<PAGE>
EXHIBIT 10.41
LIMITED WAIVER AND AMENDMENT NO. 5
TO
2001 AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
This Limited Waiver and Amendment (the "Waiver and Amendment"),
dated
as of December 12, 2003, 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 and a
Limited Waiver and Amendment No. 4 to
2001 Amended and Restated Note Purchase
Agreement dated as of October 31, 2003
(as so amended or otherwise modified, the
"Note Agreement").
B. The Company
and the Guarantor have requested that the Purchasers waive
(i) 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 January 30, 2004 and (ii) the
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 Quarter ended October 25, 2003.
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
January 30, 2004 (the "Waiver Period"), (a)
payment of the Sinking Fund Payment
and (b) the Events of Default created as a
result of Guarantor's failure to
comply with Sections 7.12(a), (b), (c) and
(d) of the Note 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; 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 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 voluntary
prepayments 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 payment of the Sinking Fund
Payment and the Guarantor's and the
<PAGE>
Company's failure to comply with Section
7.12(a), (b), (c) and (d) of the Note
Agreement as of October 25, 2003 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. 5 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. 5 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. 5 Effective Date" means the date on which all
the
conditions to the Limited Waiver and Amendment No. 5, dated
December
12, 2003, 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
any of which will be an additional
Event of Default under the Note
Agreement:
(a) Strategic Plans. The Guarantor shall continue to work with
M&T
Bank with respect to the strategic plans of
the Guarantor.
(b) Financial Forecast. The Guarantor shall (i) continue to work
with
the Purchasers and Alvarez & Marsal
regarding the financial forecast delivered
pursuant to paragraph 6(c) of the Limited
Waiver and Amendment No. 4 dated as of
October 31, 2003 (including updating such
financial forecast) and (ii) deliver a
<PAGE>
comprehensive report no later than December
22, 2003 updating the status of the
Guarantor's cost-saving plan involving the
five manufacturing sites outlined in
the Guarantor's October 31, 2003 press
release.
(c) Lender Waiver Termination Notice. The Guarantor shall, upon
receiving notification from the Lenders
that they intend to terminate the waiver
referred to in Section 7(e) of this Waiver
and Amendment, immediately notify
Bingham and the Purchasers thereof.
(d) Delivery of SEC Letters. The Guarantor shall have delivered to
the
Purchasers no later than December 18, 2003
copies of (i) all correspondence and
documents received by the Company, the
Guarantor or any of its Subsidiaries from
the Securities Exchange Commission (the
"SEC") on or after January 1, 2002 and
(ii) all correspondence and documents
prepared and produced by the Guarantor or
any of its Subsidiaries for the SEC on or
after January 1, 2002, including, but
not limited to, all correspondence and
documents received from or delivered to
the SEC, Division of Corporation Finance,
in connection with the Guarantor's
Form 10K for the year ended January 25,
2003 and all correspondence and
documents received from or delivered to the
SEC, Division of Enforcement, but
excluding any document publicly filed with
the SEC.
7. Conditions to
Effectiveness of Waiver and Amendment. This 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 Subsidiary Guarantors. Each of the Subsidiary
Gua
