EXHIBIT 10.18
CONSENT AND AMENDMENT NO. 2
CONSENT AND AMENDMENT NO. 2 (this "Amendment"), dated as of
February 2, 2005, to the Second Amended and Restated Credit Agreement dated
as of August 9, 2004 (as amended and 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 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. Consent to Sale of Sherrill Manufacturing Facility. The
Required Lenders hereby consent to the sale of real property (including
buildings appurtenant thereto), equipment, fixtures, production tooling, raw
materials, inventory and other miscellaneous manufacturing assets located in
Sherrill, New York (the "Sherrill Manufacturing Assets") in a transaction as
described in that certain Letter of Intent for Purchase of Certain Assets of
Oneida Ltd. executed on January 16, 2005 by and among Matthew A. Roberts and
Gregory L. Owens, on behalf of Sherrill Manufacturing, Inc., Oneida Ltd. and
Oneida Silversmiths, Inc. (the "Sherrill Letter of Intent") with documentation
related thereto containing terms (i) substantially similar to the terms
described in the Sherrill Letter of Intent, and (ii) with respect to terms not
set forth in the Sherrill Letter of Intent, reasonably satisfactory to the
Administrative Agent; provided that the Sherrill Manufacturing Assets shall be
deemed to have been sold pursuant to Section 6.6(a)(iv) of the Credit Agreement
and the proceeds of such sale shall be treated as Net Cash Proceeds for purposes
of the mandatory prepayment required pursuant to Section 2.11(b) of the Credit
Agreement.
SECTION 2. Amendment to Section 1 of the Credit Agreement. Section 1
of the Credit Agreement is hereby amended by inserting the following new
definitions in appropriate alphabetical order:
""Australian Facility" shall mean that certain Debenture dated [___]
by and between NAB and Oneida Australia.
"NAB" shall mean National Australia Bank Limited ABN 12 004 044 937.
"Oneida Australia" shall mean Oneida Australia PTY Ltd.
SECTION 3. Amendment to Section 2.11 of the Credit Agreement. Section
2.11 of the Credit Agreement is hereby amended by inserting the following
proviso at the end of subsection (e) thereof:
"; provided, that for purposes of the pro rata calculations referred
to in clauses (i) and (iv) above, the outstanding undrawn face amount
of each letter of credit referred to therein shall be reduced by the
amount, if any, previously cash collateralized on account of such
letter of credit."
59
SECTION 4. Amendment to Section 6.1 of the Credit Agreement. Section
6.1 of the Credit Agreement is hereby amended by (i) deleting the word "and"
appearing at the end of clause (f) thereof, (ii) inserting the word "and" at the
end of clause (g) thereof, and (iii) adding the following clause (h) at the end
thereof:
"(h) Indebtedness and L/C Indebtedness of Oneida Australia under the
Australian Facility in an aggregate principal amount at any time
outstanding not exceeding AUD $2,500,000 and any extension, renewal or
refinancing of all or any portion of such Oneida Australia
Indebtedness or L/C Indebtedness, provided that the aggregate
principal amount of such Oneida Australia Indebtedness and L/C
Indebtedness is not increased and such extension, renewal or
refinancing be on terms substantially similar or more favorable to
Oneida Australia."
SECTION 5. Amendment to Section 6.2 of the Credit Agreement. Section
6.2 of the Credit Agreement is hereby amended by (i) deleting the word "and"
appearing at the end of clause (m) thereof, (ii) inserting the word "and" at the
end of clause (n) thereof, and (iii) adding the following clause (o) at the end
thereof:
"(o) Liens in favor of NAB on substantially all of the assets of
Oneida Australia to secure Oneida Australia's obligations under the
Australian Facility."
SECTION 6. Amendment to Section 6.4 of the Credit Agreement. Section
6.4 of the Credit Agreement is hereby amended by (i) inserting the parenthetical
"(other than Oneida Australia)" immediately following the word "Subsidiaries"
the first time such word appears in subsection (c) thereof and (ii) inserting
the words "other than the recharacterization from Indebtedness to equity on the
books of Oneida U.K. Limited of the amount of (pound)7,416,087.00 which has been
reflected on the books of the Borrower as equity but on the books of Oneida U.K.
Limited as Indebtedness" immediately following the words "Credit Parties" the
first time they appear in subsection (c) thereof.
SECTION 7. Amendment to Article 6 of the Credit Agreement. Article 6
of the Credit Agreement is hereby amended by inserting the following Section
6.25 at the end thereof:
"Section 6.25 Limitation on Bank Accounts. Maintain a deposit account
for the Borrower or any Credit Party other than those set forth on
Schedule 3.28 hereto unless the Borrower shall have previously
delivered to the Administrative Agent an updated Schedule 3.28 which
shall be deemed to replace Schedule 3.28 in its entirety."
SECTION 8. Amendment to Schedule 6.6(iv) of the Credit Agreement.
Schedule 6.6(iv) of the Credit Agreement is hereby amended by deleting words
"Buildings 23A, 23B, 23C, 23D, 24A, 24B, 24C, 24D, 25, 25A, 25B, 25C, 26, 26A,
41, 41A, 61B, 61D, 61E & 61F All Factory Service Buildings 46, 46A, 46B, 47A,
49, 49A, 49B, 50, 50A & 50B Design Building 30 Garages 108-503 Waste Treatment
Plant land containing ponds" set forth therein.
SECTION 9. Amendment to Section 10.3 of the Credit Agreement. Section
10.3 of the Credit Agreement is hereby amended by (i) deleting the words "an
equal Percentage of" appearing in clause (b)(ii) thereof and (ii) deleting the
words "as the case may be" appearing in clause (b)(ii) thereof and replacing
them with the words "such that (1) the ratio of assigned Tranche A Term Loans to
assigned Revolving Credit Loans is not less than 2.0:1.0 or (2) such assignment
shall equal such Lender's entire Revolving Credit Loans and Tranche A Term
Loans".
SECTION 10. Approval Pursuant to Section 6.21 of the Credit Agreement.
Pursuant to Section 6.21 of the Credit Agreement, the Administrative Agent
hereby approves of Oneida Australia entering into the Australian Facility
containing restrictions on the existence of Liens (other than the Liens in favor
of NAB) on the assets of Oneida Australia.
SECTION 11. Conditions to Effectiveness. This Amendment shall become
effective on the date on which each of the following conditions has been met
(the "Effective Date"):
60
(a) execution and delivery (including by facsimile) of this
Amendment by the Borrower, the Administrative Agent, the Required Lenders and,
for purposes of effectiveness of Section 3 hereof only, the Existing Standby L/C
Issuers;
(b) execution and delivery (including by facsimile) of the
Consent and Reaffirmation of Guarantors at the end hereof by the Guarantors;
(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) for purposes of the effectiveness of Sections 4 and 5 hereof
only, delivery of execution copies of the Debenture by and between Oneida
Australia PTY Ltd. and National Australia Bank Limited ABN 12 004 044 937 in
form and substance reasonably satisfactory to the Required Lenders.
SECTION 12. 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 13. 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 14. 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 15. 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 16. Release. For purposes of this Section, the following terms
shall have the following definitions:
(a) "Related Parties" shall mean, with respect to any released
party, such party's parents, subsidiaries, affiliates, successors, assigns,
predecessors in interest, officers, directors, employees, agents,
representatives, attorneys, financial advisors, accountants and shareholders, if
any.
(b) "Claims" shall mean any and all claims, losses, debts,
liabilities, demands, obligations, promises, acts, omissions, agreements, costs,
expenses, damages, injuries, suits, actions, causes of action, including without
limitation, any and all rights of setoff, recoupment or counterclaim of any kind
or nature whatsoever, in law or in equity, known or unknown, suspected or
unsuspected, contingent or fixed.
61
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 17. 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 18. 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 19. 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 20. 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 21. Governing Law. This Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of New York.
[SIGNATURES CONTAINED ON NEXT PAGE]
62
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, Revolving Credit Lender and
Tranche A Term Loan Lender
By: /s/ ROGER ODELL
------------------------------------
Name: Roger Odell
Title: Managing Director
BANK OF AMERICA, NA,
as Existing Standby L/C Issuer
By: /s/ DANIEL D. BUTLER
------------------------------------
Name: Daniel D. Butler
Title: Senior Vice President
BARCLAYS BANK PLC., as Revolving Credit
Lender and Tranche A Term Loan Lender
By: /s/ DAMIEN MILLER
------------------------------------
Name: Damien Miller
Title: Director
CARGILL FINANCIAL SERVICES
INTERNATIONAL, INC., as Revolving Credit
Lender and Tranche A Term Loan Lender
By: /s/ MARK A. SORENSEN
------------------------------------
Name: Mark A. Sorensen
Title: Managing Director
By: /s/ CHRISTOPHER J. HEDBERG
------------------------------------
Name: Christopher J. Hedberg
Title: Operations Manager
FLEET NATIONAL BANK, as Revolving Credit
Lender and Tranche A Term Loan Lender
By: /s/ DANIEL D. BUTLER
------------------------------------
Name: Daniel D. Butler
Title: Senior Vice President
[Signature Page to Consent and Amendment No. 2 to Oneida Ltd. Second
Amended and Restated Credit Agreement]
BANC OF AMERICA STRATEGIC SOLUTIONS,
INC., as Tranche A Term Loan Lender
By: /s/ DANIEL D. BUTLER
------------------------------------
Name: Daniel D. Butler
Title: Senior Vice President
SPS HIGH YIELD LOAN TRADING, as
Revolving Credit Lender and Tranche A
Term Loan Lender
By: /s/ ROGER ODELL
------------------------------------
Name: Roger Odell
Title: Managing Director
CREDIT SUISSE FIRST BOSTON, as Revolving
Credit Lender and Tranche A Term Loan
Lender
By: /s/ GIL GOLAN
------------------------------------
Name: Gil Golan
Title: Assistant Vice President
By: /s/ JOSEPH BROSNAN
------------------------------------
Name: Joseph Brosnan
Title: Vice President
SPCP GROUP, LLC, as Revolving Credit
Lender and Tranche A Term Loan Lender
By: /s/ JEFF GELFAND
------------------------------------
Name: Jeff Gelfand
Title: Authorized Signatory
GENERAL ELECTRIC CAPITAL CORPORATION, as
Revolving Credit Lender and Tranche A
Term Loan Lender
By: /s/ AMANDA J. VAN HEYST
------------------------------------
Name: Amanda J. Van Heyst
Title: Duly Authorized Signatory
HSBC BANK USA, National Association, as
Existing Standby L/C Issuer
By: /s/ PATRICK M. HANLEY
------------------------------------
Name: Patrick M. Hanley
Title: Vice President
[Signature Page to Consent and Amendment No. 2 to Oneida Ltd. Second
Amended and Restated Credit Agreement]
CONSENT, REAFFIRMATION AND AGREEMENT OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing Consent and
Amendment No. 2 (the "Amendment") to the Second Amended and Restated Credit
Agreement, dated as of February 2, 2005 (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.
[SIGNATURES CONTAINED ON NEXT PAGE]
65
IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Consent, Reaffirmation and Agreement as of the 2nd day of February, 2005.
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
------------------------------------
Name: Peter J. Kallet
Title: Chief Executive Officer
ONEIDA INTERNATIONAL, INC.
By: /s/ PETER J. KALLET
------------------------------------
Name: Peter J. Kallet
Title: Chief Executive Officer