Exhibit 10.1
[SECOND REVISED EXECUTION COPY]
SECOND LIMITED WAIVER TO FOURTH AMENDMENT AND WAIVER
SECOND LIMITED WAIVER TO FOURTH AMENDMENT AND WAIVER, dated as of February
7, 2002 (this "Second Waiver"), 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"), WEIGHTRONIX 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 agreed to
make, and have made, certain loans and other extensions of credit to the
Borrowers which remain outstanding; and
WHEREAS, the Borrowers have requested that the Administrative Agent and
the Lenders temporarily waive the requirements of Section 4.2(b) of the Fourth
Amendment and Second Waiver to the Credit Agreement, dated as of November 19,
2001 (the "Fourth Amendment"), 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:
1. Defined Terms. 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 Second Waiver shall have the meanings
given to them in this Second Waiver.
2. Waiver to Section 4.2(b) of the Fourth Amendment (Business Plan; Cash
Flow Forecast; Certain Limitations). (a) Subject to clause (b) below, the
Required Lenders hereby temporarily waive (i) the requirement in Section 4.2(b)
of the Fourth Amendment that Holdings, the Borrowers, the Agent and the Required
Lenders consummate the Reset Amendment on or before the Reset Date (as such
terms are defined in Section 4.2(b) of the Fourth Amendment) and (ii) any
Default or 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 covenants
contained in Section 7.1 of the Credit Agreement (the "pecified Events of
Default".
(b) The waiver contained in clause (a) above shall remain in effect
from the close of business on February 7, 2002 through and until February
13, 2002 (the "Waiver Period"), at which time such waiver shall terminate
and thereafter have no force or effect; provided, however, that the waiver
contained in clause (a) above shall not be effective for purposes of
Section 5.2(b) of the Credit Agreement; it being expressly understood and
agreed that during the Wavier Period (i) the Borrower may not borrow under
the Revolving Credit Commitments and (ii) the Revolving Credit Lenders
shall not make any Revolving Credit Loans to the Borrower; provided,
further, that, if the Borrower or any other Loan Party shall default in
the observance or performance of any agreement or covenant contained in
this Second Waiver, or upon the occurrence of a Default or Event of
Default other than the Specified Events of Default, then, and in any such
event, the waiver contained in clause (a) shall immediately and
automatically terminate and thereafter such waiver shall have no force or
effect.
3. Conditions to Effectiveness. The waiver provided for herein shall
become effective on the date the Administrative Agent shall have received
(i) an executed counterpart of this Waiver from Holdings and the
Borrowers, (ii) executed Consent Letters (in the form attached hereto as
Annex A) from the Required Lenders (or facsimile transmissions thereof)
consenting to the execution of this Waiver by the Administrative Agent,
and (iii) Acknowledgement and Consents in the form attached hereto as
Annex B, duly executed and delivered from each Guarantor. The execution
and delivery of this Waiver by any Lender shall be binding upon each of
its successors and assigns (including Transferees of its Commitments and
Loans in whole or in part prior to the effectiveness hereof) and binding
in respect of all of its Commitments and Loans, including any acquired
subsequent to its execution and delivery hereof and prior to the
effectiveness hereof.
4. Representations and Warranties. Holdings and the Borrowers hereby
represent and warrant as of the date hereof that, after giving effect to
this Second Waiver, (a) no Default or Event of Default has occurred and is
continuing and (b) all representations and warranties of Holdings and the
Borrowers contained in the Loan Documents (with such term being deemed to
include this Second Waiver) 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 and (ii) that the representation
on 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.
5. Affirmative Covenants. Holdings and the Borrowers hereby
expressly reaffirm each of the covenants made by them in Section 6 of the
Credit Agreement, including without limitation, the covenants contained in
Section 6.9 (Additional Collateral, etc.) and Section 6.10 (Further
Assurances).
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 paragraph 3 of this Second 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. For purposes of the Credit Agreement,
all of the agreements of Holdings and the Borrowers contained in this
Second Waiver shall be deemed to be, and shall be, agreements under the
Credit Agreement. The execution, delivery and effectiveness of this Second
Waiver 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 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. Counterparts. This Second Waiver 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.
8. GOVERNING LAW. THIS SECOND WAIVER AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF
THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Waiver to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
WEIGH-TRONIX, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ III
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Name:
Title:
SWT FINANCE B.V.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ III
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Name:
Title:
WEIGH-TRONIX CANADA, ULC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ III
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Name:
Title:
AGENT:
FLEET NATIONAL BANK,
as Administrative Agent,
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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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
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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"),
WEIGHTRONIX CANADA, ULC, a company incorporated under the laws of Nova Scotia
(the "Canadian Borrower", and collectively with the Borrower, the "Borrowers"),
the several banks and other financial institutions or entities from time to time
parties thereto (the "Lenders"), ▇▇▇▇▇▇ BROTHERS INC., as sole advisor, ▇▇▇▇▇▇
BROTHERS INC. and FLEETBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC. , as co-arrangers and
co-book managers (in such capacity, the "Arrangers"), ▇▇▇▇▇▇ COMMERCIAL PAPER
INC., as syndication agent (in such capacity, the "Syndication Agent"), FLEET
NATIONAL BANK, as administrative agent (in such capacity, the "Administrative
Agent"), and FLEET NATIONAL BANK, as security agent (in such capacity, the
"Security Agent"). Unless otherwise defined herein, capitalized terms used
herein and defined in the Credit Agreement are used herein as therein defined.
Holdings and the Borrowers have requested that the Required Lenders waive
certain provisions of the Fourth Amendment and Waiver to the Credit Agreement on
the terms described in the Second Limited Waiver to Fourth Amendment and Waiver
in the form attached hereto as Exhibit A (the "Second Waiver").
Pursuant to Section 10.1 of the Credit Agreement, the undersigned Lender
hereby consents to the execution by the Administrative Agent of the Second
Waiver.
Very truly yours,
________________________________________
(NAME OF LENDER)
By:_____________________________________
Name:
Title:
Dated as of February __, 2002
ANNEX B
ACKNOWLEDGEMENT AND CONSENT
Reference is made to the Second Limited Waiver to Fourth Amendment and
Waiver, dated as of February 6, 2002 (the "Second Waiver"), 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"), WEIGHTRONIX CANADA, ULC, a company incorporated
under the laws of Nova Scotia (the "Canadian Borrower", and collectively with
the Borrower, the "Borrowers"), the several banks and other financial
institutions or entities from time to time parties thereto (the "Lenders"),
▇▇▇▇▇▇ BROTHERS INC., as sole advisor, ▇▇▇▇▇▇ BROTHERS INC. and FLEETBOSTON
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC., as co-arrangers and co-book managers (in such capacity,
the "Arrangers"), ▇▇▇▇▇▇ COMMERCIAL PAPER INC., as syndication agent (in such
capacity, the "Syndication Agent"), FLEET NATIONAL BANK, as administrative agent
(in such capacity, the "Administrative Agent"), and FLEET NATIONAL BANK, as
security agent (in such capacity, the "Security Agent"). Unless otherwise
defined herein, capitalized terms used herein and defined in the Credit
Agreement are used herein as therein defined.
Each of the undersigned parties to the Guarantee and Collateral Agreement
or the Foreign Guarantees, as the case may be, made by the undersigned in favor
of Fleet National Bank, as Administrative Agent, for the benefit of the Lenders
hereby (a) consents to the transactions contemplated by the Second Waiver 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 Guarantees and the other Security Documents, as the case may be, are,
and shall remain, in full force and effect after giving effect to such Second
Waiver 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 __, 2002.
WEIGH-TRONIX, LLC BERKEL PRODUCTS CO., LIMITED
By: ________________________________ By: ________________________________
Name: Name:
Title: Title:
WEIGH-TRONIX, INC. MECMESIN, INC.
By: ________________________________ By: ________________________________
Name: Name:
Title: Title:
WEIGH-TRONIX, DELAWARE, INC. ▇▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS, INC.
By: ________________________________ By: ________________________________
Name: Name:
Title: Title:
WEIGH-TRONIX CANADA, ULC ▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By: ________________________________ By: ________________________________
Name: Name:
Title: Title:
SWT HOLDINGS B.V. ▇▇▇▇▇▇ WEIGH-TRONIX LIMITED
By: ________________________________ By: ________________________________
Name: Name:
Title: Title:
▇▇▇▇▇▇ HOUSEWARES HOLDINGS LIMITED ▇▇▇▇▇▇ HOUSEWARES LIMITED
By: ________________________________ By: ________________________________
Name: Name:
Title: Title:
WEIGH-TRONIX (UK) LIMITED ▇▇▇▇▇ ▇▇▇▇▇▇ HOLDINGS LIMITED
By: ________________________________ By: ________________________________
Name: Name:
Title: Title:
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▇▇▇▇▇ ▇▇▇▇▇▇ LIMITED ▇▇▇▇▇ ▇▇▇▇▇▇ PROPERTIES LIMITED
By: ________________________________ By: ________________________________
Name: Name:
Title: Title:
BERKEL (IRELAND) LIMITED
By: ________________________________
Name:
Title:
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