EXHIBIT 10.12
WEIGH-TRONIX CANADA, ULC
as Guarantor
to and in favour of
THE LENDERS PARTY FROM TIME TO TIME
TO THE AMENDED AND RESTATED CREDIT AGREEMENT
and
THE COUNTERPARTIES FROM TIME TO TIME
TO THE SPECIFIED HEDGE AGREEMENTS
as Secured Creditors
and
FLEET NATIONAL BANK
as Collateral Agent
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AMENDED AND RESTATED GUARANTEE
June 13, 2000
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Stikeman Elliott
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
Section 1.1 Defined Terms......................................... 2
Section 1.2 Terms Incorporated by Reference....................... 5
Section 1.3 Certain Phrases, etc.................................. 5
Section 1.4 Gender and Number..................................... 5
Section 1.5 Headings, etc......................................... 5
ARTICLE 2
GUARANTEE
Section 2.1 Guarantee............................................. 5
Section 2.2 Absolute Liability.................................... 6
ARTICLE 3
ENFORCEMENT
Section 3.1 Remedies.............................................. 7
Section 3.2 Impairment of Security................................ 7
Section 3.3 Amount of Guaranteed Obligations...................... 7
Section 3.4 Payment on Demand..................................... 7
Section 3.5 Assignment and Postponement........................... 8
Section 3.6 Suspension of Guarantor Rights........................ 8
Section 3.7 No Prejudice to Secured Creditors or Collateral
Agent................................................. 9
Section 3.8 Postponement of Subrogation........................... 9
Section 3.9 No Set-off............................................ 10
Section 3.10 Successors of SWT..................................... 10
Section 3.11 Continuing Guarantee.................................. 10
Section 3.12 Supplemental Security................................. 11
Section 3.13 Security for Guarantee................................ 11
Section 3.14 Right of Set-off...................................... 11
Section 3.15 Interest Act (Canada)................................. 11
Section 3.16 Taxes and Other Taxes................................. 12
Section 3.17 Judgment Currency..................................... 13
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.1 Representations and Warranties........................ 14
Section 4.2 Survival of Representations and Warranties............ 15
Section 4.3 Amended and Restated Credit Agreement................. 15
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ARTICLE 5
GENERAL
Section 5.1 Notices................................................ 15
Section 5.2 Currency............................................... 16
Section 5.3 Further Assurances..................................... 16
Section 5.4 Successors and Assigns................................. 17
Section 5.5 Severability........................................... 17
Section 5.6 No Novation............................................ 17
Section 5.7 Waivers, etc........................................... 17
Section 5.8 Application of Proceeds................................ 17
Section 5.9 Governing Law.......................................... 18
AMENDED AND RESTATED GUARANTEE
Amended and Restated Guarantee dated as of the 13/th/ day of June, 2000,
made by WEIGH-TRONIX CANADA, ULC, an unlimited company incorporated and existing
under the laws of the Province of Nova Scotia, to and in favour of the Secured
Creditors and the Collateral Agent.
WHEREAS:
A. The Guarantor, other guarantors referred to therein, the Original
Borrowers, Fleet National Bank (as successor to BankBoston N.A.), as the
Fronting Bank and as the Fronting Agent, the other lending institutions listed
on Schedule I thereto, and the Original Agent entered into the Existing Credit
Agreement providing for the making of credit facilities available to the
Original Borrowers;
B. the Guarantor entered into the Original Guarantee whereby the
Guarantor guaranteed the payment and performance of the Original Borrowers
obligations under the Existing Credit Agreement;
C. pursuant to an assignment and acceptance agreement dated as of the
13th day of June, 2000 between, inter alia, the Guarantor, the Original
Borrowers, the Original Creditors, the Lenders, the Agent, and the Collateral
Agent, the parties to the Existing Credit Agreement assigned, inter alia, all of
their respective rights and obligations under the Existing Credit Agreement and
the other Loan Documents to the parties to the Amended and Restated Credit
Agreement;
D. in connection with the foregoing, the Guarantor and SWT, as borrowers,
Weigh-Tronix, LLC, certain banks and financial institutions party thereto,
Lehman Brothers Inc., as sole advisor, Lehman Brothers Inc. and FleetBoston
Robertson Stephens Inc., as co-arrangers and co-book managers, Lehman Commercial
Paper Inc., as syndication agent, Fleet National Bank, as security agent, and
the Agent have amended and restated the Existing Credit Agreement on the terms
and conditions contained in the Amended and Restated Credit Agreement;
E. it is a condition precedent to the continued extensions of credit to
the Borrowers on the terms and conditions of the Amended and Restated Credit
Agreement that the Guarantor amend and restate the Original Guarantee in its
entirety on the terms and conditions herein contained;
F. the Guarantor has determined that it is in the best interests of the
Guarantor to enter into this Amended and Restated Guarantee; and
G. the Guarantor has, contemporaneously herewith, executed and delivered
to the Collateral Agent for the benefit of and as agent of the Secured
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Creditors, the Guarantor Security Documents as continuing collateral security
for the obligations of the Guarantor under this Amended and Restated Guarantee.
NOW THEREFORE in consideration of the foregoing, the sum of $10.00 now paid
by the Collateral Agent and the Secured Creditors to the Guarantor and other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged, the Guarantor agrees as follows:
ARTICLE1
DEFINITIONS
Section 1.1 Defined Terms.
As used in this Amended and Restated Guarantee and the recitals hereto, the
following terms have the following meanings:
"Agent" means Fleet National Bank acting as administrative agent for the
Lenders under the Amended and Restated Credit Agreement and any successor
appointed pursuant to the Amended and Restated Credit Agreement.
"Amended and Restated Credit Agreement" means the amended and restated
credit agreement dated as of the 13th day of June, 2000, among the Guarantor,
and SWT Finance B.V., as borrowers, Weigh-Tronix, LLC, the Lenders, as lenders,
Lehman Brothers, Inc., as sole advisor, Lehman Brothers Inc. and FleetBoston
Robertson Stephens Inc., as co-arrangers and co-book managers, Lehman Commercial
Paper Inc., as syndication agent, Fleet National Bank, as security agent, and
the Agent, as the same may be further amended, modified, extended, renewed,
replaced, restated, supplemented or refinanced from time to time and including
any agreement extending the maturity of, refinancing or restructuring (including
the inclusion of additional borrowers hereunder or any increase in the amount
borrowed) all or any portion of, the indebtedness under such agreement or any
successor agreements, whether or not with the same agent or lenders.
"Amended and Restated Guarantee" means the Original Guarantee, as amended
and restated as this Amended and Restated Guarantee, as the same may be amended,
modified, extended, renewed, replaced, restated or supplemented from time to
time.
"Borrowers" means, collectively, the Guarantor and SWT.
"Collateral Agent" means the Agent acting as collateral agent for the
Secured Creditors.
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"Credit Documents" means, collectively, the Amended and Restated Credit
Agreement, the Loan Documents, the Letters of Credit, any Specified Hedge
Agreement and any other document, made, delivered or given in connection
therewith.
"Event of Default" shall mean any Event of Default under, and as defined
in, the Amended and Restated Credit Agreement or any payment default, after any
applicable grace period, under any other Credit Document.
"Existing Credit Agreement" means the credit agreement dated as of May 1,
1998 among, the Original Borrowers, the Guarantor, the guarantors referred to
therein, Fleet National Bank, (as successor to BankBoston N.A.), as the Foreign
Agent and as the Fronting Bank, other lending institutions listed on Schedule I
thereto and the Original Agent, as amended, modified, extended, renewed,
replaced, restated, supplemented or refinanced from time to time and including
any agreement extending the maturity of, refinancing or restructuring (including
the inclusion of additional borrowers thereunder or any increase in the amount
borrowed) all or any portion of, the indebtedness under such agreement or any
successor agreements.
"Governmental Entity" means any (i) multinational, federal, provincial,
state, municipal, local or other government, governmental or public department,
central bank, court, commission, board, bureau, agency or instrumentality,
domestic or foreign, (ii) any subdivision or authority of any of the foregoing,
or (iii) any quasi-governmental or private body exercising any regulatory,
expropriation or taxing authority under or for the account of any of the above.
"Guaranteed Obligations" has the meaning ascribed thereto in Section 2.1
hereof.
"Guarantor" means Weigh-Tronix Canada, ULC, an unlimited company
incorporated and existing under the laws of the Province of Nova Scotia, and its
successors and permitted assigns.
"Guarantor Security Documents" means the agreements described in Schedule
"A" hereto and any other security granted to the Collateral Agent or any Secured
Creditor as security for the obligations of the Guarantor under this Amended and
Restated Guarantee and the Obligations (as defined therein) of the Guarantor
under the Amended and Restated Credit Agreement.
"Lenders" means, collectively, Lehman Brothers Inc., as sole advisor,
Lehman Brothers Inc. and FleetBoston Robertson Stephens Inc., as co-arrangers
and co-book managers, Lehman Commercial Paper Inc., as syndication agent, the
Agent and the several banks and other financial institutions or entities from
time to time parties to
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the Amended and Restated Credit Agreement, and their respective successors and
permitted assigns.
"Letters of Credit" has the meaning ascribed thereto in the Amended and
Restated Credit Agreement.
"Loan Documents" has the meaning ascribed thereto in the Amended and
Restated Credit Agreement.
"Original Agent" means Fleet National Bank, as successor to BankBoston,
N.A., acting as administrative agent for the Original Lenders under the Existing
Credit Agreement.
"Original Borrowers" means, collectively, Palometa Investments B.V., SWT
Limited, Salter Housewares Holdings Limited and Salter Housewares Limited, as
borrowers under the Existing Credit Agreement and their respective successors
and permitted assigns.
"Original Collateral Agent" means the Original Agent acting as collateral
agent for various secured creditors pursuant to the Original Guarantee.
"Original Creditors" means, collectively, the Original Lenders, the
Original Agent and the Original Collateral Agent.
"Original Guarantee" means a guaranty by the Guarantor dated as of the 1st
day of May, 1998, guaranteeing the payment and performance of the Original
Borrowers" obligations under the Existing Credit Agreement as amended, modified,
supplemented and in effect immediately prior to the execution and delivery of
this amended and restated guarantee.
"Original Lenders" means, collectively, the lenders party to the Existing
Credit Agreement and their respective successors and permitted assigns.
"Secured Creditors" means, collectively, the Agent, the Collateral Agent
and the Lenders and each of the Agent, a Lender or any affiliate of such Lender,
as a counterparty under any Specified Hedge Agreement.
"Specified Hedge Agreement" has the meaning ascribed thereto in the Amended
and Restated Credit Agreement.
"SWT" means SWT Finance B.V., a limited liability company organized under
the laws of The Netherlands, and its successors and permitted assigns.
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Section 1.2 Terms Incorporated by Reference.
Capitalized terms used herein but not defined in this Amended and Restated
Guarantee shall have the meanings given to them in the Amended and Restated
Credit Agreement.
Section 1.3 Certain Phrases, etc.
In this Amended and Restated Guarantee (i) (y) the words "including" and
"includes" mean "including (or includes) without limitation" and (z) the phrase
"the aggregate of", "the total of", "the sum of", or a phrase of similar meaning
means "the aggregate (or total or sum), without duplication, of", and (ii) in
the computation of periods of time from a specified date to a later specified
date, unless otherwise expressly stated, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding".
Section 1.4 Gender and Number.
Any reference in this Amended and Restated Guarantee to gender shall
include all genders and words importing the singular number only shall include
the plural and vice versa.
Section 1.5 Headings, etc.
The division of this Amended and Restated Guarantee into Articles and
Sections and the insertion of headings are for convenient reference only and are
not to affect the interpretation of this Amended and Restated Guarantee.
ARTICLE2
GUARANTEE
Section"2.1 Guarantee.
The Guarantor irrevocably and unconditionally guarantees the due and
punctual payment to the Secured Creditors and the Collateral Agent, whether at
stated maturity, by acceleration or otherwise, of all present and future debts,
liabilities and obligations, direct or indirect, absolute or contingent, of SWT
to the Collateral Agent and the Secured Creditors or any of them arising out of,
in connection with or pursuant to, the Amended and Restated Credit Agreement and
the other Credit Documents and the due performance and compliance by SWT with
all of the terms and conditions of the Amended and Restated Credit Agreement and
each other Credit Document to which it is a party (such debts, liabilities and
obligations being herein collectively referred to as, the "Guaranteed
Obligations") and promises to pay, on demand, any and all expenses (including
reasonable counsel fees and disbursements) incurred by or on behalf of the
Secured Creditors and the Collateral Agent in enforcing any of their respective
rights under this Amended and Restated Guarantee.
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Section 2.2 Absolute Liability.
The Guarantor guarantees that the Guaranteed Obligations will be paid to
the Collateral Agent and the Secured Creditors strictly in accordance with their
terms and conditions, that the Guarantor shall be liable as principal debtor and
not solely as surety with respect to the payment of the Guaranteed Obligations
and that the liability of the Guarantor under this Amended and Restated
Guarantee shall be absolute and unconditional irrespective of:
(a) the lack of validity or enforceability of any terms of any of the
Credit Documents;
(b) any contest by SWT or any other Person as to the amount of the
Guaranteed Obligations, the validity or enforceability of any terms of
the Credit Documents or the perfection or priority of any security
granted to the Collateral Agent or the Secured Creditors;
(c) any defence, counterclaim or right of set-off available to SWT;
(d) any change in the time or times for, or place of or manner of payment
of the Guaranteed Obligations or any consent, waiver, renewal,
extension or other indulgences which the Secured Creditors or the
Collateral Agent may grant to SWT or any other Person or any amendment
or supplement to, or alteration or renewal of, or restatement,
replacement, refinancing or modification of (including any increase in
the amounts available thereunder or the inclusion of additional
borrowers thereunder), or other action or inaction under, any of the
Credit Documents or the Guaranteed Obligations and this Amended and
Restated Guarantee shall apply to the Guaranteed Obligations as so
changed, indulged, amended, supplemented, altered, renewed, restated,
replaced, refinanced, modified or increased;
(e) any dealings with the security which the Secured Creditors or the
Collateral Agent hold or may hold pursuant to the terms and conditions
of the Credit Documents, including the taking, giving up or exchange
of securities, their variation or realization, the accepting of
compositions and the granting of releases and discharges;
(f) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to SWT, the
Guarantor or any other Person or any action taken with respect to this
Amended and Restated Guarantee by any trustee or receiver, or by any
court, in any such proceeding, whether or not the Guarantor shall have
notice or knowledge of any of the foregoing;
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(g) the assignment of all or any part of the benefits of this Amended and
Restated Guarantee;
(h) any invalidity, non-perfection or unenforceability of any security
held by the Secured Creditors or the Collateral Agent or any
irregularity, default or defect in the manner or procedure by which
the Collateral Agent and the Secured Creditors deal with or realize on
such security; and
(i) any other circumstances which might otherwise constitute a defence
available to, or a discharge of, the Guarantor, SWT or any other
Person in respect of the Guaranteed Obligations or this Amended and
Restated Guarantee.
ARTICLE3
ENFORCEMENT
Section 3.1 Remedies.
The Secured Creditors and the Collateral Agent shall not be bound to
exhaust their recourse against SWT or any other Person or realize on any
security they may hold in respect of the Guaranteed Obligations before being
entitled to payment under this Amended and Restated Guarantee and the Guarantor
renounces all benefits of discussion and division.
Section 3.2 Impairment of Security.
Any loss of, or loss of value of, any security granted to any of the
Secured Creditors or the Collateral Agent by SWT or any other Person shall not
discharge pro tanto or limit or lessen the liability of the Guarantor under this
Amended and Restated Guarantee.
Section 3.3 Amount of Guaranteed Obligations.
Any account settled or stated by or between the Collateral Agent and SWT,
or if any such account has not been settled or stated immediately before demand
for payment under this Amended and Restated Guarantee, any account stated by the
Collateral Agent shall, in the absence of manifest mathematical error, be
accepted by the Guarantor as prima facie evidence of the amount of the
Guaranteed Obligations which is due by SWT to the Secured Creditors and the
Collateral Agent or remains unpaid by SWT to the Secured Creditors and the
Collateral Agent.
Section 3.4 Payment on Demand.
The obligation of the Guarantor to pay the amount of the Guaranteed
Obligations and all other amounts payable by it to the Secured Creditors or the
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Collateral Agent under this Amended and Restated Guarantee shall arise, and the
Guarantor shall make such payments, immediately after demand for same is made in
writing to it following the occurrence and during the continuance of an Event of
Default. The liability of the Guarantor shall bear interest from the date of
such demand at the rate or rates of interest then applicable to the Guaranteed
Obligations under and calculated in the manner provided in the Credit Documents
(including any adjustment to give effect to the provisions of the Interest Act
(Canada)).
Section 3.5 Assignment and Postponement.
(1) All obligations, liabilities and indebtedness of SWT to the Guarantor, if
any, of any nature whatsoever and all security therefor (the "Intercorporate
Indebtedness") are assigned and transferred to the Collateral Agent as
continuing and collateral security for the Guarantor's obligations under this
Amended and Restated Guarantee. Until the occurrence of an Event of Default, the
Guarantor may receive payments in respect of the Intercorporate Indebtedness in
accordance with their terms. The Guarantor shall not assign all or any part of
the Intercorporate Indebtedness to any Person other than the Collateral Agent or
the Secured Creditors.
(2) Upon the occurrence and during the continuance of an Event of Default, all
Intercorporate Indebtedness shall be held in trust for the Secured Creditors and
the Collateral Agent and shall be collected, enforced or proved subject to, and
for the purpose of, this Amended and Restated Guarantee and any payments
received by the Guarantor in respect of the Intercorporate Indebtedness shall be
segregated from other funds and property held by the Guarantor and immediately
paid to the Collateral Agent on account of the Guaranteed Obligations.
(3) Upon the occurrence and during the continuance of an Event of Default, the
Secured Creditors and the Collateral Agent shall be entitled to receive payment
of the Guaranteed Obligations in full before the Guarantor receives any payment
on account of the Intercorporate Indebtedness. In such case, the Intercorporate
Indebtedness shall not be released or withdrawn or set off against any amount,
obligation, liability or other indebtedness owing to SWT by the Guarantor unless
the Collateral Agent's written consent to the release or withdrawal or set off
is first obtained. The Guarantor shall not permit the prescription of the
Intercorporate Indebtedness by any statute of limitations or ask for or obtain
any security or negotiable paper for, or other evidence of, the Intercorporate
Indebtedness except for the purpose of delivering the same to the Collateral
Agent.
Section 3.6 Suspension of Guarantor Rights.
The Guarantor agrees that so long as there are any Guaranteed Obligations,
the Guarantor shall not exercise any rights which it may at any time have by
reason of the performance of any of its obligations under this Amended and
Restated Guarantee (i) to be indemnified by SWT, (ii) to claim contribution from
any other
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guarantor of the debts, liabilities or obligations of SWT, or (iii) subject to
Section 3.8, to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Secured Creditors or the
Collateral Agent under any of the Credit Documents.
Section 3.7 No Prejudice to Secured Creditors or Collateral Agent.
The Secured Creditors and the Collateral Agent shall not be prejudiced in
any way in the right to enforce any provision of this Amended and Restated
Guarantee by any act or failure to act on the part of SWT, the Secured Creditors
or the Collateral Agent. The Collateral Agent and the Secured Creditors may, at
any time and from time to time, in such manner as any of them may determine is
expedient, without any consent of, or notice to, the Guarantor and without
impairing or releasing the obligations of the Guarantor (i) change the manner,
place, time or terms of payment of, or renew, increase, refinance, accelerate or
alter, the Guaranteed Obligations, (ii) renew, increase, accelerate, replace,
refinance or otherwise vary any credit or credit facilities to, or the terms or
conditions of any transaction with, SWT or any other Person and this Amended and
Restated Guarantee shall apply to such credit, credit facilities or other
transaction as so renewed, increased, accelerated, replaced, refinanced or
otherwise varied, (iii) release, compound or vary the liability of SWT or any
other Person liable in any manner under or in respect of the Guaranteed
Obligations, (iv) exercise or enforce or refrain from exercising or enforcing
any right or security against SWT, the Guarantor or any other Person, and (v)
apply any sums from time to time received to the Guaranteed Obligations. In
their dealings with SWT, the Collateral Agent and the Secured Creditors need not
enquire into the authority or power of any Person purporting to act for or on
behalf of SWT.
Section 3.8 Postponement of Subrogation.
Any rights of subrogation acquired by the Guarantor by reason of payment
under this Amended and Restated Guarantee shall not be exercised until the
Guaranteed Obligations and all other amounts due to the Secured Creditors and
the Collateral Agent have been paid or repaid in full and such rights of
subrogation shall be no greater than the rights held by the Secured Creditors
and the Collateral Agent. In the event (i) of the liquidation, winding-up or
bankruptcy of SWT (whether voluntary or compulsory), (ii) that SWT makes a bulk
sale of any of its assets within the provisions of any bulk sales legislation,
or (iii) that SWT makes any composition with creditors or enters into any scheme
of arrangement, then the Secured Creditors and the Collateral Agent shall have
the right to rank in priority to the Guarantor for their full claims in respect
of the Guaranteed Obligations and receive all dividends or other payments until
their claims have been paid in full. The Guarantor shall continue to be liable,
less any payments made by it, for any balance which may be owing to the Secured
Creditors or the Collateral Agent by SWT. No valuation or retention of their
security by the Secured Creditors or the
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Collateral Agent shall, as between the Collateral Agent and the Secured
Creditors and the Guarantor, be considered as a purchase of such security or as
payment or satisfaction or reduction of all or any part of the Guaranteed
Obligations. If any amount is paid to the Guarantor at any time when all the
Guaranteed Obligations and other amounts due to the Secured Creditors and the
Collateral Agent have not been paid in full, the amount shall be held in trust
for the benefit of the Secured Creditors and the Collateral Agent and shall
immediately be paid to the Collateral Agent to be credited and applied upon the
Guaranteed Obligations, whether matured or unmatured. The Guarantor shall have
no recourse against the Secured Creditors or the Collateral Agent for any
invalidity, non-perfection or unenforceability of any security held by the
Secured Creditors or the Collateral Agent or any irregularity or defect in the
manner or procedure by which the Secured Creditors or the Collateral Agent
realize on such security.
Section 3.9 No Set-off.
To the fullest extent permitted by law, the Guarantor shall make all
payments under this Amended and Restated Guarantee without regard to any
defence, counter-claim or right of set-off available to it.
Section 3.10 Successors of SWT
Any change or changes in the name of, or reorganization (whether by way of
reconstruction, consolidation, amalgamation, merger, transfer, sale, lease or
otherwise) of, SWT or its business shall not affect or in any way limit or
lessen the liability of the Guarantor under this Amended and Restated Guarantee
or under any of the Guarantor Security Documents. This Amended and Restated
Guarantee and the Guarantor Security Documents shall extend to any person, firm
or corporation acquiring or from time to time carrying on the business of SWT.
Section 3.11 Continuing Guarantee.
This Amended and Restated Guarantee is a continuing guarantee. It extends
to all present and future Guaranteed Obligations, applies to and secures the
ultimate balance of the Guaranteed Obligations due or remaining due to the
Collateral Agent and the Secured Creditors and shall be binding as a continuing
obligation of the Guarantor until the Collateral Agent and the Secured Creditors
release the Guarantor. This Amended and Restated Guarantee shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Guaranteed Obligations is rescinded or must otherwise be returned by
the Secured Creditors or the Collateral Agent upon the insolvency, bankruptcy or
reorganization of SWT or otherwise, all as though the payment had not been made.
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Section 3.12 Supplemental Security.
This Amended and Restated Guarantee is in addition and without prejudice to
and supplemental to all other guaranties and securities held or which may
hereafter be held by the Secured Creditors or the Collateral Agent.
Section 3.13 Security for Guarantee.
The Guarantor acknowledges that this Amended and Restated Guarantee is
intended to secure payment of the Guaranteed Obligations and that the payment of
the Guaranteed Obligations and the other obligations of the Guarantor under this
Amended and Restated Guarantee are secured pursuant to the terms and provisions
of the Guarantor Security Documents.
Section 3.14 Right of Set-off.
Upon the occurrence and during the continuance of any Event of Default, the
Collateral Agent and each of the Secured Creditors are authorized by the
Guarantor and may, to the fullest extent permitted by law, set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by the Collateral Agent
or the Secured Creditors to or for the credit or the account of the Guarantor
against any and all of the obligations of the Guarantor now or hereafter
existing irrespective of whether or not (i) the Secured Creditors or the
Collateral Agent have made any demand under this Amended and Restated Guarantee,
or (ii) any of the obligations comprising the Guaranteed Obligations are
contingent or unmatured. The Collateral Agent and the Secured Creditors agree
promptly to notify the Guarantor after any such set-off and application made by
the relevant Collateral Agent or Secured Creditor provided that the failure to
give notice shall not affect the validity of the set-off and application. The
rights of the Collateral Agent and the Secured Creditors under this Section 3.14
are in addition and without prejudice to and supplemental to other rights and
remedies which the Collateral Agent and the Secured Creditors may have.
Section 3.15 Interest Act (Canada).
For the purpose of the Interest Act (Canada), whenever any interest, fee or
commission payable under this Amended and Restated Guarantee is calculated using
a rate based on a year of 360 days or 365 days, as the case may be, the rate
determined pursuant to such calculation, when expressed as an annual rate, is
equivalent to (x) the applicable rate based on a year of 360 days or 365 days,
as the case may be, (y) multiplied by the actual number of days in the calendar
year in which the period for which such interest or fee is payable (or
compounded) ends, and (z) divided by 360 or 365 days, as the case may be, the
principle or deemed reinvestment of interest does not apply to any interest
calculation under this Amended and Restated Guarantee, and the rates of interest
stipulated in this
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Amended and Restated Guarantee are intended to be nominal rates and not
effective rates or yields.
Section 3.16 Taxes and Other Taxes.
(1) All payments to the Secured Creditors and the Collateral Agent by the
Guarantor under this Amended and Restated Guarantee or under any of the
Guarantor Security Documents shall be made free and clear of and without
deduction or withholding for any and all taxes, levies, imposts, deductions,
charges or withholdings and all related liabilities (all such taxes, levies,
imposts, deductions, charges, withholdings and liabilities being referred to as
"Taxes") imposed by any jurisdiction (or any political subdivision or taxing
authority of it), unless such Taxes are required by applicable law to be
deducted or withheld. If the Guarantor shall be required by applicable law to
deduct or withhold any such Taxes from or in respect of any amount payable under
this Amended and Restated Guarantee or under any of the Guarantor Security
Documents, (i) the amount payable shall be increased (and for greater certainty,
in the case of interest, the amount of interest shall be increased) as may be
necessary so that after making all required deductions or withholdings
(including deductions or withholdings applicable to any additional amounts paid
under this Section 3.16), the Secured Creditors and the Collateral Agent receive
an amount equal to the amount they would have received if no such deduction or
withholding had been made, (ii) the Guarantor shall make such deductions or
withholdings, and (iii) the Guarantor shall immediately pay the full amount
deducted or withheld to the relevant Governmental Entity in accordance with
applicable law.
(2) The Guarantor agrees to immediately pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges, financial
institutions duties, debits taxes or similar levies (all such taxes, charges,
duties and levies being referred to as "Other Taxes") which may arise from any
payment made by the Guarantor under this Amended and Restated Guarantee or under
any of the Guarantor Security Documents or from the execution, delivery or
registration of, or otherwise with respect to, this Amended and Restated
Guarantee or any of the Guarantor Security Documents.
(3) The Guarantor shall indemnify the Secured Creditors and the Collateral
Agent for the full amount of Taxes or Other Taxes (including any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable by the Guarantor under this
Section 3.16) paid by the Secured Creditors or the Collateral Agent and any
liability (including penalties, interest and expenses) arising from or with
respect to such Taxes or Other Taxes, whether or not they were correctly or
legally asserted, excluding, in the case of any Secured Creditor and the
Collateral Agent, and subject to the next following sentence, Taxes imposed on
its net income or capital taxes or receipts and franchise taxes. If any Taxes on
the worldwide net income, profits or
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gains of any Secured Creditor or the Collateral Agent are asserted, imposed,
levied or assessed against such Secured Creditor or the Collateral Agent in
respect of any amount payable pursuant to this Section 3.16 the Guarantor will
indemnify such Secured Creditor or the Collateral Agent, as the case may be,
against such payment or liability together with any interest, penalties and
expenses payable or incurred in connection therewith. Payment under this
indemnification shall be made within 30 days from the date the Collateral Agent
or the relevant Secured Creditor, as the case may be, make written demand for
it. A certificate as to the amount of such Taxes or Other Taxes submitted to the
Guarantor by the Collateral Agent or the relevant Secured Creditor shall be
prima facie evidence, absent manifest error, of the amount due from the
Guarantor to the Collateral Agent or the Secured Creditors, as the case may be.
(4) The Guarantor shall furnish to the Collateral Agent and the Secured
Creditors the original or a certified copy of a receipt evidencing payment of
Taxes or Other Taxes made by the Guarantor within 30 days after the date of any
payment of Taxes or Other Taxes.
(5) The provisions of this Section 3.16 shall survive the termination of this
Amended and Restated Guarantee.
Section 3.17 Judgment Currency.
(1) If for the purposes of obtaining judgment in any court it is necessary to
convert all or any part of the Guaranteed Obligations or any other amount due to
a Secured Creditor or the Collateral Agent in respect of the Guarantor's
obligations under this Amended and Restated Guarantee in any currency (the
"Original Currency") into another currency (the "Other Currency"), the
Guarantor, to the fullest extent that it may effectively do so, agrees that the
rate of exchange used shall be that at which, in accordance with normal banking
procedures, the Secured Creditor or the Collateral Agent, as the case may be,
could purchase the Original Currency with the Other Currency on the Business Day
preceding that on which final judgment is paid or satisfied.
(2) The obligations of the Guarantor in respect of any sum due in the Original
Currency from it to any Secured Creditor or the Collateral Agent shall,
notwithstanding any judgment in any Other Currency, be discharged only to the
extent that on the Business Day following receipt by such Secured Creditor or
the Collateral Agent, as the case may be, of any sum adjudged to be so due in
such Other Currency such Secured Creditor or the Collateral Agent, as the case
may be, may, in accordance with its normal banking procedures, purchase the
Original Currency with such Other Currency. If the amount of the Original
Currency so purchased is less than the sum originally due to the Secured
Creditor or the Collateral Agent, as the case may be, in the Original Currency,
the Guarantor agrees,
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as a separate obligation and notwithstanding any such judgment, to indemnify the
Secured Creditor or the Collateral Agent, as the case may be, against such loss,
and if the amount of the Original Currency so purchased exceeds the sum
originally due to the Secured Creditor or the Collateral Agent, as the case may
be, in the Original Currency, the Secured Creditor or the Collateral Agent, as
the case may be, agrees to remit such excess to the Guarantor.
ARTICLE4
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.1 Representations and Warranties.
The Guarantor hereby represents and warrants to and in favour of the
Collateral Agent and the Secured Creditors, acknowledging and confirming that
each Secured Creditor and the Collateral Agent is relying thereon without
independent inquiry in connection with the acceptance of this Amended and
Restated Guarantee, that:
(a) Amended and Restated Credit Agreement. The representations and
warranties set forth in Section 4 of the Amended and Restated Credit
Agreement as they relate to the Guarantor or to the Loan Documents to
which the Guarantor is a party, are true and correct, and each Secured
Creditor and the Collateral Agent shall be entitled to rely on them as
if they were fully set forth herein, provided that each reference in
each such representation and warranty to the knowledge of the
Guarantor as a Borrower therein shall, for the purposes of this
Section 4.1(a), be deemed to be a reference to the Guarantor"s
knowledge.
(b) Incorporation and Qualification. The Guarantor is an unlimited
company duly incorporated, organized and validly existing under the
laws of the Province of Nova Scotia, Canada.
(c) Idem. The authorized capital of the Guarantor consists of 100,000
common shares, of which 100 common shares have been issued and are
outstanding as fully paid and non-assessable. SWT Holdings B.V. is
the registered and beneficial owner of all of the issued and
outstanding shares in the capital of the Guarantor. There is no
shareholders' agreement or other agreement relating to the shares in
the capital of the Guarantor.
(d) No Subsidiaries; No Real Property. The Guarantor has no Subsidiaries.
The Guarantor does not own any real property and is not bound by any
agreement to own any real property.
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(e) Personal Property Security. The Guarantor Security Documents create,
in favour of the Collateral Agent for the benefit of the Secured
Creditors, a valid and enforceable perfected security interest in and
Lien on all of the property and assets of the Guarantor, superior to
and prior to the rights and Liens of all third Persons and subject to
no other Liens. Except as have been obtained or made, no consents,
filings or recordings are required to maintain the perfection and
priority of the security interests purported to be created by the
Guarantor Security Documents.
Section 4.2 Survival of Representations and Warranties.
The representations and warranties herein set forth or contained in any
certificates or documents delivered to the Collateral Agent or the Secured
Creditors pursuant hereto shall not merge in or be prejudiced by and shall
survive any borrowing under the Amended and Restated Credit Agreement and shall
continue in full force and effect until the Guaranteed Obligations and all other
amounts owing hereunder shall be paid or repaid in full.
Section 4.3 Amended and Restated Credit Agreement.
Until the Guaranteed Obligations and all other amounts owing hereunder
shall be paid or repaid in full and the Secured Creditors have no obligations
under the Amended and Restated Credit Agreement, the Guarantor covenants and
agrees that it shall take, or shall refrain from taking, as the case may be, all
actions that are necessary to be taken or not taken so that no violation of any
provision, covenant or agreement contained in Section 6, 7 or 8 of the Amended
and Restated Credit Agreement, and so that no Default or Event of Default, is
caused by the actions of the Guarantor.
ARTICLE5
GENERAL
Section 5.1 Notices.
All notices, requests and demands to or upon the respective parties hereto
shall be in writing (including by telecopy), and unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered,
or three Business Days after being deposited in the mail, postage prepaid, or,
in the case of telecopy notice, when received, addressed as follows:
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(a) to the Guarantor at:
Weigh-Tronix Canada, ULC
c/o Weigh-Tronix, LLC
293 S. Main Street
Providence, Rhode Island 02903
Attention: Don MacKenzie
Chief Financial Officer
Telephone: (401) 272-4402
Facsimile: (401) 751-8829
(b) to the Collateral Agent or the Secured Creditors, to the Collateral Agent
at:
Fleet National Bank
100 Federal Street
Boston, MA 02110
USA
Attention: Connie Moore
Telephone: (617) 434-9383
Facsimile: (617) 434-4929
provided that any notice, request or demand to or upon the Collateral Agent or
any Secured Creditor shall not be effective until received.
Section 5.2 Currency.
All references in this Amended and Restated Guarantee to dollars, unless
otherwise specifically indicated, are expressed in U.S. Dollars.
Section 5.3 Further Assurances.
The Guarantor agrees that it will from time to time, at the request of the
Collateral Agent, do all such things and execute all such documents as the
Collateral Agent may consider necessary or desirable to give full effect to this
Amended and Restated Guarantee and to perfect and preserve the rights and powers
of the Collateral Agent and the Secured Creditors hereunder. The Guarantor
acknowledges and confirms that the Guarantor itself has established its own
adequate means of obtaining from SWT on a continuing basis all information
desired by the Guarantor concerning the financial condition of SWT and that the
Guarantor will look to SWT and not to the Collateral Agent or the Secured
Creditor, in order for the Guarantor to keep adequately informed of changes in
SWT"s financial condition.
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Section 5.4 Successors and Assigns.
This Amended and Restated Guarantee shall be binding upon the Guarantor,
its successors and assigns, and shall enure to the benefit of the Secured
Creditors, the Collateral Agent and their respective successors and assigns. The
Guarantor may not assign, transfer or delegate any of its rights or obligations
under this Amended and Restated Guarantee without the prior written consent of
the Collateral Agent.
Section 5.5 Severability.
If any provision of this Amended and Restated Guarantee is deemed by any
court of competent jurisdiction to be invalid or void, the remaining provisions
shall remain in full force and effect.
Section 5.6 No Novation.
The execution and delivery of this Amended and Restated Guarantee shall not
constitute or create any novation of the Original Guarantee. Except as amended
and restated in this Amended and Restated Guarantee, the Collateral Agent and
the Guarantor acknowledge and agree that the Original Guarantee continues in
full force and effect and is enforceable in accordance with its terms.
Section 5.7 Waivers, etc.
None of the terms and conditions of this Amended and Restated Guarantee may
be changed, amended, waived, modified or varied in any manner whatsoever except
in accordance with Section 10.1 of the Amended and Restated Credit Agreement.
Section 5.8 Application of Proceeds.
All monies collected by the Collateral Agent or any Secured Creditor
hereunder shall be applied in the manner provided in Section 5.10 of the amended
and restated security agreement dated as of the date hereof made by the
Guarantor in favour of the Collateral Agent for the benefit of the Secured
Creditors.
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Section 5.9 Governing Law.
This Amended and Restated Guarantee shall be governed by and interpreted
and enforced in accordance with the laws of the Province of Ontario and the
federal laws of Canada applicable therein.
IN WITNESS WHEREOF the Guarantor has caused this Amended and Restated
Guarantee to be executed by its duly authorized officer as of the day and year
first above written.
WEIGH-TRONIX CANADA, ULC
Per:/s/ Weigh-Tronix Canada, ULC
----------------------------
Authorized Signing Officer
FLEET NATIONAL BANK
Per:/s/ Fleet National Bank
----------------------------
Authorized Signing Officer
SCHEDULE "A"
GUARANTOR SECURITY DOCUMENTS
1. Amended and Restated Security Agreement dated as of June 13, 2000 made by
Weigh-Tronix Canada, ULC to and in favour of Fleet National Bank for the
benefit and as agent of the Secured Creditors.
2. Demand Debenture dated as of June 13, 2000 made by Weigh-Tronix Canada, ULC
to and in favour of Fleet National Bank.
3. Debenture Pledge Agreement dated as of June 13, 2000 made by Weigh-Tronix
Canada, ULC to and in favour of Fleet National Bank for the benefit of and
as agent of the Secured Creditors.
4. Deed of Hypothec dated as of June 13, 2000 made by Weigh-Tronix Canada, ULC
to and in favour of Fleet National Bank.