EXHIBIT 10(a)
LIMITED WAIVER AND AMENDMENT NO. 5
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Limited Waiver and Amendment No. 5 (the "Amendment"),
dated as of October 31, 2003, is among ONEIDA LTD., a New York corporation (the
"Borrower"), 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, and
an Amendment No. 4 and dated as of August 24, 2003 (the "Credit Agreement").
B. Borrower has requested that the Administrative Agent and the Lenders
waive the 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 Quarter
ended October 25, 2003 and amend the Credit Agreement to 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 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 Amendment and ending on November 21,
2003 (the "Waiver Period"), the Events of Default created as a result of
Borrower's failure to comply with Sections 6.11(a), (b), (c) and (d) of the
Credit Agreement for the Fiscal Quarter ended October 25, 2003; 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. This waiver is limited to the failure to comply with Sections 6.11(a),
(b), (c) and (d) at October 25, 2003 and shall not constitute or be construed as
a waiver or any other presently existing or future 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. 5 Effective Date" means the date on which all the
conditions to the
Limited Waiver and Amendment No. 5, dated October 31, 2003 have
been satisfied.
4. Amendment to Schedule 2.01 of Credit Agreement. The final page of
Schedule 2.01 of the Credit Agreement is hereby amended by deleting the
reference to the date "11/3/03" and inserting in lieu thereof the date
"11/21/03".
5. 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 representation and warranties made during the period
commencing on the Amendment No. 5 Effective Date through November
21, 2003, 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. 5 Effective
Date.
6. 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.
(i) 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 Amendment.
(ii) As of the date of this Amendment, the Borrower has retained
M&T Bank ("M&T") whose duties include advising with respect to the strategic
plans of the Borrower.
(b) No Default or Event of Default. After giving effect to this
Amendment, no Default or Event of Default has occurred and is continuing.
(c) Execution, Delivery and Enforceability. This 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.
7. Covenants. In order to induce the Lenders to enter into this
Amendment, the Borrower hereby agrees to the following covenants, the failure to
perform any of which will be an additional Event of Default under the Credit
Agreement:
(a) Strategic Plans. The Borrower shall continue to work with M&T
with respect to the strategic plans of the Borrower and the Borrower shall
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deliver to the Administrative Agent and the Lenders (i) on or prior to November
14, 2003, an initial strategic plan summary, in form and substance reasonably
satisfactory to the Required Lenders, prepared by M&T, (ii) on or prior to
November 18, 2003, a preliminary strategic plan report, in form and substance
reasonably satisfactory to the Required Lenders, prepared by M&T and (iii) on or
prior to November 7, 2003, any term sheet or similar document in connection with
any financing transaction of a material nature.
(b) Financial Forecast. On or prior to November 14, 2003, the
Borrower shall deliver to the Administrative Agent and the Lenders a pro forma
cash flow forecast (monthly through fiscal year end 2005), pro forma profit and
loss forecast (monthly through fiscal year end 2005) and pro forma balance sheet
(monthly through fiscal year end 2005), including a detailed description of the
assumptions for each such forecast, in form and substance reasonably
satisfactory to the Required Lenders, for the period through fiscal year end
2005.
(c) Pledged Securities. On or prior to November 21, 2003, the
Borrower shall have executed and delivered an amendment to the Pledge Agreement,
substantially in the form of Exhibit 1 attached hereto, and shall have delivered
to the Collateral Agent one or more stock certificates (together with one or
more stock powers duly executed by the appropriate Grantor in blank) with
respect to the stock pledged thereunder.
8. Conditions to Effectiveness of Amendment. This 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 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 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 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 & Xxxxxxx LLP and Xxxxxxx & Marsal) or any Lender in
accordance with Section 9.03 of the Credit Agreement.
(d) Retention of Professional. The Administrative Agent shall have
received an executed copy of the engagement letter for M&T.
(e) Execution by Lenders. The Administrative Agent shall have
received a counterpart of this Amendment duly executed and delivered by the
Borrower, the Administrative Agent, and each Lender.
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(f) 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,
waiving (i) the required principal payment currently due on November 1, 2003 to
no earlier than November 21, 2003 and (ii) 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 November 21, 2003.
9. 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 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.
10. 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 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 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.
11. 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.
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12. Confirmation of Credit Agreement and Security Documents. Except
as amended by this 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 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
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 Amendment.
13. Counterparts. This 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 Amendment by facsimile transmission shall be as effective
as delivery of a manually signed counterpart.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have caused this 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 X. XXXXX
-------------------------------
Name: Xxxxx X. 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)
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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
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EXHIBIT 1 to
Limited Waiver and Amendment Xx. 0
XXXXXXXXX XX. 0 TO PLEDGE AGREEMENT
This Amendment No. 2, dated as of November __, 2003, is by and among
ONEIDA LTD., a New York corporation (the "Borrower"), the subsidiaries of the
Borrower which are signatories hereto (each such Subsidiary individually a
"Guarantor" and collectively the Guarantors"; the Guarantors and the Borrower
are referred to collectively herein as the "Grantors") and JPMORGAN CHASE BANK
(formerly known as The Chase Manhattan Bank), a New York banking corporation
("Chase"), as Collateral Agent (in such capacity, the "Collateral Agent") for
the Secured Parties. All capitalized terms used herein not otherwise defined
shall have the respective meanings given to them in the Pledge Agreement
referred to below.
R E C I T A L S
A. The Grantors and the Collateral Agent are parties to a Pledge
Agreement dated as of April 27, 2001 (the "Pledge Agreement") pursuant to which
the Grantors pledged to the Collateral Agent, for the ratable benefit of the
Secured Parties, the Collateral described therein in order to secure the
Obligations.
B. The parties desire to amend the Pledge Agreement to provide
for the pledge by certain of the Grantors of additional shares of common stock
of the entities listed herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the Grantors and the Collateral Agent, on behalf of itself and
each Secured Party (and each of their respective successors or assigns), hereby
agree as follows:
1. Amendment. Schedule I to the Pledge Agreement is hereby
amended to add the following to the Section of Schedule I entitled "Capital
Stock or Other Equity Interests":
----------------------------------------------------------------------------------------------
Issuer Pledgor No. of % Owned
------ ------- ------- Class or ------- Certificate
Shares Category Number
----------------------------------------------------------------------------------------------
Oneida Australia PTY Oneida, Ltd. [____] [______] [______] [_____]
Ltd.
----------------------------------------------------------------------------------------------
Oneida Mexicana, S.A. Oneida, Ltd. [____] [______] [______] [_____]
de C.V.
----------------------------------------------------------------------------------------------
Oneida, S.A. de Oneida, Ltd. [____] [______] [______] [_____]
C.V.Mexico
----------------------------------------------------------------------------------------------
Global Charm Trading Sakura, Inc. [____] [______] [______] [_____]
Limited
----------------------------------------------------------------------------------------------
Ceramica xx Xxxxxx, Buffalo [____] [______] [______] [_____]
SA de CV China, Inc.
----------------------------------------------------------------------------------------------
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From and after the date hereof, the shares of capital stock referenced above
shall constitute Pledged Equity Interests, Pledged Securities and Collateral
whenever such terms are used in the Pledge Agreement.
2. Pledge of Shares. Contemporaneously with the execution of this
Amendment, Borrower shall pledge and deliver to the Collateral Agent one or more
stock certificates (together with one or more stock powers duly executed by
appropriate Grantor in blank) representing the amount of the issued and
outstanding shares of common stock for each of the entities referred to in
Section 1 hereof that will be pledged to the Collateral Agent:
-----------------------------------------------------------------------------
Issuer Grantor No. of shares to be
------ ------- pledged
-----------------------------------------------------------------------------
Oneida Australia Oneida, Ltd. [____]
PTY Ltd
-----------------------------------------------------------------------------
Oneida Mexicana, Oneida, Ltd. [____]
S.A. de C.V.
-----------------------------------------------------------------------------
Oneida, S.A. de Oneida, Ltd. [____]
C.V.Mexico
-----------------------------------------------------------------------------
Global Charm Sakura, Inc. [____]
Trading Limited
-----------------------------------------------------------------------------
Ceramica de Buffalo China, Inc. [____]
Xxxxxx, XX de CV
-----------------------------------------------------------------------------
3. Confirmation of Pledge Agreement. Except as amended by this
Amendment, all of the provisions of the Pledge Agreement remain in full force
and effect from and after the date hereof, and the Grantors hereby ratify and
confirm the Pledge Agreement and each of the documents executed in connection
therewith. From and after the date hereof, all references in the Pledge
Agreement to "this Agreement", "hereof", "herein", or similar terms, shall refer
to the Pledge Agreement as amended by this Amendment.
4. Counterparts. This 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 Amendment by facsimile transmission shall be as effective
as delivery of a manually signed counterpart.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
ONEIDA LTD.
By:
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
BUFFALO CHINA, INC.
By:
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President - Finance
THC SYSTEMS, INC.
By:
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President - Finance
ENCORE PROMOTIONS, INC.
By:
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President - Finance
DELCO INTERNATIONAL, LTD.
By:
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President - Finance
SAKURA, INC.
By:
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President - Finance
JPMORGAN CHASE BANK (formerly known as
The Chase Manhattan Bank), as Collateral Agent
By:
------------------------------------------
Name:
Title:
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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 Amendment No. 5 to the Amended and Restated Credit Agreement (the
"Amendment"). Each of the undersigned Guarantors hereby (a) consents to the
foregoing Amendment, (b) acknowledges that, notwithstanding the execution and
delivery of the foregoing 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 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 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 this 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.
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IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Consent of Guarantors as of the 31 day of October 2003.
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: Vice President, Finance Title: Vice President, Finance
ENCORE PROMOTIONS, INC. SAKURA, INC.
By: /s/ XXXXX X. XXXXX By: /s/ XXXXX X. XXXXX
------------------ ------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Vice President, Finance Title: Vice President, Finance
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: Vice President, Finance Title: Vice President, Finance
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: Vice President, Finance Title: Vice President, Finance
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