EXHIBIT 4(a)(iv)
AMENDMENT NO. 1 TO SECURITY AGREEMENT
This Amendment No. 1, dated as of April 27, 2001, is by and among
ONEIDA LTD., a New York corporation (the "Borrower"), THC SYSTEMS, INC., a New
York corporation and a wholly owned subsidiary of the Borrower ("THC"), the
other subsidiaries of the Borrower which are signatories hereto (THC and each
such Subsidiary individually a "Guarantor" and collectively the Guarantors"; the
Guarantors and the Borrower are referred to collectively herein as the
"Grantors") and THE CHASE MANHATTAN BANK, a New York banking corporation
("Chase"), as Collateral Agent (in such capacity, the "Collateral Agent") for
the Secured Parties. All capitalized terms used herein not otherwise defined
shall have the respective meanings given to them in the Security Agreement
referred to below.
R E C I T A L S
A. The Grantors and the Collateral Agent are parties to a Security
Agreement dated as of April 27, 2001 pursuant to which the Grantors have granted
to the Collateral Agent, for the ratable benefit of the Secured Parties, a
security interest in the Collateral described therein to secure the Obligations.
B. The Grantors and the Collateral Agent also are parties to a Pledge
Agreement dated as of April 27, 2001 pursuant to which the Grantors pledged to
the Collateral Agent, for the ratable benefit of the Secured Parties, the
Collateral described therein in order to secure the Obligations.
C. In connection with the execution of the Security Agreement and
Pledge Agreement, the Grantors were required to deliver to the Collateral Agent
certain waivers, notices, opinions of counsel and other ancillary documents.
Certain of such ancillary documents were not delivered to the Collateral Agent
at the time of the execution and delivery of the Security Agreement and Pledge
Agreement.
D. The parties are entering into this Amendment for the purpose of
setting forth the Grantors' obligations to deliver, or arrange for the delivery
of, certain ancillary documents following the date hereof.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the Grantors and the Collateral Agent, on behalf of itself and
each Secured Party (and each of their respective successors or assigns), hereby
agree as follows:
1. The Grantors hereby agree that their failure to comply with the
following obligations shall constitute an Event of Default under the Security
Agreement, Pledge Agreement and other Transaction Documents (in addition to each
other Even of Default enumerated therein):
(a) Grantors shall deliver to the Collateral Agent by May 7, 2001
opinions of counsel, in substantially the form of Exhibit E to the Security
Agreement (with such changes therein as the Collateral Agent or its counsel may
agree), in the jurisdictions listed on Schedule 1 attached hereto.
(b) Grantors shall deliver to the Collateral Agent on or before
June 15, 2001 terminations of the Uniform Commercial Code financing statements
described on Schedule 2 annexed hereto.
(c) On or before May 31, 2001, Borrower shall either (a) arrange
for Blocked Account Agreements, in substantially the form of Exhibit A attached
hereto (with such changes therein as the Collateral Agent or its counsel may
agree), to be executed and delivered to the Collateral Agent by United Missouri
Bank and Northside Community Bank with respect to the deposit accounts
maintained by Borrower with such institutions, or (b) Borrower shall close all
deposit accounts at United Missouri Bank and Northside Community Bank or
transfer the accounts to a Lender or to another financial institution that
executes a Blocked Account Agreement.
(d) Grantors shall use reasonable commercial efforts (which for
these purposes shall not be deemed to require the payment of any additional rent
or the termination of any lease) to deliver to the Collateral
9
Agent on or before May 31, 2001 a waiver, in substantially the form of Exhibit B
(with such changes therein as the Collateral Agent or its counsel may agree),
from the landlords listed on Schedule 3.
(e) Grantors shall use reasonable commercial efforts (which for
these purposes shall not be deemed to require the payment of any additional
warehouse fees or the termination of any warehouse arrangement) to deliver to
the Collateral Agent on or before May 31, 2001 a Notice and Acknowledgement,
substantially in the form of Exhibit C (with such changes therein as a
Collateral Agent or its counsel may agree), executed by the warehousemen listed
on Schedule 4.
2. Representation. Grantors represent and warrant that the indebtedness
and obligations secured by the Uniform Commercial Code financing statements
listed on Schedule 2 have been satisfied and paid in full and all credit
facilities governing such indebtedness or obligations have been terminated.
3. Confirmation of Security Agreement. Except as amended by this
Amendment, all of the provisions of the Security Agreement remain in full force
and effect from and after the date hereof, and the Borrower hereby ratifies and
confirms this Security Agreement and each of the documents executed in
connection therewith. From and after the date hereof, all references in the
Security Agreement to "this Agreement", "hereof", "herein", or similar terms,
shall refer to the Security Agreement as amended by this Amendment.
4. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. Delivery of an executed
signature page to this Amendment by facsimile transmission shall be as effective
as delivery of a manually signed counterpart.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
ONEIDA LTD.
By: /s/ XXXXX X. XXXXX
------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
BUFFALO CHINA, INC.
By: /s/ XXXXX X. XXXXX
------------------
Name: Xxxxx X. Xxxxx
Title: Vice President - Finance
THC SYSTEMS, INC.
By: /s/ XXXXX X. XXXXX
------------------
Name: Xxxxx X. Xxxxx
Title: Vice President - Finance
ENCORE PROMOTIONS, INC.
By: /s/ XXXXX X. XXXXX
------------------
Name: Xxxxx X. Xxxxx
Title: Vice President - Finance
10
DELCO INTERNATIONAL, LTD.
By: /s/ XXXXX X. XXXXX
------------------
Name: Xxxxx X. Xxxxx
Title: Vice President - Finance
SAKURA, INC.
By: /s/ XXXXX X. XXXXX
------------------
Name: Xxxxx X. Xxxxx
Title: Vice President - Finance
THE CHASE MANHATTAN BANK, as Collateral Agent
By: /s/ XXXXXX X. XXXX, XX.
-----------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Vice President
11
EXHIBIT A
Form of Blocked Account Agreement
BLOCKED ACCOUNT AGREEMENT
THIS BLOCKED ACCOUNT AGREEMENT (this "Agreement") is made and entered
into as of April _____, 2001, by and among ________________________ (the
"Bank"), ONEIDA LTD., a New York corporation (the "Company"), and THE CHASE
MANHATTAN BANK, as Collateral Agent for the Secured Parties referred to below
(the "Collateral Agent").
R E C I T A L S
A. The Company and certain of its subsidiaries have granted or intend
to grant a security interest in certain of their assets to The Chase Manhattan
Bank, as Collateral Agent for various senior lenders to the Company and its
subsidiaries (the "Secured Parties") pursuant to a security agreement executed
or to be executed by the Company in favor of the Collateral Agent (the "Security
Agreement"). The collateral includes, among other things, all deposit accounts
maintained by the Company in the United States.
B. The Company has established Account No. ___________ with the Bank
(the "Blocked Account").
C. The parties hereto desire to enter into this Agreement in order to
set forth their relative rights and duties with respect to the Blocked Account
and all funds on deposit therein from time to time.
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth and other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the parties hereto
agree as follows:
1. Effectiveness. This Agreement shall take effect immediately upon its
execution by all parties hereto and shall supersede any blocked account or
similar agreement in effect with respect to the Blocked Account.
2. Acknowledgement of Security Interest. This Agreement shall
constitute notice to the Bank that the Company has granted or intends to grant
to the Collateral Agent, for its own benefit and for the ratable benefit of the
Secured Parties, a present and continuing security interest in (a) the Blocked
Account, (b) all contract rights, claims and privileges in respect of the
Blocked Account, (c) all cash, checks, money orders and other items of value of
the Company now or hereafter paid, deposited, credited, held (whether for
collection, provisionally or otherwise) or otherwise in the possession or under
the control of, or in transit to, the Bank or any Collateral Agent, bailee or
custodian of the Bank (collectively, "Receipts"), and (d) all proceeds of any of
the property described in clauses (a), (b) and (c) of this Section 2. The Bank
hereby consents to the Collateral Agent's security interest in the collateral
described in this Section 2.
3. Administration and Control of Blocked Account.
(a) The Blocked Account shall be maintained by the Bank in the
name of "Oneida Ltd. for the benefit of The Chase Manhattan Bank, as Collateral
Agent." The Bank agrees to credit for deposit to the Blocked Account all
Receipts from time to time tendered by or on behalf of the Company for deposit
therein, including (without limitation) all wire transfers and other payments
directed to the Blocked Account.
(b) Until the Bank receives an Activation Notice and an Activation
Period has commenced as set forth in Section 3(d) below:
(i) The Blocked Account shall be under the sole dominion and
control of the Company; and
(ii) The Bank shall transfer or disburse funds from the
Blocked Account as directed from time to time by the Company in compliance with
the Bank's usual requirements for such transfer or disbursement directions.
(c) After the Bank has received an Activation Notice and at all
times during the Activation Period ensuing therefrom as set forth in Section
3(d) below:
(i) Neither the Company nor any other person or entity acting
for, through or under the Company shall have any control over the use of the
Blocked Account or any right to withdraw any amount from the Blocked Account,
and no transfer or disbursement direction given by the Company or any such
person or entity (whether given prior to or after the commencement of such
Activation Period) shall be effective or honored by the Bank; and
(ii) The Bank shall determine, on each business day, the
balance of all collected and available funds on deposit in the Blocked Account
and, if so directed by the Collateral Agent in the Activation Notice or
otherwise by written notice received by the Bank, the Bank shall automatically
initiate a federal funds wire transfer of all such funds to an account of the
Collateral Agent designated in writing from time to time by the Collateral
Agent. For this purpose, (A) funds are not available if, in the reasonable
determination of the Bank, they are subject to a hold, dispute or legal process
preventing their withdrawal, (B) the Bank shall be entitled to written notice
of, and a reasonable period of time to act upon, any delivery instructions given
by the Collateral Agent or any change therein, and (C) "business day" means each
Monday through Friday, excluding bank holidays.
(d) An "Activation Notice" is a notice in substantially the form
of Attachment I hereto, executed by or on behalf of the Collateral Agent. An
"Activation Period" is a period of time that commences when the Bank has
received an Activation Notice and has had a reasonable time (not exceeding two
business days) to act thereon and that terminates (if at all) when (i) the Bank
has received written notice from the Collateral Agent stating that such
Activation Notice is rescinded, terminated or withdrawn and (ii) the Bank has
had a reasonable time to act on such notice.
(e) As against the Company, the Collateral Agent shall be entitled
to deliver an Activation Notice to Bank if and whenever:
(i) the Collateral Agent is notified by one or more Secured
Parties that an " Event of Default" (as defined in the Security Agreement) has
occurred and has not been waived in writing by the number of Secured Parties
empowered to waive the same under the Security Agreement; or
(ii) the Collateral Agent is entitled to deliver an
Activation Notice pursuant to applicable law or the Security Agreement or any
other agreement to which the Company is a party.
So long as it acts in good faith, the Collateral Agent shall have no
liability whatsoever for delivery of an Activation Notice or any consequences
thereof. The Collateral Agent shall not, under any circumstances, be obligated
to deliver an Activation Notice.
(f) The Bank shall not be obligated to require any certification
or other evidence as to whether the Collateral Agent is entitled, as against the
Company, to deliver any Activation Notice, and the Bank shall not otherwise be
obligated to confirm or inquire as to whether any event or condition permitting
the Collateral Agent to deliver an Activation Notice has occurred or is likely
or may be expected to occur. The Bank shall be entitled to rely and act upon
each Activation Notice received by it, whether or not such Activation Notice was
rightfully delivered.
(g) Notwithstanding the foregoing provisions of this Section 3:
(i) If the Blocked Account or any Receipts become the subject
of any writ, levy, order or other similar judicial or regulatory order or
process, the Bank shall be entitled to comply with such order or process, in
accordance with the Bank's usual procedures for such compliance;
(ii) If a case under Xxxxx 00, Xxxxxx Xxxxxx Code, is
voluntarily commenced by the Company or involuntarily commenced against it, or
if any similar case under any applicable federal or state law providing for the
relief of debtors or the protection of creditors is commenced by or against the
Company, the Bank may comply with all applicable laws or any order of the Court
in any such case relating to the Blocked Account or any Receipts, in accordance
with the Bank's usual procedures for such compliance; and
(iii) The Bank shall not be liable to the Company or the
Collateral Agent for any action taken or omitted to be taken by the Bank in good
faith as contemplated in this Section 3(g).
4. Charge-Back Rights of the Bank.
(a) If any Receipts deposited in the Blocked Account are returned
unpaid, the Bank may charge any and all such returned items against the Blocked
Account. If the available funds in the Blocked Account are not sufficient to
make the Bank whole for any such returned item, the Company shall reimburse the
Bank therefor upon demand. Neither the Collateral Agent nor any Secured Party
shall have any responsibility or liability for any such returned item.
(b) The Bank may charge the Blocked Account for its usual and
customary service charges, transfer fees and account maintenance fees
(collectively, "Fees") relating to the Blocked Account. The Company in any event
agrees to pay Fees upon demand. Neither the Collateral Agent nor any Secured
Party shall have any responsibility or liability for the payment of any Fees.
5. Bank's Waiver of Set-off. Except as set forth in Section 4, the Bank
will not exercise or claim, and hereby waives, any right of set-off or banker's
lien against the Blocked Account or any Receipts.
6. Statements and Other Information. Upon receipt of the Collateral
Agent's written request, the Bank shall provide the Collateral Agent with copies
of the regular monthly bank statements provided by the Bank to the Company and
such other information relating to the Blocked Account as the Collateral Agent
may reasonably request.
7. Limitation of Bank's Liability.
(a) The Bank will not be liable to the Company or the Collateral
Agent for any expense, claim, loss, damage or cost arising out of or relating to
the Blocked Account or any Receipts or this Agreement other than those resulting
from the Bank's acts or omissions constituting gross negligence or willful
misconduct. In no event shall the Bank be liable for any special, indirect or
consequential damages, including (without limitation) lost profits, or for any
exemplary or punitive damages.
(b) The Bank shall be excused in respect of any failure to act or
delay in acting that (a) is caused by circumstances beyond the Bank's reasonable
control, including (without limitation) legal constraint, emergency conditions,
action or inaction of governmental, civil or military authority, fire, strike,
lockout or other labor dispute, war, riot, theft, flood, earthquake or other
natural disaster, breakdown of public or private or common carrier
communications or transmission facilities, or equipment failure, or (b) results
from the Bank's reasonable belief that the action would violate any law or any
guideline, order, rule or regulation of any governmental authority. No such
failure or delay shall constitute a breach of this Agreement or otherwise give
rise to any liability of the Bank.
8. Indemnification by the Company. The Company shall defend and
indemnify the Bank against, and hold it harmless from, any and all liabilities,
claims, costs, expenses and damages of any nature (including, without
limitation, reasonable allocated costs of staff counsel, other reasonable
attorneys' fees and any
fees and expenses) in any way arising out of or relating to disputes or legal
actions concerning this Agreement, except those resulting directly from the
gross negligence or willful misconduct of the Bank.
9. Attorneys' Fees. The Company agrees to pay to the Bank, upon receipt
of the Bank's invoice, all reasonable costs, expenses and attorneys' fees
incurred by the Bank in connection with the enforcement of this Agreement and in
the preparation or review of this Agreement (including any amendments hereto or
instruments or agreements required hereunder).
10. Representations and Warranties of the Company.
(a) The Company represents and warrants to the Bank that (i) this
Agreement constitutes the duly authorized, legal, valid, binding and enforceable
obligation of the Company; (ii) the performance of the obligations of the
Company under this Agreement and the consummation of the transactions
contemplated hereunder will not (A) constitute or result in a breach of its
certificate or articles of incorporation or by-laws, or the provisions of any
material contract to which it is a party or by which it is bound or (B) result
in the violation of any law, regulation, judgment, decree or governmental order
applicable to it; and (iii) all approvals and authorizations required to permit
the execution, delivery, performance and consummation of this Agreement and the
transactions contemplated hereunder have been obtained.
(b) The Company represents and warrants that it has not assigned
or granted a security interest in the Blocked Account or any funds now or
hereafter deposited in the Blocked Account, except to the Collateral Agent.
11. Termination.
(a) Except as provided in subparagraph (e) below, this Agreement
may be terminated by the Company only with the written consent of the Collateral
Agent, upon delivery to the Bank of written notice of termination executed by
the Company and a counterpart of such consent executed by the Collateral Agent.
(b) This Agreement may be terminated by the Collateral Agent at
any time, with or without cause, upon its delivery of written notice thereof to
each of the Company and the Bank.
(c) This Agreement may be terminated by the Bank at any time on
not less than 30 days' prior written notice delivered to each of the Company and
the Collateral Agent. In addition, the Bank may terminate this Agreement, upon
delivery of written notice to the Company and the Collateral Agent and without
prior notice, if (i) the Company fails to perform any of its obligations under
this Agreement; (ii) the Company violates any other agreement with the Bank or
any agreement with any person or entity involving the borrowing of money or
extension of credit; (iii) the Company liquidates, dissolves, merges with or
into or consolidates with another entity or sells, leases or disposes of a
substantial portion of its business or assets; (iv) the Company terminates its
business, fails generally or admits in writing its inability to pay its debts as
they become due; or (v) any bankruptcy, reorganization, arrangement, insolvency,
dissolution or similar proceeding is instituted with respect to the Company or
the Company makes any assignment for the benefit of creditors or enters into any
composition with creditors or the Company takes any action in furtherance of any
act or proceeding described in this clause (v).
(d) If no Activation Period is in effect at the time of delivery
of any such notice of termination by the Bank, the Company's rights under
Section 3(b) and the effectiveness of all transfer or disbursement directions
given by Company or any person or entity acting for, through or under the
Company shall be suspended for a period that shall commence when such notice of
termination is delivered by the Bank and end on the earlier of (i) the time the
Bank receives and has had a reasonable time to act on a notice from the
Collateral Agent consenting to such termination or (ii) midnight following the
seventh business day after written notice of such termination given by the Bank
to the Collateral Agent, which period shall constitute an Activation Period for
purposes of this Agreement.
(e) The Company may close the Blocked Account at any time,
provided the Company gives the Collateral Agent ten days' prior written notice
and complies with its obligations to the Collateral Agent or any of the Secured
Parties with respect to the establishment of any new deposit account to replace
the Blocked Account. This Agreement will automatically terminate when the
Blocked Account is closed.
12. Irrevocable Authorizations and Powers. The authorizations and
powers granted by the Company in this Agreement are coupled with an interest and
are irrevocable.
13. No Relationship. Nothing contained in this Agreement shall create
any agency, fiduciary, joint venture or partnership relationship between or
among any of the Company, the Collateral Agent or the Bank.
14. Notices. All notices, requests or other communications given to the
Company, the Collateral Agent or the Bank shall be given in writing (including
by facsimile) at the address specified below:
Collateral Agent: The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Xx., Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Bank:
Attention:
Telephone:
Telecopier:
Company: Oneida Ltd.
000-000 Xxxxxxx Xxx.
Xxxxxx, Xxx Xxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Any party may change its address for notices hereunder by notice to
each other party hereunder given in accordance with this Section 14. Each
notice, request or other communication shall be effective (a) if given by
facsimile, when such facsimile is transmitted to the facsimile number specified
in or pursuant to this Section 14 and confirmation of receipt is delivered
electronically or otherwise, (b) if given by overnight courier, 24 hours after
such communication is deposited with the overnight courier for delivery,
addressed as aforesaid, or (c) if given by any other means, when delivered at
the address specified in this Section 14.
15. Miscellaneous.
(a) This Agreement may be amended only by a written instrument
signed by the Collateral Agent, the Bank, and the Company.
(b) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns, but
the Company shall not be entitled to assign or delegate any of its rights or
duties hereunder (and any such assignment or delegation shall be void).
(c) This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
(d) This Agreement shall be governed by the laws of the State of
New York.
IN WITNESS WHEREOF, each of the parties has executed and delivered this
Blocked Account Agreement as of the day and year first above set forth.
[BANK]
By:
------------------------------
Title:
ONEIDA LTD.
By:
------------------------------
Title:
THE CHASE MANHATTAN BANK,
as Collateral Agent
By:
------------------------------
Xxxxxx X. Xxxx, Xx.
Vice President
ATTACHMENT I
[Letterhead of Collateral Agent]
To: [Bank]
Re: Oneida Ltd.
Blocked Account No. [__________]
Ladies and Gentlemen:
Reference is made to the Blocked Account Agreement dated as of April
____, 2001 (the "Agreement") between Oneida Ltd. (the "Company"), you and us as
Collateral Agent for certain Secured Parties, regarding the above-described
account (the "Blocked Account").
This is an Activation Notice for the purposes of Section 3 of the
Agreement. We hereby give you notice of our exercise of control of the Blocked
Account and direct you to hold for our account all amounts now on deposit
therein and all amounts now held or hereafter received by you for deposit
therein.
[Optional Provision: We further hereby instruct you to transfer all
such amounts, when collected and available as set forth in Section 3(c) of the
Agreement, to us by wire transfer to the following account:
---------------------------------------.]
Very truly yours,
The Chase Manhattan Bank,
as Collateral Agent
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
EXHIBIT B
Form of Landlord Waiver
LANDLORD WAIVER AND CONSENT
To: The Chase Manhattan Bank,
as Collateral Agent
000 Xxxx Xxxxxx
Xxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
[___________][a ________corporation] ("Company"), is the lessee under
that certain __________________ dated __________ (the "Lease") between Company
and the undersigned (the "Lessor") covering a ________________ parcel located in
_____________ (the "Premises") more fully described in the Lease which is
attached hereto as Exhibit A ("Lease"). The Lessor is the sole owner of the
Premises. The Company has certain of its assets located on the Premises.
The Company has granted or intends to grant a security interest in
certain of its assets to The Chase Manhattan Bank, as collateral agent (the
"Collateral Agent") for various senior lenders to the Company or its affiliates
(the "Secured Parties"). The collateral covered by the security interest
includes, but is not limited to, (a) the Company's rights under contracts and
leases (including the Lease), and (b) all tangible property of the Company
located at the Premises (the "Collateral").
To induce the Secured Parties to continue the financing arrangements in
favor of the Company or its affiliates, and for other good and valuable
consideration, the Lessor hereby agrees that:
1. It consents to the security interest in the Lease and agrees that
the Collateral Agent may foreclose on its security interest in the Lease and
take possession, or arrange for a third party (subject to the Lessor's prior
consent, such consent not to be unreasonably delayed or conditioned, to take
possession,) of the Premises and, so long as the Collateral Agent or such third
party is in possession of the Premises, the Collateral Agent or such third party
shall succeed to all rights and remedies of the Company under the Lease;
provided that the Collateral Agent or such third party shall also assume all the
Company's rental obligations under the Lease that arise on and after the date
the Collateral Agent or such third party takes possession of the Premises.
Notwithstanding any provision of the Lease to the contrary, such foreclosure and
possession by the Collateral Agent or such third party shall not constitute a
breach of the Lease. Neither the Collateral Agent nor such third party shall be
liable for any act, omission, default or obligation that arose or occurred under
the Lease prior to the date on which the Collateral Agent or such third party
succeeds to the rights of Company under the Lease, as applicable; provided,
however, that Lessor shall remain entitled to exercise all of its rights and
remedies against the Company with respect to any such act, omission, default or
obligation.
2. It will not assert against any of the Company's assets any statutory
or possessory liens, including, without limitation, rights of levy or distraint
for rent, all of which it hereby waives.
3. None of the Collateral located on the Premises shall be deemed to be
fixtures.
4. It will notify the Collateral Agent if the Company defaults on its
lease obligations to the Lessor and allow the Collateral Agent fifteen (15) days
from its receipt of notice in which to cure or cause the Company to cure any
such defaults.
5. If the Collateral Agent undertakes to enforce its security interest
in the Collateral, the Lessor will permit the Collateral Agent to assemble all
of the Collateral located on the Premises, for a period of up to six months
after the Collateral Agent declares a default, provided the Collateral Agent
pays the rental payments
due under the Lease for the period of time the Collateral Agent uses the
Premises, or, at the Collateral Agent's option, to remove the Collateral from
the Premises within a reasonable time, not to exceed forty-five (45) days after
the Collateral Agent declares a default, provided the Collateral Agent pays the
rental payments due under the Lease for the period of time the Collateral Agent
uses the Premises, and will not hinder the Collateral Agent's actions in
enforcing its liens on the Collateral.
6. The security interest is intended only as security for the
obligations the Company owes to the Collateral Agent and the Secured Parties
and, therefore, the grant of the security interest shall not, except as
expressly provided herein, subject the Collateral Agent to, or transfer or pass
to the Collateral Agent, or in any way affect or modify, the liability of the
Company under the Lease, it being understood and agreed that all of the
obligations of the Company under the Lease shall be and remain enforceable by
the Lessor, its successors and assigns, against, the Company but shall not be
enforceable against the Collateral Agent unless the Collateral Agent assumes the
Company's obligations pursuant to Paragraph 1 above.
7. The Collateral Agent may assign any of its rights hereunder to any
successor Collateral Agent for the Secured Parties. The Collateral Agent shall
give prompt written notice to Lessor of any such assignment.
Any notice(s) required or desired to be given hereunder shall be
directed to the party to be notified at the address stated herein.
The agreements contained herein shall continue in force until all of
the Company's obligations and liabilities to the Secured Parties and the
Collateral Agent are paid and satisfied in full and all financing arrangements
between the Company (or its affiliates) and the Secured Parties have been
terminated.
The Lessor will notify all successor owners, transferees, purchasers
and mortgagees of the existence of this waiver. The agreements contained herein
may not be modified or terminated orally and shall be binding upon the
successors, assigns and personal representatives of the Lessor, upon any
successor owner or transferee of the Premises, and upon any purchasers,
including any mortgagee, from the Lessor.
Executed and delivered this _______ day of April, 2001.
[LESSOR]
-----------------------------------
Name:
Title:
EXHIBIT C
Form of Notice and Acknowledgement
NOTIFICATION AND ACKNOWLEDGEMENT OF SECURITY INTEREST
[Name of Bailee]
[Address]
Dear Sir or Madam:
This is to advise you that Oneida Ltd. (the "Borrower") and certain of
its subsidiaries, Buffalo China, Inc., THC Systems, Inc., Encore Promotions,
Inc., Delco International Ltd., and Sakura, Inc. (collectively, with the
Borrower, the "Grantors"), have granted or intend to grant a security interest
in certain of their assets to The Chase Manhattan Bank, as collateral agent (the
"Collateral Agent") for various senior lenders to Borrower and its subsidiaries
(the "Secured Parties").
The collateral covered by the security interest includes, but is not
limited to, all inventory and other goods now or hereafter located on or in any
warehouse, building or other real estate owned or leased by you or in your
control, whether delivered to you for distribution, storage or otherwise (the
"Collateral"). This notification constitutes written notice to you of the
Collateral Agent's security interest in the Collateral pursuant to Section 9-304
of the Uniform Commercial Code (as may be amended from time to time).
By your signature below, you acknowledge receipt of this notice of the
Collateral Agent's security interest and agree to follow all instructions that
the Collateral Agent may from time to time hereafter give to you with respect to
all goods of the Grantors which are at any time located on or in any warehouse,
building or real estate owned, leased or otherwise under your control.
For the present, the Collateral Agent consents to you continuing to
release goods pursuant to the instructions given you by the Grantors, or any
authorized agent of the Grantors, but this consent may be terminated or changed
by notice to you from the Collateral Agent following a default in the
obligations secured by the Collateral. Upon being so notified by the Collateral
Agent, you are to abide solely by the Collateral Agent's instructions with
respect to the release of any of the Grantors' goods and you are not to release
any of the goods to the Grantors or to anyone else except according to written
instructions which may be given to you from time to time by the Collateral
Agent.
You agree and acknowledge that you do not have, and in no event will
you assert, as against the Collateral Agent, any lien, right of distraint or
levy, right of offset, claim, deduction, counterclaim, security or other
interest in any goods of the Grantors now or hereafter located on any of your
premises, including any of the foregoing which might otherwise arise or exist in
your favor pursuant to any agreement, common law, statute (including the Federal
Bankruptcy Code) or otherwise. You certify that you do not know of any security
interest or other claim with respect to such goods, other than the security
interest in favor of the Collateral Agent. You agree and acknowledge that no
negotiable warehouse receipts, documents of title or similar instruments have
been or will be issued by you with respect to any of the goods of the Grantors.
You further agree to allow the Collateral Agent and its agents upon at
least one business day's notice to enter upon your premises during business
hours for the purpose of examining, removing, taking possession of or otherwise
dealing with any goods of the Grantors at any time in your possession or making
copies of any books and records related thereto.
You understand that the Collateral Agent is relying upon this
acknowledgement. This acknowledgment shall be binding upon your successors and
assigns and shall inure to the benefit of Collateral Agent, the Secured Parties
and their respective successors and assigns.
The consent of the Grantors hereto shall also constitute an
acknowledgement by the Grantors that the Collateral Agent may assert any of the
rights set forth or referred to herein, without objection by the Grantors. By
there signatures below, the Grantors agree to reimburse you for all reasonable
costs and expenses incurred by you as a direct result of compliance with the
instructions of the Collateral Agent as to the disposition of any goods.
Please acknowledge your agreement to the foregoing by signing in the
appropriate space provided below.
Very truly yours,
THE CHASE MANHATTAN BANK,
Collateral Agent
000 Xxxx Xxxxxx
Xxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Contact: Xxxxxx X. Xxxx, Xx.
Vice President
(000) 000-0000
ACKNOWLEDGED AND AGREED TO:
[NAME OF BAILEE]
By:
------------------------------------
Title:
CONSENTED AND AGREED TO:
ONEIDA LTD.
By:
------------------------------------
Title:
BUFFALO CHINA, INC.
By:
------------------------------------
Title:
THC SYSTEMS, INC.
By:
------------------------------------
Title:
ENCORE PROMOTIONS, INC.
By:
------------------------------------
Title:
DELCO INTERNATIONAL LTD.
By:
------------------------------------
Title:
SAKURA, INC.
By:
------------------------------------
Title:
SCHEDULE 1
Jurisdictions for Local Counsel Opinions
----------------------------------------
New York
California
North Carolina
Minnesota
Tennessee
Florida
United Kingdom
SCHEDULE 2
Required UCC Terminations
Secured Party Original File Number
------------- --------------------
Delco International, Ltd. - Texas
Chase Manhattan Bank 9900166357
European American Bank (4) 9200103910
9700059884
9800136326
9900166358
Delco International, Ltd. - California
European American Bank (4) 0000000000
199709260166
199818960352
199923660434
The Chase Manhattan Bank 199923660432
Delco International, Ltd. - Georgia (Xxxxxx County)
European American Bank (2) 060199705739
060199814508
Delco International, Ltd. - New York
European American Bank (3) 108607
055158
146446
The Chase Manhattan Bank 166311
Oneida Ltd. - Xxx Xxxx
Xxxx xx Xxxxxxx 000000
Chase Equipment Leasing, Inc. 162265
NYS Urban Development Corporation 176312
Seneca-Delco Corporation -California
European American Bank 0000000000
The Chase Manhattan Bank (as successor to Manufactures 1981227323
Hanover Trust Company)
Seneca-Delco Corporation - Texas
The Chase Manhattan Bank (as successor of Manufacturers 900103942
Hanover Trust Company)
European American Bank (2) 9200103910
9700059884
Seneca-Delco Corporation - Texas (Dallas County
European American Bank 97002-2192
SCHEDULE 2 (cont.)
Secured Party Original File Number
------------- --------------------
Seneca -Delco Corporation - Georgia (Xxxxxx County)
European American Bank (2) 776657 06019970573
The Chase Manhattan Bank (as successor to Manufacturers 569402
Hanover Trust Company and Chemical Bank)
Seneca-Delco Corporation - New York
The Chase Manhattan Bank (as successor to Manufacturers 124929, 187969,
Hanover Trust Company and Chemical Bank) (3) 187970
Seneca-Delco Corporation - New York (Queens
County)
The Chase Manhattan Bank (3)(as successor to Manufacturers 78P 14018, 81P
Hanover Trust Company and as Chemical Bank) 14085, 81P 14086
