EXHIBIT 4(a)(vi)
FIRST WAIVER TO AMENDED AND RESTATED NOTE AGREEMENT
DATED NOVEMBER 15, 1996
This First Waiver to Amended and Restated Note Agreement Dated November
15, 1996 (the "Waiver") is entered into as of September 11, 2000 by and among
THC Systems, Inc., a New York corporation (the "Company"), Oneida Ltd., a New
York corporation (the "Guarantor"), Allstate Life Insurance Company ("Allstate
Life"), Allstate Insurance Company ("Allstate") and Pacific Life Insurance
Company ("Pacific" and together with Allstate Life and Allstate, the
"Purchasers").
R E C I T A L S:
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WHEREAS, reference is hereby made to that certain Amended and Restated
Note Agreement dated as of November 15, 1996 (the "Agreement") by and among the
Company, the Guarantor and the Purchasers pursuant to which the Company issued
$35,000,000 in senior notes;
WHEREAS, the Guarantor, in projected financial statements provided to
the Purchasers dated August 23, 2000, discloses certain financial information
and describes various charges to be incurred by the Guarantor ("Restructuring
Charges");
WHEREAS, the incurrence of the Restructuring Charges by the Guarantor
will result in a violation of Section 7.1 and Section 7.2 of the Agreement;
WHEREAS, the Guarantor recently completed acquisitions of Delco
International Ltd. ("Delco"), Viners of Sheffield Limited ("Viners") and Sakura
Inc. ("Sakura"). The Guarantor has requested that, whenever the Agreement
requires or permits the determination of the pro forma Consolidated EBITDA of
Viners and Delco, the determination be made without regard to certain one-time
non-operating charges totaling $4,800,000 recorded by Viners and Delco prior to
their acquisition by the Guarantor;
WHEREAS, the parties hereto have agreed to enter into this Waiver with
respect to such Agreement violations, on the terms and conditions set forth
herein;
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.
All defined terms used herein shall have the meanings assigned to such terms in
the Agreement.
2. Waivers.
Subject to paragraph 3 of this Waiver, the Purchasers agree to waive, until the
earlier of (a) the execution and delivery of the Second Amended and Restated
Note Agreement dated November 15, 1996 among the Company, the Guarantor and the
Purchasers or (b) October 15, 2000, compliance by the Guarantor with respect to
Sections 7.1 and 7.2 of the Agreement for the quarter ending July 29, 2000.
3. Representations and Warranties.
(a) The Company and the Guarantor represent and warrant that the representations
and warranties set forth in Section 3.1 of the Agreement are true and correct as
if made on and as of the date hereof, except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty was true and correct on and as of
such earlier date, and that there exists no Event of Default (which has not been
cured pursuant to the waivers made hereunder), or event which with notice or
lapse of time or both would
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constitute an Event of Default (which has not been cured pursuant to the waivers
made hereunder), on the Effective Date (as defined below).
(b) The projected financial statements for the Guaratnor dated August 23, 2000
delivered to the Purchasers in connection with this Waiver were prepared by the
Company in good faith and on the basis of the best information available at that
time and on the assumptions stated therein, which assumptions the Company
believes to be reasonable.
4. Effective Date.
This Waiver shall not become effective (the "Effective Date") until (i) the
Purchasers, the Guarantor and the Company have executed this Waiver; (ii) the
Guarantor or the Company pay to the Purchasers a waiver and amendment fee in the
amount of fifteen hundreths of one percent (.15%) of the outstanding principal
amount of the Notes, and (iii) the Required Lenders (as defined in the Credit
Agreement) which are a party to the Credit Agreement between such banks and the
Guarantor dated as of June 2, 2000 have executed a waiver of violations to the
Credit Agreement and the Guarantor has delivered to the Purchasers a copy of
such executed waiver.
5. Further Assurances.
The Company and the Guarantor hereby agree promptly and duly to execute and
deliver any and all such further instruments and documents and take such further
action as the Purchasers may reasonably deem necessary to give effect to this
Waiver in order to assure the Purchasers the full benefits of the Agreement and
the rights and powers therein granted.
6. Governing Law.
This Waiver shall be governed by and construed in accordance with the internal
laws of the State of Illinois.
7. Counterparts.
This Waiver may be executed by the parties hereto individually, or in any
combination of the parties hereto in several counterparts, all of which taken
together shall constitute one and the same Waiver.
8. Ratification and Acknowledgment.
Except as waived hereby, all of the representations, warranties, provisions,
covenants, terms and conditions of the Agreement shall remain unaltered and in
full force and effect and the Agreement is in all respects agreed to, ratified
and confirmed by the Company and the Guarantor. The Company and the Guarantor
acknowledge and agree that the waivers granted herein shall not be construed as
establishing a course of conduct on the part of the Purchasers upon which the
Company or the Guarantor may rely at any time in the future.
9. Reference to and Effect on the Agreement.
Upon the effectiveness of this Waiver, each reference in the Agreement and in
other documents describing or referencing this Agreement to "this Agreement,"
"hereunder," "hereof," "herein," or words of like import referring to the
Agreement, shall mean and be a reference to the Agreement, as modified by this
Waiver.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company, the Guarantor and the Purchasers have
executed this Waiver as of the date first above written.
THC SYSTEMS, INC.
By: /s XXXXXXXXX X. XXXXXXXXX
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Title: Vice President & Secretary
ONEIDA LTD.
By: /s/ XXXXXX X. XXXXX
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Title: Senior Vice President
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXX
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By: /s/ XXXXXXXX X. XXXXXX
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ALLSTATE INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXX
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By: /s/ XXXXXXXX X. XXXXXX
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PACIFIC LIFE INSURANCE COMPANY
By: /s/ XXXXX X. XXXXX
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Assistant Vice President
By: /s/ XXXXX X. XXXX
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Assistant Secretary
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