EXHIBIT 10(c)
LIMITED WAIVER AND AMENDMENT NO. 6
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Limited Waiver and Amendment No. 6 (the "Amendment"), dated as of
November 21, 2003, 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, a Waiver and Amendment No. 2
dated as of December 7, 2001, an Amendment No. 3 dated as of April 23, 2002, an
Amendment No. 4 and dated as of August 24, 2003, and a Limited Waiver and
Amendment No. 5 dated as of October 31, 2003 (the "Credit Agreement").
B. Borrower has requested that the Administrative Agent and the Lenders
waive the Events of Default arising out of the Borrower's failure to comply with
Section 6.11(a),(b), (c) and (d) of the Credit Agreement for the Fiscal Quarter
ended October 25, 2003 and amend the Credit Agreement to, among other things,
defer the scheduled reduction in the Lenders' Revolving Commitments (as defined
in the Credit Agreement).
C. The Administrative Agent and the Lenders are willing to grant the
waiver requested by the Borrower and amend the Credit Agreement subject to and
upon the terms and conditions set forth herein.
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, for the period commencing on the
Effective Date (as defined below) of this Amendment and ending on December 12,
2003 (the "Waiver Period"), the Events of Default created as a result of
Borrower's failure to comply with Sections 6.11(a), (b), (c) and (d) of the
Credit Agreement for the Fiscal Quarter ended October 25, 2003; provided that
upon the expiration of the Waiver Period, the waiver provided for herein shall
be immediately (without cure period or notice) and automatically terminated in
its entirety and be of no force and effect as if the waiver had never been
granted. This waiver is limited to the failure to comply with Sections 6.11(a),
(b), (c) and (d) at October 25, 2003 and shall not constitute or be construed as
a waiver or any other presently existing or future Events of Default.
3. Amendment to Schedule 2.01 of Credit Agreement. The final page of
Schedule 2.01 of the Credit Agreement is hereby amended by deleting the
reference to the date "11/21/03" and inserting in lieu thereof the date
"12/12/03".
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4. Amendment to Section 3.04(b) of Credit Agreement. Section 3.04(b) is
amended in its entirety to read as follows:
(b) For any representation and warranties made during the
period commencing on the Amendment No. 5 Effective Date
through December 12, 2003, since January 27, 2001, there has
been no material adverse change in the business, assets,
operations, prospects or condition, financial or otherwise, of
the Borrower and its Subsidiaries, taken as a whole, and no
sale, transfer or other disposition of a material part of the
assets or business of Borrower or any Subsidiary, except for
any material adverse change that has been publicly disclosed
or otherwise disclosed in writing to the Lenders on or before
the Amendment No. 5 Effective Date.
5. Representations and Warranties. The Borrower represents and warrants
to the Administrative Agent and the Lenders that the following statements are
true, correct and complete:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower in the Credit Agreement, as amended hereby, is
true and correct on and as of the date of this Amendment.
(b) No Default or Event of Default. After giving effect to this
Amendment, no Default or Event of Default has occurred and is continuing.
(c) 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.
6. Covenants. In order to induce the Lenders to enter into this
Amendment, the Borrower hereby agrees to the following covenants, the failure to
perform any of which will be an additional Event of Default under the Credit
Agreement:
(a) Strategic Plans. The Borrower shall continue to work with M&T
Bank ("M&T") with respect to the strategic plans of the Borrower and the
Borrower shall deliver to the Administrative Agent and the Lenders on or prior
to December 5, 2003, a final strategic plan report, in form and substance
reasonably satisfactory to the Required Lenders, prepared by M&T.
(b) Financial Forecast. The Borrower shall continue to work with the
Administrative Agent, the Lenders and Alvarez & Marsal regarding the financial
forecast delivered pursuant to paragraph 7(b) of the Limited Waiver and
Amendment No. 5 dated as of October 31, 2003.
7. Conditions to Effectiveness of Amendment. This Amendment shall be
effective on the date (the "Effective Date") when and if each of the following
conditions is satisfied:
(a) Consent of Guarantors. Each of the Guarantors shall have
executed and delivered to the Administrative Agent the Consent of Guarantors
attached to this Amendment.
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(b) No Default or Event of Default; Accuracy of Representations and
Warranties. The Borrower shall deliver to the Administrative Agent a certificate
of a Financial Officer certifying that, 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 Transaction 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.
(c) Expense Reimbursements. The Borrower shall have paid all
reasonable invoices presented to the Borrower for expense reimbursements
(including reasonable attorneys' and financial advisors' fees and disbursements)
due to the Administrative Agent (including, without limitation, the fees and
expenses of Morgan, Lewis & Bockius LLP and Alvarez & Marsal) or any Lender in
accordance with Section 9.03 of the Credit Agreement.
(d) 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.
(e) Waiver Pursuant to Note Agreement. The Administrative Agent
shall have received a copy of an executed waiver of any Default or Event of
Default arising under the 2001 Amended and Restated Note Agreement governing the
senior notes of Borrower due May 31, 2005 (the "2001 Amended and Restated Note
Agreement"), duly executed by Borrower and the noteholders described therein,
waiving (i) the required principal payment currently due on November 21, 2003 to
no earlier than December 12, 2003 and (ii) any Default or Event of Default
arising from failure to satisfy any financial covenants under Section 7.12 of
the 2001 Amended and Restated Note Agreement to December 12, 2003.
8. Further Assurances. The Borrower agrees, at its own expense, to
execute, acknowledge, deliver and cause to be duly filed all such further
instruments and documents and take all such actions as the Collateral Agent may
from time to time reasonably request to better assure, preserve, protect and
perfect the Security Interest (as defined in the Security Agreement) and the
rights and remedies created thereby. In addition, as further security for
payment and performance of the obligations under the Credit Agreement and as
consideration for the Administrative Agent's and the Lenders' agreement to enter
into this Amendment, the Borrower hereby further agrees to grant a perfected
pledge and security interest in any additional collateral as the Collateral
Agent may reasonably request.
9. Release. For purposes of this Section, the following terms shall
have the following definitions:
(a) "Related Parties" shall mean, with respect to any released
party, such party's parents, subsidiaries, affiliates, successors, assigns,
predecessors in interest, officers, directors, employees, agents,
representatives, attorneys, financial advisors, accountants and shareholders, if
any.
(b) "Claims" shall mean any and all claims, losses, debts,
liabilities, demands, obligations, promises, acts, omissions, agreements, costs,
expenses, damages, injuries, suits, actions, causes of action, including without
limitation, any and all rights of setoff, recoupment or counterclaim of any kind
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or nature whatsoever, in law or in equity, known or unknown, suspected or
unsuspected, contingent or fixed.
Excluding only the continuing obligations of the Lenders and the
Administrative Agent under the express terms of the Credit Agreement, the
Transaction Documents and this Amendment, the Borrower hereby releases, acquits
and forever discharges the Lenders and the Administrative Agent, and each of
them, and their respective Related Parties, of and from any and all Claims
arising out of, related or in any way connected with the Credit Agreement, the
Transaction Documents or the transactions contemplated by any thereof,
including, without limitation, any action or failure to act, prior to the
execution of this Amendment, in response to or otherwise in connection with the
events or circumstances arising under or otherwise related to the Credit
Agreement, the Transaction Documents or any Defaults or Events of Default
occurring under the Credit Agreement or the Transaction Documents.
10. Acknowledgement. The Borrower hereby confirms and acknowledges as
of the date hereof that it is validly and justly indebted to the Administrative
Agent and the Lenders for the payment of all obligations under the Credit
Agreement without offset, defense, cause of action or counterclaim of any kind
or nature whatsoever.
11. 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. This Amendment shall be limited precisely as written and
shall not be deemed (a) to be a consent granted pursuant to, or a waiver or
modification of, any other term or condition of the Credit Agreement or any of
the instruments or agreements referred to therein or (b) to prejudice any right
or rights which the Administrative Agent or the Lenders may now have or have in
the future under or in connection with the Credit Agreement or any of the
instruments or agreements referred to therein. 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.
12. 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/ GREGG R. DENNY
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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/ ROGER A. ODELL
-------------------------------------------------
Name: R.A. Odell
Title: Managing Director
BANC OF AMERICA STRATEGIC SOLUTIONS, INC.
(assignee of Bank of America, Inc.)
By: /s/ MARLENE M. TUMA
-------------------------------------------------
Name: Marlene M. Tuma
Title: Vice President
FLEET NATIONAL BANK
By: /s/ DANIEL D. BUTLER
-------------------------------------------------
Name: Daniel D. Butler
Title: Authorized Officer
HSBC BANK USA
By: /s/ PATRICK M. HANLEY
-------------------------------------------------
Name: Patrick M. Hanley
Title: Vice President
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ MICHAEL P. WALLACE
-------------------------------------------------
Name: Michael P. Wallace
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By: /s/ OLIVIA L. BRAUN
---------------------------------------------------
Name: Olivia L. Braun
Title: Director
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CITIBANK, N.A. (successor to European American Bank)
By: /s/ MICHAEL T. CIPOT
-------------------------------------------------
Name: Michael T. Cipot
Title: Senior Credit Officer
BANCA NAZIONALE DEL LAVORO S.p.A.,
New York Branch
By: /s/ FREDERIC W. HALL
-------------------------------------------------
Name: Frederic W. Hall
Title: Vice President
By: /s/ FRANCESCO DI MARIO
-------------------------------------------------
Name: Francesco Di Mario
Title: Vice President
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CONSENT OF GUARANTORS
Each of the undersigned is a party to a Subsidiary Guarantee Agreement,
a Subordination 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 Limited Waiver and Amendment No. 6 to the Amended and Restated Credit
Agreement (the "Amendment"). 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, the Subordination Agreement and Security Documents continue
in full force and effect, and (c) ratifies and affirms the terms and provisions
of the Subsidiary Guarantee Agreement, the Subordination Agreement and Security
Documents. All capitalized terms used herein which are not otherwise defined
shall have the meanings given to those terms in the Credit Agreement.
Each of the undersigned hereby agree, at its own expense, to execute,
acknowledge, deliver and cause to be duly filed all such further instruments and
documents and take all such actions as the Collateral Agent may from time to
time reasonably request to better assure, preserve, protect and perfect the
Security Interest (as defined in the Security Agreement) and the rights and
remedies created thereby. In addition, as further security for payment and
performance of the obligations under the Subsidiary Guarantee Agreement and as
consideration for the Administrative Agent's and the Lenders' agreement to enter
into the Amendment, each of the undersigned hereby further agrees to grant a
perfected pledge and security interest in any additional collateral as the
Collateral Agent may reasonably request.
Excluding only the continuing obligations of the Lenders and the
Administrative Agent under the express terms of the Credit Agreement, the
Transaction Documents and the Amendment, the undersigned hereby releases,
acquits and forever discharges the Lenders and the Administrative Agent, and
each of them, and their respective Related Parties (as defined below) of and
from any and all Claims (as defined below) arising out of, related or in any way
connected with the Credit Agreement, the Transaction Documents or the
transactions contemplated by any thereof, including, without limitation, any
action or failure to act, prior to the execution of this Amendment, in response
to or otherwise in connection with the events or circumstances arising under or
otherwise related to the Credit Agreement, the Transaction Documents or any
Defaults or Events of Default occurring under the Credit Agreement or the
Transaction Documents.
"Related Parties" shall mean, with respect to any released party, such
party's parents, subsidiaries, affiliates, successors, assigns, predecessors in
interest, officers, directors, employees, agents, representatives, attorneys,
accountants and shareholders, if any.
"Claims" shall mean any and all claims, losses, debts, liabilities,
demands, obligations, promises, acts, omissions, agreements, costs, expenses,
damages, injuries, suits, actions, causes of action, including without
limitation, any and all rights of setoff, recoupment or counterclaim of any kind
or nature whatsoever, in law or in equity, known or unknown, suspected or
unsuspected, contingent or fixed.
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IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Consent of Guarantors as of the 21 day of November 2003.
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. KENWOOD SILVER COMPANY, 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
ONEIDA SILVERSMITHS INC ONEIDA FOOD SERVICE, 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
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