EXHIBIT 10.2
EXECUTION COPY
AMENDMENT NO. 14
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment No. 14 (the "Amendment"), dated as of April 30, 2004,
is among ONEIDA LTD., a New York corporation (the "Borrower" or "Oneida"),
JPMORGAN CHASE BANK (formerly known as The Chase Manhattan Bank), as
Administrative Agent under the Amended and Restated Credit Agreement referred to
below ("Administrative Agent"), and the Lenders which are parties to the Amended
and Restated Credit Agreement referred to below (the "Lenders").
R E C I T A L S
A. Borrower, the Administrative Agent, and the Lenders are parties to an
Amended and Restated Credit Agreement dated as of April 27, 2001, as
amended by an Amendment No. 1 dated as of May 31, 2001, a Waiver and
Amendment No. 2 dated as of December 7, 2001, an Amendment No. 3 dated as
of April 23, 2002, an Amendment No. 4 dated as of August 24, 2003, a
Limited Waiver and Amendment No. 5 dated as of October 31, 2003, a Limited
Waiver and Amendment No. 6 dated as of November 21, 2003, Limited Waiver
and Amendment No. 7 dated as of December 12, 2003, Limited Waiver and
Amendment No. 8 dated as of January 30, 2004, a Limited Waiver and
Amendment No. 9 dated as of February 27, 2004, a Limited Waiver and
Amendment No. 10 dated as of March 12, 2004, a Limited Waiver and Amendment
No. 11 dated as of March 31, 2004, a Limited Waiver and Amendment No. 12
dated as of April 14, 2004 and a Limited Waiver and Amendment No. 13 dated
as of April 30, 2004 (the "Credit Agreement").
B. Borrower has requested that the Administrative Agent and the Lenders amend
the Credit Agreement as set forth herein (as defined in the Credit
Agreement).
C. The Administrative Agent and the Lenders are willing to amend the Credit
Agreement subject to and upon the terms and conditions set forth herein.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. All capitalized terms used in this Amendment which are not
otherwise defined shall have the meanings given to those terms in the Credit
Agreement, except where such terms are amended herein.
2. Amendment to Section 1.01 of Credit Agreement. Section 1.01 of the
Credit Agreement is hereby amended by inserting the following new defined term
in the appropriate alphabetical order:
"Amendment No. 14 Effective Date" means the date
on which all the conditions to the Amendment No.
14, dated as of April 30, 2004, have been
satisfied.
3. Amendment to Section 6.03(a) of the Credit Agreement. Section 6.03(a) of
the Credit Agreement is hereby amended by (A) replacing clause (vii) appearing
therein in its entirety and inserting the following clause (vii) in lieu
thereof:
(vii) Borrower and its Subsidiaries may sell,
transfer, or otherwise dispose of (in one
transaction or a series of transactions) the
manufacturing and/or distribution centers and
other miscellaneous assets and machinery located
in Mexico, Canada, Italy and China for an amount
not to exceed
$10,000,000 in the aggregate for all such sales,
transfers, or dispositions after the Amendment No.
11 Effective Date.
; and (B) deleting the words "The amount of each such prepayment of Loans under
this Agreement" appearing in the second sentence therein and inserting in lieu
thereof the words "The amount of the prepayment required pursuant to clause (vi)
above".
4. Amendment to Section 9.04(b) of the Credit Agreement. Section 9.04(b) of
the Credit Agreement is hereby amended by replacing clause (iii) appearing in
the proviso in the first sentence thereof and inserting the following in lieu
thereof:
(iii) except in the case of an assignment of the
entire remaining amount of the assigning Lender's
Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment
(determined as of the date the Assignment and
Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not
be less than $5,000,000 unless the Administrative
Agent otherwise consents and each Lender agrees
that it will not enter into an assignment that
would result in such Lender's Commitment being
less than $5,000,000.
5. Representations and Warranties. The Borrower represents and warrants to the
Administrative Agent and the Lenders that the following statements are true,
correct and complete:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower in the Credit Agreement, as amended hereby, is
true and correct on and as of the date of this Amendment.
(b) No Default or Event of Default. After giving effect to this
Amendment, no Default or Event of Default has occurred and is continuing.
(c) Execution, Delivery and Enforceability. This Amendment has been
duly and validly executed and delivered by the Borrower and constitutes its
legal, valid and binding obligation, enforceable against the Borrower in
accordance with its terms.
6. Conditions to Effectiveness of Amendment. This Amendment shall be
effective on the date (the "Effective Date") when and if each of the following
conditions is satisfied:
(a) Consent of Guarantors. Each of the Guarantors shall have executed
and delivered to the Administrative Agent the Consent of Guarantors attached to
this Amendment.
(b) No Default or Event of Default; Accuracy of Representations and
Warranties. The Borrower shall deliver to the Administrative Agent a certificate
of a Financial 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 Transaction 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.
(c) Expense Reimbursements. The Borrower shall have paid all
reasonable invoices presented to the Borrower for expense reimbursements
(including reasonable attorneys' and financial advisors' fees and disbursements)
due to the Administrative Agent (including, without limitation, the fees and
expenses of Xxxxxx, Xxxxx & Xxxxxxx LLP and Xxxxxxx & Marsal) or any Lender in
accordance with Section 9.03 of the Credit Agreement.
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(d) Execution by Lenders. The Administrative Agent shall have received
a counterpart of this Amendment duly executed and delivered by the Borrower, the
Administrative Agent, and the Required Lenders.
(e) Amendment Pursuant to Note Agreement. The Administrative Agent
shall have received a copy of an executed amendment to the 2001 Amended and
Restated Note Agreement governing the senior notes of Borrower due May 31, 2005
(the "2001 Amended and Restated Note Agreement"), duly executed by Borrower and
the noteholders described therein, amending Section 7.4 of the 2001 Amended and
Restated Note Agreement in a form reasonably satisfactory to the Administrative
Agent.
7. Further Assurances. The Borrower agrees, at its own expense, to execute,
acknowledge, deliver and cause to be duly filed all such further instruments and
documents and take all such actions as the Collateral Agent may from time to
time reasonably request to better assure, preserve, protect and perfect the
Security Interest (as defined in the Security Agreement) and the rights and
remedies created thereby. In addition, as further security for payment and
performance of the obligations under the Credit Agreement and as consideration
for the Administrative Agent's and the Lenders' agreement to enter into this
Amendment, the Borrower hereby further agrees to grant a perfected pledge and
security interest in any additional collateral as the Collateral Agent may
reasonably request.
8. Release. For purposes of this Section, the following terms shall have
the following definitions:
(a) "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.
(b) "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
Transaction 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
Transaction 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 Transaction Documents or any Defaults or Events of Default
occurring under the Credit Agreement or the Transaction Documents.
9. Acknowledgement. The Borrower hereby confirms and acknowledges as of the
date hereof that it is validly and justly indebted to the Administrative Agent
and the Lenders for the payment of all obligations under the Credit Agreement
without offset, defense, cause of action or counterclaim of any kind or nature
whatsoever.
10. Confirmation of Credit Agreement and Security Documents. Except as
amended by this Amendment, all the provisions of the Credit Agreement remain in
full force and effect from and after the date hereof, and the Borrower hereby
ratifies and confirms the Credit Agreement and each of the documents executed in
connection therewith. This Amendment shall be limited precisely as written and
shall not be deemed (a) to be a consent granted pursuant to, or a waiver or
modification of, any other term or condition of the Credit Agreement or any of
the instruments or agreements referred to therein or (b) to prejudice any right
or rights which the Administrative Agent or the Lenders may now have or have in
the future under or in connection with the Credit Agreement or any of the
instruments or agreements referred to therein. From and after the date hereof,
all references in the Credit Agreement to "this Agreement", "hereof", "herein",
or similar terms, shall refer to the Credit Agreement as amended by this
Amendment. Borrower also ratifies and confirms that the Security Documents
remain in full force and effect in accordance with their terms and are not
impaired or affected by this Amendment.
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11. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. Delivery of an executed
signature page to this Amendment by facsimile transmission shall be as effective
as delivery of a manually signed counterpart.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the day and year first above written.
ONEIDA LTD.
By: /s/ XXXXX X. XXXXX
------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
JPMORGAN CHASE BANK (formerly known
as The Chase Manhattan Bank),
individually and as Administrative
Agent
By: /s/ XXXXX XXXXX
---------------
Name: Xxxxx Xxxxx
Title: Managing Director
BANC OF AMERICA STRATEGIC SOLUTIONS, INC.
(assignee of Bank of America, Inc.)
By: /s/ XXXXXX X. XXXXXX
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Officer
FLEET NATIONAL BANK
By: /s/ XXXXXX X. XXXXXX
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Officer
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ XXXXXXX X. XXXXXXX
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By: /s/ XXXXXX X. XXXXX
-------------------
Name: Xxxxxx X. Xxxxx
Title: Director
DEUTSCHE BANK TRUST COMPANY AMERICAS
by DB SERVICES NEW JERSEY, INC.
By: /s/ XXXXXX XXXXXXXX
-------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
Signature Page to Amendment No. 14
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QUADRANGLE MASTER FUNDING LTD.
By: /s/ XXXXXX XXXXXXXXXX
---------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Member
SPS HIGH YIELD LOAN TRADING
By: /s/ XXXXX XXXXX
---------------
Name: Xxxxx Xxxxx
Title: Managing Director
ANCHORAGE CAPITAL MASTER OFFSHORE, LTD.
By: /s/ XXXXXXX XXXXX
-----------------
Name: Xxxxxxx Xxxxx
Title: Member
Signature Page to Amendment No. 14
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CONSENT OF GUARANTORS
Each of the undersigned is a party to a Subsidiary Guarantee
Agreement, a Subordination Agreement and one or more Security Documents and is a
Guarantor of the obligations of the Borrower under the Credit Agreement referred
to in the foregoing Amendment No. 14 to the Amended and Restated Credit
Agreement (the "Amendment"). Each of the undersigned Guarantors hereby (a)
consents to the foregoing Amendment, (b) acknowledges that, notwithstanding the
execution and delivery of the foregoing Amendment, the obligations of each of
the undersigned Guarantors are not impaired or affected and the Subsidiary
Guarantee Agreement, the Subordination Agreement and Security Documents continue
in full force and effect, and (c) ratifies and affirms the terms and provisions
of the Subsidiary Guarantee Agreement, the Subordination Agreement and Security
Documents. All capitalized terms used herein which are not otherwise defined
shall have the meanings given to those terms in the Credit Agreement.
Each of the undersigned hereby agree, at its own expense, to execute,
acknowledge, deliver and cause to be duly filed all such further instruments and
documents and take all such actions as the Collateral Agent may from time to
time reasonably request to better assure, preserve, protect and perfect the
Security Interest (as defined in the Security Agreement) and the rights and
remedies created thereby. In addition, as further security for payment and
performance of the obligations under the Subsidiary Guarantee Agreement and as
consideration for the Administrative Agent's and the Lenders' agreement to enter
into the Amendment, each of the undersigned hereby further agrees to grant a
perfected pledge and security interest in any additional collateral as the
Collateral Agent may reasonably request.
Excluding only the continuing obligations of the Lenders and the
Administrative Agent under the express terms of the Credit Agreement, the
Transaction Documents and the Amendment, the undersigned hereby releases,
acquits and forever discharges the Lenders and the Administrative Agent, and
each of them, and their respective Related Parties (as defined below) of and
from any and all Claims (as defined below) arising out of, related or in any way
connected with the Credit Agreement, the Transaction Documents or the
transactions contemplated by any thereof, including, without limitation, any
action or failure to act, prior to the execution of the Amendment, in response
to or otherwise in connection with the events or circumstances arising under or
otherwise related to the Credit Agreement, the Transaction Documents or any
Defaults or Events of Default occurring under the Credit Agreement or the
Transaction Documents.
"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,
accountants and shareholders, if any.
"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.
IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Consent of Guarantors as of the ____ day of April, 2004.
BUFFALO CHINA, INC. DELCO INTERNATIONAL LTD.
By: /s/ XXXXX X. XXXXX By: /s/ XXXXX X. XXXXX
----------------------- -----------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer Title: Chief Financial Officer
ENCORE PROMOTIONS, INC. SAKURA, INC.
By: /s/ XXXXX X. XXXXX By: /s/ XXXXX X. XXXXX
----------------------- -----------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer Title: Chief Financial Officer
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THC SYSTEMS INC. KENWOOD SILVER COMPANY, INC.
By: /s/ XXXXX X. XXXXX By: /s/ XXXXX X. XXXXX
----------------------- -----------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer Title: Chief Financial Officer
ONEIDA SILVERSMITHS INC. ONEIDA FOOD SERVICE, INC.
By: /s/ XXXXX X. XXXXX By: /s/ XXXXX X. XXXXX
----------------------- -----------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer Title: Chief Financial Officer
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