EXHIBIT 10.8
CLASS B PLEDGE AGREEMENT, dated as of July 15, 2003 (this "AGREEMENT"),
among JACUZZI BRANDS, INC., a Delaware corporation (the "COMPANY"), each
Subsidiary of the Company listed on Schedule I hereto (each, including the
Company, a "PLEDGOR" and collectively the "PLEDGORS") and WILMINGTON TRUST
COMPANY, not in its individual capacity but solely as collateral agent (in such
capacity, the "COLLATERAL AGENT") for the Class B Secured Parties.
W I T NE S S E T H:
WHEREAS, the Pledgors and Wilmington Trust Company, have entered into
the Indenture dated as of July 15, 2003 (as amended, restated, supplemented or
otherwise modified from time to time, the "INDENTURE"), among the Company, the
Subsidiary Guarantors from time to time party thereto and Wilmington Trust
Company, not in its individual capacity but solely as trustee (the "TRUSTEE");
WHEREAS, the Company and Wilmington Trust Company have entered into the
Collateral Agency Agreement dated as of July 15, 2003 (as amended, restated,
supplemented or otherwise modified from time to time, the "COLLATERAL AGENCY
AGREEMENT"), among the Company, the Representatives and the Unrepresented
Holders referred to therein and the Collateral Agent referred to therein;
WHEREAS, each Pledgor is executing and delivering this Agreement
pursuant to the terms of the Indenture to induce potential investors to purchase
the Securities;
WHEREAS, each Pledgor has duly authorized the execution, delivery and
performance of this Agreement; and
WHEREAS, each Pledgor is the legal and beneficial owner of all of the
Pledged Stock (as hereinafter defined) set forth opposite such Pledgor's name in
Schedule II hereto and all of the Pledged Debt (as hereinafter defined) set
forth opposite such Pledgor's name in Schedule III hereto.
NOW, THEREFORE, in consideration of the premises and to induce the
Trustee to enter into the Indenture and to induce potential investors to
purchase the Securities, the Pledgors hereby agree with the Collateral Agent as
follows:
1. DEFINED TERMS. Unless otherwise defined herein, terms defined in (i)
the Collateral Agency Agreement and used herein shall have the meanings given to
them in the Collateral Agency Agreement (whether or not the Collateral Agency
Agreement remains in effect) and (ii) the Indenture and used herein, and not
otherwise defined in the Collateral Agency Agreement, shall have the meanings
given to them in the Indenture (whether or not the Indenture remains in effect).
In addition, as used in this Agreement, the following terms have the meanings
specified below:
"PLEDGED DEBT" means all indebtedness for borrowed money owed to any
Pledgor by any Person, including, without limitation, any Subsidiary of such
Pledgor.
"PLEDGED ENTITY" means (i) the issuer of any Pledged Stock hereunder
and (ii) the obligor under any Pledged Debt hereunder.
"PLEDGED STOCK" means one hundred percent (100%) of the capital stock
and other equity interests of each domestic Subsidiary owned by any Pledgor and
sixty five percent (65%) of the voting capital stock and other equity interests
of each first-tier foreign Subsidiary owned by any Pledgor other than, in each
case, capital stock and other equity interests of any immaterial Subsidiary.
2. PLEDGE; GRANT OF SECURITY INTEREST. To secure the prompt payment and
performance to the Collateral Agent and each other Class B Secured Party of the
Class B Obligations, each Pledgor hereby grants to the Collateral Agent for the
benefit of itself and the other Class B Secured Parties whom Class B Obligations
are owed, a second priority security interest (subject to the terms and
conditions of the Intercreditor Agreement) in and Lien on the following Class B
Collateral, whether now owned or existing or hereafter created, acquired or
arising and wheresoever located (collectively, the "PLEDGED COLLATERAL"):
(a) the Pledged Stock set forth on Schedule II hereto and the
certificates representing the Pledged Stock, and all dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the Pledged
Stock;
(b) the Pledged Debt set forth on Schedule III hereto and the notes and
instruments evidencing the Pledged Debt, and all payments of principal or
interest, cash, note, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the Pledged Debt;
(c) all additional shares of capital stock and other equity interests
constituting Pledged Stock from time to time acquired by any Pledgor in any
manner and the certificates representing such additional Pledged Stock, and all
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such additional Pledged Stock; and
(d) all additional indebtedness constituting Pledged Debt from time to
time owed to any Pledgor and the notes and instruments evidencing such
additional Pledged Debt, and all payments of principal, interest, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
additional Pledged Debt.
3. STOCK POWERS AND NOTE ENDORSEMENTS. Subject to the terms and
conditions of the Intercreditor Agreement (and it being understood that no
delivery described in this Section shall be require until the Senior Lender
Obligations (as defined in the Intercreditor Agreement) have been Paid in Full
(as defined in the Intercreditor Agreement)), concurrently with the delivery to
the Collateral Agent of each certificate representing any of the Pledged Stock,
the Pledgor shall deliver an undated stock power or other instrument of transfer
satisfactory to the Collateral Agent covering such certificate, duly executed in
blank. Subject to the terms and conditions of the Intercreditor Agreement,
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concurrently with the delivery to the Collateral Agent of each note or
instrument representing any of the Pledged Debt, the Pledgor shall deliver an
undated endorsement of such note or instrument, duly executed in blank.
4. COVENANTS. Subject to the terms and conditions of the Intercreditor
Agreement, each Pledgor covenants and agrees with the Collateral Agent that,
from and after the date of this Agreement for so long as there are any Class B
Obligations outstanding (and not defeased) other than Class B Obligations that
have been cash collateralized or covered by a letter of credit to the
satisfaction of the Collateral Agent:
(a) If such Pledgor shall, as a result of its ownership of the Pledged
Stock or Pledged Debt, become entitled to receive or shall receive any
certificate or other instrument (including, without limitation, any certificate
representing a dividend or a distribution in connection with any
reclassification, increase or reduction of capital and any certificate issued in
connection with any reorganization), option, right, note or instrument, whether
in addition to, in substitution of, as a conversion of, or in exchange for any
shares of the Pledged Stock or any of the Pledged Debt, or otherwise in respect
thereof, such Pledgor shall accept the same as the Collateral Agent's agent,
hold the same in trust for the Collateral Agent and, after the Senior Lender
Obligations (as defined in the Intercreditor Agreement) have been Paid in Full
(as defined in the Intercreditor Agreement), deliver the same, if existing at
such time, forthwith to the Collateral Agent in the exact form received, duly
endorsed by such Pledgor to the Collateral Agent, if required, together with, in
the case of certificates, an undated stock power or other instrument of transfer
satisfactory to the Collateral Agent covering such certificate duly executed in
blank and, if the Collateral Agent so requests, with signature guaranteed, to be
held by the Collateral Agent hereunder as additional collateral security for the
Class B Obligations. Any sums paid upon or in respect of the Pledged Stock or
Pledged Debt, whether as a dividend, interest, return of capital, payment of
principal or upon the liquidation or dissolution of any Pledged Entity, after
the Senior Lender Obligations (as defined in the Intercreditor Agreement) have
been Paid in Full (as defined in the Intercreditor Agreement), shall be
deposited in the Class B General Account, and if any property shall be
distributed upon or with respect to the Pledged Stock or Pledged Debt, the
property so distributed shall be subject to the security interest granted in
such property pursuant to the Indenture or Class B Collateral Agreement, as
applicable, as additional collateral security for the Class B Obligations.
(b) Except to the extent permitted by the Indenture, each Pledgor will
not with respect to Pledged Entities whose stock or other equity interests have
been pledged hereunder, vote to enable, or take any other action to permit, any
such Pledged Entity to issue any additional capital stock or other equity
interests of any nature or issue any other securities convertible into or
granting the right to purchase or exchange for any stock or other equity
securities. Each Pledgor will defend the right, title and interest of the
Collateral Agent in and to the Pledged Collateral against the claims and demands
of all persons whomsoever.
(c) At any time and from time to time, upon the written request of the
Collateral Agent, and at the sole expense of Pledgors, each Pledgor will
promptly and duly execute and deliver such further instruments and documents and
take such further actions as the Collateral Agent may reasonably request for the
purposes of obtaining or preserving the full benefits of this Agreement and of
the rights and powers herein granted. If any amount payable under or in
connection with any of the Pledged Collateral shall be or become evidenced by
any promissory note, other instrument or chattel paper, after the Senior Lender
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Obligations (as defined in the Intercreditor Agreement) have been Paid in Full
(as defined in the Intercreditor Agreement), such note, instrument or chattel
paper shall be immediately delivered to the Collateral Agent, duly endorsed in a
manner reasonably satisfactory to the Collateral Agent, to be held as Pledged
Collateral pursuant to this Agreement.
5. VOTING RIGHTS. Subject to the terms and conditions of the
Intercreditor Agreement, and except as otherwise set forth herein, unless an
Event of Default shall have occurred and be continuing and upon notice to
Company, each Pledgor shall be permitted to exercise all voting and corporate
rights with respect to its respective Pledged Stock; provided, however, that no
vote shall be cast or corporate right exercised or other action taken which
would result in any violation of any provision of the Indenture or any Class B
Security Document.
6. RIGHTS OF THE COLLATERAL AGENT.
(a) Subject to the terms and conditions of the Intercreditor Agreement,
if an Event of Default shall have occurred and be continuing, the Collateral
Agent shall have the right to require that all Pledged Stock shall be registered
in the name of the Collateral Agent or its nominee, and the Collateral Agent or
its nominee may thereafter exercise (i) all voting, corporate and other rights
pertaining to the Pledged Stock at any meeting of shareholders of the Pledgors
or otherwise and (ii) any and all rights of conversion, exchange, subscription
and any other rights, privileges or options pertaining to the Pledged Stock as
if it were the absolute owner thereof (including, without limitation, the right
to exchange at its discretion any and all of the Pledged Stock upon the merger,
consolidation, reorganization, recapitalization or other fundamental change in
the corporate structure of any Pledged Entity, or upon the exercise by any
Pledgor or the Collateral Agent of any right, privilege or option pertaining to
such shares of the Pledged Stock, and in connection therewith, the right to
deposit and deliver any and all of the Pledged Stock with any committee,
depositary, transfer agent, registrar or other designated agency upon such terms
and conditions as it may determine), all without liability except to account for
property actually received by it, but the Collateral Agent shall have no duty to
exercise any such right, privilege or option and shall not be responsible for
any failure to do so or delay in so doing.
(b) The rights of the Collateral Agent hereunder shall not be
conditioned or contingent upon the pursuit by the Collateral Agent of any right
or remedy against any Pledgor or against any other person which may be or become
liable in respect of all or any of the Class B Obligations or against any other
collateral security therefor, guaranty thereof or right of offset with respect
thereto.
7. REMEDIES. Subject to the terms and conditions of the Intercreditor
Agreement, if an Event of Default shall have occurred and shall be continuing,
the Collateral Agent may exercise, in addition to all other rights and remedies
granted in this Agreement, the Indenture or any Class B Security Document, all
rights and remedies of a secured party under the UCC. Without limiting the
generality of the foregoing, the Collateral Agent, without demand of performance
or other demand, presentment or protest, advertisement or notice of any kind
(except any notice required by the Indenture, hereby or by applicable law) to or
upon any Pledgor or any other person (all and each of which demands, defenses,
advertisements and notices are hereby waived, except any notice required by the
Indenture, hereby or by applicable law), may in such circumstances forthwith
collect, receive, appropriate and realize upon the Pledged Collateral, or any
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part thereof, and/or may forthwith sell, assign, give an option or options to
purchase or otherwise dispose of and deliver the Pledged Collateral or any part
thereof (or contract to do any of the foregoing), in one or more portions at
public or private sale or sales, in the over-the-counter market, at any
exchange, broker's board or office of the Collateral Agent or elsewhere upon
such terms and conditions as it may deem advisable and at such prices as it may
deem best, for cash or on credit or for future delivery without assumption of
any credit risk. The Collateral Agent shall have the right upon any such public
sale or sales, and, to the extent permitted by law, upon any such private sale
or sales, to purchase the whole or any part of the Pledged Collateral so sold,
free of any right or equity of redemption in the applicable Pledgor, which right
or equity is hereby waived or released. the Collateral Agent shall apply any
proceeds from time to time held by it and the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale as provided
for in the Indenture. To the extent permitted by applicable law, each Pledgor
waives all claims, damages and demands it may acquire against the Collateral
Agent arising out of the exercise by the Collateral Agent of any of its rights
hereunder. If any notice of a proposed sale or other disposition of Pledged
Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least ten (10) days before such sale or other disposition. In
consideration for not being required to cause a registration statement under the
Securities Act of 1933, as amended (the "ACT"), to be effective with respect to
the Pledged Collateral, each Pledgor hereby waives any objections to the absence
of a public sale or a higher price that might be obtained at a public sale. Any
provision hereof to the contrary notwithstanding, however, the Pledged
Collateral shall not be sold unless the Collateral Agent shall have received an
acceptable opinion of counsel from a nationally recognized law firm, experienced
in such matters, to the effect that the sale and delivery of the Pledged
Collateral is an exempt transaction under the Act, and the registration of the
Pledged Collateral under the Act is not required in connection with such
transaction or that a registration statement with respect to such Pledged
Collateral is effective, and no stop order suspending the effectiveness thereof
has been issued and that no proceedings for that purpose have been commenced or
are contemplated under the Act and that such sale does not violate any federal
or state securities law.
8. LIMITATION ON DUTIES REGARDING COLLATERAL. The Collateral Agent
shall not be liable or responsible in any way for the safekeeping of any of the
Pledged Collateral or for any loss or damage thereto (except for reasonable care
in the custody thereof while any Pledged Collateral is in the Collateral Agent's
actual possession) or for any diminution in the value thereof, or for any act or
default of any warehouseman, carrier, forwarding agency, or other person
whomsoever, but the same shall be at Pledgors' sole risk.
9. THE COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT AND PROXY. Subject
to the terms and conditions of the Intercreditor Agreement, each Pledgor hereby
appoints the Collateral Agent or the Collateral Agent's designee as such
Pledgor's attorney-in-fact and proxy, with full authority in such Pledgor's
place and stead, and in such Pledgor's name, from time to time in the Collateral
Agent's discretion to take any action and to execute any instrument which the
Collateral Agent may deem necessary to perfect, protect or enforce any right or
security interest hereunder or otherwise accomplish the purposes of this
Agreement, including, without limitation, to execute and file alone any
financing statement under the UCC and any document or instrument under any other
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applicable laws, and subject to Section 6 hereof, to receive, endorse and
collect all instruments made payable to such Pledgor representing any dividend,
interest or other distribution in respect of any of the Pledged Collateral and
to give full discharge for the same. Each Pledgor ratifies and approves all such
acts of such attorney and proxy. Neither the Collateral Agent nor said attorney
and proxy will be liable for any acts or omissions, nor for any error of
judgment or mistake of fact or law other than the Collateral Agent's or said
attorney's and proxy's gross negligence or willful misconduct as determined by a
final nonappealable judgment of a court of competent jurisdiction.
10. POWERS COUPLED WITH AN INTEREST. All powers, proxies,
authorizations and agencies herein contained with respect to the Pledged
Collateral are powers coupled with an interest and irrevocable.
11. REINSTATEMENT. If, at any time, all or part of any payment of the
Class B Obligations theretofore made by any Pledgor or any other person is
rescinded or otherwise required to be returned by the Collateral Agent or any
Lender for any reason whatsoever (including, without limitation, the insolvency,
bankruptcy or reorganization of any person), this Agreement shall continue to be
effective or shall be reinstated, as the case may be, as to the Class B
Obligations which were satisfied by the payment to be rescinded or returned, all
as though such payment had not been made.
12. SEVERABILITY. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
13. AMENDMENTS. None of the terms or provisions of this Agreement may
be waived, amended, supplemented or otherwise modified except by a written
instrument executed by each Pledgor and the Collateral Agent and in accordance
with (i) Section 4.15 of the Indenture and (ii) Article VIII of the Collateral
Agency Agreement
14. REMEDIES CUMULATIVE. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
15. SECTION HEADINGS. The Section headings used in this Agreement are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
16. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of each Pledgor and the
Collateral Agent and each other Class B Secured Party.
17. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which counterparts taken together shall constitute but one and the
same instrument.
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18. TIME OF ESSENCE. Time is of the essence of this Agreement.
19. INTERPRETATION. No provision of this Agreement shall be construed
against or interpreted to the disadvantage of any party hereto by any court or
other governmental or judicial authority by reason of such party having or being
deemed to have structured or dictated such provision.
20. GOVERNING LAW. THIS AGREEMENT HAS BEEN NEGOTIATED, EXECUTED AND
DELIVERED IN AND SHALL BE DEEMED TO HAVE BEEN MADE IN NEW YORK, NEW YORK. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK; PROVIDED, HOWEVER, THAT IF ANY OF THE PLEDGED COLLATERAL
SHALL BE LOCATED IN ANY JURISDICTION OTHER THAN NEW YORK, THE LAWS OF SUCH
JURISDICTION SHALL GOVERN THE METHOD, MANNER AND PROCEDURE FOR FORECLOSURE OF
THE COLLATERAL AGENT'S LIEN UPON SUCH PLEDGED COLLATERAL AND THE ENFORCEMENT OF
THE COLLATERAL AGENT'S REMEDIES IN RESPECT OF SUCH PLEDGED COLLATERAL TO THE
EXTENT THAT THE LAWS OF SUCH JURISDICTION ARE DIFFERENT FROM OR INCONSISTENT
WITH THE LAWS OF NEW YORK. AS PART OF THE CONSIDERATION FOR NEW VALUE RECEIVED,
AND REGARDLESS OF ANY PRESENT OR FUTURE DOMICILE OR PRINCIPAL PLACE OF BUSINESS
OF PLEDGORS, THE COLLATERAL AGENT OR ANY OTHER CLASS B SECURED PARTY, EACH
PLEDGOR HEREBY CONSENTS AND AGREES THAT THE SUPREME COURT OF NEW YORK COUNTY,
NEW YORK, OR, AT THE COLLATERAL AGENT'S OPTION, THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR
AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN PLEDGORS, ON THE ONE HAND, AND THE
COLLATERAL AGENT OR ANY OTHER CLASS B SECURED PARTY, ON THE OTHER HAND,
PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR ANY OTHER CLASS B SECURITY DOCUMENT. EACH PLEDGOR EXPRESSLY SUBMITS
AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN
ANY SUCH COURT, AND EACH PLEDGOR HEREBY WAIVES ANY OBJECTION WHICH SUCH PLEDGOR
MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF
AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PLEDGOR HEREBY WAIVES PERSONAL
SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR
SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PLEDGOR AT THE ADDRESS
DESIGNATED FOR SUCH PLEDGOR IN THIS AGREEMENT AND THAT SERVICE SO MADE SHALL BE
DEEMED COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR 3 BUSINESS DAYS
AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID. NOTHING IN THIS
AGREEMENT SHALL BE DEEMED OR OPERATE TO AFFECT THE RIGHT OF THE COLLATERAL AGENT
OR ANY OTHER CLASS B SECURED PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
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PERMITTED BY LAW, OR TO PRECLUDE THE ENFORCEMENT BY THE COLLATERAL AGENT OR ANY
OTHER CLASS B SECURED PARTY OF ANY JUDGMENT OR ORDER OBTAINED IN SUCH FORUM OR
THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE SAME IN ANY OTHER
APPROPRIATE FORUM OR JURISDICTION.
21. WAIVERS BY PLEDGORS. EACH PLEDGOR WAIVES (i) THE RIGHT TO TRIAL BY
JURY (WHICH THE COLLATERAL AGENT AND EACH OTHER CLASS B SECURED PARTY HEREBY
ALSO WAIVES) IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING
OUT OF OR RELATED TO THE INDENTURE OR ANY OF THE CLASS B SECURITY DOCUMENTS, THE
CLASS B OBLIGATIONS OR THE PLEDGED COLLATERAL; (ii) PRESENTMENT, DEMAND AND
PROTEST AND NOTICE OF PRESENTMENT, PROTEST, DEFAULT, NON-PAYMENT, MATURITY,
RELEASE, COMPROMISE, SETTLEMENT, EXTENSION OR RENEWAL OF ANY OR ALL COMMERCIAL
PAPER, ACCOUNTS, CONTRACT RIGHTS, DOCUMENTS, INSTRUMENTS, CHATTEL PAPER AND
GUARANTIES AT ANY TIME HELD BY THE COLLATERAL AGENT OR ANY OTHER CLASS B SECURED
PARTY ON WHICH SUCH PLEDGOR MAY IN ANY WAY BE LIABLE AND HEREBY RATIFIES AND
CONFIRMS WHATEVER THE COLLATERAL AGENT OR ANY OTHER CLASS B SECURED PARTY MAY DO
IN THIS REGARD; (iii) NOTICE PRIOR TO THE COLLATERAL AGENT'S TAKING POSSESSION
OR CONTROL OF THE PLEDGED COLLATERAL OR ANY BOND OR PLEDGE WHICH MIGHT BE
REQUIRED BY ANY COURT PRIOR TO ALLOWING THE COLLATERAL AGENT TO EXERCISE ANY OF
THE COLLATERAL AGENT'S REMEDIES; (iv) THE BENEFIT OF ALL VALUATION, APPRAISEMENT
AND EXEMPTION LAWS; (v) NOTICE OF ACCEPTANCE HEREOF AND (vi) EXCEPT AS
PROHIBITED BY LAW, ANY RIGHT TO CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES. EACH PLEDGOR ACKNOWLEDGES THAT THE FOREGOING WAIVERS ARE A
MATERIAL INDUCEMENT TO THE COLLATERAL AGENT'S ENTERING INTO THIS AGREEMENT AND
THAT THE COLLATERAL AGENT AND EACH OTHER CLASS B SECURED PARTY IS RELYING UPON
THE FOREGOING WAIVERS IN ITS FUTURE DEALINGS WITH EACH PLEDGOR. EACH PLEDGOR
WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THE FOREGOING WAIVERS WITH ITS
LEGAL COUNSEL AND HAS KNOWINGLY AND VOLUNTARILY WAIVED ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
22. CLASS B OBLIGATIONS JOINT AND SEVERAL. All obligations and
liabilities of the Pledgors hereunder are joint and several.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and delivered as of the date first above written.
JACUZZI BRANDS, INC.,
By /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
Each Subsidiary listed on Schedule
I hereto,
By /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Assistant Secretary
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WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Collateral Agent,
By /s/ Xxxxx X. Xxxxxxxx, Xx.
-------------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Vice President
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Schedule I
Asteria Company (f/k/a Elite Bath Company)
Bathcraft, Inc.
Xxxxxx Brothers Inc.
Xxxxxxxx Manufacturing Corp. (f/k/a Farberware Inc.)
Carlsbad Corp. (f/k/a Odyssey Sports, Inc.)
Compax Corp.
Eljer Industries, Inc.
Eljer Plumbingware, Inc.
Environmental Energy Company
Xxxx Concrete Products, Inc.
Gatsby Spas, Inc.
HL Capital Corp.
Jacuzzi Inc.
Jacuzzi Whirlpool Bath, Inc.
Jusi Holdings, 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.)
Redmont, Inc.
Rexair, 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.)
Sundance Spas, 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 American Holdings, Inc.
USI Atlantic Corp.
USI Capital, Inc.
USI Funding, Inc.
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USI Global Corp.
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)
Xxxx Industries, Inc.
Xxxx Pex, Inc.
Zurnacq of California, Inc.
Zurco, Inc.
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SCHEDULE II
Pledged Stock
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Pledgor Issuer Number of Shares Certificate Number
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SCHEDULE III
Pledged Debt
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Pledgor Obligor Principal Amount Maturity Date
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