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Exhibit 10.4
EXECUTION VERSION
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SECOND AMENDED AND RESTATED COLLATERAL
AGENCY AND INTERCREDITOR AGREEMENT, dated
as of August 9, 2004, among (i) JPMorgan
Chase Bank, as collateral agent
hereunder (together with its successors and
assigns, the "Collateral Agent"),
(ii) JPMorgan Chase Bank, as administrative
agent for the Lenders referred to
below (together with its successors and
assigns, the "Administrative Agent"),
(iii) JPMorgan Chase Bank, as Swingline
Lender and Issuing Bank (each as defined
herein), (iv) JPMorgan Chase Bank, as
issuer (the "Existing Trade L/C Issuer")
of the Existing Trade L/Cs (as defined
herein), (v) the Lenders (as defined
herein), (vi) Bank of America, N.A. ("Bank
of America"), as issuer of the Bank
of America L/C (as defined herein), (vii)
HSBC Bank USA, National Association
("HSBC"), as issuer of the HSBC China L/C
(as defined herein), (viii) Oneida
Ltd. (the "Borrower") and (ix) the direct
and indirect domestic subsidiaries of
the Borrower listed on Schedule I hereto
(the "Guarantors") (as at any time
amended, amended and restated, supplemented
or otherwise modified, renewed or
replaced, this "Agreement").
Introductory Statement
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All terms not otherwise defined above or in this Introductory
Statement are as defined in Section 1
hereof or as defined elsewhere herein.
A. WHEREAS, the Borrower, the Administrative Agent 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 the same has been amended,
supplemented, replaced or otherwise modified, the
"Existing Credit Agreement") pursuant to
which the Existing Lenders made
revolving loans and a term loan to the
Borrower;
B. WHEREAS, THC Systems, Inc ("THC"), a New York corporation,
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 the same has been amended,
supplemented, replaced 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;
C. WHEREAS, pursuant to that certain Amended and Restated
Collateral Agency and Intercreditor
Agreement dated as of April 23, 2002 (as the
same has been amended, supplemented,
replaced or otherwise modified, the
"Existing Intercreditor Agreement"), by and
among (i) the Existing Lenders, (ii)
the Existing Noteholders, (iii) JPMorgan
Chase as administrative agent,
collateral agent and individually, as
working capital lender, and (iv) certain
other secured parties, each of the parties
to the Existing Intercreditor
Agreement, 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 security documents entered
into in connection with the Existing
Credit Agreement;
D. WHEREAS, 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
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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, 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 purposes of this
Agreement the face amount of such
letter of credit shall be deemed to be
$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 Hongkong
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, Borrower's obligations under the Existing Credit
Agreement (the "Existing Credit Agreement
Obligations"), THC's and the
Borrower's obligations under the Existing
Note Agreement (the "Existing Note
Agreement Obligations"), the Existing Trade
L/C Obligations (as defined herein),
the Borrower's HSBC China L/C Obligations,
the Borrower's Bank of America L/C
Obligations and the Guarantors' obligations
under the Existing Subsidiary
Guarantee Agreements (as defined in the
Credit Agreement) (collectively, with
the Existing Credit Agreement Obligations,
the Existing Note Agreement
Obligations, the HSBC China L/C Obligations
and the Bank of America L/C
Reimbursement Obligations, the "Existing
Secured Obligations") are secured by
liens on substantially all of the real and
personal property of the Borrower,
Buffalo China, THC, Encore, Delco, Sakura,
Kenwood, Silversmiths, and Food
Service (collectively, the "Existing
Collateral") pursuant to the Existing
Security Documents (as defined below);
G. WHEREAS, the Existing Secured Obligations and certain other
indebtedness incurred by the Borrower
(collectively, the "Existing Obligations")
are being restructured pursuant to a Second
Amended and Restated Credit
Agreement dated as of the date hereof among
the Borrower, the Collateral Agent,
the Administrative Agent, the Lenders and
the Existing Standby L/C Issuers (as
at any time amended, amended and restated,
supplemented or otherwise modified,
renewed or replaced, the "Credit
Agreement");
H. WHEREAS, it is a condition precedent to the restructuring
of the Existing Obligations and the making
of new revolving loans as
contemplated under the Credit Agreement
that, among other things, the Collateral
Agent, the Administrative Agent, the
Borrower, each of the Guarantors, each of
the Lenders, the Existing Trade L/C Issuer
and the Existing Standby L/C Issuers
enter into this Agreement; and
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I. WHEREAS, the parties hereto desire to enter into this
Agreement with respect to the exercise of
certain rights, remedies and options
by the respective parties under the
aforementioned documents subject to the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements set
forth herein, the parties hereto hereby
agree as follows:
Section 1. Definitions. (a) The following terms as used herein
shall have the following meanings:
"Administrative Agent" shall have the meaning given to such
term in the preamble paragraph hereof.
"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 and
the Guarantors in favor of the
Collateral Agent (as the same may be
amended, amended and restated, supplemented
or otherwise modified, renewed, or replaced
from time to time).
"Amended and Restated Mortgage" shall have the meaning given
to such term in the Credit Agreement.
"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 and the
Guarantors in favor of the Collateral
Agent (as the same may be amended, amended
and restated, supplemented or
otherwise modified, renewed, or replaced
from time to time).
"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, the
Guarantors and the Collateral Agent (as
the same may be amended, amended and
restated, supplemented or otherwise
modified, renewed, or replaced from time to
time).
"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, the Guarantors and
the Collateral Agent (as the same may
be amended, amended and restated,
supplemented or otherwise modified, renewed,
or replaced from time to time).
"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 the Borrower and
the Guarantors in favor of the
Collateral Agent (as the same may be
amended, amended and restated, supplemented
or otherwise modified, renewed, or replaced
from time to time).
"Allstate" shall have the meaning given to such term in
paragraph B of the introductory statement
hereof.
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"Allstate Life" shall have the meaning given to such term in
paragraph B of the introductory statement
hereof.
"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.
"Bank of America" shall have the meaning given to such term in
the preamble paragraph hereof.
"Bank of America L/C" shall have the meaning given to such
term in paragraph D of the introductory
statement hereof.
"Bank of America L/C Agreement" shall have the meaning given
to such term in paragraph D of the
introductory statement hereof.
"Bank of America L/C Obligations" shall have the meaning given
to such term in paragraph D of the
introductory statement hereof.
"Borrower" shall have the meaning given to such term in the
preamble paragraph hereof.
"Buffalo China" shall mean Buffalo China, Inc., a New York
corporation and a wholly owned subsidiary
of the Borrower.
"Cash Equivalents" shall have the meaning given to such term
in the Credit Agreement.
"Collateral" shall mean any assets or properties of the
Borrower or the Guarantors now or at any
time hereafter subject to Liens
securing the Obligations.
"Collateral Account" shall have the meaning specified in
Section 5(a) hereof.
"Collateral Agent" shall have the meaning given to such term
in the preamble paragraph hereof.
"Collateral Agent Fees" shall mean all fees, costs,
indemnification and expenses of the
Collateral Agent of the types described in
Sections 18 and 19 hereof.
"Commitment Fee" shall have the meaning given to such term in
the Credit Agreement.
"Credit Agreement" shall have the meaning given to such term
in paragraph G of the introductory
statement hereof.
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"Credit Parties" shall mean, collectively, the Borrower and
the Guarantors.
"Delco" shall mean Delco International, Ltd., a New York
corporation and a wholly owned subsidiary
of the Borrower.
"Dollar" shall have the meaning given to such term in the
Credit Agreement.
"Encore" shall mean Encore Promotions, Inc., a New York
corporation and a wholly owned subsidiary
of the Borrower.
"Event of Default" shall have the meaning given to such term
in the Credit Agreement.
"Exchange Rate" shall have the meaning given to such term in
the Credit Agreement.
"Existing Collateral" shall have the meaning given to such
term in paragraph F of the introductory
statement hereof.
"Existing Collateral Agent" shall have the meaning given to
such term in paragraph C of the
introductory statement hereof.
"Existing Credit Agreement" shall have the meaning given to
such term in paragraph A of the
introductory statement hereof.
"Existing Credit Agreement Obligations" shall have the meaning
given to such term in paragraph F of the
introductory statement hereof.
"Existing Intercreditor Agreement" shall have the meaning
given to such term in paragraph C of the
introductory statement hereof.
"Existing Lenders" shall have the meaning given to such term
in paragraph A of the introductory
statement hereof.
"Existing Note Agreement" shall have the meaning given to such
term in paragraph B of the introductory
statement hereof.
"Existing Note Agreement Obligations" shall have the meaning
given to such term in paragraph F of the
introductory statement hereof.
"Existing Noteholders" shall have the meaning given to such
term in paragraph B of the introductory
statement hereof.
"Existing Notes" shall have the meaning given to such term in
paragraph B of the introductory statement
hereof.
"Existing Obligations" shall have the meaning given to such
term in paragraph G of the introductory
statement hereof.
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"Existing Secured Obligations" shall have the meaning given to
such term in paragraph F of the
introductory statement hereof.
"Existing Security Documents" shall have the meaning given to
such term in the Credit 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 Tranche A Standby L/C Obligations" shall mean the
then outstanding Bank of America L/C
Obligations and the then outstanding
Tranche A Portion of the HSBC China L/C
Obligations.
"Existing Trade L/C Issuer" shall have the meaning given to
such term in the preamble paragraph
hereof.
"Existing Trade L/C Obligations" shall mean the reimbursement
obligations of the Borrower owing to the
Existing Trade L/C Issuer in respect of
the Existing Trade L/Cs.
"Existing Trade L/Cs" shall mean each of the trade letters of
credit set forth on Schedule II hereto.
"Fee Letter" shall have the meaning given to such term in the
Credit Agreement.
"Food Service" shall mean Oneida Food Service, Inc., a New
York corporation and a wholly owned
subsidiary of the Borrower.
"Fundamental Documents" shall have the meaning given to such
term in the Credit Agreement.
"Guarantors" shall have the meaning given to such term in the
preamble paragraph hereof.
"HSBC" shall have the meaning given to such term in the
preamble paragraph hereof.
"HSBC China L/C" shall have the meaning given to such term in
paragraph E of the introductory statement
hereof.
"HSBC China L/C Agreement" shall have the meaning given to
such term in paragraph E of the
introductory statement hereof.
"HSBC China L/C Obligations" shall have the meaning given to
such term in paragraph E of the
introductory statement hereof.
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"Insolvency Proceeding" shall mean any action, case or
proceeding commenced by or against an
entity, or any agreement of such entity,
for (a) the entry of an order for relief
under any chapter of the Bankruptcy
Code or other insolvency or debt adjustment
law (whether state, federal or
foreign), (b) the appointment of a
receiver, trustee, liquidator or other
custodian for such entity or any part of
its property, (c) an assignment or
trust mortgage for the benefit of creditors
of such entity, or (d) except as
permitted pursuant to the terms of the
Credit Agreement, the liquidation,
dissolution or winding up of the affairs of
such entity in each case, whether
voluntary or involuntary, partial or
complete.
"Issuing Bank" shall mean JPMorgan Chase Bank as an issuer of
any letter of credit under the Credit
Agreement.
"Kenwood" shall mean Kenwood Silver Company, Inc., a New York
corporation and a wholly owned subsidiary
of the Borrower.
"L/C Exposure" shall have the meaning given to such term in
the Credit Agreement.
"Letter of Credit" shall have the meaning given to such term
in the Credit Agreement.
"Letter of Credit Obligations" shall mean the reimbursement
obligations of the Borrower in respect of
any Letter of Credit, including the
obligation of the Borrower to cash
collateralize the L/C Exposure as required by
the Credit Agreement.
"Lenders" shall have the meaning given to such term in the
Credit Agreement.
"Lien" shall have the meaning given to such term in the Credit
Agreement.
"Loans" shall have the meaning given to such term in the
Credit Agreement.
"Notice of Default" shall mean a written notice duly delivered
to the Collateral Agent by the
Administrative Agent stating that an Event of
Default has occurred and is continuing.
"Obligations" shall have the meaning given to such term in the
Credit Agreement.
"Outstanding" shall mean, at any time, any Obligations then or
theretofore issued or incurred by any
Credit Party, including without
limitation, any obligation under the Credit
Agreement to provide cash collateral
in respect of outstanding letters of credit
or drafts drawn thereunder.
"Person" shall mean any natural person, corporation, limited
liability company, partnership, trust,
joint venture, association, company,
estate, business entity, unincorporated
organization or government or any agency
or political subdivision thereof.
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"Required Revolving Credit Lenders" shall mean holders of
greater than fifty percent (50%) of the sum
of the aggregate amounts of (i) the
unpaid principal amount of the Revolving
Credit Loans, if any, and L/C Exposure
then outstanding (or if no Revolving Credit
Loans and no Letters of Credit are
then outstanding, the Total Revolving
Credit Commitment) plus (ii) the Existing
Trade L/C Obligations remaining
outstanding; 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 Secured Parties" shall mean (i) so long as (A) any
Revolving Credit Loans remain outstanding
and/or the Revolving Credit
Commitments of the Revolving Credit Lenders
under the Credit Agreement have not
been terminated, (B) any Tranche A Term
Loans remain outstanding, (C) any of the
Existing Trade L/C Obligations remain
outstanding, or (D) any of the Existing
Standby Tranche A L/C Obligations remain
outstanding, the Required Revolving
Credit Lenders and the Required Tranche A
Term Loan Lenders and (ii) at any time
thereafter, the Required Tranche B Term
Loan Lenders; provided that upon the
occurrence and continuance of an Event of
Default as a result of non-payment of
the principal amount of the Revolving
Credit Loans when due and owing at a time
when the principal amount of the Tranche A
Term Loans is not due and owing,
Required Secured Parties shall mean the
Required Revolving Credit Lenders.
"Required Tranche A Term Loan Lenders" shall mean holders of
greater than fifty percent (50%) of the sum
of the aggregate amounts of (i) the
unpaid principal amount of the Tranche A
Term Loans plus (ii) the Bank of
America L/C Obligations remaining
outstanding plus (iii) the Tranche A Portion
of the HSBC China L/C Obligations remaining
outstanding.
"Required Tranche B Term Loan Lenders" shall mean holders of
greater than fifty percent (50%) of the sum
of the aggregate amounts of (i) the
unpaid principal amount of the Tranche B
Term Loans plus (ii) the Tranche B
Portion of the HSBC China L/C Obligations
remaining outstanding.
"Responsible 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 the general partner
or managing partner of such entity (or of
the general partner or managing
partner of such entity, if not a natural
person), as the case may be.
"Revolving Credit Commitment" shall mean the commitment by the
Revolving Credit Lenders to make the
Revolving Credit Loans pursuant to the
Credit Agreement.
"Revolving Credit Lenders" shall mean, at any time, the
Revolving Credit Lenders party to the
Credit Agreement.
"Revolving Credit Loans" shall have the meaning given to such
term in the Credit Agreement.
"Sakura" shall mean Sakura, Inc., a New York corporation and a
wholly owned subsidiary of the
Borrower.
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"Secured Obligations" shall mean (i) the Obligations and (ii)
all sums payable by the Credit Parties
under the Fundamental Documents
(including, without limitation, Collateral
Agent Fees).
"Secured Parties" shall mean at any time the holders or
obligees of the Secured Obligations.
"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
and the Amended and Restated Mortgages,
together with any and all financing
statements, collateral assignments and
other security documents delivered to the
Collateral Agent granting or purporting to
grant a Lien 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 mean Oneida Silversmiths, Inc., a New
York corporation and a wholly owned
subsidiary of the Borrower.
"Subsidiary" shall mean with respect to any Person, any
corporation, limited liability company,
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 have the meaning given to such term
in the Credit Agreement.
"Swingline Loan" shall have the meaning given to such term in
the Credit Agreement.
"THC" shall have the meaning given to such term in paragraph B
of the introductory statement hereof.
"Tranche A Obligations" shall mean the Tranche A Term Loans
and the Existing Tranche A Standby L/C
Obligations.
"Tranche A Portion of the HSBC China L/C" shall mean 61.52% of
the then undrawn amount of the HSBC China
L/C.
"Tranche A Portion of the HSBC China L/C Obligations" shall
mean 61.52% of the then outstanding HSBC
China L/C Obligations.
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"Tranche A Term Loan Lenders" shall mean (i) each Lender
holding Tranche A Term Loans under the
Credit Agreement, (ii) Bank of America as
issuer of the Bank of America L/C and (iii)
HSBC as issuer of the Tranche A
Portion of the HSBC China L/C.
"Tranche A Term Loans" shall mean the Tranche A Term Loans
made to the Borrower pursuant to the Credit
Agreement.
"Tranche B Obligations" shall mean the Tranche B Term Loans
and the Tranche B Portion of the HSBC China
L/C Obligations.
"Tranche B Portion of the HSBC China L/C" shall mean 38.48% of
the then undrawn amount of the HSBC China
L/C.
"Tranche B Portion of the HSBC China L/C Obligations" shall
mean 38.48% of the then outstanding HSBC
China L/C Obligations.
"Tranche B Term Loan Lenders" shall mean (i) each Lender
holding Tranche B Term Loans under Tranche
B Term Loans under the Credit
Agreement and (ii) HSBC as issuer of the
Tranche B Portion of the HSBC China
L/C.
"Tranche B Term Loans" shall mean the Tranche B Term Loans
made to the Borrower pursuant to the Credit
Agreement.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement
shall refer to this Agreement as a
whole and not to any particular provision
of this Agreement, and section and
subsection references are of this Agreement
unless otherwise specified.
Section 2. Subordination of Obligations. To the fullest extent
permitted under law, (i) the Tranche A Term
Loan Lenders and the Tranche B Term
Loan Lenders agree that the Tranche A
Obligations and Tranche B Obligations,
respectively, are hereby expressly
subordinated, to the extent and in the manner
set forth in Sections 2, 3, 4 and 5 hereof,
to the payment in full in cash of
(A) all Swingline Loans, if any, all
Revolving Credit Loans and all Letter of
Credit Obligations outstanding under the
Credit Agreement and (B) all Existing
Trade L/C's Obligations and (ii) the
Tranche B Term Loan Lenders agree that the
Tranche B Obligations are hereby expressly
subordinated, to the extent and in
the manner set forth in Sections 2, 3, 4
and 5 hereof, to the payment in full in
cash of all of the Tranche A Obligations
outstanding under the Credit Agreement.
Section 3. Dissolution or Insolvency. (a) Upon any Insolvency
Proceeding commenced by or against any
Credit Party or its property: the
Swingline Lender, the Revolving Credit
Lenders, the Issuing Bank and the
Existing Trade L/C Issuer shall, as between
(i) the Swingline Lender, the
Revolving Credit Lenders, the Issuing Bank
and the Existing Trade L/C Issuer, on
the one hand, and (ii) the Tranche A Term
Loan Lenders and the Tranche B Term
Loan Lenders, on the other hand, first be
entitled to receive payment in full in
cash of all of the Obligations remaining
unpaid in connection with the (A)
Swingline Loans, if any, (B) the Revolving
Credit Loans and the Revolving Credit
Commitment (including any interest that
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accrues during the pendency of any
Insolvency Proceeding, whether or not the
Swingline Lender or the Revolving Credit
Lenders are authorized under the
Bankruptcy Code (or other Applicable Law)
to collect such interest from any
Credit Party), (C) the Letter of Credit
Obligations, and (D) the Existing Trade
L/C Obligations before the Tranche A Term
Loan Lenders or the Tranche B Term
Loan Lenders shall be entitled to receive
any payment on account of the Tranche
A Obligations or the Tranche B Obligations,
as the case may be, whether as
principal, interest or otherwise; and any
payment by, or distribution of the
assets of, such Credit Party of any kind or
character, whether in cash, property
or securities, to which the Tranche A Term
Loan Lenders or the Tranche B Term
Loan Lenders, as the case may be, would be
entitled except for the provisions of
the immediately preceding clause above,
shall be paid directly to the Swingline
Lender, the Revolving Credit Lenders, the
Issuing Bank and the Existing Trade
L/C Issuer, on a pro rata basis, or, upon
receipt by the Tranche A Term Loan
Lenders or the Tranche B Term Loan Lenders,
as the case may be, be held in trust
for the Swingline Lender, the Revolving
Credit Lenders, the Issuing Bank and the
Existing Trade L/C Issuer and promptly paid
or delivered directly to the
Collateral Agent for the benefit of the
Swingline Lender, the Revolving Credit
Lenders, the Issuing Bank and the Existing
Trade L/C Issuer to the extent
necessary to make payment in full in cash
of all of the Obligations remaining
unpaid in connection with the Swingline
Loans, if any, the Revolving Credit
Loans, the Letter of Credit Obligations and
the Existing Trade L/C Obligations,
after giving effect to any concurrent
payment or distribution to the Swingline
Lender in respect of the outstanding
Swingline Loans, the Revolving Credit
Lenders in respect of the outstanding the
Revolving Credit Loans, the Issuing
Bank in respect of the Letter of Credit
Obligations and the Existing Trade L/C
Issuer in respect of Existing Trade L/C
Obligations.
(b) In the event all of the Swingline Loans, the Revolving
Credit Loans, the Letter of Credit
Obligations and the Existing Trade L/C
Obligations shall have been satisfied in
full, upon any Insolvency Proceedings
commenced by or against any Credit Party or
its property: the holders of Tranche
A Obligations shall, as between the Tranche
A Term Loan Lenders and the Tranche
B Term Loan Lenders, first be entitled to
receive payment in full in cash of the
Obligations remaining unpaid in connection
with the Tranche A Obligations
(including any interest that accrues during
the pendency of any Insolvency
Proceeding, whether or not the Tranche A
Term Lenders are authorized under the
Bankruptcy Code (or other Applicable Law)
to collect such interest from any
Credit Party) before the Tranche B Term
Loan Lenders shall be entitled to
receive any payment on account of the
Tranche B Obligations, whether as
principal, interest or otherwise; and any
payment by, or distribution of the
assets of, such Credit Party of any kind or
character, whether in cash, property
or securities, to which the Tranche B Term
Loan Lenders, would be entitled
except for the provisions of the
immediately preceding clause above, shall be
paid directly to the Tranche A Term Loan
Lenders or, upon receipt by the Tranche
B Term Loan Lenders, be held in trust for
the Tranche A Term Loan Lenders and
promptly paid or delivered directly to the
Collateral Agent for the benefit of
the Tranche A Term Loan Lenders to the
extent necessary to make payment in full
in cash of all of the Obligations remaining
unpaid in connection with the
Tranche A Obligations, after giving effect
to any concurrent payment or
distribution to the Tranche A Term Loan
Lenders in respect of the outstanding
Tranche A Obligations.
<PAGE>
Section 4. Certain Agreements With Respect to Bankruptcy or
Insolvency Proceedings; Reinstatement. (a)
Upon any Insolvency Proceeding
commenced by or against any Credit Party or
its property, each Tranche B Term
Loan Lender, shall not, so long as any
Swingline Loans, Revolving Credit Loans
or Tranche A Obligations are outstanding,
(i) seek in respect of any part of the
Collateral or proceeds thereof or any Lien
which may exist thereon any relief
from or modification of the automatic stay
as provided in Section 362 of the
Bankruptcy Code or seek or receive or
accept any form of adequate protection
under either or both of Sections 362 and
363 of the Bankruptcy Code with respect
thereto except replacement liens junior to
the Liens securing the Swingline
Loans, if any, the Revolving Credit Loans,
the Letter of Credit Obligations, the
Existing Trade L/C Obligations and the
Tranche A Obligations, the accrual (but
not the current payment) of interest by the
holders of the Tranche B Term Loans,
the accrual (but not the current payment)
of letter of credit fees in respect of
the Tranche B Portion of the HSBC China L/C
and the current payment of
out-of-pocket expenses, including fees and
disbursements of counsel and other
professional advisors, incurred by the
Administrative Agent for the holders of
the Tranche B Term Loans in accordance with
the Credit Agreement (which the
holders of the Tranche B Obligations agree
will constitute adequate protection
of their claims and interests), (ii) oppose
or object to any adequate protection
sought by or granted to any holder of
Swingline Loans, if any, Revolving Credit
Loan, the Letter of Credit Obligations, the
Existing Trade L/C Obligation or
Tranche A Obligations, including, but not
limited to, adequate protection sought
in connection with the use of cash
collateral or post-petition financing under
Sections 362, 363 or 364 of the Bankruptcy
Code, (iii) oppose or object to the
use of cash collateral by a Credit Party
that is consented to by the Required
Secured Parties, (iv) oppose or object to
any post-petition financing (including
any debtor-in-possession financing)
provided by any of the Revolving Credit
Lenders or Tranche A Term Loan Lenders or
provided by a third party pursuant to
Section 364 of the Bankruptcy Code
(including on a priming basis) that is
consented to by the Required Secured
Parties, (v) oppose or object to or
withhold consent from the disposition of
assets by any Credit Party under
Section 363(b) of the Bankruptcy Code that
is consented to by the Required
Secured Parties, (vi) oppose, object to, or
vote against any plan of
reorganization or disclosure statement the
terms of which are consistent with
the rights of the Issuing Bank, the
Revolving Credit Lenders, the Existing Trade
L/C Issuer or Tranche A Term Loan Lenders
under the Credit Agreement, the
Security Documents, the Existing Trade
L/Cs, the Existing Standby L/Cs or this
Agreement, (vii) oppose or object to the
determination of the extent of any
Liens held by Collateral Agent for the
benefit of the Swingline Lender, the
Revolving Credit Lenders, the Issuing Bank,
the Existing Trade L/C Issuer and
the Tranche A Term Loan Lenders or the
value of any claims of the Swingline
Lender, the Revolving Credit Lenders, the
Issuing Bank, the Existing Trade L/C
Issuer or the Tranche A Term Loan Lenders
under Section 506(a) of the Bankruptcy
Code, or (viii) oppose or object to the
payment of interest and expenses as
provided under Sections 506(b) and (c) of
the Bankruptcy Code to the Swingline
Lender, the Revolving Credit Lenders, the
Issuing Bank, the Existing Trade L/C
Issuer or the Tranche A Term Loan
Lenders.
(b) In the event that any of the Swingline Loans, if any, the
Revolving Credit Loans, the Letter of
Credit Obligations, the Existing Trade L/C
Obligations or the Tranche A Obligations,
as the case may be, shall be paid in
full and such payment or any part thereof
shall subsequently, for whatever
reason (including, but not limited to, an
order or judgment for disgorgement of
a preference under the Bankruptcy Code, or
any similar law, or the settlement of
<PAGE>
any claim in respect thereof), be required
to be returned or repaid, the terms
and conditions of Sections 2, 3, 4 and 5
hereof shall be fully applicable until
all of the Obligations in connection with
the Swingline Loans, if any, the
Revolving Credit Loans, the Letter of
Credit Obligations, the Existing Trade L/C
Obligations and the Tranche A Obligations
shall again have been paid in full in
cash.
(c) Except as otherwise provided in Sections 2, 3, 4 or 5
hereof, so long as no Event of Default has
occurred and is continuing, holders
of Tranche A Obligations and Tranche B
Obligations may accept and retain any
regularly scheduled installment of interest
(including any installment of
interest which is capitalized rather than
paid in cash when due in accordance
with the terms of the Credit Agreement) or
letter of credit fees or regularly
scheduled installment of principal
(including any scheduled amortization
payments) as and when due and payable to
holders of Tranche A Obligations and
Tranche B Obligations, as the case may be,
under the Credit Agreement.
(d) Except as otherwise provided in Sections 2, 3, 4 or 5
hereof, and subject to Section 2.10(b) of
the Credit Agreement, so long as no
Event of Default has occurred and is
continuing, holders of Tranche A
Obligations and Tranche B Obligations may
accept and retain any prepayments of
principal made by the Borrower in
accordance with the terms of the Credit
Agreement to holders of Tranche A
Obligations and Tranche B Obligations under
the Credit Agreement.
Section 5. Collateral Account; Distributions. (a) Upon the
receipt by the Collateral Agent of a Notice
of Default, at the direction of the
Required Secured Parties, there shall be
established and, at all times
thereafter until this Agreement shall have
terminated, there shall be maintained
with the Collateral Agent at the office of
the Collateral Agent, an account
which shall be entitled the "ONEIDA
Collateral Account" (the "Collateral
Account"). All moneys which are required by
this Agreement, the Credit Agreement
or the Security Documents to be delivered
to the Collateral Agent while a Notice
of Default is in effect or which are
received by the Collateral Agent or any
agent or nominee of the Collateral Agent in
respect of the Collateral, whether
in connection with the exercise of the
remedies provided in this Agreement, the
Credit Agreement or the Security Documents
or otherwise, while a Notice of
Default is in effect, shall be deposited in
the Collateral Account and
thereafter shall be held by the Collateral
Agent as part of the Collateral and
applied in accordance with the terms of
this Agreement. Upon the cancellation of
any Notice of Default pursuant to Section
6(b)(ii) hereof, the Collateral Agent
shall (subject to the first sentence of
Section 5(d) hereof) promptly cause all
funds on deposit in the Collateral Account
to be paid over to the Borrower
except as may otherwise be required
pursuant to the Credit Agreement.
(a) All right, titl
