Exhibit 10.58
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as of
October 16, 2003 among JBI Holdings Limited (the "ADDITIONAL SUBSIDIARY
GUARANTOR"), a corporation organized under the laws of England and Wales and a
subsidiary of Jacuzzi Brands, Inc., a Delaware corporation (or its permitted
successor) (the "COMPANY"), the other Subsidiary Guarantors (the "EXISTING
SUBSIDIARY GUARANTORS") and Wilmington Trust Company, a Delaware corporation,
not in its individual capacity but solely as trustee under the Indenture (the
"TRUSTEE").
W I T N E S S E T H :
WHEREAS, the Company and the Subsidiary Guarantors have heretofore
executed and delivered to the Trustee an Indenture (the "INDENTURE"), dated as
of July 15, 2003, providing for the issuance of 9?% Senior Secured Notes due
2010 (the "SECURITIES");
WHEREAS, Section 5.01(b) of the Indenture provides that under certain
circumstances the Company will cause the Additional Subsidiary Guarantor to
execute and deliver to the Trustee a Guaranty Agreement pursuant to which the
Additional Subsidiary Guarantor will Guarantee payment of the Securities on the
same terms and conditions as those set forth in Article 10 of the Indenture; and
WHEREAS, pursuant to Section 9.01(5) of the Indenture, the Trustee,
the Company and the Existing Subsidiary Guarantors are authorized to execute and
deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the receipt of which is hereby acknowledged, the
Company, the Additional Subsidiary Guarantor, the Existing Subsidiary Guarantors
and the Trustee mutually covenant and agree for the equal and ratable benefit of
the Holders of the Securities as follows:
SECTION 1. CAPITALIZED TERMS. Capitalized terms used herein but not
defined shall have the meanings assigned to them in the Indenture.
SECTION 2. GUARANTIES. (a) The Additional Subsidiary Guarantor hereby
agrees, jointly and severally with all other Subsidiary Guarantors, to guarantee
the Issuers' obligations under the Securities on the terms and subject to the
conditions set forth in Article 10 of the Indenture and to be bound by all other
applicable provisions of the Indenture (including Article 11).
(b) If, in connection with any payment made under or with respect to
the Subsidiary Guaranty of the Additional Subsidiary Guarantor, the Additional
Subsidiary Guarantor is required to withhold or deduct any amount for or on
account of any present or future tax, duty, levy, impost, assessment or other
governmental charge (including penalties, interest and other liabilities related
thereto) (hereinafter "TAXES") imposed or levied by or on behalf of the
government of the United Kingdom or any political subdivision or any authority
or agency therein or thereof having power to tax, or within any other
jurisdiction in which the Additional Subsidiary Guarantor is organized or is
otherwise resident for tax purposes or any jurisdiction from or through which
payment is made (each a "RELEVANT TAXING JURISDICTION"), such Additional
Subsidiary Guarantor will be required to pay such additional amounts
("ADDITIONAL AMOUNTS") as may be necessary so that the net amount received by
Holders (including Additional Amounts) after such withholding or deduction will
not be less than the amount the Holders would have received if such Taxes had
not been withheld or deducted; PROVIDED, HOWEVER, that no Additional Amounts
will be payable with respect to a payment made to a Holder which is subject to
Taxes by reason of its being connected with the Relevant Taxing Jurisdiction
(other than by the mere ownership or holding of Securities outside the United
Kingdom or the receipt of payments in respect of the Subsidiary Guaranty of the
Additional Subsidiary Guarantor).
(c) Upon request, the Additional Subsidiary Guarantor shall provide the
Trustee with official receipts or other documentation satisfactory to the
Trustee evidencing the payment of the Taxes with respect to which Additional
Amounts are paid.
SECTION 3. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF
INDENTURE. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 4. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 5. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
SECTION 6. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 7. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not effect the construction of this Supplemental
Indenture.
2
IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture
to be duly executed as of the date first written above.
JACUZZI BRANDS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name:
Title: Sr. Vice President,
General Counsel & Secretary
EACH OF THE SUBSIDIARY GUARANTORS LISTED
ON SCHEDULE A HERETO
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name:
Title: Vice President &
Asst. Secretary
EXECUTED AS A DEED AND DELIVERED BY:
JBI HOLDINGS LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇. Park
-------------------------------------
Name:
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name:
Title: Director/Secretary
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name:
Title: Vice President
3
SCHEDULE A
SUBSIDIARY GUARANTORS
Asteria Company
Bathcraft, Inc.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇▇ Manufacturing Corp.
Carlsbad Corp.
Compax Corp.
Eljer Industries, Inc.
Eljer Plumbingware, Inc.
Environmental Energy Company
▇▇▇▇ 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.
▇▇▇▇▇▇ Universal Holdings Inc.
Outdoor Products, LLC
PH Property Development Company
PLC Realty Inc.
Redmont, Inc.
Rexair Holdings, Inc.
Rexair, Inc.
Sanitary-Dash Manufacturing Co.
SH1 Inc.
Strategic Capital Management, Inc.
Strategic Membership Company
Streamwood Corporation
Sundance Spas, Inc.
TA Liquidation Corp.
Trimfoot Co.
TT Liquidation Corp.
UGE Liquidation Inc.
A-1
USI American Holdings, Inc.
USI Atlantic Corp.
USI Capital, Inc.
USI Funding, Inc.
USI Global Corp.
USI Properties, Inc.
USI Realty Corp.
Zurco, Inc.
▇▇▇▇ (Cayman Islands), Inc.
▇▇▇▇ Constructors, Inc.
▇▇▇▇ ▇▇▇ Services, Inc.
▇▇▇▇ Industries, Inc.
▇▇▇▇ PEX, Inc. (formerly United States Brass Corporation)
Zurnacq of California Inc.
A-2
