Exhibit 10.1
EXECUTION VERSION
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 9, 2004
among
ONEIDA LTD.,
as Borrower
and
THE FINANCIAL INSTITUTIONS PARTY HERETO
and
JPMORGAN CHASE BANK,
as Administrative Agent
and Collateral Agent
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TABLE OF CONTENTS
Page
PARTIES..................................................................... 1
INTRODUCTORY STATEMENT...................................................... 1
1. DEFINITIONS............................................................ 5
1A. ACKNOWLEDGEMENT OF EXISTING OBLIGATIONS; NO NOVATIONS;
RATIFICATION........................................................... 36
2. THE LOANS.............................................................. 37
SECTION 2.1 Term Loans.............................................. 37
SECTION 2.2 Revolving Credit Loans.................................. 38
SECTION 2.3 Disbursement of Funds and Notice of Borrowing of
Revolving Credit Loans.................................. 38
SECTION 2.4 Swingline Loans......................................... 40
SECTION 2.5 Interest Rate Type of the Loans......................... 41
SECTION 2.6 Repayment; Evidence of Debt; Administration............. 41
SECTION 2.7 Interest................................................ 42
SECTION 2.8 Underwriting Fee, Restructuring Fee and Unused
Commitment Fee.......................................... 44
SECTION 2.9 Termination and/or Reduction of the Total Revolving
Credit Commitment....................................... 45
SECTION 2.10 Voluntary Prepayments................................... 45
SECTION 2.11 Mandatory Prepayments................................... 46
SECTION 2.12 Amortization of Tranche A Term Loans.................... 48
SECTION 2.13 Default Interest; Alternate Rate of Interest............ 48
SECTION 2.14 Continuation and Conversion of Loans.................... 49
SECTION 2.15 Reimbursement of Lenders................................ 50
SECTION 2.16 Change in Circumstances................................. 51
SECTION 2.17 Change in Legality...................................... 54
SECTION 2.18 Taxes................................................... 54
SECTION 2.19 Interest Adjustments.................................... 55
SECTION 2.20 Manner of Payments...................................... 56
SECTION 2.21 Letters of Credit....................................... 56
SECTION 2.22 Replacement of Lenders.................................. 62
TABLE OF CONTENTS
(continued)
Page
3. REPRESENTATIONS AND WARRANTIES WITH RESPECT TO CREDIT PARTIES.......... 62
SECTION 3.1 Existence and Power..................................... 63
SECTION 3.2 Authority and No Violation.............................. 64
SECTION 3.3 Governmental and Other Approval......................... 64
SECTION 3.4 Binding Agreements...................................... 65
SECTION 3.5 No Material Adverse Change.............................. 65
SECTION 3.6 Financial Information................................... 66
SECTION 3.7 Credit Parties and their Subsidiaries................... 66
SECTION 3.8 Patents, Trademarks, Copyrights and Other Rights........ 66
SECTION 3.9 Fictitious Names........................................ 67
SECTION 3.10 Title to Properties..................................... 67
SECTION 3.11 Litigation; Judgments................................... 68
SECTION 3.12 Federal Reserve Regulations............................. 68
SECTION 3.13 Investment Company Act.................................. 68
SECTION 3.14 Taxes................................................... 68
SECTION 3.15 Compliance with ERISA................................... 69
SECTION 3.16 Agreements.............................................. 69
SECTION 3.17 Security Interest....................................... 70
SECTION 3.18 Disclosure.............................................. 70
SECTION 3.19 Environmental Matters................................... 70
SECTION 3.20 Pledged Securities...................................... 72
SECTION 3.21 Compliance with Laws.................................... 72
SECTION 3.22 Projected Financial Information......................... 72
SECTION 3.23 Real Property........................................... 72
SECTION 3.24 No Default.............................................. 73
SECTION 3.25 Labor Matters........................................... 73
SECTION 3.26 Organizational Documents................................ 73
SECTION 3.27 Indebtedness............................................ 73
SECTION 3.28 Bank Accounts........................................... 73
TABLE OF CONTENTS
(continued)
Page
SECTION 3.29 Representations and Warranties in the Fundamental
Documents............................................... 74
SECTION 3.30 Dissolvable Entities.................................... 74
4. CONDITIONS TO THE EFFECTIVENESS OF THIS CREDIT AGREEMENT AND THE
MAKING OF THE LOANS.................................................... 74
SECTION 4.1 Conditions Precedent to the Effectiveness of This
Credit Agreement and the Making of the Loans............ 74
SECTION 4.2 Conditions Precedent to Each Loan and Each Letter
of Credit............................................... 79
5. AFFIRMATIVE COVENANTS.................................................. 80
SECTION 5.1 Financial Statements and Reports........................ 80
SECTION 5.2 Compliance with Laws.................................... 82
SECTION 5.3 Maintenance of Properties............................... 83
SECTION 5.4 Notice of Material Events............................... 83
SECTION 5.5 Insurance............................................... 84
SECTION 5.6 Books and Records....................................... 85
SECTION 5.7 Observance of Material Agreements....................... 85
SECTION 5.8 Taxes and Charges....................................... 85
SECTION 5.9 Liens................................................... 86
SECTION 5.10 Further Assurances; Security Interests.................. 86
SECTION 5.11 Environmental Laws...................................... 86
SECTION 5.12 Subsidiary Guarantees and Collateral.................... 87
SECTION 5.13 Lease Agreements........................................ 88
SECTION 5.14 After-Acquired Real Property Assets..................... 88
SECTION 5.15 Lender Meetings......................................... 88
SECTION 5.16 Cash Management System.................................. 89
SECTION 5.17 Credit Parties to Hold in Trust......................... 89
SECTION 5.18 ERISA Plan Compliance and Reports....................... 89
SECTION 5.19 Disclosure of Transaction............................... 90
SECTION 5.20 Board of Directors...................................... 90
SECTION 5.21 Sale Proceeds Collateral Account........................ 91
SECTION 5.22 Modification of Existing Standby L/C Agreements......... 91
6. NEGATIVE COVENANTS..................................................... 91
TABLE OF CONTENTS
(continued)
Page
SECTION 6.1 Limitations on Indebtedness............................. 91
SECTION 6.2 Limitations on Liens.................................... 92
SECTION 6.3 Limitation on Guaranties................................ 94
SECTION 6.4 Limitations on Investments.............................. 94
SECTION 6.5 Restricted Payments..................................... 95
SECTION 6.6 Merger, Sale of Assets, Purchases, etc.................. 95
SECTION 6.7 Places of Business; Change of Name...................... 96
SECTION 6.8 Maximum Total Leverage Ratio............................ 96
SECTION 6.9 Cash Interest Coverage Ratio............................ 96
SECTION 6.10 Total Interest Coverage Ratio........................... 97
SECTION 6.11 Consolidated EBITDAR.................................... 97
SECTION 6.12 Transactions with Affiliates............................ 98
SECTION 6.13 Limitation on Leases.................................... 98
SECTION 6.14 Receivables............................................. 98
SECTION 6.15 Changes to Material Agreements.......................... 98
SECTION 6.16 ERISA Compliance........................................ 98
SECTION 6.17 Hazardous Materials..................................... 99
SECTION 6.18 Use of Proceeds of Loans................................ 99
SECTION 6.19 Fiscal Year; Fiscal Quarter............................. 99
SECTION 6.20 Formation of Foreign Subsidiaries....................... 99
SECTION 6.21 Limitation on Restrictive Agreements.................... 99
SECTION 6.22 Capital Expenditures.................................... 99
SECTION 6.23 Dissolvable Entities....................................100
7. EVENTS OF DEFAULT......................................................100
8. CASH COLLATERAL........................................................103
SECTION 8.1 Cash Collateral Account.................................103
SECTION 8.2 Investment of Funds.....................................104
SECTION 8.3 Grant of Security Interest..............................104
SECTION 8.4 Remedies................................................105
9. THE ADMINISTRATIVE AGENT AND THE ISSUING BANK..........................105
TABLE OF CONTENTS
(continued)
Page
SECTION 9.1 Administration by the Administrative Agent..............105
SECTION 9.2 Advances and Payments...................................105
SECTION 9.3 Sharing of Setoffs and Cash Collateral Consistent
with this Agreement and the Intercreditor Agreement.....106
SECTION 9.4 Notice to the Lenders...................................106
SECTION 9.5 Liability of the Agents and the Issuing Bank............107
SECTION 9.6 Reimbursement and Indemnification.......................108
SECTION 9.7 Rights of the Agents....................................109
SECTION 9.8 Independent Investigation by Lenders....................109
SECTION 9.9 Agreement of the Lenders................................109
SECTION 9.10 Notice of Transfer......................................109
SECTION 9.11 Relations Among Lenders.................................109
SECTION 9.12 Successor Agents........................................110
SECTION 9.13 Lender Payments.........................................110
10. MISCELLANEOUS..........................................................110
SECTION 10.1 Notices.................................................110
SECTION 10.2 Survival of Agreement, Representations and
Warranties, etc.........................................111
SECTION 10.3 Successors and Assigns; Syndications; Loan Sales;
Participations..........................................112
SECTION 10.4 Expenses; Documentary Taxes.............................115
SECTION 10.5 Indemnity...............................................116
SECTION 10.6 CHOICE OF LAW...........................................117
SECTION 10.7 WAIVER OF JURY TRIAL....................................117
SECTION 10.8 WAIVER WITH RESPECT TO DAMAGES..........................117
SECTION 10.9 No Waiver...............................................118
SECTION 10.10 Extension of Payment Date...............................118
SECTION 10.11 Amendments, etc.........................................119
SECTION 10.12 Severability............................................120
SECTION 10.13 SERVICE OF PROCESS; SUBMISSION TO JURISDICTION..........120
SECTION 10.14 Headings....................................... ........121
SECTION 10.15 Execution in Counterparts...............................121
TABLE OF CONTENTS
(continued)
Page
SECTION 10.16 Confidentiality.........................................121
SECTION 10.17 Entire Agreement........................................122
SECTION 10.18 Enforcement of Rights; No Obligation to
▇▇▇▇▇▇▇▇ Assets.........................................122
SECTION 10.19 Reproduction of Documents...............................122
SECTION 10.20 Right of Set-Off........................................122
SECTION 10.21 USA PATRIOT Act.........................................123
SECTION 10.22 Schedules...............................................123
Annex - Commitment Amounts
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Schedules
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1.0 Trade Letters of Credit
3.1(a) List of jurisdictions where the Borrower is qualified to do business
and in good standing
3.1(b) List of jurisdictions where each Credit Party (other than the
Borrower) is qualified to do business and in good standing
3.7(a) Credit Party and Subsidiary Information
3.7(b) Capital Stock Owned by each Credit Party
3.8 Proprietary Rights and Related Claims
3.9 Fictitious Names
3.10 Title to Properties
3.11(a) Litigation
3.15(a) ERISA Compliance
3.16(b) Material Agreements
3.19 Environmental Matters
3.23(a) Owned Real Property Assets
3.23(b) Leased Real Property Assets
3.23(c) Flood Plain/Tax Lots
3.25 Labor Matters
3.28 Bank Accounts
4.1(e) Material Adverse Effect
4.1(bb) Employee Benefits Agreements
5.2 Compliance with Laws
5.23(a) Survey of owned Real Property Assets
6.1(b) Existing Indebtedness
6.2(d) Existing Liens
6.3 Certain Guaranties by Borrower
6.4 Existing Investments
6.6(iv) Permitted Asset Sales
6.16 ERISA Compliance
Exhibits
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A Form of Amended and Restated Consolidated Subsidiary Guaranty
Agreement
B Form of Amended and Restated Consolidated Subsidiary Subordination
Agreement
C Form of Amended and Restated Copyright Security Agreement
D Form of Amended and Restated Mortgage
E Form of Amended and Restated Patent Security Agreement
F Form of Amended and Restated Pledge Security Agreement
G Form of Amended and Restated Security Agreement
H Form of Amended and Restated Trademark Security Agreement
I Form of Assignment and Acceptance
J Form of Borrowing Certificate
K Form of Instrument of Assumption and Joinder
L Form of Second Amended and Restated Collateral Agency and
Intercreditor Agreement
M Form of Closing Certificate
N Form of Schedule to Officer's Certificate: EBITDAR Calculation
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
August 9, 2004 (as this agreement may be further amended,
amended and restated, supplemented or otherwise modified,
renewed or replaced from time to time, the "Credit
Agreement"), among (i) Oneida Ltd., a New York corporation
(the "Borrower"); (ii) the Lenders referred to herein;
(iii) JPMorgan Chase Bank ("JPMorgan Chase"), as
Administrative Agent and Collateral Agent; (iv) Bank of
America, N.A., as issuer of the Bank of America L/C (as
defined below); and (v) HSBC Bank USA, National
Association, as issuer of the HSBC China L/C (as defined
below).
INTRODUCTORY STATEMENT
All terms not otherwise defined above or in this Introductory
Statement are as defined in Article 1 hereof or as defined elsewhere herein.
A. WHEREAS, the Borrower, the Existing Administrative Agent (as defined
below) and the lenders from time to time party thereto (the "Existing Lenders")
are parties to that certain Amended and Restated Credit Agreement dated as of
April 27, 2001, as amended by an Amendment No. 1 to Amended and Restated Credit
Agreement dated as of May 31, 2001, a Waiver and Amendment No. 2 to Amended and
Restated Credit Agreement dated as of December 7, 2001, an Amendment No. 3 to
Amended and Restated Credit Agreement dated as of April 23, 2002, an Amendment
No. 4 to Amended and Restated Credit Agreement dated as of August 24, 2003, a
Limited Waiver and Amendment No. 5 to Amended and Restated Credit Agreement
dated as of October 31, 2003, a Limited Waiver and Amendment No. 6 to Amended
and Restated Credit Agreement dated as of November 21, 2003, a Limited Waiver
and Amendment No. 7 to Amended and Restated Credit Agreement dated as of
December 12, 2003, a Limited Waiver and Amendment No. 8 to Amended and Restated
Credit Agreement dated as of January 30, 2004, a Limited Waiver and Amendment
No. 9 to Amended and Restated Credit Agreement dated as of February 27, 2004, a
Limited Waiver and Amendment No. 10 to Amended and Restated Credit Agreement
dated as of March 15, 2004, a Limited Waiver and Amendment No. 11 to Amended and
Restated Credit Agreement dated as of March 31, 2004, a Limited Waiver and
Amendment No. 12 to Amended and Restated Credit Agreement dated as of April 14,
2004, a Limited Waiver and Amendment No. 13 to Amended and Restated Credit
Agreement dated as of April 30, 2004, an Amendment No. 14 to Amended and
Restated Credit Agreement dated as of April 30, 2004, and a Limited Waiver and
Amendment No. 15 to Amended and Restated Credit Agreement dated as of June 15,
2004 (as amended or otherwise modified, the "Existing Credit Agreement")
pursuant to which the Existing Lenders made revolving loans and a term loan,
which are outstanding in the aggregate principal amount of $213,458,794.59 (such
loans together, the "Existing Loans"), which Existing Loans are evidenced by
promissory notes (together, the "Existing Promissory Notes");
B. WHEREAS, THC Systems, Inc., a New York corporation ("THC"), a
subsidiary of the Borrower, the Borrower and Allstate Insurance Company
(together with its permitted assignees, "Allstate"), Allstate Life Insurance
Company (together with its permitted assignees,
"Allstate Life") and Pacific Life Insurance Company (together with its permitted
assignees, and together with Allstate and Allstate Life, the "Existing
Noteholders") are parties to the 2001 Amended and Restated Note Purchase
Agreement dated as of May 1, 2001, as amended by a Waiver and Amendment No. 1
to 2001 Amended and Restated Note Agreement dated as of December 7, 2001, an
Amendment No. 2 to 2001 Amended and Restated Note Agreement dated as of April
23, 2002, an Amendment No. 3 to 2001 Amended and Restated Note Agreement dated
as of April 24, 2003, a Limited Waiver and Amendment No. 4 to 2001 Amended and
Restated Note Purchase Agreement dated as of October 31, 2003, a Limited
Waiver and Amendment No. 5 to 2001 Amended and Restated Note Purchase
Agreement dated as of December 12, 2003, a Limited Waiver and Amendment No. 6
to 2001 Amended and Restated Note Purchase Agreement dated as of January 30,
2004, a Limited Waiver and Amendment No. 7 to 2001 Amended and Restated Note
Purchase Agreement dated as of March 1, 2004, a Limited Waiver and Amendment
No. 8 to 2001 Amended and Restated Note Purchase Agreement dated as of March 15,
2004, a Limited Waiver and Amendment No. 9 to 2001 Amended and Restated Note
Purchase Agreement dated as of March 31, 2004, a Limited Waiver and Amendment
No. 10 to 2001 Amended and Restated Note Purchase Agreement dated as of April
14, 2004, a Limited Waiver and Amendment No. 11 to 2001 Amended and Restated
Note Purchase Agreement dated as of April 30, 2004, and a Limited Waiver and
Amendment No. 12 to 2001 Amended and Restated Note Purchase Agreement dated as
of June 15, 2004 (as amended or otherwise modified, the "Existing Note
Agreement") pursuant to which the Existing Noteholders purchased certain notes
(the "Existing Notes") with a maturity date of May 31, 2005 made by THC and
guaranteed by the Borrower, which notes are outstanding in the aggregate
principal amount of $17,725,393.44;
C. WHEREAS, the Borrower issued a promissory note dated September 30,
2003 (the "OSB Note") in the amount of $2,000,000 in favor of Oneida Savings
Bank ("OSB"), which note is outstanding in the principal amount of $2,000,000
(such obligations owing to OSB, the "Existing OSB Obligations");
D. WHEREAS, Bank of America, N.A. ("Bank of America"), as issuer,
issued that certain Letter of Credit #37942 dated July 30, 1991 in the stated
face amount of $10,950,747 in favor of the Worker's Compensation Board, State of
New York, as beneficiary, on behalf of the Borrower, as applicant (the "Bank of
America L/C"), which, as of the date hereof, remains undrawn, and the Borrower
has agreed to reimburse Bank of America for any draws pursuant to the terms of
that certain Application and Agreement for Standby Letter of Credit dated as of
May 13, 2002 between the Borrower and Bank of America (as the same may be
amended, amended and restated, supplemented or otherwise modified, renewed or
replaced from time to time, the "Bank of America L/C Agreement"; such contingent
obligations owing to Bank of America, the "Bank of America L/C Obligations");
E. WHEREAS, HSBC Bank USA, National Association ("HSBC"), as issuer,
issued that certain Letter of Credit #SDCMBF799632 dated June 21, 1999 in the
original face amount of $2,090,000.00 (which for the purposes of this Credit
Agreement shall be deemed to be in the face amount of $1,500,000 or as such
amount may hereinafter be reduced in accordance with the HSBC China L/C
Agreement (as defined below)) in favor of The Hong Kong and Shanghai Banking
Corporation Ltd. on behalf of the Borrower, as applicant, which currently
expires on May 31, 2005 (as such letter of credit has been extended or modified
from time to time, the
"HSBC China L/C"), which, as of the date hereof, remains undrawn, and the
Borrower has agreed to reimburse HSBC for any draws pursuant thereto (as such
agreement to reimburse may be amended, amended and restated, supplemented or
otherwise modified, renewed or replaced from time to time, the "HSBC China L/C
Agreement"; such contingent obligations owing to HSBC, the "HSBC China L/C
Obligations");
F. WHEREAS, the Borrower's obligations under the Existing Credit
Agreement and the Loan Documents (as defined in the Existing Credit Agreement)
(the "Existing Credit Agreement Obligations") are guaranteed by each of the
Borrower's direct and indirect domestic subsidiaries (the "Existing Guarantors")
pursuant to (i) that certain Amended and Restated Guaranty Agreement dated as of
April 27, 2001 made by Buffalo China, Inc., a New York corporation ("Buffalo
China"), Encore Promotions, Inc., a New York corporation ("Encore"), THC, Delco
International, Ltd., a New York corporation ("Delco") and Sakura, Inc., a New
York corporation ("Sakura") for the benefit of the Existing Lenders, JPMorgan
Chase, as administrative agent under the Existing Credit Agreement (the
"Existing Administrative Agent"), and the Existing Collateral Agent (as defined
below), (ii) that certain Subsidiary Guaranty Agreement dated as of April 23,
2002 made by Kenwood Silver Company, Inc., a New York corporation ("Kenwood"),
for the benefit of the Existing Lenders, the Existing Administrative Agent and
the Existing Collateral Agent, (iii) that certain Subsidiary Guaranty Agreement
dated as of July 25, 2003 made by Oneida Silversmiths, Inc., a New York
corporation ("Silversmiths") for the benefit of the Existing Lenders, the
Existing Administrative Agent and the Existing Collateral Agent and (iv) that
certain Subsidiary Guaranty Agreement dated as of July 25, 2003 made by Oneida
Food Service, Inc., a New York corporation ("Food Service"), for the benefit of
the Existing Lenders, the Existing Administrative Agent and the Existing
Collateral Agent (the agreements described in clauses (i) through (iv) above,
collectively, the "Existing Loan Guaranty Agreements");
G. WHEREAS, THC'S obligations under the Existing Note Agreement (the
"Existing Note Agreement Obligations") are guaranteed by the Borrower pursuant
to the terms of the Existing Note Agreement and by each of the Existing
Guarantors pursuant to (i) that certain Amended and Restated Subsidiary
Guarantee Agreement dated April 27, 2001 for the benefit of the Existing
Noteholders and executed by Buffalo China, (ii) that certain Amended and
Restated Subsidiary Guarantee Agreement dated April 27, 2001 for the benefit of
the Existing Noteholders and executed by Encore, (iii) that certain Amended and
Restated Subsidiary Guarantee Agreement dated April 27, 2001 for the benefit of
the Existing Noteholders and executed by Delco, (iv) that certain Amended and
Restated Subsidiary Guarantee Agreement dated April 27, 2001 for the benefit of
the Existing Noteholders and executed by THC, (v) that certain Amended and
Restated Subsidiary Guarantee Agreement dated April 27, 2001 for the benefit of
the Existing Noteholders and executed by Sakura, (vi) that certain Subsidiary
Guarantee Agreement dated April 23, 2002 for the benefit of the Existing
Noteholders and executed by Kenwood, (vii) that certain Subsidiary Guarantee
Agreement dated July 25, 2003 for the benefit of the Existing Noteholders and
executed by Silversmiths, and (viii) that certain Subsidiary Guarantee Agreement
dated July 25, 2003 for the benefit of the Existing Noteholders and executed by
Food Service (the agreements described in clauses (i) through (viii) above,
collectively, the "Existing Note Guarantee Agreements");
H. WHEREAS, pursuant to that certain Amended and Restated Collateral
Agency and Intercreditor Agreement dated as of April 23, 2002, by and among (i)
the Existing Lenders, (ii) the Existing Noteholders, and (iii) JPMorgan Chase,
as Existing Administrative Agent, as Existing Collateral Agent and,
individually, as a working capital lender, each of the parties thereto, among
other things, appointed JPMorgan Chase as collateral agent (the "Existing
Collateral Agent") and authorized the Existing Collateral Agent to, among other
things, execute, deliver and perform as their collateral agent with respect to
the Existing Security Documents (as defined herein) (the "Existing Collateral
Agency Agreement");
I. WHEREAS, the Existing Credit Agreement Obligations, the Existing
Note Agreement Obligations, Bank of America L/C Obligations and the HSBC China
L/C Obligations (collectively, the "Existing Secured Obligations") are secured
by substantially all of the real and personal property of the Borrower and the
Existing Guarantors (collectively, the "Existing Collateral") pursuant to the
Existing Security Documents (as defined herein);
J. WHEREAS, the Borrower has requested that the Existing Administrative
Agent, the Existing Collateral Agent, the Existing Lenders, the Existing
Noteholders, OSB, Bank of America and HSBC agree and the Existing Administrative
Agent, the Existing Collateral Agent, the Existing Lenders, the Existing
Noteholders, OSB, Bank of America and HSBC so agree, subject to and upon the
terms and conditions set forth herein, that the outstanding HSBC China L/C
Obligations and the Bank of America L/C Obligations and the outstanding
obligations under the Existing Credit Agreement, the Existing Note Agreement and
the OSB Note be amended, modified, renewed and replaced pursuant to a
restructuring as follows: (i) an aggregate amount of $30,000,000 of the Existing
Credit Agreement Obligations and the Existing Note Agreement Obligations to be
allocated among Existing Lenders and Existing Noteholders on a pro rata basis
shall be converted pursuant to that certain Securities Exchange Agreement among
the Borrower, the Existing Administrative Agent, the Existing Lenders and the
Existing Noteholders dated as of the date hereof (the "Securities Exchange
Agreement") into 29,852,907 shares of common stock of the Borrower, (ii) the
remainder of the Existing Credit Agreement Obligations and the Existing Note
Agreement Obligations together with the Existing OSB Obligations, the HSBC China
L/C Obligations and the Bank of America L/C Obligations be restructured into two
tranches of term loans pursuant to the terms set forth herein, (iii) the
Existing Lenders make new revolving loans to the Borrower in an aggregate
principal amount not to exceed $30,000,000 outstanding at any one time (which
amount may include letters of credit having an aggregate stated amount of up to
$11,000,000), (iv) the Existing Credit Agreement, the Existing Note Agreement
and the OSB Note each be restated, modified, amended, renewed and replaced as
more fully set forth herein;
K. WHEREAS, the HSBC China L/C Agreement and the Bank of America L/C
Agreement shall each be modified and amended in accordance with the terms set
forth herein;
L. WHEREAS, subject to the terms and conditions set forth herein, the
Administrative Agent is willing to act as administrative agent for the Lenders,
the Issuing Bank is willing to issue Letters of Credit as provided herein, and
(i) each Revolving Credit Lender is willing to make Revolving Credit Loans to
the Borrower in an amount up to the Revolving Credit Commitment opposite its
name on Annex A hereto and to participate in Letters of Credit to be issued to
the Borrower, (ii) each Tranche A Lender is willing to make Tranche A Term
Loans and (iii) each Tranche B Lender is willing to make Tranche B Term Loans,
as provided herein, in an aggregate principal amount at any one time outstanding
not in excess of the Total Credit Commitments hereunder.
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, the parties hereto hereby agree as follows:
1. DEFINITIONS
For the purposes hereof unless the context otherwise requires, all
references to Sections, Exhibits and Schedules shall be deemed references to
Sections of, and Exhibits and Schedules to, this Credit Agreement, the following
terms shall have the meanings indicated; all accounting terms not otherwise
defined herein shall have the respective meanings accorded to them under GAAP;
and all terms defined in the UCC and not otherwise defined herein shall have the
respective meanings accorded to them therein. Whenever the context may require,
any pronoun shall include the masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". Unless the context otherwise requires, any of the
following terms may be used in the singular or the plural, depending on the
reference:
"Adjusted LIBO Rate" shall mean with respect to any Eurodollar Loan for
any Interest Period, the rate per annum equal to the quotient (rounded upwards,
if necessary, to the next 1/16 of 1%) of (i) the LIBO Rate for such Eurodollar
Loan for such Interest Period divided by (ii) one minus the applicable statutory
reserve requirements of the Administrative Agent, expressed as a decimal
(including, without duplication or limitation, basic, supplemental, marginal and
emergency reserves), from time to time in effect under Regulation D or similar
regulations of the Board. It is agreed that for purposes of this definition,
Eurodollar Loans made hereunder shall be deemed to constitute Eurocurrency
Liabilities as defined in Regulation D and to be subject to the reserve
requirements of Regulation D (for so long as such requirements are in effect).
"Administrative Agent" shall mean JPMorgan Chase, in its capacity as
administrative agent for the Lenders hereunder, or such successor Administrative
Agent as may be appointed pursuant to Section 9.12 hereof.
"Affiliate" shall mean with respect to any Person (including a Credit
Party), any other Person which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For purposes of
this definition, a Person shall be deemed to be "controlled by" another Person
if such latter Person possesses, directly or indirectly, power either to direct
or cause the direction of management or policies of a Person, whether through
the ability to exercise voting power, by contract or otherwise.
"Affiliated Group" shall mean a group of Persons, each of which is an
Affiliate of some other Person in the group.
"Agents" shall mean collectively, the Administrative Agent and the
Collateral Agent.
"Amended and Restated Consolidated Subsidiary Guarantee Agreement"
shall mean that certain Amended and Restated Consolidated Subsidiary Guaranty
Agreement dated as of the date hereof by and among Buffalo China, THC, Encore,
Delco, Sakura, Kenwood, Silversmiths, Oneida International and Food Service for
the benefit of the Lenders, the Administrative Agent and the Collateral Agent
(as the same may be further amended, amended and restated, supplemented or
otherwise modified, renewed, or replaced from time to time), a copy of which is
attached hereto as Exhibit A.
"Amended and Restated Consolidated Subsidiary Subordination Agreement"
shall mean that certain Amended and Restated Consolidated Subsidiary
Subordination Agreement dated as of the date hereof by and among the Borrower,
Buffalo China, THC, Encore, Delco, Sakura, Kenwood, Silversmiths, Oneida
International, Food Service, the Administrative Agent and the Collateral Agent
(as the same may be further amended, amended and restated, supplemented or
otherwise modified, renewed, or replaced from time to time), a copy of which is
attached hereto as Exhibit B.
"Amended and Restated Copyright Security Agreement" shall mean that
certain Amended and Restated Copyright Security Agreement dated as of the date
hereof by and among the Borrower, Buffalo China, THC, Encore, Delco, Sakura,
Kenwood, Silversmiths, Oneida International and Food Service in favor of the
Collateral Agent (as the same may be further amended, amended and restated,
supplemented or otherwise modified, renewed, or replaced from time to time), a
copy of which is attached hereto as Exhibit C.
"Amended and Restated Mortgage" shall mean, collectively, (i) that
certain Amended and Restated Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing, dated as of the date hereof, executed and
delivered by Food Service, the Erie County Industrial Development Agency and
JPMorgan Chase, as the Collateral Agent, (ii) that certain Amended and Restated
Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing,
dated as of the date hereof, executed and delivered by Food Service, the Erie
County Industrial Development Agency and JPMorgan Chase, as the Collateral
Agent, (iii) that certain Amended and Restated Mortgage, Assignment of Leases
and Rents, Security Agreement and Fixture Filing, dated as of the date hereof,
executed and delivered by Silversmiths, the Oneida County Industrial Development
Agency and JPMorgan Chase, as the Collateral Agent, (iv) that certain Amended
and Restated Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, dated as of the date hereof, executed and delivered by
Silversmiths, the Oneida County Industrial Development Agency and JPMorgan
Chase, as the Collateral Agent and (v) that certain Amended and Restated
Mortgage, Assignment of Lease and Rents, Security Agreement and Fixture Filing,
dated as of the date hereof, executed and delivered by the Borrower and JPMorgan
Chase, as the Collateral Agent, each substantially in the form attached as
Exhibit D hereto, and in each case, as such document may be amended, amended and
restated, supplemented or otherwise modified, renewed or replaced from time to
time.
"Amended and Restated Patent Security Agreement" shall mean that
certain Amended and Restated Patent Security Agreement dated as of the date
hereof by and among the Borrower, Buffalo China, THC, Encore, Delco, Sakura,
Kenwood, Silversmiths, Oneida International and Food Service in favor of the
Collateral Agent (as the same may be further
amended, amended and restated, supplemented or otherwise modified, renewed, or
replaced from time to time), a copy of which is attached hereto as Exhibit E.
"Amended and Restated Pledge Security Agreement" shall mean that
certain Amended and Restated Pledge Security Agreement dated as of the date
hereof by and among the Borrower, Buffalo China, THC, Encore, Delco, Sakura,
Kenwood, Silversmiths, Oneida International, Food Service and the Collateral
Agent (as the same may be further amended, amended and restated, supplemented or
otherwise modified, renewed, or replaced from time to time), a copy of which is
attached hereto as Exhibit F.
"Amended and Restated Security Agreement" shall mean that certain
Amended and Restated Security Agreement dated as of the date hereof by and among
the Borrower, Buffalo China, THC, Encore, Delco, Sakura, Kenwood, Silversmiths,
Oneida International, Food Service and the Collateral Agent (as the same may be
further amended, amended and restated, supplemented or otherwise modified,
renewed, or replaced from time to time), a copy of which is attached hereto as
Exhibit G.
"Amended and Restated Trademark Security Agreement" shall mean that
certain Amended and Restated Trademark Security Agreement dated as of the date
hereof by and among by and among the Borrower, Buffalo China, THC, Encore,
Delco, Sakura, Kenwood, Silversmiths, Oneida International and Food Service in
favor of the Collateral Agent (as the same may be further amended, amended and
restated, supplemented or otherwise modified, renewed, or replaced from time to
time), a copy of which is attached hereto as Exhibit H.
"Applicable Interest Margin" shall mean:
(i) (A) in the case of Base Rate Loans that are Revolving Credit Loans
and Swingline Loans 2.00% per annum and (B) in the case of Eurodollar Loans that
are Revolving Credit Loans, 4.00% per annum.
(ii) in the case of Tranche A Term Loans, either the "Base Rate Loan
Applicable Interest Margin" or the "Eurodollar Loan Applicable Interest Margin",
as applicable, shall be determined in accordance with the following grid:
Base Rate Eurodollar Loan
Loan Applicable Applicable Interest
Total Leverage Ratio Interest Margin Margin
-------------------- --------------- -------------------
Greater than 8.0:1 6.25% 8.25%
Less than or equal to 8.0:1, but Greater 6.00% 8.00%
than 7.0:1
Less than or equal to 7.0:1, but Greater 5.75% 7.75%
than 6.0:1
Less than or equal to 6.0:1, but Greater 5.50% 7.50%
than 5.0:1
Less than or equal to 5.0:1, but Greater 5.00% 7.00%
than 4.0:1
Less than or equal to 4.0:1, but Greater 4.25% 6.25%
than or equal to 3.0:1
Less than 3.0:1 4.00% 6.00%; and
(iii) (A) in the case of Base Rate Loans that are Tranche B Term Loans,
11.00% per annum, and (B) in the case of Eurodollar Loans that are Tranche B
Term Loans, 13.00% per annum.
"Applicable Law" shall mean all applicable provisions of statutes,
rules, regulations and orders of the United States, any state thereof or
municipality therein or of any foreign governmental body or of any regulatory
agency applicable to the Person in question, and all orders and decrees of all
courts and arbitrators in proceedings or actions in which the Person in question
is a party.
"Assignment and Acceptance" shall mean an agreement substantially in
the form of Exhibit I hereto, executed by the assignor, the assignee and the
other parties as contemplated hereby or thereby or any such other form approved
by the Administrative Agent.
"Authorized Officer" shall mean, with respect to the Borrower or any
other Credit Party, the president, vice president, chief financial officer,
chief accounting officer, secretary, treasurer or, with respect to environmental
matters, the manager of health and safety of such entity (or of the general
partner, manager or member of such entity, if not a natural person), as the case
may be.
"Bank of America" shall have the meaning given to such term in
paragraph D of the Introductory Statement of this Credit Agreement.
"Bank of America L/C" shall have the meaning given to such term in
paragraph D of the Introductory Statement of this Credit Agreement.
"Bank of America L/C Agreement" shall have the meaning given to such
term in paragraph D of the Introductory Statement of this Credit Agreement.
"Bank of America L/C Obligations" shall have the meaning given to such
term in paragraph D of the Introductory Statement of this Credit Agreement.
"Bank of America Lock Box Account" shall mean that certain lock box
account established by the Borrower and maintained by Bank of America, and
currently designated as the "Oneida Lock Box", ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, account no. 3750370692.
"Bankruptcy Code" shall mean the Bankruptcy Reform Act of 1978, as
heretofore and hereafter amended, as codified at 11 U.S.C. 'SS'101 et seq.
"Base Rate" shall mean, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Rate in effect for such day plus 1/2 of 1%. For purposes hereof, "Prime Rate"
shall mean the rate of interest per annum established from time to time by the
Administrative Agent as its prime rate, which rate may not be the lowest rate of
interest charged by the Administrative Agent to its customers. "Federal Funds
Rate" shall mean, for any day, the rate per annum (rounded upwards, if
necessary, to the next 1/100th of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, on such day, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York; provided, that
(i) if such day is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (ii) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to the Administrative Agent on such day on
such transactions as determined by the Administrative Agent. If the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Rate for any reason, including (without limitation) the inability or
failure of the Administrative Agent to obtain quotations in accordance with the
terms hereof, the Base Rate shall be determined without regard to clause (b) of
the first sentence of this definition until the circumstances giving rise to
such inability no longer exist. Any change in the Base Rate due to a change in
the Prime Rate or the Federal Funds Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Rate, respectively.
"Base Rate Loan" shall mean a Loan based on the Base Rate in accordance
with the provisions of Article 2 hereof.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" shall have the meaning given to such term in the initial
paragraph of this Credit Agreement.
"Borrowing" shall mean (i) a Loan or group of Loans of the same Tranche
and Interest Rate 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 (ii) a Swingline Loan.
"Borrowing Certificate" shall mean a borrowing certificate,
substantially in the form of Exhibit J hereto, to be delivered by the Borrower
to the Administrative Agent in connection with each Borrowing.
"Buffalo China" shall have the meaning given to such term in paragraph
F of the Introductory Statement of this Credit Agreement.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which banks are required or permitted to close in the State of New
York; provided, however, 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 on the London
Interbank Market.
"Capital Expenditures" shall mean, with respect to any Person for any
period, the aggregate of all expenditures (whether paid in cash or accrued as a
liability) by such Person during that period which, in accordance with GAAP, are
or should be included in "additions to property, plant or equipment" or similar
items reflected in the statement of cash flows of such Person.
"Capital Lease", as applied to any Person, shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
accordance with GAAP, is or should be accounted for as a capital lease on the
balance sheet of that Person.
"Capital Stock" shall mean (i) with respect to corporate stock, any and
all shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) corporate stock,
including without limitation, any preferred stock or (ii) with respect to any
other evidence of beneficial ownership of any entity which is not a corporation,
any and all partnership interests or any other equity interests or evidences of
beneficial ownership, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) a partnership interest
or other equity interest or evidence of beneficial ownership.
"Cash Collateral Account" shall have the meaning given to such term in
Section 8.1 hereof.
"Cash Equivalents" shall mean any of the following: (i) full faith and
credit obligations of the United States of America, or obligations that are
fully guaranteed as to interest and principal by the full faith and credit of
the United States of America, maturing in not more than one year from the date
such investment is made; (ii) time deposits and certificates of deposit having a
final maturity of not more than one year after the date of issuance thereof of
any commercial bank or depository institution incorporated under the laws of the
United States of America or any state thereof or the District of Columbia, which
(i) in the case of a bank, is a member of the Federal Reserve System and (ii) in
the case of either a bank or a depository institution, has a combined capital
and surplus of not less than $1,000,000,000.00 and with a senior unsecured debt
credit rating of at least "A" by ▇▇▇▇▇'▇ or "A" by S&P; (iii) commercial paper
of companies, banks, trust companies or national banking associations
incorporated or doing business under the laws of the United States of America or
one of the States thereof, in each case having a remaining term until maturity
of not more than one hundred eighty (180) days from the date such investment is
made and rated at least P-1 by ▇▇▇▇▇'▇ or at least A-1 by S&P; (iv) repurchase
agreements with any financial institution having combined capital and surplus of
not less than $1,000,000,000.00 with a term of not more than seven (7) days for
underlying securities of the type referred to in clauses (i) and (ii) above; and
(v) money market funds which invest primarily in the Cash Equivalents set forth
in the preceding clauses (i) - (iv).
"Change in Control" shall mean (i) any Person, Affiliated Group or
group (such term being used as defined in the Exchange Act), acquiring ownership
or control of in excess of 35% of equity securities having voting power to vote
in the election of the Board of Directors of
the Borrower either on a fully diluted basis or based solely on the voting stock
then outstanding, provided, that if all of such equity securities are acquired
in a transaction or series of related transactions from a Lender or group of
Lenders then such transaction or transactions shall not result in a Change of
Control, (ii) if at any time, individuals who immediately following the election
of directors contemplated by this Credit Agreement constituted the Board of
Directors of the Borrower (together with any new directors whose election by
such Board of Directors or whose nomination for election by the shareholders of
the Borrower, as the case may be, was approved by a vote of the majority of the
directors then still in office who were either directors at the date hereof or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors of the Borrower
then in office, (iii) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the properties or assets
of the Borrower to any Person or (iv) the adoption of a plan relating to the
liquidation or dissolution of the Borrower.
"Chief Restructuring Officer" shall mean ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ of ▇▇▇▇ ▇▇▇▇▇
Consulting Group LLC in his capacity as Chief Restructuring Officer.
"Closing Date" shall mean the date on which the conditions precedent
set forth in Section 4.1 hereof have been satisfied or waived.
"Code" shall mean the Internal Revenue Code of 1986, as heretofore and
hereafter amended, as codified at 26 U.S.C. 'SS'1 et seq., and the applicable
regulations promulgated thereunder, or any successor provision thereto.
"Collateral" shall mean the assets, properties and rights of the
Borrower and each other Credit Party, whether now owned or hereafter acquired,
upon which a Lien is purported to be created or granted by any Security
Document.
"Collateral Agent" shall mean JPMorgan Chase Bank, in its capacity as
collateral agent for the Lenders appointed by the Lenders pursuant to the
Intercreditor Agreement, or such successor Collateral Agent as may be appointed
thereunder.
"Commitment Fee" shall have the meaning given to such term in Section
2.8 of this Credit Agreement.
"Commitments" shall mean the Tranche A Term Loan Commitments, the
Tranche B Term Loan Commitments or the Revolving Credit Commitments.
"Community Associated Clubs" shall mean Community Associated Clubs,
Inc., a New York corporation and a wholly owned subsidiary of the Borrower.
"Concentration Account" shall mean the account established by the
Borrower under the sole and exclusive control of the Administrative Agent
maintained at the offices of the Administrative Agent at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ designated as the "Oneida Concentration Account", account no.
0102042942.
"Consolidated Cash Interest Coverage Ratio" shall mean, at any date for
which such ratio is to determined, the ratio of (a) Consolidated EBITDAR for the
most recent Rolling Twelve Month period to (b) Consolidated Cash Interest
Expense for the most recent Rolling Twelve Month period.
"Consolidated Cash Interest Expense" shall mean, for any period, the
interest expense paid in cash by the Borrower and its Consolidated Subsidiaries
on a consolidated basis for such period, including, without limitation or
duplication, (i) cash interest expense in respect of the Loans and all other
outstanding Indebtedness, (ii) amortization of the discount or issuance cost of
any Indebtedness (including, without limitation, any original issue discount
attributable to any issuance of debt securities), (iii) commissions, discounts
and other fees and charges payable in connection with letters of credit and (iv)
net payments payable in connection with all Interest Rate Protection Agreements
(including amortization of any discount).
"Consolidated EBITDAR" shall mean, for any period, all as determined in
accordance with GAAP, the Consolidated Net Income (or net loss) of the Borrower
and its Consolidated Subsidiaries for such period, plus (a) the sum for such
period for the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis of (i) depreciation expense, (ii) amortization expense, (iii)
other non-cash expenses, (iv) provision for LIFO and deferred variance
adjustments for inventory valuation, (v) net total Federal, state and local
income tax expenses, (vi) Consolidated Total Interest Expense, (vii)
extraordinary losses, (viii) any non-recurring charge or restructuring charge
(to include but not be limited to: professional fees, severance costs and
writedowns to goodwill, barter credits and inventory) and (ix) foreign currency
translation adjustments recorded in the income statement (with respect to
clauses (vii), (viii) and (ix) above, such amounts shall be as set forth in the
certificate required pursuant to Section 5.1(a)(iv)) less (b) extraordinary
gains for such period for Borrower and its Consolidated Subsidiaries determined
on a consolidated basis to the extent included in the determination of
Consolidated Net Income.
"Consolidated Net Income" shall mean, for any period for which such
amount is being determined, the net income or loss of the Borrower and its
Consolidated Subsidiaries during such period determined on a consolidated basis
for such period taken as a single accounting period in accordance with GAAP;
provided, that (i) there shall be excluded (x) the income (or loss) of any
Person (other than a Consolidated Subsidiary) in which the Borrower or any of
its Consolidated Subsidiaries has an equity investment or comparable interest,
except to the extent of the amount of dividends or other distributions actually
paid to the Borrower or any of its Consolidated Subsidiaries by such Person
during such period and (y) the income of any Consolidated Subsidiary to the
extent that the declaration or payment of dividends or similar distributions by
that Consolidated Subsidiary of its income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Consolidated Subsidiary; and (ii) there shall be included or excluded (as
applicable) on a Pro Forma Basis the income (or loss) of any Person which
becomes a Consolidated Subsidiary of the Borrower, is merged into or
consolidated with the Borrower or any of its Consolidated Subsidiaries or whose
assets are acquired or sold or otherwise disposed of by the Borrower or any of
its Consolidated Subsidiaries during such period. The definition of Consolidated
Net Income shall exclude the impact of the cumulative effect of any change in
accounting principles.
"Consolidated Subsidiaries" shall mean all Subsidiaries of a Person
which are required or permitted to be consolidated with such Person for
financial reporting purposes in accordance with GAAP.
"Consolidated Total Interest Coverage Ratio" shall mean, at any date
for which such ratio is to be determined, the ratio of (a) Consolidated EBITDAR
for the most recent Rolling Twelve Month period to (b) Consolidated Total
Interest Expense for the most recent Rolling Twelve Month period.
"Consolidated Total Interest Expense" shall mean, for any period, the
gross interest expense, whether paid or accrued (including PIK Interest) and
expensed in accordance with GAAP (including the interest component of Capital
Lease obligations), of the Borrower and its Consolidated Subsidiaries on a
consolidated basis for such period, including, without limitation or
duplication, (i) interest expense in respect of the Loans and all other
outstanding Indebtedness, (ii) amortization of the discount or issuance cost of
any Indebtedness (including, without limitation, any original issue discount
attributable to any issuance of debt securities), (iii) commissions, discounts
and other fees and charges payable in connection with letters of credit, (iv)
net payments payable in connection with all Interest Rate Protection Agreements
(including amortization of any discount), and (v) any interest which is
capitalized, all as determined in accordance with GAAP.
"Credit Agreement" shall have the meaning given to such term in the
initial paragraph of this agreement.
"Credit Exposure" shall mean, without duplication, with respect to any
Lender, an amount equal to (i) the aggregate principal amount of outstanding
Loans owed to such Lender hereunder, plus (ii) such Lender's pro rata share of
any L/C Exposure (if applicable), plus (iii) the unused amount of the Revolving
Credit Commitment of such Lender then in effect.
"Credit Party" shall mean the Borrower and each of the Guarantors.
"Debtor Relief Laws" shall mean the Bankruptcy Code and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief laws of the United States of America or other
applicable jurisdictions from time to time in effect affecting the rights of
creditors generally.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean, at any time, any Lender which shall not
have theretofore made available to the Administrative Agent, the Swingline
Lender or the Issuing Bank, as applicable, any amounts required to be made
available by such Lender hereunder or otherwise failed to pay any obligation
owing by such Lender pursuant to this Credit Agreement.
"Delco" shall have the meaning given to such term in paragraph F of the
Introductory Statement of this Credit Agreement.
"Dissolvable Entity" shall mean each of Community Associated Clubs,
Heirloom, Oneida Community, ▇▇▇▇ or ▇▇▇▇▇▇ until such time as each such entity
shall have (i) dissolved pursuant to Section 6.6(ix) hereof or (ii) executed an
Instrument of Assumption and Joinder pursuant to Section 5.12 hereof.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Eligible Assignee" shall mean (i) any Lender, any Affiliate of any
Lender (which, for purposes of this definition, shall include any investment or
similar fund that is owned, managed or controlled by such Lender) and any
Related Fund (any two or more Related Funds being treated as a single Eligible
Assignee for all purposes hereof), and (ii) any commercial bank, insurance
company, investment or mutual fund or other entity that is an "accredited
investor" (as defined in Regulation D under the Securities Act) and which
extends credit, buys loans and is in the business of lending as one of its
businesses; provided, that no Affiliate of the Borrower shall be an Eligible
Assignee.
"Encore" shall have the meaning given to such term in paragraph F of
the Introductory Statement of this Credit Agreement.
"Environment" shall mean any surface or subsurface water, groundwater,
water vapor, surface or subsurface land, air, fish, wildlife, microorganisms and
all other natural resources.
"Environmental Claim" shall mean any and all administrative or judicial
actions, suits, orders, claims, liens, notices, notices of violations,
investigations, complaints, requests for information, proceedings, or other
written communication, whether criminal or civil, pursuant to or relating to any
applicable Environmental Law by any Person (including, but not limited to, any
Governmental Authority, private person and citizens' group) based upon,
alleging, asserting, or claiming any actual or potential (i) violation of or
liability under any Environmental Law, (ii) violation of any Environmental
Permit, or (iii) liability for investigatory costs, cleanup costs, removal
costs, remedial costs, response costs, natural resource damages, damage,
property damage, personal injury, fines, or penalties arising out of, based on,
resulting from, or related to the presence, Release, or threatened Release into
the Environment, of any Hazardous Materials at any location, including, but not
limited to, any Premises or any location other than any Premises to which
Hazardous Materials or materials containing Hazardous Materials were sent for
handling, storage, treatment, or disposal.
"Environmental Clean-up Site" shall mean any location which is listed
or proposed for listing on the National Priorities List, the Comprehensive
Environmental Response, Compensation and Liability Information System, or on any
similar state list of sites requiring investigation or cleanup, or which is the
subject of any pending action, suit, proceeding, or investigation related to or
arising from any alleged violation of any Environmental Law, or any Release, or
any threatened or suspected Release, of a Hazardous Material.
"Environmental Laws" shall mean any and all applicable federal, state,
local or municipal or foreign laws, rules, orders, regulations, statutes,
ordinances, codes, common law doctrines, decrees or requirements of any
Governmental Authority regulating, relating to, or
imposing liability or standards of conduct concerning, any Hazardous Material or
environmental protection or worker health and safety, as now or at any time
hereafter in effect, including without limitation, the Clean Water Act also
known as the Federal Water Pollution Control Act, 33 U.S.C.'SS'1251 et seq., the
Clean Air Act, 42 U.S.C.'SS' 'SS'7401 et seq., the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C.'SS' 'SS' 136 et seq., the Surface Mining
Control and Reclamation Act, 30 U.S.C. 'SS' 'SS'1201 et seq., the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.'SS'9601 et
seq., the Superfund Amendment and Reauthorization Act of 1986, Public Law
99-499, 100 Stat. 1613, the Emergency Planning and Community Right to Know Act,
42 U.S.C.'SS'11001 et seq., the Resource Conservation and Recovery Act, 42
U.S.C.'SS'6901 et seq., the Occupational Safety and Health Act, 29 U.S.C.'SS'655
and'SS'657, together, in each case, with any amendment thereto, and the
regulations promulgated thereunder.
"Environmental Permit" shall mean any federal, state, local,
provincial, or foreign permits, licenses, approvals, consents or authorizations
required by any Governmental Authority under or in connection with any
Environmental Law and includes any and all orders, consent orders or binding
agreements issued or entered into by a Governmental Authority under any
applicable Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as heretofore and hereafter amended, as codified at 29 U.S.C. 'SS' 1001 et seq.,
and applicable regulations promulgated thereunder, or any successor provision
thereto.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9) of
ERISA) which is treated as a single employer with any Credit Party under Section
414(b), (c), (m) or (o) of the Code.
"Eurodollar Loan" shall mean a Loan based on the LIBO Rate in
accordance with the provisions of Article 2 hereof.
"Event of Default" shall have the meaning given to such term in Article
7 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
heretofore and hereafter amended, including the rules and regulations
promulgated thereunder.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank 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 Lender is located and (c) in the case of
a Foreign Lender, any withholding tax that is imposed on amounts payable to such
Foreign Lender 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 2.18(e), except to the extent that such Foreign
Lender was entitled, at the time of designation of a new lending office (or the
assignor, in the case of an assignment, was
entitled to receive at the time of such assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.18(a).
"Existing Administrative Agent" shall have the meaning given to such
term in paragraph F the Introductory Statement of this Credit Agreement.
"Existing Collateral" shall have the meaning given to such term in
paragraph I of the Introductory Statement to this Credit Agreement.
"Existing Collateral Agency Agreement" shall have the meaning given to
such term in paragraph H of the Introductory Statement of this Credit Agreement.
"Existing Collateral Agent" shall have the meaning given to such term
in paragraph H of the Introductory Statement of this Credit Agreement.
"Existing Copyright Security Agreements" shall mean, collectively, (i)
that certain Copyright Security Agreement dated as of April 27, 2001 made by the
Borrower, Buffalo China, THC, Encore, Delco and Sakura in favor of the Existing
Collateral Agent, (ii) that certain Copyright Security Agreement dated as of
April 23, 2002 made by the Borrower in favor of the Existing Collateral Agent,
(iii) that certain Copyright Security Agreement dated as of January 19, 2004
made by Sakura in favor of the Existing Collateral Agent and (iv) that certain
Copyright Security Agreement dated as of January 19, 2004 made by THC in favor
of the Existing Collateral Agent.
"Existing Credit Agreement" shall have the meaning given to such term
in paragraph A of the Introductory Statement of this Credit Agreement.
"Existing Credit Agreement Obligations" shall have the meaning given to
such term in paragraph F of the Introductory Statement of this Credit Agreement.
"Existing Fundamental Documents" shall mean, collectively, the Existing
Credit Agreement, the Existing Promissory Notes, the Existing Note Agreement,
the Existing Notes, the OSB Note, each Existing Standby L/C Agreement, each
Existing Standby L/C, the Existing Guarantee Agreements, and the Existing
Security Documents.
"Existing Guarantee Agreements" shall mean, collectively, the Existing
Loan Guarantee Agreements and the Existing Note Guarantee Agreements.
"Existing Guarantors" shall have the meaning given to such term in
paragraph F of the Introductory Statement of this Credit Agreement.
"Existing Lenders" shall have the meaning given to such term in
paragraph A of the Introductory Statement of this Credit Agreement.
"Existing Loan Guarantee Agreements" shall have the meaning given to
such term in paragraph F of the Introductory Statement of this Credit Agreement.
"Existing Loans" shall have the meaning given to such term in paragraph
A of the Introductory Statement of this Credit Agreement.
"Existing Mortgage Documents" shall mean, collectively, (i) that
certain Mortgage, Assignment of Leases and Rents and Security Agreement, dated
as of April 23, 2002, executed and delivered by Buffalo China and the Erie
County Industrial Development Agency to JPMorgan Chase, as the Existing
Collateral Agent, and recorded with the Clerk of Erie County, New York on April
25, 2002 in Liber 12990 of Deeds at page 6554, (ii) that certain Mortgage
Spreader Agreement, dated as of April 23, 2002, by and between Buffalo China,
the Erie County Industrial Development Agency and JPMorgan Chase, as the
Existing Collateral Agent, and recorded with the Clerk of Erie County, New York
on April 25, 2002 in Liber 11005 of Deeds at page 1060, (iii) that certain
Mortgage, Assignment of Leases and Rents and Security Agreement, dated as of
April 23, 2002, executed and delivered by Buffalo China and the Erie County
Industrial Development Agency to JPMorgan Chase, as the Existing Collateral
Agent, and recorded with the Clerk of Erie County, New York on April 25, 2002 in
Liber 12990 of Deeds at page 6594, (iv) that certain Mortgage Spreader
Agreement, dated as of April 23, 2002, by and between Buffalo China, the Erie
County Industrial Development Agency and JPMorgan Chase, as the Existing
Collateral Agent, and recorded with the Clerk of Erie County, New York on April
25, 2002 in Liber 11005 of Deeds at page 1072, (v) that certain Mortgage,
Assignment of Leases and Rents and Security Agreement, dated as of April 23,
2002, executed and delivered by the Borrower and the Oneida County Industrial
Development Agency to JPMorgan Chase, as the Existing Collateral Agent, and
recorded with the Clerk of Oneida County, New York on April 24, 2002 as
2002-010129, (vi) that certain Mortgage Spreader Agreement, dated as of April
23, 2002, by and between the Borrower, the Oneida County Industrial Development
Agency and JPMorgan Chase, as the Existing Collateral Agent, and recorded with
(A) the Clerk of Oneida County, New York on April 24, 2002 as 2002-010130, and
(B) the Clerk of Madison County, New York on April 25, 2002 in Liber 492 of A&S
at page 001, (vii) that certain Mortgage, Assignment of Leases and Rents and
Security Agreement, dated as of April 23, 2002, executed and delivered by the
Borrower and the Oneida County Industrial Development Agency to JPMorgan Chase,
as the Existing Collateral Agent, and recorded with the Clerk of Oneida County,
New York on April 24, 2002 as 2002-010127, (viii) that certain Mortgage Spreader
Agreement, dated as of April 23, 2002, by and between the Borrower, the Oneida
County Industrial Development Agency and JPMorgan Chase, as the Existing
Collateral Agent, and recorded with (A) the Clerk of Oneida County, New York on
April 24, 2002 as 2002-010128, and (B) with the Clerk of Madison County, New
York on April 25, 2002 in Liber 491 of A&S at page 281, and (ix) that certain
Mortgage, Assignment of Leases and Rents and Security Agreement, dated as of
April 18, 2003 executed and delivered by the Borrower to JPMorgan Chase, as the
Existing Collateral Agent, and recorded with (A) the Clerk of Oneida County on
April 21, 2003 as 2003-009098 and (B) with the Clerk of Madison County, New York
on April 25, 2003 in Liber 1734 of Mortgages at page 150.
"Existing Note Agreement" shall have the meaning given to such term in
paragraph B of the Introductory Statement of this Credit Agreement.
"Existing Note Agreement Obligations" shall have the meaning given to
such term in paragraph H of the Introductory Statement of this Credit Agreement.
"Existing Note Guarantee Agreements" shall have the meaning given to
such term in paragraph G of the Introductory Statement of this Credit Agreement.
"Existing Noteholders" shall have the meaning given to such term in
paragraph B of the Introductory Statement of this Credit Agreement.
"Existing Notes" shall have the meaning given to such term in paragraph
B of the Introductory Statement of this Credit Agreement.
"Existing Obligations" shall mean the Existing Credit Agreement
Obligations, the Existing Noteholder Obligations, the Existing OSB Obligations,
the HSBC China L/C Obligations and the Bank of America L/C Obligations.
"Existing OSB Obligations" shall have the meaning given to such term in
paragraph C of the Introductory Statement of this Credit Agreement.
"Existing Patent Security Agreements" shall mean, collectively, (i)
that certain Patent Security Agreement dated as of April 27, 2001 made by the
Borrower, Buffalo China, THC, Encore, Delco and Sakura in favor of the Existing
Collateral Agent, (ii) that certain Patent Security Agreement dated as of August
13, 2001 made by the Borrower in favor of the Existing Collateral Agent, (iii)
that certain Patent Security Agreement dated as of April 23, 2002 made by the
Borrower in favor of the Existing Collateral Agent, (iv) that certain Patent
Security Agreement dated as of August 29, 2003 made by the Borrower in favor of
the Existing Collateral Agent and (v) that certain Patent Security Agreement
dated as of January 19, 2004 made by the Borrower in favor of the Existing
Collateral Agent.
"Existing Pledge Agreements" shall mean, collectively, (i) that certain
Pledge Agreement dated as of April 27, 2001 by and among the Borrower, Buffalo
China, THC, Encore, Delco and Sakura as pledgors and the Existing Collateral
Agent, (ii) that certain Amendment No. 1 to Pledge Agreement dated as of April
23, 2002 by and among the Borrower, Buffalo China, THC, Encore, Delco and Sakura
as pledgors and the Existing Collateral Agent, (iii) that certain Amendment No.
2 to Pledge Agreement dated as of November 20, 2003 by and among the Borrower,
Buffalo China, THC, Encore, Delco and Sakura as pledgors and the Existing
Collateral Agent, (iv) that certain Pledge Agreement dated as of April 23, 2002
by and among Kenwood as pledgor and the Existing Collateral Agent, (v) that
certain Pledge Agreement dated July 25, 2003 by and among Silversmiths as
pledgor and the Existing Collateral Agent, (vi) that certain Pledge Agreement
dated as of July 25, 2003 by and among Food Service as pledgor and the Existing
Collateral Agent and (vii) that certain Amendment No. 3 to the Pledge Agreement
dated as of June 17, 2004 by and among the Borrower, Buffalo China, THC, Encore,
Delco and Sakura as pledgors and the Existing Collateral Agent.
"Existing Promissory Notes" shall have the meaning given to such term
in paragraph A of the Introductory Statement of this Credit Agreement.
"Existing Secured Obligations" shall have the meaning given to such
term in paragraph I of the Introductory Statement of this Credit Agreement.
"Existing Security Agreements" shall mean, collectively, (i) that
certain Security Agreement dated as of April 27, 2001 by and among the Borrower,
THC, Buffalo China, Encore, Delco and Sakura and the Existing Collateral Agent,
(ii) that certain Amendment No. 1 to Security Agreement dated as of April 27,
2001 by and among the Borrower, THC, Buffalo China, Encore, Delco and Sakura and
the Existing Collateral Agent, (iii) that certain Security Agreement dated as of
April 23, 2002 by and among Kenwood and the Existing Collateral Agent, (iv) that
certain Security Agreement dated as of July 25, 2003 by and among Silversmiths
and the Existing Collateral Agent and (v) that certain Security Agreement dated
as of July 25, 2003 by and among Food Service and the Existing Collateral Agent.
"Existing Security Documents" shall mean, collectively, the Existing
Security Agreements, the Existing Pledge Agreements, the Existing Copyright
Security Agreements, the Existing Patent Security Agreements, the Existing
Trademark Security Agreements, and the Existing Mortgage Documents, together
with any and all financing statements, collateral assignments and other security
documents delivered to the Existing Collateral Agent granting or purporting to
▇▇▇▇▇ ▇ ▇▇▇▇ on any assets to secure the obligations of the Borrower or any
Credit Party under the Existing Credit Agreement or any of the Transaction
Documents (as defined in the Existing Credit Agreement).
"Existing Standby L/C Agreements" shall mean, collectively, the Bank of
America L/C Agreement and the HSBC China L/C Agreement.
"Existing Standby L/C Issuers" shall mean, collectively, Bank of
America, as issuer of the Bank of America L/C and HSBC, as issuer of the HSBC
China L/C.
"Existing Standby L/Cs" shall mean, collectively, the Bank of America
L/C and the HSBC China L/C.
"Existing Trademark Security Agreements" shall mean, collectively, (i)
that certain Trademark Security Agreement dated as of April 27, 2001 made by the
Borrower, Buffalo China, THC, Encore, Delco and Sakura in favor of the Existing
Collateral Agent, (ii) that certain Trademark Security Agreement dated as of
April 23, 2002 made by the Borrower in favor of the Existing Collateral Agent,
(iii) that certain Trademark Security Agreement dated as of August 29, 2003 made
by the Borrower in favor of the Existing Collateral Agent, (iv) that certain
Trademark Security Agreement dated as of January 19, 2004 made by the Borrower
in favor of the Existing Collateral Agent and (v) that certain Trademark
Security Agreement dated as of June 18, 2004 made by the Borrower, Buffalo
China, THC, Encore, Delco and Sakura in favor of the Existing Collateral Agent.
"Facility Termination Date" shall mean the date on which all of the
Obligations have been indefeasibly paid in full in cash, the Total Revolving
Credit Commitment, the Total Tranche A Term Loan Commitment and the Total
Tranche B Term Loan Commitment have been permanently terminated in their
entirety and all Letters of Credit shall have expired or been terminated,
canceled or cash collateralized in an amount equal to 105% of the then current
L/C Exposure.
"FASB" shall mean the Financial Accounting Standards Board.
"Federal Funds Rate" shall have the meaning given to such term in the
definition of "Base Rate" set forth in this Article 1.
"Fee Letter" shall mean that certain letter agreement, dated as of June
21, 2004, between the Borrower and the Administrative Agent, relating to the
payment of certain fees, as the same may be amended, modified or supplemented
from time to time by a written instrument executed by the parties thereto.
"Fees" shall mean all fees payable pursuant to the Fee Letter and
pursuant to the terms of this Credit Agreement, including but not limited to the
Commitment Fee, the Letter of Credit Fees, the Restructuring Fee and the
Underwriting Fee.
"Food Service" shall have the meaning given to such term in paragraph F
of the Introductory Statement of this Credit Agreement.
"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 Pension Plan" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program, other than social
security or social insurance, or otherwise required by Applicable Law,
established or maintained outside the United States of America by any Credit
Party or any one or more of its Subsidiaries primarily for the benefit of
employees of the Credit Party or such Subsidiaries residing outside the United
States of America, which plan, fund or other similar program provides, or
results in retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination of employment, and which plan
is not subject to ERISA or the Code.
"Fundamental Documents" shall mean, collectively, this Credit
Agreement, any note issued to evidence any Loan hereunder, any Letter of Credit,
any Amended and Restated Mortgage, the Amended and Restated Consolidated
Subsidiary Guarantee Agreement, the Amended and Restated Consolidated Subsidiary
Subordination Agreement, the Amended and Restated Security Agreement, the
Amended and Restated Pledge Security Agreement, the Amended and Restated
Copyright Security Agreement, the Amended and Restated Patent Security
Agreement, the Amended and Restated Trademark Security Agreement, UCC financing
statements, the Fee Letter (or any other written and duly executed agreement
between the Borrower and the Collateral Agent or the Administrative Agent with
respect to the payment of fees), the Bank of America L/C Agreement and the HSBC
China L/C Agreement and any other documentation which is required to be or is
otherwise executed by any Credit Party and delivered in connection with this
Credit Agreement or any of the documents listed above, as any of the above may
be amended, amended and restated, supplemented or otherwise modified, renewed,
or replaced from time to time.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time, consistently applied
(except for accounting changes in response to FASB releases, or other
authoritative pronouncements); provided, however, that for
purposes of determining compliance with any covenant set forth in Article 6
hereof, GAAP shall mean generally accepted accounting principles in the United
States of America as in effect on the Closing Date, applied on a basis
consistent with the application used in the financial statements referred to in
Section 3.6 hereof.
"Governmental Authority" shall mean any federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, or any court, in each case whether of the United States or any
foreign jurisdiction.
"Guarantors" shall mean the guarantors signatory to the Amended and
Restated Consolidated Subsidiary Guaranty Agreement, and any other direct or
indirect Subsidiary of a Credit Party acquired or created after the date hereof,
which Subsidiary becomes a signatory to the Amended and Restated Consolidated
Subsidiary Guaranty Agreement as a Guarantor pursuant to Section 5.12 hereof.
"Guaranty" shall mean, as to any Person, any direct or indirect
obligation of such Person guaranteeing or intending to guarantee, or otherwise
providing credit support, for any Indebtedness, Capital Lease, dividend or other
monetary obligation ("primary obligation") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, by contract, as a
general partner or otherwise, including, without limitation, any obligation of
such Person, whether or not contingent, (a) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(b) to advance or supply funds (i) for the purchase or payment of any such
primary obligation or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, or (c) to purchase property, securities or services from the
primary obligor or other Person, in each case, primarily for the purpose of
assuring the performance of the primary obligor of any such primary obligation
or assuring the owner of any such primary obligation of the repayment of such
primary obligation. The amount of any Guaranty shall be deemed to be an amount
equal to (x) the stated or determinable amount of the primary obligation in
respect of which such Guaranty is made (or, if the amount of such primary
obligation is not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder)) or (y) the stated maximum liability under such Guaranty, whichever
is less.
"Hazardous Materials" shall mean any chemicals, materials, substances
or wastes in any amount or concentration which are now or hereafter become
defined as or included in the definition of "hazardous substances," "hazardous
materials," "hazardous wastes," "extremely hazardous wastes," "restricted
hazardous wastes," "toxic substances," "toxic pollutants," "pollutants,"
"regulated substances," "solid wastes," or "contaminants", under any
Environmental Law, including petroleum, petroleum hydrocarbons or petroleum
products, petroleum by-products, radioactive materials, asbestos or
asbestos-containing materials, gasoline, diesel fuel, pesticides, radon, urea
formaldehyde, lead or lead-containing materials, polychlorinated biphenyls.
"Hedging Agreements" shall mean any Interest Rate Protection Agreement
entered into from time to time among a Lender and the Borrower as permitted by
this Credit Agreement; provided, that the Administrative Agent shall have
received written notice thereof
from such Lender within ten (10) Business Days after execution of such Interest
Rate Protection Agreement.
"Hedging Banks" shall mean any Lender or Lenders which have entered
into a Hedging Agreement.
"Hedging Obligations" shall mean all the obligations of the Borrower to
Hedging Banks under the Hedging Agreements.
"Heirloom" shall mean Heirloom, Inc., a New York corporation and a
wholly owned subsidiary of the Borrower.
"HSBC" shall have the meaning given to such term in paragraph E of the
Introductory Statement of this Credit Agreement.
"HSBC China L/C" shall have the meaning given to such term in paragraph
E of the Introductory Statement of this Credit Agreement.
"HSBC China L/C Agreement" shall have the meaning given to such term in
paragraph E of the Introductory Statement of this Credit Agreement.
"HSBC China L/C Obligations" shall have the meaning given to such term
in paragraph E of the Introductory Statement of this Credit Agreement.
"Indebtedness" shall mean (without duplication), at any time and with
respect to any Person, (i) indebtedness of such Person for borrowed money
(whether by loan or the issuance and sale of debt securities) other than
Intercompany Indebtedness or for the deferred purchase price of property or
services purchased (other than amounts constituting trade payables arising in
the ordinary course of business and payable in accordance with customary trading
terms not in excess of 90 days); (ii) all indebtedness of such Person evidenced
by a note, bond, debenture or similar instrument (whether or not disbursed in
full in the case of a construction loan) other than Intercompany Indebtedness;
(iii) indebtedness of others which such Person has directly or indirectly
assumed or guaranteed or otherwise provided credit support for other than
Intercompany Indebtedness; (iv) indebtedness of others secured by a Lien on
assets of such Person, whether or not such Person shall have assumed such
indebtedness (provided, that if such Person has not assumed such indebtedness of
another Person then the amount of indebtedness of such Person pursuant to this
clause (iv) for purposes of this Credit Agreement shall be equal to the lesser
of the amount of the indebtedness of the other Person or the fair market value
of the assets of such Person which secures such other indebtedness) other than
Intercompany Indebtedness; (v) any Guaranty by such Person other than
Intercompany Indebtedness; (vi) obligations of such Person under Capital Leases;
and (vii) all obligations of such Person under any Interest Rate Protection
Agreement. Notwithstanding anything to the contrary contained herein,
Indebtedness shall not include any accrued obligations in respect of employee
compensation and benefits.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Initial Date" shall mean (i) in the case of the Administrative Agent,
the Collateral Agent and the Issuing Bank, the Closing Date, (ii) in the case of
each Lender which is an original party to this Credit Agreement, the Closing
Date and (iii) in the case of any other Lender, the effective date of the
Assignment and Acceptance pursuant to which it became a Lender.
"Instrument of Assumption and Joinder" shall mean an Assumption and
Joinder Agreement substantially in the form of Exhibit K hereto.
"Intercompany Indebtedness" shall mean Indebtedness of any Credit Party
or any Subsidiary of a Credit Party owed to any other Credit Party or any
Subsidiary of a Credit Party as a result of intercompany advances.
"Intercreditor Agreement" shall mean that certain Second Amended and
Restated Collateral Agency and Intercreditor Agreement dated as of the date
hereof by and among the Borrower, the Guarantors, the Agents and the Lenders (as
the same may be further amended, amended and restated, supplemented or otherwise
modified, renewed, or replaced from time to time), a copy of which is attached
hereto as Exhibit L.
"Interest Deficit" shall have the meaning given to such term in Section
2.19 hereof.
"Interest Payment Date" shall mean (i) as to any Base Rate Loan (other
than a Swingline Loan), the last day of each calendar month (commencing the last
day of the month during which the Closing Date shall have occurred), (ii) with
respect to any Swingline Loan, the day that such loan is required to be paid,
and (iii) as to any Eurodollar Loan the last day of the applicable Interest
Period; provided, that in the case of an Interest Period with a duration of six
(6) months an Interest Payment Date shall occur on each date occurring at three
(3) month intervals after the first day of such Interest Period.
"Interest Period" shall mean as to any Eurodollar Loan, the period
commencing on the date such Loan is made, continued or converted or the last day
of the preceding Interest Period and ending on the numerically corresponding day
(or if there is no corresponding day, then the last day) in the calendar month
that is one, two, three or six months thereafter as the Borrower may elect;
provided, however, that (i) if any Interest Period would end on a day which
shall not be a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, (ii) no Interest Period with respect to a Tranche A
Term Loan, Tranche B Term Loan or a Revolving Credit Loan (in each case
constituting a Eurodollar Loan) may be selected which would end later than the
Tranche A Term Loan Maturity Date, Tranche B Term Loan Maturity Date or the
Revolving Credit Commitment Termination Date, respectively, (iii) interest shall
accrue from and including the first day of such Interest Period to but excluding
the last date of such Interest Period, (iv) no Interest Period with respect to
any portion of the Tranche A Term Loans constituting a Eurodollar Loan may be
selected which extends beyond the date under which a mandatory prepayment of
such Tranche will be required to be made under Section 2.11 hereof if the
aggregate principal amount of Eurodollar Loans which are Tranche A Term Loans,
which have
Interest Periods ending after such date, will be in excess of the aggregate
principal amount of the Tranche A Term Loans outstanding less the aggregate
amount of such mandatory prepayment on the Tranche A Term Loans on the date on
which such mandatory prepayment is required to be made and (v) no Interest
Period with respect to any portion of the Tranche B Term Loans constituting a
Eurodollar Loan may be selected which extends beyond the date under which a
mandatory repayment of such Tranche will be required to be made under Section
2.11 hereof if the aggregate principal amount of Eurodollar Loans which are
Tranche B Term Loans, which have Interest Periods ending after such date, will
be in excess of the aggregate principal amount of the Tranche B Term Loans
outstanding less the aggregate amount of such mandatory prepayment on the
Tranche.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, synthetic cap, collar or floor or other
financial agreement or arrangement designed to protect a Credit Party against
fluctuations in interest rates or to reduce the effect of any such fluctuations.
"Interest Rate Type" shall have the meaning given to such term in
Section 2.5 hereof.
"Investment" shall mean any stock, evidence of indebtedness or other
security of any Person, any loan, advance, contribution of capital, extension of
credit or commitment therefor (including, without limitation, the Guaranty of
loans made to others, but excluding current trade and customer accounts
receivable arising in the ordinary course of business and payable in accordance
with customary trading terms in the ordinary course of business or periodic
payments made pursuant to settlements for satisfaction of outstanding
Receivables entered into in the ordinary course of business), and any purchase
of (i) any security of another Person or (ii) a line of business, or all or
substantially all of the assets, of any Person or any binding commitment to make
any such purchase which by its terms is not conditioned upon receiving a consent
or waiver from the Lenders under the Credit Agreement.
"Issuing Bank" shall mean JPMorgan Chase Bank.
"JPMorgan Chase" shall have the meaning given to such term in the
initial paragraph of this Credit Agreement.
"Kenwood" shall have the meaning given to such term in paragraph F of
the Introductory Statement of this Credit Agreement.
"Knowledge" shall mean the actual knowledge of any Authorized Officer,
with respect to the Borrower or any other Credit Party, as the case may be,
after due inquiry.
"L/C Exposure" shall mean, at any time, the amount expressed in Dollars
of the aggregate face amount of all drafts which may then or thereafter be
presented by beneficiaries under all Letters of Credit and all Trade Letters of
Credit then outstanding plus (without duplication), the face amount of all
drafts which have been presented or accepted under all Letters of Credit and all
Trade Letters of Credit but have not yet been paid or have been paid but not
reimbursed, whether directly or from the proceeds of a Revolving Credit Loan
hereunder.
"L/C Indebtedness" shall mean obligations of the Borrower or any of its
Subsidiaries in respect of letters of credit, acceptance facilities or drafts or
similar instruments issued or accepted by banks and other financial institutions
for the account of the Borrower or any of its Subsidiaries.
"Lender" and "Lenders" shall mean the financial institutions whose
names appear on the signature pages hereof and any assignee of a Lender pursuant
to Section 10.3 hereof, and their respective successors; it being understood
that the Existing Standby L/C Issuers shall become a Lender hereunder only upon
(i) a draw under the respective Existing Standby L/C and (ii) the corresponding
reimbursement obligations in connection with such draw are restructured as Term
Loans pursuant to the terms set forth in Section 2.1(a) hereof. Unless the
context otherwise requires, the term "Lender" includes the Swingline Lender.
"Lending Office" shall mean, with respect to any of the Lenders, the
branch or branches (or Affiliate or Affiliates) from which such Lender's
Eurodollar Loans or Base Rate Loans, as the case may be, are made or maintained
and for the account of which all payments of principal of, and interest on, such
Lender's Eurodollar Loans or Base Rate Loans are made, as notified to the
Administrative Agent from time to time.
"Letter of Credit" shall mean a standby or documentary letter of credit
issued by the Issuing Bank pursuant to Section 2.21 hereof.
"Letter of Credit Fees" shall mean the fees payable in respect of
Letters of Credit pursuant to Section 2.21 hereof.
"LIBO Rate" shall mean, with respect to any Borrowing consisting of
Eurodollar Loans for any Interest Period, the rate per annum appearing on
Telerate Page 3750 (or on any successor page) as the London interbank offered
rate for deposits in dollars at approximately 11:00 a.m. (London time) two (2)
Business Days prior to the commencement of such Interest Period 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 Borrowing
of Eurodollar Loans for such Interest Period shall be the rate per annum at
which, as determined by the Administrative Agent, Dollars in an amount
comparable to the amount of such Borrowing are being offered to leading banks at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the
commencement of the applicable Interest Period for settlement in immediately
available funds by leading banks in the London interbank market for a period
equal to the Interest Period selected.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien, encroachment or charge of any kind whatsoever (including, without
limitation, any conditional sale or other title retention agreement, any
agreement to grant a security interest at a future date, any lease in the nature
of security, and the filing of, or agreement to give, any financing statement
under the Uniform Commercial Code of any jurisdiction).
"Loans" shall mean, collectively, the Tranche A Term Loans, the Tranche
B Term Loans, the Swingline Loans and the Revolving Credit Loans. A "Loan" shall
mean any one of such Loans individually.
"Margin Stock" shall be as defined in Regulation U of the Board.
"Material Adverse Effect" shall mean any event or condition that (i)
has a material adverse effect on the business, assets, properties, performance,
operations, condition (financial or otherwise) or prospects of the Credit
Parties taken as a whole or of the Borrower, (ii) materially impairs the ability
of the Borrower or any Credit Party to perform its respective obligations under
any Fundamental Document to which it is or will be a party or (iii) materially
and adversely affects the Liens granted to the Collateral Agent (for the benefit
of the Secured Parties) or materially impairs the validity or enforceability of,
or materially impairs the rights, remedies or benefits available to the
Collateral Agent or the Secured Parties; provided, however, that any event or
condition will be deemed to have a "Material Adverse Effect" if such event or
condition when taken together with all other events and conditions occurring or
in existence at such time (including all other events and conditions which, but
for the fact that a representation, warranty or covenant is subject to a
"Material Adverse Effect" exception, would cause such representation or warranty
contained herein to be untrue or such covenant to be breached) would result in a
"Material Adverse Effect," even though, individually, such event or condition
would not do so.
"Material Agreement" shall mean (i) any credit agreement, indenture, or
other agreement related to Indebtedness of any Credit Party in excess of
$1,000,000 (other than this Credit Agreement and the other Fundamental
Documents); (ii) any agreement pursuant to which the Credit Parties would
reasonably expect to (A) recognize aggregate annual future revenues in excess of
5% of the aggregate annual revenues of the Credit Parties for the preceding
fiscal year, or (B) incur aggregate annual future expenses in excess of 5% of
the aggregate annual revenues of the Credit Parties for the preceding fiscal
year; and (iii) any other agreement, the breach or termination of which would
reasonably be expected to have a Material Adverse Effect.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. or if such company
shall cease to issue ratings, another nationally recognized statistical rating
company selected in good faith by mutual agreement of the Administrative Agent
and the Borrower.
"Multiemployer Plan" shall mean a plan described in Section 4001(a)(3)
of ERISA to which any Credit Party or ERISA Affiliate is making or accruing an
obligation to make contributions, or has within the preceding five plan years
made or accrued an obligation to make contributions.
"Net Cash Proceeds" shall mean (a) the aggregate cash proceeds received
by a Credit Party in a transaction permitted under Section 6.6(a)(iv) hereof
(including, without limitation, as applicable, all cash proceeds received by way
of deferred payment of principal pursuant to a note or installment receivable,
sale or monetization of other non-cash consideration or otherwise, but only as
and when received), minus (b) reasonable and customary brokerage commissions,
finder's fees, discount and other reasonable and customary fees and direct
expenses (including reasonable and customary fees and expenses of counsel and
investment bankers actually paid or payable by the applicable Credit Party)
related to such transaction minus, (c) payments made to retire Indebtedness
(other than the Loans) secured by any assets being sold or otherwise disposed of
where payment of such Indebtedness is required in connection with such sale or
disposition minus, (d) the amount of $4,000,000 which is required
to be deposited in the Sale Proceeds Collateral Account pursuant to Section 5.21
hereof; provided, that with respect to taxes, expenses shall only include taxes
to the extent that taxes are payable in cash in the current year or in the next
succeeding year with respect to the current year as a direct result of the
applicable transaction.
"Obligations" shall mean (a) all obligations, whether direct or
indirect, contingent or absolute, of every type or description and at any time
existing, of the Borrower or any other Credit Party to make due and punctual
payment of (i) principal of and all interest on the Loans, the Fees, any
reimbursement obligations in respect of Letters of Credit and Trade Letters of
Credit, costs and attorneys' fees and all other monetary obligations of the
Borrower to the Agents, the Issuing Bank, any Lender or any other Secured Party
under or in respect of this Credit Agreement, any note evidencing any of the
Loans hereunder, any other Fundamental Document or the Fee Letter, (ii) all
Hedging Obligations, (iii) any reimbursement obligations in respect of the
Existing Standby L/Cs and (iv) amounts payable to JPMorgan Chase or any Lender
in connection with any bank account maintained by the Borrower or any other
Credit Party at JPMorgan Chase or any Lender or in connection with any other
banking services (including, without limitation, cash management services)
provided to the Borrower or any other Credit Party by JPMorgan Chase or any
Lender with respect to, or in any way related to or otherwise required by, any
of the Fundamental Documents (including, without limitation, interest accruing
at the then applicable rate provided in this Credit Agreement after the maturity
of any of the Loans, and interest accruing at the then applicable rate provided
in this Credit Agreement after the filing of any petition in bankruptcy or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower or any other Credit Party, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) and (b) all other
obligations of the Borrower or any other Credit Party pursuant to this Credit
Agreement or any other Fundamental Document.
"Oneida Community" shall mean Oneida Community, Limited, a New York
corporation and a wholly owned subsidiary of the Borrower.
"Oneida International" shall mean Oneida International, a Delaware
corporation and a subsidiary of the Borrower.
"Oneida Italy" shall mean Oneida Italy S.r.l.
"OSB" shall have the meaning given to such term in paragraph C of the
Introductory Statement of this Credit Agreement.
"OSB Note" shall have the meaning given to such term in paragraph C of
the Introductory Statement of this Credit Agreement.
"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 or any Fundamental Document.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
successor thereto.
"Percentage" shall mean with respect to any Lender, the percentage of
the Total Credit Exposure represented by such Lender's Credit Exposure, or the
percentage of the specified Commitments or Tranche of Loans held by such Lender,
as the context may require.
"Permitted Liens" shall mean Liens permitted under Section 6.2 hereof.
"Permitted Refinancing" shall mean a refinancing of the Total Revolving
Credit Commitment then in effect, in full.
"Person" shall mean any natural person, corporation, division of a
corporation, partnership, limited liability partnership, limited liability
company, trust, joint venture, association, company, estate, unincorporated
organization or government or any agency or political subdivision thereof.
"PIK Interest" shall mean interest on Tranche B Term Loans which,
rather than being paid in cash when due, shall instead be capitalized and
treated as additional principal obligations under the Tranche B Term Loans
subject to the terms of this Credit Agreement, and which shall accrue interest
at the same rates (including default rates) as are applicable to the Tranche B
Term Loans under this Credit Agreement (such interest to be payable at the same
times that interest on the Tranche B Term Loans is payable), and which shall
form part of the Obligations under this Credit Agreement and the other
Fundamental Documents.
"Plan" shall mean an employee pension benefit plan within the meaning
of Section 3(2) of ERISA, other than a Multiemployer Plan, maintained or
contributed to by any Credit Party, or any ERISA Affiliate, or otherwise
pursuant to which any Credit Party could have liability under Title IV of ERISA.
"Pledged Collateral" shall mean the Pledged Securities and any proceeds
or products thereof or income therefrom, in any form, together with (i) all
profits, dividends and distributions to which a Pledgor shall at any time be
entitled in respect of its Pledged Securities; (ii) all other payments, if any,
due or to become due to a Pledgor in respect of its Pledged Securities, whether
as contractual obligations, damages, insurance proceeds, condemnation awards or
otherwise; (iii) all of a Pledgor's claims, rights, powers, privileges,
authority, options, security interest, liens and remedies, if any, under or
arising out of the ownership of such Pledgor's Pledged Securities; (iv) all
present and future claims, if any, of a Pledgor against the applicable entity in
which such Pledgor owns its Pledged Securities or under or arising out of the
applicable partnership or operating agreement, as applicable, for monies loaned
or advanced, for services rendered or otherwise; (v) to the extent permitted by
Applicable Law, all of a Pledgor's rights, if any, under the applicable
partnership or operating agreement, as applicable, or at law, to exercise and
enforce every right, power, remedy, authority, option and privilege of such
Pledgor relating to its Pledged Securities, including, without limitation, any
power to terminate, cancel or modify the applicable partnership or operating
agreement, as applicable, to execute any instruments and to take any and all
other action on behalf of and in the name of such Pledgor in respect of its
Pledged Securities and the entity in which such Pledgor owns its Pledged
Securities, to make determinations, to exercise any election (including, but not
limited to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and authority
to demand, receive, enforce or collect any of the
foregoing or any property of the applicable entity, to enforce or execute any
checks, or other instruments or orders, to file any claims and to take any
action in connection with any of the foregoing; and (vi) to the extent not
otherwise included, any and all proceeds (as defined in Section 9-102(a)(64) of
the UCC) of any or all of the foregoing.
"Pledged Securities" shall mean the securities of the Borrower and each
Credit Party, whether now owned or hereafter acquired which are purported to be
pledged to the Collateral Agent as security for the Obligations pursuant to the
Amended and Restated Pledge Security Agreement.
"Pledgor" shall mean a Credit Party that owns any of the Pledged
Securities.
"Premises" shall mean any real property currently or formerly owned,
leased or operated by any Credit Party or any Subsidiary of any Credit Party,
including, but not limited to, all soil, surface water, or groundwater thereat.
"Prepayment Date" shall have the meaning given to such term in Section
2.11(i) hereof.
"Prime Rate" shall have the meaning given to such term in the
definition of "Base Rate" set forth in this Article 1.
"Pro Forma Basis" shall mean in connection with any transaction for
which a determination on a Pro Forma Basis is required to be made hereunder,
that such determination shall be made (i) after giving effect to any issuance of
Indebtedness, any acquisition, any disposition or any other transaction, as
applicable, and (ii) assuming that the issuance of Indebtedness, acquisition,
disposition or other transaction and, if applicable, the application of proceeds
therefrom, occurred at the beginning of the most recent Rolling Twelve Month
period ending at least thirty (30) days prior to the date on which such issuance
of Indebtedness, acquisition, disposition or other transaction occurred, and
(iii) with all calculations of Consolidated Net Income, Consolidated EBITDAR and
any financial definition utilizing any such terms being calculated on a
pro-forma basis in accordance with Regulation S-X under the Exchange Act.
"Proprietary Rights" shall have the meaning given to such term in
Section 3.8(a) hereof.
"Purchasing Lender" shall have the meaning given to such term in
Section 2.16(e).
"Real Property Assets" shall mean as of any time, all parcels of real
property, owned and/or leased at such time directly or indirectly by any Credit
Party, together with in each case, all buildings, improvements, appurtenant
fixtures and equipment, easements and other property and rights incidental or
appurtenant to the ownership or lease (as applicable) of such parcel of real
property and/or any of the foregoing which is or shall become, subject to an
Amended and Restated Mortgage in favor of the Collateral Agent (in case any Real
Property Assets shall be subject to an Amended and Restated Mortgage, such Real
Property Assets shall also include all Collateral described in such Amended and
Restated Mortgage).
"Receivables" shall mean all rights to receive payment from an obligor
for services rendered or good sold by the Credit Parties in the ordinary course
of business. Such amounts shall include all interest, finance charges or other
amounts legally payable by an obligor in respect thereof.
"Register" shall have the meaning given to such term in Section
10.3(e).
"▇▇▇▇" shall mean ▇▇▇▇ Corporation, a New York corporation and a wholly
owned subsidiary of the Borrower.
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation T" shall mean Regulation T of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulatory Licenses" shall mean any and all licenses, including
provisional licenses, certificates of need and/or other accreditations, permits,
franchising rights to conduct business, approvals by a Governmental Authority or
otherwise, consents, qualifications, operating authority and/or any other
authorizations necessary for a Credit Party or any of its Subsidiaries to own
their properties or operate their business.
"Related Fund" shall mean, with respect to any Lender that is an
investment fund, any other investment fund that invests in commercial loans and
that is managed or advised by the same investment advisor as such Lender or by
an Affiliate of such investment advisor.
"Release" shall mean any discharging, disposing, emitting, leaking,
pumping, pouring, emptying, injecting, escaping, leaching, dumping or spilling
of any Hazardous Material into the Environment.
"Released Information" shall have the meaning given to such term in
Section 5.19 of this Credit Agreement.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(c) of ERISA other than those events as to which the 30-day notice
period is waived under PBGC Regulation 29 C.F.R. Section 4043. Notwithstanding
the foregoing, the term Reportable Event shall not include an event described in
Section 4043(c)(5) of ERISA or subsection .25, .33, or .66 of PBGC Regulation 29
C.F.R. Section 4043 but only with respect to an event thereunder relating to or
in connection with the 2004 plan year or any portion thereof of a Plan.
"Required Lenders" shall mean Required Revolving Credit Lenders and
Required Tranche A Term Loan Lenders provided, that upon satisfaction in full of
(i) the Revolving Credit
Loans and the termination of Revolving Credit Commitment and (ii) the Tranche A
Term Loans, Required Lenders shall mean the Required Tranche B Term Loan
Lenders.
"Required Revolving Credit Lenders" shall mean (i) Revolving Credit
Lenders holding greater than fifty percent (50%) of the unpaid principal amount,
if any, of the Revolving Credit Loans and L/C Exposure then outstanding or (ii)
if no Revolving Credit Loans and no Letters of Credit are then outstanding,
Revolving Credit Lenders holding greater than fifty percent (50%) of the Total
Revolving Credit Commitment; provided, that for purposes of this definition, the
Revolving Credit Loans, the pro rata portion of L/C Exposure or the Revolving
Credit Commitment of a Revolving Credit Lender shall be disregarded if and for
so long as such Revolving Credit Lender shall be a Defaulting Lender.
"Required Tranche A Term Loan Lenders" shall mean Tranche A Term Loan
Lenders holding greater than fifty percent (50%) of the unpaid principal amount
of the Tranche A Term Loans.
"Required Tranche B Term Loan Lenders" shall mean Tranche B Term Loan
Lenders holding greater than fifty percent (50%) of the unpaid principal amount
of the Tranche B Term Loans.
"Requirements" shall mean all present and future laws, statutes, codes,
ordinances, orders, judgments, decrees, injunctions, rules, regulations and
requirements of every Governmental Authority having jurisdiction over any Real
Property Asset and all Liens applicable to any Real Property Asset.
"Restricted Payment" shall mean (i) any distribution, dividend or other
direct or indirect payment on account of shares of any class of Capital Stock of
a Credit Party (other than distributions and dividends payable solely in shares
of Capital Stock), (ii) any redemption or other acquisition, re-acquisition or
retirement by a Credit Party of any shares of any class of its own Capital Stock
or the Capital Stock of another Credit Party or an Affiliate, now or hereafter
outstanding (other than redemptions, acquisitions and retirements payable in
shares of Capital Stock), (iii) any payment made to retire, or obtain the
surrender of, any outstanding warrants, puts or options or other rights to
purchase or otherwise acquire shares of any Capital Stock of a Credit Party or
an Affiliate, now or hereafter outstanding and (iv) any payment by a Credit
Party of principal of, premium, if any, or interest on, or any redemption,
purchase, retirement, defeasance, sinking fund or similar payment with respect
to, any Indebtedness or Intercompany Indebtedness now or hereafter outstanding
which Indebtedness is subordinated to any of the Obligations.
"Restructuring Fee" shall have the meaning given to such term in
Section 2.8 of this Credit Agreement.
"Revolving Credit Commitment" shall mean the commitment of each
Revolving Credit Lender to make Revolving Credit Loans to the Borrower and to
participate in Letters of Credit and Swingline Loans hereunder, up to an
aggregate principal amount, at any one time, not in excess of the amount set
forth (i) opposite such Revolving Credit Lender's name under the column entitled
"Revolving Credit Commitment" on Annex A hereto or (ii) in any applicable
Assignment and Acceptance(s) to which it may be a party, as the case may be, as
such amount may be reduced from time to time in accordance with the terms of
this Credit Agreement.
"Revolving Credit Commitment Termination Date" shall mean the earlier
of (i) the Revolving Credit Loan Maturity Date and (ii) the date on which the
Total Revolving Credit Commitment shall terminate in accordance with Section 2.9
or Article 7 hereof.
"Revolving Credit Lender" shall mean any Lender holding a Revolving
Credit Commitment hereunder.
"Revolving Credit Loan Maturity Date" shall mean the 30th month
anniversary of the Closing Date.
"Revolving Credit Loans" shall have the meaning given to such term in
Section 2.2 hereof.
"▇▇▇▇▇▇" shall mean Wm. ▇. ▇▇▇▇▇▇, Ltd., a New York corporation and a
wholly owned subsidiary of the Borrower.
"Rolling Twelve Months" shall mean, with respect to any date of
determination, the month then ended and the eleven (11) immediately preceding
months considered as a single period.
"Sakura" shall have the meaning given to such term in paragraph F of
the Introductory Statement of this Credit Agreement.
"Sale Proceeds Collateral Account" shall mean that certain account
established with the Administrative Agent in the name of the Administrative
Agent (for the benefit of the Secured Parties) under the sole and exclusive
control of the Administrative Agent, into which the Borrower shall deposit the
amounts referred to in, and in accordance with, Section 5.21, and as such funds
may be released as permitted by Section 5.21.
"S&P" shall mean Standard & Poor's Ratings Group (a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.) or, if such company shall cease to issue ratings,
another nationally recognized statistical rating company selected in good faith
by mutual agreement of the Administrative Agent and the Borrower.
"SEC" shall mean the United States Securities and Exchange Commission.
"Secured Parties" shall mean the Agents, the Issuing Bank, the Lenders,
the issuer of the Trade Letters of Credit, Bank of America as issuer of the Bank
of America L/C, HSBC as issuer of the HSBC China L/C, the Hedging Banks, the
beneficiaries of each indemnification obligation undertaken by any Credit Party
under this Credit Agreement or any other Fundamental Document and each of their
respective successors and assigns.
"Securities Act" shall mean the Securities Act of 1933, as amended,
including the rules and regulations promulgated thereunder.
"Securities Exchange Agreement" shall have the meaning given to such
term in paragraph J of the Introductory Statement of this Credit Agreement.
"Security Documents" shall mean collectively, the Amended and Restated
Security Agreement, the Amended and Restated Pledge Security Agreement, the
Amended and Restated Copyright Security Agreement, the Amended and Restated
Patent Security Agreement, the Amended and Restated Trademark Security
Agreement, the Amended and Restated Mortgages, 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 the Borrower or any Credit Party under this Credit Agreement or
any of the other Fundamental Documents.
"Silversmiths" shall have the meaning given to such term in paragraph F
of the Introductory Statement of this Credit Agreement.
"Subsidiary" shall mean with respect to any Person, any corporation,
association, joint venture, partnership or other business entity (whether now
existing or hereafter organized) of which at least a majority of the voting
stock or other ownership interests having ordinary voting power for the election
of directors (or the equivalent) is, at the time as of which any determination
is being made, owned or controlled by such Person or one or more subsidiaries of
such Person or by such Person and one or more subsidiaries of such Person.
"Swingline Lender" shall mean JPMorgan Chase in its capacity as
Swingline Lender.
"Swingline Loan" shall have the meaning given to such term in Section
2.4 hereof.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loans" shall have the meaning given to such term in Section 2.1
of this Credit Agreement.
"THC" shall have the meaning given to such term in paragraph B of the
Introductory Statement of this Credit Agreement.
"Title Company" shall mean Commonwealth Land Title Insurance Company or
any other title insurance company of recognized national standing which is
acceptable to the Administrative Agent in its sole discretion.
"Total Credit Commitments" shall mean the sum of the Total Tranche A
Term Loan Commitment, the Total Tranche B Term Loan Commitment and the Total
Revolving Credit Commitment.
"Total Credit Exposure" shall mean an amount equal to (i) the aggregate
principal amount of all outstanding Loans hereunder, plus (ii) the then current
amount of L/C Exposure, plus (iii) the aggregate amount of the unused Total
Credit Commitments then in effect.
"Total Debt" shall mean the aggregate principal amount of all
outstanding Indebtedness of the Borrower and the Credit Parties (including,
without limitation, the principal portion of any synthetic lease entered into by
the Borrower or any of its Subsidiaries).
"Total Leverage Ratio" shall mean, at any date for which such ratio is
to be determined, the ratio of Total Debt of the Borrower and its Consolidated
Subsidiaries at such date to Consolidated EBITDAR for the most recent Rolling
Twelve Month period.
"Total Revolving Credit Commitment" shall mean the aggregate amount of
the Revolving Credit Commitments then in effect of all of the Revolving Credit
Lenders, as such amount may be reduced or modified from time to time in
accordance with the terms of this Credit Agreement.
"Total Tranche A Term Loan Commitment" shall mean the aggregate amount
of the Tranche A Term Loan Commitments then in effect of all the Tranche A Term
Loan Lenders as such amount may be (i) increased pursuant to Section 2.1(a)
hereof or (ii) reduced or modified from time to time in accordance with the
terms of this Credit Agreement.
"Total Tranche B Term Loan Commitment" shall mean the aggregate amount
of the Tranche B Term Loan Commitments then in effect of all the Tranche B Term
Loan Lenders as such amount may be (i) increased pursuant to Section 2.1(a)
hereof or (ii) reduced or modified from time to time in accordance with the
terms of this Credit Agreement.
"Trade Letters of Credit" shall mean those certain documentary letters
of credit set forth on Schedule 1.0 hereto and issued but undrawn as of the date
hereof.
"Tranche" when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Credit
Loans, Swingline Loans, Tranche A Term Loans or Tranche B Term Loans.
"Tranche A L/C Collateralization" shall mean either (i) the cash
collateralization of any outstanding obligations in respect of the Bank of
America L/C and the Tranche A Portion of the HSBC China L/C, in an amount equal
to 105% of the then undrawn stated amounts of the Bank of America L/C and the
Tranche A Portion of the HSBC China L/C, or (ii) a "back-to-back" letter of
credit to the respective Existing Standby L/C Issuer in a form reasonably
satisfactory to such Existing Standby L/C Issuer, issued by a bank reasonably
satisfactory to such Existing Standby L/C Issuer.
"Tranche A Portion of HSBC China L/C" shall mean 61.52% of the then
undrawn stated amount of the HSBC China L/C.
"Tranche A Portion of HSBC China L/C Obligations" shall mean 61.52% of
the then outstanding HSBC China L/C Obligations.
"Tranche A Term Loan" shall have the meaning given to such term in
Section 2.1 hereof.
"Tranche A Term Loan Commitment" shall mean the commitment of each
Tranche A Term Loan Lender (i) to restructure a portion of the Existing
Obligations as Tranche A Term Loans to the Borrower in the amount set forth
opposite such Tranche A Term Loan Lender's name under the heading entitled
"Tranche A Term Loan Commitment" on Annex A hereto or (ii) in the amount set
forth in any applicable Assignment and Acceptance(s) to which it may be a party,
as the case may be, as such amount may be reduced from time to time in
accordance with the terms of this Credit Agreement.
"Tranche A Term Loan Lender" shall mean any Lender holding a Tranche A
Term Loan Commitment hereunder.
"Tranche A Term Loan Maturity Date" shall mean the earlier of (i) the
third anniversary of the Closing Date and (ii) the date on which the Tranche A
Term Loans shall become due and payable pursuant to Article 7 hereof.
"Tranche ▇ ▇/C Collateralization" shall mean either (i) the cash
collateralization of any outstanding obligations in respect of the Tranche B
Portion of the HSBC China L/C in an amount equal to 105% of the then undrawn
stated amount of the Tranche B Portion of the HSBC China L/C, or (ii) a
"back-to-back" letter of credit to the HSBC in a form reasonably satisfactory to
HSBC, issued by a bank reasonably satisfactory to HSBC.
"Tranche B Portion of HSBC China L/C" shall mean 38.48% of the then
undrawn face amount of the HSBC China L/C.
"Tranche B Portion of HSBC China L/C Obligations" shall mean 38.48% of
the then outstanding HSBC China L/C Obligations.
"Tranche B Term Loan" shall have the meaning given to such term in
Section 2.1 hereof.
"Tranche B Term Loan Commitment" shall mean the commitment of each
Tranche B Term Loan Lender (i) to restructure the remaining Existing Obligations
as Tranche B Term Loans to the Borrower in the amount set forth opposite such
Tranche B Term Loan Lender's name under the heading entitled "Tranche B Term
Loan Commitment" on Annex A hereto or (ii) in the amount set forth in any
applicable Assignment and Acceptance(s) to which it may be a party, as the case
may be, as such amount may be reduced from time to time in accordance with the
terms of this Credit Agreement.
"Tranche B Term Loan Lender" shall mean any Lender holding a Tranche B
Term Loan Commitment hereunder.
"Tranche B Term Loan Maturity Date" shall mean the earlier of (i) the
42nd month anniversary of the Closing Date and (ii) the date on which the
Tranche B Term Loans shall become due and payable pursuant to Article 7 hereof.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of New York from time to time.
"Underwriting Fee" shall have the meaning given to such term in Section
2.8 of this Credit Agreement.
"Unfunded Current Liability" of any Plan shall mean the amount, if any,
by which the value of the accumulated plan benefits under the Plan, determined
on a plan termination basis in accordance with actuarial assumptions at such
time consistent with those prescribed by the PBGC for purposes of Section 4044
of ERISA, exceeds the fair market value of all plan assets allocable to such
liabilities under Title IV of ERISA (excluding any accrued but unpaid
contributions).
"Uniform Customs" shall have the meaning given to such term in Section
2.21(c) hereof.
"Unused Total Revolving Credit Commitment" shall mean, at any time, (i)
the Total Revolving Credit Commitment less (ii) the sum of (x) the aggregate
outstanding principal amount of all Revolving Credit Loans, (y) the aggregate
L/C Exposure and (z) the aggregate outstanding principal amount of all Swingline
Loans.
1A. ACKNOWLEDGEMENT OF EXISTING OBLIGATIONS; NO NOVATIONS; RATIFICATION.
(a) The Borrower hereby confirms and acknowledges to the Administrative
Agent, the Existing Lenders, the Existing Noteholders, OSB, HSBC and Bank of
America that, immediately prior to the effectiveness of this Credit Agreement,
the aggregate principal amount of the Existing Obligations is as set forth in
the Introductory Statement of this Credit Agreement, as to which the Borrower is
truly and justly indebted, in all cases, without offset, defense or
counterclaim.
(b) It is expressly understood and agreed by the parties that (i) no
novation is intended and that, as of the Closing Date, the Existing Obligations
have not been repaid, satisfied or discharged, but for all purposes constitute
indebtedness and obligations outstanding under this Credit Agreement and (ii)
this Credit Agreement, each of the other Fundamental Documents (other than the
Existing Standby L/Cs and the Existing Standby L/C Agreements) and all ancillary
documents executed in connection therewith shall supersede and replace in their
entirety the Existing Credit Agreement, each other Existing Fundamental Document
(other than the Existing Standby L/Cs and the Existing Standby L/C Agreements)
and all ancillary documents executed in connection therewith and all such
agreements and ancillary documents shall be of no further force and effect.
Notwithstanding the foregoing, each Existing Standby L/C Agreement shall be
amended or modified as required by Section 5.22, which amendment or modification
shall provide that to the extent any Existing Standby L/C is drawn by the
beneficiary thereof, the reimbursement obligation set forth in the applicable
Existing Standby L/C Agreement with respect to such drawn amount shall be
governed exclusively by the terms of the Credit Agreement, including without
limitation Section 2.1(a) of the Credit Agreement and not by the terms of the
applicable Existing Standby L/C Agreement; provided that any undrawn portion of
such Existing Standby L/C shall continue to be governed by the applicable
Existing Standby L/C Agreement.
(c) The Borrower acknowledges and agrees that the Liens on the
Collateral granted under the Existing Security Documents to secure, among other
things, payment and performance of the Existing Obligations (other than the
Existing OSB Obligations) are in all respects continuing and in full force and
effect and secure the payment and performance of the Existing Obligations (other
than the Existing OSB Obligations) and will, from and after the Closing Date,
continue, under the Security Documents, to secure, among other things, payment
and performance of the Obligations.
2. THE LOANS
SECTION 2.1 Term Loans. (a) Subject to the terms and conditions hereof,
each of the parties hereto agrees that, as of the Closing Date, $125,000,000 of
the Existing Obligations (excluding the HSBC China L/C Obligations and the Bank
of America L/C Obligations) shall be continued, but hereby restructured as
tranche A term loans (such portion of the Existing Obligations, as restructured,
and as such term loans may be increased as provided in the first proviso set
forth in this Section 2.1(a), being hereinafter referred to as the "Tranche A
Term Loan" and collectively, the "Tranche A Term Loans") and that the remaining
$78,184,188.03 of the Existing Obligations (excluding the HSBC China L/C
Obligations and the Bank of America L/C Obligations) shall be continued, but
hereby restructured as tranche B term loans (such portion of the Existing
Obligations, as restructured, and as such term loans may be increased as
provided in the second proviso set forth in this Section 2.1(a), being
hereinafter referred to as the "Tranche B Term Loan," and collectively, the
"Tranche B Term Loans" and, together with the Tranche A Term Loans, the "Term
Loans"), provided, that upon each draw under the Bank of America L/C or HSBC
China L/C, the corresponding amount of the Bank of America L/C Obligations and
the Tranche A Portion of the HSBC China L/C Obligations, as the case may be,
shall be restructured into Tranche A Term Loans (to the extent not cash
collateralized pursuant to the terms of Section 2.11(e) of the Credit Agreement
or Section 5(d) of the Intercreditor Agreement), provided, further that upon
each draw under the HSBC China L/C, the corresponding amount of the Tranche B
Portion of the HSBC China L/C Obligations shall be restructured into Tranche B
Term Loans (to the extent not cash collateralized pursuant to the terms of
Section 2.11(e) of the Credit Agreement or Section 5(d) of the Intercreditor
Agreement). On the Closing Date, the Tranche A Term Loans and the Tranche B Term
Loans shall be held by each Tranche A Term Loan Lender and Tranche B Term Loan
Lender in the amount set forth opposite its name on Annex A hereto. As of the
Closing Date, the aggregate principal amount of Tranche A Term Loans of all of
the Tranche A Term Loan Lenders shall be in the aggregate principal amount of
$125,000,000 and the aggregate principal amount of Tranche B Term Loans of all
of the Tranche B Term Loan Lenders shall be in the aggregate principal amount of
$78,184,188.03.
(b) Once repaid, no Term Loans may be reborrowed.
SECTION 2.2 Revolving Credit Loans. (a) Each Revolving Credit Lender,
severally and not jointly, agrees, upon the terms and subject to the conditions
hereinafter set forth, to make loans (each a "Revolving Credit Loan" and
collectively, the "Revolving Credit Loans") to the Borrower on any Business Day
and from time to time from the Closing Date to but excluding the Revolving
Credit Commitment Termination Date, each in a principal amount
which when added to the aggregate principal amount of all Revolving Credit Loans
then outstanding to the Borrower from such Revolving Credit Lender, plus such
Revolving Credit Lender's Revolving Credit Commitment Percentage of the then
current L/C Exposure plus such Revolving Credit Lender's Revolving Credit
Commitment Percentage of the aggregate principal amount of all Swingline Loans
outstanding, does not exceed such Revolving Credit Lender's Revolving Credit
Commitment (after giving effect to all Revolving Credit Loans and Swingline
Loans repaid and all reimbursements of Letters of Credit made concurrently with
the making of any Revolving Credit Loans).
(b) The Revolving Credit Loans may be used for general corporate
purposes (including working capital expenditures, reimbursement of the Trade
Letters of Credit) in accordance with the provisions of this Credit Agreement.
(c) Each Revolving Credit Loan requested hereunder on any date shall be
made by each Revolving Credit Lender ratably in accordance with its Percentage
of the Total Revolving Credit Commitment.
(d) Subject to the terms and conditions of this Credit Agreement, at
any time prior to the Revolving Credit Commitment Termination Date, the Borrower
may borrow, repay and re-borrow amounts constituting the Revolving Credit Loans.
SECTION 2.3 Disbursement of Funds and Notice of Borrowing of Revolving
Credit Loans. (a) The Borrower shall give the Administrative Agent prior
written, facsimile or telephonic (promptly confirmed in writing) notice of each
Borrowing of Revolving Credit Loans hereunder; such notice shall be irrevocable,
and to be effective, must be received by the Administrative Agent not later than
12:00 noon (New York time) (i) in the case of Base Rate Loans, two (2) Business
Days preceding the date on which such Loan is to be made and (ii) in the case of
Eurodollar Loans, on the third (3rd) Business Day preceding the date on which
such Loan is to be made. Each such written notice or written confirmation of
telephonic notice shall be given in a Borrowing Certificate appropriately
completed to specify (A) the amount of the proposed Borrowing, (B) the date
thereof (which shall be a Business Day) and (C) whether the Loan(s) then being
requested are to be (or what portion or portions thereof are to be) Base Rate
Loan(s) or Eurodollar Loan(s) and the Interest Period or Interest Periods with
respect thereto in the case of Eurodollar Loans. In the case of a Eurodollar
Loan, if no election of an Interest Period is specified in such notice, such
notice shall be deemed a request for an Interest Period of one month. If no
election is made as to the Interest Rate Type of any Loan, such notice shall be
deemed a request for a Base Rate Loan.
(b) The Administrative Agent shall promptly notify each Revolving
Credit Lender of its proportionate share of each Borrowing, the date of such
Borrowing, the Interest Rate Type of each Revolving Credit Loan being requested
and the Interest Periods applicable thereto. On the borrowing date specified in
such notice, each Lender shall make its proportionate share of the Borrowing
available at the office of the Administrative Agent as set forth in such notice
for credit to Oneida Ltd. and in each case, no later than 2:00 p.m. New York
time in the case of a Borrowing consisting of Base Rate Loans and 1:00 p.m. New
York time in the case of a Borrowing consisting of Eurodollar Loans, in Federal
or other immediately available funds (provided that the Swingline Loans shall be
made as provided in Section 2.4).
(c) Notwithstanding any provision to the contrary in this Credit
Agreement, the Borrower shall not, in any notice of Borrowing under this Section
2.3, request any Eurodollar Loan which, if made, would result in an aggregate of
more than ten (10) separate Eurodollar Loans (whether such Eurodollar Loans are
Revolving Credit Loans, Tranche A Term Loans or Tranche B Term Loans) of any
Lender being outstanding hereunder at any one time. For purposes of the
foregoing, Eurodollar Loans having Interest Periods commencing and ending on the
same days shall be considered one (1) single Eurodollar Loan.
(d) The aggregate amount of any Borrowing of a Loan consisting of a
Eurodollar Loan shall be in a minimum aggregate principal amount of $5,000,000
or such greater amount which is an integral multiple of $1,000,000, and the
aggregate amount of any Borrowing of a Loan consisting of a Base Rate Loan
(other than a Swingline Loan) shall be in a minimum aggregate principal amount
of $2,000,000 or such greater amount which is an integral multiple of $1,000,000
(or such lesser amount as shall equal (i) the available but unused portion of
the Total Credit Commitment then in effect or (ii) the amount necessary to fund
a drawing under a Letter of Credit). The aggregate amount of any Borrowing of a
Swingline Loan shall be in a minimum aggregate principal amount of $250,000 or
such greater amount which is an integral multiple of $100,000.
(e) The Administrative Agent shall disburse the proceeds of Loans by
depositing them (other than a Revolving Credit Loan or Swingline Loan used to
fund a drawing under a Letter of Credit) on the date of the Borrowing in an
account of the Borrower as the Borrower may specify to the Administrative Agent
in writing.
SECTION 2.4 Swingline Loans. (a) Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make loans (each a "Swingline
Loan", and collectively, the "Swingline Loans") to the Borrower from time to
time from the Closing Date to but excluding the Revolving Credit Commitment
Termination Date, in an aggregate principal amount at any time outstanding that
will not result in (i) the aggregate principal amount of outstanding Swingline
Loans to exceed $5,000,000 or (ii) the aggregate principal amount of all
Revolving Credit Loans then outstanding plus the aggregate L/C Exposure then
existing plus the aggregate principal amount of all Swingline Loans then
outstanding to exceed the Total Revolving Credit Commitment; 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, repay and reborrow
Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by facsimile), not
later than 12:00 noon, New York 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
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 time, on any Business
Day require the Revolving Credit Lenders to acquire participations in all or a
portion of the Swingline Loans outstanding. Such notice shall specify the
aggregate amount of Swingline Loans in which Revolving Credit Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Revolving Credit Lender, specifying in such notice
such Revolving Credit Lender's ratable portion of such Swingline Loan or Loans
(in accordance with its respective Percentage of the Total Revolving Credit
Commitments). Each Revolving Credit Lender hereby absolutely and unconditionally
agrees, within two (2) Business Days of receipt of the notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Revolving Credit Lender's ratable portion of such Swingline Loan or Loans
(in accordance with its respective Percentage of the Total Revolving Credit
Commitments). Each Revolving Credit 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
Revolving Credit Lender shall comply with its obligation under this paragraph by
wire transfer of immediately available funds, in the same manner as provided in
Section 2.3(b) with respect to Loans made by such Lender (and Section 2.3(b)
shall apply, mutatis mutandis, to the payment obligations of the Revolving
Credit Lenders), and the Administrative Agent shall promptly pay to the
Swingline Lender the amounts so received by it from the Revolving Credit
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 Revolving
Credit Lenders that shall have made their payments pursuant to this paragraph
and to the Swingline Lender, as their interests may appear; provided that any
such payment so remitted shall be repaid to the Swingline Lender or to the
Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the Borrower for any reason. 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 2.5 Interest Rate Type of the Loans. Each Loan shall be either
a Base Rate Loan or Eurodollar Loan (each such type of Loan, an "Interest Rate
Type") as the Borrower may request either (i) in its notice of Borrowing
delivered to the Administrative Agent pursuant to Section 2.3 (a) hereof or (ii)
as such Loan may be continued or converted pursuant to the provisions of Section
2.14 hereof; provided, that all Swingline Loans shall be Base Rate Loans.
Subject to Sections 2.16(d) and 2.18(g) hereof, each Lender may at its option
fulfill its obligations hereunder with respect to any Eurodollar Loan by causing
a foreign Lending Office 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 hereof and of any note evidencing such Loan. Subject
to the other provisions of Section 2.3, Section 2.13(b) and Section 2.17, Loans
of more than one Interest Rate Type may be outstanding at the same time.
SECTION 2.6 Repayment; Evidence of Debt; Administration. (a) The Loans
shall be subject to voluntary prepayment as provided in Section 2.10 hereof, to
mandatory prepayment as provided in Section 2.11 hereof, to amortization as
provided in Section 2.12 hereof and to acceleration as provided in Article 7
hereof.
(b) The outstanding principal balance of the Revolving Credit Loans
shall be payable in full on the Revolving Credit Commitment Termination Date,
the outstanding principal balance of the Swingline Loans shall be payable in
full on the earlier of the Revolving Credit Commitment Termination Date and the
first date after such Swingline Loan is made that is the 15th or last day of a
calendar month and is at least two (2) Business Days after such Swingline Loan
is made; provided that on each date that a Revolving Credit Loan Borrowing is
made, the Borrower shall repay all Swingline Loans then outstanding. The
outstanding principal balance of the Tranche A Term Loans shall be payable in
full on the Tranche A Term Loan Maturity Date (together with the Tranche A L/C
Collateralization), and the outstanding principal balance of the Tranche B Term
Loans shall be payable in full on the Tranche B Term Loan Maturity Date
(together with the Tranche ▇ ▇/C Collateralization).
(c) 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.
(d) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each outstanding Loan hereunder, the Interest Rate 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.
(e) Absent manifest error, the entries made in good faith in the
accounts maintained pursuant to paragraph (c) of this Section 2.6 shall be prima
facie evidence of the existence and amounts of the Obligations recorded therein;
provided, however, 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 and other Obligations in
accordance with the terms of this Credit Agreement.
(f) Any Lender may request that Loans made by it within a particular
Tranche be evidenced by a promissory note. In such event, the Borrower shall
promptly 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), in a form furnished by the Administrative Agent and
reasonably acceptable to the Borrower. Thereafter, the Loans within such Tranche
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.3 hereof) be represented by
one or more promissory notes in such form payable to the order of the payee
named therein.
(g) Prior to the occurrence and continuance of an Event of Default, all
amounts received by the Administrative Agent from or on behalf of the Borrower
as a payment or
prepayment of, or interest on, (i) the Tranche A Term Loans shall be applied
among the Tranche A Lenders ratably in accordance with the outstanding Tranche A
Term Loans owed to each such Lender, (ii) the Tranche B Term Loans shall be
applied among the Tranche B Term Loan Lenders ratably in accordance with the
outstanding Tranche B Term Loans owed to each such Lender, (iii) the Revolving
Credit Loans shall be applied among the Revolving Credit Lenders holding the
Revolving Credit Loans ratably in accordance with the outstanding Revolving
Credit Loans owed to each such Lender and (iv) the Swingline Loans shall be
applied for the benefit of the Swingline Lender. Upon the occurrence and
continuance of an Event of Default, all amounts received by the Administrative
Agent referred to in the preceding sentence shall be applied in accordance with
the terms of the Intercreditor Agreement.
SECTION 2.7 Interest. (a) In the case of a Base Rate Loan which is a
Revolving Credit Loan, a Swingline Loan or a Tranche A Term Loan, interest shall
be payable at a rate per annum (computed on the basis of the actual number of
days elapsed over a year of 365 days or 366 days in a leap year) equal to the
Base Rate plus the Applicable Interest Margin. Interest shall be payable in
arrears on each Base Rate Loan on each Interest Payment Date, on the Tranche A
Term Loan Maturity Date (in the case of a Base Rate Loan which is a Tranche A
Term Loan) and on the Revolving Credit Commitment Termination Date (in the case
of a Base Rate Loan which is a Revolving Credit Loan or a Swingline Loan), and
in each case thereafter on demand.
(b) In the case of a Base Rate Loan which is a Tranche B Term Loan,
interest shall be payable at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the Base Rate
plus the Applicable Interest Margin. Interest shall be payable in arrears on
each Base Rate Loan which is a Tranche B Term Loan on each Interest Payment
Date, on the Tranche B Term Loan Maturity Date and thereafter on demand;
provided, however, that, so long as the Tranche B Term Loan Maturity Date has
not occurred, (A) from and after the Closing Date through the Borrower's fiscal
year ending January 2006, at the Borrower's option, up to 100% of the interest
may be PIK Interest and the remainder, if any, shall be paid in cash, (B) during
the Borrower's fiscal year ending January 2007, at the Borrower's option, up to
70% of the interest may be PIK Interest and the remainder shall be paid in cash,
(C) during the Borrower's fiscal year ending January 2008, at the Borrower's
option, up to 30% of the interest may be PIK Interest and the remainder shall be
paid in cash and (D) thereafter, interest shall be paid in cash.
(c) In the case of a Eurodollar Loan which is a Revolving Credit Loan
or a Tranche A Term Loan, interest shall be payable at a rate per annum
(computed on the basis of the actual number of days elapsed over a year of 360
days) equal to the Adjusted LIBO Rate plus the Applicable Interest Margin.
Interest shall be payable on each Eurodollar Loan which is a Revolving Credit
Loan or a Tranche A Term Loan on each Interest Payment Date, on the Tranche A
Term Loan Maturity Date (in the case of a Eurodollar Loan which is a Tranche A
Term Loan) and on the Revolving Credit Commitment Termination Date (in the case
of a Eurodollar Loan which is a Revolving Credit Loan),and in each case
thereafter on demand. The Administrative Agent shall determine the applicable
Adjusted LIBO Rate for each Interest Period as soon as practicable on the date
when such determination is to be made in respect of such Interest Period and
shall promptly notify the Borrower and the Lenders of the applicable interest
rate so determined. Such determination shall be conclusive absent manifest
error.
(d) In the case of a Eurodollar Loan which is a Tranche B Term Loan,
interest shall be payable at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the sum of (i)
the lesser of (A) 4.00% per annum or (B) the Adjusted LIBO Rate plus (ii) the
Applicable Interest Margin. Interest shall be payable on each Eurodollar Loan
which is a Tranche B Term Loan on each Interest Payment Date, on the Tranche B
Term Loan Maturity Date and thereafter on demand; provided, however, that, so
long as the Tranche B Term Loan Maturity Date has not occurred, (w) from and
after the Closing Date through the Borrower's fiscal year ending January 2006,
at the Borrower's option, up to 100% of the interest may be PIK Interest and the
remainder, if any, shall be paid in cash, (x) during the Borrower's fiscal year
ending January 2007, at the Borrower's option, up to 70% of the interest may be
PIK Interest, and the remainder shall be paid in cash, (y) during the Borrower's
fiscal year ending January 2008, at the Borrower's option, up to 30% of the
interest may be PIK Interest, and the remainder shall be paid in cash and (z)
thereafter, interest shall be paid in cash. The Administrative Agent shall
determine the applicable Adjusted LIBO Rate (pursuant to the immediately
preceding sentence) for each Interest Period as soon as practicable on the date
when such determination is to be made in respect of such Interest Period and
shall promptly notify the Borrower and the Lenders of the applicable interest
rate so determined. Such determination shall be conclusive absent manifest
error.
(e) Interest in respect of any Loan hereunder shall accrue from and
including the date of such Loan to but excluding the date on which such Loan is
paid or, if applicable, converted to a Loan of a different Interest Rate Type.
(f) Anything in this Credit Agreement or in any note evidencing any
Loan hereunder to the contrary notwithstanding, the interest rate on the Loans
or with respect to any drawing under a Letter of Credit shall in no event be in
excess of the maximum rate permitted by Applicable Law.
(g) For the avoidance of doubt, it is hereby acknowledged and
recognized that (i) the interest that is capitalized as PIK Interest rather than
paid in cash under Sections 2.7(b) and (d) of this Credit Agreement shall be
treated as an Obligation of the same Tranche as is the principal on which such
interest was calculated and nothing herein shall modify any obligation by the
Borrower to repay the Revolving Credit Loans, the Tranche A Term Loans and the
Tranche B Term Loans as set forth in this Credit Agreement and (ii) the minimum
Borrowing thresholds set forth in Section 2.3(d) hereof shall not apply to PIK
Interest that is capitalized and treated as additional Tranche B Term Loans.
SECTION 2.8 Underwriting Fee, Restructuring Fee and Unused Commitment
Fee. (a) The Borrower agrees to pay to the Administrative Agent for the account
of each Lender and each Existing Standby L/C Issuer a fee equal to 1.00% of the
Existing Obligations outstanding immediately prior to the Closing Date (the
"Restructuring Fee"). The Restructuring Fee shall be earned on the Closing Date,
and shall be paid in cash to the Administrative Agent for the respective
accounts of each Lender and each Existing Standby L/C Issuer (based upon each
Existing Lender's and each Existing Standby L/C Issuer's pro rata portion of the
Existing Obligations) as follows: one-half (1/2) on the Closing Date and the
remaining one-half (1/2) on December 15, 2004.
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Revolving Credit Lender a fee equal to 2.00% of the Total
Revolving Credit Commitment (the "Underwriting Fee"). The Underwriting Fee shall
be earned, due and payable as of the Closing Date, and shall be paid in cash to
the Administrative Agent for the respective accounts of each Revolving Credit
Lender (based upon each Revolving Credit Lender's proportionate share of
Revolving Credit Loans) on the Closing Date.
(c) The Borrower agrees to pay the Administrative Agent for the account
of each Revolving Credit Lender a commitment fee (the "Commitment Fee") for the
period commencing on the Closing Date to the Revolving Credit Commitment
Termination Date, computed (on the basis of the actual number of days elapsed
over a year of 360 days) at the rate of one-half of one percent (1/2%) per annum
on the average daily Unused Total Revolving Credit Commitment. Such Commitment
Fee, to the extent then accrued, shall be payable in cash (x) monthly, in
arrears, on the last calendar day of each month, (y) on the Revolving Credit
Commitment Termination Date and (z) as provided in Section 2.9 hereof, upon any
reduction or termination in whole or in part of the Total Revolving Credit
Commitment.
(d) The Borrower agrees to pay to the applicable party, on the Closing
Date, any and all Fees, expenses and other amounts that are then due and payable
pursuant to the Fee Letter and this Agreement and, thereafter, any and all Fees,
expenses and other amounts payable thereunder when due and payable.
SECTION 2.9 Termination and/or Reduction of the Total Revolving Credit
Commitment. (a) Upon at least three (3) Business Days' prior written, facsimile
or telephonic notice (provided, that such telephonic notice is immediately
followed by written confirmation) to the Administrative Agent, the Borrower may
at any time in whole permanently terminate, or from time to time in part
permanently reduce, the Unused Total Revolving Credit Commitment. In the case of
a partial reduction, each such reduction shall be in a minimum aggregate
principal amount of $1,000,000 or an integral multiple thereof; provided,
however, that the Total Revolving Credit Commitment may not be reduced to an
amount less than the aggregate principal amount of all Revolving Credit Loans
and Swingline Loans then outstanding, plus the then current L/C Exposure.
Simultaneous with each such termination or reduction, the Borrower shall pay to
the Administrative Agent for the account of each Revolving Credit Lender the
Commitment Fee accrued and unpaid on the amount of the Revolving Credit
Commitment of such Revolving Credit Lender so reduced or terminated through the
date thereof.
(b) Any partial reduction of the Total Revolving Credit Commitment
hereunder shall be made among the Revolving Credit Lenders in accordance with
their respective Percentages of the Total Revolving Credit Commitment.
SECTION 2.10 Voluntary Prepayments. (a) Subject to Section 2.10(b), the
Borrower shall have the right at its option at any time and from time to time to
prepay (i) any Base Rate Loan (1) which is a Revolving Credit Loan or a Tranche
A Term Loan, and (2) which is a Tranche B Term Loan (from and after the second
anniversary of the Closing Date in the case of Tranche B Term Loans), in whole
or in part, upon same day prior written, facsimile, or telephonic (promptly
confirmed in writing) notice to the Administrative Agent received not later than
11:30 a.m. (New York time) on such day, in the principal amount of $1,000,000 or
such
greater amount which is an integral multiple of $1,000,000 if prepaid in part,
(ii) any Eurodollar Loan (1) which is a Revolving Credit Loan or a Tranche A
Term Loan and (2) which is a Tranche B Term Loan (from and after the second
anniversary of the Closing Date in the case of Tranche B Term Loans), in whole
or in part, upon same day prior written, facsimile, or telephonic (promptly
confirmed in writing) notice received not later than 11:30 a.m. (New York time)
on such day, in the principal amount of $1,000,000 or such greater amount which
is an integral multiple of $1,000,000 if prepaid in part and (iii) any Swingline
Loan, in whole or in part, by providing written, telephonic (promptly confirmed
in writing) or facsimile notice to the Administrative Agent and the Swingline
Lender no later than 12:00 noon, New York time, on the day of such prepayment,
in the minimum principal amount of $250,000; provided, that in the case of
Eurodollar Loans the Borrower pays any amounts required to be paid under Section
2.15 as a result of such prepayment. Each notice of prepayment shall specify the
prepayment date, each Loan to be prepaid and the principal amount thereof, shall
be irrevocable and shall commit the Borrower to prepay each such Loan in the
amount and on the date stated therein. All prepayments under this Section 2.10
on account of Tranche A Term Loans and Tranche B Term Loans shall be applied
ratably in accordance with each Lender's proportionate share of the Tranche A
Term Loans and Tranche B Term Loans, as applicable, and against scheduled
amortization payments of the Tranche A Term Loans or Tranche B Term Loans, as
applicable, in inverse order of the maturity thereof.
(b) Notwithstanding anything to the contrary in Section 2.10(a), the
Borrower may (i) prepay the Tranche A Term Loans only if at the time of such
prepayment, and immediately after giving effect to such prepayment, there shall
be no outstanding Swingline Loans and no outstanding Revolving Credit Loans and
(ii) prepay the Tranche B Term Loans only if at the time of such prepayment the
Revolving Credit Commitment shall be terminated and there shall be no
outstanding Tranche A Term Loans; provided that notwithstanding the prohibition
of voluntary prepayments of the Tranche A Term Loans and the Tranche B Term
Loans, the Borrower may refinance such Loans to the extent permitted by Section
6.1(a), provided, further that upon any such refinancing of the Tranche A Term
Loans or the Tranche B Term Loans, the Borrower shall provide for the Tranche A
L/C Collateralization or the Tranche ▇ ▇/C Collateralization, as the case may
be, on a pro rata basis with the amount of such loans refinanced.
SECTION 2.11 Mandatory Prepayments. (a) If at any time the sum of the
aggregate principal amount of all Revolving Credit Loans outstanding plus the
aggregate principal amount of all Swingline Loans plus the then current L/C
Exposure shall exceed the Total Revolving Credit Commitment less the Revolving
Commitment Credit Reserve then in effect, the Borrower will immediately prepay
such Revolving Credit Loans to the extent necessary to eliminate such excess.
(b) Within two (2) Business Days of the receipt of any Net Cash
Proceeds by the Borrower or any Credit Party, the Borrower shall prepay Loans
and cash collateralize the Existing Standby L/Cs in accordance with Section
2.11(e) in an amount equal to 100% of the Net Cash Proceeds received by such
Credit Party.
(c) Within two (2) Business Days following the receipt by the Borrower
or any other Credit Party (or by the Collateral Agent as loss payee) of any
payment of proceeds of (i)
any insurance relating to any Collateral (other than business interruption
insurance) required to be maintained pursuant to this Credit Agreement or any
other Fundamental Document on account of each separate loss, damage or injury in
excess of $5,000,000 to any tangible real or personal property of the Borrower
or any of its Subsidiaries, or (ii) any condemnation proceeding affecting any
Real Property Asset (provided, that, so long as no Default or Event of Default
shall have occurred and then be continuing, such insurance or condemnation
proceeds (or any portion thereof) may be expended or irrevocably committed by
the Borrower or any of its Subsidiaries to repair or replace such property
within 180 days of such loss, damage, injury or condemnation and the Borrower
shall furnish to the Administrative Agent and the Collateral Agent evidence
satisfactory to the Administrative Agent and the Collateral Agent of such
expenditure or commitment and shall have certified to the Administrative Agent
and the Collateral Agent that such proceeds (or such proceeds together with
other funds available to the Borrower) are sufficient to repair or replace such
property), the Borrower shall, in accordance with Section 2.11(e), prepay or, to
the extent the Collateral Agent is loss payee under any insurance policy, hereby
irrevocably directs the Administrative Agent and the Collateral Agent to apply
as a prepayment of the Loans and as cash collateralization of the Existing
Standby L/Cs, an amount equal to 100% (or such lesser percentage which
represents that portion of such proceeds not expended or committed pursuant to
the immediately preceding parenthetical phrase) of such insurance or
condemnation proceeds; provided, that if an Event of Default shall have occurred
and be continuing, the Administrative Agent and the Collateral Agent may require
all proceeds of insurance required to be maintained pursuant to this Credit
Agreement or any other Fundamental Document which would otherwise be payable to
the Borrower to be paid to the Administrative Agent and applied pursuant to the
terms of the Intercreditor Agreement.
(d) Within two (2) Business Days of the receipt of the escrowed funds
held by ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. pursuant to that certain
Escrow Agreement dated as of March 12, 2004 entered into in connection with
Buffalo China's sale of certain assets to Niagara Ceramics Corporation, such
funds shall be applied (i) in the event the Borrower was required to issue a
Letter of Credit in lieu of such escrowed funds, to prepay the Swingline Loans
then outstanding, if any, and thereafter to prepay the Revolving Credit Loans
then outstanding, if any, without a reduction of the Revolving Credit Commitment
and, after the Revolving Credit Loans and Swingline Loans have been prepaid in
full, to cash collateralize the L/C Exposure in an amount equal to 105% of the
L/C Exposure or (ii) in the event such escrowed funds are released pursuant to
the terms of the Escrow Agreement referred to above (without requiring the
issuance of a Letter of Credit), to prepay the Loans and cash collateralize the
Existing Standby L/Cs pursuant to Section 2.11(e) or (f), as the case may be.
(e) Subject to Section 2.11(f), so long as no Default or Event of
Default has occurred and is then continuing, any prepayments required under
Section 2.11(b), (c) or (d) shall be applied: (i) first, on a pro rata basis,
(A) to the outstanding principal balance (in inverse order of maturity) of the
Tranche A Term Loans held by each Lender ratably in accordance with each
Lender's proportionate share of the Tranche A Term Loans and (B) to the cash
collateralization of the outstanding undrawn amounts of the Tranche A Portion of
the HSBC China L/C and the Bank of America L/C (all such amounts to be prepaid
in respect of the obligations referred to in this subclause (B) shall be paid to
the Collateral Agent in accordance with the last two paragraphs of Section 5(d)
of the Intercreditor Agreement), (ii) second to the outstanding principal
balance of the Swingline Loans, (iii) third to the outstanding principal balance
of the
Revolving Credit Loans ratably in accordance with each Lender's proportionate
share of the Revolving Credit Loans, with the Total Revolving Credit Commitment
being automatically and permanently reduced in an amount equal to such
prepayment on account of the Revolving Credit Loans and, after the Revolving
Credit Loans have been prepaid in full, to cash collateralize the L/C Exposure
in an amount equal to 105% of the L/C Exposure, (iv) fourth, on a pro rata
basis, (A) to the outstanding principal balance (in inverse order of maturity)
of the Tranche B Term Loans held by each Lender ratably in accordance with each
Lender's proportionate share of the Tranche B Term Loans and (B) to the cash
collaterization of the outstanding undrawn amounts of the Tranche B Portion of
the HSBC China L/C (all such amounts to be prepaid in respect of the obligations
referred to in this subclause (B) shall be paid to the Collateral Agent in
accordance with the last two paragraphs of Section 5(d) of the Intercreditor
Agreement), and (v) fifth the remainder may be retained by the Borrower.
(f) In the event a Default or an Event of Default has occurred and is
then continuing, at any time a prepayment is required under Section 2.11(b), (c)
or (d), then such prepayment shall be applied in accordance with the terms of
the Intercreditor Agreement. Upon any such prepayment, the Total Revolving
Credit Commitment shall be automatically and permanently reduced in an amount
equal to the amount so prepaid on account of the Revolving Credit Loans.
(g) All prepayments of Loans under this Section 2.11 shall, as regards
Interest Rate Type, be applied first to Base Rate Loans, and, subject to Section
2.11(h) hereof, then to Eurodollar Loans in the order of the scheduled expiry of
Interest Periods with respect thereto (i.e. those Eurodollar Loans with Interest
Periods which end sooner would be paid before those with Interest Periods which
end later).
(h) All prepayments under this Section 2.11 shall be accompanied by
accrued but unpaid interest on the principal amount being prepaid to (but not
including) the date of prepayment.
(i) If on any day on which Loans would otherwise be required to be
prepaid pursuant to this Section 2.11, but for the operation of this Section
2.11(h) (each a "Prepayment Date"), the amount of such required prepayment
exceeds the then outstanding aggregate principal amount of Base Rate Loans which
are of the Tranche required to be prepaid, and no Default or Event of Default
exists or is continuing, then on such Prepayment Date, (i) the Borrower shall
deposit Dollars into the Cash Collateral Account in an amount equal to such
excess, and only the outstanding Base Rate Loans which are of the Tranche
required to be prepaid shall be required to be prepaid on such Prepayment Date
and (ii) on the last day of each Interest Period after such Prepayment Date in
effect with respect to a Eurodollar Loan which is of the Tranche required to be
prepaid, the Administrative Agent is irrevocably authorized and directed to
apply funds from the Cash Collateral Account (and liquidate investments held in
the Cash Collateral Account as necessary) to prepay such Eurodollar Loans for
which the Interest Period is then ending to the extent funds are available in
the Cash Collateral Account.
SECTION 2.12 Amortization of Tranche A Term Loans. The Borrower shall
be required to repay the principal amount of the Tranche A Term Loans, to the
extent then outstanding: (i) on or before the last Business Day of the
Borrower's first fiscal quarter for the
Borrower's fiscal year ending January 2007 in an amount equal to 50% of the
amount by which Consolidated EBITDAR for the Borrower's fiscal year ending
January 2006 exceeds $30,000,000, (ii) on or before the last Business Day of the
Borrower's first fiscal quarter for the Borrower's fiscal year ending January
2008 in an amount equal to 50% of the amount by which Consolidated EBITDAR for
the Borrower's fiscal year ending January 2007 exceeds $42,500,000, and (iii) in
equal installments of $1,500,000 each, commencing on the last Business Day of
the Borrower's first fiscal quarter for the Borrower's fiscal year ending
January 2008 and continuing on the last Business Day of each fiscal quarter
thereafter through the Tranche A Term Loan Maturity Date, and any outstanding
balance of the Tranche A Term Loans on the Tranche A Term Loan Maturity Date.
SECTION 2.13 Default Interest; Alternate Rate of Interest. (a) In the
event that, and for so long as, (i) any Event of Default described in Section
7.1(b), 7.1(c), 7.1(h) or 7.1(i) hereof shall have occurred and be continuing,
or (ii) any other Event of Default shall have occurred and be continuing and the
Borrower shall have received written notice from the Administrative Agent that
the default rate shall be in effect, the Borrower shall on demand from time to
time pay interest, to the extent permitted by Applicable Law, on all Loans and
overdue amounts outstanding up to (but not including) the date of actual payment
of such Loan or overdue amount (after as well as before judgment) (i) for the
remainder of the then current Interest Period for each Eurodollar Loan, at 2% in
excess of the rate then in effect for each such Eurodollar Loan and (ii) for all
periods subsequent to the then current Interest Period for each Eurodollar Loan
and for all Base Rate Loans of a particular Tranche, at 2% in excess of the rate
then in effect for Base Rate Loans of the same Tranche, provided, that to the
extent interest paid on account of any Tranche B Term Loan shall be PIK
Interest, the 2% default interest rate shall apply to such Tranche B Term Loans
and such default interest shall continue to accrue as PIK interest so long as
such Tranche B Term Loans shall not have been accelerated in accordance with the
provisions of Section 7 of this Credit Agreement.
(b) In the event, and on each occasion, that on or before the day on
which the Adjusted LIBO Rate for a Eurodollar Loan is to be determined as set
forth herein, (i) the Administrative Agent shall have received notice from any
Lender of such Lender's determination (which determination, absent manifest
error, shall be conclusive) that Dollar deposits in an amount equal to the
principal amount of such Lender's Eurodollar Loan are not generally available in
the London Interbank Market or that the rate at which such Dollar deposits are
being offered will not adequately and fairly reflect the cost to such Lender of
making or maintaining the principal amount of such Lender's Eurodollar Loan
during the applicable Interest Period or (ii) the Administrative Agent shall
have determined that reasonable means do not exist for ascertaining the
applicable Adjusted LIBO Rate, the Administrative Agent shall, as soon as
practicable thereafter, give written or facsimile notice of such determination
by such Lender or the Administrative Agent to the Borrower and the Lenders and
any request by the Borrower for a Eurodollar Loan pursuant to Section 2.3 or
conversion to or continuation as a Eurodollar Loan pursuant to Section 2.14,
made after receipt of such notice and until the circumstances giving rise to
such notice no longer exist, shall be deemed to be a request for a Base Rate
Loan; provided, however, that in the circumstances described in clause (i)
above, such deemed request shall only apply to the affected Lender's portion
thereof.
SECTION 2.14 Continuation and Conversion of Loans. The Borrower shall
have the right, (i) on the last day of an Interest Period, to convert any
Eurodollar Loan or portion thereof to a Base Rate Loan or to continue any
Eurodollar Loan for a successive Interest Period, or (ii) to convert any Base
Rate Loan (other than a Swingline Loan) or portion thereof to a Eurodollar
Loan, subject to the following:
(a) at least three (3) Business Days prior to any conversion or
continuation hereunder, the Borrower shall give the Administrative Agent
written, facsimile or telephonic (promptly confirmed in writing) notice with
respect thereto; such notice shall be irrevocable and to be effective, must be
received by the Administrative Agent on the day required not later than 11:30
a.m. New York time;
(b) no Event of Default shall have occurred and be continuing at the
time of any conversion to a Eurodollar Loan or continuation of a Eurodollar Loan
into a subsequent Interest Period;
(c) the aggregate principal amount of Loans continued as, or converted
to, Eurodollar Loans as part of the same continuation or conversion, shall be in
a minimum amount of $5,000,000 or in such greater amount which is an integral
multiple of $1,000,000;
(d) if fewer than all Loans of a particular Tranche at the time
outstanding shall be continued or converted, such continuation or conversion
shall be made pro rata among the Lenders in accordance with the respective
principal amount of such Loans held by the Lenders immediately prior to such
continuation or conversion;
(e) no Base Rate Loan (or portion thereof) may be converted to a
Eurodollar Loan and no Eurodollar Loan may be continued as a Eurodollar Loan if,
after such conversion or continuation, and after giving effect to any concurrent
prepayment of Loans, an aggregate of more than the number of separate Eurodollar
Loans permitted under Section 2.3(c) hereof would be outstanding hereunder;
(f) the Interest Period with respect to a new Eurodollar Loan effected
by a continuation or conversion shall commence on the date of such continuation
or conversion;
(g) accrued interest on a Eurodollar Loan (or portion thereof) being
converted to a Base Rate Loan shall be paid by the Borrower at the time of
conversion; and
(h) each request for a continuation as, or conversion to, a Eurodollar
Loan which fails to state an applicable Interest Period shall be deemed to be a
request for an Interest Period of one month.
Subject to the foregoing, in the event that the Borrower shall not give notice
to continue or convert any Eurodollar Loan as provided above, such Loan (unless
repaid) shall automatically be converted to a Base Rate Loan at the expiration
of the then current Interest Period. The Administrative Agent shall, after it
receives notice from the Borrower, promptly give the Lenders notice of any
continuation or conversion.
SECTION 2.15 Reimbursement of Lenders. (a) The Borrower shall reimburse
each Lender on demand for any loss (excluding any loss of Applicable Interest
Margin) incurred or to be incurred by such Lender in the re-employment of the
funds released (i) by any prepayment or conversion (for any reason whatsoever)
of a Eurodollar Loan if such Loan is prepaid or converted prior to the last day
of the Interest Period for such Loan or (ii) in the event that after the
Borrower delivers a notice of borrowing under Section 2.3 or notice of
continuation or conversion under Section 2.14 in respect of a Eurodollar Loan,
such Loan is not made, continued or converted on the first day of the Interest
Period specified in the applicable notice for any reason other than (I) a
suspension or limitation under Section 2.13(b) of the right of the Borrower to
select a Eurodollar Loan or (II) a breach by such Lender of its obligation to
fund such Borrowing when it was otherwise required to do so hereunder. Such loss
shall be the amount as reasonably determined by such Lender as the excess, if
any, of (A) the amount of interest which would have accrued to such Lender on
the amount so paid or not borrowed, continued or converted at a rate of interest
equal to the interest rate applicable to such Loan pursuant to Section 2.7
hereof, for the period from the date of such payment or failure to borrow,
continue or convert to the last day (excluding the Applicable Interest Margin)
(x) in the case of a payment prior to the last day of the Interest Period for
such Loan, to the last day of the then current Interest Period for such Loan, or
(y) in the case of a failure to borrow, continue or convert, to the last day of
the Interest Period for such Loan which would have commenced on the date of such
failure to borrow, continue or convert, over (B) the amount realized by such
Lender in re-employing the funds not advanced or the funds received in
prepayment or realized from the Loan not so continued or converted during the
period referred to above. Each Lender shall deliver to the Borrower and to the
Administrative Agent from time to time one or more certificates setting forth
the amount of such loss (and in reasonable detail the manner of computation
thereof) as determined by such Lender, which certificates shall be conclusive
absent manifest error. The Borrower shall pay such Lender the amounts shown on
such certificate within ten (10) days of the Borrower's receipt of such
certificate.
(b) In the event the Borrower fails to prepay any Loan on the date
specified in any prepayment notice delivered pursuant to Section 2.10, the
Borrower, on demand by any Lender, shall pay to the Administrative Agent for the
account of such Lender any amounts required to compensate such Lender for any
actual loss incurred by such Lender as a result of such failure to prepay,
including, without limitation, any loss, cost or expenses incurred by reason of
the acquisition of deposits or other funds by such Lender to fulfill obligations
incurred in anticipation of such prepayment. Each Lender shall deliver to the
Borrower and to the Administrative Agent from time to time one or more
certificates setting forth the amount of such loss (and in reasonable detail the
manner of computation thereof) as determined by such Lender, which certificates
shall be conclusive absent manifest error. The Borrower shall pay the
Administrative Agent for the account of such Lender the amounts shown on such
certificate within ten (10) days of the Borrower's receipt of such certificate.
SECTION 2.16 Change in Circumstances. (a) In the event that after the
Initial Date, any change in Applicable Law or in the interpretation or
administration thereof (including, without limitation, any request, guideline or
policy not having the force of law) by any Governmental Authority charged with
the administration or interpretation thereof or, with respect to clauses (ii),
(iii) or (iv) below any changes in conditions, shall occur which shall:
(i) subject any Lender to, or increase the net amount of, any tax,
levy, impost, duty, charge, fee, deduction or withholding with respect to
any Eurodollar Loan (other than withholding tax imposed by the United
States of America or any political subdivision or taxing authority thereof
or therein or any other tax, levy, impost, duty, charge, fee, deduction or
withholding (x) that is measured with respect to the overall net income of
such Lender or of a Lending Office of such Lender, or the franchise taxes
imposed in lieu thereof and that is imposed by the United States of
America, or by the jurisdiction in which such Lender or Lending Office is
incorporated, in which such Lending Office is located, managed or
controlled or in which such Lender has its principal office or a presence
not otherwise connected with, or required by, this transaction (or any
political subdivision or taxing authority thereof or therein), or (y) that
is imposed solely by reason of any Lender failing to make a declaration of,
or otherwise to establish, nonresidence, or to make any other claim for
exemption, or otherwise to comply with any certification, identification,
information, documentation or reporting requirements prescribed under the
laws of the relevant jurisdiction, in those cases where a Lender may
properly make such declaration or claim or so establish nonresidence or
otherwise comply); or
(ii) change the basis of taxation of any payment to any Lender of
principal of or interest on any Eurodollar Loan or other fees and amounts
payable to any Lender hereunder, or any combination of the foregoing, other
than withholding tax imposed by the United States of America or any
political subdivision or taxing authority thereof or therein or any other
tax, levy, impost, duty, charge, fee, deduction or withholding that is
measured with respect to the overall net income of such Lender or of a
Lending Office of such Lender, or the franchise taxes imposed in lieu
thereof and that is imposed by the United States of America, or by the
jurisdiction in which such Lender or Lending Office is incorporated, in
which such Lending Office is located, managed or controlled or in which
such Lender has its principal office or a presence not otherwise connected
with, or required by, this transaction (or any political subdivision or
taxing authority thereof or therein); or
(iii) impose, modify or deem applicable any reserve, deposit or
similar requirement against any assets held by, deposits with or for the
account of, or loans or commitments by, an office of such Lender with
respect to any Eurodollar Loan; or
(iv) impose upon such Lender or the London Interbank Market any other
condition with respect to the Eurodollar Loans or this Credit Agreement;
and the result of any of the foregoing shall be to increase the actual cost to
such Lender of making or maintaining any Eurodollar Loan hereunder or to reduce
the amount of any payment (whether of principal, interest or otherwise) received
or receivable by such Lender in connection
with any Eurodollar Loan hereunder, or to require such Lender to make any
payment in connection with any Eurodollar Loan hereunder, in each case by or in
an amount which such Lender in its sole judgment shall deem material, then and
in each case, the Borrower agrees to pay to the Administrative Agent for the
account of such Lender, in accordance with, and as provided in, paragraph (c)
below, such amounts as shall be necessary to compensate such Lender for such
cost, reduction or payment.
(b) If at any time and from time to time after the Initial Date, any
Lender shall have determined that the applicability of any law, rule, regulation
or guideline regarding capital adequacy which is adopted after the Initial Date,
or any change in any law, rule, regulation or guideline regarding capital
adequacy or in the interpretation or administration of any of the foregoing by
any Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or the compliance by any Lender (or
any Lending Office of such Lender) or any Lender's holding company with any
request or directive issued after the Initial Date regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, 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 Credit Agreement or the Loans made or Letters of
Credit issued pursuant hereto to a level below that which such Lender or such
Lender's holding company could have achieved but for such applicability,
adoption, change or compliance (taking into consideration such Lender's policies
and the policies of such Lender's holding company with respect to capital
adequacy) by an amount deemed by such Lender in its sole judgment to be
material, then from time to time the Borrower agrees to pay to the
Administrative Agent for the account of such Lender, in accordance with, and as
provided in, paragraph (c) below, such additional amount or amounts as will
compensate such Lender or such Lender's holding company for any such reduction
suffered to the extent attributable to this Credit Agreement or the Loans made
or Letters of Credit issued pursuant hereto.
(c) Each Lender shall deliver to the Borrower and to the Administrative
Agent from time to time one or more certificates setting forth the amounts due
to such Lender under paragraph (a) or (b) above, the changes as a result of
which such amounts are due and the manner of computing such amounts. Each such
certificate shall be conclusive in the absence of manifest error. The Borrower
shall pay to the Administrative Agent for the account of each such Lender the
amounts shown as due on any such certificate within ten (10) days after the
Borrower's receipt of the same. No failure on the part of any Lender to demand
compensation under paragraph (a) or (b) above on any one occasion shall
constitute a waiver of its right to demand such compensation on any other
occasion. The protection of this Section 2.16 shall be available to each Lender
regardless of any possible contention of the invalidity or inapplicability of
any law, regulation or other condition which shall give rise to any demand by
such Lender for compensation hereunder.
(d) Each Lender agrees that after it becomes aware of the occurrence of
an event or the existence of a condition that (i) would cause it to incur any
increased cost hereunder or render it unable to perform its agreements hereunder
for the reasons specifically set forth in Section 2.13(b), this Section 2.16,
Section 2.17 or Section 2.21(g) or (ii) would require the Borrower to pay an
increased amount under Section 2.13(b), this Section 2.16, Section 2.17 or
Section 2.21(g), it will use reasonable efforts to notify the Borrower in
writing of such event or
condition and, to the extent not inconsistent with such Lender's internal
policies, will use its reasonable efforts to make, fund or maintain the affected
Loans of such Lender, or if applicable, participate in Letters of Credit as
required by Section 2.21, through another Lending Office of such Lender if as a
result thereof the additional monies which would otherwise be required to be
paid or the reduction of amounts receivable by such Lender hereunder in respect
of such Loans, Letters of Credit or participations therein would be materially
reduced, or such inability to perform would cease to exist, or the increased
costs which would otherwise be required to be paid in respect of such Loans,
Letters of Credit or participations pursuant to Section 2.13(b), this Section
2.16, Section 2.17 or Section 2.21 would be materially reduced or the taxes or
other amounts otherwise payable under Section 2.13(b), this Section 2.16,
Section 2.17 or Section 2.21 would be materially reduced, and if, as determined
by such Lender, in its sole discretion, the making, funding or maintaining of
such Loans, Letters of Credit or participations therein through such other
Lending Office would not otherwise materially adversely affect such Loans,
Letters of Credit or participations therein or such Lender.
(e) If the Borrower shall receive notice from any Lender that
Eurodollar Loans are no longer available from such Lender pursuant to Section
2.17 that amounts are due to such Lender pursuant to subparagraph (c) hereof,
that any of the events designated in subparagraph (d) hereof have occurred, or
that an event has occurred that would cause the Borrower to pay any amount
pursuant to clause (c) of Section 2.18, the Borrower may (but subject in any
such case to the payments required by this Credit Agreement, including, without
limitation Section 2.15 hereof), upon at least five (5) Business Days' prior
written or facsimile notice to such Lender and the Administrative Agent, but not
more than thirty (30) days after receipt of notice from such Lender, identify to
the Administrative Agent a lending institution ("Purchasing Lender") reasonably
acceptable to the Borrower and the Administrative Agent (and that qualifies as
an Eligible Assignee), which will purchase (for an amount, in immediately
available funds, equal to the principal amount of outstanding Loans payable to
such Lender, plus all accrued but unpaid interest and fees payable to such
Lender) the Commitments (if applicable), the amount of outstanding Loans and
participations in Letters of Credit (if applicable), from the Lender providing
such notice, and such Lender shall thereupon assign its Commitments (if
applicable), its participations in Letters of Credit (if applicable) and any
Loans owing to such Lender, and any notes held by such Lender to such Purchasing
Lender pursuant to Section 10.3 hereof.
SECTION 2.17 Change in Legality. (a) Notwithstanding anything to the
contrary contained elsewhere in this Credit Agreement, if any change after the
date hereof in Applicable Law, guideline or order, or in the interpretation
thereof by any Governmental Authority charged with the administration thereof,
shall make it unlawful for any Lender to make or maintain any Eurodollar Loan or
to give effect to its obligations as contemplated hereby with respect to a
Eurodollar Loan, then, by written notice to the Borrower and the Administrative
Agent, such Lender may (i) declare that Eurodollar Loans will not thereafter be
made by such Lender hereunder and/or (ii) require that, subject to Section 2.15,
all outstanding Eurodollar Loans made by it be converted to Base Rate Loans,
whereupon all of such Eurodollar Loans shall automatically be converted to Base
Rate Loans, as of the effective date of such notice as provided in paragraph (b)
below. Such Lender's pro rata portion of any subsequent Eurodollar Loan shall,
instead, be a Base Rate Loan unless such declaration is subsequently withdrawn.
(b) A notice to the Borrower by any Lender pursuant to paragraph (a)
above shall be effective for purposes of clause (ii) thereof, if lawful, on the
last day of the current Interest Period for each outstanding Eurodollar Loan;
and in all other cases, on the date of receipt of such notice by the Borrower.
SECTION 2.18 Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Fundamental Document
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, Lender or Issuing Bank (as the case may be) 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) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with Applicable Law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 30 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder or under
any Fundamental 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 the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, 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.
(f) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.18, it shall pay
over such refund to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 2.18 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided, that the Borrower, upon the request of
the Administrative Agent or such Lender, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This Section shall not be construed to
require the Administrative Agent or any Lender to make available its tax returns
(or any other information relating to its taxes which it deems confidential) to
the Borrower or any other Person.
(g) At the request of Borrower, each Lender shall use reasonable
efforts (including reasonable efforts to change its applicable Lending Office)
to avoid the imposition of any Taxes for which the Borrower is required to pay
additional amounts pursuant to Section 2.18(a); provided, however, that such
efforts shall be consistent with the past practices and internal policy of the
Lender and shall not require the Lender to incur additional costs or comply with
legal or regulatory requirements that the Lender considers in its good faith
judgment to be disadvantageous.
SECTION 2.19 Interest Adjustments. If the provisions of this Credit
Agreement or any note evidencing any of the Loans hereunder would at any time
require payment by the Borrower to a Lender of any amount of interest in excess
of the maximum amount then permitted by Applicable Law, the applicable interest
payments to that Lender in connection with such Loan shall be reduced to the
extent and in such a manner as is necessary in order that such Lender shall not
receive interest in excess of such maximum amount. If, as a result of the
foregoing, a Lender shall receive interest payments hereunder with respect to a
Loan or under a note evidencing such Loan in an amount less than the amount
otherwise provided hereunder, such deficit (hereinafter called the "Interest
Deficit") will, to the fullest extent permitted by Applicable Law, cumulate and
will be carried forward (without interest) until the Facility Termination Date
(except to the extent paid pursuant to the immediately succeeding sentence).
Interest otherwise payable to a Lender hereunder with respect to such Loan and
under any note evidencing such Loan for any subsequent period shall be increased
by the maximum amount of the Interest Deficit that may be so added without
causing such Lender to receive interest in excess of the maximum amount then
permitted by Applicable Law.
The amount of any Interest Deficit relating to any Loan and any note
evidencing such Loan shall be treated as a prepayment premium and shall, to the
fullest extent permitted by Applicable Law, be paid in full at the time of any
optional prepayment by the Borrower to the Lenders of all the Loans within the
applicable Tranche at that time outstanding pursuant to Section 2.10 hereof. The
amount of any Interest Deficit relating to a Loan and any note at the time of
any complete payment of the Loans within the applicable Tranche at that time
outstanding (other than an optional prepayment thereof pursuant to Section 2.10
hereof) shall be canceled and not paid.
SECTION 2.20 Manner of Payments. Except as otherwise provided in this
Credit Agreement and the Intercreditor Agreement, all payments of principal and
interest by the Borrower in respect of any Loans shall be allocated pro rata
among the Lenders holding such Loans in accordance with the then outstanding
principal amounts of such Loans held by them. All payments by the Borrower
hereunder and under any notes evidencing the Loans hereunder shall be made
without offset, counterclaim, recoupment, defense, setoff or other deduction in
Dollars, in Federal or other immediately available funds, at the office of the
Administrative Agent, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇▇▇▇▇▇, for credit to Oneida Ltd., no later than 1:00 p.m.(New York time),
on the date on which such payment shall be due (except for payments to be made
directly to the Issuing Bank or the Swingline Lender as expressly provided
herein). Any payment received at such office after such time shall be deemed
received on the following Business Day. The Administrative Agent shall
distribute any payment received by it for the account of any Lender to such
Lender promptly following receipt thereof.
SECTION 2.21 Letters of Credit. (a) (i) Upon the terms and subject to
the conditions hereof and of Applicable Law, the Issuing Bank agrees, upon the
request of the Borrower, to issue Letters of Credit (and to extend Letters of
Credit previously issued hereunder) payable in Dollars from time to time after
the Closing Date and prior to the Revolving Credit Commitment Termination Date;
provided, however, that (A) the Borrower shall not request, and the Issuing Bank
shall not issue, any Letter of Credit if, after giving effect thereto, the sum
of the then current L/C Exposure, plus the aggregate principal amount of all
Revolving Credit Loans then outstanding, plus the aggregate principal amount of
all Swingline Loans then outstanding, would exceed the Total Revolving Credit
Commitment, (B) the Borrower shall not request, and the Issuing Bank shall not
issue, any Letter of Credit having an expiration date (x) later than the tenth
day prior to the Revolving Credit Commitment Termination Date or (y) more than
one year after its date of issuance or extension; provided, however, that a
Letter of Credit may, if requested by the Borrower, provide that such Letter of
Credit is renewable for successive periods of one year or less, unless the
Issuing Bank shall have delivered a notice of non-renewal to the beneficiary of
such Letter of Credit and (C) the Borrower shall not request, and the Issuing
Bank shall not issue, any Letter of Credit if, after giving effect thereto, the
then current L/C Exposure with respect to Letters of Credit would exceed
$11,000,000.
(ii) Immediately upon the issuance of each Letter of Credit, each
Revolving Credit Lender shall be deemed to, and hereby agrees to, have
irrevocably purchased from the Issuing Bank a participation in such Letter
of Credit in accordance with such Revolving Credit Lender's Percentage of
the Total Revolving Credit Commitment.
(iii) Each Letter of Credit may, at the option of the Issuing Bank,
provide that the Issuing Bank may (but shall not be required to) pay all or
any part of the maximum amount which may at any time be available for
drawing thereunder to the beneficiary thereof upon the occurrence or
continuation of an Event of Default and the acceleration of the maturity of
the Loans; provided, that, if payment is not then due to the beneficiary,
the Issuing Bank shall deposit the funds in question in a segregated
account with the Issuing Bank to secure payment to the beneficiary and any
funds so deposited shall be
paid to the beneficiary of the Letter of Credit if conditions to such
payment are satisfied or returned to the Issuing Bank for distribution to
the Revolving Credit Lenders (or, if all Obligations shall have been
indefeasibly paid in full in cash, to the Borrower) if no payment to the
beneficiary has been made and the final date available for drawings under
the Letter of Credit has passed. Each payment or deposit of funds by the
Issuing Bank as provided in this paragraph shall be treated for all
purposes of this Credit Agreement as a drawing duly honored by such Issuing
Bank under the related Letter of Credit.
(b) Whenever the Borrower desires the issuance of a Letter of Credit,
it shall deliver to the Administrative Agent and the Issuing Bank a written
notice no later than 1:00 p.m. (New York time) at least two (2) Business Days
prior to the proposed date of issuance (or such lesser time as is acceptable to
the Issuing Bank). Such notice shall specify (i) the proposed date of issuance
(which shall be a Business Day), (ii) the face amount of the Letter of Credit,
(iii) the expiration date of the Letter of Credit and (iv) the name and address
of the beneficiary. Such notice shall be accompanied by a brief description of
the underlying transaction and upon request of the Issuing Bank or the
Administrative Agent, the Borrower shall provide additional details regarding
the underlying transaction. Concurrently with the giving of written notice of a
request for the issuance of a Letter of Credit, the Borrower shall specify a
precise description of the documents and the verbatim text of any certificate to
be presented by the beneficiary of such Letter of Credit which, if presented by
such beneficiary prior to the expiration date of the Letter of Credit, would
require the Issuing Bank to make payment under the Letter of Credit; provided,
however, that the Issuing Bank, in its reasonable discretion, may require
customary changes in any such documents and certificates to be presented by the
beneficiary. Any Letter of Credit shall be issued solely for one of the
following purposes: (1) for purposes consistent with past practices of the
Borrower, (2) for the benefit of Niagara Ceramics Corporation to replace the
escrowed funds referred to in Section 2.11(d)(i), (3) to provide credit support
for the Borrower's obligations under and pursuant to a Hedging Agreement in
accordance with the terms of the applicable Hedging Agreement, (4) to provide
credit support for indemnity obligations of a Credit Party or Subsidiary thereof
in connection with the sale or lease of an asset permitted hereunder (provided,
that the applicable indemnity obligation is not prohibited by the terms of this
Credit Agreement), (5) in connection with a Permitted Lien or (6) for such other
purpose as has been approved by the Administrative Agent and the Issuing Bank.
Upon issuance of each Letter of Credit, the Issuing Bank shall notify the
Administrative Agent of the issuance of such Letter of Credit. Upon request by a
Revolving Credit Lender, the Administrative Agent shall notify each such
Revolving Credit Lender of the issuance and the amount of such Revolving Credit
Lender's respective participation in the applicable Letter of Credit.
(c) Each Letter of Credit shall be subject to (i) the Uniform Customs
and Practice for Documentary Credits, International Chamber of Commerce
Publication No. 500, or any successor publication, as adopted or amended from
time to time (the "Uniform Customs") and (ii) as to matters not addressed by the
Uniform Customs, the law of the State of New York. The Issuing Bank shall be
entitled to honor any drafts and accept any documents presented to it by the
beneficiary of such Letter of Credit in accordance with the terms of such Letter
of Credit and believed by the Issuing Bank in good faith to be genuine. The
Issuing Bank shall not have any duty to inquire as to the accuracy or
authenticity of any draft or other drawing documents which may be presented to
it, but shall be responsible only to determine in accordance with customary
commercial practices that the documents which are required to be presented
before payment or
acceptance of a draft under any Letter of Credit have been delivered and that
they comply on their face with the requirements of such Letter of Credit.
(d) If the Issuing Bank shall make payment on any draft presented under
a Letter of Credit (regardless of whether a Default, Event of Default or
acceleration has occurred), the Issuing Bank shall give notice of such payment
to the Administrative Agent and the Revolving Credit Lenders, and each Revolving
Credit Lender hereby authorizes and requests the Issuing Bank to advance for its
account, pursuant to the terms hereof, its share of such payment based upon its
participation in the Letter of Credit and agrees promptly to reimburse the
Issuing Bank in immediately available funds in Dollars for the amount so
advanced on its behalf by the Issuing Bank. If any such reimbursement is not
made by any Revolving Credit Lender in immediately available funds on the same
day on which the Issuing Bank shall have made payment on any such draft, such
Revolving Credit Lender shall pay interest thereon to the Issuing Bank at a rate
per annum equal to the Issuing Bank's cost of obtaining overnight funds in the
Federal Funds market for the first three (3) days following the time when such
Revolving Credit Lender fails to make the required reimbursement, and thereafter
at a rate per annum equal to the Base Rate plus the Applicable Interest Margin
for Base Rate Loans which are Revolving Credit Loans.
(e) The Borrower is absolutely, unconditionally and irrevocably
obligated to reimburse all amounts drawn under each Letter of Credit. If any
draft is presented under a Letter of Credit, the payment of which is required to
be made at any time on or before the Revolving Credit Commitment Termination
Date, then payment by the Issuing Bank of such draft shall constitute a
Revolving Credit Loan (which is a Base Rate Loan) hereunder and interest shall
accrue from the date the Issuing Bank makes payment on such draft under such
Letter of Credit. If any draft is presented under a Letter of Credit, the
payment of which is required to be made after the Revolving Credit Commitment
Termination Date or at the time when an Event of Default or Default shall have
occurred and then be continuing, then the Borrower shall immediately pay to the
Issuing Bank, in immediately available funds, the full amount of such draft
together with interest thereon at a rate per annum of 2% in excess of the rate
then in effect for Revolving Credit Loans which are Base Rate Loans from the
date on which the Issuing Bank makes such payment of such draft until the date
it receives full reimbursement for such payment from the Borrower. The Borrower
further agrees that the Issuing Bank may reimburse itself for such drawing from
the balance in any other account of the Borrower maintained with the Issuing
Bank.
(f) (i) The Borrower agrees to pay the following amounts to
the Issuing Bank with respect to Letters of Credit issued by it hereunder:
(A) with respect to the issuance, amendment, transfer or other
transaction related to a Letter of Credit and each drawing made
thereunder, documentary and processing charges in accordance with the
Issuing Bank's standard schedule for such charges in effect at the time
of such issuance, amendment, transfer, drawing or other transaction, as
the case may be; and
(B) a fronting fee payable directly to the Issuing Bank, for its
sole account, for the period from and including the Closing Date to,
but excluding, the Revolving Credit Commitment Termination Date
computed at a rate equal to one-
quarter of one percent (1/4 of 1%) per annum of the daily average L/C
Exposure (calculated in the same manner as interest on a Eurodollar
Loan), such fee to be due and payable in arrears on the last day of
each calendar month (commencing the last day of the month during
which the Closing Date shall have occurred) prior to the Revolving
Credit Commitment Termination Date or the expiration of the last
outstanding Letter of Credit (whichever is later) and on the later
of the Revolving Credit Commitment Termination Date and the
expiration of the last outstanding Letter of Credit.
(ii) The Borrower agrees to pay to the Administrative Agent for
distribution to each Revolving Credit Lender in respect of its L/C
Exposure, such Revolving Credit Lender's pro rata share (based on its
Revolving Credit Commitment) of a commission equal to (A) a per annum
percentage rate equal to the Applicable Interest Margin for Revolving
Credit Loans which are Eurodollar Loans multiplied by (B) the average daily
amount of the L/C Exposure. Such commission shall be calculated in the same
manner as interest on a Eurodollar Loan and shall be due and payable in
arrears on and through the last day of each March, June, September and
December (commencing the last day of September 2004) prior to the Revolving
Credit Commitment Termination Date or the expiration of the last
outstanding Letter of Credit (whichever is later) and on the later of the
Revolving Credit Commitment Termination Date and the expiration of the last
outstanding Letter of Credit. From the occurrence and during the
continuance, of an Event of Default, such commission shall be increased to
an amount equal to 2% plus the Applicable Interest Margin for Revolving
Credit Loans which are Eurodollar Loans multiplied by the daily average
amount of the L/C Exposure; and
(iii) Promptly upon receipt by the Issuing Bank or the Administrative
Agent of any amount described in clause (ii) of this Section 2.21(f), or
any amount described in Section 2.21(e) previously reimbursed to the
Issuing Bank by the Revolving Credit Lenders, the Issuing Bank or the
Administrative Agent (as applicable) shall distribute to each Revolving
Credit Lender its pro rata share of such amount based on its participation
in, or amount paid by such Revolving Credit Lender with respect to, the
applicable Letter(s) of Credit. Amounts payable under clauses (i)(A) and
(i)(B) of this Section 2.21(f) shall be paid directly to the Issuing Bank
and shall be for its exclusive use.
(g) If by reason of (i) any change in Applicable Law after the Initial
Date, or in the interpretation or administration thereof (including, without
limitation, any request, guideline or policy not having the force of law) by any
Governmental Authority charged with the administration or interpretation
thereof, or (ii) compliance by the Issuing Bank or any Revolving Credit Lender
with any direction, request or requirement (whether or not having the force of
law) issued after the Initial Date by any Governmental Authority or monetary
authority, including, without limitation, any change whether or not proposed or
published prior to the Initial Date and any modifications to Regulation D
occurring after the Initial Date:
(A) the Issuing Bank or any Revolving Credit Lender shall be
subject to any tax, levy, impost, duty, fee, charge, deduction or
withholding of any nature with respect to any Letter of Credit (other
than withholding tax imposed by the United States of America or any
other tax, levy, impost, duty, fee, charge,
deduction or withholding (1) that is measured with respect to the
overall net income of the Issuing Bank or such Revolving Credit Lender
or of a Lending Office of the Issuing Bank or such Revolving Credit
Lender, or the franchise taxes imposed in lieu thereof and that is
imposed by the United States of America, or by the jurisdiction in
which the Issuing Bank or such Revolving Credit Lender is incorporated,
or in which such Lending Office is located, managed or controlled or in
which the Issuing Bank or such Revolving Credit Lender has its
principal office or a presence which is not otherwise connected with,
or required by, this transaction (or any political subdivision or
taxing authority thereof or therein) or (2) that is imposed solely by
reason of the Issuing Bank or such Revolving Credit Lender failing to
make a declaration of, or otherwise to establish, nonresidence or to
make any other claim for exemption, or otherwise to comply with any
certification, identification, information, documentation or reporting
requirements prescribed under the laws of the relevant jurisdiction, in
those cases where the Issuing Bank or such Revolving Credit Lender may
properly make the declaration or claim or so establish nonresidence or
otherwise comply), or to any variation thereof or to any penalty with
respect to the maintenance or fulfillment of its obligations under this
Section 2.21, whether directly or by such being imposed on or suffered
by the Issuing Bank or any Revolving Credit Lender;
(B) the basis of taxation of any fee or amount payable hereunder
with respect to any Letter of Credit or any participation therein shall
be changed;
(C) any reserve, deposit or similar requirement is or shall be
applicable, imposed or modified in respect of any Letter of Credit
issued by the Issuing Bank or participations therein purchased by any
Revolving Credit Lender; or
(D) there shall be imposed on the Issuing Bank or any Revolving
Credit Lender any other condition regarding this Section 2.21, any
Letter of Credit or any participation therein;
and the result of the foregoing is to directly or indirectly increase from the
conditions that exist on the Initial Date the cost to the Issuing Bank or any
Lender of issuing, making or maintaining any Letter of Credit or of purchasing
or maintaining any participation therein, or to reduce the amount receivable in
respect thereof by the Issuing Bank or any Lender, then and in any such case the
Issuing Bank or such Lender may, at any time, notify the Borrower, and the
Borrower shall pay on demand such amounts as the Issuing Bank or such Lender may
specify to be necessary to compensate the Issuing Bank or such Lender for such
additional cost or reduced receipt. Sections 2.16(b), (c) and (d) shall in all
instances apply to the Issuing Bank and any Lender with respect to the Letters
of Credit issued hereunder. The determination by the Issuing Bank or any Lender,
as the case may be, of any amount due pursuant to this Section 2.21 as set forth
in a certificate setting forth the calculation thereof in reasonable detail
shall, in the absence of manifest error, be final, conclusive and binding on all
of the parties hereto.
(h) If at any time when an Event of Default shall have occurred and be
continuing, any Letters of Credit shall remain outstanding, then the Issuing
Bank may, and if directed by the Required Revolving Credit Lenders shall,
require the Borrower to deliver to the Administrative Agent cash or Cash
Equivalents in an amount equal to 105% of the amount of the L/C Exposure, a
"back-to-back" letter of credit to the Issuing Bank in a form reasonably
satisfactory to the Issuing Bank, issued by a bank reasonably satisfactory to
the Issuing Bank, or to furnish other security acceptable to the Issuing Bank
and the Required Revolving Credit Lenders. Any amounts so delivered pursuant to
the preceding sentence shall be applied to reimburse the Issuing Bank for the
amount of any drawings honored under Letters of Credit and any costs associated
with the Letters of Credit; provided, however, that if prior to the Revolving
Credit Commitment Termination Date, (i) no Default or Event of Default is then
continuing, then the Administrative Agent shall return all of such collateral
relating to such deposit to the Borrower if requested by it or (ii) Letters of
Credit shall expire or be returned by the beneficiary so that the amount of the
cash or Cash Equivalents delivered to the Administrative Agent hereunder shall
exceed 105% of the then current L/C Exposure, then such excess shall first be
applied to pay any Obligations owing to the Revolving Credit Lenders under this
Credit Agreement and the remainder shall be returned to the Borrower.
(i) Notwithstanding the termination of the Revolving Credit Commitments
and the payment of the Revolving Credit Loans, the obligations of the Borrower
under this Section 2.21 shall remain in full force and effect until the
Administrative Agent, the Issuing Bank and the Revolving Credit Lenders shall
have been irrevocably released from their obligations with regard to any and all
Letters of Credit.
(j) The obligations of the Borrower to reimburse the Issuing Bank and
the Revolving Credit Lenders for drawings made under any Letter of Credit shall
be unconditional and irrevocable and shall be paid strictly in accordance with
the terms of this Credit Agreement under all circumstances, including, without
limitation: (i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, setoff, defense or other right which the
Borrower may have at any time against a beneficiary of any Letter of Credit or
against the Issuing Bank or any of the Revolving Credit Lenders, whether in
connection with this Credit Agreement, the transactions contemplated herein or
any unrelated transaction; (iii) payment by the Issuing Bank against any draft,
demand, certificate or other document presented under any Letter of Credit which
proves to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; (iv) payment by the
Issuing Bank of any Letter of Credit against presentation of a demand, draft or
certificate or other document which does not comply with the terms of such
Letter of Credit (including, without limitation, payment by the Issuing Bank in
accordance with its usual practices and procedures, subsequent to the expiry
date of a Letter of Credit, as long as the Issuing Bank has obtained the consent
of the Borrower thereto and has not been notified in writing by the
Administrative Agent or a Revolving Credit Lender of the occurrence of the
Revolving Credit Commitment Termination Date); (v) any other circumstance or
happening whatsoever, which is similar to any of the foregoing; or (vi) the fact
that any Event of Default shall have occurred and be continuing (it being
understood that any such payment by the Borrower shall be without prejudice to,
and shall not constitute a waiver of, any rights the Borrower might have or
might acquire against any party as a result of the payment by the Issuing Bank
of any draft or the reimbursement by the Borrower thereof).
SECTION 2.22 Replacement of Lenders. If any Lender requests
compensation under Section 2.16, 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 2.18, 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 10.3), all of its interests, rights and
obligations under this Credit 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 (unless such consent would not otherwise be required pursuant to
Section 10.3(c)) of the Administrative Agent (and if a Revolving Credit
Commitment is being assigned, the Issuing Bank), 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 participations in
Letters of Credit pursuant to Section 2.21(d) 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 2.16 or payments required to be made pursuant to Section 2.18, 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.
3. REPRESENTATIONS AND WARRANTIES WITH RESPECT TO CREDIT PARTIES
In order to induce the Agents, the Issuing Bank and the Lenders to
enter into this Credit Agreement, to agree to the restructuring provided for
herein and to make Loans and to issue or purchase participations in the Letters
of Credit provided for herein, the Borrower makes the following representations
and warranties to, and agreements with, the Agents, the Issuing Bank and the
Lenders, all of which shall survive the execution and delivery of this Credit
Agreement, the restructuring described herein, the making of the Loans and the
issuance of the Letters of Credit herein contemplated and the execution and
delivery of any notes evidencing any of the Loans hereunder:
SECTION 3.1 Existence and Power. (a) The Borrower is a corporation duly
organized, validly existing and in good standing under the laws of New York and
is qualified to do business and is in good standing in all jurisdictions where
either (i) the nature of its properties or business so requires or (ii) the
failure to be in good standing could reasonably be expected to have a Material
Adverse Effect. Schedule 3.1(a) hereto sets forth a list of all jurisdictions in
which the Borrower is so qualified.
(b) Each other Credit Party is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization and is
qualified to do business and is in good standing in all jurisdictions where
either (i) the nature of its properties or business so requires or (ii) the
failure to be in good standing could reasonably be expected to have a Material
Adverse Effect. Schedule 3.1(b) hereto also sets forth a list of the
jurisdiction of organization of each Credit Party and all jurisdictions in which
each Credit Party is qualified to do business.
(c) Each of the Credit Parties has the corporate power and authority
(i) to own its respective properties and carry on its respective business as now
being, or as now intended to be, conducted and (ii) to execute, deliver and
perform, as applicable, its obligations under the Fundamental Documents and any
other documents contemplated hereby or thereby to which it is or will be a
party, and to grant to the Collateral Agent, for the benefit of the Secured
Parties, a security interest in the Collateral as contemplated by this Credit
Agreement and the other Fundamental Documents to which it is or will be a party;
and in the case of the Grantors (as defined in the Amended and Restated Security
Agreement) to grant to the Collateral Agent for the benefit of the Secured
Parties, a lien on the Collateral as contemplated by the Amended and Restated
Security Agreement; and in the case of the Pledgors, to pledge to the Collateral
Agent for the benefit of the Secured Parties, the Pledged Collateral as
contemplated by the Amended and Restated Pledge Security Agreement; and in the
case of the Borrower, to execute, deliver and perform its obligations under this
Credit Agreement and any notes evidencing any of the Loans hereunder and to
borrow hereunder; and in the case of the Guarantors, to guaranty the Obligations
as contemplated by the Amended and Restated Consolidated Subsidiary Guaranty
Agreement.
(d) Each of the Credit Parties had the corporate power and authority
(i) to execute, deliver, and perform, as applicable, its obligations under the
Existing Fundamental Documents and any other documents in connection therewith
to which it is a party and (ii) to grant to the Existing Collateral Agent for
the benefit of, among others, the Existing Noteholders and the Existing Lenders,
a security interest in the Existing Collateral as contemplated by the Existing
Security Documents to which it is a party; and in the case of the Existing
Guarantors to guaranty the Existing Secured Obligations as contemplated by the
Existing Guarantee Agreements.
SECTION 3.2 Authority and No Violation. (a) The execution, delivery and
performance of this Credit Agreement and the other Fundamental Documents to
which it is a party, by each Credit Party, (i) have been duly authorized by all
necessary corporate action on the part of each such Credit Party, (ii) will not
constitute a violation of any provision of Applicable Law or any order of any
Governmental Authority applicable to such Credit Party or any of its respective
properties or assets except as would not reasonably be expected to result in a
Material Adverse Effect, (iii) will not violate any provision of the Certificate
of Incorporation or By-Laws or any other organizational document of any Credit
Party or any Subsidiary of a Credit Party, or, in any material respect, any
provision of any Regulatory License, or Material Agreement or any Lien to which
such Credit Party is a party or by which such Credit Party or any of its
respective material properties or assets are bound, (iv) will not be in conflict
with, result in a breach of, or constitute (with due notice or lapse of time or
both) a default under, or create any right to terminate, any such Regulatory
License, or Material Agreement except as would not reasonably be expected to
result in a Material Adverse Effect and (v) will not result in the creation or
imposition of (or the obligation to create or impose) any Lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of any
of the Credit Parties or any Subsidiary of a Credit Party other than pursuant to
this Credit Agreement or the
other Fundamental Documents except as would not reasonably be expected to result
in a Material Adverse Effect.
(b) The execution, delivery and performance of the Existing Fundamental
Documents to which it is a party, by each Credit Party, (i) were duly authorized
by all necessary corporate action on the part of each such Credit Party, (ii) do
not and have not constituted a violation of any provision of Applicable Law or
any order of any Governmental Authority applicable to such Credit Party or any
of its respective properties or assets except as would not reasonably be
expected to result in a Material Adverse Effect, (iii) do not and have not
violated any provision of the Certificate of Incorporation or By-Laws or any
other organizational document of any Credit Party or any Subsidiary of a Credit
Party, or, in any material respect, any provision of any Regulatory License, or
Material Agreement or any Lien to which such Credit Party is a party or by which
such Credit Party or any of its respective material properties or assets are
bound, (iv) did not and have not been in conflict with, resulted in a breach of,
or constituted (with due notice or lapse of time or both) a default under, or
created any right to terminate, any such Regulatory License, or Material
Agreement except as would not reasonably be expected to result in a Material
Adverse Effect and (v) did not and have not resulted in the creation or
imposition of (or the obligation to create or impose) any Lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of any
of the Credit Parties or any Subsidiary of a Credit Party other than pursuant to
the Existing Credit Agreement or the other Existing Fundamental Documents except
as would not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.3 Governmental and Other Approval. (a) All authorizations,
approvals, orders, consents, licenses, registrations or filings from or with any
Governmental Authority required for the execution, delivery and performance by
any Credit Party of this Credit Agreement and the other Fundamental Documents to
which it is a party, and the execution and delivery by the Borrower of any notes
evidencing any of the Loans hereunder, have been duly obtained or made, and are
in full force and effect, and if any further authorizations, approvals, orders,
consents, licenses, registrations or filings should hereafter become necessary,
the Credit Parties shall obtain or make all such authorizations, approvals,
orders, consents, licenses, registrations or filings.
(b) All authorizations, approvals, orders, consents, licenses,
registrations or filings from or with any Governmental Authority required for
the execution, delivery and performance by any Credit Party of the Existing
Credit Agreement, the Existing Note Agreement and the other Existing Fundamental
Documents to which it is a party, and the execution and delivery by the Borrower
and THC of the Existing Promissory Notes and the Existing Notes, have been duly
obtained or made, and are in full force and effect.
(c) Each Credit Party and each Subsidiary of a Credit Party has
obtained and holds in full force and effect all Regulatory Licenses, other
licenses, authorizations, consents, franchises, permits, certificates
(including, without limitation, certificates of need), accreditations,
easements, rights of way and other approvals necessary to own its respective
properties and assets and to carry on its respective business as now being, or
as now intended to be, conducted; except those the failure of which to obtain or
hold would not reasonably be expected to result in a Material Adverse Effect.
(d) As of the Closing Date, during the last twenty-four (24) months, no
Credit Party nor any Subsidiary of a Credit Party has been notified by any
relevant Governmental Authority or other Person with respect to any material
Regulatory License, or other approval or authorization necessary to operate its
business as currently being conducted, of such Governmental Authority's or other
Person's actual or threatened revocation, suspension, termination, rescission,
or non-renewal, of such Regulatory License, or other approval or authorization.
(e) All required consents and approvals have been obtained with respect
to the financing transactions contemplated (i) hereby and (ii) under the
Existing Fundamental Documents, from all Governmental Authorities with
jurisdiction over the business and activities of any Credit Party and from any
other entity whose consent, waiver or approval is required pursuant to the terms
of existing contracts to which any of the Credit Parties is bound.
SECTION 3.4 Binding Agreements. Each Credit Party has duly executed and
delivered (i) this Credit Agreement and each other Fundamental Document to which
it is a party and (ii) the Existing Fundamental Documents to which it is a
party. Each of (i) this Credit Agreement and the other Fundamental Documents
constitutes and (ii) immediately prior to the Closing Date, the Existing
Fundamental Documents constituted the legal, valid and binding obligation of
each Credit Party that is a party thereto, enforceable against such Credit Party
in accordance with its respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and to general principles of equity, whether such
enforceability is considered in a proceeding at law or in equity.
SECTION 3.5 No Material Adverse Change. Since August 9, 2004 there has
been no material adverse change with respect to the business, operations,
performance, assets, properties, or condition (financial or otherwise) or
prospects of the Credit Parties taken as a whole and no sale, transfer or other
disposition of a material part of the assets or business of the Borrower or any
Subsidiary.
SECTION 3.6 Financial Information. (i) The audited consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries at January 31, 2004 and
(ii) the unaudited, consolidated, balance sheet of the Borrower and its
Consolidated Subsidiaries as of May 1, 2004, together in each case with all
unaudited pro forma adjustments thereto and with the related statements of
income, stockholders' equity and cash flows and the related notes and
supplemental information, in the forms which have previously been delivered to
the Lenders, have been prepared in accordance with GAAP consistently applied,
except as otherwise indicated in the notes to such financial statements and
subject in the case of unaudited statements, to changes resulting from year-end
and audit adjustments. All of such financial statements fairly present, in all
material respects, the consolidated financial position and the results of
operations, as the case may be, of the Borrower and its Consolidated
Subsidiaries, at the dates or for the periods indicated, as more fully described
in the notes to such financial statements and in accordance with GAAP.
SECTION 3.7 Credit Parties and their Subsidiaries. (a) Annexed hereto
as Schedule 3.7(a) is a correct and complete list, as of the Closing Date, of
each Credit Party and
each Subsidiary of a Credit Party showing, as to each, (i) its exact legal name,
(ii) the jurisdiction in which it was incorporated or otherwise organized, (iii)
its type of organization, (iv) its taxpayer identification number and
organizational identification number, if applicable, (v) its authorized
capitalization, the number of shares of its capital stock outstanding and the
ownership of such capital stock, (vi) in the case of each Credit Party, the
location of its chief executive office and the location where it keeps the
records concerning the Collateral or any Real Property Asset or any item
included in the Collateral.
(b) As of the Closing Date, no Credit Party owns any Capital Stock,
either directly or indirectly, in any Person other than as set forth on Schedule
3.7(b) hereto.
(c) As of the Closing Date, no Credit Party is a limited or a general
partner in any joint venture or partnership.
SECTION 3.8 Patents, Trademarks, Copyrights and Other Rights. (a) The
Credit Parties and their Subsidiaries possess all patents, patent rights and
licenses, trademarks, service marks, tradenames, trademark rights and licenses,
copyrights, copyright rights and licenses and any other similar rights, free
from burdensome restrictions, which are material to the conduct of their
respective businesses (collectively the "Proprietary Rights") and have duly
recorded their interest in the United States Patent and Trademark Office or the
United States Copyright Office as applicable. Schedule 3.8 lists, as of the
Closing Date, all registered Proprietary Rights, and all Proprietary Rights as
to which an application for registration has been made, owned and used or held
for use by any Credit Party or any Subsidiary of a Credit Party, specifying as
to each, as applicable: (i) the nature of such Proprietary Right; (ii) the
Credit Party or Subsidiary thereof which owns such Proprietary Right; (iii) the
jurisdictions or government offices by or in which such Proprietary Right has
been issued or registered (or, if applicable, in which an application for such
issuance or registration has been filed), including the respective registration
or application numbers; (iv) all licenses, sublicenses and other agreements
(other than any license to use software or similar items which are readily
available in the market place on substantially similar terms) pursuant to which
a Credit Party or Subsidiary thereof is a party and pursuant to which any Person
is authorized to use any Proprietary Right, including, as to licenses to a
Credit Party or Subsidiary thereof, the identity of the licensor; and (v) all
licenses, sublicenses and other agreements pursuant to which any Credit Party
granted to a Person other than a Credit Party or Subsidiary thereof a license to
use any Proprietary Right including, the identity of the licensee. To the
Knowledge of the Borrower, a Credit Party or Subsidiary thereof is either (1)
the sole and exclusive owner (excluding licenses granted by a Credit Party or a
Subsidiary thereof) of all right, title and interest in and to (free and clear
of any Lien) the Proprietary Rights and has sole and exclusive rights to the use
thereof or the material covered thereby in connection with the services or
products in respect of which they are being used, or (2) the licensee of (free
and clear of any Lien) the Proprietary Rights described in Schedule 3.8 hereto
and has the rights to the use thereof or material covered thereby in connection
with the services or products in respect of which they are being used.
(b) Except as set forth on Schedule 3.8 hereto, as of the Closing Date,
(i) there is no claim, suit, action or proceeding pending, or to the Knowledge
of the Credit Parties (based on the Knowledge of the Borrower and
representations by the other Credit Parties to the Borrower), threatened,
against a Credit Party or Subsidiary thereof that involves a claim of
infringement of
any Proprietary Right and (ii) no Credit Party has any Knowledge (based on the
Knowledge of the Borrower and representations by the other Credit Parties to the
Borrower) of any existing infringement by any other Person of any of the
Proprietary Rights.
SECTION 3.9 Fictitious Names. Except as set forth on Schedule 3.9, none
of the Credit Parties has done business, is doing business or intends to do
business other than under its full corporate name, including, without
limitation, under any trade name or other doing business name; provided, that if
any of the Credit Parties intends to do business other than under its full
corporate name, including, without limitation, under any trade name or other
doing business name, it shall have provided the Administrative Agent and the
Collateral Agent with reasonable prior written notice of its intention to do so.
SECTION 3.10 Title to Properties. Except as set forth on Schedule 3.10:
(a) The Credit Parties and their Subsidiaries have good title to (and
with respect to Real Property Assets, good and marketable title to, or valid
leasehold interests in (in each case as specified in Section 3.23)) each of the
properties and assets reflected on the financial statements referred to in
Section 3.6 hereof, including, without limitation, the Real Property Assets
listed on Schedules 3.23(a) and 3.23(b) hereto (other than such properties or
assets disposed of in the ordinary course of business since the date of such
financial statements or as permitted hereunder) and all such properties and
assets are free and clear of Liens, except Permitted Liens (and all such leases
are free and clear of Liens).
(b) Each of the Credit Parties and each Subsidiary of a Credit Party
has complied in all material respects with all leases to which it is a party,
and neither a Credit Party nor such Subsidiary has received or forwarded a
notice of default thereunder, and all such leases are in full force and effect.
(c) No Credit Party or Subsidiary of a Credit Party has notice of a
pending or contemplated condemnation proceeding affecting any Real Property
Asset or any sale or disposition thereof in lieu of condemnation.
SECTION 3.11 Litigation; Judgments. (a) Except as set forth on Schedule
3.11(a) hereto, there are no actions, suits or other proceedings at law or in
equity by or before any arbitrator or arbitration panel, or any Governmental
Authority or any investigation by any Governmental Authority of the affairs of,
or to the Knowledge of each Credit Party (based on the Knowledge of the Borrower
and representations by the other Credit Parties to the Borrower), threatened
action, suit or other proceeding against or affecting, any Credit Party or any
Subsidiary of a Credit Party or of any of their respective properties or rights
which either (A) relate to this Credit Agreement, any Fundamental Document or
any of the transactions contemplated hereby or thereby or the Loans hereunder or
(B) relate to any Existing Fundamental Document or any of the transactions
contemplated thereby or the Existing Loans thereunder. No Credit Party and no
Subsidiary of a Credit Party is in default with respect to any order, writ,
injunction, decree, rule or regulation of any Governmental Authority binding
upon such Person, which would reasonably be expected to result in a Material
Adverse Effect.
(b) There are no unpaid final, nonappealable judgments or decrees in an
aggregate amount of $500,000 or more entered by a court or courts of competent
jurisdiction against any Credit Party or any Subsidiary of a Credit Party (other
than any judgment as to which, and only to the extent, a reputable insurance
company has acknowledged coverage of such claim in writing).
SECTION 3.12 Federal Reserve Regulations. No Credit Party nor any
Subsidiary of a Credit Party is engaged principally or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying any Margin Stock. No part of the proceeds of the Loans will be used,
directly or indirectly, whether immediately, incidentally or ultimately (i) to
purchase or carry any Margin Stock or to extend credit to others for the purpose
of purchasing or carrying any Margin Stock, or (ii) for any other purpose, in
each case, violative of or inconsistent with any of the provisions of any
regulation of the Board, including, without limitation, Regulations T, U and X
thereto.
SECTION 3.13 Investment Company Act. No Credit Party nor any Subsidiary
of a Credit Party is, or will during the term of this Credit Agreement be, an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended, or any
foreign, federal or local statute or any other Applicable Law of the United
States of America or any other jurisdiction, in each case limiting its ability
to incur indebtedness for money borrowed as contemplated hereby or by any other
Fundamental Document.
SECTION 3.14 Taxes. Each Credit Party and each Subsidiary of a Credit
Party has filed or caused to be filed all United States federal tax returns,
state income tax returns and other material tax returns which are required to be
filed with any Governmental Authority after giving effect to applicable
extensions, and has paid or has caused to be paid all taxes as shown on said
returns or on any assessment received by them, to the extent that such taxes
have become due, except as permitted by Section 5.8 hereof. No Credit Party
knows of any material additional assessments or any basis therefor. In the
reasonable, good faith opinion of the Credit Parties, the charges, accruals and
reserves on the books of the Credit Parties and their Subsidiaries in respect of
taxes or other governmental charges are adequate.
SECTION 3.15 Compliance with ERISA. (a) Except as set forth on Schedule
3.15(a), each Plan has been maintained and operated in all respects in
accordance with all Applicable Laws, including ERISA and the Code except to the
extent that any failure thereof could not reasonably be expected to result in a
material liability. Each Plan intended to qualify under Section 401(a) of the
Code so qualifies except to the extent that any failure to so qualify could not
reasonably be expected to result in a material liability. Except as set forth on
Schedule 3.15(a), no Plan has an "accumulated funding deficiency," within the
meaning of Section 412 of the Code or Section 302 of ERISA, or has applied for
or received a waiver of the minimum funding standards or an extension of any
amortization period, within the meaning of Section 412 of the Code or Section
303 or 304 of ERISA. Except as set forth on Schedule 3.15(a), no material
liability has been, and no circumstances exist pursuant to which any such
material liability could reasonably likely be, imposed upon any Credit Party or
ERISA Affiliate under Sections 4971, 4972 or 4975 through 4980B of the Code, as
applicable, Section 409, 502(i) or 502(l) of ERISA, or under Title IV of ERISA
with respect to any Plan (other than liability for
premiums to the PBGC arising in the ordinary course). No Credit Party or ERISA
Affiliate sponsors, contributes to, maintains or could have any liability under
any Multiemployer Plan. No Plan has an Unfunded Current Liability which exceeds
the amount of the Unfunded Current Liability which such Plan had on July 16,
2004 by more than $6,000,000. Except as set forth on Schedule 3.15(a), no
action, suit, proceeding, hearing, audit or investigation with respect to the
administration, operation or the investment of assets of any Plan (other than
routine claims for benefits and appeals of denied routine claims) that could
reasonably be expected to result in a material liability is pending, expected
or, to the Knowledge of the Credit Parties, threatened.
(b) Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. All material
contributions required to be made with respect to a Foreign Pension Plan have
been timely made or accrued. Neither a Credit Party nor any of its Subsidiaries
has incurred any material obligation in connection with the termination of, or
withdrawal from, any Foreign Pension Plan. The present value of the accrued
benefit liabilities (whether or not vested) under each Foreign Pension Plan,
determined as of the end of the Credit Party's most recently ended fiscal year
on the basis of actuarial assumptions, each of which is reasonable, did not
exceed the current value of the assets of such Foreign Pension Plan allocable to
such benefit liabilities by more than $3,000,000.
SECTION 3.16 Agreements. (a) No Credit Party nor any Subsidiary of a
Credit Party is in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any Material Agreement
to which it is a party (including, without limitation, any Regulatory License)
or by which it or any of its property or assets is bound in any respect except
for such defaults as would not reasonably be expected to result in a Material
Adverse Effect.
(b) Schedule 3.16(b) hereto is a true and complete listing as of the
Closing Date of Material Agreements other than the Existing Fundamental
Documents.
SECTION 3.17 Security Interest. (a) The Security Documents (other than
the Amended and Restated Mortgages) when executed and delivered, will continue
to constitute valid and first priority perfected security interest in the
Collateral, subject only to Permitted Liens, in favor of the Collateral Agent
for the benefit of the Secured Parties.
(b) The Amended and Restated Mortgages, when executed and delivered,
will continue to constitute a legal, valid and enforceable first priority Lien
on all of the Credit Parties' respective right, title and interest in and to all
the Real Property Assets which constitute Collateral (except personalty that
does not constitute fixtures) and the proceeds thereof, in favor of the
Collateral Agent, and the proper amount of mortgage recording or similar taxes
(if any) in connection with the Mortgages are paid. Such first priority Lien is
only subject to the matters specified in the applicable Amended and Restated
Mortgage, including applicable Permitted Liens.
SECTION 3.18 Disclosure. Neither this Credit Agreement nor any other
Fundamental Document nor any agreement, document, certificate or statement
furnished to any
of the Agents, the Issuing Bank or any Lender by or on behalf of any Credit
Party in connection with the transactions contemplated hereby, at the time it
was furnished or delivered, contained any untrue statement of a material fact
regarding the Credit Parties (or their Subsidiaries) or the financing
transactions contemplated hereby including the Collateral or, when taken
together with all such other agreements, documents, certificates and statements,
omitted to state a material fact necessary under the circumstances under which
it was made in order to make the statements contained herein or therein not
misleading. There is no fact to the Knowledge of any Credit Party (based on the
Knowledge of the Borrower and representations by the other Credit Parties to the
Borrower) (other than general industry conditions, or such other facts which
have been disclosed to the Agents, the Issuing Bank and the Lenders in writing)
which has had a Material Adverse Effect, or could reasonably be expected in the
future to have a Material Adverse Effect.
SECTION 3.19 Environmental Matters. Except as set forth on Schedule
3.19 hereto, as of the Closing Date:
(a) There are no pending, or, to the Knowledge of the Borrower,
threatened Environmental Claims against or with respect to any Credit Party or
any Subsidiary of a Credit Party or any Premises that are currently owned,
leased, or operated by any Credit Party or any Subsidiary of a Credit Party;
except for such claims that have been fully resolved, there are no past
Environmental Claims against or with respect to any Credit Party, any Subsidiary
of a Credit Party, or any Premises that are currently owned, leased, or operated
by any Credit Party or any Subsidiary of any Credit Party; and no Credit Party
nor any Subsidiary of any Credit Party has Knowledge of any facts or
circumstances which would reasonably be expected to form the basis for any such
Environmental Claim;
(b) No Premises which is currently owned, leased, or operated by any
Credit Party or Subsidiary of any Credit Party is currently or, to the Knowledge
of Borrower, was formerly used for the handling, storage, treatment, disposal,
manufacture, processing or generation of Hazardous Materials, except in material
compliance with Environmental Laws; and no Premises which was formerly owned,
leased, or operated by any Credit Party or any Subsidiary of any Credit Party
was used for the handling, storage, treatment, disposal, manufacturing,
processing or generation of Hazardous Materials during the period of the
ownership, lease or operation by such Credit Party or such Subsidiary of any
Credit Party, except in material compliance with Environmental Laws.
(c) Each Credit Party, each Subsidiary of any Credit Party, and, to the
Knowledge of the Borrower, any tenants, operators or occupants of any Premises
which is currently owned, leased or operated by any Credit Party or any
Subsidiary of any Credit Party have obtained and hold all required material
Environmental Permits;
(d) Each Credit Party and each Subsidiary of any Credit Party is in
material compliance with all terms, conditions and provisions of all applicable
(1) Environmental Permits, and (2) Environmental Laws;
(e) No Releases of Hazardous Materials have occurred at, from, in, to,
on, or under any Premises which is currently owned, leased, or operated by any
Credit Party or any Subsidiary of any Credit Party, except for any such Release
that has been remediated in
accordance with the requirements of Environmental Law, and no Hazardous
Materials are present in, on, about or migrating to or from any such Premises
that require investigation or remediation under Environmental Laws; and no
Releases of Hazardous Materials occurred at, from, in, to, on, or under any
Premises which was formerly owned, leased, or operated by any Credit Party or
any Subsidiary of any Credit Party during the period of the ownership, lease or
operation by such Credit Party or such Subsidiary of any Credit Party, except
for any such Release that has been remediated in accordance with the
requirements of Environmental Laws.
(f) Neither any Credit Party nor Subsidiary of any Credit Party, nor
any predecessor of any Credit Party or any Subsidiary of any Credit Party, has
transported or arranged for the treatment, storage, handling, disposal, or
transportation of any Hazardous Material to any location (other than any
Premises) which has resulted in an Environmental Claim against any Credit Party,
any Subsidiary of a Credit Party or any Predecessor of any Credit Party or
Subsidiary that has not been fully resolved;
(g) No Premises is a current Environmental Clean-Up Site, and, to the
Knowledge of any Credit Party or any Subsidiary of any Credit Party, no Premises
is proposed for listing on the National Priorities List or the Comprehensive
Environmental Response Compensation and Liability Information System or any
similar state list of sites;
(h) There are, to the Knowledge of the Borrower, no (i) underground
storage tanks, (ii) polychlorinated biphenyl containing equipment, (iii) friable
asbestos-containing material that must be removed or encapsulated under
applicable Environmental Laws, or (iv) lead-based paint located at any Premises
which is currently owned, leased or operated by any Credit Party or any
Subsidiary of any Credit Party; and
(i) To the Knowledge of the Borrower, there have been no material
environmental investigations, studies, audits, tests, reviews or other analyses
conducted by, or on behalf of, and which are in the possession of any Credit
Party or any Subsidiary of any Credit Party with respect to any Premises which
have not been delivered to the Agents.
SECTION 3.20 Pledged Securities. (a) Each Pledgor (i) is the legal and
beneficial owner of, and has sole right, title and interest to, the Pledged
Securities owned by such Pledgor, free and clear of all Liens other than
Permitted Liens, security interests or other encumbrances whatsoever, except the
security interests granted pursuant to the Existing Security Documents and
continued by the Security Documents and (ii) has sole right and power to
continue to pledge, and grant the security interest in, and Lien upon, such
Pledged Securities pursuant to the Security Documents without the consent of any
Person or Governmental Authority whatsoever.
(b) The Amended and Restated Pledge Security Agreement is effective to
continue a valid, binding and enforceable security interest in, and Lien upon,
all right, title and interest of the Pledgors in the Pledged Collateral and upon
the delivery of any of Pledged Securities to the Collateral Agent which have not
already been delivered to the Collateral Agent or the filing of any necessary
UCC-1 financing statements which have not already been filed, as applicable,
such security interest and Lien constitute and continue a fully perfected first
and prior
security interest and Lien upon all right, title and interest of the Pledgors in
the Pledged Collateral.
SECTION 3.21 Compliance with Laws. (a) No Credit Party, Subsidiary of a
Credit Party or any Real Property Asset is in violation of any Applicable Law or
any Liens except for such violations as would not reasonably be expected to
result in a Material Adverse Effect.
(b) No Credit Party, Subsidiary of a Credit Party or any Real Property
Asset is in violation of any zoning or building law, ordinance, rule, regulation
or restriction affecting a Real Property Asset or any building permit,
including, without limitation, any certificate of occupancy except for such
violations as would not reasonably be expected to result in a Material Adverse
Effect.
(c) The Borrowings hereunder, the intended use of the proceeds of the
Loans as contemplated by Sections 2.1 and 2.2 hereof, the issuance of the
Letters of Credit hereunder and the performance of the Fundamental Documents
will not violate any Applicable Law except for such violations as would not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.22 Projected Financial Information. The Borrower has
delivered to the Agents certain projections relating to the Borrower consisting
of balance sheets, income statements and cash flows, together with a statement
of the underlying assumptions. Such projected statements are based on good faith
estimates and assumptions believed to be reasonable at the time made, it being
recognized by the Lenders that such projections as to future events are not to
be viewed as facts and that actual results during the period or periods covered
by any such projections may differ from the projected results.
SECTION 3.23 Real Property. (a) Schedule 3.23(a) is a true and complete
list of (i) the street address and legal description of each Real Property Asset
owned by a Credit Party or a Subsidiary of a Credit Party located in the United
States, (ii) the Credit Party or Subsidiary which owns each such Real Property
Asset, (iii) the appraised value of each such Real Property Asset, if available,
and the date of the applicable appraisal, (iv) the facility type of each such
Real Property Asset, (v) any lease(s) to which each such Real Property Asset is
subject and (vi) the name and address of the lessee, if applicable, of each such
Real Property Asset.
(b) Schedule 3.23(b) is a true and complete list as of the Closing Date
of (i) the street address of each Real Property Asset leased by a Credit Party
or a Subsidiary of a Credit Party located in the United States, (ii) the Credit
Party or Subsidiary which leases each such Real Property Asset, (iii) the
facility type of such Real Property Asset, (iii) the name and address of the
owner/lessor of each such Real Property Asset and (iv) the name and address of
any sublessee of each such Real Property Asset.
(c) With respect to each of the Real Property Assets:
(i) except as noted on Schedule 3.23(c), none of the Real Property
Assets are located in a "flood plain" as defined pursuant to the Flood
Disaster Protection Act of 1973, as amended; and
(ii) except as set forth on Schedule 3.23(c), with respect to each
Real Property Asset, real property tax lots covering the Real Property
Assets do not cover any other real property.
SECTION 3.24 No Default. No Default or Event of Default exists under or
with respect to any Fundamental Document.
SECTION 3.25 Labor Matters. Except as set forth on Schedule 3.25
hereto, (i) as of the Closing Date, there are no collective bargaining
agreements covering the employees of any Credit Party or any Subsidiary of a
Credit Party and (ii) no Credit Party nor any Subsidiary of a Credit Party has
suffered any material strikes, walkouts or work stoppages within the last three
(3) years.
SECTION 3.26 Organizational Documents. The documents delivered pursuant
to Section 4.1(b) constitute, as of the Closing Date, all of the organizational
documents (together with all amendments and modifications thereof) of the Credit
Parties as of the Closing Date. The Credit Parties represent that they have
delivered to the Administrative Agent true, correct and complete copies of each
of the documents set forth in Section 4.1(b).
SECTION 3.27 Indebtedness. Schedule 6.1(b) sets forth a true and
complete list of all Indebtedness in excess of $250,000, L/C Indebtedness and
Intercompany Indebtedness (excluding the Obligations) 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 Credit Party or a Subsidiary of a Credit
Party which directly or indirectly guaranteed such Indebtedness, L/C
Indebtedness or Intercompany Indebtedness.
SECTION 3.28 Bank Accounts. Schedule 3.28 sets forth the name of each
bank or financial institution where the Borrower or any Credit Party maintains a
deposit account together with the account number(s) thereof.
SECTION 3.29 Representations and Warranties in the Fundamental
Documents. All representations and warranties of the Borrower and any of its
Subsidiaries contained in any of the other Fundamental Documents are true and
correct on and as of the date hereof.
SECTION 3.30 Dissolvable Entities. To the extent not joined as a Credit
Party pursuant to Section 5.12, each Dissolvable Entity has no assets, including
without limitation, Real Property Assets, Receivables or Proprietary Rights, (i)
with an aggregate value in excess of $10,000 and (ii) used in connection with
the business of the Borrower and the other Credit Parties.
4. CONDITIONS TO THE EFFECTIVENESS OF THIS CREDIT AGREEMENT AND THE MAKING OF
THE LOANS
SECTION 4.1 Conditions Precedent to the Effectiveness of This Credit
Agreement and the Making of the Loans. The effectiveness of this Credit
Agreement, the restructuring contemplated hereby and the making of the Loans is
subject to the satisfaction in full or waiver of the following conditions,
either before or simultaneous with the Closing Date:
(a) The Credit Agreement. The Administrative Agent shall have received
executed counterparts of this Credit Agreement, which, when taken together, bear
the signatures of the Borrower, the Agents, the Issuing Bank and all of the
Lenders;
(b) Supporting Documents of the Credit Parties. The Administrative
Agent shall have received in form and substance satisfactory to its counsel:
(i) a copy of the articles of incorporation of the Borrower,
certified as of a recent date by the Secretary of the State of New York;
(ii) a certificate of the Secretary of the Borrower, dated the
Closing Date and certifying (A) that attached thereto is a true and
complete copy of the articles of incorporation and by-laws of the Borrower
as in effect on the date of such certification; (B) that the articles of
incorporation of the Borrower have not been amended since the date of the
last amendment thereto indicated on the certificate of the Secretary of the
State of New York furnished pursuant to clause (i) above, except to the
extent specified in such Secretary's Certificate; (C) that attached thereto
is a true and complete copy of resolutions adopted by the Borrower's Board
of Directors authorizing the Borrowings by the Borrower, the grant by the
Borrower of the security interests contemplated by the Fundamental
Documents and the execution, delivery and performance by the Borrower in
accordance with its respective terms of this Credit Agreement, the other
Fundamental Documents to which it is or will be a party and any other
documents required or contemplated hereunder or thereunder and that such
resolutions have not been amended, rescinded or supplemented and are
currently in effect; and (D) as to the incumbency and specimen signature of
each officer of the Borrower executing this Credit Agreement, any notes (on
behalf of the Borrower), the other Fundamental Documents or any other
document delivered in connection herewith or therewith on behalf of the
Borrower (such certificate to contain a certification by another officer of
the Borrower as to the incumbency and signature of the officer signing the
certificate referred to in this clause (ii));
(iii) a certificate of the Secretary of each other Credit Party, dated
the Closing Date (which certificate may be an omnibus certificate executed
by the same individual on behalf of multiple Credit Parties), and
certifying (A) such Credit Party is in good standing in its jurisdiction of
organization and has paid all its franchise and other similar taxes; (B)
that attached thereto is a true and complete copy of resolutions or other
authorizing documents adopted by the appropriate Person or Persons of such
Credit Party authorizing the guaranty under the Amended and Restated
Consolidated Subsidiary Guaranty by such Credit Party, the grant by such
Credit Party of the security interests contemplated by the Fundamental
Documents and the execution, delivery and performance by such Credit Party
in accordance with its respective terms of the Fundamental Documents to
which it is or will be a party and any other documents required or
contemplated hereunder or thereunder and that such resolutions have not
been amended, rescinded or supplemented and are currently in effect and (C)
as to the incumbency and specimen signature of each officer of such Credit
Party executing any Fundamental Documents to which it is a party or any
other document delivered in connection herewith or therewith on behalf of
such Credit Party (such certificate to contain a certification by another
officer of such Credit
Party as to the incumbency and signature of the officer signing the
certificate referred to in this clause (iii));
(iv) a certificate dated as of a recent date as to the good standing
and/or authority to do business of each of the Borrower and the other
Credit Parties issued by the Secretary of State or other appropriate
governmental official of the jurisdiction of its organization and, to the
extent requested by the Administrative Agent, each other jurisdiction in
which such entity is qualified to do business; and
(v) such additional documents relating to the Borrower and any other
Credit Party as the Administrative Agent or its counsel or any Lender may
reasonably request;
(c) Other Documents. The Agents and their counsel shall have received
fully executed originals of the Amended and Restated Consolidated Subsidiary
Guaranty Agreement, the Amended and Restated Consolidated Subsidiary
Subordination Agreement, the Amended and Restated Security Agreement, the
Amended and Restated Pledge Security Agreement, the Amended and Restated
Copyright Security Agreement, the Amended and Restated Patent Security
Agreement, and the Amended and Restated Trademark Security Agreement, and such
other documentation as the Agents or their counsel may request;
(d) Opinions of Counsel. The Administrative Agent shall have received
the written opinions of (i) Shearman & Sterling LLP, counsel to the Credit
Parties and (ii) counsel in the United Kingdom and Australia, each dated the
Closing Date and addressed to the Agents, the Issuing Bank, the Lenders and the
other Secured Parties with respect to such matters relating to this Credit
Agreement and the Fundamental Documents as may be reasonably requested by the
Administrative Agent and its counsel, which opinion shall be in form and
substance satisfactory to the Administrative Agent and its counsel;
(e) No Material Adverse Effect. Except as set forth on Schedule 4.1(e),
no Material Adverse Effect shall have occurred since January 31, 2004;
(f) Material Agreements. The Administrative Agent or its counsel shall
have received a copy of each Material Agreement listed on Schedule 3.16(b)
hereto, to the extent requested by the Administrative Agent;
(g) Financing Statements/Possession of Collateral. The Collateral Agent
shall have (i) received for filing all appropriate UCC financing statements to
continue the perfection of its security interest in the Collateral and evidence
reasonably satisfactory to the Collateral Agent that such UCC financing
statements will be filed on or promptly after the Closing Date, together with
any related filing fees or similar charges or taxes payable in connection with
such filing; (ii) received the Pledged Securities (to the extent such Pledged
Securities are represented by a certificate or other instrument) and all
instruments constituting Collateral each with appropriate undated stock powers
or other appropriate documents executed in blank and (iii) received delivery of
all other Collateral of the type specified in Section 9-313 of the UCC to the
extent requested by the Collateral Agent;
(h) Mortgages. The Collateral Agent shall have received the duly
executed Amended and Restated Mortgage referred in clause (v) of the definition
of the term "Amended
and Restated Mortgage" with respect to each owned Real Property Asset referred
to in such mortgage (along with any applicable affidavit pursuant to Section 255
of the tax law of the State of New York, in form and substance reasonably
acceptable to the Collateral Agent);
(i) Title Insurance/Survey. The Collateral Agent shall have received a
Date Down Endorsement to the title insurance policy obtained with respect to the
Existing Mortgage Document referred to in clause (v) of the definition of the
term "Existing Mortgage Document" from the Title Company in form and substance
reasonably acceptable to the Collateral Agent;
(j) Environmental Due Diligence. The Agents shall have received a Phase
I environmental assessment with respect to each Real Property Asset as they
shall direct, which assessment shall be prepared by an environmental consultant
retained by Agents and otherwise be in scope, form and substance acceptable to
the Agents;
(k) Intentionally Omitted.
(l) Leases. The Collateral Agent or its counsel shall have received (i)
certified true and complete copies of all material leases encumbering the Real
Property Assets, to the extent requested by the Collateral Agent, and (ii) a
duly executed amendment of each lease and sublease encumbering a Real Property
Asset between the Borrower, or lessee or sublessee, and Silversmiths or Food
Service, or lessor or sublessor, which amendment shall be in form and substance
reasonably acceptable to the Collateral Agent and shall provide that such lease
or sublease (as the case may be) shall be subject and subordinate to all
mortgages now or hereafter affecting the Real Property Assets.
(m) Evidence of Title. The Collateral Agent shall be satisfied that
each Credit Party has sufficient right, title and interest in and to the
Collateral, the Real Property Assets and other assets which it purports to own,
as set forth in the documents and other materials presented to the Agents to
enable such Credit Party to continue to grant to the Collateral Agent for the
benefit of the Secured Parties the security interests contemplated by the
Security Documents, and that, except as set forth in Section 5.23, all financing
statements, mortgages and other filings under Applicable Law necessary to
provide the Collateral Agent for the benefit of the Secured Parties with a
perfected security interest in the Pledged Securities, the Collateral and all
Real Property Assets (subject in the case of the Collateral and the Real
Property Assets, to Permitted Liens) have been filed and all taxes, recording or
other fees relating thereto have been paid, or, have been delivered to the
Collateral Agent in satisfactory form for filing;
(n) Insurance. The Administrative Agent shall have received (i) a
summary of all existing insurance coverage maintained by the Credit Parties and
their Subsidiaries which summary shall include for each insurance policy, the
policy number, the type of coverage, the policy limits and deductibles, the
insurer and the expiration date and (ii) evidence acceptable to the
Administrative Agent that the insurance policies required by Section 5.5 have
been obtained and are in full force and effect, including Certificates of
Insurance with respect to all existing insurance coverage maintained by the
Credit Parties and/or their Subsidiaries which is set forth on the summary
delivered pursuant to clause (i) above, which certificates shall comply with the
requirements set forth in Section 5.5 hereof;
(o) Payment of the Fees. The Agents (for their benefit and the benefit
of the Lenders) shall have received all Fees due and payable on or before the
Closing Date pursuant to the Fee Letter or this Credit Agreement;
(p) Notes. For each Lender that has requested that its Loans be
evidenced by a promissory note, the Administrative Agent shall have received one
or more promissory notes (in form and substance reasonably satisfactory to the
Borrower, the Administrative Agent and such Lender) each duly executed on behalf
of the Borrower, dated the date hereof and payable to the order of such Lender
in the principal amount equal to such Lender's Tranche A Term Loans, Tranche B
Term Loans and/or Revolving Credit Commitment, as applicable;
(q) Payment of Other Fees and Expenses. All out-of-pocket expenses
incurred by the Agents, the Issuing Bank and the Lenders in connection with this
Credit Agreement and the transactions contemplated hereby, including, without
limitation, all statements presented for reasonable fees and disbursements of
any financial, accounting or valuation advisors or special counsel retained by
the Agents (including, but not limited to, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel
to the Agents, and ▇▇▇▇▇▇▇ & Marsal LLC, advisor to the Agents), shall have been
paid by the Borrower;
(r) Litigation. To the Knowledge of the Borrower or any Credit Party,
no litigation, inquiry, injunction or restraining order shall be pending,
entered or threatened which involves this Credit Agreement or any of the other
Fundamental Documents or which would reasonably be expected to have a Material
Adverse Effect;
(s) Required Consents and Approvals. The Administrative Agent shall be
satisfied that all required consents and approvals have been obtained from all
Governmental Authorities with jurisdiction over the business and activities of
any Credit Party and from any other entity whose consent, waiver or approval is
required pursuant to the terms of existing contracts to which any of the Credit
Parties is bound and which the Administrative Agent in its discretion deems
reasonably necessary to the transactions contemplated hereby;
(t) Compliance with Laws. The Lenders shall be satisfied that the
transactions contemplated hereby will not violate any provision of Applicable
Law, or any order of any court or other agency of the United States or any state
thereof applicable to any of the Credit Parties or their Subsidiaries or any of
their respective properties or assets;
(u) Representations and Warranties; No Default. The representations and
warranties set forth in Article 3 hereof and in any other Fundamental Documents
then in existence shall be true and correct in all material respects, and no
Default or Event of Default shall have occurred and be continuing hereunder;
(v) Closing Certificate. The Administrative Agent shall have received a
closing certificate signed by an Authorized Officer of the Borrower,
substantially in the form of Exhibit M hereto;
(w) Accrued Interest. The Administrative Agent shall have received all
accrued and unpaid interest and fees due up to and including the Closing Date as
required pursuant to the Existing Fundamental Documents;
(x) UCC, Judgment and Tax Lien Searches. The Administrative 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 Credit Parties, and the results of such
searches shall reveal the existence of no Liens except Liens permitted by this
Credit Agreement;
(y) Securities Exchange Agreement. The Agents and their counsel shall
have received fully executed originals of the Securities Exchange Agreement;
(z) Registration Rights Agreement. The Agents and their counsel shall
have received fully executed originals of that certain Registration Rights
Agreement dated as of the date hereof by and among the Borrower and each
Purchaser, as defined therein;
(aa) Shareholder Rights Plans. The Administrative Agent shall have
received evidence satisfactory to the Administrative Agent of the termination of
the Amended and Restated Rights Agreement dated as of December 3, 1999 between
Oneida Ltd. and American Stock Transfer & Trust Co.;
(bb) Change of Control Provisions. The Administrative Agent shall have
received evidence reasonably satisfactory to the Administrative Agent that each
of the agreements, plans, policies and other documents set forth on Schedule
4.1(bb) hereto among employees, or which provide employee benefits, that contain
a change of control provision (or any similar term) that would be triggered by
the consummation of the transactions contemplated by the Securities Exchange
Agreement, have been amended, with the express written consent of all affected
participants and relevant parties (in each case if necessary) such that the
consummation of such transactions will not trigger such change of control
provision; such evidence shall include, without limitation, all amendments and
consents (in each case if necessary); and
(cc) Closing Date. All of the conditions precedent set forth in this
Section 4.1 have been satisfied or waived prior to August 16, 2004.
SECTION 4.2 Conditions Precedent to Each Loan and Each Letter of
Credit. The obligation of the Issuing Bank to issue each Letter of Credit and of
the Lenders to make each Loan and to participate in each Letter of Credit
(including the initial Loan and/or Letter of Credit) are subject to the
following conditions precedent:
(a) Notice. The Administrative Agent shall have received a notice with
respect to such Borrowing or the Issuing Bank and the Administrative Agent shall
have received a notice with respect to such Letter of Credit as required by
Section 2.3, 2.4 or Section 2.21 hereof, as applicable;
(b) Borrowing Certificate. The Administrative Agent shall have received
a Borrowing Certificate with respect to such Borrowing (other than in the case
of a Borrowing that is a Swingline Loan), duly executed by an Authorized Officer
of the Borrower;
(c) Representations and Warranties. The representations and warranties
set forth in Article 3 hereof and in the other Fundamental Documents shall be
true and correct in all
material respects on and as of the date of each Borrowing or issuance of a
Letter of Credit (except to the extent that such representations and warranties
expressly relate to an earlier date) with the same effect as if made on and as
of such date;
(d) No Event of Default. On the date of each Borrowing or issuance of a
Letter of Credit hereunder, no Default or Event of Default shall have occurred
and be continuing, nor shall any such event occur by reason of the making of the
requested Revolving Credit Loan or the issuance of the requested Letter of
Credit;
(e) Total Revolving Credit Commitment. After giving effect to the
Revolving Credit Loans or Swingline Loans to be made or Letters of Credit to be
issued, the aggregate principal amount outstanding of all Revolving Credit Loans
plus all Swingline Loans plus the then current L/C Exposure shall not exceed the
Total Revolving Credit Commitment; and
(f) Payment of Other Fees and Expenses. All out-of-pocket expenses
incurred by the Agent and the Issuing Bank in connection with this Credit
Agreement and the transactions contemplated hereby, including, without
limitation, all statements presented for reasonable fees and disbursements of
any financial, accounting or valuation advisors or special counsel retained by
the Agents (including, but not limited to, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel
to the Agents, and ▇▇▇▇▇▇▇ & Marsal LLC, advisor to the Agents), shall have been
paid by the Borrower.
Each request for a Borrowing (including, without limitation, a Borrowing that is
a Swingline Loan) or issuance of a Letter of Credit hereunder shall be deemed to
be a representation and warranty by the Borrower on the date of such Borrowing
or issuance of a Letter of Credit hereunder as to the matters specified in
paragraphs (c), (d) and (e) of this Section 4.2.
5. AFFIRMATIVE COVENANTS
From the date hereof and for so long as any Commitments shall be in
effect, any amount remains outstanding with respect to any Loan, any Letter of
Credit shall remain outstanding (or not cash collateralized in an amount equal
to 105% of the then current L/C Exposure) or any Obligation remains unpaid or
unsatisfied, the Borrower agrees to, and will cause each other Credit Party to,
unless the Required Lenders shall otherwise consent in writing:
SECTION 5.1 Financial Statements and Reports. (a) Furnish or cause to
be furnished to the Agents, the Issuing Bank and each of the Lenders:
(i) As soon as available, but in any event within ninety (90) days
after the end of each fiscal year of the Borrower (commencing with fiscal
year ending January 2005), the consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries, in each case as at the end of, and the
related consolidated statements of income, stockholders' equity and cash
flows for, such fiscal year, and the corresponding figures as at the end
of, and for, the preceding fiscal year, certified by and accompanied by an
unqualified report and opinion of BDO ▇▇▇▇▇▇▇ LLP, any other Big Four
accounting firm or another independent public accountant of recognized
standing as shall be retained by the Borrower and be reasonably
satisfactory to the Administrative Agent, which report
and opinion shall be prepared in accordance with generally accepted
auditing standards relating to reporting and which report and opinion shall
contain no material exceptions or qualifications except for qualifications
relating to accounting changes (with which such independent public
accountants concur) in response to FASB releases or other authoritative
pronouncements;
(ii) As soon as available, but in any event within forty-five (45)
days after the end of each of the first three fiscal quarters of each of
its fiscal years (commencing with the fiscal quarter ending July 2004), the
unaudited and consolidated and consolidating (by major business line)
balance sheets of the Borrower and its Consolidated Subsidiaries as at the
end of, and the related unaudited consolidated statements of income,
divisional statements of income, stockholders' equity and cash flows for,
such quarter, and for the portion of the fiscal year through the end of
such quarter, and the corresponding figures as at the end of such quarter,
and for the corresponding period, in the preceding fiscal year, together
with a certificate signed by an Authorized Officer of the Borrower, on
behalf of the Borrower, to the effect that such financial statements, while
not examined by independent public accountants, reflect, in the opinion of
the Borrower, all adjustments necessary to present fairly the financial
position of the Borrower and its Consolidated Subsidiaries as at the end of
the fiscal quarter and the results of operations for the quarter then ended
in conformity with GAAP, subject to normal year-end audit adjustments and
the absence of footnotes;
(iii) As soon as available, but in any event within thirty (30) days
after the end of each month, (A) the unaudited, consolidated and
consolidating (by major business line) balance sheets of the Borrower and
its Consolidated Subsidiaries, as at the end of such month, and the related
consolidated statements of income and cash flows for, such month, and for
the portion of the fiscal year through the end of such month, and the
corresponding figures as at the end of such month, and for the
corresponding period as set forth in the Borrower's current operating
budget, together with a certificate signed by an Authorized Officer of the
Borrower, on behalf of the Borrower, to the effect that such financial
statements, while not examined by independent public accountants, reflect,
in the opinion of the Borrower, all adjustments necessary to present fairly
the financial position of the Borrower and its Consolidated Subsidiaries as
at the end of the month and the results of operations for the month then
ended in conformity with GAAP, subject to normal year end audit adjustments
and the absence of footnotes, (B) a summary account receivable aging report
as of the end of the month along with a schedule showing the 10 largest
accounts receivable at such date, (C) an accounts payable report as of the
end of the month showing the 10 largest accounts payable and their amounts,
as well as total accounts payable, and (D) an inventory report showing, by
product description, the levels of raw materials and supplies,
work-in-process and finished goods as of the end of the month, and showing
changes from the preceding month and year-to-date.
(iv) Simultaneously with the delivery of the statements referred to
in paragraphs (i) and (ii) of this Section 5.1(a), a certificate of an
Authorized Officer of the Borrower in form and substance reasonably
satisfactory to the Administrative Agent (A) stating whether or not such
Authorized Officer has Knowledge of any condition or event which would
constitute an Event of Default or Default and, if so, specifying each such
condition or event and the nature thereof and what action any Credit Party,
or any Subsidiary of a Credit Party, is taking or proposes to take with
respect thereto, (B) demonstrating in reasonable detail compliance with the
provisions of Sections 6.8 through 6.11 and 6.22 hereof and (C) setting
forth a schedule of any extraordinary losses and any non recurring charges
or restructuring charges added back to Consolidated Net Income in order to
calculate Consolidated EBITDAR (such schedule shall be substantially in the
form of Exhibit N attached hereto and include, but not be limited to,
information regarding inventory writedowns, severance costs, writedowns to
goodwill and barter credits, restructuring charges and professional fees);
(v) As soon as available, but in any event within forty-five (45) days
after the end of each month, a monthly monitoring report to be reasonably
acceptable to the Administrative Agent, which report shall include, but not
be limited to, monthly performance results of the Credit Parties by
division and an analysis of such results;
(vi) For so long as may be requested by the Administrative Agent, as
soon as available, but in any event on Friday of each week, a weekly
rolling 13-week cash flow projection for the following 13 weeks, together
with actual results and a comparison for the immediately preceding week;
(vii) Promptly upon their becoming available, copies of all financial
audits, studies, reports or evaluations prepared for, or submitted to, any
of the Credit Parties by the Borrower's independent public accountant,
including, without limitation, any comment letter submitted by the
Borrower's independent public accountant to management in connection with
their annual audit;
(viii) Promptly upon their becoming available, copies of all
registration statements, proxy statements, notices and reports which the
Borrower or any other Credit Party files with any securities exchange or
with the SEC or any successor agency; and
(ix) Within thirty (30) days after the end of each fiscal year, a set
of financial projections for the Borrower and its Consolidated Subsidiaries
for the next fiscal year in a form and in reasonable detail satisfactory to
the Administrative Agent.
(b) Furnish or cause to be furnished to the Administrative Agent:
(i) Promptly, and in any event within five (5) Business Days, after
receipt of any material notice or correspondence from any company or agent
for any company providing insurance coverage to any Credit Party or any
Subsidiary of a Credit Party relating to any material loss or any loss in
excess of $1,000,000 with respect to any Real Property Asset, copies of
such notice and/or correspondence;
(ii) Without limiting any Credit Party's other obligations to give
notice under the Fundamental Documents, within twenty (20) days of the end
of each calendar quarter, a schedule setting forth each sale or other
disposition of any asset or property effected outside the ordinary course
of business during such quarter, the date of each such sale or disposition,
the sales price with respect to such asset or property sold or disposed of
and
the Net Cash Proceeds received during such quarter from each such sale
or disposition; and
(iii) From time to time such additional information regarding the
financial condition or business of any of the Credit Parties or any of
their respective Subsidiaries, any Real Property Asset or the Collateral,
as the Administrative Agent, the Collateral Agent, the Issuing Bank or any
Lender, acting through the Administrative Agent, may reasonably request,
including, without limitation, copies of all management projections
prepared at the reasonable request of any of the Agents.
SECTION 5.2 Compliance with Laws. (a) Except as set forth on Schedule
5.2, do or cause to be done all things necessary (i) to preserve, renew and keep
in full force and effect its existence, material Proprietary Rights, material
Regulatory Licenses, other material licenses, permits, franchises, certificates
(including, without limitation, certificates of need), authorization,
accreditations, easements, rights of way and other rights, consents and
approvals in each case, necessary in order to own their respective material
properties and assets or to carry on their respective businesses and (ii) to
comply in all material respects with all applicable statutes, ordinances, rules,
regulations and orders of, and all applicable restrictions or requirements
imposed by, any Governmental Authority (including, without limitation,
Environmental Laws, all zoning and building codes and ERISA) or any other
Requirements except where the necessity of compliance therewith is contested in
good faith by the appropriate proceedings; provided, in the case of each such
contested proceeding, that the applicable Credit Party or Subsidiary of a Credit
Party shall have set aside on its books reasonable reserves (the presentation of
which is segregated to the extent required by GAAP) with respect thereto if such
reserves are required by GAAP.
(b) Obtain or make all further authorizations, approvals, orders,
consents, licenses, registration or filings from or with any Governmental
Authority required for the performance by any Credit Party of this Credit
Agreement and the other Fundamental Documents to which it is a party.
SECTION 5.3 Maintenance of Properties. (a) Keep the Borrower's, the
other Credit Parties' and any Credit Party Subsidiary's material tangible
properties including, without limitation, each Real Property Asset, in good
repair, working order and condition (ordinary wear and tear and damage by
casualty excepted) and (b) from time to time (i) subject to the terms hereof,
make all necessary and proper repairs, renewals, replacements, restorations,
additions and improvements thereto and (ii) comply with the provisions of all
material Regulatory Licenses, leases and other Material Agreements to which it
is a party so as to prevent any loss or forfeiture thereof or thereunder unless
compliance therewith is being currently contested in good faith by appropriate
proceedings and appropriate reserves have been established in accordance with
GAAP.
SECTION 5.4 Notice of Material Events. (a) Promptly upon, but in any
event within seven (7) Business Days after, an Authorized Officer or other
executive officer of any Credit Party obtaining Knowledge of (i) any (X) Default
or (Y) Event of Default, (ii) any Material Adverse Effect, (iii) any action,
event or condition which would reasonably be expected to have a Material Adverse
Effect, (iv) any change in the name, corporate structure or the
jurisdiction of organization of any Credit Party, (v) any other event which
could reasonably be expected to materially decrease the value of the Collateral
as a whole, (vi) any Person giving any written notice to any Credit Party or
taking any other action to enforce remedies with respect to a claimed default or
event or condition of the type referred to in paragraphs (g), (h), (i) or (j) of
Article 7, (vii) any strike, walkout, work stoppage or other material labor
difficulty with respect to any Credit Party or Subsidiary of a Credit Party,
(viii) any pending or contemplated condemnation proceeding affecting any Real
Property Asset which would result in Net Cash Proceeds of $1,000,000 or more or
(ix) any revocation, suspension, termination, rescission, non-renewal,
forfeiture or similar action by any Governmental Authority to take any of the
foregoing actions with respect to a material Regulatory License or any material
amendment to any Regulatory License, give written notice thereof to the
Administrative Agent specifying the nature and period of existence of any such
condition or event, or specifying the notice given or action taken by such
Person and the nature of such claimed Event of Default or condition and what
action any Credit Party has taken, is taking and proposes to take with respect
thereto.
(b) Promptly upon, but in any event within ten (10) Business Days
after, an Authorized Officer or other executive officer of any Credit Party
obtaining Knowledge of (i) the institution of, or threat of, any action, suit,
proceeding, investigation or arbitration by any Governmental Authority or other
Person against or affecting any Credit Party or any of its assets including,
without limitation, any Real Property Asset or Regulatory License but excluding
any condemnation proceeding or any sale or disposition in lieu of condemnation
with respect to any Real Property Asset which would result in Net Cash Proceeds
of less than $1,000,000 and (ii) any material development in any such action,
suit, proceeding, investigation or arbitration (whether or not previously
disclosed to the Administrative Agent), which, in the case of clause (i) or (ii)
above, is reasonably likely to have a Material Adverse Effect, such Credit Party
shall promptly give written notice thereof to the Administrative Agent and
provide such other information as may be available to it to enable the
Administrative Agent to evaluate such matters; and, in addition to the
requirements set forth in clauses (i) and (ii) of this subsection (b), such
Credit Party upon request shall promptly give notice to the Administrative Agent
of the status of any action, suit, proceeding, investigation or arbitration
covered by a report delivered to the Administrative Agent pursuant to this
subsection (b) above and provide such other information as may be reasonably
available to it to enable the Agents to evaluate such matters.
SECTION 5.5 Insurance. (a) Keep the Borrower's, the other Credit
Parties' and any Credit Party Subsidiary's assets, or cause their tenants under
applicable leases to keep their assets, which are of an insurable character
(including, without limitation, all Real Property Assets and all Collateral)
insured at all times with financially sound and reputable insurance companies,
against such risks, in such amounts, and with such deductions as is customary
for companies of the same or similar size in the same or similar businesses;
provided, that such insurance shall (i) insure the assets against all risk of
loss or damage including, without limitation, loss by fire, explosion, theft and
such other casualties as may be reasonably satisfactory to the Administrative
Agent and the Collateral Agent, (ii) include insurance against flood hazards if
any asset of the Credit Party or such Subsidiary is in an area designated as
having special flood hazards under the National Flood Insurance Act of 1968, the
Flood Disaster Protection Act of 1973 and the National Flood Insurance Reform
Act of 1994, and any other flood insurance act, each as may be amended, or any
other law, or interpretations or regulations thereunder, and (iii) insure the
Credit Parties and their Subsidiaries, and the Agents, the Issuing
Bank and the Lenders against comprehensive general and automobile liability,
such policies to be in accordance with customary industry practice and in such
form and amounts and having such coverage as is customary for companies of the
same or similar size in the same or similar businesses or as otherwise may be
reasonably satisfactory to the Administrative Agent and the Collateral Agent.
All such insurance shall (i) contain a Lender's Loss Payable Endorsement in
favor of the Collateral Agent on behalf of the Secured Parties in all loss or
damage insurance policies, (ii) provide that no cancellation, material reduction
in amount or material change in coverage thereof shall be effective until at
least thirty (30) days after written notice to the Administrative Agent and the
Collateral Agent (on behalf of the Secured Parties) thereof, (iii) name the
Collateral Agent (for the benefit of the Secured Parties) as loss payee for
physical damage insurance with respect to property which constitutes Collateral
or a Real Property Asset as to which a Lien has been granted to the Collateral
Agent, and as an additional insured for liability insurance (provided, that with
respect to property to which a Lien permitted hereunder has been granted to
another creditor, such other creditor may also be named as loss payee, with
payment to be made as their interests may appear and as an additional insured,
with the Collateral Agent), and (iv) be reasonably satisfactory in all other
respects (including deductibles) to the Administrative Agent and the Collateral
Agent.
(b) Upon the request of the Administrative Agent or the Collateral
Agent, furnish to the Administrative Agent and the Collateral Agent, an updated
schedule describing all insurance maintained by the Credit Parties, which
schedule shall set forth, for each insurance policy, the policy number, the type
of coverage, the policy limits and deductibles, the insurer and the expiration
date.
(c) Furnish to the Administrative Agent and the Collateral Agent, to
the extent not previously delivered, certificates of insurance for all insurance
maintained by a Credit Party which certificates shall comply with the
requirements of this Section 5.5 set forth above and contain signatures (by
facsimile or email transmission) of duly authorized representatives of the
insurer, at all times prior to policy termination, cessation or cancellation.
(d) Maintain such other insurance or self insurance as may be required
by Applicable Law or any agreement to which any Credit Party or any Subsidiary
thereof is a party or as either the Administrative Agent or the Collateral Agent
may reasonably request.
SECTION 5.6 Books and Records. (a) Maintain or cause to be maintained
at all times, in accordance with GAAP, true and complete books and records of
its financial operations.
(b) Provide any Agent, the Issuing Bank and their representatives (at
the Borrower's expense) or any Lender and its representatives (at such Lender's
expense) access to such books and records and to any of its properties or assets
upon reasonable notice and during regular business hours in order that such
Agent, the Issuing Bank or such Lender (as applicable) may make such audits and
examinations and make abstracts from such books, accounts, records and other
papers of a Credit Party or a Subsidiary of a Credit Party pertaining to the
Collateral or any Real Property Asset and upon notification to the Borrower,
permit such Agent, the Issuing Bank or such Lender (as applicable) or its
representatives to discuss the affairs, finances and accounts with, and be
advised as to the same by, officers and independent accountants, all as
such Agent, the Issuing Bank or such Lender (as applicable) may deem appropriate
for the purpose of verifying any report delivered by any Credit Party to any of
the Agents, the Issuing Bank and/or the Lenders pursuant to this Credit
Agreement or for otherwise ascertaining compliance with this Credit Agreement or
any other Fundamental Document.
SECTION 5.7 Observance of Material Agreements. (a) Duly observe and
perform all terms and conditions of any Material Agreement and diligently
protect and enforce the rights of the Credit Parties and their Subsidiaries
under all such Material Agreements to the extent and in a manner consistent with
prudent business judgement.
(b) Promptly provide the Agents copies of any and all agreements
amending, altering, modifying, waiving or supplementing in any material respect
any Material Agreement.
(c) Maintain in effect all material Regulatory Licenses necessary to
the operation of its business.
SECTION 5.8 Taxes and Charges. Duly pay and discharge, or cause to be
paid and discharged, before the same shall become in arrears (after giving
effect to applicable extensions), all taxes, assessments, levies and other
governmental charges, in any material amount imposed upon any Credit Party or
Subsidiary of a Credit Party or its properties, sales and activities, or any
part thereof, or upon the income or profits therefrom, as well as all claims for
labor, materials, or supplies which if unpaid might by law become a Lien upon
any property of any Credit Party or any Subsidiary of a Credit Party; provided,
however, that any tax, assessment, levy, governmental charge or claim for labor,
material or supplies need not be paid if the validity or amount thereof shall
currently be contested in good faith by appropriate proceedings and if such
Credit Party or Subsidiary of a Credit Party shall have set aside on its books
reasonable reserves (the presentation of which is segregated to the extent
required by GAAP) with respect thereto if such reserves are required by GAAP;
and provided, further, that such Credit Party or Subsidiary of a Credit Party
will pay all such taxes, assessments, levies or other governmental charges and
claims for labor, material or supplies forthwith upon the commencement of
proceedings to foreclose any Lien which may have attached as security therefor.
SECTION 5.9 Liens. Defend the Collateral (including, without
limitation, the Pledged Securities and the Real Property Assets) against any and
all Liens, claims and other impediments howsoever arising, other than Permitted
Liens, and in any event defend the same against any attempted foreclosure.
SECTION 5.10 Further Assurances; Security Interests. (a) Upon the
request of the Collateral Agent, promptly execute and deliver or cause to be
executed and delivered, at the cost and expense of the Credit Parties, such
further instruments as may be appropriate in the reasonable judgment of the
Collateral Agent or its counsel, to provide the Collateral Agent for the benefit
of the Secured Parties a first perfected Lien in the Collateral and all the Real
Property Assets, and any and all documents (including, without limitation, an
amendment or supplement of any financing statement and a continuation statement
or other statement) for filing under the provisions of the UCC and the rules and
regulations thereunder, or any other Applicable Law of the United States or any
other jurisdiction which the Collateral Agent may deem reasonably
necessary or advisable, and perform or cause to be performed such other
ministerial acts which are reasonably necessary or advisable, from time to time,
in order to grant and maintain in favor of the Collateral Agent for the benefit
of the Secured Parties the security interest in the Collateral and the Real
Property Assets contemplated hereunder and under the other Security Documents,
subject only to Permitted Liens.
(b) Promptly undertake to deliver or cause to be delivered to the
Collateral Agent from time to time such other documentation, consents,
authorizations and approvals, in form and substance reasonably satisfactory to
the Collateral Agent, as the Collateral Agent or its counsel shall deem
reasonably necessary or advisable to perfect or maintain the Liens of the
Collateral Agent for the benefit of the Secured Parties.
SECTION 5.11 Environmental Laws. (a) Promptly notify the Administrative
Agent upon any Credit Party gaining actual knowledge of any material violation
or non-compliance with, or material liability or potential liability under, any
Environmental Laws, and promptly furnish to the Administrative Agent all written
notices of any nature which any Credit Party or any Subsidiary of a Credit Party
may receive from any Governmental Authority or other Person alleging any
violation, or potential violation or non-compliance with, or liability or
potential liability under, any Environmental Laws.
(b) Comply in all material respects with and use reasonable efforts to
ensure material compliance by all tenants and subtenants with all Environmental
Laws, and obtain and comply in all material respects with and maintain and use
reasonable efforts to ensure that all tenants and subtenants obtain and comply
in all material respects with and maintain any and all Environmental Permits
required by Environmental Laws.
(c) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under all
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities. Any order or directive
whose lawfulness is being contested in good faith by appropriate proceedings
shall be considered a lawful order or directive when such proceedings, including
any judicial review of such proceedings, have been finally concluded by the
issuance of a final non-appealable order; provided, however, that the
appropriate Credit Party shall have set aside on its books reasonable reserves
(the presentation of which is segregated to the extent required by GAAP) with
respect thereto.
(d) Indemnify, defend and hold harmless the Agents, the Issuing Bank,
the Lenders and the other Secured Parties, and their respective officers,
directors, shareholders, employees, agents, representatives, successors and
assigns from and against any liability, fine, penalty, loss, damage, suit,
settlement, action, expense and cost (including, but not limited to, reasonable
attorneys' fees (including internally allocated charges of in-house legal
counsel of the Agents) and environmental consultant fees), arising out of or
relating to: (A) the presence or Release of any Hazardous Materials at, to, on,
under, from, or about any Premises; (B) any violation of any Environmental Law
or Environmental Permit by any Credit Party or any Subsidiary of any Credit
Party; (C) the transportation or the arrangement for the transportation,
handling, treatment, or disposal of any Hazardous Materials to any location
other than any Premises by or on behalf of any Credit Party or any Subsidiary of
any Credit Party; (D) any
Environmental Claim against any Credit Party or any Subsidiary of any Credit
Party relating to any Premises or any activities conducted at any Premises; and
(E) any breach of any environmental representation or covenant in this Credit
Agreement or any other Fundamental Document (but excluding any such liability,
fine, penalty, loss, damage, suit, settlement, action, expense or cost of an
indemnified party to the extent incurred by reason of the gross negligence or
willful misconduct of such indemnified party as determined by a final judgment
of a court of competent jurisdiction). The obligations of the Borrower under
this Section 5.11(d) shall survive the Facility Termination Date, the
termination of this Credit Agreement, the payment of the Obligations and the
expiration, termination and/or cancellation of the Letters of Credit hereunder
indefinitely.
SECTION 5.12 Subsidiary Guarantees and Collateral. Cause (i) each
Person which becomes a domestic Subsidiary after the Closing Date (whether by
creation, acquisition, expansion or otherwise) and (ii) any Dissolvable Entity,
upon such entity acquiring assets in an aggregate amount in excess of $10,000,
to promptly execute and deliver to the Administrative Agent or the Collateral
Agent, as the case may be, (a) an Instrument of Assumption and Joinder pursuant
to which the new Subsidiary shall become a party to the Amended and Restated
Consolidated Subsidiary Guaranty, the Amended and Restated Consolidated
Subsidiary Subordination Agreement, the Security Documents and the Intercreditor
Agreement, and (b) such other financing statements, documents and certificates
as may be requested by the Administrative Agent or the Collateral Agent to
establish the organization and good standing of such Subsidiary, the due
authorization, execution and performance of the instruments referred to in
clause (a) above and the perfection of the Liens created by the Security
Documents, including, without limitation, appropriate UCC-1s, Amended and
Restated Mortgages, if applicable, other security documents, organizational
documents and written opinion of counsel. With respect to each new Subsidiary
formed or acquired after the Closing Date, the Borrower and each Credit Party
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 domestic Subsidiary and 65% of the Capital Stock of each new foreign
Subsidiary), together with undated stock powers duly executed in blank.
SECTION 5.13 Lease Agreements. From time to time (i) furnish to the
Administrative Agent such information and reports regarding any lease agreement
with respect to a Real Property Asset to which a Credit Party or any Subsidiary
thereof is a party as the Administrative Agent may reasonably request and (ii)
upon the occurrence and continuation of an Event of Default and the reasonable
request of the Administrative Agent, make such demands and requests for
information, reports or action to the other parties to a lease agreement to
which a Credit Party or any Subsidiary is a party, as the Credit Party or
Subsidiary is entitled to make under each such lease agreement.
SECTION 5.14 After-Acquired Real Property Assets. If, after the Closing
Date, any Credit Party purchases, leases (other than space leased for, and
primarily used for, retail purposes) or otherwise acquires any Real Property
Asset with a fair market value in excess of $250,000, or if any existing
mortgage or deed of trust encumbering any Real Property Asset in favor of a
third party is released (a) promptly, but in any event within thirty (30) days,
after such purchase, lease (other than space leased for, and primarily used for,
retail purposes) or other acquisition or release, provide written notice thereof
to the Administrative Agent and the
Collateral Agent, setting forth with specificity a description of such Real
Property Asset acquired, a title commitment, a survey (if available) and such
Credit Party's good faith estimate of the current fair market value of such Real
Property Asset and (b) if the Collateral Agent so requests, the applicable
Credit Party shall promptly execute and deliver to the Collateral Agent, a
mortgage and such other documents or instruments as the Collateral Agent shall
request with respect to such Real Property Asset (including, without limitation,
a title insurance policy and a survey). Such Credit Party shall not be obligated
to execute and deliver such mortgage if the applicable Real Property Asset is
leased by such Credit Party and such lease (or a memorandum thereof) is not
recorded in the applicable real property recording office or such lease
specifically prohibits the granting of such mortgage or specifically requires
the landlord's consent thereto; provided, however, at the time of entry into
such lease such Credit Party shall have used commercially reasonable efforts to,
as the case may be, cause such lease (or such memorandum) to be so recorded,
omit such prohibition from such lease and/or obtain a waiver of the same or omit
such landlord's consent right from such lease and/or obtain such landlord's
consent.
SECTION 5.15 Lender Meetings. From time to time as requested by the
Administrative Agent, the Required Revolving Credit Lenders, or the Required
Tranche A Term Loan Lenders, participate in, and cause an Authorized Officer of
the Borrower and the Chief Restructuring Officer, if still retained by the
Borrower at such time, to be available for and to participate in, a meeting of
Lenders to be held, at reasonable intervals, at locations and at times requested
by the Administrative Agent (or, if applicable, the Required Revolving Credit
Lenders or the Required Tranche A Term Loan Lenders).
SECTION 5.16 Cash Management System.
(a) Maintain in all material respects the Borrower's and the Credit
Parties' current cash management system as in effect as of the date hereof or
cause to be maintained another cash management system reasonably acceptable to
the Administrative Agent; it being understood that the cash management system
existing on the Closing Date is acceptable provided the Borrower shall use
reasonable efforts to comply with Section 5.16(e).
(b) The Credit Parties shall promptly transfer or cause to be
transferred all funds from the collection of Receivables to the Bank of America
Lock Box Account or deposit any collections of Receivables received directly by
any Credit Party in the Concentration Account.
(c) So long as no Event of Default shall have occurred and be
continuing, the Credit Parties shall have free access to the funds in the
Concentration Account. Upon the occurrence and during the continuation of an
Event of Default, the Collateral Agent (for the benefit of the Secured Parties),
subject to Applicable Law, shall have the right to establish sole dominion and
control over the Concentration Account and the balances in such account may be
applied toward the payment of the Obligations in accordance with the terms of
Intercreditor Agreement.
(d) The Credit Parties shall transfer or cause to be transferred all
funds in excess of $5,000 maintained in the regional bank accounts set forth on
Schedule 3.28 to the Concentration Account on a weekly basis.
(e) Within 20 days after the Closing Date, or such greater period as
the Administrative Agent may agree, the Borrower shall deliver to the Collateral
Agent an account control agreement or a blocked account agreement (in form and
substance reasonably satisfactory to the Collateral Agent) with respect to the
Bank of America Lock Box Account duly executed by the Borrower and Bank of
America.
SECTION 5.17 Credit Parties to Hold in Trust. Upon the occurrence and
during the continuance of an Event of Default, upon the request of the
Administrative Agent or the Collateral Agent, each of the Credit Parties will,
upon receipt by it of any revenue, income, profits or other sums in which a
security interest is granted by the Security Documents, payable pursuant to any
agreement or otherwise, or of any check, draft, note, trade acceptance or other
instrument evidencing an obligation to pay any such sum, hold the sum or
instrument in trust for the Collateral Agent, segregate such sum or instrument
from their own assets and forthwith, without any notice, demand or other action
whatsoever (all notices, demands, or other actions on the part of any of the
Agents or any other Secured Party being expressly waived), endorse, transfer and
deliver any such sums or instruments or both, to the Collateral Agent to be
applied to the repayment of the Obligations in accordance with the terms of
Intercreditor Agreement.
SECTION 5.18 ERISA Plan Compliance and Reports. Furnish to the
Administrative Agent (i) as soon as possible, and in any event within ten (10)
days after any Credit Party has the knowledge that (A)(1) any Reportable Event
with respect to any Plan has occurred or (2) that a contributing sponsor (as
defined in Section 4001(a)(13) of ERISA) of a Plan is subject to the advance
reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
..64, .65, .66, .67 or .68 of PBGC Regulation 29 C.F.R. Section 4043 is
reasonably expected to occur with respect to such Plan within the following 30
days, a statement of an executive officer of the Credit Party, setting forth on
behalf of such Credit Party the reasonably full details as to such Reportable
Event and the action which it proposes to take with respect thereto (except to
the extent that the Credit Party has previously delivered to the Administrative
Agent a certificate and notices (if any) concerning such event pursuant to the
clause (2) above), together with a copy of the notice, if any, required to be
filed of such Reportable Event given to the PBGC or (B) (1) an accumulated
funding deficiency has been incurred or an application has been made to the
Secretary of the Treasury for a waiver or modification of the minimum funding
standard or an extension of any amortization period under Section 412 of the
Code with respect to a Plan under Title IV of ERISA (other than with respect to
a deficiency, application or extension relating to or in connection with the
2004 plan year or any part thereof of any Plan), (2) proceedings have been
instituted to terminate a Plan if such Plan is subject to Title IV of ERISA, or
(3) any such Credit Party or ERISA Affiliate will incur any liability to or on
account of the termination of or withdrawal from a Plan subject to Title IV of
ERISA under Section 4062 or 4063 of ERISA, a statement of an executive officer
of the Credit Party, setting forth reasonably full details as to such event and
the action the applicable Credit Party proposes to take with respect thereto,
(ii) promptly upon request of the Administrative Agent, copies of each annual
and other report with respect to each Plan and (iii) promptly after receipt
thereof, a copy of any notice any Credit Party or ERISA Affiliate may receive
from the PBGC relating to the PBGC's intention to terminate any Plan subject to
Title IV of ERISA, to appoint a trustee to administer any Plan subject to Title
IV of ERISA or to take any action relating to any Credit Party or ERISA
Affiliate's failure to satisfy the minimum funding standards under Section 412
of the Code with respect to any Plan.
SECTION 5.19 Disclosure of Transaction. File on the Closing Date or as
soon as reasonably practicable thereafter, a summary of the material aspects of
the transactions contemplated by the Fundamental Documents on Form 8-K or other
periodic report permitted to be filed under the Exchange Act with the SEC (the
"Released Information") it being agreed that the Released Information shall
include, without limitation, (i) a summary of the principal terms of this Credit
Agreement and the other Fundamental Documents (and such filing shall include the
same as exhibits) and (ii) such other information as may be necessary to make
such summary in light of the circumstances under which such statements are made
not misleading. In addition, on the Closing Date, or as soon as reasonably
practicable thereafter, the Company shall issue a press release summarizing the
Released Information. The disclosure of the Released Information contemplated in
this Section 5.19 may contain cautionary statements and disclosures regarding
the forward looking nature of the disclosed information.
SECTION 5.20 Board of Directors. As soon as practicable, but in no
event later than ten (10) Business Days following the notice from the
Administrative Agent disclosing the directors to be selected pursuant to Section
5.20(iii), which notice shall be delivered no later than forty-five (45) days
after the Closing Date, the Borrower shall cause to be constituted a new board
of directors which shall consist of nine (9) directors composed of (i) the chief
executive officer of the Borrower, (ii) two (2) existing independent members of
the Borrower's board of directors who shall be satisfactory to the Existing
Noteholders and the Existing Lenders and (iii) six (6) directors to be selected
by the Existing Lenders and the Existing Noteholders; provided, that following
the election of the new board of directors pursuant to this Section 5.20, the
majority of the entire board of directors of the Borrower shall be composed of
independent directors. It being understood that the Borrower shall only be
required to constitute a new board of directors pursuant to this Section 5.20
one time.
SECTION 5.21 Sale Proceeds Collateral Account. Within two (2) Business
Days of the receipt of any proceeds upon the sale or disposition of the assets
of Encore, as permitted by Section 6.6(a)(iv) hereof, deposit $4,000,000 in the
Sale Proceeds Collateral Account. So long as no Event of Default shall have
occurred and be continuing, amounts held in the Sale Proceeds Collateral Account
may be released by the Administrative Agent, to the Borrower, with the consent
of the Required Lenders. In the event a Default or an Event of Default has
occurred and is then continuing, the Administrative Agent may deposit any or all
amounts held in the Sale Proceeds Collateral Account in the Collateral Account
(as defined in the Intercreditor Agreement) and apply such amounts to the
repayment of the Obligations in accordance with Section 5 of the Intercreditor
Agreement.
SECTION 5.22 Modification of Existing Standby L/C Agreements. Within
forty-five (45) days of the Closing Date, modify the Existing Standby L/C
Agreements in a manner reasonably satisfactory to the Administrative Agent such
that the Existing Standby L/C Agreements are consistent with the terms of this
Credit Agreement.
SECTION 5.23 Real Estate Matters.
(a) Within five (5) Business Days of the Closing Date, deliver to the
Collateral Agent a survey (which may be an updated survey) of each owned Real
Property Asset set forth on Schedule 5.23(a), prepared by a surveyor and in form
and substance acceptable to the Collateral Agent.
(b) Within five (5) Business Days of the Closing Date, deliver to the
Agents evidence acceptable to the them that none of the owned Real Property
Assets (other than those set forth on Schedule 3.23(c)), is located in an area
identified as an "flood plain area" or a similar area under Applicable Law.
(c) Within ten (10) Business Days of the Closing Date, deliver to the
Collateral Agent the duly executed Amended and Restated Mortgage referred to in
clauses (iii) and (iv) of the definition of the term "Amended and Restated
Mortgage" with respect to each owned Real Property Asset referred to in such
mortgages (along with any applicable affidavit pursuant to Section 255 of the
tax law of the State of New York, in form and substance reasonably acceptable to
the Collateral Agent). Upon the delivery of the Amended and Restated Mortgage
referred to in the previous sentence the Borrower shall pay all taxes, recording
or other fees relating thereto.
(d) Within five (5) Business Days of the Closing Date, deliver to the
Collateral Agent the duly executed Amended and Restated Mortgage referred to in
clauses (i) and (ii) of the definition of the term "Amended and Restated
Mortgage" with respect to each owned Real Property Asset referred to in such
mortgages (along with any applicable affidavit pursuant to Section 255 of the
tax law of the State of New York, in form and substance reasonably acceptable to
the Collateral Agent). Upon the delivery of the Amended and Restated Mortgage
referred to in the previous sentence the Borrower shall pay all taxes, recording
or other fees relating thereto.
(e) Upon delivery of the Amended and Restated Mortgage referred to in
Section 5.23(c) above, deliver to the Collateral Agent the written opinion of
Shearman & Sterling LLP, counsel to the Credit Parties addressed to the Agents,
the Issuing Bank, the Lenders and the other Secured Parties with respect to such
matters relating to the Amended and Restated Mortgages referred to in Section
5.23(c) and (d) above as may be reasonably requested by the Administrative Agent
and its counsel, which opinion shall be in form and substance reasonably
satisfactory to the Administrative Agent and its counsel;
6. NEGATIVE COVENANTS
From the date hereof and for so long as any Commitments shall be in
effect, any amount remains outstanding with respect to any Loan, any Letter of
Credit shall remain outstanding (or not cash collateralized in an amount equal
to 105% of the then current L/C Exposure) or any other Obligation remains unpaid
or unsatisfied, the Borrower agrees that, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, and will not cause or
permit its Subsidiaries to:
SECTION 6.1 Limitations on Indebtedness. Incur, create, assume or
suffer to exist any Indebtedness, L/C Indebtedness or Intercompany Indebtedness,
other than:
(a) the Indebtedness and other Obligations under this Credit Agreement,
and any Indebtedness extending, renewing or refinancing all or any portion of
the Indebtedness and/or other Obligations under this Credit Agreement; provided,
that the terms of any refinancing of the Indebtedness and other Obligations
under this Credit Agreement, other than a Permitted Refinancing, shall have been
approved in writing by the Required Lenders;
(b) existing Indebtedness or commitments to advance such Indebtedness
and L/C Indebtedness described on Schedule 6.1(b) hereto and any extension,
renewal or refinancing of all or any portion of the Indebtedness on Schedule
6.1(b), provided that the principal amount of each such item of Indebtedness or
L/C Indebtedness set forth on Schedule 6.1(b), as the case may be, is not
increased and such extension, renewal or refinancing be on terms substantially
similar or more favorable to the applicable Credit Party which is the obligor of
such Indebtedness or L/C Indebtedness, as the case may be;
(c) Intercompany Indebtedness constituting Investments permitted under
Section 6.4 hereof;
(d) Indebtedness incurred under Interest Rate Protection Agreements to
the extent entered into by the applicable Credit Party for bona fide hedging
purposes;
(e) Guarantees permitted pursuant to Section 6.3 hereof;
(f) Indebtedness in respect of secured purchase money financing
(including Capital Leases) in an aggregate amount not to exceed $5,000,000; and
(g) other Indebtedness in an aggregate principal amount at any time
outstanding not exceeding $5,000,000.
SECTION 6.2 Limitations on Liens. Incur, create, assume or suffer to
exist any Lien on any of its revenue stream, property, assets or rights, whether
now owned or hereafter acquired, except:
(a) deposits under worker's compensation, unemployment insurance and
social security and similar laws or to secure statutory obligations or surety,
appeal, performance, completion or other similar bonds, to secure performance as
lessee under leases of real or personal property or to secure performance of
tenders, bids, contracts (other than for the repayment of Indebtedness or L/C
Indebtedness) and other obligations of a like nature, in each case incurred in
the ordinary course of business;
(b) Liens customarily granted or incurred in the ordinary course of
business with regard to services rendered by carriers, warehouses, suppliers of
materials and equipment, mechanics and repairmen and other Liens imposed by
Applicable Law which obligations are not yet due and payable (unless such
obligations are being contested in good faith and with respect to which
appropriate reserves have been established in accordance with GAAP);
(c) the Liens in favor of the Collateral Agent (for the benefit of the
Secured Parties) under the Existing Security Documents and as continued under
the Security Documents;
(d) existing Liens listed on Schedule 6.2(d) hereto;
(e) Liens arising out of attachments, judgments or awards as to which
an appeal or other appropriate proceedings for contest or review are timely
commenced (and as to which foreclosure and other enforcement proceedings shall
not have been commenced (unless fully bonded or otherwise effectively stayed))
and as to which appropriate reserves have been established in accordance with
GAAP;
(f) Liens for taxes, assessments or other governmental charges or
levies not yet due and payable, or the validity or amount of which is currently
being contested in good faith by appropriate proceedings and for which reserves
have been set aside on the books of the applicable Credit Party, in each case
pursuant to and in accordance with the terms of Section 5.8 hereof;
(g) financing statements filed in connection with a Capital Lease or an
operating lease, in each case not prohibited hereunder; provided that no such
financing statement extends, covers or refers to any property or assets of a
Credit Party, other than the property or assets which are subject to such
Capital Lease or such operating lease;
(h) easements and any other item listed on Schedule B of the title
policies obtained for the Collateral Agent or for which Date Down Endorsements
were obtained with respect to Real Property Assets (including, without
limitation, reciprocal easement agreements and utility agreements), rights of
way requirements, restrictions (including, without limitation, zoning
restrictions), covenants, consents, reservations, encroachments, variations and
other similar restrictions, charges, encumbrances (whether or not recorded) (but
specifically excluding rights of first refusal, options and other contractual
rights to sell, assign or otherwise dispose of any Real Property Asset or any
interest therein) on any owned Real Property Asset which, individually, (i) does
not materially detract from the value of the applicable Real Property Asset
subject thereto, (ii) does not materially interfere with the ordinary conduct of
the business of the Credit Parties, any Subsidiary of a Credit Party or any
lessee under a lease, (iii) does not materially impair the use of the applicable
Real Property Asset by any Credit Party, any Subsidiary of a Credit Party or any
lessee under a lease or (iv) does not render title of the applicable Real
Property Asset unmarketable;
(i) Liens arising by virtue of any statutory or common law provisions
relating to banker's liens, rights of set off or similar rights with respect to
deposit accounts;
(j) Liens on assets at the time of acquisition of the asset by a Credit
Party or a Subsidiary thereof; provided, that (i) such Liens existed at the time
of such acquisition and were not created in anticipation of the acquisition of
such asset, (ii) any such Lien does not by its terms cover any property or
assets other than the asset acquired, and (iii) the aggregate amount of such
Liens, when added to the Liens permitted pursuant to Section 6.2(l), shall not
exceed $5,000,000;
(k) Liens securing a Permitted Refinancing; provided, that such Liens
shall by their terms cover only such property or assets as is covered by the
Liens securing the Indebtedness being refinanced and no new or additional
property or assets and any Liens granted
with respect to such refinancing Indebtedness shall be subordinated to at least
the same extent as the existing Liens securing such Indebtedness being
refinanced, if any;
(l) Liens incurred in connection with secured purchase money financing
permitted pursuant to Section 6.1(f), provided that (i) such Lien is limited to
the particular assets acquired and (ii) the aggregate amount of such Liens, when
added to the Liens permitted pursuant to Section 6.2(j), shall not exceed
$5,000,000;
(m) rights of first refusal, options or other contractual rights to
sell, assign or otherwise dispose of any Real Property Asset or interest therein
which right of first refusal, option or contractual right (i) is described on
Schedule 3.10 hereto, (ii) has been consented to in writing by the
Administrative Agent, (iii) is in connection with an asset sale permitted by
Section 6.6 hereof or (iv) in the case of such rights granted after the Closing
Date when taken with all other rights of first refusal, options and other
contractual rights permitted by this clause (o), do not over the term of this
Credit Agreement affect Real Property Assets having an aggregate fair market
value exceeding $1,000,000; and
(n) leases or subleases of real property to others not interfering in
any material respect with the business of the Borrower or any Credit Party.
SECTION 6.3 Limitation on Guaranties. Incur, create, assume or suffer
to exist any Guaranty, either directly or indirectly, except:
(a) the endorsement of negotiable instruments for deposit or collection
in the ordinary course of business;
(b) the Guaranties made by the Guarantors pursuant to the Amended and
Restated Consolidated Subsidiary Guaranty Agreement;
(c) Guaranties of obligations of a Credit Party which obligations are
not prohibited hereunder;
(d) Guaranties set forth on Schedule 6.1(b) hereto;
(e) Guaranties of Indebtedness or L/C Indebtedness permitted by Section
6.1 hereof;
(f) Guaranties constituting Investments that are not prohibited by
Section 6.4;
(g) other Guaranties of obligations and liabilities which do not in the
aggregate expose the guarantors thereof to an amount in excess of $1,000,000 and
(h) Guaranties by the Borrower of the obligations set forth on Schedule
6.3 hereto.
SECTION 6.4 Limitations on Investments. Create, make or incur any
Investment, except:
(a) cash and Cash Equivalents;
(b) Investments (whether as equity or loans) by the Borrower or a
Credit Party in another Credit Party or a Person that immediately becomes a
Credit Party;
(c) Investments (whether as equity or loans) by the Borrower or a
Credit Party in Subsidiaries which are not Credit Parties; provided, that the
aggregate amount of all such Investments made by the Credit Parties after the
Closing Date in such Subsidiaries may not exceed $2,000,000 at any time in
excess of the amounts existing on the Closing Date;
(d) additional Investments received in settlement of Indebtedness or
other obligations created in the ordinary course of business and owing to any
Credit Party;
(e) existing Investments listed on Schedule 6.4 hereto; and
(f) Guaranties permitted by Section 6.3.
SECTION 6.5 Restricted Payments. Pay, declare, make or become obligated
to make any Restricted Payment, except:
(a) the declaration and payment of dividends and/or distributions by
any direct or indirect wholly owned Subsidiary of a Credit Party to a Credit
Party; and
(b) to the extent permitted under the Amended and Restated Consolidated
Subsidiary Subordination Agreement, payments with respect to Intercompany
Indebtedness, intercompany receivables or intercompany advances constituting
Investments permitted under Section 6.4 hereof.
SECTION 6.6 Merger, Sale of Assets, Purchases, etc. (a) Whether in one
transaction or a series of transactions, wind up, liquidate or dissolve its
affairs, or enter into any transaction of merger or consolidation, or sell or
otherwise dispose of any capital stock of any Subsidiary of any Credit Party, or
any of its property, stock or assets or agree to or suffer any of the foregoing,
except for:
(i) the merger by any solvent Guarantor into the Borrower or another
Guarantor if after such merger, no Default or Event of Default exists;
(ii) the transfer by any solvent Guarantor of any or all of its assets
to the Borrower or another Guarantor and, in the case of a transfer of all of
the assets of a Guarantor, the subsequent dissolution of such solvent
Guarantor if after such transactions, no Default or Event of Default exists;
(iii) sales or other dispositions of assets (other than Real Property
Assets) in the ordinary course of business;
(iv) sales or dispositions of assets set forth on Schedule 6.6(iv) for
cash or as otherwise permitted by the Required Lenders;
(v) the transfers of assets constituting Investments permitted by
Section 6.4 or Restricted Payments permitted by Section 6.5;
(vi) sales or other dispositions of assets in arm's length
transactions, at fair market value and for cash in an aggregate amount which
does not exceed $250,000 in any fiscal year;
(vii) sales or other dispositions of the manufacturing and/or
distribution centers and other miscellaneous assets and machinery located in
Mexico, Canada, Italy and China for cash;
(viii) upon consummation of the sale of assets of Encore, as permitted
pursuant to Section 6.6(iv), the dissolution of Encore; and
(ix) so long as the representation and warranty in Section 3.30 hereof
shall be true and correct in all respects at the time of dissolution, the
dissolution of a Dissolvable Entity, provided that upon such dissolution, the
assets, if any, of the Dissolvable Entity being dissolved shall be
distributed to the Borrower.
(b) Purchase or otherwise acquire all or substantially all of any stock
or assets of any other Person, except for:
(i) transactions contemplated by Sections 6.6(a)(i) and 6.6(a)(ii)
above;
(ii) the creation of new Subsidiaries which immediately become
Guarantors to the extent required by and in accordance with Section 5.12
hereof; and
(iii) Investments permitted by Section 6.4 hereof.
SECTION 6.7 Places of Business; Change of Name. Change its name or
change its jurisdiction of incorporation or organization, without in each case
(i) giving the Collateral Agent thirty (30) days prior written notice of such
change and (ii) filing any additional Uniform Commercial Code financing
statements, and such other documents requested by the Collateral Agent to
maintain perfection of the security interest of the Collateral Agent for the
benefit of the Secured Parties in the Collateral and in each Real Property
Asset.
SECTION 6.8 Maximum Total Leverage Ratio. Permit the Total Leverage
Ratio of the Borrower and Consolidated Subsidiaries to be greater than the
corresponding ratio below to be tested as of the last day of each fiscal quarter
ending in the months listed below:
Date Ratio
---- -----
January 2005 13.4:1.0
April 2005 12.3:1.0
July 2005 9.6:1.0
October 2005 7.8:1.0
January 2006 6.3:1.0
April 2006 5.6:1.0
July 2006 5.2:1.0
October 2006 5.2:1.0
January 2007 5.1:1.0
April 2007 5.0:1.0
July 2007 4.7:1.0
October 2007 4.8:1.0
January 2008 4.6:1.0
SECTION 6.9 Cash Interest Coverage Ratio. Permit the Consolidated Cash
Interest Coverage Ratio to be less than the corresponding ratio below to be
tested as of the last day of each fiscal quarter ending in the months below:
Period Ending Ratio
------------- -----
January 2005 1.2:1.0
April 2005 1.3:1.0
July 2005 1.7:1.0
October 2005 2.2:1.0
January 2006 2.6:1.0
April 2006 2.5:1.0
July 2006 2.3:1.0
October 2006 2.1:1.0
January 2007 1.9:1.0
April 2007 1.8:1.0
July 2007 1.8:1.0
October 2007 1.7:1.0
January 2008 1.7:1.0
SECTION 6.10 Total Interest Coverage Ratio. Permit the Consolidated
Total Interest Coverage Ratio to be less than the corresponding ratio below to
be tested as of the last day of each fiscal quarter ending in the months below:
Period Ending Ratio
------------- -----
January 2005 0.8:1.0
April 2005 0.8:1.0
July 2005 0.9:1.0
October 2005 1.1:1.0
January 2006 1.3:1.0
April 2006 1.3:1.0
July 2006 1.3:1.0
October 2006 1.3:1.0
January 2007 1.5:1.0
April 2007 1.5:1.0
July 2007 1.5:1.0
October 2007 1.6:1.0
January 2008 1.6:1.0
SECTION 6.11 Consolidated EBITDAR. Permit Consolidated EBITDAR for the
Rolling Twelve Month period ending in the fiscal quarter ending in the months
below to be less than the corresponding amount set forth below:
Period Ending Amount
------------- ------
January 2005 $16,700,000
April 2005 $18,100,000
July 2005 $23,400,000
October 2005 $30,000,000
January 2006 $37,200,000
April 2006 $41,700,000
July 2006 $44,900,000
October 2006 $46,200,000
January 2007 $46,300,000
April 2007 $47,000,000
July 2007 $47,600,000
October 2007 $48,400,000
January 2008 $49,200,000
SECTION 6.12 Transactions with Affiliates. Enter into any transaction
with, or make any payment to, any of its Affiliates that is less favorable to
such Credit Party or to any of such Credit Party's Subsidiaries than would have
been the case if such transaction had been effected on an arms-length basis with
a Person other than an Affiliate except that (a) the Borrower may enter into
transactions with its Subsidiaries that are Credit Parties and (b) Subsidiaries
of the Borrower that are Credit Parties may enter into transactions with other
Subsidiaries of the Borrower that are Credit Parties and (c) the Investments
contemplated by Section 6.4(c).
SECTION 6.13 Limitation on Leases. Except with respect to Capital
Leases (which are governed by Section 6.1 hereof), create, incur or assume any
commitment to make any direct or indirect payment, whether as rent or otherwise,
under any lease, rental or other arrangement for the use of real or personal
property, excluding (i) leases existing on the date hereof and set forth on
Schedule 3.23(b) hereto and any personal property leases (that are not Capital
Leases) existing as of the Closing Date and any renewals or replacements thereof
on terms comparable to the existing leases and (ii) any leases, rentals or other
such arrangements entered into after the Closing Date and in the ordinary course
of such Credit Parties business pursuant to which the aggregate annual rental
payments in each fiscal year ending in the months listed below do not exceed the
amount listed below opposite such date:
Fiscal Year Ending Aggregate Payments
------------------ ------------------
January 2005 $3,700,000
January 2006 $8,000,000
January 2007 $8,000,000
SECTION 6.14 Receivables. Sell, discount or otherwise dispose of
Receivables owing to any Credit Party or any Subsidiary of a Credit Party except
(i) for purposes of
collection in the ordinary course of business or (ii) in connection with the
sale of Encore as permitted pursuant to Section 6.6(iv).
SECTION 6.15 Changes to Material Agreements.
(a) Consent to any modification or waiver of any Material Agreement
listed on Schedule 3.16(b) hereto if such modification or waiver would have a
Material Adverse Effect with respect to the Credit Parties. The Borrower will
not consent to the assignment by any other party to any Material Agreement of
any rights, obligations or interests of such party thereunder except as
expressly permitted by any such Material Agreement.
(b) Amend the articles or certificate of incorporation or by-laws of
any Credit Party in any manner which could be reasonably expected to have a
Material Adverse Effect.
SECTION 6.16 ERISA Compliance. Engage in a "prohibited transaction," as
defined in Section 406 of ERISA or Section 4975 of the Code or knowingly consent
to any "party in interest" or any "disqualified person", as such terms are
defined in Section 3(14) or ERISA and Section 4975(e)(2) of the Code,
respectively, engaging in any "prohibited transaction"; or, except as set forth
in Schedule 6.16, permit any Plan to incur any "accumulated funding deficiency",
as defined in Section 302 of ERISA or Section 412 of the Code; or terminate any
Plan in a manner which could reasonably be expected to result in the imposition
of a Lien on any property of any Credit Party, any Subsidiary of a Credit Party
or any ERISA Affiliate pursuant to Section 4068 of ERISA; or breach or knowingly
permit any employee or officer or any trustee or administrator of any Plan to
breach any fiduciary responsibility imposed under Title I of ERISA with respect
to any Plan; or engage in any transaction which would result in the incurrence
of a liability under Section 4069 of ERISA; or fail to make contributions to a
Plan which could result in the imposition of a Lien on any property of any
Credit Party, any Subsidiary of a Credit Party or any ERISA Affiliate pursuant
to Section 302(f) of ERISA or Section 412(n) of the Code (other than with
respect to a failure to make contributions relating to or in connection with the
2004 plan year or any part thereof of any Plan); if the occurrence of any of the
foregoing events described in this Section 6.16 (alone or in the aggregate)
would reasonably be expected to result in a liability which has a Material
Adverse Effect.
SECTION 6.17 Hazardous Materials. Cause or permit any of its properties
or assets to be used to generate, manufacture, refine, transport, treat, store,
handle, dispose, transfer, produce or process Hazardous Materials, except in
material compliance with all applicable Environmental Laws; nor release,
discharge, dispose of or permit or suffer any release or disposal as a result of
any intentional act or omission on its part of Hazardous Materials onto any such
property or asset in violation of any Environmental Law or in a manner that
could result in liability under any Environmental Law, except as are not
reasonably likely to have a Material Adverse Effect.
SECTION 6.18 Use of Proceeds of Loans.
(a) Use the proceeds of any Loans hereunder other than for the purposes
set forth in, and as required by, Section 2.2(b) hereof.
(b) Use, directly or indirectly, the proceeds of any Loan hereunder for
the purpose (whether immediate, incidental or ultimate) of buying or carrying
any Margin Stock.
SECTION 6.19 Fiscal Year; Fiscal Quarter. Change its fiscal year or any
of its fiscal quarters.
SECTION 6.20 Formation of Foreign Subsidiaries. Form or acquire any new
direct Subsidiary that is not organized within the United States of America.
SECTION 6.21 Limitation on Restrictive Agreements. Enter into any
agreement or other arrangement which prohibits or otherwise restricts the
existence of any Lien in favor of the Collateral Agent (for the benefit of the
Lenders) except (i) for any document or instrument governing secured
Indebtedness permitted hereunder that limits Liens only on the specific property
securing such permitted secured Indebtedness or (ii) as otherwise approved by
the Administrative Agent.
SECTION 6.22 Capital Expenditures. Make Capital Expenditures for each
fiscal year ending in the months listed below in an aggregate amount in excess
of the amount listed below opposite such date; provided that if the amount of
actual Capital Expenditures that are made during each fiscal year is less than
such amount, to the extent that Capital Expenditures in the next fiscal year
exceed the amount set forth opposite such fiscal year below, up to 100% of the
unused portion thereof may be carried forward to and made during the next fiscal
year (and only the next fiscal year):
Fiscal Year Ending Capital Expenditures
------------------ --------------------
January 2005 $ 4,200,000
January 2006 $10,400,000
January 2007 $ 4,000,000
January 2008 $ 4,000,000
SECTION 6.23 Dissolvable Entities. Permit any Dissolvable Entity to
acquire or hold assets, including, without limitation, Real Property Assets,
Receivables or Property Rights, in an aggregate amount in excess of $10,000.
SECTION 6.24 Prepayment of Indebtedness. Make any optional payment or
prepayment of, or purchase or redeem, any Indebtedness or L/C Indebtedness
except with respect to (i) refinancings permitted by Section 6.1(b) and (ii) the
loan from The Hongkong and Shanghai Banking Corporation Ltd. to Premium
Tableware (Shanghai) Manufacturing Co. Ltd. as set forth on Schedule 6.1(b)
which such payment shall be from the proceeds of certain China related asset
sales permitted by Section 6.6(a)(vii).
7. EVENTS OF DEFAULT
In the case of the happening and during the continuance of any of the
following events (herein called "Events of Default"):
(a) any representation, warranty, certification or statement made by a
Credit Party in this Credit Agreement or any other Fundamental Document to which
it is a party or any statement or representation made by or on behalf of any
Credit Party in any report, financial statement, certificate or other document
furnished to any of the Agents, the Issuing Bank, any Lender or any other
Secured Party pursuant to this Credit Agreement or any other Fundamental
Document, shall prove to have been incorrect in any material respect when made
or delivered;
(b) default shall be made in the payment of principal of any of the
Loans as and when due and payable, whether at the due date thereof, by reason of
maturity, mandatory prepayment, acceleration or otherwise;
(c) default shall be made in the payment of interest on the Loans, the
Fees, the Letter of Credit Fees or other amounts payable to any of the Agents,
the Issuing Bank or a Lender under this Credit Agreement, or under the fee
letter with respect to any Letter of Credit or under the Fee Letter, 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 by acceleration thereof or otherwise and
such default shall continue unremedied for three (3) Business Days;
(d) default shall be made in the due observance or performance of any
covenant, condition or agreement contained in Sections 5.4(a)(i), 5.17, 5.20 or
Article 6 of this Credit Agreement (other than with respect to a default in the
due observance of the covenant contained in Section 6.23 of this Credit
Agreement);
(e) default shall be made in the due observance of the covenant
contained in Section 6.23 of this Credit Agreement and such default shall
continue unremedied for twenty (20) days;
(f) default shall be made by any Credit Party in the due observance or
performance of any other covenant, condition or agreement to be observed or
performed pursuant to the terms of this Credit Agreement or any other
Fundamental Document (other than those covered by paragraphs (a), (b), (c) or
(d) of this Article 7), and such default shall continue unremedied for thirty
(30) days after a Credit Party obtains Knowledge of such occurrence;
(g) default shall be made with respect to any payment, when due, of any
Indebtedness or L/C Indebtedness in excess of $1,500,000 (other than the
Obligations) of any Credit Party or any Subsidiary of a Credit Party, or any
other default shall occur, if the effect of such non-payment default is to
accelerate the maturity of such Indebtedness or L/C Indebtedness, as the case
may be, or to permit the holder thereof to cause such Indebtedness or L/C
Indebtedness, as the case may be, to become due prior to its stated maturity,
and such default shall not be remedied, cured, waived or consented to within the
period of grace with respect thereto, or any other circumstance should arise
(other than the mere passage of time) by reason of which any Credit Party or any
Subsidiary of a Credit Party (as applicable) is required to repurchase or offer
to holders of Indebtedness or L/C Indebtedness, as the case may be, of any such
Person, the opportunity to have repurchased, any such Indebtedness or L/C
Indebtedness, as the case may be; or any such Indebtedness or L/C Indebtedness,
as the case may be, shall become or be declared to be due and payable prior to
its stated maturity;
(h) any Credit Party or any Subsidiary of a Credit Party shall
generally not pay its debts as they become due or shall admit in writing its
inability to pay its debts, or shall make a general assignment for the benefit
of creditors; or any Credit Party or any Subsidiary of a Credit Party shall
commence any case, proceeding or other action seeking to have an order for
relief entered on its behalf as a debtor or to adjudicate it a bankrupt or
insolvent or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property or shall file an answer or
other pleading in any such case, proceeding or other action admitting the
material allegations of any petition, complaint or similar pleading filed
against it or consenting to the relief sought therein; or any Credit Party or
any Subsidiary of a Credit Party shall take any action to authorize, or in
contemplation of, any of the foregoing;
(i) any involuntary case, proceeding or other action against any Credit
Party or any Subsidiary of a Credit Party shall be commenced seeking to have an
order for relief entered against it as debtor or to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property, and such case, proceeding or
other action (i) results in the entry of any order for relief against it or (ii)
shall remain undismissed for a period of sixty (60) days;
(j) one or more judgment(s) for the payment of money in excess of
$1,500,000 in the aggregate (other than a judgment as to which, and only to the
extent, a reputable insurance company has acknowledged coverage of such claim in
writing) shall be rendered against any Credit Party or any Subsidiary of a
Credit Party and either (i) within thirty (30) days from the entry of such
judgment, shall not have been discharged or stayed pending appeal, or shall not
have been discharged within thirty (30) days from the entry of a final order of
affirmance on appeal or (ii) enforcement proceedings shall be commenced by any
creditor on any such judgment;
(k) (i) failure by any Credit Party or ERISA Affiliate to make any
contributions (other than a de minimis amount of contributions) required to be
made to a Plan other than a failure relating to or in connection with
contributions required to be made to a Plan with respect to such Plan's 2004
plan year or any part thereof, (ii) except as set forth on Schedule 6.16, any
accumulated funding deficiency (within the meaning of Section 412 of the Code or
Section 302 of ERISA) shall exist with respect to any Plan (whether or not
waived), (iii) failure by any Plan to satisfy the minimum funding standard
required for any plan year or part thereof under Section 412 of the Code or
Section 302 of ERISA or a waiver of such standard or an extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, (iv) a Reportable Event with respect to a Plan
shall have occurred, (v) the withdrawal by any Credit Party or ERISA Affiliate
from a Plan during a plan year in which it was a substantial employer (within
the meaning of Section 4001(a)(2) or 4062(e) of ERISA), (vi) the termination of
a Plan, or the filing of a notice of intent to terminate a Plan under Section
4041(c) of ERISA, (vii) the institution of proceedings to terminate, or the
appointment of a trustee with respect to, a Plan by the PBGC, (viii) any other
event or condition which could constitute grounds under
Section 4042(a) of ERISA for the termination of, or the appointment of a trustee
to administer, any Plan, or (ix) the imposition of a Lien pursuant to Section
412 of the Code or Section 302 of ERISA as to any Credit Party or ERISA
Affiliate other than a Permitted Lien; and the occurrence of any of the
foregoing events, individually or in the aggregate, could reasonably be expected
to result in a liability in excess of $1,500,000, provided, however, that any
such event arising in connection with or relating to (A) the failure by any
Credit Party to satisfy any minimum funding requirements in respect of any Plan
for its 2004 plan year or any part thereof under Section 412 of the Code or
Section 302 of ERISA; (B) an application for a minimum funding waiver of such
requirements or (C) an application or extension or any amortization period with
respect to such requirements shall not constitute an Event of Default under this
Section 7(k);
(l) (i) this Credit Agreement, or any other Fundamental Document shall,
for any reason, not be or shall cease to be in full force and effect (except in
accordance with its terms) or shall be declared null and void or any of the
Fundamental Documents shall not give or shall cease to give the Collateral Agent
the Liens or material rights, powers and privileges purported to be created
thereby in favor of the Collateral Agent for the benefit of the Secured Parties,
superior to and prior to the rights of all third Persons and subject to no other
Liens (other than Permitted Liens), except as the same shall be terminated in
accordance with this Credit Agreement or the terms of the applicable Fundamental
Documents, or (ii) the validity or enforceability of the Liens granted, to be
granted, or purported to be granted, by any of the Fundamental Documents shall
be contested by any Credit Party or any of their respective Affiliates;
(m) a Change in Control shall occur and shall not have been consented
to by the Required Lenders; and
(n) at any time, for any reason, any Credit Party shall repudiate, or
seek to repudiate, any of its Obligations under any Fundamental Document to
which it is a party;
then, subject to the last paragraph of Article 7, in every such event and at any
time thereafter during the continuance of such event, the Administrative Agent
may, and if directed by the Required Revolving Credit Lenders, Required Tranche
A Term Loan Lenders or the Required Tranche B Term Loan Lenders, as the case may
be, shall, with respect to the Revolving Credit Loans, the Tranche A Term Loans
or the Tranche B Term Loans, respectively, take any or all of the following
actions, at the same or different times: (x) terminate forthwith the Revolving
Credit Commitments (if directed by the Required Revolving Credit Lenders) and/or
(y) declare the principal of and the interest on the Revolving Credit Loans, the
Tranche A Term Loans, or the Tranche B Term Loans, as the case may be, and the
notes evidencing the Revolving Credit Loans, the Tranche A Term Loans, or the
Tranche B Term Loans, as the case may be, hereunder and all other amounts
payable hereunder or thereunder to be forthwith due and payable (including,
without limitation, all Fees), whereupon the same shall become and be forthwith
due and payable, without presentment, demand, protest, notice of acceleration or
other notice of any kind, all of which are hereby expressly waived, anything in
this Credit Agreement or in any note evidencing any Revolving Credit Loans, the
Tranche A Term Loans, or the Tranche B Term Loans, as the case may be, hereunder
to the contrary notwithstanding and/or (z) require the Borrower to deliver to
the Administrative Agent from time to time cash or Cash Equivalents in an amount
equal to 105% of the amount of the L/C Exposure or to furnish other security
therefor
acceptable to the Issuing Bank and the Required Revolving Credit Lenders. If an
Event of Default specified in paragraphs (g) or (h) above shall have occurred,
the Commitments shall automatically terminate and the principal of, and interest
on, the Loans and the notes evidencing the Loans hereunder and all other amounts
payable hereunder and thereunder shall automatically become due and payable
without presentment, demand, protest, or other notice of any kind, all of which
are hereby expressly waived, anything in this Credit Agreement or any note
evidencing any Loan hereunder to the contrary notwithstanding. Such remedies
shall be in addition to any other remedy available to any of the Secured Parties
pursuant to Applicable Law or otherwise.
Notwithstanding anything to the contrary in the immediately preceding paragraph,
if an Event of Default has occurred and is continuing and at such time there
shall be Revolving Credit Loans outstanding, Revolving Credit Commitments in
effect or Tranche A Term Loans outstanding, the Tranche B Loan Lenders shall be
prohibited from exercising any remedy set forth in such paragraph until such
time as the satisfaction of each of the following shall have occurred: (i) there
shall be no Revolving Credit Loans outstanding, (ii) the Revolving Credit
Commitment shall be terminated and (iii) there shall be no Tranche A Term Loans
outstanding.
8. CASH COLLATERAL
SECTION 8.1 Cash Collateral Account. There shall be established with
the Administrative Agent an account (the "Cash Collateral Account") in the name
of the Administrative Agent (for the benefit of the Secured Parties), into which
the Borrower may from time to time deposit Dollars pursuant to, and in
accordance with Section 2.11(i) hereof. Except to the extent otherwise provided
in this Article 8, the Cash Collateral Account shall be under the sole dominion
and control of the Administrative Agent and shall be subject to a control
agreement entered into between the Borrower and the Administrative Agent.
SECTION 8.2 Investment of Funds. (a) The Administrative Agent is hereby
authorized and directed to invest and reinvest the funds from time to time
deposited into the Cash Collateral Account, so long as no Event of Default has
occurred and is continuing, on the instructions of the Borrower (provided, that
any such instructions given verbally shall be confirmed promptly in writing) or,
if the Borrower shall fail (or is not permitted as the result of the occurrence
and continuation of an Event of Default) to give such instructions upon delivery
of any such funds, in the sole discretion of the Administrative Agent; provided,
that in no event may the Borrower give instructions to the Administrative Agent
to, or may the Administrative Agent in its discretion, invest or reinvest funds
in the Cash Collateral Account in other than Cash Equivalents.
(b) Any net income or gain on the investment of funds from time to time
held in the Cash Collateral Account, shall be promptly reinvested by the
Administrative Agent as a part of the Cash Collateral Account; and any net loss
on any such investment shall be charged against the Cash Collateral Account.
(c) None of the Agents, the Issuing Bank, any of the Lenders nor any
other Secured Party shall be a trustee for any of the Credit Parties, or shall
have any obligations or responsibilities, or shall be liable for anything done
or not done, in connection with the Cash
Collateral Account, except as expressly provided herein and except that the
Administrative Agent shall have the obligations of a secured party under the
UCC. None of the Agents, the Issuing Bank, any of the Lenders nor any other
Secured Party shall have any obligation or responsibility or shall be liable in
any way for any investment decision made in accordance with this Section 8.2 or
for any decrease in the value of the investments held in the Cash Collateral
Account.
SECTION 8.3 Grant of Security Interest. For value received and to
induce the Issuing Bank to issue Letters of Credit and the Lenders to enter into
this Credit Agreement, to agree to the restructuring set forth herein and to
make Loans to the Borrower and to acquire participations in Letters of Credit
from time to time as provided for in this Credit Agreement, as security for the
payment of all of the Obligations, each of the Credit Parties hereby assigns to
the Administrative Agent (for the benefit of the Secured Parties) and grants to
the Administrative Agent (for the benefit of the Secured Parties), a first and
prior Lien upon all of such Credit Party's rights in and to the Cash Collateral
Account, all cash, documents, instruments and securities from time to time held
therein, and all rights pertaining to investments of funds in the Cash
Collateral Account and all products and proceeds of any of the foregoing. All
cash, documents, instruments and securities from time to time on deposit in the
Cash Collateral Account, and all rights pertaining to investments of funds in
the Cash Collateral Account shall immediately and without any need for any
further action on the part of any of the Credit Parties, the Administrative
Agent or any other Secured Party, become subject to the Lien set forth in this
Section 8.3, be deemed Collateral for all purposes hereof and be subject to the
provisions of this Credit Agreement.
SECTION 8.4 Remedies. At any time during the continuation of an Event
of Default, the Administrative Agent may sell any documents, instruments and
securities held in the Cash Collateral Account and shall direct the proceeds
thereof and any other cash held in the Cash Collateral Account to the Collateral
Agent and such amounts shall be applied in accordance with Section 5 of the
Intercreditor Agreement.
9. THE ADMINISTRATIVE AGENT AND THE ISSUING BANK
SECTION 9.1 Administration by the Administrative Agent. (a) The general
administration of this Credit Agreement shall be by the Administrative Agent or
its respective designees. Except as otherwise expressly provided herein, the
Issuing Bank and each of the Lenders hereby irrevocably authorizes the
Administrative Agent, at its discretion, to take or refrain from taking such
actions as agent on its behalf and to exercise or refrain from exercising such
powers under this Credit Agreement, any notes evidencing any of the Loans
hereunder and any other documents contemplated by this Credit Agreement or any
other Fundamental Document as are expressly delegated by the terms hereof or
thereof, as appropriate, to the Administrative Agent together with all powers
reasonably incidental thereto. The Administrative Agent shall have no duties or
responsibilities except as set forth in this Credit Agreement.
SECTION 9.2 Advances and Payments. (a) On the date of each Loan, the
Administrative Agent shall be authorized (but not obligated) to advance, for the
account of each of the applicable Lenders, the amount of the applicable Loan to
be made by it in accordance with
its proportionate share of its Commitments hereunder. Each of the Lenders hereby
authorizes and requests the Administrative Agent to advance for its account,
pursuant to the terms hereof, the amount of the Loan to be made by it, and each
of the Lenders agrees forthwith to reimburse the Administrative Agent in
immediately available funds for the amount so advanced on its behalf by the
Administrative Agent. If any such reimbursement is not made in immediately
available funds on the same day on which the Administrative Agent shall have
made any such amount available on behalf of any Lender, such Lender shall pay
interest to the Administrative Agent at a rate per annum equal to the
Administrative Agent's cost of obtaining overnight funds in the New York Federal
Funds Market for the first three days following the time when the Lender fails
to make the required reimbursement, and thereafter at a rate per annum equal to
the Base Rate plus the Applicable Interest Margin for Base Rate Loans which are
Revolving Credit Loans. If and to the extent that any such reimbursement shall
not have been made to the Administrative Agent, the Borrower agrees to repay to
the Administrative Agent forthwith on demand a corresponding amount with
interest thereon for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Administrative Agent at the
Base Rate plus the Applicable Interest Margin for Base Rate Loans which are
Revolving Credit Loans.
(b) If a Default or Event of Default has occurred and is then
continuing, any amounts received by the Administrative Agent in connection with
the Fundamental Documents shall be deposited by the Administrative Agent in the
Collateral Account (as defined in the Intercreditor Agreement) and applied to
the repayment of the Obligations in accordance with Section 5 of the
Intercreditor Agreement.
SECTION 9.3 Sharing of Setoffs and Cash Collateral Consistent with this
Agreement and the Intercreditor Agreement. (a) Subject to the last sentence of
this Section, each of the Lenders agrees that if it shall, through the exercise
of a right of banker's lien, set off or counterclaim against any Credit Party
(including, but not limited to, pursuant to Section 10.20 hereof or as a secured
claim under Section 506 of the Bankruptcy Code or other security or interest
arising from, or in lieu of, such secured claim and received by such Lender
under any applicable bankruptcy, insolvency or other similar law) or otherwise,
obtain payment in respect of its Loans as a result of which the unpaid portion
of its Loans is proportionately less than the unpaid portion of Loans of any of
the other Lenders (a) it shall promptly purchase at par (and shall be deemed to
have thereupon purchased) from such other Lenders a participation in the Loans
of such other Lenders, so that the aggregate unpaid principal amount of each of
the Lender's Loans and its participation in Loans of the other Lenders shall be
in the same proportion to the aggregate unpaid principal amount of all Loans
then outstanding as the principal amount of its Loans prior to the obtaining of
such payment was to the principal amount of all Loans outstanding prior to the
obtaining of such payment and (b) such other adjustments shall be made from time
to time as shall be equitable to ensure that the Lenders share any such payment
pro rata. If all or any portion of such excess payment is thereafter recovered
from the Lender which originally received such excess payment, such purchase (or
portion thereof) shall be canceled and the purchase price restored to the extent
of such recovery. The Credit Parties expressly consent to the foregoing
arrangements and agree that any Lender or Lenders holding (or deemed to be
holding) a participation in a Loan may exercise any and all rights of banker's
lien, set off or counterclaim with respect to any and all moneys owing by the
Borrower to such Lender or Lenders as fully as if such Lender or Lenders held
such and was the original obligee
on such Loan or on any note evidencing such Loan (if applicable), in the amount
of such participation. Notwithstanding anything to the contrary set forth in the
first sentence of this Section 9.3, and for the avoidance of doubt, it is hereby
agreed that the purchases and adjustments that are provided for in such first
sentence shall be made for the benefit of the Lenders within a particular
Tranche that are entitled, pursuant to this Agreement and the Intercreditor
Agreement, to receive a payment from the Borrower or from the proceeds of
Collateral at the time the payment referred to in such first sentence was
received.
(b) The Administrative Agent is hereby authorized at any time and from
time to time, to the fullest extent permitted by Applicable Law, to set off and
apply any and all amounts received by the Administrative Agent for the account
of a Defaulting Lender to the satisfaction of the unpaid obligations owing by
such Defaulting Lender to the Administrative Agent or the Issuing Bank and the
rights of such Defaulting Lender with respect to all such amounts shall be
subject and subordinate to the rights of the Administrative Agent and the
Issuing Bank, as the case may be, to be paid the amounts owing to it by such
Defaulting Lender.
SECTION 9.4 Notice to the Lenders. Upon receipt by the Administrative
Agent or the Issuing Bank from any of the Credit Parties of any communication
calling for an action on the part of the Revolving Credit Lenders, the Tranche A
Term Loan Lenders or the Tranche B Term Loan Lenders, as the case may be, or
upon written notice to the Administrative Agent of any Event of Default, the
Administrative Agent or the Issuing Bank will in turn promptly inform the
Revolving Credit Lenders, the Tranche A Term Loan Lenders or the Tranche B Term
Loan Lenders, as the case may be, in writing (which shall include facsimile
communications and e-mail communication) of the nature of such communication or
of the Event of Default, as the case may be.
SECTION 9.5 Liability of the Agents and the Issuing Bank. (a) Each of
the Agents and the Issuing Bank, when acting on behalf of the Lenders (or in the
case of the Collateral Agent, when acting on behalf of the Secured Parties), may
execute any of its duties under this Credit Agreement or the other Fundamental
Documents by or through its officers, agents, or employees and neither the
Agents, the Issuing Bank nor their respective officers, agents or employees
shall be liable to the Lenders or any of them for any action taken or omitted to
be taken in good faith, nor be responsible to the Lenders or to any of them for
the consequences of any oversight or error of judgment, or for any loss, unless
the same shall happen through its gross negligence or willful misconduct (as
determined by the final order of a court of competent jurisdiction). The Agents,
the Issuing Bank and their respective directors, officers, agents, and employees
shall in no event be liable to the Lenders or to any of them, nor shall any
Lender have any cause of action against any of them for any action taken or
omitted to be taken by it pursuant to instructions received by it from the
Required Lenders, the Required Revolving Credit Lenders, the Required Tranche A
Term Loan Lenders or the Required Tranche B Term Loan Lenders, as the case may
be, or in reliance upon the advice of counsel selected by it with reasonable
care or counsel to the Borrower. Without limiting the foregoing, neither the
Agents, the Issuing Bank nor any of their respective directors, officers,
employees, or agents shall be responsible to any of the Lenders for the due
execution, validity, genuineness, effectiveness, sufficiency, or enforceability
of, or for any statement, warranty, or representation in, or for the perfection
of any security interest contemplated by, this Credit Agreement, any other
Fundamental Document or any related agreement, document or order, or for freedom
of any of
the Collateral or any of the Real Property Assets or any of the Pledged
Securities from prior Liens or security interests, or shall be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Credit Party of any of the terms, conditions, covenants,
or agreements of this Credit Agreement, any other Fundamental Document, or any
related agreement or document.
(b) None of the Agents (in their capacity as agent for the Lenders and
for the Secured Parties), the Issuing Bank or any of their respective directors,
officers, employees, or agents shall have any responsibility to the Borrower or
any other Credit Party on account of the failure or delay in performance or
breach by any of the Lenders of any of such Lender's obligations under this
Credit Agreement, the other Fundamental Documents or any related agreement or
document or in connection herewith or therewith. No Lender nor any of its
directors, officers, employees or agents shall have any responsibility to the
Borrower or any other Credit Party on account of the failure or delay in
performance or breach by any other Lender of such other Lender's obligations
under this Credit Agreement, the other Fundamental Documents or any related
agreement or document or in connection herewith or therewith.
(c) The Agents (as agents for the Lenders and the Secured Parties) and
the Issuing Bank shall be entitled to rely on any communication, instrument, or
document believed by it to be genuine or correct and to have been signed or sent
by a Person or Persons believed by it to be the proper Person or Persons, and it
shall be entitled to rely on advice of legal counsel (who may be counsel for the
Borrower), independent public accountants, and other professional advisers and
experts selected by it.
(d) Each of the Agents and the Issuing Bank shall be entitled to
refrain from any act or the taking of any action (including the failure to take
an action) in connection herewith or any of the other Fundamental Documents or
from the exercise of any power, discretion or authority vested in it hereunder
or thereunder unless and until it shall have received instructions in respect
thereof from the Required Lenders, the Required Revolving Credit Lenders, the
Required Tranche A Term Loan Lenders, or the Required Tranche B Term Loan
Lenders, as the case may be, and, upon receipt of such instructions from the
Required Lenders, the Required Revolving Credit Lenders, the Required Tranche A
Term Loan Lenders, or the Required Tranche B Term Loan Lenders, as the case may
be, it shall be entitled to act or (where so instructed) refrain from acting, or
to exercise such power, discretion or authority, in accordance with such
instructions.
SECTION 9.6 Reimbursement and Indemnification. Each of the Lenders
agrees (i) to reimburse the Agents and/or the Issuing Bank on demand for such
Lender's pro rata share of any expenses and fees incurred for the benefit of the
Lenders under the Fundamental Documents, including, without limitation, counsel
fees and compensation of agents, employees, financial advisors and other
professionals paid for services rendered on behalf of the Agents, the Issuing
Bank or the Lenders, and any other expense incurred in connection with the
operations or enforcement thereof not reimbursed by or on behalf of the Borrower
and (ii) to indemnify and hold harmless the Agents and/or the Issuing Bank and
any of their respective directors, officers, employees, or agents, on demand, in
accordance with such Lender's Percentage, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements (including reasonable attorneys' fees and
disbursements) of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against, it or any of them in any way relating to or arising out of any of the
Fundamental Documents or any related agreement or document, or any action taken
or omitted to be taken by it or any of them under any of the Fundamental
Documents or any related agreement or document, to the extent not reimbursed by
or on behalf of the Borrower or any other Credit Party (except such as shall
have been finally determined by a final order or judgment of a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the Person to be reimbursed, indemnified or held harmless, as
applicable) and (iii) to indemnify and hold harmless the Issuing Bank and any of
its directors, officers, employees, or agents, on demand, in the amount of its
Revolving Credit Percentage share, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against it or any of them in any way relating to or
arising out of the issuance of any Letters of Credit or the failure to issue
Letters of Credit (except as shall have been finally determined by a final order
or judgment of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the Person to be reimbursed, indemnified or
held harmless, as applicable). If any indemnity furnished to any Agent or the
Issuing Bank for any purpose shall, in the opinion of such Agent or the Issuing
Bank, as the case may be, be insufficient or become impaired, such Agent or the
Issuing Bank, as the case may be, may call for additional indemnity and cease,
or not commence, to do the acts indemnified against until such additional
indemnity is furnished; provided that in no event shall this sentence require
any Lender to indemnify any Agent or the Issuing Bank against any liability,
obligation, loss, damage, penalty, action, judgment, suit, cost, expense or
disbursement in excess of such Lender's pro rata share thereof. The Obligations
of the Lenders under this Section 9.6 shall survive the Facility Termination
Date, the termination of this Credit Agreement and the payment of the Loans
and/or expiration or termination of the Letters of Credit and shall inure to the
benefit of any Person who was an Agent or Issuing Bank notwithstanding such
Person's resignation, replacement or other withdrawal from its position as an
Agent or Issuing Bank hereunder. To the extent indemnification payments made by
the Lenders pursuant to this Section 9.6 are subsequently recovered by the
Agents or the Issuing Bank from a Credit Party, the Agents or the Issuing Bank,
as applicable, will promptly refund such previously paid indemnity payments to
the Lenders.
SECTION 9.7 Rights of the Agents. It is understood and agreed that each
of the Agents shall have the same duties, rights and powers as a Lender
hereunder (including the right to give such instructions) as any of the other
Lenders and may exercise such rights and powers, as well as its rights and
powers under other agreements and instruments to which it is or may be party,
and engage in other transactions with any Credit Party or Affiliate thereof, as
though it were not an Agent under this Credit Agreement and the other
Fundamental Documents.
SECTION 9.8 Independent Investigation by Lenders. Each of the Lenders
acknowledges that it has decided to enter into this Credit Agreement and the
other Fundamental Documents, to agree to the restriction set forth herein, to
make the Loans and to participate in the Letters of Credit hereunder based on
its own analysis of the transactions contemplated hereby and of the
creditworthiness of the Credit Parties and agrees that neither the Agents nor
the Issuing Bank shall bear any responsibility therefor.
SECTION 9.9 Agreement of the Lenders. Upon any occasion requiring or
permitting an approval, consent, waiver, election or other action on the part of
the Required Lenders, the Required Revolving Credit Lenders, the Required
Tranche A Term Loan Lenders, the Required Tranche B Term Loan Lenders, or the
Swingline Lender, as the case may be, action shall be taken by the
Administrative Agent for and on behalf of, or for the benefit of, all Lenders
upon the direction of the Required Lenders, the Required Revolving Credit
Lenders, the Required Tranche A Term Loan Lenders, the Required Tranche B Term
Loan Lenders, or the Swingline Lender, as the case may be, and any such action
shall be binding on all Lenders. No amendment, modification, consent or waiver
shall be effective except in accordance with the provisions of Section 10.11
hereof.
SECTION 9.10 Notice of Transfer. The Administrative Agent and the
Issuing Bank may deem and treat any Lender which is a party to this Credit
Agreement as the owner of such Lender's respective portions of the Loans and
participations in Letters of Credit for all purposes, unless and until a written
notice of the assignment or transfer thereof executed by any such Lender shall
have been received by the Administrative Agent and shall have become effective
in accordance with Section 10.3 hereof.
SECTION 9.11 Relations Among Lenders. Each Lender in its capacity as a
Lender hereunder agrees that it will not take any legal action, nor institute
any actions or proceedings, against the Borrower or any other Credit Party with
respect to any Collateral or any Real Property Asset, it being understood and
agreed that all such actions are to be taken by the Collateral Agent on behalf
of the Lenders as set forth in the Intercreditor Agreement. Without limiting the
generality of the foregoing, no Lender may unilaterally terminate its Commitment
or accelerate, or otherwise enforce or seek to enforce any rights or remedies
with respect to, any Loans or other Obligations owed to it, except statutory or
common law rights of banker's liens and setoff with respect to accounts
maintained with such Lender.
SECTION 9.12 Successor Agents. The Administrative Agent may resign at
any time by giving written notice thereof to the Lenders and the Borrower, but
such resignation shall not become effective until the earlier to occur of (i)
the appointment of a successor administrative agent by the Required Lenders
consistent with the requirements set forth below and acceptance by such
successor agent of its appointment pursuant hereto and (ii) the passage of 60
days from the giving of such notice. Such successor agent shall be either a
Lender or a commercial bank organized under the laws of the United States of
America or of any State thereof and shall have a combined capital and surplus of
at least $250,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor agent, such successor agent shall thereupon
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 under this Credit Agreement, the
other Fundamental Documents and any other credit documentation. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent
the provisions of this Article 9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Credit Agreement and the other Fundamental Documents.
SECTION 9.13 Lender Payments. (a) Except as otherwise provided herein,
all payments by any Lender hereunder shall be made to the Administrative Agent
at the office of
JPMorgan Chase Bank, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇▇▇▇▇▇ (wiring information: ABA # 021 000 021, Account Number 323 506 208,
Account Name: Oneida Limited., Ref: Oneida Limited) not later than 1:00 p.m.
(New York time). All payments received after such time shall be deemed received
on the next succeeding Business Day. All payments shall be made in immediately
available funds in lawful money of the United States of America.
(b) If any Agent, the Issuing Bank, any Lender or any other Secured
Party is required at any time to return to the Borrower, or to a trustee,
receiver, liquidator, custodian, or any official under any proceeding under any
Debtor Relief Law, any portion of a payment made by the Borrower, each such
Secured Party shall, on demand of the Administrative Agent, return its share of
the amount to be returned which is received by the applicable Secured Party,
plus interest thereon from the date of such demand to the date such payment is
made at a rate per annum equal to the Federal Funds Rate.
10. MISCELLANEOUS
SECTION 10.1 Notices. (a) Notices and other communications provided for
herein shall be in writing and shall be delivered and addressed:
(i) if to the Administrative Agent:
JPMorgan Chase Bank
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇.▇▇▇
(ii) if to a Credit Party:
Oneida Ltd.
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
(iii) if to the Lender, to it at its address set forth on
Annex A attached hereto.
or such other address as such party may from time to time designate by giving
written notice to the other parties hereunder.
Any failure of any Person giving notice pursuant to this Section 10.1, to
provide a courtesy copy to a party as provided herein, shall not affect the
validity of such notice. All notices and other communications given to any party
hereto in accordance with the provisions of this Credit Agreement shall be
deemed to have been given (x) on the fifth Business Day after the date when sent
by registered or certified mail, postage prepaid, return receipt requested, if
by mail, (y) when delivered, if delivered by hand or overnight courier service
or (z) when receipt is acknowledged, if by facsimile communications equipment in
each case addressed to such party as provided in this Section 10.1 or in
accordance with the latest unrevoked written direction from such party.
(b) No notice to or demand on any of the Credit Parties shall entitle
such Credit Party to any other or further notice or demand in the same, similar
or other circumstances.
SECTION 10.2 Survival of Agreement, Representations and Warranties,
etc. All warranties, representations and covenants made by any of the Credit
Parties herein, in any other Fundamental Document or in any certificate or other
instrument delivered by it under this Credit Agreement or any other Fundamental
Document shall be considered to have been relied upon by
the Agents, the Issuing Bank and the Lenders and, except for any terminations,
amendments, modifications or waivers thereof in accordance with the terms
hereof, shall survive the execution and delivery of this Credit Agreement, the
restructuring described herein, the making of the Loans and the issuance of the
Letters of Credit herein contemplated and the execution and delivery of any
notes evidencing any Loan hereunder regardless of any investigation made by the
Agents, the Issuing Bank or the Lenders or on their behalf, and shall continue
in full force and effect so long as any Obligation is outstanding and unpaid and
so long as the Commitments have not been terminated. All statements in any such
certificate or other instrument shall constitute representations and warranties
by the Credit Parties hereunder.
SECTION 10.3 Successors and Assigns; Syndications; Loan Sales;
Participations. (a) Whenever in this Credit Agreement any of the parties hereto
is referred to, such reference shall be deemed to include the successors and
assigns of such party; provided, however, that neither the Borrower nor any
other Credit Party may assign its rights hereunder without the prior written
consent of the Administrative Agent, the Issuing Bank and all of the Lenders.
All covenants, promises and agreements by or on behalf of any of the Credit
Parties which are contained in this Credit Agreement shall inure to the benefit
of the successors and assigns of the Agents, the Issuing Bank and the Lenders;
provided, however, that the Lenders may only assign their interests, rights and
obligations under this Credit Agreement in accordance with this Section 10.3.
(b) Each of the Lenders may (but only with the prior written consent of
the Administrative Agent and in the case of an assignment of a Revolving Credit
Commitment and/or Revolving Credit Loans, the Issuing Bank, which consent in
each case shall not be unreasonably withheld or delayed) assign to one or more
Lenders or an Eligible Assignee all or a portion of its interests, rights and
obligations under this Credit Agreement (including, without limitation, all or a
portion of any Loans at the time owing to it, any note held by it evidencing
such Loans, or all or a portion of its Commitment(s) and the same portion of all
Loans at the time owing to it and any notes held by it evidencing its Loans and
its obligations with regard to Letters of Credit); provided, however, that (i)
each assignment shall be in a minimum amount of (A) in the case of Revolving
Credit Loans or Revolving Credit Commitment, $5,000,000 (or such lesser amount
as shall equal any Lender's entire Revolving Credit Loans or Revolving Credit
Commitment) and (B) in the case of Tranche A Term Loans or Tranche B Term Loans,
$1,000,000 (or such lesser amount as shall equal any Lender's entire Tranche A
Term Loan or Tranche B Term Loan), (ii) any assignment of a Lender's Tranche A
Term Loans or Revolving Credit Loans shall be accompanied by an assignment of an
equal Percentage of such Lender's Revolving Credit Loans or Tranche A Term
Loans, if any, as the case may be, (iii) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register (as defined below), an Assignment and Acceptance
substantially in the form of Exhibit I hereto, together with the assigning
Lender's original note (if any) evidencing the Loans being assigned and a
processing and recordation fee of $3,500 (which fee shall also be payable in the
case of assignments from an assigning Lender to another Lender hereunder) to be
paid to the Administrative Agent by the assigning Lender or the assignee and
(iv) the assignee shall deliver to the Borrower and the Administrative Agent
certification as to the exemption from, or reduction in the amount of, deduction
or withholding of any United States federal income taxes in accordance with
Section 2.18. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and
Acceptance, which effective date shall not (unless otherwise agreed to by the
Administrative Agent) be earlier than five (5) Business Days after the date of
acceptance and recording by the Administrative Agent, (x) the assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
and under the other Fundamental Documents and shall be bound by the provisions
hereof and (y) the assigning Lender thereunder shall, to the extent provided in
such Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Credit Agreement except that, notwithstanding such
assignment, any rights and remedies available to the Borrower or the Agents for
any breaches by such assigning Lender of its obligations hereunder while a
Lender shall be preserved after such assignment and such Lender shall not be
relieved of any liability to the Borrower due to any such breach. In the case of
an Assignment and Acceptance covering all or the remaining portion of the
assigning Lender's rights and obligations under this Credit Agreement, such
assigning Lender shall cease to be a party hereto.
(c) Each Lender, in accordance with Section 10.3(b) hereof (other than
with respect to the necessity of obtaining consents which shall be governed by
the provisions set forth below of this Section 10.3(c)), may at any time make an
assignment of its interests, rights and obligations under this Credit Agreement
to any Affiliate of such Lender or to a Related Fund without the consent of the
Administrative Agent and the Issuing Bank, provided, that an assignment of
Revolving Credit Loans and Revolving Credit Commitments to any Affiliate of such
Lender or to a Related Fund shall require the consent of the Administrative
Agent and the Issuing Bank.
(d) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby and that such interest is free and clear of any
adverse claim, the assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement or any other
Fundamental Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any of the other
Fundamental Documents or any other instrument or document furnished pursuant
hereto or thereto; (ii) such assignor Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any of
the Credit Parties or the performance or observance by any of the Credit Parties
of any of their respective obligations under the Fundamental Documents or any
other instrument or document furnished pursuant thereto; (iii) such assignee
confirms that it has received a copy of this Credit Agreement, together with
copies of the most recent financial statements delivered pursuant to Sections
5.1(a)(i) and (ii) (or if none of such financial statements shall have then been
delivered, then copies of the financial statements referred to in Section 3.6
hereof) and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee agrees that it will, independently and without
reliance upon the assigning Lender, the Administrative Agent, the Collateral
Agent, the Issuing Bank, any other Lender or any other Secured Party and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Credit Agreement or any of the other Fundamental Documents or any other
instrument or document furnished pursuant thereto; (v) such assignee
appoints and authorizes the Administrative Agent, the Collateral Agent and the
Issuing Bank to take such action as agent(s) on its behalf and to exercise such
powers under this Credit Agreement and the other Fundamental Documents as are
delegated to the Administrative Agent, the Collateral Agent or the Issuing Bank
(as applicable) by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vi) such assignee agrees that it will be bound by the
provisions of this Credit Agreement and the other Fundamental Documents and will
perform in accordance with their terms all of the obligations which by the terms
of this Credit Agreement and the other Fundamental Documents are required to be
performed by it as a Lender.
(e) The Administrative Agent shall maintain at its address at which
notices are to be given to it pursuant to Section 10.1 hereof a copy of each
Assignment and Acceptance and a register for the recordation of the names and
addresses of the Lenders and the Commitments of, and principal amount of the
Loans owing to, each Lender from time to time (the "Register"). The entries in
the Register shall be conclusive, in the absence of manifest error, and the
Credit Parties, the Administrative Agent, the Collateral Agent, the Issuing Bank
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of the Fundamental Documents. The Register
shall be available for inspection by any Credit Party or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(f) Subject to the foregoing, upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an assignee together with the
assigning Lender's original note (if any) evidencing the Loans being assigned
thereby, the processing and recordation fee, and evidence of the Administrative
Agent's written consent to such assignment (if required), the Administrative
Agent shall, if such Assignment and Acceptance has been completed and is
substantially in the form of Exhibit I hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt written notice thereof to the Borrower. Within five (5)
Business Days after receipt of the notice, the Borrower, at its own expense,
shall execute and deliver to the Administrative Agent, in exchange for any
surrendered note, a new note to the order of such assignee in an amount equal to
the Revolving Credit Commitment or the principal amount of the Tranche B Term
Loan (as appropriate) assumed by the assignee Lender pursuant to such Assignment
and Acceptance and if the assigning Lender has retained a Revolving Credit
Commitment or any portion of a Tranche B Term Loan, a new note to the order of
the assigning Lender in an amount equal to the Revolving Credit Commitment or
the principal amount of the Tranche B Term Loan (as appropriate) retained by it
hereunder. Such new notes shall be in an aggregate principal amount equal to the
aggregate principal amount of the surrendered note (or if applicable, the
outstanding principal amount of the applicable Loan owed to the assigning Lender
immediately preceding the relevant assignment), shall be dated the date of the
surrendered note and shall otherwise be in substantially the form of the
surrendered note.
(g) Each of the Lenders may, without the consent of any of the Credit
Parties or any of the Agents, the Issuing Bank or the other Lenders, sell
participations to one or more banks, mutual funds or other financial
institutions in all or a portion of its rights and obligations under this Credit
Agreement (including, without limitation, all or a portion of any Tranche B Term
Loans at the time owing to it and any note held by it evidencing such Loans, or
all or a portion of its Revolving Credit Commitment and the same portion of all
Revolving Credit Loans (if any) at the time owing to it and any notes held by it
evidencing its Revolving Credit Loans
and its participation in Letters of Credit); provided, however, that (i) any
such Lender's obligations under this Credit Agreement shall remain unchanged,
(ii) such participant shall not be granted any voting rights or any right to
control the vote of such Lender under this Credit Agreement, except that such
participant may be granted voting rights (or a right to control the vote of such
Lender under this Credit Agreement) with respect to (A) proposed decreases to
interest rates or fees payable to the applicable Lender, (B) subject to Section
10.11 hereof changes to the amount of the Revolving Credit Commitments of the
applicable Lender (except for a ratable decrease in the Total Revolving Credit
Commitment of all Lenders holding Revolving Credit Commitments), (C) final
maturity of any Loan and fees (in each case, as applicable to such participant)
and (D) releases of all or substantially all the Collateral and the Real
Property Assets, (iii) any such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iv) the
participating banks or other entities shall be entitled to the cost protection
provisions contained in Sections 2.15, 2.16, 2.17, 2.18 and 2.21 hereof, but a
participant shall not be entitled to receive pursuant to such provisions an
amount larger than its share of the amount to which the Lender granting such
participation would have been entitled to receive and (v) the Credit Parties,
the Administrative Agent, the Collateral Agent, the Issuing Bank and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's and its participants' rights and obligations under
this Credit Agreement.
(h) A Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 10.3, disclose to
the assignee or participant or proposed assignee or participant, any information
relating to any of the Credit Parties furnished to the Administrative Agent, the
Issuing Bank or such Lender by or on behalf of the Borrower or any other Credit
Party; provided, that prior to any such disclosure, each such assignee or
participant or proposed assignee or participant shall agree in writing to be
bound by the provisions of Section 10.16 hereof.
(i) The Credit Parties consent that any Lender may at any time and from
time to time pledge or otherwise grant a security interest in any Loan or in any
Note evidencing the Loans (or any part thereof) to any Federal Reserve Bank.
(j) Any assignment pursuant to paragraph (b) or (c) of this Section
10.3 shall constitute an amendment of the Commitments appearing on the signature
pages hereto as of the effective date of such assignment.
SECTION 10.4 Expenses; Documentary Taxes. Whether or not the
transactions hereby contemplated shall be consummated, the Borrower agrees to
pay (a) all out-of-pocket expenses incurred by the Administrative Agent, the
Collateral Agent and the Issuing Bank and their Affiliates in connection with,
or arising out of, the performance of due diligence, the negotiation,
preparation, execution, delivery, waiver or modification and administration of
this Credit Agreement and any other documentation contemplated hereby, the
making of the Loans and the issuance of the Letters of Credit, the Collateral,
the Pledged Securities, any Real Property Asset or any Fundamental Document,
including but not limited to, the reasonable out-of-pocket costs and internally
allocated charges of legal counsel and audit or field examinations of the
Administrative Agent, the Collateral Agent and the Issuing Bank in connection
with the administration of this Credit Agreement, the verification of financial
data or the transactions
contemplated hereby, and the reasonable fees and disbursements of ▇▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇▇▇▇ LLP, counsel for the Agents, any other counsel that the Agents shall
retain, ▇▇▇▇▇▇▇ & Marsal LLC, financial advisor to the Agents, and any other
professional that the Agents shall retain and (b) all out-of-pocket expenses
incurred by the Agents, the Issuing Bank, any Lender and any other Secured Party
in the enforcement or protection (as distinguished from administration) of the
rights and remedies of the Agents, the Issuing Bank, the Lenders and any other
Secured Parties in connection with this Credit Agreement, the other Fundamental
Documents, the Letters of Credit or any notes evidencing the Loans hereunder, or
as a result of any transaction, action or non-action arising from any of the
foregoing, including but not limited to, the reasonable fees and disbursements
of any counsel for any of the Agents, the Issuing Bank, the Lenders or any other
Secured Party. Such payments shall be made on the date this Credit Agreement is
executed by the Borrower and thereafter on demand. The Borrower agrees that it
shall indemnify the Agents, the Issuing Bank, the Lenders and any other Secured
Parties from and hold them harmless against any documentary taxes, assessments
or charges made by any Governmental Authority by reason of the execution and
delivery of this Credit Agreement or any notes evidencing any of the Loans
hereunder or the issuance of Letters of Credit. The obligations of the Borrower
under this Section 10.4 shall survive the Facility Termination Date, the
termination of this Credit Agreement and the payment of the Loans and/or the
expiration of the Letters of Credit.
SECTION 10.5 Indemnity. The Borrower agrees upon demand to indemnify
and hold harmless the Agents, the Issuing Bank, the Lenders and any other
Secured Parties, their respective directors, officers, employees, trustees,
Affiliates, investments advisors and agents, and any professionals retained by
them (each an "Indemnified Party") (to the full extent permitted by Applicable
Law), from and against any and all claims, demands, losses, judgments, damages
and liabilities (including liabilities for penalties) incurred by any of them as
a result of, or arising out of, or in any way related to, or by reason of, any
investigation, litigation or other proceeding (whether or not any Indemnified
Party is a party thereto) related to the entering into and/or performance of
this Credit Agreement or any other Fundamental Document or the use of the
proceeds of any Loans hereunder or the issuance of any Letter of Credit or the
consummation of any other transaction contemplated in this Credit Agreement or
any other Fundamental Document, including, without limitation, the reasonable
fees and disbursements of counsel incurred in connection with any such
investigation, litigation or other proceeding and any out-of-pocket costs
incurred by the Agents, the Issuing Bank, the Lenders or any other Secured Party
in appearing as a witness or in otherwise complying with legal process served
upon them (but excluding any such losses, liabilities, claims, damages or
expenses of an Indemnified Party to the extent incurred by reason of the gross
negligence or willful misconduct of such Indemnified Party as determined by a
final order or judgment of a court of competent jurisdiction). The obligations
of the Borrower under this Section 10.5 shall survive the Facility Termination
Date, the termination of this Credit Agreement and the payment of the Loans
and/or the expiration or termination of the Letters of Credit and shall inure to
the benefit of any Person who was a Lender notwithstanding such Person's
assignment of all its Loans and its Revolving Credit Commitment hereunder.
SECTION 10.6 Choice of law. This credit agreement, the other
fundamental documents and any note evidencing any of the loans hereunder shall
in all respects be construed in accordance with, and governed by, the laws of
the state of new york, without regard to
conflicts of law principles and by federal law to the extent applicable;
provided, however, that with respect to any mortgage filed in a jurisdiction
outside the state of new york, the laws of such jurisdiction where such mortgage
was filed shall apply.
SECTION 10.7 Waiver of jury trial. To the extent not prohibited by
applicable law which cannot be waived, each party hereto hereby waives, and
covenants that it will not assert (whether as plaintiff, defendant or
otherwise), any right to trial by jury in any forum in respect of any issue,
claim, demand, action, or cause of action arising out of or based upon this
credit agreement, the subject matter hereof, any other fundamental document or
the subject matter thereof, in each case whether now existing or hereafter
arising and whether in contract or tort or otherwise. Each party hereto
acknowledges that it has been informed by the other parties hereto that the
provisions of this section 10.7 constitute a material inducement upon which such
other parties have relied, are relying and will rely in entering into this
credit agreement and any other fundamental document. Any party may file an
original counterpart or a copy of this section 10.7 with any court as written
evidence of the consent of any other party to the waiver of its rights to trial
by jury.
SECTION 10.8 Waiver with respect to damages. Each credit party
acknowledges that neither the agents, the issuing bank, any lender nor any other
secured party has any fiduciary relationship with, or fiduciary duty to, any
credit party arising out of or in connection with this credit agreement or any
other fundamental document and the relationship between the agents, the issuing
bank, the lenders and any other secured parties, on the one hand, and the credit
parties, on the other hand, in connection therewith is solely that of debtor and
creditor. To the extent permitted by applicable law, no credit party shall
assert, and each credit party hereby waives, any claims against the agents, the
issuing bank, the lenders and any other secured party 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 credit agreement, any fundamental document, any agreement or instrument
contemplated hereby or thereby, or the transactions contemplated hereby or
thereby.
SECTION 10.9 No Waiver. No failure on the part of the Administrative
Agent, the Issuing Bank, any Lender or any other Secured Party to exercise, and
no delay in exercising, any right, power or remedy hereunder, under any note
evidencing any Loan hereunder, with regard to any Letter of Credit, or any other
Fundamental Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law.
SECTION 10.10 Extension of Payment Date. Except as otherwise
specifically provided in Article 2 hereof, should any payment or prepayment of
principal of or interest on any of the Loans or any other amount due hereunder,
become due and payable on a day other than a Business Day, the due date of such
payment or prepayment shall be extended to the next succeeding Business Day and,
in the case of a payment or prepayment of principal, interest shall be payable
thereon at the rate herein specified during such extension.
SECTION 10.11 Amendments, etc. (a) Unless otherwise specifically
provided herein any provision of this Credit Agreement may be amended or waived
if, but only if, such
amendment or waiver is in writing and is signed by the Credit Parties and the
Required Lenders (and, if the rights or duties of any of the Agents are affected
thereby, by the applicable Agent); provided, that (i) if such amendment or
waiver affects only the Lenders holding Tranche A Term Loans, Tranche B Term
Loans, Swingline Loans or Revolving Credit Loans (or Revolving Credit
Commitments), as applicable, then only Lenders holding more than 50% of the
Loans in the applicable Tranche (or the Revolving Credit Commitments, if
applicable) shall be required to sign such amendment or waiver; and (ii) if such
amendment or waiver seeks to release all or substantially all of the Collateral
and the Real Property Assets from the Liens created by the Fundamental Documents
(it being understood that a sale or other disposition of property, stock or
assets that is permitted pursuant to this Agreement shall not constitute a
"release" for purposes of this clause) or release the Guarantors from the
guaranties under the Amended and Restated Consolidated Subsidiary Guaranty
Agreement accounting for all or substantially all of the value of the Borrower
and Guarantors taken as a whole (except, in each case, as expressly permitted
hereby), then (A) if prior to the occurrence and continuance of an Event of
Default, such amendment or waiver shall be signed by all of the Revolving Credit
Lenders, all of the Tranche A Term Loan Lenders and all of the Tranche B Term
Loan Lenders or (B) if an Event of Default shall have occurred and the
Obligations have become due and owing as permitted by the remedial paragraph in
Article 7, such amendment or waiver shall be signed by all of the Revolving
Credit Lenders and all of the Tranche A Term Loan Lenders; provided, further,
that no such amendment or waiver shall (i) waive the conditions precedent to
each Revolving Credit Loan set forth in Section 4.2 without the prior written
consent of the Required Revolving Credit Lenders, (ii) increase, decrease, or
extend the Commitment of any Lender (except for a ratable decrease in the
Commitment of all Lenders holding Commitments for that Tranche), without the
prior written consent of such Lender, (iii) reduce the principal of, or rate of
interest on, any Loan or any Fees specified herein, due to a Lender without the
prior written consent of such Lender, (iv) postpone the date fixed for any
payment of principal of, or interest on, any Loan or any Fees hereunder due to a
Lender or for any reduction or termination of the Commitment of a Lender,
without the prior written consent of such Lender, (v) increase the amount of the
Tranche A Term Loans, the Tranche B Term Loans, Swingline Loans or the Revolving
Credit Loans of a Lender, without the prior written consent of such Lender, (vi)
decrease any amount payable to a Lender pursuant to the provisions of Section
2.12 or Section 9.2 hereof, without the prior written consent of each such
Lender, (vii) amend or modify the provisions of this Section 10.11 that require
unanimous consent, without the prior written consent of all the Lenders, (viii)
amend or modify the provisions of this Section 10.11 that require the vote of
only an affected Tranche of Lenders, without the vote of all of the Lenders in
such applicable Tranche, (ix) amend the definition of (w) "Required Lenders"
without the prior written consent of all the Revolving Credit Lenders and the
Tranche A Term Loan Lenders, (x) "Required Revolving Credit Lenders" without the
consent of all the Revolving Credit Lenders or (y) "Required Tranche A Term Loan
Lenders" without the consent of all of the Tranche A Term Loan Lenders or (z)
"Required Tranche B Term Loan Lenders" without the consent of all of the Tranche
B Term Loan Lenders or (xi) amend or modify any provision of this Agreement
which expressly provides for the unanimous consent or approval of the Lenders or
all of the Lenders of a particular Tranche without the consent of all of the
Lenders in such Tranche. No such amendment, modification, waiver or consent
shall (i) amend Section 2.21 hereof or adversely affect the rights and
obligations of the Issuing Bank hereunder without its prior written consent or
(ii) amend Section 2.04 hereof or adversely affect the rights and obligations of
the Swingline Lender without its prior written
consent. No such amendment, modification, waiver or consent shall (i) amend the
definition of any of the following terms: "Existing Standby L/C Agreements",
"Existing Standby L/C Issuers", "Existing Standby L/Cs", "Bank of America L/C",
"Bank of America L/C Agreement", "Bank of America L/C Obligations", "Fundamental
Documents", "HSBC China L/C", "HSBC China L/C Agreement", "HSBC China L/C
Obligations", "Lenders", "Obligations", "Secured Parties", "Tranche A L/C
Collateralization", "Tranche A Portion of the HSBC China L/C", "Tranche A
Portion of the HSBC China L/C Obligations", "Tranche ▇ ▇/C Collateralization",
"Tranche B Portion of the HSBC China L/C" and "Tranche B Portion of the HSBC
China L/C Obligations", or (ii) amend the provisions of Sections 2.1(a), 2.8(a)
or 5.22, or (iii) amend the cash collateralization requirements of Sections
2.11(b),(c),(d) or (e), 2.6(b) or 2.10(b) of the Credit Agreement to adversely
affect the rights and obligations of Bank of America, as issuer of the Bank of
America L/C, or HSBC, as issuer of the HSBC China L/C, without the prior written
consent of such issuer. Each holder of a Commitment, a Loan or a note evidencing
any Loan hereunder shall be bound by any amendment, modification, waiver or
consent authorized as provided herein (whether or not any applicable note shall
have been marked to indicate such amendment, modification, waiver or consent);
and any consent by any holder of a Commitment, a Loan or a note shall bind any
Person subsequently acquiring such Commitment, Loan or note (whether or not any
applicable note is so marked).
(b) If a condition to Borrowing or the issuance of a Letter of Credit
hereunder is not satisfied or some other event occurs that would prohibit the
Borrower from borrowing or receiving a Letter of Credit hereunder, then in order
to waive such condition or consent to such event, the consent of the Required
Revolving Credit Lenders (as a separate group) shall be required in addition to
any other consent required pursuant this Credit Agreement.
(c) Notwithstanding the foregoing provisions of this Section 10.11 or
anything to the contrary contained in this Credit Agreement, any Lender which
has requested that it not receive material, non-public information concerning
the Borrower or any of the other Credit Parties and which is therefore unable or
unwilling to vote with respect to an issue arising under this Credit Agreement
will agree to vote and will be deemed to have voted its Credit Exposure under
this Credit Agreement pro rata in accordance with the percentage of Credit
Exposure voted in favor of, and the percentage of Credit Exposure voted against,
any such issue under this Credit Agreement.
SECTION 10.12 Severability. Any provision of this Credit Agreement or
of any note evidencing any Loan hereunder which is invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity, illegality or unenforceability without
invalidating the remaining provisions hereof, and any such invalidity,
illegality or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 10.13 Service of process; submission to jurisdiction. Each
party hereto (each a "submitting party") hereby irrevocably submits to the
jurisdiction of the state courts of the state of new york in new york county and
to the jurisdiction of the united states district court for the southern
district of new york sitting in new york county, for the purposes of any suit,
action or other proceeding arising out of or based upon this credit agreement
(including, but not limited to, the letters of credit, the subject matter hereof
and any other fundamental
document and the subject matter thereof). Each submitting party to the extent
permitted by applicable law (a) hereby waives, and agrees not to assert, by way
of motion, as a defense, or otherwise, in any such suit, action or other
proceeding brought in the above-named courts, any claim that it is not subject
personally to the jurisdiction of such courts, that its property is exempt or
immune from attachment or execution, that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this credit agreement, the subject matter hereof
and any other fundamental document or the subject matter thereof (as applicable)
may not be enforced in or by such court and (b) hereby waives the right to
assert in any such action, suit or proceeding any offsets or counterclaims
except counterclaims that are compulsory or otherwise arise from the same
subject matter. Each submitting party hereby consents to service of process by
mail at the address to which notices are to be given to it pursuant to section
10.1 hereof. Each submitting party agrees that its submission to jurisdiction
and consent to service of process by mail is made for the express benefit of
each of the other submitting parties. Final judgment against any submitting
party in any such action, suit or proceeding shall be conclusive, and may be
enforced in any other jurisdiction (x) by suit, action or proceeding on the
judgment, a certified or true copy of which shall be conclusive evidence of the
fact and of the amount of indebtedness or liability of the submitting party
therein described or (y) in any other manner provided by or pursuant to the laws
of such other jurisdiction; provided, however, that the administrative agent and
the issuing bank may at their option bring suit, or institute other judicial
proceedings against a submitting party or any of its assets in any state or
federal court of the united states or of any country or place where the
submitting party or such assets may be found.
SECTION 10.14 Headings. Section headings used herein and the Table of
Contents are for convenience only and are not to affect the construction of or
be taken into consideration in interpreting this Credit Agreement.
SECTION 10.15 Execution in Counterparts. This Credit Agreement may be
executed in any number of counterparts, each of which shall constitute an
original, but all of which taken together shall constitute one and the same
instrument. Signature pages may be detached from counterpart documents and
reassembled to form duplicate executed originals. Delivery of an executed
signature page to this Credit Agreement by facsimile shall be as effective as
delivery of a manually executed counterpart of this Credit Agreement.
SECTION 10.16 Confidentiality. Each of the Lenders understands that
some of the information furnished to it pursuant to this Credit Agreement may be
received by it prior to the time that such information shall have been made
public, and each of the Lenders hereby agrees that it will keep all the
information received by it in connection with this Credit Agreement confidential
except that a Lender shall be permitted to disclose information (i) to such of
its officers, directors, employees, agents, representatives, auditors,
consultants, advisors, trustees, investment advisors, lawyers and affiliates as
need to know such information in connection with this Credit Agreement or any
other Fundamental Document, so long as such disclosure is subject to the
understanding that it remain confidential pursuant to the terms hereof; (ii) to
a proposed assignee or participant in accordance with Section 10.3(h) hereof, so
long as such disclosure is subject to the understanding that it remain
confidential pursuant to the terms hereof; (iii) to the extent required by
Applicable Law and regulations or by any subpoena or other legal process (in any
which event such Lender shall promptly notify the Borrower to the
extent not otherwise prohibited by Applicable Law or regulations and to the
extent practicable, it being understood that the Borrower shall have the right
to attempt to prevent such disclosure or to preserve the confidentiality
thereof); (iv) to the extent requested by any bank regulatory authority or other
regulatory authority; (v) to the extent such information (A) becomes publicly
available other than as a result of a breach of this Credit Agreement, (B)
becomes available to such Lender on a nonconfidential basis from a source other
than the Borrower or any of its Affiliates, which source is not known to such
Lender to be prohibited from transmitting the information to such Lender by any
contractual or other obligation to the Borrower or (C) was available to such
Lender on a nonconfidential basis prior to its disclosure to such Lender; (vi)
to the extent the Borrower shall have consented to such disclosure in writing;
or (vii) in any proceeding brought by a Lender against the Borrower for the
purpose of protecting or enforcing any of its rights and/or remedies in
connection with any Fundamental Document or in any other proceeding (including
any counter-claim) brought against a Lender in connection with any Fundamental
Document or any of the transactions contemplated thereby. Notwithstanding
Section 10.2 of this Credit Agreement, the confidentiality obligations set forth
in this Section 10.16 shall survive the Facility Termination Date and the
termination of this Credit Agreement.
SECTION 10.17 Entire Agreement. This Credit Agreement (including the
Exhibits and Schedules hereto) and the other Fundamental Documents represent the
entire agreement of the parties with regard to the subject matter hereof and the
terms of any letters and other documentation entered into between any of the
parties hereto (other than the Fee Letter) prior to the execution of this Credit
Agreement which relate to Loans to be made or Letters of Credit to be issued
hereunder shall be replaced by the terms of this Credit Agreement.
SECTION 10.18 Enforcement of Rights; No Obligation to ▇▇▇▇▇▇▇▇ Assets.
In enforcing any rights under this Credit Agreement or any other Fundamental
Document, neither the Administrative Agent, the Collateral Agent, the Issuing
Bank, any Lender nor any of the other Secured Parties shall be required to
resort to any particular security, right or remedy through foreclosure or
otherwise, or to proceed in any particular order of priority, or to otherwise
act or refrain from acting; and, to the extent permitted by Applicable Law, each
Credit Party hereby waives and releases any right to a marshalling of assets.
SECTION 10.19 Reproduction of Documents. The Credit Agreement, all
documents constituting Schedules or Exhibits hereto, and all documents relating
hereto received by a party hereto, including, without limitation: (a) consents,
waivers and modifications that may hereafter be executed; (b) the Fundamental
Documents; and (c) financial statements, certificates, and other information
previously or hereafter furnished to any of the Agents, the Issuing Bank, any
Lender or any other Secured Party may be reproduced by the party receiving the
same by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. Each of the parties hereto agrees and
stipulates that, to the extent permitted by Applicable Law, any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by such party in the
regular course of business) and that, to the extent permitted by applicable law,
any enlargement, facsimile, or further reproduction of such reproduction shall
likewise be admissible in evidence.
SECTION 10.20 Right of Set-Off. Subject to Section 9.3 upon the
occurrence and during the continuance of any Event of Default, the
Administrative Agent and each Lender is hereby authorized at any time and from
time to time, to the fullest extent permitted by law and without order of or
application to any court, to set-off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by the Administrative Agent and each such Lender
or any Affiliate thereof to or for the credit or the account of any Credit Party
against any and all of the Obligations, irrespective of whether or not such
Lender shall have made any demand under any Fundamental Document and although
the Obligations may not have been accelerated. Each Lender and each Agent agrees
to promptly notify the Borrower after any such set-off and application made by
such Lender or such Agent, as the case may be, provided, that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each Lender and the Administrative Agent under this Section are in
addition to other rights and remedies which such Lender and the Administrative
Agent may have upon the occurrence and during the continuance of any Event of
Default.
SECTION 10.21 USA Patriot Act. Each Lender hereby notifies the Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the Act.
SECTION 10.22 Schedules. Any disclosure by the Borrower contained in
any schedule to this Agreement shall be deemed to be disclosed for each other
section and schedule of this Agreement to the extent that such disclosure sets
forth facts in sufficient detail so that the relevance of such disclosure would
be reasonably apparent to a reader of such disclosure. No reference to or
disclosure of any item or other matter in any section or schedule of this
Agreement shall be construed as an admission or indication that such item or
other matter is material or that such item or other matter is required to be
referred to or disclosed in this Agreement.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
BORROWER:
ONEIDA LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
JPMORGAN CHASE BANK
as Administrative Agent, Collateral Agent,
Issuing Bank, Lender and Issuer of Trade
Letters of Credit
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Member
BANK OF AMERICA, NA, as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
BANK OF AMERICA, NA, as
Existing Standby L/C Issuer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BARCLAYS BANK PLC., as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
CARGILL FINANCIAL SERVICES
INTERNATIONAL, INC., as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Investment Manager
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: ▇▇▇▇▇▇▇ Value Investment
FLEET NATIONAL BANK, as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA STRATEGIC
SOLUTIONS, INC., as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
LOEWS CORPORATION, as Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
▇▇▇▇▇ EVENT TRADING, as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: General Counsel
SPS HIGH YIELD LOAN TRADING, as
Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
QUADRANGLE MASTER FUNDING
LTD., as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Member
▇▇▇▇▇▇▇ CAPITAL MANAGEMENT,
▇▇ ▇▇, as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
STRATEGIC VALUE MASTER FUND,
LTD., as Lender
By Strategic Value Partners, L.L.C
Its Investment Advisor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
MAN MAC 3 LIMITED, as Lender
By Strategic Value Partners, L.L.C
Its Investment Advisor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
ONEIDA SAVINGS BANK, as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
LITESPEED MASTER FUND LTD., as
Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Member
HSBC BANK USA, NATIONAL
ASSOCIATION, as Existing Standby
L/C Issuer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ANNEX A
-------
To Second Amended and Restated Credit Agreement Dated as of August 9, 2004
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
Lender Tranche A Term % of Total Tranche B Term % of Total Revolving Credit Revolving Credit
Loan Tranche A Term Loan Tranche B Term Loan Commitment Loan Commitment
Commitment(1) Loan Commitment(2) Loan Percentage
Commitment Commitment
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
Anchorage Capital Master $9,098,953.51 7.279% $5,691,154.34 7.2885% $2,388,596.69 7.9620%
Offshore, Ltd.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
Bank of America, N.A.(3) $10,782,609.65 8.626% $6,744,236.64 8.626% $2,830,578.88 9.4353%
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
Banc of America $7,319,327.17 5.855% $4,578,045.21 5.855% $0 $0
Strategic Solutions, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Stop: RI/DE
RI-102-16-01
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
----------------------
(1) The Tranche A Term Loan Commitment may be increased pursuant to the terms of
Section 2.1(a) of the Credit Agreement.
(2) The Tranche B Term Loan Commitment may be increased pursuant to the terms of
Section 2.1(a) of the Credit Agreement.
(3) Bank of America, N.A.'s portion of the Tranche A Term Loans may be increased
upon a draw of the Bank of America L/C pursuant to the terms of
Section 2.1(a) of the Credit Agreement.
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
Lender Tranche A Term % of Total Tranche B Term % of Total Revolving Credit Revolving Credit
Loan Tranche A Term Loan Tranche B Term Loan Commitment Loan Commitment
Commitment(1) Loan Commitment(2) Loan Percentage
Commitment Commitment
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
Fleet National Bank $9,334,104.36 7.467% $5,838,234.96 7.467% $4,371,747.95 14.5725%
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Stop: RI/DE
RI-102-16-01
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
Barclays Bank plc. $12,471,086.20 9.977% $7,800,333.99 9.977% $3,273,826.50 10.9128%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
Cargill Financial $6,422,567.27 5.138% $4,017,145.66 5.138% $1,686,009.59 5.6200%
Services International,
Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
Mail Stop 144
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇'▇▇▇▇▇
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
JPMorgan Chase Bank $18,700,348.30 14.960% $11,696,572.38 14.960% $4,909,090.91 16.3636%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
Loews Corporation $2,676,861.04 2.141% $1,674,305.66 2.141% $702,711.74 2.3424%
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
Quadrangle Master $13,187,999.89 10.550% $8,248,744.50 10.550% $3,462,025.91 11.5401%
Funding Ltd.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
Lender Tranche A Term % of Total Tranche B Term % of Total Revolving Credit Revolving Credit
Loan Tranche A Term Loan Tranche B Term Loan Commitment Loan Commitment
Commitment(1) Loan Commitment(2) Loan Percentage
Commitment Commitment
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
SPS High Yield Loan $19,413,792.74 15.531% $12,142,812.97 15.531% $4,267,899.84 14.2263%
Trading
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
▇▇▇▇▇▇▇ Capital $5,352,139.39 4.282% $3,347,621.38 4.282% $1,405,007.99 4.6834%
Management, ▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Dev ▇▇▇▇▇▇
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
▇▇▇▇▇ Event Trading $2,676,069.70 2.141% $1,673,810.69 2.141% $702,504.00 2.3417%
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
Oneida Savings Bank $1,230,410.70 0.984% $769,589.30 0.984% $0 0%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
Strategic Value Master $2,275,331.89 1.820% $1,423,159.81 1.820% $0 0%
Fund, Ltd.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
Man Mac 3 Limited $669,215.26 0.535% $418,576.41 0.535% $0 0%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
Litespeed Master Fund $3,389,182.94 2.711% $2,119,844.13 2.711% $0 0%
Ltd.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
Lender Tranche A Term % of Total Tranche B Term % of Total Revolving Credit Revolving Credit
Loan Tranche A Term Loan Tranche B Term Loan Commitment Loan Commitment
Commitment(1) Loan Commitment(2) Loan Percentage
Commitment Commitment
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
HSBC Bank USA, National
Association (4)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
TOTAL $125,000.000 100% $78,184,188.03 100% $30,000,000.00 100%
------------------------- ---------------- --------------- --------------- --------------- ------------------ ------------------
----------------
(4) HSBC Bank USA, National Association shall be deemed a Lender and shall be
the holder of Tranche A Term Loans or Tranche B Term Loans, as the case may
be, upon a draw of the HSBC China L/C pursuant to the terms of
Section 2.1(a) of the Credit Agreement.
EXECUTION VERSION
The following identified Schedules and Exhibits to the foregoing Second Amended
and Restated Credit Agreement are not filed with such Agreement. To the extent
that any such Schedules and/or Exhibits have not been otherwise filed with the
Securities & Exchange Commission, these Schedules and/or Exhibits will be
furnished supplementally to the Securities & Exchange Commission upon request.
Schedules
---------
1.0 Trade Letters of Credit
3.1(a) List of jurisdictions where the Borrower is qualified to do
business and in good standing
3.1(b) List of jurisdictions where each Credit Party (other than the
Borrower) is qualified to do business and in good standing
3.7(a) Credit Party and Subsidiary Information
3.7(b) Capital Stock Owned by each Credit Party
3.8 Proprietary Rights and Related Claims
3.9 Fictitious Names
3.10 Title to Properties
3.11(a) Litigation
3.15(a) ERISA Compliance
3.16(b) Material Agreements
3.19 Environmental Matters
3.23(a) Owned Real Property Assets
3.23(b) Leased Real Property Assets
3.23(c) Flood Plain/Tax Lots
3.25 Labor Matters
3.28 Bank Accounts
4.1(e) Material Adverse Effect
4.1(bb) Employee Benefits Agreements
5.2 Compliance with Laws
5.23(a) Survey of owned Real Property Assets
6.1(b) Existing Indebtedness
6.2(d) Existing Liens
6.3 Certain Guaranties by Borrower
6.4 Existing Investments
6.6(iv) Permitted Asset Sales
6.16 ERISA Compliance
Exhibits
--------
A Form of Amended and Restated Consolidated Subsidiary Guaranty Agreement
B Form of Amended and Restated Consolidated Subsidiary Subordination
Agreement
C Form of Amended and Restated Copyright Security Agreement
D Form of Amended and Restated Mortgage
E Form of Amended and Restated Patent Security Agreement
F Form of Amended and Restated Pledge Security Agreement
G Form of Amended and Restated Security Agreement
H Form of Amended and Restated Trademark Security Agreement
I Form of Assignment and Acceptance
J Form of Borrowing Certificate
K Form of Instrument of Assumption and Joinder
L Form of Second Amended and Restated Collateral Agency and Intercreditor Agreement
M Form of Closing Certificate
N Form of Schedule to Officer's Certificate: EBITDAR Calculation