EXHIBIT 4(a)(xi)
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of April 23, 2002 (this "Agreement"),
is by and among KENWOOD SILVER COMPANY, INC., a New York corporation (the
"Pledgor"), and JPMORGAN CHASE BANK (formerly known as 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, Oneida Ltd. (the "Borrower") and its subsidiaries.
B. The Borrower has agreed to cause the Pledgor to grant to the Secured
Parties a security interest in substantially all of its tangible and intangible
assets.
C. The Secured Parties and Chase have entered into an Amended and
Restated Collateral Agency and Intercreditor Agreement dated as of April 23,
2002 (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
Pledgor.
D. The Pledgor is 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 Pledgor is 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 Pledgor 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, 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 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 Pledgor which are listed on
Schedule I hereto and any Equity Interests obtained in the future by 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 Pledgor on Schedule
I hereto, (ii) any debt securities in the future issued to 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
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(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 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 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) 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) 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. 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,
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) 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 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 Pledgor 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;
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(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 Pledgor,
endorsed or assigned in blank or in favor of the Collateral Agent. 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 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) 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 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) 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 Pledgor, shall not be commingled by 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
Pledgor, or cause to be executed and delivered to Pledgor, all such proxies,
powers of attorney and other instruments as Pledgor may reasonably request for
the purpose of enabling 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 Pledgor to
dividends, interest or principal that 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,
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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 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 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 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 Pledgor to exercise such rights. After all Events of Default have
been cured or waived, 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 Pledgor, and, to the extent permitted by
applicable law, the Pledgor hereby waive all rights of redemption, stay,
valuation and appraisal 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 Pledgor ten (10) business days' prior
written notice (which Pledgor agrees is reasonable notice within the meaning of
Section 9-611 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 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 Pledgor (all said
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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 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 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) 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) 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 Pledgor to perform or observe
any of the provisions hereof.
(b) Without limitation of its indemnification obligations
under the other Transaction Documents, 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. Pledgor hereby
appoints the Collateral Agent the attorney-in-fact of 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
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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 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
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
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 Pledgor in any case shall entitle 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 Pledgor with respect to which
such waiver, amendment or modification is to apply.
SECTION 12. Securities Act, Etc. In view of the position of the Pledgor
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. 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.
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. 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.
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,
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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 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, 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 Pledgor, at the Pledgor' expense, all appropriate documents which
the Pledgor 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:
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If to the Borrower or any other Pledgor:
Kenwood Silver Company, Inc.
000-000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx, Vice President-Finance
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
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. 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 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 Pledgor when a counterpart hereof
executed on behalf of 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 Pledgor and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of
Pledgor, the Collateral Agent and the other Secured Parties, and their
respective successors and assigns, except that Pledgor shall not 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 Pledgor and may be amended,
modified, supplemented, waived or released with respect to 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
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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) 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 Pledgor or its properties in the courts of any
jurisdiction.
(b) 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. 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) 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 Pledgor. 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 Pledgor hereunder. The
rights and obligations of Pledgor hereunder shall remain in full force and
effect notwithstanding the addition of any new Pledgor or as a party to this
Agreement.
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SECTION 24. Execution of Financing Statements. Pledgor authorizes the
Collateral Agent to file financing statements with respect to the Collateral
owned by it without the signature of 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]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
KENWOOD SILVER COMPANY, INC.
By: /s/ XXXXX X. XXXXX
___________________________
Name: Xxxxx X. Xxxxx
Title: Vice President - Finance
JPMORGAN CHASE BANK (formerly known as The Chase
Manhattan Bank), as Collateral Agent
By: /s/ XXXXXX X. XXXX, XX.
___________________________
Name: Xxxxxx X. Xxxx, Xx.
Title: Vice President
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