Exhibit 10.19
AMENDMENT NO. 1
Amendment No.1 (this "AMENDMENT"), dated as of January 20,
1999, among the Sellers listed on Exhibit A hereto (the "SELLERS"), United
Industries Corporation, a Delaware corporation ("UIC"), and UIC Holdings,
L.L.C., a Delaware limited liability company ("BUYER").
WHEREAS, the parties hereto have entered into an Agreement and
Plan of Recapitalization, Purchase and Redemption, dated as of December 24, 1998
(the "AGREEMENT");
WHEREAS, the parties hereto wish to amend the Agreement as set
forth herein;
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. The amount "$30,415,900" in Sections 2.1(d)(i) and
2.1(d)(ii) is hereby deleted and the following substituted in lieu thereof:
"$32,440,900".
2. The following is hereby added as a new Section 11.20:
"Section 11.20 CERTAIN ADDITIONAL MATTERS. (a) Notwithstanding
anything to the contrary in this Agreement (including Section 6.3(b) and the
Schedules hereto), the parties hereto agree as follows:
(i) Buyer hereby waives the condition set forth in
Section 6.3(b) of this Agreement with respect to any consent required under the
leases for 15205 E. Stafford, Industry, California and 3250 Big Beaver Road,
Troy, Michigan (collectively, the "Leases"); PROVIDED, that the Sellers agree to
use their reasonable best efforts to obtain such consents as promptly as
practicable after the Closing without any costs or expenses to Buyer, UIC or
their affiliates; PROVIDED FURTHER, that the Sellers agree to indemnify and hold
harmless Buyer, UIC and their affiliates from any Buyer Losses arising out of,
relating to or resulting from the failure to obtain such consents, in each such
case without regard to any limitations on indemnification set forth in Section
8.1(b)(ii) and (iii) of this Agreement. The parties agree that for purposes of
this Section 11.20(a), Buyer Losses shall include, without limitation, any of
the following incurred by Buyer, UIC or their affiliates as a result of the
failure to obtain any consent required under the Leases: increases in rent
imposed by the landlords under the Leases, any incremental increases in rent at
any new facility, any amounts paid by UIC to the landlords as damages for
breaching the Leases due to the required consent to the assignment, any and all
costs associated with moving its business operations out of the facilities
subject to the Leases and any amounts paid to brokers to assist UIC in procuring
new facilities.
(ii) Buyer hereby waives the condition set forth in
Section 6.3(b) of the Agreement with respect to any consent required under the
lease for 377 Amelia Street, Plymouth, Michigan.
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(b) Notwithstanding anything to the contrary in this Agreement
(including Sections 6.3(d) and the Schedules hereto), the parties hereto agree
that UIC's Stand-by Letter of Credit (S702162) for $175,000 back-stopping
workers compensation claims in the State of Oklahoma (the "LC") shall remain in
effect as of and after the Closing; PROVIDED, that the Sellers agree to replace
the LC with a stand-by letter of credit from Rexair Service Co. as promptly as
practicable after the Closing without any costs or expenses to Buyer, UIC or
their affiliates; PROVIDED FURTHER that the Sellers agree to indemnify and hold
harmless Buyer, UIC and their affiliates from any Buyer Losses arising out of,
relating to or resulting from maintaining the LC after the Closing Date and any
drawdown of the LC after the Closing Date, in each such case without regard to
any limitations on indemnification set forth in Section 8.1(b)(ii) and (iii) of
this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement
(including the Schedules hereto), the parties hereto agree that none of the
Borrowings of UIC pursuant to Section 1.1(b) of the Agreement or any fees or
expenses relating thereto shall be taken into account for purposes of
determining Closing Working Capital."
3. Capitalized terms used in this Amendment and not defined
herein shall have the meanings ascribed thereto in the Agreement.
4. Except as expressly amended by this Amendment, the
provisions of the Agreement shall remain unchanged and in full force and effect.
From and after the date of this Amendment, any reference in the Agreement to the
Agreement shall be deemed to be a reference to the Agreement as amended by this
Amendment.
5. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has duly
executed this amendment as of the date first written above.
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David C. Pratt
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Mark R. Gale
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M. Robert Gale
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Charles R. Gale
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Randolph D. Gale
DAVID C. PRATT GRANTOR RETAINED
INTEREST TRUST
By:
--------------------------------
Name: Mark R. Gale
Title: Trustee
MARK R. GALE REVOCABLE TRUST
By:
--------------------------------
Name: Mark R. Gale
Title: Trustee
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MARK R. GALE GRANTOR RETAINED
INTEREST TRUST
By:
--------------------------------
Name: David C. Pratt
Title: Trustee
RALPH EDWARDS REVOCABLE TRUST
By:
--------------------------------
Name: Ralph Edwards
Title: Trustee
DAVID C. PRATT GRANTOR RETAINED
ANNUITY TRUST
By:
--------------------------------
Name: Mark R. Gale
Title: Trustee
RYDER PRATT GRANTOR RETAINED
ANNUITY TRUST
By:
--------------------------------
Name: David C. Pratt
Title: Trustee
5
1994 RYDER PRATT GRANTOR RETAINED
ANNUITY TRUST
By:
--------------------------------
Name: David C. Pratt
Title: Trustee
1998 GALE FAMILY NEVADA IRREVOCABLE TRUST
By:
--------------------------------
Name: Charles R. Gale
Title: Trustee
By: Ternion Corporation, as Trustee
By:
--------------------------------
Name: Mark R. Gale
Title:
UNITED INDUSTRIES CORPORATION
By:
--------------------------------
Name: David C. Pratt
Title: President
UIC HOLDINGS, L.L.C.
By:
--------------------------------
Name:
Title:
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Exhibit A
David C. Pratt
Mark R. Gale
M. Robert Gale
Charles R. Gale
Randolph D. Gale
David C. Pratt Grantor Retained Interest Trust
Mark R. Gale Revocable Trust
Ralph Edwards Revocable Trust
David C. Pratt Grantor Retained Annuity Trust
Ryder Pratt Grantor Retained Annuity Trust
1994 Ryder Pratt Grantor Retained Annuity Trust
1998 Gale Family Nevada Irrevocable Trust