Exhibit 2.1
[EXECUTION COPY]
FOURTH AMENDMENT AND WAIVER UNDER
AMENDED AND RESTATED CREDIT AGREEMENT
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FOURTH AMENDMENT AND WAIVER dated as of November 19, 2001 (this
"Amendment and Waiver") with respect to the Amended and Restated Credit
Agreement dated as of June 13, 2000, as amended by the First Amendment to Credit
Agreement, dated as of August 18, 2000, the Second Amendment to Credit
Agreement, dated as of February 15, 2001, and the Third Amendment to Credit
Agreement, dated as of June 29, 2001 (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
("SWT Finance" or the "Borrower"), Weigh-Tronix Canada, ULC, a company
incorporated under the laws of Nova Scotia ("Weigh-Tronix Canada" and,
collectively with SWT Finance, the "Borrowers"), the Lenders (as defined in the
Credit Agreement), 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"), and Fleet
National Bank, as administrative agent and security agent (in such capacity, the
"Agent").
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have made Loans
and other extensions of credit to the Borrowers which remain outstanding;
WHEREAS, an Event of Default has occurred and is continuing;
WHEREAS, Holdings and the Borrowers have requested that the Agent and
the Lenders waive the Specified Event of Default (as defined below);
WHEREAS, the Agent and the Lenders are willing to waive the Specified
Event of Default, but only on the terms and conditions set forth herein; and
WHEREAS, Holdings and the Borrowers have requested, and, upon this
Amendment and Waiver becoming effective, the Lenders have agreed, that certain
provisions of the Credit Agreement be amended in the manner provided for in this
Amendment and Waiver;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. Unless otherwise defined herein,
capitalized terms used herein have the meanings assigned in the Credit
Agreement, and the following terms shall have the following meanings:
"Effective Date": the first date on which the conditions precedent
specified in Article V of this Amendment and Waiver shall have been
satisfied or the satisfaction thereof shall have been waived in accordance
with the terms hereof.
"Specified Event of Default": the Event of Default arising in respect
of Section 8(c) of the Credit Agreement as a result of a failure by the
Borrowers to comply with the covenant contained in Section 7.1(a) of the
Credit Agreement with respect to the fiscal quarter of Holdings ended
September 30, 2001.
ARTICLE II
WAIVER
Subject to the terms and conditions hereof, the Agent and the Lenders
hereby agree to waive the Specified Event of Default.
ARTICLE III
AMENDMENTS
Section 3.1 Amendment to Definitions. Section 1.1 of the Credit
Agreement is hereby amended by (a) amending and restating the definition of
"Pricing Grid" therein to read in its entirety as follows:
"Pricing Grid": prior to April 1, 2002, the pricing grid attached
hereto as Annex A; and on and after April 1, 2002, the pricing grid
attached hereto as Annex B.
Section 3.2 Amendment to Section 7.1 (Financial Condition
Covenants). Section 7.1(a) of the Credit Agreement is hereby amended by amending
the table set forth therein by deleting the rows entitled "FQ3 2001" and "FQ4
2001" and inserting the following rows in place thereof:
"FQ3 2001 5.54 to 1.00
FQ4 2001 4.90 to 1.00".
Section 3.3 Amendment to Annexes. The Pricing Grid, in the form of
Schedule B attached hereto, shall be added to the Credit Agreement as Annex B
thereto.
ARTICLE IV
AGREEMENTS
Section 4.1 Financial Reporting. (a) The Agent's counsel may
retain LoftusGroup LLC or another financial advisor. Holdings and the Borrowers
shall cooperate in all respects with any such financial advisor and shall pay or
reimburse the Agent for all reasonable fees and out-of-pocket expenses incurred
in connection therewith.
(b) On Wednesday of each week (except, in the case of the week ending
January 4, 2002, on Friday of such week), Holdings and the Borrowers shall
furnish to the Agent and the Lenders (i) prior to and including January 4,
2002, a four week rolling cash flow forecast and (ii) from and after
January 9, 2002, a thirteen week rolling cash flow forecast, which shall in
each case detail 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),
and shall report any variances from the prior report, such forecast to be
in form satisfactory to the Agent.
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Section 4.2 Business Plan; Cash Flow Forecast; Certain Limitations.
(a) On or before January 11, 2002, Holdings and the Borrowers shall deliver to
the Agent and the Lenders a detailed business plan (the "Business Plan") in form
satisfactory to the Agent. The Business Plan shall include, on a monthly basis
for the period beginning January 1, 2002 and ending March 31, 2004, (i)
consolidated forecasts detailing cash flow and collateral levels, (ii)
consolidated profit and loss statements and (iii) consolidated balance sheets.
The Business Plan shall identify (x) all sources of revenue and expenses,
including, without limitation, intended executive compensation, (y) the nature
of all proposed Capital Expenditures, and (z) compliance with the negative
covenants contained in Section 7 of the Credit Agreement, and in the case of the
financial covenants contained in Section 7.1 of the Credit Agreement, projected
on a quarterly basis and including detailed calculations of such projections.
(b) On or before February 7, 2002 (the "Reset Date"), Holdings, the
Borrowers, the Agent and the Required Lenders shall have agreed in writing
to satisfactory amendments to the negative covenants contained in Section 7
of the Credit Agreement, including appropriate levels for the financial
covenants contained in Section 7.1 of the Credit Agreement (the "Reset
Amendment"). Anything in the Credit Agreement or any other Loan Document to
the contrary notwithstanding, all terms and conditions of the Reset
Amendment shall be satisfactory to the Agent and the Required Lenders in
their absolute and sole discretion. In the event that Holdings, the
Borrowers, the Agent and the Required Lenders fail to consummate the Reset
Amendment on or before the 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.
(c) Notwithstanding anything in this Amendment and Waiver or the
Credit Agreement to the contrary, Holdings and the Borrowers shall not, and
shall not permit any of their respective Subsidiaries to, on or prior to
the date of consummation of the Reset Amendment, (i) create, incur, assume
or suffer to exist any Indebtedness permitted under Sections 7.2(g),
7.2(i), 7.2(j) or 7.2(l) of the Credit Agreement (other than any such
Indebtedness outstanding on the Effective Date), (ii) create, incur, assume
or suffer to exist any Lien upon any Property permitted under Section
7.3(j) of the Credit Agreement (other than any such Lien existing on the
Effective Date), (iii) dispose of any Property, or, in the case of any
Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to
any Person, permitted under Section 7.5(g) of the Credit Agreement (other
than any such dispositions consummated prior to the Effective Date); (iv)
make any Restricted Payment permitted under Sections 7.6(e) or 7.6(f) of
the Credit Agreement, or (v) make any Investments permitted under Sections
7.8(j), 7.8(k) or 7.8(l) (other than any such Investments consummated prior
to the Effective Date).
Section 4.3 Fees. Holdings and the Borrowers shall pay to the
Agent, for the ratable benefit of the Lenders, (a) a fee in cash equal to
$292,907.50 (the "Waiver Fee"), payable on the Effective Date, and (b) a fee in
cash equal to $292,907.50 (the "Amendment Fee"), payable on the earliest to
occur of (i) the date of consummation of the Reset Amendment, (ii) the date any
Default or Event of Default occurs, and (iii) April 1, 2002; provided that if
the Reset Amendment is consummated pursuant to the terms of Section 4.2(b)
hereof on or prior to the Reset Date, the amount of any amendment fee due and
payable in connection with the Reset Amendment shall be reduced by the lesser of
(x) the amount of such amendment fee due and payable in connection with the
Reset Amendment and (y) the amount of the Amendment Fee. Anything contained
herein to the contrary notwithstanding, the Waiver Fee and the Amendment Fee
shall be deemed earned in full on the Effective Date.
Section 4.4 Collateral. Holdings and the Borrowers shall deliver to
the Agent a Collateral Certificate, in the form attached as Schedule A hereto,
fully executed by a responsible officer of each of Holdings and the Borrowers,
on or before December 14, 2001. On or before January 11, 2002, in connection
with the Agent's review of the Collateral, Holdings, the Borrowers and the other
Loan
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Parties shall execute such further instruments and documents as the Agent shall
request in order to further perfect and secure the Administrative Agent's Liens
on the Collateral.
Section 4.5 Agreements under the Credit Agreement. For purposes of
the Credit Agreement, the acknowledgements and agreements contained in this
Article IV shall be deemed to be, and shall be, agreements under the Credit
Agreement, and this Amendment and Waiver shall be deemed to be a Loan Document
in all respects.
ARTICLE V
CONDITIONS PRECEDENT
This Amendment and Waiver shall not become effective unless and until
each of the conditions precedent set forth below have been satisfied or the
satisfaction thereof shall have been waived in accordance with the terms hereof:
(a) Receipt by the Agent of counterparts of this Amendment and
Waiver, duly executed and delivered by Holdings, the Borrowers and the other
Loan Parties;
(b) Receipt by the Agent of counterparts of a letter duly executed
and delivered by each of Berkshire Fund IV, Limited Partnership ("Berkshire IV")
and Berkshire Fund V, Limited Partnership ("Berkshire V", and together with
Berkshire IV, the "Sponsor Guarantors") in form and substance satisfactory to
the Agent;
(c) Receipt by the Agent of payment in full in cash of its invoiced
and unpaid fees and out-of-pocket expenses incurred in connection with the
preparation and execution of this 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 counsel to the Agent; and
(d) Receipt by the Agent of the Waiver Fee described in Section 4.3
above.
ARTICLE VI
INTERPRETATION
Section 6.1 Continuing Effect of the Credit Agreement. Holdings,
the Borrowers, the other Loan Parties, the Agent and the Lenders hereby
acknowledge and agree that the Credit Agreement shall continue to be and shall,
except as expressly amended or waived hereby, remain unchanged and in full force
and effect in accordance with its terms.
Section 6.2 No Waiver; Other Defaults or Events of Default. Nothing
contained in this 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 Agent or the Lenders have or may have under the Credit
Agreement or any other Loan Document on account of any Default or Event of
Default other than the Specified Event of Default.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Representations and Warranties. Holdings and the
Borrowers hereby represent and warrant as of the date hereof that, after giving
effect to this Amendment and Waiver, (a) no Default or Event of Default has
occurred and is continuing, except the Specified Event of Default, and (b)
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all representations and warranties of Holdings and the Borrowers contained in
the Loan Documents (with such term being deemed to include this 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 experienced a material and continuing downturn in the level of
business of its North American operations following the events of September 11,
2001.
Section 7.2 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 of the Credit Agreement (Additional Collateral, etc.) and Section
6.10 of the Credit Agreement (Further Assurances).
Section 7.3 Payment of Fees and Expenses. Holdings and the
Borrowers agree to pay or reimburse the Agent on demand for all its reasonable
out-of-pocket costs and expenses incurred in connection with the preparation and
execution of this 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
counsel to the Agent. In furtherance of the provisions of this Section 7.3 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.
Section 7.4 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 Amendment and Waiver, 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 and
Waiver shall be deemed to be, and shall be, agreements under the Credit
Agreement.
Section 7.5 Counterparts. This Amendment and Waiver may be executed
by the parties hereto in any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
Section 7.6 GOVERNING LAW. THIS WAIVER AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 7.7 Reservation of Rights. Notwithstanding anything
contained in this Amendment and Waiver to the contrary, Holdings and the
Borrowers and each Loan Party acknowledge that the 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 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.
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Section 7.8 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 Amendment and
Waiver and all other prior modifications to the Credit Agreement.
Section 7.9 Waiver. 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 Amendment and Waiver or in the future against the
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be duly executed and delivered by their proper and duly authorized
officers as of the date first above written.
BORROWERS:
SWT FINANCE B.V.
By: /s/ Xxxx X. XxXxxx III
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Title:
WEIGH-TRONIX CANADA, ULC
By: /s/ Xxxx X. XxXxxx III
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Title:
DOMESTIC GUARANTORS:
WEIGH-TRONIX, LLC
By: /s/ Xxxx X. XxXxxx III
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Title:
WEIGH-TRONIX, INC.
By: /s/ Xxxx X. XxXxxx III
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Title:
MECMESIN, INC.
By: /s/ Xxxx X. XxXxxx III
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Title:
XXXXX XXXXXX HOLDINGS, INC.
By: /s/ Xxxx X. XxXxxx III
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Title:
XXXXX XXXXXX, INC.
By: /s/ Xxxx X. XxXxxx III
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Title:
WEIGH-TRONIX DELAWARE, INC.
By: /s/ Xxxx X. XxXxxx III
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Title:
BERKEL PRODUCTS CO., LIMITED
By: /s/ Xxxx X. XxXxxx III
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Title:
FOREIGN GUARANTORS:
WEIGH-TRONIX CANADA, ULC
By: /s/ Xxxx X. XxXxxx III
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Title:
SWT HOLDINGS B.V.
By: /s/ Xxxx X. XxXxxx III
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Title:
XXXXXX WEIGH-TRONIX LIMITED
By: /s/ Xxxx X. XxXxxx III
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Title:
XXXXXX HOUSEWARES HOLDINGS LIMITED
By: /s/ Xxxx X. XxXxxx III
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Title:
XXXXXX HOUSEWARES LIMITED
By: /s/ Xxxx X. XxXxxx III
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Title:
WEIGH-TRONIX (UK) LIMITED
By: /s/ Xxxx X. XxXxxx III
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Title:
XXXXX XXXXXX HOLDINGS LIMITED
By: /s/ Xxxx X. XxXxxx III
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Title:
XXXXX XXXXXX LIMITED
By: /s/ Xxxx X. XxXxxx III
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Title:
XXXXX XXXXXX PROPERTIES LIMITED
By: /s/ Xxxx X. XxXxxx III
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Title:
BERKEL (IRELAND) LIMITED
By: /s/ Xxxx X. XxXxxx III
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Title:
AGENTS AND LENDERS:
FLEET NATIONAL BANK,
as Administrative Agent as Security Agent and as
Lender
By: /s/ Xxxxxx Xxxxxxx
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Title:
XXXXXX BROTHERS INC.,
as sole advisor
By: /s/ Xxxxxx Xxxxx
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Title:
XXXXXX COMMERCIAL PAPER INC.,
as Syndication Agent
By: /s/ Xxxxxx Xxxxx
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Title:
KEY CORPORATE CAPITAL INC.
By: /s/ Xxxx Xxxxxxxxxx
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Title:
BANK OF SCOTLAND
By: /s/ Xxxxxx Xxxxxx
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Title:
THE PROVIDENT BANK
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
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Title:
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxx
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Title:
XXX XXXXXX CLO I, LIMITED
XXX XXXXXX CLO II, LIMITED
XXX XXXXXX SENIOR INCOME TRUST
XXX XXXXXX SENIOR FLOATING RATE FUND
By: Xxx Xxxxxx Management Inc.,
as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
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Title:
PROMETHEUS INVESTMENT FUNDING NO. 1 LTD
By: CPF Asset Advisory, LLC, as Investment
Manager
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
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Title:
SCHEDULE A
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COLLATERAL CERTIFICATE
SCHEDULE B
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ANNEX B
PRICING GRID
Applicable Margin
for Tranche A Applicable Margin Applicable Margin Applicable Margin
Term Loans and for Tranche B for Tranche B for Tranche B
Revolving Credit Term Loans which Term Loans which Term Loans which
Consolidated Loans which are are Eurocurrency are Eurocurrency are Base Rate Commitment Fee
Leverage Ratio Eurocurrency Loans Loans Loans Loans Rate
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(less than) 4.75 to 1.00 4.50% 3.50% 5.00% 4.00% 0.50%
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(greater than) 4.75 to 1.00 4.00% 3.00% 4.50% 3.50% 0.50%
and
(less than) 4.25 to 1.00
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(greater than) 4.25 to 1.00 3.75% 2.75% 4.25% 3.25% 0.50%
and
(less than) 3.25 to 1.00
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(greater than) 3.25 to 1.00 3.50% 2.50% 4.00% 3.00% 0.375%
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Changes in the Applicable Margin or in the Commitment Fee Rate
resulting from changes in the Consolidated Leverage Ratio shall become effective
on the date (the "Adjustment Date") on which financial statements are delivered
to the Lenders pursuant to Section 6.1 (but in any event not later than the 45th
day after the end of each of the first three quarterly periods of each fiscal
year or the 90th day after the end of each fiscal year, as the case may be) and
shall remain if effect until the next change to be effected pursuant to this
paragraph. If any financial statements referred to above are not delivered
within the time periods specified above, then, until such financial statements
are delivered, the Consolidated Leverage Ratio as at the end of the fiscal
period that would have been covered thereby shall for the purposes of this
definition be deemed to be greater than 4.75 to 1. In addition, at all times
while an Event of Default shall have occurred and be continuing, the
Consolidated Leverage Ratio shall for the purposes of this Pricing Grid be
deemed to be greater than 4.75 to 1. Each determination of the Consolidated
Leverage Ratio pursuant to this Pricing Grid shall be made for the periods and
in the manner contemplated by Section 7.1(a).
