EXHIBIT 4(a)(viii)
AMENDED AND RESTATED
COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT
This AMENDED AND RESTATED COLLATERAL AGENCY AND INTERCREDITOR
AGREEMENT, dated as of April 23, 2002 (this "Agreement"), is by and among the
financial institutions parties to the Credit Agreement referred to below (each,
a "Lender" and collectively, the "Lenders"), ALLSTATE LIFE INSURANCE COMPANY,
ALLSTATE INSURANCE COMPANY, PACIFIC LIFE INSURANCE COMPANY, as successor to
Pacific Mutual Life Insurance Company (each, a "Noteholder" and collectively,
the "Noteholders") and JPMORGAN CHASE BANK, formerly known as The Chase
Manhattan Bank, a New York banking corporation ("Chase"), individually and as
collateral agent (in such capacity, the "Collateral Agent") for the Secured
Parties (as defined in the Security Agreement referred to below). All
capitalized terms used herein shall have the respective meanings given to them
in Section 1 hereof.
R E C I T A L S
A. Pursuant to a 2001 Amended and Restated Note Agreement, dated as of
May 1, 2001 (such agreement, as has been or hereafter may be modified, amended,
renewed or replaced, the "Note Agreement"), by and among Oneida Ltd. (the
"Borrower"), THC Systems, Inc., a New York corporation and a wholly-owned
subsidiary of the Borrower ("THC"), and the Noteholders, THC has issued and sold
to the Noteholders Senior Notes due November 1, 2005 (each, a "Note" and
collectively, the "Notes").
B. Pursuant to that certain Amended and Restated Credit Agreement dated
as of April 27, 2001 (as has been or hereafter may be modified, amended, renewed
or replaced, the "Credit Agreement"), by and among the Borrower, the Lenders and
Chase, as the Administrative Agent (in such capacity, the "Administrative
Agent"), the Lenders have made available to the Borrower certain credit
facilities in a current aggregate principal amount of up to $275,000,000 (all
amounts outstanding in respect of the Credit Agreement being hereinafter
collectively referred to as the "Loans").
X. Xxxxx has established a $2,500,000 working capital line of credit
(the "Chase Working Capital Facility") in favor of Borrower pursuant to a Grid
Demand Promissory Note dated June 7, 2000 (as may be modified, amended, renewed
or replaced, the "Chase Working Capital Note"), under which Chase may make
working capital loans up to an aggregate principal amount of $2,500,000 (the
"Chase Loans").
D. Certain of the Lenders from time to time issue trade and standby
letters of credit and bankers' acceptances for the benefit of the Borrower and
its Subsidiaries, or purchase a participation interest therein.
E. The Borrower and its Subsidiaries from time to time enter into
hedging agreements with one or more Lenders or their affiliates to manage or
hedge certain interest rate, currency exchange rate or commodity price risks
inherent in the conduct of the Borrower's business (as may be modified, amended,
renewed or replaced, collectively, the "Hedging Agreements").
F. The Bank of Nova Scotia ("Scotiabank") has established a precious
metal consignment line ("Scotiabank Metal Line") in favor of Borrower pursuant
to a letter agreement dated October 8, 1986 (as modified, amended, renewed or
replaced, the "Scotiabank Metal Agreement"). Under the Scotiabank Metal Line,
Scotiabank consigns to Borrower quantities of silver and gold bullion.
G. In connection with the Credit Agreement and in order to induce the
Lenders to make the Loans, certain subsidiaries of the Borrower (collectively,
the "Guarantors") have guaranteed to the Lenders the payment of the Loans and
all other obligations of the Borrower arising in connection with transactions
contemplated by the Credit Agreement. Similarly, the Guarantors have guaranteed
to the Noteholders the payment of the principal of,
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and premium (if any) and interest on, the Notes and the payment of all other
obligations of the Borrower and THC under the Notes and the Note Agreement.
H. The Credit Agreement and the Note Agreement require Borrower and the
Guarantors to grant security interests in, or mortgages on, or pledge certain of
their respective assets to secure the Borrower's and THC's obligations under the
Credit Agreement and the Note Agreement.
I. The parties hereto desire that the collateral to be provided by the
Borrower and the Guarantors will secure ratably for the benefit of the Lenders,
Chase, the Noteholders and the Issuing Banks the obligations of the Borrower and
the Guarantors under the Credit Agreement, the Note Agreement, the Reimbursement
Agreements in respect of the Secured LCs, the Chase Working Capital Facility,
the Secured Hedging Agreements, the Secured Metal Obligations under the
Scotiabank Metal Agreement and the Subsidiary Guarantee Agreements.
J. The Borrower and the Guarantors have executed or are executing
certain collateral documents in favor of the Collateral Agent, as agent for the
Secured Parties, to provide a security interest in or mortgage on certain
collateral as appropriate.
K. The parties hereto desire to enter into this Agreement to appoint
Chase as the Collateral Agent for the Secured Parties and to establish their
relative rights with respect to collateral pursuant to the collateral documents
executed by the Borrower and the Guarantors.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Definitions. As used herein, the following terms shall have
the following meanings (all terms defined in this Section 1 or in other
provisions of this Agreement in the singular to have the same meanings when used
in the plural and vice versa, except where the context indicates otherwise):
"Administrative Agent" shall have the meaning assigned to that term in the
recitals to this Agreement.
"Affiliate" shall mean, with respect to any Person, another
Person that directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with such Person.
"Bankruptcy Proceeding" shall mean a general assignment of the
Borrower, THC or any other Guarantor for the benefit of its creditors, or the
institution by or against any such entity of any proceeding seeking relief as
debtor, or seeking to adjudicate any such entity as bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment or composition of any such
entity or its debts, under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors, or seeking appointment of a receiver,
trustee, custodian or other similar official for any such entity or for any
substantial part of its property.
"Borrower" shall have the meaning assigned to that term in the
recitals to this Agreement.
"Chase" shall have the meaning assigned to that term in the
first paragraph of this Agreement.
"Chase Loans" shall have the meaning assigned to that term in
the recitals to this Agreement.
"Chase Working Capital Facility" shall have the meaning
assigned to that term in the recitals to this Agreement.
"Chase Working Capital Note" shall have the meaning assigned
to that term in the recitals to this Agreement.
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"Collateral" shall mean, collectively, (i) the "Collateral" as
such term is used in each Security Agreement, (ii) the "Mortgaged Property" as
such term is used in each Mortgage, and (iii) the "Collateral" as such term is
used in each Pledge Agreement.
"Collateral Agent" shall have the meaning assigned to that
term in the first paragraph of this Agreement.
"Collateral Documents" shall mean, collectively, the Pledge
Agreements, the Security Agreements, the Mortgages, any Uniform Commercial Code
financing statements, any security agreements granting a security interest in
copyrights, trademarks and patents, and applications for copyrights, trademarks
and patents, contemplated by the Pledge Agreements or the Security Agreements,
any other documents filed with governmental authorities to perfect, establish
priority or give public notice of the security interests granted by the Pledge
Agreements, Mortgages or the Security Agreements, and any certificate or other
document contemplated by or delivered pursuant to the Pledge Agreements,
Mortgages or the Security Agreements.
"Commitments" shall mean the commitments of the Lenders to
make Loans under the Credit Agreement in an aggregate amount not to exceed
$275,000,000.
"Credit Agreement" shall have the meaning assigned to that
term in the recitals to this Agreement.
"Default" shall mean any event or condition, which constitutes
an Event of Default or which upon notice, lapse of time or both would, unless
cured or waived, become an Event of Default.
"Event of Default" shall mean (i) an event of default as such
term may be defined in the Credit Agreement, Note Agreement or in any of the
other Transaction Documents evidencing indebtedness or obligations in excess of
$3,500,000, and (ii) any event or condition which, under the terms of the Credit
Agreement, the Note Agreement, or under any of the other Transaction Documents
evidencing indebtedness or obligations in excess of $3,500,000, would allow a
Secured Party to accelerate or declare due and payable indebtedness owing under
any such Transaction Documents, or require the Borrower or any of the Guarantors
to prepay, redeem, defease, or provide cash collateral for, any such
indebtedness or obligations.
"Excess Payment" shall have the meaning assigned to that term
in Section 3.2.
"Grantors" shall mean, collectively, Borrower, THC and the
other Guarantors.
"Guarantors" shall have the meaning assigned to that term in
the recitals to this Agreement.
"Hedging Agreements" shall have the meaning assigned to that
term in the recitals to this Agreement.
"Issuer" shall have the meaning assigned to that term in
Section 4.1 hereof.
"Issuing Banks" shall mean, collectively, the Lenders which
issue LCs in their capacity as the issuing bank thereof.
"LCs" shall mean, collectively, the Trade LCs and Standby LCs.
"LC Exposure" shall mean, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding LCs at such time, plus (b) the
aggregate amount of all payments made by the Issuing Banks pursuant to LCs that
have not yet been reimbursed by or on behalf of the Borrower or its Subsidiaries
at such time.
"Lenders" shall have the meaning assigned to that term in the
first paragraph of this Agreement.
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"Loans" shall have the meaning assigned to that term in the
recitals to this Agreement.
"Majority Secured Parties" shall mean Secured Parties having
more than 50% of the sum of (i) the then aggregate outstanding principal amount
of the Loans, the Chase Loans and the Notes, (ii) any unused Commitments of the
Lenders under the Credit Agreement which have not expired or been terminated or
suspended, (iii) the then aggregate LC Exposure under the Secured LCs, (iv) any
unused commitment of an Issuing Bank to issue an LC (to the extent that such LC
would then be a Secured LC if so issued), which commitment has not expired or
been terminated or suspended, (v) the maximum aggregate amount (giving effect to
any netting agreements) that the Borrower and its Subsidiaries would be required
to pay if all of the Secured Hedging Agreements were terminated at such time,
and (vi) the maximum amount of the Secured Metal Obligations if the Scotiabank
Metal Agreement was terminated at such time.
"Maximum Hedging Exposure" shall mean, with respect to any
Hedging Agreement at any given time, the maximum aggregate amount (after giving
effect to any netting agreements) that the Borrower and its Subsidiaries would
be required to pay the counterparty if such Hedging Agreement were terminated at
such time.
"Mortgage" shall mean each mortgage (whether denominated a
mortgage, a mortgage and security agreement, a mortgage, assignment of leases
and rents and security agreement, a mortgage spreader agreement, a deed of trust
or a debenture) executed by a Grantor (or by an industrial development agency at
the request of a Grantor) granting the Collateral Agent a lien on real property
owned by the Grantor (or by the industrial development agency) as security for
some or all of the Obligations.
"Note Agreement" shall have the meaning assigned to that term
in the recitals to this Agreement.
"Noteholders" shall have the meaning assigned to that term in
the first paragraph of this Agreement.
"Notes" shall have the meaning assigned to that term in the
recitals to this Agreement.
"Obligations" shall mean (a) the due and punctual payment by
the Borrower and THC, as the case may be, of (i) the principal of the Loans (in
an amount not to exceed $275,000,000), the Chase Loans (in an amount not to
exceed $2,500,000) and the Notes (in an amount not to exceed the principal
amount thereof as of the date hereof), when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, (ii) any
make-whole premium or other premium, if any, and interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Loans, the Chase Loans and the Notes, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (iii) each payment required to be made by the Borrower or any of
its Subsidiaries to the Issuing Banks in respect of any Secured LC under the
Reimbursement Agreement relating thereto, when and as due, including payments in
respect of reimbursement of disbursements, interest thereon and obligations to
provide cash collateral, if any, (iv) each payment required to be made by the
Borrower or any of its Subsidiaries to a Lender (or an Affiliate of a Lender) as
counterparty under any Secured Hedging Agreement, when and as due, (v) the
Secured Metal Obligations, and (vi) all other monetary obligations, including
fees, costs, expenses and indemnities, whether primary, secondary, direct,
contingent, fixed or otherwise (including monetary obligations incurred during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
the Secured Parties under any of the Transaction Documents and (b) the due and
punctual performance of all covenants, agreements, obligations and liabilities
of the Borrower, THC and the Guarantors under or pursuant to any of the
Transaction Documents, including without limitation, the Subsidiary Guarantee
Agreements.
"Person" shall mean an individual, a corporation, a
partnership, a limited liability company, a voluntary association, a trust, an
unincorporated organization or a government or any agency, instrumentality or
political subdivision thereof.
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"Pledge Agreement" shall mean each pledge agreement executed
by a Grantor pledging collateral to the Collateral Agent or granting the
Collateral Agent a security interest in collateral to secure payment of some or
all of the Obligations.
"Receiving Secured Party" shall have the meaning assigned to
that term in Section 3.2.
"Reimbursement Agreements" shall mean, collectively, any
application, agreement, instrument or commitment (regardless of how denominated)
obligating any Grantor to reimburse, indemnify or provide security or cash
collateral to, any of the Issuing Banks in respect of LCs issued by it.
"Required Banks" shall mean the Lenders and other financial
institutions holding 70% or more of the sum of (i) the then aggregate
outstanding principal amount of the Loans and the Chase Loans, (ii) any unused
Commitments of the Lenders under the Credit Agreement which have not expired or
been terminated or suspended, (iii) the then aggregate LC Exposure under the
Secured LCs, (iv) any unused commitment of an Issuing Bank to issue an LC (to
the extent that such LC would then be a Secured LC if so issued), which
commitment has not expired or been terminated or suspended, (v) the maximum
aggregate amount (giving effect to any netting agreements) that the Borrower and
its Subsidiaries would be required to pay if all of the Secured Hedging
Agreements were terminated at such time, and (vi) the maximum amount of the
Secured Metal Obligations if the Scotiabank Metal Agreement was terminated at
such time; provided that when used in connection with any amendment,
modification, waiver or consent of or under this Agreement which has the effect
of releasing any Collateral or terminating any Collateral Document, the term
"Required Banks" shall mean 100% of the sum of (i) through (vi) above.
"Required Noteholders" shall mean Noteholders holding 70% or
more of the aggregate outstanding principal amount of the Notes; provided that
when used in connection with any amendment, modification, waiver or consent of
or under this Agreement which has the effect of releasing any Collateral or
terminating any Collateral Document, the term "Required Noteholders" shall mean
Noteholders holding 100% of the aggregate outstanding principal amount of the
Notes.
"Required Secured Parties" shall mean the Required Banks and
the Required Noteholders, in each case voting separately as a class.
"Scotiabank" shall have the meaning given to that term in the
recitals to this Agreement.
"Scotiabank Metal Agreement" shall have the meaning given to
that term in the recitals to this Agreement.
"Scotiabank Metal Line" shall have the meaning given to that
term in the recitals to this Agreement.
"Secured Hedging Agreements" shall mean, collectively at any
given time, those Hedging Agreements under which the then Maximum Hedging
Exposure does not exceed $5,000,000. In the event that the Maximum Hedging
Exposure for all of the Hedging Agreements then outstanding exceeds $5,000,000,
the term "Secured Hedging Agreements" shall exclude one or more of the most
recent Hedging Agreements (based upon the date thereof) until the Maximum
Hedging Exposure becomes $5,000,000 or less, provided that if such exclusion
causes the Maximum Hedging Exposure to be less than $5,000,000, then the last
Hedging Agreement so excluded shall become a Secured Hedging Agreement but only
to the extent of the difference between $5,000,000 and the Maximum Hedging
Exposure under the other Secured Hedging Agreements.
"Secured LCs" shall mean, collectively, the Secured Trade LCs
and the Secured Standby LCs.
"Secured Metal Obligations" shall mean an amount (not to
exceed $1,500,000 in the aggregate) equal to the difference between (a) all
amounts owed by Borrower under the Scotiabank Metal Agreement, and (b)
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the value of the metal bullion (determined in the manner set forth in the
Scotiabank Metal Agreement) recovered or recoverable by Scotiabank upon the
occurrence of an Event of Default.
"Secured Parties" shall mean, collectively, the Secured
Parties as that term is defined in any Security Agreement and the Secured
Parties as that term is defined in any Mortgage.
"Secured Standby LCs" shall mean, collectively at any given
time, those Standby LCs for which the aggregate LC Exposure thereunder does not
exceed $20,000,000. In the event that the aggregate LC Exposure under all of the
Standby LCs then outstanding exceeds $20,000,000, the term "Secured Standby LCs"
shall exclude one or more of the most recent Standby LCs (based upon the date of
issuance thereof) until such aggregate LC Exposure becomes $20,000,000 or less,
provided that if such exclusion causes such aggregate LC Exposure to be less
than $20,000,000, then the last Standby LC so excluded shall become a Secured
Standby LC but only to the extent of the difference between $20,000,000 and the
aggregate LC Exposure under the other Secured Standby LCs.
"Secured Trade LCs" shall mean, collectively at any given
time, those Trade LCs for which the aggregate LC Exposure thereunder does not
exceed $10,000,000. In the event that the aggregate LC Exposure under all of the
Trade LCs then outstanding exceeds $10,000,000, the term "Secured Trade LCs"
shall exclude one or more of the most recent Trade LCs (based upon the date of
issuance thereof) until such aggregate LC Exposure becomes $10,000,000 or less,
provided that if such exclusion causes such aggregate LC Exposure to be less
than $10,000,000, then the last Trade LC so excluded shall become a Secured
Trade LC but only to the extent of the difference between $10,000,000 and the
aggregate LC Exposure under the other Secured Trade LCs.
"Security Agreement" shall mean each security agreement or
debenture executed by a Grantor granting the Collateral Agent a lien on
collateral or security for some as all of the Obligations.
"Sharing Agreement" shall mean the Sharing Agreement, dated as
of June 2, 2000, by and among the Lenders, the Noteholders and Chase, as the
Administrative Agent.
"Sharing Payments" shall have the meaning assigned to that
term in Section 3.2.
"Standby LCs" shall mean, collectively, standby letters of
credit issued by Issuing Banks for the benefit or on the account of the Borrower
or any of its Subsidiaries, and any participation interest therein.
"Subsidiary Guarantee Agreements" shall mean, collectively,
each subsidiary guarantee agreement executed and delivered by a Subsidiary of
Borrower guaranteeing the obligations of the Borrower and THC under the Credit
Agreement and Note Agreement, together with any additional guarantee agreements
entered into by Subsidiaries of the Borrower in favor of the Administrative
Agent, the Lenders, the Noteholders or the Collateral Agent.
"Subsidiary Subordination Agreements" shall mean,
collectively, each subordination agreement executed and delivered by a
Subsidiary of Borrower subordinating payment of any intra-company indebtedness
owed to the Borrower (other than intra-company indebtedness evidenced by
promissory notes pledged to the Collateral Agent) to the prior payment of the
indebtedness under the Credit Agreement or the Note Agreement, together with any
additional subordination agreements entered into by the Borrower and its
Subsidiaries in favor of the Administrative Agent, the Lenders, the Noteholders
or the Collateral Agent.
"THC" shall have the meaning assigned to that term in the
recitals to this Agreement.
"Trade LCs" shall mean, collectively, trade letters of credit
and bankers' acceptances issued by Issuing Banks for the benefit or on the
account of the Borrower or any of its Subsidiaries, and any participation
interest therein.
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"Transaction Documents" shall mean, collectively, this
Agreement, the Pledge Agreements, the Security Agreements, the Mortgages, the
Credit Agreement, the Subsidiary Guarantee Agreements, the Subsidiary
Subordination Agreements, the Note Agreement, the Reimbursement Agreements for
the Secured LCs, the Chase Working Capital Note, the Secured Hedging Agreements,
the Scotiabank Metal Agreement, the Collateral Documents and any certificate or
other document referred to or provided for therein.
SECTION 2. The Collateral Agent.
2.1 Appointment. Each of the parties hereto hereby irrevocably appoints
Chase as the Collateral Agent, subject to removal as provided in Section 2.10
hereof, and authorizes the Collateral Agent to act in such capacity hereunder
and under the other Collateral Documents, with such powers as are specifically
delegated to the Collateral Agent by the terms hereof and thereof, together with
such other powers as are reasonably incidental thereto, and hereby expressly
authorizes the Collateral Agent to execute, deliver and perform as its agent
this Agreement and the other Collateral Documents to which the Collateral Agent
is (or is intended to be) a party in the capacity as agent.
2.2 Duties and Responsibilities.
(a) Subject to the terms hereof and of the Collateral Documents,
the Collateral Agent agrees to receive, hold, administer and enforce the
Collateral, and to foreclose upon, collect and dispose of the Collateral and to
apply the proceeds therefrom, in such manner and on such terms as are set forth
herein and therein, for the ratable benefit of the Secured Parties as provided
herein and therein, and otherwise to perform its duties and obligations as
Collateral Agent hereunder and under the other Collateral Documents to which the
Collateral Agent is a party in accordance with the respective terms hereof and
thereof, provided that the Collateral Agent, in its capacity as such, shall have
no duties or responsibilities except those expressly set forth herein and
therein, and no implied covenants or obligations shall be read into any thereof
against the Collateral Agent. The Collateral Agent shall not have, by reason of
this Agreement or otherwise, a fiduciary or trust relationship with any Secured
Party, and nothing in this Agreement, expressed or implied, is intended to or
shall be construed to imply or create such a relationship. Notwithstanding the
immediately preceding sentence, for the limited purpose of holding and
distributing or applying proceeds of the Collateral, the Collateral Agent shall
hold such proceeds and Collateral in trust for the benefit of the Secured
Parties, in accordance with their rights and priorities provided herein. Subject
to those duties and responsibilities of the Collateral Agent expressly provided
herein, the Collateral Agent shall not be responsible to the Secured Parties for
(i) any statements, covenants, agreements, representations or warranties by the
Borrower, any of the Guarantors, any of the Secured Parties or any other Person
contained in any Transaction Document, (ii) the value, validity, priority,
perfection, effectiveness, genuineness, enforceability or sufficiency of any of
the Transaction Documents, the Collateral or the security interests given or
granted to or held by the Collateral Agent under the Transaction Documents, or
(iii) the performance or observance by the Borrower, any of the Guarantors, any
of the Secured Parties or any other Person of any of their respective agreements
contained in any Transaction Document, nor shall the Collateral Agent be liable
because of the invalidity or unenforceability of any provisions of, or of any
Collateral or the security interests given or granted to or held by it under,
any Transaction Document.
(b) The Collateral Agent shall not be liable to any Secured Party
or any other Person with respect to any action taken or not taken by it in good
faith in the performance of its obligations under this Agreement. In no event
shall the Collateral Agent be liable for special, indirect or consequential loss
or damage of any kind whatsoever, even if the Collateral Agent has been advised
of the likelihood of such loss or damage and regardless of the form of action.
Without limiting the generality of the foregoing, as to any matters not
expressly provided for by the Collateral Documents, the Collateral Agent shall
in all cases be fully protected in acting, or in refraining from acting,
thereunder in accordance with instructions signed by the Majority Secured
Parties (unless this Agreement requires the approval or consent of the Required
Secured Parties), and such instructions of the Majority Secured Parties (or the
Required Secured Parties, as the case may be) and any such action taken or
failure to act pursuant hereto or thereto shall be binding on all of the Secured
Parties. The Collateral Agent may at any time request instructions from the
Secured Parties as to a course of action to be taken by it hereunder or in
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connection herewith or any other matters relating hereto, and any Secured Party
will promptly reply to such request.
2.3 Employment of Agents. The Collateral Agent may employ agents
and attorneys-in-fact and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. Neither the Collateral Agent nor any of its shareholders,
directors, officers, employees, Affiliates or agents shall be liable or
responsible for any action taken or omitted to be taken by it or any of them
hereunder or under any other Collateral Document, or in connection herewith or
therewith, except for its or their own gross negligence or willful misconduct.
2.4 Reliance. The Collateral Agent shall be entitled to rely upon any
certification, notice or other communication (including any thereof by
telephone, telex, telegram or cable) reasonably believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person or
Persons, and upon the opinion, advice and statements of legal counsel,
independent accountants and other experts selected by the Collateral Agent,
without responsibility for the consequences for such reliance. The Collateral
Agent may deem and treat the payee of any promissory note or other evidence of
indebtedness relating to the Obligations as the owner thereof for all purposes
hereof unless and until a written notice of assignment or transfer thereof,
signed by such payee, shall have been filed with the Collateral Agent.
2.5 Knowledge. The Collateral Agent shall not be charged with any
knowledge held by or imputed to the Borrower, any Guarantor, any Secured Party
or any other Person. The Collateral Agent shall not be deemed to have knowledge
of any Default or Event of Default unless the Collateral Agent has received
written notice from the Borrower, any Guarantor or any Secured Party specifying
such Default or Event of Default. In the event that the Collateral Agent, in its
capacity as such, receives such a notice, the Collateral Agent shall give prompt
notice thereof to all the Secured Parties.
2.6 Rights as Secured Party. With respect to (a) its Commitment and the
Loans made by it under the Credit Agreement, (b) Chase Loans made by it under
the Chase Working Capital Facility, (c) Secured LCs issued by Chase as the
Issuing Bank, and (d) the obligations of the Borrower under Secured Hedging
Agreements to which Chase is a counterparty, Chase shall have the same rights
and powers hereunder and under and in respect of the Collateral Documents as any
other Secured Party, and may exercise the same as though it were not acting as
the Collateral Agent, and the term "Secured Party" shall, unless the context
otherwise indicates, include Chase in its individual capacity. Chase and its
Affiliates may (without having to account therefor to any Secured Party) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with the Borrower (and any of its Affiliates) as if it were
not acting as the Collateral Agent, and the Collateral Agent may accept fees and
other consideration from the Borrower or any of its Affiliates for services in
connection with this Agreement or otherwise in the ordinary course of business
without having to account for the same to the Secured Parties.
2.7. Indemnity. The Secured Parties agree promptly to indemnify and
hold the Collateral Agent harmless (to the extent not promptly paid or
reimbursed by the Borrower in accordance with the Transaction Documents or
otherwise, or from the proceeds of the Collateral), ratably in accordance with
the sum of (a) the aggregate outstanding principal amount of the Loans, the
Chase Loans and the Notes, (b) the aggregate outstanding LC Exposure under the
Secured LCs, (c) the maximum amount of the Secured Metal Obligations if the
Scotiabank Metal Agreement was terminated at such time, and (d) the maximum
aggregate amount (giving effect to any netting agreements) that the Borrower and
its Subsidiaries would be required to pay if all of the Secured Hedging
Agreements were terminated at such time, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Collateral Agent in any way relating to
or arising out of any Collateral Document or the transactions contemplated
thereby (including, without limitation, the costs and expenses which the
Borrower is obligated to pay the Collateral Agent under any Collateral Document
or otherwise) or the enforcement of any of the terms hereof or of the Collateral
Documents, provided that no Secured Party shall be liable for any of the
foregoing to the extent they arise from the Collateral Agent's gross negligence
or willful misconduct.
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2.8 Independent Credit Analysis. Each Secured Party agrees that it has,
independently and without reliance on the Collateral Agent or any other Secured
Party, and based on such documents and information as it has deemed appropriate,
made its own credit analysis of the Borrower and decision to enter into the
Transaction Documents to which it is a party, and that it will, independently
and without reliance upon the Collateral Agent or any other Secured Party, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under this Agreement and other Transaction Documents. The Collateral
Agent shall not be required to keep itself informed as to the performance or
observance by the Borrower, any Guarantor or any other Person of any of the
Transaction Documents or any other document referred to or provided for therein,
except as otherwise expressly required by the terms hereof or thereof, or to
inspect the properties (including without limitation, the Collateral) or books
of the Borrower, any Guarantor or any of their respective Affiliates. Except as
expressly provided in the Collateral Documents to which it is a party, the
Collateral Agent shall not have any duty or responsibility to provide any
Secured Party with any credit or other information concerning the affairs,
financial condition, business or property (including without limitation, the
Collateral) of the Borrower, any Guarantor or any of their respective Affiliates
which may come into its possession or the possession of any of its Affiliates.
2.9 Enforcement of Collateral Documents. After the Collateral Agent has
received written notice from the Majority Secured Parties that an Event of
Default has occurred and is continuing, the Collateral Agent shall, subject to
the other provisions of this Section 2 and to the terms of the applicable
Collateral Documents (and subject to the rights, if any, of other Persons
holding liens on, security interests in or claims to the Collateral which are
prior to those of the Collateral Agent), take such steps looking toward
collection or enforcement of the Collateral (or any portion thereof), including
without limitation an action to foreclose on the Security Agreements, the Pledge
Agreements or Mortgages as it may be instructed in writing by the Majority
Secured Parties, provided, however, that in no event shall the Collateral Agent
be required, and in all cases it shall be fully justified in failing or
refusing, to take any action under or pursuant to this Agreement or any other
Collateral Documents which could subject it or its shareholders, officers,
employees or directors to liability, unless and until the Collateral Agent shall
be indemnified or tendered security to its satisfaction by the Secured Parties,
ratably as provided in Section 2.7 hereof, against any and all loss, cost,
expense or liability in connection therewith, anything herein or elsewhere
contained to the contrary notwithstanding. Except as expressly provided in this
Section 2.9, the Collateral Agent shall not be required to take steps toward the
collection of any amounts becoming payable upon any Collateral, or to take any
action towards enforcing any Collateral Document or to institute, appear in or
defend any action, suit or other proceeding in connection therewith. The
foregoing provisions of this paragraph shall not be construed to limit the power
of the Collateral Agent to take any action permitted under any Collateral
Document to be taken by the Collateral Agent, even in the absence of
instructions by the Majority Secured Parties contemplated above, and the
Collateral Agent may, in its discretion, take any aforesaid action without the
receipt of indemnity or security or other request therefor and the taking of any
such action shall not be construed as a waiver of any provision of this
Agreement.
2.10 Resignation and Removal. Subject to the appointment and acceptance
of a successor Collateral Agent as provided below, the Collateral Agent may
resign at any time by giving notice thereof to each Secured Party, the Borrower
and the Guarantors, and the Collateral Agent may be removed at any time with or
without cause by either the Required Noteholders or the Required Banks. Upon any
such resignation or removal, the Required Secured Parties shall have the right
to appoint a successor Collateral Agent. If no successor Collateral Agent shall
have been so appointed by the Required Secured Parties and shall have accepted
such appointment within 30 days after the retiring Collateral Agent's giving of
notice of resignation or the removal of the retiring Collateral Agent, then the
retiring Collateral Agent may, on behalf of the Secured Parties, appoint a
successor Collateral Agent, which shall be a bank with an office in the State of
New York or an Affiliate thereof, and which shall agree to accept such
appointment. Upon the acceptance of any appointment as Collateral Agent
hereunder and under the Collateral Documents by a successor Collateral Agent and
the transfer by the retiring Collateral Agent to the successor Collateral Agent
of any Collateral and Collateral Documents held by the retiring Collateral
Agent, such successor Collateral Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Collateral Agent, and the retiring Collateral Agent shall be discharged from its
duties and obligations hereunder and thereunder. After any retiring Collateral
Agent's resignation or removal
9
hereunder and thereunder as Collateral Agent, the provisions of this Agreement
(including without limitation this Section 2) shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as the Collateral Agent.
2.11 Compensation. All compensation to the Collateral Agent shall be
paid by the Borrower in accordance with the Collateral Documents or a separate
fee agreement, and the Secured Parties shall not have any liability therefor,
except as otherwise provided in Section 2.7 of this Agreement.
SECTION 3. Agreements Among the Secured Parties. Each of the Secured
Parties and the Collateral Agent agree among themselves (but not with, or for
the benefit of, the Borrower or any Guarantor) as follows:
3.1 Ratable Sharing of Collateral Recoveries. Notwithstanding anything
in this Agreement, any Collateral Document or otherwise to the contrary, all
security interests or other liens in favor of the Collateral Agent for the
benefit of the Secured Parties in and upon the Collateral, and all other rights
of each of the Secured Parties in and to the Collateral, are of equal priority,
and any recovery by the Collateral Agent or any of the Secured Party of or in
respect of any Collateral (or proceeds thereof) shall be shared ratably in
proportion to the respective amounts of Obligations then outstanding held by all
the Secured Parties, subject to the order of application thereof as set forth in
Section 4.1 hereof, provided that any security interest or other lien in favor
of any Secured Party securing any indebtedness (other than the Obligations) of
the Borrower, THC or any of the Guarantors, as applicable, to such Secured
Party, whether now or hereafter in effect, shall not be subject to the
provisions of this Section 3.1. Without limiting the generality of the
foregoing, recoveries by the Collateral Agent on behalf of the Secured Parties
under any Mortgage shall be shared ratably by all Secured Parties in proportion
to the respective amounts of Obligations then outstanding held by all the
Secured Parties.
3.2 Ratable Sharing of Other Recoveries.
(a) Each Secured Party hereby agrees with each other Secured Party
that the following payments on an Obligation (collectively, "Sharing Payments"
or individually, a "Sharing Payment") shall be shared so that each Secured Party
shall receive the Sharing Payments ratably (without preference or priority of
principal over interest or interest over principal or otherwise) in proportion
to the amount of Obligations owing to such Secured Party: (i) payments received
by a Secured Party upon exercise by such Secured Party of a right of set-off,
counterclaim, or bankers' lien against any Grantor, (ii) payments made by any
Grantor (including, without limitation, those made pursuant to a Subsidiary
Guarantee Agreement) following receipt by the Collateral Agent of notice of an
Event of Default from the Majority Secured Parties under Section 2.9 hereof, and
(iii) payments made by any Grantor (including, without limitation, those made
pursuant to a Subsidiary Guarantee Agreement) prior to receipt by the Collateral
Agent of notice of an Event of Default from the Majority Secured Parties but
more than 45 days after receipt by the Collateral Agent of notice from either
the Required Noteholders or the Required Banks that an Event of Default has
occurred, provided such Event of Default has not been waived during such 45-day
period.
(b) Each Secured Party hereby agrees that in the event (i) any
Secured Party (a "Receiving Secured Party") shall receive a Sharing Payment, and
(ii) any other Secured Party shall not concurrently receive its ratable share of
the Sharing Payment, then the Receiving Secured Party shall promptly remit the
Sharing Payment (other than the Receiving Secured Party's ratable share thereof)
to each other Secured Party who shall then be entitled thereto so that, after
giving effect to such payment (and any other payments then being made by any
other Receiving Secured Party pursuant to this Section 3.2), each Secured Party
shall have received its ratable share of the Sharing Payments.
(c) Any payments by a Receiving Secured Party to other Secured
Parties pursuant to this Section 3.2 shall be (and shall be deemed) made in
consideration of the purchase for cash at face value, but without recourse,
ratably from such other Secured Parties of such amount of their Obligations as
is necessary to cause the Receiving Secured Party to share the Sharing Payment
with the other Secured Parties as provided above; provided, however, that if any
such purchase or payment (the "Excess Payment") is made by any Receiving Secured
Party and if the Excess Payment or any part thereof is thereafter recovered from
such Receiving Secured Party by the
10
Borrower, THC or any other Guarantor (including, without limitation, by any
trustee in bankruptcy of the Borrower, THC or any other Guarantor or any
creditor thereof), the related purchase from the other Secured Parties shall be
rescinded ratably and the purchase price restored as to the portion of the
Excess Payment so recovered, but without interest; and provided, further that
nothing herein shall obligate any Secured Party to resort to any setoff,
application of deposit balance or other means of payment or avail itself of any
recourse by resort to any property of the Borrower, THC or any other Guarantor,
the taking of any such action to remain within the absolute discretion of such
Secured Party without obligation of any kind to other Secured Parties to take
any such action.
(d) The Lenders, the Noteholders and Chase, as the Administrative
Agent under the Credit Agreement, hereby terminate the Sharing Agreement in all
respects.
3.3 Transfer of Obligations. Each Secured Party agrees that it will not
assign or otherwise transfer any of its Obligations or any right in respect
thereof, or any promissory note or instrument or agreement providing for or
evidencing any such Obligation, unless (i) in the case of any assignment or
transfer of (a) any Loan made by a Lender or any Chase Loan made by Chase, (b)
any Secured LC issued by an Issuing Bank, (c) a Secured Party's rights as a
counterparty under a Secured Hedging Agreement, or (d) Scotiabank's rights under
the Scotiabank Metal Agreement, the assignee or transferee thereof expressly
agrees with the Collateral Agent, for the benefit of the other Secured Parties,
by an instrument in form and substance satisfactory to the Collateral Agent, to
be bound by and comply with all the provisions of this Agreement and each of the
Collateral Documents, (ii) in the case of any assignment or transfer of a Note
by any Noteholders, such Note shall bear a legend to the effect that the
subsequent holder of such Note shall be bound by and agrees to comply with all
the provisions of this Agreement and each of the Collateral Documents, or (iii)
in the case of any sale of a participation in any Obligations, the terms of such
sale grant and permit the purchaser thereof rights to demand in payment thereof
only amounts received by such Secured Party from the Borrower or any Guarantor
in respect of such Obligations, and do not permit such purchaser to take steps
looking to payment directly against the Borrower, any Guarantor, the Collateral
Agent or the Collateral.
3.4. Independent Actions. Each Secured Party agrees with the other
Secured Parties and the Collateral Agent that (i) such Secured Party will not
take any action whatsoever to enforce any term or provision of any Collateral
Document or otherwise to realize the benefits of the Collateral, except through
the Collateral Agent in accordance with this Agreement, and (ii) if the Majority
Secured Parties shall instruct the Collateral Agent pursuant to Section 2.9
hereof to commence an action to foreclose on the Collateral Documents or the
Collateral, such Secured Party (a) shall not thereafter commence any proceeding
of its own seeking payment of any Obligation held by such Secured Party so long
as such foreclosure action is pending, and (b) if such a proceeding shall be
pending at the time such instructions are given to the Collateral Agent, shall
promptly (but in no event later than the commencement of such foreclosure
action) cause such proceeding to be discontinued, provided that if such Secured
Party shall fail to discontinue such proceeding, the Collateral Agent is hereby
authorized and directed by such Secured Party and the other Secured Parties to
commence and maintain such foreclosure action on behalf of such other Secured
Parties (excluding such Secured Party) and any distribution of amounts required
by Section 4 hereof shall be made only to such other Secured Parties and the
Collateral Agent as provided therein and, notwithstanding anything herein or in
the Collateral Documents to the contrary, such Secured Party shall not be
entitled to share therein. Notwithstanding the foregoing, nothing contained in
this Section 3.4 shall prohibit any Secured Party from accelerating the maturity
of, or demanding payment from the Borrower, THC or any other Guarantor on, any
of the Obligations owing to such Secured Party or from filing a proof of claim
in any Bankruptcy Proceeding if necessary to preserve such Secured Party's
rights.
3.5 Amendment of Collateral Documents; Release of Collateral. The
Collateral Agent shall not, without first obtaining the consent of the Required
Secured Parties (i) agree or consent to any amendment, modification or
supplement of, or any waiver with respect to, any provision of any Collateral
Document, (ii) terminate any of the Collateral Documents or execute any release
or permit any substitution of any Collateral, except as otherwise provided in
the Collateral Documents, or (iii) settle any claim or action asserted or
brought by the Borrower or any Guarantor in respect of any Collateral.
SECTION 4. Application of Collateral.
11
4.1 Order of Payments. The Collateral Agent shall promptly distribute
any and all amounts actually received by the Collateral Agent in respect of the
Collateral in the order set forth below (to the extent permitted by applicable
law):
(a) First, to the payment of all costs and expenses incurred by the
Collateral Agent (in its capacity as such hereunder or under any other
Collateral Document) or by the Administrative Agent (in its capacity as
such in the Credit Agreement or under any related loan documents) in
connection with any collection or sale or otherwise in connection with
this Agreement or such other Transaction Document of any of the
Obligations, including all court costs and the fees and expenses of its
agents and legal counsel, the repayment of all advances made by the
Collateral Agent or the Administrative Agent hereunder or under any
other Transaction Document on behalf of any Grantor and any other costs
or expenses incurred in connection with the exercise of any right or
remedy hereunder or under any other Transaction Document;
(b) The remainder of such proceeds, if any, after the application
of proceeds in accordance with the preceding clause (a), to the payment
to the Secured Parties of all costs, expenses, liabilities and advances
made or incurred by each of them under the Transaction Documents to
enforce its rights to collect payments for the Obligations owed to it,
including all court costs and the fees and expenses of its agents and
legal counsel, all advances made by a Secured Party under any other
Transaction Document on behalf of any Grantor and any other costs or
expenses incurred in connection with the exercise of any right or
remedy under any other Transaction Document, and if such proceeds are
insufficient to repay such amounts in full, ratably in proportion to
the amount of costs, expenses, liabilities and advances made or
incurred by each such Secured Party;
(c) The remainder of such proceeds, if any, after the application
of proceeds in accordance with the preceding clauses (a) and (b), to
the payment to each of the Secured Parties of the principal of, and
make-whole premium or other premium (if any) and interest on, and any
other amounts payable in respect of, all other Obligations (whether or
not then due, subject to the immediately following paragraph) held by
the Secured Parties and, if such proceeds are insufficient to repay
such principal, premium, interest and other amounts in full, ratably
(without preference or priority of principal over interest or interest
over principal or otherwise) in proportion to such principal, premium,
interest and other amounts owing to each such Secured Party.
Notwithstanding the foregoing, in the event that any Secured LC or
Secured Hedging Agreement remains outstanding at such time as the
Collateral Agent distributes proceeds of Collateral hereunder, no
proceeds shall be paid by the Collateral Agent to the Issuing Bank on
account of such Secured LC or to the counterparty Lender on account of
such Secured Hedging Agreement (such Issuing Bank and Lender hereafter
referred to as the "Issuer"), and such proceeds shall be held in trust
by the Collateral Agent for the benefit of such Issuer until and unless
the Collateral Agent receives written notice from such Issuer that
either (i) such Secured LC or Secured Hedging Agreement has expired
without any payments made thereunder, and all fees and other amounts
payable by the Borrower or any of its Subsidiaries in respect of such
Secured LC or Secured Hedging Agreement have been paid in full, or (ii)
(A) payments were made under such Secured LC or Secured Hedging
Agreement, or (B) no payments were made under such Secured LC or
Secured Hedging Agreement prior to its expiration but the Issuer is
owed fees or other amounts thereunder from the Borrower or any of its
Subsidiaries, in each case together with a statement of the aggregate
amount of such payments and any fees and otherwise amounts due from the
Borrower or any of its Subsidiaries to such Issuer in respect of such
Secured LC or Secured Hedging Agreement, as applicable. Each such
Issuer hereby agrees to provide such written notice to the Collateral
Agent as soon as practicable following the occurrence of any event set
forth in the preceding sentence. Nothing contained in this paragraph
shall delay, prevent or restrict any payment of proceeds to an Issuer
in respect of payments made by such Issuer pursuant to any Secured LC
or Secured Hedging Agreement that have not been reimbursed by or on
behalf of the Borrower or any of its Subsidiaries, as the case may be.
12
If the Collateral Agent receives written notice pursuant to clause
(i) of the preceding paragraph, the Collateral Agent shall pay all
amounts otherwise allocable to such Issuer to the other Secured Parties
for the Obligations owing to each such other Secured Party, to the
extent that they were not previously repaid in full and, if such
amounts are insufficient to repay in full, ratably (without preference
or priority of principal over interest or interest over principal or
otherwise) in proportion to such Obligations owing to each such other
Secured Party. If the Collateral Agent receives written notice pursuant
to clause (ii) of the preceding paragraph, the Collateral Agent shall
pay the Issuer giving such written notice the amounts owed to the
Issuer by the Borrower or any of its Subsidiaries, up to the amount
allocated to the Issuer pursuant to the first paragraph of this clause
(c), and the remaining proceeds, if any, shall be paid to the other
Secured Parties in the manner described in the immediately preceding
sentence.
(d) The remainder of such proceeds, if any, after the application
of proceeds in accordance with the preceding clauses (a), (b) and (c),
and payment in full of all Obligations, to the payment to the Grantors
and their respective successors or assigns, or otherwise as a court of
competent jurisdiction may direct, in each case as provided in the
Collateral Documents.
4.2 Payments to Secured Parties. Payments by the Collateral Agent to a
Secured Party under this Section 4 shall be made to one or more accounts of such
Secured Party as such Secured Party shall have notified the Collateral Agent in
writing.
SECTION 5. Miscellaneous.
5.1 Successors and Assigns. This Agreement is solely for the benefit of
the Collateral Agent and the Secured Parties and their respective successors and
assigns, and neither the Borrower, any Guarantor, their respective successors
and assigns nor any other Person shall have any right, benefit, priority or
interest under, or because of the existence of, this Agreement.
5.2 Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of New York.
5.3 Jurisdiction, Consent to Service of Process.
(a) Each party hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the State and
Federal courts located in the State of New York, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State court or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law. Nothing in this Agreement shall affect any
right that the Collateral Agent or any Secured Party may otherwise have to bring
any action or proceeding relating to other Transaction Documents against the
Borrower, the Guarantors or their respective properties in any jurisdiction in
which it may lawfully do so.
(b) Each party hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (a) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 5.8 hereof. Nothing in
this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
13
5.5. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
5.6 Termination of Agreement. This Agreement shall terminate and the
Collateral Agent shall be fully released and discharged from all obligations and
liability hereunder when all of the outstanding Obligations have been repaid in
full, all commitments on the part of the Secured Parties to lend or advance
funds to, or issue LCs for the benefit of, any of the Grantors under the
Transaction Documents have expired, and all LCs and Hedging Agreements have
expired. This Agreement may also be terminated in writing by or with the consent
of the Collateral Agent and the Required Secured Parties.
5.7 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart. Delivery of an executed counterpart of this Agreement by
telecopy shall be as effective as delivery of a manually executed counterpart.
5.8 Notices, etc. All notices, requests and demands will be given to or
made upon the respective parties at their respective "Address for Notices"
specified on the signature pages hereof or, as to any party, at such other
address as may be designated by it for that purpose in a written notice to all
other parties. Written notice may be delivered by hand, sent by mail (return
receipt requested) or a nationally recognized overnight courier service, or by
telecopier, and unless specified herein notice shall be deemed effective when
personally delivered if delivered by hand, when sent if sent by telecopier and
upon receipt if sent by mail or by an overnight courier.
5.9 Amendments, etc. Any provision of this Agreement may be amended,
modified or waived, but only in writing by or with the consent of the Required
Secured Parties, except that no provision hereof affecting the rights or duties
of the Collateral Agent may be amended, modified or waived without the prior
written consent of the Collateral Agent.
5.10 Inconsistencies. In the event that there is any inconsistency
between the provisions of this Agreement and any provisions of the Collateral
Documents, the provisions of this Agreement shall control as among the Secured
Parties and the Collateral Agent.
5.11 Restatement. This Agreement amends and restates in its entirety,
and supersedes and replaces, a Collateral Agency and Intercreditor Agreement
dated as of April 27, 2001 among the parties hereto.
[Remainder of page intentionally left blank]
14
IN WITNESS WHEREOF, the parties hereto have caused this
Collateral Agency and Intercreditor Agreement to be duly executed on the date
first above written.
JPMORGAN CHASE BANK
(formerly known as The Chase Manhattan Bank)
as a Lender, an Issuing Bank and the Lender under the Chase
Working Capital Facility, and as Administrative Agent and
Collateral Agent
By: /s/ XXXXXX X. XXXX, XX.
-----------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Vice President
Address for Notices:
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxx
Telecopy: (000) 000-0000
BANK OF AMERICA, N.A., as a Lender and as an Issuing Bank
By: /s/ XXXXXXX X. XXXX
-------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
Address for Notices:
000 Xxxxxxx Xxx., 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxx
Telecopy: (000) 000-0000
15
FLEET NATIONAL BANK
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Address for Notices:
Xxx Xxxxxxx Xxxxxx
X. X. Xxx 0000
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
HSBC BANK, USA, as a Lender and as an Issuing Bank
By: /s/ XXXXXX X. X'XXXXX
---------------------
Name: Xxxxxx X. X'Xxxxx
Title: SVP/Commercial Executive
Address for Notices:
000 X. Xxxxxx Xx.
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx XxXxxxxx
Telecopy: (000) 000-0000
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ XXXX X. XXXXXX
------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice Presdient
Address for Notices:
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx
Telecopy: (000) 000-0000
00
XXX XXXX XX XXXX XXXXXX, individually and as a
Lender
By: /s/ XXXXX X. XXXXX
------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Address for Notices:
Scotia Capital
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Telecopy: (000) 000-0000
CITIBANK, N.A. (successor to European American Bank)
By: /s/ XXXX XXXXXXX
----------------
Name: Xxxx Xxxxxxx
Title: Asst. Vice President
Address for Notices:
000 Xxxxx Xxx., 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
BANCA NAZIONALE DEL LAVORO S.p.A., New York
Branch
By: /s/ XXXXXXXX X. XXXX
--------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
By: /s/ XXXXXXXX XXXXXXXXX
----------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: First Vice President
Address for Notices:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxx
Telecopy: (000) 000-0000
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXX
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
17
By: /s/ XXXXXX X. XXXXXXXX
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Signatory
Address for Notices:
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
ALLSTATE INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXXX
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
By: /s/ XXXXXX X. XXXXXXXX
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Signatory
Address for Notices:
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
PACIFIC LIFE INSURANCE COMPANY (successor to
Pacific Mutual Life Insurance Company)
By: /s/ XXXXX X. XXXXX
------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
By: /s/ XXXXX X. XXXX
------------------
Name: Xxxxx X. Xxxx
Title: Assistant Secretary
Address for Notices:
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
Telecopy: (000) 000-0000
18
ACKNOWLEDGEMENT AND CROSS-DEFAULT AGREEMENT
Each of the undersigned is a Grantor referred to in the foregoing
Amended and Restated Collateral Agency and Intercreditor Agreement. Capitalized
terms used herein shall have the meanings given to such terms in the Collateral
Agency and Intercreditor Agreement.
Each of the undersigned Grantors hereby (a) acknowledges receipt of a
copy of the Collateral Agency and Intercreditor Agreement, (b) consents to the
appointment of XX Xxxxxx Xxxxx Bank as the Collateral Agent thereunder, (c)
acknowledges that it is not a beneficiary of, and shall not be entitled to
enforce any of the rights, privileges or obligations under, the Collateral
Agency and Intercreditor Agreement, and (d) agrees with each of the Secured
Parties that, notwithstanding anything to the contrary in the Transaction
Documents, the occurrence of an Event of Default under the Credit Agreement or
the Note Agreement, or under one of the other Transaction Documents evidencing
indebtedness or obligations in excess of $3,500,000, shall constitute an Event
of Default under each of the Transaction Documents.
IN WITNESS WHEREOF, each of the undersigned has executed and delivered
this Acknowledgement and Cross-Default Agreement as of the 23rd day of April,
2002.
BUFFALO CHINA, INC. DELCO INTERNATIONAL, LTD.
By: /s/ XXXXX X. XXXXX By: /s/ XXXX X. XXXXX
------------------------------ ----------------------------------
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Vice President - Finance Vice President - Finance
ENCORE PROMOTIONS, INC. SAKURA, INC.
By: /s/ XXXXX X. XXXXX By: /s/ XXXX X. XXXXX
------------------------------ ----------------------------------
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Vice President - Finance Vice President - Finance
THC SYSTEMS, INC. ONEIDA LTD.
By: /s/ XXXXX X. XXXXX By: /s/ XXXX X. XXXXX
------------------------------ ----------------------------------
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Vice President - Finance Chief Financial Officer
KENWOOD SILVER COMPANY, INC.
By: /s/ XXXXX X. XXXXX
------------------
Xxxxx X. Xxxxx
Vice President-Finance
19
