Exhibit 10.55
SUPPLEMENT TO GUARANTY AND GUARANTOR SECURITY AGREEMENT
This SUPPLEMENT TO GUARANTY AND GUARANTOR SECURITY AGREEMENT (this
"SUPPLEMENT"), dated as of October 16, 2003, between JBI HOLDINGS LIMITED, an
English corporation ("JBI HOLDINGS"), and FLEET CAPITAL CORPORATION, a Rhode
Island corporation, in its capacity as the Administrative Agent (in such
capacity, (the "ADMINISTRATIVE AGENT") for the Revolving Credit Lenders and the
Term Loan B Lenders (collectively, the "LENDERS") party to the Loan Agreement
referred to below.
RECITALS
WHEREAS, pursuant to that certain Loan and Security Agreement dated as
of July 15, 2003 (as amended by the First Amendment thereto, and as it may
hereafter be further amended, restated, supplemented or otherwise modified, the
"LOAN AGREEMENT"), by and among Jacuzzi Brands, Inc., a Delaware corporation
("JACUZZI"), certain Subsidiaries of Jacuzzi (collectively, with Jacuzzi, the
"BORROWERS"), the Administrative Agent, Silver Point Finance, LLC, as agent for
the Term Loan B Lenders, and the Lenders from time to time party thereto, the
Lenders have made and continue to make loans available to the Borrowers;
WHEREAS, certain Subsidiaries of Jacuzzi other than the Borrowers have
(a) guaranteed all of the Obligations of the Borrowers under the Loan Agreement
pursuant to the terms of that certain Guaranty Agreement, dated as of July 15,
2003 (as supplemented hereby and as it may hereafter be further amended,
restated, supplemented or otherwise modified, the "GUARANTY") and (b) secured
their obligations under the Guaranty by granting a security interest in certain
Collateral to the Administrative Agent pursuant to that certain Guarantor
Security Agreement dated as of July 15, 2003 (as supplemented hereby and as it
may hereafter be further amended, restated, supplemented or otherwise modified,
the "GUARANTOR SECURITY AGREEMENT");
WHEREAS, the Lenders, by the terms of the First Amendment to the Loan
Agreement, have consented to the formation of JBI Holdings and to certain
corporate restructuring transactions involving Jacuzzi, certain of its existing
Subsidiaries and JBI Holdings, subject to the conditions, among others, that JBI
Holdings guarantee all of the Obligations of the Borrowers under the Loan
Agreement and agree to become a party to the Guaranty and that JBI Holdings
secure such guaranty by granting a security interest in all of its Collateral
and agree to become a party to the Guarantor Security Agreement;
WHEREAS, following the corporate restructuring transactions referred to
above, (a) JBI Holdings shall be a direct wholly-owned Subsidiary of Jacuzzi and
(b) certain of the Borrowers shall be direct or indirect Subsidiaries of JBI
Holdings;
WHEREAS, JBI Holdings shall derive substantial benefits from the
financial accommodations to be provided under the Loan Agreement;
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. DEFINED TERMS. Except as otherwise defined herein, all defined terms
herein shall have the respective meanings ascribed thereto in the Loan Agreement
and Appendix A thereto.
2. GUARANTY. JBI Holdings hereby unconditionally and irrevocably,
jointly and severally with all other Guarantors, guarantees the prompt and
complete payment and performance of all present and future Obligations as and to
the extent set forth in the Guaranty and to the same extent as if JBI Holdings
had been a party to the Guaranty on the Closing Date. The terms of the Guaranty
are incorporated herein by reference in their entirety as though fully set forth
herein. Each reference to "Guarantor" or "Guarantors" contained in the Guaranty
or in any other Loan Document shall, and shall be deemed to, include a reference
to JBI Holdings. Each reference in the Guaranty to "this Guaranty", "herein",
hereof" and words of like import and each reference in the other Loan Documents
and the Intercreditor Agreement to the Guaranty shall mean the Guaranty as
supplemented hereby. The Guaranty shall continue in full force and effect as
supplemented hereby.
3. GRANT OF SECURITY INTEREST. To secure the prompt payment and
performance of its obligations under the Guaranty, JBI Holdings hereby grants to
the Administrative Agent a Lien upon all of its Collateral of the types
described in Section 2.1 of the Guarantor Security Agreement, whether now owned
or existing or hereafter created, acquired or arising and wheresoever located,
along with all Proceeds of any such Collateral as and to the extent set forth in
the Guarantor Security Agreement and to the same extent as if JBI Holdings had
been a party to the Guarantor Security Agreement on the Closing Date. The terms
of the Guarantor Security Agreement are incorporated herein by reference in
their entirety as though fully set forth herein. Each reference to "Grantor" or
"Grantors" contained in the Guarantor Security Agreement and each reference to
"Loan Party" or "Loan Parties" in any Loan Document shall, and shall be deemed
to, include a reference to JBI Holdings. Each reference in the Guarantor
Security Agreement to "this Security Agreement", "herein", hereof" and words of
like import and each reference in the other Loan Documents and the Intercreditor
Agreement to the Guarantor Security Agreement shall mean the Guarantor Security
Agreement as supplemented hereby. The Guarantor Security Agreement shall
continue in full force and effect as supplemented hereby.
4. ACTIVITIES OF JBI HOLDINGS. JBI Holdings agrees that it shall not
own any assets other than the shares of USI American Holdings, Inc., shall not
incur any liabilities other than its guaranty of the Obligations and its
guaranty of the Indebtedness under the New Senior Secured Notes and shall not
engage in any trade or business.
5. GOVERNING LAW. THIS SUPPLEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Supplement to Guaranty and Guarantor Security
Agreement has been duly executed as of the date first written above.
EXECUTED AS A DEED AND DELIVERED BY:
JBI HOLDINGS LIMITED
By: /s/ Xxxxxxx X. Park
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Title: Director
By: /s/ Xxxxxx X. Xxxxx
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Title: Director/Secretary
FLEET CAPITAL CORPORATION,
as Administrative Agent
By: /s/ Xxxxx Xxxxxxx
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Title: Senior Vice President
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The undersigned parties to the Guaranty and Guarantor Security
Agreement hereby acknowledge the foregoing Supplement thereto and ratify and
confirm that each shall remain in full force and effect as supplemented hereby.
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.
USI Properties, Inc.
USI Realty Corp.
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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
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Name:
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Title: Vice President & Assistant
Secretary
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