EXHIBIT 10(d)
LIMITED WAIVER
TO
2001 AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
This Limited Waiver (the "Waiver"), dated as of November 21,
2003, is by and among THC SYSTEMS, INC. (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 the 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 December 12, 2003 and (ii) the
Events of Default arising out of the Company's and the Guarantor's failure to
comply with Section 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 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 ending on December 12,
2003 (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, (B) commences enforcement of their rights and remedies in respect of
the obligations of the Guarantor or such Subsidiary to such creditor, or (C)
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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 Indebtedness for borrowed money or voluntarily reduces any commitment
to provide Indebtedness for borrowed money, 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 Company's failure to comply with Sections 7.12(a), (b), (c)
and (d) of the Note Agreement at October 25, 2003 and shall not constitute or be
construed as a waiver of any other presently existing or future Events of
Default.
3. Representations 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.
(b) No Default or Event of Default. After giving effect to this
Waiver, no Default or Event of Default has occurred and is continuing.
(c) Execution, Delivery and Enforceability. This Waiver 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.
4. Covenants. In order to induce the Purchasers to enter into this
Waiver, 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 Credit Agreement:
(a) Strategic Plans. The Guarantor shall continue to work with M&T
Bank ("M&T") with respect to the strategic plans of the Guarantor and the
Guarantor shall deliver to the Purchasers on or prior to December 5, 2003, a
final strategic plan report summary, in identical form as the final strategic
plan summary delivered to the Lenders.
(b) Financial Forecast. The Guarantor shall continue to work with
the Purchasers and ▇▇▇▇▇▇▇ & Marsal regarding the financial forecast delivered
pursuant to paragraph 7(c) of the Limited Waiver and Amendment No. 4 to 2001
Amended and Restated Note Purchase Agreement dated as of October 31, 2003.
5. Conditions to Effectiveness of Waiver. This Waiver 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
Guarantors shall have executed and delivered to ▇▇▇▇▇▇▇ the Consent of
Subsidiary Guarantors attached to this Waiver.
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(b) No Default or Event of Default; Accuracy of Representations and
Warranties. The Guarantor and the Company shall deliver to each of the
Purchasers a certificate of a Financial Officer certifying that, after giving
effect to this Waiver, no Default or Event of Default shall exist and each of
the representations and warranties made by the Guarantor or any of its
Subsidiaries herein and in or pursuant to the Transaction Documents shall be
true and correct in all material respects as if made on and as of the date on
which this Waiver becomes effective.
(c) Expense Reimbursements. The Guarantor shall have paid all
reasonable invoices presented to the Guarantor for expense reimbursements
(including reasonable attorneys' and financial advisors' fees and disbursements)
due to the Purchasers in accordance with Section 11.1 of the Note Agreement.
(d) Execution by Purchasers. ▇▇▇▇▇▇▇ shall have received a
counterpart of this Waiver duly executed and delivered by the Guarantor, the
Company and each Purchaser.
(e) Waiver Pursuant to Credit Agreement. ▇▇▇▇▇▇▇ shall have received
a copy of an executed waiver of any Default or Event of Default arising under
the Credit Agreement, duly executed by the Guarantor, the Administrative Agent
and the Lenders, (i) deferring the scheduled reduction in the Lenders' Revolving
Commitments (as defined in the Credit Agreement) to no earlier than December 12,
2003 and (ii) waiving until December 12, 2003 any Default or Event of Default
arising from failure to satisfy any financial covenants under Section 6.11 of
the Credit Agreement.
6. Further Assurances. Each of the Guarantor and the Company agrees, at
its own expense, to execute, acknowledge, deliver and cause to be duly filed all
such further instruments and documents and take all such actions as the
Collateral Agent may from time to time reasonably request to better assure,
preserve, protect and perfect the Security Interest (as defined in the Security
Agreement) and the rights and remedies created thereby. In addition, as further
security for payment and performance of the obligations under the Note Agreement
and as consideration for the Purchasers' agreement to enter into this Waiver,
the Guarantor and the Company hereby further agrees to grant a perfected pledge
and security interest in any additional collateral as the Collateral Agent may
reasonably request.
7. Release. For purposes of this Section, the following terms shall
have the following definitions:
(a) "Related Parties" shall mean, with respect to any released
party, such party's parents, subsidiaries, affiliates, successors, assigns,
predecessors in interest, officers, directors, employees, agents,
representatives, attorneys, financial advisors, accountants and shareholders, if
any.
(b) "Claims" shall mean any and all claims, losses, debts,
liabilities, demands, obligations, promises, acts, omissions, agreements, costs,
expenses, damages, injuries, suits, actions, causes of action, including without
limitation, any and all rights of setoff, recoupment or counterclaim of any kind
or nature whatsoever, in law or in equity, known or unknown, suspected or
unsuspected, contingent or fixed.
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Excluding only the continuing obligations of the Purchasers under the
express terms of the Note Agreement, the Transaction Documents and this Waiver,
each of the Guarantor and the Company hereby releases, acquits and forever
discharges the Purchasers, and each of them, and their respective Related
Parties, of and from any and all Claims arising out of, related or in any way
connected with the Note Agreement, the Transaction Documents or the transactions
contemplated by any thereof, including, without limitation, any action or
failure to act, prior to the execution of this Waiver, in response to or
otherwise in connection with the events or circumstances arising under or
otherwise related to the Note Agreement, the Transaction Documents or any
Defaults or Events of Default occurring under the Note Agreement or the
Transaction Documents.
8. Acknowledgement. Each of the Guarantor and the Company hereby
confirms and acknowledges as of the date hereof that it is validly and justly
indebted to the Purchasers for the payment of all obligations under the Note
Agreement and the Notes without offset, defense, cause of action or counterclaim
of any kind or nature whatsoever.
9. Confirmation of Note Agreement and Security Documents. Except as
amended by this Waiver, all the provisions of the Note Agreement remain in full
force and effect from and after the date hereof, and each of the Guarantor and
the Company hereby ratifies and confirms the Note Agreement and each of the
documents executed in connection therewith. This Waiver shall be limited
precisely as written and shall not be deemed (a) to be a consent granted
pursuant to, or a waiver or modification of, any other term or condition of the
Note Agreement or any of the instruments or agreements referred to therein or
(b) to prejudice any right or rights which the Purchasers may now have or have
in the future under or in connection with the Note Agreement or any of the
instruments or agreements referred to therein. From and after the date hereof,
all references in the Note Agreement to "this Agreement", "hereof", "herein", or
similar terms, shall refer to the Note Agreement as amended by this Waiver. Each
of the Guarantor and the Company also ratifies and confirms that the Security
Documents remain in full force and effect in accordance with their terms and are
not impaired or affected by this Waiver.
10. Counterparts. This Waiver 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 Waiver by facsimile or as an electronic attachment to an
email transmission shall be as effective as delivery of a manually signed
counterpart.
11. Governing Law. This Waiver shall be governed by and construed in
accordance with the internal laws of the State of Illinois.
12. Time is of the Essence. Time is of the essence with respect to all
terms set forth in this Waiver.
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IN WITNESS WHEREOF, the parties have caused this Waiver to be duly executed as
of the day and year first above written.
ONEIDA LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
THC SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
[ADDITIONAL SIGNATURE PAGES TO FOLLOW]
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ALLSTATE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
Authorized Signatories
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
Authorized Signatories
PACIFIC LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Assistant Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
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CONSENT OF SUBSIDIARY GUARANTORS
Each of the undersigned is a party to a Subsidiary Guarantee
Agreement, a Subsidiary Subordination Agreement and one or more Security
Documents and is a Subsidiary Guarantor of the obligations of the Company under
the Note Agreement referred to in the foregoing Limited Waiver to 2001 Amended
and Restated Note Purchase Agreement (the "Waiver"). Each of the undersigned
Subsidiary Guarantors hereby (a) consents to the foregoing Waiver, (b)
acknowledges that, notwithstanding the execution and delivery of the foregoing
Waiver, the obligations of each of the undersigned Subsidiary Guarantors are not
impaired or affected and the Subsidiary Guarantee Agreement, the Subsidiary
Subordination Agreement and Security Documents continue in full force and
effect, and (c) ratifies and affirms the terms and provisions of the Subsidiary
Guarantee Agreement, the Subsidiary Subordination Agreement and Security
Documents. All capitalized terms used herein which are not otherwise defined
shall have the meanings given to those terms in the Note Agreement.
Each of the undersigned hereby agree, at its own expense, to
execute, acknowledge, deliver and cause to be duly filed all such further
instruments and documents and take all such actions as the Collateral Agent may
from time to time reasonably request to better assure, preserve, protect and
perfect the Security Interest (as defined in the Security Agreement) and the
rights and remedies created thereby. In addition, as further security for
payment and performance of the obligations under the Subsidiary Guarantee
Agreement and as consideration for the Purchasers' agreement to enter into the
Waiver, each of the undersigned hereby further agrees to grant a perfected
pledge and security interest in any additional collateral as the Collateral
Agent may reasonably request.
Excluding only the continuing obligations of the Purchasers under
the express terms of the Note Agreement, the Transaction Documents and the
Waiver, the undersigned hereby releases, acquits and forever discharges the
Purchasers, and each of them, and their respective Related Parties (as defined
below) of and from any and all Claims (as defined below) arising out of, related
or in any way connected with the Note Agreement, the Transaction Documents or
the transactions contemplated by any thereof, including, without limitation, any
action or failure to act, prior to the execution of this Waiver, in response to
or otherwise in connection with the events or circumstances arising under or
otherwise related to the Note Agreement, the Transaction Documents or any
Defaults or Events of Default occurring under the Note Agreement or the
Transaction Documents.
"Related Parties" shall mean, with respect to any released party,
such party's parents, subsidiaries, affiliates, successors, assigns,
predecessors in interest, officers, directors, employees, agents,
representatives, attorneys, accountants, financial advisors and shareholders, if
any.
"Claims" shall mean any and all claims, losses, debts, liabilities,
demands, obligations, promises, acts, omissions, agreements, costs, expenses,
damages, injuries, suits, actions, causes of action, including without
limitation, any and all rights of setoff, recoupment or counterclaim of any kind
or nature whatsoever, in law or in equity, known or unknown, suspected or
unsuspected, contingent or fixed.
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IN WITNESS WHEREOF, each of the undersigned has executed and delivered this
Consent of Subsidiary Guarantors as of the 21 day of November 2003.
BUFFALO CHINA, INC. DELCO INTERNATIONAL LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Finance Title: Vice President, Finance
ENCORE PROMOTIONS, INC. SAKURA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Finance Title: Vice President, Finance
THC SYSTEMS INC. KENWOOD SILVER COMPANY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------- --------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Finance Title: Vice President, Finance
ONEIDA SILVERSMITHS INC ONEIDA FOOD SERVICE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Finance Title: Vice President, Finance
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