Exhibit 10.2
SEVENTH AMENDMENT AND LIMITED WAIVER
SEVENTH AMENDMENT AND LIMITED WAIVER, dated as of February 13, 2002
(this "Seventh 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, 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:
- - - - - - - - - -
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 specified 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 Seventh Amendment shall have
the meanings given to them in this Seventh 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.
"Cash Flow Forecast" has the meaning specified in Section 4.2 of the
Seventh Amendment.
"Consultant" has the meaning specified in Section 6.11.
"Deferred Seventh Amendment Fee" has the meaning specified in Section
4.5 of the Seventh Amendment.
"Financial Consultant" has the meaning specified in Section 6.12.
"Fourth Amendment" means the Fourth Amendment and Waiver to the Credit
Agreement, dated as of November 19, 2001.
"Loan Restructuring Date" has the meaning specified in Section 4.1 of
the Seventh Amendment.
"Maximum Waiver Period Amount" means an amount not to exceed the sum of
(i) the Waiver Period Sublimit and (ii) Waiver Period Supplemental
Guarantee Amount.
"Restructuring Amendment" has the meaning specified in Section 4.1 of
the Seventh Amendment.
"Second Amendment of Guarantee" means the Second Amendment to the
Sponsor Guarantee, dated as of February 13, 2002.
"Seventh Amendment Waiver Period" means the period from and including
February 8, 2002 through and including March 22, 2002.
"Seventh Amendment Fee" has the meaning specified in Section 4.5 of the
Seventh Amendment.
"Seventh Amendment Effective Date" has the meaning specified in Article
V of the Seventh Amendment.
"Seventh Amendment" means the Seventh Amendment to the Credit
Agreement, dated as of February 13, 2002.
"Specified Events of Default" has the meaning specified in Article II
of the Seventh Amendment.
"Sponsor Guarantors" means, collectively, each of Berkshire Fund IV,
Limited Partnership and Berkshire Fund V, Limited Partnership.
"Waiver Period Revolving Credit Loans" means Revolving Credit Loans and
Swing Line Loans made during the Seventh Amendment Waiver Period.
"Waiver Period Sublimit" means an aggregate outstanding principal
amount with respect to Waiver Period Revolving Credit Loans not to
exceed $2,500,000, provided that said outstanding principal amount
shall be calculated as (i) the principal amount of all Revolving Credit
Loans made by the Revolving Credit Lenders and Swing Line Loans made by
the Swing Line Lenders, during the Seventh Amendment Waiver Period less
(ii) the amount of all principal payments received in cash by the
Revolving Credit Lenders and the Swing Line Lenders during the Seventh
Amendment Waiver Period on the Revolving Credit Loans and the Swing
Line Loans, other than such principal payments received in connection
with any Asset Sale, Purchase Price Refund, Recovery Event or the
Sponsor Guarantee (to the extent not made in respect of the Waiver
Period Supplemental Guarantee Amount).
"Waiver Period Supplemental Guarantee Amount" means that amount, which
the Sponsor Guarantors shall have irrevocably elected to guaranty and
to include as part of their total liability under the Sponsor Guarantee
pursuant to the provisions contained in the Sponsor Guarantee, with
respect to Waiver Period Revolving Credit Loans in excess of the Waiver
Period Sublimit.
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ARTICLE II
WAIVER
Subject to the terms and conditions hereof, the Administrative Agent
and the Lenders hereby agree to waive, during the Seventh Amendment Waiver
Period, any Events of Default arising through the end of the Seventh Amendment
Waiver Period in respect of 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 (collectively, "Specified Events of
Default").
ARTICLE III
AMENDMENTS
Section 3.1 Amendments to Section 2.4 (Revolving Credit Commitments). Clause (a)
of Section 2.4 of the Credit Agreement is hereby amended by deleting the word
"and" between subclauses (B) and (C) of the first sentence therein and
substituting a comma therefore and adding the following before the period at the
end of said first sentence:
and (D) the Waiver Period Revolving Credit Loans would not exceed the
Maximum Waiver Period Amount.
Section 3.2 Amendment to Section 2.5 (Procedure for Revolving Credit
Borrowing). Section 2.5 of the Credit Agreement is hereby amended by deleting
the words "which notice must be received by the Administrative Agent" and
inserting the following in place thereof:
which notice must be (A) signed and acknowledged by the Sponsor
Guarantors if, after giving effect thereto, (x) the Waiver Period
Revolving Credit Loans would exceed the Waiver Period Sublimit or (y)
the Total Revolving Extensions of Credit would exceed the Borrowing
Base and (B) received by the Administrative Agent
Section 3.3 Amendment to Section 2.13 (Optional Prepayment). Section
2.13 of the Credit Agreement is hereby amended by deleting the "(a)" at the
beginning thereof and by adding the following sentence at the end thereof:
Notwithstanding the foregoing, all prepayments made pursuant to this
Section shall be made first, to pay the outstanding principal with
respect to the Waiver Period Revolving Credit Loans, if any, and any
interest and fees related thereto, and thereafter shall be made in
accordance with this Section.
Section 3.4 Amendments to Section 2.14 (Mandatory Prepayments and
Commitment Reductions).
(a) Clause (a) of Section 2.14 of the Credit Agreement is hereby
amended by deleting the words "Term Loans" therein and inserting the word
"Loans" in place thereof.
(b) Clause (b) of Section 2.14 is hereby amended by deleting the
words "Term Loans" in the third line thereof and inserting the word "Loans" in
place thereof.
(c) Clause (c) of Section 2.14 of the Credit Agreement is hereby
amended by deleting the words "Term Loans" therein and inserting the word
"Loans" in place thereof.
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(d) Clause (d) of Section 2.14 of the Credit Agreement is hereby
amended and restated to read in its entirety as follows:
(d) If, other than as a result of the circumstances described
in Section 2.27, the Total Revolving Extensions of Credit shall at any
time exceed the lesser of (i) the Total Revolving Credit Commitments
then in effect and (ii) the Borrowing Base then in effect, the Borrower
shall immediately repay outstanding Revolving Extensions of Credit by
at least the amount equal to such excess, as set forth in Section
2.14(e), with any such repayment being applied, first, to pay any then
outstanding Waiver Period Revolving Credit Loans, second, to pay any
then outstanding Swing Line Loans, third, to pay any other Revolving
Credit Loans then outstanding and fourth, to cash collateralize the L/C
Obligations in a manner reasonably satisfactory to the Administrative
Agent; provided, that so long as the Total Revolving Extensions of
Credit do not exceed the Total Revolving Credit Commitments then in
effect, the Borrower shall not be required to repay outstanding Waiver
Period Revolving Credit Loans or Revolving Credit Loans pursuant to
this clause (d) to the extent that the Sponsor Guarantors shall have
irrevocably elected to guaranty and to include as part of their total
liability under the Sponsor Guarantee, pursuant to the provisions
contained in the Sponsor Guarantee, an amount equal to the amount by
which the Total Revolving Extensions of Credit exceed the Borrowing
Base then in effect.
(e) Clause (e) of Section 2.14 of the Credit Agreement is hereby
amended and restated to read in its entirety as follows:
(e) Unless otherwise set forth in this Section, the
application of any prepayment of Loans pursuant to this Section shall
be made, first, to Waiver Period Revolving Credit Loans, second, to
Term Loans, and third, to other Revolving Credit Loans. With respect to
each Facility, application of such prepayments shall be made first, to
Base Rate Loans under such Facility and second, to Eurocurrency Loans
under such Facility. Each prepayment of the Loans under this Section
shall be accompanied by accrued interest to the date of such prepayment
on the amount prepaid.
Section 3.5 Amendment to Section 2.20 (Pro Rata Treatment and
Prepayments). Clause (c) of Section 2.20 of the Credit Agreement is hereby
amended and restated to read in its entirety as follows:
(c) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Revolving Credit Loans
shall be made in the following order: (i) pro rata according to the
respective outstanding principal amounts of the Waiver Period Revolving
Credit Loans, if any, then held by the Revolving Credit Lenders and
(ii) pro rata according to the respective outstanding principal amounts
of all remaining Revolving Credit Loans then held by the Revolving
Credit Lenders. Each payment in respect of Reimbursement Obligations in
respect of any Letter of Credit shall be made to the Issuing Lender.
Section 3.6 Amendment to Section 2.26 (Change in Borrowing Base).(a)
Section 2.26 is hereby amended by deleting the first sentence thereof and
inserting the following sentence in place thereof:
The Borrowing Base shall be determined weekly (or at such other
interval as may be specified pursuant to Section 6.2(f)) by the
Administrative Agent by reference to the Borrowing Base Report.
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(b) Section 2.26 is hereby further amended by adding the following
sentence at the end of said section:
Notwithstanding anything to the contrary contained herein, the Required
Lenders hereby waive, but only during the Seventh Amendment Waiver
Period, their right to reduce the lending formula with respect to
Eligible Accounts Receivable or Eligible Inventory.
Section 3.7 Amendment to Section 5.2 (Conditions to Each Extension of
Credit). Section 5.2 is hereby amended by adding a new clause (c) thereto to
read as follows:
(c) Borrowing Base Report. The Borrower shall have delivered a
Borrowing Base Report to the Administrative Agent in form and substance
satisfactory to the Administrative Agent.
Section 3.8 Amendments to Section 6.2 (Certificates; Other
Information). Clause (f) of Section 6.2 of the Credit Agreement is hereby
amended by amending and restating such clause to read in its entirety as
follows:
(f) on Wednesday of each week and on any Business Day that the
Borrower shall give the Administrative Agent a borrowing notice under
Section 2.5, a Borrowing Base Report setting forth the Borrowing Base
with respect to (i) Eligible Accounts Receivable as at the later of (A)
the Friday of the preceding calendar week and (B) the Business Day
preceding the giving of said borrowing notice and (ii) Eligible
Inventory as at the end of the preceding calendar month.
Section 3.9 Amendments to Article VI (Affirmative Covenants). Article
VI is hereby amended by adding the following new sections:
6.11 Consulting Services. Holdings and the Borrowers shall,
until the consummation of a restructuring of the Loans satisfactory to
the Agent and the Required Lenders, continue the retention of the Xxxx
Xxxxx Consulting Group LLC or another consultant reasonably
satisfactory to the Administrative Agent and the Required Lenders (the
"Consultant") to, among other things, advise Holdings, the Borrowers
and their Subsidiaries on their business, operations and financial
condition, cash flow and the Business Plan (as defined in Section 4.2
of the Fourth Amendment). The Consultant shall report directly to the
board of directors of Holdings at each regularly scheduled meeting of
the board of directors of Holdings. In addition, Holdings and the
Borrowers shall make the Consultant available to meet with the
Administrative Agent and the Lenders at such times as the Agent and the
Lenders may reasonably request. None of the Administrative Agent or the
Lenders shall be liable for any action taken, or omitted to be taken,
by the Consultant which is required to be retained hereunder or under
any engagement letter between Holdings, the Borrowers, their
Subsidiaries and the Consultant.
6.12 Financial Consulting Services. Holdings and the Borrowers
shall, until the consummation of a restructuring of the Loans
satisfactory to the Administrative Agent and the Required Lenders,
continue the retention of Xxxxxxxx Xxxxx Xxxxxx & Xxxxx, or another
financial consultant reasonably acceptable to the Administrative Agent
and the Required Lenders (the "Financial Consultant") with respect to
the scope of engagement set forth in that certain engagement letter
between Holdings, the Borrowers and Xxxxxxxx Xxxxx Xxxxxx & Xxxxx,
dated
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January 22, 2002. Holdings and the Borrowers shall make the Financial
Consultant available to meet with the Administrative Agent and the
Lenders at such times as the Agent and the Lenders may reasonably
request. None of the Administrative Agent or the Lenders shall be
liable for any action taken, or omitted to be taken, by the Financial
Consultant which is required to be retained hereunder or under any
engagement letter between Holdings, the Borrowers, their Subsidiaries
and the Financial Consultant.
Section 3.10 Amendment to Section 8 (Events of Default). Section 8 of
the Credit Agreement is hereby amended by adding a new clause (m) thereto to
read in its entirety as follows:
(m) The Borrower shall borrow or request to borrow Revolving
Credit Loans or Swing Line Loans in excess of the amounts the Borrower
may borrow under Section 2.4 or Section 2.8 and the Sponsor Guarantors
shall fail within two Business Days thereafter to increase their
obligations under the Sponsor Guarantee, by the amount of such excess,
pursuant to the provisions of the Sponsor Guarantee.
ARTICLE IV
AGREEMENTS
Section 4.1 Loan Restructuring Date. On or before March 22, 2002 (the
"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 Covenant Reset 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 clause (b) of Section 4.2 of the Fourth Amendment, and that such clause
shall no longer have any force or effect.
Section 4.2 Cash Flow Forecast. On or before March 8, 2002, Holdings
and the Borrowers shall deliver to the Administrative Agent and the Lenders a
cash flow forecast (the "Cash Flow Forecast"), in form and substance
satisfactory to the Administrative Agent and the Required Lenders, (i) detailing
all sources and uses of cash on a weekly basis, projected usage and availability
under the Total Revolving Credit Commitments and projected principal outstanding
amounts of the Term Loans (including, without limitation, any projected payments
or prepayments of any Loans), in each case through and including April 30, 2002,
and (ii) accompanied by an opinion of the Consultant stating that the Cash Flow
Forecast is based on reasonable estimates, information and assumptions and that
such consultant has no reason to believe that such Cash Flow Forecast are
incorrect or misleading in any material respect.
Section 4.3 Consultant Retention Agreement. On or before February 20,
2002, Holdings and the Borrowers shall deliver to the Administrative Agent an
executed letter for the retention of services of the Consultant, in form and
substance satisfactory to the Administrative Agent
Section 4.4 Financial Consultant Report. On or before March 8, 2002,
Holdings and the Borrowers shall deliver to the Administrative Agent and the
Lenders a preliminary written report prepared
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and approved by the Financial Consultant, in form and substance satisfactory to
the Administrative Agent and the Required Lenders.
Section 4.5 Application of Proceeds. 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, in payment of the
Obligations 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, third, 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,
fourth, 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 and fifth, 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.
Section 4.6 Fees. Holdings and the Borrowers shall pay to the
Administrative Agent, for the ratable benefit of the Lenders, (a) a fee in cash
equal to $292,907.50 (the "Seventh Amendment Fee"), payable on the Seventh
Amendment Effective Date, the payment of which shall be deemed to constitute
payment in full satisfaction of the "Amendment Fee" (as defined in Section 4.3
of the Fourth Amendment), and (b) a fee equal to $150,000 (the "Deferred Seventh
Amendment Fee"), payable in full in cash on the earliest to occur of (i) the
date of consummation of the Restructuring Amendment, (ii) the date any Default
or Event of Default occurs (unless otherwise waived pursuant to Article II of
the Seventh Amendment), and (iii) March 21, 2002, provided that if the
Restructuring Amendment is consummated pursuant to the terms of Section 4.1
hereof on or prior to the Loan Restructuring Date, the amount of any amendment
fee due and payable in connection with the Restructuring Amendment shall be
reduced by the lesser of (x) the amount of such amendment fee due and payable in
connection with the Restructuring Amendment and (y) the amount of the Deferred
Seventh Amendment Fee. Anything contained herein to the contrary
notwithstanding, the Seventh Amendment Fee and the Deferred Seventh Amendment
Fee shall be deemed earned in full on the Seventh Amendment Effective Date.
Section 4.7 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 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 Seventh Amendment shall become effective as of the date first
written above (the "Seventh Amendment Effective Date") when each of the
following has been satisfied or waived in accordance with the terms hereof:
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(a) Receipt by the Administrative Agent of counterparts of
this Seventh Amendment and Waiver, 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 Seventh Amendment and the Second Amendment to
Guarantee 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
Second Amendment to the Sponsor Guarantee, duly executed and delivered
by the Sponsors in the form attached hereto as Annex C;
(e) Receipt by the Administrative Agent of the Seventh
Amendment Fee.
(f) Receipt by the LoftusGroup LLC of $50,000 evergreen
retainer and receipt by the Administrative Agent of a retainer
agreement executed by Holdings, the Borrowers and the other Loan
Parties in form satisfactory to the Administrative Agent.
(g) 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 Seventh 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;
(h) Receipt by the Administrative Agent of copies of an
executed letter for the retention of services of the Financial
Consultant, in form and substance satisfactory to the Administrative
Agent; and
(i) Receipt by the Administrative Agent of financial
information with respect to the Sponsor Guarantors, in form and
substance satisfactory to the Administrative Agent
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 Seventh Amendment shall control over any
inconsistent terms or conditions in the Credit Agreement or the other Loan
Documents.
Section 6.2 No Waiver; Other Defaults or Events of Default. Nothing
contained in this Seventh Amendment and Waiver 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 Specified Event of Default.
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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 Seventh Amendment and Waiver, (a) no Default or Event of Default has
occurred and is continuing, except the Specified Event 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 Seventh Amendment
and Waiver 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 Specified Event 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 its 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 Seventh 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 Seventh
Amendment and Waiver and all other prior modifications to the Credit Agreement.
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 Seventh
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 Seventh Amendment, each
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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
Seventh Amendment shall be deemed to be, and shall be, agreements under the
Credit Agreement. The execution, delivery and effectiveness of this Seventh
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 Seventh Amendment and Waiver 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 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 Specified Event of Default.
Section 7.8 Counterparts. This Seventh 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 SEVENTH AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS SEVENTH AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Seventh
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/ Xxxx X. XxXxxx III
----------------------------------------
Name:
Title:
SWT FINANCE B.V.
By: /s/ Xxxx X. XxXxxx III
----------------------------------------
Name:
Title:
WEIGH-TRONIX CANADA, ULC
By: /s/ Xxxx X. XxXxxx III
----------------------------------------
Name:
Title:
FLEET NATIONAL BANK,
as Administrative Agent,
as Security Agent and as Fronting Lender
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Name:
Title:
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ANNEX A
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"), 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 and waive certain Events of
Default thereunder on the terms described in the Seventh 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 February , 2002
12
ANNEX B
ACKNOWLEDGEMENT AND CONSENT
Reference is made to the Seventh Amendment, dated as of February 13,
2002 (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"), 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 February 13, 2002.
WEIGH-TRONIX, LLC XXXXX XXXXXX, INC.
By: By:
------------------------------- ---------------------------------
Name: Name:
Title: Title:
WEIGH-TRONIX, INC. MECMESIN, INC.
By: By:
------------------------------- ---------------------------------
Name: Name:
Title: Title:
WEIGH-TRONIX, DELAWARE, INC. XXXXX XXXXXX HOLDINGS, INC.
By: By:
------------------------------- ---------------------------------
Name: Name:
Title: Title:
13
WEIGH-TRONIX CANADA, ULC BERKEL (IRELAND) LIMITED
By: By:
------------------------------- ---------------------------------
Name: Name:
Title: Title:
SWT HOLDINGS B.V. XXXXXX WEIGH-TRONIX LIMITED
By: By:
------------------------------- ---------------------------------
Name: Name:
Title: Title:
XXXXXX HOUSEWARES HOLDINGS LIMITED XXXXXX HOUSEWARES LIMITED
By: By:
------------------------------- ---------------------------------
Name: Name:
Title: Title:
WEIGH-TRONIX (UK) LIMITED XXXXX XXXXXX HOLDINGS LIMITED
By: By:
------------------------------- ---------------------------------
Name: Name:
Title: Title:
XXXXX XXXXXX LIMITED XXXXX XXXXXX PROPERTIES LIMITED
By: By:
------------------------------- ---------------------------------
Name: Name:
Title: Title:
14
