Exhibit 2.1
[EXECUTION COPY]
ELEVENTH AMENDMENT AND LIMITED WAIVER
ELEVENTH AMENDMENT AND LIMITED WAIVER, dated as of July 19, 2002 (this
"Eleventh 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 1
DEFINITIONS
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 Eleventh Amendment
shall have the meanings given to them in this Eleventh Amendment.
1.2 Amendments to Definitions. Section 1.1 of the Credit Agreement is hereby
amended by inserting the following new definitions in alphabetical
order.
"Collateral Account" means a restricted deposit account established and
maintained by the Administrative Agent.
"Eleventh Amendment" means the Eleventh Amendment and Limited Waiver to
the Credit Agreement, dated as of July 19, 2002.
"Eleventh Amendment Effective Date" has the meaning specified in
Article V of the Eleventh Amendment.
"Eleventh Amendment Specified Events of Default" has the meaning
specified in Article II of the Eleventh Amendment.
"Eleventh Amendment Waiver Period" means the period from and including
July 19, 2002 through and including August 19, 2002.
"Relending Account" has the meaning specified in Section 4.4(b) of the
Eleventh Amendment.
ARTICLE 2
WAIVER
Subject to the terms and conditions hereof, the Administrative Agent
and the Lenders hereby agree to waive, during the Eleventh Amendment Waiver
Period, (a) any Events of Default arising through the end of the Eleventh
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 any default by the Borrower under the Senior
Subordinated Notes or the Senior Subordinated Note Indenture (collectively,
"Eleventh 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 100% of the stock of W & T Xxxxx (Namibia) (Proprietary)
Limited, W & T Xxxxx (Malawi) Limited, Xxxxx Xxxxxx Zimbabwe (Private) Limited,
Berkel (Africa) (Proprietary) Limited and South African Scale Company
(Proprietary) Limited on terms and conditions satisfactory to the Administrative
Agent; 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 3
AMENDMENTS
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:
1. by revising the definition of "Restructuring Amendment" by deleting the
word "Tenth" therein and inserting the word "Eleventh" in place
thereof;
2. by revising the definition of "Revised Loan Restructuring Date" by
deleting the word "Tenth" therein and inserting the word "Eleventh" in
place thereof;
3. by amending and restating the definition of "Waiver Period Revolving Credit
Loans" to read in its entirety as follows:"Waiver Period Revolving
Credit Loans" means Revolving Credit Loans and Swing Line Loans in
excess of an aggregate principal amount equal to $34,747,665; and
4. by revising the definition of "Waiver Period Sublimit" by (i) deleting
the words "the Seventh Amendment Waiver Period, the Eighth Amendment
Waiver Period, the Ninth Amendment Waiver Period or the Tenth 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, the Tenth Amendment Waiver Period or the
Eleventh Amendment Waiver Period" and (ii) deleting the reference to
"$2,500,000" and inserting in place thereof "$3,800,000".
3.2 Amendment to Section 2.26 (Change in the Borrowing Base). Section 2.26
of the Credit Agreement is hereby amended by deleting the words "the
Seventh Amendment Waiver Period, the Eighth Amendment Waiver Period,
the Ninth Amendment Waiver Period or the Tenth Amendment Waiver Period"
and inserting in place thereof the words "the Seventh Amendment Waiver
Period, the Eighth Amendment Waiver Period, the Ninth Amendment Waiver
Period, the Tenth Amendment Waiver Period or the Eleventh Amendment
Waiver Period".
ARTICLE 4
AGREEMENTS
4.1 Loan Restructuring Date. On or before August 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 Tenth Amendment, and that
such section of the Tenth Amendment 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".
4.2 Information Memorandum. On or before August 12, 2002, Holdings and the
Borrowers shall provide to the Administrative Agent a draft of an
information memorandum contemplating both a sale of the entire business
of Holdings and its Subsidiaries and separate sales of the North
American and European operations of Holdings and its Subsidiaries (the
"Preliminary Information Memorandum"), and the Administrative Agent
shall have the opportunity to review and provide comments to Holdings
and the Borrowers on the form and substance of such Preliminary
Information Memorandum. On or before August 19, 2002, Holdings and the
Borrowers shall provide to the Administrative Agent a final information
memorandum in form and substance satisfactory to the Administrative
Agent and the Required Lenders, in their absolute and sole
discretion(the "Information Memorandum"), which may be provided to one
or more investment bankers. In the event that Holdings and the
Borrowers fail to provide the Preliminary Information Memorandum to the
Administrative Agent and the Required Lenders on or before August 12,
2002, or the Information Memorandum to the Administrative Agent and the
Required Lenders on or before August 19, 2002, then, automatically and
without the requirement of notice or further action by any party,
either such failure shall immediately constitute an Event of Default.
4.3 Revolving Credit Loans. Holdings, the Borrowers, the Administrative Agent
and the Required Lenders 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 at any time during the Eleventh Amendment
Waiver Period exceed the lesser of (i) the Borrowing Base plus
$3,800,000 or (ii) $38,800,000. Subject to the terms and conditions
hereof, the Administrative Agent and the Required Lenders hereby agree
to waive, during the Eleventh Amendment Waiver Period, the requirement
under Section 2.4(a)(C) of the Credit Agreement that Revolving Credit
Loans shall only be made if the Total Revolving Extensions of Credit
do not exceed the Borrowing Base.
4.4 Application of Proceeds. 1. Notwithstanding anything to the contrary in
the Credit Agreement, any Security Document or other Loan Document,
the Administrative Agent shall apply any and all proceeds of the
Collateral, and any and all proceeds of any guaranty of the
Obligations (other than the proceeds of the Sponsor Guarantee, which
shall be applied as set forth in clause (b) below) in payment of the
Obligations in the following order: first, to pay incurred and unpaid
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fees and expenses of the Administrative Agent under the Loan
Documents, second, on a pro rata basis to the repayment in full of all
Waiver Period Revolving Credit Loans disbursed to the Borrowers from
the Relending Account (as defined in clause (b) below) then
outstanding until such Loans are paid in full, 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, third, on a pro
rata basis to the repayment in full of the Waiver Period Revolving
Credit Loans then outstanding until such Loans are paid in full, 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,
fourth, on a pro rata basis to the repayment in full of the
Obligations (other than Waiver Period Revolving Credit Loans) then due
and owing until such Obligations are paid in full, 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, fifth, on a pro rata basis to the prepayment in full of
the Obligations (other than Waiver Period Revolving Credit Loans) then
outstanding until such Obligations are paid in full, 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 and sixth, any balance of such
proceeds remaining after the Obligations shall have been paid in full,
no Letters of Credit shall be outstanding and the Commitments shall
have terminated shall be paid over to the Borrowers or to whomsoever
may be lawfully entitled to receive the same. 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.
2. Any and all proceeds of the Sponsor Guarantee shall be applied in
the following order: first, to pay incurred and unpaid fees and expenses of
the Administrative Agent under the Loan Documents, second, on a pro rata
basis to the repayment in full of the Waiver Period Revolving Credit Loans
then outstanding until such Loans are paid in full, subject to reborrowing
in accordance with the terms of the Credit Agreement, and, third, to be
deposited and held by the Administrative Agent in a segregated,
non-interest bearing demand deposit account in the name of, and under the
sole dominion and control of, the Administrative Agent for the benefit of
the Lenders (the "Relending Account"). During the Eleventh Amendment Waiver
Period, amounts held in the Relending Account shall be used (x) to fund any
borrowings to the Borrowers otherwise permitted by the Borrower with
respect to the Revolving Credit Commitments and (y) as otherwise directed
by the Required Lenders pursuant to the terms of the Credit Agreement and
the other Loan Documents. Any funds on deposit in the Relending Account
shall be invested by the Administrative Agent in its own name in Cash
Equivalents. For the avoidance of doubt, none of Holdings, any Borrower,
any Guarantor, or any Sponsor Guarantor or any of their respective
affiliates shall have any right, title or interest whatsoever, whether
legal or equitable, in or to the Relending Account or any amounts on
deposit contained therein.
3. In furtherance but not in limitation of the foregoing, the parties
hereto agree that this Section 4.4 replaces in its entirety Section 4.5 of
the Seventh Amendment and Section 4.3 of the Tenth Amendment, and that such
sections shall no longer have any force or effect.
4.5 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 5
EFFECTIVE DATE
This Eleventh Amendment shall become effective as of the date first
written above (the "Eleventh Amendment Effective Date") when each of the
following has been satisfied or waived in accordance with the terms hereof:
1. Receipt by the Administrative Agent of counterparts of this
Eleventh 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 Eleventh Amendment by
the Administrative Agent;
(c) receipt by the Administrative Agent of Acknowledgement and
Consents in the form attached hereto as Annex B, duly
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executed and delivered from each Guarantor;
(d) receipt by the Administrative Agent of counterparts of the
sixth amendment to Sponsor Guarantee, duly executed and
delivered by the Sponsor Guarantors, 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 Eleventh 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 6
INTERPRETATION
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 Eleventh
Amendment shall control over any inconsistent terms or conditions in
the Credit Agreement or the other Loan Documents.
6.2 No Waiver; Other Defaults or Events of Default. Nothing contained in this
Eleventh 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
Eleventh Amendment Specified Events of Default.
ARTICLE 7
MISCELLANEOUS
7.1 Representations and Warranties. Holdings and the Borrowers hereby
represent and warrant as of the date hereof that, after giving effect
to this Eleventh Amendment, (a) no Default or Event of Default has
occurred and is continuing, except the Eleventh 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 Eleventh 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 Eleventh 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 their business operations.
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).
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 Eleventh 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.
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 Eleventh Amendment and all other prior
modifications to the Credit Agreement.
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
Eleventh 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.
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 Eleventh 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 Eleventh Amendment shall
be deemed to be, and shall be, agreements under the Credit Agreement.
The execution, delivery and effectiveness of this Eleventh 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.
7.7 Reservation of Rights. Notwithstanding anything contained in this Eleventh
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 Eleventh 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 Eleventh Amendment Specified Event of
Default.
7.8 Counterparts. This Eleventh 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.
7.9 GOVERNING LAW. THIS ELEVENTH AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS ELEVENTH AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
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SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Eleventh
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:
Title:
SWT FINANCE B.V.
By: /s/ Xxxxxx X. Xxxx
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Name:
Title:
WEIGH-TRONIX CANADA, ULC
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name:
Title:
FLEET NATIONAL BANK,
as Administrative Agent,
as Security Agent and as Fronting Lender
By: /s/ Xxxxx X'Xxxxx
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