Exhibit 10.6
EXECUTION VERSION
AMENDED AND RESTATED CONSOLIDATED
SUBSIDIARY SUBORDINATION AGREEMENT
This Amended and Restated Consolidated Subsidiary Subordination
Agreement (as this agreement may be further amended, amended and restated,
supplemented or otherwise modified, renewed or replaced from time to time, this
"Agreement"), dated as of August 9, 2004, is among ONEIDA LTD., a New York
corporation (the "Borrower"), the parties listed on Schedule I hereto (and
together with each direct or indirect domestic subsidiary of 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"), ONEIDA CANADA, LIMITED ("Oneida Canada"), GLOBAL CHARM TRADING,
LIMITED ("Global Charm") and JPMORGAN CHASE BANK, ("JPMorgan Chase"), as
administrative agent (in such capacity, the "Administrative Agent") for the
lenders which now are or hereafter become parties to the Credit Agreement (the
"Lenders") and as collateral agent (in such capacity, the "Collateral Agent")
for the Secured Parties (as defined herein) under the Security Documents
referred to below.
RECITALS
A. 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;
B. WHEREAS, (i) Borrower from time to time extends credit to the
Guarantors, Oneida Canada and Global Charm in the form of loans, advances,
accounts receivable, administrative services and expenses, and other
inter-company accommodations made by the Borrower to the Guarantors, Oneida
Canada and Global Charm and (ii) the Guarantors, Oneida Canada and Global Charm
from time to time extend credit to the Borrower in the form of loans, advances,
accounts receivable, administrative services and expenses, and
other inter-company accommodations made by the Guarantors, Oneida Canada and
Global Charm to the Borrower;
C. WHEREAS, in connection with the Existing Credit Agreement, the
Borrower and each of its direct and indirect subsidiaries have agreed to
subordinate the payment of such inter-company accommodations to the prior
payment of the obligations under the Existing Credit Agreement pursuant to that
certain (i) Amended and Restated Subsidiary Subordination Agreement dated as of
April 27, 2001 among the Borrower, Buffalo China, Encore, THC, Delco, Sakura,
the Existing Administrative Agent and the Existing Collateral Agent; (ii) that
certain Subsidiary Subordination Agreement dated as of April 23, 2002 among the
Borrower, Kenwood, the Existing Administrative Agent and the Existing Collateral
Agent; (iii) that certain Subsidiary Subordination Agreement dated as of July
25, 2003 among the Borrower, Silversmiths, the Existing Administrative Agent and
the Existing Collateral Agent; (iv) that certain Subsidiary Subordination
Agreement dated as of July 25, 2003 among the Borrower, Food Service, the
Existing Administrative Agent and the Existing Collateral Agent, and (v) the
Amended and Restated Subordination Agreement dated as of April, 2001 among the
Borrower, THC Systems, Inc., Buffalo China, Inc., Encore Promotions, Inc.,
Sakura, Inc., Delco International, Ltd., Allstate Life Insurance Company,
Allstate Insurance Company and Pacific Life Insurance Company (together, as the
same have been amended, supplemented or otherwise modified, the "Existing
Subsidiary Subordination Agreements")
D. WHEREAS, Borrower's obligations under the Existing Credit Agreement
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
Administrative Agent, the Collateral Agent, the Lenders and the Existing Standby
L/C Issuers (as the same may be further amended, amended and restated,
supplemented or otherwise modified, renewed or replaced from time to time, the
"Credit Agreement");
E. WHEREAS, it is a condition precedent to the restructuring of the
Existing Obligations as contemplated under the Credit Agreement and to the
extension of additional credit contemplated under the Credit Agreement that,
among other things: (i) 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 be
further amended, amended and restated, supplemented or otherwise modified,
renewed or replaced from time to time, the "Amended and Restated Security
Agreement"); (ii) each of the Guarantors execute and deliver to the
Administrative Agent an Amended and Restated Consolidated Subsidiary Guarantee
Agreement dated as of the date hereof (as the same may be further amended,
amended and restated, supplemented or otherwise modified, renewed or replaced
from time to time, the "Amended and Restated Consolidated Guarantee Agreement")
guaranteeing the payment, in full, when due of the Borrower's obligations under
the Credit Agreement; and (iii) the Borrower and the Guarantors amend and
restate the Existing Subsidiary Subordination Agreements by entering into this
Agreement;
F. WHEREAS, each of the Guarantors, Oneida Canada and Global Charm
will obtain benefits as a result of the extensions of credit contemplated
pursuant to the Credit
agreement, which benefits are hereby acknowledged, and, accordingly, each of the
Guarantors, Oneida Canada and Global Charm desire to execute and deliver this
Agreement; and
G. WHEREAS, in order to induce the Lenders and the Existing Standby
L/C Issuers to restructure the Existing Obligations and in consideration thereof
and any and all credit at any time extended under the Credit Agreement, the
Borrower and the Guarantors hereby amend and restate the Existing Subsidiary
Subordination Agreement as more fully set forth herein and Oneida Canada and
Global Charm agree to join this Agreement.
NOW, THEREFORE, in consideration of the foregoing and further good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, to induce the Administrative Agent, the Collateral Agent, and each
of the Lenders and each of the Existing Standby L/C Issuers to enter into the
Credit Agreement and to restructure the Existing Obligations and extend
continued credit to the Borrower hereunder, the Borrower, each Guarantor, Oneida
Canada and Global Charm hereby agree for the benefit of the Administrative
Agent, the Collateral Agent, each of the Lenders and each of the Existing
Standby L/C Issuers as follows:
1. Definitions.
1.1 As used herein, the following terms shall have the following
meanings:
"Administrative Agent" shall have the meaning given to such term in
the first paragraph of 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.
"Amended and Restated Consolidated Guarantee Agreement" shall have the
meaning given to such term in paragraph E of the Recitals.
"Amended and Restated Security Agreement" shall have the meaning given
to such term in paragraph E of the Recitals.
"Collateral Agent" shall have the meaning given to such term in the
first paragraph of this Agreement.
"Credit Agreement" shall have the meaning given to such term in
paragraph D of the Recitals.
"Event of Default" shall mean an Event of Default as defined in the
Credit Agreement (after giving effect to any applicable cure period) which is
not waived in writing by the Required Lenders.
"Existing Credit Agreement" shall have the meaning given to such term
in paragraph A of the Recitals.
"Existing Lenders" shall have the meaning given to such term in
paragraph A of the Recitals.
"Existing Obligations" shall have the meaning given to such term in
paragraph D of the Recitals.
"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 Subordination Agreements" shall have the
meaning given to such term in paragraph A of the Recitals.
"Fundamental Documents" shall have the meaning given to such term in
the Credit Agreement.
"Global Charm" shall have the meaning given to such term in the first
paragraph of this Agreement.
"Guaranteed Obligations" shall have the meaning given to such term in
the Amended and Restated Consolidated Guarantee Agreement.
"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
provisions 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.
"Intercreditor Agreement" shall mean that certain Second Amended and
Restated Collateral Agency and Intercreditor Agreement dated as of the date
hereof by and among the Borrower, the Guarantors, the Administrative Agent, the
Collateral Agent, the Lenders, the issuer of the Trade Letters of Credit and the
Existing Standby L/C Issuers (as the same may be further amended, amended and
restated, supplemented or otherwise modified, renewed, or replaced from time to
time).
"Obligations" shall have the meaning given to such term in the Credit
Agreement.
"Oneida Canada" shall have the meaning given to such term in the first
paragraph of this Agreement.
"Required Lenders" 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.
"Senior Liabilities" shall mean all liabilities of the Borrower and
each of the Guarantors to the Administrative Agent, the Collateral Agent and the
Secured Parties under the Credit Agreement and the Amended and Restated
Consolidated Guarantee Agreement, respectively, including, without limitation,
the Obligations and the Guaranteed Obligations, together with all fees, late
charges, premiums, costs and expenses payable under the Credit Agreement and the
Amended and Restated Consolidated Guarantee Agreement.
"Subordinated Liabilities" shall mean all liabilities of the Borrower
to any of the Guarantors, Oneida Canada and Global Charm and each of the
Guarantors to the Borrower for loans, advances, accounts receivable,
administrative services and expenses, and all other inter-company
accommodations, including, without limitation, all amounts in the inter-company
account maintained by Borrower on behalf of each of the Guarantors, Oneida
Canada and Global Charm, but excluding all such amounts payable to the Borrower
if the Collateral Agent shall have a perfected security interest in the
Borrower's right to receive payment thereof.
"Subordinated Loan Documents" shall mean all credit accommodations,
notes, loan agreements and any other agreements and documents, now or hereafter
existing, creating, evidencing, guaranteeing, securing or relating to any or all
of the Subordinated Liabilities, together with all amendments, modifications,
renewals or extensions thereof.
"Trade Letters of Credit" shall have the meaning given 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,
supplemented or otherwise modified (subject to any restrictions on such
amendments, 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. SUBORDINATION.
2.1 Subordination to Senior Liabilities. Except as set forth in
Section 2.2 of this Agreement, the payment of all Subordinated Liabilities shall
be postponed and subordinated to the payment in full of all Senior Liabilities,
and no payments or other distributions whatsoever, including, without
limitation, payments of interest in respect of any Subordinated Liabilities,
shall be made, nor shall any property or assets of the Borrower, the Guarantors,
Oneida Canada or Global Charm, as the case may be, be applied to the purchase or
other acquisition or retirement of any Subordinated Liabilities, nor given to
the Borrower, the Guarantors, Oneida Canada or Global Charm, as the case may be,
as collateral security to secure repayment of same, while any Senior Liabilities
shall be outstanding.
2.2 Permitted Payments. Notwithstanding anything in Section 2.1 to
the contrary, until such time as an Event of Default occurs, (i) each of the
Guarantors, Oneida Canada and Global Charm, as the case may be, may make, and
Borrower may receive, and (ii) the Borrower may make, and the Guarantors, Oneida
Canada or Global Charm may receive, as the case may be, payments of principal
and interest on account of Subordinated Liabilities in a manner consistent with
past practice. Upon the occurrence of an Event of Default, all payments on
account of Subordinated Liabilities shall automatically cease, and the Borrower,
the Guarantors, Oneida Canada and Global Charm, as the case may be, shall not
make, and the Borrower, the Guarantors, Oneida Canada or Global Charm shall not
receive, any such payments unless the Secured Parties shall expressly consent
thereto in writing.
2.3 Rights of Secured Parties to Collect Subordinated Liabilities.
Upon any Insolvency Proceeding relating to the Borrower or any Guarantor, the
Senior Liabilities shall first be paid in full before the Borrower, the
Guarantors, Oneida Canada or Global Charm, as the case may be, shall be entitled
to receive and/or to retain any payment or distribution in respect of the
Subordinated Liabilities, and in order to implement the foregoing: (i) all
payments and distributions of any kind or character in respect of the
Subordinated Liabilities to which the Borrower, the Guarantors, Oneida Canada or
Global Charm, as the case may be, would be entitled but for the provisions of
this Agreement will be made directly to the Administrative Agent for the benefit
of the Secured Parties; and (ii) the Borrower, the Guarantors, Oneida Canada or
Global Charm, as the case may be, shall promptly file a claim or claims, in the
form required in such proceedings, for the full outstanding amount of the
Subordinated Liabilities, and shall cause said claim or claims to be approved
and all payments and other distributions in respect thereof to be made directly
to the Secured Parties.
2.4 Protection of Secured Parties' Rights in Subordinated
Liabilities. So long as an Event of Default has occurred and is continuing, the
Borrower, each Guarantor, Oneida Canada and Global Charm shall make all payments
on account of Subordinated Liabilities directly to the Administrative Agent for
the benefit of the Secured Parties, or if (i) the Borrower receives any payment
or other distribution of any kind or character from any Guarantor or any other
source whatsoever in respect of any of the Subordinated Liabilities or
otherwise, other than
as expressly permitted by the terms of this Agreement, or (ii) the Guarantors,
Oneida Canada or Global Charm, as the case may be, receives any payment or other
distribution of any kind or character from the Borrower or any other source
whatsoever in respect of any of the Subordinated Liabilities or otherwise, other
than as expressly permitted by the terms of this Agreement, such payment or
other distribution shall be received in trust for the Secured Parties and
promptly turned over by the Borrower, the Guarantors, Oneida Canada or Global
Charm, as the case may be, to the Administrative Agent for the benefit of the
Secured Parties. The Borrower, the Guarantors, Oneida Canada and Global Charm
will cause to be clearly inserted in any promissory note or other instrument
(other than such promissory notes or instruments pledged to the Collateral
Agent) which at any time evidences any of the Subordinated Liabilities a
statement to the effect that the payment thereof is subordinated in accordance
with the terms of this Agreement. The Borrower, the Guarantors, Oneida Canada
and Global Charm will execute such further documents and instruments and take
such further action as the Secured Parties may from time to time reasonably
request to carry out the intent of this Agreement. The Borrower, the Guarantors,
Oneida Canada and Global Charm hereby irrevocably appoint the Administrative
Agent its attorney in fact, said appointment being coupled with an interest, to
execute such further documents and instruments and take such further action on
behalf of the Borrower, the Guarantors, Oneida Canada and Global Charm, as the
case may be, as the Administrative Agent may from time to time deem reasonable
to carry out the intent of this Agreement, including, without limitation, the
actions set forth in Section 2.3 hereof.
2.5 Treatment of Payment of Subordinated Liabilities. All payments
and distributions received by the Administrative Agent for the benefit of the
Secured Parties in respect of the Subordinated Liabilities, to the extent
received in or converted into cash, may be applied by the Administrative Agent
first to the payment of any and all expenses (including attorneys' fees and
disbursements and the allocated fees, expenses and cost of in-house counsel)
paid or incurred by the Administrative Agent or the Secured Parties in enforcing
this Agreement or in endeavoring to collect or realize upon any of the
Subordinated Liabilities, and any balance thereof shall be applied by the
Administrative Agent toward the payment of the Senior Liabilities in accordance
with the provisions of the Intercreditor Agreement.
2.6 Prohibition on Changes in Subordinated Liabilities. Except as
permitted by the Credit Agreement and if no Event of Default shall have occurred
and be continuing, the Borrower, the Guarantors, Oneida Canada and Global Charm,
as the case may be, will not: (i) cancel, waive, or forgive any Subordinated
Liabilities or any rights in respect thereof, or (ii) convert any Subordinated
Liabilities into capital stock of any of the Guarantors.
2.7 Continuing Agreement. This Agreement shall in all respects be a
continuing agreement and shall remain in full force and effect until all Senior
Liabilities have been paid in full.
2.8 Permitted Changes in Senior Liabilities. The Administrative
Agent, the Collateral Agent and the Secured Parties may, from time to time, take
any or all of the following actions without affecting the subordination set
forth in this Agreement (in each case, without the necessity of giving notice to
or obtaining the consent of any Guarantor): (i) retain or obtain a security
interest in any property to secure any of the Senior Liabilities; (ii) retain or
obtain the primary or secondary obligation of any other person with respect to
any of the Senior Liabilities; (iii) extend, renew, alter, exchange or increase
the principal amount of any of the Senior Liabilities; (iv) release or
compromise any obligation of any nature of any Guarantor with respect to any of
the Senior Liabilities; and (v) release any security interest or lien in, allow
a security interest or lien to be unperfected, surrender, release or permit any
substitution or exchange for, all or any part of any property securing any of
the Senior Liabilities, or extend, renew or release, compromise, alter or
exchange any obligations of any nature of any Guarantor with respect to any such
property.
3. REPRESENTATIONS AND WARRANTIES. Each of the borrower, each
guarantor, oneida canada and global charm hereby represents and warrants that:
(i) it has the necessary power and capacity to make and perform this agreement
and such making and performance have been duly authorized by all necessary
corporate action; (ii) the making and performance of this agreement does not and
will not violate, in any material respect, any provision of law or regulation or
result in the breach of, or constitute a default or require any consent under,
any material agreement to which it is a party or by which any of its properties
may be bound; and (iii) this agreement is the legal, valid and binding
obligation of the borrower, each guarantor, oneida canada and global charm,
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency and similar laws affecting
creditor's rights generally and to general principles of equity, whether such
enforceability is considered in a proceeding at law or in equity.
4. ADDITIONAL GUARANTORS AND ADDITIONAL SUBORDINATED LIABILITIES.
Each guarantor recognizes 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 borrower, the
guarantors, oneida canada and global charm, 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. The borrower, each
guarantor, oneida canada and global charm 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 party hereto, in each case without the necessity of
giving notice to or obtaining the consent of the borrower, any guarantor, oneida
canada or global charm. 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. The
subordinated liabilities of each additional guarantor shall be postponed and
subordinated to the payment in full of senior liabilities pursuant to the terms
hereof.
5. MISCELLANEOUS.
5.1 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.
5.2 Remedies Cumulative: No Waiver. The rights, powers and
remedies of the Administrative Agent, the Collateral Agent, and the Secured
Parties provided in this Agreement and any of the Fundamental Documents are
cumulative and not exclusive of any right, power or remedy provided by law or
equity. No failure or delay on the part of the Administrative Agent or
the Secured Parties in the exercise of any right, power or remedy shall
operate as a waiver thereof, nor shall any single or partial exercise preclude
any other or further exercise thereof, or the exercise of any other right, power
or remedy.
5.3 Notices. Notices and communications under this Agreement
shall be in writing and shall be given by: (i) hand delivery, (ii) first class
mail (postage prepaid), or (iii) reliable overnight commercial courier (charges
prepaid). Notice by overnight courier shall be deemed to have been given and
received on the date scheduled for delivery. Notice by mail shall be deemed to
have been given and received three (3) calendar days after the date first
deposited in the United States mail. Notice by hand delivery shall be deemed to
have been given and received upon delivery. All notices to the Secured Parties
shall be addressed to the Administrative Agent. Notices shall be sent or
delivered to the addresses of the parties set forth in the Credit Agreement or
the Amended and Restated Consolidated Guarantee Agreement, as the case may be.
5.4 Governing Law. This Agreement shall be construed in
accordance with and governed by, and construed and interpreted in accordance
with, the laws of the State of New York without reference to conflict of
laws principles.
5.5 Integration; Amendment. This Agreement and the other
Fundamental Documents constitute the sole agreement of the parties with respect
to the subject matter hereof and thereof and supersede all oral negotiations
and prior writings with respect to the subject matter hereof and thereof.
No amendment of this Agreement, and no waiver of any one or more of the
provisions hereof, shall be effective unless set forth in writing and signed
by the parties hereto.
5.6 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective heirs,
executors, administrators, successors and permitted assigns.
5.7 Severability. The illegality, unenforceability or
inconsistency of any provision of this Agreement shall not affect or impair
the legality, enforceability or consistency of the remaining provisions of
this Agreement.
5.8 Judicial Proceedings; Waivers. For purposes of this
Agreement, the parties hereby irrevocably consent and submit to the nonexclusive
jurisdiction and venue of all federal and state courts located in the State of
New York. Each party 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 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 Administrative
Agent and the Secured Parties may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower, any Guarantor,
Oneida Canada, Global Charm 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 party 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.
5.9 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.
5.10 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 parties hereto have executed this Amended and
Restated Consolidated Subsidiary Subordination Agreement as of the date first
written above.
BORROWER:
ONEIDA LTD.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
GUARANTORS:
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
Signature Page to Amended and Restated Consolidated
Subsidiary Subordination Agreement
SAKURA, INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
KENWOOD SILVER COMPANY, INC.
By: /s/ XXXXX X. XXXXXX
-------------------
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
ONEIDA CANADA, LIMITED
By: /s/ XXXXX X. XXXX
-----------------
Name: Xxxxx X. Xxxx
Title: Managing Director
Signature Page to Amended and Restated Consolidated
Subsidiary Subordination Agreement
GLOBAL CHARM TRADING, LIMITED
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Director
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 Subordination 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"
