EXHIBIT 10.23
EXECUTION COPY
WAIVER NO. 1 UNDER THE LOAN DOCUMENTS
WAIVER dated as of December 30, 1999 to the Amended and Restated
Credit Agreement dated as of March 24, 1999 (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.) ("B OF A"), 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 B of A,
as Administrative Agent (the "ADMINISTRATIVE AGENT") for the Lender Parties
thereunder. Capitalized terms not otherwise defined in this Waiver have the same
meanings as specified therefor in the Credit Agreement.
PRELIMINARY STATEMENT: The Borrower has requested that the Lender
Parties agree to waive the requirement set forth in Section 5.04(a) of the
Credit Agreement that the Borrower maintain a Leverage Ratio of not more than
5.75:1 at all times during the period commencing on December 31, 1999 and ending
on March 30, 2000. The Lender Parties have indicated their willingness to agree
to so waive the requirements of Section 5.04(a) of 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. CONDITIONAL WAIVER OF CERTAIN PROVISIONS OF THE CREDIT
AGREEMENT. Any and all requirements of the Borrower to comply with Section
5.04(a) of the Credit Agreement are, solely for the period commencing on
December 31, 1999 and ending on February 15, 2000 (the "WAIVER TERMINATION
DATE"), waived by the Lender Parties. On the Waiver Termination Date, without
any further action by or notice to or from any of the Agents or any of the
Lender Parties, all of the terms and provisions set forth in the Loan Documents
with respect to the requirements of Section 5.04(a) of the Credit Agreement that
are waived under this Section 1 and not modified or further waived prior to such
time shall be and become in full force and effect, and the Agents and the other
Secured Parties shall have all of the rights and remedies afforded to them under
the Loan Documents with respect to any and all such requirements as though no
waiver had been granted under this Section 1.
SECTION 2. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS WAIVER.
This Waiver shall become effective as of the first date (the "WAIVER EFFECTIVE
DATE") on which, and only if, each of the following conditions precedent shall
have been satisfied:
(a) The Administrative Agent shall have received counterparts of this
Waiver 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 Waiver.
(b) The representations and warranties contained in each of the Loan
Documents shall be correct in all material respects on and as of the Waiver
Effective Date, after giving effect to this Waiver, 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 Waiver 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)
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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 Waiver Effective Date).
(c) After giving effect to Section 1 of this Waiver, no event shall
have occurred and be continuing or shall result from the effectiveness of
this Waiver that constitutes a Default.
(d) 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) shall have been paid
in full.
The effectiveness of this Waiver is further conditioned upon the accuracy of all
of the factual matters described herein. This Waiver is subject to the
provisions of Section 8.01 of the Credit Agreement.
SECTION 3. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) On and
after the Waiver 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 modified by this Waiver.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as modified by the waiver specifically provided above in Section 1,
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 Waiver 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 4. 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 Waiver in accordance with the terms of Section 8.04 of the Credit
Agreement.
SECTION 5. EXECUTION IN COUNTERPARTS. This Waiver 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 Waiver by
telecopier shall be effective as delivery of a manually executed counterpart of
this Waiver.
SECTION 7. GOVERNING LAW. This Waiver shall be governed by, and
construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver 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
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President & C.F.O.
THE AGENTS
BANK OF AMERICA, N.A., as Administrative
Agent
By /s/ XXXXXXX X. XXXXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
BANC OF AMERICA SECURITIES LLC, as Lead
Arranger and Book Manager and a Co-Arranger
By /s/ XXXXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Managing Director
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XXXXXX XXXXXXX 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 /s/ XXXX XXXXXXXXXX
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Name: Xxxx Xxxxxxxxxx
Title: Executive Director
THE LENDER PARTIES
BANK OF AMERICA, N.A., as a Lender and the
Initial Issuing Bank
By /s/ XXXXX X. STRICKERS
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Name: Xxxxx X. Strickers
Title: Principal
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By
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Name:
Title:
CIBC INC.
By /s/ XXXX XXXXXXXXXX
------------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Executive Director
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BNP, NEW YORK BRANCH
By
------------------------------------------
Name:
Title:
XXXXXX FINANCIAL, INC.
By /s/ K. XXXXX XXXXXXXXX
------------------------------------------
Name: K. Xxxxx Xxxxxxxxx
Title: Vice President
KEY CORPORATE CAPITAL INC.
By /s/ XXXX X. XXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
ARAB BANKING CORPORATION (B.S.C.)
By
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Name:
Title:
BANKBOSTON, N.A.
By
------------------------------------------
Name:
Title:
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XXX XXXX XX XXXX XXXXXX
By /s/ F. C. H. XXXXX
------------------------------------------
Name: F. C. H. Xxxxx
Title: Senior Managing Loan Operations
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By /s/ XXXXXXXX XXXXXX
------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
CITY NATIONAL BANK
By
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Name:
Title:
COMERICA BANK
By /s/ XXXXXXX X. XXXX
------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
FIRST BANK
By /s/ XXXXXX X. XXXX
------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
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THE FUJI BANK, LIMITED
By
------------------------------------------
Name:
Title:
IKB DEUTSCHE INDUSTRIEBANK AG LUXEMBOURG
BRANCH
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
MERCANTILE BANK NATIONAL ASSOCIATION
By /s/ XXXX X. XXXXXXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
NATIONAL CITY BANK
By
------------------------------------------
Name:
Title:
THE PROVIDENT BANK
By
------------------------------------------
Name:
Title:
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US TRUST
By /s/ P. XXXXXXX XXXX
------------------------------------------
Name: P. Xxxxxxx Xxxx
Title: Vice President
XXXXXXX BANK
By /s/ XXXXXXX X. XXXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FIRSTRUST BANK
By /s/ XXXX X. XXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President and Manager
BANK POLSKA KASA OPIEKI S.A. PEKAO S.A.
GROUP - NEW YORK BRANCH
By /s/ XXXXX X. XXXXX
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Senior Lending Officer
BAY VIEW FINANCIAL CORPORATION
By /s/ XXXXX READ
------------------------------------------
Name: Xxxxx Read
Title: Vice President
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FLOATING RATE PORTFOLIO
By: INVESCO Senior Secured Management,
Inc., as attorney in fact
By /s/ XXXX X. XxXXXXXX
------------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management,
Inc., as Portfolio Advisor
By /s/ XXXX X. XxXXXXXX
------------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
KZH RIVERSIDE LLC
By /s/ XXXXX XXXX
------------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
PINEHURST TRADING, INC.
By /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
CYPRESSTREE INVESTMENT FUND, LLC
By: CypressTree Investment Management
Company, Inc., its Managing Member
By /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Principal
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CYPRESSTREE SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By /s/ XXXXXXX X. XXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
NORTH AMERICAN SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By /s/ XXXXXXX X. XXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
KZH CYPRESSTREE-1 LLC
By /s/ XXXXX XXXX
------------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
KZH LANGDALE LLC
By /s/ XXXXX XXXX
------------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
SRF TRADING, INC.
By
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Name:
Title:
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XXXXX XXX & XXXXXXX CLO 1 LTD.
By: Xxxxx Xxx & Farnham Incorporated,
as Portfolio Manager
By /s/ XXXXX X. GOOD
------------------------------------------
Name: Xxxxx X. Good
Title: Vice President & Portfolio Manager
FIRST UNION NATIONAL BANK
By /s/ ILLEGIBLE
------------------------------------------
Name: Illegible
Title: Vice President
FRANKLIN FLOATING RATE TRUST
By
------------------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By /s/ XXXXX X. PAGE
------------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management,
as Investment Advisor
By /s/ XXXXX X. PAGE
------------------------------------------
Name: Xxxxx X. Page
Title: Vice President
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XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By: Xxxxx Xxxxx Management,
as Investment Advisor
By /s/ XXXXX X. PAGE
------------------------------------------
Name: Xxxxx X. Page
Title: Vice President
NORTHWOODS CAPITAL, LIMITED
By: Xxxxxx, Xxxxxx & Company LP,
as Collateral Manager
By /s/ XXXX XXXXXX
------------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
CERES FINANCE LTD.
By
------------------------------------------
Name:
Title:
ATHENA CDO, LIMITED
By: Pacific Investment Management Company,
as its Investment Advisor
By
------------------------------------------
Name:
Title:
ELC (CAYMAN) LTD. CDO SERIES 1999-I
By /s/ XXXXXX X. XXXXX
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
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BANK LEUMI USA
By /s/ JOUNG HIE HONG
------------------------------------------
Name: Joung Hie Hong
Title: Vice President
FIRST DOMINION FUNDING II
By
------------------------------------------
Name:
Title:
CARLYLE HIGH YIELD PARTNERS II, LTD.
By /s/ XXXXX XXXX
------------------------------------------
Name: Xxxxx Xxxx
Title: VP
ARES III CLO LTD.
By: Ares CLO Management LLC
By /s/ XXXX X. XXXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
GALAXY CLO 1999-1, LTD.
By /s/ ILLEGIBLE
------------------------------------------
Name: Illegible
Title: Authorized Agent
KZH - SOLEIL-2 LLC
By /s/ XXXXX XXXX
------------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
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BLACK DIAMOND CLO 1998-1 LTD.
By
------------------------------------------
Name:
Title:
BLACK DIAMOND INTERNATIONAL FUNDING, LTD.
By
------------------------------------------
Name:
Title:
