EXHIBIT 10.3
GUARANTY AGREEMENT
GUARANTY, dated as of July 15, 2003 (this "GUARANTY"), made by the
parties set forth on the signature pages hereto as Guarantors (each a
"GUARANTOR" and, collectively, the "GUARANTORS"), in favor of Fleet Capital
Corporation ("Fleet"), individually as a Revolving Credit Lender and as
administrative agent and collateral agent (as administrative agent and
collateral agent, together with any successor, the "ADMINISTRATIVE AGENT") (i)
for the lenders now or hereafter being parties to the Loan Agreement (as
hereinafter defined) as a Revolving Credit Lender or as a Term Loan B Lender
(each such lender, including Fleet as a Revolving Credit Lender, is referred to
hereinafter individually as a "Lender" and collectively as the "Lenders") (ii)
Silver Point Finance LLC as agent for the Term Loan B Lenders ("Term Loan B
Agent"), (iii) Fleet National Bank as issuer from time to time of letters of
credit issued pursuant to the Loan Agreement (together with any successor,
"ISSUING BANK"), and (iv) each Revolving Credit Lender or Affiliate thereof to
whom Product Obligations (as such term is defined in the Loan Agreement) are
owed (together with the Administrative Agent, the Lenders, the Term Loan B Agent
and the Issuing Bank, the "SECURED PARTIES").
WHEREAS, Jacuzzi Brands, Inc., a Delaware corporation ("Parent" or
"Borrower Representative"), Bathcraft, Inc., a Georgia corporation
("Bathcraft"), Eljer Plumbingware, Inc., a Delaware corporation ("Eljer"),
Gatsby Spas, Inc., a Florida corporation ("Gatsby"), Jacuzzi Inc., a Delaware
corporation ("Jacuzzi"), JUSI Holdings, Inc., a Delaware corporation ("JUSI"),
Redmont, Inc., a Mississippi corporation ("Redmont"), Rexair, Inc., a Delaware
corporation ("Rexair"), Sundance Spas, Inc., a California corporation
("Sundance"), Xxxx PEX, Inc. (formerly known as United States Brass
Corporation), a Delaware corporation ("USBC"), USI American Holdings, Inc., a
Delaware corporation ("USIAH"), USI Global Corp., a Delaware corporation ("USI
Global"), and Zurco, Inc., a Delaware corporation ("Zurco") and Xxxx Industries,
Inc., a Pennsylvania corporation ("Xxxx") (Parent, Bathcraft, Eljer, Gatsby,
Jacuzzi, JUSI, Redmont, Rexair, Sundance, USBC, USIAH, USI Global, Zurco and
Xxxx each, a "Borrower" and collectively, the "Borrowers"), have entered into a
Loan and Security Agreement, dated as of July 15, 2003 (as the same may be
amended, supplemented, restated or otherwise modified from time to time, the
"Loan Agreement") with Administrative Agent, Term Loan B Agent, Credit Suisse
First Boston, acting through its Cayman Islands branch ("CSFB"), as a
co-syndication agent, CSFB and Fleet Securities, Inc., collectively, as joint
lead arrangers and joint book runners, Bank One, NA, as a co-syndication agent,
and the Revolving Credit Lenders and Term Loan B Lenders party thereto from time
to time; and
WHEREAS, each of the Guarantors shall derive substantial benefits from
the financial accommodations to be provided under the Loan Agreement; and
WHEREAS, as a condition to the Lenders making any Loans and the Issuing
Bank issuing or the Administrative Agent causing the issuance of any Letters of
Credit under the Loan Agreement, the Lenders, the Administrative Agent and the
Term Loan B Agent have required the execution and delivery of this Guaranty by
the Guarantors.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to make Loans and the Issuing Bank to issue or the Administrative
Agent to cause the issuance of Letters of Credit under the Loan Agreement, each
of the Guarantors hereby agrees with the Administrative Agent for the ratable
benefit of the Secured Parties as follows:
1. DEFINED TERMS. Unless otherwise defined herein, terms which are
defined in the Loan Agreement and used herein are so used as so defined.
2. GUARANTY. (a) Each Guarantor hereby, unconditionally and
irrevocably, jointly and severally with all other Guarantors, guarantees to the
Secured Parties the prompt and complete payment and performance when due of all
present and future Obligations, whether at stated maturity, by acceleration or
otherwise (the "GUARANTEED OBLIGATIONS"); PROVIDED, HOWEVER, that anything
herein or in any other Loan Documents to the contrary notwithstanding, the
maximum liability of any Guarantor hereunder and under the other Loan Documents
shall in no event exceed an amount equal to the largest amount that would not
render such Guarantor's obligations hereunder subject to avoidance under Section
548 of the Federal Bankruptcy Code or any equivalent provision of federal law or
the law of any state.
(b) The guaranty contained herein is an absolute,
unconditional and continuing guaranty of the full and punctual payment and
performance of the Guaranteed Obligations, is not a guaranty of collection, and
is in no way conditioned upon any requirement that the Administrative Agent on
behalf of the Secured Parties or any of the Secured Parties first collect or
attempt to collect the Guaranteed Obligations or any portion thereof from the
Borrowers or any of their Subsidiaries or any other guarantor or resort to any
security or other means of obtaining payment of any of the Guaranteed
Obligations. Payments by the Guarantors under this Guaranty may be required to
be made on any number of occasions.
(c) No payment or payments made by any of the Borrowers or any
of their Subsidiaries or any other Person or received or collected by the
Administrative Agent or any Secured Party from any of the Borrowers or any of
their Subsidiaries or any other Person by virtue of any action or proceeding or
any setoff or appropriation or application at any time or from time to time in
reduction of or in payment of the Guaranteed Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder (other than payment in full in cash of the Guaranteed Obligations or,
in the case of Guaranteed Obligations other than to Term Loan B Agent and Term
Loan B Lenders, cash collateralization thereof (including without limitation by
way of letter of credit) to satisfaction of Administrative Agent) which shall,
notwithstanding any such payment indefeasible or payments other than payments in
cash made by such Guarantor in respect of the Guaranteed Obligations or payments
in cash received or collected from such Guarantor in respect of the Guaranteed
Obligations or cash collateralization to the extent described above, remain
liable for the Guaranteed Obligations, until the termination of this Guaranty in
accordance with Section 6 hereof.
(d) Each Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to the Administrative Agent on account
of its liability hereunder, it will notify the Administrative Agent and the
Secured Parties in writing that such payment is made under this Guaranty for
such purpose.
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3. RIGHT OF SET OFF AND SHARING OF PAYMENTS. In addition to any rights
now or hereafter granted under applicable law and not by way of limitation of
any such rights, during the continuance of any Event of Default, each Lender is
hereby authorized by Guarantors at any time or from time to time, with prior
written consent of Administrative Agent and with reasonably prompt subsequent
notice to Borrower Representative (any prior or contemporaneous notice to
Guarantors being hereby expressly waived) to set off and to appropriate and to
apply any and all (i) balances held by such Lender at any of its offices for the
account of any Guarantor or any of its Subsidiaries (regardless of whether such
balances are then due to such Guarantor or its Subsidiaries), and (ii) other
property at any time held or owing by such Lender to or for the credit or for
the account of any Guarantor or any of its Subsidiaries, against and on account
of any of the Obligations. Any Lender exercising a right to set off shall comply
with the provisions of Section 3.10 of the Loan Agreement. Each Guarantor
agrees, to the fullest extent permitted by law, that any Lender may exercise its
right to set off with respect to amounts in excess the amount to which such
Lender is entitled at such time pursuant to the terms of this Guaranty, and each
such Lender, upon doing so, shall deliver the entire amount set off to
Administrative Agent, for the benefit of Lenders, in accordance with the terms
of this Guaranty.
4. SUBORDINATION OF SUBROGATION, ETC. Notwithstanding anything to the
contrary in this Guaranty or in any other Loan Document, and except as set forth
in Section 12.7 of the Loan Agreement, each Guarantor hereby expressly and
irrevocably subordinates to payment of the Guaranteed Obligations any and all
rights at law or in equity to subrogation, reimbursement, exoneration,
contribution, indemnification or set off and any and all defenses available to a
surety, guarantor or accommodation co-obligor until the Guaranteed Obligations
are indefeasibly paid in full in cash other than any Guaranteed Obligations
(excluding Guaranteed Obligations to Term Loan B Agent and Term Loan B Lenders)
that have been cash collateralized or covered by a letter of credit satisfactory
to Administrative Agent. Each Guarantor acknowledges and agrees that this
subordination is intended to benefit the Secured Parties and shall not limit or
otherwise affect such Guarantor's liability hereunder or the enforceability of
this Section 4, and that Secured Parties and their respective successors and
assigns are intended third party beneficiaries of the waivers and agreements set
forth in this Section 4.
5. AMENDMENTS, ETC., WITH RESPECT TO THE GUARANTEED OBLIGATIONS. Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor, and without notice to or further
assent by any Guarantor, any demand for payment of any of the Guaranteed
Obligations made by the Administrative Agent or any Secured Party, as the case
may be, may be rescinded by the Administrative Agent or such Secured Party, as
the case may be, and any of the Guaranteed Obligations continued, and the
Guaranteed Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of setoff
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Administrative Agent or any Secured Party, as the case may be,
and the Loan Agreement and the other Loan Documents, and any other agreement,
instrument or document executed in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Administrative
Agent and the Secured Parties, as the case may be, may deem advisable from time
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to time, and any guarantee or right of setoff at any time held by the
Administrative Agent or any Secured Party, as the case may be, for the payment
of the Guaranteed Obligations may be sold, exchanged, waived, surrendered or
released. When making any demand hereunder against any Guarantor, the
Administrative Agent or any Secured Party, as the case may be, may, but shall be
under no obligation to, make a similar demand on any of the Borrowers or their
Subsidiaries, and any failure by the Administrative Agent or such Secured Party,
as the case may be, to make any such demand or to collect any payments from any
of the Borrowers or their Subsidiaries or any release of any of the Borrowers or
their Subsidiaries shall not impair or affect the rights and remedies, express
or implied, or as a matter of law, of the Administrative Agent or such Secured
Party, as the case may be, against any Guarantor. For the purposes hereof
"demand" shall include the commencement and continuance of any legal
proceedings.
6. GUARANTY ABSOLUTE AND UNCONDITIONAL; TERMINATION. Each Guarantor
waives any and all notice of the creation, renewal, extension or accrual of any
of the Guaranteed Obligations and notice of or proof of reliance by the
Administrative Agent and the Secured Parties, as the case may be, upon this
Guaranty or acceptance of this Guaranty; the Guaranteed Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred
in reliance upon this Guaranty; and all dealings between the Borrowers or their
Subsidiaries, on the one hand, and the Administrative Agent and the Secured
Parties, as the case may be, on the other, shall likewise be conclusively
presumed to have been had or consummated in reliance upon this Guaranty. Each
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Borrowers or their Subsidiaries or
itself or any other Guarantor with respect to the Guaranteed Obligations. This
Guaranty shall be construed as a continuing, absolute and unconditional guaranty
of payment without regard to (a) any defense, setoff or counterclaim (other than
a defense of payment or performance) which may at any time be available to or be
asserted by the Borrowers or their Subsidiaries against the Administrative Agent
or any Secured Party, as the case may be, (b) the genuineness, validity,
regularity, enforceability or any future amendment of, or change in, this
Guaranty, any other Loan Document or any other agreement, document or instrument
to which any Guarantor is or may become a party, (c) the absence of any action
to enforce this Guaranty (including this Section 6) or any other Loan Document
or the waiver or consent by Administrative Agent and Lenders with respect to any
of the provisions thereof, (d) the existence, value or condition of, or failure
to perfect its Lien against, any security for the Guaranteed Obligations or any
action, or the absence of any action, by Administrative Agent, Term Loan B Agent
or Lenders in respect thereof (including the release of any such security), (e)
the insolvency of any Borrower, any Subsidiary of any Borrower or any Guarantor,
or (f) any other circumstance whatsoever (with or without notice to or knowledge
of the Borrowers or their Subsidiaries) which constitutes, or might be construed
to constitute, an equitable or legal discharge of the Borrowers or their
Subsidiaries for the Guaranteed Obligations, or of itself or any other Guarantor
under this Guaranty, in bankruptcy or in any other instance. When pursuing its
rights and remedies hereunder against any Guarantor, the Administrative Agent or
any Secured Party, as the case may be, may, but shall be under no obligation to,
pursue such rights and remedies as it may have against the Borrowers or their
Subsidiaries or any other Person or guaranty for the Guaranteed Obligations or
any right of setoff with respect thereto, and any failure by the Administrative
Agent or any Secured Party, as the case may be, to pursue such other rights or
remedies or to collect any payments from the Borrowers or their Subsidiaries or
any such other Person or to realize upon any such guaranty or to exercise any
such right of setoff, or any release of the Borrowers or their Subsidiaries
thereof or any such other Person or any guaranty or right of setoff, shall not
relieve any Guarantor of any liability hereunder, and shall not impair or affect
the rights and remedies, whether express, implied or available as a matter of
law, of the Administrative Agent or such Secured Party, as the case may be,
against any Guarantor. Subject to the provisions of Section 7 hereof, this
Guaranty shall remain in full force and effect and be binding in accordance with
and to the extent of its terms upon each Guarantor and the successors and
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assigns thereof, and shall inure to the benefit of the Administrative Agent and
the Secured Parties, as the case may be, and their successors, endorsees,
transferees and assigns, until the (x) payment in full in cash other than any
Guaranteed Obligations (excluding Guaranteed Obligations to Term Loan B Agent
and Term Loan B Lenders) that have been cash collateralized or covered by a
letter of credit satisfactory to Administrative Agent and termination of all
Guaranteed Obligations, (y) the expiration or cancellation of all Letters of
Credit and LC and Acceptance Guaranty and (z) the expiration or termination of
the Revolving Credit Commitment and the expiration or termination of any further
commitment of Issuing Bank to open or the Administrative Agent to cause to be
opened Letters of Credit (or the payment in full or cash collateralization
(including without limitation by way of letter of credit) to satisfaction of
Administrative Agent of all obligations in respect of Letters of Credit).
Subject to the provisions of Section 7 hereof, upon the payment in full in cash
other than any Guaranteed Obligations (excluding Guaranteed Obligations to Term
Loan B Agent and Term Loan B Lenders) that have been cash collateralized or
covered by a letter of credit satisfactory to Administrative Agent and
termination of all Guaranteed Obligations, the expiration or cancellation of all
Letters of Credit and LC and Acceptance Guaranty and the expiration or
termination of the Revolving Credit Commitment and the expiration or termination
of any further commitment of Issuing Bank to open or the Administrative Agent to
cause to be opened Letters of Credit (or the payment in full of all obligations
in respect of Letters of Credit), this Guaranty shall terminate.
7. REINSTATEMENT. This Guaranty shall continue to be effective, or be
reinstated, as the case may be, if at any time the payment, or any part thereof,
of any of the Guaranteed Obligations is rescinded or must otherwise be restored
or returned by the Administrative Agent or any Secured Party, as the case may
be, including, by way of example, but not in limitation of the foregoing, upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Borrower or any of their Subsidiaries or upon or as a result of the appointment
of a receiver, intervenor or conservator of, or trustee or similar officer for,
any Borrower or any of their Subsidiaries or any substantial part of their
respective property, or otherwise, all as though such payments had not been
made.
8. EXPENSES. The Guarantors will, upon demand, pay the Administrative
Agent for any and all reasonable out-of-pocket costs, sums and expenses which
the Administrative Agent may pay or incur pursuant to the provisions of this
Guaranty or in enforcing this Guaranty or in enforcing payment of the Guaranteed
Obligations or otherwise in connection with the provisions hereof, including,
but not limited to, all reasonable filing or recording fees, court costs,
collection charges, travel expenses, computer fees, telephone fees, duplicating
fees and attorneys' fees. All of the foregoing, together with interest thereon
as specified in Section 11 hereof, shall be part of the Guaranteed Obligations
and be payable on demand.
9. PAYMENTS. Each Guarantor hereby, jointly and severally, with all
other Guarantors, agrees that it will make payments in respect of the Guaranteed
Obligations upon demand therefor to the Administrative Agent, without setoff,
deduction, withholding or counterclaim, by wire transfer in immediately
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available funds at the Administrative Agent's address set forth on the signature
page hereto or at such other place as the Administrative Agent may direct from
time to time by notice to the Guarantors.
10. SEVERABILITY. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11. INTEREST. All amounts which have become due and payable from time
to time by any Guarantor hereunder shall constitute part of the Guaranteed
Obligations and shall bear interest and be payable at the interest rate
applicable to Base Rate Loans comprising Revolving Credit Loans or, in the case
of amounts relating to the Term Loan B, the rate applicable to the Term Loan B,
at such time made under the Loan Agreement.
12. PARAGRAPH HEADINGS. The captions of the various sections and
paragraphs of this Guaranty have been inserted only for the purposes of
convenience; such captions are not a part of this Guaranty and shall not be
deemed in any manner to modify, explain, enlarge or restrict any of the
provisions of this Guaranty.
13. NO WAIVER; CUMULATIVE REMEDIES. Neither the Administrative Agent
nor any Secured Party, as the case may be, shall by an act (except by a written
instrument pursuant to Section 14 hereof), delay, indulgence, omission or
otherwise, be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Secured Party, as the
case may be, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent or
any Secured Party, as the case may be, of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Administrative Agent or such Secured Party, as the case may be, would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
rights or remedies provided by law.
14. WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS. None of the terms
or provisions of this Guaranty may be waived, amended, supplemented or otherwise
modified except by a written instrument executed by each Guarantor and the
Administrative Agent (with the approval of the requisite number of Lenders as
required under the Loan Agreement). This Guaranty shall be binding upon the
successors and assigns of the Guarantors and shall inure to the benefit of the
Administrative Agent and the Secured Parties.
15. ADDRESS FOR NOTICES. Except as otherwise provided in the Loan
Agreement, all notices, requests and demands to or upon a party hereto, to be
effective, shall be in writing, return receipt requested, by personal delivery
against receipt, by overnight courier or by facsimile and, unless otherwise
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expressly provided herein, shall be deemed to have been validly served, given,
delivered or received immediately when delivered against receipt, one Business
Day after deposit with an overnight courier or, in the case of facsimile notice,
when sent, addressed as follows:.
If to Administrative Agent: Fleet Capital Corporation
One South Xxxxxx Drive
Suite 1400.
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxx
Facsimile No.: 000-000-0000
With a copy to: Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: 212-294-4700
If to Term Loan B Agent: Silver Point Finance LLC
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxx
Facsimile No.: 000-000-0000
With a copy to: Xxxxxxx, Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Facsimile No.: 000-000-0000
If to Borrowers: Jacuzzi Brands, Inc.
Xxxxxxxx Tower - West Tower
000 Xxxxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxx Xxxx Xxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile No.: 000-000-0000
With copies to Jacuzzi Brands, Inc.
Xxxxxxxx Tower - West Tower
000 Xxxxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Facsimile No.: 000-000-0000
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and
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile No.: 000-000-0000
or to such other address as each party may designate for itself by notice given
in accordance with this Section 15 or the Loan Agreement.
16. GOVERNING LAW; CONSENT TO FORUM. THIS GUARANTY HAS BEEN NEGOTIATED, EXECUTED
AND DELIVERED IN AND SHALL BE DEEMED TO HAVE BEEN MADE IN NEW YORK, NEW YORK.
THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE 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
GUARANTORS, ADMINISTRATIVE AGENT OR ANY SECURED PARTY, EACH GUARANTOR HEREBY
CONSENTS AND AGREES THAT THE SUPREME COURT OF NEW YORK COUNTY, NEW YORK, NEW
YORK, OR, AT ADMINISTRATIVE 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 GUARANTORS, ON THE ONE HAND, AND
ADMINISTRATIVE AGENT, ISSUING BANK, TERM LOAN B AGENT OR ANY OTHER SECURED
PARTIES, ON THE OTHER HAND, PERTAINING TO THIS GUARANTY OR TO ANY MATTER ARISING
OUT OF OR RELATED TO THIS GUARANTY. EACH GUARANTOR EXPRESSLY SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY
SUCH COURT, AND EACH GUARANTOR HEREBY WAIVES ANY OBJECTION WHICH SUCH GUARANTOR
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 GUARANTOR 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 GUARANTOR AT THE ADDRESS
SET FORTH IN THIS GUARANTY 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 GUARANTY SHALL BE DEEMED
OR OPERATE TO AFFECT THE RIGHT OF ADMINISTRATIVE AGENT OR ANY SECURED PARTY TO
SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW, OR TO PRECLUDE THE
ENFORCEMENT BY ADMINISTRATIVE AGENT OR ANY SECURED PARTY OF ANY JUDGMENT OR
ORDER OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS GUARANTY TO
ENFORCE SAME IN ANY OTHER APPROPRIATE FORUM OR JURISDICTION.
17. WAIVERS BY GUARANTORS. EACH GUARANTOR WAIVES (I) THE RIGHT TO TRIAL
BY JURY (WHICH ADMINISTRATIVE AGENT AND EACH SECURED PARTY HEREBY ALSO WAIVES)
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IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR
RELATED TO ANY OF THE LOAN DOCUMENTS, THE OBLIGATIONS OR THE 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 ADMINISTRATIVE AGENT OR ANY
SECURED PARTY ON WHICH SUCH GUARANTOR MAY IN ANY WAY BE LIABLE AND HEREBY
RATIFIES AND CONFIRMS WHATEVER ADMINISTRATIVE AGENT OR ANY SECURED PARTY MAY DO
IN THIS REGARD; (III) NOTICE PRIOR TO ADMINISTRATIVE AGENT'S TAKING POSSESSION
OR CONTROL OF THE COLLATERAL OR ANY BOND OR SECURITY WHICH MIGHT BE REQUIRED BY
ANY COURT PRIOR TO ALLOWING ADMINISTRATIVE AGENT TO EXERCISE ANY OF
ADMINISTRATIVE 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 GUARANTOR ACKNOWLEDGES THAT THE FOREGOING WAIVERS ARE A
MATERIAL INDUCEMENT TO ADMINISTRATIVE AGENT'S ENTERING INTO THIS GUARANTY, ON
BEHALF OF ITSELF AND THE OTHER SECURED PARTIES, AND THAT ADMINISTRATIVE AGENT
AND EACH SECURED PARTY IS RELYING UPON THE FOREGOING WAIVERS IN ITS FUTURE
DEALINGS WITH EACH GUARANTOR. EACH GUARANTOR 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.
18. OBLIGATIONS JOINT AND SEVERAL. All obligations and liabilities of
the Guarantors hereunder are joint and several.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be
duly executed and delivered as of the date first above written.
GUARANTORS:
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
-------------------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------------------
Title: Vice President and Assistant Secretary
----------------------------------------------
FLEET CAPITAL CORPORATION,
as Administrative Agent
By: /s/ Xxxxx Xxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxx
-----------------------------------------------
Title: Senior Vice President
-----------------------------------------------
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