EXHIBIT 4(a)(xii)
WAIVER AND AMENDMENT NO. 2
TO
CREDIT AGREEMENT
This Waiver and Amendment No. 2 ("Amendment"), dated as of
February 23, 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 the 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 a Credit Agreement dated as of June 2, 2000, as amended by a Waiver
and Amendment No. 1 dated as of September 12, 2000 (the "Credit Agreement").
B. Borrower has advised the Administrative Agent and Lenders
that its Consolidated Leverage Ratio for the Fiscal Quarter ending January 27,
2001 was approximately 3.47 to 1.0 (subject to revision following completion of
the financial statements for the Fiscal Year then ended), in violation of
Section 6.11(b) of the Credit Agreement.
C. Borrower has requested that the Administrative Agent and
the Lenders waive the Event of Default arising out of Borrower's failure to
comply with Section 6.11(b) of the Credit Agreement at January 27, 2001.
D. The Administrative Agent and the Lenders are willing to
grant the waiver requested by Borrower, provided the Credit Agreement is amended
to require Borrower and its Material Domestic Subsidiaries to grant the Lenders
a security interest in substantially all of their domestic assets (other than
real estate and leased assets) no later than April 27, 2001.
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.
2. Waiver. The Lenders hereby waive the Event of Default created as a
result of Borrower's failure to comply with Section 6.11(b) of the Credit
Agreement for the Fiscal Quarter ended January 27, 2001. This waiver is limited
to the failure to comply with Section 6.11(b) at January 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 Section 7.01(m) of the Credit Agreement is amended by
deleting the word "or" at the end thereof.
3.2 Section 7.01 (n) of the Credit Agreement is amended by
adding the word "or" at the end thereof immediately following the semi-colon.
3.3 The following new subparagraph (o) is added to Section
7.01 immediately following subparagraph (n):
(o) The Borrower shall have failed by April 27, 2001
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(i) to enter into an amendment to this Agreement (and
related collateral documents) which amends the
covenants set forth in Sections 6.11(a) and 6.11(b)
hereof to levels satisfactory to the Administrative
Agent and the Required Lenders, and (ii) to grant,
and to cause each Material Domestic Subsidiary to
grant, to the Administrative Agent, for the pro rata
benefit of the Lenders, the 1992 Noteholders and 1996
Noteholders (as such terms are defined in the Sharing
Agreement), and such other senior creditors of
Borrower as are reasonably acceptable to the
Administrative Agent and the Required Lenders, a
perfected first priority security interest in or
pledge of (A) all of their tangible and intangible
assets located in the United States other than real
estate and assets under lease, (B) the capital stock
or other equity securities of each Material Domestic
Subsidiary, (C) 65% of the capital stock or other
equity securities of each foreign Subsidiary whose
assets, as of the end of the most recent Fiscal
Quarter, account for 5% or more of the total assets
of the Borrower and its Subsidiaries, taken as a
whole, and (D) all promissory notes and other
instruments evidencing accounts receivable or notes
receivable owed to the Borrower and each Material
Domestic Subsidiary, all upon terms and conditions
reasonably satisfactory to the Administrative Agent
and the Required Lenders and subject to no other
Liens except Liens permitted by Section 6.02 hereof;
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 Leverage Ratio. The Consolidated Leverage
Ratio for the Fiscal Quarter ended January 27, 2001, as reflected on the audited
financial statements for the Fiscal Year then ended required to be delivered
pursuant to Section 5.01(a) of the Credit Agreement, will be no higher than 3.60
to 1.0.
4.2 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.
4.3 No Default or Event of Default. No Default or Event of
Default has occurred and is continuing except for the Event of Default
referenced in Paragraph 2 above.
4.4 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.
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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.
6. 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 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.
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.
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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/ XXXXXX X. XXXXX
-------------------
Name: Xxxxxx X. Xxxxx
Title: Corporate Senior Vice President, Finance
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: Not Signed
-----------------------
Name:
Title:
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: /s/ XXXXXXX X. XXXXXXXX
-----------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Vice President
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ XXXXX X. XXXXXX
-------------------
Name:Xxxxx X. XxXxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: Not Signed
-----------------------
Name:
Title:
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EUROPEAN AMERICAN BANK
By: /s/ XXXX XXXXXX
-----------------------
Name: Xxxx Xxxxxx
Title: Vice President
BANCA NAZIONALE DEL LAVORO
By: /s/ XXXXXXXX XXXXXXXXX
-----------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: First Vice President
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CONSENT OF GUARANTORS
Each of the undersigned is a party to a Subsidiary Guarantee Agreement
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 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 continues in
full force and effect, and (c) ratifies and affirms the terms and provisions of
the Subsidiary Guarantee Agreement.
IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Consent of Guarantors as of the 23rd day of February, 2001.
BUFFALO CHINA, INC. DELCO INTERNATIONAL LTD.
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
------------------- ---------------
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
------------------- ---------------
Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx
Chief Executive Officer Chief Executive Officer
THC SYSTEMS INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Xxxxx X. Xxxxxx
Chief Executive Officer
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