EXHIBIT 10.13(b)
U.S. INDUSTRIES, INC.
MASTER AGREEMENT
WAIVER
DATED AS OF OCTOBER 30, 2002
This WAIVER dated as of October 30, 2002, to the Amendment,
Restatement, General Provisions and Intercreditor Agreement dated as of August
15, 2001 and amended and restated as of September 23, 2002, between U.S.
Industries, Inc. ("USI"), USI Global Corp., USI American Holdings, Inc., USI
Atlantic Corp., Rexair Holdings, Inc., Rexair, Inc. and the other subsidiaries
of USI party thereto as Loan Parties, Wilmington Trust Company and Xxxxx X.
Xxxxxxxx, not in their individual capacities, but solely as Collateral Trustees,
Bank of America, N.A., as agent and the various bank and other lender parties
thereto (as amended, amended and restated, supplemented or otherwise modified
from time to time, the "MASTER AGREEMENT"). Capitalized terms used without
definition in this Waiver shall have the meanings set forth in the Master
Agreement.
W I T N E S S E T H:
WHEREAS, USI intends to consummate an Asset Disposition of
that certain real property located in the City of Nipomo, County of San Luis
Obispo, California pursuant to the Woodlands Agreement (as defined below),
scheduled to close on or about October 31, 2002 (the "WOODLANDS ASSET
DISPOSITION");
WHEREAS, the consideration for the Woodlands Asset Disposition
will consist of (a) $10,350,000 in cash (the "CASH CONSIDERATION") and (b) a
promissory note to be dated the date of the closing of the Woodlands Asset
Disposition and issued by Woodlands Ventures, LLC (the "BUYER") to PH Property
Development Company, a Subsidiary of USI (the "SELLER") in the principal amount
of $9,650,000 (the "NOTE") secured by a Deed of Trust by the Buyer as Trustor,
to the Seller as Trustee and as Beneficiary (the "DEED OF TRUST") in accordance
with the terms and conditions pursuant to that certain Agreement of Purchase and
Sale and Joint Escrow Instructions dated as of May 7, 1999 (as amended, amended
and restated, supplemented or otherwise modified from time to time, the
"WOODLANDS AGREEMENT") among the Buyer and Seller.
WHEREAS, the Loan Parties have requested that the Banks agree
to waive compliance with certain provisions contained in the Master Agreement in
connection with the Woodlands Asset Disposition;
WHEREAS, the Banks are willing to grant the request of the
Loan Parties and waive compliance with certain provisions of the Master
Agreement as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and subject to the
terms and conditions hereof, the parties hereto agree as follows:
SECTION 1. LIMITED WAIVER. Subject to the occurrence of the
Effective Date, the Banks hereby agree to waive the requirements under Section
6.02(e)(iv)(B) of the Master Agreement in connection with the Woodlands Asset
Disposition that 100% of the consideration be for cash; PROVIDED, that (i) the
Net Cash Proceeds of the Cash Consideration, together with the Note (with an
undated note power indorsed by the Seller in blank) shall be delivered and
pledged to the Collateral Trustees for the benefit of the Secured Holders as
payment (in the case of the Cash Consideration) and as Collateral (in the case
of the Note) and (ii) an assignment of the Deed of Trust substantially in the
form of Exhibit A attached hereto and made a part hereof shall be executed by
the Seller and delivered to the Collateral Trustees, on the closing of the
Woodlands Asset Disposition.
SECTION 2. CONDITIONS TO EFFECTIVENESS. The provisions of
Section 1 of this Waiver shall become effective as of the date first above
written (the "EFFECTIVE DATE") when, and only when, the Debt Coordinator shall
have received confirmation of each of the following, each in form and substance
satisfactory to the Debt Coordinator:
(i) EXECUTION OF COUNTERPARTS. The Debt Coordinator shall have
received counterparts of this Waiver duly executed by each of the Loan
Parties and the Majority Banks.
(ii) PAYMENT OF FEES AND EXPENSES. The Debt Coordinator shall
have determined that all agency, trustee, custodial, filing service,
legal and other fees and disbursements incurred and invoiced through
the day immediately prior to the Effective Date, including all fees of
the Collateral Trustees and the Debt Coordinator and their respective
counsel and of the Financial Advisor, shall have been paid in full by
the Loan Parties.
(iii) NO DEFAULT. No Default shall have occurred or be
continuing, other than a Default that shall be cured by the
effectiveness hereof.
SECTION 3. CONFIRMATION OF REPRESENTATIONS AND WARRANTIES AND
CERTAIN ACKNOWLEDGEMENTS AND AGREEMENTS. Each of the Loan Parties hereby
represents and warrants, on and as of the Effective Date, that the
representations and warranties contained in the Master Agreement are correct and
true in all material respects on and as of the date hereof, before and after
giving effect to this Waiver, 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. In addition, each of the Loan Parties hereby acknowledges and
restates, on and as of the Effective Date, each of its statements and agreements
in Sections 8.02(d) and 8.03 of the Master Agreement.
SECTION 4. REFERENCE TO AND EFFECT ON THE TRANSACTION
DOCUMENTS. (a) On and after the effectiveness of this Waiver, each reference in
the Master Agreement to "hereunder", "hereof" or words of like import referring
to the Master Agreement, and each reference in the other Transaction Documents
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to the "Master Agreement", "thereunder", "thereof" or words of like import
referring to the Master Agreement, shall mean and be a reference to the Master
Agreement as modified by this Waiver.
(b) The execution, delivery and effectiveness of this Waiver
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Bank or the Debt Coordinator under any of the
Transaction Documents, nor constitute a waiver of any provision of any of the
Transaction Documents.
SECTION 5. EXECUTION IN COUNTERPARTS. This Waiver 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
Waiver by telecopier shall be effective as delivery of a manually executed
counterpart of this Waiver.
SECTION 6. GOVERNING LAW. This Waiver shall be governed by,
and construed in accordance with, the laws of the State of New York, and shall
be subject to the jurisdictional and service provisions of the Master Agreement,
as if this were a part of the Master Agreement.
SECTION 7. ENTIRE AGREEMENT; MODIFICATION. This Waiver
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof, there being no other agreements or understandings, oral,
written or otherwise, respecting such subject matter, any such agreement or
understanding being superseded hereby, shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns, and
may not be amended, extended or otherwise modified, except in a writing executed
in whole or in counterparts by each party hereto.
SECTION 8. WAIVER PROVISIONS. This Waiver is subject to the
provisions of Section 10.01 of the Master Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
AS OBLIGORS AND LOAN PARTIES: AS LOAN PARTIES:
U.S. INDUSTRIES, INC. ASTERIA COMPANY
USI AMERICAN HOLDINGS, INC. BATHCRAFT, INC.
USI ATLANTIC CORP. XXXXXX BROTHERS INC.
USI GLOBAL CORP. XXXXXXXX MANUFACTURING CORP.
REXAIR, INC. CARLSBAD CORP.
REXAIR HOLDINGS, INC. COMPAX CORP.
ELJER INDUSTRIES, INC.
ELJER PLUMBINGWARE, INC.
ENVIRONMENTAL ENERGY COMPANY
EZ HOLDINGS, INC.
XXXX CONCRETE PRODUCTS, INC.
GATSBY SPAS, INC.
HL CAPITAL CORP.
JACUZZI INC.
JACUZZI WHIRLPOOL BATH, INC.
JUSI HOLDINGS, INC.
KLI, INC.
KRIKLES CANADA U.S.A., INC.
KRIKLES EUROPE U.S.A., INC.
KRIKLES, INC.
LOKELANI DEVELOPMENT CORPORATION
LUXOR INDUSTRIES INC.
MAILI KAI LAND DEVELOPMENT CORPORATION
MOBILITE, INC.
NEPCO OF AUSTRALIA, INC.
NEPCO OF CANADA, INC.
NEPCO OF FORD HEIGHTS, INC.
NEPCO OF XXXXXX, INC.
XXXXXX UNIVERSAL HOLDINGS INC.
OUTDOOR PRODUCTS LLC
PH PROPERTY DEVELOPMENT COMPANY
PLC REALTY INC.
REDMONT, INC.
SANITARY-DASH MANUFACTURING CO., INC.
SHELBY PROPERTIES, INC.
STRATEGIC CAPITAL MANAGEMENT, INC.
STRATEGIC MEMBERSHIP COMPANY
STREAMWOOD CORPORATION
SUNDANCE SPAS, INC.
TA LIQUIDATION CORP.
TRIMFOOT CO.
TT LIQUIDATION CORP.
UGE LIQUIDATION INC.
UNITED STATES BRASS CORPORATION
USI CAPITAL, INC.
USI FUNDING, INC.
USI PROPERTIES, INC.
USI REALTY CORP.
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ZURCO, INC.
ZURNACQ OF CALIFORNIA, INC.
XXXX (CAYMAN ISLANDS), INC.
XXXX CONSTRUCTORS, INC.
XXXX DEVCO, INC.
XXXX XXX SERVICES, INC.
XXXX GOLF HOLDING CORPORATION
XXXX INDUSTRIES, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Vice President/Senior Vice President
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ABN AMRO BANK N.V.
---------------------------------------------
[PLEASE PRINT NAME OF BANK]
By: /s/ XXXX X. XXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Group Vice President
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BANK OF AMERICA, N.A.
-----------------------------
By: /s/ XXXXX X. XX
--------------------------
Name: Xxxxx X. Xx
Title: Managing Director
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Xxx Xxxx xx Xxx Xxxx
By: /s/ XXXXX X. XXXXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
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COMERICA BANK
-----------------------------
[PLEASE PRINT NAME OF BANK]
By: /s/ XXXX XXXXXXXXX
---------------------------
Name: Xxxx XxXxxxxxx
Title: Vice President
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FARALLON JACUZZI, LLC
---------------------------------------
By: FARALLON CAPITAL MANAGEMENT, LLC
------------------------------------
By: /s/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Member
AUTHORIZED CO-SIGNATORY:
WATERSHED ASSET MANAGEMENT, LLC
AS SUB-ADVISOR
---------------------------------------
By: /s/ XXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Managing Member
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XXXXXXX XXXXX CREDIT PARTNERS, L.P.
---------------------------------------
[PLEASE PRINT NAME OF BANK]
---------------------------------------
By: /s/ XXXX XXXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Authorized Signatory
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HSBC Bank USA
By: /s/ XXXX X. XXXXXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
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XX Xxxxxx Chase Bank
By: /s/ XXXXXXXXX XXXXXX
-----------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
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The President & Fellows of Harvard College
(REF. Harvard Special Situations Account)
By: Whippoorwill Associates, Incorporated
Its Agent and Authorized Signatory
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
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ROYAL BANK OF CANADA
---------------------------------------
[PLEASE PRINT NAME OF BANK]
By: /s/ X.X. XXXXX
-----------------------------------
Name: X.X. Xxxxx
Title: Vice President
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Sumitomo Mitsui Banking Corporation
By: /s/ XXXXXX X. XXXXXXXXX, XX.
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Joint General Manager
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EXHIBIT A
Please see attached.
