Exhibit 2.1
EXECUTION COPY
TENTH AMENDMENT AND LIMITED WAIVER
TENTH AMENDMENT AND LIMITED WAIVER, dated as of June 21, 2002 (this
"Tenth Amendment"), to the Amended and Restated Credit Agreement, dated as of
June 13, 2000 (as amended, restated or otherwise modified from time to time, the
"Credit Agreement"), among WEIGH-TRONIX, LLC ("Holdings"), SWT FINANCE B.V. (the
"Borrower"), WEIGH-TRONIX CANADA, ULC ("Weigh-Tronix Canada", and collectively
with the Borrower, the "Borrowers"), the several banks and other financial
institutions or entities from time to time parties thereto (the "Lenders"),
FLEET NATIONAL BANK, as administrative agent (in such capacity, the
"Administrative Agent"), and FLEET NATIONAL BANK, as security agent (in such
capacity, the "Security Agent").
W I T N E S S E T H:
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WHEREAS, pursuant to the Credit Agreement, the Lenders have made
certain Loans and other financial accommodations to the Borrowers which remain
outstanding; and
WHEREAS, Holdings and the Borrowers have requested that the
Administrative Agent and the Lenders amend the Credit Agreement as set forth
herein, and waive certain events of default under the Credit Agreement, and the
Administrative Agent and the Lenders are willing to do so, but only on the terms
and conditions set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 General. Terms defined in the Credit Agreement and used herein
shall, unless otherwise indicated, have the meanings given to them in the Credit
Agreement. Terms defined and used in this Tenth Amendment shall have the
meanings given to them in this Tenth Amendment.
Section 1.2 Amendments to Definitions. Section 1.1 of the Credit Agreement
is hereby amended by inserting the following new definitions in alphabetical
order.
"Tenth Amendment" means the Tenth Amendment and Limited Waiver to the
Credit Agreement, dated as of June 21, 2002.
"Tenth Amendment Effective Date" has the meaning specified in Article V of
the Tenth Amendment.
"Tenth Amendment Specified Events of Default" has the meaning specified in
Article II of the Tenth Amendment.
"Tenth Amendment Waiver Period" means the period from and including June
21, 2002 through and including July 19, 2002.
ARTICLE II
WAIVER
Subject to the terms and conditions hereof, the Administrative Agent and
the Lenders hereby agree to waive, during the Tenth Amendment Waiver Period, (a)
any Events of Default arising through the end of the Tenth Amendment Waiver
Period in respect of (i) Section 8(c) of the Credit Agreement as a result of a
failure by the Borrowers to comply with the financial covenants contained in
Section 7.1 of the Credit Agreement and (ii) Section 8(e) of the Credit
Agreement as a result of the failure by the Borrower to make an interest payment
under the Senior Subordinated Notes (collectively, "Tenth Amendment Specified
Events of Default") and (b) the prohibition, pursuant to Section 4.2(c)(iii) of
the Fourth Amendment, on dispositions otherwise permitted under Section 7.5(g)
of the Credit Agreement, solely to permit the sale of the property located at
Xxxx 00X in the Humber Xxxxxx Xxxxxxxxxx Xxxxxx, Xxxxxx-xx-Xxxxxx, Xxxxx
Xxxxxxxxxx, Xxxxxx Xxxxxxx; provided, however, that notwithstanding the
foregoing, the provisions of this Article II shall immediately and automatically
terminate and thereafter this Article II shall have no force and effect upon the
acceleration of any amounts due or to become due under the Senior Subordinated
Notes or the Senior Subordinated Note Indenture, or upon the commencement of a
suit or other proceeding to collect any amounts due or to become due under the
Senior Subordinated Notes or the Senior Subordinated Note Indenture, or to
enforce any provision thereof.
ARTICLE III
AMENDMENTS
Section 3.1 Amendment to Section 1.1 (Defined Terms). Section 1.1 of the
Credit Agreement is hereby amended by modifying certain definitions contained
therein, as follows:
(a) by revising the definition of "Restructuring Amendment" by deleting
the word "Ninth" therein and inserting the word "Tenth" in place
thereof;
(b) by revising the definition of "Revised Loan Restructuring Date" by
deleting the word "Ninth" therein and inserting the word "Tenth" in
place thereof;
(c) by revising in the definition of "Waiver Period Revolving Credit
Loans" by deleting the word "or" immediately before the words "the
Ninth Amendment Waiver Period" and inserting a "," in place thereof,
and by inserting the words "or the Tenth Amendment Waiver Period"
immediately thereafter; and
(d) by revising in the definition of "Waiver Period Sublimit" by deleting
the words "the Seventh Amendment Waiver Period, the Eighth Amendment
Waiver Period or the Ninth Amendment Waiver Period" in both instances
where those words are used, and by inserting in place thereof in both
instances the words "the Seventh Amendment Waiver Period, the Eighth
Amendment Waiver Period, the Ninth Amendment Waiver Period or the
Tenth Amendment Waiver Period".
Section 3.2 Amendment to Section 2.6 (Change in the Borrowing Base).
Section 2.6 of the Credit Agreement is hereby amended by deleting the words "the
Seventh Amendment Waiver Period, the Eighth Amendment Waiver Period or the Ninth
Amendment Waiver Period" and inserting in place thereof the
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words "the Seventh Amendment Waiver Period, the Eighth Amendment Waiver Period,
the Ninth Amendment Waiver Period or the Tenth Amendment Waiver Period".
Section 3.3 Amendment to Section 5.2 (Conditions to Each Extension of
Credit). Section 5.2 of the Credit Agreement is hereby amended by deleting
clause (c) thereof.
ARTICLE IV
AGREEMENTS
Section 4.1 Loan Restructuring Date. On or before July 19, 2002 (the
"Revised Loan Restructuring Date"), Holdings, the Borrowers, the Administrative
Agent and the Required Lenders shall have agreed in writing to satisfactory
amendments to the Credit Agreement with respect to repayment in full of the
Loans, including but not limited to amendments to the covenants contained in
Section 7 of the Credit Agreement (the "Restructuring Amendment"). Anything in
the Credit Agreement or any other Loan Document to the contrary notwithstanding,
all terms and conditions of the Restructuring Amendment shall be satisfactory to
the Administrative Agent and the Required Lenders in their absolute and sole
discretion. In the event that Holdings, the Borrowers, the Administrative Agent
and the Required Lenders fail to consummate the Restructuring Amendment on or
before the Revised Loan Restructuring Date, then, automatically and without the
requirement of notice or further action by any party, such failure shall
immediately constitute an Event of Default. In furtherance but not in limitation
of the foregoing, the parties hereto agree that this Section 4.1 replaces in its
entirety Section 4.1 of the Ninth Amendment, and that such clause shall no
longer have any force or effect. For clarification purposes, the term "Reset
Amendment" in Section 4.2(c) of the Fourth Amendment shall have the same meaning
as the term "Restructuring Amendment".
Section 4.2 Revolving Credit Loans. Holdings and the Borrowers agree that,
notwithstanding any term or provision to the contrary set forth herein or in any
other Loan Document, the aggregate principal outstanding amount of Revolving
Credit Loans shall not exceed $37,000,000 at any time during the Tenth Amendment
Waiver Period.
Section 4.3 Application of Proceeds. Holdings and the Borrowers agree that,
with respect to the application of proceeds in accordance with Section 4.5 of
the Seventh Amendment, (a) the second clause of Section 4.5 of the Seventh
Amendment is hereby amended to insert the words ", which shall automatically
result in a permanent reduction of the Total Revolving Credit Commitments in an
amount equal to the aggregate amount of such repayments of Waiver Period
Revolving Credit Loans" at the end of such clause, (b) the third clause of
Section 4.5 of the Seventh Amendment is hereby amended to insert the words ",
which shall, in the case of repayments of Revolving Credit Loans, automatically
result in a permanent reduction of the Total Revolving Credit Commitments in an
amount equal to the aggregate amount of such repayments of Revolving Credit
Loans" at the end of such clause, (c) the fourth clause of Section 4.5 of the
Seventh Amendment is hereby amended to insert the words ", which shall, in the
case of prepayments of Revolving Credit Loans, automatically result in a
permanent reduction of the Total Revolving Credit Commitments in an amount equal
to the aggregate amount of such prepayments of Revolving Credit Loans" at the
end of such clause, and (d) the following sentence is hereby inserted at the end
of Section 4.5 of the Seventh Amendment: "For the avoidance of doubt, (x)
reductions of Revolving Credit Commitments made pursuant to the terms of this
Section shall not be subject to the limitations on amounts of (or multiples of
amounts of) reductions set forth in the last sentence of Section 2.12 of the
Credit Agreement and (y) optional prepayments of Revolving Credit Loans made
pursuant to Section 2.13 of the Credit Agreement shall not result in a reduction
of the Total Revolving Credit Commitments."
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Section 4.4 Further Assurances. In connection with the Administrative
Agent's review of the Collateral and the Collateral Certificate provided by
Holdings and the Borrowers, the Borrowers and the other Loan Parties shall
execute, within three Business Days of receipt thereof, such further instruments
and documents as the Administrative Agent shall reasonably request in order to
further perfect and secure the Administrative Agent's Liens on the Collateral,
including but not limited to account control agreements, the issuance of
promissory notes in respect of intercompany debt, and other instruments and
documents necessary to enable the Administrative Agent to obtain "control" (as
defined in the applicable Uniform Commercial Code) of such Collateral, including
but not limited to Collateral in the form of deposit accounts.
ARTICLE V
EFFECTIVE DATE
This Tenth Amendment shall become effective as of the date first written
above (the "Tenth Amendment Effective Date") when each of the following has been
satisfied or waived in accordance with the terms hereof:
(a) Receipt by the Administrative Agent of counterparts of this Tenth
Amendment, duly executed and delivered by Holdings, the Borrowers and
the other Loan Parties;
(b) receipt by the Administrative Agent of executed Consent Letters (in
the form attached hereto as Annex A) from the Required Lenders (or
facsimile transmissions thereof) consenting to the execution of this
Tenth Amendment by the Administrative Agent;
(c) receipt by the Administrative Agent of Acknowledgement and Consents in
the form attached hereto as Annex B, duly executed and delivered from
each Guarantor;
(d) receipt by the Administrative Agent of counterparts of the fifth
amendment to Sponsor Guarantee, duly executed and delivered by the
Sponsors, in the form attached hereto as Annex C; and
(e) receipt by the Administrative Agent of payment in full in cash of its
invoiced and unpaid fees and disbursements incurred in connection with
the preparation and execution of this Tenth Amendment and Waiver, any
documents prepared in connection herewith, the Credit Agreement and
any amendments or other modifications thereto, including, without
limitation, the reasonable fees and disbursements of the
Administrative Agent's counsel and financial advisor.
ARTICLE VI
INTERPRETATION
Section 6.1 Continuing Effect of the Credit Agreement. Holdings, Borrower,
the other Loan Parties, the Administrative Agent and the Lender hereby
acknowledge and agree that the Credit Agreement and the other Loan Documents
shall continue to be and shall remain unchanged and in full force and effect in
accordance with their terms, except as expressly modified hereby. Any terms or
conditions contained in this Tenth Amendment shall control over any inconsistent
terms or conditions in the Credit Agreement or the other Loan Documents.
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Section 6.2 No Waiver; Other Defaults or Events of Default. Nothing
contained in this Tenth Amendment shall be construed or interpreted or is
intended as a waiver of or limitation on any rights, powers, privileges or
remedies that the Administrative Agent or the Lenders have or may have under the
Credit Agreement or any other Loan Document or applicable law on account of any
Default or Event of Default other than the Tenth Amendment Specified Events of
Default.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Representations and Warranties. Holdings and the Borrowers
hereby represent and warrant as of the date hereof that, after giving effect to
this Tenth Amendment, (a) no Default or Event of Default has occurred and is
continuing, except the Tenth Amendment Specified Events of Default, and (b) all
representations and warranties of Holdings and the Borrowers contained in the
Loan Documents (with such term being deemed to include this Tenth Amendment and
the Credit Agreement) are true and correct in all material respects with the
same effect as if made on and as of such date, except (i) to the extent any of
such representations and warranties relate to a specific date, in which case
such representations and warranties shall be deemed true and correct on and as
of such date, (ii) that Section 4.7 of the Credit Agreement shall be deemed to
exclude the Tenth Amendment Specified Events of Default, and (iii) that the
representation in Section 4.2 of the Credit Agreement is qualified to the extent
that Holdings and its Subsidiaries have experienced a material and continuing
downturn in the level of business of their North American operations.
Section 7.2 Reaffirmation of Covenants. Holdings and the Borrowers hereby
expressly reaffirm each of the covenants made by them in Section 6 of the Credit
Agreement, including without limitation, the covenants contained in Section 6.9
(Additional Collateral, etc.) and Section 6.10 (Further Assurances).
Section 7.3 Release. Holdings, the Borrowers and the other Loan Parties
hereby release, waive, and forever relinquish all claims, demands, obligations,
liabilities and causes of action of whatever kind or nature, whether known or
unknown, which any of them have, may have, or might assert at the time of
execution of this Tenth Amendment or in the future against the Administrative
Agent, the Lenders and/or their respective parents, affiliates, participants,
officers, directors, employees, agents, attorneys, accountants, consultants,
successors and assigns, directly or indirectly, which occurred, existed, was
taken, permitted or begun from the beginning of time through the date hereof,
arising out of, based upon, or in any manner connected with (i) any transaction,
event, circumstance, action, failure to act or occurrence of any sort or type,
whether known or unknown, with respect to the Credit Agreement, any other Loan
Document and/or the administration thereof or the Obligations created thereby,
(ii) any discussions, commitments, negotiations, conversations or communications
with respect to the refinancing, restructuring or collection of any Obligations
related to the Credit Agreement, any other Loan Document and/or the
administration thereof or the Obligations created thereby, or (iii) any matter
related to the foregoing.
Section 7.4 Consents of Guarantors. Each Domestic Guarantor and each
Foreign Guarantor hereby, to the extent necessary, (i) consents to the
transactions contemplated hereby and (ii) acknowledges and agrees that the
guarantees (and all security therefor) contained in the Guarantee and Collateral
Agreement or Foreign Guarantee, as applicable, previously executed by it is, and
shall remain, in full force and effect after giving effect to this Tenth
Amendment and all other prior modifications to the Credit Agreement.
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Section 7.5 Payment of Expenses. Holdings and the Borrowers jointly and
severally agree to pay or reimburse the Administrative Agent for all of their
out-of-pocket costs and expenses incurred in connection with this Tenth
Amendment, any other documents prepared in connection herewith and the
transactions contemplated hereby, including, without limitation, the reasonable
fees and disbursements of the Administrative Agent's counsel and financial
advisor.
Section 7.6 Reference to and Effect on the Loan Documents; Limited Effect.
On and after the date hereof and the satisfaction of the conditions contained in
Article V of this Tenth Amendment, 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 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 hereby. For purposes of the Credit Agreement, all of the agreements of
Holdings and the Borrowers contained in this Tenth Amendment shall be deemed to
be, and shall be, agreements under the Credit Agreement. The execution, delivery
and effectiveness of this Tenth Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of any Lender
or any Agent under any of the Loan Documents, nor constitute a waiver of any
provisions of any of the Loan Documents. Except as expressly amended or waived
herein, all of the provisions and covenants of the Credit Agreement and the
other Loan Documents are and shall continue to remain in full force and effect
in accordance with the terms thereof and are hereby in all respects ratified and
confirmed.
Section 7.7 Reservation of Rights. Notwithstanding anything contained in
this Tenth Amendment to the contrary, Holdings and the Borrowers and each Loan
Party acknowledge that the Administrative Agent and the Lenders do not waive,
and expressly reserve, the right to exercise any and all of their rights and
remedies under (a) the Credit Agreement, any other Loan Document and applicable
law in respect of the Tenth Amendment Specified Event of Default against any
Person other than Holdings, the Borrowers or any Loan Party, including such
rights and remedies as are set forth in the Sponsor Guarantee, and (b) the
Credit Agreement, any other Loan Document and applicable law in respect of any
Default or Event of Default other than the Tenth Amendment Specified Event of
Default.
Section 7.8 Counterparts. This Tenth Amendment may be executed by one or
more of the parties hereto in any number of separate counterparts (which may
include counterparts delivered by facsimile transmission) and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. Any executed counterpart delivered by facsimile transmission shall
be effective for all purposes hereof.
Section 7.9 GOVERNING LAW. THIS TENTH AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS TENTH AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Tenth Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the date first written above.
WEIGH-TRONIX, LLC
By: /s/ X.X. Xxxxxxx
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Name: X.X. Xxxxxxx
Title: Chief Financial Officer
SWT FINANCE B.V.
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Director
WEIGH-TRONIX CANADA, ULC
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Director
FLEET NATIONAL BANK,
as Administrative Agent,
as Security Agent and as Fronting Lender
By: /s/ Xxxxx X'Xxxxx
--------------------------------
Name: Xxxxx X'Xxxxx
Title:
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