EXHIBIT 10.2
EXECUTION COPY
AMENDMENT
AMENDMENT dated as of February 16, 2001 (this "AMENDMENT"), to
Credit Agreement dated as of October 27, 2000 (as such agreement has been
amended, supplemented or otherwise modified to the date hereof, the "CREDIT
AGREEMENT"), each among U.S. INDUSTRIES, INC. (formerly known as USI, Inc.), a
Delaware corporation ("USI"), USI GLOBAL CORP., a Delaware corporation ("USI
GLOBAL"), USI AMERICAN HOLDINGS, INC., a Delaware corporation ("USI American";
USI, USI Global and USI American are each referred to herein, individually, as a
"BORROWER", and, collectively, as the "BORROWERS"), USI ATLANTIC CORP. (formerly
known as U.S. Industries, Inc.), a Delaware corporation ("USI ATLANTIC"; USI and
USI Atlantic are each individually referred to herein as a "GUARANTOR PARTY",
and collectively, as the "GUARANTOR PARTIES"), and BANK OF AMERICA, N.A., as
administrative agent for itself and the other Banks which may hereafter become a
party to the Credit Agreement (in such capacity, the "AGENT"), and as the sole
Bank party to the Credit Agreement (in such capacity, the "BANK"). Capitalized
terms used without definition in this Amendment shall have the respective
meanings provided in the Credit Agreement.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrowers have requested that the Banks amend the
financial covenants in Section 7.10 of the Credit Agreement and amend the
definition of the term Net Interest Expense in Section 1.01 of the Credit
Agreement, in each case, as hereinafter set forth; and
WHEREAS, the Bank is, in consideration of the amendments to Sections
2.10(a) and 2.11(a) of the Credit Agreement and the covenants of the Borrowers
set forth in Sections 4, 5 and 6 of this Amendment, willing to grant the request
of the Borrowers as hereinafter set forth;
NOW, THEREFORE, the parties agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is,
effective as of December 30, 2000 and subject to the satisfaction of the
conditions precedent set forth in Section 2, hereby amended, as follows:
(a) DEFINITIONS; LOAN DOCUMENTS; NET INTEREST EXPENSE. The
definitions of the terms Loan Documents and Net Interest Expense in
Section 1.01 of the Credit Agreement are deleted and replaced in their
entirety by the following new definitions for such terms:
2
""LOAN DOCUMENTS" means this Agreement (including the guaranty set
forth in Article IX) and all other agreements, instruments,
certificates, Security Instruments or other documents evidencing the
Loans or the other obligations of Old USI or any Borrower hereunder
or under the Fee Letter or granting, evidencing or otherwise
relating to any Lien granted by Old USI, any Borrower or any of
their Subsidiaries to secure any such obligation."
""NET INTEREST EXPENSE" means, for any Measurement Period:
(a) the aggregate amount of interest expense of New USI and
its consolidated Subsidiaries for such period, as determined on a
consolidated basis in accordance with GAAP:
less
(b) the sum for such period of:
(i) the aggregate interest income of New USI and its
consolidated Subsidiaries, as determined in accordance with
GAAP (other than any interest accrued on any of those certain
12-1/2% senior notes due 2007 issued by Strategic Finance
Company which is included in such aggregate interest income
for any period during which such notes are not in default);
and
(ii) the amortization of all fees (including, other than
in connection with a calculation of the Consolidated Leverage
Ratio, upfront costs and expenses under Interest Rate
Protection Agreements fairly allocated to such Interest Rate
Protection Agreements as expenses for such period) payable in
connection with the incurrence of Indebtedness to the extent
included in interest expense.";
(b) INTEREST. Sections 2.10(a) and (b) of the Credit Agreement are
deleted and replaced in their entirety by the following new Sections
2.10(a) and (b):
"2.10 INTEREST. (a) Except as provided in PARAGRAPH (E)
below, each Loan shall bear interest on the outstanding
principal amount thereof from the Borrowing Date applicable
thereto until it becomes due at a rate per annum equal to the
Base Rate or LIBOR, as the case may be, plus 1.75%.
(b) [Intentionally Deleted.]";
(c) FEES. Section 2.11(a) of the Credit Agreement is deleted and
replaced in its entirety by the following new Section 2.11(a):
3
"2.11 FEES.
(a) FACILITY FEES. The Borrowers shall pay to the Agent
for the account of each Bank a facility fee on the average of
such Bank's Commitment, regardless of the utilization thereof,
computed on a quarterly basis in arrears on each Interest
Payment Date for Base Rate Loans based upon the average daily
amount of such Bank's Commitment for the previous three month
period as calculated by the Agent and payable on such date,
equal to 0.50% per annum.";
(d) LIENS. Section 7.01(a) of the Credit Agreement is deleted and
replaced in its entirety by the following new Section 7.01(a):
"(a) Liens which were granted prior to the date hereof
securing Indebtedness or other obligations having an aggregate
principal or face amount not exceeding $5,000,000, and
refinancings, renewals and extensions thereof to the extent
not encumbering additional property; and Liens granted by the
Borrowers and their Subsidiaries from time to time pursuant to
any of the Loan Documents in favor of the Banks and the Agent
(and any other holders of Indebtedness of any Borrower or any
Guarantor Party which may be ratably secured by any such Loan
Document);"; and
(e) FINANCIAL COVENANTS. Section 7.10 of the Credit Agreement is
deleted and replaced in its entirety by the following new Section 7.10:
"7.10 FINANCIAL COVENANTS.
(a) CONSOLIDATED LEVERAGE RATIO. New USI shall not
permit its Consolidated Leverage Ratio as determined for any
Measurement Period to be greater than (i) 4.00:1, for the
Measurement Period ending December 31, 2000, (ii) 4.25:1, for
the Measurement Period ending Xxxxx 00, 0000, (xxx) 4.00:1,
for the Measurement Period ending June 30, 2001, and (iv)
3.75:1, for the Measurement Period ending September 30, 2001.
(b) MAXIMUM TOTAL FUNDED DEBT. New USI will not permit
its ratio of Total Funded Debt to Capital to exceed
0.65:1.00.".
SECTION 2. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective as of December 30, 2000, when, and only when, the Agent shall have
received, the following (the date of such receipt is sometimes referred to
herein as the "EFFECTIVE DATE"), each in form and substance satisfactory to the
Agent:
(a) AMENDMENT. counterparts of this Amendment duly executed by each
of the Borrowers, USI Atlantic, and the Bank;
(b) AMENDMENT TO 5-YEAR CREDIT AGREEMENT. an amendment to that
certain Credit Agreement dated as of December 12, 1996 (as amended and in
effect on the date
4
hereof, the "5-YEAR AGREEMENT"), among the Borrowers, USI Atlantic, the
several banks, financial institutions and other institutional lenders
party thereto, Bank of America Securities LLC, as arranger, and Bank of
America, N.A., as administrative agent for the bank's party thereto, and
as issuing bank and swing line bank thereunder, amending the definitions
of the terms Loan Documents and Net Interest Expense under Section 1.01
thereof, and Sections 2.12(a) and (b), 2.13(a)(i), 8.01(a) and 8.10
thereof on terms substantially similar to the amendments in Section 1 of
this Amendment, duly executed by each Borrower, USI Atlantic and the
Majority Banks (as therein defined); and each of the other conditions
precedent to the effective date thereunder shall have been satisfied;
(c) SECRETARY'S CERTIFICATE; CHARTER; BY-LAWS; RESOLUTIONS;
INCUMBENCY. certificates of the secretary or assistant secretary of each
of the Borrowers and USI Atlantic (each Borrower and USI Atlantic are
sometimes referred to herein as an "OBLIGOR") dated the Effective Date
(the statements made in each certificate shall be true as of such date),
certifying as to (and attaching, as applicable):
(i) a true and correct copy of the charter of such Obligor,
and each amendment thereto; that such charter, as so amended, has
not been further amended, supplemented or otherwise modified; that
such Obligor has been duly incorporated and is in good standing and
validly existing as a corporation organized under the laws of the
jurisdiction of its incorporation; and that no proceedings for the
dissolution or liquidation of such Obligor have been commenced or
are continuing;
(ii) a true and correct copy of the by-laws of such Obligor
and each amendment thereto; and that such by-laws, as so amended,
have not been further amended, supplemented or otherwise modified;
(iii) copies of the resolutions of the board of directors of
such Obligor approving and authorizing the execution, delivery and
performance by such Obligor of this Amendment and of each of the
other Loan Documents to be delivered by such Obligor hereunder, and
the consummation of the transactions contemplated by such Loan
Documents to be consummated by such Obligor; and
(iv) the names and true signatures of the officers of such
Obligor authorized to execute, deliver and perform, as applicable,
the Loan Documents to which it is, or will be, a party, and all
notices, requests and other communications to be delivered by it
hereunder or thereunder;
(d) CERTIFICATE. a certificate signed by a Responsible Officer of
USI and each other Obligor, dated as of the Effective Date stating that
(and the following statements shall be true and correct in all material
respects on and as of the Effective Date):
(i) the representations and warranties of each Obligor
contained in Section 3 of this Amendment are true and correct on and
as of such date, as though made on and as of such date (except to
the extent such representations and
5
warranties expressly relate to an earlier date, in which case such
representations and warranties shall be true and correct as of such
earlier date); and
(ii) no event has occurred and is continuing that constitutes
a Default or Event of Default;
(e) BRING-DOWN CERTIFICATES. a good standing certificate for each
Obligor from the Secretary of State (or similar office) of its state of
incorporation, dated a date not earlier than five Business Days prior to
the Effective Date;
(f) AMENDMENT FEE. payment to the Agent for the account of the Bank
of a fee equal to 0.075% of the Bank's Commitment; and
(g) PAYMENT OF FEES AND EXPENSES. evidence that all fees and
reasonable costs and expenses (including Attorney Costs) payable by the
Borrowers to Bank of America, N.A. on or before the Effective Date have
been paid.
This Amendment is subject to the provisions of Section 11.01 of the
Credit Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS. The
Borrowers represent and warrant as follows, on and as of the Effective Date
hereof after giving effect to this Amendment:
(a) the execution and delivery by each Obligor of this Amendment and
the performance by such Obligor of its obligations hereunder have been
authorized by all necessary corporate actions, and do not and will not:
(i) contravene the terms of such Obligor's charter or by-laws;
(ii) conflict with or result in any breach or contravention
of, or the creation of any Lien under (except as contemplated by
Sections 4, 5 and 6 of this Amendment), any document, evidencing any
material Contractual Obligation to which such Obligor or any of its
Subsidiaries is a party or any order, injunction, writ or decree of
any Governmental Authority to which such Person or its property is
subject; or
(iii) violate any Requirement of Law;
(b) the representations and warranties contained in Article V of the
Credit Agreement are correct on and as of the date hereof as though made
on and as of the date hereof, other than any such representations or
warranties that, by their terms, refer to a specific date; and
(c) no event has occurred and is continuing that constitutes a
Default or Event of Default.
6
SECTION 4. POST-EFFECTIVE DATE DELIVERIES. Promptly, and in any case
on or prior to April 30, 2001 (the "PERFECTION DATE"), each Obligor shall, and
shall cause each of its Subsidiaries which is organized under the laws of any
state of the United States of America (such Subsidiaries, together with any such
Subsidiaries which are organized or acquired after the Perfection Date, are
sometimes referred to herein as "SUBSIDIARY PLEDGORS"), to deliver to the Agent:
(a) COLLATERAL TRUST AGREEMENT. a collateral trust agreement in
substantially the form delivered by the Agent to the Borrowers prior to
the Effective Date, with such changes thereto as the Borrowers may request
and the Agent may agree, in its sole discretion (the "COLLATERAL TRUST
AGREEMENT"), executed by Wilmington Trust Company or such other trust
company as the Borrowers and the Agent may agree, as collateral trustee
for the Banks and the Agent and certain other holders of senior
Indebtedness of the Obligors (the "COLLATERAL TRUSTEE"), each Obligor and
each Subsidiary Pledgor, together with a copy of each agreement and
certificate delivered to the Collateral Trustee by the Borrowers pursuant
to the terms of the Collateral Trust Agreement (which shall include,
without limitation, copies of the 5-Year Agreement, the Senior Notes
Documents, the 7-1/8% Notes Documents, and each other document evidencing
the Indebtedness of the Borrowers to any such holders which is ratably
secured thereunder, in each case, as amended, supplemented or otherwise in
effect on the Perfection Date);
(b) PLEDGE AND SECURITY AGREEMENT. a pledge and security agreement
in substantially the form delivered by the Agent to the Borrowers prior to
the Effective Date, with such changes thereto as the Borrowers may request
and the Agent may agree, in its sole discretion (the "PLEDGE AND SECURITY
AGREEMENT"), executed by each Obligor and each Subsidiary Pledgor,
together with (i) a receipt executed by the Collateral Trustee
acknowledging receipt of certificates representing 100% of the outstanding
capital stock of any Obligor and any Subsidiary Pledgor owned by each
Obligor and each Subsidiary Pledgor and 65% of the outstanding capital
stock of any other Subsidiary owned by such Obligor or such Subsidiary
Pledgor, each accompanied by undated stock powers executed in blank, and
(ii) duly executed financing statements in form for filing under the
uniform commercial code of all jurisdictions that the Agent may reasonably
deem necessary or desirable in order to perfect and protect the first
priority liens and security interests created under the Pledge and
Security Agreement covering the Collateral owned by each Obligor and each
Subsidiary Pledgor on the Effective Date;
(c) LIEN SEARCHES. lien search reports with respect to each Obligor
and each Subsidiary Pledgor in the applicable records of the jurisdiction
where such Person is organized, the jurisdiction where such Person
maintains its chief executive office, each other jurisdiction where such
Person maintains any material item or items of the Collateral, and each
Governmental Authority referred to in SUBSECTION (D) below, which reports
shall identify all effective financing statements, tax liens, judgments
and other Liens of record filed against such Person in any such
jurisdiction, together with (i) copies of each such filing, and (ii)
evidence satisfactory to the Agent that any such filing which is not
permitted under the Credit Agreement has been released of record by the
filing of appropriate release documentation with any applicable
Governmental Authority;
7
(d) INTELLECTUAL PROPERTY. an intellectual property security
agreement, in substantially the form delivered by the Agent to the
Borrowers prior to the Effective Date, with such changes thereto as the
Borrowers may request and the Agent may agree, in its sole discretion,
duly executed by each Obligor and each Subsidiary Pledgor, together with
evidence reasonably satisfactory to the Agent that all filings with any
Governmental Authority that the Agent may deem necessary or desirable in
order to perfect and protect the first priority liens and security
interests created thereunder in the Collateral which is not Immaterial IP
Collateral (as defined in the Pledge and Security Agreement) have been
made;
(e) LIEN PERFECTION. evidence reasonably satisfactory to the Agent
that all other actions that the Agent may deem necessary or desirable in
order to perfect and protect the first priority liens and security
interests created under the Pledge and Security Agreement, but excluding,
however, until such time as such action may be required pursuant to
Section 5 of this Amendment, (i) any such action as may be necessary to
perfect such lien in any motor vehicles or any other item of Collateral as
to which the Agent has determined that the cost and expense of perfecting
and maintaining such Lien with respect to such item of Collateral is
disproportionately high relative to the estimated fair market value of
such item of Collateral (determined based on good faith estimates of such
value provided by USI) and (ii) the execution and delivery of any control
agreements with respect to any bank accounts or security accounts;
(f) SECRETARY'S CERTIFICATE; CHARTER; BY-LAWS; RESOLUTIONS;
INCUMBENCY. certificates of the secretary or assistant secretary of each
Subsidiary Pledgor dated the Perfection Date (the statements made in each
certificate shall be true as of such date), certifying as to (and
attaching, as applicable):
(i) a true and correct copy of the charter of such Subsidiary
Pledgor, and each amendment thereto; that such charter, as so
amended, has not been further amended, supplemented or otherwise
modified; that such Subsidiary Pledgor has been duly incorporated
and is in good standing and validly existing as a corporation
organized under the laws of the jurisdiction of its incorporation;
and that no proceedings for the dissolution or liquidation of such
Subsidiary Pledgor have been commenced or are continuing;
(ii) a true and correct copy of the by-laws of such Subsidiary
Pledgor and each amendment thereto; and that such by-laws, as so
amended, have not been further amended, supplemented or otherwise
modified;
(iii) copies of the resolutions of the board of directors of
such Subsidiary Pledgor approving and authorizing the execution,
delivery and performance by such Subsidiary Pledgor of each of the
Loan Documents to be delivered by such Subsidiary Pledgor hereunder,
and the consummation of the transactions contemplated by such Loan
Documents to be consummated by such Subsidiary Pledgor; and
8
(iv) the names and true signatures of the officers of such
Subsidiary Pledgor authorized to execute, deliver and perform, as
applicable, the Loan Documents to which it is, or will be, a party,
and all notices, requests and other communications to be delivered
by it hereunder or thereunder;
(g) CERTIFICATE. a certificate signed by a Responsible Officer of
USI and each other Obligor, dated as of the Perfection Date stating that
(and the following statements shall be true and correct in all material
respects on and as of the Perfection Date):
(i) set forth on a schedule attached to such certificate is a
complete and accurate list of all direct and indirect Subsidiaries
of USI, showing as of the Perfection Date (as to each such
Subsidiary) the jurisdiction of its incorporation, the number of
shares of each class of its capital stock authorized, and the number
outstanding, on the date thereof and the percentage of each such
class of its capital stock owned (directly or indirectly) by USI or
any other Subsidiary of USI and the number of shares covered by all
outstanding options, warrants, rights of conversion or purchase and
similar rights at the Perfection Date; and that, as of the
Perfection Date, all of the outstanding capital stock in each such
Subsidiary shall have been validly issued, fully paid and
non-assessable and owned by USI or the Subsidiary of USI specified
on such schedule, free and clear of all Liens, other than the Lien
of the Loan Documents;
(ii) the representations and warranties of each Obligor
contained in Section 3 of this Amendment and in each Loan Document
are true and correct on and as of such date (references in Section 3
of this Amendment to the date hereof or to the Effective Date being
deemed to be references to the Perfection Date for these purposes),
as though made on and as of such date (except to the extent that the
representations and warranties in the Credit Agreement expressly
relate to an earlier date, in which case such representations and
warranties shall be true and correct as of such earlier date); and
(iii) no event has occurred and is continuing that constitutes
a Default or Event of Default;
(h) BRING-DOWN CERTIFICATES. a good standing certificate for each
Subsidiary Pledgor from the Secretary of State (or similar office) of its
state of incorporation, dated a date not earlier than ten Business Days
prior to the Perfection Date;
(i) LEGAL OPINIONS. the following legal opinions:
(i) a satisfactory opinion of the general counsel to each of
the Obligors and each Subsidiary Pledgor addressed to the Collateral
Trustee, the Agent and the Banks, as to such matters as the Agent
may reasonably request; and
(ii) a satisfactory opinion of Cadwalader, Xxxxxxxxxx & Xxxx,
special New York counsel to the Obligors and the Subsidiary
Pledgors, addressed to the Agent, the Collateral Trustee and the
Borrowers, as to such matters as the Agent may reasonably request;
and
9
(j) PAYMENT OF FEES AND EXPENSES. evidence that all fees and
reasonable costs and expenses (including Attorney Costs) payable by the
Borrowers to Bank's, the Agent and the Collateral Trustee on or before the
Perfection Date have been paid.
SECTION 5. COVENANTS TO GIVE ADDITIONAL SECURITY. (a) Upon the
written request of the Agent either (a) following the occurrence and during the
continuance of a Default, or (b) at any time that the long-term, unsecured,
senior, non-credit enhanced debt rating of USI is equal to or less than BB+ from
S&P and Ba1 from Xxxxx'x, each Obligor shall, in each case at the Borrowers'
expense:
(i) within 20 days after such request, furnish to the Agent a
description of the real properties owned by the Obligors and the
Subsidiary Pledgors in detail reasonably satisfactory to the Agent;
(ii) within 25 days after such request, duly execute and deliver,
and cause each Subsidiary Pledgor to duly execute and deliver, to the
Collateral Trustee, mortgages, deeds of trust and other Security
Instruments, as specified by and in form and substance reasonably
satisfactory to the Agent, securing payment of all the Obligations under,
and as defined in, the Loan Documents, and constituting Liens on all such
properties (other than any such property as to which the Agent has
determined that the cost and expense of creating, perfecting and
maintaining the Lien of the Loan Documents with respect to such property
are disproportionately high relative to the fair market value of such
property (determined based on good faith estimates of such value provided
by USI));
(iii) within 45 days after such request, take, and cause each of its
Subsidiaries to take, whatever action (including, without limitation, the
recording of mortgages and deeds of trust, the filing of Uniform
Commercial Code fixture filings, the giving of notices and the endorsement
of notices on title documents) may be necessary or reasonably advisable in
the opinion of the Agent to vest in the Collateral Trustee (or in any
representative of the Collateral Trustee designated by it) valid and
subsisting Liens on the properties purported to be subject to such Loan
Documents, enforceable against all third parties in accordance with their
terms, including without limitation, obtaining landlords', warehousemen's
and bailees' waiver and consent agreements with respect to equipment and
inventory locations identified pursuant to schedules to be attached to the
Pledge and Security Agreement, as such schedule may be supplemented from
time to time, and control agreements with respect to bank accounts and
securities accounts identified pursuant to schedules to be attached to the
Pledge and Security Agreement, as such schedule may be supplemented from
time to time (notwithstanding that delivery of any such waiver and consent
agreement or control agreement, as the case may be, was not previously
required pursuant to Section 4 of this Amendment or pursuant to the Pledge
and Security Agreement);
(iv) within 60 days after such request, deliver to the Collateral
Trustee, upon the request of the Agent in its sole discretion, a signed
copy of a favorable opinion or opinions, addressed to the Agent, the
Collateral Trustee and the Banks, of counsel for the Obligors and the
Subsidiary Pledgors acceptable to the Agent as to the matters contained in
clauses (ii) and (iii) above, as to such mortgages, deeds of trust and
other Security
10
Instruments being legal, valid and binding obligations of each Obligor or
Subsidiary Pledgor party thereto enforceable in accordance with their
terms, as to the matters contained in clause (iii) above, as to such
recordings, filings, notices, endorsements and other actions being
sufficient to create valid perfected Liens on such properties, and as to
such other matters as the Agent may reasonably request;
(v) as promptly as practicable after such request, deliver, upon the
request of the Agent in its sole discretion, to the Collateral Trustee
with respect to each parcel of real property owned or held by the entity
that is the subject of such request, any title reports, surveys and
engineering, soils and other reports, and environmental assessment
reports, each in scope, form and substance satisfactory to the Agent; and
(vi) at any time and from time to time, promptly execute and deliver
any and all further instruments and documents and take all such other
action as the Agent may deem necessary or reasonably desirable in
obtaining the full benefits of, or in perfecting and preserving the Liens
of, such Loan Documents.
SECTION 6. NEW SUBSIDIARIES. Within 10 days after the formation or
acquisition of any new direct or indirect Subsidiary by any Obligor or
Subsidiary Pledgor after the Perfection Date, each Obligor shall cause each such
Subsidiary which is a Subsidiary Pledgor to duly execute and deliver to the
Collateral Trustee a supplement or supplements to the Loan Documents, in form
and substance satisfactory to the Agent, as may be necessary or advisable to
cause such Subsidiary to become a party to the Collateral Trust Agreement, the
Pledge and Security Agreement and any other Security Instrument referred to in
Section 4 or 5 of this Amendment, and to deliver to the Collateral Trustee all
stock certificates, certificates and instruments, financing statements and other
Security Instruments required to be delivered pursuant to the terms of the Loan
Documents.
SECTION 7. EFFECT ON THE CREDIT AGREEMENT; LOAN DOCUMENTS. (a) On
and after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the other Loan
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement, as waived by this Amendment.
(b) The Credit Agreement, as specifically waived by this Amendment,
is and shall continue to be in full force and effect and is hereby in all
respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a Amendment of
any right, power or remedy of any Bank or the Agent under the Credit
Agreement or any of the other Loan Documents, nor constitute a Amendment
of any provision of the Credit Agreement or any of the other Loan
Documents.
(d) Each of this Amendment, the Collateral Trust Agreement, the
Pledge and Security Agreement and each other instrument or agreement
delivered by an Obligor or
11
any Subsidiary Pledgor pursuant to Sections 4, 5 or 6 of this Amendment
is, and shall be considered to be, a Loan Document for all purposes of the
Credit Agreement. If any representation made by any Borrower, any
Guarantor Party or any Subsidiary Pledgor in this Amendment or in any such
other Loan Document shall prove to be incorrect in any material respect on
or as of the date made, or USI, any other Obligor or any Subsidiary
Pledgor shall fail to perform or observe any covenant contained in this
Amendment or in any such other Loan Document, then such act or occurrence
shall constitute a Default or an Event of Default, as the case may be, at
the time provided in Section 8.01 of the Credit Agreement.
SECTION 8. CONSENT OF GUARANTOR PARTIES. Each Guarantor Party hereby
consents to the Credit Agreement, as amended by this Amendment.
SECTION 9. EXECUTION IN COUNTERPARTS. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 10. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
* * *
Signature Page
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
U.S. INDUSTRIES, INC.
By:
-----------------------------------------
Title: VP & Chief Financial Officer
By:
-----------------------------------------
Title: Assistant Treasurer
USI GLOBAL CORP.
By:
-----------------------------------------
Title: VP & Chief Financial Officer
By:
-----------------------------------------
Title: Assistant Treasurer
USI AMERICAN HOLDINGS, INC.
By:
-----------------------------------------
Title: VP & Chief Financial Officer
By:
-----------------------------------------
Title: Assistant Treasurer
USI ATLANTIC CORP.
By:
-----------------------------------------
Title: VP & Chief Financial Officer
By:
-----------------------------------------
Title: Assistant Treasurer
Signature Page
BANK OF AMERICA, N.A., as Agent,
and as a Bank
By:
-----------------------------------------
Title: Managing Director
