EXHIBIT 4(a)(vi)
AMENDMENT NO. 1
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment No. 1 ("Amendment"), dated as of May 31, 2001,
is among ONEIDA LTD., a New York corporation (the "Borrower"), THE CHASE
MANHATTAN BANK, as Administrative Agent under the Credit Agreement referred to
below ("Administrative Agent"), and the Lenders which are parties to such Credit
Agreement (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 (the "Credit
Agreement").
B. Borrower has advised the Administrative Agent and Lenders that
Borrower expects to be in violation of Sections 6.11(a) and (b) of the Credit
Agreement upon completion of its unaudited financial statements for the Fiscal
Quarter ended April 28, 2001.
C. Borrower has requested that the Administrative Agent and the Lenders
amend Sections 6.11(a) and (b) of the Credit Agreement to prevent such a
violation.
D. The Administrative Agent and the Lenders are willing to amend the
Credit Agreement as requested by Borrower, provided that the Credit Agreement is
also amended to increase the applicable interest rates and certain fees due to
the Lenders thereunder, together with certain other provisions therein.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. All capitalized terms used in this Amendment which are
not otherwise defined herein shall have the respective meanings given to those
terms in the Credit Agreement.
2. Amendment of Credit Agreement.
2.1 Section 1.01 of the Credit Agreement is amended by
replacing the grid set forth under the definition of the term "Applicable
Margin" with the following grid:
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Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 5 Xxxxx 0 Xxxxx 0
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Consolidated Leverage Ratio <= 2.50 <= 2.75 <= 3.00 <= 3.25 <= 3.50 <= 4.00 > 4.00
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Eurodollar Margin (bps) 150.0 175.0 200.0 250.0 300.0 320.0 335.0
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ABR Margin (bps) 25.0 50.0 75.0 125.0 175.0 200.0 200.0
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2.2 Section 1.01 of the Credit Agreement is amended by adding
the following additional defined terms:
"Long-Term Lease" means any lease of real or personal
property (other than a Capital Lease Obligation) having an
original term of more than three years, including any period
for which the lease may be renewed at the option of the
lessor, whether or not theretofore renewed.
"Rentals" means, as of the date of any determination
thereof, all fixed payments (including all payments which the
lessee is obligated to make to the lessor on termination of
the lease or surrender of the property) payable by the
Borrower or a Subsidiary, as lessee or sublessee under a lease
of real or personal property, but exclusive of any amounts
required to be paid by the Borrower or a Subsidiary (whether
or not designated as rents or additional rents) on account of
maintenance, repairs, insurance, taxes, assessments,
amortization and similar charges. Fixed rents under any
so-called "percentage leases" shall be computed solely on the
basis of the minimum rents, if any, required to be paid by the
lessee regardless of sales volume or gross revenues.
2.3 The definition of "Material Indebtedness" contained in
Section 1.01 of the Credit Agreement is amended by deleting the reference to
"$3,500,000" therein and replacing it with "$1,000,000".
2.4 Section 2.10(a) of the Credit Agreement is amended by
replacing the grid therein with the following grid:
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Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 5 Xxxxx 0 Xxxxx 0
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Consolidated Leverage Ratio <= 2.50 <= 2.75 <= 3.00 <= 3.25 <= 3.50 <= 4.00 > 4.00
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Commitment Fee (bps) 40.0 45.0 50.0 50.0 50.0 50.0 50.0
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2.5 The following new Sections 5.11 and 5.12 are added to the
Credit Agreement immediately following Section 5.10:
SECTION 5.11 Most Favored Lender. If the Borrower or
any Subsidiary (a) becomes in any agreement or instrument
subject to additional or more restrictive covenants, reporting
requirements, events of default or provisions regarding
Guarantees, security interests or collateral (including all
definitions relating to the foregoing) than those imposed on
them by this Agreement or (b) grants to any Person more
favorable covenants, reporting requirements, events of default
or provisions regarding any Guarantees, security interests or
collateral (including all definitions relating to the
foregoing) than are granted to the Lenders under this
Agreement, the Borrower shall immediately notify the
Administrative Agent and each Lender in writing and provide
the Administrative Agent and each Lender a copy of such
covenant, reporting requirements, events of default or other
provisions (and all definitions relating to the foregoing) and
this Agreement shall be deemed to be amended automatically to
incorporate such covenants, reporting requirements,
events of default or other provisions (and all such
definitions relating to the foregoing). The Borrower hereby
agrees to cooperate with the Administrative Agent and Lenders
in connection with the execution and delivery to the
Administrative Agent and Lenders of an amendment to this
Agreement incorporating any such covenants, reporting
requirements, events of default or other provisions (and all
such definitions relating to the foregoing). Any amendment to
this Agreement made pursuant to this Section 5.11 shall remain
in effect only so long as such other covenants, reporting
requirements, events of default or other provisions (and all
such definitions relating to the foregoing) remain in effect.
SECTION 5.12 Amendment of Senior Secured
Indebtedness. Borrower will furnish to the Administrative
Agent and each Lender prompt written notice of any amendment
to, or modification or replacement of, any agreement
evidencing Senior Secured Indebtedness with an outstanding
principal balance in excess of $3,000,000 (other than Senior
Secured Indebtedness under this Agreement), together with a
copy of any such amendment, modification or replacement.
2.6 The reference to "subparagraphs (e) or (i)" contained in
Section 6.01(f) of the Credit Agreement is hereby amended to read "subparagraphs
(e) or (h)".
2.7 Section 6.02 of the Credit Agreement is hereby amended by
deleting the word "and" at the end of subparagraph (d) and adding the following
new subparagraphs (e) and (f) immediately after subparagraph (d):
(e) Liens in favor of the Collateral Agent pursuant
to the terms and conditions of the Security Documents; and
(f) Liens consisting of a call option on the shares
of Xxxxxx Zwiesel Glaswerke, AG owned by Borrower
2.8 Section 6.11(a) of the Credit Agreement is amended such
that it shall read in its entirety as follows:
(a) for a period of four consecutive Fiscal Quarters
ending with its most recent Fiscal Quarter, permit the
Consolidated Interest Coverage Ratio of the Borrower and its
Subsidiaries to be less than (i) 2.70 to 1.00 for the Fiscal
Quarter ended Xxxxx 00, 0000, (xx) 2.40 to 1.00 for the Fiscal
Quarter ending July 28, 2001, (iii) 2.20 to 1.00 for the
Fiscal Quarter ending October 27, 2001, (iv) 2.50 to 1.00 for
the Fiscal Quarter ending January 26, 2002, (v) 2.75 to 1.00
for the Fiscal Quarter ending April 27, 2002, and (vi) 3.00 to
1.00 for each succeeding Fiscal Quarter;
2.9 Section 6.11(b) of the Credit Agreement is amended such
that it shall read in its entirety as follows:
(b) permit the Consolidated Leverage Ratio of the
Borrower and its Subsidiaries to be greater than (i) 4.30 to
1.00 as of the last day of the Fiscal Quarter ended April 28,
2001 and the last day of the Fiscal Quarter ending July 28,
2001, (ii) 4.45 to 1.00 as of the last day of the Fiscal
Quarter ending October 27, 2001, (iii) 4.10 to 1.00 as of the
last day of the Fiscal Quarter ending January 26, 2002, (iv)
3.85 to 1.00 as of the last day of the Fiscal Quarter ending
April 27, 2002, (v) 3.55 to 1.00 as of the last day of the
Fiscal Quarter ending July 27, 2002, (vi) 3.10 to 1.00 as of
the last day of the Fiscal Quarter ending October 26, 2002,
and (vii) 3.00 to 1.00 as of the last day of each succeeding
Fiscal Quarter;
2.10 Section 6.14 of the Credit Agreement is amended to change
the reference to "$10,000,000" in clause (d) thereof to "$5,000,000" and to add
the following sentence to the end of Section 6.14:
Borrower will not, and will not permit any of its Subsidiaries
to, without the consent of the Required Lenders, amend or
modify any agreement evidencing Senior Secured Indebtedness in
excess of $3,000,000 (other than Senior Secured Indebtedness
under this Agreement) if the effect
of such amendment or modification would be to accelerate the
maturity of, or increase the required payments of principal
on, such Senior Secured Indebtedness prior to May 31, 2005.
2.11 The following new Section 6.15 is added to the Credit
Agreement immediately following Section 6.14:
SECTION 6.15 Long-Term Leases. The Borrower will not,
and will not permit any Subsidiary to, become obligated as
lessee under any Long-Term Lease unless, at the time of
entering into such Long-Term Lease and after giving effect
thereto, the average aggregate annual Rentals payable by the
Borrower and its Subsidiaries on a consolidated basis during
the term of such Long-Term Lease pursuant to all Long-Term
Leases will not exceed 10% of Consolidated Net Worth,
determined as of the end of the Borrower's prior Fiscal
Quarter.
3. Representations and Warranties. The Borrower represents and warrants
to the Administrative Agent and the Lenders that the following statements are
true, correct and complete:
3.1 Representations and Warranties. Each of the
representations and warranties made by the Borrower in the Credit Agreement is
true and correct on and as of the date of this Amendment.
3.2 No Default or Event of Default. No Default or Event of
Default has occurred and is continuing.
3.3 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.
4. Conditions to Effectiveness of Amendment. This Amendment shall be
effective only when and if each of the following conditions is satisfied:
4.1 Secretary's Certificate. The Administrative Agent shall
have received a certificate executed by the Secretary or Assistant Secretary of
Borrower certifying the due authorization of this Amendment by Borrower, the
incumbency of the officer executing this Amendment, and any other legal matters
relating to this Amendment, all in form and substance satisfactory to the
Administrative Agent and its counsel.
4.2 Consent of Guarantors. Each of the Guarantors shall have
executed and delivered to the Administrative Agent the Consent of Guarantors
attached to this Amendment.
4.3 No Default or Event of Default; Accuracy of
Representations and Warranties. 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 Loan 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.
4.4 Expense Reimbursements. The Borrower shall have paid or
agreed to pay all invoices presented to Borrower for expense reimbursements due
to the Administrative Agent pursuant to Section 9.03 of the Credit Agreement.
4.5 Execution by Required Lenders. The Administrative Agent
shall have received a counterpart of this Amendment duly executed and delivered
by the Borrower, the Administrative Agent, and the Required Lenders.
4.6 Amendment Fee. The Borrower shall have paid to the
Administrative Agent an amendment fee equal to 0.25% of the amount of the
aggregate Commitments on the effective date of this Agreement of each Lender
that delivers to the Administrative Agent, by hand delivery or telefax no later
than 5:00 p.m. on May 31, 2001, a counterpart of this Amendment executed by such
Lender. Such fee (a) shall be received by the Administrative Agent ratably for
the account of, and shall be remitted by the Administrative Agent solely to,
such Lenders and (b) shall be fully earned and nonrefundable when paid.
4.7 Note Agreements. The Administrative Agent shall have
received copies of the Amended and Restated Note Agreements governing the senior
notes of Borrower due January 15, 2002 and May 31, 2005 (as amended), duly
executed by Borrower and the noteholders described therein.
5. Confirmation of Credit Agreement. 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. From and after the date this Amendment becomes effective, 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.
6. 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.
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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
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Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent
By: /s/ XXXXXX X. XXXX, XX.
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Name: Xxxxxx X. Xxxx, Xx.
Title: Vice President
BANK OF AMERICA, N.A., individually and as
Syndication Agent
By: /s/ XXXXX XXXXXXXX
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Name: Xxxxx Xxxxxxxx
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
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Name: Xxxxxxx X. XxXxxxxx
Title: Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Banking Officer
THE BANK OF NOVA SCOTIA
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Director
EUROPEAN AMERICAN BANK
By: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
Title: Vice President
BANCA NAZIONALE DEL LAVORO
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Vice President
By: /s/ XXXXXXXX XXXXXXXXX
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Name: Xxxxxxxx Xxxxxxxxx
Title: First Vice President
CONSENT OF GUARANTORS
Each of the undersigned is a party to an Amended and Restated
Subsidiary Guarantee Agreement and is a Guarantor of the obligations of the
Borrower under the Credit Agreement referred to in the foregoing Amendment No. 1
to Amended and Restated Credit Agreement. 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 Amended and Restated Subsidiary Guarantee Agreement continues in full
force and effect, and (c) ratifies and affirms the terms and provisions of the
Amended and Restated Subsidiary Guarantee Agreement.
IN WITNESS WHEREOF, each of the undersigned has executed and
delivered this Consent of Guarantors as of this 31st day of May, 2001.
BUFFALO CHINA, INC. DELCO INTERNATIONAL LTD.
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx
Chief Executive Officer Chief Executive Officer
ENCORE PROMOTIONS, INC. SAKURA, INC.
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx
Chief Executive Officer Chief Executive Officer
THC SYSTEMS INC.
By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
Chief Executive Officer
