EXHIBIT 10.2
AMENDMENT NO. 1
AMENDMENT NO. 1 (this "Amendment"), dated as of October 15, 2004, to
the Second Amended and Restated Credit Agreement dated as of August 9, 2004 (as
the same may be further amended, amended and restated, supplemented or otherwise
modified, renewed or replaced from time to time, the "Credit Agreement"), among
Oneida Ltd., as borrower (the "Borrower"), the financial institutions from time
to time party thereto (collectively, the "Lenders") and JPMorgan Chase Bank
("JPMorgan Chase"), as administrative agent (the "Administrative Agent") and
collateral agent (the "Collateral Agent") for the Lenders.
INTRODUCTORY STATEMENT
A. All capitalized terms not otherwise defined in this Amendment
are used herein as defined in the Credit Agreement.
B. The Borrower has requested that the Lenders amend the Credit
Agreement to permit the existence of certain Liens filed by the PBGC in favor of
any Plan.
C. The Borrower and the Lenders have agreed to amend certain
provisions of the Credit Agreement as set forth herein.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. Amendments to Credit Agreement. As of the Effective Date
(subject to the terms and conditions set forth in Section 2 hereof), Section 6.2
of the Credit Agreement is hereby amended by deleting clause (d) thereof in its
entirety and inserting the following clause (d) in lieu thereof:
"(d) (i) existing Liens listed on Schedule 6.2(d) hereto and
(ii) additional Liens that may be imposed on the Borrower's or
any Guarantor's assets in favor of any Plan pursuant to
Section 412 of the Code to secure minimum funding
contributions in respect of any Plan for the 2004 plan year,
provided that the PBGC shall have agreed to subordinate such
additional Liens to the Liens granted to the Collateral Agent
pursuant to the Security Documents for the benefit of the
Lenders, and such subordination agreement shall be
satisfactory to the Required Lenders in their sole
discretion."
SECTION 2. Conditions to Effectiveness. This Amendment shall become
effective on the date on which each of the following conditions has been met
(the "Effective Date"):
(a) execution and delivery (including by facsimile) of this
Amendment by the Borrower, the Administrative Agent and the Required Lenders;
(b) execution and delivery (including by facsimile) of the Consent
and Reaffirmation of Guarantors at the end hereof by the Guarantors;
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(c) payment of outstanding professionals' fees and expenses of the
Administrative Agent and Collateral Agent;
(d) delivery to the Administrative Agent of a certificate of an
Authorized Officer certifying that, after giving effect to this Amendment, no
Default or Event of Default shall exist and each of the representations and
warranties made by the Borrower or any of its Subsidiaries herein and in or
pursuant to the Fundamental Documents shall be true and correct in all material
respects as if made on and as of the date on which this Amendment becomes
effective; and
(e) the Administrative Agent shall have received an executed
subordination letter from the PBGC, in form and substance satisfactory to the
Required Lenders, in their sole discretion, pursuant to which the PBGC agrees to
subordinate all of the Liens in favor of any Plan to the Liens in favor of the
Collateral Agent granted pursuant to the Security Documents.
SECTION 3. Restatement of Representations and Warranties. The Borrower
hereby restates and renews each and every representation and warranty heretofore
made by it in the Credit Agreement and the other Fundamental Documents as fully
as if made on the date hereof (but after giving effect to this Amendment).
SECTION 4. Effect of Amendment. Except as set forth expressly
hereinabove, all terms of the Credit Agreement and the other Fundamental
Documents shall be and remain in full force and effect, and shall constitute the
legal, valid, binding and enforceable obligations of the Borrower.
SECTION 5. Reaffirmation; No Novation. The Borrower expressly
acknowledges and agrees that: (i) there has not been, and this Amendment does
not constitute or establish, a novation with respect to the Credit Agreement or
any of the Fundamental Documents and (ii) nothing in this Amendment shall affect
or limit the Administrative Agent's and the Lenders' right to demand payment of
liabilities owing from the Borrower to the Administrative Agent and the Lenders
under, or to demand strict performance of the terms, provisions and conditions
of, the Credit Agreement and the other Fundamental Documents, to exercise any
and all rights, powers and remedies under the Credit Agreement or the other
Fundamental Documents or at law or in equity, or to do any and all of the
foregoing, immediately at any time after the occurrence of a Default or an Event
of Default which is not waived pursuant to the terms hereof, the Credit
Agreement or the other Fundamental Documents.
SECTION 6. Ratification. Except as expressly contemplated or provided
herein, the Borrower hereby restates, ratifies and reaffirms each and every
term, covenant and condition set forth in the Credit Agreement and the other
Fundamental Documents effective as of the date hereof.
SECTION 7. Release. For purposes of this Section, the following terms
shall have the following definitions:
(f) "Related Parties" shall mean, with respect to any released
party, such party's parents, subsidiaries, affiliates, successors, assigns,
predecessors in interest, officers, directors, employees, agents,
representatives, attorneys, financial advisors, accountants and shareholders, if
any.
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(g) "Claims" shall mean any and all claims, losses, debts,
liabilities, demands, obligations, promises, acts, omissions, agreements, costs,
expenses, damages, injuries, suits, actions, causes of action, including without
limitation, any and all rights of setoff, recoupment or counterclaim of any kind
or nature whatsoever, in law or in equity, known or unknown, suspected or
unsuspected, contingent or fixed.
Excluding only the continuing obligations of the Lenders and
the Administrative Agent under the express terms of the Credit Agreement, the
Fundamental Documents and this Amendment, the Borrower hereby releases, acquits
and forever discharges the Lenders and the Administrative Agent, and each of
them, and their respective Related Parties, of and from any and all Claims
arising out of, related or in any way connected with the Credit Agreement, the
Fundamental Documents or the transactions contemplated by any thereof,
including, without limitation, any action or failure to act, prior to the
execution of this Amendment, in response to or otherwise in connection with the
events or circumstances arising under or otherwise related to the Credit
Agreement, the Fundamental Documents or any Defaults or Events of Default
occurring under the Credit Agreement or the Fundamental Documents.
SECTION 8. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts and
transmitted by facsimile to the other parties, each of which when so executed
and delivered by facsimile shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same instrument.
SECTION 9. References. All references to the Credit Agreement in the
Credit Agreement and the other Fundamental Documents and the other documents and
instruments delivered pursuant to or in connection therewith shall mean the
Credit Agreement as modified hereby and as may in the future be amended,
restated, supplemented or otherwise modified from time to time.
SECTION 10. No Default. To induce the Administrative Agent and the
Lenders to enter into this Amendment, the Borrower hereby acknowledges and
agrees that, as of the date hereof, and after giving effect to the terms hereof,
there exists (i) no Default or Event of Default and (ii) no right of offset,
defense, counterclaim, claim or objection in favor of the Borrower arising out
of or with respect to any of the Loans or other obligations of the Borrower owed
to the Administrative Agent or the Lenders under the Credit Agreement.
SECTION 11. Further Assurances. The Borrower agrees to take such further
actions as the Administrative Agent shall reasonably request in connection
herewith to evidence the amendment herein contained.
SECTION 12. Governing Law. This Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the Borrower, the Administrative Agent, and each of
the Lenders has caused this Amendment to be duly executed, under seal, by its
duly authorized officer as of the day and year first above written.
BORROWER:
ONEIDA LTD.
By: /s/ PETER J. KALLET
-------------------
Name: Peter J. Kallet
Title: Chief Executive Officer
JPMORGAN CHASE BANK
as Administrative Agent, Collateral Agent, and Lender
By: /s/ ROGER ODELL
-------------------
Name: Roger Odell
Title: Managing Director
ANCHORAGE CAPITAL MASTER OFFSHORE, LTD., as Lender
By: Anchorage Advisors, L.L.C., its advisor
By: Anchorage Advisors Management, L.L.C.,
its managing member
By: /s/ ANTHONY DAVIS
-------------------
Name: Anthony Davis
Title: Member
BANK OF AMERICA, NA, as Lender
By: /s/ LAURA T. SWEET
------------------
Name: Laura T. Sweet
Title: Assistant Vice President
BARCLAYS BANK PLC., as Lender
By: /s/ STEVEN J. LUNDBERG
----------------------
Name: Steven J. Lundberg
Title: Director
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CARGILL FINANCIAL SERVICES
INTERNATIONAL, INC., as Lender
By: /s/ KIRK OGREN
-------------------
Name: Kirk Ogren
Title: Investment Manager
By: /s/ CHRISTOPHER J. HEDBERG
--------------------------
Name: Christopher J. Hedberg
Title: Operations Manager
FLEET NATIONAL BANK, as Lender
By: /s/ DANIEL D. BUTLER
--------------------
Name: Daniel D. Butler
Title: Vice President
BANC OF AMERICA STRATEGIC SOLUTIONS, INC., as Lender
By: /s/ DANIEL D. BUTLER
--------------------
Name: Daniel D. Butler
Title: Vice President
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CONSENT, REAFFIRMATION AND AGREEMENT OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing
Amendment No. 1 (the "Amendment") to the Second Amended and Restated Credit
Agreement, dated as of August 9, 2004 (as heretofore amended, the "Credit
Agreement"), among Oneida Ltd., as borrower, the lenders from time to time party
thereto (the "Lenders"), and JPMorgan Chase Bank, as Administrative Agent and
Collateral Agent, (ii) consents to the execution and delivery of the Amendment
by the parties thereto, (iii) reaffirms all of its obligations and covenants
under the Amended and Restated Consolidated Subsidiary Guarantee Agreement dated
as of August 9, 2004 (the "Guarantee") executed by it, (iv) agrees that none of
such obligations and covenants shall be affected by the execution and delivery
of the Amendment, (v) acknowledges and agrees that there exists no right of
offset, defense, counterclaim, claim or objection in favor of such Guarantor
arising out of or with respect to any of the Loans (as defined in the Credit
Agreement) or other obligations of such Guarantor owed to the Administrative
Agent or the Lenders under the Credit Agreement, the Guarantee or the other
Fundamental Documents (as defined in the Credit Agreement), and (vi) agrees to
take such further actions as the Administrative Agent shall reasonably require
in connection with the Amendment and to evidence the waivers therein contained.
This Consent and Reaffirmation may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Consent, Reaffirmation and Agreement as of the 15th day of October, 2004.
BUFFALO CHINA, INC.
By: /s/ PETER J. KALLET
-------------------
Name: Peter J. Kallet
Title: Chief Executive Officer
THC SYSTEMS, INC.
By: /s/ PETER J. KALLET
-------------------
Name: Peter J. Kallet
Title: Chief Executive Officer
ENCORE PROMOTIONS, INC.
By: /s/ PETER J. KALLET
-------------------
Name: Peter J. Kallet
Title: Chief Executive Officer
DELCO INTERNATIONAL, LTD.
By: /s/ PETER J. KALLET
-------------------
Name: Peter J. Kallet
Title: Chief Executive Officer
SAKURA, INC.
By: /s/ PETER J. KALLET
-------------------
Name: Peter J. Kallet
Title: Chief Executive Officer
KENWOOD SILVER COMPANY, INC.
By: /s/ PETER J. KALLET
-------------------
Name: Peter J. Kallet
Title: Chief Executive Officer
ONEIDA SILVERSMITHS, INC.
By: /s/ PETER J. KALLET
-------------------
Name: Peter J. Kallet
Title: Chief Executive Officer
ONEIDA FOOD SERVICE, INC.
By: /s/ PETER J. KALLET
-------------------
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Name: Peter J. Kallet
Title: Chief Executive Officer
ONEIDA INTERNATIONAL, INC.
By: /s/ PETER J. KALLET
-------------------
Name: Peter J. Kallet
Title: Chief Executive Officer