EXHIBIT 4(a)(v)
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of April 27, 2001 (this "Agreement"),
is by and among ONEIDA LTD., a New York corporation (the "Borrower"), the
subsidiaries of the Borrower which are signatories hereto (each such subsidiary
individually a "Subsidiary Pledgor" and collectively, the "Subsidiary Pledgors";
the Borrower and the Subsidiary Pledgors are referred to herein individually as
a "Pledgor" and collectively as the "Pledgors") and THE CHASE MANHATTAN BANK, a
New York banking corporation ("Chase"), as collateral agent (in such capacity,
the "Collateral Agent") for the parties (the "Secured Parties") to the
Collateral Agent Agreement referred to below.
R E C I T A L S
A. The Secured Parties have made or agreed to make certain loans,
credit facilities or financial accommodations to, or issue letters of credit for
the benefit of, the Borrower and its subsidiaries.
B. As a condition to waiving certain defaults of the Borrower for the
fiscal year ended January 27, 2001, the Borrower has agreed to cause the
Pledgors to grant to the Secured Parties a security interest in substantially
all of their tangible and intangible assets.
C. The Secured Parties and Chase are entering into a Collateral Agency
and Intercreditor Agreement dated the date hereof (as may be modified, amended,
supplemented or replaced, the "Collateral Agent Agreement") to appoint Chase as
the Collateral Agent for the Secured Parties and to establish their relative
rights to the collateral granted by the Pledgors.
D. The Pledgors are executing a Security Agreement (as may be modified,
amended, supplemented or replaced, the "Security Agreement") dated the date
hereof in favor of the Collateral Agent granting the Collateral Agent a security
interest in certain collateral for the ratable benefit of the Secured Parties.
E. The Pledgors are entering into this Pledge Agreement to more fully
perfect, grant to and vest in the Collateral Agent a security interest in
certain of the collateral.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, 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 Agreement, all capitalized terms shall have the
meanings given to those terms in the Security Agreement.
SECTION 2. Pledge. As security for the payment and performance, as the
case may be, in full of the Obligations, and in furtherance of the Security
Interest granted pursuant to the Security Agreement, each Pledgor hereby
transfers, grants, bargains, sells, conveys, hypothecates, pledges, sets over
and delivers unto the Collateral Agent, its successors and assigns, 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 I 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 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, and
provided further that Pledged Equity Interests in a Person which is a Subsidiary
shall be limited to Equity Interests in each Material Domestic Subsidiary and
65% of the issued and outstanding common stock of each Material Foreign
Subsidiary; (b)(i) the debt securities owned by it which are listed opposite the
name of such Pledgor on Schedule I hereto, (ii) any debt securities in the
future issued to such Pledgor, provided that 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 (iii) the promissory notes and any other instruments evidencing
such debt securities (the "Pledged 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 6, 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 6, 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
"Collateral"). 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 satisfactory to the
Collateral Agent and by such other instruments and documents as the Collateral
Agent may reasonably request 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 I and made a part hereof. Each schedule so delivered shall supersede
any prior schedules so delivered.
SECTION 3. Delivery of the Collateral. (a) Each Pledgor agrees promptly
to deliver or cause to be delivered to the Collateral Agent any and all Pledged
Securities, and any and all certificates or other instruments or documents
representing the Collateral.
(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 4. Representations, Warranties And Covenants. Each Pledgor
hereby represents, warrants and covenants, as to itself and the Collateral
pledged by it hereunder, to the Collateral Agent that:
(a) the Pledged Interests represent that percentage as set
forth on Schedule I 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 Securities indicated on Schedule I,
(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 Collateral, other than pursuant hereto, and
(iv) subject to Section 6, will cause any and all 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
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 Collateral are delivered to the Collateral Agent
in accordance with this Agreement, the Collateral Agent will have a valid and
perfected first lien upon, and security interest in, such Pledged Securities 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 Collateral as set forth herein;
(g) all of the Pledged Interests representing Equity Interests
in a Subsidiary of Borrower have been duly authorized and validly issued and are
fully paid and nonassessable;
(h) all information set forth herein relating to the Pledged
Securities is accurate and complete in all material respects as of the date
hereof; and
(i) 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 5. 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 6. 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 Transaction 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 Transaction 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
Securities 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 Transaction 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 Securities, 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 Securities 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 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 (as defined in the Security Agreement), 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 6 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 Section 8. 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 6, and the obligations of the Collateral Agent under paragraph
(a)(iii) of this Section 6, 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 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 7. Remedies Upon Default. Upon the occurrence and during the
continuance of an Event of Default, the Collateral Agent may exercise all the
rights and remedies granted under the Security Agreement, including, without
limitation, the right to sell the 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. The Collateral Agent shall be
authorized at any such sale (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to Persons who will represent and agree that
they are purchasing the 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 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 (which each Pledgor agrees is reasonable notice within the
meaning of Section 9-504(3) of the Uniform Commercial Code as in effect in the
State of New York or its equivalent in other jurisdictions) 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
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 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
Collateral if it shall determine not to do so, regardless of the fact that
notice of sale of such 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 Collateral is made on credit or for future delivery, the 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 Collateral so sold and, in case of any such failure, such
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 7, any
Secured Party may bid for or purchase, free from any right of redemption, stay
or appraisal on the part of any Pledgor (all said rights being also hereby
waived and released), the 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. For purposes hereof,
(a) a written agreement to purchase the Collateral or any portion thereof shall
be treated as a sale thereof, (b) the Collateral Agent shall be free to carry
out such sale
pursuant to such agreement and (c) such Pledgor shall not be entitled to the
return of the Collateral or any portion thereof subject thereto, notwithstanding
the fact that after the Collateral Agent shall have entered into such an
agreement all Events of Default shall have been remedied and the Obligations
paid in full. As an alternative to exercising the power of sale herein conferred
upon it, the Collateral Agent may proceed by a suit or suits at law or in equity
to foreclose upon the Collateral and to sell the Collateral or any portion
thereof pursuant to a judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a court-appointed receiver.
SECTION 8. Application of Proceeds of Sale. The Collateral Agent shall
apply the proceeds of any collection or sale of the Collateral, as well as any
Collateral consisting of cash, in the manner set forth in Section 6.02 of the
Security Agreement. The Collateral Agent shall have absolute discretion as to
the time of application of any such proceeds, monies or balances in accordance
with this Agreement. Upon any sale of the Collateral by the Collateral Agent
(including pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt of the purchase money by the Collateral Agent or of the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Collateral Agent or such officer or be answerable in any way for the
misapplication thereof.
SECTION 9. Reimbursement of Collateral Agent. (a) Each Pledgor agrees
to pay upon demand to 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 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 Transaction 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 Transaction 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 Collateral Documents. The
provisions of this Section 9 shall remain operative and in full force and effect
regardless of the termination of this Agreement or other Transaction Documents,
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 Transaction Document or any investigation made by
or on behalf of the Collateral Agent or any Secured Party. All amounts due under
this Section 9 shall be payable on written demand therefor.
SECTION 10. 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 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 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 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 11. 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 Loan 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 12. 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
12 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 13. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the grant of a security interest in the Collateral and all
obligations of each Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Transaction
Document, 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 Transaction 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 guaranty, 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 14. 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, (b)
the Lenders have no further commitment to lend under the Credit Agreement, (c)
the LC Exposure has been reduced to zero, (d) the Issuing Banks have no further
obligation to issue LCs or make payments to beneficiaries thereunder, and (d)
all Hedging Agreements have been terminated and the obligations of Borrower and
its Subsidiaries thereunder have been satisfied. This Agreement, or the security
interest in any 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 pursuant to
the Collateral Agent Agreement. Upon termination of this Agreement or the
security interest in any 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 14 shall be without recourse to or warranty by the Collateral Agent.
SECTION 15. 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:
The Chase Manhattan Bank
Bridgewater Place
000 Xxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxx, Xx., Vice President
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 16. 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 Collateral or any part thereof or in order
better to assure and confirm unto the Collateral Agent its rights and remedies
hereunder.
SECTION 17. 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 Collateral (and any such attempted assignment shall be void),
except as expressly contemplated by this Agreement or the other Transaction
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 18. 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 19. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 20. 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 17. Delivery of an executed counterpart of a signature
page to this Agreement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 21. 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
Transaction 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
Transaction 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
Transaction 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 15. 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 22. 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 TRANSACTION 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 23. Additional Pledgors. The Borrower agreed to cause each
Subsidiary which becomes a Material Domestic Subsidiary after the date hereof to
enter into this Agreement as a Pledgor upon becoming such. Upon execution and
delivery by the Collateral Agent and a Material Domestic Subsidiary of an
instrument in a form reasonably acceptable to such Subsidiary and the Collateral
Agent, such Subsidiary shall become a Pledgor hereunder with the same force and
effect as if originally named as a Pledgor herein. The execution and delivery of
any such instrument shall not require the consent of any Pledgor hereunder. The
rights and obligations of each Pledgor hereunder shall remain in full force and
effect notwithstanding the addition of any new Pledgor or as a party to this
Agreement.
SECTION 24. 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 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.
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
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
Schedule I to the Pledge Agreement
CAPITAL STOCK OR OTHER EQUITY INTERESTS
Class or % Certificate
Issuer Pledgor No. of Shares Category Owned Number
------ ------- ------------- -------- ----- ------
Buffalo China, Inc. Oneida Ltd. 162,358 Common 100% 59
Delco International, Ltd. Oneida Ltd. 5.5 mil. Common 100% 2-10
Encore Promotions, Inc. Oneida Ltd. 100 Common 100% 1
Oneida U.K. Limited Oneida Ltd. 100%
Sakura, Inc. Oneida Ltd. 100 Common 100% 1
Xxxxxx Zwiesel Glaswerke Oneida Ltd. - 25.1% -
THC Systems, Inc. Oneida Ltd. 100 Common 100% 1
DEBT SECURITIES
Oneida Ltd. Promissory Notes Covering Relocation Advances to Employees:
EMPLOYEE DUE DATE OF NOTE AMOUNT
Xxxxx Xxxxx 03/25/02 $10,000
Xxxxxxx XxXxxxxx 08/31/01 $28,000
Xxxxxxx Xxxxxxxxx 06/30/01 $20,500
Xxxxxxx Xxxxxx 04/31/01 $65,000
Xxxxx Xxxxxx 09/15/01 $50,000
Oneida Ltd. Notes & Mortgages Covering Loans to Employees:
EMPLOYEE DUE DATE OF NOTE AMOUNT
Xxxx Xxxxxx 02/01/03 approx. $57,375
Oneida Ltd. Intercompany Notes
SUBSIDIARY DATE OF NOTE MAX. AMOUNT
---------- ------------ -----------
Oneida Australia Pty. 04/01/01 $ 2,000,000
Oneida Canada 04/01/01 $ 500,000
Oneida Mexicana, S.A. de C.V. 04/01/01 $ 4,000,000
Oneida International 04/01/01 $ 5,000,000
Oneida, S.A. de C.V. 04/01/01 $ 500,000
Buffalo China, Inc. 04/01/01 $ 5,000,000
Oneida Italy, S.r.l. 04/01/01 $ 2,000,000
Shanghai Premium Tableware Manuf. 04/01/01 $ 500,000
Delco International, Ltd. 04/01/01 $ 5,000,000
Encore Promotions, Inc. 04/01/01 $ 5,000,000
Kenwood Silver Company, Inc. 04/01/01 $16,000,000
Sakura, Inc. 04/01/01 $35,000,000
THC Systems
