Exhibit 10.2
------------
AMENDMENT TO LIMITED WAIVER
---------------------------
This Amendment to Limited Waiver (the "Amendment") is entered into as
of September 27, 2001 by and among:
Cybex International, Inc., a New York corporation, having a place of
business at 00 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Borrower");
Cybex Financial Corp., Eagle Performance Systems, Inc., General Medical
Equipment, Ltd., Lumex Bed Systems, Inc., Cybex Fitness Gerate Vertriebs
GmBH, and Tectrix Fitness Equipment, Inc. (individually, a "Guarantor" and
collectively, the "Guarantors");
The Lenders party to the Credit Agreement (defined below) (hereinafter
collectively, the "Lenders"); and
First Union National Bank, as Administrative Agent for the Lenders
(hereinafter, in such capacity, the "Administrative Agent"), having a
principal place of business at One First Union Center, 000 Xxxxx Xxxxxxx
Xxxxxx, XX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000;
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
WITNESSETH:
----------
1. Background. On July 25, 2001, the Administrative Agent, the Lenders, the
----------
Borrower and the Guarantors entered into a certain Limited Waiver agreement (the
"Limited Waiver") with respect to certain terms and conditions of that certain
Credit Agreement, (as defined in the Limited Waiver) by and among others, the
Administrative Agent, the Lenders, the Borrower and the Guarantors. The
Borrowers and the Guarantors have asked that the Lenders and the Administrative
Agent amend certain provisions of the Limited Waiver, and the Lenders and the
Administrative Agent are willing to amend the Limited Waiver, on the terms and
conditions set forth herein.
2. Definitions. All capitalized terms used herein and not otherwise defined
-----------
shall have the same meaning herein as in the Limited Waiver and the Credit
Agreement, as applicable.
3. Waiver of Claims
----------------
a. The Borrower and the Guarantors each acknowledge and agree that they
do not have any offsets, defenses, or counterclaims against the
Administrative Agent, the Issuing Lender, or the Lenders with respect
to the Credit Agreement, the Guaranties, the Limited Waiver any other
Credit Documents, or otherwise. To the extent that any such offsets,
defenses or counterclaims may exist, the Borrower
and each Guarantor hereby WAIVES and RELEASES the Administrative
------ --------
Agent, the Issuing Lender, the Lenders and their respective officers,
representatives, counsel, trustees, and directors from any and all
actions, causes of action, claims, demands, damages, and liabilities
of whatever kind or nature, in law or in equity, now known or unknown,
suspected or unsuspected. The Borrower and each Guarantor shall
execute and deliver to the Administrative Agent, the Issuing Lender
and each Lender such releases as the Administrative Agent, the Issuing
Lender or any Lender may request to confirm the foregoing.
b. The Borrower and each Guarantor hereby ratifies and confirms that the
Obligations (as modified hereby) are, and will continue to be, secured
by the Collateral and the Guarantor Collateral.
4. Amendment to Limited Waiver. The Limited Waiver is hereby amended as
---------------------------
follows:
a. The term "Payment Event", as defined in the Limited Waiver, shall also
include the failure of the Borrower make certain principal payments
which were or will be due on August 31 or September 30, 2001.
b. Paragraph 4(a) of the Limited Waiver is hereby amended by inserting
the words "and August and September" after the word "July" in the 3rd
line thereof.
c. Paragraph 4(a)(ii) of the Limited Waiver is hereby deleted in its
entirety, and the following substituted in its stead:
ii. Any regularly scheduled payments of principal on the Term Loan
due and payable through September 30, 2001, to the extent not
previously paid, shall be paid on October 12, 2001.
d. Paragraph 4(c) of the Limited Waiver is hereby amended by deleting the
reference to "August 16, 2001" in subclause (i) thereof and
substituting "October 12, 2001" in its stead.
e. Paragraph 5 of the Limited Waiver is hereby deleted in its entirety,
and the Administrative Agent and the Lenders hereby waive any default
caused by the failure of the Borrower to consummate the sale-leaseback
transaction therein described.
5. Conditions to Effectiveness. This Amendment shall not be effective until
---------------------------
each of the following conditions precedent have been fulfilled to the
satisfaction of the Administrative Agent and the Lenders:
a. This Amendment shall have been duly executed and delivered by the
respective parties hereto and shall be in form and substance
satisfactory to the Administrative Agent and each of the Lenders.
2
b. All action on the part of the Borrower and each Guarantor necessary
for the valid execution, delivery and performance by the Borrower and
each Guarantor of this Amendment shall have been duly and effectively
taken and evidence thereof satisfactory to the Administrative Agent
and the Lenders shall have been provided to the Administrative Agent
and each of the Lenders.
c. The Borrower shall have paid to the Administrative Agent and Lenders
all expenses (including reasonable attorneys fees) and other amounts
then due and owing pursuant to the Credit Documents for which invoices
have been presented as of the date of execution hereof.
d. The Borrower and the Guarantors shall have provided such additional
instruments and documents to the Administrative Agent and the Lenders
as the Administrative Agent and the Administrative Agent's counsel may
have reasonably requested.
6. General.
-------
a. This Amendment shall be binding upon the Borrower and the Guarantors
and their respective successors and assigns and shall enure to the
benefit of the Administrative Agent, the Lenders, and their respective
successors and assigns.
b. Any determination that any provision of this Amendment or any
application thereof is invalid, illegal, or unenforceable in any
respect in any instance shall not affect the validity, legality, or
enforceability of such provision in any other instance, or the
validity, legality, or enforceability of any other provision of this
Amendment.
c. No delay or omission by the Administrative Agent or any Lender in
exercising or enforcing any of its rights and remedies shall operate
as, or constitute, a waiver thereof. No waiver by the Administrative
Agent or any Lender of any of its rights and remedies on any one
occasion shall be deemed a waiver on any subsequent occasion, nor
shall it be deemed a continuing waiver.
d. This Amendment incorporates all discussions and negotiations among the
Borrower, the Guarantors, the Administrative Agent and the Lenders,
either express or implied, concerning the matters included herein, any
custom, usage, or course of dealings to the contrary notwithstanding.
No such discussions, negotiations, custom, usage, or course of
dealings shall limit, modify, or otherwise affect the provisions
hereof. No modification, amendment, or waiver of any provision of this
Amendment or of any provision of any other agreement between the
Borrower, the Guarantors, the Administrative Agent or any Lender shall
be effective unless executed in writing by the party to be charged
with such modification, amendment and waiver.
3
e. Except as modified hereby, all terms and conditions of the Credit
Agreement, the Limited Waiver, the Existing Waiver, and the other
Credit Documents remain in full force and effect, and the Borrower and
Guarantors hereby ratify and confirm all of the terms and conditions
and warranties and representations set forth therein, and shall
continue to comply therewith.
f. This Amendment shall be deemed to constitute a "Credit Document" for
all purposes under the Credit Agreement.
g. The Borrower and each Guarantor shall execute such instruments and
documents as the Administrative Agent and the Lenders may from time to
time request in connection with the Credit Agreement and the other
Credit Documents, this Agreement and the arrangements contemplated
hereby.
[signature blocks on next pages]
4
It is intended that this Amendment take effect as a sealed instrument.
CYBEX INTERNATIONAL, INC.
By /S/ Xxxx Xxxxxxxxx
---------------------------------
Print Name: Xxxx Xxxxxxxxx
------------------------
Title: CEO
-----------------------------
CYBEX FINANCIAL CORP.
By /S/ Xxxx Xxxxxxxxx
---------------------------------
Print Name: Xxxx Xxxxxxxxx
------------------------
Title: CEO
-----------------------------
EAGLE PERFORMANCE SYSTEMS, INC.
By /S/ Xxxx Xxxxxxxxx
--------------------------------
Print Name: Xxxx Xxxxxxxxx
------------------------
Title: CEO
-----------------------------
GENERAL MEDICAL EQUIPMENT, LTD.
By /S/ Xxxx Xxxxxxxxx
---------------------------------
Print Name: Xxxx Xxxxxxxxx
------------------------
Title: CEO
-----------------------------
LUMEX BED SYSTEMS, INC.
By /S/ Xxxx Xxxxxxxxx
---------------------------------
Print Name: Xxxx Xxxxxxxxx
------------------------
Title: CEO
-----------------------------
5
CYBEX FITNESS GERATE VERTRIEBS, GMBH
By /S/ Xxxx Xxxxxxxxx
----------------------------------
Print Name: Xxxx Xxxxxxxxx
------------------------
Title: CEO
-----------------------------
TECTRIX FITNESS EQUIPMENT, INC.
By /S/ Xxxx Xxxxxxxxx
---------------------------------
Print Name: Xxxx Xxxxxxxxx
------------------------
Title: CEO
-----------------------------
AGREED AND ACCEPTED BY
FIRST UNION NATIONAL BANK
By: /S/ Xxx X. Xxxxxxxx
-------------------------------
Print Name: Xxx X. Xxxxxxxx
-----------------------
Title: Senior Vice President
----------------------------
FLEET NATIONAL BANK
By: /S/ Xxxxx X. Xxxxx
-------------------------------
Print Name: Xxxxx X. Xxxxx
-----------------------
Title: Vice President
----------------------------
6