Exhibit 10.53
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
This First Amendment to Loan and Security Agreement, dated as of
October 10, 2003 (this "Amendment"), is entered into by and among Jacuzzi
Brands, Inc., a Delaware corporation ("Parent"), the other borrowers named on
the signature page hereto (together with Parent, each a "Borrower" and,
collectively, "Borrowers"), Fleet Capital Corporation, a Rhode Island
corporation, as administrative agent and collateral agent (in such capacity,
"Administrative Agent") under the Loan and Security Agreement referred to below,
Silver Point Finance LLC, as agent for the Term Loan B Lenders (in such
capacity, "Term Loan B Agent") under the Loan and Security Agreement referred to
below, the Revolving Credit Lenders under the Loan and Security Agreement
referred to below and the Term Loan B Lenders under the Loan and Security
Agreement referred to below.
RECITALS
A. Borrowers, Administrative Agent, Term Loan B Agent, the Revolving
Credit Lenders and the Term Loan B Lenders are parties to that certain Loan and
Security Agreement, dated as of July 15, 2003 (as from time to time hereafter
further amended, restated, supplemented or otherwise modified and in effect, the
"Loan Agreement"), pursuant to which the Revolving Credit Lenders and the Term
Loan B Lenders have made and the Revolving Credit Lenders will hereafter
continue to make loans and advances and other extensions of credit to Borrowers.
B. Parent has informed Administrative Agent that it would like to take
the following corporate restructuring actions: (1) Parent has formed JBI
Holdings Limited, a new wholly-owned Subsidiary incorporated under the laws of
England and Wales ("Newco"), (2) USI Atlantic Corp., a Delaware corporation and
an existing Guarantor ("USI Atlantic"), shall transfer all of the issued and
outstanding shares of stock of USI American Holdings, Inc., a Delaware
corporation and an existing Borrower ("USIAH"), to Newco, (3) Parent shall
contribute all of the issued and outstanding shares of common stock of USI
Global Corp., a Delaware corporation and an existing Borrower ("USI Global"), to
Newco, and (4) Newco shall contribute all of the issued and outstanding shares
of common stock of USI Global to USIAH (such transactions, collectively, the
"Jacuzzi Restructuring").
C. Borrowers, Administrative Agent, Term Loan B Agent, the Revolving
Credit Lenders and the Term Loan B Lenders are willing to consent to the Jacuzzi
Restructuring and to amend the Loan Agreement as and to the extent set forth
herein and pursuant to, and subject to, the terms and conditions set forth in
this Amendment.
D. This Amendment shall constitute a Loan Document and these Recitals
shall be construed as part of this Amendment. Capitalized terms used herein
without definition are so used as defined in the Loan Agreement and Appendix A
thereto.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained and the Revolving Credit Lenders and Term Loan B
Lenders continuing to make Loans available under the terms of the Loan Agreement
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. CONSENT. The Revolving Credit Lenders and the Term Loan B Lenders hereby
consent to the Jacuzzi Restructuring subject to the satisfaction of each of the
following terms and conditions in a manner acceptable to Administrative Agent
and Term Loan B Agent:
1.1. Each of the transfers and contributions of stock that comprise the
Jacuzzi Restructuring shall be made expressly subject to the Liens on such stock
previously granted to Administrative Agent, as security for the Obligations
under the Loan Agreement.
1.2. All documents, agreements and instruments entered into in order to
effect the Jacuzzi Restructuring shall be in form and substance satisfactory to
Administrative Agent and Term Loan B Agent.
1.3. Parent shall execute and deliver a Deed of Charge over all of the
issued and outstanding shares of Newco, in form and substance satisfactory to
Administrative Agent and Term Loan B Agent, as security for the Obligations
under the Loan Agreement, and shall deliver to Administrative Agent a share
certificate and related instrument of transfer with respect to such shares of
Newco.
1.4. Notwithstanding that Newco is a Foreign Subsidiary, Newco shall
execute and deliver a joinder to the Guaranty Agreement, Guarantor Security
Agreement and Pledge Agreement, each dated as of July 15, 2003 and previously
executed and delivered in connection with the Loan Agreement, by which Newco
shall become a party to, and become bound by, each of such agreements as if it
had been an original party thereto.
1.5. Newco shall deliver a share certificate and related stock power
with respect to all of the issued and outstanding shares of stock of USIAH,
which will be owned by Newco following the Jacuzzi Restructuring.
1.6. USIAH shall deliver a share certificate and related stock power
with respect to all of the issued and outstanding shares of common stock of USI
Global, which will be owned by USIAH following the Jacuzzi Restructuring.
1.7. Parent and its Subsidiaries shall deliver to Administrative Agent
such other documents, instruments, agreements, certificates and opinions of
counsel as Administrative Agent or Term Loan B Agent shall reasonably request in
connection with the Jacuzzi Restructuring and the attachment and perfection of
Administrative Agent's Liens in the shares of Newco, USIAH and USI Global.
2. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby amended as
follows:
2.1. The following is inserted as a new subsection 8.2.22 to the Credit
Agreement:
"8.2.22. NEWCO. JBI Holdings Limited shall not own any assets other
than the shares of USIAH, shall not incur any liabilities other than
its guaranty of the Obligations hereunder and its guaranty of the
Indebtedness under the New Senior Secured Notes and shall not engage in
any trade or business."
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2.2. Upon the consummation of the Jacuzzi Restructuring, the following
Exhibits to the Loan Agreement shall be amended and/or supplemented as and to
the extent set forth in Exhibit A to this Amendment:
(a) Exhibit 6.1.1 - Location of Collateral
(b) Exhibit 7.1.1- Jurisdictions of Qualification
3. REPRESENTATIONS AND WARRANTIES.
3.1. The execution, delivery and performance of this Amendment and the
consummation of the Jacuzzi Restructuring have been or will be duly authorized
by all necessary corporate or other relevant action and do not and will not (i)
contravene the charter, articles or certificate of incorporation, memorandum of
association, partnership agreement, certificate of formation, by-laws, limited
liability agreement, operating agreement or other organizational documents (as
the case may be) of any Borrower or any of its Subsidiaries; (ii) violate, or
cause any Borrower or any of its Subsidiaries to be in default under, any
provision of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award in effect having applicability to any Borrower or
any of its Subsidiaries, the violation of which could reasonably be expected to
have a Material Adverse Effect; (iii) result in a breach of or constitute a
default under any indenture or loan or credit agreement, including, without
limitation, the New Senior Secured Notes Indenture, or any other agreement,
lease or instrument to which any Borrower or any of its Subsidiaries is a party
or by which it or its Properties may be bound or affected, the breach of or
default under which could reasonably be expected to have a Material Adverse
Effect; or (iv) result in, or require, the creation or imposition of any Lien
(other than Permitted Liens) upon or with respect to any of the Properties now
owned or hereafter acquired by any Borrower or any of its Subsidiaries.
3.2. This Amendment is a legal, valid and binding obligation of each
Borrower and each of its Subsidiaries party hereto, enforceable against it in
accordance with its respective terms subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other laws
affecting creditors' rights generally, and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
4. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment is expressly
conditioned upon the satisfaction of each of the following conditions precedent
in a manner acceptable to Administrative Agent:
4.1. Administrative Agent's receipt of counterparts of this Amendment,
duly executed by Borrowers, Majority Lenders, Majority Term Loan B Lenders, and
duly acknowledged by each of the Guarantors.
4.2. After giving effect to this Amendment, no Default or Event of
Default shall have occurred and be continuing or would result from the
effectiveness of this Amendment or the consummation of any of the transactions
contemplated hereby.
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5. REFERENCE TO AND EFFECT UPON THE LOAN AGREEMENT AND OTHER LOAN DOCUMENTS.
5.1. The Loan Agreement, the Notes and each other Loan Document shall
remain in full force and effect and each is hereby ratified and confirmed by
Borrowers and each other Loan Party. Without limiting the foregoing, the Liens
granted pursuant to the Security Documents shall continue in full force and
effect and the guaranties of the Guarantors shall continue in full force and
effect.
5.2. The execution, delivery and effect of this Amendment shall be
limited precisely as written and shall not be deemed to (a) be a consent to any
waiver of any term or condition of, or to any amendment or modification of, any
term or condition (except as specifically set forth herein) of the Loan
Agreement or any other Loan Document or (b) prejudice any right, power or remedy
which the Administrative Agent or any Lender now has or may have in the future
under or in connection with the Loan Agreement, the Notes or any other Loan
Document.
5.3. Each reference in the Loan Agreement to "this Agreement",
"hereunder", "hereof", "herein" or any other word or words of similar import
shall mean and be a reference to the Loan Agreement as amended hereby, and each
reference in any other Loan Document to the Loan Agreement or any word or words
of similar import shall be and mean a reference to the Loan Agreement as amended
hereby.
6. COUNTERPARTS. This Amendment may be executed in any number of counterparts,
each of which when so executed shall be deemed an original but all such
counterparts shall constitute one and the same instrument. A counterpart
signature page delivered by fax transmission shall be as effective as delivery
of an originally executed counterpart.
7. COSTS AND EXPENSES. As provided in Section 2.8 of the Loan Agreement,
Borrowers shall pay the fees, costs and expenses incurred by Administrative
Agent and Term Loan B Agent in connection with the preparation, execution and
delivery of this Amendment (including, without limitation, reasonable attorneys'
fees).
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS)
OF THE STATE OF NEW YORK.
9. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first written above.
BORROWERS:
JACUZZI BRANDS, INC.
BATHCRAFT, INC.
ELJER PLUMBINGWARE, INC.
GATSBY SPAS, INC.
JACUZZI, INC.
JUSI HOLDINGS, INC.
REDMONT, INC.
REXAIR, INC.
SUNDANCE SPAS, INC.
XXXX PEX, INC.
USI AMERICAN HOLDINGS, INC.
USI GLOBAL CORP.
ZURCO, INC.
XXXX INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name:
-----------------------------------
Title: Sr. Vice President, General
Counsel & Secretary
----------------------------------
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Each of the undersigned Guarantors hereby acknowledges the foregoing
First Amendment to Loan and Security Agreement and ratifies and confirms that
each of the Loan Documents to which it is a party shall remain in full force and
effect.
GUARANTORS:
Asteria Company
(f/k/a Elite Bath Company)
Xxxxxx Brothers Inc.
Xxxxxxxx Manufacturing Corp.
(f/k/a Farberware Inc.)
Carlsbad Corp.
(f/k/a Odyssey Sports, Inc.)
Compax Corp.
Eljer Industries, Inc.
Environmental Energy Company
Xxxx Concrete Products, Inc.
HL Capital Corp.
Jacuzzi Whirlpool Bath, Inc.
KLI, Inc. (f/k/a Xxxxxx Ladders, Inc.)
Krikles Canada U.S.A., Inc.
(f/k/a Selkirk Canada U.S.A., Inc.)
Krikles Europe U.S.A., Inc.
(f/k/a Selkirk Europe U.S.A., Inc.)
Krikles, Inc. (f/k/a Selkirk, Inc.)
Lokelani Development Corporation
Luxor Industries Inc.
Maili Kai Land Development Corporation
Mobilite, Inc.
Xxxxxx Universal Holdings Inc.
Outdoor Products LLC
PH Property Development Company
PLC Realty Inc. (f/k/a Prescolite
Lite Controls, Inc.)
Rexair Holdings, Inc.
Sanitary - Dash Manufacturing Co., Inc.
SH 1 Inc.
Strategic Capital Management, Inc.
Strategic Membership Company
Streamwood Corporation
(f/k/a Quantum Performance Films, Inc.)
TA Liquidation Corp.
(f/k/a Xxxxx Xxxxxx Golf Company)
Trimfoot Co.
TT Liquidation Corp.
UGE Liquidation Inc.
(f/k/a W.K. 25, Inc.)
USI Atlantic Corp.
USI Capital, Inc.
USI Funding, Inc.
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USI Properties, Inc.
USI Realty Corp.
Xxxx (Cayman Islands), Inc.
Xxxx Constructors, Inc.
(f/k/a Advanco Constructors, Inc.)
Xxxx XXX Services, Inc.
(f/k/a National Energy Production
Corporation)
Zurnacq of California, Inc.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name:
-----------------------------------
Title: Vice President & Assistant
Secretary
----------------------------------
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FLEET CAPITAL CORPORATION,
as Administrative Agent and as a
Revolving Credit Lender
By: /s/ Xxxxxxxx Xxx
-------------------------------------
Name:
-----------------------------------
Title: Vice President
----------------------------------
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SILVER POINT FINANCE LLC,
as Term Loan B Agent
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name:
-----------------------------------
Title: Authorized Person
----------------------------------
9
TRS THEBE LLC, as a Term Loan B Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name:
-----------------------------------
Title: Vice President
----------------------------------
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XXXXXXX CAPITAL LTD., as a Term
Loan B Lender
By: Citadel Limited Partnership,
Portfolio Manager
By: GLB Partners, L.P.,
its General Partner
By: Citadel Investment Group, L.L.C,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx, CFA
-------------------------------------
Name:
-----------------------------------
Title: Managing Director
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CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch,
as a Revolving Credit Lender
By: /s/ Xxxxxx Adipietco
-------------------------------------
Name:
-----------------------------------
Title: Director
----------------------------------
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name:
-----------------------------------
Title: Associate
----------------------------------
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BANK ONE, NA,
as a Revolving Credit Lender
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name:
-----------------------------------
Title: Associate Director
----------------------------------
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UBS AG, STAMFORD BRANCH,
as a Revolving Credit Lender
By: /s/ Xxxxxxx X. Saint
-------------------------------------
Name:
-----------------------------------
Title: Associate Director
----------------------------------
Banking Products Services, US
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name:
-----------------------------------
Title: Associate Director
----------------------------------
Banking Products Services, US
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HSBC BUSINESS CREDIT (USA), INC.,
as a Revolving Credit Lender
By: /s/ Xxx Xxxxx
-------------------------------------
Name:
-----------------------------------
Title: Vice President
----------------------------------
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LASALLE BUSINESS CREDIT, LLC.,
as a Revolving Credit Lender
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name:
-----------------------------------
Title: Vice President
----------------------------------
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THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Revolving Credit Lender
By: /s/ Xxxxxx Kurold
-------------------------------------
Name:
-----------------------------------
Title: Asst. Vice President
----------------------------------
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WHITEHALL BUSINESS CREDIT CORPORATION,
as a Revolving Credit Lender
By: /s/ Xxxxxx Zautca
-------------------------------------
Name:
-----------------------------------
Title: Vice President
----------------------------------
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EXHIBIT A TO FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
AMENDMENTS TO LOAN AGREEMENT EXHIBITS
1. The following row is inserted in Part A of Exhibit 6.1.1 of the Loan
Agreement:
Legal Name Address of Chief Executive Office County
---------- --------------------------------- ------
JBI Holdings Limited
2. The following row is inserted in Exhibit 7.1.1 of the Loan Agreement:
State/Jurisdiction Jurisdiction(s) in which Loan Party is
Legal Name of Organization Qualified and Authorized to do Business
---------- ------------------ ---------------------------------------
JBI Holdings Limited England and Wales None
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