EXHIBIT 10.31
EXECUTION COPY
LIMITED WAIVER AND AMENDMENT NO. 11
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Limited Waiver and Amendment No. 11 (the "Limited Waiver and
Amendment"), dated as of March 31, 2004, is among ONEIDA LTD., a New York
corporation (the "Borrower" or "Oneida"), JPMORGAN CHASE BANK (formerly known as
The Chase Manhattan Bank), as Administrative Agent under the Amended and
Restated Credit Agreement referred to below ("Administrative Agent"), and the
Lenders which are parties to the Amended and Restated Credit Agreement referred
to below (the "Lenders").
R E C I T A L S
A. Borrower, the Administrative Agent, and the Lenders are parties to an
Amended and Restated Credit Agreement dated as of April 27, 2001, as amended by
an Amendment No. 1 dated as of May 31, 2001, a Waiver and Amendment No. 2 dated
as of December 7, 2001, an Amendment No. 3 dated as of April 23, 2002, an
Amendment No. 4 dated as of August 24, 2003, a Limited Waiver and Amendment No.
5 dated as of October 31, 2003, a Limited Waiver and Amendment No. 6 dated as of
November 21, 2003, Limited Waiver and Amendment No. 7 dated as of December 12,
2003, Limited Waiver and Amendment No. 8 dated as of January 30, 2004, a Limited
Waiver and Amendment No. 9 dated as of February 27, 2004 and a Limited Waiver
and Amendment No. 10 dated as of March 12, 2004 (the "Credit Agreement").
B. Borrower has requested that the Administrative Agent and the Lenders
waive the Defaults and Events of Default arising out of the Borrower's failure
to comply with Section 6.11(a), (b), (c) and (d) of the Credit Agreement for the
Fiscal Quarters ended October 25, 2003 and January 31, 2004, and amend the
Credit Agreement to, among other things, defer the scheduled reduction in the
Lenders' Revolving Commitments (as defined in the Credit Agreement).
C. The Administrative Agent and the Lenders are willing to grant the waiver
requested by the Borrower and amend the Credit Agreement subject to and upon the
terms and conditions set forth herein.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. All capitalized terms used in this Limited Waiver and
Amendment which are not otherwise defined shall have the meanings given to those
terms in the Credit Agreement, except where such terms are amended herein.
2. Waiver. The Lenders hereby waive, for the period commencing on the
Effective Date (as defined below) of this Limited Waiver and Amendment and
ending on April 14, 2004 (the "Waiver Period"), the Defaults and Events of
Default created as a result of the Borrower's failure to comply with Sections
6.11(a), (b), (c) and (d) of the Credit Agreement for the Fiscal Quarters ended
October 25, 2003 and January 31, 2004, provided that upon the expiration of the
Waiver Period, the waiver provided for herein shall be immediately (without cure
period or notice) and automatically terminated in its entirety and be of no
force and effect as if the waiver had never been granted; provided further that
in the event the Borrower or any of its Subsidiaries makes any payments in
respect of the $2,000,000 Promissory Note issued by the Borrower dated September
30, 2003, the waiver provided for herein shall immediately (without cure period
or notice) and automatically be terminated in its entirety and be of no force
and effect as if the waiver had never been granted. This waiver is limited to
the failure to comply with Sections 6.11(a), (b), (c) and (d) at October 25,
2003 and January 31, 2004, and shall not constitute or be construed as a waiver
of any other presently existing or future Defaults or Events of Default.
3. Amendment to Section 1.01 of Credit Agreement. Section 1.01 of the
Credit Agreement is hereby amended by inserting the following new defined term
in the appropriate alphabetical order:
"Amendment No. 11 Effective Date" means the date on which all the
conditions to the Limited Waiver and Amendment No. 11, dated as
of March 31, 2004, have been satisfied.
4. Amendment to Section 3.04(b) of Credit Agreement. Section 3.04(b) is
amended in its entirety to read as follows:
(b) For any representations and warranties made during the period
commencing on the Amendment No. 5 Effective Date through April
14, 2004, since January 27, 2001, there has been no material
adverse change in the business, assets, operations, prospects or
condition, financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole, and no sale, transfer or other
disposition of a material part of the assets or business of
Borrower or any Subsidiary, except for any material adverse
change that has been publicly disclosed or otherwise disclosed in
writing to the Lenders on or before the Amendment No. 11
Effective Date.
5. Amendment to Section 6.03(a) of the Credit Agreement. Section 6.03(a) of
the Credit Agreement is hereby amended by (A) deleting the word "and"
immediately preceding clause (vi) appearing in the first sentence thereof and
(B) inserting the following new clause (vii) at the end of the first sentence
thereof:
"; and (vii) Borrower and its Subsidiaries may sell, transfer, or
otherwise dispose of (in one transaction or a series of
transactions) the manufacturing and/or distribution centers and
other miscellaneous assets and machinery located in Mexico,
Canada, Italy and China for an amount not to exceed $10,000,000
in the aggregate for all such sales, transfers, or dispositions
after the Amendment No. 11 Effective Date, provided that (A) the
Borrower shall use reasonable efforts to have the proceeds from
any such sale, transfer or disposition permitted under this
clause (vii) (after deducting the reasonable expenses of such
sale, transfer or disposition and any applicable foreign tax
obligations and U.S. federal and state tax obligations payable on
taxable gains realized from such sale, transfer or disposition)
wired to its concentration account maintained with the Agent and
(B) all of such net proceeds referred to in clause (A) above
shall not be used for any purpose by the Borrower or its
Subsidiaries other than to prepay, on a pro rata basis, the Loans
outstanding under this Agreement and the indebtedness outstanding
under the Note Agreements."
6. Amendment to Section 9.04(b) of the Credit Agreement. Section 9.04(b) of
the Credit Agreement is hereby amended by (A) deleting clause (i) appearing in
the proviso in the first sentence thereof in its entirety and inserting in lieu
thereof the following new clause (i):
"(i) Intentionally Omitted,"; and
(B) deleting the second sentence appearing therein in its entirety.
7. Amendment to Schedule 2.01 of Credit Agreement. Schedule 2.01 of the
Credit Agreement is hereby amended by deleting the final page thereof in its
entirety and inserting the following in lieu thereof:
"SCHEDULE 2.01 (Con't.)
Scheduled Reductions in Lenders' Aggregate
Revolving Commitments
Amount of Aggregate
Reduction in
Revolving
Date Commitments 1/
----------------------- -------------------
Amend. #3 Eff. Date $30,000,000
11/1/02 $10,000,000
Amend. #4 Eff. Date $10,000,000
7/25/03 $ 5,000,000
4/14/04
(originally
scheduled for 11/03/03) $ 5,000,000
4/14/04 (originally
scheduled for 1/31/04) $10,000,000
4/14/04 (originally
scheduled for 2/7/04) $20,000,000
5/3/04 $10,000,000
11/1/04 $10,000,000"
----------
1/ These scheduled reductions in the Revolving Commitments are in addition
to reductions to the Revolving Commitments pursuant to Section 2.07 and Section
6.03 hereof.
8. Representations and Warranties. The Borrower represents and warrants to
the Administrative Agent and the Lenders that the following statements are true,
correct and complete:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower in the Credit Agreement, as amended hereby, is
true and correct on and as of the date of this Limited Waiver and Amendment.
(b) No Default or Event of Default. After giving effect to this
Limited Waiver and Amendment, no Default or Event of Default has occurred and is
continuing.
(c) Execution, Delivery and Enforceability. This Limited Waiver and
Amendment has been duly and validly executed and delivered by the Borrower and
constitutes its legal, valid and binding obligation, enforceable against the
Borrower in accordance with its terms.
9. Covenant. In order to induce the Lenders to enter into this Limited
Waiver and Amendment, the Borrower hereby covenants (the failure to perform
which will be an additional Event of Default under the Credit Agreement) that it
shall continue to work with the Administrative Agent, the Lenders and Xxxxxxx &
Marsal regarding the financial forecast delivered pursuant to paragraph 7(b) of
the Limited Waiver and Amendment No. 5 dated as of October 31, 2003 (including
updating such financial forecast).
10. Conditions to Effectiveness of Limited Waiver and Amendment. This
Limited Waiver and Amendment shall be effective on the date (the "Effective
Date") when and if each of the following conditions is satisfied:
(a) Consent of Guarantors. Each of the Guarantors shall have executed
and delivered to the Administrative Agent the Consent of Guarantors attached to
this Limited Waiver and Amendment.
(b) No Default or Event of Default; Accuracy of Representations and
Warranties. The Borrower shall deliver to the Administrative Agent a certificate
of a Financial Officer certifying that, after giving effect to this Limited
Waiver and Amendment, no Default or Event of Default shall exist and each of the
representations and warranties made by the Borrower or any of its Subsidiaries
herein and in or pursuant to the Transaction Documents shall be true and correct
in all material respects as if made on and as of the date on which this Limited
Waiver and Amendment becomes effective.
(c) Expense Reimbursements. The Borrower shall have paid all
reasonable invoices presented to the Borrower for expense reimbursements
(including reasonable attorneys' and financial advisors' fees and disbursements)
due to the Administrative Agent (including, without limitation, the fees and
expenses of Xxxxxx, Xxxxx & Bockius LLP and Xxxxxxx & Marsal) or any Lender in
accordance with Section 9.03 of the Credit Agreement.
(d) Execution by Lenders. The Administrative Agent shall have received
a counterpart of this Limited Waiver and Amendment duly executed and delivered
by the Borrower, the Administrative Agent, and each Lender.
(e) Waiver Pursuant to Note Agreement. The Administrative Agent shall
have received a copy of an executed waiver of any Default or Event of Default
arising under the 2001 Amended and Restated Note Agreement governing the senior
notes of Borrower due May 31, 2005 (the "2001 Amended and Restated Note
Agreement"), duly executed by Borrower and the noteholders described therein,
(i) deferring the required principal payment currently due on March 31, 2004 to
no earlier than April 14, 2004 and (ii) waiving any Default or Event of Default
arising from failure to satisfy any financial covenants under Section 7.12 of
the 2001 Amended and Restated Note Agreement to April 14, 2004.
11. Further Assurances. The Borrower agrees, at its own expense, to
execute, acknowledge, deliver and cause to be duly filed all such further
instruments and documents and take all such actions as the Collateral Agent may
from time to time reasonably request to better assure, preserve, protect and
perfect the Security Interest (as defined in the Security Agreement) and the
rights and remedies created thereby. In addition, as further security for
payment and performance of the obligations under the Credit Agreement and as
consideration for the Administrative Agent's and the Lenders' agreement to enter
into this Limited Waiver and Amendment, the Borrower hereby further agrees to
grant a perfected pledge and security interest in any additional collateral as
the Collateral Agent may reasonably request.
12. Release. For purposes of this Section, the following terms shall
have the following definitions:
(a) "Related Parties" shall mean, with respect to any released
party, such party's parents, subsidiaries, affiliates, successors, assigns,
predecessors in interest, officers, directors, employees, agents,
representatives, attorneys, financial advisors, accountants and shareholders, if
any.
(b) "Claims" shall mean any and all claims, losses, debts,
liabilities, demands, obligations, promises, acts, omissions, agreements, costs,
expenses, damages, injuries, suits, actions, causes of action, including without
limitation, any and all rights of setoff, recoupment or counterclaim of any kind
or nature whatsoever, in law or in equity, known or unknown, suspected or
unsuspected, contingent or fixed.
Excluding only the continuing obligations of the Lenders and the
Administrative Agent under the express terms of the Credit Agreement, the
Transaction Documents and this Limited Waiver and Amendment, the Borrower hereby
releases, acquits and forever discharges the Lenders and the Administrative
Agent, and each of them, and their respective Related Parties, of and from any
and all Claims arising out of, related or in any way connected with the Credit
Agreement, the Transaction Documents or the transactions contemplated by any
thereof, including, without limitation, any action or failure to act, prior to
the execution of this Limited Waiver and Amendment, in response to or otherwise
in connection with the events or circumstances arising under or otherwise
related to the Credit Agreement, the Transaction Documents or any Defaults or
Events of Default occurring under the Credit Agreement or the Transaction
Documents.
13. Acknowledgement. The Borrower hereby confirms and acknowledges as of
the date hereof that it is validly and justly indebted to the Administrative
Agent and the Lenders for the payment of all obligations under the Credit
Agreement without offset, defense, cause of action or counterclaim of any kind
or nature whatsoever.
14. Confirmation of Credit Agreement and Security Documents. Except as
amended by this Limited Waiver and Amendment, all the provisions of the Credit
Agreement remain in full force and effect from and after the date hereof, and
the Borrower hereby ratifies and confirms the Credit Agreement and each of the
documents executed in connection therewith. This Limited Waiver and Amendment
shall be limited precisely as written and shall not be deemed (a) to be a
consent granted pursuant to, or a waiver or modification of, any other term or
condition of the Credit Agreement or any of the instruments or agreements
referred to therein or (b) to prejudice any right or rights which the
Administrative Agent or the Lenders may now have or have in the future under or
in connection with the Credit Agreement or any of the instruments or agreements
referred to therein. From and after the date hereof, all references in the
Credit Agreement to "this Agreement", "hereof", "herein", or similar terms,
shall refer to the Credit Agreement as amended by this Limited Waiver and
Amendment. Borrower also ratifies and confirms that the Security Documents
remain in full force and effect in accordance with their terms and are not
impaired or affected by this Limited Waiver and Amendment.
15. Counterparts. This Limited Waiver and Amendment may be signed in any
number of counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument. Delivery of
an executed signature page to this Limited Waiver and Amendment by facsimile
transmission shall be as effective as delivery of a manually signed counterpart.
IN WITNESS WHEREOF, the parties have caused this Limited Waiver and
Amendment to be duly executed as of the day and year first above written.
ONEIDA LTD.
By: /s/ XXXXX X. XXXXX
------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
JPMORGAN CHASE BANK (formerly known as The Chase
Manhattan Bank), individually and as
Administrative Agent
By: /s/ XXXXX XXXXX
------------------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
BANC OF AMERICA STRATEGIC SOLUTIONS, INC.
(assignee of Bank of America, Inc.)
By: /s/ XXXXXXX X. XXXX
------------------------------------------------
Name: Xxxxxxx X. Xxxx
Title:Vice President
FLEET NATIONAL BANK
By: /s/ XXXXXX X. XXXXXX
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Officer
HSBC BANK USA
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By: /s/ XXXXXX X. XXXXX
------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
CITIBANK, N.A. (successor to European American Bank)
By: /s/ XXXXXXX X. XXXXX
------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Credit Officer
BANCA NAZIONALE DEL LAVORO S.p.A.,
New York Branch
By: /s/ XXXXXXXX X. XXXX
------------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
By: /s/ FRANCESCO DI MARIO
------------------------------------------------
Name: Francesco Di Mario
Title: Vice President
CONSENT OF GUARANTORS
Each of the undersigned is a party to a Subsidiary Guarantee
Agreement, a Subordination Agreement and one or more Security Documents and is a
Guarantor of the obligations of the Borrower under the Credit Agreement referred
to in the foregoing Limited Waiver and Amendment No. 11 to the Amended and
Restated Credit Agreement (the "Limited Waiver and Amendment"). Each of the
undersigned Guarantors hereby (a) consents to the foregoing Limited Waiver and
Amendment, (b) acknowledges that, notwithstanding the execution and delivery of
the foregoing Limited Waiver and Amendment, the obligations of each of the
undersigned Guarantors are not impaired or affected and the Subsidiary Guarantee
Agreement, the Subordination Agreement and Security Documents continue in full
force and effect, and (c) ratifies and affirms the terms and provisions of the
Subsidiary Guarantee Agreement, the Subordination Agreement and Security
Documents. All capitalized terms used herein which are not otherwise defined
shall have the meanings given to those terms in the Credit Agreement.
Each of the undersigned hereby agree, at its own expense, to execute,
acknowledge, deliver and cause to be duly filed all such further instruments and
documents and take all such actions as the Collateral Agent may from time to
time reasonably request to better assure, preserve, protect and perfect the
Security Interest (as defined in the Security Agreement) and the rights and
remedies created thereby. In addition, as further security for payment and
performance of the obligations under the Subsidiary Guarantee Agreement and as
consideration for the Administrative Agent's and the Lenders' agreement to enter
into the Limited Waiver and Amendment, each of the undersigned hereby further
agrees to grant a perfected pledge and security interest in any additional
collateral as the Collateral Agent may reasonably request.
Excluding only the continuing obligations of the Lenders and the
Administrative Agent under the express terms of the Credit Agreement, the
Transaction Documents and the Limited Waiver and Amendment, the undersigned
hereby releases, acquits and forever discharges the Lenders and the
Administrative Agent, and each of them, and their respective Related Parties (as
defined below) of and from any and all Claims (as defined below) arising out of,
related or in any way connected with the Credit Agreement, the Transaction
Documents or the transactions contemplated by any thereof, including, without
limitation, any action or failure to act, prior to the execution of the Limited
Waiver and Amendment, in response to or otherwise in connection with the events
or circumstances arising under or otherwise related to the Credit Agreement, the
Transaction Documents or any Defaults or Events of Default occurring under the
Credit Agreement or the Transaction Documents.
"Related Parties" shall mean, with respect to any released party, such
party's parents, subsidiaries, affiliates, successors, assigns, predecessors in
interest, officers, directors, employees, agents, representatives, attorneys,
accountants and shareholders, if any.
"Claims" shall mean any and all claims, losses, debts, liabilities,
demands, obligations, promises, acts, omissions, agreements, costs, expenses,
damages, injuries, suits, actions, causes of action, including without
limitation, any and all rights of setoff, recoupment or counterclaim of any kind
or nature whatsoever, in law or in equity, known or unknown, suspected or
unsuspected, contingent or fixed.
IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Consent of Guarantors as of the 31st day of March, 2004.
BUFFALO CHINA, INC. DELCO INTERNATIONAL LTD.
By: /s/ XXXXX X. XXXXX By: /s/ XXXXX X. XXXXX
---------------------------------- -----------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer Title: Chief Financial Officer
ENCORE PROMOTIONS, INC. SAKURA, INC.
By: /s/ XXXXX X. XXXXX By: /s/ XXXXX X. XXXXX
---------------------------------- -----------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer Title: Chief Financial Officer
THC SYSTEMS INC. KENWOOD SILVER COMPANY, INC.
By: /s/ XXXXX X. XXXXX By: /s/ XXXXX X. XXXXX
---------------------------------- -----------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer Title: Chief Financial Officer
ONEIDA SILVERSMITHS INC ONEIDA FOOD SERVICE, INC.
By: /s/ XXXXX X. XXXXX By: /s/ XXXXX X. XXXXX
---------------------------------- -----------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer Title: Chief Financial Officer
