Exhibit 2.1
[EXECUTION COPY]
NINTH AMENDMENT AND LIMITED WAIVER
NINTH AMENDMENT AND LIMITED WAIVER, dated as of May 17, 2002 (this "Ninth
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:
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 Ninth Amendment shall have the
meanings given to them in this Ninth 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.
"Ninth Amendment" means the Ninth Amendment and Limited Waiver to the
Credit Agreement, dated as of May 17, 2002.
"Ninth Amendment Effective Date" has the meaning specified in Article V of
the Ninth Amendment.
"Ninth Amendment Specified Events of Default" has the meaning specified in
Article II of the Ninth Amendment.
"Ninth Amendment Waiver Period" means the period from and including May 17,
2002 through and including June 21, 2002.
"Restructuring Amendment" has the meaning specified in Section 4.1 of the
Ninth Amendment.
"Revised Loan Restructuring Date" has the meaning specified in Section 4.1
of the Ninth Amendment.
ARTICLE 2
WAIVER
Subject to the terms and conditions hereof, the Administrative Agent and
the Lenders hereby agree to waive, during the Ninth Amendment Waiver Period, any
Events of Default arising through the end of the Ninth Amendment Waiver Period
in respect of (i) Section 8(c) of the Credit Agreement as a result of a failure
by the Borrowers to comply with the financial covenants contained in Section 7.1
of the Credit Agreement and (ii) Section 8(e) of the Credit Agreement as a
result of the failure by the Borrower to make an interest payment under the
Senior Subordinated Notes (collectively, "Ninth Amendment Specified Events of
Default").
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 in the definition of "Waiver Period Revolving Credit Loans" by
deleting the word "or" immediately before the words "the Eighth Amendment
Waiver Period" and inserting a "," in place thereof, and by inserting the
words "or the Ninth Amendment Waiver Period" immediately thereafter.
2. by revising in the definition of "Wavier Period Sublimit" by deleting the
words "the Seventh Amendment Wavier Period or the Eighth Amendment Wavier
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 or the Ninth Amendment Waiver
Period".
3.2 Amendment to Section 2.6 (Change in the Borrowing Base). Section 2.6 of the
Credit Agreement is hereby amended by deleting the words "the Seventh
Amendment Waiver Period or the Eighth Amendment Wavier Period" and
inserting in place thereof the words "the Seventh Amendment Waiver Period,
the Eighth Amendment Waiver Period or the Ninth Amendment Waiver Period".
ARTICLE 4
AGREEMENTS
4.1 Loan Restructuring Date. On or before June 21, 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 Eighth Amendment, and that such clause shall no longer have any force
or effect.
4.2 Additional Financial Information. On or before May 24, 2002, Holdings and
the Borrowers shall deliver to the Agent and the Lenders the following
financial information, in form and substance satisfactory to the Agent and
the Required Lenders:
(i) copies of projected consolidated income statements, balance
sheets and statements of cash flows with respect to Weigh-Tronix and
its consolidated Subsidiaries for each calendar month of the 2003 and
2004 fiscal years of Weigh-Tronix, prepared in reasonable detail and
in U.S. GAAP format applied consistently throughout the periods
reflected therein, which shall incorporate adjustments recommended by
the Consultant and provide a breakdown of the global operations of
Weigh-Tronix and its consolidated Subsidiaries by region, including
North America, U.K., Overseas Subsidiaries and Corporate; and
(ii) to the extent readily available, revenues of Weigh-Tronix
and its consolidated Subsidiaries for each calendar month of the 2002
and 2003 fiscal years of Weigh-Tronix, providing a breakdown for each
product group and/or product line cited in the Proposed Final Business
Plan.
4.3 Fee. Holdings and the Borrowers shall pay to the Administrative Agent, for
the ratable benefit of the Lenders, a fee in cash equal to $150,000,
payable on the Ninth Amendment Effective Date, the payment of which shall
be deemed to constitute payment in full satisfaction of the "Deferred
Eighth Amendment Fee" (as defined in Section 4.4 of the Eighth Amendment).
Section 4.4 Further Assurances. In connection with the Administrative
Agent's review of the Collateral and the Collateral Certificate provided by
Holdings and the Borrowers, the Borrowers and the other Loan Parties shall
execute, within three Business Days of receipt thereof, such further instruments
and documents as the Administrative Agent shall reasonably request in order to
further perfect and secure the Administrative Agent's Liens on the Collateral,
including but not limited to account control agreements, the issuance of
promissory notes in respect of intercompany debt, and other instruments and
documents necessary to enable the Administrative Agent to obtain "control" (as
defined in the applicable Uniform Commercial Code) of such Collateral, including
but not limited to Collateral in the form of deposit accounts.
ARTICLE 5
EFFECTIVE DATE
This Ninth Amendment shall become effective as of the date first written
above (the "Ninth 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 Ninth
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 Ninth Amendment by
the Administrative Agent;
(c) Receipt by the Administrative Agent of Acknowledgement and Consents in
the form attached hereto as Annex B, duly executed and delivered from each
Guarantor;
(d) Receipt by the Administrative Agent of counterparts of the fourth
amendment to Sponsor Guarantee, duly executed and delivered by the Sponsors, in
the form attached hereto as Annex C;
(e) Receipt by the Administrative Agent of copies of consolidating and
consolidated income statements, balance sheets and statements of cash flows with
respect to Weigh-Tronix and its consolidated Subsidiaries for each of (i) the
fiscal year of Weigh-Tronix ended Xxxxx 00, 0000, (xx) the fourth quarterly
period of the fiscal year of Weigh-Tronix ended March 31, 2002 and (iii) the
calendar month ended March 31, 2002, in form and substance satisfactory to the
Administrative Agent.
(f) Receipt by the Administrative Agent of the Deferred Eighth Amendment
Fee; and
(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 Ninth 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 Ninth 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
Ninth 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 Ninth 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 Ninth
Amendment, (a) no Default or Event of Default has occurred and is
continuing, except the Ninth 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 Ninth
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 Ninth Amendment Specified Events of Default, and
(iii) that the representation in Section 4.2 of the Credit Agreement is
qualified to the extent that Holdings and its Subsidiaries have experienced
a material and continuing downturn in the level of business of their North
American operations.
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 Ninth 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
Ninth 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 Ninth 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 Ninth 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 Ninth
Amendment shall be deemed to be, and shall be, agreements under the Credit
Agreement. The execution, delivery and effectiveness of this Ninth
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 Ninth
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 Ninth 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
Ninth Amendment Specified Event of Default.
7.8 Counterparts. This Ninth 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 NINTH AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS NINTH 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]
IN WITNESS WHEREOF, the parties hereto have caused this Ninth Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the date first written above.
WEIGH-TRONIX, LLC
By: /s/ X. X. Xxxxxxx
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Name: X. X. Xxxxxxx
Title: Chief Financial Officer
SWT FINANCE B.V.
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Managing Director NC Trust BV
WEIGH-TRONIX CANADA, ULC
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Director
FLEET NATIONAL BANK,
as Administrative Agent,
as Security Agent and as Fronting Lender
By: /s/ Xxxxxx Xxxxxxx
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Name:
Title:
