EXHIBIT 4(a)(x)
SECOND AMENDMENT AND WAIVER TO
AMENDED AND RESTATED NOTE AGREEMENT
DATED AS OF JANUARY 1, 1992
Reference is hereby made to that certain Amended and Restated Note
Agreement dated as of January 1, 1992 (the "Note Agreement") by and among Oneida
Ltd. (the "Company"), Allstate Life Insurance Company ("Allstate Life") and
Pacific Life Insurance Company (together with Allstate Life, the "Purchasers"),
as amended pursuant to that certain First Amendment to Amended and Restated Note
Agreement dated as of January 1, 1992 (the "First Amendment") (together, the
Note Agreement and the First Amendment shall be referred to herein as the
"Original Agreement"). This Second Amendment and Waiver to Amended and Restated
Note Agreement dated as of January 1, 1992 is hereinafter referred to as the
"Second Amendment."
WHEREAS, the Company advised the Purchasers that the Company's Consolidated
Leverage Ratio at the end of the Fiscal Quarter ending January 27, 2001 was
approximately 3.47 to 1.0 (subject to revision following completion of the
financial statements for the Fiscal Year then ended), in violation of Section
7.2 of the Original Agreement;
WHEREAS, the Company has requested that the Purchasers waive the Event of
Default arising out of the Company's failure to comply with Section 7.2 of the
Original Agreement at January 27, 2001; and
WHEREAS, the Purchasers are willing to grant the waiver requested by the
Company, provided that the Original Agreement is amended prior to April 27,
2001, among other requirements, to require the Company and each domestic
Restricted Subsidiary to grant to the Purchasers a security interest in
substantially all of their domestic assets (other than real estate and leased
assets).
NOW THEREFORE, in consideration of the premises herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. All defined terms used herein shall have the meanings
assigned to such terms in the Original Agreement.
2. Waiver. The Purchasers hereby waive the Event of Default created as a
result of Company's failure to comply with Section 7.2 of the Original Agreement
for the Fiscal Quarter ending January 27, 2001. This waiver is limited to the
failure to comply with Section 7.2 at January 27, 2001 and shall not be
construed as a waiver of any other presently existing or future Event of
Default.
3. Amendment of Original Agreement.
3.1 Section 8.1(i) of the Original Agreement is amended by deleting
the word "or" at the end thereof.
3.2 Section 8.1(j)(vii) of the Original Agreement is amended by
adding the word "or" at the end thereof immediately preceded by a semi-colon.
3.3 The following new subparagraph (k) is added to Section 8.1 of the
Original Agreement immediately following subparagraph (j):
"(k) The Company shall have failed by [April 27, 2001] (i) to
enter into an amendment to this Agreement which amends certain
covenants set forth herein to levels satisfactory to the Purchasers
and which provides additional amendments reasonably satisfactory to
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the Purchasers, (ii) to grant, and to cause each Restricted Subsidiary
to grant, to the Purchasers, in form satisfactory to Purchasers, for
the pro rata benefit of the Banks and the Purchasers, and such other
senior creditors of the Company as are reasonably acceptable to the
Purchasers, a perfected first priority security interest in or pledge
of (A) all of their tangible and intangible assets located in the
United States other than real estate and assets under lease, (B) the
capital stock or other equity securities of each Restricted
Subsidiary, (C) 65% of the capital stock or other equity securities of
each foreign Subsidiary whose assets, as of the end of the most recent
Fiscal Quarter, account for 5% or more of the total assets of the
Company and its Subsidiaries, taken as a whole, and (D) all promissory
notes and other instruments evidencing accounts receivable or notes
receivable owed to the Company and each Restricted Subsidiary, all
upon terms and conditions reasonably satisfactory to the Banks and the
Purchasers and subject to no other Liens except Liens permitted by
Section 7.5 hereof and (iii) to have provided to the Purchasers such
amendments fees, coupon increases and other closing conditions as the
Purchasers may then require."
3.4 Section 8.2 of the Original Agreement is amended by adding after
the parenthetical (i) in the first sentence thereof the words "and paragraph
(k)".
4. Representations and Warranties. The Company represents and warrants to
the Purchasers that the following statements are true, correct and complete:
4.1 Consolidated Leverage Ratio. The Consolidated Leverage Ratio for
the Fiscal Quarter ended January 27, 2001, as reflected on the audited financial
statements for the Fiscal Year then ended required to be delivered pursuant to
Section 6.6 of the Original Agreement, will be no higher than 3.60 to 1.0.
4.2 Representations and Warranties. Each of the representations and
warranties made by the Company in the Original Agreement is true and correct on
and as of the date of this Second Amendment.
4.3 No Default or Event of Default. No Default or Event of Default
has occurred and is continuing except for the Event of Default referenced in
Paragraph 2 above.
4.4 Execution, Delivery and Enforceability. This Second Amendment has
been duly and validly executed and delivered by the Company and constitutes its
legal, valid and binding obligation, enforceable against the Company in
accordance with its terms.
5. Conditions to Effectiveness of Second Amendment. This Second Amendment
shall be effective only when and if each of the following conditions is
satisfied:
5.1 Secretary's Certificate. The Purchasers shall have received a
certificate executed by the Secretary or Assistant Secretary of the Company
certifying the due authorization of this Second Amendment by the Company, the
incumbency of the officer executing this Second Amendment, and any other legal
matters relating to this Second Amendment, all in form and substance
satisfactory to the Purchasers and their counsel.
5.2 Consent of Subsidiary Guarantors. Each of the Subsidiary
Guarantors shall have executed and delivered to the Purchasers the Consent of
Guarantors attached to this Amendment.
5.3 No Default or Event of Default; Accuracy of Representations and
Warranties. After giving effect to this Second Amendment, no Default or Event of
Default shall exist and each of the representations and warranties made by the
Company or any of its Restricted Subsidiaries herein and in or pursuant to the
Subsidiary Guarantees, the Subordination Agreement or any of the Notes shall be
true and correct in all material respects as if made on and as of the date on
which this Second Amendment becomes effective.
5.4 Expense Reimbursements. The Company shall have paid or agreed to
pay all invoices presented to Company for expense reimbursements due to the
Purchasers pursuant to Section 11.1 of the Original Agreement.
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5.5 Execution of Second Amendment. The Purchasers shall have received
a counterpart of this Second Amendment duly executed and delivered by the
Company and the Purchasers.
6. Confirmation of Agreement. Except as amended by this Second Amendment,
all the provisions of the Original Agreement remain in full force and effect
from and after the date hereof, and the Company hereby ratifies and confirms the
Original Agreement and each of the documents executed in connection therewith.
From and after the date hereof, all references in the Original Agreement to
"this Agreement", "hereof", "herein", or similar terms, shall refer to the
Original Agreement as amended by this Second Amendment.
7. Counterparts. This Second 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 Second Amendment by facsimile transmission shall be as
effective as delivery of a manually signed counterpart.
8. Governing Law. This Second Amendment shall be governed by and
construed in accordance with the internal laws of the State of Illinois.
[SIGNATURE PAGE FOLLOWS]
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Dated as of this 23 day of February, 2001.
ONEIDA LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Corporate Senior Vice President, Finance
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Authorized Signatories
PACIFIC LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Its: Assistant Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Its: Assistant Secretary
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CONSENT OF GUARANTORS
Each of the undersigned is a party to a Subsidiary Guarantee Agreement and
is a Guarantor of the obligations of the Company under the Agreement referred to
above. Each of the undersigned Guarantors hereby (a) consents to the foregoing
Second Amendment, (b) acknowledges that notwithstanding the execution and
delivery of the foregoing Second Amendment, the obligations of each of the
undersigned Guarantors are not impaired or affected and the Subsidiary Guarantee
Agreement continues in full force and effect, and (c) ratifies the Subsidiary
Guarantee Agreement.
IN WITNESS WHEREOF, each of the undersigned has executed and delivered this
Consent of Guarantors as of the 23 day of February, 2001.
BUFFALO CHINA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Chief Executive Officer
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THC SYSTEMS INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Chief Executive Officer
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SAKURA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Chief Executive Officer
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DELCO INTERNATIONAL LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Chief Executive Officer
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VINERS OF SHEFFIELD LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: a Director
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ENCORE PROMOTIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Chief Executive Officer
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