EXHIBIT 4(a)(xx)
WAIVER
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Waiver, dated as of December 9, 2002, 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 (the "Administrative Agent"), and the Lenders which
are parties to the Amended and Restated Credit Agreement referred to below (the
"Lenders").
RECITALS
A. The Borrower, the Administrative Agent and the Lenders are parties to an
Amended and Restated Credit Agreement dated as of April 27, 2001 (such
Agreement, as subsequently amended, is herein referred to as the "Credit
Agreement").
B. Borrower has advised the Administrative Agent and the Lenders that it
may restate its financial statements for certain prior periods in order to
change the manner in which Borrower accounted for certain costs arising out of
Borrower's acquisition of Delco International Ltd. in August 2000. The potential
accounting adjustments, if implemented, would treat certain bonuses, consulting
payments and inventory and acquisition costs as expenses in the period in which
they were paid. A description of the proposed accounting adjustments, including
the amounts thereof, are set forth in a Memorandum dated November 27, 2002 from
Borrower to the Lenders and in the schedules attached thereto (such Memorandum
and schedules herein referred to as the "Waiver Request").
C. The proposed accounting adjustments described in the Waiver Request, if
fully implemented, will result in a reduction of Borrower's Consolidated EBITDA
for the fiscal quarters from October 28, 2000 through and including October 26,
2002, including reductions of $3,655,000, $2,845,000, and $2,780,000 in
Consolidated EBITDA for the four-quarter periods ended July 28, 2001, October
27, 2001 and January 26, 2002, respectively.
D. The reductions in Borrower's Consolidated EBITDA described in the Waiver
Request will cause Borrower to be in violation of (i) the Consolidated Leverage
Ratio for the Fiscal Quarters ended July 28, 2001, October 27, 2001 and January
26, 2002, and (ii) the Consolidated Interest Coverage Ratio for the Fiscal
Quarters ended October 27, 2001 and January 26, 2002.
E. Borrower has requested that the Lenders waive the violations of these
financial covenants for such periods in the event Borrower elects to make the
accounting adjustments described in the Waiver Request.
NOW, THEREFORE, the parties agrees as follows:
1. Definitions. All capitalized terms used in this Waiver which are not
otherwise defined shall have the meanings given to those terms in the Credit
Agreement.
2. Waiver. In the event Borrower elects to make some or all of the
accounting adjustments described in the Waiver Request, the Lenders hereby waive
the Events of Default created as a result of (a) Borrower's failure to satisfy
the Consolidated Leverage Ratio for the Fiscal Quarters ended July 28, 2001,
October 27, 2001, and January 26, 2002, and (b) Borrower's failure to satisfy
the Consolidated Interest Coverage Ratio for the Fiscal Quarters ended October
27, 2001 and January 26, 2002. This Waiver is limited to violations of the
Consolidated Leverage Ratio and the Consolidated Interest Coverage Ratio caused
by the accounting adjustments described in the Waiver Request in amounts not to
exceed the amounts set forth in the Waiver Request. This Waiver does not apply
to any other Event of Default (whether or not caused by the proposed accounting
adjustments and whether or not presently existing or arising in the future)
other than the financial covenant violations described above for the periods
described above.
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3. Effectiveness. The Waiver shall become effective as of the date set
forth above upon the Administrative Agent's receipt of (a) a signed counterpart
of this Waiver duly executed and delivered by the Administrative Agent and the
Required Lenders, (b) a fee of $5,000 for each Lender who executes and delivers
to the Administrative Agent a signed counterpart of this Waiver before 5:00 p.m.
(EST) on December 9, 2002, and (c) a waiver of any corresponding events of
default under the Amended and Restated Note Agreement governing the senior notes
of Borrower due May 31, 2005, duly executed by the noteholders described
therein.
4. Restated Financial Statements. In the event Borrower restates its
financial statements for one or more prior periods in order to reflect the
accounting adjustments described in the Waiver Request, Borrower shall promptly
furnish to the Administrative Agent and each Lender true and correct copies of
such restated financial statements, together with the certificate of a Financial
Officer of the Borrower required by Section 5.01(e) with respect to such
restated financial statements, which Financial Officer may take into account the
effect of this Waiver in making the certifications required by Section 5.01(e).
5. Confirmation of Credit Agreement. Except as waived hereby, all of the
provisions of the Credit Agreement remain in full force and effect from and
after the date hereof.
6. Expenses. The Borrower shall pay all expenses incurred by the
Administrative Agent (including reasonable attorneys fees and disbursements) in
connection with the preparation of this Waiver.
7. Counterparts. This Waiver 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 Waiver by facsimile transmission shall be as effective as delivery of a
manually signed counterpart.
IN WITNESS WHEREOF, the parties have caused this Waiver 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: Vice President
BANK OF AMERICA, N.A., individually and
as Syndication Agent
By: /s/ XXXXXXX X. XXXX
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
FLEET NATIONAL BANK, individually and as
Documentation Agent
By: /s/ XXXXX X. XXXXXX
-------------------------------------
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Name: Xxxxx X. Xxxxxx
Title: Vice President
HSBC BANK, USA, individually and as
Senior Managing Agent
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ XXXX X. XXXXXX
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA
By: /s/ X.X. XXXXXXXX
-------------------------------------
Name: X.X. Xxxxxxxx
Title: Managing Director
CITIBANK, N.A. (successor to European
American Bank)
By: /s/ XXXX XXXXXXX
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
BANCA NAZIONALE DEL LAVORO S.p.A.,
New York Branch
By: /s/ XXXXXXXX X. XXXX
-------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
By: /s/ XXXXXXXX XXXXXXXXX
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: First Vice President
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