Exhibit 10.35
EXECUTION COPY
AMENDMENT NO. 7 UNDER THE CREDIT AGREEMENT
Amendment dated of as September 30, 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 dated as of May 9, 2002
and Amendment No. 6 Under the Credit Agreement dated as of June 14, 2002 the
"CREDIT AGREEMENT") among United Industries Corporation, a Delaware corporation
(the "BORROWER"), certain banks, financial institutions and other institutional
lenders party thereto (the "LENDER PARTIES"), 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 ▇▇▇▇▇▇▇▇▇▇ Securities LLC) ("BAS") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 Asset Purchase Agreement dated as of
September 23, 2002 (the "ASSET PURCHASE AGREEMENT") with ▇▇▇▇▇▇▇ Industries,
Inc., a Delaware corporation ("▇▇▇▇▇▇▇"), BFC Acquisition Corp., a California
corporation, ("BFC") and Vigoro Acquisition Corp., a Delaware corporation
("VIGORO", and together with ▇▇▇▇▇▇▇ and BFC, the "▇▇▇▇▇▇▇ ENTITIES"), pursuant
to which the Borrower has agreed that it or its designee will purchase various
assets as more particularly described therein, including, without limitation,
raw materials, work in process, finished goods inventory and real and personal
property, and will release ▇▇▇▇▇▇▇ from its obligations under the ▇▇▇▇▇▇▇ Notes.
In addition, it is contemplated under the Asset Purchase Agreement that the
Borrower or its designee and ▇▇▇▇▇▇▇ will enter into a Tolling Agreement under
which ▇▇▇▇▇▇▇ will provide certain materials and manufacturing services, and
that the Borrower or its designee and ▇▇▇▇▇▇▇ or certain affiliates of ▇▇▇▇▇▇▇
will enter into various other agreements as more fully provided in the Asset
Purchase Agreement (the Asset Purchase Agreement, the Tolling Agreement and such
other agreements being herein collectively called the "▇▇▇▇▇▇▇ AGREEMENTS", and
the transactions contemplated by the ▇▇▇▇▇▇▇ Agreements being herein called the
"▇▇▇▇▇▇▇ TRANSACTION").
(2) The Borrower has requested that the Lender Parties agree to amend the
Credit Agreement in order to: (i) modify Section 5.02(d) to permit the Borrower
to release the ▇▇▇▇▇▇▇ Notes, (ii) modify Section 5.02(e) to permit the Borrower
to enter into the transactions contemplated in the ▇▇▇▇▇▇▇ Agreements, and (iii)
modify Section 5.02(g) of the Credit Agreement to increase the aggregate amount
of Capital Expenditures that the Borrower and its Subsidiaries are permitted to
make during any Fiscal Year to $10,000,000.
(3) The Lender Parties have indicated their willingness to grant the
Borrower's requests and to agree to the other amendments set forth herein, all
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 OF CERTAIN PROVISIONS OF THE CREDIT AGREEMENT. The
Credit Agreement is, upon the occurrence of the Amendment Effective Date (as
hereinafter defined), hereby amended as follows:
(a) Section 1.01 of the credit Agreement is hereby amended to add
the following definitions in the appropriate alphabetic order:
"AMENDMENT NO. 7 EFFECTIVE DATE" means the first date on which all
of the conditions precedent to the effectiveness of Amendment No. 7 Under
the Credit Agreement are satisfied.
"BFC" means BFC Acquisition Corp., a California corporation.
"▇▇▇▇▇▇▇ AGREEMENTS" means (a) the Asset Purchase Agreement dated as
of September 23, 2002 among the Borrower and the ▇▇▇▇▇▇▇ Entities and (b)
the Tolling Agreement contemplated in the Asset Purchase Agreement, among
the Borrower and the ▇▇▇▇▇▇▇ Entities, in each case, as such agreements
may be amended, supplemented or otherwise modified hereafter from time to
time in accordance with the terms thereof, but solely to the extent not
prohibited under the terms of the Loan Documents.
"▇▇▇▇▇▇▇ ENTITIES" means ▇▇▇▇▇▇▇, BFC and Vigoro.
"▇▇▇▇▇▇▇ TRANSACTION" means that series of transactions between the
Borrower and the ▇▇▇▇▇▇▇ Entities contemplated in the ▇▇▇▇▇▇▇ Agreements.
"VIGORO" means Vigoro Acquisition Corp., a Delaware corporation.
(b) Section 5.02(d) of the Credit Agreement is hereby amended by (i)
removing the word "and" at the end of subsection (ix)(D), (ii) deleting
the punctuation "." at the end of subsection (x) and substituting
therefor the phrase "; and", and (iii) adding immediately after
subsection (x), a new subsection (xi) to read as follows:
"(xi) simultaneous with the consummation of the ▇▇▇▇▇▇▇
Transaction and as partial consideration for the assets to be
acquired by the Borrower or its designee in the ▇▇▇▇▇▇▇ Transaction,
the Borrower or its designee may transfer the ▇▇▇▇▇▇▇ Notes to any
of the ▇▇▇▇▇▇▇ Entities".
(c) Section 5.02(e) of the Credit Agreement is hereby amended by (i)
removing the word "and" at the end of subsection (x)(4), (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:
"(xi) Investments made pursuant to the ▇▇▇▇▇▇▇ Transaction."
(d) Section 5.02(g) of the Credit Agreement is hereby amended by
deleting therefrom the figure "$8,500,000" and substituting therefor the
figure "$10,000,000" in each place where such figure appears.
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SECTION 2. ACKNOWLEDGEMENT AND AGREEMENT OF THE PARTIES. The parties
hereto acknowledge and agree that all Capital Expenditures made in connection
with the ▇▇▇▇▇▇▇ Transaction shall be excluded from any and all calculations
made under Section 5.02(g) of the Credit Agreement.
SECTION 3. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT.
This Amendment shall become effective as of the first date on which the
Administrative Agent shall have received counterparts of this Amendment executed
by the Borrower and the Required Lenders or, as to any of the Lender Parties,
advice satisfactory to the Administrative Agent that such Lender Party has
executed this Amendment. Section 1(d) of this Amendment shall become effective
on the later of the Amendment Effective Date (as defined below) and January 1,
2003. Section 1(a), (b) and (c) 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:
(a) The Administrative Agent shall have received (i) the Consent
attached hereto executed by the Borrower and UIC Holdings, L.L.C. and
(ii) certified copies of the ▇▇▇▇▇▇▇ Agreements, in sufficient copies for
each Lender and which in each case shall be in form and substance
reasonably satisfactory to the Administrative Agent.
(b) The ▇▇▇▇▇▇▇ Transaction shall have been consummated in
compliance with all applicable laws, rules and regulations.
(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
this Amendment, the ▇▇▇▇▇▇▇ Transaction or any of the other transactions
contemplated hereby or thereby shall have been obtained (without the
imposition of any conditions that are not reasonably acceptable to the
Required Lenders) and shall remain in full force and effect; and no law,
rule or regulation shall be applicable in the reasonable judgment of the
Required Lenders that restrains, prevents or imposes materially adverse
conditions upon this Amendment, the ▇▇▇▇▇▇▇ Transaction or any of the
other transactions contemplated hereby or thereby.
(d) The representations and warranties contained in each of the Loan
Documents shall be correct in all material respects on and as of the
Amendment Effective Date, after giving effect to this Amendment, as
though made on and as of such date (except (i) for any such
representation and warranty that, by its terms, refers to a specific date
other than the Amendment Effective Date, in which case as of such
specific date, and (ii) that the financial statements of the Borrower
referred to in Sections 4.01(f) and 4.01(g) of the Credit Agreement shall
be deemed to refer to the financial statements of the Borrower comprising
part of the Required Financial Information most recently delivered to the
Administrative Agent and the Lender Parties pursuant to Sections 5.03(c)
and 5.03(d), respectively, on or prior to the Amendment Effective Date).
(e) No event shall have occurred and be continuing or shall result
from the effectiveness of this Amendment that constitutes a Default.
(f) The Borrower shall have paid to the Administrative Agent, for
the account of each of the Lenders that has executed and delivered a
counterpart of this Amendment to the Administrative Agent prior to 5:00pm
(New York City time) on September 30, 2002 an amendment fee of 0.05% on
the aggregate Commitments of such Lender in effect immediately prior to
the Amendment Effective Date, it being understood, that no amendment fee
shall be payable by the Borrower for the account of any Lender if this
Amendment has not been approved prior to 5:00pm (New York City time) on
September 30, 2002 by the Required Lenders.
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(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) The Administrative Agent shall have received on or before the
Amendment Effective Date the following, each dated such date (unless
otherwise specified), in form and substance satisfactory to the
Administrative Agent and in sufficient copies for each Lender party:
(i) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Amendment and of all
documents evidencing other necessary corporate action and
governmental and other third party approvals and consents, if any,
with respect to this Amendment.
(ii) A certificate of the Secretary or an Assistant Secretary
of the Borrower certifying the names and true signatures of the
officers of the Borrower authorized to sign this Amendment and the
other documents to be delivered hereunder.
(iii) Certificates representing all of the Equity Interests in
Sylorr Plant Corporation, a Delaware corporation and a wholly-owned
Subsidiary of the Borrower ("SYLORR"), accompanied by undated stock
powers or other appropriate powers, duly executed in blank.
(iv) A Security Agreement Supplement duly executed by Sylorr,
together with:
(A) 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 Sylorr, in each case completed
in a manner satisfactory to the Administrative Agent;
(B) 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 Sylorr, in
each case, completed in a manner reasonably satisfactory to the
Administrative Agent;
(C) completed requests for information, dated reasonably
near the Amendment Effective Date, listing all effective
financing statements filed in the jurisdictions referred to in
subclause (iv)(B) of this Section 3(g) that named Sylorr as
debtor, together with copies of such other financing
statements;
(D) IP Security Agreements--Short Form, covering all of
the Copyrights, Patents and Trademarks of Sylorr, in each case
completed in a manner satisfactory to the Administrative Agent
and duly executed by Sylorr;
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(E) a consent, in form and substance reasonably
satisfactory to the Administrative Agent, to the collateral
assignment of the Asset Purchase Agreement and the rights and
interest of Sylorr and the Borrower thereunder to the
Administrative Agent, duly executed by each party to such Asset
Purchase Agreement other than the Borrower and Sylorr;
(F) 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.
(v) A favorable opinion of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇, counsel for the
Borrower, in form and substance reasonably satisfactory to the
Administrative Agent.
(vi) A Subsidiaries Guarantee, duly executed by Sylorr.
(vii) Such other mortgages, security agreements or pledge
agreements (or other similar documents), in each case in form and
substance reasonably satisfactory to the Administrative Agent, in
each case, duly executed by Sylorr.
(viii) Such financial, business and other information regarding
the Borrower and its property, assets and businesses as the
Administrative Agent or the Lender Parties shall have requested.
(ix) 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.
SECTION 4. CONDITIONS SUBSEQUENT TO AMENDMENT EFFECTIVE DATE. This
Amendment shall cease to be effective if within 30 days after the Amendment
Effective Date, the Borrower has failed to deliver the following documents
related to the ▇▇▇▇▇▇▇, Ohio plant acquired by the Borrower in connection with
the ▇▇▇▇▇▇▇ Transaction:
(i) Evidence of the recordation in the appropriate recording office
of a counterpart of a mortgage in form and substance reasonably
satisfactory to the Administrative Agent (the "MORTGAGE") duly executed
by the Borrower or Sylorr, as appropriate and the payment of all
applicable recording fees thereon.
(ii) A fully paid American Land Title Association Lender's Extended
Coverage title insurance policy insuring the Mortgage (the "MORTGAGE
POLICY") in form and substance reasonably satisfactory to the
Administrative Agent, with endorsements and in an amount acceptable to
the Administrative Agent, issued and reinsured by title insurers
reasonably acceptable to the Administrative Agent insuring the Mortgage
to be a valid first and subsisting Lien on the real property described
therein, free and clear of all defects (including, but not limited to,
mechanics' and materialmen's Liens) and encumbrances, excepting only
Permitted Liens, and providing for such other affirmative
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insurance (including endorsements for mechanics' and materialmen's Liens)
and direct access reinsurance as the Administrative Agent may reasonably
deem necessary or desirable.
(iii) An American Land Title Association/American Congress on
Surveying and Mapping form survey for which all necessary fees have been
paid, dated no more than 30 days before the date of delivery to the
Administrative Agent, certified to the Administrative Agent and the
issuer of the Mortgage Policy in a manner reasonably satisfactory to the
Administrative Agent, by a land surveyor duly registered and licensed in
Ohio.
(iv) A favorable opinion of local counsel with respect to the
enforceability and perfection of the Mortgage and otherwise in form and
substance reasonably satisfactory to the Administrative Agent.
(v) All other documents or instruments reasonably requested by the
Administrative Agent in connection with the Mortgage or the appropriate
filing thereof.
(vi) The payment of all fees, costs and expenses, including, without
limitation, filing fees, taxes and other amounts incurred in connection
with the preparation, execution, delivery and filing of the Mortgage and
related documents.
SECTION 5. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) On and
after the Amendment Effective Date, each reference in the Credit Agreement to
"THIS AGREEMENT", "HEREUNDER", "HEREOF" or words of like import referring to the
Credit Agreement, and each reference in the Notes and each of the other Loan
Documents to "THE CREDIT AGREEMENT", "THEREUNDER", "THEREOF" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement, as amended and otherwise modified by this Amendment.
(b) The Credit Agreement, the Notes and each of the other Loan Documents,
as amended and otherwise modified by the amendments and modifications
specifically provided above in Sections 1 and 2, 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 6. 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 7. 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.
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SECTION 8. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers, thereunto duly authorized, as of the date
first written above.
THE BORROWER
UNITED INDUSTRIES CORPORATION
By
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Name:
Title:
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BANK OF AMERICA, N.A.,
as Administrative Agent
By
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Name:
Title:
BANK OF AMERICA, N.A.,
as Lender, Issuing Bank and
Swing Line Bank
By
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Name:
Title:
[Type or print name of Lender]
By
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Name:
Title:
CONSENT
Reference is made to (a) Amendment No. 7 Under the Credit Agreement dated
as of September 30, 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 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
dated as of May 9, 2002 and Amendment No. 6 Under the Credit Agreement dated as
of June 14, 2002 the "CREDIT AGREEMENT") among United Industries Corporation, a
Delaware corporation (the "BORROWER"), certain banks, financial institutions and
other institutional lenders party thereto (the "LENDER PARTIES"), 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 ▇▇▇▇▇▇▇▇▇▇ Securities LLC) ("BAS") and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ 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 Effective Date, except that, on and after the Amendment
Effective Date, each reference to "THE CREDIT AGREEMENT", "THEREUNDER",
"THEREOF", "THEREIN" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Credit Agreement, as
amended and otherwise modified by the Amendment; and
(B) as of the Amendment Effective Date, the Security Agreement the
Copyright Security Agreement--Short Form, the Trademark Security
Agreement--Short Form and the Patent Security Agreement--Short Form to
which it is a party and all of the Collateral of such Person described
therein do, and shall continue to, secure the payment of all of the
Secured Obligations.
This Consent shall be governed by, and construed in accordance with,
the laws of the State of New York.
Delivery of an executed counterpart of a signature page of this
Consent by telecopier shall be effective as the delivery of a manually
executed counterpart of this Consent.
UNITED INDUSTRIES CORPORATION
By
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Name:
Title:
UIC HOLDINGS, L.L.C.
By ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund IV, L.P.,
as Manager
By ▇▇▇▇▇▇ ▇. ▇▇▇ Company
its general partner
By
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Name:
Title: