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EXHIBIT 10.46
LIMITED WAIVER AND AMENDMENT NO. 10
TO
2001 AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
This Limited Waiver and Amendment No. 10 (the "Waiver and
Amendment"),
dated as of April 14, 2004, is by and among
THC SYSTEMS, INC., a New York
corporation (the "Company"), ONEIDA LTD., a
New York corporation (the
"Guarantor"), ALLSTATE INSURANCE COMPANY
("Allstate"), ALLSTATE LIFE INSURANCE
COMPANY ("Allstate Life") and PACIFIC LIFE
INSURANCE COMPANY (together with
Allstate and Allstate Life, the
"Purchasers").
R E C I T A L S
A. Company, Guarantor and
Purchasers are parties to the 2001 Amended and
Restated Note
Purchase Agreement dated as of May 1, 2001 pertaining to
those certain
notes with a maturity date of May 31, 2005, as amended by a
Waiver and
Amendment No. 1 to 2001 Amended and Restated Note Agreement
dated as of
December 7, 2001, an Amendment No. 2 to 2001 Amended and
Restated Note
Agreement dated as of April 23, 2002, an Amendment No. 3 to
2001 Amended and
Restated Note Agreement dated as of April 24, 2003, a
Limited Waiver and Amendment
No. 4 to 2001 Amended and Restated Note
Purchase
Agreement dated as of October 31, 2003, a Limited Waiver and
Amendment No. 5
to 2001 Amended and Restated Note Purchase Agreement dated
as of December
12, 2003, a Limited Waiver and Amendment No. 6 to 2001
Amended and
Restated Note Purchase Agreement dated as of January 30, 2004,
a Limited Waiver
and Amendment No. 7 to 2001 Amended and Restated Note
Purchase
Agreement dated as of March 1, 2004, a Limited Waiver and
Amendment No. 8
to 2001 Amended and Restated Note Purchase Agreement dated
as of March 15,
2004 and a Limited Waiver and Amendment No. 9 to 2001
Amended and
Restated Note Purchase Agreement dated as of March 31, 2004 (as
so amended or otherwise
modified, the "Note Agreement").
B. The Company and the
Guarantor have requested that the Purchasers (a) waive
payment of the
mandatory principal payment due to the Purchasers on
November 1, 2003
in the amount of $3,890,000 pursuant to Section 2.1(a) of
the Note
Agreement (the "Sinking Fund Payment") until April 30, 2004,
(b)
waive the
Defaults and Events of Default arising out of the Company's and
the Guarantor's
failure to comply with Sections 7.12(a), (b), (c) and (d)
of the Note
Agreement for the Fiscal Quarters ended October 25, 2003 and
January 31, 2004
and (c) make certain amendments to the Note Agreement.
C. Each of the Purchasers are
willing to grant the waivers requested by the
Company and the Guarantor 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 Waiver and
Amendment which are not otherwise defined
shall have the meanings given to those
terms in the Note Agreement.
2. Waiver.
The Purchasers hereby waive, for the period commencing on
the Effective Date (as defined below) of
this Waiver and Amendment and ending on
April 30, 2004 (the "Waiver Period"), (a)
payment of the Sinking Fund Payment,
(b) the Defaults and Events of Default
arising out of the Company's and the
Guarantor's failure to comply with Sections
7.12(a), (b), (c) and (d) of the
Note Agreement for the Fiscal Quarters
ended October 25, 2003 and January 31,
2004 and (c) the expected Default and Event
of Default created as a result of
the Company's and the Guarantor's
anticipated failure to deliver the Fiscal Year
end financial statements for the Fiscal
Year ended in 2004 with an unqualified
report from the Company's and the
Guarantor's independent public accountant as
required pursuant to Section 6.1(b) of the
Note Agreement, 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 (x) in the event that
any other creditor, or group of
creditors, of the Guarantor or any of its
Subsidiaries with claims aggregating
in excess of $1,000,000, (A) accelerates
the obligations of the
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Guarantor or such Subsidiary to such
creditor or group of creditors, (B)
commences enforcement of their rights and
remedies in respect of the obligations
of the Guarantor or such Subsidiary to such
creditor or group or creditors, or
(C) takes any other action against the
Guarantor or any such Subsidiary to
improve their position as creditors of the
Guarantor or such Subsidiary (it
being understood that none of a meeting
among lenders to discuss options and
alternatives, the mere sending of a notice
of default or reservation of rights
or the charging of a customary work fee
shall constitute such an action) or (y)
the Guarantor or any of its Subsidiaries
makes any payments in respect of the
$2,000,000 Promissory Note issued by the
Guarantor dated September 20, 2003 or
voluntarily reduces the Commitment under
the Credit Agreement, 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 (1) payment of the
Sinking Fund Payment, (2) Defaults and
Events of Default arising out of the
Company's and the Guarantor's failure to
comply with Sections 7.12(a), (b), (c)
and (d) of the Note Agreement for the
Fiscal Quarters ended October 25, 2003 and
January 31, 2004 and (3) the anticipated
failure to deliver the Fiscal Year end
financial statements for the Fiscal Year
ended in 2004 with an unqualified
report from the Company's and the
Guarantor's independent public accountant as
required pursuant to Section 6.1(b) of the
Note Agreement, 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 3.1(e) of the Note Agreement. Section
3.1(e)
is amended in its entirety to read as
follows:
"(e) No Contingent Liabilities or Adverse Changes. Neither the
Guarantor nor any of its Subsidiaries has any contingent
liabilities which are material to the Guarantor and its
Subsidiaries taken as a whole other than (i) as indicated on
the
financial statements described in the foregoing paragraph (d)
of
this Section 3.1 and (ii) that may arise or may have arisen in
connection with charges related to FAS 87. For any
representations and warranties made on or after the Amendment
No.
10 Effective Date, since January 27, 2001, there has been no
material adverse change in the business, assets, operations,
prospects or condition, financial or otherwise, of the
Guarantor
and its Subsidiaries, taken as a whole, and no sale, transfer
or
other disposition of a material part of the assets or business
of
the Guarantor or any Subsidiary, except for any material
adverse
change that has been publicly disclosed or otherwise disclosed
in
writing to the Purchasers on or before the Amendment No. 10
Effective Date."
4.
Amendment to Section 5.1 of the Note Agreement. Section 5.1 of
the Note Agreement is hereby amended by
inserting the following new defined
term in the appropriate alphabetical
order:
""Amendment No. 10 Effective Date" means the date on which all
the conditions to the Limited Waiver and Amendment No. 10,
dated
April 15, 2004, have been satisfied."
5.
Representation and Warranties. Each of the Guarantor and
the Company represents and warrants to the
Purchasers that the following
statements are true, correct and
complete:
(a) Representations
and Warranties. Each of the representations
and warranties made by the Guarantor and
the Company in the Note Agreement is
true and correct on and as of the date of
this Waiver and Amendment.
(b) No Default or
Event of Default. After giving effect to this
Waiver and Amendment, no Default or Event
of Default has occurred and is
continuing.
(c) Execution,
Delivery and Enforceability. This Waiver and
Amendment has been duly and validly
executed and delivered by each of the
Guarantor, the Company and each Subsidiary
Guarantor and constitutes each such
Person's legal, valid and binding
obligation, enforceable against such Person in
accordance with its terms.
6.
Covenants. In order to induce the Purchasers to enter into this
Waiver and Amendment, each of the Guarantor
and the Company hereby agrees to the
following covenants, the failure to perform
which will be an additional Event of
Default under the Note Agreement:
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(a) Financial
Forecast. Each of the Guarantor and the Company
shall continue to work with the Purchasers
and Alvarez & Marsal regarding the
financial forecast delivered pursuant
to
