EXHIBIT 4(a)(iii)
WAIVER AND AMENDMENT NO. 2
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Waiver and Amendment No. 2 ("Amendment"), dated as of December 7,
2001, 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 (the "Credit Agreement").
B. Borrower has advised the Administrative Agent and Lenders that (i)
its Consolidated Interest Coverage Ratio for the Fiscal Quarter ended October
27, 2001 is 2.04 to 1.0, in violation of Section 6.11(a) of the Credit Agreement
which required a Consolidated Interest Coverage Ratio of not less than 2.20 to
1.0, and (ii) its Consolidated Leverage Ratio for the Fiscal Quarter ended
October 27, 2001 is 5.42 to 1.0 in violation of Section 6.11(b) of the Credit
Agreement which required a Consolidated Leverage Ratio of not more than 4.45 to
1.0.
C. Borrower has requested that the Administrative Agent and the Lenders
waive the Events of Default arising out of Borrower's failure to comply with
Sections 6.11(a) and (b) of the Credit Agreement for the Fiscal Quarter ended
October 27, 2001, and amend the Credit Agreement to allow Borrower to transfer
one or more payroll accounts to a different financial institution and to allow
certain Foreign Subsidiaries to pledge their assets as collateral security for
foreign lines of credit.
D. The Administrative Agent and the Lenders are willing to grant the
waiver requested by Borrower, provided the Credit Agreement is amended (i) to
increase the Applicable Margin used in determining interest rates under the
Credit Agreement, together with certain other provisions therein, (ii) to
require Kenwood Silver Company, Inc., a Subsidiary of Borrower, to execute a
Subsidiary Guarantee and Subordination Agreement and to grant the Collateral
Agent, for the ratable benefit of the Secured Parties, a security interest in
substantially all of its assets (other than Deposit Accounts) upon execution of
the further amendment to the Credit Agreement contemplated in the next Recital,
(iii) to require Borrower to grant, and to cause Oneida Canada Limited to grant,
the Collateral Agent, for the ratable benefit of certain of the Secured Parties,
one or more mortgages on certain of the real property owned by Borrower or its
Subsidiaries in the United States and Canada upon execution of the further
amendment to the Credit Agreement contemplated in the next Recital, and (iv) to
create a new non-revolving bullet loan in the principal amount of $40,000,000 to
Borrower as part of the Lenders' existing commitments, the proceeds of which
will be utilized to repay a portion of the outstanding Revolving Loans, and the
principal balance of which will be repaid, together with interest and other
amounts, in accordance with the Credit Agreement.
E. The Borrower and the Lenders contemplate that, subsequent to the
execution of this Amendment, they will enter into discussions regarding (i)
amending the required levels for Borrower's Consolidated Interest Coverage Ratio
and Consolidated Leverage Ratio for periods ending after October 27, 2001, and
(ii) possibly reducing the amount of the Commitments following a review of
Borrower's projected debt levels for the balance of the term of the Credit
Agreement.
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 the Events of Default created as a
result of Borrower's failure to comply with Sections 6.11(a) and (b) of the
Credit Agreement for the Fiscal Quarter ended October 27, 2001. This waiver is
limited to the failure to comply with Sections 6.11(a) and (b) at October 27,
2001 and shall not constitute or be construed as a waiver of any other presently
existing or future Events of Default.
3. Amendment of Credit Agreement.
3.1 All references in the Credit Agreement to "The Chase Manhattan
Bank" are hereby changed to "JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank)".
3.2 The following defined terms are added to Section 1.01 of the
Credit Agreement:
"Amendment No. 2 Effective Date" means the date on which all
the conditions to the Waiver and Amendment No. 2 dated as of
December 7, 2001 have been satisfied.
"Bullet Loan" means the non-revolving Loan in the principal
amount of $40,000,000 to be made on January 4, 2002 pursuant to
Section 2.02(a).
"Bullet Loan Exposure" means, at any time, the aggregate
principal amount of the Bullet Loan outstanding at such time. The
Bullet Loan Exposure of any Lender, at any time, shall be its
Applicable Percentage of the total Bullet Loan Exposure at such
time.
"Mortgages" means one or more mortgages on the Mortgaged
Property granted to the Collateral Agent, for the ratable benefit
of the Lenders and the Noteholders, securing the obligations under
the Bullet Loan and the Note Agreements, provided that the
Mortgages on Mortgaged Property subject to the payment of New York
mortgage recording tax will be limited in amount to the sum of (a)
the orderly liquidation value of Borrower's main plant and knife
plant located in Sherrill, New York, and the Buffalo China, Inc.
main plant located in Buffalo, New York, as determined from an
appraisal conducted by an independent appraisal firm satisfactory
to the Collateral Agent, and (b) the current assessed value of any
other such Mortgaged Property determined from the appropriate
tax assessment records, as adjusted to full value in the case of
any taxing jurisdiction with assessments at less than full value.
"Mortgaged Property" means the real property described on
Schedule 1.01 hereto.
"Note Agreements" shall have the meaning given to such term
in the Security Agreement.
"Noteholders" shall have the meaning given to such term in
the Security Agreement.
"Revolving Commitment" means, with respect to each Lender,
the commitment of such Lender to make Revolving Loans and
Swingline Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.07 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's
Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have
assumed its Commitment, as applicable, and is part of such
Lender's total Commitment. The initial aggregate amount of the
Lenders' Revolving Commitments is $275,000,000. Upon the making of
the Bullet Loan, the Revolving Commitments will automatically
reduce to $235,000,000, as provided in Schedule 2.01.
3.3 The definition of the term "Applicable Margin" in Section 1.01
is amended by replacing the grid contained therein with the following
grid and by amending the proviso immediately following the grid, all as
follows:
-------------------------------------------------------------------------------------------------------------------------
Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 5 Xxxxx 0 Xxxxx 0 Xxxxx 0
-------------------------------------------------------------------------------------------------------------------------
Consolidated Leverage <=2.50 <=2.75 <=3.00 <=3.25 <=3.50 <=4.00 <=4.50 >4.50
Ratio
-------------------------------------------------------------------------------------------------------------------------
Eurodollar Margin 150.0 175.0 200.0 250.0 300.0 320.0 335.0 350.0
(bps)
-------------------------------------------------------------------------------------------------------------------------
ABR Margin (bps) 25.0 50.0 75.0 125.0 175.0 200.0 200.0 200.0
-------------------------------------------------------------------------------------------------------------------------
provided that (i) during the period from the Amendment No. 2
Effective Date through and including the date on which Borrower
delivers the financial statements under Section 5.01(b) for the Fiscal
Quarter ended October 27, 2001, the Applicable Margin shall be based on
Xxxxx 0, and (ii) if the Borrower shall have failed to deliver the
financial statements required by Section 5.01(b) when due (without
giving effect to any grace period or notice requirement) or there shall
have occurred an Event of Default which has not been waived in the
manner provided in Section 9.02 hereof, the Applicable Margin shall
immediately be adjusted to Level 8 until such time delivery of such
financial statements shall have been made or the Event of Default shall
have been cured or waived, as the case may be.
3.4 The definition of the term Borrowing in Section 1.01 is
amended to read as follows:
"Borrowing" means (a) Revolving Loans of the same Type which
are made, converted or continued on the same date and, in the case
of Eurodollar Loans, as to which a single Interest Period is in
effect, (b) a Swingline Loan, or (c) the Bullet Loan.
3.5 The definition of the term Class in Section 1.01 is amended to
read as follows:
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such
Borrowing, are Revolving Loans, Swingline Loans or the Bullet
Loan.
3.6 The definition of the term Commitment in Section 1.01 is
amended to read as follows:
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans, Swingline Loans, and the
Bullet Loan hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit
Exposure and Bullet Loan Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.07 and
(b) reduced or increased from time to time pursuant to assignments
by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's
Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable, and includes such Lender's Revolving
Commitment. The initial aggregate amount of the Lenders'
Commitments is $275,000,000.
3.7 The definition of the term Interest Election Request in
Section 1.01 is amended to read as follows:
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing or the Bullet Loan in
accordance with Section 2.06.
3.8 The definition of the term Loan Party in Section 1.01 is
amended to read as follows:
"Loan Party" means the Borrower and each Subsidiary of the
Borrower which is a party to a Transaction Document, and any other
Person which guarantees, or grants a Lien on any of its assets to
secure, the obligations under this Agreement or any of the other
Transaction Documents.
3.9 The definition of the term Loans in Section 1.01 is amended to
read as follows:
"Loans" means, collectively, the Revolving Loans, Swingline Loans
and the Bullet Loan made by the Lenders and/or the Swingline
Lender to the Borrower pursuant to this Agreement.
3.10 The definition of the term Required Lenders in Section 1.01
is amended to read as follows:
"Required Lenders" means, at any time, Lenders having aggregate
Revolving Credit Exposures, Bullet Loan Exposures and unused
Revolving Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures, Bullet Loan Exposures and unused
Revolving Commitments at such time.
3.11 The definition of the term Transaction Documents in Section
1.01 is amended to read as follows:
"Transaction Documents" means, collectively, this Agreement, any
promissory note delivered to a Lender evidencing the Loans, the
Subsidiary Guarantees, the Subsidiary Subordination Agreements,
the Security Documents, the Mortgages, any agreement between the
Borrower and the Collateral Agent or the Administrative Agent with
respect to the payment of fees, any Hedging Agreement entered into
with a Lender or an Affiliate of the Lender, and each other
document, agreement or instrument delivered pursuant to the terms
of any of the foregoing, as the same may be amended, supplemented
or otherwise modified from time to time.
3.12 Section 2.01 is amended to read as follows:
Commitments. Subject to the terms and conditions set forth herein,
each Lender agrees to make to the Borrower the Bullet Loan on
January 4, 2002 and Revolving Loans from time to time during the
Availability Period in an aggregate principal amount that will not
result in such Lender's Revolving Credit Exposure and Bullet Loan
Exposure together exceeding such Lender's Commitment. Within the
foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Revolving
Loans and may prepay (but may not reborrow) the Bullet Loan.
3.13 Section 2.02 is amended to read as follows:
Loans and Borrowings. (a) On January 4, 2002, the Lenders shall
make the Bullet Loan to the Borrower ratably in accordance with
their respective Commitments, as more particularly set forth on
Schedule 2.01 hereto. The proceeds of the Bullet Loan shall be
applied to repay a portion of the Revolving Loans outstanding as
of January 4, 2002.
(b) Each Revolving Loan shall be made as part of a Borrowing
consisting of Revolving Loans made by the Lenders ratably in
accordance with their respective Revolving Commitments. The
failure of any Lender to make any Loan required to be made by it
shall not relieve any other Lender of its obligations hereunder.
(c) The Bullet Loan and each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Lender at its
option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement.
(d) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less
than $5,000,000. At the time that each ABR Borrowing is made, such
Borrowing shall be in an aggregate amount that is an integral
multiple of $100,000 and not less than $1,000,000. Each Swingline
Loan shall be in an amount that is an integral multiple of $1,000
and not less than $250,000. Borrowings of more than one Type and
Class may be outstanding at the same time; provided that there
shall not at any time be more than a total of ten Eurodollar
Borrowings outstanding.
(e) Notwithstanding any other provision of this Agreement,
the Borrower shall not be entitled to request, or to elect to
convert or continue, any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date.
3.14 Section 2.04(a) is amended to read as follows:
(a) Subject to the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans to the Borrower
from time to time during the Availability Period, in an aggregate
principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans
exceeding $10,000,000 or (ii) the total Revolving Credit Exposures
and the Bullet Loan Exposures together exceeding the total
Commitments; provided that the Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding
Swingline Loan. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Swingline Loans.
3.15 Section 2.06(a) of the Credit Agreement is amended to read as
follows:
(a) The Bullet Loan initially shall be either a Eurodollar
Loan or an ABR Loan, as specified by Borrower in a notice
delivered to the Administrative Agent in accordance with this
Agreement. Each Revolving Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of
a Eurodollar Revolving Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert the Bullet Loan and any Revolving
Borrowing to a different Type or to continue such Borrowing and,
in the case of a Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising
such Borrowing, and the Loans comprising each such portion shall
be considered a separate Borrowing. This Section shall not apply
to Swingline Borrowings which may not be converted or continued.
3.16 Section 2.06(e) of the Credit Agreement is amended to read as
follows:
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to
the end of the Interest Period applicable thereto, then, unless
such Borrowing is repaid as provided herein, at the end of such
Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an
Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so
notifies the Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Borrowing may be converted to or
continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at the
end of the Interest Period applicable thereto.
3.17 Sections 2.07(b) and (c) of the Credit Agreement are amended
to read as follows:
(b) The Borrower may at any time terminate, or from time to
time reduce, the Revolving Commitments; provided that (i) each
reduction of the Revolving Commitments shall be in an amount that
is an integral multiple of $5,000,000 and not less than $5,000,000
and (ii) the Borrower shall not terminate or reduce the Revolving
Commitments if, after giving effect to any concurrent prepayment
of the Loans in accordance with Section 2.09, the Revolving Credit
Exposures and the Bullet Loan Exposure would exceed the total
Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Revolving Commitments under
paragraph (b) of this Section at least three Business Days prior
to the effective date of such termination or reduction, specifying
such election and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided
that a notice of termination of the Revolving Commitments
delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Any termination or
reduction of the Revolving Commitments shall be permanent. A
complete termination of the Revolving Commitments must be
accompanied by a prepayment of the Bullet Loan in full. Each
reduction of the Revolving Commitments shall be made ratably among
the Lenders in accordance with their respective Revolving
Commitments.
3.18 Section 2.08(a) of the Credit Agreement is amended to read as
follows:
(a) The Borrower hereby unconditionally promises to pay (i)
to the Administrative Agent for the account of each Lender the
then unpaid principal amount of the Bullet Loan and each Revolving
Loan on the Maturity Date, (ii) the Swingline Lender the then
unpaid principal amount of each Swingline Loan on the earlier of
the Maturity Date and the first date after such Swingline Loan is
made that is the 15th day of a calendar month and is at least two
Business Days after such Swingline Loan is made; provided that on
each date that a Revolving Borrowing is made, the Borrower shall
repay all Swingline Loans then outstanding, except for amounts
which do not satisfy the minimum borrowing amounts for Revolving
Borrowings set forth in Section 2.02.
3.19 Sections 2.09(a) and (b) of the Credit Agreement is amended
to read as follows:
(a) The Borrower shall have the right at any time and from
time to time to prepay any Borrowing in whole or in part, subject
to prior notice in accordance with paragraph (b) of this Section;
provided that the Bullet Loan may not be prepaid unless and until
all Revolving Loans have been repaid and the Revolving Commitments
have been terminated.
(b) The Borrower shall notify the Administrative Agent (and,
in the case of prepayment of a Swingline Loan, the Swingline
Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Borrowing,
not later than 11:00 a.m., New York City time, three Business Days
before the date of prepayment, (ii) in the case of prepayment of
an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the
case of prepayment of a Swingline Loan, not later than 12:00 noon,
New York City time, on the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be
prepaid; provided that, if a notice of prepayment is given in
connection with a conditional notice of termination of the
Commitments as contemplated by Section 2.07, then such notice of
prepayment may be revoked if such notice of termination is revoked
in accordance with Section 2.07. Promptly following receipt of any
such notice relating to a Revolving Borrowing or the Bullet Loan,
the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Revolving Borrowing shall
be in an amount that would be permitted in the case of an advance
of a Revolving Borrowing of the same Type as provided in Section
2.02. Each prepayment of a Revolving Borrowing or the Bullet Loan
shall be applied ratably to the Loans of that respective Class
included in the prepaid Borrowing. Any prepayments of the Bullet
Loan may not thereafter be re-borrowed. Prepayments shall be
accompanied by accrued interest to the extent required by Section
2.11.
3.20 Section 2.10(a) of the Credit Agreement is amended by
replacing the grid contained therein with the following grid and by
amending the proviso immediately following the grid, all as follows:
----------------------------------------------------------------------------------------------------------------------------
Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 5 Xxxxx 0 Xxxxx 0 Xxxxx 0
----------------------------------------------------------------------------------------------------------------------------
Consolidated Leverage Ratio <=2.50 <=2.75 <=3.00 <=3.25 <=3.50 <=4.00 <=4.50 >4.50
----------------------------------------------------------------------------------------------------------------------------
Commitment Fee (bps) 40.0 45.0 50.0 50.0 50.0 50.0 50.0 50.0
----------------------------------------------------------------------------------------------------------------------------
provided that (i) during the period from the Amendment No. 2
Effective Date through and including the date on with Borrower delivers
the financial statements under Section 5.01(b) for the Fiscal Quarter
ended October 27, 2001, commitment fees shall accrue at the rate set
forth in Xxxxx 0, and (ii) if the Borrower shall have failed to deliver
the financial statements required by Section 5.01(b) when due (without
giving effect to any grace period or notice requirement) or there shall
have occurred an Event of Default which has not been waived in the
manner provided in Section 9.02 hereof, the rate at which commitment
fees shall accrue shall immediately be adjusted to the rate set forth
in Level 8 until such time delivery of such financial statements shall
have been made or the Event of Default shall have been cured or waived,
as the case may be.
3.21 Section 2.11(e) of the Credit Agreement is amended to read as
follows:
(e) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and upon termination
of the Commitments; provided that (i) interest accrued pursuant to
paragraph (d) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Loan prior to the end of the Availability
Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
3.22 The last clause of Section 2.12 of the Credit Agreement is
amended to read as follows:
then the Administrative Agent shall give notice thereof to the
Borrower and the Lenders by telephone or telecopy as promptly as
practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances
giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to,
or continuation of any Borrowing as, a Eurodollar Borrowing shall
be ineffective and shall be deemed to request conversion to an ABR
Borrowing, and (ii) if any Borrowing
Request requests a Eurodollar Borrowing, such Borrowing shall be
made as an ABR Borrowing.
3.23 Subparagraph (c) of the first sentence of Section 2.14 of the
Credit Agreement is amended to read as follows:
(c) the failure to borrow, convert, continue or prepay any
Revolving Loan or to convert or prepay the Bullet Loan on the date
specified in any notice delivered pursuant hereto (regardless of
whether such notice may be given under Section 2.09(b) and is
revoked in accordance therewith), or
3.24 Section 2.16(c) of the Credit Agreement is amended to read as
follows:
(c) If any Lender shall, by exercising any right of set-off
or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Revolving Loans, Swingline
Loans or the Bullet Loan resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its
Revolving Loans, Swingline Loans and Bullet Loan and accrued
interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase
(for cash at face value) participations in the Revolving Loans,
Swingline Loans and Bullet Loan of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared
by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving
Loans, Swingline Loans and Bullet Loan; provided that (i) if any
such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of
this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in
any of its Loans to any assignee or participant, other than to the
Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). Notwithstanding the
foregoing, if the provisions of the Collateral Agency Agreement
require a Lender to share the proceeds of a set-off or
counterclaim with, or otherwise purchase a participation in any of
the loans or obligations owned by, a party or parties to the
Collateral Agency Agreement, the provisions of the Collateral
Agency Agreement shall control and take precedence over the
provisions of this subparagraph (c). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against the Borrower
rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of
the Borrower in the amount of such participation.
3.25 The following new Section 5.13 is added to the Credit
Agreement:
SECTION 5.13 Additional Collateral. The Borrower shall use its
best efforts to deliver or cause to be delivered to the Collateral
Agent the following items on or before February 1, 2002, and in
any event shall deliver or cause to be delivered to the Collateral
Agent the following items on or before the later of (a) February
23, 2002 or (b) the date that Borrower, the Administrative Agent
and the Required Lenders have entered into an amendment to this
Agreement amending the Consolidated Interest Coverage Ratio and
the Consolidated Leverage Ratio to levels which are mutually
satisfactory, which amendment may contain such other terms and
conditions as may be required by the Administrative Agent and the
Required Lenders: (i) a Subsidiary Guarantee and Subsidiary
Subordination Agreement executed by Kenwood Silver Company, Inc.,
(ii) instruments in form and substance reasonably satisfactory to
the Collateral Agent pursuant to which Kenwood Silver Company,
Inc. shall become a party to the Security Documents granting to
the Collateral Agent a perfected first priority security interest
in or pledge of all of its tangible and intangible assets (other
than Deposit Accounts), (iii) Mortgages executed by Borrower and
any Subsidiary owning Mortgaged Property granting the Collateral
Agent a mortgage Lien on all Mortgaged Property, (iv) fully paid
mortgagee title insurance policies (or binding commitments to
issue title insurance policies, marked to the satisfaction of the
Collateral Agent to evidence the form of such policies to be
delivered with respect to the Mortgages) in standard ALTA form,
issued by a title insurance company satisfactory to the Collateral
Agent in an amount not less than the amount of the Mortgages
(except as the Collateral Agent may otherwise agree), insuring the
Mortgages to create valid Liens on the Mortgaged Property with no
exceptions which the Collateral Agent shall not have approved in
writing, (v) instrument surveys dated within 60 days of delivery
of all Mortgaged Property prepared by land surveyors acceptable to
the Collateral Agent showing the courses and distances of all
boundaries of the Mortgaged Property and the location of all
improvements, fences, driveways, encroachments and easements
affecting or appurtenant to the Mortgaged Property, with the
surveys certified to the Collateral Agent and the title insurance
company, (vi) a report from an independent real estate appraisal
firm acceptable to the Collateral Agent certifying to the
Collateral Agent the orderly liquidation value of Borrower's main
plant and knife plant in Sherrill, New York and the main plant of
Buffalo China, Inc. in Buffalo, New York, (vii) insurance
certificates in form satisfactory to the Collateral Agent naming
the Collateral Agent a loss payee or mortgagee (as the case may
be) with respect to the assets of Kenwood Silver Company, Inc. and
the Mortgaged Property, and (viii) such other instruments and
documents as the Collateral Agent may reasonably request
incidental to any of the foregoing. Provided Borrower, the
Administrative Agent and the Required Lenders have entered into a
mutually acceptable amendment amending the Consolidated Interest
Coverage Ratio and the Consolidated Leverage Ratio,
Borrower shall deliver or cause to be delivered to the Collateral
Agent the foregoing items as and when they become available,
including, without limitation, Mortgages on each parcel comprising
the Mortgaged Property without the necessity of waiting until the
title insurance policies, surveys and other required documents
with respect to all Mortgaged Property shall become available.
3.26 Section 6.01(h) of the Credit Agreement is amended to read as
follows:
(h) Indebtedness of the Borrower's Subsidiaries which does
not exceed, in the aggregate, $25,000,000 outstanding at any time,
exclusive of Indebtedness of Subsidiaries listed on Schedule 6.01.
3.27 Section 6.02 is amended by deleting the word "and" at the end
of subparagraph (e), adding the word "and" at the end of subparagraph
(f), and inserting the following new subparagraph (g) immediately
following subparagraph (f):
(g) any Lien existing or created on any property or asset of
a Subsidiary organized under the laws of Australia, China, Italy
or the United Kingdom to secure Indebtedness under working capital
lines of credit permitted under Section 6.01.
3.28 Section 6.13 of the Credit Agreement is amended to read as
follows:
The Borrower will not, and will not permit any of its
Material Domestic Subsidiaries to, open or maintain any Deposit
Account with a Person other than one of the Lenders unless the
Collateral Agent shall have a perfected first priority Lien
therein, except that Borrower may maintain Deposit Accounts at
Oneida Savings Bank solely for payroll purposes.
3.29 Section 7.01(d) of the Credit Agreement is amended to read as
follows:
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.03
(with respect to the Borrower's existence), 5.08 or 5.13 or in
Article VI;
3.30 Exhibit A attached to the Credit Agreement is replaced in its
entirety by Exhibit A attached to this Amendment.
3.31 A new Schedule 1.01, in the form attached hereto, is hereby
added to the Credit Agreement.
3.32 Schedule 2.01 to the Credit Agreement is replaced in its
entirety by Schedule 2.01 attached to this Amendment.
4. Representations and Warranties. The Borrower represents and warrants
to the Administrative Agent and the Lenders that the following statements are
true, correct and complete:
4.1 Consolidated Interest Coverage Ratio. The Consolidated
Interest Coverage Ratio for the Fiscal Quarter ended October 27, 2001,
as reflected on the unaudited financial statements for the Fiscal
Quarter then ended required to be delivered pursuant to Section 5.01(a)
of the Credit Agreement, is 2.04 to 1.00.
4.2 Consolidated Leverage Ratio. The Consolidated Leverage Ratio
for the Fiscal Quarter ended October 27, 2001, as reflected on the
unaudited financial statements for the Fiscal Year then ended required
to be delivered pursuant to Section 5.01(b) of the Credit Agreement, is
5.42 to 1.0.
4.3 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.
4.4 No Default or Event of Default. No Default or Event of Default
has occurred and is continuing except for the Events of Default
referenced in Paragraph 2 above.
4.5 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.
5. Conditions to Effectiveness of Amendment. This Amendment shall be
effective only when and if each of the following conditions is satisfied:
5.1 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.
5.2 Consent of Guarantors. Each of the Guarantors shall have
executed and delivered to the Administrative Agent the Consent of
Guarantors attached to this Amendment.
5.3 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.
5.4 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.
5.5 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.
5.6 Amendment Fee. The Borrower shall have paid to the
Administrative Agent an amendment fee equal to .10% 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 December 7, 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.
5.7 Note Agreements. The Administrative Agent shall have received
copies of any waivers and/or amendments waiving or amending 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.
6. 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. 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.
7. 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.
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 XXXXX
-------------------------------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
JPMORGAN CHASE BANK (formerly known as The
Chase Manhattan Bank), individually and as
Administrative Agent
By: /s/ XXXXXX X. XXXX, XX.
-------------------------------------
Name: Xxxxxx X. Xxxx, Xx.
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
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
HSBC BANK, USA, individually and as Senior
Managing Agent
By:
-------------------------------------
Name:
Title:
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ XXXX X. XXXXXX
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Banking Officer
THE BANK OF NOVA SCOTIA
By: /s/ XXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
EUROPEAN AMERICAN BANK
By:
-------------------------------------
Name:
Title:
BANCA NAZIONALE DEL LAVORO
By:
-------------------------------------
Name:
Title:
CONSENT OF GUARANTORS
Each of the undersigned is a party to a Subsidiary Guarantee 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 Waiver and
Amendment No. 2 to the 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 Subsidiary Guarantee Agreement and Security
Documents continue in full force and effect, and (c) ratifies and affirms the
terms and provisions of the Subsidiary Guarantee Agreement and Security
Documents.
IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Consent of Guarantors as of the 7th day of December, 2001.
BUFFALO CHINA, INC. DELCO INTERNATIONAL LTD.
By: /S/ XXXXX XXXXX By: /S/ XXXXX XXXXX
----------------------- ----------------------
ENCORE PROMOTIONS, INC. SAKURA, INC.
By: /S/ XXXXX XXXXX By: /S/ XXXXX XXXXX
----------------------- ----------------------
THC SYSTEMS INC.
By: /S/ XXXXX XXXXX
-----------------------
EXHIBIT A
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement dated as
of April 27, 2001 (as amended and in effect on the date hereof, the "Credit
Agreement"), among Oneida Ltd., the Lenders named therein and JPMorgan Chase
Bank (formerly known as The Chase Manhattan Bank), as Administrative Agent for
the Lenders. Terms defined in the Credit Agreement are used herein with the same
meanings.
The Assignor named on the reverse hereof hereby sells and assigns,
without recourse, to the Assignee named on the reverse hereof, and the Assignee
hereby purchases and assumes, without recourse, from the Assignor, effective as
of the Assignment Date set forth on the reverse hereof, the interests set forth
on the reverse hereof (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth on the reverse hereof in the Commitment of the Assignor on
the Assignment Date and Revolving Loans and the Bullet Loan owing to the
Assignor which are outstanding on the Assignment Date, together with the
participations in Swingline Loans held by the Assignor on the Assignment Date,
but excluding accrued interest and fees to and excluding the Assignment Date.
The Assignee hereby acknowledges receipt of a copy of the Credit Agreement. From
and after the Assignment Date (i) the Assignee shall be a party to and be bound
by the provisions of the Credit Agreement and, to the extent of the Assigned
Interest, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the Assigned Interest, relinquish its rights
and be released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.15(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The [Assignee/Assignor] shall pay the fee payable to the
Administrative Agent pursuant to Section 9.04(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
=========================================================================================================
Percentage Assigned of
Facility/Commitment (set forth,
to at least 8 decimals, as a
percentage of the Facility and
the aggregate Commitments of all
Facility Principal Amount Assigned Lenders thereunder)
---------------------------------------------------------------------------------------------------------
Commitment Assigned: $ %
---------------------------------------------------------------------------------------------------------
Revolving Loans:
---------------------------------------------------------------------------------------------------------
Bullet Loan:
=========================================================================================================
The terms set forth above and on the reverse side hereof are hereby agreed to:
[Name of Assignor], as Assignor
By:
-----------------------------------------
Name:
Title:
[Name of Assignee], as Assignee
By:
-----------------------------------------
Name:
Title:
SCHEDULE 1.01
Mortgaged Property
Owner Description
----- -----------
Oneida Ltd. Main and Knife Plants
Sherrill, NY
Oneida Ltd. Warehouse
000 Xxxxxxxxxx Xx.
Xxxxxxxx, XX
Oneida Ltd. Administration Building
Kenwood Ave.
Oneida, NY
Oneida Ltd. Xxxxx Pt
Canastota, NY
Oneida Ltd. Golf Course
Oneida/Sherrill, NY
Buffalo China, Inc. 000 Xxxxxx Xxxxxx
Xxxxxxx, XX
Xxxxxx Xxxxxx Ltd. 0000 Xxxxxxx Xxx.
Xxxxxxx Xxxxx, Xxxxxxx
SCHEDULE 2.01
Initial Lenders' Commitments prior to Bullet Loan
Name of Lender Total Commitment
-------------- ----------------
JPMorgan Chase Bank $ 45,000,000
Bank of America, N.A. $ 35,000,000
Fleet National Bank $ 45,000,000
HSBC Bank, USA $ 45,000,000
Manufacturers and Traders
Trust Company $ 40,000,000
Bank of Nova Scotia $ 35,000,000
European American Bank $ 15,000,000
Banca Nazionale Del Lavoro $ 15,000,000
----------
TOTAL $ 275,000,000
===========
SCHEDULE 2.01 (Cont.)
Lenders' Commitments Upon Making of the Bullet Loan
Name of Lender Bullet Loan Revolving Commitment Total Commitment
-------------- ----------- -------------------- ----------------
JPMorgan Chase Bank $ 6,545,454.55 $ 38,454,545.45 $ 45,000,000.00
Bank of America, N.A. $ 5,090,909.09 $ 29,909,090.91 $ 35,000,000.00
Fleet National Bank $ 6,545,454.55 $ 38,454,545.45 $ 45,000,000.00
HSBC Bank, USA $ 6,545,454.55 $ 38,454,545.45 $ 45,000,000.00
Manufacturers and Traders
Trust Company $ 5,818,181.82 $ 34,181,818.18 $ 40,000,000.00
Bank of Nova Scotia $ 5,090,909.09 $ 29,909,090.91 $ 35,000,000.00
European American Bank $ 2,181,818.18 $ 12,818,181.82 $ 15,000,000.00
Banca Nazionale
Del Lavoro $ 2,181,818.18 $ 12,818,181.82 $ 15,000,000.00
-------------- --------------- ---------------
TOTAL $40,000,000.00 $235,000,000.00 $275,000,000.00
============== =============== ===============
