Exhibit 10.3
EXECUTION VERSION
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AMENDED AND RESTATED PLEDGE SECURITY AGREEMENT
This AMENDED AND RESTATED PLEDGE SECURITY AGREEMENT, dated as of
August 9, 2004 (as this agreement may be further amended, amended and restated,
supplemented or otherwise modified, renewed or replaced from time to time, this
"Agreement"), is by and among ONEIDA LTD., a New York corporation (the
"Borrower"), the parties listed on Schedule I hereto (and together with each
direct or indirect domestic subsidiary of the Borrower which executes an
Instrument of Assumption and Joinder pursuant to Section 5.12 of the Credit
Agreement (as defined herein), each a "Guarantor" and together the "Guarantors";
the Borrower and the Guarantors are referred to herein individually as a
"Pledgor" and collectively as the "Pledgors") and JPMORGAN CHASE BANK ("JPMorgan
Chase") as collateral agent (in such capacity, the "Collateral Agent") for the
Secured Parties.
R E C I T A L S
A. WHEREAS, the Borrower, JPMorgan Chase, as administrative agent, and
the lenders from time to time party thereto (the "Existing Lenders") are parties
to that certain Amended and Restated Credit Agreement dated as of April 27, 2001
(as the same has been amended, supplemented, replaced or otherwise modified, the
"Existing Credit Agreement") pursuant to which the Existing Lenders made
revolving loans and a term loan to the Borrower;
B. WHEREAS, THC, as borrower, the Borrower, as guarantor, and Allstate
Insurance Company (together with its permitted assignees, "Allstate"), Allstate
Life Insurance Company (together with its permitted assignees, "Allstate Life")
and Pacific Life Insurance Company (together with its permitted assignees and
together with Allstate and Allstate Life, the "Existing Noteholders") are
parties to the 2001 Amended and Restated Note Purchase Agreement dated as of May
1, 2001 (as the same has been amended, supplemented, replaced or otherwise
modified, the "Existing Note Agreement") pursuant to which the Existing
Noteholders purchased certain notes (the "Existing Notes") with a maturity date
of May 31, 2005;
C. WHEREAS, the Borrower's obligations under the Existing Credit
Agreement and the Loan Documents (as defined in the Existing Credit Agreement)
(the "Existing Credit Agreement Obligations") are guaranteed by each of the
Borrower's direct and indirect domestic subsidiaries (the "Existing Guarantors")
pursuant to (i) that certain Amended and Restated Guarantee Agreement dated as
of April 27, 2001 made by Buffalo China, Encore, THC, Delco and Sakura for the
benefit of the Existing Lenders, JPMorgan Chase, as administrative agent under
the Existing Credit Agreement (the "Existing Administrative Agent"), and the
Existing Collateral Agent (as defined below), (ii) that certain Subsidiary
Guarantee Agreement dated as of April 23, 2002 made by Kenwood for the benefit
of the Existing Lenders, the Existing Administrative Agent and the Existing
Collateral Agent, (iii) that certain Subsidiary Guarantee Agreement dated as of
July 25, 2003 made by Silversmiths for the benefit of the Existing Lenders, the
Existing Administrative Agent and the Existing Collateral Agent and (iv) that
certain Subsidiary Guarantee Agreement dated as of July 25, 2003 made by Food
Service for the
benefit of the Existing Lenders, the Existing Administrative Agent and the
Existing Collateral Agent (the agreements described in clauses (i) through (iv)
above, as the same have been amended, supplemented or otherwise modified,
collectively, the "Existing Loan Guarantee Agreements");
D. WHEREAS, THC's obligations under the Existing Note Agreement are
guaranteed (A) by the Borrower pursuant to the terms of the Existing Note
Agreement (THC's and the Borrower's obligations collectively referred to as the
"Existing Note Agreement Obligations") and (B) by each of the Existing
Guarantors pursuant to (i) that certain Amended and Restated Subsidiary
Guarantee Agreement dated April 27, 2001 for the benefit of the Existing
Noteholders and executed by Buffalo China, (ii) that certain Amended and
Restated Subsidiary Guarantee Agreement dated April 27, 2001 for the benefit of
the Existing Noteholders and executed by Encore, (iii) that certain Amended and
Restated Subsidiary Guarantee Agreement dated April 27, 2001 for the benefit of
the Existing Noteholders and executed by Delco, (iv) that certain Amended and
Restated Subsidiary Guarantee Agreement dated April 27, 2001 for the benefit of
the Existing Noteholders and executed by THC, (v) that certain Amended and
Restated Subsidiary Guarantee Agreement dated April 27, 2001 for the benefit of
the Existing Noteholders and executed by Sakura, (vi) that certain Subsidiary
Guarantee Agreement dated April 23, 2002 for the benefit of the Existing
Noteholders and executed by Kenwood, (vii) that certain Subsidiary Guarantee
Agreement dated July 25, 2003 for the benefit of the Existing Noteholders and
executed by Silversmiths, and (viii) that certain Subsidiary Guarantee Agreement
dated July 25, 2003 for the benefit of the Existing Noteholders and executed by
Food Service (the agreements described in clauses (i) through (viii) above, as
the same have been amended, supplemented or otherwise modified, collectively,
the "Existing Note Guarantee Agreements");
E. WHEREAS, pursuant to that certain Amended and Restated Collateral
Agency and Intercreditor Agreement, dated as of April 23, 2002 by and among (i)
the Existing Lenders, (ii) the Existing Noteholders, (iii) JPMorgan Chase, as
administrative agent, collateral agent and individually, as a working capital
lender, and (iv) certain other secured parties (as the same has been amended,
supplemented, replaced or otherwise modified, the "Existing Intercreditor
Agreement"), each of the parties to the Existing Intercreditor Agreement, among
other things, appointed JPMorgan Chase as collateral agent (the "Existing
Collateral Agent") and authorized the Existing Collateral Agent to, among other
things, execute, deliver and perform as their collateral agent with respect to
the security documents entered into in connection with the Existing Credit
Agreement;
F. WHEREAS, the Existing Credit Agreement Obligations, the Existing
Note Agreement Obligations, certain letter of credit obligations of the Borrower
(the "Existing L/C Obligations)" and the Existing Guarantors' obligations under
the Existing Loan Guarantee Agreements and the Existing Note Guarantee
Agreements (collectively, with the Existing Credit Agreement Obligations, the
Existing Note Agreement Obligations and the Existing L/C Obligations, the
"Existing Secured Obligations") are secured by liens on substantially all of the
real and personal property of the Borrower and each of the Guarantors
(collectively, the "Existing Collateral") pursuant to, among other security
documents, (i) that certain Pledge Agreement dated as of April 27, 2001 by and
among the Borrower, Buffalo China, THC, Encore, Delco and Sakura as pledgors and
the Existing Collateral Agent, (ii) that certain Amendment No.
1 to Pledge Agreement dated as of April 23, 2002 by and among the Borrower,
Buffalo China, THC, Encore, Delco and Sakura as pledgors and the Existing
Collateral Agent, (iii) that certain Amendment No. 2 to Pledge Agreement dated
as of November 20, 2003 by and among the Borrower, Buffalo China, THC, Encore,
Delco and Sakura as pledgors and the Existing Collateral Agent, (iv) that
certain Pledge Agreement dated as of April 23, 2002 by and among Kenwood as
pledgor and the Existing Collateral Agent, (v) that certain Pledge Agreement
dated July 25, 2003 by and among Silversmiths as pledgor and the Existing
Collateral Agent, (vi) that certain Pledge Agreement dated as of July 25, 2003
by and among Food Service as pledgor and the Existing Collateral Agent and
(vii) that certain Amendment No. 3 to the Pledge Agreement dated as of June 17,
2004 by and among the Borrower, Buffalo China, THC, Encore, Delco and Sakura as
pledgors and the Existing Collateral Agent (as the same have been amended,
supplemented or otherwise modified, collectively, the "Existing Pledge
Agreements");
G. WHEREAS, the Existing Secured Obligations and certain other
indebtedness incurred by the Borrower (collectively, the "Existing Obligations")
are being restructured pursuant to a Second Amended and Restated Credit
Agreement dated as of the date hereof among the Borrower, the Collateral Agent,
JPMorgan Chase as administrative agent (in such capacity, the "Administrative
Agent"), the lenders party thereto and the Existing Standby L/C Issuers (as the
same may be amended, amended and restated, supplemented or otherwise modified,
renewed or replaced, the "Credit Agreement"); and
H. WHEREAS, it is a condition precedent to the restructuring of the
Existing Obligations as contemplated under the Credit Agreement that, among
other things: (i) a Second Amended and Restated Collateral Agency and
Intercreditor Agreement dated as of the date hereof be entered into by and among
the Borrower, the Guarantors, the Administrative Agent, the Collateral Agent,
each of the lenders from time to time party to the Credit Agreement, the
Existing Standby L/C Issuers and the issuer of the Trade Letters of Credit in
order to, among other things, appoint JPMorgan Chase as Collateral Agent and
authorize the Collateral Agent to, among other things, execute, deliver and
perform as their collateral agent with respect to the security documents; (ii)
the Borrower and each of the Guarantors enter into an Amended and Restated
Security Agreement dated as of the date hereof in favor of the Collateral Agent
in order to grant a security interest in favor of the Collateral Agent on behalf
of the Secured Parties to secure the prompt and complete payment and performance
when due of the Obligations (as defined therein) (as such agreement may be
amended, amended and restated, supplemented or otherwise modified, renewed or
replaced, the "Amended and Restated Security Agreement"); (iii) the Pledgors
acknowledge and confirm that the liens granted pursuant to the Existing Pledge
Security Agreements remain in effect; and (iv) the Borrower and each of the
Pledgors execute this Amended and Restated Pledge Security Agreement in order to
grant a security interest in favor of the Collateral Agent on behalf of the
Secured Parties to secure the Obligations as more fully forth herein.
NOW, THEREFORE, in order to (i) secure the prompt and complete
payment and performance when due of the Obligations (as defined in the Amended
and Restated Security Agreement) for the benefit of the Collateral Agent on
behalf of the Secured Parties and for good and valuable consideration, the
receipt of which is hereby acknowledged, (ii) confirm and acknowledge the
Collateral Agent's security interests, for the ratable benefit of the Secured
Parties, in all of the collateral secured under the Existing Pledge Security
Agreements, and (iii)
grant, pledge, hypothecate and transfer to the Collateral Agent, for the ratable
benefit of the Secured Parties, a security interest in all of the Pledgors'
right, title and interest in, to and under the following, whether presently
existing or hereafter arising or acquired, each of the Pledgors and the
Collateral Agent, on behalf of itself and each Secured Party (and each of their
respective successors or assigns), hereby agree as follows:
SECTION 1. Definition of Certain Terms Used Herein. Except as
specifically defined in this Amended and Restated Pledge Security Agreement, all
capitalized terms shall have the meanings given to those terms in the Amended
and Restated Security Agreement.
SECTION 2. Pledge. As security for the payment or performance, as
the case may be, in full of the Obligations, each Pledgor hereby (i) confirms
and acknowledges the Collateral Agent's continuing security interests, for the
ratable benefit of the Secured Parties, in all of the collateral secured under
the Existing Pledge Security Agreements and (ii) bargains, sells, conveys,
assigns, sets over, mortgages, pledges, hypothecates and transfers to the
Collateral Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, and hereby grants to the Collateral Agent, its successors and
assigns, for the ratable benefit of the Secured Parties, a security interest in
all of such Pledgor's right, title and interest in, to and under (a) any shares
of capital stock, partnership interests, membership interests in a limited
liability company, beneficial interests in a trust or other equity ownership
interests in a Person (collectively, the "Equity Interests") owned by such
Pledgor which are listed on Schedule II hereto and any Equity Interests obtained
in the future by such Pledgor and the certificates representing all such Equity
Interests (the "Pledged Equity Interests"); provided that (i) Equity Interests
having a Fair Market Value of less than $7,500 per issuer are excluded from the
security interest created by this Agreement up to a maximum of $50,000 in the
aggregate, (ii) Pledged Equity Interests of a Subsidiary of a Pledgor shall be
limited, in the case of foreign subsidiaries, to the pledge of 65% of the issued
and outstanding common stock of such foreign subsidiary notwithstanding the
delivery by any Pledgor to the Collateral Agent of a stock certificate
representing in excess of such percentage ownership; (iii) the Equity Interests
set forth on Schedule III hereto are excluded from the security interest created
by this Agreement, and (iv) Equity Interests received by a Pledgor pursuant to
any distributions made to such Pledgor in respect of any claims held by such
Pledgor against any Person in connection with any process of such person under
the Bankruptcy Code, which Equity Interests have been held by such Pledgor for
less than thirty (30) days from the date of receipt of such Equity Interests by
such Pledgor are excluded from the Security Interest created by this Agreement;
(b)(i) the debt securities owned by it which are listed opposite the name of
such Pledgor on Schedule II hereto, (ii) any debt securities issued to such
Pledgor; provided that (1) debt securities having a Fair Market Value of less
than $7,500 per issuer or obligor are excluded from the security interest
created by this Agreement up to a maximum of $50,000 in the aggregate and (2)
debt securities received by a Pledgor pursuant to any distributions made to such
Pledgor in respect of any claims held by such Pledgor against any Person in
connection with any process of such person under the Bankruptcy Code, which debt
securities have been held by such Pledgor for less than thirty (30) days from
the date of receipt of such debt securities are excluded from the security
interest created by this Agreement , and (iii) the promissory notes and any
other instruments evidencing such debt securities; (c) all other property that
may be delivered to and held by the Collateral Agent pursuant to the terms
hereof; (d) subject to Section 7 hereof, all payments of principal or interest,
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed, in respect of,
in exchange for or upon the conversion of the securities referred to in clauses
(a) and (b) above; (e) subject to Section 7 hereof, all rights and privileges of
such Pledgor with respect to the securities and other property referred to in
clauses (a), (b), (c) and (d) above; and (f) all proceeds of any of the
foregoing (the items referred to in clauses (a) through (f) above being
collectively referred to as the "Pledged Collateral"). Without limiting the
foregoing, the Collateral Agent is hereby authorized to file one or more
financing statements, continuation statements or other filings or documents for
the purpose of perfecting, confirming, continuing, enforcing or protecting the
Security Interest granted by each Pledgor, without the signature of any
Pledgors, and naming any Pledgor or the Pledgors as debtors and the Collateral
Agent as secured party.
SECTION 3. No Assumption of Liability. The Security Interest is
granted as security only and shall not subject the Collateral Agent or any other
Secured Party to, or in any way alter or modify, any obligation or liability of
any Pledgor with respect to or arising out of the Pledged Collateral.
SECTION 4. Delivery of the Pledged Collateral. I. Upon delivery to
the Collateral Agent, (a) any stock certificates, notes or other securities now
or hereafter included in the Collateral (the "Pledged Securities") shall be
accompanied by stock powers duly executed in blank or other instruments of
transfer reasonably satisfactory to the Collateral Agent and by such other
instruments and documents as the Collateral Agent may reasonably request in
order to allow the Collateral Agent, only upon the occurrence and continuance of
an Event of Default, to exercise its rights and remedies under this Agreement
and (b) all other property comprising part of the Collateral shall be
accompanied by proper instruments of assignment duly executed by the applicable
Pledgor and such other instruments or documents as the Collateral Agent may
reasonably request. Each delivery of Pledged Securities shall be accompanied by
a schedule describing the securities theretofore and then being pledged
hereunder, which schedule shall be attached hereto as Schedule II and made a
part hereof. Each schedule so delivered shall supersede any prior schedules so
delivered. Schedule II may be amended from time to time by the addition of the
Pledged Collateral subsequently created or acquired by execution of a Supplement
in substantially the form of Exhibit A attached hereto.
(b) Each Pledgor will cause any indebtedness for borrowed money
owed to the Pledgor by any Person to be evidenced by a duly executed promissory
note that is pledged and delivered to the Collateral Agent pursuant to the terms
thereof.
SECTION 5. Representations, Warranties And Covenants. Each Pledgor
hereby represents, warrants and covenants, as to itself and the Pledged
Collateral pledged by it hereunder, to the Collateral Agent that:
(a) the Pledged Equity Interests represent that percentage as set
forth on Schedule II of the issued and outstanding shares of each class of the
Equity Interests of the issuer with respect thereto;
(b) except for the security interest granted hereunder, such
Pledgor (i) is and will at all times continue to be the direct owner,
beneficially and of record, of the Pledged Collateral indicated on Schedule II,
(ii) holds the same free and clear of all Liens, (iii) will make no assignment,
pledge, hypothecation or transfer of, or create or permit to exist any security
interest
in or other Lien on, the Pledged Collateral other than pursuant hereto, and (iv)
subject to Section 6, will cause any and all Pledged Collateral to be forthwith
deposited with the Collateral Agent and pledged or assigned hereunder;
(c) such Pledgor (i) has the power and authority to pledge the
Pledged Collateral in the manner hereby done or contemplated and (ii) will
defend its title or interest thereto or therein against any and all Liens,
however arising, of all Persons whomsoever;
(d) no consent of any other Person (including stockholders or
creditors of any Pledgor) and no consent or approval of any governmental
authority or any securities exchange was or is necessary to the validity of the
pledge effected hereby;
(e) by virtue of the execution and delivery by the Pledgors of this
Agreement, when the Pledged Securities, certificates or other documents
representing or evidencing the Pledged Collateral are delivered to the
Collateral Agent in accordance with this Agreement, the Collateral Agent will
have a valid and perfected lien upon, and security interest in, such Pledged
Collateral as security for the payment and performance of the Obligations;
(f) the pledge effected hereby is effective to vest in the
Collateral Agent, on behalf of the Secured Parties, the rights of the Collateral
Agent in the Pledged Collateral as set forth herein;
(g) all information set forth herein relating to the Pledged
Collateral, including but not limited to the information set forth on Schedule
II hereto, is accurate and complete in all material respects as of the date
hereof; and
(h) the Pledged Equity Interests of each subsidiary of a Pledgor
have been duly authorized and validly issued and are fully paid and
non-assessable.
(i) the Pledged Equity Interests described on Schedule II hereof
constitute all of the issued and outstanding shares of stock of each of the
domestic Subsidiaries held by such Pledgor and no such Subsidiary is under any
contractual obligation to issue any additional shares of stock or other
ownership interests of any Person that is not incorporated or organized in the
United States.
(j) each Pledgor agrees that it will (i) cause each of the issuers
that are Subsidiaries of the Borrower or the Pledgors not to issue any stock or
other securities in addition to or substitution for the Pledged Securities
issued by such issuer, except to the respective Pledgor and (ii) pledge
hereunder, immediately upon its acquisition (directly or indirectly) thereof,
any and all such additional shares of stock or other securities of each issuer
of the Pledged Securities, subject to the terms hereof.
(k) the pledge of the Pledged Securities pursuant to this Agreement
does not violate Regulation T, U or X of the Federal Reserve Board or any
successor thereto as of the date hereof.
SECTION 6. Registration in Nominee Name; Denominations. The
Collateral Agent, on behalf of the Secured Parties, shall have the right (in its
sole and absolute discretion)
to hold the Pledged Securities in its own name as pledgee, the name of its
nominee (as pledgee or as sub-agent) or the name of the Pledgors, endorsed or
assigned in blank or in favor of the Collateral Agent. Each Pledgor will
promptly give to the Collateral Agent copies of any material notices or other
communications received by it with respect to Pledged Securities registered in
the name of such Pledgor. Upon the occurrence of an Event of Default, the
Collateral Agent shall at all times have the right to exchange the certificates
representing Pledged Securities for certificates of smaller or larger
denominations for any purpose consistent with this Agreement.
SECTION 7. Voting Rights; Dividends and Interest, Etc. (a) Unless
and until an Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all voting
and other consensual rights and powers inuring to an owner of Pledged
Securities or any part thereof for any purpose consistent with the
terms of this Agreement and the other Fundamental Documents; provided,
however, that such Pledgor will not be entitled to exercise any such
right if the result thereof could materially and adversely affect the
rights inuring to a holder of the Pledged Securities or the rights and
remedies of any of the Secured Parties under this Agreement or any
other Fundamental Document or the ability of the Secured Parties to
exercise the same.
(ii) Each Pledgor shall be entitled to receive and retain any and
all cash dividends, interest and principal paid on the Pledged
Collateral to the extent and only to the extent that such cash
dividends, interest and principal are permitted by, and otherwise paid
in accordance with, the terms and conditions of the Fundamental
Documents and applicable laws. All noncash dividends, interest and
principal, and all dividends, interest and principal paid or payable in
cash or otherwise in connection with a partial or total liquidation or
dissolution, return of capital, capital surplus or paid-in surplus, and
all other distributions (other than distributions referred to in the
preceding sentence) made on or in respect of the Pledged Collateral,
whether paid or payable in cash or otherwise, whether resulting from a
subdivision, combination or reclassification of the outstanding capital
stock of the issuer of any Pledged Securities or received in exchange
for Pledged Collateral or any part thereof, or in redemption thereof,
or as a result of any merger, consolidation, acquisition or other
exchange of assets to which such issuer may be a party or otherwise,
shall be and become part of the Pledged Collateral and, if received by
any Pledgor, shall not be commingled by such Pledgor with any of its
other funds or property but shall be held separate and apart therefrom,
shall be held in trust for the benefit of the Collateral Agent and
shall be forthwith delivered to the Collateral Agent in the same form
as so received (with any necessary endorsement).
(iii) The Collateral Agent shall execute and deliver to each
Pledgor, or cause to be executed and delivered to each Pledgor, all
such proxies, powers of attorney and other instruments as such Pledgor
may reasonably request for the purpose of enabling such Pledgor to
exercise the voting and/or consensual rights and powers it is entitled
to exercise pursuant to subparagraph (i) above and to receive the cash
dividends it is entitled to receive pursuant to subparagraph (ii)
above.
(b) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to dividends, interest or principal that such
Pledgor is authorized to receive pursuant to paragraph (a)(ii) above shall
cease, and all such rights shall thereupon become vested in the Collateral
Agent, which shall have the sole and exclusive right and authority to receive
and retain such dividends, interest or principal. All dividends, interest or
principal received by the Pledgor contrary to the provisions of this Section 7
shall be held in trust for the benefit of the Collateral Agent, shall be
segregated from other property or funds of such Pledgor and shall be forthwith
delivered to the Collateral Agent upon demand in the same form as so received
(with any necessary endorsement). Any and all money and other property paid over
to or received by the Collateral Agent pursuant to the provisions of this
paragraph (b) shall be retained by the Collateral Agent in an account to be
established by the Collateral Agent upon receipt of such money or other property
and shall be applied in accordance with the provisions of the Amended and
Restated Intercreditor Agreement. After all Events of Default have been cured or
waived, the Pledgor shall thereafter be entitled to retain all cash dividends
that such Pledgor would otherwise be permitted to retain pursuant to the terms
of paragraph (a)(ii) above.
(c) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to exercise the voting and consensual rights
and powers it is entitled to exercise pursuant to paragraph (a)(i) of this
Section 7, and the obligations of the Collateral Agent under paragraph (a)(iii)
of this Section 7, shall cease upon the giving of notice by the Collateral Agent
to the Pledgor, and all such rights shall thereupon become vested in the
Collateral Agent, which shall have the sole and exclusive right and authority to
exercise such voting and consensual rights and powers, provided that the
Collateral Agent shall have the right, but not the obligation, from time to time
following and during the continuance of an Event of Default to permit the
Pledgors to exercise such rights. After all Events of Default have been cured or
waived, each Pledgor will have the right to exercise the voting and consensual
rights and powers that it would otherwise be entitled to exercise pursuant to
the terms of paragraph (a)(i) above.
SECTION 8. Remedies Upon Default. Upon the occurrence and during
the continuance of an Event of Default, the Collateral Agent, on behalf of the
Secured Parties, may exercise all the rights and remedies granted under this
Agreement, including, without limitation, the right to sell the Pledged
Collateral, or any part thereof, at public or private sale or at any broker's
board, on any securities exchange or in the over-the-counter market, for cash,
upon credit or for future delivery as the Collateral Agent shall deem
appropriate subject to the terms hereof or as otherwise provided in the UCC. The
Collateral Agent shall be authorized at any such sale (if it deems it advisable
to do so) to restrict to the full extent permitted by Applicable Law the
prospective bidders or purchasers to Persons who will represent and agree that
they are purchasing the Pledged Collateral for their own account for investment
and not with a view to the distribution or sale thereof, and upon consummation
of any such sale the Collateral Agent shall have the right to assign, transfer
and deliver to the purchaser or purchasers thereof the Pledged Collateral so
sold. Each such purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of any Pledgor, and, to the
extent permitted by applicable law, the Pledgors hereby waive all rights of
redemption, stay, valuation and appraisal any Pledgor now has or may at any time
in the future have under any rule of law or statute now existing or hereafter
enacted.
The Collateral Agent shall give a Pledgor ten (10) business days'
prior written notice of the Collateral Agent's intention to make any sale of
such Pledgor's Collateral. Such notice, in the case of a public sale, shall
state the time and place for such sale and, in the case of a sale at a broker's
board or on a securities exchange, shall state the board or exchange at which
such sale is to be made and the day on which the Pledged Collateral, or portion
thereof, will first be offered for sale at such board or exchange. Any such
public sale shall be held at such time or times within ordinary business hours
and at such place or places as the Collateral Agent may fix and state in the
notice of such sale. At any such sale, the Pledged Collateral, or portion
thereof, to be sold may be sold in one lot as an entirety or in separate
parcels, as the Collateral Agent may (in its sole and absolute discretion)
determine. The Collateral Agent shall not be obligated to make any sale of any
Pledged Collateral if it shall determine not to do so, regardless of the fact
that notice of sale of such Pledged Collateral shall have been given. The
Collateral Agent may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for sale, and such sale may, without further notice,
be made at the time and place to which the same was so adjourned. In case any
sale of all or any part of the Pledged Collateral is made on credit or for
future delivery, the Pledged Collateral so sold may be retained by the
Collateral Agent until the sale price is paid in full by the purchaser or
purchasers thereof, but the Collateral Agent shall not incur any liability in
case any such purchaser or purchasers shall fail to take up and pay for the
Pledged Collateral so sold and, in case of any such failure, such Pledged
Collateral may be sold again upon like notice. At any public (or, to the extent
permitted by applicable law, private) sale made pursuant to this Section 8, any
Secured Party may bid for or purchase, free from any claim or right of whatever
kind, including any equity of redemption, of the Pledgors, any such demand,
notice, claim, right or equity being hereby expressly waived and released, the
Pledged Collateral or any part thereof offered for sale and may make payment on
account thereof by using any Obligation then due and payable to it from such
Pledgor as a credit against the purchase price, and it may, upon compliance with
the terms of sale, hold, retain and dispose of such property without further
accountability to such Pledgor therefor.
SECTION 9. Application of Proceeds of Sale. The proceeds of sale of
the Pledged Collateral sold pursuant to Section 8 hereof shall be applied by the
Collateral Agent on behalf of the Secured Parties to the payment of all
reasonable out-of-pocket costs and expenses paid or incurred by the Collateral
Agent in connection with such sale, including, without limitation, all court
costs, the reasonable fees and expenses of counsel for the Collateral Agent in
connection therewith, the reasonable fees and expenses of any financial
consultants in connection therewith and the payment of all reasonable
out-of-pocket costs and expenses paid or incurred by the Collateral Agent in
enforcing this Agreement, in realizing or protecting any Pledged Collateral and
in enforcing or collecting any Obligations or any guarantee thereof, including,
without limitation, court costs, the reasonable attorneys' fees and expenses
incurred by the Collateral Agent in connection therewith and the reasonable fees
and expenses of any financial consultants in connection therewith and then to
the indefeasible payment in full in cash of the Obligations in accordance with
the terms of the Amended and Restated Intercreditor Agreement. Any amounts
remaining after such indefeasible payment in full shall be remitted to the
appropriate Pledgor, or as a court of competent jurisdiction may otherwise
direct.
SECTION 10. Reimbursement of Collateral Agent. (a) Each Pledgor
agrees to pay upon demand by the Collateral Agent the amount of any and all
reasonable expenses,
including the reasonable fees, other charges and disbursements of its counsel
and of any experts or agents, that the Collateral Agent may incur in connection
with (i) the administration of this Agreement, (ii) the custody or preservation
of, or the sale of, collection from, or other realization upon, any of the
Pledged Collateral, (iii) the exercise or enforcement of any of the rights of
the Collateral Agent hereunder or (iv) the failure by such Pledgor to perform or
observe any of the provisions hereof.
(b) Without limitation of its indemnification obligations under the
other Fundamental Documents, each Pledgor agrees to indemnify the Collateral
Agent, the Secured Parties and their respective Indemnitees (collectively, the
"Indemnified Parties") against, and hold each such Indemnified Party harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees, other charges and disbursements, incurred by
or asserted against any such Indemnitee arising out of, in any way connected
with, or as a result of (i) the execution or delivery of this Agreement or any
other Fundamental Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations
thereunder or the consummation of the other transactions contemplated thereby or
(ii) any claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnified Party is a party thereto, provided
that such indemnity shall not, as to any Indemnified Party, be available to the
extent that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnified Party.
(c) Any amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section 10 shall remain operative and in full force and effect
regardless of the termination of this Agreement or any other Fundamental
Document, the consummation of the transactions contemplated thereby, the
repayment of any of the Obligations, the invalidity or unenforceability of any
term or provision of this Agreement or any other Fundamental Document or any
investigation made by or on behalf of the Collateral Agent or any Secured Party.
All amounts due under this Section 10 shall be payable on demand therefor.
SECTION 11. Collateral Agent Appointed Attorney-In-Fact. Each
Pledgor hereby appoints the Collateral Agent the attorney-in-fact of such
Pledgor for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instrument that the Collateral Agent may
deem necessary or advisable to accomplish the purposes hereof, which appointment
is irrevocable and coupled with an interest. Without limiting the generality of
the foregoing, the Collateral Agent shall have the right, upon the occurrence
and during the continuance of an Event of Default, with full power of
substitution either in the Collateral Agent's name or in the name of such
Pledgor, to ask for, demand, xxx for, collect, receive and give acquittance for
any and all monies due or to become due under and by virtue of any Pledged
Collateral, to endorse checks, drafts, orders and other instruments for the
payment of money payable to the Pledgor representing any interest or dividend or
other distribution payable in respect of the Pledged Collateral or any part
thereof or on account thereof and to give full discharge for the same, to
settle, compromise, prosecute or defend any action, claim or proceeding with
respect thereto, and to sell, assign, endorse, pledge, transfer and to make any
agreement respecting, or otherwise deal with, the same; provided, however, that
nothing herein
contained shall be construed as requiring or obligating the Collateral Agent to
make any commitment or to make any inquiry as to the nature or sufficiency of
any payment received by the Collateral Agent, or to present or file any claim or
notice, or to take any action with respect to the Pledged Collateral or any part
thereof or the monies due or to become due in respect thereof or any property
covered thereby. The Collateral Agent and the other Secured Parties shall be
accountable only for amounts actually received as a result of the exercise of
the powers granted to them herein, and neither they nor their shareholders,
officers, directors, employees or agents shall be responsible to any Pledgor for
any act or failure to act hereunder, except for their own gross negligence or
willful misconduct.
SECTION 12. Collateral Agent May Perform. If any Pledgor fails to
perform any agreement contained herein, upon notice to such Pledgor and to the
extent the applicable Pledgor has not remedied such failure to perform within 30
days, the Collateral Agent may itself perform, or cause performance of, such
agreement, and the reasonable expenses of the Collateral Agent incurred in
connection therewith shall be payable by the Pledgors under Section 10 hereof.
SECTION 13. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the other Secured Parties under the other Fundamental Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provisions of this Agreement or consent to any
departure by any Pledgor therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on any Pledgor in any case shall entitle such Pledgor
to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Collateral Agent and the Pledgor or Pledgors with respect to which such
waiver, amendment or modification is to apply.
SECTION 14. Securities Act, Etc. In view of the position of the
Pledgors in relation to the Pledged Securities, or because of other current or
future circumstances, a question may arise under the Securities Act of 1933, as
now or hereafter in effect, or any similar statute hereafter enacted analogous
in purpose or effect (such Act and any such similar statute as from time to time
in effect being called the "Federal Securities Laws") with respect to any
disposition of the Pledged Securities permitted hereunder. Each Pledgor
understands that compliance with the Federal Securities Laws might limit the
course of conduct of the Collateral Agent if the Collateral Agent were to
attempt to dispose of all or any part of the Pledged Securities, and might also
limit the extent to which or the manner in which any subsequent transferee of
any Pledged Securities could dispose of the same. Similarly, there may be other
legal restrictions or limitations affecting the Collateral Agent in any attempt
to dispose of all or part of the Pledged Securities under applicable Blue Sky or
other state securities laws or similar laws analogous in purpose or effect. Each
Pledgor recognizes that in light of such restrictions and limitations the
Collateral Agent may, with respect to any sale of the Pledged Securities, limit
the purchasers to those who will agree, among other things, to acquire such
Pledged Securities for their own account, for investment, and not with a view to
the distribution or resale thereof. Each Pledgor acknowledges and agrees that in
light of such restrictions and limitations, the Collateral Agent, in its sole
and absolute discretion, (a) may proceed to make such a sale whether or not a
registration statement for the purpose of registering such Pledged Securities or
part thereof shall have been filed under the Federal Securities Laws and (b) may
approach and negotiate with a single potential purchaser to effect such sale.
Each Pledgor acknowledges and agrees that any such sale might result in prices
and other terms less favorable to the seller than if such sale were a public
sale without such restrictions. In the event of any such sale, the Collateral
Agent shall incur no responsibility or liability for selling all or any part of
the Pledged Securities at a price that the Collateral Agent, in its sole and
absolute discretion, may in good xxxxx xxxx reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid or
if more than a single purchaser were approached. The provisions of this Section
14 will apply notwithstanding the existence of a public or private market upon
which the quotations or sales prices may exceed substantially the price at which
the Collateral Agent sells.
SECTION 15. Security Interest Absolute. All rights of the
Collateral Agent hereunder, the grant of a security interest in the Pledged
Collateral and all obligations of each Pledgor hereunder, shall be absolute and
unconditional irrespective of (a) any lack of validity or enforceability of the
Fundamental Documents, any agreement with respect to any of the Obligations or
any other agreement or instrument relating to any of the foregoing, (b) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Obligations, or any other amendment or waiver of or any consent to
any departure from any Fundamental Document or any other agreement or instrument
relating to any of the foregoing, (c) any exchange, release or nonperfection of
any other collateral, or any release or amendment or waiver of or consent to or
departure from any guarantee, for all or any of the Obligations or (d) any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, any Pledgor in respect of the Obligations or in respect of this
Agreement (other than the indefeasible payment in full of all the Obligations).
SECTION 16. Termination. This Agreement and the pledge and security
interest created hereby shall terminate when each of the following events shall
have occurred: (a) all the Obligations have been indefeasibly paid in full or
cash collateralized in accordance with the terms of the Credit Agreement or the
Intercreditor Agreement, (b) the Lenders have no further commitment to lend
under the Credit Agreement, (c) the L/C Exposure has been reduced to zero, and
(d) the Issuing Bank has no further obligation to issue Letters of Credit or
make payments to beneficiaries thereunder (other than those letters of credit
collateralized by Cash Equivalents equal to 105% of the L/C Exposure or
collateralized with a back-to-back letter of credit in accordance with the terms
of the Credit Agreement). This Agreement, or the security interest in any
Pledged Collateral, may also be terminated by and with the written consent of
the Collateral Agent, provided that the Collateral Agent obtains written
authorization to so consent by the Required Secured Parties (as defined in the
Amended and Restated Intercreditor Agreement), provided further that no such
written authorization shall be required from the Required Secured Parties in
order for the Collateral Agent to release any Security Interest on any
Collateral which any Pledgor is entitled to sell or otherwise dispose of,
without the consent of the Required
Lenders, pursuant to Section 6.6 of the Credit Agreement and in connection with
such sale or disposition, the Collateral Agent will take such necessary and
appropriate actions to release such Security Interest. Upon termination of this
Agreement or the security interest in any Pledged Collateral, the Collateral
Agent shall execute and deliver to the Pledgors, at the Pledgors' expense, all
appropriate documents which the Pledgors shall reasonably request to evidence
such termination. Any execution and delivery of termination statements or
documents pursuant to this Section 16 shall be without recourse to or warranty
by the Collateral Agent.
SECTION 17. Encore Dissolution. The parties hereto acknowledge and
agree that upon the dissolution of Encore Promotions, Inc., as permitted by the
terms of the Credit Agreement, such entity shall no longer be a party to this
Agreement.
SECTION 18. Notices. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and delivered by
hand or overnight courier service, mailed by certified or registered mail or
sent by telecopy, as follows:
If to the Borrower or any other Pledgor:
Oneida Ltd.
000-000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx, Chief Financial Officer
Telecopy: (000) 000-0000
With a copy to:
Oneida Ltd.
000-000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxx X. Xxxxxxxxx, General Counsel
Telecopy: (000) 000-0000
If to the Collateral Agent:
JPMorgan Chase Bank
0000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxx
Telecopy: (000) 000-0000
With a copy to:
JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Telecopy: (000) 000-0000
Any party hereto may change its address or telecopy number for notice hereunder
by notice to the other parties. All notices given in accordance with this
Section shall be deemed to have been given on the date of receipt.
SECTION 19. Further Assurances. Each Pledgor agrees to do such
further acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Collateral Agent may at any time
reasonably request in connection with the administration and enforcement of this
Agreement or with respect to the Pledged Collateral or any part thereof or in
order better to assure and confirm unto Pledged Collateral Agent its rights and
remedies hereunder.
SECTION 20. Binding Effect; Several Agreement; Assignments.
Whenever in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns of such party;
and all covenants, promises and agreements by or on behalf of any Pledgor that
are contained in this Agreement shall bind and inure to the benefit of its
successors and assigns. This Agreement shall become effective as to any Pledgor
when a counterpart hereof executed on behalf of such Pledgor shall have been
delivered to the Collateral Agent and a counterpart hereof shall have been
executed on behalf of the Collateral Agent, and thereafter shall be binding upon
such Pledgor and the Collateral Agent and their respective successors and
assigns, and shall inure to the benefit of such Pledgor, the Collateral Agent
and the other Secured Parties, and their respective successors and assigns,
except that no Pledgor shall have the right to assign its rights hereunder or
any interest herein or in the Pledged Collateral (and any such attempted
assignment shall be void), except as expressly contemplated by this Agreement or
the other Fundamental Documents. This Agreement shall be construed as a separate
agreement with respect to each Pledgor and may be amended, modified,
supplemented, waived or released with respect to any Pledgor without the
approval of any other Pledgor and without affecting the obligations of any other
Pledgor hereunder.
SECTION 21. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 22. Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York
without reference to conflict of laws principles.
SECTION 23. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute a single contract, and shall become
effective as provided in Section 19. Delivery of an executed counterpart of a
signature page to this Amended and Restated Pledge Security by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 24. Jurisdiction; Consent to Service of Process. (a) Each
Pledgor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any State or Federal court 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 the other
Fundamental Documents, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that,
to the extent permitted by applicable law, 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 shall be
conclusive and 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 other Secured Party may otherwise have to
bring any action or proceeding relating to this Agreement or the other
Fundamental Documents against any Pledgor or its properties in the courts of any
jurisdiction.
(b) Each Pledgor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that 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 or the other Fundamental
Documents in any New York State or Federal court described in subparagraph (a)
above. Each Pledgor 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 Pledgor irrevocably consents to service of process in the
manner provided for notices in Section 17 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.
SECTION 25. 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 respect of any litigation directly or indirectly arising out
of, under or in connection with this agreement or other fundamental documents.
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.
SECTION 26. Additional Pledgors. Each Pledgor acknowledges that,
pursuant to Section 5.12 of the Credit Agreement, the Borrower is required to
cause each Person which becomes a domestic Subsidiary to the Borrower or any
Pledgor to become a party to hereto as an additional Pledgor (each such Person,
an "Additional Pledgor") by executing an Instrument of Assumption and Joinder (a
"Joinder") substantially in the form of Exhibit K attached to the Credit
Agreement. Upon delivery of any such Joinder to the Administrative Agent or the
Collateral Agent, as the case may be, notice of which is hereby waived by the
Pledgors, each such Additional Pledgor shall be deemed a Pledgor hereunder and
shall be as fully a party hereto as if such Additional Pledgor were an original
signatory hereto. Each Pledgor expressly agrees that its obligations arising
hereunder shall not be discharged, diminished or otherwise affected (a) by the
addition or release of any other Pledgor hereunder, (b) any failure by the
Borrower or a Pledgor to cause any Subsidiary to become an Additional Pledgor or
a Pledgor hereunder or (c) by reason of the Collateral Agent's or any of the
Secured Parties' actions in effecting, or failure to effect, any such Joinder,
or in releasing any Pledgor hereunder, in each case without the necessity of
giving notice to or obtaining the consent of any other Pledgor. This Agreement
shall be fully effective as to any Pledgor that is or becomes a party hereto
regardless of whether any other Person becomes or fails to become or ceases to
be a Pledgor hereunder.
SECTION 27. Execution of Financing Statements. Pursuant to Section
9-402 of the Uniform Commercial Code as in effect in the State of New York, each
Pledgor authorizes the Collateral Agent to file financing statements with
respect to the Pledged Collateral owned by it without the signature of such
Pledgor in such form and in such filing offices as the Collateral Agent
reasonably determines appropriate to perfect the security interests of the
Collateral Agent under this Agreement. A carbon, photographic or other
reproduction of this Agreement shall be sufficient as a financing statement for
filing in any jurisdiction.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, each of the Pledgors has caused this
Agreement to be duly executed by its officer thereunto duly authorized as of the
date and year first above written.
ONEIDA LTD.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
BUFFALO CHINA, INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
THC SYSTEMS, INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
ENCORE PROMOTIONS, INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
DELCO INTERNATIONAL, LTD.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
SAKURA, INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
KENWOOD SILVER COMPANY, INC.
Signature Page to Amended and Restated Pledge Security Agreement
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
ONEIDA SILVERSMITHS, INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
ONEIDA FOOD SERVICE, INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
ONEIDA INTERNATIONAL, INC.
By: /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
Accepted and Agreed to:
JPMORGAN CHASE BANK
as Collateral Agent
By: /s/ XXXXX XXXXX
---------------
Name: Xxxxx Xxxxx
Title: Managing Director
Signature Page to Amended and Restated Pledge Security Agreement
The following identified Schedules to the foregoing Amended and Restated Pledge
Security Agreement are not filed with such Agreement. These Schedules will be
furnished supplementally to the Securities & Exchange Commission upon request.
Schedules:
----------
Schedule I: List of subsidiary "Guarantors"
Schedule II: List of "Equity Interests"
Schedule III: List of "Equity Interests" excluded from the security interest
EXHIBIT A
---------
FORM OF SUPPLEMENT
SUPPLEMENT NO. __ TO THE AMENDED AND RESTATED
PLEDGE SECURITY
AGREEMENT DATED AS OF ______, 2004
WHEREAS, pursuant to that certain Amended and Restated Pledge Security
Agreement, dated as of August 9, 2004 (as the same has been, or may hereafter
be, amended or supplemented from time to time, the "Amended and Restated Pledge
Security Agreement"; capitalized terms used herein without definition have the
meanings given to them in the Amended and Restated Pledge Security Agreement),
made by Oneida Ltd. (the "Borrower"), Buffalo China, Inc. ("Buffalo China"), THC
Systems, Inc. ("THC"), Encore Promotions, Inc. ("Encore"), Delco International,
Ltd. ("Delco"), Sakura, Inc. ("Sakura"), Kenwood Silver Company, Inc.
("Kenwood"), Oneida Silversmiths, Inc. ("Silversmiths"), Oneida Food Service,
Inc. ("Food Service"), [ANY ADDITIONAL PLEDGORS] Oneida International, Inc.
("Oneida International", together with the Borrower, Buffalo China, THC, Encore,
Delco, Sakura, Kenwood, Silversmiths, Food Service, [ANY ADDITIONAL PLEDGORS,]
the "Pledgors") in favor of JPMorgan Chase Bank as collateral agent (in such
capacity, the "Collateral Agent") for the Secured Parties, the Pledgors have (i)
confirmed and acknowledged to the Collateral Agent for the ratable benefit of
the Secured Parties its continuing security interests in the Pledged Collateral
granted under the Existing Pledge Security Agreements and (ii) granted, pledged,
hypothecated and transferred to the Collateral Agent, for the ratable benefit of
the Secured Parties, a security interest in all of the Pledgors' right, title
and interest in, to and under the Pledged Collateral, all as more fully set
forth in the Amended and Restated Pledge Security Agreement;
A. WHEREAS, the Pledgors have acquired or created additional Pledged
Collateral since the date of execution of the Amended and Restated Pledge
Security Agreement and the most recent Supplement thereto and hold certain
additional Pledged Collateral; and
B. WHEREAS, Schedule II to the Amended and Restated Pledge Security
Agreement does not reflect Pledged Collateral acquired or created by the
Pledgors since the date of execution of the Amended and Restated Pledge Security
Agreement and the most recent Supplement thereto.
THEREFORE,
SECTION 1. To secure the prompt and complete payment and performance
when due of the Obligations of the Borrower under the Credit Agreement and each
of the other Fundamental Documents, to secure the performance and observance by
each of the Pledgors of all the agreements, covenants and provisions contained
in the Credit Agreement and in the Fundamental Documents for the benefit of the
Collateral Agent on behalf of the Secured Parties, the Pledgors do hereby grant
to the Collateral Agent, for the ratable benefit of the Secured Parties, a
security interest in and to all of the Pledgors' right, title and interest in
and to the
Pledged Collateral being added to Schedule II to the Amended and Restated Pledge
Security Agreement below.
SECTION 2. The Amended and Restated Pledge Security Agreement is hereby
supplemented, effective as of the date hereof, by amending Schedule II thereof
so as to reflect all of the Pledged Collateral in and to which the Pledgors have
granted a security interest to the Collateral Agent, for the ratable benefit of
the Secured Parties, pursuant to the terms of the Amended and Restated Pledge
Security Agreement and the Credit Agreement.
The following Pledged Collateral is hereby added to Schedule II to the
Amended and Restated Pledge Security Agreement:
CAPITAL STOCK OR OTHER EQUITY INTERESTS
Class or % Certificate
Issuer Pledgor No. of Shares Category Owned Number
------- --------- ------------- -------- ----- ------
DEBT SECURITIES
Oneida Ltd. Promissory Notes Covering Relocation Advances to Employees:
----------------------------------------------------------------------
EMPLOYEE DUE DATE OF NOTE AMOUNT
Oneida Ltd. Notes & Mortgages Covering Loans to Employees:
----------------------------------------------------------
EMPLOYEE DUE DATE OF NOTE AMOUNT
Oneida Ltd. Intercompany Notes
------------------------------
SUBSIDIARY DATE OF NOTE MAX. AMOUNT
---------- ------------ -----------
Except as expressly supplemented hereby, the Amended and Restated
Pledge Security Agreement shall continue in full force and effect in accordance
with the provisions thereof on the date hereof. As used in the Amended and
Restated Pledge Security Agreement, the terms "Agreement", "this Agreement",
"this Amended and Restated Pledge Security Agreement", "herein", "hereafter",
"hereto", "hereof" and words of similar import, shall, unless the context
otherwise requires, mean the Amended and Restated Pledge Security Agreement as
supplemented by this Supplement.
This Supplement shall be construed as supplemental to the Amended and
Restated Pledge Security Agreement and shall form a part thereof, and the
Amended and Restated Pledge Security Agreement and all documents contemplated
thereby and any previously executed Supplements thereto, are each hereby
incorporated by reference herein and confirmed and ratified by the Pledgors.
The execution and filing of this Supplement, and the addition of the
Pledged Collateral set forth herein are not intended by the parties to derogate
from, or extinguish, any of the Collateral Agent's rights or remedies under (i)
the Amended and Restated Pledge Security Agreement and/or any agreement,
amendment or supplement thereto or any other instrument executed by the Pledgors
or (ii) any financing statement, continuation statement, deed or charge or other
instrument executed by the Pledgors and heretofore filed in any state or county
in the United States of America or elsewhere.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Pledgors have caused this Supplement No. ___ to
the Amended and Restated Pledge Security Agreement to be duly executed as of the
date and year first written above.
ONEIDA LTD.
By: ____________________________
Name:
Title:
BUFFALO CHINA, INC.
By: ____________________________
Name:
Title:
THC SYSTEMS, INC.
By: ____________________________
Name:
Title:
ENCORE PROMOTIONS, INC.
By: ____________________________
Name:
Title:
DELCO INTERNATIONAL, LTD.
By: ____________________________
Name:
Title:
SAKURA, INC.
By: ____________________________
Name:
Title:
KENWOOD SILVER COMPANY, INC.
By: ____________________________
Name:
Title:
ONEIDA SILVERSMITHS, INC.
By: ____________________________
Name:
Title:
ONEIDA FOOD SERVICE, INC.
By: ____________________________
Name:
Title:
ONEIDA INTERNATIONAL, INC.
By: ____________________________
Name:
Title:
Accepted and Agreed to:
JPMORGAN CHASE BANK
as Collateral Agent
By: ____________________________
Name:
Title:
