<PAGE>
EXHIBIT 10.44
LIMITED WAIVER AND AMENDMENT NO. 8
TO
2001 AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
This Limited Waiver and Amendment No. 8 (the "Waiver and
Amendment"),
dated as of March 15, 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
and a Limited Waiver and Amendment No. 7 to
2001 Amended and Restated Note
Purchase Agreement dated as of March 1,
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 March 31, 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
March 31, 2004 (the "Waiver Period"), (a)
payment of the Sinking Fund Payment
and (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, 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
<PAGE>
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 payment of the Sinking Fund Payment and
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
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. 8 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. 8 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. 8 Effective Date" means the date on which all
the
conditions to the Limited Waiver and Amendment No. 8, dated March
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.
(b) 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:
<PAGE>
(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
paragraph 6(c) of the Limited Waiver
and Amendment No. 4 dated as of October 31,
2003 (including updating such
financial forecast).
(b) 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 McCutchen LLP ("Bingham") and the
Purchasers thereof.
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 follo
