EXHIBIT 10.2
October 21, 1996
Oneida Rostone Corp.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Oneida Molded Plastics, Corp.
of North Carolina
Xxxxx 00, Xxxx
X.X. Xxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Amendment No. 1 to Loan and Security Agreement
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Gentlemen:
Reference is made to the Loan and Security Agreement, dated February 2,
1996 (the "Loan Agreement"), by and among Congress Financial Corporation
("Lender"), Oneida Rostone Corp. ("ORC") and Oneida Molded Plastics, Corp. of
North Carolina ("OMPC-NC"; together with ORC, each individually a "Borrower" and
collectively, "Borrowers"), together with all other agreements, documents,
supplements and instruments now or at any time hereafter executed and/or
delivered by Borrowers or any other person, with to or in favor of Lender in
connection therewith (all of the foregoing, together with this Amendment and the
agreements and instruments delivered hereunder, as the same now exist or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, collectively, the "Financing Agreements"). All capitalized terms used
herein and not otherwise defined herein shall have the meanings given to them in
the Loan Agreement.
Borrowers have requested that Lender enter into certain amendments and
grant certain consents in connection with the formation by ORC of certain
subsidiaries for the purpose of acquiring Data Packaging, Ltd. and waive the
failure of Borrowers to satisfy the existing Working Capital covenant and amend
the Working Capital covenant.
Lender is willing to enter into such amendments and grant such consents and
such waiver to the extent set forth herein and subject to the terms and
conditions hereof.
1. Additional Definitions. As used herein or in any of the other
Financing Agreements, the following terms shall have the respective meanings
given to them below, and the Loan Agreement shall be deemed and is hereby
amended to include, in
addition and not in limitation, each of the following definitions:
(i) "DPIL" shall mean Data Packaging (Ireland) Limited, a
private limited liability company incorporated under the laws of the Republic of
Ireland, presently a wholly owned subsidiary of DPL, and its successors and
assigns.
(ii) "DPL" shall mean Data Packaging, Ltd., a limited liability
company incorporated under the laws of Bermuda, and its successors and assigns.
(iii) "DPLAC" shall mean DPL Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of ORC, and its successors and
assigns.
(iv) "DPL Acquisition" shall mean, individually and
collectively, the acquisition by DPLAC from Allied Irish Banks (Holdings and
Investments) Limited or its affiliates or nominees of twenty-seven one-half
(27.5%) percent of the issued and outstanding voting stock of DPL, the
acquisition by DPLAC from Xxxxx X. Xxxxxxxxxx of sixty-eight (68%) percent of
the issued and outstanding voting stock of DPL and the related transactions, as
such transactions are described on Exhibit A hereto.
(v) "DPL Group" shall mean, individually and collectively, DPL,
DPIL, DPLAC and the other direct and indirect subsidiaries of DPLAC identified
on Exhibit B hereto acquired pursuant to or formed or to be formed in connection
with the DPL Acquisition.
(vi) "DPL Purchase Agreements" shall mean, individually and
collectively, the DPL 27.5% Share Purchase Agreement, the DPL 68% Share Purchase
Agreement, and any other stock purchase agreements, together with all deeds,
bills of sale and assignments, assumption agreements and liabilities under
takings, and all other agreements, documents and instruments executed and/or
delivered in connection with the DPL Acquisition, including, but not limited to
those described on Exhibit C hereto, as all of the foregoing now exist or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
(vii) "DPL 27.5% Share Purchase Agreement" shall mean the Share
Purchase Agreement dated on or about the date hereof between DPLAC and Allied
Irish Banks (Holdings and Investments Limited) or its affiliates or nominees
providing for the acquisition by DPLAC of twenty-seven and one-half (27.5%)
percent of the issued and outstanding voting stock of DPL.
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(viii) "DPL 68% Share Purchase Agreement" shall mean the Stock
Purchase Agreement to be entered into between DPLAC and Xxxxx X. Xxxxxxxxxx,
substantially in the form of Exhibit E attached hereto, providing for the
acquisition by DPLAC of sixty-eighty (68%) percent of the issued and outstanding
voting stock of DPL.
(ix) "Reunion DPL Subordinated Notes" shall mean, individually
and collectively, the Subordinated Promissory Note, dated of even date herewith,
by ORC payable to Reunion in the original principal amount of $750,000, as the
same now exists or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced and the Subordinated Promissory to be executed
after the date hereof by ORC payable to Reunion in the original principal amount
of $1,050,000 in the form of Exhibit F attached hereto, as the same may
hereafter exist or may thereafter be amended, modified, supplemented, extended,
renewed, restated or replaced.
2. Amendments to Definitions.
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(i) Section 1.2 of the Loan Agreement is hereby amended by
deleting the period at the end of Section 1.2 and adding a proviso immediately
following the word "Lender", as follows:
"; provided, that, solely for purposes of applying the financial
covenant set forth in Section 10.16 hereof, (x) the assets and
liabilities of the members of the DPL Group and their subsidiaries
shall not be considered assets and liabilities of ORC and its
subsidiaries, (y) the outstanding balance of any intercompany
accounts, loans and other indebtedness owed by members of the DPL
Group to ORC or its subsidiaries, other than current trade accounts
for goods and services to the extent permitted by Section
10.13(a)(iii) hereof, shall not be considered assets of ORC and its
subsidiaries, and (z) all investments by ORC or its subsidiaries in
the members of the DPL Group and their subsidiaries shall not be
considered assets of ORC and its subsidiaries."
(ii) Section 1.65 of the Loan Agreement is hereby amended by
deleting the proviso appearing at the end of Section 1.65 and substituting the
following proviso therefor:
"; provided, that, solely for purposes of applying the financial
covenant set forth in Section 10.15 hereof, (w) the liabilities of
Borrowers and their subsidiaries to Lender under this Agreement
shall not be considered current liabilities (whether or not
classified as current liabilities in
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accordance with GAAP), (x) the current assets and current
liabilities of the members of the DPL Group and their subsidiaries
shall not be considered current assets and current liabilities of
ORC and its subsidiaries, (y) current assets consisting of
outstanding intercompany accounts, loans and other indebtedness of
the members of the DPL Group or their subsidiaries owed to ORC or
its subsidiaries, other than current trade accounts for goods and
services to the extent permitted by Section 10.13(a)(iii) hereof,
shall not be considered current assets of ORC or its subsidi aries,
and (z) any current assets consisting of investments by ORC or its
subsidiaries in the members of the DPL Group and their subsidiaries
shall not be considered current assets of ORC and its subsidiaries."
3. Consents. Subject to the terms and conditions contained herein and in
the other Financing Agreements, Lender hereby consents to the formation by ORC
of the direct and indirect subsidiaries of ORC comprising part of the DPL Group
solely for the purpose of effecting the DPL Acquisition in accordance with the
terms and conditions of the DPL Purchase Agreements as in effect on the dates of
their execution and delivery, cash equity capital contributions of not more than
the aggregate amount of $1,800,000 by ORC to one or more of the members of the
DPL Group pursuant to the DPL Acquisition solely from the proceeds of the loans
made or to be made by Reunion to ORC as evidenced by the Reunion DPL
Subordinated Notes, to be used solely for the purposes of funding (i) the
aggregate cash portion of the purchase price to be paid to effect the stock
acquisitions contemplated by the DPL Acquisition pursuant to the terms and
conditions of the DPL Purchase Agreements as in effect on the dates of their
execution and delivery, and (ii) related acquisition costs and expenses for
maintaining the corporate organization and existence (including franchise taxes)
of DPLAC, the incurrence of the subordinated indebtedness of ORC to Reunion as
evidenced by the Reunion DPL Subordinated Notes and, if made, the Additional
Subordinated DPL Loans (as defined in the provisions of Section 10.10(l) of the
Loan Agreement as added hereby), (d) the loans and investments by ORC to the
members of the DPL Group solely from the proceeds of any Additional Subordinated
DPL Loans, and (e) the sale by ORC to the members of the DPL Group and the
purchase by the members of the DPL Group from ORC of Inventory or services of
ORC to the extent permitted by Section 10.13(a)(iii) of the Loan Agreement as
added hereby.
4. Indebtedness. Section 10.10 of the Loan Agreement is hereby amended
by deleting the word "and" at the end of Section 10.10(j), replacing the period
with a semicolon and
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adding the word "and" at the end of Section 10.10(k) and adding a new Section
10.10(l), as follows:
"(l) unsecured indebtedness of ORC to Reunion evidenced by the Reunion
DPL Subordinated Notes in the aggregate original principal amount of
$1,800,000 and unsecured indebtedness of ORC to Reunion to the extent
of any loans to ORC ("Additional Subordinated DPL Loans"), if made by
Reunion as permitted by Section 10.11(h) hereof, so long as (x) no
Event of Default or condition or event which with notice or passage of
time or both would constitute an Event of Default has occurred or
exists or would occur or exist after giving effect to any such
Additional Subordinated DPL Loan, (y) the proceeds of such Additional
Subordinated DPL Loans are used by ORC in the manner permitted in
Section 10.11(h) hereof, and (z) all of such indebtedness to Reunion
is subject to, and subordinated in right of payment to, the right of
Lender to receive the prior indefeasible payment in full of all of the
Obligations in accordance with a written subordination agreement
between Lender and Reunion in form and substance satisfactory to
Lender; provided, that: (i) Borrowers shall not, directly or
indirectly, make any payments in respect of such indebtedness,
including, but not limited to, any prepayments, other than regularly
scheduled monthly interest payments by ORC in accordance with the
Reunion DPL Subordinated Notes as each is in effect on the date of
issuance thereof, and, in the case of the Additional Subordinated DPL
Loans (if made), in accordance with the promissory note(s) evidencing
such loans as in effect on the date(s) of issuance thereof, so long as
(A) no Event of Default or condition or event which with notice or
passage of time or both would constitute an Event of Default has
occurred or exists or would occur or exist after giving effect to such
payment and (B) ORC shall have Excess Availability of not less than
$1,000,000 and OMPC-NC shall have Excess Availability of not less than
One Dollar ($1.00), in each case for the period of thirty (30)
consecutive days immediately prior to making and immediately after
giving effect to such payment, (ii) Borrowers shall not, directly or
indirectly, (A) amend, modify, alter or change any terms of such
indebtedness or any agreement, document or instrument related thereto,
or (B) redeem, retire, defease, purchase or otherwise acquire such
indebtedness, or set aside or otherwise deposit or
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invest any sums for such purpose, and (iii) Borrowers shall furnish to
Lender all notices, demands or other materials concerning such
indebtedness either received by Borrowers or on their behalf, promptly
after receipt thereof, or sent by Borrowers or on their behalf,
concurrently with the sending thereof, as the case may be."
5. DPL Loans and Investments.
-------------------------
(a) Section 10.11 of the Loan Agreement is hereby amended by deleting
the word "and" appearing at the end of Section 10.11(e), replacing the period
with a semicolon appearing at the end of Section 10.11(f), and adding new
Sections 10.11(g) and 10.11(h), as follows:
"(g) cash equity capital contributions of not more than the aggregate
amount of $1,800,000 by ORC to ORC's direct or indirect subsidiaries
comprising the DPL Group pursuant to the DPL Acquisition solely from
the proceeds of the loans made or to be made by Reunion to ORC as
evidenced by the Reunion DPL Subordinated Notes, to be used solely for
the purposes of (i) funding the aggregate cash portion of the purchase
price to be paid to effect the stock acquisitions contemplated by the
DPL Acquisition pursuant to the terms and conditions of the DPL
Purchase Agreements as in effect on the dates of execution and
delivery thereof and (ii) related acquisition costs and expenses for
main taining the corporate organization and existence (including
franchise taxes) of DPLAC; provided, that, at Lender's request, all
stock certificates evidencing such investments shall be delivered and
deemed pledged to Lender as additional Collateral hereunder; and (h)
loans and equity investments by ORC to the members of the DPL Group so
long as (i) such loans are made by ORC solely from the proceeds of
Additional Subordinated DPL Loans, subject to, and subordinated in
right of payment to, the right of Lender to receive the prior
indefeasible payment in full of all of the Obligations in accordance
with a written subordination agreement between Lender and Reunion in
form and substance satisfactory to Lender, (ii) in the case of loans,
such loans are evidenced by promissory notes that, at Lender's
request, shall be delivered and deemed pledged to Lender as additional
Collateral hereunder, (iii) in the case of equity investments, at
Lender's request, all stock certificates evidencing such equity invest
ments shall be delivered and deemed pledged to
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Lender as additional Collateral hereunder, and (iv) no Event of
Default or condition or event which with notice or passage of time or
both would constitute an Event of Default has occurred or exists or
would occur or exist after giving effect to such loans or
investments."
(b) Without limiting the covenants contained in Section 10.11 of the
Loan Agreement, as amended hereby, it is expressly agreed that neither Borrower
shall, directly or indirectly, guarantee, assume, endorse, or otherwise become
responsible for or acquire the indebtedness, performance, obligations or
dividends of any member of the DPL Group, or agree to do any of the foregoing.
6. Certain Transactions with the DPL Group. Section 10.13 of the Loan
Agreement is hereby amended by deleting the word "and" appearing at the end of
Section 10.13(a)(i), and adding a new Section 10.13(a)(iii) after the word "and"
appearing at the end of Section 10.13(a)(ii), as follows:
"(iii) ORC may sell and the members of the DPL Group may purchase
Inventory from ORC or purchase services from ORC, in each case in the
ordinary course of business on prices and terms no less favorable than
would have been obtained in an arm's length transaction with a non-
affiliated Person, but only so long as (A) the aggregate unpaid
amounts owed for such Inventory of ORC previously shipped or sold to
the members of the DPL Group or for services rendered by ORC to the
members of the DPL Group, and not yet paid for in cash received by ORC
from the members of the DPL Group and remitted to or received by
Lender through the Blocked Accounts, does not at any one time exceed
$100,000 and (B) the intercompany Accounts generated by such sales of
Inventory or rendition of services do not remain unpaid more than
sixty (60) days past the original invoice date of such Accounts; and"
7. Working Capital. Section 10.15 of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:
"10.15 Working Capital. Borrowers shall, at all times, maintain
Working Capital, determined for ORC and its subsidiaries on a
consolidated basis, of not less than $750,000."
8. Waiver. Subject to the terms and conditions contained herein, Lender
hereby waives the failure of Borrowers
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to satisfy the Working Capital covenant set forth in Section 10.15 of the Loan
Agreement for the period from March 1, 1996 through the effective date hereof.
9. Amendments to Information Certificates.
(a) The Information Certificate, dated February 2, 1996, of ORC
attached as Exhibit A to the Loan Agreement is hereby amended by adding to
Section 12 thereof, the additional information set forth on Exhibit B hereto and
deleting the corporate chart attached thereto and replacing it with the
corporate chart attached as Exhibit D hereto.
(b) The Information Certificate, dated February 2, 1996, of OMPC-NC
attached as Exhibit A to the Loan Agreement is hereby amended by deleting the
corporate chart attached thereto and replacing it with the corporate chart
attached as Exhibit D hereto.
10. Corrective Amendments.
(a) Section 8.3(i) of the Loan Agreement is hereby amended by adding
the word "not" between the word "shall" and the comma contained in line 20 on
page 36 of the Loan Agreement.
(b) The initial unnumbered clause of Section 9 of the Loan Agreement
is hereby amended by deleting the phrase "and generally represent" contained in
the first line of such clause on page 38 of the Loan Agreement and substituting
the phrase "and severally represent" therefor.
11. Additional Representations, Warranties and Covenants. Borrowers
jointly and severally represent, warrant and covenant with and to Lender as
follows, which representa tions, warranties and covenants are continuing and
shall survive the execution and delivery hereof, and the truth and accuracy of,
or compliance with each, together with the representations, warranties and
covenants in the other Financing Agreements, being a continuing condition of the
making of any and all Loans by Lender to Borrowers:
(a) No Event of Default or condition or event which with notice or
passage of time or both would constitute an Event of Default exists or has
occurred as of the date of this Amendment (after giving effect to the amendments
made and con sents and waiver granted by Lender pursuant to this Amendment).
(b) This Amendment and each other agreement or instrument to be
executed and delivered by Borrowers hereunder has been duly executed and
delivered by Borrowers and is in full force and effect as of the date hereof,
and the agreements and
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obligations of Borrowers contained herein and therein constitute legal, valid
and binding obligations of each Borrower enforceable against each Borrower in
accordance with their terms.
(c) Neither the execution and delivery of the DPL Purchase
Agreements, nor the consummation of the transactions contemplated by the DPL
Purchase Agreements, nor compliance with the provisions of the DPL Purchase
Agreements or instruments thereunder shall result in the creation or imposition
of any lien, claim, charge or encumbrance upon any of the Collateral or the
incurrence, creation, assumption of any liability, obligation or indebtedness,
except the unsecured indebtedness of ORC to Reunion as permitted under, and
subject to the limitations contained in Section 10.10(l) of the Loan Agreement
as added hereby.
(d) Neither the execution and delivery of the DPL Purchase
Agreements nor the consummation of the transactions therein contemplated or
otherwise to be taken pursuant to the DPL Acquisition, nor compliance with the
provisions thereof will subject Borrowers to any tax, duty, fee or other charge,
including, without limitation, any registration or transfer tax, stamp or other
duty or levy, imposed by or within the United States of America, the Republic of
Ireland, Bermuda, the European Union or any political subdivision or taxing
authority of or in any of the foregoing.
(e) After giving effect to the consummation of the acquisitions of
stock effected pursuant to the DPL Acquisition, all of the issued and
outstanding shares of capital stock of the members of the DPL Group, shall be
directly and beneficially owned and held by the shareholders set forth on
Exhibit B hereto who own the number of shares or percentages of the issued and
outstanding shares set forth next to their names, and all of such shares shall
have been duly authorized and shall be fully paid and non-assessable, free and
clear of all claims, liens, pledges and encumbrances of any kind.
(f) The DPL 27.5% Share Purchase Agreement and the transactions
contemplated thereunder have been duly executed, delivered and performed in
accordance with their terms by the respective parties thereto in all respects,
including the fulfillment (not merely the waiver, except as may be disclosed to
Lender and consented to in writing by Lender) of all conditions precedent set
forth therein.
(g) After giving effect to the terms of the DPL 27.5% Share Purchase
Agreement and the instruments and documents to be executed and delivered by the
parties to the DPL 27.5% Share Purchase Agreement (or any of their affiliates or
subsidiaries) thereunder, DPLAC has acquired good and marketable title to
twenty-seven and one-half (27.5%) percent of the issued
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and outstanding voting stock of DPL and, upon execution, delivery and
performance of the transactions contemplated pursuant to the DPL 68% Share
Purchase Agreement, DPLAC shall have acquired good and marketable title to an
additional sixty-eight (68%) percent of the issued and outstanding voting stock
of DPL. ORC has delivered, or caused to be delivered, to Lender, true, correct
and complete copies of the DPL 27.5% Share Purchase Agreement together with all
other DPL Purchase Agreements relating to the acquisition by DPLAC of twenty-
seven and one-half (27.5%) percent of the voting stock of DPL.
(h) All actions and proceedings required by the DPL 27.5% Share
Purchase Agreement, applicable law or regulation (including, without limitation,
compliance with all applicable laws and regulations of the Republic of Ireland,
Bermuda and the European Union) have been taken and the transactions required
thereunder have been duly and validly taken and consummated.
(i) No court of competent jurisdiction has issued any injunction,
restraining order or other order which prohibits consummation of the
transactions contemplated as part of the DPL Acquisition and no governmental or
other action or proceeding has been threatened or commenced in the United States
of America, Bermuda, the Republic of Ireland or any other country, seeking any
injunction, restraining order or other order which seeks to void or otherwise
modify the transactions described in the DPL 27.5% Share Purchase Agreement or
otherwise contemplated as part of the portion of the DPL Acquisition relating to
the acquisition by DPLAC of twenty-seven and one-half (27.5%) percent of the
issued and outstanding voting stock of DPL.
(j) Neither the execution and delivery of the DPL Purchase
Agreements and the Reunion DPL Subordinated Notes, nor the consummation of the
transactions therein contemplated or otherwise contemplated as part of the DPL
Acquisition, nor compliance with the provisions thereof, has violated or shall
violate any Federal or state securities laws or any other law or regulation
(including without limitation all applicable laws and regulations of the
Republic of Ireland, Bermuda and the European Union) or any order or decree of
any court or governmental instrumentality in any respect or does or shall
conflict with or result in the breach of, or constitute a default in any respect
under, any indenture, mortgage, deed of trust, security agreement, agreement or
instrument to which either Borrower, any member of the DPL Group, is a party or
may be bound, or violate any provision of the organizational documents of ORC or
any members of the DPL Group.
(k) ORC shall provide Lender not less than five (5) days prior
written notice before the consummation of any of the transactions related to the
DPL Acquisition described on
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Exhibit A hereto, which notice shall describe in reasonable detail the
transactions to be consummated.
(l) ORC shall provide Lender not less than five (5) days prior
written notice before the consummation of the transactions contemplated by the
DPL 68% Share Purchase Agreement and the other DPL Purchase Agreements relating
to the acquisition by DPLAC of sixty-eighty (68%) percent of the issued and
outstanding voting stock of DPL, accompanied by true, correct and complete
copies of the final forms of the DPL 68% Share Purchase Agreement and all other
DPL Purchase Agreements related thereto.
(m) Prior to or contemporaneously with the consummation of the
transactions contemplated by the DPL 68% Share Purchase Agreement (i) ORC shall
deliver, or cause to be delivered, to Lender a true, correct and complete copy
of the Reunion DPL Subordinated Note in the original principal amount of
$1,050,000, duly authorized, executed and delivered by the parties thereto and
(ii) ORC shall deliver, or cause to be delivered, to Lender, evidence that ORC
has received from or on behalf of Reunion, cash or other immediately available
funds in the aggregate principal amount of $1,050,000 constituting the proceeds
of the loan by Reunion to ORC evidenced by the Reunion DPL Subordinated Note in
the original principal amount of $1,050,000. As of the consummation of the
transactions contemplated by the DPL 68% Share Purchase Agreement, the
representations and warranties contained in Sections 11(f), (g), (h) and (i) of
this Amendment shall be true and correct as applied, mutatis mutandis, to the
DPL 68% Share Purchase Agreement and the acquisition by DPLAC of sixty-eight
(68%) percent of the issued and outstanding voting stock of DPL.
(n) The final form of DPL 68% Share Purchase Agreement, as executed
and delivered by the parties thereto, shall be substantially in the form of
Exhibit E annexed hereto, and neither the DPL 68% Share Purchase Agreement nor
any of the other DPL Purchase Agreements relating to the acquisition by DPLAC of
sixty-eight (68%) percent of the issued and outstanding voting stock of DPL
shall impose any obligations, liabilities or responsibilities on either Borrower
or contain any provisions that directly or indirectly conflict with or are
otherwise inconsistent with any of the terms and conditions of this Amendment or
the Loan Agreement as amended hereby.
(o) The portion of the DPL Acquisition consisting of the acquisition
by DPLAC pursuant to the DPL 68% Share Purchase Agreement of sixty-eight (68%)
percent of the issued and outstanding voting stock of DPL, shall close, as
permitted hereby, on or before January 31, 1997.
12. Conditions to Effectiveness of Amendment. The effectiveness of the
amendments and consents pursuant to this
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Amendment (other than the provisions of Sections 7, 8 and 10 which shall be
effective immediately) shall be subject to the satisfaction of each of the
following conditions precedent:
(a) Lender shall have received an executed original or executed
original counterparts of this Amendment (as the case may be), duly authorized,
executed and delivered by the respective party or parties hereto;
(b) Lender shall have received, in form and substance satisfactory
to Lender, evidence that the DPL Purchase Agreements have been duly authorized,
executed and delivered by and to the appropriate parties thereto and that the
transactions contemplated under the terms and conditions of the DPL Purchase
Agreements have been consummated prior to or contemporaneously with the
execution of this Amendment;
(c) Lender shall have received, in form and substance satisfactory
to Lender, evidence that the Reunion DPL Subordinated Note in the original
principal amount of $750,000 has been duly authorized, executed and delivered by
ORC and that ORC has received from or on behalf of Reunion, cash or other
immediately available funds in the aggregate principal amount of $750,000
constituting the proceeds of the loan made by Reunion to ORC evidenced by the
Reunion DPL Subordinated Note in the original principal amount of $750,000;
(d) Lender shall have received, in form and substance satisfactory
to Lender, a letter agreement from Reunion in favor of Lender, acknowledging
that the indebtedness owed to Reunion by ORC evidenced by the Reunion DPL
Subordinated Notes is included in the "Junior Debt" as defined under the
Subordination Agreement, dated February 2, 1996, between Lender and Reunion, as
acknowledged by Borrowers, duly authorized, executed and delivered by Reunion
and Borrowers; and
(e) no Event of Default shall exist or have occurred and no event or
condition shall have occurred or exist which with notice or passage of time or
both would constitute an Event of Default.
13. Effect of this Amendment. This Amendment and the instruments and
agreements delivered pursuant hereto constitute the entire agreement of the
parties with respect to the subject matter hereof and thereof, and supersede all
prior oral or written communications, memoranda, proposals, negotiations,
discussions, term sheets and commitments with respect to the subject matter
hereof and thereof. Except as expressly amended pursuant hereto, and except for
the consents and waiver expressly set forth herein, no other changes or
modifications to the Financing Agreements or consents or waivers under any
provisions thereof are intended or implied, and in all other respects the
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Financing Agreements are hereby specifically ratified, restated and confirmed by
all parties hereto as of the effective date hereof. To the extent of conflict
between the terms of this Amendment and the other Financing Agreements, the
terms of this Amendment shall control.
14. Further Assurances. Borrower shall execute and deliver such
additional documents and take such additional action as may be reasonably
requested by Lender to effectuate the provisions and purposes of this Amendment.
15. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the internal laws of the State of New York (without giving effect to
principles of conflicts of laws).
16. Binding Effect. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
17. Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be
necessary to produce or account for more than one counterpart thereof signed by
each of the parties hereto.
Please sign in the spaces provided below and return a counterpart of this
Amendment, whereupon this Amendment, as so agreed to and accepted, shall become
a binding agreement between Borrowers and Lender.
Very truly yours,
CONGRESS FINANCIAL CORPORATION
By: __________________________
Title: _______________________
AGREED TO AND ACCEPTED:
ONEIDA ROSTONE CORP.
By: _________________________
Title: ______________________
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
ONEIDA MOLDED PLASTICS, CORP.
OF NORTH CAROLINA
By: _________________________
Title: ______________________
CONSENTED TO:
____________________________
XXXXXXX X. XXXXXXX, XX.,
limited personal guarantor
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