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EXHIBIT 10.45
LIMITED WAIVER AND AMENDMENT NO. 9
TO
2001 AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
This Limited Waiver and Amendment No. 9 (the "Waiver and
Amendment"),
dated as of March 31, 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 and a
Limited Waiver and Amendment No. 8 to
2001 Amended and Restated Note Purchase
Agreement dated as of March 15, 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 14, 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 14, 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
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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 and (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 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. 9 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. 9 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. 9 Effective Date" means the date on which all
the
conditions to the Limited Waiver and Amendment No. 9, dated March
31,
2004, have been satisfied."
5. Amendment to
Section 7.4 of the Note Agreement. Section 7.4 of the Note
Agreement is hereby amended by replacing
the last sentence thereof with the
following language:
"Except as otherwise permitted under the terms and conditions of
the
Collateral Agency Agreement, the Guarantor and its Subsidiaries
may
sell, transfer, or otherwise dispose of (in one transaction or
a
series of transactions) or engage in a sale/leaseback transaction
with
respect to, (i) assets if the consideration received is in cash
or
cash equivalents at least equal to the fair market value of
such
assets and the aggregate consideration received does not exceed
$11,000,000 for all such sales, transfers or dispositions after
the
Amendment No. 2 Effective Date; provided that 100% of the
proceeds
received from any such sale, transfer or disposition permitted
above
(after deducting the reasonable expenses of such sale, transfer
or
disposition) are applied to prepay, on a pro rata basis, the
Loans
outstanding under the Credit Agreement and the Indebtedness
outstanding under this
Agreement and in addition (ii) the
manufacturing and/or distribution centers and other
miscellaneous
assets and machinery located in Mexico, Canada, Italy and China for
an
amount not to exceed $10,000,000 in the aggregate for all such
sales,
transfers or dispositions after the Amendment No. 9 Effective
Date,
provided that (A) the Guarantor and its Subsidiaries shall use
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reasonable efforts to have the proceeds from any such sale,
transfer
or disposition permitted under this clause (ii) (after deducting
the
reasonable expenses of such sale, transfer or disposition and
any
applicable foreign tax obligations and US federal and state tax
obligations payable on taxable gains realized from such sale,
transfer
or disposition) wired to its concentration account maintained with
the
Administrative Agent and (B) all of such net proceeds referred to
in
clause (A) above shall not be used for any purpose by the
Guarantor
and its Subsidiaries other than to prepay, on a pro rata basis,
the
Loans outstanding under the Credit Agreement and the
Indebtedness
outstanding under this Agreement."
6.
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 o
