EXHIBIT 4(a)(vii)
AMENDMENT NO. 3
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment No. 3 ("Amendment"), dated as of April 23,
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
("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, and a Waiver
and Amendment No. 2 dated as of December 7, 2001 (the "Credit Agreement").
B. Borrower has requested that the Administrative Agent
and the Lenders agree to an extension of the Credit Agreement and amend certain
of the financial covenants in the Credit Agreement.
C. The Administrative Agent and the Lenders are willing
to grant the extension requested by Borrower and to amend the financial
covenants, provided the Credit Agreement is amended to, among other things,
reduce the amount of the Lenders' aggregate Commitments and Revolving
Commitments and provide for the monthly reporting of certain financial
information.
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. Amendment of Credit Agreement.
2.1 The following defined term is added to Section 1.01
of the Credit Agreement:
"Amendment No. 3 Effective Date" means the date on which all
the conditions to Amendment No. 3 dated as of April 23, 2002
have been satisfied.
2.2 The following defined term is added to Section 1.01
of the Credit Agreement: "Capital Expenditures" means, with
respect to any Person for any period, the sum of (a) all
expenditures of such Person in respect of the purchase or
other acquisition of fixed or capital assets (excluding any
such asset acquired in connection with normal replacement and
maintenance programs properly charged to current operations
under GAAP) that are paid or due and payable in cash during
such period and (b) all Capital Lease Obligations under which
such Person is the lessee.
2.3 The definition of the term Commitment in Section 1.01
of the Credit Agreement 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
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pursuant to Section 2.07, (b) reduced or increased from time
to time pursuant to assignments by or to such Lender pursuant
to Section 9.04, or (c) automatically reduced pursuant to
Schedule 2.01. 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. On the Amendment No. 3
Effective Date, the Lenders' aggregate Commitments will be
reduced to $245,000,000, and thereafter the aggregate amount
of the Lenders' Commitments shall reduce to the amounts set
forth on Schedule 2.01 on the dates set forth therein. Each
reduction in the Commitments contemplated by Schedule 2.01
will be apportioned among the Lenders ratably based upon their
relative Commitments immediately prior to such reductions.
2.4 The definition of the term Maturity Date in Section
1.01 of the Credit Agreement is amended to read as follows:
"Maturity Date" means February 1, 2004, unless extended in
accordance with Section 2.07(a).
2.5 The definition of the term Required Lenders in
Section 1.01 of the Credit Agreement 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 at least 70% of
the sum of the total Revolving Credit Exposures, Bullet Loan
Exposures and unused Revolving Commitments at such time,
except that with respect to any waiver, amendment or
modification to the Commitment reductions provided for in
Schedule 2.01 of this Agreement, "Required Lenders" shall mean
Lenders having aggregate Revolving Credit Exposures, Bullet
Loan Exposures and unused Revolving Commitments representing
at least 100% of the sum of the total Revolving Credit
Exposures, Bullet Loan Exposures and unused Revolving
Commitments at such time.
2.6 The definition of the term Revolving Commitment in
Section 1.01 of the Credit Agreement, as added by the Waiver and Amendment No.
2, is amended to read as follows:
"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, (b) reduced or
increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04, or (c) automatically
reduced pursuant to Schedule 2.01. 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 was
$275,000,000. Upon the making of the Bullet Loan, the
Revolving Commitments automatically reduced to $235,000,000,
as provided in Schedule 2.01. On the Amendment No. 3 Effective
Date, the Lenders' aggregate Revolving Commitments will be
reduced to $205,000,000, and thereafter the aggregate amount
of the Lenders' Revolving Commitments shall reduce to the
amounts set forth on Schedule 2.01 on the dates set forth
therein. Each reduction in the Revolving Commitments
contemplated by Schedule 2.01 will be apportioned among the
Lenders ratably based upon their relative Revolving
Commitments immediately prior to such reduction.
2.7 The definition of the term Subsidiary Guarantee in
Section 1.01 of the Credit Agreement is amended to read as follows:
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"Subsidiary Guarantee" means any Subsidiary Guarantee
Agreement, in substantially the form of Exhibit C, executed
and delivered by a Subsidiary, as the same may be amended,
supplemented, or otherwise modified from time to time.
2.8 The definition of the term Subordination Agreement in
Section 1.01 of the Credit Agreement is amended to read as follows:
"Subordination Agreement" means any Subsidiary Subordination
Agreement, in substantially the form of Exhibit D, executed
and delivered by a Subsidiary, as the same may be amended,
supplemented, or otherwise modified from time to time.
2.9 Section 1.04 of the Credit Agreement is amended by
adding the following sentence at the end thereof:
Notwithstanding the foregoing, the financial covenants in this
Agreement shall be calculated without regard to any impairment
of goodwill recorded by Borrower as a result of Borrower's
adoption of FAS 142.
2.10 The first sentence of Section 2.07(a) of the Credit
Agreement is amended to read as follows:
(a) Unless previously terminated, the Commitments shall
terminate as of the Maturity Date, provided, however, that the
Borrower may, by written request to the Administrative Agent
not less than 45 days prior to the Maturity Date then in
effect (such Maturity Date, hereafter referred to as the
"extension date"), request that such Maturity Date be extended
to a date no later than May 31, 2005.
2.11 Section 2.07(b) of the Credit Agreement is amended to
read as follows:
(b) The aggregate amount of the Lenders' Commitments shall
automatically reduce to the amounts set forth on Schedule 2.01
on the dates set forth therein. In addition, the Borrower may
at any time terminate, or from time to time further reduce,
the Revolving Commitments; provided that (i) each reduction of
the Revolving Commitments by Borrower 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 Bullet Loan Exposure
would exceed the total Commitments.
2.12 Section 2.07 of the Credit Agreement is amended to
add the following new subparagraph (d):
(d) Each reduction of the Commitments, whether pursuant to
Schedule 2.01 or pursuant to Borrower's election under this
Section 2.07, shall be accompanied by a prepayment by Borrower
to the Administrative Agent, for the ratable benefit of the
Lenders, of the outstanding Loans in an amount equal to the
excess (if any) of the Loans then outstanding over the amount
of the aggregate Commitments after giving effect to such
reduction. Each such prepayment shall be applied first to
those outstanding Swingline Loans and Revolving Loans which
are ABR Loans pro rata among the Lenders, then to outstanding
Swingline Loans and Revolving Loans which are not ABR Loans in
their order of maturity, and then to the Bullet Loan pro rata
among the Lenders. Each such prepayment shall be accompanied
by accrued interest to the date of payment and amounts payable
under Section 2.14, if any.
2.13 Section 5.01 of the Credit Agreement is amended by
re-lettering subparagraphs (c), (d), (e), (f) and (g) as (d), (e), (f), (g) and
(h), respectively, and by adding the following new subparagraph (c):
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(c) Within 25 days after the end of each fiscal month, a
summary profit and loss statement for the month, with
management discussion of significant developments, together
with (i) a summary account receivable aging report as of the
end of the month along with a schedule showing the 10 largest
accounts receivable at such date, (ii) an accounts payable
report as of the end of the month showing the 10 largest
accounts payable and their amounts, as well as total accounts
payable, and (iii) an inventory report showing, by product
description, the levels of raw materials and supplies,
work-in-process and finished goods as of the end of the month,
and showing changes from the preceding month and year-to-date;
2.14 Section 5.10 of the Credit Agreement is amended to
read as follows:
Maintenance of Liens of the Security Documents. The Borrower
shall, and shall cause each Subsidiary which is a party to a
Security Document to: (a) promptly, upon the reasonable
request of the Collateral Agent, at the Borrower's expense,
execute, acknowledge and deliver any document or instrument
supplemental to or confirmatory of the Security Documents or
otherwise reasonably deemed by the Collateral Agent necessary
or desirable for the continued validity, perfection and
priority of the Liens in the Collateral covered thereby, and
(b) promptly notify the Collateral Agent in writing of any
change in (i) its corporate name, (ii) the location of its
chief executive office, its jurisdiction of incorporation, its
principal place of business or any office in which it
maintains books or records relating to collateral or at which
the collateral is located (including the establishment of any
new office or facility), (iii) in its identity or corporate
structure, (iv) any newly acquired intellectual property
registrations or applications therefore in the United States
owned by it, or (v) in its federal taxpayer identification
number. If at any time following the Closing Date the Borrower
or any Subsidiary which is a party to a Security Document
shall acquire property which is required by the terms hereof
or of any of the Security Documents to be subject to the Lien
created by the Security Documents but is not subject to such
Lien, as soon as possible after the acquisition date, the
Borrower shall grant or cause to be granted to the Collateral
Agent, for the benefit of the Lenders and the Noteholders, a
first priority Lien in such property pursuant to documentation
reasonably satisfactory in form and substance to the
Collateral Agent.
2.15 The following new Section 5.14 is added to the Credit
Agreement immediately following Section 5.13, as added by the Waiver and
Amendment No. 2:
SECTION 5.14 Further Actions. Within 60 days after the
Amendment No. 3 Effective Date, Borrower shall deliver or
cause to be delivered to the Collateral Agent, for the benefit
of the Lenders and the Noteholders, a Mortgage or mortgage
spreader agreement, in form and substance satisfactory to the
Collateral Agent, covering the following tax parcels:
332.000-1-1, 332.006-2-72, 332.011-2-28, 332.018-1-1.1,
47.-1-23, 6.73-1-8. Simultaneously with the delivery of such
Mortgage or mortgage spreader agreement, Borrower shall cause
to be delivered to the Collateral Agent 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) in standard ALTA form, issued by a title insurance
company satisfactory to the Collateral Agent in an amount not
less than the assessed value of such parcels, insuring the
Mortgage (or spreader agreement, as the case may be) to create
a valid Lien on such parcels with no exceptions which the
Collateral Agent shall not have approved in writing.
2.16 Section 6.01(c) of the Credit Agreement is amended to
read as follows:
(c) Indebtedness of the Borrower to any Subsidiary and of
any Subsidiary to the Borrower or any other Subsidiary,
provided that Indebtedness of Subsidiaries who are not
Material Domestic
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Subsidiaries owed to the Borrower or any Material Domestic
Subsidiary shall not exceed $20,000,000 in the aggregate;
2.17 Section 6.03(a) of the Credit Agreement is amended to
read as follows:
(a) The Borrower will not, and will not permit any
Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or
consolidate with it, or sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of
transactions), or engage in a sale/leaseback transaction with
respect to, any substantial part of its assets, any trade
receivables (other than an assignment in connection with the
collection thereof in the ordinary course of business), or any
of the capital stock of any of its Subsidiaries (in each case,
whether now owned or hereafter acquired), or liquidate or
dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default or Event of Default
shall have occurred and be continuing (i) any Subsidiary may
merge into the Borrower in a transaction in which the Borrower
is the surviving corporation, (ii) any Subsidiary may merge
into a Material Domestic Subsidiary in a transaction in which
the surviving entity is a Material Domestic Subsidiary, (iii)
any Subsidiary may sell, transfer, lease or otherwise dispose
of its assets to the Borrower or to a Material Domestic
Subsidiary, (iv) any Subsidiary may liquidate or dissolve if
the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and the
assets of such Subsidiary are distributed to Borrower in
liquidation or dissolution, (v) Borrower may sell its
investment in Schott Zwiesel Glaswerke, AG for consideration
(whether cash, property or other consideration) of not less
than 7,500,000 DM, (vi) Borrower may sell 158,147 shares of
common stock of Prudential Securities, Inc. and approximately
9 acres of property located at Spagnoli Road, Melville, New
York, in each case for cash consideration equal to the fair
market value thereof, and (vii) Borrower and its Subsidiaries
may sell, transfer, or otherwise dispose of (in one
transaction or a series of transactions), or engage in a
sale/leaseback transaction with respect to, assets if the
consideration received is in cash or cash equivalents at least
equal to the fair market value of such assets and the
aggregate consideration received does not exceed $11,000,000
for all such sales, transfers, or dispositions after the
Amendment No. 3 Effective Date; provided that 100% of the
proceeds received from any sale, transfer or disposition
permitted under clause (vii) above (after deducting the
reasonable expenses of such sale, transfer or disposition) are
applied to prepay, on a pro rata basis, the Loans outstanding
under this Agreement and the indebtedness outstanding under
the Note Agreements. The amount of each such prepayment of
Loans under this Agreement (y) shall be applied first to those
outstanding Swingline Loans and Revolving Loans which are ABR
Loans pro rata among the Lenders, then to outstanding
Swingline Loans and Revolving Loans which are not ABR Loans in
their order of maturity, and then to the Bullet Loan pro rata
among the Lenders, and (z) shall permanently reduce the amount
of the Commitment and Revolving Commitment of each Lender by
the amount of such prepayment.
2.18 Section 6.04(g) of the Credit Agreement is amended to
read as follows:
(g) Capital Expenditures permitted by Section 6.16 hereof
which are made in the ordinary course of business and do not
comprise a material portion of the assets of another Person.
2.19 Section 6.11(a) of the Credit Agreement is amended to
read as follows:
(a) permit the Consolidated Interest Coverage Ratio of
the Borrower and its Subsidiaries to be less than (i) 2.22 to
1.00 for the Fiscal Quarter ended January 26, 2002, (ii) 2.31
to 1.00 for the Fiscal Quarter ending April 27, 2002, (iii)
2.33 to 1.00 for the Fiscal Quarter ending July 27, 2002, (iv)
2.46 to 1.00 for the Fiscal Quarter ending October 26, 2002,
(v) 2.11 to 1.00 for the Fiscal Quarter ending January 25,
2003, (vi) 2.16 to 1.00 for the Fiscal Quarter ending April
26, 2003, (vii) 2.21 to 1.00 for the Fiscal Quarter ending
July 26, 2003, (viii) 2.35 to 1.0 for the Fiscal Quarter
ending October 25, 2003, and (ix) 2.55 to 1.0 for each
succeeding Fiscal Quarter;
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2.20 Section 6.11(b) of the Credit Agreement is amended to
read as follows:
(b) permit the Consolidated Leverage Ratio of the
Borrower and its Subsidiaries to be greater than (i) 5.24 to
1.00 for the Fiscal Quarter ended January 26, 2002, (ii) 5.50
to 1.00 for the Fiscal Quarter ending April 27, 2002, (iii)
5.70 to 1.00 for the Fiscal Quarter ending July 27, 2002, (iv)
5.60 to 1.00 for the Fiscal Quarter ending October 26, 2002,
(v) 5.70 to 1.00 for the Fiscal Quarter ending January 25,
2003, (vi) 5.50 to 1.00 for the Fiscal Quarters ending April
26, 2003 and July 26, 2003, (vii) 5.40 to 1.0 for the Fiscal
Quarter ending October 25, 2003, and (viii) 4.80 to 1.0 for
each succeeding Fiscal Quarter.
2.21 Section 6.12 of the Credit Agreement is amended to
read as follows:
Letters of Credit. The Borrower will not, and will not permit
any Subsidiary to, become an account party in respect of, or
otherwise incur obligations under, any letters of credit or
bankers' acceptances except obligations in respect of (i)
trade letters of credit and bankers' acceptances in an amount
not to exceed $10,000,000 in the aggregate and (ii) standby
letters of credit in an amount not to exceed $20,000,000 in
the aggregate.
2.22 The following new Section 6.16 is added to the Credit
Agreement immediately following Section 6.15, as added by Amendment No. 1:
SECTION 6.16. Capital Expenditures. The Borrower and its
Subsidiaries shall not make Capital Expenditures exceeding
$10,000,000 in the aggregate in any Fiscal Year.
Notwithstanding the foregoing, if, at the end of any Fiscal
Year, the Consolidated Leverage Ratio is 3.0 to 1.0 or lower,
the limit on Capital Expenditures shall be increased to
$15,000,000 for the next succeeding Fiscal Year.
2.23 The following new Section 6.17 is added to the Credit
Agreement immediately following the new Section 6.16 added above:
SECTION 6.17 Dividends. Neither the Borrower nor any
Subsidiary shall declare or pay any dividends on shares of any
class of capital stock, whether now or hereafter outstanding,
except (a) Borrower or any Subsidiary may declare dividends
payable solely in common stock of Borrower or such Subsidiary,
(b) any Subsidiary may declare and pay cash dividends to the
Borrower, and (c) so long as no Default or Event of Default
shall have occurred and be continuing, commencing with the
second Fiscal Quarter in 2002 Borrower may declare cash
dividends on its capital stock not to exceed $375,000 per
quarter, provided that the net income for the four Fiscal
Quarters ended with the Fiscal Quarter which immediately
precedes the Fiscal Quarter in which such dividend is declared
exceeds $4,000,000. Commencing with the second Fiscal Quarter
in 2003, so long as no Default or Event of Default shall have
occurred and be continuing, the maximum amount of cash
dividends permitted to be declared by Borrower under clause
(c) above shall be (i) $375,000 per quarter if the net income
for the four Fiscal Quarters ended with the Fiscal Quarter
which immediately precedes the Fiscal Quarter in which such
dividend is declared exceeds $4,000,000, or (ii) $750,000 per
quarter if the net income for the four Fiscal Quarters ended
with the Fiscal Quarter which immediately precedes the Fiscal
Quarter in which such dividend is declared exceeds $12,000,000
and the Leverage Ratio is not greater than 4.0 to 1.0, or
(iii) $1,775,000 per quarter if the net income for the four
Fiscal Quarters ended with the Fiscal Quarter which
immediately precedes the Fiscal Quarter in which such dividend
is declared exceeds $20,000,000 and the Leverage Ratio is not
greater than 3.0 to 1.0. Dividends which are permitted under
this Section must be paid with 100 days after the close of the
Fiscal Quarter for which such dividends are declared.
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2.24 Schedule 1.01 to the Credit Agreement, added by the
Waiver and Amendment No. 2, is amended to delete the reference to the property
located at 8699 Stanley Ave., Niagara Falls, Ontario owned by Oneida Canada,
Ltd.
2.25 Schedule 2.01 to the Credit Agreement is replaced in
its entirety by Schedule 2.01 attached to this Amendment.
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 Consolidated Interest Coverage Ratio. The
Consolidated Interest Coverage Ratio for the Fiscal Year ended January 26, 2002,
as reflected in the audited financial statements required to be delivered
pursuant to Section 5.01(a) of the Credit Agreement, will not be less than 2.25
to 1.00.
3.2 Consolidated Leverage Ratio. The Consolidated
Leverage Ratio for the Fiscal Year ended January 26, 2002, as reflected in the
audited financial statements required to be delivered pursuant to Section
5.01(a) of the Credit Agreement, will not exceed 5.15 to 1.00.
3.3 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.
3.4 No Default or Event of Default. No Default or Event
of Default has occurred and is continuing.
3.5 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.
3.4 Improvements. There are no buildings, structures or
other improvements currently located on the parcels of real estate listed in
Section 2.15 of this Amendment.
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 Lenders. The Administrative Agent shall
have received a counterpart of this Amendment duly executed and delivered by the
Borrower, the Administrative Agent, and each Lender.
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4.6 Amendment Fee. The Borrower shall have paid to the
Administrative Agent an amendment fee equal to .25% of the amount of the
aggregate Commitments after giving effect to this Amendment. 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, the Lenders and (b) shall be
fully earned and nonrefundable when paid.
4.7 Additional Guaranties. Kenwood Silver Company, Inc.
shall have executed and delivered to the Administrative Agent a Subsidiary
Guarantee and Subordination Agreement.
4.8 Collateral. Borrower shall have delivered or caused
to be delivered to the Collateral Agent (a) the Mortgages and additional
collateral required to be delivered pursuant to the Waiver and Amendment No. 2
(except that the amount of the Mortgages shall be $10,816,000 for the properties
in Erie County, New York and $67,220,000 for the properties in Madison and
Oneida Counties, New York), and (b) an amendment to the Pledge Agreement, duly
executed by each of the parties thereto, pledging 65% of the issued and
outstanding shares of capital stock of Oneida Canada, Limited, together with
stock certificate(s) representing such pledged shares and a stock power duly
endorsed in blank, all in form and substance reasonably satisfactory to the
Collateral Agent and its counsel.
4.9 Note Agreement. The Administrative Agent shall have
received a copy of any amendment amending the Amended and Restated Note
Agreement governing the senior notes of Borrower due May 31, 2005, duly executed
by Borrower and the noteholders described therein.
5. 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.
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.
[Remainder of page intentionally left blank]
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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/ GREGG R. DENNY
------------------
Name: Gregg R. Denny
Title: Chief Financial Officer
JPMORGAN CHASE BANK (formerly known
as The Chase Manhattan Bank),
individually and as Administrative
Agent
By: /s/ JOSEPH H. ODDO, JR.
-----------------------
Name: Joseph H. Oddo, Jr.
Title: Vice President
BANK OF AMERICA, N.A., as a Lender and as an Issuing
Bank
By: /s/ MARLENE M. TUMA
-------------------
Name: Marlene M. Tuma
Title: Vice President
FLEET NATIONAL BANK
By: /s/ DAVID A. KAVNEY
-------------------
Name: David A. Kavney
Title: Vice President
HSBC BANK, USA, as a Lender and as an Issuing Bank
By: /s/ DANIEL J. O'TOOLE
---------------------
Name: Daniel J. O'Toole
Title: SVP/Commercial Executive
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ DANA C. LOUCKS
------------------
Name: Dana C. Loucks
Title: Assistant Vice Presdient
THE BANK OF NOVA SCOTIA, individually and as a Lender
By: /s/ BRIAN S. ALLEN
------------------
Name: Brian S. Allen
Title: Managing Director
CITIBANK, N.A. (successor to European American Bank)
By: /s/ PAUL DARRIGO
----------------
Name: Paul Darrigo
Title: Asst. Vice President
BANCA NAZIONALE DEL LAVORO S.p.A., New York Branch
By: /s/ FREDERIC W. HALL
--------------------
Name: Frederic W. Hall
Title: Vice President
By: /s/ LEONARDO VALENTINI
-----------------------
Name: Leonardo Valentini
Title: First Vice President
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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 Amendment No. 3 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 23rd day of April, 2002.
BUFFALO CHINA, INC. DELCO INTERNATIONAL LTD.
By: /s/ GREGG R.DENNY By: /s/ GREGG R. DENNY
----------------- ------------------
Name: Gregg R. Denny Name: Gregg R. Denny
Title: Vice President, Finance Title: Vice President, Finance
ENCORE PROMOTIONS, INC. SAKURA, INC.
By: /s/ GREGG R.DENNY By: /s/ GREGG R. DENNY
----------------- ------------------
Name: Gregg R. Denny Name: Gregg R. Denny
Title: Vice President, Finance Title: Vice President, Finance
THC SYSTEMS INC.
By: /s/ GREGG R.DENNY
-----------------
Name: Gregg R. Denny
Title: Vice President, Finance
10
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
============
11
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
============== =============== ===============
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SCHEDULE 2.01 (Cont.)
Scheduled Reductions in Lenders' Aggregate Commitments
------------------------------------------------------
Aggregate Aggregate Aggregate
Date Bullet Loan Revolving Commitments Commitments
- ---- ----------- --------------------- -----------
Amend. #3 Eff. Date $40,000,000 $205,000,000 $245,000,000
11/1/02 $40,000,000 $195,000,000 $235,000,000
5/2/03 $40,000,000 $185,000,000 $225,000,000
11/3/03 $40,000,000 $175,000,000 $215,000,000
1/31/04 $40,000,000 $165,000,000 $205,000,000
13