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EXHIBIT 4(a)(xxviii)
THIRD WAIVER TO AMENDED AND RESTATED NOTE AGREEMENT
Reference is hereby made to that certain 2001 Amended and Restated Note
Agreement dated as of May 1, 2001 by and among THC SYSTEMS, INC. (the
"Company"), ONEIDA LTD. (the "Guarantor"), ALLSTATE LIFE INSURANCE COMPANY
("Allstate Life"), ALLSTATE INSURANCE COMPANY ("Allstate") and PACIFIC LIFE
INSURANCE COMPANY (together with Allstate Life and Allstate, the "Purchasers"),
as amended by that certain (i) Waiver and Amendment No. 1 to 2001 Amended and
Restated Note Agreement dated as of December 7, 2001, (ii) Amendment No. 2 to
2001 Amended and Restated Note Agreement dated as of April __, 2002, (iii)
Amendment No. 3 to 2001 Amended and Restated Note Agreement dated as of August
__, 2002 and (iv) Second Waiver to Amended and Restated Note Agreement dated as
of December 9, 2002 (collectively, as the same may from time to time be amended,
restated, supplemented or otherwise modified, the "Note Agreement"). This Third
Waiver to Amended and Restated Note Agreement is dated as of February 28, 2003
and hereinafter referred to as the "Third Waiver."
WHEREAS, the Company and the Guarantor have notified the Purchasers that at
January 25, 2003 the accumulated pension benefit obligations of the Company and
the Guarantor exceeded the fair market value of the pension plan assets by
approximately $4,300,000 after tax, and that FASB 87 requires that the
difference be charged against the Company's and the Guarantor's equity. A
description of the accounting adjustments, including the amounts thereof, is set
forth in a letter dated February 20, 2003 from the Guarantor to the Purchasers
(such letter is attached hereto as Exhibit A and referred to herein as the
"Waiver Request");
WHEREAS, the non-cash charge against the Company's and the Guarantor's
equity will cause the Company's and the Guarantor's Consolidated Net Worth at
January 25, 2003 to be in violation of Section 7.12(c) of the Note Agreement and
Section 6.11(c) of that certain Amended and Restated Credit Agreement dated as
of April 27, 2001 (as the same may from time to time be amended, restated,
supplemented or otherwise modified, the "Credit Agreement") together with the
Company and JPMORGAN CHASE BANK (formerly known as The Chase Manhattan Bank), as
Administrative Agent; and
WHEREAS, the Company and the Guarantor have requested that the Purchasers
waive the violation of Section 7.12(c) of the Note Agreement as a result of the
non-cash charge against the Company's and the Guarantor's equity at January 25,
2003.
NOW THEREFORE, in consideration of the premises herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise noted, all defined terms used herein shall
have the meanings assigned to such terms in the Note Agreement.
2. Waiver. The Purchasers hereby waive the Company's and the Guarantor's
failure to satisfy Section 7.12(c) of the Note Agreement at January 25, 2003
resulting from the Company's and the Guarantor's recognition of a non-cash
charge required by FASB 87 in an amount not to exceed $4,300,000. This waiver
does not apply to any other Event of Default other than the violation of Section
7.12(c) at January 25, 2003 described above, nor does it apply to a violation of
Section 7.12(c) for any subsequent Fiscal Quarter resulting from the application
of FASB 87. This Third Waiver is limited to violations of the Company's and the
Guarantor's Consolidated Net Worth caused by the accounting adjustments
described in the Waiver Request in an amount not to exceed $4,300,000. This
Third Waiver does not apply to any other Default or Event of Default (whether or
not caused by any accounting adjustments and whether or not presently existing
or arising in the future) other than the financial covenant violation described
above at January 25, 2003.
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3. Effectiveness. This Third Waiver shall become effective ("Effective
Date") upon the Purchaser's receipt of (a) a signed counterpart of this Third
Waiver duly executed and delivered by the Company and the Guarantor, (b) payment
of a waiver fee in the amount of $3,500 to each Purchaser who executes and
delivers to the Purchasers' counsel a signed counterpart of this Second Waiver
before 5:00 p.m. (EST) on March 7, 2003, which waiver fee shall be fully earned
and nonrefundable when paid, as well as payment in full of any outstanding legal
fees and expenses of counsel to the Purchasers in connection with prior waivers
and/or amendments, (c) an executed copy of that certain Waiver to Amended and
Restated Credit Agreement dated as of March 7, 2003 of any corresponding events
of default under the Credit Agreement, duly executed by the parties thereto and
(d) when all of the conditions precedent set forth in Section 6 hereof have been
met.
4. Audited Financial Statements. The Purchasers acknowledge that (a) the
Company's and the Guarantor's audited financial statements for the Fiscal Year
ended January 25, 2003 have not yet been issued and (b) until the audited
financial statements are issued, the covenant level required by Section 7.12(c)
cannot be established for the Fiscal Year ended January 25, 2003 and neither the
Company nor the Guarantor can certify its actual Consolidated Net Worth at
January 25, 2003.
5. Representations and Warranties. The Company and the Guarantor hereby
represent and warrant to the Purchasers that the following statements are true,
correct and complete:
5.1 Representations and Warranties. Each of the representations and
warranties made by the Company and the Guarantor in the Note Agreement is true
and correct on and as of the date of this Third Waiver.
5.2 No Default or Event of Default. No Default or Event of Default has
occurred and is continuing except for the Event of Default referenced in
Paragraph 2 above.
5.3 Execution, Delivery and Enforceability. This Third Waiver has been
duly and validly executed and delivered by the Company and the Guarantor and
constitutes the Company's and the Guarantor's legal, valid and binding
obligations, enforceable against the Company and the Guarantor in accordance
with its terms.
6. Conditions to Effectiveness of Third Waiver. In addition to the
conditions set forth in Section 3 hereof, this Third Waiver shall be effective
only when and if each of the following conditions is satisfied:
6.1 Secretary's Certificate. The Purchasers shall have received a
certificate executed by the Secretary or Assistant Secretary of the Company and
the Guarantor certifying the due authorization of this Third Waiver by the
Company, the incumbency of the officer executing this Third Waiver, and any
other legal matters relating to this Third Waiver, all in form and substance
satisfactory to the Purchasers and their counsel.
6.2 Consent of Subsidiary Guarantors. Each of the Subsidiary
Guarantors shall have executed and delivered to the Purchasers the Consent of
Guarantors attached to this Third Waiver.
6.3 No Default or Event of Default; Accuracy of Representations and
Warranties. After giving effect to this Third Waiver, no Default or Event of
Default shall exist and each of the representations and warranties made by the
Company or any of its Restricted Subsidiaries and the Guarantor herein and in or
pursuant to the Subsidiary Guarantees, the Subordination Agreement or any of the
Notes shall be true and correct in all material respects as if made on and as of
the date on which this Third Waiver becomes effective.
7. Confirmation of Agreement. All the provisions of the Note Agreement
remain in full force and effect from and after the date hereof, and the Company
and the Guarantor hereby ratify and confirm the Note Agreement and each of the
documents executed in connection therewith. 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 Third
Waiver.
8. Counterparts. This Third 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
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an executed signature page to this Third Waiver by facsimile transmission shall
be as effective as delivery of a manually signed counterpart.
9. Governing Law. This Third Waiver shall be governed by and construed in
accordance with the internal laws of the State of Illinois.
[SIGNATURE PAGE FOLLOWS]
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Dated as of this ____ day of February, 2003.
THC SYSTEMS, INC.
By: /s/ GREGG R. DENNY
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Name: Gregg R. Denny
Title: Chief Financial Officer
ONEIDA LTD.
By: /s/ GREGG R. DENNY
-------------------------------
Name: Gregg R. Denny
Title: Chief Financial Officer
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ ROBERT B. BODETT
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By: /s/ JERRY D. ZINKULA
-------------------------------
Authorized Signatories
ALLSTATE INSURANCE COMPANY
By: /s/ ROBERT B. BODETT
-------------------------------
By: /s/ JERRY D. ZINKULA
-------------------------------
Authorized Signatories
PACIFIC LIFE INSURANCE COMPANY
By: /s/ DIANE W. DALES
-------------------------------
Its:
By: /s/ DAVID C. PATCH
-------------------------------
Its:
Authorized Signatories
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CONSENT OF SUBSIDIARY GUARANTORS
Each of the undersigned is a party to a Subsidiary Guarantee and is a
Subsidiary Guarantor of the obligations of the Company and the Guarantor under
the Note Agreement referred to in the foregoing Third Waiver. Each of the
undersigned Subsidiary Guarantors hereby (a) consents to the foregoing Third
Waiver, (b) acknowledges that, notwithstanding the execution and delivery of the
foregoing Third Waiver, the obligations of each of the undersigned Subsidiary
Guarantors are not impaired or affected, and the Subsidiary Guarantee continues
in full force and effect, and (c) ratifies and affirms the terms and provisions
of the Subsidiary Guarantee.
IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Consent of Subsidiary Guarantors as of the 28th day of February, 2003.
BUFFALO CHINA, INC. DELCO INTERNATIONAL LTD.
By: /s/ GREGG R. DENNY By: /s/ GREGG R. DENNY
------------------------------- -------------------------------
Name: Gregg R. Denny Name: Gregg R. Denny
Title: Chief Financial Officer Title: Chief Financial Officer
ENCORE PROMOTIONS, INC. SAKURA, INC.
By: /s/ GREGG R. DENNY By: /s/ GREGG R. DENNY
------------------------------- -------------------------------
Name: Gregg R. Denny Name: Gregg R. Denny
Title: Chief Financial Officer Title: Chief Financial Officer
THC SYSTEMS INC. KENWOOD SILVER COMPANY, INC.
By: /s/ GREGG R. DENNY By: /s/ GREGG R. DENNY
------------------------------- -------------------------------
Name: Gregg R. Denny Name: Gregg R. Denny
Title: Chief Financial Officer Title: Chief Financial Officer
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EXHIBIT A
Waiver Request
(See attached)
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