EXHIBIT 10.51
DATED 16 October 2003
JACUZZI BRANDS, INC.
and
FLEET CAPITAL CORPORATION
----------------------------
CHARGE OVER SHARES
----------------------------
Xxxxxxxxx and May
Xxx Xxxxxxx Xxx
Xxxxxx XX0X 0XX
AGR/MDSC
2
CONTENTS
Page
----
1. Interpretation 4
2. Covenant to Pay 7
3. Charge 7
4. Relationship with Intercreditor Agreement 7
5. Covenant to Deposit and Further Assurances 7
6. Trust for the Secured Parties 8
7. Chargor's Rights before Enforcement 8
8. Covenants and Warranties 9
9. Enforcement 10
10. Dealings with Charged Property on Enforcement 10
11. Application of Moneys and Set-Off 11
12. General Rights of Security Trustee 12
13. Liability of Security Trustee, Delegates and Nominees 12
14. Protection of Third Parties 13
15. Continuing Security 14
16. Other Security 14
17. Charge not to be Affected 14
18. Release of Charged Property 15
19. Power of Attorney 15
20. Stamp Duty 15
21. Communications 16
22. Rights and Waivers 17
3
23. Invalidity 18
24. Assignment by Security Trustee 18
25. Contracts (Rights of Third Parties) Xxx 0000 18
26. Amendment 18
27. Governing Law, Jurisdiction and Agents for Service 19
SCHEDULE 1 20
4
THIS CHARGE OVER SHARES dated 16 October 2003 is made as a deed
BETWEEN
1. JACUZZI BRANDS, INC., a company incorporated under the laws of the
State of Delaware, United States of America (the "CHARGOR")
AND
2. FLEET CAPITAL CORPORATION, a Rhode Island corporation, for itself and
as trustee for the Secured Parties (the "SECURITY TRUSTEE", which
expression includes its successors in title and assigns).
NOW THIS DEED WITNESSES as follows:-
1. INTERPRETATION
1.1 TERMS ALREADY DEFINED
Except to the extent the context otherwise requires or to the extent
specifically defined in this deed, words and expressions defined in the
Loan and Security Agreement shall have the same meaning when used in
this deed.
1.2 DEFINITIONS
In this deed:-
"ADMINISTRATION" means administration under Part II of the Insolvency
Xxx 0000.
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on which
banks are open for business in London and New York.
"CHARGE" means all or any of the Security created, or which may at any
time be created, by or pursuant to this deed.
"CHARGED PROPERTY" means the Original Shares, any Further Shares, any
Derived Assets and any Dividends.
"DELEGATE" means a delegate or sub-delegate appointed pursuant to
clause 12.3.
"DERIVED ASSETS" means all Shares, rights or other property of a
capital nature which accrue or are offered, issued or paid at any time
(by way of bonus, rights, redemption, conversion, exchange,
substitution, consolidation, subdivision, preference, warrant, option,
purchase or otherwise) in respect of:-
(A) the Original Shares; or
(B) any Further Shares; or
5
(C) any Shares, rights or other property previously accruing, offered,
issued or paid as mentioned in this definition.
"DISSOLUTION" of a person includes the bankruptcy, insolvency,
liquidation, amalgamation, reconstruction, reorganisation,
Administration, administrative or other receivership, or dissolution of
that person, and any equivalent or analogous proceeding by whatever
name known and in whatever jurisdiction, and any step taken (including,
but without limitation, the presentation of a petition or the passing
of a resolution) for or with a view to any of the foregoing.
"DIVIDENDS" means all dividends, interest and other income paid or
payable in respect of the Original Shares, any Further Shares or any
Derived Assets.
"FURTHER SHARES" means all Shares (other than the Original Shares and
any Shares comprised in any Derived Assets) which the Chargor and the
Security Trustee may at any time agree shall be subject to the Charge.
"INTERCREDITOR AGREEMENT" means the intercreditor agreement dated 15th
July 2003 between, amongst others, Fleet Capital Corporation,
Wilmington Trust Corporation and Jacuzzi Brands, Inc.
"JUNIOR SHARE CHARGE" means the deed of charge dated on or about the
date hereof given by the Chargor in favour of Wilmington Trust Company.
"LOAN AND SECURITY AGREEMENT" means the loan and security agreement
dated 15th July 2003 made between Fleet Capital Corporation, the
Lenders including the Revolving Credit Lenders and Term Loan B Lenders
(each as defined therein), Credit Suisse First Boston, Fleet
Securities, Inc., Silver Point Finance LLC, Jacuzzi Brands, Inc.,
Bathcraft, Inc., Eljer Plumbingware, Inc., Gatsby Spas, Inc., Jacuzzi,
Inc., Redmont, Inc., Sundance Spas, Inc., Rexair, Inc., USI American
Holdings, Inc., USI Global Corp, Zurco, Inc., Xxxx PEX, Inc. and Xxxx
Industries, Inc.
"LPA" means the Law of Property Xxx 0000.
"ORIGINAL SHARES" means the Shares listed in SCHEDULE 1.
"RIGHTS" means rights, benefits, powers, privileges, authorities,
discretions and remedies (in each case, of any nature whatsoever).
"SECURED PARTIES" means the Administrative Agent, the Term Loan B
Agent, the Issuing Bank, each Revolving Credit Lender, each Term Loan B
Lender and each Affiliate of a Revolving Credit Lender to whom Product
Obligations are owed.
"SECURITY" includes any mortgage, fixed or floating charge,
encumbrance, lien, pledge, hypothecation, assignment by way of
security, or title retention arrangement (other than in respect of
goods purchased in the ordinary course of trading), and any agreement
or arrangement having substantially the same economic or financial
effect as any of the foregoing (including any "hold back" or "flawed
asset" arrangement).
6
"SHARES" means stocks, shares and other securities of any kind.
"TAX" includes any present or future tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature, and any interest or
penalty in respect thereof.
"WORKING HOURS" means 9.00 a.m. to 5.00 p.m. on a Business Day.
1.3 REFERENCES AND CONSTRUCTION
(A) In this deed, unless otherwise specified:-
(i) references to clauses and schedules are to clauses of
and schedules to this deed;
(ii) headings to clauses are for convenience only and are
to be ignored in construing this deed;
(iii) references to a "person" are to be construed so as to
include any individual, firm, company, government,
state or agency of a state, local or municipal
authority, or any joint venture, association or
partnership (whether or not having separate legal
personality);
(iv) references to a "company" are to be construed so as
to include any company, corporation or other body
corporate, wherever and however incorporated or
established;
(v) references to any statute or statutory provision are
to be construed as a reference to the same as it may
have been, or may from time to time be, amended,
modified or re-enacted, and include references to all
bye-laws, instruments, orders and regulations for the
time being made thereunder or deriving validity
therefrom; and
(vi) references to times of the day are to London time.
(B) Except to the extent that the context otherwise requires, any
reference in this deed to "THIS DEED" or any other deed,
agreement or instrument is a reference to this deed or, as the
case may be, the relevant deed, agreement or instrument as
amended, supplemented, replaced or novated from time to time
and includes a reference to any document which amends,
supplements, replaces, novates or is entered into, made or
given pursuant to or in accordance with any of the terms of
this deed or, as the case may be, the relevant deed, agreement
or instrument.
(C) Sections 6(1) and 6(2) of the Law of Property (Miscellaneous
Provisions) Act 1994 shall not apply to this deed.
7
2. COVENANT TO PAY
The Chargor covenants with the Security Trustee to pay and discharge
all the Obligations at the time or times when, and in the currency or
currencies in which, the same are expressed to be payable under the
Loan and Security Agreement or, as the case may be, this deed.
3. CHARGE
The Chargor, with full title guarantee (save only for (i) those
restrictions imposed pursuant to the Junior Share Charge and (ii) those
encumbrances granted pursuant to the Junior Share Charge and which rank
in priority behind the rights of the Security Trustee as provided in
the Intercreditor Agreement), as continuing security for the payment
and discharge of all the Obligations, charges all its Rights, title and
interest in and to the Charged Property by way of first fixed charge in
favour of the Security Trustee for itself and as trustee for the
Secured Parties.
4. RELATIONSHIP WITH INTERCREDITOR AGREEMENT
The provisions of this deed, including the rights and powers of the
Security Trustee, shall in all respects be subject to the provisions of
the Intercreditor Agreement. The Chargor shall not be obliged under
this deed to take any action or refrain from taking any action which
would conflict with its obligations under or pursuant to the
Intercreditor Agreement.
5. COVENANT TO DEPOSIT AND FURTHER ASSURANCES
5.1 ORIGINAL SHARES AND FURTHER SHARES
The Chargor shall, immediately after the execution of this deed in the
case of the Original Shares, and within two Business Days of each
occasion on which the Security Trustee and the Chargor agree that any
Shares shall become Further Shares, deposit with the Security Trustee:-
(A) all share certificates, documents of title and other
documentary evidence of ownership in relation to such Shares;
and
(B) transfers of such Shares duly executed by the Chargor or its
nominee with the name of the transferee left blank or, if the
Security Trustee so requires, duly executed by the Chargor or
its nominee in favour of the Security Trustee (or the Security
Trustee's nominee), and such other documents as the Security
Trustee may require to enable the Security Trustee (or the
Security Trustee's nominee) or, after the occurrence of an
Event of Default, any purchaser to be registered as the owner
of, or otherwise to obtain legal title to, such Shares.
8
5.2 DERIVED ASSETS
The Chargor shall, within two Business Days of the accrual, offer,
issue or payment of any Derived Assets, deliver or pay to the Security
Trustee or procure the delivery or payment to the Security Trustee of:-
(A) all such Derived Assets or the share certificates,
renounceable certificates, letters of allotment, documents of
title and other documentary evidence of ownership in relation
to them; and
(B) transfers of any Shares comprised in such Derived Assets duly
executed by the Chargor or its nominee with the name of the
transferee left blank or, if the Security Trustee so requires,
duly executed by the Chargor or its nominee in favour of the
Security Trustee (or the Security Trustee's nominee), and such
other documents as the Security Trustee may require to enable
the Security Trustee (or the Security Trustee's nominee) or,
after the occurrence of an Event of Default, any purchaser to
be registered as the owner of, or otherwise to obtain legal
title to, the Shares comprised in such Derived Assets.
5.3 FURTHER ASSURANCES
In addition to and without prejudice to anything else contained in this
deed, the Chargor shall, at its own cost, promptly execute and do all
such deeds, instruments, transfers, renunciations, proxies, notices,
documents, assurances, acts and things in such form as the Security
Trustee may from time to time require:-
(A) for perfecting, preserving or protecting the Charge or the
priority of the Charge; and
(B) for facilitating the realisation of the Charge or the exercise
of any Rights vested in the Security Trustee.
6. TRUST FOR THE SECURED PARTIES
The parties hereto agree that the Security Trustee shall hold the
security constituted by, and created pursuant to, this deed together
with all rights, benefits, interests, covenants, undertakings and
warranties given in its favour hereunder, and the property from time to
time representing the same, on trust for the Secured Parties upon and
subject to the terms and conditions hereof and according to their
respective interests.
7. CHARGOR'S RIGHTS BEFORE ENFORCEMENT
Until the Charge shall become enforceable, the Chargor shall be
entitled to:-
(A) receive and retain free from the Charge any Dividends paid to
it; and
9
(B) exercise and control the exercise of all voting and other
Rights relating to the Charged Property provided (i) that the
entitlement of the Chargor under this CLAUSE 7(B) may at any
time be terminated upon and to the extent of any notice by the
Security Trustee to the Chargor evidencing the Security
Trustee's intention thenceforth to direct the exercise of such
Rights for the purpose of preserving the value of the Charge
and (ii) those voting and other Rights shall not be exercised
in any manner which (in the reasonable opinion of the Security
Trustee) could prejudice the Security provided by this deed.
8. COVENANTS AND WARRANTIES
8.1 COVENANTS
The Chargor shall not, except as permitted in the Loan and Security
Agreement or the Intercreditor Agreement:-
(A) create, attempt to create or permit to subsist any Security
(other than the Charge and the Junior Share Charge) on, over
or with respect to any of the Charged Property;
(B) sell, transfer, lend, assign, part with its interest in,
dispose of, grant any option in respect of or otherwise deal
with any of its Rights, title and interest in and to the
Charged Property, or agree to do any of the foregoing
(otherwise than pursuant to this deed or the Junior Share
Charge);
(C) permit any person other than the Chargor or the Security
Trustee or its nominee to be registered as the holder of any
of the Charged Property.
8.2 WARRANTIES
The Chargor represents and warrants to the Security Trustee that:
(A) subject to the Junior Share Charge and this deed, the Charged
Property is legally and beneficially owned by the Chargor free
from any Security;
(B) subject to the Junior Share Charge and this deed, the Chargor
has not granted in favour of any other person any interest or
option or other rights in respect of any of the Charged
Property;
(C) the Chargor has and will at all times have the necessary power
to enter into and perform its obligations under this deed;
(D) this deed constitutes its legal, valid and binding obligations
and is a security over all and every part of the Charged
Property;
(E) all necessary authorisations and consents to enable or entitle
it to enter into this deed have been obtained and will remain
in full force and effect at all times during the subsistence
of the security constituted by this deed.
10
9. ENFORCEMENT
9.1 CHARGE SHALL BECOME ENFORCEABLE
The Charge shall become enforceable, and the powers conferred by
section 101 of the LPA as varied and extended by this deed shall be
exercisable, upon and at any time after the occurrence of an Event of
Default.
9.2 SECTION 101 LPA
The powers conferred by section 101 of the LPA, as varied and extended
by this deed, shall be deemed to have arisen immediately on the
execution of this deed.
9.3 SECTIONS 93 AND 103 LPA
Sections 93 and 103 of the LPA shall not apply to this deed.
10. DEALINGS WITH CHARGED PROPERTY ON ENFORCEMENT
10.1 RIGHTS OF SECURITY TRUSTEE
At any time after the Charge has become enforceable, the Security
Trustee shall have the right, without any notice to or consent of the
Chargor:-
(A) Possession
to take possession of, collect and get in the Charged
Property, and in particular to take any steps necessary to
vest all or any of the Charged Property in the name of the
Security Trustee or its nominee (including completing any
transfers of any Shares comprised in the Charged Property) and
to receive and retain any Dividends;
(B) Sell
to sell, exchange, convert into money or otherwise dispose of
or realise the Charged Property (whether by public offer or
private contract) to any person and for such consideration
(whether comprising cash, debentures or other obligations,
Shares or other valuable consideration of any kind) and on
such terms (whether payable or deliverable in a lump sum or by
instalments) as it may think fit, and for this purpose to
complete any transfers of the Charged Property;
(C) Voting Rights
for the purpose of preserving the value of the Charge or
realising the same, to exercise or direct the exercise of all
voting and other Rights relating to the Charged Property in
such manner as it may think fit;
11
(D) Claims
to settle, adjust, refer to arbitration, compromise and
arrange any claims, accounts, disputes, questions and demands
relating in any way to the Charged Property;
(E) Legal actions
to bring, prosecute, enforce, defend and abandon actions,
suits and proceedings in relation to the Charged Property; and
(F) Other Rights
to do all such other acts and things it may consider necessary
or expedient for the realisation of the Charged Property or
incidental to the exercise of any of the Rights conferred on
it under or in connection with this deed or the LPA and to
concur in the doing of anything which it has the Right to do
and to do any such thing jointly with any other person.
10.2 OBLIGATIONS OF CHARGOR
After the Charge has become enforceable:-
(A) all Dividends shall be paid to and retained by the Security
Trustee, and any such moneys which may be received by the
Chargor shall, pending such payment, be segregated from any
other property of the Chargor and held in trust for the
Security Trustee; and
(B) the Chargor shall procure that all voting and other Rights
relating to the Charged Property are exercised in accordance
with such instructions (if any) as may from time to time be
given to the Chargor by the Security Trustee, and the Chargor
shall deliver to the Security Trustee such forms of proxy or
other appropriate forms of authorisation to enable the
Security Trustee to exercise such voting and other Rights.
11. APPLICATION OF MONEYS AND SET-OFF
11.1 APPLICATION OF MONEYS
All moneys arising from the exercise of the powers of enforcement under
this deed shall (except as may be otherwise required by applicable law)
be held and applied in the order of priority set out in the Loan and
Security Agreement.
11.2 SET-OFF
Except as otherwise required by law, all sums payable by the Chargor
under this deed shall be paid in full without set-off or counterclaim
or any restriction or condition and free and clear of any deduction or
withholding on account of Tax or otherwise.
12
12. GENERAL RIGHTS OF SECURITY TRUSTEE
12.1 REDEMPTION OF SECURITY
The Security Trustee may at any time redeem any Security over the
Charged Property having priority to the Charge or procure the transfer
thereof to the Security Trustee and may settle the accounts of
encumbrancers. Any accounts so settled shall be conclusive and binding
on the Chargor. The Chargor shall on demand pay to the Security Trustee
all principal moneys, interest, costs, charges, losses, liabilities and
expenses of and incidental to any such redemption or transfer.
12.2 NEW ACCOUNT
At any time following:
(A) the Security Trustee receiving notice (either actual or
constructive) of any subsequent Security affecting the Charged
Property or,
(B) the Dissolution of the Chargor,
the Security Trustee may open a new account in the name of the Chargor
(whether or not it permits any existing account to continue).
If the Security Trustee does not open such a new account, it shall
nevertheless be treated as if it had done so at the time when the
notice was received or was deemed to have been received or, as the case
may be, the Dissolution commenced. Thereafter, all payments made by the
Chargor to the Security Trustee or received by the Security Trustee for
the account of the Chargor shall be credited or treated as having been
credited to the new account and shall not operate to reduce the amount
secured by this deed at the time when the Security Trustee received or
was deemed to have received such notice or, as the case may be, the
Dissolution commenced.
12.3 DELEGATION
The Security Trustee may delegate in any manner to any person any of
the Rights which are for the time being exercisable by the Security
Trustee under this deed. Any such delegation may be made upon such
terms and conditions (including power to sub-delegate) as the Security
Trustee may think fit.
13. LIABILITY OF SECURITY TRUSTEE, DELEGATES AND NOMINEES
13.1 POSSESSION
If the Security Trustee or any Delegate shall take possession of the
Charged Property, it may at any time relinquish such possession.
13
13.2 SECURITY TRUSTEE'S LIABILITY
The Security Trustee shall not in any circumstances (whether by reason
of taking possession of the Charged Property or for any other reason
whatsoever and whether as mortgagee in possession or on any other basis
whatsoever):-
(A) be liable to account to the Chargor or any other person for
anything except the Security Trustee's own actual receipts; or
(B) be liable to the Chargor or any other person for any costs,
charges, losses, damages, liabilities or expenses arising from
any realisation of the Charged Property or from any exercise
or non-exercise by the Security Trustee of any Right conferred
upon it in relation to the Charged Property or from any act,
default, omission or misconduct of the Security Trustee, its
officers, employees or Security Trustees in relation to the
Charged Property except to the extent that they shall be
caused by the Security Trustee's own fraud, negligence or
wilful misconduct or that of its officers or employees.
13.3 DELEGATE'S AND NOMINEE'S LIABILITY
All the provisions of CLAUSE 13.2 shall apply, mutatis mutandis, in
respect of the liability of any Delegate or nominee of the Security
Trustee or any officer, employee or agent of the Security Trustee, any
Delegate or any nominee of the Security Trustee.
13.4 INDEMNITY
The Security Trustee and every Delegate, attorney, manager, agent or
other person appointed by the Security Trustee hereunder shall be
entitled to be indemnified out of the Charged Property in respect of
all liabilities and expenses incurred by any of them in the execution
or purported execution of any of its Rights and against all actions,
proceedings, costs, claims and demands in respect of any matter or
thing done or omitted in any way relating to the Charged Property
(except to the extent arising from the Security Trustee's gross
negligence or wilful misconduct), and the Security Trustee and any such
Delegate, attorney, manager, agent or other person appointed by the
Security Trustee hereunder may retain and pay all sums in respect of
the same out of any moneys received.
14. PROTECTION OF THIRD PARTIES
No person dealing with the Security Trustee or any Delegate shall be
concerned to enquire whether any event has happened upon which any of
the Rights conferred under or in connection with this deed or the LPA
are or may be exercisable, whether any consents, regulations,
restrictions or directions relating to such Rights have been obtained
or complied with or otherwise as to the propriety or regularity of acts
purporting or intended to be in exercise of any such Rights or as to
the application of any money borrowed or raised or other proceeds of
enforcement. All the protections to purchasers contained in sections
104 and 107 of the LPA or in any other legislation for
14
the time being in force shall apply to any person purchasing from or
dealing with the Security Trustee or any Delegate.
15. CONTINUING SECURITY
The Charge shall be a continuing security for the Obligations and shall
not be satisfied, discharged or affected by any intermediate payment or
settlement of account (whether or not any Obligations remain
outstanding thereafter) or any other matter or thing whatsoever.
16. OTHER SECURITY
The Charge shall be in addition to and shall not be prejudiced by any
other Security or any guarantee or indemnity or other document which
the Security Trustee may at any time hold for the payment of the
Obligations.
17. CHARGE NOT TO BE AFFECTED
Without prejudice to CLAUSES 15 AND 16, neither the Charge nor the
liability of the Chargor for the Obligations shall be prejudiced or
affected by:-
(A) any variation or amendment of, or waiver or release granted
under or in connection with, any other Security or any
guarantee or indemnity or other document; or
(B) time being given, or any other indulgence or concession being
granted, by the Security Trustee to the Chargor or any other
person; or
(C) the taking, holding, failure to take or hold, varying,
realisation, non-enforcement, non-perfection or release by the
Security Trustee or any other person of any other Security, or
any guarantee or indemnity or other document; or
(D) the Dissolution of the Chargor or any other person; or
(E) any change in the constitution of the Chargor; or
(F) any amalgamation, merger or reconstruction that may be
effected by the Security Trustee with any other person or any
sale or transfer of the whole or any part of the undertaking,
property and assets of the Security Trustee to any other
person; or
(G) the making or absence of any demand for payment of any
Obligations on the Chargor or any other person, whether by the
Security Trustee or any other person; or
(H) any arrangement or compromise entered into by the Security
Trustee with the Chargor or any other person.
15
18. RELEASE OF CHARGED PROPERTY
If the Security Trustee is satisfied that:-
(A) all the Obligations have been paid or discharged in full and
the Loan and Security Agreement has been terminated; or
(B) Security or a guarantee for the Obligations, in each case
acceptable to the Security Trustee, has been provided in
substitution for this deed,
or upon the occurrence of any sale or disposition of the Charged
Property permitted under the Loan and Security Agreement, the Security
Trustee shall at the request and cost of the Chargor execute such deeds
and do all such acts and things as may be necessary to release the
Charged Property (or, in the case of a sale or disposition of the
Charged Property, any relevant part thereof) from the Charge.
19. POWER OF ATTORNEY
19.1 APPOINTMENT
The Chargor hereby appoints, irrevocably and by way of security, the
Security Trustee and any person nominated in writing by the Security
Trustee as attorney of the Chargor severally to be the attorney of the
Chargor (with full powers of substitution and delegation), on its
behalf and in its name or otherwise, at such time and in such manner as
the attorney may think fit:-
(A) to do anything which the Chargor is or may be obliged to do
(but has not done) under this deed including, but without
limitation, to complete and execute any transfer of Shares;
and
(B) generally to exercise all or any of the Rights conferred on
the Security Trustee in relation to the Charged Property or
under or in connection with this deed or the LPA.
19.2 RATIFICATION
The Chargor covenants to ratify and confirm whatever any attorney shall
do or purport to do in the exercise or purported exercise of the power
of attorney in CLAUSE 19.1.
20. STAMP DUTY
The Chargor shall pay promptly, and in any event before any penalty
becomes payable, all stamp, documentary and similar Taxes, if any,
payable in connection with the entry into, performance, enforcement or
admissibility in evidence of this deed or any other document referred
to in this deed, and shall indemnify the Security Trustee against any
liability with respect to, or resulting from any delay in paying or
omission to pay, any such Tax.
16
21. COMMUNICATIONS
21.1 COMMUNICATIONS TO BE IN WRITING
Any communication given or made under or in connection with the matters
contemplated by this deed shall be in writing (other than writing on
the screen of a visual display unit or other similar device which shall
not be treated as writing for the purposes of this CLAUSE 21.1).
21.2 DEEMED DELIVERY
Any such communication shall be addressed as provided in CLAUSE 21.3
and, if so addressed, shall be deemed to have been duly given or made
as follows:-
(A) if sent by personal delivery, upon delivery at the address of
the relevant party;
(B) if sent by first class post, two Business Days after the date
of posting;
(C) if sent by fax, upon receipt by the relevant party,
provided that if, in accordance with the above provisions, any such
communication would otherwise be deemed to be given or made outside
Working Hours, such communication shall be deemed to be given or made
at the start of the next period of Working Hours.
21.3 PARTIES' DETAILS
The relevant details of each party for the purposes of this deed,
subject to CLAUSE 21.4, are:-
17
Party Addressee Address Fax No.
----- --------- ------- -------
Fleet Capital Xxxxxxxx Xxx One South Xxxxxx Drive, 000 000 0000
Corporation Suite 1400, Xxxxxxx,
Xxxxxxxx 00000
with a copy to:
Winston & Xxxxxx Xxxxxxx X. Xxxxxx 000 Xxxx Xxxxxx, Xxx 212 294 4700
Xxxx, XX 00000
Jacuzzi Brands, Inc. Xxxxxx X. Xxxxx Xxxxxxxx Point - West 000 000 0000
Tower, 000 Xxxxx Xxxxxxx
Xxxxx, Xxxxx 0000, Xxxx
Xxxx Xxxxx, XX 00000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx Xxxxxxx M. 000 Xxxxxxxxx Xxxxxx, 000 000 0000
Tabucchi Xxx Xxxx, XX 00000
21.4 CHANGE OF DETAILS
Either party may notify the other party at any time of a change to its
details for the purposes of CLAUSE 21.3 provided that such notification
shall only be effective on:-
(A) the date specified in the notification as the date on which
the change is to take place; or
(B) if no date is specified or the date specified is less than
five Business Days after the date on which notice is given,
the date falling five Business Days after notice of any such
change has been given.
22. RIGHTS AND WAIVERS
22.1 DELAY
No delay or omission on the part of the Security Trustee in exercising
any Right provided by law or under this deed shall impair such Right or
operate as a waiver thereof or of any other Right.
18
22.2 SINGLE OR PARTIAL EXERCISE
The single or partial exercise by the Security Trustee of any Right
provided by law or under this deed shall not preclude any other or
further exercise thereof or the exercise of any other Right nor
prejudice any other Rights unexercised.
22.3 RIGHTS TO BE CUMULATIVE
The Rights provided in this deed are cumulative with, and not exclusive
of, any Rights provided by law.
23. INVALIDITY
If at any time any provision of this deed is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, neither:-
(A) the legality, validity or enforceability in that jurisdiction
of any other provision of this deed; nor
(B) the legality, validity or enforceability under the law of any
other jurisdiction of that or any other provision of this
deed,
shall be affected or impaired.
24. ASSIGNMENT BY SECURITY TRUSTEE
The Security Trustee may at any time, without the consent of the
Chargor, assign or transfer the whole or, as the case may be, any part
of the Security Trustee's Rights under this deed to any person to whom
the whole or any part of any of the Security Trustee's rights under the
Loan and Security Agreement shall be assigned or transferred. The
Chargor shall not assign or otherwise transfer the benefit of this deed
or any of its rights, duties or obligations under this deed to any
third party without the prior written consent of the Security Trustee.
25. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
The parties to this agreement do not intend that any term of this
agreement should be enforceable, by virtue of the Contracts (Rights of
Third Parties) Xxx 0000, by any person who is not a party to, or a
lawful assignee of, this agreement.
26. AMENDMENT
Any amendment of this deed shall only be effective if made in writing
and signed by the Chargor and the Security Trustee and any waiver of
any right or default under this deed shall only be effective if made in
writing signed by the relevant party.
19
27. GOVERNING LAW, JURISDICTION AND AGENTS FOR SERVICE
27.1 GOVERNING LAW
This deed shall be governed by and construed in accordance with English
law.
27.2 JURISDICTION
The parties irrevocably agree that any legal action or proceeding
arising out of or relating to this deed may be brought in the courts of
England and irrevocably submit to the non-exclusive jurisdiction of
such courts.
27.3 CHARGOR'S AGENT FOR SERVICE
The Chargor irrevocably appoints USI Overseas Holdings Limited at its
registered office in 2 Lambs Passage, Xxxxxx XX0X 0XX, Xxxxxxx as its
agent to receive and acknowledge on its behalf service of any writ,
summons, order, judgment or other notice of legal process in England.
If for any reason the agent named above (or its successor) no longer
serves as agent of the Chargor for this purpose, the Chargor shall
promptly appoint a successor agent reasonably satisfactory to the
Security Trustee and notify the Security Trustee thereof, PROVIDED that
until the Security Trustee receives such notification, it shall be
entitled to treat the agent named above (or its said successor) as the
agent of the Chargor for the purposes of this Clause. The Chargor
agrees that any such legal process shall be sufficiently served on it
if delivered to such agent for service at its address for the time
being in England whether or not such agent gives notice thereof to the
Chargor.
27.4 SECURITY TRUSTEE'S AGENT FOR SERVICE
The Security Trustee irrevocably appoints Jordans Limited of 00-00
Xxxxxxx Xxx, Xxxxxx XX0X 0XX , Xxxxxxx as its agent to receive and
acknowledge on its behalf service of any writ, summons, order, judgment
or other notice of legal process in England . If for any reason the
agent named above (or its successor) no longer serves as agent of the
Security Trustee for this purpose, the Security Trustee shall promptly
appoint a successor agent reasonably satisfactory to the Chargor and
notify the Chargor thereof, PROVIDED that until the Chargor receives
such notification, it shall be entitled to treat the agent named above
(or its said successor) as the agent of the Security Trustee for the
purposes of this Clause. The Security Trustee agrees that any such
legal process shall be sufficiently served on it if delivered to such
agent for service at its address for the time being in England whether
or not such agent gives notice thereof to the Security Trustee.
IN WITNESS WHEREOF the Chargor and the Security Trustee have executed this
document as a deed the day and year first before written.
SCHEDULE 1
No. of Class of Nominal Value Registered holder(s)
Name of Company Shares Shares of each Share as at the date hereof
--------------- ------ ------ ------------- ---------------------
JBI Holdings Limited 100 Ordinary (pound)1.00 Jacuzzi Brands, Inc.
EXECUTED AS A DEED
for and on behalf of JACUZZI BRANDS, INC. by its duly authorised
signatory:
/s/ Xxxxxx X. Xxxxx
.............................................. (authorised signatory)
Sr. Vice President, General Counsel & Secretary
EXECUTED AS A DEED
for and on behalf of FLEET CAPITAL
CORPORATION by its duly authorised
signatory:
/s/ Xxxxx Xxxxxxx
.............................................. (authorised signatory)
Senior Vice President
