EXHIBIT 10.1
EXECUTION COPY
LIMITED WAIVER AND AMENDMENT NO. 13
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Limited Waiver and Amendment No. 13 (the "Limited Waiver and
Amendment"), dated as of April 30, 2004, is among ONEIDA LTD., a New York
corporation (the "Borrower" or "Oneida"), 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, Limited Waiver
and Amendment No. 7 dated as of December 12, 2003, Limited Waiver and
Amendment No. 8 dated as of January 30, 2004, a Limited Waiver and
Amendment No. 9 dated as of February 27, 2004, a Limited Waiver and
Amendment No. 10 dated as of March 12, 2004, a Limited Waiver and Amendment
No. 11 dated as of March 31, 2004 and a Limited Waiver and Amendment No. 12
dated as of April 14, 2004 (the "Credit Agreement").
B. Borrower has requested that the Administrative Agent and the Lenders waive
(i) 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 Quarters ended October 25, 2003 and January 31,
2004, (ii) the expected Defaults and Events of Default arising out of the
Borrower's anticipated failure to comply with Section 6.11(a), (b), (c) and
(d) of the Credit Agreement for the Fiscal Quarter ended May 1, 2004 and
(iii) the Borrower's anticipated failure to deliver the Fiscal Year end
financial statements for Fiscal Year ended 2004 with an unqualified report
from the Borrower's independent public accountant as required pursuant to
Section 5.01(a) of the Credit Agreement, 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 Borrower has notified the Administrative Agent that it may receive a
request from HSBC Bank USA ("HSBC") for reimbursement for draws made under
that certain Irrevocable Documentary Standby Letter of Credit No.
SDCMBF799632 dated June 21, 1999 (as amended) in a face amount equal to
$2,090,000 (the "HSBC Reimbursement Obligation"). In the event of such
reimbursement request from HSBC, the Borrower has not yet determined its
position with respect to payment of such obligation. Accordingly, the
Borrower has requested that the Administrative Agent and the Lenders waive
any Default and Event of Default pursuant to Section 7.01(f) of the Credit
Agreement arising out of the Borrower's failure to pay such HSBC
Reimbursement Obligation.
D. 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 June 15, 2004, (the "Waiver Period"), (i) 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 Quarters ended October
25, 2003 and January 31, 2004, (ii) the expected Defaults and Events of Default
arising out of the Borrower's anticipated failure to comply with Section
6.11(a), (b), (c) and (d) of the Credit Agreement for the Fiscal Quarter ended
May 1, 2004, (iii) the expected Default and Event of Default created as a result
of the Borrower's anticipated failure to deliver the Fiscal Year end financial
statements for Fiscal Year ended 2004 with an unqualified report from the
Borrower's independent public accountant as required pursuant to Section 5.01(a)
of the Credit Agreement, and (iv) any Default and Event of Default pursuant to
Section 7.01(f) of the Credit Agreement arising out of the Borrower's failure to
pay the HSBC Reimbursement Obligation 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
the (i) failure to comply with Section 6.11(a), (b), (c) and (d) at October 25,
2003 and January 31, 2004, (ii) the anticipated failure to comply with Sections
6.11(a), (b), (c) and (d) of the Credit Agreement for the Fiscal Quarter ended
May 1, 2004, (iii) the anticipated failure to deliver the financial statements
for Fiscal Year ended 2004 with an unqualified report from the Borrower's
independent public account as required pursuant to Section 5.01(a) of the Credit
Agreement and (iv) the failure to comply with Section 7.01(f) of the Credit
Agreement as a result of any failure to pay the HSBC Reimbursement Obligation,
and shall not constitute or be construed as a waiver of 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 (A) inserting the following new defined
term in the appropriate alphabetical order:
"Amendment No. 13 Effective Date" means the date
on which all the conditions to the Limited Waiver
and Amendment No. 13, dated as of April 30, 2004,
have been satisfied.
and (B) deleting the words "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" appearing
in the definition of "Required Lenders" set forth therein.
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 representations and warranties made
during the period commencing on the Amendment No.
5 Effective Date through June 15, 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
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or otherwise disclosed in writing to the Lenders
on or before the Amendment No. 13 Effective Date.
5. Amendment to Section 9.02(b) of the Credit Agreement. Section 9.02(b) of
the Credit Agreement is hereby amended by deleting the words "or postpone the
scheduled date of expiration of any Commitment," appearing in clause (iii) of
the proviso in the first sentence thereof.
6. Amendment to Schedule 2.01 of the 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
Date Amount of Aggregate
---- Reduction in
Revolving Commitments1/
----------------------
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
6/15/04 (originally $5,000,000
scheduled for 11/03/03)
6/15/04 (originally $10,000,000
scheduled for 1/31/04)
6/15/04 (originally $20,000,000
scheduled for 2/7/04)
6/15/04 (originally $10,000,000
scheduled for 5/3/04)
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.
7. 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.
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(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.
8. 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):
(a) 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 (including updating such financial
forecast and creating a plan regarding the implementation of such forecast).
(b) Strategic Plans. The Borrower shall work with Peter J. Solomon
Company ("PJS") with respect to the strategic plans of the Borrower and, on or
prior to May 10, 2004, the Borrower shall deliver to the Administrative Agent
and the Lenders a strategic plan summary, in form and substance reasonably
satisfactory to the Required Lenders, prepared by PJS.
(c) CRO Reports. Carl Marks Consulting Group LLC ("CMCG") shall (i)
continue to serve in the capacity of Chief Restructuring Officer, (ii) on or
prior to May 17, 2004, deliver to the Administrative Agent and the Lenders a
report regarding the Borrower's cost reduction opportunities, working capital
management, a review of the current business plan and a review of the Borrower's
current fiscal year financial forecasts and (iii) participate in meetings with
the Administrative Agent and the Lenders as may be reasonably requested by the
Administrative Agent.
9. 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.
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(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 April 30, 2004 to
no earlier than June 15, 2004 and (ii) waiving any Default or Event of Default
arising from (A) failure to satisfy any financial covenants under Section 7.12
of the 2001 Amended and Restated Note Agreement to June 15, 2004 and (B) failure
to deliver the financial statements for Fiscal Year ended 2004 with an
unqualified report from the Borrower's independent public accountant as required
pursuant to Section 6.1(b) of the 2001 Amended and Restated Note Agreement.
10. 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.
11. 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.
12. 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.
13. 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
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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.
14. 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.
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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/ DANIEL D. BUTLER
--------------------
Name: Daniel D. Butler
Title: Authorized Officer
FLEET NATIONAL BANK
By: /s/ DANIEL D. BUTLER
--------------------
Name: Daniel D. Butler
Title: Authorized Officer
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
DEUTSCHE BANK TRUST COMPANY AMERICAS
by DB SERVICES NEW JERSEY, INC.
By: /s/ EDWARD SCHAFFER
-------------------
Name: Edward Schaffer
Title: Vice President
Signature Page to Limited Waiver and Amendment No. 13
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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 DIMARIO
---------------------
Name: Francesco DiMario
Title: Vice President
QUADRANGLE MASTER FUNDING LTD.
By: /s/ ANDREW HERENSTEIN
---------------------
Name: Andrew Herenstein
Title: Member
SPS HIGH YIELD LOAN TRADING
By: /s/ ROGER ODELL
---------------
Name: Roger Odell
Title: Managing Director
ANCHORAGE CAPITAL MASTER OFFSHORE, LTD.
By: /s/ ANTHONY DAVIS
-----------------
Name: Anthony Davis
Title: Member
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. 13 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
Signature Page to Limited Waiver and Amendment No. 13
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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 ____ day of April, 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
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