Exhibit 99.2
EXECUTION COPY
AMENDMENT NO. 5 TO THE LOAN DOCUMENTS
Amendment No. 5 dated as May 8, 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, Amendment and Waiver No. 3 Under the Loan
Documents dated as of November 7, 2000 and Amendment No. 4 Under the Credit
Agreement dated as of February 13, 2002, 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 entered into an Agreement and Plan of Merger dated
as of May 3, 2002 (the "MERGER AGREEMENT") with CD Acquisition Corp., a Missouri
corporation and a wholly owned Subsidiary of the Borrower ("MERGER SUB"),
Schultz Company, a Missouri corporation ("SCHULTZ"), and Steven D. Schultz and
Daniel J. Schultz (collectively, the "SELLERS") pursuant to which Merger Sub
will be merged with and into Schultz (the "MERGER"). In connection with the
Merger, the Sellers shall receive cash in an amount not to exceed $32,500,000
and 1,200,000 shares of UIC Common Stock. After consummation of the Merger,
Schultz will be the surviving entity and will be a wholly owned Subsidiary of
the Borrower.
(2) The Merger will be financed in part by (A) the issuance and sale by
the Borrower of UIC Common Stock and/or Permitted Preferred Stock to the Equity
Investors for Net Cash Proceeds equal to or greater than $16,700,000 (the
"EQUITY CONTRIBUTION"), and (B) the issuance of at least 1,200,000 shares of UIC
Common Stock to the Sellers (the "SELLER ROLLOVER EQUITY").
(3) The Borrower has requested that the Lender Parties agree to amend
and otherwise modify the Credit Agreement and the other Loan Documents in order
to (A) permit the Borrower to consummate the Merger, (B) increase the Revolving
Credit Commitments in an amount up to $15,000,000, and (C) permit a Term B
Borrowing to be made on the Amendment No. 5 Effective Date (as hereinafter
defined) in the amount of $35,000,000 (the "ADDITIONAL TERM B ADVANCE"), the
proceeds of which will be used, together with the Seller Rollover Equity and the
proceeds from the Equity Contribution, to finance the Merger.
(4) The Lender Parties have indicated their willingness to agree to so
amend and otherwise modify the Credit Agreement and the other Loan Documents 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:
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SECTION 1. AMENDMENTS AND MODIFICATIONS TO CERTAIN PROVISIONS OF THE
CREDIT AGREEMENT. (a) Upon the occurrence of the Amendment No. 5 Effective Date,
the aggregate Term B Commitments of the Lender Parties shall be increased by
$35,000,000, and the Term B Commitment of Bank of America shall be increased by
$35,000,000. 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. 5 Effective Date, the
aggregate Revolving Credit Commitments of the Lender Parties shall be increased
by $10,000,000, and the Revolving Credit Commitment of Bank of America shall be
increased by $10,000,000. The Revolving Credit Commitments of the Lender Parties
(other than Bank of America) will remain unchanged as a result of this
Amendment.
(c) Upon the later of (i) the Amendment No. 5 Effective Date and (ii)
the date on which BAS receives commitments from one or more Lenders (each such
Lender being a "COMMITTING LENDER") to increase their Revolving Credit
Commitments in an aggregate amount of up to $5,000,000 (the aggregate amount of
such increase being, the "SUPPLEMENTAL REVOLVING CREDIT COMMITMENT"), the
aggregate Revolving Credit Commitments of the Lender Parties shall be increased
by the amount of the Supplemental Revolving Credit Commitment, and the Revolving
Credit Commitment of each such Committing Lender shall be increased by an amount
to be determined by BAS, such amount not to exceed the amount committed to by
such Committing Lender. Upon receiving all such commitments, BAS shall notify
the Borrower and the Lender Parties of the amount of the Supplemental Revolving
Credit Commitment and the apportionment of the Supplemental Revolving Credit
Commitment among such Committing Lenders.
(d) The Credit Agreement is, upon the occurrence of the Amendment No. 5
Effective Date, hereby amended as follows:
(i) Section 1.01 of the Credit Agreement is hereby amended to
add in the appropriate alphabetic order the following defined terms:
"SCHULTZ" means Schultz Company, a Missouri
corporation.
"SCHULTZ MERGER AGREEMENT" means the Agreement and
Plan of Merger dated as of May 3, 2002 among the Borrower, CD
Acquisition Corp., a Missouri corporation and a wholly owned
Subsidiary of the Borrower, Schultz, Steven D. Schultz and
Daniel J. Schultz, as such agreement may be amended from time
to time in accordance with its terms.
(ii) 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
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
December 31, 2002 $512,648.16
March 31, 2003 $512,648.16
June 30, 2003 $512,648.16
September 30, 2003 $512,648.16
December 31, 2003 $512,648.16
March 31, 2004 $512,648.16
June 30, 2004 $512,648.16
September 30, 2004 $512,648.16
December 31, 2004 $512,648.16
March 31, 2005 $512,648.16
June 30, 2005 $48,484,676.94
September 30, 2005 $48,484,676.94
December 31, 2005 $48,484,676.94
January 20, 2006 $48,484,676.94
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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."
(iii) The first sentence of Section 2.15 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
"The proceeds of the Advances shall be available, and the
Borrower hereby agrees that it shall use such proceeds, solely
(a) to finance in part the Recapitalization, (b) to pay
certain fees and expenses incurred in connection with the
consummation of the Transaction, (c) to finance a portion not
to exceed $35,000,000 of the acquisition of Schultz pursuant
to the Schultz Merger Agreement, (d) to pay certain fees and
expenses incurred in connection with the acquisition of
Schultz, and (e) to provide working capital to, and for other
general corporate purposes of, the Borrower and its
Subsidiaries not otherwise prohibited under the terms of the
Loan Documents.
(iv) Section 5.02(g) of the Credit Agreement is hereby amended
by deleting therefrom the figure "$7,500,000" and substituting therefor
the figure "$8,500,000" in each place where such figure appears.
(v) Schedules 3.02(b), 4.01(b), 4.01(y), 4.01(dd) and 4.01(ee)
to the Credit Agreement are hereby deleted in their entirety and
Schedules .02(b), 4.01(b), 4.01(y), 4.01(dd) and 4.01(ee),
respectively, attached hereto as Annexes A, B, C, D and E,
respectively, are substituted therefor.
(vi) Exhibit C to the Credit Agreement is hereby deleted in
its entirety and Exhibit C attached hereto as Annex F is substituted
therefor.
SECTION 2. AMENDMENTS TO THE SECURITY AGREEMENT. Upon the occurrence of
the Amendment No. 5 Effective Date, Schedules III, IV and V to the Security
Agreement are hereby deleted in their entirety and Schedules III, IV and V,
respectively, attached hereto as Annexes G, and I, respectively, are substituted
therefor.
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SECTION 3. WAIVER OF CERTAIN PROVISIONS OF THE CREDIT AGREEMENT. (a)
Upon the occurrence of the Amendment No. 5 Effective Date, the Lender Parties
hereby agree to waive the requirements of Section 5.02(e)(ix)(D) of the Credit
Agreement, solely with respect to the Merger, it being understood that
notwithstanding the foregoing waiver, the total cash and noncash consideration
paid by or on behalf of the Borrower and its Subsidiaries in connection with the
Merger shall not be included in determining compliance with Section
5.02(e)(ix)(D) of the Credit Agreement for any purchase or acquisition proposed
to be made by the Borrower or any of its Subsidiaries after the Amendment No. 5
Effective Date.
(b) Upon the occurrence of the Amendment No. 5 Effective Date,
the Lender Parties hereby agree to waive the requirements of Section
5.02(b) of the Credit Agreement, solely to permit Schultz to issue a
note in an amount not to exceed $680,000 and in substantially the form
attached hereto as Annex __.
SECTION 4. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT.
This Amendment (other than Sections 1, 2 and 3) 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. Sections 1, 2 and 3 of this Amendment
shall become effective as of the first date (the "AMENDMENT NO. 5 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) The Administrative Agent shall have received certified
copies of the Merger Agreement and each of the other documents and
agreements related to the Merger, which, in each case shall be in form
and substance reasonably satisfactory to the Administrative Agent.
Articles of Merger duly executed by Schultz and Merger Sub shall have
been filed with the Secretary of State of the State of Missouri and the
Administrative Agent shall have received a verbal confirmation that
such Articles of Merger have been accepted by the Secretary of State of
the State of Missouri. The Merger shall have been consummated
substantially in accordance with the terms and conditions of the Merger
Agreement, without any waiver of or amendment to any of the provisions
set forth therein not consented to by the Required Lenders and in
compliance with all applicable Requirements of Law, except to the
extent that any such waiver, amendment or non-compliance could not
reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received certified
copies of all documents evidencing the Equity Contribution and the
Seller Equity Rollover, which, in each case shall be in form and
substance reasonably satisfactory to the Administrative Agent. The
Equity Contribution and the Seller Rollover Equity shall have been
consummated substantially in accordance with the terms and conditions
of such documents, without any waiver of or amendment to any of the
provisions set forth therein not consented to by the Required Lenders
and in compliance with all applicable Requirements of Law (except to
the extent that any such waiver, amendment or non-compliance could not
reasonably be expected to have a Material Adverse Effect), and the Net
Cash Proceeds from the Equity Contribution shall have been used to
finance in part the Merger.
(d) 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 any aspect of the Merger, this Amendment or any of the other
transactions contemplated hereby shall have been obtained (without the
imposition of any
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conditions that are not reasonably acceptable to the Required Lenders)
and shall remain in full force and effect, except for those consents,
approvals, authorizations, notices, filings and other actions the
failure of which to receive or to give could not reasonably be expected
to have a Material Adverse Effect; all applicable waiting periods shall
have expired without any action being taken by any competent authority;
and no law, rule or regulation shall be applicable in the reasonable
judgment of the Required Lenders that restrains, prevents or imposes
materially adverse conditions upon any aspect of the Merger, this
Amendment or any of the other transactions contemplated hereby.
(e) 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. 5 Effective Date, after giving effect to
the Merger and 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. 5
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) of the Credit Agreement, respectively, on or prior
to the Amendment No. 5 Effective Date).
(f) No event shall have occurred and be continuing or shall
result from the consummation of the Merger or the effectiveness of this
Amendment that constitutes a Default.
(g) 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.
(h) Concurrently with the making of the Additional Term B
Advance, the Borrower shall have used the proceeds of such Additional
Term B Advance to finance in part the Merger.
(i) The Borrower shall have paid to the Administrative Agent,
for the ratable account of each of the Appropriate Lenders that shall
have executed and delivered a counterpart of this Amendment to the
Administrative Agent prior to 5:00 P.M. (New York City time) on May 9,
2002, an amendment fee of 0.125% on the aggregate Commitments of such
Appropriate Lender.
(j) The Administrative Agent shall have received on or before
the Amendment No. 5 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 and, with respect to the Merger,
the Merger Sub, approving the Merger, this Amendment and the
other transactions contemplated hereby, and of all documents
evidencing other necessary corporate action and governmental
and other third party approvals and consents, if any, with
respect to the Merger, this Amendment and the other
transactions contemplated hereby.
(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.
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(iii) A certificate of the Borrower, signed on behalf
of the Borrower by its President or a Vice President and its
Secretary or any Assistant Secretary, dated the Amendment No.
5 Effective Date (the statements made in which certificate
shall be true on and as of the Amendment No. 5 Effective
Date), certifying as to (A) the absence of any amendments to
the charter of the Borrower since the date of the Secretary of
State's certificate referred to in Section 3.01(k)(iv) of the
Credit Agreement, or any steps taken by the board of directors
or the shareholders of the Borrower to effect or authorize any
further amendment, supplement or other modification thereto;
(B) the accuracy and completeness of the bylaws of the
Borrower as in effect on the date on which the resolutions of
the board of directors of the Borrower referred to in clause
(ii) of this Section 4(j) were adopted and on the Amendment
No. 5 Effective Date (a copy of which, if different from the
bylaws of the Borrower delivered to the Lender Parties on the
date of the Initial Extension of Credit, shall be attached to
such certificate); (C) the due incorporation and good standing
of the Borrower as a corporation organized under the laws of
the jurisdiction of its incorporation, and the absence of any
proceeding (either pending or contemplated) for the
dissolution, liquidation or other termination of the existence
of the Borrower or any of its Subsidiaries; (D) the accuracy
in all material respects of the representations and warranties
made by the Borrower in the Loan Documents to which it is a
party as though made on and as of the Amendment No. 5
Effective Date, before and after giving effect to the Merger
and 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. 5 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) of the Credit Agreement, respectively, on or prior to
the Amendment No. 5 Effective Date); and (E) the absence of
any event occurring and continuing, or resulting from the
consummation of the Merger or the effectiveness of this
Amendment, that would constitute a Default.
(iv) The certificate referred to in Section
5.02(e)(ix)(F) of the Credit Agreement with respect to the
Merger.
(v) A Notice of Borrowing for the Additional Term B
Advance.
(vi) A Security Agreement Supplement duly executed by
Schultz and each of its Subsidiaries, together with:
(A) certificates representing all Equity
Interests in Schultz and each of its Subsidiaries,
accompanied by undated stock powers or other
appropriate powers, duly executed in blank, and
instruments evidencing indebtedness owed to Schultz
or any of its Subsidiaries, duly endorsed in blank;
(B) proper termination statements (Form
UCC-3 or a comparable form) or the equivalent thereof
under the Uniform Commercial Code (or any similar
Requirements of Law) of all jurisdictions that may
have been necessary or that the Administrative Agent
may have deemed reasonably desirable in order to
terminate or amend existing liens on and security
interests in the Collateral of Schultz and each of
its Subsidiaries, in each case completed in a manner
satisfactory to the Administrative Agent and duly
executed by the appropriate secured party;
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(C) proper financing statements (Form UCC-1
or a comparable form) or the equivalent thereof under
the Uniform Commercial Code (or any similar
Requirements of Law) of all jurisdictions that may
have been necessary or the Administrative Agent may
have deemed reasonably desirable in order to perfect
and protect the liens and security interests created
or purported to be created under such Security
Agreement Supplement, covering the Collateral of
Schultz and each of its Subsidiaries, in each case
completed in a manner reasonably satisfactory to the
Administrative Agent;
(D) completed requests for information,
dated reasonably near the Amendment No. 5 Effective
Date, listing [the financing statements referred to
in subclause (vi)(C) of this Section 4(j) and] all
[other] effective financing statements filed in the
jurisdictions referred to in subclause (vi)(C) of
this Section 4(j) that named Schultz or any of its
Subsidiaries as debtor, together with copies of such
[other] financing statements;
(E) IP Security Agreements--Short Form,
covering all of the Copyrights, Patents and
Trademarks, if any, of Schultz and each of its
Subsidiaries, in each case completed in a manner
satisfactory to the Administrative Agent and duly
executed by Schultz and each of its Subsidiaries;
(F) copies of the Merger Agreement, together
with (1) a consent, in form and substance reasonably
satisfactory to the Administrative Agent, to the
assignment of the Merger Agreement and the rights and
interest of the Borrower and Merger Sub thereunder to
the Administrative Agent pursuant to such Security
Agreement Supplement, duly executed by each party to
the Merger Agreement other than the Borrower and
Merger Sub, and (2) notice from the Borrower and
Merger Sub to each of the other Persons party to the
Merger Agreement other than the Borrower and Merger
Sub, in form and substance reasonably satisfactory to
the Administrative Agent, of the assignment of the
Merger Agreement and the rights and interest of the
Borrower and Merger Sub thereunder to the
Administrative Agent pursuant to such Security
Agreement Supplement, duly executed by the Borrower
and Merger Sub; and
(G) evidence that all of the other actions
(including, without limitation, the completion of all
of the other recordings and filings of or with
respect to such Security Agreement Supplement) that
may have been necessary or that the Administrative
Agent may have deemed reasonably desirable in order
to perfect and protect the liens and security
interests created under such Security Agreement
Supplement had been taken or would be taken in
accordance with the terms of the Loan Documents.
(vii) A favorable opinion of Kirkland & Ellis,
counsel for the Borrower and Merger Sub, in form and substance
reasonably satisfactory to the Required Lenders.
(viii) A favorable opinion of Thompson Coburn LLP,
counsel for the Borrower and Merger Sub, in form and substance
reasonably satisfactory to the Required Lenders.
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(ix) A Subsidiaries Guarantee, duly executed by
Schultz and each of its Subsidiaries.
(x) Evidence of insurance naming the Administrative
Agent as additional insured and loss payee with such
responsible and reputable insurance companies or associations,
and in such amounts and covering such risks, as is
satisfactory to the Administrative Agent.
(xi) Such financial, business and other information
regarding the Borrower, and Schultz and their respective
property, assets and businesses as the Administrative Agent or
the Lender Parties shall have requested, including, without
limitation, information as to possible contingent liabilities,
tax matters, environmental matters, obligations under Plans,
Multiemployer Plans and Welfare Plans, collective bargaining
agreements and other arrangements with employees.
(xii) 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 4, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders.
SECTION 5. AGREEMENT OF THE LENDERS. The Lender Parties hereby agree
that, notwithstanding anything to the contrary set forth in the Credit
Agreement, (i) on the Amendment No. 5 Effective Date, Bank of America may make
the Additional Term B Advance to the Borrower in a principal amount of
$35,000,000, and (ii) such Additional 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 Additional Term B Advance, such Additional Term B Advance will be deemed
to be a Term B Advance for all purposes under the Credit Agreement and the other
Loan Documents.
SECTION 6. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) On and
after the Amendment No. 5 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) On and after the Amendment No. 5 Effective Date, each reference in
the Security Agreement to "THIS AGREEMENT", "HEREUNDER", "HEREOF" or words of
like import referring to the Security Agreement, and each reference in the
Credit Agreement and each of the other Loan Documents to "THE SECURITY
AGREEMENT", "THEREUNDER", "THEREOF" or words of like import referring to the
Security Agreement, shall mean and be a reference to the Security Agreement, as
amended and otherwise modified by this Amendment.
(c) 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, 2 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
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Administrative Agent under any of the Loan Documents, nor constitute a waiver of
any provision of any of the Loan Documents.
SECTION 7. 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 8. 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 9. 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
------------------------------------------
Name:
Title:
THE AGENTS
BANK OF AMERICA, N.A.,
as Administrative Agent
By
------------------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC,
as Lead Arranger and Book Manager
and a Co-Arranger
By
------------------------------------------
Name:
Title:
MORGAN STANLEY SENIOR FUNDING, INC.
as Syndication Agent and a Co-Arranger
By
------------------------------------------
Name:
Title:
11
CANADIAN IMPERIAL BANK OF COMMERCE,
as Documentation Agent
By
------------------------------------------
Name:
Title:
12
THE LENDER PARTIES
BANK OF AMERICA, N.A.,
as a Lender and the Initial Issuing Bank
By
------------------------------------------
Name:
Title:
13
[Type or print name of Lender]
By
-------------------------------------------
Name:
Title:
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CONSENT
Reference is made to (a) Amendment No. 5 to the Loan Documents dated as
of May 8, 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,
Amendment and Waiver No. 3 Under the Loan Documents dated as of November 7, 2000
and Amendment No. 4 Under the Credit Agreement dated as of February 13, 2002,
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, 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. 5 Effective Date, except that, on and after the
Amendment No. 5 Effective Date, (i) 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,
(ii) each reference in the Security Agreement to "THIS AGREEMENT",
"HEREUNDER", "HEREOF" or words of like import referring to the Security
Agreement shall mean and be a reference to the Security Agreement, as
amended and otherwise modified by the Amendment, and (iii) each
reference in the Copyright Security Agreement--Short Form, the
Trademark Security Agreement--Short Form, the Patent Security
Agreement--Short Form and the Holdings LLC Agreement to "THE SECURITY
AGREEMENT", "THEREUNDER", "THEREOF", "THEREIN" or words of like import
referring to the Security Agreement shall mean and be a reference to
the Security Agreement, as amended and otherwise modified by the
Amendment; and
(B) as of the Amendment No. 5 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.
2
UNITED INDUSTRIES CORPORATION
By
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Name:
Title:
UIC HOLDINGS, L.L.C.
By 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: