Exhibit 10.46
AMENDMENT NO. 5
to
LOAN AND SECURITY AGREEMENT
dated as of April 16, 1997
THIS AMENDMENT NO. 5 dated as of March 26, 2001 (this "Amendment") is
made by SYRATECH CORPORATION, a Delaware corporation, XXXXX MANUFACTURING
COMPANY, a Delaware corporation, XXXXXXX XXXXXXXX ASSOCIATES, INC., a
Massachusetts corporation, XXXXXXX INTERNATIONAL SILVERSMITHS, INC., a Delaware
corporation, XXXXX INDUSTRIES, INC., a North Carolina corporation, ROCHARD,
INC., a New York corporation, HOLIDAY PRODUCTS, INC., a North Carolina
corporation, FARBERWARE INC., a Delaware corporation, XXXXXXXXX, INC., a
Delaware corporation, the financial institutions parties hereto from time to
time as "Lenders," and BANK OF AMERICA, N.A., formerly known as NATIONSBANK,
N.A., a national banking association, as administrative agent for the Lenders
(the "Administrative Agent").
Preliminary Statements
----------------------
The Borrowers, the Lenders and the Administrative Agent are parties to
a Loan and Security Agreement dated as of April 16, 1997, as amended by
Amendment No. 1 dated as of July 31, 1997, Amendment No. 2 dated as of December
31, 1997, Amendment No. 3 dated as of March 30, 1998 and Amendment No. 4 and
Consent dated as of March 26, 1999 (the "Loan Agreement"; terms defined in the
Loan Agreement and not otherwise defined herein being used herein as therein
defined).
The Borrowers have requested that the Administrative Agent and the
Lenders amend the provisions of the Loan Agreement to amend two financial
covenants set forth therein and to increase the Inventory sublimit set forth in
the definition "Borrowing Base," and the Lenders and the Administrative Agent
have agreed so to amend the Loan Agreement, upon and subject to all of the
terms, conditions and provisions hereof.
NOW, THEREFORE, in consideration of the Loan Agreement, the Loans made
by the Lenders and outstanding thereunder, the mutual promises hereinafter set
forth and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendment to Loan Agreement. The Loan Agreement is hereby
amended, effective as provided in Section 2, by:
(a) amending Section 1.1 Definitions by amending subpart (b) of the
definition "Borrowing Base" appearing therein to read in its entirety as
follows:
(b) the lesser of
(i) $65,000,000 (or, during the period May 1 through June 30
of each Fiscal Year, $75,000,000 or, during the period July 1
through September 30 of each Fiscal Year, $85,000,000) and
(ii) 60% (or, during the period May 1 through September 30 of
each Fiscal Year, 70%) (or, in either case, such lesser
percentage as the Administrative Agent may in its reasonable
credit judgment, applying standards customary to institutional
asset-based lenders, determine from time to time following any
adverse change in quality, composition, salability or other
measure of value of the Inventory) of the Cost of Eligible
Inventory at such time, minus
(b) amending Sections 11.1(b) Total Funded Debt to EBITDA and (c) Fixed
Charge Coverage in their entireties to read as follows:
(b) Total Funded Debt to EBITDA. Total Funded Debt to EBITDA
for any period of four consecutive Fiscal Quarters ending on or after a
date specified below, to be greater than the ratio specified opposite
such date:
Date Ratio
---- -----
3/31/00 8.46 to 1
6/30/00 8.36 to 1
9/30/00 7.96 to 1
12/31/00 7.64 to 1
3/31/01 8.46 to 1
6/30/01 8.36 to 1
9/30/01 7.96 to 1
Any Fiscal Quarter
ending on or after 12/31/01 7.23 to 1
(c) Fixed Charge Coverage. Fixed Charge Coverage for any period of four
consecutive Fiscal Quarters ending on or after a date specified below to be less
than the ratio specified opposite such date:
Date Ratio
---- -----
3/31/00 0.866 to 1
6/30/00 0.866 to 1
9/30/00 0.900 to 1
12/31/00 1.00 to 1
3/31/00 0.866 to 1
6/30/01 0.866 to 1
9/30/01 0.900 to 1
Any Fiscal Quarter
ending on or after 12/31/01 1.015 to 1
Section 2. Effectiveness of Amendment. Section 1 of this Amendment
shall become effective as of the date hereof on the date (the "Amendment
Effective Date") on which the Administrative Agent shall have received (1) an
amendment fee in the amount of $307,500 to be shared Ratably among the Lenders
in accordance with their respective Commitments, which fee shall not be subject
to refund or rebate of any kind whatsoever, and (2) each of the following
documents (in sufficient copies for each Lender):
(a) this Amendment duly executed and delivered by each Borrower and the
Lenders,
(b) a certificate of the Secretary of each Borrower having attached
thereto the articles or certificate of incorporation and bylaws of such Borrower
as in effect on the Amendment Effective Date (or containing the certification of
such Secretary that no amendment or modification of such articles or certificate
or bylaws has become effective since the last date on which such documents were
delivered to the Administrative Agent pursuant to the Loan Agreement), and to
the further effect that the incumbency certificate and corporate action
delivered in connection with the occurrence of the date hereof remain in effect,
unchanged,
(c) a certificate of the President or Financial Officer of Syratech to
the effect that
(i) the representations and warranties of the Borrowers
contained in the Loan Documents are true and correct in all material respects on
and as of the date hereof as if made on and as of the Amendment Effective Date,
and
(ii) no Default or Event of Default has occurred and is
continuing and such statements shall be true; and
(d) such other documents, certificates and instruments in connection
with the effectiveness of this Amendment as the Administrative Agent or any
Lender may reasonably request.
Section 3. Effect of Amendment. From and after the effectiveness of
this Amendment, all references in the Loan Agreement and in any other Loan
Document to "this Agreement," "the Loan Agreement," "hereunder," "hereof" and
words of like import referring to the Loan Agreement, shall mean and be
references to the Loan Agreement as amended by this Amendment. Except as
expressly amended hereby, the Loan Agreement and all terms, conditions and
provisions thereof remain in full force and effect and are hereby ratified and
confirmed. The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Administrative Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
Section 4. Counterpart Execution; Governing Law.
(a) Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed signature page of any party hereto by facsimile
transmission shall be effective as delivery of a manually delivered counterpart
thereof.
(b) Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Georgia without giving effect to the
conflict of laws principles thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
BORROWERS:
SYRATECH CORPORATION
By:/s/ Xxx X. Xxxxxxx
---------------------
Name: Xxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
XXXXX MANUFACTURING COMPANY
By:/s/ Xxx X. Xxxxxxx
---------------------
Name: Xxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
XXXXXXX XXXXXXXX ASSOCIATES, INC.
By:/s/ Xxx X. Xxxxxxx
---------------------
Name: Xxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
XXXXXXX INTERNATIONAL SILVERSMITHS,
INC.
By:/s/ Xxx X. Xxxxxxx
---------------------
Name: Xxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
XXXXX INDUSTRIES, INC.
By:/s/ Xxxxxxx Xxxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chairman of the Board and Chief Executive Officer
ROCHARD, INC.
By:/s/ Xxxxxxx Xxxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chairman of the Board and Chief Executive Officer
HOLIDAY PRODUCTS, INC.
By:/s/ Xxxxxxx Xxxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chairman of the Board and Chief Executive Officer
FARBERWARE INC.
By:/s/ Xxx X. Xxxxxxx
---------------------
Name: Xxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
XXXXXXXXX, INC.
By:/s/ Xxx X. Xxxxxxx
---------------------
Name: Xxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO
By: /s/ Xxxx X. Xxxxxx
------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxxx X. X'Xxxxx
----------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Senior Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxx X. Xxxxx
------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
