EXHIBIT 4(a)(v)
FIRST WAIVER TO AMENDED AND RESTATED NOTE AGREEMENT
DATED JANUARY 1, 1992
This First Waiver to Amended and Restated Note Agreement dated January 1,
1992 (the "Waiver") is entered into as of September 11, 2000 by and among Oneida
Ltd., a New York corporation (the "Company"), Allstate Life Insurance Company
("Allstate"), and Pacific Life Insurance Company ("Pacific" and together with
Allstate, the "Purchasers").
R E C I T A L S:
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WHEREAS, reference is hereby made to that certain Amended and Restated Note
Agreement dated as of January 1, 1992 (the "Agreement") by and among the Company
and the Purchasers pursuant to which the Company issued $30,000,000 in senior
notes;
WHEREAS, the Company, in projected financial statements provided to the
Purchasers dated August 23, 2000, discloses certain financial information and
describes various charges to be incurred by the Company ("Restructuring
Charges");
WHEREAS, the incurrence of the Restructuring Charges by the Company will
result in a violation of Section 7.1 and Section 7.2 of the Agreement;
WHEREAS, the Company recently completed acquisitions of Delco International
Ltd. ("Delco"), Viners of Sheffield Limited ("Viners") and Sakura Inc.
("Sakura"). The Company has requested that, whenever the Agreement requires or
permits the determination of the pro forma Consolidated EBITDA of Viners and
Delco, the determination be made without regard to certain one-time
non-operating charges totaling $4,800,000 recorded by Viners and Delco prior to
their acquisition by the Company;
WHEREAS, the parties hereto have agreed to enter into this Waiver with
respect to such Agreement violations, on the terms and conditions set forth
herein;
NOW THEREFORE, in consideration of the premises herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions.
All defined terms used herein shall have the meanings assigned to such
terms in the Agreement.
2. Waivers.
Subject to paragraph 3 of this Waiver, the Purchasers agree to waive, until
the earlier of (a) the execution and delivery of the Second Amended and Restated
Note Agreement dated January 1, 1992 by the Company and the Purchasers or (b)
October 15, 2000, compliance by the Company with respect to Sections 7.1 and 7.2
of the Agreement for the quarter ending July 29, 2000.
3. Representations and Warranties.
(a) The Company represents and warrants that the representations and
warranties set forth in Section 3.1 of the Agreement are true and correct as if
made on and as of the date hereof, except to the extent any such representation
or warranty is stated to relate solely to an earlier date, in which case such
representation or warranty was true and correct on and as of such earlier date,
and that there exists no Event of Default (which has not been cured pursuant to
the waivers made hereunder), or event which with notice or lapse of time or both
would constitute
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an Event of Default (which has not been cured pursuant to the waivers made
hereunder), on the Effective Date (as defined below).
(b) The projected financial statements for the Company dated August 23,
2000 delivered to the Purchasers in connection with this Waiver were prepared by
the Company in good faith and on the basis of the best information available at
that time and on the assumptions stated therein, which assumptions the Company
believes to be reasonable.
4. Effective Date.
This Waiver shall not become effective (the "Effective Date") until (i) the
Purchasers and the Company have executed this Waiver; (ii) the Company pays to
the Purchasers a waiver and amendment fee in the amount of fifteen hundreths of
one percent (.15%) of the outstanding principal amount of the Notes, and (iii)
the Required Lenders (as defined in the Credit Agreement) which are a party to
the Credit Agreement between such banks and the Company dated as of June 2, 2000
have executed a waiver of violations to the Credit Agreement and the Company has
delivered to the Purchasers a copy of such executed waiver.
5. Further Assurances.
The Company hereby agrees promptly and duly to execute and deliver any and
all such further instruments and documents and take such further action as the
Purchasers may reasonably deem necessary to give effect to this Waiver in order
to assure the Purchasers the full benefits of the Agreement and the rights and
powers therein granted.
6. Governing Law.
This Waiver shall be governed by and construed in accordance with the
internal laws of the State of Illinois.
7. Counterparts.
This Waiver may be executed by the parties hereto individually, or in any
combination of the parties hereto in several counterparts, all of which taken
together shall constitute one and the same Waiver.
8. Ratification and Acknowledgment.
Except as waived hereby, all of the representations, warranties,
provisions, covenants, terms and conditions of the Agreement shall remain
unaltered and in full force and effect and the Agreement is in all respects
agreed to, ratified and confirmed by the Company. The Company acknowledges and
agrees that the waivers granted herein shall not be construed as establishing a
course of conduct on the part of the Purchasers upon which the Company may rely
at any time in the future.
9. Reference to and Effect on the Agreement.
Upon the effectiveness of this Waiver, each reference in the Agreement and
in other documents describing or referencing this Agreement to "this Agreement,"
"hereunder," "hereof," "herein," or words of like import referring to the
Agreement, shall mean and be a reference to the Agreement, as modified by this
Waiver.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Waiver as of the date first above written.
ONEIDA LTD.
By:/s/ XXXXXX X. XXXXX
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Its: Senior Vice President
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXX
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Its: Authorized Signatory
By: /s/ XXXXXXXX X. XXXXXX
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Its: Authorized Signatory
PACIFIC LIFE INSURANCE COMPANY
By: /s/ XXXXX X. XXXXX
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Its: Assistant Vice President
By: /s/ XXXXX X. XXXX
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Its: Assistant Secretary
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