EXHIBIT 10.31
EXECUTION COPY
AMENDMENT NO. 9 TO THE LOAN DOCUMENTS
Amendment No. 9 dated as of December 6, 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, Amendment No. 4 Under the Credit
Agreement dated as of February 13, 2002, Amendment No. 5 to the Loan Documents
dated as of May 9, 2002, Amendment and Waiver No. 6 Under the Credit Agreement
dated as of June 14, 2002, Amendment No. 7 Under the Credit Agreement dated as
of September 30, 2002 and Amendment No. 8 to the Credit Agreement dated as of
November 4, 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 Xxxxxxxxxx Securities LLC) ("BAS") and Xxxxxx Xxxxxxx 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 therefor in the Credit Agreement.
PRELIMINARY STATEMENTS
(1) The Borrower has entered into an Agreement and Plan of Merger
dated as of November 26, 2002 (the "MERGER AGREEMENT") with WPC Acquisition
Corp., a Wisconsin corporation and a wholly owned Subsidiary of the Borrower
("MERGER SUB"), WPC Brands, Inc., a Wisconsin corporation ("WPC"), the
stockholders of WPC and the Stockholders Agents referred to therein
("STOCKHOLDERS AGENTS") (collectively, the "SELLERS") pursuant to which Merger
Sub will be merged with and into WPC (the "MERGER"). In connection with the
Merger, the Sellers shall receive cash in an amount not to exceed $19,500,000.
After consummation of the Merger, WPC will be the surviving entity and will be a
wholly owned Subsidiary of the Borrower.
(2) 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, among other things, (A) permit the Borrower to consummate the Merger,
and (B) permit a Term B Borrowing to be made on the Amendment No. 9 Effective
Date (as hereinafter defined) in the amount of $25,000,000 (the "ADDITIONAL TERM
B ADVANCE"), the proceeds of which will be used to finance the Merger.
(3) 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:
SECTION 1. AMENDMENTS AND MODIFICATIONS TO CERTAIN PROVISIONS
OF THE CREDIT AGREEMENT. (a) Upon the occurrence of the Amendment No. 9
Effective Date, the aggregate Term B Commitments of the Lender Parties shall be
increased by $25,000,000, and the Term B Commitment of Bank of America shall be
increased by $25,000,000. The Term B Commitments of the Lender Parties (other
than Bank of America) will remain unchanged as a result of this Amendment.
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(b) The Credit Agreement is, upon the occurrence of the Amendment
No. 9 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:
"WPC" means WPC Brands, Inc., a Wisconsin corporation.
"WPC MERGER AGREEMENT" means the Agreement and Plan of Merger
dated as of November 26, 2002 among the Borrower, WPC
Acquisition Corp., a Wisconsin corporation and a wholly owned
Subsidiary of the Borrower, WPC, the Stockholders of WPC and
the Stockholders Agents referred to therein, 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
---- ------
June 30, 2003 $ 575,148.16
September 30, 2003 $ 575,148.16
December 31, 2003 $ 575,148.16
March 31, 2004 $ 575,148.16
June 30, 2004 $ 575,148.16
September 30, 2004 $ 575,148.16
December 31, 2004 $ 575,148.16
March 31, 2005 $ 575,148.16
June 30, 2005 $ 54,609,676.94
September 30, 2005 $ 54,609,676.94
December 31, 2005 $ 54,609,676.94
January 20, 2006 $ 54,609,676.94
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:
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"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
Xxxxxxx pursuant to the Xxxxxxx Merger Agreement, (d) to finance the
acquisition of WPC pursuant to the WPC Merger Agreement, (e) to pay
certain fees and expenses incurred in connection with the acquisition
of Xxxxxxx and the acquisition of WPC, and (f) 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(d) of the Credit Agreement is hereby
amended by (i) removing the word "and" at the end of subsection (x), (ii)
deleting the punctuation "." at the end of subsection (xi) and substituting
therefor the phrase "; and", and (iii) adding immediately after subsection
(xi), a new subsection (xii) to read as follows:
"(xii) the Borrower or its designee may sell, transfer or
otherwise dispose of any individual product line generating $2,000,000
or less in annual revenues; PROVIDED that (A) at the time of such
sale, transfer or other disposition, no Default shall have occurred
and be continuing or would result therefrom, (B) any amounts received
in connection with such sale, transfer or other disposition shall be
paid to the Borrower or such designee solely in cash, and (C) the Net
Cash Proceeds, if any, received in connection with such sale, transfer
or other disposition in excess of $1,000,000 in the aggregate shall be
applied by the Borrower to prepay the Advances and cash collateralize
the Letters of Credit then outstanding in accordance with the terms of
Section 2.06(b).".
(v) Schedules 4.01(b), 4.01(dd) and 4.01(ee) to the Credit
Agreement are hereby deleted in their entirety and Schedules 4.01(b),
4.01(dd) and 4.01(ee), respectively, attached hereto as Annexes A, B and C,
respectively, are substituted therefor.
SECTION 2. AMENDMENT TO AMENDMENT NO. 7 UNDER THE CREDIT AGREEMENT.
Section 3 to Amendment No. 7 Under the Credit Agreement is hereby amended (a) to
delete in its entirety the second sentence thereof, and (b) to amend and restate
in its entirety the lead-in portion of the third sentence thereof to read as
follows:
"Section 1 of this Amendment shall become effective as of the first date
(the "AMENDMENT EFFECTIVE DATE") on which, and only if, each of the
following conditions precedent shall have been satisfied:".
SECTION 3. AMENDMENTS TO THE SECURITY AGREEMENT. Upon the occurrence
of the Amendment No. 9 Effective Date, Schedules I, II, III, IV and VI to the
Security Agreement are hereby deleted in their entirety and Schedules I, II,
III, IV and VI, respectively, attached hereto as Annexes E, F, G, H and I,
respectively, are substituted therefor.
SECTION 4. WAIVER OF CERTAIN PROVISIONS OF THE CREDIT AGREEMENT. (a)
Upon the occurrence of the Amendment No. 9 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. 9
Effective Date.
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(b) Upon the occurrence of the Amendment No. 9 Effective Date, the
Lender Parties hereby agree to waive the requirements of Section 5.02(g) of the
Credit Agreement, solely to permit the Borrower and its Subsidiaries to make
Capital Expenditures in an aggregate amount not to exceed $2,500,000 in
connection with the integration of the manufacturing operations of WPC with
those of the Borrower and its Subsidiaries.
SECTION 5. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AMENDMENT. This Amendment (other than Sections 1, 2, 3 and 4) 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, 3 and 4 of this Amendment shall become effective as of the first
date (the "AMENDMENT NO. 9 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, UIC Holdings, L.L.C., Sylorr
Plant Corporation, Xxxxxxx Corp. and Ground Zero, Inc.
(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 Xxxxxx
xxxx executed by WPC and Xxxxxx Sub shall have been filed with the
Secretary of State of the State of Wisconsin and the Administrative Agent
shall have received a verbal confirmation or other satisfactory advice that
such Articles of Merger have been accepted by the Secretary of State of the
State of Wisconsin. 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) 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
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.
(d) 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. 9 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. 9 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
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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. 9 Effective Date).
(e) 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.
(f) 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.
(g) Concurrently with the making of the Additional Term B Advance,
the Borrower shall have used the proceeds of such Additional Term B Advance
to the extent necessary to finance the Merger.
(h) 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 December 4,
2002, an amendment fee of 0.05% on the aggregate Commitments of such
Appropriate Lender.
(i) The Administrative Agent shall have received on or before the
Amendment No. 9 Effective Date the following, each dated such date (unless
otherwise specified), in form and substance satisfactory to the Required
Lenders (unless otherwise specified):
(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.
(iii) A certificate of the Borrower, signed on behalf of the
Borrower by its President or a Vice President dated the Amendment No.
9 Effective Date (the statements made in which certificate shall be
true on and as of the Amendment No. 9 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 (i) of this
Section 5(i) were adopted and on the Amendment No. 9 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
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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. 9 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. 9
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. 9 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.
(iv) A Notice of Borrowing for the Additional Term B
Advance.
(vi) A Security Agreement Supplement duly executed by WPC
and each of its Subsidiaries, together with:
(A) certificates representing all Equity Interests
in WPC and each of its Subsidiaries, accompanied by undated
stock powers or other appropriate powers, duly executed in
blank, and instruments evidencing indebtedness owed to WPC 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 WPC 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;
(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 be necessary or the Administrative
Agent may deem 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 WPC 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. 9 Effective Date, listing
all effective financing statements filed in the jurisdictions
referred to in subclause (vi)(C) of this Section 4(j) that
named WPC or any of its Subsidiaries as debtor, together with
copies of such financing statements;
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(E) IP Security Agreements--Short Form, covering all
of the Copyrights, Patents and Trademarks, if any, of WPC and
each of its Subsidiaries, in each case completed in a manner
satisfactory to the Administrative Agent and duly executed by
WPC 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 Xxxxxx 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 be necessary or that
the Administrative Agent may deem reasonably desirable in
order to perfect and protect the liens and security interests
created under such Security Agreement Supplement have been
taken or will be taken in accordance with the terms of the
Loan Documents.
(vii) A favorable opinion of Xxxxxxxx & Xxxxx, counsel for
the Borrower and Merger Sub, in form and substance reasonably
satisfactory to the Required Lenders.
(viii) A favorable opinion of Xxxxxxxx Xxxxxxx Xxx Xxxxxx
s.c., counsel for the Borrower and Merger Sub, in form and substance
reasonably satisfactory to the Required Lenders.
(ix) A Guarantee Supplement, duly executed by WPC 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 other opinions, certificates, documents and
information as the Administrative Agent or the Required Lenders may
reasonably request, it being understood that the condition set forth
in this clause (xi) shall be deemed to have been satisfied on the date
on which this Amendment shall have been 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.
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 5, nor consent to any departure by
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the Borrower therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Required Lenders.
SECTION 6. 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. 9 Effective Date, Bank of America may make
the Additional Term B Advance to the Borrower in a principal amount of
$25,000,000, and (ii) such Additional Term B Advance will be made solely by 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 7. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) On and
after the Amendment No. 9 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. 9 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 as specifically provided above in
Sections 1, 2, 3 and 4, 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 8. 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 9. 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 10. 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 /s/ XXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President &
C.F.O.
BANK OF AMERICA, N.A.,
as Administrative Agent
By /s/ XXXXXXXX X. CARRY
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
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THE LENDER PARTIES
BANK OF AMERICA, N.A.,
as a Lender and the Initial Issuing Bank
By /s/ X. XXXXXX XXXXXXX
---------------------------------
Name: X. Xxxxxx Xxxxxxx
Title: Managing Director
AIM FLOATING RATE FUND
By: INVESCO Senior Secured
Management, Inc.
As Attorney in Fact
By /s/ Xxxxxx X.X. Xxxxx
---------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
AMARA FINANCE LIMITED
By: INVESCO Senior Secured Management, Inc.
As Financial Manager
By /s/ Xxxxxx X.X. Xxxxx
---------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
AMARA 2 FNANCE, LTD.
By: INVESCO Senior Secured Management, Inc.
As Attorney in Fact
By /s/ Xxxxxx X.X. Xxxxx
---------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
ARAB BANKING CORPORATION
By /s/ Xxxxx X. XxXxxxxx
---------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
ARES Leveraged Investment Fund, L.P.
By: ARES Management II, L.P.
Its: General Partner
By /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
ARES III CLO Ltd.
By: ARES CLO Management, L.L.C.
Its: Investment Manager
By /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
ARES IV CLO LTD.
By: Ares Management IV, L.P.
Its: Investment Manager
By: Ares CLO XX XX, LLC
Its: Managing Member
By /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
Ares V CLO Ltd.
By: ARES CLO Management V, L.P.
Its: Investment Manager
By: Ares CLO GP V, LLC
Its: Managing Member
By /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
Ares VI CLO Ltd.
By: Ares CLO GP VI, LLC
Its: Management Member
By /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
AURIUM CLO 2002-I LTD.
By: XXXXX XXX & XXXXXXX
INCORPORATED, AS INVESTMENT
MANAGER
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Sr. Vice President & Portfolio
Manager
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By /s/ Xxxxxx X.X. Xxxxx
---------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By /s/ Xxxxxx X.X. Xxxxx
---------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
BANK LEMMI USA
By /s/ Xxxxx Xxx Xxxx
---------------------------------
Name: Xxxxx Xxx Xxxx
Title: Vice President
BANK PEKAO SA (also known as Bank Poloska
Opieki SA)
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
BAY VIEW FINANCIAL CORPORATION
By /s/ Xxxx X. Spring
---------------------------------
Name: Xxxx X. Spring
Title: Senior Vice President
BIG SKY SENIOR LOAN FUND, LTD.
By: Xxxxx Xxxxx Management
As: Investment Advisor
By /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
BLACK DIAMOND CLO 1999-1 LTD.
By /s/ [Illegible]
---------------------------------
Name:
Title: Vice President
BLACK DIAMOND CLO 2000-1 LTD.
By /s/ ]Illegible]
---------------------------------
Name:
Title: Vice President
BLACK DIAMOND INTERNATIONAL
FUNDING, LTD.
By /s/ [Illegible]
---------------------------------
Name:
Title: Vice President
CERES FINANCE LTD.
By: INVESCO Senior Secured Management, Inc.
As Sub-Managing Agent
By /s/ Xxxxxx X.X. Xxxxx
---------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
CERES II FINANCE LTD.
By: INVESCO Senior Secured Management, Inc.
As Sub-Managing Agent (Financial)
By /s/ Xxxxxx X.X. Xxxxx
---------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management, Inc.
As Investment Advisor
By /s/ Xxxxxx X.X. Xxxxx
---------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
CITIZENS BANK OF MASSACHUSETTS
By /s/ [Illegible]
---------------------------------
Name:
Title: Vice President
CITY NATIONAL BANK
By /s/ Xxxxxx Xxxx
---------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
COMERICA BANK
By /s/ Xxxxxxx X'Xxxxxx
---------------------------------
Name: Xxxxxxx X'Xxxxxx
Title: Vice President
DIVERSIFIED CREDIT PORTFOLIO LTD.
By: INVESCO Senior Secured Management, Inc.
As investment Advisor
By /s/ Xxxxxx X.X. Xxxxx
---------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
EA/CAYMAN UNIT TRUST
EA/MACKAY HIGH YIELD CAYMAN UNIT
TRUST
By: Mackay Xxxxxxx LLC
As Investment Advisor
By /s/ Xxx Xxxx
---------------------------------
Name: Xxx Xxxx
Title: General Counsel
XXXXX XXXXX CDO IV, LTD.
By: Xxxxx Xxxxx Management
As Investment Advisor
By /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
XXXXX XXXXX INSTITUTIONAL SENIOR
LOAN FUND
By: Xxxxx Xxxxx Management
As Investment Advisor
By /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management
As Investment Advisor
By /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
ELC (CAYMAN) LTD. CDO SERIES 1999-I
By: Xxxxx X. Xxxxxx & Company Inc.,
As Collateral Manager
By /s/ Xxxx Xxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
ELF FUNDING TRUST III
By:
New York Life Investment Management, LLC
As Attorney-in-Fact
By /s/ Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
FIRST BANK
By /s/ Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President
FIRSTRUST BANK
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
GALAXY CLO 1999-1, LTD.
By /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
GALLATIN FUNDING 1 LTD.
By: Bear Xxxxxxx Asset Management Inc.
As its Collateral Manager
By /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Associate Director
XXXXXXX & CO.
By: Boston Management and Research
As Investment Advisor
By /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
GRAYSTON CLO 2001-01 LTD.
By: Bear Xxxxxxx Asset Management Inc.
As its Collateral Manager
By /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Associate Director
XXXXXXXX CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
As its Collaterall Manager
By /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
HARCH CDO I, LTD.
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
XXXXXX FINANCIAL, INC.
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
IKB INTERNATIONAL S.A.
By /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xx. Xxxxx Xxxxxx
Title: Head of Structured Finance
ILLINOIS MUNICIPAL RETIREMENT FUND
By: Mackay Xxxxxxx LLC
As Investment Advisor
By /s/ Xxx Xxxx
---------------------------------
Name: Xxx Xxxx
Title: General Counsel
INVESCO EUROPEAN CDO-1 S.A.
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
By /s/ Xxxxxx X.X. Xxxxx
---------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
KEY CORPORATE CAPITAL INC.
By /s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President
KZH RIVERSIDE LLC
By /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Agent
KZH SOLEIL-2 LLC
By /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Agent
LANDMARK II CDO LTD.
By: Alladin Capital Management LLC
By /s/ [Illegible]
---------------------------------
Name:
Title: Vice President
LIBERTY FLOATING RATE ADVANTAGE
FUND
By: Xxxxx Xxx & Xxxxxxx Incorporated
As Advisor
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President &
Portfolio Manager
THE MAINSTAY FUNDS ON BEHALF OF ITS
HIGH YIELD CORPORATE BOND FUND
SERIES
By: Mackay Xxxxxxx LLC
As Investment Advisor
By /s/ Xxx Xxxx
---------------------------------
Name: Xxx Xxxx
Title: General Counsel
MAINSTAY VP SERIES FUND, INC. ON
BEHALF OF ITS HIGH YIELD CORPORATE
BOND PORTFOLIO
By: Mackay Xxxxxxx LLC
As Investment Advisor
By /s/ Xxx Xxxx
---------------------------------
Name: Xxx Xxxx
Title: General Counsel
XXXXXXX XXXXX CAPITAL, A DIVISION
OF XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES, INC.
By /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
MIZUHO CORPORATE BANK, LTD.
By /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
MOUNTAIN CAPITAL CLO 1 LTD.
By /s/ [Illegible]
---------------------------------
Name:
Title: Director
NATIONAL CITY
By /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION
By:
New York Life Investment Management, LLC
As its Investment Manager
By /s/ Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
NEW YORK LIFE INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Investment Vice President
OASIS COLLATERALIZED HIGH INCOME
PORTFOLIOS-1, LTD.
By: INVESCO Senior Secured Management Inc.
As Subadvisor
By /s/ Xxxxxx X.X. Xxxxx
---------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
OXFORD STRATEGIC INCOME FUND
By: Xxxxx Xxxxx Management
As Investment Advisor
By /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
PINEHURST TRADING, INC.
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
As Investment Advisor
By /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
SEQUILS-LIBERTY, LTD.
By: INVESCO Senior Secured Management Inc.
As Collateral Manger
By /s/ Xxxxxx X.X. Xxxxx
---------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
SIERRA CLO I
By /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Operating Officer
Centre Pacific, LLC Manager
SFR 2000 LLC
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
XXXXXXXXX ARBITRAGE CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
As its Collateral Manager
By /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
XXXXXXXXX CARRERA CLO, LTD.
By: Xxxxxxxxx Capital Partners LLC
As its Interim Asset Manager
By /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
XXXXXXXXX CLO LTD.
By: Xxxxxxxxx Capital Partners LLC
As its Collateral Manager
By /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
XXXXXXXXX QUATTRO CLO, LTD.
By: Xxxxxxxxx Capital Partners LLC
As its Collateral Manager
By /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY
By: Xxxxx Xxx & Barnham Incorporated
As Advisor
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President &
Portfolio Manager
SUNAMERICA LIFE INSURANCE CMOPANY
By /s/ Xxxxxx X. Oh
---------------------------------
Name: Xxxxxx X. Xx
Title: Authorized Agent
SUNAMERICA SENIOR FLOATING RATE
FUND INC.
By: Xxxxxxxxx Capital Partners LLC
As Subadvisor
By /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
TORONTO DOMINION (
NEW YORK), INC.
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
WACHOVIA BANK NA
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
XXXXXXX BANK
By /s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
CONSENT
Reference is made to (a) Amendment No. 9 to the Loan Documents dated
as of December 6, 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, Amendment No. 4 Under the Credit Agreement dated as of
February 13, 2002, Amendment No. 5 to the Loan Documents dated as of May 9,
2002, Amendment and Waiver No. 6 Under the Credit Agreement dated as of June 14,
2002, Amendment No. 7 Under the Credit Agreement dated as of September 30, 2002
and Amendment No. 8 to the Credit Agreement dated as of November 4, 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
Xxxxxxxxxx Securities LLC) ("BAS") and Xxxxxx Xxxxxxx 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.
UIC Holdings, L.L.C., a Delaware limited liability company, and each
Loan Party, in its capacity as (a) a Grantor under the Security Agreement, (b) a
Grantor under each IP Security Agreement--Short Form, (c) a Guarantor under the
Subsidiaries Guarantee and/or (d) 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, the Subsidiaries Guarantee 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. 9 Effective Date, except that, on and after
the Amendment No. 9 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, the Subsidiaries Guarantee
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. 9 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 /s/ XXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
& C.F.O.
UIC HOLDINGS, L.L.C.
By Xxxxxx X. Xxx Equity Fund IV, L.P.,
as Manager
By Xxxxxx X. Xxx Company,
its general partner
By /s/ XXXXX X. XXXXXX
-----------------------
Name: Xxxxx X. Xxxxxx
Title:
SYLORR PLANT CORPORATION
By /s/ XXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
XXXXXXX CORP.
By /s/ XXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
GROUND ZERO, INC.
By /s/ XXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
