EXECUTION COPY
AMENDMENT NO. 4 UNDER THE CREDIT AGREEMENT
Amendment No. 4 dated as February 13, 2002 (this "AMENDMENT") to the
Amended and Restated Credit Agreement dated as of March 24, 1999 (as amended and
modified by Waiver No. 1 dated as of December 30, 1999, Amendment and Waiver No.
2 dated as of January 24, 2000 and Amendment and Waiver No. 3 Under the Loan
Documents dated as of November 7, 2000, the "CREDIT AGREEMENT") among United
Industries Corporation, a Delaware corporation (the "BORROWER"), certain banks,
financial institutions and other institutional lenders party thereto, Bank of
America, N.A. (formerly known as NationsBank, N.A.) ("BANK OF AMERICA"), as
Swing Line Bank and Initial Issuing Bank thereunder, Banc of America Securities
LLC (formerly known as NationsBanc Montgomery Securities LLC) ("BAS") and Morgan
Stanley Senior Funding, Inc. ("MSSF"), as Co-Arrangers therefor, Canadian
Imperial Bank of Commerce, as Documentation Agent therefor, MSSF, as Syndication
Agent thereunder, BAS, as Lead Arranger and Book Manager therefor, and Bank of
America, as Administrative Agent (the "ADMINISTRATIVE AGENT") for the Lender
Parties thereunder. Capitalized terms not otherwise defined in this Amendment
shall have the same meanings as specified therefore in the Credit Agreement.
PRELIMINARY STATEMENTS
(1) The Borrower has requested that the Lender Parties agree to amend
and otherwise modify the Credit Agreement in order to (a) permit a Term B
Borrowing to be made on the Amendment No. 4 Effective Date (as hereinafter
defined) in the amount of $30,000,000 (the "ADDITIONAL TERM B ADVANCE"), the
proceeds of which will be used to repay Revolving Credit Advances, and (b)
increase the aggregate amount of Capital Expenditures that the Borrower will be
permitted to make to $7,500,000 per Fiscal Year.
(2) The Lender Parties have indicated their willingness to agree to so
amend and otherwise modify the Credit Agreement on the terms and subject to the
satisfaction of the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein and in the Loan Documents, the parties
hereto hereby agree as follows:
SECTION 1. AMENDMENTS AND MODIFICATIONS OF CERTAIN PROVISIONS OF THE
CREDIT AGREEMENT. (a) Upon the occurrence of the Amendment No. 4 Effective Date,
the aggregate Term B Commitments of the Lender Parties shall be increased by
$30,000,000, and the Term B Commitment of Bank of America shall be increased by
$30,000,000. The Term B Commitments of the Lender Parties (other than Bank of
America) will remain unchanged as a result of this Amendment.
(b) Upon the occurrence of the Amendment No. 4 Effective Date, Section
1.01 of the Credit Agreement is hereby amended to restate the following
definitions set forth therein in their entirety to read as follows:
"LEVERAGE RATIO" means, at any date of determination, the
ratio of (a) (i) all Funded Indebtedness of the Borrower and its
Subsidiaries (other than the aggregate principal amount of all
Revolving Credit Advances, Swing Line Advances and Letter of Credit
Advances outstanding on such date) PLUS (ii) the average daily
aggregate principal amount of all Revolving Credit Advances, Swing Line
Advances and Letter of Credit Advances outstanding during the most
recently completed Measurement Period prior to such date PLUS (iii) to
the extent not otherwise included in subclause (a)(i) or (a)(ii) of
this definition, all Indebtedness of the Borrower and its
Subsidiaries outstanding on such date that would (or would be required
to) appear on the Consolidated balance sheet of the Borrower and its
Subsidiaries (other than any such outstanding Indebtedness evidenced by
the Permitted Preferred Stock) LESS (iv) the average daily aggregate
amount of all cash on deposit in the investment accounts and deposit
accounts of the Borrower and its Subsidiaries during the most recently
completed Measurement Period prior to such date LESS (v)* for any date
of determination during the period from the Amendment No. 4 Effective
Date (as defined in Amendment No. 4 Under the Credit Agreement dated as
of February 13, 2002) to the first anniversary of the Amendment No. 4
Effective Date, the product of (A) $30,000,000 and (B) a fraction, the
numerator of which is 365 MINUS the number of days that have elapsed
from the Amendment No 4 Effective Date to such date of determination,
and the denominator of which is 365, to (b) Pro Forma Consolidated
EBITDA of the Borrower and its Subsidiaries for the most recently
completed Measurement Period prior to such date.
"SENIOR LEVERAGE RATIO" means, at any date of determination,
the ratio of (a)(i) all Funded Indebtedness of the Borrower and its
Subsidiaries (other than (x) the aggregate principal amount of all
Revolving Credit Advances, Swing Line Advances and Letter of Credit
Advances outstanding on such date and (y) Indebtedness under or in
connection with the Senior Subordinated Notes) PLUS (ii) the average
daily aggregate principal amount of all Revolving Credit Advances,
Swing Line Advances and Letter of Credit Advances outstanding during
the most recently completed Measurement Period prior to such date PLUS
(iii) to the extent not otherwise included in subclause (a)(i) or
(a)(ii) of this definition, all Indebtedness of the Borrower and its
Subsidiaries outstanding on such date that would (or would be required
to) appear on the Consolidated balance sheet of the Borrower and its
Subsidiaries (other than any such outstanding Indebtedness evidenced by
the Permitted Preferred Stock and the Senior Subordinated Notes) LESS
(iv) the average daily aggregate amount of all cash on deposit in the
investment accounts and deposit accounts of the Borrower and its
Subsidiaries during the most recently completed Measurement Period
prior to such date LESS (v)* for any date of determination during the
period from the Amendment No. 4 Effective Date (as defined in Amendment
No. 4 Under the Credit Agreement dated as of February 13, 2002) to the
first anniversary of the Amendment No. 4 Effective Date, the product of
(A) $30,000,000 and (B) a fraction, the numerator of which is 365 MINUS
the number of days that have elapsed from the Amendment No 4 Effective
Date to such date of determination, and the denominator of which is
365, to (b) Pro Forma Consolidated EBITDA of the Borrower and its
Subsidiaries for the most recently completed Measurement Period prior
to such date; it being understood that the $15,000,000 of Net Cash
Proceeds received by the Borrower pursuant to the issuance and sale of
UIC Common Stock and/or Permitted Preferred Stock to the Equity
Investors on or prior to the Amendment No. 3 Effective Date shall be
used to prepay the Term Facilities pursuant to Section 2.06(a) and
2.06(b) and that as a result thereof the Senior Leverage Ratio shall be
reduced as of the Amendment No. 3 Effective Date.
(c) Upon the occurrence of the Amendment No. 4 Effective Date, Section
2.04(b) of the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
"(b) TERM B ADVANCES. The Borrower shall repay to the
Administrative Agent for the ratable account of the Term B Lenders the
aggregate principal amount of all Term B Advances
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* For illustrative purposes only, assuming that February 8, 2002 will be
the Amendment No. 4 Effective Date, the amounts calculated pursuant to
clause (a)(v) of the definition of Leverage Ratio and clause (a)(v) of
the definition of Senior Leverage Ratio as of March 30, 2002, June 29,
2002, September 29, 2002 and December 30, 2002 will be $25,890,411,
$18,410,959, $10,849,315 and $3,287,671, respectively.
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outstanding on the following dates in the respective amounts set forth
opposite such dates (which amounts shall be reduced as a result of the
application of prepayments in accordance with the order of priority set
forth in Section 2.05):
DATE AMOUNT
September 30, 2002 $422,513.44
December 31, 2002 422,513.44
March 31, 2003 422,513.44
June 30, 2003 422,513.44
September 30, 2003 422,513.44
December 31, 2003 422,513.44
March 31, 2004 422,513.44
June 30, 2004 422,513.44
September 30, 2004 422,513.44
December 31, 2004 422,513.44
March 31, 2005 422,513.44
June 30, 2005 39,960,013.75
September 30, 2005 39,960,013.75
December 31, 2005 39,960,013.75
January 20, 2006 39,960,013.75
PROVIDED, HOWEVER, that the final principal repayment installment of
the Term B Advances shall be repaid on the Termination Date for the
Term B Facility and in any event shall be in an amount equal to the
aggregate principal amount of all Term B Advances outstanding on such
date."
(d) Upon the occurrence of the Amendment No. 4 Effective Date, Section
5.02(g) of the Credit Agreement is hereby amended by replacing the dollar amount
"$5,000,000" with the dollar amount "$7,500,000" in each place in which such
dollar amount appears in such Section 5.02(g).
SECTION 2. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT.
This Amendment (other than Section 1) shall become effective as of the first
date on which the Administrative Agent shall have received counterparts of this
Amendment executed by the Borrower and the Required Lenders or, as to any of the
Lender Parties, advice satisfactory to the Administrative Agent that such Lender
Party has executed this Amendment. Section 1 of this Amendment shall become
effective as of the first date (the "AMENDMENT NO. 4 EFFECTIVE DATE") on which,
and only if, each of the following conditions precedent shall have been
satisfied:
(a) The Administrative Agent shall have received the Consent
attached hereto executed by the Borrower and UIC Holdings, L.L.C.
(b) All of the consents, approvals and authorizations of, and
notices and filings to or with, and other actions by, any governmental
or regulatory authority or any other Person necessary in connection
with this Amendment or any of the other transactions contemplated
hereby shall have been obtained (without the imposition of any
conditions that are not reasonably acceptable to the Required Lenders)
and shall remain in full force and effect; and no law, rule or
regulation shall be applicable in the reasonable judgment of the
Required Lenders that restrains,
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prevents or imposes materially adverse conditions upon this Amendment
or any of the other transactions contemplated hereby.
(c) The representations and warranties contained in each of the
Loan Documents shall be true and correct in all material respects on
and as of the Amendment No. 4 Effective Date, after giving effect to
this Amendment, as though made on and as of such date (except (i) for
any such representation and warranty that, by its terms, refers to a
specific date other than the Amendment No. 4 Effective Date, in which
case as of such specific date, and (ii) that the financial statements
of the Borrower referred to in Sections 4.01(f) and 4.01(g) of the
Credit Agreement shall be deemed to refer to the financial statements
of the Borrower comprising part of the Required Financial Information
most recently delivered to the Administrative Agent and the Lender
Parties pursuant to Sections 5.03(c) and 5.03(d), respectively, on or
prior to the Amendment No. 4 Effective Date).
(d) No event shall have occurred and be continuing or shall result
from the effectiveness of this Amendment that constitutes a Default.
(e) All of the accrued fees and expenses of the Administrative
Agent, the Lead Arranger and Book Manager and the Lender Parties
(including the accrued fees and expenses of counsel for the Agents)
that are then due and payable shall have been paid in full.
(f) Concurrently with the making of the Term B Advance to be made
on the Amendment No. 4 Effective Date, the Borrower shall have used the
proceeds of such Term B Advance to repay Revolving Credit Advances
pursuant to Section 2.06(a) of the Credit Agreement.
(g) The Administrative Agent shall have received on or before the
Amendment No. 4 Effective Date the following, each dated such date
(unless otherwise specified), in form and substance satisfactory to the
Required Lenders (unless otherwise specified) and in sufficient copies
for each Lender Party:
(i) Certified copies of the resolutions of the Board
of Directors of the Borrower approving this Amendment, and of
all documents evidencing other necessary corporate action and
governmental and other third party approvals and consents, if
any, with respect to this Amendment.
(ii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Amendment and the other documents to be delivered
hereunder.
(iii) Such financial, business and other information
regarding the Borrower and its property, assets and businesses
as the Administrative Agent or the Lender Parties shall have
requested.
(iv) Such other opinions, certificates, documents and
information as the Administrative Agent or the Required
Lenders may reasonably request.
The effectiveness of this Amendment is further conditioned upon the accuracy of
all of the factual matters described herein. This Amendment is subject to the
provisions of Section 8.01 of the Credit Agreement, except that no amendment or
waiver of any provision of this Section 2, nor consent to any departure by
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the Parent Guarantor or the Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Required Lenders.
SECTION 3. AGREEMENT OF THE LENDERS. (a) The Lender Parties hereby
agree that, notwithstanding anything to the contrary set forth in the Credit
Agreement, (i) on the Amendment No. 4 Effective Date, Bank of America may make
an additional Term B Advance to the Borrower in a principal amount of
$30,000,000, and (ii) such Term B Advance will be made solely be Bank of America
and shall not be made pro rata by the Term B Lenders. Upon the making of such
Term B Advance, such Term B Advance will be deemed to be a Term B Advance for
all purposes under the Credit Agreement and the other Loan Documents.
(b) Solely to permit the Borrower to prepay Revolving Credit Advances
on the Amendment No. 4 Effective Date, the Lender Parties hereby waive the three
Business Day notice requirement set forth in Section 2.06(a) of the Credit
Agreement.
SECTION 4. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) On and
after the Amendment No. 4 Effective Date, each reference in the Credit Agreement
to "THIS AGREEMENT", "HEREUNDER", "HEREOF" or words of like import referring to
the Credit Agreement, and each reference in the Notes and each of the other Loan
Documents to "THE CREDIT AGREEMENT", "THEREUNDER", "THEREOF" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement, as amended and otherwise modified by this Amendment.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as amended and otherwise modified by the amendments specifically
provided above in Sections 1 and 3, are and shall continue to be in full force
and effect and are hereby in all respects ratified and confirmed. The execution,
delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of any of the
Secured Parties or the Administrative Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
SECTION 5. COSTS AND EXPENSES. The Borrower hereby agrees to pay, upon
demand, all of the reasonable costs and expenses of the Administrative Agent and
the Lead Arranger and Book Manager (including, without limitation, the
reasonable fees and expenses of counsel for the Agents) in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Amendment and all of the agreements, instruments and other documents
delivered or to be delivered in connection herewith, all in accordance with the
terms of Section 8.04 of the Credit Agreement.
SECTION 6. EXECUTION IN COUNTERPARTS. This Amendment 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 one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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SECTION 7. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers, thereunto duly authorized, as of the date
first written above.
THE BORROWER
UNITED INDUSTRIES CORPORATION
By
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Name:
Title:
THE AGENTS
BANK OF AMERICA, N.A.,
as Administrative Agent
By
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Name:
Title:
BANC OF AMERICA SECURITIES LLC,
as Lead Arranger and Book Manager
and a Co-Arranger
By
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Name:
Title:
MORGAN STANLEY SENIOR FUNDING, INC.
as Syndication Agent and a Co-Arranger
By
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Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE,
as Documentation Agent
By
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Name:
Title:
THE LENDER PARTIES
BANK OF AMERICA, N.A.,
as a Lender and the Initial Issuing Bank
By
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Name:
Title:
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[Type or print name of Lender]
By
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Name:
Title:
CONSENT
Reference is made to (a) Amendment No. 4 to the Credit Agreement dated
as of February 13, 2002 (the "AMENDMENT"; capitalized terms not otherwise
defined herein being used herein as defined in the Amendment and in the Credit
Agreement referred to below), (b) the Amended and Restated Credit Agreement
dated as of March 24, 1999 (as amended and otherwise modified by Waiver No. 1
dated as of December 30, 1999, Amendment and Waiver No. 2 dated as of January
24, 2000 and Amendment and Waiver No. 3 Under the Loan Documents dated as of
November 7, 2000, the "CREDIT AGREEMENT") among United Industries Corporation, a
Delaware corporation (the "BORROWER"), certain banks, financial institutions and
other institutional lenders party thereto, Bank of America, N.A. (formerly known
as NationsBank, N.A.) ("BANK OF AMERICA"), as Swing Line Bank and Initial
Issuing Bank thereunder, Banc of America Securities LLC (formerly known as
NationsBanc Montgomery Securities LLC) ("BAS") and Morgan Stanley Senior
Funding, Inc. ("MSSF"), as Co-Arrangers therefore, Canadian Imperial Bank of
Commerce, as Documentation Agent therefore, MSSF, as Syndication Agent
thereunder, BAS, as Lead Arranger and Book Manager therefore, and Bank of
America, as Administrative Agent (the "ADMINISTRATIVE AGENT") for the Lender
Parties thereunder, and (c) the other Loan Documents referred to therein.
The Borrower, in its capacity as (a) a Grantor under the Security
Agreement and (b) a Grantor under each IP Security Agreement--Short Form, and
UIC Holdings, L.L.C., a Delaware limited liability company, in its capacity as a
party to the Holdings LLC Agreement, each hereby consents to the execution,
delivery and the performance of the Amendment and agrees that:
(A) each of the Security Agreement, the Copyright Security
Agreement--Short Form, the Trademark Security Agreement--Short Form,
the Patent Security Agreement--Short Form and the Holdings LLC
Agreement to which it is a party is, and shall continue to be, in full
force and effect and is hereby in all respects ratified and confirmed
on the Amendment No. 4 Effective Date, except that, on and after the
Amendment No. 4 Effective Date, each reference to "THE CREDIT
AGREEMENT", "THEREUNDER", "THEREOF", "THEREIN" or words of like import
referring to the Credit Agreement shall mean and be a reference to the
Credit Agreement, as amended and otherwise modified by the Amendment;
and
(B) as of the Amendment No. 4 Effective Date, the Security
Agreement the Copyright Security Agreement--Short Form, the Trademark
Security Agreement--Short Form and the Patent Security Agreement--Short
Form to which it is a party and all of the Collateral of such Person
described therein do, and shall continue to, secure the payment of all
of the Secured Obligations.
This Consent shall be governed by, and construed in accordance with,
the laws of the State of New York.
Delivery of an executed counterpart of a signature page of this Consent
by telecopier shall be effective as the delivery of a manually executed
counterpart of this Consent.
UNITED INDUSTRIES CORPORATION
By
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Name:
Title:
UIC HOLDINGS, L.L.C.
By
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Thomas H. Lee Equity Fund IV, L.P.,
as Manager
By Thomas H. Lee Company,
its general partner
By
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Name:
Title: