EXHIBIT 10.20
THIRD AMENDMENT
THIRD AMENDMENT, dated as of June 29, 2001 (this "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, a Delaware limited liability company ("Holdings"), SWT
FINANCE B.V., a limited liability company organized under the laws of the
Netherlands (the "Borrower"), WEIGH-TRONIX CANADA, ULC, a company incorporated
under the laws of Nova Scotia (the "Canadian Borrower", and collectively with
the Borrower, the "Borrowers"), the several banks and other financial
institutions or entities from time to time parties thereto (the "Lenders"),
BROTHERS INC., as sole advisor, XXXXXX BROTHERS INC. and FLEETBOSTON XXXXXXXXX
XXXXXXXX INC., as co-arrangers and co-book managers in such capacity, the
"Arrangers"), XXXXXX COMMERCIAL PAPER INC., as syndication agent (in such
capacity, the "Syndication Agent"), 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:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Borrowers; and
WHEREAS, Holdings and the Borrowers have requested, and, upon this
Amendment becoming effective, the Lenders have agreed, that certain provisions
of the Credit Agreement be amended in the manner provided for in this Amendment
for the purpose of clarifying or confirming the interpretation of certain
definitions relating to the various negative covenants set forth in Section 7 of
the Credit Agreement and modifying the terms of one such negative covenant.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms.
a) 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 Amendment shall have the meanings
given to them in this Amendment.
(b) Amendment to Definitions. Section 1.1 of the Credit Agreement is
hereby amended by modifying certain existing definitions contained therein, as
follows:
(i) by amending and restating the second proviso of the definition
of "Consolidated EBITDA" appearing in the last six lines of such definition, so
that such second proviso shall read as follows:
"provided, further, that for purposes of computing the
Consolidated Senior Leverage Ratio, Consolidated Leverage Ratio,
Consolidated Fixed Charge
Coverage Ratio and Consolidated Interest Coverage Ratio as at
September 30, 2000, December 31, 2000, March 31, 2001, June 30,
2001, September 30, 2001, December 31, 2001, March 31, 2002 and
June 30, 2002, there shall be added to the calculation of
Consolidated EBITDA for the actual or annualized four-quarter
period measured as of each such date the amount of $8,000,000,
$8,000,000, $8,000,000, $7,000,000, $6,000,000, $4,000,000,
$2,000,000 and $1,000,000, respectively."
(ii) by amending and restating in its entirety the definition
of "Consolidated Interest Expense", so that such definition shall read as
follows:
" `Consolidated Interest Expense': Of any Person for any period,
total interest expense (including that attributable to Capital
Lease Obligations) of such Person and its Subsidiaries for such
period with respect to all outstanding Indebtedness of such
Person and its Subsidiaries (including, without limitation, all
commissions, discounts and other fees and charges owed by such
Person with respect to letters of credit and bankers' acceptance
financing and net costs of such Person under Hedge Agreements in
respect of interest rates to the extent such net costs are
applicable to such period in accordance with GAAP) and including
commitment fees, agency fees, facility fees, balance deficiency
fees and similar fees or expenses in connection with the
borrowing of money (but excluding the amortization of deferred
financing fees to the extent that such amortization is otherwise
included within interest expense in accordance with GAAP and
excluding any fees paid pursuant to Section 2.11(e) or (f)),
plus, in any event, any cash dividends paid during such period
with respect to the cash PIK Preferred Stock, provided that for
the purposes of calculating Consolidated Interest Expense of
Holdings and its Subsidiaries for any period, Consolidated
Interest Expense in respect of the principal amount of
Indebtedness repaid with the proceeds of the Disposition of any
Person disposed of by Holdings or its Subsidiaries during such
period shall be excluded for such period (assuming the
consummation of such Disposition occurred on the first day of
such period)."
(iii) by inserting in the definition of "Consolidated Tangible Net
Worth" in the third line after the word "date" the following parenthetical
clause:
"(but including, for purposes of calculating Consolidated
Tangible Net Worth and without reference to the treatment of
such items under GAAP, (i) the stated liquidation amount of all
outstanding PIK Preferred Stock, and (ii) members' interests in
Holdings which are subject to "put" options or similar rights
requiring redemption or repurchase by Holdings of such interests
at the election of members, so long as such rights have not been
exercised as of the date of such calculation),"
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(iv) by modifying clauses (f) and (g) in the definition of
"Indebtedness", so that such clauses, as restated in their entirety, shall read
as follows:
"(f) all obligations of such Person as an account party or
applicant for amounts drawn and outstanding under acceptance,
letter of credit or similar facilities, (g) all obligations of
such Person (to the extent fixed and without further
contingencies) to purchase, redeem, retire or otherwise acquire
for value any Capital Stock of such Person,"; and
(v) by inserting the definition of "Net Cash Proceeds" in the
ninth line after the phrase "(other than any Lien pursuant to a Security
Document)" the following:
", amounts applied to the repayment of Indebtedness permitted
under Section 7.2(b) (but only in connection with the sales of
Berkel USA, Inc., Berkel, Inc. and Xxxxxx Housewares, Inc.)
which repayment amounts shall not exceed the Borrowing Base
attributable to said Asset Sales"
(vi) by inserting in the definition of "Obligations" in the eleventh
line after the phrase "Letter of Credit" the following:
"(to the extent any draw(s) thereunder are made and remain
outstanding)".
2. Amendment to Section 2.14(b) (Mandatory Prepayment and Commitment
Reductions). Section 2.14(b)of the Credit Agreement is hereby amended by
deleting the period at the end thereof and substituting a semi-colon therefore
and adding a new clause as follows:
"and provided further, that any proceeds in the form of cash or
Cash Equivalents (including any such proceeds received by way of
deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise,
but only as and when received) received in connection with such
Asset Sale, Purchase Price Refund or Recovery Event and applied
to the repayment of Indebtedness permitted under Section 7.2(b)
shall contemporaneously on such date be applied first to prepay
the Revolving Credit Loans (subject to reborrowing in accordance
with the terms and conditions hereof) and second to prepay the
Term Loans."
3. Amendment to Section 6.2 (Certificates; Other Information). Section
6.2 of the Credit Agreement is hereby amended by deleting Section 6.2(c) in its
entirety and substituting the following paragraph (c) in lieu thereof,
relettering the existing paragraph (h) as paragraph (k) and inserting new
paragraphs (h), (i) and (j) all as follows:
"(c) as soon as available, and in any event no later than the
end of each fiscal year of Holdings, a detailed consolidated and
consolidating budget for the following fiscal year (broken down on a
consolidated basis by month) (including a projected consolidated and
consolidating balance sheet of Holdings and its Subsidiaries as of
the end of each monthly period for said fiscal year, and the
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related consolidated and consolidating statements of projected cash
flow, projected changes in financial position, projected income,
projected quarterly calculations for purposes of compliance with the
Financial Condition Covenants contained in Section 7.1, and
projected Borrowing Base and projected borrowing availability under
the Revolving Credit Commitments), and, as soon as available,
significant revisions, if any, of budget and projections with
respect to such fiscal year (collectively, the "Projections"), which
Projections shall (i) be updated within 30 days after the end of
each fiscal quarter (with such updated Projections broken down on a
consolidated basis by quarter), with the first such updated
Projections to (a) include the fiscal quarter ended June 30, 2001
and (b) be delivered on or before July 31, 2001 and (ii) in each
case be accompanied by a certificate of a Responsible Officer
stating that such Projections are based on reasonable estimates,
information and assumptions and that such Responsible Officer has no
reason to believe that such Projections are incorrect or misleading
in any material respect;
(h) within 20 days after the end of each calendar month, a
monthly written or oral progress report, with the first such report
to be delivered on or before July 20, 2001 which reports shall (i)
provide updates regarding (x) marketing and sales efforts in
connection with the sale of Berkel, Inc., Xxxxxx Housewares, Inc.
and any Property listed on Schedule 2.14(b), including projected and
anticipated amounts of gross and net proceeds with respect to such
sales, (y) ongoing integration and synergy realization efforts with
respect to Holdings' acquisitions and (z) any significant changes to
the consolidated business or financial condition of Holdings, (ii)
be in form reasonably satisfactory to the Administrative Agent and,
(iii) if such report is oral, be presented to the Lenders during
normal business hours and scheduled with the Administrative Agent no
later than five Business Days in advance of such presentation;
(i) within 20 days after the end of each calendar month, a
thirteen-week rolling cash flow forecast (the "Cash Flow Forecast"),
with the first such Cash Flow Forecast to be delivered on or before
July 20, 2001, which Cash Flow Forecasts shall detail all sources
and uses of cash of Holdings and the Borrowers on a weekly basis and
shall report any variances from the prior Cash Flow Forecast. The
Cash Flow Forecasts shall be in form reasonably satisfactory to the
Administrative Agent;
(j) as soon as available, and in any event no later than five
business days after the receipt by Holdings or its Subsidiaries of
any cash, Cash Equivalents or Net Cash Proceeds from Any Asset Sale
or Recovery Event, a report, in form reasonably satisfactory to the
Administrative Agent and accompanied by a certificate of a
Responsible Officer stating that such report is accurate in all
material respects, setting forth (i) the amount of any cash or Cash
Equivalent applied to the repayment of Indebtedness permitted under
Section 7.2(b) and (ii) the Borrowing Base attributable to said
Asset Sale or Recovery Event; and
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4. Amendment to Section 7.5 (Limitation on Disposition of Property).
Section 7.5 of the Credit Agreement is hereby amended by inserting in Section
7.5(f) after the phrase "(as a stock sale or asset sale) of" the words "Berkel
USA, Inc.,".
5. Amendment to Section 7.6 (Limitation on Restricted Payments).
Section 7.6 of the Credit Agreement is hereby amended by inserting a new Section
7.6(i), as follows:
"(i) Xxxxx India Limited, being a Foreign Subsidiary, may make
Restricted Payments in the form of cash dividends payable on its
capital stock held by Persons other than Holdings and its
Subsidiaries, provided that cash dividends on the stock of Xxxxx
India Limited held by Holdings and its Subsidiaries are also
concurrently paid at the same rate or on the same basis."
6. Conditions to Effectiveness. The amendments provided for herein
shall become effective on the date the Administrative Agent shall have received
(i) an executed counterpart of this Amendment from Holdings and the Borrowers,
(ii) 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 Amendment by the Administrative Agent, (iii) Acknowledgement
and Consents in the form attached hereto as Annex B, duly executed and delivered
from each Guarantor, (iv) certified Projections for the fiscal year ended March
31, 2001 and (v) written evidence, in form reasonably satisfactory to the
Administrative Agent, of (a) the amount of the gross proceeds anticipated from
the upcoming sale of the Intec Property at Tame Bridge, Walsall, which is part
of title number WM 719011, and the Sertec Property at Tame Bridge, Walsall,
which is the whole of title number WM 719010 and (b) the aggregate amount of
Dispositions for the current fiscal year of Holdings other than those permitted
under clauses 7.5(a) though 7.5(f) of the Credit Agreement; provided, however,
that upon the effectiveness of this Amendment, all of the amendments to the
Credit Agreement provided for herein shall be deemed to be effective as of the
Closing Date. The execution and delivery of this Amendment by any Lender shall
be binding upon each of its successors and assigns (including Transferees of its
Commitments and Loans in whole or in part prior to the effectiveness hereof) and
binding in respect of all of its Commitments and Loans, including any acquired
subsequent to its execution and delivery hereof and prior to the effectiveness
hereof.
7. Representations and Warranties. Holdings and the Borrowers, as of
the date hereof and after giving effect to the amendments contained herein,
hereby confirm, reaffirm and restate the representations and warranties made by
them in Section 4 of the Credit Agreement, except 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, and except for recent changes in the financial condition and results
of operations of Holdings and its Subsidiaries, as reflected in financial
information which has been furnished to each Agent and each Lender; provided
that each reference to the Credit Agreement therein shall be deemed to be a
reference to the Credit Agreement after giving effect to this Amendment.
8. Valuation Advisor. Holdings and the Borrowers jointly and severally
agree that in the event that the Administrative Agent determines to undertake an
independent valuation of the consolidated enterprise value of Holdings and its
Subsidiaries, which undertaking may be done or updated from time to time,
Holdings and the Borrowers shall cooperate in all respects
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with any such valuation advisor selected by the Administrative Agent and shall
pay or reimburse the Administrative Agent for all reasonable fees and
out-of-pocket expenses incurred in connection therewith; provided, however, that
the Administrative Agent may determine, in its sole and absolute discretion, as
an alternative to the Administrative Agent's retention of its own valuation
advisor, to utilize any separate written appraisal or valuation report prepared
for Holdings by an independent valuation advisor, which appraisal or report
shall expressly state that the Administrative Agent and the Lenders may rely
thereon. Holdings and the Borrowers jointly and severally further agree to
furnish the Administrative Agent with any written appraisal or valuation report
received by Holding or the Borrowers with respect to the consolidated enterprise
value of Holdings and its Subsidiaries, as soon as available and in any event
within five business days of receipt by Holdings or Borrowers.
9. Payment of Expenses. Holdings and the Borrowers jointly and
severally agree to pay or reimburse the Agents for all of their out-of-pocket
costs and expenses incurred in connection with this Amendment, any other
documents prepared in connection herewith and the transactions contemplated
hereby, including, without limitation, the reasonable fees and disbursements of
counsel to the Agents. In furtherance of the provisions of this Section 8 and
Section 10.5 of the Credit Agreement, Holdings and the Borrowers jointly and
severally agree to reimburse the Agents for all such costs, fees and expenses
within 20 days of receipt of a written invoice for payment of the same.
10. Report on Dispositions. Holdings and the Borrowers jointly and
severally agree to furnish to the Administrative Agent as soon as available, and
in any event no later than five Business Days after the effective date of this
Amendment, written evidence, in form reasonably satisfactory to the
Administrative Agent, of the amount of gross and net proceeds of all asset
Dispositions from February 15, 2001 (the date of the Second Amendment to the
Credit Agreement) to the date hereof, which evidence shall set forth on an
itemized basis all expenditures from gross proceeds in excess of $25,000.
11. Affirmative 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).
12. Reference to and Effect on the Loan Documents; Limited Effect. On
and after the date hereof and the satisfaction of the conditions contained in
paragraph 3 of this 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 Amendment shall be deemed to be,
and shall be, agreements under the Credit Agreement. 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 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
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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.
13. Counterparts. This 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.
14. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE INTERNAL LAWS (and not the law of conflicts) OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
WEIGH-TRONIX, LLC
By: /s/ Xxxxxx X. XxxXxxxxx
-----------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Vice President and Chief Financial
Officer
SWT FINANCE B.V.
By: /s/ Xxxxxx X. XxxXxxxxx
-----------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Vice President and Chief Financial
Officer
WEIGH-TRONIX CANADA, ULC
By: /s/ Xxxxxx X. XxxXxxxxx
-----------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Xxxxxx X. XxxXxxxxx
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XXXXXX BROTHERS INC.,
as sole advisor
By: /s/ G. Xxxxxx Xxxxx
-------------------
Name: G. Xxxxxx Xxxxx
Title: Senior Vice President
XXXXXX COMMERCIAL PAPER INC.,
as Syndication Agent
By: /s/ G. Xxxxxx Xxxxx
-------------------
Name: G. Xxxxxx Xxxxx
Title: Authorized Signatory
FLEET NATIONAL BANK,
as Administrative Agent,
as Security Agent and as Fronting Lender
By: /s/ XX Xxxxx
------------
Name: XX Xxxxx
Title: Vice President
8
ANNEX A
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LENDER CONSENT LETTER
WEIGH-TRONIX, LLC,
SWT FINANCE B.V. and WEIGH-TRONIX CANADA, ULC
CREDIT AGREEMENT
DATED AS OF JUNE 13, 2000
To: Fleet National Bank, as Administrative Agent
000 Xxxxxxx Xxxxxx
XX XX 00000X
Xxxxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement, dated
as of June 13, 2000 (as further amended and restated or otherwise modified from
time to time, the "Credit Agreement"), among WEIGH-TRONIX, LLC, a Delaware
limited liability company ("Holdings"), SWT FINANCE B.V., a limited liability
company organized under the laws of the Netherlands (the "Borrower"),
WEIGH-TRONIX CANADA, ULC, a company incorporated under the laws of Nova Scotia
(the "Canadian Borrower", and collectively with the Borrower, the "Borrowers"),
the several banks and other financial institutions or entities from time to time
parties thereto (the "Lenders"), XXXXXX BROTHERS INC., as sole advisor, XXXXXX
BROTHERS INC. and FLEETBOSTON XXXXXXXXX XXXXXXXX INC., as co-arrangers and
co-book managers (in such capacity, the "Arrangers"), XXXXXX COMMERCIAL PAPER
INC., as syndication agent (in such capacity, the "Syndication Agent"), 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"). Unless otherwise defined herein, capitalized terms used
herein and defined in the Credit Agreement are used herein as therein defined.
Holdings and the Borrowers have requested that the Required Lenders
amend certain provisions of the Credit Agreement on the terms described in the
Third Amendment in the form attached hereto as Exhibit A (the "Amendment").
Pursuant to Section 10.1 of the Credit Agreement, the undersigned
Lender hereby consents to the execution by the Administrative Agent of the
Amendment.
Very truly yours,
------------------------------------------
(NAME OF LENDER)
By:_______________________________________
Name:
Title:
Dated as June __, 2001
9
ANNEX B
-------
ACKNOWLEDGEMENT AND CONSENT
Reference is made to the Third Amendment, dated as of June 29, 2001
(the "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, a Delaware limited liability
company ("Holdings"), SWT FINANCE B.V., a limited liability company organized
under the laws of the Netherlands (the "Borrower"), WEIGH-TRONIX CANADA, ULC, a
company incorporated under the laws of Nova Scotia (the "Canadian Borrower", and
collectively with the Borrower, the "Borrowers"), the several banks and other
financial institutions or entities from time to time parties thereto (the
"Lenders"), XXXXXX BROTHERS INC., as sole advisor, XXXXXX BROTHERS INC. and
FLEETBOSTON XXXXXXXXX XXXXXXXX INC., as co-arrangers and co-book managers (in
such capacity, the "Arrangers"), XXXXXX COMMERCIAL PAPER INC., as syndication
agent (in such capacity, the "Syndication Agent"), 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").
Unless otherwise defined herein, capitalized terms used herein and defined in
the Credit Agreement are used herein as therein defined.
Each of the undersigned parties to the Guarantee and Collateral
Agreement or the Foreign Guarantees, as the case may be, made by the undersigned
in favor of Fleet National Bank, as Administrative Agent, for the benefit of the
Lenders hereby (a) consents to the transactions contemplated by the Amendment to
the Credit Agreement and (b) acknowledges and agrees that the guarantees and
grants of security interests made by such party contained in the Guarantee and
Collateral Agreement, the Foreign Guarantee and the other Security Documents, as
the case may be, are, and shall remain, in full force and effect after giving
effect to such Amendment and all prior modifications to the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Acknowledgement
and Consent to be duly executed and delivered by their respective proper and
duly authorized officers as of June 29, 2001.
WEIGH-TRONIX, LLC BERKEL USA INC.
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
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WEIGH-TRONIX, INC. BERKEL INCORPORATED
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
WEIGH-TRONIX, DELAWARE, INC. BERKEL PRODUCTS CO., LIMITED
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
WEIGH-TRONIX CANADA, ULC MECMESIN, INC.
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
SWT HOLDINGS B.V. XXXXX XXXXXX LIMITED
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
11
FIRST AMENDMENT TO GUARANTEE
----------------------------
FIRST AMENDMENT, dated as of June 29, 2001 (this "First Amendment") to
the Guarantee, dated as of February 15, 2001 (the "Guarantee"), made by
Berkshire Fund IV, Limited Partnership and Berkshire Fund V, Limited Partnership
(collectively, the "Guarantors"), in favor of FLEET NATIONAL BANK, as
administrative agent (in such capacity, the "Administrative Agent") for the
lenders (the "Lenders") parties to the Amended and Restated Credit Agreement,
dated as of June 13, 2000 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among WEIGH-TRONIX, LLC, a Delaware
limited liability company ("Holdings"), SWT FINANCE B.V., a limited liability
company organized under the laws of the Netherlands (the "Borrower"),
WEIGH-TRONIX CANADA, ULC, a company incorporated under the laws of Nova Scotia
(the "Canadian Borrower", and collectively with the Borrower, the "Borrowers"),
the Lenders, XXXXXX BROTHERS INC., as sole advisor, XXXXXX BROTHERS INC. and
FLEETBOSTON XXXXXXXXX XXXXXXXX INC. , as co-arrangers and co-book managers (in
such capacity, the "Arrangers"), XXXXXX COMMERCIAL PAPER INC., as syndication
agent (in such capacity, the "Syndication Agent"), 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:
-------------------
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make, and have made, certain loans and other extensions of credit to
the Borrowers;
WHEREAS, the Guarantors have previously executed and delivered the
Guarantee to the Administrative Agent for the ratable benefit of the Lenders;
and
WHEREAS, the Guarantors have requested that certain provisions of the
Guarantee be amended pursuant to this First Amendment, and have requested the
consent of the Administrative Agent to such amendment.
NOW, THEREFORE, in consideration of the premises, the Guarantors and
the Administrative Agent hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
2. Amendment to Subsection 2(b) of Guarantee. Paragraph (b) of Section
2 of the Guarantee is hereby amended by adding at the end of such subsection the
following additional sentence:
"For the purposes of determining the Consolidated Senior
Leverage Ratio under this paragraph (b) as at the end of the
fiscal quarter of Holdings ending on March 31, 2001 (but not
with respect to the determination of such ratio as of the end of
any other fiscal quarter), Consolidated EBITDA for the relevant
period shall be deemed to equal the sum of (i) Consolidated
EBITDA (without giving effect to the second proviso in the
definition thereof) for such fiscal quarter and
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for the two immediately prior fiscal quarters commencing after
the Closing Date, multiplied by 4/3, and (ii) the relevant
amount of the add-back for the fiscal quarter ending on March
31, 2001 as set forth in the second proviso to the definition of
Consolidated EBITDA."
3. Conditions to Effectiveness. The amendments provided for herein
shall become effective on the date the Administrative Agent shall have received
(i) an executed counterpart of this First Amendment from the Guarantors and (ii)
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 First Amendment by the Administrative Agent; provided,
however, that upon the effectiveness of this First Amendment, all of the
amendments to the Guarantee provided for herein shall be deemed to be effective
as of the Closing Date. The execution and delivery of this First Amendment by
any Lender shall be binding upon each of its successors and assigns (including
Transferees of its Commitments and Loans in whole or in part prior to the
effectiveness hereof) and binding in respect of all of its Commitments and
Loans, including any acquired subsequent to its execution and delivery hereof
and prior to the effectiveness hereof.
4. Guarantee Ratified and Confirmed; Effective Date. Except as set
forth in Paragraph 2 hereinabove, all of the terms and conditions of the
Guarantee shall remain in full force and effect and unaffected by this First
Amendment, and are hereby ratified and confirmed. This First Amendment shall be
deemed to be effective as of March 31, 2001.
5. Governing Law. This First Amendment shall be governed by and
construed and interpreted in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the undersigned have caused this First Amendment to
be duly executed and delivered by their duly authorized officers as of the day
and year first above written.
BERKSHIRE FUND IV, LIMITED PARTNERSHIP
By: Fourth Berkshire Associates LLC,
its General Partner
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
Address for Notices:
Berkshire Fund IV, Limited Partnership
Xxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
BERKSHIRE FUND V, LIMITED PARTNERSHIP
By: Fifth Berkshire Associates LLC,
its General Partner
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
Address for Notices:
Berkshire Fund V, Limited Partnership
Xxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
The foregoing First Amendment to
Guarantee is hereby consented and
agreed to as of the date first above written.
FLEET NATIONAL BANK,
as Administrative Agent
By: /s/ XX Xxxxx
------------
Authorized Officer
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ANNEX A
LENDER CONSENT LETTER
WEIGH-TRONIX, LLC,
SWT FINANCE B.V. and WEIGH-TRONIX CANADA, ULC
GUARANTEE
DATED AS OF FEBRUARY 15, 2001
To: Fleet National Bank, as Administrative Agent
000 Xxxxxxx Xxxxxx
XX XX 00000X
Xxxxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement, dated
as of June 13, 2000 (as further amended and restated or otherwise modified from
time to time, the "Credit Agreement"), among WEIGH-TRONIX, LLC, a Delaware
limited liability company ("Holdings"), SWT FINANCE B.V., a limited liability
company organized under the laws of the Netherlands (the "Borrower"),
WEIGH-TRONIX CANADA, ULC, a company incorporated under the laws of Nova Scotia
(the "Canadian Borrower", and collectively with the Borrower, the "Borrowers"),
the several banks and other financial institutions or entities from time to time
parties thereto (the "Lenders"), XXXXXX BROTHERS INC., as sole advisor, XXXXXX
BROTHERS INC. and FLEETBOSTON XXXXXXXXX XXXXXXXX INC. , as co-arrangers and
co-book managers (in such capacity, the "Arrangers"), XXXXXX COMMERCIAL PAPER
INC., as syndication agent (in such capacity, the "Syndication Agent"), 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"). Unless otherwise defined herein, capitalized terms used
herein and defined in the Credit Agreement are used herein as therein defined.
Berkshire Fund IV, Limited Partnership and Berkshire Fund V, Limited
Partnership have requested that the Required Lenders amend certain provisions of
the Guarantee on the terms described in the First Amendment in the form attached
hereto as Exhibit A (the "Amendment").
Pursuant to Section 10.1 of the Credit Agreement, the undersigned
Lender hereby consents to the execution by the Administrative Agent of the
Amendment.
Very truly yours,
------------------------------------------
(NAME OF LENDER)
By:_______________________________________
Name:
Title:
Dated as June __, 2001
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