W I T N E S S E T H : -------------------
AGREEMENT TO AMEND THE CREDIT AGREEMENT
---------------------------------------
AGREEMENT TO AMEND THE CREDIT AGREEMENT (this "Agreement"),
dated as of June 11, 1998, among USI AMERICAN HOLDINGS, INC., a Delaware
corporation (the "Company"), USI FUNDING, INC., a Delaware corporation, U.S.
INDUSTRIES, INC., a Delaware corporation (formerly known as USI, Inc.) ("New
USI", and together with the Company, the "New Borrowers"), USI ATLANTIC CORP., a
Delaware corporation (formerly known as U.S. Industries, Inc.) ("Old USI"), each
of the lenders party hereto from time to time (the "Banks"), BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as Issuing Bank and Swingline Bank, and
as Agent (in such capacity, the "Agent") and BANKAMERICA XXXXXXXXX XXXXXXXX, as
Arranger (the "Arranger"). All capitalized terms used herein and not otherwise
defined shall have the respective meanings provided such terms in the Amended
Credit Agreement referred to below.
W I T N E S S E T H :
-------------------
WHEREAS, the Company, USI Funding, Old USI, the Banks, the
Issuing Bank, the Swingline Bank, the Agent and the Arranger are parties to a
Credit Agreement dated as of December 12, 1996 (as amended, modified or
supplemented to the date hereof, the "Credit Agreement"); and
WHEREAS, each of the Company, USI Funding and Old USI has
requested, and the undersigned Banks hereby agree, that the Credit Agreement be
amended with such deletions and additions thereto as necessary to effect the
Credit Agreement in the form attached as Annex I hereto (the "Amended Credit
Agreement");
NOW, THEREFORE, it is agreed:
1. The parties hereto hereby agree to amend the Credit
Agreement with such deletions and additions thereto as necessary to effect the
Credit Agreement in the form of the Amended Credit Agreement.
2. The parties hereto hereby agree that the Total
Multicurrency Commitment shall be increased to $350,000,000, with such increase
in commitment (i.e., $70,000,000) to be provided solely by Marine Midland Bank,
which shall become a Multicurrency Bank (it being understood and agreed,
however, that such increase to the Total Multicurrency Commitment shall not
result in a corresponding increase to the Aggregate Commitment). In connection
therewith, each existing Multicurrency Bank will assign to Marine Midland Bank
(without representation or warranty), and Marine Midland Bank will purchase from
each such existing Multicurrency Bank, outstanding Multicurrency Loans such that
after giving effect thereto, all Multicurrency Banks (including Marine Midland
Bank) shall have outstanding Multicurrency Loans pro rata as described in the
Credit Agreement.
3. In order to induce the Banks to enter into this Agreement,
each of the New Borrowers and Old USI hereby represents and warrants that:
(i) the representations, warranties and agreements contained
in Article 6 of the Credit Agreement are true and correct in all
material respects on and as of the Amendment Effective Date (as defined
in Section 6 of this Agreement) (it being understood and agreed that
any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct in all material
respects as of such specified date), both before and after giving
effect to this Agreement;
(ii) there exists no Default or Event of Default on the
Amendment Effective Date, both before and after giving effect to this
Agreement; and
(iii) neither the execution, delivery or performance by either
New Borrower or Old USI of this Agreement, nor the consummation of the
transactions contemplated hereby (x) will contravene any provision of
any applicable law, statute, rule or regulation or any applicable
order, writ, injunction or decree of any court or governmental
instrumentality, (y) will conflict with or result in any breach of any
of the terms, covenants, conditions or provisions of, or constitute a
default under any indenture (including the Senior Notes Indenture),
mortgage, deed of trust, credit agreement or loan agreement, or any
other material agreement, contract or instrument to which either New
Borrower or Old USI is a party or by which it or any of its property or
assets is bound or to which it may be subject or (z) will violate any
provision of the certificate of incorporation or by-laws (or equivalent
organizational documents) of any New Borrower or Old USI;
(iv) all necessary governmental (domestic and foreign) and
third party approvals in connection with this Agreement and the Mergers
shall have been (or will, within the time frame required, be) obtained
and remain in effect, and all applicable waiting periods shall have
expired without any action being taken by any competent authority which
restrains, prevents or impairs materially adverse conditions upon, the
consummation of the Mergers or the other transactions contemplated
hereby; and
(v) no litigation by any entity (private or governmental)
shall be pending or threatened with respect to this Agreement or the
Mergers or any documentation executed in connection herewith or
therewith.
4. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Company, USI Funding, New USI, the
Issuing Bank, the Swingline Bank and the Agent.
5. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
2
6. This Agreement and the Amended Credit Agreement
contemplated hereby shall become effective on the date (the "Amendment Effective
Date") when each of the following conditions shall have been met:
(a) The Company, USI Funding, New USI, Old USI, the Issuing
Bank, the Swingline Bank, the Agent and the Majority Banks shall have
signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Agent in accordance with Section 12.02(a)
of the Credit Agreement;
(b) The Agent shall have received from Weil, Gotshal & Xxxxxx
LLP, counsel to each of the Company, Old USI and New USI, an opinion
addressed to the Agent, the Issuing Bank, the Swingline Bank and each
of the Banks and dated the Amendment Effective Date in form and
substance satisfactory to the Agent and covering such matters incident
to this Agreement and the transactions contemplated herein as the Agent
may reasonably request;
(c) The Agent shall have received resolutions of the Board of
Directors of New USI, which resolutions shall be certified by the
secretary or any assistant secretary of New USI and shall authorize the
execution, delivery and performance by New USI of this Agreement and
the consummation of the transactions contemplated hereby, and the
foregoing shall be acceptable to the Agent in its reasonable
discretion;
(d) USI Funding shall have repaid all of its outstanding
Obligations, if any, under the Credit Agreement; and
(e) the Mergers shall have been consummated in accordance with
the terms of the Merger Documents and all applicable laws.
7. Pursuant to Section 12.02(a) of the Credit Agreement, the
address and facsimile numbers for the Company, USI Funding, New USI, Old USI,
the Agent and Bank of America National Trust & Savings Association, as a Bank,
to which all written notices provided for under the Credit Agreement shall be
sent, shall be those set forth below such parties' signature lines hereto.
8. From and after the Amendment Effective Date, all references
in the Credit Agreement and each of the Loan Documents to the Credit Agreement
shall be deemed to be references to such Credit Agreement as amended hereby.
* * *
3
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
USI AMERICAN HOLDINGS, INC.
By /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
Address for notices:
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx Meulen
Assistant Treasurer
Facsimile: (000) 000-0000
Tel: (000) 000-0000
USI FUNDING, INC.
By /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
Address for notices:
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx Meulen
Assistant Treasurer
Facsimile: (000) 000-0000
Tel: (000) 000-0000
U.S. INDUSTRIES, INC.
By /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
Address for notices:
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx Meulen
Assistant Treasurer
Facsimile: (000) 000-0000
Tel: (000) 000-0000
USI ATLANTIC CORP.
By /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
Address for notices:
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx Meulen
Assistant Treasurer
Facsimile: (000) 000-0000
Tel: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Agent
By /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
Address for notices:
0000 Xxxxxxx Xxxx., 0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Agency Administrative
Services (#5596)
Facsimile: (000) 000-0000
Tel: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Issuing Bank
By /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
Address for notices:
Bank of America National Trust
and Savings Association
Letter of Credit (#1580)
000 XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, VP
Facsimile: (000) 000-0000
Tel: (000) 000-0000
With a copy to:
0000 Xxxxxxx Xxxx., 0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Agency Administrative
Services (#5596)
Facsimile: (000) 000-0000
Tel: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Swingline Bank
By /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
Address for notices:
000 Xxxx Xxxxxxx Xxxxxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxxx
Account Administration
Facsimile: (000) 000-0000
Tel: (000) 000-0000
With a copy to:
0000 Xxxxxxx Xxxx., 0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Agency Administrative
Services (#5596)
Facsimile: (000) 000-0000
Tel: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Bank
By /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
Address for notices:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Credit Products
Facsimile: (000) 000-0000
Tel: (000) 000-0000
BANKAMERICA XXXXXXXXX XXXXXXXX,
as Arranger
By /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title:
Address for notices:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx
Syndications (#2698)
Facsimile: (000) 000-0000/7031
Tel.: (000) 000-0000
ABN AMRO BANK, N.V.
By /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Group Vice President
By /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Corporate Banking Officer
BANCA NAZIONALE DEL LAVORO S.P.A.
NEW YORK BRANCH
By ___________________________
Name:
Title:
By ___________________________
Name:
Title:
THE BANK OF NEW YORK
By /s/ Xxxxxxxx X.X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X.X. Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By ___________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
BANKERS TRUST COMPANY
By ____________________________
Name:
Title:
BANQUE PARIBAS
By /s/ Xxxx X. XxXxxxxxx, III
---------------------------------
Name: Xxxx X. XxXxxxxxx, III
Title: Vice President
By /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
THE CHASE MANHATTAN BANK
By /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
CIBC, INC.
By _____________________________
Name:
Title:
CITIBANK, N.A.
By /s/ X. Xxxxxxx
---------------------------------
Name: X. Xxxxxxx
Title: Attorney-in-Fact
CREDIT LYONNAIS NEW YORK
BRANCH
By /s/ Xxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxxx Xxxxx
Title: First Vice President-
Manager
THE DAI-ICHI KANGYO BANK, LIMITED
By /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
DEUTSCHE BANK AG, NEW YORK
BRANCH AND/OR CAYMAN ISLANDS
BRANCH
By /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
THE FIRST NATIONAL BANK
OF CHICAGO
By /s/ Xxxxxxx X. XxXxxxxx
----------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: First Vice President
FLEET NATIONAL BANK
By /s/ Xxxxxxx Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx Xxxxxx
Title: Vice President
THE FUJI BANK, LIMITED,
NEW YORK BRANCH
By _________________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Joint General Manager
LTCB TRUST COMPANY
By /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
MARINE MIDLAND BANK
By /s/ Xxxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
MELLON BANK, N.A.
By ________________________________
Name:
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ Xxxxxxx Xxxxx-Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx-Xxxxx
Title: Vice President
NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH
By /s/ Xxxx Xxxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx Xxxxx
Title: Vice President
NATIONAL WESTMINSTER BANK PLC
NASSAU BRANCH
By /s/ Xxxx Xxxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx Xxxxx
Title: Vice President
NATIONSBANK, N.A.
By /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
ROYAL BANK OF CANADA
By /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Manager
THE ROYAL BANK OF SCOTLAND
PLC
By /s/ Xxxxx Gennar
---------------------------------
Name: Xxxxx Gennar
Title: Vice President
THE SANWA BANK, LIMITED,
NEW YORK BRANCH
By /s/ Xxxx-Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxx-Xxxxxx Xxxxxxx
Title: Vice President
SOCIETE GENERALE
By /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Joint General Manager
THE SUMITOMO TRUST & BANKING
CO., LTD, NEW YORK BRANCH
By ___________________________
Name:
Title:
TORONTO-DOMINION (NEW YORK),
INC.
By ____________________________
Name:
Title:
