EXHIBIT 10.28
EXECUTION VERSION
LIMITED WAIVER AND AMENDMENT NO. 8
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Limited Waiver and Amendment No. 8 (the "Limited Waiver and
Amendment"), dated as of January 30, 2004, 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 dated as of August 24, 2003, a Limited Waiver and Amendment No.
5 dated as of October 31, 2003, a Limited Waiver and Amendment No. 6 dated as of
November 21, 2003, and a Limited Waiver and Amendment No. 7 dated as of December
12, 2003 (the "Credit Agreement").
B. Borrower has requested that the Administrative Agent and the Lenders (1)
waive the Defaults and 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, (2) waive any Defaults or Events of
Default that may have arisen out of the Borrower's failure, if any, to comply
with Sections 3.05, 3.11, 3.16, 5.10, 7.01(c), 7.01(e) and 7.01(o) of the Credit
Agreement and Sections 3.02, 3.03, 4.04(b) and 4.13 of the Security Agreement by
having (i) allowed the registration of certain intellectual property to lapse,
(ii) provided perfection certificates as required pursuant to Section 4.04 of
the Security Agreement that (X) incorrectly identified the registration, serial
number and/or application number for certain intellectual property owned by the
Borrower or a Guarantor (as applicable) and (Y) identified certain intellectual
property as being owned by the Borrower or a Guarantor which is not in fact
owned by such entity and (iii) applied for the registration of certain
intellectual property without notifying the Agent of such application and/or
registration, and (3) amend the Credit Agreement to, among other things, (A)
defer the scheduled reduction in the Lenders' Revolving Commitments (as defined
in the Credit Agreement) and (B) permit a Long Term Lease for warehouse space
located in California or Nevada to replace the leased warehouse located in
Ontario, California.
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 Limited Waiver and
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 Limited Waiver and Amendment and
ending on March 1, 2004 (the "Waiver Period"), (A) the Defaults and 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 and (B) the Defaults or Events of Default that may have
occurred as a result of the Borrower's failure, if any, to comply with Sections
3.05, 3.11, 3.16, 5.10, 7.01(c), 7.01(e) and 7.01(o) of the Credit Agreement and
Sections 3.02, 3.03, 4.04(b) and 4.13 of the Security Agreement by having (i)
allowed the registration of certain intellectual property to lapse, (ii)
provided perfection
certificates as required pursuant to Section 4.04 of the Security Agreement that
(X) incorrectly identified the registration, serial number and/or application
number for certain intellectual property owned by the Borrower or a Guarantor
(as applicable) and (Y) identified certain intellectual property as being owned
by the Borrower or a Guarantor which is not in fact owned by such entity and
(iii) applied for the registration of certain intellectual property without
notifying the Agent of such application and/or registration, 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;
provided further that in the event the Borrower or any of its Subsidiaries makes
any payments in respect of the $2,000,000 Promissory Note issued by the Borrower
dated September 30, 2003, the waiver provided for herein shall immediately
(without cure period or notice) and automatically be terminated in its entirety
and be of no force and effect as if the waiver had never been granted. This
waiver is limited to (A) the failure to comply with Sections 6.11(a), (b), (c)
and (d) at October 25, 2003 and (B) the failure, if any, to comply with Sections
3.05, 3.11, 3.16, 5.10, 7.01(c), 7.01(e) and 7.01(o) of the Credit Agreement and
Sections 3.02, 3.03, 4.04(b) and 4.13 of the Security Agreement in connection
with the above stated actions concerning the Borrower and Guarantors'
intellectual property, and shall not constitute or be construed as a waiver or
any other presently existing or future Defaults or Events of Default.
3. Amendment to Section 1.01 of Credit Agreement. Section 1.01 of the
Credit Agreement is hereby amended by inserting the following new defined term
in the appropriate alphabetical order:
"Amendment No. 8 Effective Date" means the date on which all
the conditions to the Limited Waiver and Amendment No. 8,
dated as of January 30, 2004, have been satisfied.
4. Amendment to Section 1.01 of Credit Agreement. The definition of
the term "Commitment" set forth in Section 1.01 of the Credit Agreement is
hereby amended by inserting the words "or Section 6.03" immediately following
the words "Section 2.07" set forth in the first sentence thereof.
5. Amendment to Section 1.01 of Credit Agreement. The definition of
the term "Revolving Commitment" set forth in Section 1.01 of the Credit
Agreement is hereby amended by inserting the words "or Section 6.03" immediately
following the words "Section 2.07" set forth in the first sentence thereof.
6. 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 representations and warranties made during the
period commencing on the Amendment No. 5 Effective Date
through March 1, 2004, 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. 8 Effective Date.
7. Amendment to Section 6.15 of Credit Agreement. Section 6.15 of the
Credit Agreement is hereby amended by inserting the following words immediately
following the word "unless" appearing therein:
"(i) such lease is for warehouse space located in California
or Nevada, provided, (A) the lease shall be on terms
reasonably comparable to the current lease in Ontario,
California and (B) the leased facility shall replace the
current leased facility in Ontario, California or (ii)"
8. Amendment to Schedule 2.01 of Credit Agreement. Schedule 2.01 of
the Credit Agreement is hereby amended by deleting the final page thereof in its
entirety and inserting the following in lieu thereof:
"SCHEDULE 2.01 (Con't.)
Scheduled Reductions in Lenders' Aggregate
Revolving Commitments
Amount of Aggregate
Reduction in
Date Revolving Commitments 1/
- ----------------------- ------------------------
Amend. #3 Eff. Date $30,000,000
11/1/02 $10,000,000
Amend. #4 Eff. Date $10,000,000
7/25/03 $5,000,000
3/1/04 (originally
scheduled for 11/03/03) $5,000,000
3/1/04 (originally
scheduled for 1/31/04) $10,000,000
3/1/04 (originally
scheduled for 2/7/04) $20,000,000
5/3/04 $10,000,000
11/1/04 $10,000,000
1/ These scheduled reductions in the Revolving Commitments are in
addition to reductions to the Revolving Commitments pursuant to Section 2.07
and Section 6.03 hereof.
9. 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 Limited Waiver and Amendment.
(b) No Default or Event of Default. After giving effect to this
Limited Waiver and Amendment, no Default or Event of Default has occurred and is
continuing.
(c) Execution, Delivery and Enforceability. This Limited Waiver
and 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.
10. Covenants. In order to induce the Lenders to enter into this
Limited Waiver and Amendment, the Borrower hereby covenants (the failure to
perform which will be an additional Event of Default under the Credit Agreement)
that it 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 (including updating such financial forecast).
11. Conditions to Effectiveness of Limited Waiver and Amendment. This
Limited Waiver and 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 Limited Waiver and Amendment.
(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
Limited Waiver and 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 Limited Waiver and 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 Limited Waiver and 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,
(i) deferring the required principal payment currently due on December 12, 2003
to no earlier than March 1, 2004 and (ii) waiving 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 March 1, 2004.
12. 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 Limited Waiver and 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.
13. 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
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 Limited Waiver and 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 Limited Waiver and 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.
14. 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.
15. Confirmation of Credit Agreement and Security Documents. Except as
amended by this Limited Waiver and 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 Limited Waiver and 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 Limited Waiver and
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 Limited Waiver and Amendment.
16. Counterparts. This Limited Waiver and 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 Limited Waiver and Amendment by facsimile
transmission shall be as effective as delivery of a manually signed counterpart.
IN WITNESS WHEREOF, the parties have caused this Limited Waiver and 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/ ROGER ODELL
------------------------------------------------
Name: Roger 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
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
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. 8 to the Amended and
Restated Credit Agreement (the "Limited Waiver and Amendment"). Each of the
undersigned Guarantors hereby (a) consents to the foregoing Limited Waiver and
Amendment, (b) acknowledges that, notwithstanding the execution and delivery of
the foregoing Limited Waiver and 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 Limited Waiver and 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 Limited Waiver and 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 the Limited
Waiver and 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.
IN WITNESS WHEREOF, each of the undersigned has executed and
delivered this Consent of Guarantors as of the 30th day of January, 2004.
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: Chief Financial Officer Title: Chief Financial Officer
ENCORE PROMOTIONS, INC. SAKURA, INC.
By: /s/ GREGG R. DENNY By: /s/ GREGG R. DENNY
---------------------------------- -----------------------------------
Name: Gregg R. Denny Name: Gregg R. Denny
Title: Chief Financial Officer Title: Chief Financial Officer
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: Chief Financial Officer Title: Chief Financial Officer
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: Chief Financial Officer Title: Chief Financial Officer