EXHIBIT 4(a)(i)
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of
April 27, 2001
Among
ONEIDA LTD.
The Lenders Party Hereto
And
THE CHASE MANHATTAN BANK,
as Administrative Agent,
BANC OF AMERICA SECURITIES, LLC,
as Syndication Agent,
FLEET NATIONAL BANK,
as Documentation Agent,
HSBC BANK, USA,
as Senior Managing Agent
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CHASE SECURITIES INC.,
as Arranger
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms.................................................. 1
SECTION 1.02. Classification of Loans and Borrowings......................... 18
SECTION 1.03. Terms Generally ............................................... 18
SECTION 1.04. Accounting Terms; GAAP......................................... 18
ARTICLE II
The Credits
SECTION 2.01. Commitments.................................................... 19
SECTION 2.02. Loans and Borrowings........................................... 19
SECTION 2.03. Requests for Revolving Borrowings.............................. 19
SECTION 2.04. Swingline Loans................................................ 20
SECTION 2.05. Funding of Borrowings.......................................... 21
SECTION 2.06. Interest Elections............................................. 22
SECTION 2.07. Termination and Reduction of Commitments....................... 23
SECTION 2.08. Repayment of Loans; Evidence of Debt........................... 24
SECTION 2.09. Prepayment of Loans............................................ 25
SECTION 2.10. Fees........................................................... 25
SECTION 2.11. Interest....................................................... 26
SECTION 2.12. Alternate Rate of Interest..................................... 27
SECTION 2.13. Increased Costs................................................ 28
SECTION 2.14. Break Funding Payments......................................... 29
SECTION 2.15. Taxes.......................................................... 29
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.... 30
SECTION 2.17. Mitigation Obligations; Replacement of Lenders................. 32
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers........................................... 33
SECTION 3.02. Authorization; Enforceability.................................. 33
SECTION 3.03. Governmental Approvals; No Conflicts........................... 33
SECTION 3.04. Financial Condition; No Material Adverse Change................ 33
SECTION 3.05. Properties..................................................... 34
SECTION 3.06. Litigation and Environmental Matters........................... 34
SECTION 3.07. Compliance with Laws and Agreements............................ 34
SECTION 3.08. Investment and Holding Company Status.......................... 35
SECTION 3.09. Taxes.......................................................... 35
SECTION 3.10. ERISA.......................................................... 35
SECTION 3.11. Disclosure..................................................... 35
SECTION 3.12. Liens.......................................................... 35
SECTION 3.13. Subsidiaries................................................... 35
SECTION 3.14. No Default..................................................... 36
SECTION 3.15. Indebtedness................................................... 36
SECTION 3.16. Representations and Warranties in Transaction
Documents...................................................... 36
ARTICLE IV
Conditions
SECTION 4.01. Effective Date................................................. 36
SECTION 4.02. Each Borrowing................................................. 38
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information..................... 38
SECTION 5.02. Notices of Material Events..................................... 39
SECTION 5.03. Existence; Conduct of Business................................. 40
SECTION 5.04. Payment of Obligations......................................... 40
SECTION 5.05. Maintenance of Properties; Insurance........................... 40
SECTION 5.06. Books and Records; Inspection Rights........................... 40
SECTION 5.07. Compliance with Laws........................................... 41
SECTION 5.08. Use of Proceeds ............................................... 41
SECTION 5.09. Subsidiary Guarantees and Collateral........................... 41
SECTION 5.10. Maintenance of Liens of the Security Documents................. 41
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness................................................... 42
SECTION 6.02. Liens.......................................................... 43
SECTION 6.03. Fundamental Changes............................................ 44
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions...... 44
SECTION 6.05. Hedging Agreements............................................. 45
SECTION 6.06. Transactions with Affiliates................................... 46
SECTION 6.07. Restrictive Agreements......................................... 46
SECTION 6.08. Fiscal Year and Accounting Policies............................ 46
SECTION 6.09. Subordinated Debt.............................................. 46
SECTION 6.10. Negative Pledges............................................... 46
SECTION 6.11. Financial Covenants............................................ 47
SECTION 6.12. Letters of Credit.............................................. 47
SECTION 6.13. Deposit Accounts............................................... 47
SECTION 6.14. Prepayment of Indebtedness..................................... 47
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default.............................................. 48
ARTICLE VIII
Administrative Agent
SECTION 8.01. The Administrative Agent....................................... 50
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices........................................................ 52
SECTION 9.02. Waivers; Amendments............................................ 53
SECTION 9.03. Expenses; Indemnity; Damage Waiver............................. 54
SECTION 9.04. Successors and Assigns......................................... 55
SECTION 9.05. Survival....................................................... 57
SECTION 9.06. Counterparts; Integration; Effectiveness...................... 58
SECTION 9.07. Severability................................................... 58
SECTION 9.08. Right of Setoff................................................ 58
SECTION 9.09. Governing Law; Jurisdiction; Consent
to Service of Process......................................... 58
SECTION 9.10. Waiver of Jury Trial........................................... 59
SECTION 9.11. Headings....................................................... 59
SECTION 9.12. Confidentiality................................................ 59
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Opinion of Counsel for the Borrower
Exhibit C -- Form of Subsidiary Guarantee
Exhibit D -- Form of Subordination Agreement
SCHEDULES:
Schedule 2.01 -- Lenders' Commitments
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 27, 2001,
is among ONEIDA LTD., the LENDERS party hereto and THE CHASE MANHATTAN BANK, as
Administrative Agent, and amends and restates in its entirety the Initial Credit
Agreement referred to below.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agreement" means this Amended and Restated Credit Agreement dated as
of April ___, 2001 among Borrower, Administrative Agent and the Lenders.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
Prime Rate in effect on such day. Any change in the Alternate Base Rate due to a
change in the Prime Rate shall be effective from and including the effective
date of such change in the Prime Rate.
"Applicable Margin" means for any day, with respect to any Loans, the
Applicable Margin (expressed in terms of basis points (bps)) as determined
according to the applicable level ("Level") as indicated by the following grid,
with such Level to be determined on the basis of the Consolidated Leverage Ratio
of Borrower and its consolidated Subsidiaries as of the last day of each Fiscal
Quarter of the Borrower as reflected on the financial statements for such Fiscal
Quarter delivered by the Borrower pursuant to Section 5.01(b):
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▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 5 ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
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Consolidated Leverage Ratio <= 2.00 <= 2.25 <= 2.50 <= 2.75 <= 3.00 <= 3.25 > 3.25
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Eurodollar Margin (bps) 100.0 125.0 150.0 175.0 200.0 250.0 300.0
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ABR Margin (bps) 0.0 0.0 25.0 50.0 75.0 125.0 175.0
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provided that (i) during the period from the Closing Date through and including
the date on which Borrower delivers the financial statements under Section
5.01(b) for the Fiscal Quarter ending April 28, 2001, the Applicable Margin
shall be based on ▇▇▇▇▇ ▇, and (ii) if the Borrower shall have failed to deliver
the financial statements required by Section 5.01(b) when due (without giving
effect to any grace period or notice requirement) or there shall have occurred
an Event of Default which has not been waived in the manner provided in Section
9.02 hereof, the Applicable Margin shall immediately be adjusted to Level 7
until such time delivery of such financial statements shall have been made or
the Event of Default shall have been cured or waived, as the case may be. Each
change in the Applicable Margin shall be effective on the first Business Day
following delivery of the most recent financial statements pursuant to Section
5.01(b) subject to the proviso set forth in the preceding sentence.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the Effective
Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means Oneida Ltd., a New York corporation.
"Borrowing" means (a) Revolving Loan of the same Type, made, converted
or continued on the same date and, in the case of Eurodollar Loans, as to which
a single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Business Combination" means a reorganization, merger, consolidation or
other transaction involving a combination of Borrower with another Person
accomplished in any manner.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
regardless of type, class, preference or designation, and any and all equivalent
ownership interests in a Person other than a corporation, including membership
interests, partnership interests, or other equity interests, and any and all
warrants, options, purchase rights, conversion or exchange rights, voting
rights, calls or claims of any character with respect thereto.
"Change in Control" means a change in control of the Borrower of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Exchange Act, whether or
not the Borrower is then subject to such reporting requirement; provided
however, that, anything in this Agreement to the contrary notwithstanding, a
Change in Control shall be deemed to have occurred if:
(a) any individual, partnership, firm, corporation, association,
trust, unincorporated organization or other entity or person, or any
syndicate or group deemed to be a person under Section 14(d)(2) of the
Exchange Act is or becomes the "beneficial owner" (as defined in Rule 13d-3
of the General Rules and Regulations under the Exchange Act), directly or
indirectly, of securities of the Borrower representing 20% or more of the
combined voting power of the Borrower's then outstanding securities
entitled to vote in the election of directors of the Borrower'
(b) during any period of two consecutive years (not including any
period prior to the Effective Date), individuals who at the beginning of
such period constituted the Borrower's Board of Directors and any new
directors, whose election by the Board or nomination for election by the
Borrower's stockholders was approved by a vote of at least three-fourths of
the directors then still in office, who either were directors at the
beginning of the period or whose election or nomination for election was
previously so approved cease for any reason to constitute a majority
thereof;
(c) there occurs a Business Combination with respect to which the
stockholders of the Borrower immediately prior to such transaction do not
immediately after such transaction, own directly or indirectly more than
50% of the combined voting power of the Borrower or other Person resulting
from such Business Combination in substantially the same proportions as
their ownership, immediately prior to such Business Combination, of the
voting securities of the Borrower;
(d) all or substantially all of the assets of the Borrower are sold,
liquidated or distributed; or
(e) there occurs a transaction that constitutes a change in the (i)
ownership of the Borrower, (ii) effective Control of the Borrower or (iii)
effective ownership of a substantial portion of the assets of the Borrower,
as determined pursuant to Code Section 280G and the regulations promulgated
thereunder.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.13(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans.
"Closing Date" means April 27, 2001.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" shall mean the assets, properties and rights of the
Borrower and each Loan Party, whether now owned or hereafter acquired, upon
which a Lien is purported to be created by any Security Document.
"Collateral Agent" shall mean The Chase Manhattan Bank or any successor
Collateral Agent appointed by the parties to the Collateral Agency Agreement.
"Collateral Agency Agreement" shall mean the Collateral Agency and
Intercreditor Agreement dated the date hereof among the Lenders and certain
other senior creditors of Borrower, as the same may be amended, supplemented or
modified from time to time.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and Swingline Loans hereunder, expressed as an
amount representing the maximum aggregate amount of such Lender's Revolving
Credit Exposure hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.07 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Commitment is set forth on Schedule 2.01, or in
the Assignment and Acceptance pursuant to which such Lender shall have assumed
its Commitment, as applicable. The initial aggregate amount of the Lenders'
Commitments is $275,000,000.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period, the sum
of (a) income tax expense, (b) interest expense, (c) depreciation and
amortization expense, and (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, all as determined on a
consolidated basis; provided that (y) in determining Consolidated EBITDA of
Borrower and its consolidated Subsidiaries: (i) for any period that includes the
Fiscal Quarter ending July 29, 2000, there shall be added to Consolidated Net
Income the sum of $32,000,000, representing pre-tax extraordinary and
non-recurring charges incurred in such quarter, and (ii) for any period that
includes the Fiscal Quarter ending October 28, 2000, there may be added to
Consolidated Net Income pre-tax extraordinary and non-recurring restructuring
charges incurred in such quarter in an amount not to exceed $7,000,000, and (z)
for purposes of calculating Consolidated EBITDA of the Borrower and its
Subsidiaries for any period, the Consolidated EBITDA of any Person acquired by
the Borrower or its Subsidiaries during such period (if permitted by the terms
of this Agreement) shall be included on a pro forma basis for such period
(assuming the consummation of each such acquisition and the incurrence or
assumption of any Indebtedness in connection therewith occurred on the first day
of such period) if the consolidated balance sheet of such acquired Person and
its consolidated Subsidiaries as at the end of the period preceding the
acquisition of such Person and the related consolidated statements of income and
stockholders' equity and of cash flows for the period in respect of which
Consolidated EBITDA is to be calculated (i) have been previously provided to the
Administrative Agent and the Lenders and (ii) either (A) have been reported on
without a qualification arising out of the scope of the audit by independent
certified public accountants of nationally recognized standing or (B) have been
found acceptable by the Administrative Agent. Notwithstanding the foregoing, (i)
whenever the Consolidated EBITDA of Viners of Sheffield Limited is included on a
pro forma basis for any period which includes its fiscal quarter ended April 20,
2000, there shall be excluded a $1,800,000 pre-tax non-recurring employee bonus
incurred in such quarter, and (ii) whenever the Consolidated EBITDA of Delco
International Ltd. is included on a pro forma basis for any period which
includes it fiscal quarter ended July 31, 2000, there shall be excluded
$3,000,000 in pre-tax non-recurring employee bonus and employee compensation
charges incurred in such quarter.
"Consolidated Interest Coverage Ratio" means, as at the last day of any
period of four consecutive Fiscal Quarters, the ratio of (a) Consolidated EBITDA
for such period to (b) Consolidated Interest Expense for such period.
"Consolidated Interest Expense" means, for any period, total interest
expense (including that attributable to Capital Lease Obligations) of the
Borrower and its Subsidiaries for such period with respect to all outstanding
Indebtedness of the Borrower and its Subsidiaries, as determined in accordance
with GAAP.
"Consolidated Leverage Ratio" means, as at the last day of any period
of four consecutive Fiscal Quarters, the ratio of (a) Consolidated Total Debt on
such date to (b) Consolidated EBITDA for such period.
"Consolidated Net Income" means, for any period, the gross revenues of
the Borrower and its Subsidiaries for such period less all expenses and other
proper charges (including taxes on income), determined on a consolidated basis
in accordance with GAAP after eliminating earnings or losses attributable to
outstanding minority interests, but excluding in any event:
(a) (i) any gains or losses on the sale or other disposition of
investments and (ii) any gains or losses on the sale or other disposition
of plant, property and equipment which gains or losses exceed, in the
aggregate, $100,000 during any Fiscal Year and any taxes on such excluded
gains and any tax deductions or credits on account of any such excluded
losses;
(b) the proceeds of any life insurance policy;
(c) net earnings and losses of any Subsidiary accrued prior to the
date it became a Subsidiary, except to the extent permitted to be included
in Consolidated EBITDA pursuant to clause (z) of the definition of
Consolidated EBITDA set forth above;
(d) net earnings and losses of any Person (other than a
Subsidiary), substantially all the assets of which have been acquired in
any manner by the Borrower or any Subsidiary, realized by such Person prior
to the date of such acquisition, except to the extent permitted to be
included in Consolidated EBITDA pursuant to clause (z) of the definition of
Consolidated EBITDA set forth above;
(e) net earnings and losses of any Person (other than a
Subsidiary) with which the Borrower or a Subsidiary shall have consolidated
or which shall have merged into or with the Borrower or a Subsidiary prior
to the date of such consolidation or merger, except to the extent permitted
to be included in Consolidated EBITDA pursuant to clause (z) of the
definition of Consolidated EBITDA set forth above;
(f) net earnings of any Person (other than a Subsidiary) in which
the Borrower or any Subsidiary has an ownership interest unless such net
earnings shall have actually been received by the Borrower or such
Subsidiary in the form of cash distributions or readily marketable
securities;
(g) any portion of the net earnings of any Subsidiary which for
any reason is unavailable for payment of dividends to the Borrower or any
other Subsidiary.
(h) earnings resulting from any reappraisal, revaluation or
write-up of assets;
(i) any deferred or other credit representing any excess of the
equity in any Subsidiary at the date of acquisition thereof over the amount
invested in such Subsidiary;
(j) any gain arising from the acquisition of any securities of the
Borrower or any Subsidiary;
(k) any reversal of any contingency reserve, except to the extent
that provision for such contingency reserve shall have been made from
income arising during such fiscal period or during the period consisting of
the four consecutive Fiscal Quarters immediately following the end of such
fiscal period; and
(l) any other extraordinary or non-recurring income or gain.
"Consolidated Net Worth" means, at any date, all amounts which would,
in accordance with GAAP, be included on a consolidated balance sheet of the
Borrower and its Subsidiaries under stockholders' equity at such date.
"Consolidated Total Debt" means, at any date, the aggregate principal
amount of all Indebtedness of the Borrower and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Deposit Account" means a demand, time, savings, passbook or other
deposit account maintained with a bank, savings and loan association, credit
union or other financial institution, or a branch of any the foregoing.
"Disclosed Matters" means the actions, suits, proceedings, title
defects and other matters disclosed in Schedule 3.06.
"Dollars" or "$" refers to lawful money of the United States of
America.
"Domestic Subsidiary" means any direct or indirect Subsidiary of the
Borrower which is incorporated in the United States of America, any State
thereof, or the District of Columbia.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Executive Officer" means the Chief Executive Officer, General Counsel
or any Financial Officer of Borrower.
"Excluded Taxes" means, with respect to the Administrative Agent or any
Lender, or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.17(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender pursuant to laws or regulations in effect at the time such
Foreign Lender becomes a party to this Agreement (or designates a new lending
office) or is attributable to such Foreign Lender's failure to comply with
Section 2.15(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 2.15(a).
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, senior vice
president -- finance, principal accounting officer, treasurer or controller of
the Borrower.
"Fiscal Quarter" or "Fiscal Year" means the fiscal quarter or fiscal
year of Borrower.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any direct or indirect subsidiary of the
Borrower which is incorporated in a jurisdiction other than the United States of
America, any State thereof, or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Guarantor" means each Person executing and delivering a Subsidiary
Guarantee pursuant to this Agreement.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all items
of borrowed money (including, without limitation, Capital Lease Obligations and
the deferred purchase price of property or services other than current accounts
payable arising in the ordinary course of business), which in accordance with
GAAP would be included in determining total liabilities as shown on the
liability side of a balance sheet as of the date at which Indebtedness is to be
determined, (b) all Guarantees, letters of credit and endorsements (other than
of notes, bills and checks presented to banks for collection or deposit in the
ordinary course of business), in each case to support Indebtedness of other
Persons, and (c) all items of borrowed money secured by any mortgage, pledge or
Lien existing on property owned by such Person whether or not the borrowed money
secured thereby shall have been assumed by such Person.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Information Memorandum" means the Confidential Information Memorandum
dated April 2000 relating to the Borrower and the Transactions and delivered to
the Lenders.
"Initial Credit Agreement" means the Credit Agreement dated as of June
2, 2000 among the Borrower, the Administrative Agent and Lenders, as amended by
a Waiver and Amendment No. 1 dated September 12, 2000 and a Waiver and Amendment
No. 2 dated February 16, 2001.
"Interest Election Request" means a request by the Borrower to convert
or continue a Revolving Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR Loan (other
than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"Interest Period" means with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is two weeks or one, two, three or
six months thereafter, as the Borrower may elect.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Party" means the Borrower and each Material Domestic Subsidiary
of the Borrower which is a party to a Transaction Document, and any other Person
which guarantees, or grants a Lien on any of its assets to secure, the
obligations under this Agreement or any of the other Transaction Documents.
"Loans" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
the Borrower and the Subsidiaries taken as a whole, (b) the ability of the
Borrower to perform any of its obligations under this Agreement or (c) the
rights of or benefits available to the Lenders under this Agreement.
"Material Domestic Subsidiary" means any Guarantor and any other direct
or indirect Domestic Subsidiary of the Borrower whose assets, as of the end of
the most recent Fiscal Quarter, account for 5% or more of the total assets of
the Borrower and its Subsidiaries, taken as a whole, determined in accordance
with GAAP.
"Material Foreign Subsidiary" means any direct or indirect Foreign
Subsidiary of the Borrower whose assets, as of the end of the most recent Fiscal
Quarter, account for 5% or more of the total assets of the Borrower and its
Subsidiaries, taken as a whole, determined in accordance with GAAP.
"Material Indebtedness" means Indebtedness (other than the Loans), or
obligations in respect of one or more Hedging Agreements, of any one or more of
the Borrower and its Subsidiaries in an aggregate principal amount exceeding
$3,500,000. For purposes of determining Material Indebtedness, the "principal
amount" of the obligations of the Borrower or any Subsidiary in respect of any
Hedging Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Hedging Agreement were terminated at such time.
"Maturity Date" means May 31, 2003, unless extended in accordance with
Section 2.07(a).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Section 7.01; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any
Lien securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the United States of America (or by
any agency thereof to the extent such obligations are backed by the full faith
and credit of the United States of America), in each case maturing within one
year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the highest
credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts issued
or offered by, any domestic office of any commercial bank organized under the
laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into with
a financial institution satisfying the criteria described in clause (c) above;
(e) Hedging Agreements permitted by the terms of this Agreement;
(f) investments arising in connection with the bankruptcy or
reorganization of a customer or supplier in settlement of delinquent obligations
owed by such customer or supplier and not exceeding the amount of such
obligations owed; and
(g) loans or advances made in the ordinary course of business to
officers or directors of the Borrower or any Subsidiary not exceeding $200,000
in the aggregate outstanding at any time.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" means the Pledge Agreement to be executed by the
Borrower and each Guarantor substantially in the form of Exhibit E, as the same
may be amended, supplemented, or otherwise modified from time to time.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City, regardless of whether such rate is the lowest
rate actually charged by such Bank on commercial borrowings; each change in the
Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's.
"Security Agreement" means the Security Agreement to be executed by the
Borrower and each Guarantor substantially in the form of Exhibit F, as the same
may be amended, supplemented, or otherwise modified from time to time.
"Security Documents" means, collectively, the Security Agreement,
Pledge Agreement, and all financing statements, collateral assignments and other
security documents delivered to the Collateral Agent granting or purporting to
▇▇▇▇▇ ▇ ▇▇▇▇ on any assets to secure the obligations of Borrower or any Loan
Party under this Agreement or any of the other Transaction Documents.
"Senior Secured Indebtedness" shall mean indebtedness or obligations of
Borrower and its Subsidiaries which are secured by the Liens created by the
Security Documents, including, without limitation, Indebtedness under this
Agreement and obligations under Hedging Agreements to which any Lender is a
counterparty.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject, with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Guarantee" means the Amended and Restated Subsidiary
Guarantee Agreement executed and delivered by each Material Domestic Subsidiary
substantially in the form of Exhibit C, as the same may be amended,
supplemented, restricted or otherwise modified from time to time.
"Subordination Agreement" means the Amended and Restated Subsidiary
Subordination Agreement executed and delivered by each Material Domestic
Subsidiary substantially in the form of Exhibit D, as the same may be amended,
supplemented, or otherwise modified from time to time.
"Subordinated Debt" means all Indebtedness of Borrower or its
Subsidiaries subordinated in right of payment to Indebtedness arising under this
Agreement by written terms or agreement in form and substance satisfactory to
the Lenders.
"Swingline Exposure" means, at any time, the aggregate principal amount
of all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.
"Swingline Lender" means The Chase Manhattan Bank, in its capacity as
lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Tableware Business" means the business of (a) designing,
manufacturing, licensing, importing, selling, marketing, distributing or
otherwise dealing in tableware, kitchenware, and giftware, including but not
limited to, dinnerware, flatware, hollowware, giftware, glassware, crystal,
stemware, cutlery, cookware, table linens, kitchen, table or bar utensils and
gadgets, and minor kitchen appliances and equipment, and (b) licensing
Borrower's name for use on toys.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Transactions" means (a) the execution, delivery and performance by the
Borrower of this Agreement and each other Transaction Document to which it is a
party, the borrowing of Loans and the use of the proceeds thereof, and (b) the
execution, delivery and performance by each Loan Party of each Transaction
Document to which it is a party.
"Transaction Documents" means, collectively, this Agreement, any
promissory note delivered to a Lender evidencing the Loans, the Subsidiary
Guarantees, the Subsidiary Subordination Agreements, the Security Documents, any
agreement between the Borrower and the Collateral Agent or the Administrative
Agent with respect to the payment of fees, any Hedging Agreement entered into
with a Lender or an Affiliate of the Lender, and each other document, agreement
or instrument delivered pursuant to the terms of any of the foregoing, as the
same may be amended, supplemented or otherwise modified from time to time.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by
Class and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Revolving Borrowing").
SECTION 1.03. Terms Generally. 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, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees to make Revolving Loans to the Borrower from
time to time during the Availability Period in an aggregate principal amount
that will not result in such Lender's Revolving Credit Exposure exceeding such
Lender's Commitment. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder.
(b) Each Revolving Borrowing shall be comprised entirely of ABR Loans
or Eurodollar Loans as the Borrower may request in accordance herewith. Each
Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to repay
such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $100,000 and not less than $1,000,000.
Each Swingline Loan shall be in an amount that is an integral multiple of $1,000
and not less than $250,000. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more
than a total of ten Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving
Loan, the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of
Section 2.05.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower from time to time during the Availability Period, in an aggregate
principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000
or (ii) the total Revolving Credit Exposures exceeding the total Commitments;
provided that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender by 3:00 p.m., New York
City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of
such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender, such Lender's Applicable
Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever. Each
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.09 with
respect to Loans made by such Lender (and Section 2.09 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the Swingline Lender the amounts so received by it
from the Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders that
shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear. The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any
default in the payment thereof.
SECTION 2.05. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; provided that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand (without duplication) such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in
the case of the Borrower (absent payment of interest by such Lender), the
interest rate applicable to ABR Loans, provided that Borrower receives notice of
the Lender's failure to make its share of the applicable Borrowing within three
Business Days thereafter. If such Lender ultimately pays its share of the
applicable Borrowing to the Administrative Agent, then the amount paid shall
constitute such Lender's Loan included in such Borrowing, and Borrower shall pay
interest thereon at the rate determined in accordance with Section 2.06.
SECTION 2.06. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Swingline Borrowings which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Revolving Borrowing may
be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid,
each Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto.
SECTION 2.07. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date;
provided, however, that the Borrower may, by written request to the
Administrative Agent not less than 45 days prior to the Maturity Date then in
effect (such Maturity Date hereinafter referred to as the "extension date"),
request that such Maturity Date be extended for no more than two successive
one-year periods. Within 45 days following receipt of such request, the
Administrative Agent will advise the Borrower in writing whether the Required
Lenders agree to or deny such extension, provided that if the Administrative
Agent shall fail to so advise the Borrower, the Required Lenders will be deemed
to have denied such request. If the Required Lenders shall agree thereto, such
extension shall become effective as of such extension date only as to those
Lenders who have agreed to the extension request. The extension shall not apply
to any Lender who has denied the extension request and the Commitment of any
such Lender shall terminate (and all Loans and other amounts owed such Lender
shall be paid) on the Maturity Date without giving effect to the extension
request. Each extension approved by the Required Lenders will become effective
only upon satisfaction of the following conditions as of such date, in form and
substance satisfactory to the Administrative Agent, unless expressly waived by
the Administrative Agent: (a) no Default shall have occurred and be continuing;
(b) the representations and warranties made by the Borrower in Article III
hereof shall be true on and as of such date with the same force and effect as if
made on and as of such date; and (c) the Borrower shall have furnished to the
Administrative Agent such corporate documents and/or opinions of counsel with
respect to such extension, as the Administrative Agent may
reasonably request. Each extension request by the Borrower under this Section
2.07(a) shall constitute a certification by the Borrower to the effect set forth
in clauses (a) and (b) of the preceding sentence (both as of the date of such
notice and, unless the Borrower otherwise notifies the Administrative Agent
prior to the relevant extension date, as of such date).
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $5,000,000 and not less
than $5,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.09, the Revolving Credit Exposures would exceed the
total Commitments.
(c) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; provided that a notice of termination of
the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent.
Each reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
on the Maturity Date, and (ii) the Swingline Lender the then unpaid principal
amount of each Swingline Loan on the earlier of the Maturity Date and the first
date after such Swingline Loan is made that is the 15th day of a calendar month
and is at least two Business Days after such Swingline Loan is made; provided
that on each date that a Revolving Borrowing is made, the Borrower shall repay
all Swingline Loans then outstanding, except for amounts which do not satisfy
the minimum borrowing amounts for Revolving Borrowings set forth in Section
2.02.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.09. Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b) of this Section.
(b) The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment or (iii) in the
case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City
time, on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.07, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.07. Promptly
following receipt of any such notice relating to a Revolving Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Revolving Borrowing shall be in an amount that would
be permitted in the case of an advance of a Revolving Borrowing of the same Type
as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.11.
SECTION 2.10. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, on the
daily average unused amount of the Commitment of such Lender during the period
from and including the date hereof to but excluding the date on which such
Commitment terminates, provided that for purposes of calculating commitment fees
the unused amount of a Commitment shall be determined without regard to the
principal amount of any outstanding Swingline Loans. The rate at which
commitment fees shall accrue are to be determined according to the applicable
level ("Level") as indicated in the following grid, with such Level to be
determined on the basis of the Consolidated Leverage Ratio of Borrower and its
consolidated Subsidiaries as of the last day of each Fiscal Quarter of the
Borrower as reflected on the financial statements for such Fiscal Quarter
delivered by the Borrower pursuant to Sections 5.01(b):
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▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 5 ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
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Consolidated Leverage Ratio <= 2.00 <= 2.25 <= 2.50 <= 2.75 <= 3.00 <= 3.25 > 3.25
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Commitment Fee (bps) 35.0 37.5 40.0 45.0 50.0 50.0 50.0
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provided that (i) during the period from the Closing Date through and including
the date on which Borrower delivers the financial statements under Section
5.01(b) for the Fiscal Quarter ending April 28, 2001, commitment fees shall
accrue at the rate set forth in ▇▇▇▇▇ ▇, and (ii) if the Borrower shall have
failed to deliver the financial statements required by Section 5.01(b) when due
(without giving effect to any grace period or notice requirement) or there shall
have occurred an Event of Default which has not been waived in the manner
provided in Section 9.02 hereof, the rate at which commitment fees shall accrue
shall immediately be adjusted to the rate set forth in Level 7 until such time
delivery of such financial statements shall have been made or the Event of
Default shall have been cured or waived, as the case may be. Each change in
commitment fees shall be effective on the first Business Day following delivery
of the most recent financial statements pursuant to Section 5.01(b) subject to
the proviso set forth in the preceding sentence.
(b) Accrued commitment fees shall be payable in arrears on the last day
of March, June, September and December of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur after the date
hereof. All commitment fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent additional
fees payable in the amounts and at the times separately agreed upon between the
Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of commitment fees and upfront fees, to the Lenders. Fees paid shall
not be refundable under any circumstances.
SECTION 2.11. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate plus the Applicable Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Margin.
(c) Swingline Loans shall bear interest at the Alternate Base Rate plus
the Applicable Margin or at such other rate as may be offered, if any, by the
Swingline Lender in response to a Borrowing Request for a Swingline Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to
paragraph (d) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(f) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.12. Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (or Lender) of making or maintaining their Loans
(or its Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective and shall be deemed to request conversion to an ABR Borrowing, and
(ii) if any Borrowing Request requests a Eurodollar Revolving Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.13. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans made by
such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender of
participating in, or to reduce the amount of any sum received or receivable by
such Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.
SECTION 2.14. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.09(b) and is revoked in accordance therewith), or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.17, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate (in the case of a
Eurodollar Loan) that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the eurodollar market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.15. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) The Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Collateral Agent, the
Administrative Agent and each Lender, within 10 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent or such Lender on or with respect to any payment by or
on account of any obligation of the Borrower hereunder or under any other
Transaction Document (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or by the Collateral Agent or Administrative Agent on its
own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or of amounts payable under
Section 2.13, 2.14 or 2.15, or otherwise) prior to 12:00 noon, New York City
time, on the date when due, in immediately available funds, without set-off or
counterclaim. Payment may be made (without limitation) by wire transfer or by
written authorization by Borrower to the Administrative Agent to deduct the
payment from a deposit account maintained by Borrower with the Administrative
Agent containing immediately available funds equal to or in excess of the amount
to be paid. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to the
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.13, 2.14, 2.15 and 9.03 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in U.S. dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or Swingline Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee
or participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply).
Notwithstanding the foregoing, if the provisions of the Collateral Agency
Agreement require a Lender to share the proceeds of a set-off or counterclaim
with, or otherwise purchase a participation in any of the loans or obligations
owned by, a party or parties to the Collateral Agency Agreement, the provisions
of the Collateral Agency Agreement shall control and take precedence over the
provisions of this subparagraph (c). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by
it pursuant to Section 2.04(c), 2.05(b) or 2.16(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.13, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or Affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment, provided that Borrower has
been apprised of such costs and expenses prior to such designation or assignment
by the Lender.
(b) If any Lender requests compensation under Section 2.13, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have
received the prior written consent of the Administrative Agent (and,
if a Commitment is being assigned, the Swingline Lender), which consent shall
not unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and Swingline Loans,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.13 or payments required to be made pursuant to
Section 2.15, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, and, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, is qualified to do business in, and is in
good standing in, every jurisdiction where such qualification is required. Each
of the Borrower and its Subsidiaries has all requisite power and authority to
own or lease its assets, to carry on its business as now conducted, and to
execute, deliver and perform each of the Transaction Documents to which it is a
party.
SECTION 3.02. Authorization; Enforceability. The Transactions are
within the Borrower's and each Loan Party's corporate powers and have been duly
authorized by all necessary corporate and, if required, stockholder action. Each
of this Agreement and each other Transactions Document has been duly executed
and delivered by the Borrower and each Loan Party (as the case may be), and
constitutes a legal, valid and binding obligation of the Borrower and each Loan
Party, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect and filings necessary to
perfect the Liens created by the Security Documents, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of the Borrower or any of its Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon the Borrower or any of its
Subsidiaries or its assets, or give rise to a right thereunder to require any
payment to be made by the Borrower or any of its Subsidiaries, and (d) will not
result in the creation or imposition of any Lien on any asset of the Borrower or
any of its Subsidiaries other than in favor of the Collateral Agent.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, stockholders equity and cash flows as of and for the
Fiscal Year ended January 27, 2001, reported on by PriceWaterhouseCoopers LLP,
independent public accountants. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash
flows of the Borrower and its consolidated Subsidiaries as of such dates and for
such periods in accordance with GAAP.
(b) Since January 27, 2001, there has been no material adverse change
in the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and its Subsidiaries, taken as a whole, and no sale,
transfer or other disposition of a material part of the assets or business of
Borrower or any Subsidiary.
SECTION 3.05. Properties. (a) Each of the Borrower and its Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for Disclosed Matters
and minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their intended
purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Borrower nor any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability, (iv) knows of any basis for any Environmental
Liability, or (v) is subject to any decree, consent order or other
administrative order arising under any Environmental Law. Except for the
Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, no real estate currently or formerly owned or leased
by the Borrower or any of its Subsidiaries contains, is subject to, affected by,
or contaminated with, Hazardous Materials, except Hazardous Materials used,
stored and transported in accordance with Environmental Laws.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the Borrower
and its Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 3.08. Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse
Effect. To the actual knowledge of the Executive Officers of the Borrower,
neither the Information Memorandum nor any of the other reports, financial
statements, certificates or other information furnished by or on behalf of the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.12. Liens. None of the assets or properties of the Borrower
or any of its Subsidiaries is subject to any Lien other than Permitted
Encumbrances and Liens existing as the date hereof and disclosed on Schedule
3.12.
SECTION 3.13. Subsidiaries. The Persons listed on Schedule 3.13
constitute all the Subsidiaries of the Borrower. Such Schedule identifies the
state or country of organization of each such Subsidiary and the percentage
ownership of such Subsidiary directly or indirectly owned by the Borrower, the
number of authorized and outstanding shares of capital stock, and whether such
Subsidiary constitutes a Material Domestic Subsidiary. Except as set forth on
Schedule 3.13, there are no pre-emptive rights with respect to the capital stock
of such Subsidiaries and no options, warrants or other rights to acquire the
capital stock of any such Subsidiary, and no securities convertible into such
capital stock.
SECTION 3.14. No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any Indebtedness or
indenture, agreement or other instrument to which such Person is a party or by
which it or any of its property is bound in any respect which could reasonably
be expected to have a Material Adverse Effect.
SECTION 3.15. Indebtedness. Schedule 6.01 sets forth a true and
complete list of all Indebtedness (excluding Indebtedness outstanding under this
Agreement) of the Borrower and its Subsidiaries as of the date hereof, in each
case showing the aggregate principal amount thereof and the name of any Loan
Party which directly or indirectly guaranteed such Indebtedness.
SECTION 3.16. Representations and Warranties in Transaction Documents.
All representations and warranties of the Borrower and any of its Subsidiaries
contained in any of the other Transaction Documents are true and correct on and
as of the date hereof.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The amendment and restatement of the
Initial Credit Agreement, and the obligations of the Lenders to make Loans
hereunder, shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable
opinion (addressed to the Administrative Agent and the Lenders and
dated the Effective Date) of Shearman & Sterling, special counsel for
the Borrower and Guarantors, substantially in the form of Exhibit B,
and covering such other matters relating to the Borrower, the
Guarantors, this Agreement, the Subsidiary Guarantees or the
Transactions as the Required Lenders may reasonably request;
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of the Borrower and each Guarantor, the authorization of the
Transactions, the incumbency of the officers executing any documents on
behalf of Borrower or any Guarantor, and any other legal matters
relating to the Borrower and each Guarantor, this Agreement or the
Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President or a
Financial Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder.
(f) The Administrative Agent shall have received a Subsidiary
Guarantee and a Subordination Agreement executed by each Material
Domestic Subsidiary.
(g) The Administrative Agent shall have received from the
Borrower and each Guarantor evidence that there has been no material
adverse change, or any development involving a perspective material
adverse change, in the business, operations, properties, assets,
liabilities, performance or condition (financial or otherwise) or
prospects of the Borrower and each Guarantor.
(h) The Collateral Agent shall have received the Security
Documents executed by the Borrower and each Material Domestic
Subsidiary and each document or instrument required to be delivered
thereunder.
(i) The Collateral Agent shall have received the results of
recent searches, conducted by a Person satisfactory to the Collateral
Agent, of Uniform Commercial Code, judgment and tax lien filings
against Borrower and the Material Domestic Subsidiaries in such
jurisdictions as may be required by the Collateral Agent in order to
determine the presence or absence of Liens on the Collateral, and the
results of such searches shall reveal the existence of no Liens except
Liens permitted by this Agreement.
(j) All filings and other actions required to create and
perfect a first priority security interest in favor of the Collateral
Agent on all Collateral owned by the Borrower and its Material Domestic
Subsidiaries shall have been made, or the Collateral Agent shall be
reasonably satisfied that such filings may be completed promptly after
the Closing Date.
(i) The Collateral Agent shall have received the Collateral
Agency Agreement executed by the Collateral Agent and each of the other
parties thereto.
The Administrative Agent shall notify the Borrower and the Lenders of
the Effective Date, and such notice shall be conclusive and binding.
SECTION 4.02. Each Borrowing. The obligation of each Lender to make a
Loan on the occasion of any Borrowing, is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of the Borrower set
forth in this Agreement shall be true and correct on and as of the date
of such Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
(c) The timely receipt of a Borrowing Request as required
under this Agreement.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees payable hereunder shall have been paid
in full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements; Other Information. The Borrower
will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each Fiscal Year of the
Borrower, its audited consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows as of the end of and
for such year, setting forth in each case in comparative form the
figures for the previous Fiscal Year, all reported on by
PriceWaterhouseCoopers LLP or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;
(b) within 45 days after the end of each Fiscal Quarter of the
Borrower (including the fourth Fiscal Quarter), its consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such Fiscal Quarter and
the then elapsed portion of the Fiscal Year, setting forth in each case
in comparative form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the
previous Fiscal Year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes;
(c) on or before the commencement of each Fiscal Year of
the Borrower, a copy of the budget of the Borrower and its
Subsidiaries for such Fiscal Year;
(d) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer of
the Borrower (i) certifying as to whether a Default has occurred and,
if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating compliance with
Section 6.11 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 and, if any such
change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(e) concurrently with any deliver of financial statements
under clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the
extent required by accounting rules or guidelines);
(f) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
(i) filed by the Borrower or any Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange as the case may be, or (ii) delivered by the
Borrower to its stockholders or to holders of its Indebtedness (or any
trustee, agent, or other representative therefor);
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following
promptly after the same becomes known to an Executive Officer:
(a) the occurrence of any Default, provided that Borrower
shall have until May 31, 2001 to furnish notice of a Default arising
out of any violation of Section 6.11 hereof for the Fiscal Quarter
ending April 28, 2001;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect;
(d) receipt of any claim made by a Person, including any
Governmental Authority, asserting that the Borrower or any Subsidiary
is in violation of any Environmental Law, or the occurrence of any
event which could give rise to an Environmental Liability, in each case
if the effect thereof could reasonably be expected to result in a
Material Adverse Effect; and
(e) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.03.
SECTION 5.04. Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, could result in a Material Adverse Effect before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith, (b) the Borrower or such Subsidiary
has set aside on its books adequate reserves with respect thereto in accordance
with GAAP and (c) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations and as may be required by
any of the other Transaction Documents.
SECTION 5.06. Books and Records; Inspection Rights. The Borrower will,
and will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice and during
normal business hours, to visit and inspect its properties, to examine and make
extracts from its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants, all at such reasonable
times and as often as reasonably requested, subject to the provisions of Section
9.12 hereof.
SECTION 5.07. Compliance with Laws. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property (including,
without limitation, all Environmental Laws) except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used
only for general corporate purposes of the Borrower and its subsidiaries in the
ordinary course of business, including refinancing of existing debt and
permitted acquisitions. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of any
of the Regulations of the Board, including Regulations T, U and X.
SECTION 5.09. Subsidiary Guarantees and Collateral. The Borrower shall
cause each Subsidiary which becomes a Material Domestic Subsidiary after the
Closing Date (whether by creation, acquisition, expansion or otherwise) to
promptly execute and deliver to the Administrative Agent or the Collateral
Agent, as the case may be, (a) a Subsidiary Guarantee and Subsidiary
Subordination Agreement, (b) instruments in form and substance reasonably
satisfactory to the Collateral Agent pursuant to which the new Material Domestic
Subsidiary shall become a party to the Security Documents, and (c) such other
financing statements, documents and certificates as may be reasonably requested
by the Administrative Agent or the Collateral Agent to establish the
organization and good standing of such Material Domestic Subsidiary, the due
authorization and execution of the Subsidiary Guarantee, Subsidiary
Subordination Agreement and the Security Documents, and the perfection of the
Liens created by the Security Documents. With respect to each new Material
Domestic Subsidiary or Material Foreign Subsidiary formed or acquired after the
Closing Date, the Borrower and each Material Domestic Subsidiary shall, in
addition to executing the documents described in the preceding sentence, pledge
and deliver to the Collateral Agent 100% of the Capital Stock of each new
Material Domestic Subsidiary and 65% of the Capital Stock of each new Material
Foreign Subsidiary), together with undated stock powers duly executed in blank.
SECTION 5.10. Maintenance of Liens of the Security Documents. The
Borrower shall, and shall cause each Material Domestic Subsidiary to: (a)
promptly, upon the reasonable request of the Collateral Agent, at the Borrower's
expense, execute, acknowledge and deliver any document or instrument
supplemental to or confirmatory of the Security Documents or otherwise
reasonably deemed by the Collateral Agent necessary or desirable for the
continued validity, perfection and priority of the Liens in the Collateral
covered thereby, and (b) promptly notify the Collateral Agent in writing of any
change in (i) its corporate name, (ii) the location of its chief executive
office, its principal place of business or any office in which it maintains
books or records relating to collateral or at which the collateral is located
(including the establishment of any new office or facility), (iii) in its
identity or corporate structure (iv) any newly acquired intellectual property
registrations or applications therefore in the United States owned by it, or (b)
in its federal taxpayer identification number. If at any time following the
Closing Date the Borrower or any of its Material Domestic Subsidiaries shall
acquire property which is required by the terms hereof or of any of the Security
Documents to be subject to the Lien created by the Security Documents but is not
subject to such Lien, as soon as possible after the acquisition date, the
Borrower shall grant or cause to be granted to the Collateral Agent a first
priority Lien in such property pursuant to documentation reasonably satisfactory
in form and substance to the Collateral Agent.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full,
the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness. The Borrower will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except Indebtedness of the following nature which is otherwise permitted under
Section 6.11 hereof:
(a) Indebtedness created hereunder and under the other
Transaction Documents;
(b) Indebtedness existing on the date hereof and set forth in
Schedule 6.01, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof;
(c) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary, provided that
Indebtedness of Subsidiaries who are not Material Domestic Subsidiaries
owed to the Borrower or any Material Domestic Subsidiary shall not
exceed $35,000,000 in the aggregate, of which no more than $25,000,000
may be owed by Subsidiaries other than Kenwood Silver Company, Inc.;
(d) Guarantees by the Borrower of Indebtedness of any
Subsidiary permitted under this Agreement and by any Subsidiary of
Indebtedness of the Borrower or any other Subsidiary permitted under
this Agreement, provided that the Borrower and the Material Domestic
Subsidiaries shall not Guarantee Indebtedness of Subsidiaries which are
not Material Domestic Subsidiaries in excess of $15,000,000 in the
aggregate;
(e) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition
thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof; provided that (i) such Indebtedness is incurred prior to or
within 180 days after such acquisition or the completion of such
construction or improvement, (ii) the amount of such Indebtedness does
not exceed the cost of such acquisition, construction or improvement,
and (iii) the aggregate principal amount of Indebtedness permitted by
this clause (e) shall not exceed $25,000,000 at any time outstanding;
(f) Indebtedness of any Person that becomes a Subsidiary after
the date hereof; provided that (i) the creation or acquisition of the
Subsidiary is permitted by the terms hereof, (ii) such Indebtedness
exists at the time such Person becomes a Subsidiary and is not created
in contemplation of or in connection with such Person becoming a
Subsidiary and (iii) the principal amount of such Indebtedness, when
added to other Indebtedness of Borrower and its Subsidiaries, does not
violate subparagraphs (e) or (i) of this Section;
(g) unsecured Indebtedness of the Borrower; and
(h) unsecured Indebtedness of the Borrower's Subsidiaries
which does not exceed, in the aggregate, $25,000,000 outstanding at any
time, exclusive of unsecured Indebtedness of Subsidiaries listed on
Schedule 6.01.
SECTION 6.02. Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 3.12;
provided that (i) such Lien shall not apply to any other property or
asset of the Borrower or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on
any property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) the acquisition of such property or assets or such
Subsidiary is permitted by the terms hereof, (ii) such Lien is not
created in contemplation of or in connection with such acquisition or
such Person becoming a Subsidiary, as the case
may be, (iii) such Lien shall not apply to any other property or
assets of the Borrower or any Subsidiary and (iv) such Lien shall
secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case
may be and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof;
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (i) such
security interests secure Indebtedness permitted by clause (e) of
Section 6.01, (ii) such security interests and the Indebtedness secured
thereby are incurred simultaneously with or within 180 days after such
acquisition or the completion of such construction or improvement,
(iii) the Indebtedness secured thereby does not exceed 100% of the cost
of acquiring, constructing or improving such fixed or capital assets
and (iv) such security interests shall not apply to any other property
or assets of the Borrower or any Subsidiary; and
SECTION 6.03. Fundamental Changes. (a) The Borrower will not, and will
not permit any Subsidiary to, merge into or consolidate with any other Person,
or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions), or engage in a sale/leaseback transaction with respect to, any
substantial part of its assets, any trade receivables (other than an assignment
in connection with the collection thereof in the ordinary course of business),
or all or substantially all of the stock of any of its Subsidiaries (in each
case, whether now owned or hereafter acquired), or liquidate or dissolve, except
that, if at the time thereof and immediately after giving effect thereto no
Default or Event of Default shall have occurred and be continuing (i) any
Subsidiary/Person may merge into the Borrower in a transaction in which the
Borrower is the surviving corporation, (ii) any Subsidiary/Person may merge into
a Material Domestic Subsidiary in a transaction in which the surviving entity is
a Material Domestic Subsidiary, (iii) any Subsidiary may sell, transfer, lease
or otherwise dispose of its assets to the Borrower or to a Material Domestic
Subsidiary, (iv) any Subsidiary may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and the assets of such Subsidiary are distributed to
Borrower in liquidation or dissolution, (v) Borrower may sell its investment in
▇▇▇▇▇▇ Zwiesel Glaswerke, AG for consideration (whether cash, property or other
consideration) of not less than 7,500,000 DM, and (vi) Borrower and its
Subsidiaries may sell, transfer, or otherwise dispose of (in one transaction or
a series of transactions), or engage in a sale/leaseback transaction with
respect to, assets if the consideration received is in cash or cash equivalents
at least equal to the fair market value of such assets and the aggregate
consideration received does not exceed $15,000,000 for all such sales,
transfers, or dispositions; provided that any such merger permitted by clauses
(i) or (ii) above involving a Person that is not a wholly owned Subsidiary
immediately prior to such merger shall not be permitted unless also permitted by
Section 6.04.
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, engage to any material extent in any business other than the Tableware
Business.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Subsidiary prior to such merger) any Capital Stock,
evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist
any investment or any other interest in, any other Person, or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of
any other Person constituting a business unit, except Borrower and its
Subsidiaries may engage in transactions of the following nature so long as no
Default or Event of Default exists or would be created as a result thereof:
(a) Permitted Investments;
(b) investments by the Borrower existing on the date hereof in the
Capital Stock of its Subsidiaries and in ▇▇▇▇▇▇ Zwiesel Glaswerke, AG;
(c) loans or advances made by the Borrower to any Subsidiary and made
by any Subsidiary to the Borrower or any other Subsidiary which constitute
Indebtedness permitted by Section 6.01, provided that loans or
advances made by Borrower or any Material Domestic Subsidiary are evidenced by a
promissory note or other instrument which is pledged to the Collateral Agent
pursuant to the Security Documents;
(d) Guarantees constituting Indebtedness permitted by Section 6.01(d);
(e) repurchases or redemptions of the capital stock of Borrower
permitted by applicable law;
(f) the purchase by Borrower of the remaining outstanding Capital Stock
of Oneida International Inc. which it currently does not own for a purchase
price of not more than 845,000,000 Italian Lira; and
(g) purchases or acquisitions of (whether by merger, consolidation,
purchase, share exchange or otherwise), or investments in, the assets or Capital
Stock of another Person, provided that (i) prior to any such purchase,
acquisition or investment, the Administrative Agent shall have received a
certificate from a Financial Officer of Borrower (A) setting forth calculations
which demonstrate that, on a pro forma basis, after giving effect to the
proposed purchase, acquisition or investment, the Consolidated Leverage Ratio of
Borrower and its Subsidiaries is less than 2.50 to 1.0 and the Borrower is in
compliance with Section 6.11 hereof as of the end of the most recent Fiscal
Quarter, and (B) certifying that no other Default or Event of Default exists or
would be created as a result thereof, (ii) the Person purchased or acquired or
in which an investment is made is engaged solely in the Tableware Business, and
(iii) the aggregate consideration (exclusive of consideration consisting solely
of the Capital Stock of the Borrower) paid by Borrower or any Subsidiary in
connection with the purchase of assets from, acquisition of the Capital Stock
of, or investment in, any single Person (whether in a single transaction or in a
series of transactions) shall not exceed $20,000,000 without the consent of the
Required Lenders.
SECTION 6.05. Hedging Agreements. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities; provided that the maximum
aggregate amount (after giving effect to any netting agreements) that the
Borrower and its Subsidiaries would be required to pay under all such Hedging
Agreements if such Hedging Agreements were terminated at any time shall not
exceed $5,000,000.
SECTION 6.06. Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, or (b)
transactions between or among the Borrower and its wholly owned Subsidiaries not
involving any other Affiliate.
SECTION 6.07. Restrictive Agreements. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon the ability of any Subsidiary to pay dividends or
other distributions with respect to any shares of its Capital Stock or to make
or repay loans or advances to the Borrower or any other Subsidiary or to
Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that
(i) the foregoing shall not apply to restrictions and conditions imposed by law
or by this Agreement, (ii) the foregoing shall not apply to restrictions and
conditions existing on the date hereof identified on Schedule 6.07 (but shall
apply to any extension or renewal of, or any amendment or modification expanding
the scope of, any such restriction or condition), and (iii) the foregoing shall
not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder.
SECTION 6.08. Fiscal Year and Accounting Policies. The Borrower shall
not make any change in its Fiscal Year or change its accounting policies or
practices from those in effect on the Closing Date, except to the extent such
change is required by GAAP.
SECTION 6.09. Subordinated Debt. The Borrower shall not, and will not
permit any of its Subsidiaries to, modify the terms of any Subordinated Debt or
to pay any principal of, interest on, or other amount in respect of,
Subordinated Debt other than scheduled payments of principal and interest on
Subordinated Debt if and
to the extent permitted under the terms of a written subordination agreement
executed and delivered by the subordinated creditor containing terms acceptable
to the Administrative Agent.
SECTION 6.10. Negative Pledges. The Borrower shall not, and shall not
permit any of its Subsidiaries to, enter into any agreement which prohibits or
limits the ability of Borrower or any of its Subsidiaries to create, incur,
assume or suffer to exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired, except operating leases, purchase money
Liens or Capital Lease Obligations permitted by this Agreement containing such a
prohibition or limitation solely as to the assets financed thereby.
SECTION 6.11. Financial Covenants. The Borrower shall not:
(a) for a period of four consecutive Fiscal Quarters ending with its
most recent Fiscal Quarter, permit the Consolidated Interest Coverage Ratio of
the Borrower and its Subsidiaries to be less than 3.0 to 1.0;
(b) permit the Consolidated Leverage Ratio of the Borrower and its
Subsidiaries to be greater than (i) 3.10 to 1.0 as of the last day of the Fiscal
Quarter ending April 28, 2001, and (ii) 3.0 to 1.0 as of the last day of each
succeeding Fiscal Quarter:
(c) as of the last day of any Fiscal Quarter, permit Consolidated Net
Worth of the Borrower and its consolidated Subsidiaries to be less than the sum
of (i) $118,000,000, plus (ii) 75% of the Consolidated Net Income of Borrower
and its consolidated Subsidiaries (which for the purposes of this covenant shall
not be reduced by losses) for the six-month periods ending with each second and
fourth Fiscal Quarter commencing with the Fiscal Quarter ending July 29, 2001.
SECTION 6.12. Letters of Credit. The Borrower will not, and will not
permit any Subsidiary to, become an account party in respect of, or otherwise
incur obligations under, any letters of credit or bankers' acceptances except
obligations in respect of (i) trade letters of credit and bankers' acceptances
in an amount not to exceed $15,000,000 in the aggregate and (ii) standby letters
of credit in an amount not to exceed $20,000,000 in the aggregate.
SECTION 6.13. Deposit Accounts. The Borrower will not, and will not
permit any of its Material Domestic Subsidiaries to, open or maintain any
Deposit Account with a Person other than one of the Lenders unless the
Collateral Agent shall have a perfected first priority Lien therein.
SECTION 6.14. Prepayment of Indebtedness. The Borrower will not, and
will not permit any of its Subsidiaries to, make any optional payment or
prepayment of, or purchase or redeem, any Indebtedness except (a) payments of
the Loans hereunder, (b) payments made in the ordinary course of business of
other Indebtedness consisting of working capital lines of credit or metal
consignment facilities which contemplate unscheduled periodic payments and
advances or readvances, (c) prepayments of Senior Secured Indebtedness
(including the Loans hereunder), other than those permitted by clauses (a) and
(b), provided the prepayments are applied to all Senior Secured Indebtedness on
a pro rata basis and the Commitments hereunder are permanently reduced by the
amount of the payments applied to the Loans under this subparagraph, (d)
optional payments or prepayments of Indebtedness other than Senior Secured
Indebtedness not to exceed $10,000,000 in the aggregate, or (e) prepayments of
Indebtedness in connection with refinancings or replacements of such
Indebtedness that do not increase the outstanding principal amount thereof.
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. If any of the following events
("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Section) payable under this Agreement, when and as the same
shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any Subsidiary in or in connection with
this Agreement, any other Transaction Document or any amendment,
modification or waiver hereof or thereof, or in any report,
certificate, financial statement or other document furnished pursuant
to or in connection with this Agreement, any other Transaction
Document, or any amendment, modification or waiver hereof or thereof,
shall prove to have been incorrect in any material respect when made or
deemed made;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.03 (with
respect to the Borrower's existence) or 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other
than those specified in clause (a), (b) or (d) of this Section) or in
any other Transaction Document, and such failure shall continue
unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the
request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, within three Business Days of the
date the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or of a substantial part of its assets, under
any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Subsidiary or for a substantial part
of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in
clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or
for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors
or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit
in writing its inability or fail generally to pay its debts as they
become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $1,500,000 shall be rendered against the
Borrower, any Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be
effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of the Borrower or any
Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a
Material Adverse Effect;
(m) a Change in Control shall occur;
(n) any Subsidiary Guarantee shall cease, for any reason
(except as expressly provided in such Guarantee), to be in full force
and effect or any Guarantor shall so assert; or
(o) any of the Security Documents shall cease, for any reason,
to be in full force and effect or the Borrower or any Loan Party shall
so assert, or the Lien created by any of the Security Documents shall
cease to be a valid, enforceable and perfected first priority Lien on
any material portion of the Collateral (except as otherwise provided in
such Security Document or this Agreement), provided that the failure of
any such Lien to be a valid, enforceable and perfected first priority
Lien shall not constitute an Event of Default if such failure can be
remedied and Borrower, within 10 days after notice of such failure from
the Administrative Agent, takes all necessary action and executes all
necessary instruments to grant to the Collateral Agent a valid,
enforceable and perfected first priority Lien in the Collateral;
then, and in every such event (other than an event with respect to the
Borrower described in clause (h) or (i) of this Section), and at any
time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Borrower, take either or both of the following
actions, at the same or different times: (i) terminate the Commitments,
and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or
in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and
thereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and
payable immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower; and
in case of any event with respect to the Borrower described in clause
(h) or (i) of this Section, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together
with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower.
ARTICLE VIII
Administrative Agent
SECTION 8.01. The Administrative Agent. (a) Each of the Lenders hereby
irrevocably appoints the Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof,
together with such actions and powers as are reasonably incidental thereto.
(b) The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
(c) The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
bank serving as Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document, or
(v) the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
(d) The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
(e) The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
(f) Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
(g) Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions
in taking or not taking action under or based upon this Agreement, any related
agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at Oneida Ltd., ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief
Financial Officer (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to Oneida
Ltd., Legal Department, ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Counsel (Telecopy No. (315)
361-3700);
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of May ▇▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇), with a copy to The Chase Manhattan Bank, Bridgewater
Place, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention of ▇▇▇▇▇▇
▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to the Swingline Lender, to The Chase Manhattan Bank,
Loan and Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of May ▇▇▇▇ (Telecopy No. (212)
552-5650), with a copy to The Chase Manhattan Bank, Bridgewater Place,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention of ▇▇▇▇▇▇ ▇▇▇▇
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(d) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent, and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.16(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, (v)
release any Guarantor from its
obligations under a Subsidiary Guarantee without the written consent of each
Lender, or (vi) change any of the provisions of this Section or the definition
of "Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender; provided further that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent or
the Swingline Lender hereunder without the prior written consent of the
Administrative Agent or the Swingline Lender, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of this Agreement or any amendments, modifications or waivers
of the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), and (ii) all out-of-pocket expenses incurred by
the Administrative Agent, the Collateral Agent or any Lender, including the
fees, charges and disbursements of any counsel for the Administrative Agent, the
Collateral Agent or any Lender, in connection with the enforcement or protection
of its rights in connection with this Agreement or any of the other Transaction
Documents, including its rights under this Section, or in connection with the
Loans made hereunder, including all such out-of-pocket expenses incurred during
any workout, restructuring or negotiations in respect of such Loans or
foreclosure of any Lien created by the Security Documents.
(b) The Borrower shall indemnify the Administrative Agent, the
Collateral Agent and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Transaction Document or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or the use of the proceeds
therefrom (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to
be paid by it to the Administrative Agent or the Swingline Lender under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the Swingline Lender, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the Swingline Lender in its capacity as
such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Transaction Document or any agreement or
instrument contemplated hereby, the Transactions, any Loan or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable not later than
five days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the
prior written consent of each Lender (and any attempted assignment or transfer
by the Borrower without such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it); provided that (i) except
in the case of an assignment to an Affiliate of a Lender which does not subject
Borrower to a claim by the Affiliate for compensation under Section 2.13 or
Section 2.15 hereof, the Borrower must give its prior written consent to such
assignment (which consent shall not be unreasonably withheld), (ii) except in
the case of an assignment to a Lender or an Affiliate of a Lender, the
Administrative Agent (and, in the case of an assignment of all or a portion of a
Commitment or any Lender's obligations in respect of its Swingline Exposure, the
Swingline Lender) must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld), (iii) except in the case of
an assignment to a Lender or an Affiliate of a Lender or 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
each of the Borrower and the Administrative Agent otherwise consent, (iv) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement, (v) the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Acceptance, together with a processing and recordation fee of
$3,500 to be paid by the assignor or assignee, and (vi) the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire. Any consent of the Borrower otherwise required
under this paragraph (A) shall not be required if an Event of Default has
occurred and is continuing and (B) shall not be deemed to be unreasonably
withheld if Borrower has determined in its reasonable discretion that the
proposed assignment would result in one Lender having an unreasonably high
percentage of the total Commitments or would leave the assigning Lender with an
unreasonably small percentage of the total Commitments. Subject to acceptance
and recording thereof pursuant to paragraph (d) of this Section, from and after
the effective date specified in each Assignment and Acceptance the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.13, 2.14, 2.15 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in the City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent, or the Swingline Lender, sell participations to one or
more banks or other entities (a "Participant") in all or a portion of
such Lender's rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and the other Transaction Documents to which it is a
party and to approve any amendment, modification or waiver of any provision of
this Agreement and the other Transaction Documents; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant. Subject to
paragraph (f) of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 2.13, 2.14 and 2.15 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 9.08 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.16(c) as
though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.13 or 2.15 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.15 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.15(e) as
though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent, or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
and so long as the Commitments have not expired or terminated. The provisions of
Sections 2.13, 2.14, 2.15 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans and the Commitments or the
termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. This Agreement amends
and restates in its entirety the Initial Credit Agreement. All loans outstanding
under the Initial Credit Agreement shall be deemed to be Loans of the same type
and Interest Period outstanding under this Agreement and shall be governed by
the terms hereof. Except as provided in Section 4.01, this Agreement shall
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. Each Lender shall give Borrower notice of the
amount of any set-off under this Section within a reasonable period of time
after the exercise thereof. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of setoff) which
such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each party hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the State and
Federal courts located in the State of New York, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement and the other Transaction Documents, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent,
the Collateral Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or the other Transaction Documents against
the Borrower 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.
(c) Each party hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement and the other Transaction Documents
in any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors who need to know such Information (it being understood that
the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (g) with the prior written consent of the Borrower or (h) to the
extent such Information (i) becomes publicly available other than as a result of
a breach of this Section or (ii) becomes available to the Administrative Agent
or any Lender on a nonconfidential basis from a source not known by the
Administrative Agent or Lender to be under an obligation of confidentiality with
respect thereto. For the purposes of this Section, "Information" means all
information received from the Borrower relating to the Borrower or its business,
other than any such information that is available to the Administrative Agent or
any Lender on a nonconfidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower after the
date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
ONEIDA LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Vice President
BANK OF AMERICA, N.A., individually
as Syndicated Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
FLEET NATIONAL BANK, individually
and as Documentation Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
HSBC BANK, USA, individually and as
Senior Managing Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Banking Officer
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
EUROPEAN AMERICAN BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BANCA NAZIONALE DEL LAVORO S.p.A.
New York Branch
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: First Vice President
EXHIBIT A
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement dated as
of April 27, 2001 (as amended and in effect on the date hereof, the "Credit
Agreement"), among Oneida Ltd., the Lenders named therein and The Chase
Manhattan Bank, as Administrative Agent for the Lenders. Terms defined in the
Credit Agreement are used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and assigns,
without recourse, to the Assignee named on the reverse hereof, and the Assignee
hereby purchases and assumes, without recourse, from the Assignor, effective as
of the Assignment Date set forth on the reverse hereof, the interests set forth
on the reverse hereof (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth on the reverse hereof in the Commitment of the Assignor on
the Assignment Date and Revolving Loans owing to the Assignor which are
outstanding on the Assignment Date, together with the participations in
Swingline Loans held by the Assignor on the Assignment Date, but excluding
accrued interest and fees to and excluding the Assignment Date. The Assignee
hereby acknowledges receipt of a copy of the Credit Agreement. From and after
the Assignment Date (i) the Assignee shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the Assigned Interest,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent of the Assigned Interest, relinquish its rights and be
released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.15(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The [Assignee/Assignor] shall pay the fee payable to the
Administrative Agent pursuant to Section 9.04(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
======================================= =============================== ===================================
Percentage Assigned of
Facility/Commitment (set forth,
to at least 8 decimals, as a
Principal Amount Assigned percentage of the Facility and
the aggregate Commitments of all
Lenders thereunder)
Facility
--------------------------------------- ------------------------------- -----------------------------------
Commitment Assigned: $ %
--------------------------------------- ------------------------------- -----------------------------------
Revolving Loans:
--------------------------------------- ------------------------------- -----------------------------------
======================================= =============================== ===================================
The terms set forth above and on the reverse side hereof are hereby agreed to:
[Name of Assignor], as Assignor
By:
------------------------------------
Name:
Title:
[Name of Assignee], as Assignee
By:
------------------------------------
Name:
Title:
The undersigned hereby consent to the within assignment:
Oneida Ltd. The Chase Manhattan Bank,
as Administrative Agent,
By: By:
------------------------------ --------------------------------
Name: Name:
Title: Title:
The Chase Manhattan Bank, as
as Swingline Lender,
By:
------------------------------
Name:
Title:
EXHIBIT B
FORM OF OPINION OF COUNSEL FOR THE BORROWER
April , 2000
---
To the Lenders and the Administrative
Agent Referred to Below
c/o The Chase Manhattan Bank, as
Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We have acted as special counsel for Oneida Ltd., a New York
corporation ("Borrower"), in connection with the Amended and Restated Credit
Agreement dated as of April 27, 2001 (the "Credit Agreement"), among Borrower,
the banks and other financial institutions identified therein as Lenders, and
The Chase Manhattan Bank, as Administrative Agent ("Administrative Agent").
Terms defined in the Credit Agreement are used herein with the same meanings.
We also have acted as special counsel to Buffalo China, Inc., Encore
Promotions, Inc., THC Systems Inc., Delco International Ltd. and Sakura, Inc.
(individually, a "Guarantor," and collectively, "Guarantors") in connection with
the negotiation, execution and delivery of a Subsidiary Guarantee granted by
each Guarantor and a Subordination Agreement entered into by Guarantors and
Borrower with the Administrative Agent (the Credit Agreement, the Subsidiary
Guarantees, and the Subordination Agreement being hereinafter collectively
referred to as the "Financing Documents").
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. Borrower and each Guarantor (a) is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation,
and (b) has all requisite power and authority to carry on its business as now
conducted, to own or lease its assets, and to make, deliver and perform its
obligations under the Financing Documents to which it is a party.
2. The Transactions are within the corporate powers of Borrower and each
Guarantor and have been duly authorized by all necessary corporate and, if
required, stockholder action. Each of the Financing Documents has been duly
executed and delivered by Borrower and each Guarantor (as the case may be) and
constitutes a legal, valid and binding obligation of Borrower and each
Guarantor.
3. The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (b)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of Borrower or any of its Subsidiaries or any
order of any Governmental Authority, (c) to our knowledge, will not violate or
result in a default under any indenture, agreement or other instrument binding
upon Borrower or any of its Subsidiaries or its assets, or give rise to a right
thereunder to require any payment to be made by Borrower or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of Borrower or any of its Subsidiaries.
4. To our knowledge, there are no actions, suits or proceedings by or
before any arbitrator or Governmental Authority pending against or threatened
against or affecting Borrower or any of its Subsidiaries (a) as
to which there is a reasonable possibility of an adverse determination and that,
if adversely determined, could reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect (other than the Disclosed Matters)
or (b) that involve any of the Financing Documents or the Transactions.
5. Neither Borrower nor any of its Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
The foregoing legal opinions are subject to the following qualifications
and are based on the following further assumptions:
(a) The enforceability of any rights and remedies provided in any Financing
Document against Borrower or any Guarantor is subject to (i) any applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting generally the enforcement of creditors' rights; (ii) equitable
limitations (regardless of whether considered in a proceeding in equity or at
law); and (iii) public policy limitations relating to principles of good faith
and fair dealing.
(b) We express no opinion with respect to (i) the enforceability of any
provisions in the Financing Documents relating to delay or omission of
enforcement of rights or remedies, or waivers of defenses, or waivers of
benefits of appraisement, valuation, stay, extension, moratorium, redemption,
statutes of limitation, or other nonwaivable benefits bestowed by operation of
law, (ii) the lawfulness or enforceability of any exculpation clauses, clauses
relating to releases of unmatured claims, clauses purporting to waive unmatured
rights, severability clauses, and clauses similar in substance or nature to the
foregoing clauses in the Financing Documents, (iii) the validity or
enforceability of any provision of any of the Financing Documents which might be
construed as a waiver of counterclaims; (iv) any right to collect any payment
due to the extent that such payment constitutes a penalty or forfeiture; or (v)
any provision which purports to require indemnification for wrongful or
negligent acts of the person to be indemnified or to provide a waiver of causes
of action arising in the future for wrongful or negligent acts of any person.
(c) We have assumed, without any investigation, with respect to each party
thereto other than Borrower and Guarantors: (i) the full capacity, power and
authority of such party to execute, deliver and perform the Documents, (ii) the
due execution and delivery of the Financing Documents by such party, and (iii)
the legality, validity and binding effect of the Financing Documents as against
such party.
(d) We have assumed, without any investigation, the genuineness of all
signatures, the legal capacity of natural persons, the authenticity and
completeness of all documents submitted to us as originals, the conformity to
original documents submitted to us as certified, photostatic or telestatic
copies, and the authenticity and completeness of originals of such copies.
(e) We observe that provisions of the Financing Documents which permit the
Administrative Agent or the Lenders to take action or make determinations, or to
benefit from indemnities and similar undertakings of Borrower or Guarantors, may
be subject to a requirement that such action be taken or such determinations be
made, and that any action or inaction by the Lenders or the Administrative Agent
which may give rise to a request for payment under such an undertaking be taken
or not taken, on a reasonable basis in good faith.
(f) Whenever our opinion is limited "to our knowledge," we are referring to
the actual knowledge of our attorneys which have been substantially involved in
the examination of the Financing Documents and we have, as to factual matters,
in rendering such opinion, relied exclusively on our review of the Financing
Documents and the representations and warranties of Borrower and Guarantors
contained therein. Such a limited opinion signifies only that during the course
of our representation of Borrower and Guarantors, no information has come to our
attention which would give us actual knowledge of the existence or absence of
such facts without any independent investigation by us which would determine the
existence or absence of such facts. No inference as to our knowledge of the
existence or absence of such facts shall be drawn from our representation of
Borrower and Guarantors. You are advised that our engagement by Borrower has
been limited to specific matters; consequently, there exist matters of a legal
nature involving Borrower about which we have not advised or represented
Borrower and of which we have no knowledge.
(g) We are members of the bar of the State of New York and do not hold
ourselves out as being expert in and, therefore, express no opinion as to the
laws of, any jurisdiction other than the State of New York and the general
federal law of the United States of America. This opinion is issued to the
Lenders and the Administrative Agent as of the date hereof and is necessarily
limited to the laws now in effect. This opinion is intended for use by the
Lenders and the Administrative Agent in connection with the Transactions and
does not extend to any other purpose and may not be relied upon by any other
Person (other than successors and assigns of the Lenders and the Administrative
Agent and Persons who acquire participations in the Loans) and no portion hereof
may be quoted or in any other way published or communicated without the express
written consent of the undersigned. No opinion may be inferred or implied beyond
the matters expressly stated herein and our opinions expressed herein must be
read in conjunction with the assumptions, limitations, exceptions, and
qualifications set forth in this letter.
Very truly yours,
EXHIBIT C
AMENDED AND RESTATED SUBSIDIARY GUARANTEE AGREEMENT
This Amended and Restated Subsidiary Guarantee Agreement, dated as of
April 27, 2001 is executed by BUFFALO CHINA, INC., ENCORE PROMOTIONS, INC., THC
SYSTEMS INC., DELCO INTERNATIONAL, LTD. and SAKURA, INC., each a New York
corporation (individually, a "Guarantor" and, collectively, the "Guarantors"),
for the benefit of the Persons that now are or at any time hereinafter become
party as a Lender to the Credit Agreement referred to below (the "Lenders"), The
Chase Manhattan Bank, as Administrative Agent under the Credit Agreement (in
such capacity the "Administrative Agent") and as Collateral Agent under the
Security Documents referred to below (in such capacity, the "Collateral Agent"),
and all other present and future holders of any of the Guaranteed Obligations
described herein (all such Persons, collectively, including the Lenders and the
Administrative Agent, referred to as the "Beneficiaries").
RECITALS
A. Each Guarantor is a wholly owned subsidiary of Oneida Ltd., a New
York corporation (the "Borrower").
B. Borrower is a party to a certain Credit Agreement dated as of June
2, 2000 among Borrower, the Lenders and the Administrative Agent (as amended,
the "Original Credit Agreement") Each of the Guarantors has entered into a
Subsidiary Guarantee Agreement guaranteeing the Borrowers obligations under the
Credit Agreement.
C. Borrower has requested that the Lenders and Administrative Agent
amend and restate the Credit Agreement. To induce the Lenders and Administrative
Agent to amend and restate the Credit Agreement, and in consideration thereof
and of any and all credit at any time extended under the Credit Agreement, as
amended and restated, Guarantors hereby amend and restate the Subsidiary
Guarantee Agreement.
D. In order to secure the Guarantor's obligations under this Amended
and Restated Subsidiary Guarantee Agreement, the Guarantors are simultaneously
executing and delivering to the Collateral Agent the Security Documents referred
to below.
[Remainder of page intentionally left blank]
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, 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:
"Credit Agreement" means the Amended and Restated Credit Agreement
dated as of April __, 2001 between Borrower, the Lenders and the Administrative
Agent, as the same has been and may hereafter be amended, modified, extended or
restated from time to time.
"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.
"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 Loan Documents, including without
limitation all principal, interest, premiums, commitment fees, up- front fees,
agency fees, legal fees or other fees and charges payable to the Beneficiaries
by the Borrower, 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.
"Loan Documents" means the Credit Agreement, the Security Documents and
any other agreement, document or instrument executed by the Borrower or any
other Person, delivered to the Administrative Agent or any of the Lenders, and
pertaining to any Guaranteed Obligations, as the same may hereafter be amended,
modified, extended or restated from time to time.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
a Guarantor, (b) the ability of a Guarantor to perform any of its obligations
under this Agreement, or (c) the rights or benefits available to the
Beneficiaries under this 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, 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. 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, the Collateral Agent
or the Required Lenders to Guarantors, all liability of Guarantors under this
Agreement shall become due and payable, without further notice or demand.
2.2 This Agreement constitutes a guarantee of payment 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.
The Guarantors jointly and severally represent and warrant 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 licenses, permits and other approvals of
any Governmental Authority 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, individually or in the aggregate, 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 could not, individually or in
the aggregate, 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 Loan 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 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 other
Loan Documents to which each Guarantor is a party will not violate any law, rule
or regulation or any indenture, agreement or other instrument 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 indenture,
agreement or other instrument.
3.5 After giving effect to the liability incurred by it under this
Agreement and the rights granted to it in Section 5 (including Guarantors'
ability to realize upon the rights granted to it under Section 5), (a) the fair
value of the assets of each Guarantor, at a fair valuation, will exceed its
debts and liabilities, subordinated, contingent or otherwise; (b) the present
fair saleable value of the property of each Guarantor will be greater than the
amount that will be required to pay the probable liability of its debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) each Guarantor, on a going
concern basis, will be able to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (d) each Guarantor will not have unreasonably small capital with
which to conduct the business in which it is engaged as such business is now
conducted and is proposed to be conducted following such date. If,
notwithstanding the foregoing, enforcement of the liability of any Guarantor
under this Agreement for the full amount of the Guaranteed Obligations would be
an unlawful or voidable transfer under any applicable fraudulent conveyance or
fraudulent transfer law or any comparable law, then the liability of such
Guarantor hereunder shall be reduced to the highest amount for which such
liability may then be enforced without giving rise to an unlawful or voidable
transfer under any such law.
4. Guarantee Absolute.
4.1 The obligations of the Guarantors hereunder are absolute,
unconditional and irrevocable 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 or extend the time of payment 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, renewed, amended or altered;
(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, remedy, power or
privilege under or in respect of the Loan 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
Borrower to creditors of Borrower;
(e) apply any sum by whomsoever paid or howsoever realized to such
debts, liabilities, obligations, interest, or expenses of collection owing by
Borrower or the 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:
(a) any failure, omission or delay on the part of the
Beneficiaries to comply with any term of the Loan Documents or any other
agreement or instrument applicable to any of the parties to the Loan Documents;
(b) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding with respect to the
Borrower or the Guarantors or any of their respective properties or any action
taken by any trustee or receiver or by any court in any such proceeding; and
(c) any limitation on the liability or obligations of the Borrower
or any other Person under the Loan 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 Loan Documents other
than by reason of a 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 the 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 the
Guarantor, including without limitation, any demand, presentment and protest,
proof of notice of nonpayment under the Loan 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 the Loan Documents;
(c) any notice of any assignment, sale, transfer, participation or
other disposition of any right, title or interest in the Loan 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 under the Loan Documents; and
(f) 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 the Guarantor.
4.5 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.
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, ▇▇▇ 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 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 Subsidiary Guarantee Agreement
limited to the extent required under subsection 3.5 (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 Subsidiary Guarantee
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 Subsidiary Guarantee Agreement to the Beneficiaries.
5.3 Guarantors hereby waive, release and discharge, absolutely,
unconditionally, irrevocably and forever, all rights of recourse, reimbursement,
contribution or indemnity and all other claims that Guarantors might otherwise
have or acquire against 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 Guarantors might otherwise have
or acquire against any Beneficiary by reason of any payment made by 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. Setoff. In the event that any amount becomes due and payable
hereunder and the Beneficiaries shall have demanded payment thereof from
Guarantors, 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) is 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.
7. 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.
8. Expenses. Guarantors shall be jointly and severally liable to the
Beneficiaries and shall 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 the collection or
enforcement or attempted collection or attempted enforcement of the
Beneficiaries' rights under this Agreement.
9. 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.
10. Governing Law. This Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York without
regard to any conflicts-of-laws rules.
11. Entire Agreement; Modifications. This Agreement contains the 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.
12. 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.
13. 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.
14. Jurisdiction and Venue. For purposes of this Agreement, each of the
Guarantors and the Beneficiaries hereby irrevocably consents and submits 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
Borrower in connection with or based on the Loan Documents to which 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 Loan 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 LOAN
DOCUMENT.
IN WITNESS WHEREOF, the Guarantors have executed this Subsidiary
Guarantee Agreement as of the date first written above.
BUFFALO CHINA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President - Finance
Address: ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier (fax) #: (▇▇▇) ▇▇▇-▇▇▇▇
ENCORE PROMOTIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President - Finance
Address: ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier (fax) #: (▇▇▇) ▇▇▇-▇▇▇▇
THC SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President - Finance
Address: ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier (fax) #: (▇▇▇) ▇▇▇-▇▇▇▇
DELCO INTERNATIONAL, LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President - Financer
Address: ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier (fax) #: (▇▇▇) ▇▇▇-▇▇▇▇
SAKURA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President - Finance
Address: ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier (fax) #: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT D
AMENDED AND RESTATED SUBSIDIARY SUBORDINATION AGREEMENT
This Amended and Restated Subsidiary Subordination Agreement (the
"Agreement"), dated as of April 27, 2001, is among ONEIDA LTD., a New York
corporation (the "Borrower"), BUFFALO CHINA, INC., ENCORE PROMOTIONS, INC., THC
SYSTEMS, INC., DELCO INTERNATIONAL, LTD. and SAKURA, INC., each a New York
corporation (individually, a "Guarantor" and, collectively, the "Guarantors"),
and THE CHASE MANHATTAN BANK, as Administrative Agent (in such capacity, the
"Administrative Agent") for the Lenders which now are or hereafter become
parties to the Credit Agreement referred to below (collectively referred to as
the "Lenders") and as Collateral Agent (in such capacity, the "Collateral
Agent"), for the secured parties under the Security Documents referred to below.
RECITALS
A. The Lenders, the Administrative Agent and Borrower are parties to a
certain Credit Agreement dated as of June 2, 2000 (the "Original Credit
Agreement"). Concurrently herewith, the Lenders, the Administrative Agent and
Borrower are entering into a an Amended and Restated Credit Agreement dated as
of April __, 2001(as amended, modified or restated from time to time, the
"Credit Agreement") which amends and restates the Original Credit Agreement.
B. Guarantors are subsidiaries of Borrower. Each of the Guarantors has
executed and delivered to the Administrative Agent an Amended and Restated
Subsidiary Guarantee Agreement dated as of the date hereof (the "Guarantee
Agreement") guarantying repayment of the Borrower's obligations under the Credit
Agreement.
C. Borrower from time to time extends credit to the Guarantors in the
form of loans, advances, accounts receivable, administrative services and
expenses, and other inter-company accommodations made by the Borrower to the
Guarantors. In connection with the Original Credit Agreement, each of the
Guarantors has executed a Subsidiary Subordination Agreement agreeing to
subordinate payment of such inter-company accommodations to the prior payment of
obligations under the Original Credit Agreement.
D. The Lenders, as a condition to entering into the Credit Agreement
and providing the loans and advances thereunder, have required the Borrower and
the Guarantors to amend and restate the Subsidiary Subordination Agreement.
[Remainder of page intentionally left blank]
NOW, THEREFORE, in order to induce the Lenders to enter into the Credit
Agreement and in consideration thereof, the Borrower and the Guarantors agree as
follows:
1. Definitions.
1.1 As used herein, the following terms shall have the following
meanings:
"Collateral Agent" shall have the meaning given to such term in the
Recitals.
"Credit Agreement" shall have the meaning given to such term in 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.
"Guarantee Agreement" shall have the meaning given to such term in the
Recitals.
"Guaranteed Obligations" shall have the meaning given to such term in
the Guarantee Agreement.
"Loan Documents" shall mean all credit accommodations, notes, loan
agreements, and any other agreements and documents, now or hereafter existing,
creating, evidencing, guarantying, securing or relating to any or all of the
Senior Liabilities (including the Security Documents), together with all
amendments, modifications, renewals, or extensions thereof.
"Required Lenders" 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 Guarantors to
the Administrative Agent and the Lenders under the Guarantee Agreement,
including, without limitation, the principal amount of all Guaranteed
Obligations and all interest payable in respect thereof, together with all fees,
late charges, premiums, costs and expenses payable under the Guarantee
Agreement.
"Subordinated Liabilities" shall mean all liabilities of 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, but
excluding all such amounts payable to the Borrower if the Collateral Agent shall
have a perfected first priority 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, guarantying, securing or relating to any or all
of the Subordinated Liabilities, together with all amendments, modifications,
renewals or extensions thereof.
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 or as the Required Lenders may hereinafter otherwise
expressly consent in writing, 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 Guarantors be applied to
the purchase or other acquisition or retirement of any Subordinated Liabilities,
nor given to the Borrower as collateral security to secure repayment of same.
2.2 Permitted Payments. Notwithstanding anything in Section 2.1 to the
contrary, until such time as an Event of Default occurs, Guarantors may make,
and Borrower may receive, 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 Guarantors shall not make, and
Borrower shall not receive, any such payments unless the Lenders shall expressly
consent thereto in writing.
2.3 Rights of Lenders to Collect Subordinated Liabilities. In the event
of, and commencing with the date thereof, any dissolution, winding up,
liquidation, reorganization or other similar proceedings relating to any
Guarantor or to its creditors or its property (whether voluntary or involuntary,
partial or complete, and whether in bankruptcy, insolvency or receivership, or
upon an assignment for the benefit of creditors, or any other marshalling of the
assets and liabilities of a Guarantor, or any sale of all or substantially all
of the assets of a Guarantor), the Senior Liabilities shall first be paid in
full before the Borrower 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 would
be entitled but for the provisions of this Agreement will be made directly to
the Lenders; and (ii) the Borrower 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 Lenders.
2.4 Protection of Lenders' Rights in Subordinated Liabilities. In the
event that, after the occurrence of an Event of Default, 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,
other than as expressly permitted by the terms of this Agreement, such payment
or other distribution shall be received in trust for the Lenders and promptly
turned over by the Borrower to the Administrative Agent. The Borrower will cause
to be clearly inserted in any promissory note or other instrument 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 will execute such further documents and instruments and
take such further action as the Lenders may from time to time reasonably request
to carry out the intent of this Agreement. The Borrower hereby irrevocably
appoints 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 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 Lenders in respect of the Subordinated
Liabilities, to the extent received in or converted into cash, may be applied by
the Lenders 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 Lenders 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 terms of the Credit Agreement.
2.6 Prohibition on Changes in Subordinated Liabilities. The Borrower
will not, without the prior written consent of the Lenders: (i) cancel, waive,
or forgive any Subordinated Liabilities or any rights in respect thereof, or
(ii) convert any Subordinated Liabilities into capital stock 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 Lenders may, from time to time, take any or all of
the following actions without affecting the subordination set forth in this
Agreement: (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 or exchange 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 and each Guarantor
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 any provision of law
or regulation or result in the breach of, or constitute a default or require any
consent under, any indenture or other agreement or instrument 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 and each Guarantor,
enforceable in accordance with its terms.
4. Additional Subordinated Liabilities. If, under the terms of the Credit
Agreement, any other Material Domestic Subsidiary of Borrower (as that term is
defined in the Credit Agreement) becomes obligated to deliver to the
Administrative Agent a written guarantee of amounts due under the Credit
Agreement, Borrower agrees to subordinate all liabilities of such Subsidiary to
the Borrower for loans, advances, accounts receivable, administrative services
and expenses and other inter-company accommodations to the prior payment of the
such Subsidiary's liability under the written guarantee unless the Collateral
Agent shall have a perfected first priority security interest in Borrower's
rights to receive payment thereof. Borrower agrees to execute, and to cause such
Subsidiary to execute, a subordination agreement in form and substance similar
to this Agreement.
5. Miscellaneous.
5.1 Remedies Cumulative: No Waiver. The rights, powers and remedies of
the Administrative Agent, the Collateral Agent, and the Lenders provided in this
Agreement and any of the Loan 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 Lenders 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.
5.2 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 Lenders 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 Guarantee
Agreements, as the case may be.
5.3 Governing Law. This Agreement shall be construed in accordance with
and governed by the substantive laws of the State of New York without reference
to conflict of laws principles.
5.4 Integration; Amendment. This Agreement and the other Loan 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.
5.5 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.
5.6 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.
5.7 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 Loan 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 Lenders 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 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 LOAN DOCUMENT.
5.8 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date set forth above.
ONEIDA LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Financial Officer
BUFFALO CHINA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President - Finance
ENCORE PROMOTIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President - Finance
THC SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President - Finance
DELCO INTERNATIONAL, LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President - Finance
SAKURA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President - Finance
THE CHASE MANHATTAN BANK,
as Administrative Agent and Collateral Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
-----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Vice President
SCHEDULE 2.01
Lenders' Commitments
Name of Lender Amount of Commitment
-------------- --------------------
The Chase Manhattan Bank $ 45,000,000
Bank of America, N.A. $ 35,000,000
Fleet National Bank $ 45,000,000
HSBC Bank, USA $ 45,000,000
Manufacturers and Traders
Trust Company $ 40,000,000
Bank of Nova Scotia $ 35,000,000
European American Bank $ 15,000,000
Banca Nazionale Del Lavoro $ 15,000,000
-----------
TOTAL $ 275,000,000
===========
