EXHIBIT 10.5
ONEIDA LIMITED
163-181 Kenwood Ave.
Oneida, NY 13421
May 19, 2004
The Purchasers party to the 2001
Amended and Restated Note
Purchase Agreement dated
as of May 1, 2001
Re: Waiver Letter
Ladies and Gentlemen:
Reference is made to that certain 2001 Amended and Restated Note
Purchase Agreement (as the same has been amended, modified and supplemented, the
"Note Agreement"), among THC Systems, Inc., Oneida Ltd., Allstate Life Insurance
Company and Pacific Life Insurance Company. All terms used herein that are
defined in the Note Agreement shall have the same meanings herein.
The Company and the Guarantor hereby request that the Purchasers waive
each of the potential Defaults and Events of Default pursuant to Sections 8.1(c)
and (e) of the Note Agreement that may result from the failure by (i) the
Company, the Guarantor or any Subsidiary to pay approximately 1,550,000 euros
plus accrued interest to Banca Nazionale del Lavoro ("BNL") pursuant to the Term
Loan Agreement between BNL and Oneida Italy Srl. (the "BNL Obligation"), (ii)
the Guarantor to pay approximately $2,000,000 plus accrued interest to Oneida
Savings Bank ("OSB") pursuant to that certain Promissory Note dated September
30, 2003 issued by the Guarantor to OSB (the "OSB Obligation"), (iii) the
Company, the Guarantor or any Subsidiary to pay approximately $1,490,000 to HSBC
pursuant to the Term Loan and the Short Term Loan Facility Agreement (the "HSBC
Obligation"), and (iv) the Company, the Guarantor or any Subsidiary to make any
accelerated payments demanded by Barclays' Bank pursuant to the existing Line of
Credit Agreement between Oneida UK and Barclays'(the "Barclays' Obligation" and
together with the BNL Obligation, the OSB Obligation and the HSBC Obligation,
the "Payment Obligations").
Notwithstanding anything to the contrary contained in the Note
Agreement, the Purchasers, by their execution of this letter below, hereby waive
any Defaults and Events of Default pursuant to Section 8.1(c) or (e) of the Note
Agreement arising out of the Company's, the Guarantor's or any Subsidiaries
failure to pay the Payment Obligations; provided that such waiver with respect
to a particular Payment Obligation will terminate and be of no further force or
effect if (i) the obligee of such Payment Obligation commences any action (or
otherwise takes any steps) to enforce such Payment Obligation (including,
without limitation, the filing by OSB with the Supreme Court of the State of New
York of a confession of judgement with respect to the OSB Obligation) or (ii)
the Company, the Guarantor or any Subsidiary makes any payment in respect of any
of the Payment Obligations.
This Waiver Letter shall not become effective until the date on which
(i) counterparts of this Waiver Letter shall have been executed by the Company,
the Guarantor, and the Purchasers and delivered to Bingham McCutchen LLP, and
(ii) Bingham McCutchen LLP shall have received a copy of an executed waiver of
any Default or Event of Default arising under the Credit Agreement, waiving any
Default or Event of Default arising from the Company's, the Guarantor's or any
Subsidiaries' failure to pay the Payment Obligations.
This Waiver Letter shall be limited precisely as written and shall not
be deemed to be 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 to
prejudice the right or rights which the Purchasers may now have or may have in
the future under or in connection with the Note Agreement or any of the
instruments or agreements referred to therein. 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.
This Waiver Letter may be executed in any number of counterparts and
by the different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which when
taken together shall constitute but one and the same letter. A fax copy of a
counterpart signature page shall serve as the functional equivalent of a
manually executed copy for all purposes.
This Waiver Letter shall be construed in accordance with and governed
by the laws of the State of Illinois applicable to contracts made and to be
performed wholly within such State.
Yours truly,
ONEIDA LIMITED
By: /s/ GREGG R. DENNY
------------------
Name: Gregg R. Denny
Title: Chief Financial Officer
THC SYSTEMS, INC.
By: /s/ GREGG R.. DENNY
-------------------
Name: Gregg R. Denny
Title: Chief Financial Officer
ACCEPTED AND AGREED:
ALLSTATE INSURANCE COMPANY
By: /s/ JERRY D. ZINKULA
--------------------
Name: Jerry D. Zinkula
Title:
By: /s/ WILLIAM R. SCHMIDT
----------------------
Name: William R. Schmidt
Title:
Authorized Signatories
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ WILLIAM R. SCHMIDT
----------------------
Name: William R. Schmidt
Title:
By: /s/ JERRY D. ZINKULA
--------------------
Name: Jerry D. Zinkula
Title:
Authorized Signatories
PACIFIC LIFE INSURANCE COMPANY
By: /s/ RONN C. CORNELIUS
---------------------
Name: Ronn C. Cornelius
Title: Assistant Vice President
By: /s/ CATHY SCHWARTZ
------------------
Name: Cathy Schwartz
Title: Assistant Secretary
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