with a maturity date of May 31, 2005;
D. WHEREAS, in order to support the Borrower's obligations under the
Existing Credit Agreement (the "Existing Credit Agreement Obligations"), the
Borrower's direct and indirect domestic subsidiaries (the "Existing
Guarantors"), among other things, guaranteed
the Existing Credit Agreement Obligations pursuant to: (i) that certain Amended
and Restated Subsidiary Guarantee Agreement dated as of April 27, 2001 made by
Buffalo China, Encore, THC, Delco and Sakura for the benefit of the Existing
Lenders and JPMorgan Chase as collateral agent (in such capacity the "Existing
Collateral Agent") and as administrative agent (in such capacity, the "Existing
Administrative Agent") under the Existing Credit Agreement; (ii) that certain
Subsidiary Guarantee Agreement dated as of April 23, 2002 made by Kenwood for
the benefit of the Existing Lenders, the Existing Administrative Agent and the
Existing Collateral Agent; (iii) that certain Subsidiary Guarantee Agreement
dated as of July 25, 2003 made by Silversmiths for the benefit of the Existing
Lenders, the Existing Administrative Agent and the Existing Collateral Agent;
and (iv) that certain Subsidiary Guarantee Agreement dated as of July 25, 2003
made by Food Service for the benefit of the Existing Lenders, the Existing
Administrative Agent and the Existing Collateral Agent (as the same have been
amended, supplemented or otherwise modified, together, the "Existing Credit
Agreement Guarantee Agreements");
E. WHEREAS, the payment, in full, when due of THC's obligations under
the Existing Note Agreement (the "Existing Note Agreement Obligations") is
guaranteed by the Borrower pursuant to the terms of the Existing Note Agreement
and by each of the Existing Guarantors pursuant to (i) that certain Amended and
Restated Subsidiary Guarantee Agreement dated April 27, 2001 for the benefit of
the Existing Noteholders and executed by Buffalo China, (ii) that certain
Amended and Restated Subsidiary Guarantee Agreement dated April 27, 2001 for the
benefit of the Existing Noteholders and executed by Encore, (iii) that certain
Amended and Restated Subsidiary Guarantee Agreement dated April 27, 2001 for the
benefit of the Existing Noteholders and executed by Delco, (iv) that certain
Amended and Restated Subsidiary Guarantee Agreement dated April 27, 2001 for the
benefit of the Existing Noteholders and executed by THC, (v) that certain
Amended and Restated Subsidiary Guarantee Agreement dated April 27, 2001 for the
benefit of the Existing Noteholders and executed by Sakura, (vi) that certain
Subsidiary Guarantee Agreement dated April 23, 2002 for the benefit of the
Existing Noteholders and executed by Kenwood, (vii) that certain Subsidiary
Guarantee Agreement dated July 25, 2003 for the benefit of the Existing
Noteholders and executed by Silversmiths, and (viii) that certain Subsidiary
Guarantee Agreement dated July 25, 2003 for the benefit of the Existing
Noteholders and executed by Food Service (as the same have been amended,
amended, supplemented or otherwise modified, together, the "Existing Note
Guarantee Agreements", and, together with the Existing Credit Agreement
Guarantee Agreements, the "Existing Subsidiary Guarantee Agreements");
F. WHEREAS, the Existing Credit Agreement Obligations, the Existing
Note Agreement Obligations and certain other indebtedness incurred by the
Borrower (collectively, the "Existing Obligations") are being restructured
pursuant to a Second Amended and Restated Credit Agreement dated as of the date
hereof among the Borrower, the Collateral Agent, the Administrative Agent, the
lenders party thereto and the Existing Standby L/C Issuers (as the same may at
any time be amended, amended and restated, supplemented or otherwise modified,
renewed or replaced, the "Credit Agreement");
G. WHEREAS, it is a condition precedent to the restructuring of the
Existing Obligations as contemplated under the Credit Agreement and to the
extensions of additional credit contemplated under the Credit Agreement that,
among other things: (i) a Second Amended and Restated Collateral Agency and
Intercreditor Agreement dated as of the date hereof be entered into by and among
the Borrower, the Guarantors, the Administrative Agent, the Collateral Agent and
each of the Secured Parties in order to, among other things, appoint JPMorgan
Chase as Collateral Agent and authorize the Collateral Agent to, among other
things, execute, deliver and perform as their collateral agent with respect to
the security documents; (ii) the Borrower and each of the Guarantors enter into
an Amended and Restated Security Agreement dated as of the date hereof in favor
of the Collateral Agent for the benefit of the Secured Parties (as the same may
at any time be amended, amended and restated, supplemented or otherwise
modified, renewed or replaced, the "Amended and Restated Security Agreement");
and (iii) each of the Guarantors execute this Agreement in order to guarantee
the payment in full of the Guaranteed Obligations for the benefit of the
Beneficiaries pursuant to this Agreement; and
H. WHEREAS, each of the Guarantors will obtain benefits as a result of
the restructuring of the Existing Obligations and the extensions of credit
contemplated pursuant to the Credit Agreement, which benefits are hereby
acknowledged, and, accordingly, each of the Guarantors desires to execute and
deliver this Agreement; and
I. WHEREAS, to induce the Lenders, the Existing Standby L/C Issuers and
Administrative Agent to restructure the Existing Obligations, and in
consideration thereof and of any and all credit at any time extended under the
Credit Agreement, the Guarantors hereby amend and restate the Existing
Subsidiary Guarantee Agreements as more fully set forth herein;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, to induce the Lenders, the Existing Standby L/C Issuers and the
Administrative Agent to enter into the Credit Agreement and to restructure the
Existing Obligations and extend additional credit to the Borrower thereunder,
each Guarantor hereby agrees for the benefit of each of the Beneficiaries as
follows:
1. Definitions.
1.1 The following capitalized terms shall have the meanings set
forth below for purposes of this Agreement:
"Allstate" shall have the meaning given to that term in paragraph C of
the recitals to this Agreement.
"Allstate Life" shall have the meaning given to that term in paragraph
C of the recitals to this Agreement.
"Amended and Restated Security Agreement" shall have the meaning given
to that term in paragraph G of the recitals to this Agreement.
"Applicable Law" shall mean all laws, rules and regulations applicable
to the person, conduct, transaction, covenant, document or contract in question,
including all applicable common law and equitable principles; all provisions of
all applicable state, federal and foreign constitutions, statutes, rules,
regulations and orders of government authorities; and all orders, judgments and
decrees of all courts and arbitrators.
"Credit Agreement" shall have the meaning given to that term in
paragraph F of the recitals to this Agreement.
"Discharge of the Guaranteed Obligations" means that all Commitments of
the Lenders to extend credit under the Credit Agreement have irrevocably expired
or been terminated and all Guaranteed Obligations have been fully, finally and
indefeasibly paid in cash.
"Existing Administrative Agent" shall have the meaning given to that
term in paragraph D of the recitals to this Agreement.
"Existing Collateral Agent" shall have the meaning given to that term
in paragraph D of the recitals to this Agreement.
"Existing Credit Agreement" shall have the meaning given to that term
in paragraph B of the recitals to this Agreement.
"Existing Credit Agreement Guarantee Agreements" shall have the meaning
given to that term in paragraph D of the recitals to this Agreement.
"Existing Credit Agreement Obligations" shall have the meaning given to
that term in paragraph D of the recitals to this Agreement.
"Existing Guarantors" shall have the meaning given to that term in
paragraph D of the recitals to this Agreement.
"Existing Lenders" shall have the meaning given to that term in
paragraph B of the recitals to this Agreement.
"Existing Note Agreement" shall have the meaning given to that term in
paragraph C of the recitals to this Agreement.
"Existing Note Agreement Obligations" shall have the meaning given to
that term in paragraph E of the recitals to this Agreement.
"Existing Note Guarantee Agreements" shall have the meaning given to
that term in paragraph E of the recitals to this Agreement.
"Existing Noteholders" shall have the meaning given to that term in
paragraph C of the recitals to this Agreement.
"Existing Notes" shall have the meaning given to that term in paragraph
C of the recitals to this Agreement.
"Existing Obligations" shall have the meaning given to that term in
paragraph F of the recitals to this Agreement.
"Existing Standby L/C Issuers" shall have the meaning given to such
term in the Credit Agreement.
"Existing Standby L/Cs" shall have the meaning given to such term in
the Credit Agreement.
"Existing Subsidiary Guarantee Agreements" shall have the meaning given
to that term in paragraph E of the recitals to this Agreement.
"Guaranteed Obligations" means all debts, liabilities and obligations
of Borrower, whether now existing or hereafter incurred at any time or times,
direct or indirect, absolute or contingent, secured or unsecured, arising under
the Credit Agreement or any of the other Fundamental Documents, including
without limitation all principal, interest (including any interest that accrues
during the pendency of any Insolvency Proceeding, whether or not the Secured
Parties are authorized under the Bankruptcy Code (or other Applicable Law) to
collect such interest from the Borrower), payable in respect thereof, premiums,
commitment fees, up-front fees, agency fees, legal fees, other fees, charges,
expenses, indemnities and other amounts payable by the Borrower under the Credit
Agreement or any other Fundamental Document, and all late charges, penalties and
reasonable expenses of collection or enforcement or attempted collection or
enforcement thereof, including reasonable fees and disbursements of legal
counsel in connection therewith, whether within or apart from any legal action
or proceeding.
"Insolvency Proceeding" shall mean any action, case or proceeding
commenced by or against an entity, or any agreement of such entity, for (a) the
entry of an order for relief under any chapter of the Bankruptcy Code or other
insolvency or debt adjustment law (whether state, federal or foreign), (b) the
appointment of a receiver, trustee, liquidator or other custodian for such
entity or any part of its property, (c) an assignment or trust mortgage for the
benefit of creditors of such entity, or (d) except as permitted pursuant to the
terms of the Credit Agreement, the liquidation, dissolution or winding up of the
affairs of such entity, in each case, whether voluntary or involuntary, partial
or complete.
"Material Adverse Effect" shall have the meaning given to such term in
the Credit Agreement.
"Secured Parties" shall have the meaning given to such term in the
Credit Agreement.
"Security Documents" shall have the meaning given to such term in the
Credit Agreement.
1.2 Other capitalized terms used herein which are not otherwise
defined herein shall have the meanings given to such terms in the Credit
Agreement.
1.3 The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended, amended
and restated, supplemented or otherwise modified (subject to any restrictions on
such amendments, amendments and restatements, supplements or modifications set
forth herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, and
(d) all references herein to Sections, shall be construed to refer to Sections
of this Agreement.
2. Guarantee.
2.1 Each Guarantor, jointly and severally, hereby absolutely,
unconditionally and irrevocably guarantees to each of the Beneficiaries the
payment in full when due, by acceleration or otherwise, of all Guaranteed
Obligations. If an Event of Default occurs and notice of demand for payment
under this Agreement is given by the Administrative Agent (other than with
respect to an Event of Default set forth in Section 7(h) or (i) of the Credit
Agreement as to which no such notice is required), all liability of the
Guarantors under this Agreement shall become due and payable, without further
notice or demand.
2.2 This Agreement constitutes a guarantee of payment when due and
not merely a guarantee of collection. The Beneficiaries shall not be required to
commence any action or proceeding to foreclose any security for the payment of
the Guaranteed Obligations or to pursue or exhaust any remedies against the
Borrower prior to the effectiveness of the Guarantors' obligation to pay the
full amount of the Guaranteed Obligations.
2.3 This Agreement is a continuing guarantee and shall remain in
full force and effect in respect of the Guarantors until the Discharge of the
Guaranteed Obligations.
2.4 The Guarantors' liability hereunder is in addition to and
independent of any other liabilities which the Guarantors have incurred or
assumed, or may hereafter incur or
assume, by way of endorsement, separate guarantee agreement, or in any other
manner, with respect to all or any part of the Guaranteed Obligations. This
Agreement does not supersede nor limit any such other liabilities of the
Guarantors, and the Beneficiaries' rights and remedies under and pursuant to
this Agreement and any such other liabilities are cumulative and may be
exercised singly or concurrently.
3. Representation and Warranties.
Each Guarantor, jointly and severally with each of the other
Guarantors, represents and warrants that:
3.1 Each Guarantor (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority and all, except as would reasonably be
expected to have a Material Adverse Effect, licenses, permits and other
approvals of any Governmental Authority necessary to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except where the failure to so qualify or be in
good standing could not have a Material Adverse Effect, and (d) is in compliance
with all Applicable Laws, rules and regulations except to the extent that the
failure to comply therewith would not reasonably be expected to have a Material
Adverse Effect.
3.2 Each Guarantor has the corporate power and authority to make,
deliver and perform this Agreement and all other Fundamental Documents to which
it is a party, and has taken all necessary corporate action to undertake and pay
and perform all of its liabilities and obligations hereunder and thereunder and
has taken all necessary corporate action to authorize the execution, delivery,
payment and performance hereof and thereof on the terms and conditions set forth
herein and therein. No consent, approval or authorization of, filing with,
notice to or other act by any Governmental Authority or any other Person is
required by any Guarantor in connection with the execution, delivery and
performance of this Agreement.
3.3 This Agreement has been duly executed and delivered on behalf of
each Guarantor. This Agreement constitutes a legal, valid and binding obligation
of each Guarantor enforceable against it in accordance with its terms except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
(whether enforcement is sought in equity or at law).
3.4 The execution, delivery and performance of this Agreement and
the other Fundamental Documents to which each Guarantor is a party will not
violate, in any material respect, any law, rule or regulation or any Material
Agreement to which a Guarantor is a party or by which it or any of its property
is bound and will not result in the creation or imposition of any Lien on any of
its properties or revenues pursuant to any such law, rule or regulation or any
such Material Agreement or other instrument.
3.5 In addition to each of the representations and warranties made
by each Guarantor in the preceding subsections of Section 3 of this Agreement,
each Guarantor hereby, jointly and severally with each other Guarantor,
represents and warrants that the representations, warranties and agreements set
forth in Article 3 of the Credit Agreement which relate to the Guarantors
(individually or as a whole) rather than merely to the Borrower are true and
accurate in all respects with respect to such Guarantor on and as of the date
hereof (except to the extent such representations and warranties expressly
relate to an earlier date).
4. Guarantee Absolute.
4.1 The obligations of the Guarantors hereunder are absolute,
unconditional and irrevocable, are independent of the Guaranteed Obligations and
any other security therefor or other guarantee or liability in respect thereof,
and shall not be subject to any counterclaim, setoff, deduction, diminution,
abatement, recoupment, suspension, deferment, reduction or defense.
4.2 The Beneficiaries may at any time and from time to time without
the consent of or notice of any kind to the Guarantors, and without regard to
any demands or requests by the Guarantors, take any of the following acts, upon
or without any terms or conditions and in whole or in part, without thereby
incurring any liability to the Guarantors, impairing the Guarantors' obligations
under this Agreement or releasing the Guarantors from this Agreement:
(a) change the rate of interest, penalties, manner, place or terms of
payment, change, extend the time of payment of, or increase the principal amount
of, any of the Guaranteed Obligations, or renew, amend, alter or revoke any
commitment, condition, covenant, Event of Default or other provision with
respect to any of the Guaranteed Obligations, any security therefor, or any
liability incurred directly or indirectly in respect thereof, and this Agreement
shall apply to such Guaranteed Obligations as so changed, extended, increased,
renewed, amended, altered or otherwise modified;
(b) sell, exchange, release, surrender, realize upon or otherwise deal
with in any manner and in any order any property by whomsoever at any time
pledged or mortgaged to secure the Guaranteed Obligations or any liabilities
(including any of those hereunder) incurred directly or indirectly in respect
thereof;
(c) waive, consent, extend, grant indulgence, compromise, release,
discharge or exercise or refrain from exercising any right, claim, demand,
remedy, power or privilege under or in respect of the Fundamental Documents or
the Borrower or any other party directly or indirectly liable upon the
Guaranteed Obligations;
(d) settle or compromise any Guaranteed Obligations, any security
therefor, or any liability (including any of those hereunder) incurred directly
or indirectly in respect thereof or hereof, and subordinate the payment of all
or any part thereof to the payment of any liability (whether due or not) of the
Borrower to creditors of the Borrower;
(e) apply any sum by whomsoever paid or howsoever realized to such
debts, liabilities, obligations, interest, or expenses of collection owing by
the Borrower or any Guarantor to the Beneficiaries and in such order as the
Beneficiaries may elect pursuant to any right of the Beneficiaries, whether
guaranteed hereby or not, without regard to any rights of the Guarantor in
respect to the application thereof, and regardless of what Guaranteed
Obligations or other liability hereunder or portion thereof remains unpaid;
(f) omit to collect or enforce any collateral security or other
guarantees held by the Beneficiaries without regard to any demand or request by
the Guarantor; or
(g) fail or omit to perfect any security interest in any collateral for
the payment of the Guaranteed Obligations.
4.3 This Agreement shall remain in full force and effect without
regard to, and shall not be released, discharged or in any way affected by, any
of the following circumstances or conditions whatsoever, whether or not any
Guarantor has notice or knowledge thereof:
(a) any failure, omission or delay on the part of the Beneficiaries to
comply with any term of the Fundamental Documents or any other agreement or
instrument applicable to any of the parties to the Fundamental Documents;
(b) any Insolvency Proceeding with respect to the Borrower or any
Guarantor or any of their respective creditors or their properties or any action
taken by any trustee or receiver or by any court in any such proceeding;
(c) any limitation on the liability or obligations of the Borrower or
any other Person under the Fundamental Documents or any other Person referred to
therein, or any discharge, termination, cancellation, frustration, irregularity,
invalidity or unenforceability, in whole or in part, of the Fundamental
Documents other than by reason of a Discharge of the Guaranteed Obligations;
(d) any taking, acceptance or release of any other guarantees of the
Guaranteed Obligations or any other security for the Guaranteed Obligations or
for any guarantee or other liability in respect thereof;
(e) any agreement not to pursue or enforce or any failure to pursue or
enforce (whether voluntarily or involuntarily as a result of operation of law,
court order or otherwise) any right or remedy in respect of the Guaranteed
Obligations, any guarantee or other liability in respect thereof or any other
security for any of the foregoing; any sale, exchange, release, substitution,
compromise or other action in respect of any other security; or any failure to
create, protect, perfect, secure, insure, continue or maintain any Liens in any
other security;
(f) the exercise of any right or remedy available under the Fundamental
Documents, at law, in equity or otherwise in respect of any other security for
the Guaranteed Obligations or for any guarantee or other liability in respect
thereof, in any order and by any manner thereby permitted, including, without
limitation, foreclosure on any other security by any manner of sale thereby
permitted, whether or not every aspect of such sale is commercially reasonable;
and
(g) any other circumstance that might otherwise constitute a legal or
equitable discharge of, or a defense, set-off or counterclaim available to, the
Borrower, any Guarantor or a surety or guarantor generally, other than Discharge
of the Guaranteed Obligations.
4.4 Each Guarantor expressly waives any and all right to notice from
the Beneficiaries, the Borrower or any other Person of:
(a) any notice of any adverse change in the Borrower's financial
condition or of any other fact which might increase any Guarantor's risk;
(b) all notices that may be required by statute, rule of law or
otherwise, now or hereafter in effect, to preserve intact any rights against any
Guarantor, including without limitation, any demand, presentment and protest,
proof of notice of nonpayment under any of the Fundamental Documents and notice
of default or any failure on the part of Borrower or any other Person, to
perform and comply with any covenant, agreement, term or condition of any of the
Fundamental Documents;
(c) any notice of any assignment, sale, transfer, participation or
other disposition of any right, title or interest in the Fundamental Documents
by the Beneficiaries;
(d) any requirement of diligence on the part of the Beneficiaries or
any other Person;
(e) any requirement to exhaust any remedies or to mitigate the damages
resulting from any Default or Event of Default under any of the Fundamental
Documents;
(f) any right to require any Beneficiary, as a condition of payment or
performance by any Guarantor hereunder, to proceed against, or to exhaust or
have resort to any other security from or any deposit balance or other credit in
favor of, the Borrower or any other Person directly or indirectly liable for the
Guaranteed Obligations, or to pursue any other remedy or enforce any other
right; and any other defense based on an election of remedies with respect to
any other security for the Guaranteed Obligations or for any guarantee or other
liability in respect thereof, notwithstanding that any such election (including
any failure to pursue or enforce any rights or remedies) may impair or
extinguish any right of indemnification, contribution, reimbursement or
subrogation or other right or remedy of such Guarantor against the Borrower
or any other Person directly or indirectly liable for the Guaranteed Obligations
or any other security;
(g) any defense based on any Beneficiary's acts or omissions in the
administration of the Guaranteed Obligations, any guarantee or other liability
in respect thereof or any other security for any of the foregoing, and
promptness, diligence or any requirement that such Beneficiary create, protect,
perfect, secure, insure, continue or maintain any Liens in any other security;
(h) any defense based on or afforded by any Applicable Law that limits
the liability of or exonerates guarantors or sureties or that may in any other
way conflict with the terms of this Agreement; and
(i) any other circumstances whatsoever that might otherwise constitute
a legal or equitable discharge, release or defense of a guarantor or surety, or
that might otherwise limit recourse against such Guarantor.
4.5 Each of the Guarantors hereby waives any defense that it might
have based on a failure to remain informed of the financial condition of the
Borrower and of any other Guarantor and any circumstance affecting the ability
of the Borrower to perform under the Credit Agreement or any other Fundamental
Document or of any Guarantor to perform under this Agreement or any other
Fundamental Document.
4.6 If claim is ever made upon a Beneficiary for repayment or
recovery of any amount or amounts received by the Beneficiary in payment or on
account of any of the Guaranteed Obligations, and such Beneficiary repays all or
part of said amount by reason of (a) any judgment, decree or order of any court
or administrative body having jurisdiction over the Beneficiary or any of the
Beneficiary's property, or (b) any settlement or compromise of any such claim
effected by the Beneficiary with any such claimant (including Borrower), then
and in such event the Guarantors agree that any such judgment, decree, order,
settlement or compromise shall be binding upon the Guarantors, and
notwithstanding any termination hereof or the cancellation of any Guaranteed
Obligations, the Guarantors shall be and remain liable to such Beneficiary
hereunder for the amounts so repaid or recovered to the same extent as if such
amount had never originally been received by the Beneficiary.
4.7 Each Guarantor's guarantee shall not be affected by the
genuineness, validity, regularity or enforceability of the Guaranteed
Obligations or any other instrument evidencing any Guaranteed Obligations, or by
the existence, validity, enforceability, perfection, or extent of any collateral
therefor or by any other circumstance relating to the Guaranteed Obligations
which might otherwise constitute a defense to this Guarantee. None of the
Beneficiaries makes any representation or warranty in respect to any such
circumstances or shall have any duty or responsibility whatsoever to any
Guarantor in respect of the management and maintenance of the Guaranteed
Obligations.
5. Reimbursement and Contribution Rights.
5.1 Each Guarantor reserves the right to claim reimbursement from
the Borrower for the entire amount of any payment made by such Guarantor on
account of Guaranteed Obligations pursuant to this Agreement, but such Guarantor
agrees that its claim for reimbursement shall not arise until, and is subject in
all respects to, Discharge of the Guaranteed Obligations. Accordingly, each
Guarantor agrees not to assert, xxx upon, collect or otherwise enforce against
the Borrower (by set-off or otherwise) any claim for reimbursement on account of
any payment made by a Guarantor hereunder until Discharge of the Guaranteed
Obligations.
5.2 Each Guarantor agrees that if the Borrower at any time fails to
pay any reimbursement due to a Guarantor as contemplated in subsection 5.1 above
and such failure continues for a period of 60 days after Discharge of the
Guaranteed Obligations, then if and to the extent any such unreimbursed payment
due to such Guarantor under this Agreement is such that the Aggregate
Unreimbursed Payments of such Guarantor are greater than its Fair Share of the
Aggregate Unreimbursed Payments of All Guarantors, the Guarantor shall be
entitled to a contribution from each other Guarantor in the amount necessary to
cause such Guarantor's Aggregate Unreimbursed Payments to equal its Fair Share.
For these purposes:
(i) "Fair Share" means an amount equal to (i) the ratio of (x) the
Adjusted Maximum Amount of a Guarantor to (y) the Adjusted Maximum Amounts of
All Guarantors, multiplied by (ii) the Aggregate Unreimbursed Payments of All
Guarantors.
(ii) "Adjusted Maximum Amount" means the maximum aggregate amount of
the liability of a Guarantor under this Agreement (except that, for purposes
solely of this calculation, any assets or liabilities arising by virtue of any
rights to or obligations of reimbursement or contribution under this subsection
5.2 shall not be counted as assets or liabilities of such Guarantor).
(iii) "Aggregate Unreimbursed Payments" means, with respect to a
Person as of any date of determination, the aggregate net amount of all payments
made on or before such date by such Person under this Agreement or any other
written instrument providing for the guarantee of the Guaranteed Obligations for
which reimbursement by the Borrower to such Person is then due and payable as
contemplated in subsection 5.1 but has not been paid.
(iv) "All Guarantors" means the Guarantors under this Agreement and
any other Person who has entered into a written instrument agreeing to guarantee
the Guaranteed Obligations.
The allocation and right of contribution among the Guarantors set forth in this
subsection 5.2 shall not in any respect limit the Guarantors' liability under
this Agreement to the Beneficiaries.
5.3 Each of the Guarantors hereby waives, releases and discharges,
absolutely, unconditionally, irrevocably and forever, all rights of recourse,
reimbursement, contribution or indemnity and all other claims that the any of
the Guarantors might otherwise have or acquire
against the Borrower or any other Person liable for the payment of any of the
Guaranteed Obligations (including, without limitation, the owner of any interest
in collateral subject to a Lien securing any of the Guaranteed Obligations) and
all rights of subrogation that any of the Guarantors might otherwise have or
acquire against any Beneficiary by reason of any payment made by any of the
Guarantors under this Agreement or otherwise as a result of or in connection
with this Agreement, whether such rights or claims are conferred by agreement,
implied or created by law or otherwise, except only the reimbursement rights
reserved by Guarantors in subsection 5.1 and the contribution rights granted to
Guarantors under subsection 5.2.
6. Additional Guarantors. Each Guarantor acknowledges that,
pursuant to Section 5.12 of the Credit Agreement, the Borrower is required to
cause each Person which becomes a domestic Subsidiary of the Borrower or any
Guarantor to become a party hereto as an additional Guarantor (each such Person,
an "Additional Guarantor") under this Agreement by executing an Instrument of
Assumption and Joinder (a "Joinder") substantially in the form of Exhibit K
attached to the Credit Agreement. Upon delivery of any such Joinder to the
Administrative Agent or the Collateral Agent, as the case may be, notice of
which is hereby waived by the Guarantors, each such Additional Guarantor shall
be deemed a Guarantor hereunder and shall be as fully a party hereto as if such
Additional Guarantor were an original signatory hereto. Each Guarantor expressly
agrees that its obligations arising hereunder shall not be discharged,
diminished or otherwise affected (a) by the addition or release of any other
Guarantor hereunder, (b) any failure by the Borrower or any Guarantor to cause
any Subsidiary to become an Additional Guarantor or a Guarantor hereunder or (c)
by reason of the Collateral Agent's or any Secured Party's actions in effecting,
or failure to effect, any such Joinder, or in releasing any Guarantor hereunder,
in each case without the necessity of giving notice to or obtaining the consent
of any other Guarantor. This Agreement shall be fully effective as to any
Guarantor that is or becomes a party hereto regardless of whether any other
Person becomes or fails to become or ceases to be a Guarantor hereunder.
7. Encore Dissolution. The parties hereto acknowledge and agree
that upon the dissolution of Encore Promotions, Inc., as permitted by the terms
of the Credit Agreement, such entity shall no longer be a party to this
Agreement.
8. Setoff. Upon the occurrence and during the continuance of an
Event of Default, in addition to all other rights and remedies, the
Beneficiaries and each and every affiliate of the Beneficiaries (and any Person
holding a participation interest in any of the Guaranteed Obligations) are
hereby irrevocably authorized, without prior notice to the Guarantors, to set
off any balances held for the account of or any other liability owing by the
Beneficiaries or any such affiliate or participant to Guarantors at any of their
offices against any of the Guaranteed Obligations, as the Beneficiaries or such
affiliate or participant may elect.
9. Notices. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the Guarantors hereto shall
be in writing (including teletransmissions), shall be given or made at the
address or telecopier number set forth on the signature page hereto, or at such
other address or telecopier number as Guarantors may hereafter specify to the
Administrative Agent in writing, and (unless otherwise specified herein) shall
be
deemed delivered on receipt if teletransmitted or delivered by hand or five
Business Days after mailing, and all mailed notices shall be by registered mail,
postage prepaid.
10. Expenses. The Guarantors shall be jointly and severally liable
and shall (i) pay to the Beneficiaries immediately on demand all costs and
expenses of the Beneficiaries, including all reasonable fees and disbursements
of the Beneficiaries' counsel incurred in connection with the collection or
enforcement (in connection with any suit, action, proceeding or otherwise) or
attempted collection or attempted enforcement (in connection with any suit,
action, proceeding or otherwise) of the Beneficiaries' rights under this
Agreement and (ii) to the Administrative Agent and the Collateral Agent
immediately on demand all costs and expenses of the Administrative Agent and the
Collateral Agent, including all reasonable fees and disbursements of the
Administrative Agent's and the Collateral Agent's counsel incurred in connection
with any amendment, modification or waiver hereof or consent pursuant hereto,
and to indemnify and hold harmless the Administrative Agent and the Collateral
Agent and their respective directors, officers, employees, agents and Affiliates
from and against any and all claims, losses, damages, obligations, liabilities,
penalties, costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) of any kind or nature whatsoever, whether direct,
indirect or consequential, that may at any time be imposed on, incurred by or
asserted against any such indemnified party as a result of, arising from or in
any way relating to this Guarantee or the collection or enforcement of the
Guaranteed Obligations.
11. No Waiver of Remedies. No failure to exercise and no delay in
exercising, on the part of the Beneficiaries, any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges provided under this Agreement are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
12. Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York
without reference to conflict of laws principles.
13. Entire Agreement; Modifications. This Agreement contains th
entire agreement between the Beneficiaries and the Guarantors with respect to
all subject matters contained herein. This Agreement cannot be amended, modified
or changed in any way except by a written instrument executed by Guarantors and
accepted by the Administrative Agent.
14. Successors and Assigns. The covenants, representations,
warranties and agreements herein set forth shall be binding upon the Guarantors
and their successors and assigns and shall inure to the benefit of the
Beneficiaries, their successors and assigns.
15. Severability. The unenforceability or invalidity of any
provision or provisions of this Agreement shall not render any other provision
or provisions herein contained unenforceable or invalid.
16. Jurisdiction and Venue. For purposes of this Agreement, each of
the Guarantors and the Beneficiaries hereby irrevocably consent and submit to
the nonexclusive jurisdiction and venue of all federal and state courts located
in the State of New York. At the Beneficiaries' option, the Guarantors may be
joined in any action or proceeding commenced by the Beneficiaries against the
Borrower in connection with or based on the Fundamental Documents to which the
Borrower is a party, or any provision of any thereof, and recovery may be had
against the Guarantors in such action or proceeding or in any independent action
or proceeding against the Guarantors, without any requirement that the
Beneficiaries first assert, prosecute or exhaust any remedy or claim against
Borrower. Each Guarantor and each Beneficiary hereby irrevocably waives (to the
fullest extent permitted by applicable law) any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of, under or relating to this Agreement or any other Fundamental Document
brought in any federal or state court located in the State of New York, and
hereby further irrevocably waives (to the fullest extent permitted by applicable
law) any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum. Nothing in this Section shall
affect any right that the Beneficiaries may otherwise have to bring any action
or proceeding relating to this Agreement against any Guarantor or its properties
in any jurisdiction in which it may lawfully do so, provided that no such action
or proceeding may be commenced in a court located outside the United States
except an action or proceeding to enforce a judgment rendered by a court in the
United States in the courts of another jurisdiction. Each guarantor and each
beneficiary hereby knowingly, voluntarily and intentionally waives (to the
fullest extent permitted by applicable law) any right it may have to a trial by
jury of any dispute arising under or relating to this agreement or any
fundamental document.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Any signature delivered
by a party by facsimile or electronic transmission shall be deemed to be an
original signature thereto.
18. Defects Waived. This Agreement is effective notwithstanding any
defect in the validity or enforceability of any instrument or document,
including but not limited to the Credit Agreement or any of the Security
Documents.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Guarantors have executed this Amended and
Restated Consolidated Subsidiary Guarantee Agreement as of the date first
written above.
BUFFALO CHINA, INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
THC SYSTEMS, INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
ENCORE PROMOTIONS, INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
DELCO INTERNATIONAL, LTD.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
SAKURA, INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
KENWOOD SILVER COMPANY, INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Signature Page to Amended and Restated
Consolidated Subsidiary Guarantee Agreement
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
ONEIDA SILVERSMITHS, INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
ONEIDA FOOD SERVICE, INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
ONEIDA INTERNATIONAL, INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
Accepted and Agreed to:
JPMORGAN CHASE BANK
as Administrative Agent and
Collateral Agent
By: /s/ XXXXX XXXXX
--------------------
Name: Xxxxx Xxxxx
Title: Managing Director
Signature Page to Amended and Restated
Consolidated Subsidiary Guarantee Agreement
The following identified Schedules to the foregoing Amended and Restated
Consolidated Subsidiary Guarantee Agreement are not filed with such Agreement.
To the extent that any such Schedules have not been otherwise filed with the
Securities & Exchange Commission, these Schedules will be furnished
supplementally to the Securities & Exchange Commission upon request.
Schedules:
Schedule I: List of subsidiary "Guarantors"
