SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM 10
General Form for Registration of Securities
Pursuant to Section 12(b) or 12(g) of the
Securities Exchange Act of 1934
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MT Investors Inc.
(Exact name of registrant as specified in its charter)
Delaware 13-3668641
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Im Langacher
P.O. Box MT-100
CH 8608 Greifensee, Switzerland
(Address of principal executive offices)
41-1-944-22-11
(Registrant's telephone number, including area code)
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Securities to be registered pursuant to Section 12(b) of the Act: NONE
Securities to be registered pursuant to Section 12(g) of the Act:
Class A Common Stock, par value $.01 per share
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(Title of class)
Class C Common Stock, par value $.01 per share
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(Title of class)
MT INVESTORS INC.
REGISTRATION STATEMENT ON FORM 10
INDEX
PAGE
ITEM 1. BUSINESS..............................................................1
ITEM 2. FINANCIAL INFORMATION................................................12
ITEM 3. PROPERTIES...........................................................26
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT.....................................................27
ITEM 5. DIRECTORS AND EXECUTIVE OFFICERS OF THE
REGISTRANT.....................................................28
ITEM 6. EXECUTIVE COMPENSATION...............................................30
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.......................32
ITEM 8. LEGAL PROCEEDINGS....................................................33
ITEM 9. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY AND
RELATED STOCKHOLDER MATTERS....................................33
ITEM 10. RECENT SALES OF UNREGISTERED SECURITIES.............................34
ITEM 11. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE
REGISTERED.....................................................35
ITEM 12. INDEMNIFICATION OF DIRECTORS AND OFFICERS...........................36
ITEM 13. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.........................37
ITEM 14. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE...........................................37
ITEM 15. FINANCIAL STATEMENTS AND EXHIBITS...................................37
SIGNATURES ...............................................................38
The "Company" or "Mettler-Toledo" as used herein means the Registrant's
indirectly wholly owned subsidiary Mettler-Toledo, Inc. and its subsidiaries,
after giving effect to the acquisition of the Mettler-Toledo Group on October
15, 1996. The Registrant has no material assets, liabilities or operations
other than those that result from its ownership of 100% of the outstanding
common stock of Mettler-Toledo Holding Inc., the parent of Mettler-Toledo, Inc.
Mettler-Toledo[R], Mettler[R], Ingold[R], Garvens[R], Ohaus[R], and
DigiTol[R] are registered trademarks of the Company and Brickstone[TM],
Spider[TM], Mentor SC[TM], MultiRange[TM] and TRUCKMATE[TM] are trademarks of
the Company.
ITEM 1. BUSINESS
GENERAL
Mettler-Toledo is the world's largest manufacturer and marketer of
weighing instruments for use in laboratory, industrial and food retailing
applications. The Company focuses on the high value-added segments of the
weighing instruments market by providing solutions for specific applications.
The Company also manufactures and sells certain related laboratory measurement
instruments, with one of the top three market positions worldwide in titrators,
thermal analysis systems, pH meters, and lab reactors. Mettler-Toledo services
a worldwide customer base, with 1996 net sales of $849 million, which were
derived 50% in Europe, 39% in North and South America and 11% in Asia and other
markets. For additional financial information by geographic segment, see Note
20 to the Audited Consolidated Financial Statements included elsewhere in this
Registration Statement (the "Audited Consolidated Financial Statements"). The
Company has a global manufacturing presence, with manufacturing facilities in
Europe, the United States and Asia.
Mettler-Toledo is the only company to offer weighing products for
laboratory, industrial and food retailing applications throughout the world.
The Company believes that in 1996, the global market for weighing instruments
for laboratory, industrial and food retailing applications was approximately
$4.5 billion and that the Company held a market share more than two times
greater than its nearest competitor. The Company believes that in 1996, it had
an approximate 40% market share of the global market for laboratory balances,
including the largest market share in each of Europe, the United States and
Asia (excluding Japan), and one of the three leading positions in Japan. In the
industrial and food retailing market, the Company believes it has the largest
market share in Europe and in the United States. In Asia, the Company has a
substantial, rapidly growing industrial and food retailing business supported
by its established manufacturing presence in China. The Company attributes its
worldwide market leadership position to its brand recognition, its leadership
in technological innovation, its comprehensive product range, its global sales
and service organization, its large installed base of weighing instruments and
the diversity of its revenue base.
HISTORY
The Company traces its roots to the invention of the single-pan analytical
balance by Dr. Erhard Mettler and the formation of Mettler Instrumente AG
("Mettler") in 1945. During the 1970s and 1980s, Mettler expanded from
laboratory balances into industrial and food retailing products, and it
introduced the first fully electronic precision balance in 1973. The Toledo
Scale Company ("Toledo Scale") was founded in 1901 and developed a leading
market position in the industrial weighing market in the United States. During
the 1970s, Toledo Scale expanded into the food retailing market. In 1981,
Toledo Scale set up a joint venture in Changzhou, China, which gave it early
access to the large potential Chinese weighing market. Following the 1989
acquisition of Toledo Scale by Mettler, the name of the Company was changed to
Mettler-Toledo to reflect the combined strengths of the two companies and to
capitalize on their historic reputations for quality and innovation. During the
past 15 years, the Company has grown through other acquisitions that
complemented existing geographic markets and product lines. In 1986, Mettler
acquired the Ingold Group of companies, manufacturers of electrodes, and
Garvens Kontrollwaagen AG, a maker of dynamic checkweighers. Toledo Scale
acquired Hi-Speed Checkweigher Co., Inc. in 1981. In 1990, the Company acquired
Ohaus Corporation, a manufacturer of laboratory balances.
The Registrant was incorporated in December 1991. It was recapitalized in
connection with the October 15, 1996 acquisition (the "Acquisition") of the
Mettler-Toledo Group from Ciba-Geigy AG ("Ciba"). See Note 1 to the Audited
Consolidated Financial Statements for further information with respect to the
Acquisition. The Company is a wholly owned subsidiary of Mettler-Toledo Holding
Inc.
On May 30, 1997, the Company purchased Safeline Limited, the world's
leading supplier of metal detection systems for companies who produce and
package goods in the food, pharmaceutical, cosmetics and other industries. See
Item 1, "Business - Recent Developments."
PRODUCTS
Laboratory
The Company manufactures and markets a complete range of laboratory
balances, as well as other selected laboratory measurement instruments, such as
titrators, thermal analysis systems, pH meters and lab reactors, for laboratory
applications in research and development, quality assurance, production and
education. Laboratory products accounted for approximately 40% of the Company's
net sales in 1996 (including revenues from related after-sale service). The
Company believes that it has an approximate 40% share of the global market for
laboratory balances and is among the top three worldwide producers of
titrators, thermal analysis systems, pH meters and lab reactors. The Company
believes it has the leading market share for laboratory balances in Europe, the
United States and Asia (excluding Japan) and one of the three leading positions
in Japan.
Balances. The balance is the most common piece of equipment in the
laboratory. The Company believes that it sells the highest performance
laboratory balances available on the market, with weighing ranges up to 32
kilograms and down to one ten-millionth of a gram. The Mettler-Toledo name is
identified worldwide with accuracy, reliability and innovation. The Company's
brand name is so well recognized that laboratory balances are often referred to
as "Mettlers." This reputation, in management's judgment, constitutes one of
the Company's principal competitive strengths.
In order to cover a wide range of customer needs and price points,
Mettler-Toledo markets precision balances, analytical and semimicrobalances,
microbalances and ultramicrobalances in three principal product tiers offering
different levels of functionality. High-end balances provide maximum automation
of calibration, application support and additional functions. Mid-level
balances provide a more limited but still extensive set of automated features
and software applications, while basic level balances provide simple operations
and a limited feature set. The Company also manufactures mass comparators,
which are used by weights and measures regulators as well as laboratories to
ensure the accuracy of reference weights. Due to the wide range of functions
and features offered by the Company's products, prices vary significantly. A
typical mid-range precision balance is priced at approximately $2,500 and a
typical microbalance is priced at approximately $14,000.
The Company regularly introduces new features and updated models in its
lines of balances. For example, the Company's DeltaRange models permit weighing
of light and heavy samples on the same balance without the need for difficult
adjustments, a function particularly useful in dispensing and formula weighing.
High-end balances are equipped with fully automatic calibration technology.
These balances are carefully calibrated many times in controlled environments,
with the results of the calibrations incorporated into built-in software, so
that adjustments to ambient temperature and humidity can automatically be made
at any time. The Company also offers universal interfaces that offer
simultaneous connection of up to five peripheral devices. The customer can then
interface one balance with, for example, a computer for further processing of
weighing data, a printer for automatically printing results and a bar-code
reader for sample identification.
In addition to Mettler-Toledo brand products, the Company also
manufactures and sells balances under the brand name "Ohaus." Ohaus brand
products include triple-beam balances, strain gauge balances and electronic
balances for the educational market and other markets in which customers are
interested in lower cost, a more limited set of features and less comprehensive
service.
Titrators. Titrators measure the chemical composition of samples. The
Company's high-end titrators are multi-tasking models, which can perform two
determinations simultaneously. They permit high sample throughputs and have
extensive expansion capability and flexibility in calculations, functions and
parameters. Lower-range models permit common determinations to be stored in a
database for frequent use. Titrators are used heavily in the food and beverage
industry. A typical titrator is priced at approximately $12,000.
Thermal Analysis Systems. Thermal analysis systems measure different
properties, such as weight, dimension and energy flow, at varying temperatures.
The Company's thermal analysis products include full computer integration and a
significant amount of proprietary software. Thermal analysis systems are used
primarily in the plastics and polymer industries. A typical thermal analysis
system is priced at approximately $50,000.
pH Meters. A pH meter measures acidity in a laboratory sample and is the
second most widely used measurement instrument in the laboratory, after the
balance. The Company manufactures desktop models and portable models. Desktop
models are microprocessor-based instruments, offering a wide range of features
and self-diagnostic functions. Portable models are waterproof, ultrasonically
welded and ergonomically designed, and permit later downloading of data to a
computer or printer using an interface kit and custom software. PH meters are
used in a wide range of industries. A typical pH meter is priced at
approximately $1,200.
Lab Reactors and Reaction Calorimeters. Lab reactors and reaction
calorimeters are used to simulate an entire chemical manufacturing process in
the laboratory before proceeding to production, in order to ensure the safety
and feasibility of the process. The Company's products are fully
computer-integrated, with a significant software component, and offer wide
flexibility in the structuring of experimental processes. Lab reactors and
reaction calorimeters are typically used in the chemical and pharmaceutical
industries. A typical lab reactor is priced at approximately $140,000.
Electrodes. The Company manufactures electrodes for use in a variety of
laboratory instruments and in-line process applications. Laboratory electrodes
are consumable goods used in pH meters and titrators, which may be replaced
many times during the life of the instrument. In-line process electrodes are
used to monitor production processes, for example, in the beverage industry. A
typical in-line process electrode is priced at approximately $1,600.
Other Instruments. The Company sells density and refractometry
instruments, which measure chemical concentrations in solutions. These
instruments are sourced through a marketing joint venture with a third-party
manufacturer, but are sold under the Mettler-Toledo brand name. In addition,
the Company manufactures and sells moisture analyzers, which precisely
determine the moisture content of a sample by utilizing an infrared dryer to
evaporate moisture.
Industrial and Food Retailing
Weighing is one of the most broadly used measurement techniques in
industry and food retailing. The Company's industrial and food retailing
weighing and related products include bench and floor scales for standard
industrial applications, truck and railcar scales for heavy industrial
applications, checkweighers (which determine the weight of goods in motion),
scales for use in food retailing establishments and specialized software
systems for industrial processes. Increasingly, many of the Company's
industrial and food retailing products can integrate weighing data into process
controls and information systems. The Company's industrial and food retailing
products are also sold to original equipment manufacturers ("OEMs"), which
incorporate the Company's products into larger process solutions and
comprehensive food retailing checkout systems. At the same time, the Company's
products themselves include significant software content and additional
functions including networking, printing and labeling capabilities, and the
incorporation of other measuring technologies such as dimensioning. The Company
works with customer segments to create specific solutions to their weighing
needs. The Company has also recently worked closely with the leading
manufacturer of postal meters to develop a new generation of postal metering
systems.
Industrial and food retailing products accounted for approximately 60% of
the Company's net sales in 1996 (including revenues from related after-sale
service). The Company believes that it has the leading position in industrial
and food retailing sales in Europe and in the United States. In Asia, the
Company has a substantial, rapidly growing industrial and food retailing
business supported by established manufacturing capabilities in China. The
Company believes that it is the only company with a true global presence across
industrial and food retailing weighing applications.
Standard Industrial Products. The Company offers a complete line of
standard industrial scales, such as bench scales and floor scales, for weighing
loads from a few grams to loads of several thousand kilograms in applications
ranging from measuring materials in chemical production to weighing mail and
packages. Product lines include the "Spider" range of scales, often used in
receiving and shipping departments in counting applications; "TrimWeigh"
scales, which determine whether an item falls within a specified weight range,
and are used primarily in the food industry; "Mentor SC" scales, for counting
parts; and precision scales for formulating and mixing ingredients. The
Company's "MultiRange" products include standardized software which uses the
weight data obtained to calculate other parameters, such as price or number of
pieces. The modular design of these products facilitates the integration of the
Company's weighing equipment into a computer system performing other functions,
like inventory control or batch management. Prices vary significantly with the
size and functions of the scale, generally ranging from $1,000 to $20,000.
Heavy Industrial Products. The Company's primary heavy industrial products
are scales for weighing trucks or railcars (i.e., weighing bulk goods as they
enter a factory or at a toll station). The Company's truck scales, such as the
"DIGITOL TRUCKMATE," generally have digital load cells, which offer significant
advantages in serviceability over analog load cells. Heavy industrial scales
are capable of measuring weights up to 500 tons and permit accurate weighing
under extreme environmental conditions. The Company also offers advanced
computer software that can be used with its heavy industrial scales to permit a
broad range of applications. Truck sales prices generally range from $25,000 to
$50,000.
Dynamic Checkweighing. The Company offers solutions to checkweighing
requirements in the food, pharmaceutical, chemical and cosmetic industries,
where accurate filling of packages is required, and in the transportation and
package delivery industries, where tariffs are levied based on weight.
Customizable software applications utilize the information generated by
checkweighing hardware to find production flaws, packaging and labeling errors
and nonuniform products, as well as to sort rejects and record the results.
Mettler-Toledo checkweighing equipment can accurately determine weight in
dynamic applications at speeds of up to several hundred units per minute.
Checkweighers generally range in price from $8,000 to $40,000.
Food Retailing Products. Supermarkets, hypermarkets and other food retail
establishments make use of multiple weighing applications for the handling of
perishable goods from backroom to checkout counter. For example, perishable
goods are weighed on arrival to determine payment to suppliers and some of
these goods are repackaged, priced and labeled for sale to customers. Other
goods are kept loose and selected by customers and either weighed at the
produce or deli counter or at the check-out counter.
The Company offers stand-alone scales for basic counter weighing and
pricing, price finding, and printing. In addition, the Company offers network
scales and software, which can integrate backroom, counter, self-service and
checkout functions, and can incorporate weighing data into a supermarket's
overall perishable goods management system. Backroom products include dynamic
weighing products, labeling and wrapping machines, perishable goods management
and data processing systems. In some countries in Europe, the Company also
sells slicing and mincing equipment. Prices for food retailing scales generally
range from $800 to $5,000, but are often sold as part of comprehensive weighing
solutions.
Systems. The Company's systems business consists of software applications
for drum filling in the food and chemical industries and batching systems in
the glass industry. The software systems control or modify the manufacturing
process.
CUSTOMERS AND DISTRIBUTION
The Company's business is geographically diversified, with 1996 net sales
derived 50% in Europe, 39% in North and South America and 11% in Asia and other
markets. The Company's customer base is also diversified by industry and by
individual customer. The Company's largest single customer accounted for no
more than 2% of 1996 net sales.
Laboratory
Principal customers for laboratory products include chemical,
pharmaceutical and cosmetics manufacturers; food and beverage makers; the
metals, electronics, plastics, transportation, packaging, logistics and rubber
industries; the jewelry and precious metals trade; educational institutions;
and government standards labs. Balances and pH meters are the most widely used
laboratory measurement instruments and are found in virtually every laboratory
across a wide range of industries. Other products have more specialized uses.
The Company's laboratory products are sold in more than 100 countries
through a worldwide distribution network. The Company's extensive direct
distribution network and its dealer support activities enable the Company to
maintain a significant degree of control over the distribution of its products.
In markets where there are strong laboratory distributors, such as the United
States, the Company uses them as the primary marketing channel for lower- and
mid-price point products. This strategy allows the Company to leverage the
strength of both the Mettler-Toledo brand and the laboratory distributors'
market position into sales of other laboratory measurement instruments. The
Company provides its distributors with a significant amount of technical and
sales support. High-end products are handled by the Company's own sales force.
There has been recent consolidation among distributors in the United States
market. While this consolidation could adversely affect the Company's U.S.
distribution, the Company believes its leadership position in the market gives
it a competitive advantage when dealing with its U.S. distributors. Asian
distribution is primarily through distributors, while European distribution is
primarily through direct sales. European and Asian distributors are generally
fragmented on a country-by-country basis. The Company negotiated a transfer of
the laboratory business in Japan from its former agent to a subsidiary of the
Company effective January 1, 1997. For this transfer a total sum of
approximately SFr. 8.0 million (approximately US$6.4 million) was partially
paid in 1996 with the remaining to be paid in 1997. In addition, the Company
began to distribute laboratory products directly in certain other Asian
countries.
Ohaus brand products are generally positioned in alternative distribution
channels to those of Mettler-Toledo brand products. In this way, the Company is
able to fill a greater number of distribution channels and increase penetration
of its existing markets. Since the acquisition of Ohaus in 1990, the Company
has expanded the Ohaus brand beyond its historical U.S. focus. Ohaus brand
products are sold exclusively through distributors.
Industrial and Food Retailing
Customers for Mettler-Toledo industrial products include chemical
companies (e.g., formulating, filling and bagging applications), food companies
(e.g., packaging and filling applications), electronics and metal processing
companies (e.g., piece counting and logistical applications), transportation
companies (e.g., sorting, dimensioning and vehicle weighing applications) and
auto body paint shops, which mix paint colors based on weight. The Company's
products for these industries share similar weighing technology, and often
minor modifications of existing products can make them useful for applications
in a variety of industrial processes. The Company also sells to OEMs which
integrate weighing modules into larger process control applications, or
comprehensive packaging lines. OEM applications often include software content
and technical support, as the Company's weighing module must communicate with a
wide variety of other process modules and data management functions. The
Company's products are also purchased by engineering firms, systems integrators
and vertical application software companies.
Customers for food retailing products include supermarkets, hypermarkets
and smaller food retailing establishments. The North American and European
markets include many large supermarket chains. In most of the Company's
markets, food retailing continues to shift to supermarkets and hypermarkets
from "mom and pop" grocery stores. While supermarkets and hypermarkets
generally buy less equipment per customer, they tend to buy more advanced
products that require more electronic and software content. In emerging
markets, however, the highest growth is in basic scales. As with industrial
products, the Company also sells food retailing products to OEMs for inclusion
in more comprehensive checkout systems. For example, the Company's checkout
scales are incorporated into scanner-scales, which can both weigh perishable
goods and also read bar codes on other items. Scanner-scales are in turn
integrated with cash registers to form a comprehensive checkout system.
The Company's industrial products are sold in more than 100 countries and
its food retailing products in 20 countries. In the industrial and food
retailing market, the Company distributes directly to customers (including
OEMs) and through distributors. In the United States, distributor sales
slightly exceed direct sales. Distributors are highly fragmented in the U.S.,
with many small "scale houses" selling the Company's products. In Europe,
direct sales predominate, with distributors used in certain cases. As in its
laboratory distribution, the Company provides significant support to its
distributors.
SALES AND SERVICE
Market Organizations
The Company has over 30 geographically-focused market organizations
("MOs") around the world that are responsible for all aspects of sales and
service. The MOs are local marketing and service organizations designed to
maintain close relationships with the Company's customer base. Each MO has the
flexibility to adapt its marketing and service efforts to account for different
cultural and economic conditions. MOs also work closely with the Company's
producing organizations (described below) by providing feedback on
manufacturing and product development initiatives and relaying innovative
product and application ideas.
The Company has the only global sales and service organization among
weighing instruments manufacturers. At December 31, 1996, this organization
consisted of approximately 2,800 employees in sales, marketing and customer
service (including related administration) and after-sales technical service.
This field organization has the capability to provide service and support to
the Company's customers and distributors in virtually all major markets across
the globe. Sales managers and representatives interact across product lines and
markets in order to serve customers that have a wide range of weighing needs,
such as pharmaceutical companies that purchase both laboratory and industrial
products. The Company classifies customers according to their potential for
sales and the appropriate distribution channel is selected to service the
customer as efficiently as possible. Larger accounts tend to have dedicated
sales representatives. Other representatives are specialized by product line.
Sales representatives call directly on end-users either alone or, in regions
where sales are made through distributors, jointly with distributors. The
Company utilizes a variety of advertising media, including trade journals,
catalogs, exhibitions and trade shows. The Company also sponsors seminars,
product demonstrations and customer training programs. An extensive database on
markets helps the Company to gauge growth opportunities, target its message to
appropriate customer groups and monitor competitive developments.
After-Sales Service
The Company believes that it has the largest installed base of weighing
instruments in the world. To support its installed base, the Company employs
service technicians who provide contract and repair services in all countries
in which the Company's products are sold. Service (representing service
contracts, repairs and replacement parts) accounted for approximately 17% of
the Company's total net sales in 1996. (Service revenue is included in the
laboratory and industrial and food retailing sales percentages given above.)
Management believes that service is a key part of its product offering and
helps significantly in repeat sales. The close relationships and frequent
contact with its large customer base provide the Company with sales
opportunities and innovative product and application ideas. Moreover, a global
service network is an important factor in the ability to expand in emerging
markets. Widespread adoption of quality laboratory and manufacturing standards
and the privatization of weights and measures certification are both favorable
trends for the Company's service business, as they tend to increase demand for
on-site calibration services.
The Company's service contracts provide for repair services within various
guaranteed response times, depending on the level of service selected. Many
contracts also include periodic calibration and testing. Contracts are
generally one year in length, but may be longer. The Company's own employees
directly provide all service on Mettler-Toledo products. If the service
contract also includes products of other manufacturers, the Company will
generally perform calibration, testing and basic repairs directly, and contract
out more significant repair work. As application software becomes more complex,
the Company's service efforts increasingly include installation and customer
training programs as well as product service.
Warranties on Mettler-Toledo products are generally one year. Based on
past experience, the Company believes its reserves for warranty claims are
adequate.
RESEARCH AND PRODUCT DEVELOPMENT; MANUFACTURING
Producing Organizations
The Company is organized into a number of producing organizations ("POs"),
which are specialized centers responsible for product development, research and
manufacturing. At December 31, 1996, POs included approximately 3,900 employees
worldwide, and consisted of product development teams whose members are from
marketing, development, research, manufacturing, engineering and purchasing.
POs also often seek customer input to ensure that the products developed are
tailored to market needs. The Company has organized POs in order to reduce
product development time, improve its customer focus, reduce costs and maintain
technological leadership. The POs work together to share ideas and best
practices. Some employees are in both MOs and POs. The Company is currently
implementing a number of projects that it believes will result in increased
productivity and lower costs. For example, the Company is restructuring the
order and product delivery process in Europe to enable the Company to deliver
many of its products to its customers directly from the manufacturing facility
within several days, which minimizes the need to store products in
decentralized warehouses. In addition, the Company is centralizing its European
spare parts inventory management system.
Research and Product Development
The Company closely integrates research and development with marketing,
manufacturing and product engineering. The Company has nearly 600 professionals
in research and development and product engineering. The Company's principal
product development activities involve applications improvements to provide
enhanced customer solutions, systems integration and product cost reduction.
However, the Company also actively conducts research in basic weighing
technologies. As part of its research and development activities, the Company
has frequent contact with university experts, industry professionals and the
governmental agencies responsible for weights and measures. In addition, the
Company's in-house development is complemented by technology and product
development alliances with customers and OEMs.
A recent example of innovation at the Company is the "Brickstone"
technology, which eliminates many of the complex mechanical linkages in a
weighing sensor and reduces the number of parts in the sensor from
approximately 100 to approximately 50. The Brickstone sensor permits more
accurate weighing, lower manufacturing costs and cheaper and faster design
changes. Brickstone technology has been incorporated into certain of the
Company's products, and the Company expects to expand its use to additional
product lines in the future.
The Company has been spending an increasing proportion of its research and
development budget on software development. Software development for weighing
applications includes application-specific software, as well as software
utilized in sensor mechanisms, displays, and other common components, which can
be leveraged across the Company's broad product lines.
The Company spent $50.0 million on research and development in 1996
(excluding research and development purchased in connection with the
Acquisition), $54.5 million in 1995 and $48.0 million in 1994, which the
Company believes was more than any of its competitors. Including costs
associated with customer-specific engineering projects, which are included in
cost of sales for financial reporting purposes, the Company spent approximately
6.6% of net sales on research and development in 1996.
Manufacturing
The Company's manufacturing strategy is to produce directly those
components that require its specific technical competence, or for which
dependable, high-quality suppliers cannot be found. The Company contracts out
the manufacture of its other component requirements. Consequently, much of the
Company's manufacturing capability consists of assembly of components sourced
from others. The Company utilizes a wide range of suppliers and it believes its
supply arrangements to be adequate. From time to time the Company relies on one
supplier for all of its requirements of a particular component, but in such
cases the Company believes adequate alternative sources would be available if
necessary. Supply arrangements for electronics are generally made globally. For
mechanical components, the Company generally uses local sources to optimize
materials flow.
The Company's manufacturing operations emphasize product quality. Most of
its products require very strict tolerances and exact specifications. The
Company utilizes an extensive quality control system that is integrated into
each step of the manufacturing process. This integration permits field service
technicians to trace important information about the manufacture of a
particular unit, which facilitates repair efforts and permits fine-tuning of
the manufacturing process. Many of the Company's measuring instruments are
subjected to an extensive calibration process that allows the software in the
unit to automatically adjust for the impact of temperature and humidity.
The Company has six manufacturing plants in the U.S. (after giving effect
to the closure of the Westerville, Ohio facility in 1996), four in Switzerland,
two in Germany and two in China, of which one is a 60% owned joint venture and
the other, the Shanghai facility, was completed and began to produce laboratory
products by the end of 1996. Laboratory products are produced mainly in
Switzerland and to a lesser extent in the United States, while industrial and
food retailing products are produced in all four countries. The Company
believes its manufacturing capacity is sufficient to meet its present and
currently anticipated needs.
Backlog
Manufacturing turnaround time is generally sufficiently short so as to
permit the Company to manufacture to fill orders for most of its products,
which helps to limit inventory costs. Backlog is therefore generally a function
of requested customer delivery dates and is typically no longer than one to two
months.
EMPLOYEES
As of December 31, 1996, the Company had approximately 6,400 employees
throughout the world, including more than 3,200 in Europe and more than 2,400
in North and South America. Management believes that its relations with
employees are good. The Company has not suffered any material employee work
stoppage or strike in its worldwide operations during the last five years.
Labor unions do not represent a meaningful number of the Company's employees
In certain of its facilities, the Company has instituted a flexible
workforce environment, in which hours vary depending on the quantity of
workload. The Company believes that this flexible working environment enhances
employees' involvement, thus increasing productivity, and improves efficient
payroll management by permitting the Company to adjust staffing to match
workload to a greater degree without changing the size of the overall
workforce.
INTELLECTUAL PROPERTY
The Company holds more than 1,150 patents and trademarks, primarily in the
United States, Switzerland, Germany and Japan and, to a lesser extent, in
China. The Company's products generally incorporate a wide variety of
technological innovations, many of which are protected by patents and many of
which are not. Moreover, products are generally not protected as a whole by
individual patents. Accordingly, no one patent or group of related patents is
material to the Company's business. The Company also has numerous trademarks
and considers the Mettler-Toledo name and logo to be material to its business.
The Company regularly protects against infringement of its intellectual
property.
REGULATION
The Company's products are subject to regulatory standards and approvals
by weights and measures regulatory authorities in the countries in which it
sells its products. Weights and measures regulation has been harmonized across
the European Union. The Company's food processing and food retailing products
are subject to regulation and approvals by relevant governmental agencies, such
as the United States Food and Drug Administration. Products used in hazardous
environments may also be subject to special requirements. All of the Company's
electrical components are subject to electrical safety standards. The Company
believes that it is in compliance in all material respects with applicable
regulations.
ENVIRONMENTAL MATTERS
The Company is subject to various environmental laws and regulations in
the jurisdictions in which it operates, including those relating to air
emissions, wastewater discharges, the handling and disposal of solid and
hazardous wastes and the remediation of contamination associated with the use
and disposal of hazardous substances. The Company wholly or partly owns, leases
or holds a direct or indirect equity interest in a number of properties and
manufacturing facilities around the world, including the United States, Europe,
Canada, Mexico, Brazil, Australia and China. The Company, like many of its
competitors, has incurred, and will continue to incur, capital and operating
expenditures and other costs in complying with such laws and regulations in
both the United States and abroad.
The Company is currently involved in, or has potential liability with
respect to, the remediation of past contamination in certain of its presently
and formerly owned and leased facilities in both the United States and abroad.
In addition, certain of the Company's present and former facilities have or had
been in operation for many decades and, over such time, some of these
facilities may have used substances or generated and disposed of wastes which
are or may be considered hazardous. It is possible that such sites, as well as
disposal sites owned by third parties to which the Company has sent wastes, may
in the future be identified and become the subject of remediation. Accordingly,
although the Company believes that it is in substantial compliance with
applicable environmental requirements and the Company to date has not incurred
material expenditures in connection with environmental matters, it is possible
that the Company could become subject to additional environmental liabilities
in the future that could result in a material adverse effect on the Company's
financial condition or results of operations.
The Company is involved in litigation concerning remediation of hazardous
substances at its operating facility in Landing, New Jersey. On or about July
1988, an affiliate of Ciba ("AGP") purchased 100% of the outstanding stock of
Metramatic Corporation ("Metramatic"), a manufacturer of checkweighing
equipment located in Landing, from GEI International Corporation ("GEI"). GEI
agreed to indemnify and hold harmless AGP for certain pre-closing environmental
conditions, including those resulting in cleanup responsibilities required by
the New Jersey Department of Environmental Protection ("NJDEP") pursuant to the
New Jersey Environmental Cleanup Responsibility Act ("ECRA"). ECRA is now the
Industrial Site Recovery Act. Pursuant to a 1988 NJDEP administrative consent
order naming GEI and Metramatic as respondents, GEI has spent approximately $2
million in the performance of certain investigatory and remedial work
addressing groundwater contamination at the site. However, a final remedy has
not yet been selected by NJDEP, and, therefore, future remedial costs are
currently unknown. In 1992, GEI filed a suit against various parties including
Hi-Speed Checkweigher Co., Inc., a wholly-owned subsidiary of the Company that
currently owns the facility, to recover certain costs incurred by GEI in
connection with the site. Based on currently available information and the
Company's rights of indemnification from GEI, the Company believes that its
ultimate allocation of costs associated with the past and future investigation
and remediation of this site will not have a material adverse effect on the
Company's financial condition or results of operations.
In addition, the Company is aware that Toledo Scale, the former owner of
Toledo Scale or the Company has been named a potentially responsible party
under CERCLA or analogous state statutes at the following third-party owned
sites with respect to the alleged disposal at the sites by Toledo Scale during
the period it was owned by such former owner: Granville Solvents Site,
Granville, Ohio; Aqua-Tech Environmental, Inc. Site, Greer, South Carolina; and
Seaboard Chemical Company Site, Jamestown, North Carolina. The former owner has
also been named in a lawsuit seeking contribution pursuant to CERCLA with
respect to the Caldwell Trucking Site, New Jersey based on the alleged disposal
at the site by Toledo Scale during the former owner's period of ownership.
Pursuant to the terms of the stock purchase agreement between Mettler and the
former owner of Toledo Scale, the former owner is obligated to indemnify
Mettler for various environmental liabilities. To date, with respect to each of
the foregoing sites, the former owner has undertaken the defense and
indemnification of Toledo Scale. Based on currently available information and
the Company's contractual rights of indemnification, the Company believes that
the costs associated with the investigation and remediation of these sites will
not have a material adverse effect on the Company's financial condition or
results of operations.
COMPETITION
The markets in which the Company operates are highly competitive. Because
of the fragmentation of weighing instruments markets, particularly the
industrial and food retailing market, both geographically and by application,
the Company competes with numerous regional or specialized competitors, many of
which are well-established in their markets. Some competitors are less
leveraged than the Company and/or are divisions of larger companies with
potentially greater financial and other resources than the Company. Although
the Company believes that it has certain competitive advantages over its
competitors, realizing and maintaining these advantages will require continued
investment by the Company in research and development, sales and marketing and
customer service and support. The Company has, from time to time, experienced
price pressures from competitors in certain product lines and geographic
markets.
In the United States, the Company believes that the principal competitive
factors on which purchasing decisions are made are accuracy and durability,
while in Europe accuracy and service are the most important factors. In
emerging markets, where there is greater demand for less sophisticated
products, price is a more important factor than in developed markets.
Competition in the United States laboratory market is also influenced by the
presence of large distributors through which the Company and its competitors
sell many of their products.
RECENT DEVELOPMENTS
On May 30, 1997, the Company purchased (the "Safeline Acquisition") the
entire issued share capital of Safeline Limited ("Safeline"). The purchase
price (the "Purchase Price") for the Safeline Acquisition, subject to future
adjustment, was GBP 61 million (approximately US $100 million), plus up to an
additional GBP 6 million for a contingent earn-out payment. The Safeline
Acquisition was effected pursuant to the terms of a Share Sale and Purchase
Agreement (the "Purchase Agreement"), dated May 30, 1997, among the Company's
subsidiaries Safeline Holding Company and Mettler-Toledo Inc. (a Canadian
corporation), as purchasers, and Safeline Limited and each of the sellers named
therein as sellers. The terms of the Safeline Acquisition were based upon arms'
length negotiations of the parties.
Safeline, based in Manchester, U.K., is the world's leading supplier of
metal detection systems for companies who produce and package goods in the
food, pharmaceutical, cosmetics, chemicals and other industries. Safeline will
report sales of GBP 28.6 million (US $46.4 million) and operating profits
(before non-recurring costs) of GBP 6.7 million (US $11 million), for its
fiscal year ended March 31, 1997 in accordance with UK GAAP, and such amounts
are substantially the same as those that would be obtained using US GAAP.
The source of funds for the Purchase Price was provided by GBP 13.7
million in loan notes to be retained by the sellers with the remaining amounts
provided by amounts loaned under the Amended and Restated Credit Agreement
described below.
On May 29, 1997, the Company entered into an Amended and Restated Credit
Agreement. The Company's prior credit agreement (the "Credit Agreement")
provided for term loan borrowings in an aggregate principal amount of
approximately US $147.0 million and SFr 125.0 million, that were scheduled to
mature in 2002, 2003 and 2004 and a multi-currency revolving credit facility
with availability of US $140.0 million. The revolving credit facility was
scheduled to mature under the Credit Agreement in 2002.
The Amended and Restated Credit Agreement provides for term loan
borrowings in an aggregate principal amount of approximately US $133.8 million,
SFr 171.5 million and GBP 26.7 million that are scheduled to mature in 2002 and
2004, a Canadian revolver with availability of CDN $26.3 million (approximately
CDN $21 million of which has been drawn) which is scheduled to mature in 2002,
and a multi-currency revolving credit facility with availability of US $151.0
million (approximately US $25 million of which has been drawn). The revolving
credit facility is scheduled to mature in 2002. The interest rate margin on all
loans have been reduced by 75 basis points under the Amended and Restated
Credit Agreement.
ITEM 2. FINANCIAL INFORMATION
The selected historical financial information set forth below at December
31, 1994, 1995, 1996, for the years ended December 31, 1993, 1994, 1995, and
for the period from January 1, 1996 to October 14, 1996, and for the period
from October 15, 1996 to December 31, 1996 is derived from the Registrant's
financial statements, which were audited by KPMG Fides Peat, independent
auditors. The financial information for all periods prior to October 15, 1996,
the date of the Acquisition, is combined financial information of the
Mettler-Toledo Group, the Predecessor Business. The summary historical
financial information at March 31, 1997 and for the three months ended March
31, 1996 and 1997 is derived from the unaudited interim consolidated financial
statements of the Predecessor Business and of the Registrant, which, in the
opinion of management, include all adjustments necessary for a fair
presentation of the results for the unaudited periods. Operating results for
the three months ended March 31, 1997 are not necessarily indicative of the
results that may be expected for the year ended December 31, 1997. The combined
historical data of the Mettler-Toledo Group and the consolidated historical
data of the Registrant are not comparable in many respects due to the
Acquisition. See "Management's Discussion and Analysis of Financial Condition
and Results of Operations", below and the consolidated financial statements and
accompanying notes. The financial information presented below was prepared in
accordance with U.S. generally accepted accounting principles.
(1) Represents the unaudited pro forma statement of operations of the
Company for fiscal year 1996, assuming the Acquisition occurred on January 1,
1996. Such pro forma statement of operations reflects (i) the adjustment to
fair value of the Company's assets and liabilities which, on a pro forma basis
would have resulted in increased amortization of approximately $1.5 million for
1996, (ii) the incurrence of additional debt in connection with the Acquisition
which would have resulted in a net increase in interest expense, including
amortization of debt and issuance costs and other fees of $16.1 million for
1996, (iii) the incurrence of approximately $2.3 million annually in additional
selling, general and administrative expenses as a result of being an
independent company, (iv) a decrease in the Company's provision for income
taxes of $9.9 million in 1996, and(v) other charges of $11.8 million
representing principally severance costs for the general headcount reduction in
Europe and North America, the closure of the Company's Westerville, Ohio
manufacturing facility, and the realignment of the analytical and precision
balance business in Switzerland. The pro forma statement of operations does not
reflect the acquisition of Safeline on May 30, 1997. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations -
Effect of Acquisition on Results of Operations."
(2) Balance sheet information at December 31, 1992 and 1993 is not
available. Income statement information for the year ended December 31, 1992 is
not available, except that net sales were $769,000.
(3) In connection with the Acquisition, the Company allocated
approximately $32,200 of the purchase price to revalue certain inventories
(principally work-in-progress and finished goods) to fair value (net realizable
value). Substantially all such inventories were sold during the period October
15, 1996 to December 31, 1996. The charge associated with this item has been
excluded from the pro forma financial information.
(4) In conjunction with the Acquisition, the Company allocated, based upon
independent valuations, $114,070 of the purchase price to purchased research
and development in process. Such amount was recorded as an expense in the
period from October 15, 1996 to December 31, 1996. The charge associated
with this item has been excluded from the pro forma financial information.
(5) For 1993, consists primarily of costs associated with the closure of a
manufacturing facility in Cologne, Germany, and also includes the restructuring
of certain manufacturing operations and an early retirement program in the
United States. Other income for 1993, 1994 and 1995 relates primarily to gains
from the sale of real property and, in 1994, to a gain on the sale of an
investment. Other charges for the period January 1, 1996 to October 14, 1996 of
$1,872 represent employee severance of $1,545 and other exit costs of $327
associated with the closing of its Westerville, Ohio facility. Other charges
for the period October 15, 1996 to December 31, 1996 principally represent
employee severance benefits associated with (i) the Company's general headcount
reduction programs, in Europe and North America, of $4,557 which were announced
during such period, and (ii) the realignment of the analytical and precision
balance business in Switzerland of $6,205 which was internally announced in
December, 1996. In connection with such programs the Company reduced its
workforce by 168 employees in 1996 and intends to further reduce its workforce
by approximately 70 employees. See Note 17 to the Audited Consolidated
Financial Statements.
(6) Earnings per common share for MT Investors Inc. has been computed
using the weighted average number of outstanding common shares. Earnings per
common share for the 1996 pro forma statement of operations has been computed
assuming the common shares issued in the Acquisition were outstanding at
January 1, 1996.
(7) Includes notes payable and long-term debt payable to Ciba and
affiliates less amounts due from Ciba and affiliates. See Notes 3 and 11 to the
Audited Consolidated Financial Statements.
(8) Consists primarily of obligations under various pension plans and
plans that provide post-retirement medical benefits. See Note 15 to the Audited
Consolidated Financial Statements.
(9) Shareholder's equity for the Predecessor Business consists of the
combined net assets of the Mettler-Toledo Group.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
The following discussion and analysis of the Company's financial condition
and results of operations should be read in conjunction with the Audited
Consolidated Financial Statements and the Unaudited Interim Audited
Consolidated Financial Statements. The Registrant has no material assets,
liabilities or operations other than those that result from its ownership of
100% of the outstanding common stock of Mettler-Toledo Holding Inc., the parent
of Mettler-Toledo, Inc. Therefore, the analysis set forth is of the Company.
GENERAL
The financial statements for periods ended prior to October 15, 1996
reflect the combined operations of the Mettler-Toledo Group, while the
financial statements for periods after October 15, 1996 reflect the
consolidated operations of the Company after accounting for the Acquisition
using the purchase method of accounting. See Note 1 to the Audited Consolidated
Financial Statements. Operating results subsequent to the Acquisition are not
comparable in many respects to the operating results prior to the Acquisition.
See "Effect of Acquisition on Results of Operations." Financial information is
presented in accordance with U.S. generally accepted accounting principles.
In 1996, the Company undertook several efforts to increase productivity
and lower costs. In July 1996, the Company announced the closure of its
Westerville, Ohio facility. In the fourth quarter of 1996, the Company recorded
charges for a general headcount reduction program in Europe and North America
and the realignment of the analytical and precision balance business in
Switzerland. In connection with such programs, the Company reduced its
workforce by 168 employees in 1996 and intends to further reduce its workforce
by approximately 70 employees. The Company recorded costs of $11.8 million in
1996, primarily relating to severance, in connection with these efforts.
On May 30, 1997, the Company purchased Safeline for GBP 61 million
(approximately US $100 million), subject to future adjustment, plus up to an
additional GBP 6 million for a contingent earn-out payment. The source of funds
for the Safeline Acquisition was provided by GBP 13.7 million in loan notes to
be retained by the Sellers with the remaining amounts provided by amounts
loaned under the Amended and Restated Credit Agreement. Safeline reported
sales of GBP 28.6 million (US $46.4 million) and operating profits (before
non-recurring costs) of GBP 6.7 million (US $11 million), for its fiscal year
ended March 31, 1997 in accordance with UK GAAP, and management believes such
amounts are substantially the same as those that would be obtained using US
GAAP.
RESULTS OF OPERATIONS
The following table sets forth certain items in the statements of
operations as a percentage of net sales for the years 1994, 1995 for the period
from January 1, 1996 to October 14, 1996, for the period from October 15, 1996
to December 31, 1996, pro forma for the year 1996 and for the three months
ended March 31, 1996 and 1997.
<TABLE>
<CAPTION>
PERCENTAGE OF NET SALES
-----------------------------------------------------------------
Successor Predecessor Successor
Predecessor For the period ----------- ---------
Predecessor Predecessor For the period October 15, For the three months
For the years ended January 1, 1996 1996 ended March 31,
December 31, to October 14, to December Pro Forma --------------------
1994 1995 1996 31, 1996 1996 (1) 1996 1997
---------- ---------- --------------- -------------- ----------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Net sales.................... 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0%
Cost of sales................ 60.0 59.7 59.7 73.2 58.9 60.1 57.8
------ ----- ------ ------- ------- ------ ------
Gross profit................. 40.0 40.3 40.3 26.8 41.1 39.9 42.2
Research and development
expenses (2)............. 6.3 6.4 6.1 5.2 5.9 6.2 5.5
Selling, general and
administrative expenses...... 29.3 29.3 28.2 31.8 29.2 30.5 30.5
Amortization................. 0.8 0.3 0.3 .6 .6 .3 .6
Purchased research and _ _ _ 61.0 _ _ _
development .................
Other charges (income), net.. (0.4) (0.1) 0.3 5.3 1.4 - -
------- ------ ------ ------- ------- ------ ------
Earnings (loss) before
interest and taxes........... 4.0% 4.4% 5.4% (77.1%) 4.1% 2.9% 5.6%
====== ====== ======= ========= ======== ======= =======
- ------------------------
(1) Represents the unaudited pro forma statement of operations of the
Company for fiscal year 1996, assuming the Acquisition occurred on January 1,
1996.
(2) Total research and development expenses were 7.2% in 1994, 7.3% in
1995 and 6.6% in 1996, including costs associated with customer-specific
engineering projects, which are included in cost of sales for financial
reporting purposes.
</TABLE>
Three Months Ended March 31, 1997 Compared to Three Months
Ended March 31, 1996
Net sales were $197.4 million for the three months ended March 31, 1997,
compared to $201.4 million for the corresponding period in the prior year, a
decrease of 2.0%. Net sales during the three month period in local currencies
increased by approximately 4% but were offset by a strengthening of the U.S.
dollar relative to the local currencies of the Company's operations.
Net sales during the three month period in Europe in local currencies
decreased 1% principally as a result of weak European economies adversely
affecting sales to industrial and food retailing customers. Net sales during
the three month period in the Americas in local currencies increased 5%
principally due to improved market conditions for sales to industrial and food
retailing customers. Net sales in the three month period in Asia and other
markets in local currencies increased 19%, primarily as a result of the
establishment of additional direct marketing and distribution in the region.
Gross profit as a percentage of net sales increased to 42.2% for the three
months ended March 31, 1997, compared to 39.9% for the corresponding period in
the prior year. These results reflect the benefits of reduced product costs
arising from the Company's research and development efforts, ongoing
productivity improvements, and the depreciation of the Swiss franc against the
Company's other principal trading currencies. See "Effect of Currency on
Results of Operations."
Selling, general and administrative expenses as a percentage of net sales
were 30.5% for the three months ended March 31, 1997 and 1996. Research and
development expenses as a percentage of net sales decreased to 5.5% for the
three months ended March 31, 1997, compared to 6.2% for the corresponding
period in the prior year; however, the local currency spending level remained
relatively constant period to period.
Earnings before interest and taxes was $11.1 million for the three months
ended March 31, 1997, compared to $5.8 million for the corresponding period in
the prior year. Interest expense increased to $9.4 million for the three months
ended March 31, 1997, compared to $4.5 million for the corresponding period in
the prior year. The increase was principally due to additional Acquisition
related debt. Net financial expense of $3.7 million for the three months ended
March 31, 1997 compared to net financial income of $0.4 million for the
corresponding period in the prior year as a result of lower interest income and
an increase in foreign currency losses.
The net loss of $1.1 million for the three months ended March 31, 1997,
compared to net earnings of $0.9 million for the corresponding period in the
prior year.
For The Period From January 1, 1996 To October 14, 1996, The Period
From October 15, 1996 to December 31, 1996 And Pro Forma 1996 Compared
To Year Ended December 31, 1995
Net sales for the period from January 1, 1996 to October 14, 1996 and for
the period from October 15, 1996 to December 31, 1996 were $662.2 million and
$186.9 million, respectively. Pro forma 1996 net sales were virtually unchanged
at $849.1 million compared to actual net sales of $850.4 million in 1995. Net
sales in local currency increased 2.6%, excluding the impact of the reduction
of the systems business, but were offset by a strengthening of the U.S. dollar,
the Company's reporting currency, relative to the local currencies of the
Company's operations. The flat sales (pro forma) in 1996 compared to actual
1995 resulted from slightly lower sales from products in the industrial and
food retailing markets, offset by strong performance by the product lines in
the laboratory market. The growth in the laboratory market was across
substantially all product lines and geographical regions as sales in local
currency increased 7% compared to the previous year. In particular, new product
introductions in titration, thermal and reaction calorimetry as well as new
Ohaus products for the education, laboratory and light industrial market helped
to increase laboratory market sales. The slight decline in industrial and food
retailing sales resulted from overall weakness in the European market while the
Company has been able to retain its market share. This market weakness has
persisted in early 1997.
Net sales (pro forma) in Europe in local currency decreased 2% in 1996
compared to actual 1995 due to a weaker second half of the year in 1996 in all
major markets, and especially in key countries such as Germany, France and the
United Kingdom. Net sales (pro forma) in the Americas in local currency
increased by 5% over actual 1995 due to growth in the United States and Latin
America and double digit expansion in laboratory measurement instruments other
than balances and in related service. Net sales (pro forma) in Asia and other
markets in local currency increased by 8% over actual 1995, primarily as a
result of significantly increased sales in the Shanghai operation and strong
sales in Japan and Australia.
Gross profit for the period from January 1, 1996 to October 14, 1996 and
for the period from October 15, 1996 to December 31, 1996 was $267.0 million
and $50.1 million, respectively. Pro forma gross profit as a percentage of
sales increased to 41.1% in 1996 from 40.3% in actual 1995. The increased gross
profit margin resulted principally from operational improvements and the
depreciation of the Swiss franc against the Company's other principal trading
currencies. See "Effect of Currency on Results of Operations."
Selling, general and administrative expenses and research and development
expenses for the period from January 1, 1996 to October 14, 1996 and for the
period from October 15, 1996 to December 31, 1996 were $227.1 million and $69.2
million, respectively. Pro forma selling, general and administrative expenses
and research and development expenses as a percentage of net sales decreased to
an aggregate of 35.1% in 1996 from 35.7% in actual 1995. The cost decreases
resulted primarily from the currency effect of the depreciation of the Swiss
franc against the Company's other major trading currencies and the Company's
cost control efforts which were partially offset by additional selling, general
and administrative expenses the Company estimates it will incur as a result of
being an independent company which more than offset the $4.8
million of non-recurring legal and advisory fees associated with the
Acquisition. See "Effect of Acquisition on Results of Operations."
In connection with the Acquisition, the Company allocated, based upon
independent valuations, $114.1 million of the purchase price to purchased
research and development in process. Such amount was expensed immediately
following the Acquisition.
Other charges for the period January 1, 1996 to October 14, 1996 of $1.9
million represent employee severance of $1.5 million and other exit costs of
$.3 million associated with the closing of its Westerville, Ohio facility.
Other charges for the period October 15, 1996 to December 31, 1996 principally
represent employee severance benefits associated with (i) the Company's general
headcount reduction programs, in Europe and North America, of $4.6 million
which were announced during such period, and (ii) the realignment of the
analytical and precision balance business in Switzerland of $6.2 million which
was internally announced in December, 1996. In connection with such programs
the Company reduced its workforce by 168 employees in 1996 and intends to
further reduce its workforce by approximately 70 employees in 1997. The Company
anticipates that as a result of the foregoing that it will achieve cost savings
in the range of $8.3 million.
Earnings before interest and taxes for the period from January 1, 1996 to
October 14, 1996 was $35.8 million. Loss before interest taxes and for the
period from October 15, 1996 to December 31, 1996 was $144.1 million. This loss
includes an expense of $114.1 million for the allocation of purchase price to
in-process research and development projects, a charge of $32.2 million for the
revaluation of inventories to fair value and $9.9 million of other charges (an
additional $1.9 million of other charges was incurred by the Predecessor
Business in 1996). Pro forma earnings before interest and taxes would have
been $34.4 million in 1996 compared to earnings before interest and taxes of
$37.4 million in actual 1995. Earnings before amortization, interest and
taxes, adjusted for non-recurring items including the charge for in process
Research and Development ($114.1 million), revaluation of inventories to fair
value ($32.2 million), other charges ($11.8 million) and non-recurring legal and
advisory fees ($4.8 million) would have been $57.8 million.
Interest expense for the period from January 1, 1996 to October 14, 1996
and for the period from October 15, 1996 to December 31, 1996 was $13.9 million
and $8.7 million, respectively. Pro forma interest expense increased to $38.7
million in 1996 from $18.2 million in actual 1995, principally due to a higher
debt level as a result of the Acquisition. Interest expense since the
Acquisition is materially different. See "Effect of Acquisition on Results of
Operations" and "Liquidity and Capital Resources." Financial expense (income)
for the period from January 1, 1996 to October 14, 1996 and for the period from
October 15, 1996 to December 31, 1996 was $(3.2) million and $7.2 million,
respectively. Pro forma financial expense (income), net decreased to an expense
of $4.0 million in 1996 from income of $2.3 million in actual 1995. The
reduction resulted principally from losses on foreign currency transactions due
to the appreciation of the dollar.
Net earnings for the period from January 1, 1996 to October 14, 1996 were
$14.5 million. The net loss for the period from October 15, 1996 to December 31,
1996 was and $159.0 million. Pro forma net loss of $6.4 million in 1996 compared
to net earnings of $18.3 million in actual 1995.
Year Ended December 31, 1995 Compared To Year Ended December 31, 1994
Net sales were $850.4 million in 1995 compared to $769.1 million in 1994,
an increase of 11%. Net sales in local currency increased 5%; the remaining 6%
of the increase resulted from changes in currency exchange rates. In 1994 the
Company discontinued certain items in its systems and laboratory measurement
instruments product lines. Excluding the effect of these discontinued items, net
sales in local currency would have increased 6%. Sales growth in local currency
reflected steady growth across all major product lines in laboratory, industrial
and food retailing markets as result of favorable economic conditions and market
share gains in selected geographic markets. Sales were helped by the expansion
of the Company's line of titrators and the introduction of a family of standard
industrial programmable terminals for weighing instruments.
Net sales in Europe in local currency increased 7% in 1995 over 1994,
consistent with the continuing recovery from the 1993 recession and market share
gains in selected regions and product lines. Southern Europe contributed
significantly to the increase. Net sales in the Americas in local currency
decreased 1% in 1995 from 1994. Results in the Americas reflect reduced demand
in the United States for laboratory instruments in the wake of consolidation in
the pharmaceutical and chemical industries and unusually high demand for retail
equipment in 1994 as a result of a new labeling law that caused food retailers
to buy additional retail weighing and labeling equipment. Net sales in Asia and
other markets in local currency increased 20% in 1995 over 1994, primarily as a
result of continued economic growth and the Company's increased market share in
selected markets. Sales were also helped by the recovery in China from the poor
market conditions of 1994.
Gross profit as a percentage of net sales increased slightly to 40.3% in
1995 from 40.0% in 1994. These results were achieved despite the appreciation of
the Swiss franc against the Company's other principal trading currencies, which
has the effect of increasing overall manufacturing costs due to the Company's
significant manufacturing operations in Switzerland. Improved manufacturing
productivity contributed to the increase, including the favorable effects of the
Company's mid-1994 closure of its Cologne, Germany plant, partially offset by
higher raw materials costs.
Selling, general and administrative expenses and research and development
expenses were relatively constant as a percentage of net sales. Cost increases
resulting from the currency effect of the significant appreciation of the Swiss
franc against the Company's other major trading currencies were offset by the
Company's cost control efforts. Earnings before interest and taxes were $37.4
million in 1995 compared to $30.9 million in 1994. If 1994 currency exchange
rates had remained in effect throughout 1995 earnings before interest and taxes
in 1995 would have been $47.4 million.
Interest expense rose to $18.2 million in 1995 from $13.3 million in 1994,
an increase of 37%, principally due to higher interest rates from the conversion
of a loan from Ciba from short term to long term. Interest expense since the
Acquisition is materially different. See "Effect of Acquisition on Results of
Operations," and "Liquidity and Capital Resources." Net financial income
increased to $8.6 million in 1995 from $4.9 million in 1994. The higher level of
financial income resulted principally from increased gain on foreign currency
transactions.
Net earnings increased to $18.3 million in 1995 from $13.5 million in 1994.
LIQUIDITY AND CAPITAL RESOURCES
The Registrant does not have any liabilities except through its ownership
of the Company.
The Acquisition was financed principally through capital contributions of
$190 million before related expenses from the Registrant, borrowings under the
Credit Agreement of $307 million and 9 3/4% Senior Subordinated Notes due 2006
(the "Notes") of $135 million.
Prior to the Acquisition, the Company's cash and other liquidity was used
principally to fund capital expenditures, working capital requirements, debt
service and dividends to Ciba. Following the Acquisition, the annual interest
expense associated with the borrowings under the Credit Agreement and the
Notes, as well as scheduled principal payments of term loans under the Credit
Agreement, have significantly increased the Company's liquidity requirements.
See "Effect of Acquisition on Results of Operations."
The Company's capital expenditures (pro forma) totaled $28.6 million in
1996, $25.9 million in 1995 and $24.9 million in 1994. Capital expenditures are
primarily for machinery, equipment and the purchase and expansion of
facilities, including the purchase of land for, and construction of, the
Company's Shanghai manufacturing facility. Capital expenditures for 1997, as a
percentage of sales, are expected to remain relatively constant with historical
expenditures. In connection with the transfer of the Japanese laboratory
business from a former agent to a subsidiary of the Company, the Company
will make payments of approximately SFr. 8.0 million of which SFr. 1.0 million
had been paid during 1996. See Item 1, "Business--Customers and Distribution."
The Credit Agreement provided for term loan borrowings in an aggregate
principal amount of approximately US $147.0 million and SFr. 125.0 million that
were scheduled to mature in 2002, 2003 and 2004 and a multi-currency revolving
credit facility with availability of US $140.0 million including letter of
credit and swingline subfacilities. At December 31, 1996 approximately $75
million was available to the Company under the revolving credit facility.
The revolving credit facility was scheduled to mature under the Credit
Agreement in 2002. The Amended and Restated Credit Agreement provides for term
loan borrowings in an aggregate principal amount of approximately US $133.8
million, SFr 171.5 million and GBP 26.7 million that are scheduled to mature
in 2002 and 2004, a Canadian revolver with availability of CDN $26.3 million
(approximately CDN $21 million of which has been drawn) which is scheduled to
mature in 2002, and a multi-currency revolving credit facility with
availability of US $151.0 million (approximately US $25 million of which has
been drawn). The revolving credit facility is scheduled to mature in 2002. The
interest rate margin on all loans have been reduced by 75 basis points under
the Amended and Restated Credit Agreement. Under the Amended and Restated
Credit Agreement, mandatory prepayments are required to be made in certain
circumstances with the proceeds of asset sales or issuance of capital stock or
indebtedness and with certain excess cash flow. The Amended and Restated
Credit Agreement imposes certain restrictions on the Company and its
subsidiaries, including restrictions on the ability to incur indebtedness,
make investments, grant liens, sell financial assets and engage in certain
other activities. The Company must also comply with certain financial
covenants. The Amended and Restated Credit Agreement is secured by certain
assets of the Company.
The Notes will mature in 2006. The Notes may be required to be purchased by
the Company upon a Change of Control (as defined) and in certain circumstances
with the proceeds of asset sales. The Notes are subordinated to the indebtedness
under the Credit Agreement. The indenture governing the Notes (the "Indenture")
imposes certain restrictions on the Company and its subsidiaries, including
restrictions on the ability to incur indebtedness, make investments, grant liens
and engage in certain other activities.
Under the Amended and Restated Credit Agreement and the Indenture,
Mettler-Toledo, Inc. is prohibited from paying dividends to Mettler-Toledo
Holding Inc., subject to certain limited exceptions. The Company's obligations
under the Amended and Restated Credit Agreement and Notes is guaranteed by
Mettler-Toledo Holding Inc.
At December 31, 1996, approximately $147 million of the borrowings under
the Credit Agreement and all of the borrowings under the Notes were denominated
in U.S. dollars. The balance of the borrowings under the Credit Agreement and
under local working capital facilities were denominated in certain of the
Company's other principal trading currencies. At December 31, 1996, the Company
had $27.5 million of other long-term debt incurred by its various operating
subsidiaries primarily denominated in various currencies. Changes in
exchange rates between the currencies in which the Company generates cash
flow and the currencies in which its borrowings are denominated will affect
the Company's liquidity. See "Effect of Currency on Results of Operations".
The Company's cash provided by operating activities declined from $11.1
million in the three months ended March 31, 1996 to $8.1 million in the three
months ended March 31, 1997. The decline resulted principally from higher
interest costs resulting from the Acquisition.
During the three months ended March 31, 1997, the Company reduced its
borrowings by $34.1 million.
At March 31, 1997, net debt was $397.5 million.
The Company continues to explore acquisitions to expand its product
portfolio and improve its distribution capabilities. In connection with any
acquisition, the Company may incur additional indebtedness.
The Company currently believes that cash flow from operating activities,
together with borrowings available under the Credit Agreement and local working
capital facilities will be sufficient to fund currently anticipated working
capital needs and capital spending requirements as well as debt service
requirements for at least several years, but there can be no assurance that
this will be the case.
EFFECT OF CURRENCY ON RESULTS OF OPERATIONS
The Company's operations are conducted by subsidiaries in many countries,
and the results of operations and the financial position of each of those
subsidiaries is reported in the relevant foreign currency and then translated
into U.S. dollars at the applicable foreign exchange rate for inclusion in the
Company's Audited Consolidated Financial Statements. Accordingly, the results
of operations of such subsidiaries as reported in U.S. dollars can vary
significantly as a result of changes in currency exchange rates. Specifically,
a strengthening of the U.S. dollar versus other currencies reduces net sales
and earnings as translated into U.S. dollars while a weakening of the U.S.
dollar has the opposite effect.
Swiss franc-denominated costs represent a much greater percentage of the
Company's total expenses than Swiss franc-denominated sales represent of total
sales. In general, an appreciation of the Swiss franc versus the Company's
other major trading currencies, especially the principal European currencies
has a negative impact on the Company's results of operations and a depreciation
of the Swiss franc versus the Company's other major trading currencies,
especially the principal European currencies has a positive impact on the
Company's results of operations. The effect of these changes generally offsets
in part the effect the translation effect on earnings before interest and taxes
of changes in exchange rate between the U.S. dollar and other currencies
described in the preceding paragraph.
EFFECT OF ACQUISITION ON RESULTS OF OPERATIONS
In connection with the Acquisition, the Company has, in accordance with
U.S. GAAP relating to purchase accounting rules, adjusted to fair value the
Company's assets and liabilities which, on a pro forma basis, would have
resulted in increased amortization of approximately $1.5 million for 1996. In
addition, as part of the Acquisition, the Company has incurred additional debt,
which would have resulted in a net increase in interest expense, including
amortization of debt issuance costs and other fees, in the amount of $16.1
million for 1996, on a pro forma basis. The Company estimates that it will
incur approximately $2.3 million annually in additional selling, general and
administrative expenses as a result of being an independent company, including
an annual management fee of $1.0 million to be paid to AEA Investors Inc. ("AEA
Investors"). The Acquisition would have resulted in a decrease in the Company's
provision for income taxes of $9.9 million for 1996, on a pro forma basis. As a
result of the above adjustments, on a pro forma basis, the Company would have
reported a net loss of $6.4 million in 1996, as compared to its net loss of
$5.4 million in 1995 (before giving effect to the non-recurring charges
referred to below).
The following table represents the unaudited pro forma statement of
operations of the Company after the predecessor business for the fiscal year
1996, assuming the Acquisition occurred on January 1, 1996. This pro forma
statement does not reflect the anticipated benefits to be derived in the future
from the Company's 1996 employee reduction programs or the acquisition of
Safeline on May 30, 1997.
The pro forma financial data reflects other charges in 1996 of $11.8
million representing principally severance costs for the general headcount
reduction, in Europe and North America, the closure of the Company's
Westerville, Ohio manufacturing facility, and the realignment of the analytical
and precision balance business in Switzerland.
<TABLE>
PRO FORMA
YEAR ENDED DECEMBER 31,
(Dollars in thousands, except per share data)
<CAPTION>
1996
----
<S> <C>
Net sales .................................................. $849,133
Cost of sales .............................................. 499,865
--------
Gross profit .......................................... 349,268
--------
Research and development ................................... 50,049
Selling, general and administrative ........................ 248,337
Amortization ............................................... 4,687
Other charges (income), net ................................ 11,764
Earnings before interest and taxes .................... 34,431
Interest expense ........................................... 38,715
Financial expense (income) net ............................. 2,272
--------
Loss before taxes and minority interest ............... (6,556)
Provision for taxes ........................................ (738)
Minority interest .......................................... 545
--------
Net loss .............................................. $(6,363)
========
Loss per common share:
Weighted average number of common shares .............. 2,438,514
Loss per common share ................................. $(2.61)
=========
</TABLE>
In addition in accordance with U.S. GAAP, the Company has allocated a
portion of the purchase price to in-process research and development projects
that have economic value and to the revaluation of inventories to fair values.
Approximately $114.1 million has been allocated to in-process research and
development and has been charged to expense in the fourth quarter of 1996.
Approximately $32.2 million has been allocated to the revaluation of
inventories to fair value. Substantially all of such inventories were sold
during the period from October 15, 1996 to December 31, 1996. These charges are
not reflected in the above table due to their unusual, non-recurring nature.
TAXES
The Company is subject to taxation in many jurisdictions throughout the
world. The Company's effective tax rate and tax liability will be affected by a
number of factors, such as the amount of taxable income in particular
jurisdictions, the tax rates in such jurisdictions, tax treaties between
jurisdictions, the extent to which the Company transfers funds between
jurisdictions and income is repatriated, and future changes in law. Generally,
the tax liability for each legal entity is determined either (i) on a
non-consolidated basis or (ii) on a consolidated basis only with other entities
incorporated in the same jurisdiction, in either case without regard to the
taxable losses of non-consolidated affiliated entities. As a result, the
Company may pay income taxes in certain jurisdictions even though the Company
on an overall basis incurs a net loss for the period.
ENVIRONMENTAL MATTERS
The Company is subject to various environmental laws and regulations in
the jurisdictions in which it operates. The Company, like many of its
competitors, has incurred, and will continue to incur, capital and operating
expenditures and other costs in complying with such laws and regulations in
both the United States and abroad. The Company does not currently anticipate
any material capital expenditures for environmental control technology. Some
risk of environmental liability is inherent in the Company's business, and
there can be no assurance that material environmental costs will not arise in
the future. However, the Company does not anticipate any material adverse
effect on its results of operations or financial condition as a result of
future costs of environmental compliance. See Item 1, "Business--Environmental
Matters."
INFLATION
Inflation can affect the costs of goods and services used by the Company.
The competitive environment in which the Company operates limits somewhat the
Company's ability to recover higher costs through increased selling prices.
Moreover, there may be differences in inflation rates between countries in
which the Company incurs the major portion of its costs and other countries in
which the Company sells its products, which may limit the Company's ability to
recover increased costs, if not offset by future increase of selling prices.
The Company's growth strategy includes expansion in Latin America and China,
which have experienced inflationary conditions. To date, inflationary
conditions have not had a material effect on the Company's operating results.
However, as the Company's presence in Latin America and China increases, these
inflationary conditions could have a greater impact on the Company's operating
results.
SEASONALITY
The Company's business has historically experienced a slight amount of
seasonal variation, with sales in the first fiscal quarter slightly lower than,
and sales in the fourth fiscal quarter slightly higher than, sales in the
second and third fiscal quarters. This trend has a somewhat greater effect on
income from operations than on net sales due to the effect of fixed costs.
FINANCIAL INSTRUMENTS WITH OFF-BALANCE SHEET RISKS
The Company enters into currency forward and option contracts primarily as
a hedge against anticipated foreign currency exposures and not for speculative
purposes. Such contracts, which are types of financial derivatives, limit the
Company's exposure to both favorable and unfavorable currency fluctuations.
These contracts are adjusted to reflect market values as of each balance sheet
date, with the resulting unrealized gains and losses being recognized in
financial income or expense, as appropriate.
The Company may be exposed to credit losses in the event of nonperformance
by the counterparties to its foreign currency forward and option contracts. The
Company has no reason to believe, however, that such counterparties will not be
able to fully satisfy their obligations under these contracts. At December
31, 1996, the Company had contracts maturing during 1997 to sell the
equivalent of approximately $135.0 million in various currencies in exchange
for Swiss francs. These contracts were used to limit its exposure to foreign
currency fluctuations on anticipated future cash flows, primarily for the
delivery of United States dollars, German marks, French francs, British
pounds and Japanese yen in exchange for Swiss francs. At December 31, 1996,
the fair value of such financial instruments, which the Company recognized
as net unrealized losses, was approximately $5.1 million.
NEW ACCOUNTING STANDARDS
Beginning January 1, 1996 the Company adopted Financial Accounting
Standards Board's Statement of Financial Accounting Standards No. 121 (SFAS
121), "Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to Be Disposed Of." SFAS 121 requires that long-lived assets and certain
identifiable intangibles to be held and used by an entity be reviewed for
impairment whenever events or changes in circumstances indicate that the
carrying amount of an asset may not be recoverable. In addition, SFAS 121
requires that long-lived assets and certain identifiable intangibles to be
disposed of be reported at the lower of carrying amount or fair value less cost
to sell. Adoption of SFAS 121 had no effect on the Company's financial
statements.
In February 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 128, "Earnings per Share." The
Company has yet to determine the effect of this statement on its earnings per
share.
FORWARD-LOOKING STATEMENTS AND ASSOCIATED RISKS
This Registration Statement includes forward-looking statements that
reflect the Registrant current views with respect to future events and
financial performance, including capital expenditures, potential cost savings
from planned employee reductions and the realignment of the analytical and
precision balance business in Switzerland, strategic plans and future cash
sources and requirements. These forward-looking statements are subject to
certain risks and uncertainties, including those identified below, which could
cause actual results to differ materially from historical results or those
anticipated. The words, "believe," "expect," "anticipate" and similar
expressions identify forward-looking statements. Readers are cautioned not to
place undue reliance on these forward-looking statements, which speak only as
of their dates. The Registrant undertakes no obligation to publicly update or
revise any forward-looking statements, whether as a result of new information,
future events or otherwise. The following risks could cause actual results to
differ materially from historical results or those anticipated:
Effect Of Substantial Indebtedness On Operations And Liquidity
The Credit Agreement and the Indenture contain a number of covenants that
restrict the Company's operations. See "Liquidity and Capital Resources." The
Company's ability to comply with the covenants and restrictions contained in
the Credit Agreement and the Indenture may be affected by events beyond its
control, including prevailing economic, financial and industry conditions.
The Company's high degree of leverage could have important consequences
including but not limited to the following: (i) the Company's ability to obtain
additional financing for acquisitions, capital expenditures, working capital or
general corporate purposes may be impaired in the future; (ii) a substantial
portion of the Company's cash flow from operations must be dedicated to the
payment of principal and interest on the Notes and borrowings under the Credit
Agreement and other indebtedness, thereby reducing the funds available to the
Company for its operations and other purposes, including investments in
research and development and capital spending; (iii) certain of the Company's
borrowings are and will continue to be at variable rates of interest, which
exposes the Company to the risk of increased interest rates; and (iv) the
Company may be substantially more leveraged than certain of its competitors,
which may place the Company at a relative competitive disadvantage and may make
the Company more vulnerable to a downturn in general economic conditions or its
business or changing market conditions and regulations.
Restrictions On Operations Under Credit Agreement And Indenture
In connection with the Acquisition, the Company incurred a significant
amount of indebtedness. At December 31, 1996, the Company's consolidated
indebtedness (excluding unused commitments) was approximately $452.2 million
and its shareholder's equity was approximately $12.4 million. On a pro forma
basis giving the effect to the Acquisition, the Company's ratio of earnings
to fixed charges for the year ended December 31, 1996 would have been 1.5x.
The Company has additional borrowing capacity on a revolving credit basis
under the Credit Agreement and under local working capital facilities. The
Company will be required to make semiannual scheduled principal payments on
the term loans under the Credit Agreement commencing in March 1997. The
Company's ability to comply with the terms of the Indenture and the Credit
Agreement, to make cash payments with respect to the Notes and under the
Credit Agreement and to satisfy its other debt or to refinance any of such
obligations will depend on the future performance of the Company, which, in
turn, is subject to prevailing economic and competitive conditions and
certain financial, business and other factors beyond its control.
Risk Of Currency Fluctuations
The Company is subject to risks and uncertainties resulting from changes
in currency exchange rates. For a discussion of these risks, see "Effect of
Currency on Results of Operations."
Risks Associated With International Operations
The Company does business in numerous countries, including emerging
markets in Asia and Latin America. In addition to currency risks discussed
above, the Company's international operations are subject to the risk of new
and different legal and regulatory requirements in local jurisdictions, tariffs
and trade barriers, potential difficulties in staffing and managing local
operations, credit risk of local customers and distributors, potential
difficulties in protecting intellectual property, risk of nationalization of
private enterprises, potential imposition of restrictions on investments,
potentially adverse tax consequences, including imposition or increase of
withholding and other taxes on remittances and other payments by subsidiaries,
and local economic, political and social conditions, including the possibility
of hyper-inflationary conditions, in certain countries. The Company plans to
increase its presence in Latin American countries and China. As a result,
inflationary conditions in these countries could have an increasingly
significant effect on the Company's operating results.
The conversion into foreign currency of funds earned in local currency
through the Company's operations in the People's Republic of China and the
repatriation of such funds require certain governmental approvals. Failure to
obtain such approvals could result in the Company being unable to convert or
repatriate earnings from its Chinese operations, which may become an
increasingly important part of the Company's international operations.
Competition; Improvements In Technology
The markets in which the Company operates are highly competitive. Weighing
markets are fragmented both geographically and by application, particularly the
industrial and food retailing market. As a result, the Company competes with
numerous regional or specialized competitors, many of which are
well-established in their markets. Some competitors are divisions of larger
companies with potentially greater financial and other resources than the
Company. The Company has, from time to time, experienced price pressures from
competitors in certain product lines and geographic markets.
The Company's competitors can be expected to continue to improve the
design and performance of their products and to introduce new products with
competitive price and performance characteristics. Although the Company
believes that it has certain technological and other advantages over its
competitors, realizing and maintaining these advantages will require continued
investment by the Company in research and development, sales and marketing and
customer service and support. There can be no assurance that the Company will
have sufficient resources to continue to make such investments or that the
Company will be successful in maintaining such advantages.
Significant Sales To Pharmaceutical And Chemical Industries
The Company's products are used extensively in the pharmaceutical and
chemical industries. Consolidation in these industries has had an adverse
impact on the Company's sales in recent years. A prolonged downturn or any
additional consolidation in these industries could adversely affect the
Company's operating results.
Reliance On Key Management
Robert F. Spoerry has an employment contract with the Company and it is
anticipated that all of the key management employees will have employment
contracts with the Company. In addition, various members of management own a
portion of the shares of nonvoting capital stock of the Registrant and will
have options to purchase additional shares of such nonvoting capital stock.
Nonetheless, there is no assurance that such individuals will remain with the
Company. If, for any reason, such key personnel do not continue to be active in
the Company's management, operations could be adversely affected. The Company
has no key man life insurance policies with respect to any of its senior
executives.
Environmental Matters
The Company is subject to various environmental laws and regulations in
the jurisdiction in which it operates. For a discussion of risks relating to
environmental matters, see "Environmental Matters" above Item 1,
"Business-Environmental Matters."
Transfer Restrictions
Transfers by current holders of the Registrant's common stock are subject
to certain restrictions and requirements pursuant to subscription agreements
entered into in connection with such holder's purchase of such common stock.
Generally, prior to transfer, a shareholder must obtain a legal opinion stating
that such transfer may be effected without registering the common stock under
the Securities Act of 1933, as amended (the "Securities Act"). In the case of
employees of the Company, employees may not transfer shares owned by them
within three years or five years from the date of their acquisition, as the
case may be. There can be no assurance that the value of the Company's common
stock will remain stable during the time when stockholders are unable to sell
such stock. See Item 11, "Description of Registrant's Securities to be
Registered - Restrictions on Transfer."
Voting Rights
Voting control of the Registrant is vested in holders of Class B Common
Stock. Holders of the Class A Common Stock and Class C Common Stock registered
pursuant to this Registration Statement are not entitled to vote on any
corporate matters, except as provided by Delaware law. As a result, holders of
the Class B Common Stock will be able to elect all of the members to the Board
of Directors and determine the disposition of practically all matters submitted
to a vote of the Registrant's stockholders, including mergers and other
extraordinary transactions and the terms thereof. See Item 11, "Description of
Registrant's Securities to be Registered - Restrictions on Transfer."
No Market for Registered Securities
There is currently no trading market for the Registrant's common stock, and
the Registrant does not anticipate that there will be such a market in the
foreseeable future. Consequently, shareholders may be unable to sell their
shares of common stock once any applicable transfer restrictions expire and the
price obtainable in such sale may be adversely affected by the lack of such
trading market.
Absence of Dividends
The Registrant anticipates that all of its earnings in the foreseeable
future will be retained to finance the continued growth and expansion of its
business and has no current intention to pay cash dividends on its common stock.
ITEM 3. PROPERTIES
The following table lists the Company's principal operating facilities,
indicating the location, primary use and whether the facility is owned or
leased.
LOCATION PRINCIPAL USE (1) OWNED/LEASED
------------------------------- -------------------------------- ------------
Europe:
Greifensee/Nanikon,
Switzerland............... Production, Corporate Headquarters Owned
Uznach, Switzerland....... Production Owned
Urdorf, Switzerland....... Production Owned
Schwerzenbach,
Switzerland............. Production Leased
Albstadt, Germany......... Production Owned
Giessen, Germany.......... Production Owned
Giessen, Germany.......... Sales and Service Owned
Steinbach, Germany........ Sales and Service Owned
Viroflay, France.......... Sales and Service Owned
Beersel, Belgium.......... Sales and Service Owned
Tiel, Netherlands......... Sales and Service Owned
Leicester, England........ Sales and Service Leased
Americas:
Worthington, Ohio......... Production Owned
Spartanburg,
South Carolina.......... Production Owned
Franksville, Wisconsin.... Production Owned
Ithaca, New York.......... Production Owned
Wilmington,
Massachusetts........... Production Leased
Florham Park, New Jersey.. Production Leased
Hightstown, New Jersey.... Sales and Service Owned
Burlington, Canada........ Sales and Service Owned
Mexico City, Mexico....... Sales and Service Leased
Other:
Shanghai, China........... Production Building Owned;
Land Leased
Changzhou, China (2)...... Production Building Owned;
Land Leased
Melbourne, Australia...... Sales and Service Leased
- ------------------------
(1) The Company also conducts research and development activities at certain of
the listed facilities in Switzerland, Germany, the United States and, to a
lesser extent, China.
(2) Held by a 60%-owned joint venture.
The Company believes its facilities are adequate for its current and
reasonably anticipated future needs.
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information with respect to the beneficial
ownership of the capital stock of the Registrant by (i) each director of the
Registrant, (ii) the Registrant's Chief Executive Officer and the four other
most highly compensated executives (collectively, the "Named Executives") and
(iii) all directors and executive officers of the Registrant as a group:
<TABLE>
<CAPTION>
CLASS A NON-VOTING CLASS B VOTING CLASS C NON-VOTING
COMMON STOCK COMMON STOCK (1) COMMON STOCK
------------------- ------------------ -------------------
NUMBER OF % OF NUMBER OF % OF NUMBER OF % OF
NAME SHARES CLASS SHARES CLASS SHARES CLASS
- ----------------------------------------------------- --------- ------- --------- ------- --------- -------
<S> <C> <C> <C> <C> <C> <C>
DIRECTORS AND EXECUTIVE OFFICERS:
Robert F. Spoerry................................ 26,873 1.4% 0 % 7,678 1.4%
Fred Ort......................................... 4,726 * 0 * 1,350 *
Karl M. Lang..................................... 4,726 * 0 * 1,350 *
Lukas Braunschweiler............................. 4,726 * 0 * 1,350 *
John D. Robechek................................ 4,055 * 0 * 1,159 *
Philip Caldwell (2).............................. 4,644 * 0 * 3,492 *
Reginald H. Jones................................ 1,161 * 70 7.0 2,472 *
John D. Macomber................................. 1,161 * 65 6.5 2,250 *
Laurence Z.Y. Moh................................ 23,218 1.2 0 * 5,134 *
Thomas P. Salice (2)............................. 3,701 * 0 * 36,007 6.7
Alan W. Wilkinson (2)............................ 3,701 * 0 * 36,007 6.7
All directors and executive officers as a group
(14 persons (3))................................. 94,075 4.94% 135 13.5% 101,501 18.85%
- ------------------------
* Less than 1%
(1) AEA Investors owns 49.0% of the Class B voting common stock of the
Registrant. AEA Investors' address is 65 East 55th Street, New York, New
York 10022.
(2) Includes shares held by, or in trust for, members of such individual's
family for which Messrs. Caldwell, Salice and Wilkinson disclaim beneficial
ownership. Does not include shares held by AEA Investors, of which Messrs.
Salice and Wilkinson are officers.
(3) Includes William Donnelly, who became Vice President, Chief Financial
Officer, Treasurer and Assistant Secretary on April 1, 1997, and Fred Ort
who ceased to be an executive officer on April 1, 1997 but who remains a
non-executive officer.
</TABLE>
ITEM 5. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The directors and executive officers of the Registrant are set forth below.
All directors hold office until the annual meeting of stockholders following
their election or until their successors are duly elected and qualified.
Officers are appointed by the Board of Directors and serve at the discretion
thereof.
NAME AGE POSITION
- --------------------------------- ------- ------------------------------
Robert F. Spoerry 41 Director; President and Chief
Executive Officer
William Donnelly 35 Vice President, Chief Financial
Officer, Treasurer and
Assistant Secretary
Karl M. Lang 50 Head, Laboratory Division
Lukas Braunschweiler 41 Head, Industrial and Retail
(Europe)
John D. Robechek 48 Head, Industrial and Retail
(Americas)
Peter Burker 51 Head, Human Resources
Thomas Rubbe 43 Head, Logistics and Information
Systems
Philip Caldwell 77 Director; Chairman of the Board
Reginald H. Jones 79 Director
John D. Macomber 69 Director
Laurence Z.Y. Moh 71 Director
Thomas P. Salice 36 Director
Alan W. Wilkinson 41 Director
Robert F. Spoerry has been President and Chief Executive Officer of the
Company since 1993. He served as Head, Industrial and Retail (Europe) of the
Company from 1987 to 1993. Mr. Spoerry has been a Director since October 1996.
William Donnelly has been Vice President, Chief Financial Officer,
Treasurer and Assistant Secretary of the Registrant and Chief Financial Officer
of the Company since April 1, 1997. Prior to joining the Company, he was Group
Vice President and Chief Financial Officer and was an Executive Committee member
of Elsag Bailey Process Automation ("Elsag Bailey"), a global manufacturer of
instrumentation and analytical products, and developer of distributed control
systems. Mr. Donnelly joined Elsag Bailey in 1993 and held various senior
financial positions during that period. Prior to joining Elsag Bailey, Mr.
Donnelly was associated with the international accounting firm of Price
Waterhouse.
Karl M. Lang has been Head, Laboratory Division of the Company since 1994.
From 1991 to 1994 he was based in Japan as a representative of senior management
with responsibility for expansion of the Asian operations.
Lukas Braunschweiler has been Head, Industrial and Retail (Europe) of the
Company since 1995. From 1992 until 1995, he held various senior management
positions with the Landis & Gyr Group, a manufacturer of electrical meters.
Prior to August 1992 he was a Vice President in the Technology Group of Saurer
Group, a manufacturer of textile machinery.
John D. Robechek has been Head, Industrial and Retail (Americas) of the
Company and President of Mettler-Toledo, Inc., a U.S.-based subsidiary of the
Company, since 1995. From 1990 through 1994 he served as Senior Vice President
and managed all of the Company's U.S. subsidiaries.
Peter Burker has been Head, Human Resources of the Company since 1994. From
1992 to 1994 he was Mettler-Toledo's General Manager in Spain, and from 1989 to
1991 he headed the Company's operations in Italy.
Thomas Rubbe has been Head, Logistics and Information Systems of the
Company since 1995. From 1990 to 1995, he was head of Controlling, Finance and
Administration with the Company's German marketing organization.
Philip Caldwell has been a Director and Chairman of the Board since October
1996. Mr. Caldwell has been Senior Managing Director of Lehman Brothers Inc. and
its predecessor, Shearson Lehman Brothers Holdings Inc., since 1985. Mr.
Caldwell spent 32 years at Ford Motor Company where he was Chairman of the Board
of Directors and Chief Executive Officer from 1980 to 1985 and a Director from
1973 through 1990. Mr. Caldwell is a Director of Lehman Brothers Inc., Zurich
Holding Company of America, Inc., Zurich Reinsurance Centre Holdings, Inc.,
American Guarantee & Liability Insurance Company (a Zurich affiliate), The
Mexico Fund, Waters Corporation and Russell Reynolds Associates, Inc. He has
served as a Director of the Chase Manhattan Bank Corporation, the Chase
Manhattan Bank, N.A., Digital Equipment Corporation, Federated Department Stores
Inc., the Kellogg Company, Shearson Lehman Brothers Holdings Inc., CasTech
Aluminum Group Inc. and Specialty Coatings International Inc.
Reginald H. Jones has been a Director since October 1996. Mr. Jones retired
as Chairman of the Board of Directors of General Electric Company ("General
Electric") in April 1981. At General Electric, he served as Chairman of the
Board of Directors and Chief Executive Officer from December 1972 through April
1981, President from June 1972 to December 1972 and a Director from August 1971
to April 1981. Mr. Jones is also a Director of ASA Limited and Birmingham Steel
Corporation.
John D. Macomber has been a Director since October 1996. He has been a
principal of JDM Investment Group since 1992. He was Chairman and President of
the Export-Import Bank of the United States (an agency of the U.S. Government)
from 1989 to 1992. From 1973 to 1986 Mr. Macomber was Chairman and Chief
Executive Officer of Celanese Corporation. Prior to that, Mr. Macomber was a
Senior Partner of McKinsey & Company. Mr. Macomber is also a Director of Textron
Inc., Bristol-Myers Squibb Company, Xerox Corporation, Lehman Brothers Holdings
Inc. and Pilkington plc.
Laurence Za Yu Moh has been a Director since October 1996. He is Chairman
Emeritus of Universal Furniture Limited, which he founded in 1959.
Thomas P. Salice has been a Director since October 1996. He is a Managing
Director of AEA Investors and has been associated with AEA Investors since June
1989. Mr. Salice is also a Director of Waters Corporation.
Alan W. Wilkinson has been a Director since October 1996. He has been a
Managing Director of AEA Investors since September 1989. Prior to his
association with AEA Investors, Mr. Wilkinson was a Vice President in the
Merchant Banking and Mergers and Acquisitions divisions of Lehman Brothers Inc.
ITEM 6. EXECUTIVE COMPENSATION
The following table sets forth the compensation paid to or accrued for
services performed by the Named Executives for the years ended December 31, 1995
and 1996.
<TABLE>
SUMMARY COMPENSATION TABLE (1)
<CAPTION>
LONG TERM
COMPENSATION
ANNUAL COMPENSATION ---------------------
------------------------------------ SECURITIES
OTHER ANNUAL UNDERLYING ALL OTHER
NAME AND PRINCIPAL POSITION YEAR SALARY BONUS (2) COMPENSATION OPTIONS (#) COMPENSATION
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Robert F. Spoerry, President and Chief 1996 $ 435,135 $276,521 $8,857(3) 83,279 $ 124,431
Executive Officer...................1995 289,343 85,871 -- 300(4) 54,346(5)
Fred Ort, Head, Finance and Control.....1996 207,221 99,325 -- 6,246 52,745
1995 227,284 69,701 -- -- 70,804(5)
Karl M. Lang, Head, Laboratory..........1996 212,997 88,375 -- 16,656 61,901
1995 228,427 38,071 -- -- 60,321(5)
Lukas Braunschweiler, Head, Industrial 1996 210,893 66,162 -- 16,656 62,482
and Retail (Europe).................1995 228,427 25,381 -- --- 50,460(5)
John D. Robechek, Head, Industrial 1996 233,754 88,137 -- 16,656 6,215
and Retail (Americas)...............1995 225,000 40,563 -- -- 6,168(6)
- ------------------------
(1) Amounts paid in Swiss francs (all amounts except those paid to Mr.
Robechek) converted to U.S. dollars at a rate of SFr 1.182 to U.S. $1.00
for 1995 and SFr 1.2355 to U.S. $1.00 for 1996, in each case the average
exchange rate during such year.
(2) Does not include Ciba bonuses to the Named Executives for services rendered
to Ciba in connection with its efforts to sell the Company.
(3) Represents additional compensation paid to fully offset, after payment of
all taxes and social security contributions, interest charged to Mr.
Spoerry on a loan to Mr. Spoerry from Mettler-Toledo AG, a subsidiary of
the Company. See Item 13.
(4) Option to purchase the specified number of shares of Ciba common stock at
an exercise price of SFr 750 ($665 at the date of grant) per share. The
fair market value at the date of grant was SFr 764 ($678) per share.
(5) Represents Company contributions to the Mettler-Toledo Fonds (a Swiss
pension plan similar to a defined contribution plan under U.S. law). Fifty
percent of the amount shown is a required employee contribution under the
plan which the Company has contributed on behalf of the Named Executives,
and the other 50% is a required matching employer contribution.
(6) Includes $1,024 for the value of group life insurance over $50,000, $4,500
for the Company's contribution to Mr. Robechek's 401(k) plan account and
$644 for Mr. Robechek's profit sharing payout under the Company's
Performance Dividend Plan.
</TABLE>
<TABLE>
OPTION/SAR GRANTS IN LAST FISCAL YEAR
INDIVIDUAL GRANTS
-----------------
<CAPTION>
POTENTIAL REALIZABLE VALUE AT
NUMBER OF % OF TOTAL ASSUMED ANNUAL RATES OF STOCK
SECURITIES OPTIONS/SARS EXERCISE/ PRICE APPRECIATION FOR OPTION/SAR
UNDERLYING GRANTED TO BASE TERM (2)
OPTIONS/SARS EMPLOYEES IN PRICE EXPIRATION ---------------------------------
NAME GRANTED (#)(1) FISCAL YEAR ($/SH) DATE 5%($) 10% ($)
- ---------------------- -------------- ------------ --------- ---------- ------------ ----------
<S> <C> <C> <C> <C> <C> <C>
Robert F. Spoerry 83,279 29.85 100 2006 5,237,372 13,272,528
Fred Ort 6,246 2.24 100 2006 392,808 995,452
Karl M. Lang 16,656 5.97 100 2006 1,046,858 2,652,944
Lukas Braunschweiler 16,656 5.97 100 2006 1,046,858 2,652,944
John D. Robechek 16,656 5.97 100 2006 1,046,858 2,652,944
(1) All Options are to purchase shares of Class A Common Stock of the
Registrant.
(2) The assumed annual rates of appreciation over the term of the option are
set forth in accordance with rules and regulations adopted by the
Securities and Exchange Commission and do not represent the Company's
estimate of stock appreciation price.
</TABLE>
<TABLE>
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR
AND OPTION/SAR VALUES AS OF DECEMBER 31, 1996
---------------------------------------------
<CAPTION>
NUMBER OF SECURITIES
UNDERLYING UNEXERCISED VALUE OF UNEXERCISED
SHARES OPTIONS/SARS AT FISCAL IN-THE-MONEY OPTIONS/SARS
ACQUIRED ON VALUE YEAR-END AT FISCAL YEAR-END
EXERCISE REALIZED (#) ($) (1)
------------------------------ ---------------------------------
NAME (#) ($) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- ---------------------- ----------- --------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Robert F. Spoerry 0 0 0 83,279 0 0
Fred Ort 0 0 0 6,246 0 0
Karl M. Lang 0 0 0 16,656 0 0
Lukas Braunschweiler 0 0 0 16,656 0 0
John D. Robechek 0 0 0 16,656 0 0
- ------------------------
(1) There is no market value for the Class A Common Stock of the Registrant.
Estimated value, as determined by the Registrant, at December 31, 1996 does
not exceed the exercise price.
</TABLE>
EMPLOYMENT AGREEMENTS; STOCK OPTIONS; MANAGEMENT EQUITY
Mettler-Toledo AG, a subsidiary of the Company, entered into an employment
agreement (the "Agreement") with Robert F. Spoerry (the "Executive") dated as of
October 30, 1996. The Agreement provides for annual base salary of SFr 560,000
($435,135 at December 31, 1996), which may be increased from time to time in
accordance with the Company's normal business practices, and for participation
in the Company's bonus plan. In addition, the Agreement provides for payment of
the amount necessary, after payment of all taxes and social security
contributions, to fully offset the interest charged to the Executive on a
certain loan to the Executive. See Item 7, "Certain Relationships and Related
Transactions" for a description of the loan. The Agreement prohibits the
Executive from competing with the Company for a period of twenty-four months
after termination of employment. The Agreement may be terminated without cause,
on thirty-six months notice during which period the Executive is entitled to
full compensation under the Agreement.
The Company expects to negotiate new employment agreements with the other
Named Executives. Base salary of executive officers under these agreements in
the aggregate will not be materially different from historical practice. The
agreements will also include bonuses contingent on meeting performance
objectives in amounts to be determined.
COMPENSATION OF DIRECTORS
All members of the Board of Directors of the Registrant who are officers of
the Company or employees of AEA Investors will not receive additional
compensation for being on the Board or its committees. Mr. Caldwell purchased
2,856 shares of Class C Common Stock and each of Messrs. Jones, Macomber and Moh
purchased 1,905 shares of Class C Common Stock for being on the Board or its
committees and, in Mr. Caldwell's case, being Chairman of the Board.
RETIREMENT PLANS
Mr. Robechek is covered under two pensions plans, the Mettler-Toledo
Retirement Plan and the Mettler-Toledo Supplemental Retirement Income Plan.
Benefits under these plans are determined by career average compensation rather
than final compensation. The annual accrual for each year under both plans is
the difference of 2% of annual compensation in a plan year and 0.6% of the
lesser of annual compensation or covered compensation (defined under the plans
as the average of the Social Security Taxable Wage Bases in effect for each
calendar year during the 35-year period ending on the last day of a given plan
year). The Mettler-Toledo Retirement Plan includes all compensation up to the
qualified plan limitations under the Internal Revenue Code of 1986, as amended
($150,000 per year in 1996) and the Mettler-Toledo Supplemental Retirement
Income Plan pays for benefits in excess of these limits. The accrued annual
benefit payable to Mr. Robechek under the Mettler-Toledo Retirement Plan is
$45,693 and the accrued annual benefit under the Mettler-Toledo Supplemental
Plan is $11,329, for a total annual retirement benefit of $57,022.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The following directors served on the Registrant's Compensation Committee
during the fiscal year ended December 31, 1996: Reginald H. Jones, Laurence Z.
Y. Moh and Thomas P. Salice. Mr. Salice also served as an officer of the
Registrant and certain of its subsidiaries during such fiscal year. Mr. Salice
is an officer of AEA Investors, a stockholder of the Registrant. See Item 7,
"Certain Relationships and Related Transactions" for a description of
relationships between AEA Investors and the Registrant.
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
AEA Investors and the Company have entered into a Management Agreement
pursuant to which AEA Investors provides management, consulting and financial
services to the Company. Services are expected to be provided in such areas as
the preparation and evaluation of strategic, operating, financial and capital
plans and the development and implementation of compensation and other incentive
programs. Such services will be provided by the executive staff of AEA
Investors. In consideration of such services, AEA Investors is entitled to an
annual fee of $1.0 million, plus reimbursement for certain expenses and
indemnification against certain liabilities. The agreement further provides that
in the event the Company employs any employee of AEA Investors as an officer of
the Company or otherwise, and such employment includes a substantial amount of
such employee's time, the Company will compensate such employee at a reasonable
rate. The Company believes that the terms of these management arrangements are
as favorable as could be obtained from an unaffiliated third party. In
connection with the Acquisition and in consideration of services by AEA
Investors in arranging, structuring and negotiating the terms of the Acquisition
and the related financing transactions, the Company paid AEA Investors a
transaction fee of $5.5 million and reimbursed AEA Investors for certain related
expenses.
Management and other employees of the Company have contributed
approximately $12 million of the equity of the Registrant. For information
regarding the number of shares purchased by each Named Executive, see Item 4,
"Security Ownership of Certain Beneficial Owners and Management." Each share of
Class A Common Stock was purchased for $100 per share and each share of Class C
Common Stock was purchased for approximately $.03 per share.
On October 7, 1996, in order to fund a portion of the purchase price for
the shares purchased by Mr. Spoerry, Mettler-Toledo AG entered into a Loan
Agreement with Mr. Spoerry, in the amount of SFr 1.0 million ($742,000 at
December 31, 1996). The loan bears interest at a rate of 5% and is payable upon
demand, which may not be made until seven years after the date of the loan.
ITEM 8. LEGAL PROCEEDINGS
The Company is subject to routine litigation incidental to its business.
The Company is currently not involved in any legal proceeding that it believes
could have a material adverse effect upon its financial condition or results of
operations. See "Environmental Matters" under Item 1 for information concerning
legal proceedings relating to certain environmental claims.
ITEM 9. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY AND
RELATED STOCKHOLDER MATTERS
(a) Market Information.
There is no established trading market for any equity securities of the
Registrant. On the date hereof with respect to the common equity of the
Registrant (i) there are outstanding options or warrants to purchase 291,488
shares of Class A Common Stock of the Registrant, (ii) due to contractual
restrictions and the limitations of Rule 144 of the Securities Act, there are no
shares that could be sold without restriction or that the Registrant has agreed
to register under the Securities Act for sale by security holders, and (iii)
there are no shares that are being, or have been publicly proposed to be,
publicly offered by the Registrant. See Item 11, "Description of Registrant's
Securities to be Registered - Common Stock - Restrictions on Transfer."
(b) Holders.
On the date hereof, there are approximately (i) 832 holders of the Class A
Common Stock of the Registrant, (ii) 9 holders of the Class B Common Stock of
the Registrant, and (iii) 843 holders of the Class C Common Stock of the
Registrant.
(c) Dividends.
The Registrant has never paid any dividends on its common stock. Since the
only assets of the Registrant are those resulting from its ownership of 100% of
the outstanding common stock of Mettler-Toledo Holding Inc., which has no assets
other than those resulting from its ownership of 100% of the outstanding common
stock of Mettler-Toledo Inc., and since Mettler-Toledo, Inc. is prohibited from
paying dividends to Mettler-Toledo Holding, Inc., subject to certain limited
exceptions, the Registrant does not expect to have any assets to distribute to
its security holders in the foreseeable future. See Item 2, "Financial Data" -
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
ITEM 10. RECENT SALES OF UNREGISTERED SECURITIES
From the date of its incorporation until the issuances of common stock
which occurred beginning in October 1996, the Registrant issued common stock to
certain members of senior management, the investor-participants of AEA Investors
and AEA Investors for approximately $.03 per share. In connection with the
Acquisition, the Registrant effected a recapitalization pursuant to which such
common stock was converted into Class B Common Stock or Class C Common Stock, as
the case may be.
1. In October 1996, the Registrant issued 1,803,489 shares of Class A
Common Stock for an aggregate consideration of $180,348,900, 50 shares of Class
B Common Stock for an aggregate consideration of approximately $2, and 172,376
shares of Class C Common Stock for an aggregate consideration of approximately
$5,171. The shares were offered and sold to executive officers of the Company
and the management and investor-participants of AEA Investors in reliance on
Rule 506 of Regulation D and Section 4(2) under the Securities Act.
2. In October 1996, the Registrant issued 8,843 shares of Class A Common
Stock for an aggregate consideration of $884,300, and 2,526 shares of Class C
Common Stock for an aggregate consideration of approximately $76. The shares
were offered and sold in reliance on Rule 701 under the Securities Act and were
sold pursuant to a written compensatory benefit plan to employees of the
Registrant and its subsidiaries.
3. In October 1996, the Registrant issued 16,578 shares of Class A Common
Stock for an aggregate consideration of $1,657,800, and 4,738 shares of Class C
Common Stock for an aggregate consideration of approximately $142. The shares
were offered and sold in reliance on Rule 903 under the Securities Act outside
the United States to employees of the Company who represented that they were
non U.S. persons.
4. In December 1996, the Registrant issued 25,750 shares of Class A Common
Stock for an aggregate consideration of $2,575,000, and 11,885 shares of Class C
Common Stock for an aggregate consideration of approximately $357. The shares
were offered and sold to executive officers of the Company and the management
and investor-participants of AEA Investors in reliance on Rule 506 of Regulation
D under the Securities Act.
5. In December 1996, the Registrant issued 8,620 shares of Class A Common
Stock for an aggregate consideration of $862,000, and 2,472 shares of Class C
Common Stock for an aggregate consideration of approximately $74. The shares
were offered and sold in reliance on Rule 701 under the Securities Act and were
sold pursuant to a written compensatory benefit plan to employees of the
Registrant and its subsidiaries.
6. In December 1996, the Registrant issued 36,499 shares of Class A Common
Stock for an aggregate consideration of $3,649,900, and 10,401 shares of Class C
Common Stock for an aggregate consideration of approximately $312. The shares
were offered and sold in reliance on Rule 903 under the Securities Act outside
the United States to employees of the Company who represented that they were non
U.S. persons.
7. In April 1997, the Registrant issued 3,000 shares of Class A Common
Stock for an aggregate consideration of $300,000, and 857 shares of Class C
Common Stock for an aggregate consideration of approximately $26. The shares
were offered and sold to an executive officer of the Company in reliance on Rule
506 of Regulation D under the Securities Act.
The sales described in items 1, 4 and 7 were made to (i) individuals who
represented that they were accredited investors, (ii) executive officers of the
Company, or (iii) employees of AEA Investors (who numbered fewer than 35 and)
who the Company believes have knowledge and experience in financial and business
matters sufficient to be capable of evaluating the merits and risks of
purchasing the securities issued.
ITEM 11. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The following brief description of the Registrant's capital stock does not
purport to be complete and is subject in all respects to applicable Delaware law
and to the provision of the Registrant's Restated Certificate of Incorporation,
as amended (the "Registrant's Certificate of Incorporation") and By-Laws (the
"Registrant's By-Laws").
As of the date hereof, the authorized capital stock of the Registrant
consists of 2,778,755 shares of Common Stock, $.01 par value, of which 2,235,896
shares are designated as Class A Common Stock, 1,000 shares are designated as
Class B Common Stock and 541,859 shares are designated as Class C Common Stock.
As of the date hereof, the Registrant had outstanding 1,902,779 shares of Class
A Common Stock, 1,000 shares of Class B Common Stock and 538,592 shares of Class
C Common Stock, and an additional 291,488 shares of Class A Common Stock were
issuable upon exercise of outstanding employee stock options.
COMMON STOCK
Holders of common stock of the Registrant have no preemptive, subscription
or redemption rights. Except for the Class A dividend and distribution
preference and the Class B voting rights (each as described below), the three
classes of common stock of the Registrant have identical rights under the
Registrant's Certificate of Incorporation and By-Laws.
Preference. Dividends or distributions in connection with the liquidation,
dissolution or winding up of the affairs of the Registrant or not paid out of
the current and accumulated earnings and profits shall be paid in the following
manner: First, exclusively to the holders of the shares of Class A Common Stock,
ratably to each such holder, until the sum of all dividends and distributions to
each holder of Class A Common Stock equals $100 for each share of Class A Common
Stock held by such holder. After each holder of shares of Class A Common Stock
shall have received dividends and distributions totaling $100, then exclusively
to the holders of the shares of Class B Common and Class C Common Stock ratably
to each such holder until the sum of all dividends and distributions to each
holder of Class B Common Stock and/or Class C Common Stock equals $100 for each
share of Class B Common Stock and/or Class C Common Stock held by such holder.
After each holder of Class B Common Stock and Class C Common Stock shall have
received such dividends and distributions, then to all holders of Class A Common
Stock, Class B Common Stock and/or Class C Common Stock, ratably to each holder
of such shares.
Voting. The entire voting power of the Registrant's common stock is vested
exclusively in the Class B Common Stock. Each holder of shares of the Class B
Common Stock shall be entitled to one vote for each share of the Class B Common
Stock.
Restrictions on Transfer. Transfers by holders of the Registrant's common
stock (the "Restricted Securities") are restricted pursuant to subscription
agreements entered into in connection with such holder's purchase of such
Restricted Securities. See Item 2, "Financial Information - Forward Looking
Statements and Associated Risks - Transfer Restrictions."
Section 203 of the DGCL. The Registrant is a Delaware corporation and is
subject to Section 203 of the General Corporation Law of the State of Delaware
(the "DGCL"). In general, Section 203 prevents an "interested stockholder"
(defined as a person who is the owner of 15% or more of a corporation's voting
stock, or who, as an affiliate or associate of a corporation, was the owner of
15% or more of that corporation's voting stock within the prior three years)
from engaging in a "business combination" (as defined under the DGCL) with a
Delaware corporation for three years following the date such person became an
interested stockholder unless: (i) before such person became an interested
stockholder, the board of directors of the corporation approved the transaction
or the business combination in which the interested stockholder became an
interested stockholder; (ii) upon consummation of the transaction that resulted
in the interested stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced (excluding shares owned by
persons who are both officers and directors of the corporation and shares held
by certain employee stock ownership plans in which employee participants do not
have the right to determine confidentially whether shares held subject to the
plan will be tendered in a tender or exchange offer); or (iii) following the
transaction in which such person became an interested stockholder, the business
combination is approved by the board of directors of the corporation and
authorized at a meeting of stockholders by the affirmative vote of the holders
of at least two-thirds of the outstanding voting stock of the corporation not
owned by the "interested stockholder." A "business combination" generally
includes mergers, stock or assets sales and other transactions resulting in a
financial benefit to the "interested stockholders."
CERTAIN CHARTER AND BY-LAW PROVISIONS
Director's Liability. The Registrant's Certificate of Incorporation
provides that to the fullest extent permitted by the DGCL as it currently exists
or may be amended, a director of the Registrant shall not be liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director. See Item 12, "Indemnification of Officers and Directors."
REGISTRATION RIGHTS
Current holders of the Registrant's common stock (other than certain
members of senior management) have rights to require the Registrant to register
such shares of common stock for resale pursuant to subscription agreements
pursuant to which they acquired their shares. If no securities of the Registrant
have theretofore been sold pursuant to a registration statement under the
Securities Act, upon the request of persons owning at least 51% of the sum of
all outstanding shares of the Class A Stock, the Class B Stock and the Class C
Stock which are then Restricted Securities, the Registrant would be required to
register the sale of such securities, subject to certain limitations and
requirements. After securities of the Registrant have been sold pursuant to a
registration statement under the Securities Act, upon the request of persons
owning at least 25% of the sum of all outstanding shares of the Class A Stock,
the Class B Stock and the Class C Stock which are then Restricted Securities and
which have a value of at least $5,000,000, the Registrant would be required to
register the sale of such securities, subject to certain limitations and
requirements. The Registrant is not required to file any registration statement
within six months of the effective date of any earlier registration statement
and is not required to file more than three registration statements pursuant to
such requests. In addition, under certain circumstances, should the Registrant
file a registration statement with the Securities and Exchange Commission
registering shares of the common stock of the Registrant, the owners of
Restricted Securities would be entitled to include their Restricted Securities
in such registration.
ITEM 12. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant, as a Delaware corporation, is empowered by Section 145 of
the DGCL, subject to the procedures and limitations stated therein, to indemnify
any person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with any threatened, pending or completed action, suit or proceeding in which
such person is made or threatened to be made a party by reason of his being or
having been a director, officer, employee or agent of the Registrant or his
serving at the request of the Registrant as a director, officer, employee or
agent of another company or other entity. The statute provides that
indemnification pursuant to its provisions is not exclusive of other rights of
indemnification to which a person may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors, or otherwise. The Registrant's
By-Laws provide for indemnification by the Registrant of its directors and
officers to the full extent authorized by the DGCL. Pursuant to Section 145 of
the DGCL, the Registrant has purchased insurance on behalf of its present and
former directors and officers against liabilities asserted against and incurred
by them in such capacity or arising out of their status as such.
Pursuant to specific authority granted by Section 102 of the DGCL, the
Registrant's Certificate of Incorporation contains the following provision
regarding indemnification of directors:
"To the fullest extent permitted by the Delaware General Corporation Law as
the same exists or may hereafter be amended, a Director of the Corporation
shall not be liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a Director."
The Registrant's By-Laws contain the following provision regarding
indemnification of directors and officers:
"The Corporation shall indemnify to the full extent authorized by law any
person made or threatened to be made a party to an action, suit or
proceeding, whether criminal, civil administrative or investigative, by
reason of the fact that he, his testator or intestate is or was a director,
officer, employee or agent of the Corporation or is or was serving, at the
request of the Corporation, as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise."
The Registrant has entered into agreements to provide indemnification for
their directors and certain officers in addition to the indemnification provided
for in the Registrant's By-Laws. These agreements, among other things, indemnify
the directors, to the fullest extent provided by Delaware law, for certain
expenses (including attorneys' fees), losses, claims, liabilities, judgments,
fines and settlement amounts incurred by such indemnitee in any action or
proceeding, including any action by or in the right of the Registrant, on
account of services as a director or officer of any affiliate of the Registrant,
or as a director or officer of any other company or enterprise that the
indemnitee provides services to at the request of the Registrant.
The Management Agreement between the Company and AEA Investors provides for
indemnification of employees of AEA Investors who serve as directors of the
Registrant.
ITEM 13. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial statements required by this item are set forth on pages F-1
through F-41 and the related financial schedules are set forth on pages S-1
through S-8.
ITEM 14. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not Applicable.
ITEM 15. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements Filed as Part of this Report:
1. Financial Statements. See Index to Financial Statements included
on page F-1.
2. Financial Statements Schedules. See "Schedule I - Condensed
Financial Information of Registrant" and "Schedule II - Valuation
and Qualifying Accounts" included on pages S-1 through S-8.
(b) Exhibits Filed as Part of this Report.
1. List of Exhibits. See Index of Exhibits included on pages E-1
through E-3.
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
MT Investors Inc.
(Registrant)
Date: June 30, 1997 By: /s/ William P. Donnelly
-----------------------
William P. Donnelly
Vice President, Chief Financial
Officer and Treasurer
INDEX OF EXHIBITS
-----------------
Page Number or
Exhibit No. Description Incorporation by Reference
----------- ----------- --------------------------
2.1 Stock Purchase Agreement Filed as Exhibit 2.1 to the
between AEA-MT Inc., AG fur Registration Statement, as amended,
prazisionsinstrumente and on Form S-1, of the Company (Reg.
Ciba-Geigy AG, as amended No. 33-09621) and incorporated
herein by reference.
2.2 Share Sale and Purchase Filed as Exhibit 2 to the Current
Agreement, dated May 30, Report on Form 8-K of Mettler-
1997, among Safeline Holding Toledo Holding Inc. dated June 3,
Company and Mettler-Toledo 1997 and incorporated herein by
Inc. (a Canadian reference.
corporation), Safeline
Limited and each of the
Sellers named therein.
3.1.1* Restated Certificate of
Incorporation of MT Investors
Inc. dated October 11, 1996
3.1.2* Certificate of Amendment of
Restated Certificate of
Incorporation of MT Investors
Inc. dated October 15, 1996
3.1.3* Certificate of Amendment of
Restated Certificate of
Incorporation of MT Investors
Inc. dated April 1, 1997
3.2* By-laws of MT Investors Inc.
4.1 Indenture dated as of October Filed as Exhibit 4.1 to the Current
15, 1996, among MT Report on Form 8-K of Mettler-
Acquisition Corp., as Issuer, Toledo Holding Inc. dated October
Mettler-Toledo Holding Inc., 30, 1996 and incorporated herein by
as Note Guarantor, and United by reference.
States Trust Company of New
York, as Trustee
4.2 First Supplemental Indenture Filed as Exhibit 4.2 to the Current
dated as of October 15, 1996, Report on Form 8-K of Mettler-
among Mettler-Toledo, Inc., Toledo Holding Inc. dated October
Mettler-Toledo Holding Inc., 30, 1996 and incorporated herein
as Note Guarantor, and by reference.
United States Trust Company
of New York, as Trustee
10.1 Credit Agreement, dated as Filed as Exhibit 99.1 to the
of October 15, 1996, between Current Report on Form 8-K of
MT Acquisition Corp. and Mettler-Toledo Holding Inc. dated
Mettler-Toledo Holding AG, October 30, 1996 and incorporated
as borrowers, and Merrill herein by reference.
Lynch Capital Corporation,
as document agent and the
lenders party thereto
10.2 Credit Agreement Amendment Filed as Exhibit 10.2 to the Annual
No. 1 dated as of January 14, Report on Form 10-K of Mettler-
1997 between MT Acquisition, Toledo Holding Inc. dated March 31,
Mettler-Toledo Holding Inc. 1997 and incorporated herein by
and Mettler-Toledo Holding, reference.
AG, as borrowers, and Merrill
Lynch & Co., Merrill Lynch,
Pierce Fenner & Smith Inc.,
as document agent and the
lenders party thereto
10.3 Management Consulting Filed as Exhibit 10.3 to the Annual
Agreement dated as of October Report on Form 10-K of Mettler-
15, 1996 between Mettler- Toledo Holding Inc. dated March 31,
Toledo, Inc. and AEA 1997 and incorporated herein by
Investors Inc. reference.
10.4 Employment Agreement Filed as Exhibit 10.4 to the Annual
between Robert F. Spoerry and Report on Form 10-K of Mettler-
Mettler-Toledo AG, dated as Toledo Holding Inc. dated March 31,
of October 30, 1996 1997 and incorporated herein by
reference.
10.5 Loan Agreement between Robert Filed as Exhibit 10.5 to the Annual
F. Spoerry and Mettler-Toledo Report on Form 10-K of Mettler-
AG, dated as of October 7, Toledo Holding Inc. dated March 31,
1996 1997 and incorporated herein by
reference.
10.6 MT Investors Inc. Stock Option Filed as Exhibit 10.6 to the Annual
Plan Report on Form 10-K of Mettler-
Toledo Holding Inc. dated March 31,
1997 and incorporated herein by
reference.
10.7 Mettler Toledo Performance- Filed as Exhibit 10.7 to the Annual
Oriented Bonus System (POBS), Report on Form 10-K of Mettler-
effective as of 1993 Toledo Holding Inc. dated March 31,
1997 and incorporated herein by
reference.
10.8 Mettler Toledo POBS Plus -- Filed as Exhibit 10.8 to the Annual
Incentive Scheme for Senior Report on Form 10-K of Mettler-
Management of Mettler Toledo, Toledo Holding Inc. dated March 31,
dated as of November 4, 1996 1997 and incorporated herein by
reference.
10.9 Amended and Restated Credit
Agreement, dated as of October
15, 1996 between Mettler-Toledo
Inc., Mettler-Toledo Holding AG,
as Borrowers, Safeline Holding
Company as UK Borrower, Mettler-
Toledo, Inc. as Canadian Borrower
and Merrill Lynch & Co. as
Arranger and Documentation Agent,
and the Lenders thereto, Amended
and Restated as of May 29, 1996.
21.1* Subsidiaries of the Registrant
27.1 Financial Data Schedule
* Previously filed.
MT INVESTORS INC.
INDEX TO FINANCIAL STATEMENTS
Audited Consolidated Financial Statements: Page
- ----------------------------------------- ----
Independent Auditors' Report F-2
Consolidated Balance Sheets as of December 31, 1995 and 1996 F-3
Consolidated Statements of Operations for the years ended
December 31, 1994 and 1995 and for the period January 1,
1996 to October 14, 1996 and for the period October 15,
1996 to December 31, 1996 F-5
Consolidated Statements of Changes in Net Assets / Shareholders'
Equity for the years ended December 31, 1994 and 1995 and for
the period January 1, 1996 to October 14, 1996 and for the
period October 15, 1996 to December 31, 1996 F-6
Consolidated Statements of Cash Flows for the years ended
December 31, 1994 and 1995 and for the period January 1, 1996
to October 14, 1996 and for the period October 15, 1996 to
December 31, 1996 F-8
Notes to Audited Consolidated Financial Statements F-10
Unaudited Interim Consolidated Financial Statements:
- ---------------------------------------------------
Interim Consolidated Balance Sheets as of December 31, 1996
and March 31, 1997 F-34
Interim Consolidated Statements of Operations for the
three months ended March 31, 1996 and 1997 F-36
Interim Consolidated Statements of Changes in Net Assets /
Shareholders' Equity for the three months ended
March 31, 1996 and 1997 F-37
Interim Consolidated Statements of Cash Flows for the
three months ended March 31, 1996 and 1997 F-39
Notes to the Interim Consolidated Financial Statements F-40
Financial Statement Schedules:
Schedule I - Condensed Financial Information of Registrant S-1
Schedule II - Valuation and Qualifying Accounts S-8
INDEPENDENT AUDITORS' REPORT
The Board of Directors
MT Investors Inc.
We have audited the accompanying consolidated balance sheets of MT
Investors Inc. and subsidiaries (as defined in Note 1 to the Audited
Consolidated Financial Statements) as of December 31, 1995 and 1996 and the
related consolidated statements of operations, net assets/shareholders' equity
and cash flows for each of the years ended December 31, 1994 and 1995 and for
the period January 1, 1996 to October 14, 1996, the Predecessor periods, and for
the period October 15, 1996 to December 31, 1996, the Successor period. In
connection with our audits of the Audited Consolidated Financial Statements, we
also have audited the financial statement schedules as listed in the
accompanying index. These Audited Consolidated Financial Statements and
financial statement schedules are the responsibility of the Company's
management. Our responsibility is to express an opinion on these Audited
Consolidated Financial Statements and financial statement schedules based on our
audits.
We conducted our audits in accordance with generally accepted auditing
standards in the United States of America. Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the Audited Consolidated Financial Statements referred to
above present fairly, in all material respects, the consolidated financial
position of MT Investors Inc. and subsidiaries as of December 31, 1995 and 1996,
and the consolidated results of their operations and their cash flows for each
of the years ended December 31, 1994 and 1995 and for the period January 1, 1996
to October 14, 1996, the Predecessor periods, and for the period October 15,
1996 to December 31, 1996, the Successor period, in conformity with generally
accepted accounting principles in the United States of America. Also in our
opinion, the related financial statement schedules, when considered in relation
to the basic Audited Consolidated Financial Statements taken as a whole,
presents fairly, in all material respects, the information set forth therein.
As more fully described in Note 1 to the Audited Consolidated Financial
Statements, MT Investors Inc. acquired the Mettler-Toledo Group as of October
15, 1996 in a business combination accounted for as a purchase. As a result of
the acquisition, the Audited Consolidated Financial Statements for the Successor
period are presented on a different basis of accounting than that of the
Predecessor periods, and therefore are not directly comparable.
KPMG Fides Peat
Zurich, Switzerland
April 18, 1997
<TABLE>
MT INVESTORS INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except per share data)
<CAPTION>
Predecessor Successor
----------- ---------
December 31, December 31,
1995 1996
----------- ---------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents.............................. $41,402 $60,696
Due from Ciba and affiliates ...................... 33,072 --
Trade accounts receivable, less allowances of
$9,292 in 1995 and $8,388 in 1996 .............. 159,218 151,161
Inventories ....................................... 110,986 102,526
Deferred taxes .................................... 6,180 7,565
Other current assets .............................. 21,469 17,268
-------- --------
Total current assets ........................... 372,327 339,216
Property, plant and equipment, net .................... 241,018 255,292
Excess of cost over net assets acquired, net of
accumulated amortization of $17,268 in 1995
and $982 in 1996 .................................. 84,425 135,490
Long-term deferred taxes .............................. 14,312 3,916
Other assets .......................................... 12,012 37,974
--------- ---------
Total assets ................................... $724,094 $771,888
========= =========
</TABLE>
<TABLE>
MT INVESTORS INC.
CONSOLIDATED BALANCE SHEETS--(Continued)
(in thousands, except per share data)
<CAPTION>
Predecessor Successor
----------- ---------
December 31, December 31,
1995 1996
------------ ------------
<S> <C> <C>
LIABILITIES AND NET ASSETS/SHAREHOLDERS' EQUITY
Current liabilities:
Trade accounts payable $ 34,389 $ 32,797
Accrued and other liabilities 107,118 115,314
Taxes payable 11,737 17,580
Deferred taxes 7,698 9,132
Bank and other loans 29,513 80,446
Notes payable to Ciba and affiliates 91,132 -
---------- --------
Total current liabilities 281,587 255,269
Long-term debt payable to Ciba and affiliates 145,097 -
Long-term debt due to third parties 3,621 373,758
Long-term deferred taxes 13,502 30,467
Other long-term liabilities 84,303 96,810
---------- --------
Total liabilities 528,110 756,304
Minority interest 2,730 3,158
Net assets/shareholders' equity:
Common stock, $0.01 par value per share:
Class A non-voting, authorized
2,233,117 shares; issued 1,899,779 at December 31, 1996 - 19
Class B voting, authorized 1,000 shares; issued
1,000 at December 31, 1996 - 1
Class C non-voting, authorized
541,859 shares; issued 537,735 at December 31, 1996 - 5
Additional paid-in capital - 188,084
Accumulated deficit - (159,046)
Capital employed 162,604 -
Currency translation adjustment 30,650 (16,637)
---------- --------
Total net assets/shareholders' equity 193,254 12,426
---------- --------
Commitments and contingencies
Total liabilities and net assets/shareholders' equity $724,094 $771,888
========== ========
</TABLE>
See the accompanying notes to the Audited Consolidated Financial Statements
<TABLE>
MT INVESTORS INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
<CAPTION>
Predecessor Successor
------------------------------------------------ ----------------
Twelve months Twelve months For the period For the period
ended ended January 1, 1996 October 15, 1996
December 31, December 31, to October 14, to December 31,
1994 1995 1996 1996
------------------------------------------------ ----------------
<S> <C> <C> <C> <C>
Net sales $769,136 $850,415 $662,221 $ 186,912
Cost of sales 461,629 508,089 395,239 136,820
-------- -------- -------- ---------
Gross profit 307,507 342,326 266,982 50,092
Research and development 47,994 54,542 40,244 9,805
Selling, general and administrative 224,978 248,327 186,898 59,353
Amortization 6,437 2,765 2,151 1,065
Purchased research and development - - - 114,070
Other charges (income), net (2,852) (701) 1,872 9,892
-------- -------- -------- ---------
Earnings (loss) before interest
and taxes 30,950 37,393 35,817 (144,093)
Interest expense 13,307 18,219 13,868 8,738
Financial expense (income), net (4,864) (8,630) (3,204) 7,245
-------- -------- -------- ---------
Earnings (loss) before taxes and
minority interest 22,507 27,804 25,153 (160,076)
Provision for taxes 8,676 8,782 10,055 (938)
Minority interest 347 768 637 (92)
-------- -------- -------- ---------
Net earnings (loss) $ 13,484 $ 18,254 $ 14,461 $(159,046)
======== ======== ========= ==========
Earnings (loss) per common share:
Weighted average number
of common shares 2,438,514 2,438,514 1,930,490 499,165
Earnings (loss) per common share $5.53 $7.49 $7.49 $(318.62)
========= ========= ========= =========
</TABLE>
See the accompanying notes to the Audited Consolidated Financial Statements
<TABLE>
MT INVESTORS INC.
CONSOLIDATED STATEMENTS OF CHANGES IN NET ASSETS / SHAREHOLDERS' EQUITY
(in thousands, except per share data)
<CAPTION>
Predecessor
------------------------------------------
For the twelve month periods ended
December 31, 1994 and 1995 and for the
period January 1, 1996 to October 14, 1996
------------------------------------------
Currency
Capital Translation
Employed Adjustment Total
-------- ----------- -----
<S> <C> <C> <C>
Net assets at December 31, 1993 $202,643 $(9,122) $193,521
Capital transactions with Ciba and affiliates 2,002 - 2,002
Net earnings 13,484 - 13,484
Change in currency translation adjustment - 19,187 19,187
-------- -------- -------
Net assets at December 31, 1994 218,129 10,065 228,194
Capital transactions with Ciba and affiliates (73,779) - (73,779)
Net earnings 18,254 - 18,254
Change in currency translation adjustment - 20,585 20,585
-------- -------- -------
Net assets at December 31, 1995 162,604 30,650 193,254
Capital transactions with Ciba and affiliates (88,404) - (88,404)
Net earnings 14,461 - 14,461
Change in currency translation adjustment - (6,538) (6,538)
-------- -------- -------
Net assets at October 14, 1996 $ 88,661 $24,112 $112,773
======== ======= ========
</TABLE>
See the accompanying notes to the Audited Consolidated Financial Statements
<TABLE>
MT INVESTORS INC.
CONSOLIDATED STATEMENTS OF CHANGES IN NET ASSETS/SHAREHOLDERS' EQUITY--(Continued)
(in thousands, except per share data)
<CAPTION>
Successor
---------------------------------------------------------------------------------------------------
For the period from October 15, 1996 to December 31, 1996
---------------------------------------------------------------------------------------------------
Common Stock
--------------------------------------------------
Class A Class B Class C Additional Currency
----------------- -------------- --------------- Paid-in Accumulated Translation
Shares Amount Shares Amount Shares Amount Capital Deficit Adjustment Total
------- ----- ------ ------ ------ ------ ---------- ----------- ---------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at October 15, 1996 - $ - 1,000 $ 1 - $ - $ - $ - $ - $ 1
New issuance of shares 1,899,779 19 - - 537,735 5 188,084 - - 188,108
Net loss - - - - - - - (159,046) - (159,046)
Change in currency
translation adjustment - - - - - - - - (16,637) (16,637)
--------- ------ ----- ------ ------- ------ ---------- ---------- ----------- --------
Balance at December 31, 1996 1,899,779 $ 19 1,000 $ 1 537,735 $ 5 $ 188,084 $ (159,046) $ (16,637) $ 12,426
========= ====== ===== ====== ======= ====== ========== ========== ========== ========
</TABLE>
See the accompanying notes to the Audited Consolidated Financial Statements
<TABLE>
MT INVESTORS INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
<CAPTION>
Predecessor Successor
------------------------------------------------ -----------------
Twelve months Twelve months For the period For the period
ended ended January 1, 1996 October 15, 1996
December 31, December 31, to October 14, to December 31,
1994 1995 1996 1996
------------- ------------ --------------- -----------------
<S> <C> <C> <C> <C>
Cash flows from operating activities:
Net earnings (loss) $13,484 $18,254 $14,461 $(159,046)
Adjustments to reconcile net
earnings (loss) to net cash
provided by operating activities:
Depreciation 27,681 30,598 19,512 7,925
Amortization 6,437 2,765 2,151 1,065
Write-off of purchased research and
development and cost of sales
associated with revaluation of
inventories -- -- -- 146,264
Net gain on disposal of long-term assets (1,396) (1,053) (768) --
Deferred taxes 740 (551) (1,934) (4,563)
Minority interest 347 768 637 (92)
Increase (decrease) in cash resulting
from changes in:
Trade accounts receivable, net (7,410) (9,979) 9,569 (10,159)
Inventories (574) (607) 1,276 3,350
Other current assets 1,636 (3,058) 14,748 (10,605)
Trade accounts payable (1,123) 1,437 (3,065) 3,415
Accruals and other liabilities, net (5,728) 13,095 5,948 32,030
--------- -------- -------- --------
Net cash provided by operating
activities 34,094 51,669 62,535 9,584
--------- -------- -------- --------
Cash flows from investing activities:
Proceeds from sale of property,
plant and equipment 12,454 4,000 1,606 736
Purchase of property, plant and equipment (24,916) (25,858) (16,649) (11,928)
Acquisition of Mettler-Toledo from Ciba -- -- -- (314,962)
Investments in other long term assets, net 162 (7,484) (1,632) 4,857
--------- -------- -------- --------
Net cash used in
investing activities (12,300) (29,342) (16,675) (321,297)
--------- -------- -------- --------
Cash flows from financing activities:
Borrowings of third party debt - 3,983 - 414,170
Repayments of third party debt (311) - (13,464) -
Proceeds from issuance of common stock - - - 188,108
Ciba and affiliates borrowings (repayments) (9,187) (15,693) (26,589) (184,666)
Capital transactions with Ciba and affiliates 2,002 (37,361) (7,716) (80,687)
--------- -------- -------- --------
Net cash provided by (used in)
financing activities (7,496) (49,071) (47,769) 336,925
--------- -------- -------- --------
Effect of exchange rate changes
on cash and cash equivalents 10,040 4,344 (3,394) (615)
--------- -------- -------- --------
Net increase (decrease) in cash and cash
equivalents 24,338 (22,400) (5,303) 24,597
Cash and cash equivalents:
Beginning of period 39,464 63,802 41,402 36,099
--------- -------- -------- --------
End of period $63,802 $41,402 $36,099 $60,696
========= ======== ======== ========
</TABLE>
<TABLE>
MT INVESTORS INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS-(Continued)
(in thousands)
<CAPTION>
Predecessor Successor
------------------------------------------------ -----------------
Twelve months Twelve months For the period For the period
ended ended January 1, 1996 October 15, 1996
December 31, December 31, to October 14, to December 31,
1994 1995 1996 1996
------------- ------------- --------------- -----------------
<S> <C> <C> <C> <C>
Supplemental disclosures of cash flow
information:
Cash paid during the year for:
Interest $ 13,225 $ 18,927 $6,524 $17,874
Taxes 9,370 9,970 9,385 2,470
Non-cash financing and investing activities:
Due to Ciba for capital transactions -- 36,418 -- --
</TABLE>
See the accompanying notes to the Audited Consolidated Financial Statements
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS
(in thousands unless otherwise stated)
1. BASIS OF PRESENTATION AND ACQUISITION
MT Investors Inc. ("MT Investors") was incorporated by AEA Investors Inc.
("AEA") in December 1991. It was recapitalized to effect the acquisition of the
Mettler-Toledo Group from Ciba-Geigy AG ("Ciba") and its wholly owned
subsidiary, AG fur Prazisionsinstrumente ("AGP"). Pursuant to the terms of a
stock purchase agreement dated April 2, 1996 between MT Investors, AGP and Ciba,
on October 15, 1996 MT Investors acquired the Mettler-Toledo Group in a
transaction more fully described below. Between the date of formation and
October 15, 1996, MT Investors had no substantive operations.
In the accompanying Audited Consolidated Financial Statements the terms
"Mettler-Toledo" or the "Company" when used in situations pertaining to periods
prior to October 15, 1996 refer to the combined group of businesses sold by Ciba
and when used in situations pertaining to periods subsequent to October 15, 1996
refer to MT Investors Inc. and its consolidated subsidiaries. The combined
historical financial information of the business acquired from Ciba prior to the
acquisition on October 15, 1996 are referred to as "Predecessor" while the
consolidated financial information of the Company subsequent to the date of
acquisition are referred to as "Successor."
The accompanying Audited Consolidated Financial Statements have been
prepared in accordance with United Sates generally accepted accounting
principles.
MT Investors acquired the Company on October 15, 1996 from a subsidiary of
Ciba for cash consideration of SFr. 504,996 (approximately $402,000) including
dividends of SFr. 109,406 (approximately $87,100) which were paid to Ciba by the
Company in conjunction with the acquisition. In addition, the Company incurred
expenses in connection with the acquisition and related financing of
approximately $29,000, including approximately $5,500 paid to AEA, and paid
approximately $185,000 to settle amounts due to Ciba and affiliates. The Company
has accounted for the acquisition using the purchase method of accounting.
Accordingly, the costs of the acquisition were allocated to the assets acquired
and liabilities assumed based upon their respective fair values. The excess of
the cost of the acquisition over the fair value of the net assets acquired of
approximately $137,500 is being amortized over 32 years. Because of this
purchase price allocation, the accompanying financial statements of Successor
are not directly comparable to those of the Predecessor.
The following unaudited pro forma summary presents the consolidated results
of operations of the Company as if the acquisition had been completed as of the
beginning of each of the periods presented, after giving effect to certain
adjustments, including the depreciation and amortization of the assets acquired
based upon their fair values, increased interest expense from the financing of
the acquisition and income tax effects. The Company allocated a portion of the
purchase price to (i) in-process research and development projects, that have
economic value (see Note 2) and (ii) the revaluation of inventories (see Note
4). These adjustments have not been reflected in the following pro forma summary
due to their unusual and non-recurring nature. This pro forma summary does not
necessarily reflect the results of operations as they would have been if the
acquisition had been completed as of the beginning of such periods and is not
necessarily indicative of the results which may be obtained in the future.
<TABLE>
<CAPTION>
Pro Forma Financial Information
-----------------------------------------------
Predecessor Successor
---------------------------- -----------------
For the period For the period
Year Ended from January 1, from October 15,
December 31, 1996 to October 1996 to December
1995 14, 1996 31, 1996
------------ -------------- -----------------
<S> <C> <C> <C>
Net sales $850,415 662,221 186,912
Net loss (5,396) (3,181) (3,182)
Loss per common share (1) N/A N/A (1.30)
- ------------------------
N/A - Not Applicable
(1) The loss per common share for the Successor has been computed assuming
the common shares issued in the Acquisition were outstanding at the
beginning of the period.
</TABLE>
The foregoing pro forma financial information does not reflect the
anticipated benefits to be derived in the future from the Company's 1996
employee reduction programs.
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Business
Mettler-Toledo is a manufacturer and marketer of weighing instruments for
use in laboratory, industrial and food retailing applications. The Company also
manufacturers and sells certain related laboratory measurement instruments. The
Company's manufacturing facilities are located in Switzerland, the United
States, Germany and China. The Company's principal executive offices are located
in Greifensee, Switzerland.
Principles of Consolidation
The Audited Consolidated Financial Statements include all of the entities
of the Company. All intercompany transactions and balances have been eliminated.
Cash and Cash Equivalents
Cash and cash equivalents include highly liquid investments with original
maturity dates of three months or less.
Inventories
Inventories are valued at the lower of cost or market. Cost, which includes
direct materials, labor and overhead plus indirect overhead, is determined using
the first in, first out (FIFO) or weighted average cost methods and to a lesser
extent the last in, first out (LIFO) method.
Property, Plant and Equipment
Property, plant and equipment are stated at cost less accumulated
depreciation. Depreciation is charged on a straight line basis over the
estimated useful lives of the assets as follows:
Buildings and improvements 15 to 50 years
Machinery and equipment 3 to 12 years
Computer software 3 years
Leasehold improvements Shorter of useful life or lease
term
Beginning January 1, 1996 the Company adopted Financial Accounting
Standards Board's Statement of Financial Accounting Standards No. 121 (SFAS
121), "Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to Be Disposed Of." SFAS 121 requires that long-lived assets and certain
identifiable intangibles to be held and used by an entity be reviewed for
impairment whenever events or changes in circumstances indicate that the
carrying amount of an asset may not be recoverable. In addition, SFAS 121
requires that long-lived assets and certain identifiable intangibles to be
disposed of be reported at the lower of carrying amount or fair value less cost
to sell. Adoption of SFAS 121 had no material effect on the Audited Consolidated
Financial Statements.
Excess of cost over net assets acquired
The excess of purchase price over the fair value of net assets acquired,
is amortized on a straight-line basis over 32 years being the expected period
to be benefited. The Company assesses the recoverability of such amount by
determining whether the amortization of the balance over its remaining life can
be recovered from the undiscounted future operating cash flows of the acquired
operation. The amount of impairment, if any, is measured based on projected
discounted future operating cash flows using a discount rate reflecting the
Company's average cost of funds. The assessment of the recoverability of the
excess of cost over net assets acquired will be impacted if estimated future
operating cash flows are not achieved.
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES-(Continued)
Deferred Financing Costs
Debt financing costs, which were incurred by the Company in connection with
borrowings incurred in connection with the acquisition discussed at Note 1, are
deferred and amortized, over the life of the underlying indebtedness using the
interest method.
Taxation
The Company files its own tax returns in each jurisdiction in which it
operates. Prior to the acquisition discussed in Note 1, in certain jurisdictions
the Company filed its tax returns jointly with other Ciba subsidiaries. The
Company had a tax sharing arrangement with Ciba in these countries to share the
tax burden or benefits. Such arrangement resulted in each company's tax burden
or benefit equating to that which it would have incurred or received if it had
been filing a separate tax return.
Taxes are accounted for under the asset and liability method. Deferred tax
assets and liabilities are recognized for the future tax consequences
attributable to differences between the financial statement carrying amounts of
existing assets and liabilities and their respective tax bases and operating
loss and tax credit carryforwards. Deferred tax assets and liabilities are
measured using enacted tax rates in the respective jurisdictions in which the
Company operates that are expected to apply to taxable income in the years in
which those temporary differences are expected to be recovered or settled. The
effect on deferred income tax assets and liabilities of a change in tax rates is
recognized in income in the period that includes the enactment date.
Generally, deferred taxes are not provided on the unremitted earnings of
subsidiaries outside of the United States because it is expected that these
earnings are permanently reinvested. Such earnings may become taxable upon the
sale or liquidation of these subsidiaries or upon the remittance of dividends.
Deferred taxes are provided in situations where the Company's subsidiaries plan
to make future dividend distributions.
Research and Development
Research and development costs are expensed as incurred. Research and
development costs, including customer engineering (which represents research and
development charged to customers and, accordingly, is included in cost of
sales), amounted to approximately $55,600, $62,400, $45,100 and $11,100 for the
years ended 1994 and 1995 and for the period from January 1, 1996 to October 14,
1996 and for the period from October 15, 1996 to December 31, 1996,
respectively. In connection with the acquisition discussed in Note 1 the Company
allocated, based upon independent valuations, $114,070 of the purchase price to
purchased research and development in process. Such amount was recorded as an
expense in the period from October 15, 1996 to December 31, 1996.
Currency Translation and Transactions
The reporting currency for the Audited Consolidated Financial Statements
of the Company is the United States dollar (USD). The functional currency for
the Company's operations is generally the applicable local currency.
Accordingly, the assets and liabilities of companies whose functional currency
is other than the USD are included in the consolidation by translating the
assets and liabilities into the reporting currency at the exchange rates
applicable at the end of the reporting year. The statements of operations and
cash flows of such non-USD functional currency operations are translated at the
monthly average exchange rates during the year. Translation gains or losses are
accumulated as a separate component of net assets/shareholders' equity.
Currency transaction gains or losses arising from transactions of
Mettler-Toledo companies in currencies other than the functional currency are
included in operations at each reporting period.
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES-(Continued)
Derivative Financial Instruments
The Company has only limited involvement with derivative financial
instruments and does not use them for trading purposes. Derivative financial
instruments in the form of currency forward and option contracts are entered
into by the Company primarily as a hedge against anticipated currency exposures.
Such contracts limit the Company's exposure to both favorable and unfavorable
currency fluctuations. These contracts are adjusted to reflect market values as
of each balance sheet date, with the resulting unrealized gains and losses being
recognized in financial income or expense, as appropriate.
Fair Value of Financial Instruments
The carrying amount of cash and cash equivalents, accounts receivable,
other current assets and current liabilities approximates fair market value
because of the short term maturity of these financial instruments. It is not
practical to determine the fair value of balances with Ciba due to the related
party nature of these financial instruments. See Note 5 and Note 12 for the fair
values of the Company's derivative financial instruments and third party debt,
respectively. Other financial instruments are not significant to the Audited
Consolidated Financial Statements.
Stock Based Compensation
The Company applies Accounting Principles Board Opinion No. 25 "Accounting
for Stock Issued to Employees" and related interpretations in accounting for its
stock option plan.
Earnings per Common Share
Earnings per common share has been computed using the weighted average
number of outstanding common shares during the Successor period. Earnings per
common share for the Predecessor periods have been computed assuming the common
shares issued in the acquisition discussed in Note 1 were outstanding during
each of the periods presented.
In February 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 128, "Earnings per Share." The Company has
yet to determine the effect of this statement on its earnings per share.
Concentration of Credit Risk
The Company's revenue base is widely diversified by geographic region and
by individual customer. The Company's products are utilized in many different
industries, although extensively in the pharmaceutical and chemical industries.
The Company performs ongoing credit evaluations of its customers' financial
condition and, generally, requires no collateral from its customers.
Revenue Recognition
Revenue is recognized when title to a product has transferred or services
have been rendered. Revenues from service contracts are recognized over the
contract period.
Use of Estimates
The preparation of financial statements requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities, as well as disclosure of contingent assets and liabilities at the
date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results may differ from those
estimates.
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
3. DUE FROM CIBA AND AFFILIATES, NET
The amount due from Ciba, net was comprised of the following:
<TABLE>
<CAPTION>
Predecessor Successor
----------- ------------
December 31, December 31,
1995 1996
---- ----
<S> <C> <C>
Cash pool deposits $ 22,239 $ --
Due from AGP, 6.5%, revolving repayment terms 10,833 --
-------- ---------
$ 33,072 $ --
======== =========
</TABLE>
Prior to the acquisition discussed in Note 1, certain Mettler-Toledo
companies participated in an arrangement with Ciba whereby excess cash was
pooled into an account maintained by Ciba. The net deposit with Ciba in
connection with this arrangement bore interest at the short-term money market
rates available to Ciba.
Prior to the acquisition Ciba also performed certain limited
administrative services on behalf of the Company. The cost of such services,
which was not charged to the Company nor included in the Audited
Consolidated Financial Statements, was not significant.
4. INVENTORIES
Inventories consisted of the following:
<TABLE>
<CAPTION>
Predecessor Successor
----------- ------------
December 31, December 31,
1995 1996
---- ----
<S> <C> <C>
Raw materials and parts $ 45,523 $ 41,015
Work-in-progress 38,191 31,534
Finished goods 30,149 29,982
-------- ---------
113,863 102,531
LIFO reserve (2,877) (5)
-------- ---------
$110,986 $102,526
======== =========
</TABLE>
At December 31, 1995 and 1996, 8.8% and 13.2% respectively, of the
Company's inventories (certain U.S. companies only) were valued using the LIFO
method of accounting. There were no material liquidations of LIFO inventories
during the periods presented.
In connection with the acquisition discussed in Note 1, the Company
allocated approximately $32,200 of the purchase price to revalue certain
inventories (principally work-in-process and finished goods) to fair value (net
realizable value). Substantially all of such inventories were sold during the
period from October 15, 1996 to December 31, 1996.
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
5. FINANCIAL INSTRUMENTS WITH OFF-BALANCE SHEET RISKS
The Company may be exposed to credit losses in the event of nonperformance
by the counterparties to its currency forward and option contracts. The Company
has no reason to believe, however, that such counterparties will not be able to
fully satisfy their obligations under these contracts.
At December 31, 1995, the Company had contracts maturing during 1996 to
purchase the equivalent of approximately $23,300 and to sell the equivalent of
approximately $27,900 in various currencies. At December 31, 1996, the Company
had contracts maturing during 1997 to sell the equivalent of approximately
$135,000 in various currencies in exchange for Swiss francs. These contracts
were used to limit its exposure to currency fluctuations on anticipated future
cash flows, primarily for the delivery of United States dollars, German marks,
French francs, British pounds and Japanese yen in exchange for Swiss francs.
At December 31, 1995 and 1996, the fair value of such financial
instruments, which the Company recognized as net unrealized gains (losses), was
approximately $2,400 and $(5,100), respectively.
6. OTHER CURRENT ASSETS
Other current assets consisted of the following:
<TABLE>
<CAPTION>
Predecessor Successor
----------- ------------
December 31, December 31,
1995 1996
---- ----
<S> <C> <C>
Prepaid expenses $ 4,703 $ 5,302
Other (including in 1995 net gains
on derivative financial instruments) 16,766 11,966
-------- ---------
$ 21,469 $ 17,268
======== =========
</TABLE>
7. PROPERTY, PLANT AND EQUIPMENT, NET
Property, plant and equipment, net, consisted of the following:
<TABLE>
<CAPTION>
Predecessor Successor
----------- ------------
December 31, December 31,
1995 1996
---- ----
<S> <C> <C>
Land $ 31,535 $ 63,514
Buildings and leasehold improvements 186,608 120,173
Machinery and equipment 237,457 75,675
Computer software 5,373 3,067
-------- ---------
460,973 262,429
Less accumulated depreciation and amortization (219,955) (7,137)
-------- ---------
$241,018 $255,292
======== =========
</TABLE>
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
8. OTHER ASSETS
Other assets consisted of the following:
<TABLE>
<CAPTION>
Predecessor Successor
----------- ------------
December 31, December 31,
1995 1996
---- ----
<S> <C> <C>
Deferred financing fees, net of accumulated
amortization of $820 in 1996 $ -- $ 22,015
Bank deposits-restricted cash 4,697 5,960
Secured loans 2,911 2,805
Other 4,404 7,194
-------- ---------
$ 12,012 $ 37,974
======== =========
</TABLE>
Bank deposits-restricted cash at December 31, 1995 and 1996 principally
represented deposits collateralizing a letter of credit given by a financial
institution in connection with one of the Company's subsidiaries in the Peoples
Republic of China.
9. BANK AND OTHER LOANS
Bank and other loans consisted of the following:
<TABLE>
<CAPTION>
Predecessor Successor
----------- ------------
December 31, December 31,
1995 1996
---- ----
<S> <C> <C>
Current maturities of long-term debt $ - $ 8,968
Borrowings under revolving credit facility - 51,928
Other short-term borrowings 19,408 19,550
Borrowings under line of credit 10,105 -
-------- ---------
$ 29,513 $ 80,446
======== ========
</TABLE>
The weighted average interest rate at December 31, 1995 on the borrowings
under the line of credit was approximately 8.0%. The weighted average interest
rate at December 31, 1996 on the borrowings under the revolving credit facility
was approximately 4.1%. The Company had available revolving lines of credit and
swingline facilities for short-term financing of approximately $75,000 at
December 31, 1996 (See Note 12).
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
10. ACCRUED AND OTHER LIABILITIES
Accrued and other liabilities consisted of the following:
<TABLE>
<CAPTION>
Predecessor Successor
----------- ------------
December 31, December 31,
1995 1996
---- ----
<S> <C> <C>
Accrued payroll and vacation $ 26,400 $ 26,239
Social benefits and payroll taxes 9,563 9,218
Severance and other cost provisions 1,890 12,783
Interest 4,731 6,858
Losses on derivative financial instruments - 5,137
Other taxes payable 8,190 5,402
Warranty 6,420 6,803
Other liabilities 49,924 42,874
-------- ---------
$107,118 $115,314
======== ========
</TABLE>
Warranties on Mettler-Toledo products are generally for one year. The
Company provides for warranty costs, which have not been significant, based on
historical experience.
11. DEBT PAYABLE TO CIBA AND AFFILIATES
The Company's debt obligations to Ciba and affiliates consisted of the
following:
Short-term borrowings are summarized as follows:
<TABLE>
<CAPTION>
Predecessor Successor
----------- ------------
December 31, December 31,
1995 1996
---- ----
<S> <C> <C>
Unsecured notes payable:
AGP, 4.25%, due February 29,1996 $ 26,517 $ -
Due to Ciba for capital transactions 36,418 -
Other unsecured short-term debt to Ciba, varying
interest rates and maturities 28,197 -
-------- ---------
$ 91,132 $ -
======== ========
</TABLE>
Long-term obligations are summarized as follows:
<TABLE>
<CAPTION>
Predecessor Successor
----------- ------------
December 31, December 31,
1995 1996
---- ----
<S> <C> <C>
Unsecured notes payable to Ciba and affiliates:
AGP, 8.4%, due October 14, 1996 $122,000 $ -
AGP, 6%, due October 14, 1996 20,000 -
Other unsecured long-term debt to Ciba, varying interest
rates and maturities 3,097 -
-------- ---------
$145,097 $ -
======== ========
</TABLE>
Interest expense on debt payable to Ciba and affiliates for the years ended
December 31, 1994 and 1995 and for the period January 1, 1996 to October 14,
1996 was $10,506, $15,693, and $10,955, respectively.
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
12. DEBT PAYABLE TO THIRD PARTIES
Long-term debt payable to third parties consist of the following:
<TABLE>
<CAPTION>
Predecessor Successor
----------- ------------
December 31, December 31,
1995 1996
---- ----
<S> <C> <C>
9.75% Senior Subordinated Notes due October 1, 2006 $ - $135,000
Credit Agreement:
Term A Loans, interest at LIBOR plus 2.5%
(4.38% at December 31, 1996) payable in
quarterly installments beginning March
31, 1997 due December 31, 2002 - 92,730
Term B Loans, interest at LIBOR plus 3.00%
(8.53% at December 31, 1996) payable in
quarterly installments beginning March
31, 1997 due December 31, 2003 - 75,000
Term C(CH) and C(US) Loans, interest at
LIBOR plus 3.25% (8.78% at December 31, 1996)
payable in quarterly installments beginning
March 31, 1997 due December 31, 2004 - 72,000
Revolving credit facility - 51,928
Other 3,621 27,546
3,621 454,204
Less current maturities - 80,446
-------- ---------
$3,621 $373,758
======== ========
</TABLE>
To provide a portion of the financing required for the acquisition and for
working capital and for general corporate purposes thereafter, in October, 1996
Mettler-Toledo Holding Inc., a wholly owned subsidiary of the Company, entered
into a credit agreement with various banks.
Loans under the credit agreement consist of: (i) Term A Loans in an
aggregate principal amount of SFr. 125,000 ($92,730 at December 31, 1996), (ii)
Term B Loans in an aggregate principal amount of $75,000, (iii) Term C(CH) loans
in an aggregate principal amount of $32,000, and (iv) Term C(US) Loans in an
aggregate principal amount of $40,000 (the Term A Loans, the Term B Loans the
Term C(CH) Loans and Term C(US) Loans are referred to collectively as the "term
loans"), and (v) a multi-currency revolving credit facility that may be borrowed
in an aggregate principal amount of $140,000, and includes letter of credit and
swingline subfacilities available to certain subsidiaries (the "revolving
facility" and together with the term loans, the "credit facilities").
Loans under the revolving facility may be repaid and reborrowed and are due
in full on February 18, 1997. The Company is required to pay a facility fee
equal to 0.05% per annum on the amount of the revolving facility and letter of
credit fees on the aggregate face amount of letters of credit under the
revolving facility. At December 31, 1996 the Company had available approximately
$75,000 of additional borrowing capacity.
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
12. DEBT PAYABLE TO THIRD PARTIES-(Continued)
The credit agreement contains covenants that, among other things, limit the
Company's ability to incur liens; merge, consolidate or dispose of assets; make
loans and investments; incur indebtedness; engage in certain transactions with
affiliates; incur certain contingent obligations; pay dividends and other
distributions; prepay the Notes; or make capital expenditures. The credit
agreement also requires the Company to maintain a minimum net worth and a
minimum fixed charge coverage ratio, and to maintain a ratio of total debt to
EBITDA below a specified maximum.
The aggregate maturities of long-term obligations during each of the years
1998 through 2001 are approximately $12,800, $15,600, $19,300 and $23,000,
respectively.
The estimated fair value of the Company's Senior Subordinated Notes at
December 31, 1996 was approximately $142,000. The estimated fair value of the
obligations under the credit agreement approximate fair value due to the
variable rate nature of the obligations. Fair value estimates are made at a
specific point in time, based on relevant market information and information
about the financial instrument. Fair value estimates were based on the amount of
future cash flows discounted using the Company's current borrowing rate for
loans of comparable maturity. These estimates are subjective in nature and
involve uncertainties and matters of significant judgment and, therefore, cannot
be determined with precision. Changes in assumptions could significantly affect
the estimates.
13. SHAREHOLDERS' EQUITY
As of December 31, 1996, the authorized capital stock of the Company
consisted of 2,775,976 shares of Common Stock, $.01 par value of which 2,233,117
shares were designated as Class A Common Stock, 1,000 shares were designated as
Class B Common Stock and 541,859 shares were designated as Class C Common Stock.
As of December 31, 1996, the Company had outstanding 1,899,779 shares of Class A
Common Stock, 1,000 shares of Class B Common Stock and 537,735 shares of Class C
Common Stock. Additionally, 333,117 shares of Class A Common Stock are reserved
for the Company's stock option plan (See Note 14).
Holders of the Company's common stock have no preemptive, subscription or
redemption rights. Except as described below, the Company's three classes of
common stock have identical rights under the Company's Certificate of
Incorporation and By-Laws.
Dividends or distributions in connection with the liquidation, dissolution
or winding up of the affairs of the Company or not paid out of the current and
accumulated earnings and profits shall be paid in the following manner. First,
exclusively to the holders of the shares of Class A Common Stock, ratably to
each such holder, until the sum of all dividends and distributions to each
holder of Class A Common Stock equals $100 for each share of Class A Common
Stock held by such holder. After each holder of shares of Class A Common Stock
shall have received dividends and distributions totaling $100, then exclusively
to the holders of the shares of Class B Common and Class C Common Stock ratably
to each such holder until the sum of all dividends and distributions to each
holder of Class B Common Stock and/or Class C Common Stock equals $100 for each
share of Class B Common Stock and/or Class C Common Stock held by such holder.
After each holder of Class B Common Stock and Class C Common Stock shall have
received such dividends and distributions, then to all holders of Class A Common
Stock, Class B Common Stock and/or Class C Common Stock, ratably to each holder
of such shares.
Class A and C Common Stock shareholders have no voting rights.
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
14. STOCK OPTION PLAN
Effective October 15, 1996, MT Investors adopted a stock option plan to
provide certain key employees and/or directors of the Company additional
incentive to join and/or remain in the service of the Company as well as to
maintain and enhance the long-term performance and profitability of the Company.
The plan reserves 333,117 shares of Class A non-voting common stock of MT
Investors.
Under the terms of the plan, options granted shall be nonqualified and the
exercise price, as determined by the committee, shall not be less than 100% of
the fair market value of the share of such common stock on the date of grant.
Options may not be exercised until the fifth anniversary of the date of grant,
subject to certain acceleration clauses and expire on October 15, 2006.
Stock option activity is shown below (per share average option price
amounts in whole dollars):
<TABLE>
<CAPTION>
Option Price
----------------------
Number Per Share Total
of Shares Average Price
--------- --------- -------
<S> <C> <C> <C>
Granted during the period October 15,
1996, to December 31, 1996 278,988 $100.00 $27,899
Exercised - - -
Forfeited - - -
------- ------- -------
Outstanding at December 31, 1996 278,988 $100.00 $27,899
======= ======= =======
Shares exerciseable at
December 31, 1996 - $ - $ -
======= ======= =======
</TABLE>
As of the date granted, the weighted-average grant-date fair value of the
options was approximately $25.00 per share. Such weighted-average grant-date
fair value was determined using an option pricing model assuming: (i) an
expected option life of seven years, (ii) no dividends are expected to be paid
in the foreseeable future, and (iii) a risk free interest rate of 4%.
The Company applies Accounting Standards Board Opinion No. 25 and related
interpretations in accounting for its plans. Accordingly, no compensation cost
has been recognized for its stock option plan as all options have been issued at
fair market value. The Company's net loss for the period October 15, 1996 to
December 31, 1996 would not have been materially different had compensation cost
been determined consistent with Financial Accounting Standards Board's Statement
of Financial Accounting Standards No. 123 "Accounting for Stock Based
Compensation".
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
15. BENEFIT PLANS
Mettler-Toledo maintains a number of retirement plans for the benefit of
its employees.
Certain companies sponsor defined contribution plans. Benefits are
determined and funded annually based upon the terms of the plans. Contributions
under these plans amounted to $9,042, $9,413, $9,484 and $2,496 in 1994, 1995,
for the period January 1, 1996 to October 14, 1996 and for the period October
15, 1996 to December 31, 1996, respectively.
Certain companies sponsor defined benefit plans. Benefits are also provided
to employees under defined benefit plans primarily based upon years of service
and employees' compensation for certain periods during the last years of
employment.
The following table sets forth the funded status and amounts
recognized in the Audited Consolidated Financial Statements for the
Company's principal defined benefit plans at December 31, 1995 and 1996:
<TABLE>
<CAPTION>
Predecessor Successor
-------------------------------- -----------------------------------
December 31, December 31,
1995 1996
-------------------------------- -----------------------------------
Assets exceed Accumulated Assets exceed Accumulated
accumulated benefits accumulated benefits
benefits exceed assets benefits exceed assets
-------------- ------------- ------------- --------------
<S> <C> <C> <C> <C>
Actuarial present value of accumulated
benefit obligations:
Vested benefits $ 8,582 $90,698 $10,211 $97,639
Non-vested benefits 90 3,122 16 2,280
------- ------- ------- -------
8,672 93,820 10,227 99,919
------- ------- ------- -------
Projected benefit obligations 10,737 100,820 12,458 108,504
Plan assets at fair value 10,546 40,091 13,336 50,609
------- ------- ------- -------
Projected benefit obligations in excess
of (less than) plan assets 191 60,729 (878) 57,895
Unrecognized prior service (cost)
benefit (183) 252 - -
Unrecognized net (losses) gains (188) (247) 22 1,479
Unrecognized transition obligations - (3,851) - -
------- ------- ------- -------
(Prepaid) accrued pension costs $ (180) $56,883 $ (856) $59,374
======= ======= ======= =======
</TABLE>
The (prepaid) accrued pension costs are recognized in the accompanying
Audited Consolidated Financial Statements as other long-term assets and other
long term liabilities, respectively.
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
15. BENEFIT PLANS-(Continued)
The assumed discount rates and rates of increase in future compensation
level used in calculating the projected benefit obligations vary according to
the economic conditions of the country in which the retirement plans are
situated. The range of rates used for the purposes of the above calculations
are as follows:
1995 1996
---- ----
Discount rates 6.5% to 8.0% 6.0% - 8.5%
Compensation increase rates 2.5% to 6.0% 2.0% - 6.5%
The expected long term rates of return on plan assets ranged between 9.5%
and 11.0% in 1994, 9.5% and 10.0% for 1995, and 7.0% and 10.0% for 1996.
The assumptions used above have a significant effect on the reported
amounts of projected benefit obligations and net periodic pension cost. For
example, increasing the assumed discount rate would have the effect of
decreasing the projected benefit obligation and increasing unrecognized net
gains.
Increasing the assumed compensation increase rate would increase the
projected benefit obligation and decrease unrecognized net gains. Increasing
the expected long-term rate of return on investments would decrease
unrecognized net gains.
Plan assets relate principally to the Company's U.S. companies and consist
of equity investments, obligations of the U.S. Treasury or other governmental
agencies, and other interest-bearing investments.
Net periodic pension cost for all of the plans above includes the
following components:
<TABLE>
<CAPTION>
Predecessor Successor
------------------------------------------------ ----------------
Twelve months Twelve months For the period For the period
ended ended January 1, 1996 October 15, 1996
December 31, December 31, to October 14, to December 31,
1994 1995 1996 1996
------------- ------------- --------------- ----------------
<S> <C> <C> <C> <C>
Service cost (benefits earned
during the period) $ 3,833 $ 3,668 $ 3,850 $ 1,013
Interest cost on projected benefit
obligations 6,426 7,561 6,540 1,721
Actual return on plan assets (2,725) (8,653) (6,079) (1,600)
Net amortization and deferral (170) 5,137 2,485 -
------- ------- ------- -------
Net periodic pension expense $ 7,364 $ 7,713 $ 6,796 $ 1,134
======= ======= ======= =======
</TABLE>
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
15. BENEFIT PLANS-(Continued)
The Company's U.S. operations provide postretirement medical benefits to
their employees. Employee contributions for medical benefits are related to
employee years of service.
The following table sets forth the status of the U.S. postretirement plans
and amounts recognized in the Company's Audited Consolidated Financial
Statements at December 31, 1995 and 1996:
<TABLE>
<CAPTION>
Predecessor Successor
----------- ---------
December 31, December 31,
1995 1996
---- ----
<S> <C> <C>
Accumulated postretirement benefit obligations:
Retired $27,682 $25,894
Fully eligible 1,196 3,033
Other 2,361 3,098
------- -------
31,239 32,025
Unrecognized net loss (6,261) (540)
Unrecognized prior service benefit 692 -
Unrecognized transition obligation (1,389) -
------- -------
Accrued postretirement benefit cost $24,281 $31,485
======= =======
</TABLE>
Net periodic postretirement benefit cost for the above plans includes the
following components:
<TABLE>
<CAPTION>
Predecessor Successor
------------------------------------------------ ----------------
Twelve months Twelve months For the period For the period
ended ended January 1, 1996 October 15, 1996
December 31, December 31, to October 14, to December 31,
1994 1995 1996 1996
------------- ------------- --------------- ----------------
<S> <C> <C> <C> <C>
Service cost (benefits earned
during the period) $ 333 $ 285 $ 431 $114
Interest cost on projected benefit
obligations 2,193 2,371 1,795 472
Net amortization and deferral 82 99 343 -
------- ------- ------- -------
Net periodic postretirement
benefit cost $2,608 $2,755 $2,569 $586
======= ======= ======= =======
</TABLE>
The accumulated postretirement benefit obligation and net periodic
postretirement benefit cost were principally determined using discount rates of
7.3% in 1994 and 1995, and 7.6% in 1996, and health care cost trend rates
ranging from 9.5% to 12.25% in 1994, 1995, and 1996 decreasing to 5.0% in 2005.
The health care cost trend rate assumption has a significant effect on the
accumulated postretirement benefit obligation and net periodic postretirement
benefit cost. For example, in 1996 the effect of a one-percentage-point
increase in the assumed health care cost trend rate would be an increase of
$3,064 on the accumulated postretirement benefit obligations and an increase of
$71 on the aggregate of the service and interest cost components of the net
periodic benefit cost.
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
16. TAXES
The sources of the Company's earnings (loss) before taxes and minority
interest were as follows:
<TABLE>
<CAPTION>
Predecessor
----------------------------------------------------
Twelve months Twelve months For the period
ended ended January 1, 1996
December 31, December 31, to October 14,
1994 1995 1996
-------------- ------------- ---------------
<S> <C> <C> <C>
Switzerland $ 9,855 $11,431 $21,241
Non-Switzerland 12,652 16,373 3,912
------- ------- -------
Earnings before taxes and
minority interest $22,507 $27,804 $25,153
======= ======= =======
</TABLE>
<TABLE>
<CAPTION>
Successor
--------------
For the period
October 15, 1996
to December 31,
1996
--------------
<S> <C>
United States $ (37,293)
Non-United States (122,783)
-----------
Earnings before taxes and
minority interest $ (160,076)
===========
</TABLE>
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
16. TAXES-(Continued)
The provision (benefit) for taxes consists of:
<TABLE>
<CAPTION>
Current Deferred Total
------- -------- -----
<S> <C> <C> <C>
Predecessor:
Year ended December 31, 1994:
Switzerland Federal $ 1,182 $ (32) $ 1,150
Switzerland Canton (State) and Local 1,215 (53) 1,162
Non-Switzerland 5,538 826 6,364
------ ----- ------
$ 7,935 $741 $ 8,676
====== ===== ======
Year ended December 31, 1995:
Switzerland Federal $ 513 $ (92) $ 421
Switzerland Canton (State) and Local 481 (505) (24)
Non-Switzerland 8,339 46 8,385
------ ----- ------
$ 9,333 $ (551) $ 8,782
====== ====== ======
For the period January 1, 1996 to October 14, 1996:
Switzerland Federal $ 2,152 $ (172) $ 1,980
Switzerland Canton (State) and Local 4,305 (344) 3,961
Non-Switzerland 5,532 (1,418) 4,114
------ ----- ------
$ 11,989 $ (1,934) $ 10,055
====== ======== =======
Successor:
For the period October 15, 1996 to December 31, 1996:
United States Federal $ 475 $ (1,556) $ (1,081)
United States State and Local 696 (183) 513
Non-United States 2,454 (2,824) (370)
------ ----- ------
$ 3,625 $ (4,563) $ (938)
====== ======== ========
</TABLE>
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
16. TAXES-(Continued)
The provision for tax expense (benefit) for the years ended
December 31, 1994 and 1995 and for the period January 1, 1996 to October 14,
1996 where the Company operated as a group of businesses owned by Ciba
differed from the amounts computed by applying the Switzerland federal
income tax rate of 9.8% to earnings before taxes and minority interest as a
result of the following:
<TABLE>
<CAPTION>
Predecessor
----------------------------------------------------
Twelve months Twelve months For the period
ended ended January 1, 1996
December 31, December 31, to October 14,
1994 1995 1996
-------------- ------------- ---------------
<S> <C> <C> <C>
Expected tax $2,206 $2,725 $ 2,465
Switzerland Canton (state) and
local income taxes, net of
federal income tax benefit 1,048 (21) 3,573
Non-deductible intangible amortization 249 248 205
Change in valuation allowance (716) 1,603 1,235
Non-Switzerland income taxes in excess of 9.8% 5,591 4,968 2,291
Other, net 298 (741) 286
------ ------ -------
Total provision for taxes $8,676 $8,782 $10,055
====== ====== =======
</TABLE>
The provision for tax expense (benefit) for the period October 15, 1996
to December 31, 1996, subsequent to the reorganization of the Company under MT
Investors Inc. and the acquisition described in Note 1, differed from the
amounts computed by applying the United States federal income tax rate of
35% to the loss before taxes and minority interest.
<TABLE>
<CAPTION>
Successor
----------------
For the period
October 15, 1996
to December 31,
1996
----------------
<S> <C>
Expected tax $(56,027)
United States state and local income taxes, net
of federal income tax benefit 333
Non-deductible purchased research and development 39,925
Non-deductible intangible amortization 336
Change in valuation allowance 4,662
Benefits of Non-United States income taxes less than 35% 10,037
Other, net (204)
---------
Total provision for taxes $ (938)
=========
</TABLE>
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
16. TAXES-(Continued)
The tax effects of temporary differences that give rise to significant
portions of the deferred tax assets and deferred tax liabilities are presented
below:
<TABLE>
<CAPTION>
Predecessor Successor
----------- ------------
December 31, December 31,
1995 1996
----------- ------------
<S> <C> <C>
Deferred tax assets:
Inventory $ 9,706 $ 7,974
Accrued and other liabilities 6,129 7,046
Deferred loss on sale of subsidiaries 7,807 7,907
Accrued postretirement benefit costs 9,227 11,334
Accrued pension costs 6,276 7,709
Net operating loss carryforwards 10,140 15,817
Other 3,000 408
------- -------
Total deferred tax assets 52,285 58,195
Less valuation allowance (21,166) (46,714)
------- -------
Total deferred tax assets less valuation allowance 31,119 11,481
------- -------
Deferred tax liabilities:
Inventory 5,952 5,618
Property, plant and equipment 21,675 31,123
Other 4,200 2,858
------- -------
Total deferred tax liabilities 31,827 39,599
------- -------
Net deferred tax liability $ 708 $28,118
======= =======
</TABLE>
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
16. TAXES-(Continued)
The net change in the total valuation allowance, including changes
resulting from translation of such amounts from the local functional
currencies to the reporting currency and the effect of the acquisition
discussed in Note 1, for the years ended December 31, 1994 and 1995 and for
the period January 1, 1996 to October 14, 1996 and for the period October 15,
1996 to December 31, 1996 was a decrease of $716 for the year ended
December 31, 1994, an increase of $1,603 for the year ended December 31,
1995, an increase of $1,111 for the period January 1, 1996 to October 14, 1996
and an increase of $24,437 for the period October 15, 1996 to December 31,
1996. Of the increase in the valuation allowance of $24,437 during the
period October 15, 1996 to December 31, 1996, $19,882 was recognized as an
increase in goodwill resulting from the acquisition discussed in Note 1.
Should a reduction of such valuation allowance be justified in the future, the
amount of any reduction would accordingly reduce goodwill.
The Company has established valuation allowances primarily for net
operating losses, deferred losses on the sale of subsidiaries as well as
postretirement and pension costs as follows:
<TABLE>
<CAPTION>
Predecessor Successor
----------- ------------
December 31, December 31,
1995 1996
----------- ------------
<S> <C> <C>
Summary of valuation allowances:
Cumulative net operating losses $10,140 $15,817
Deferred losses on sale of subsidiaries 7,807 7,907
Accrued postretirement benefit costs - 10,786
Accrued pension costs - 7,336
Other 3,219 4,868
------- -------
Total valuation allowance $21,166 $46,714
======= =======
</TABLE>
At December 31, 1996, the Company had net operating loss carryforwards in
various countries for income tax purposes of $59,076. Of this amount, $25,131
had no expiration date, relating to subsidiaries in Sweden, Belgium, Australia,
United Kingdom, Austria, Brazil and France. Additionally, there were operating
losses at that date in various other countries in the amount of $33,945 which
expire in varying amounts through 2011.
In assessing the realizability of deferred tax assets, management considers
whether it is more likely than not that some portion or all of the deferred tax
assets will not be realized. The ultimate realization of deferred tax assets is
dependent upon the generation of future taxable income during the periods in
which those temporary differences become deductible. Management considers the
scheduled reversal of deferred tax liabilities, projected future taxable
income, and tax planning strategies in making this assessment.
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
17. OTHER CHARGES (INCOME), NET
Other income in 1994 and 1995 primarily relates to gains from sales of
property, and in 1994 to a gain on sale of a cost basis investment.
Other charges for the period January 1, 1996 to October 14, 1996 of $1,872
represent employee severance of $1,545 and other exit costs of $327 associated
with the closing of its Westerville, Ohio facility. Other charges for the
period October 15, 1996 to December 31, 1996 principally represent employee
severance benefits associated with (i) the Company's general headcount
reduction programs, in Europe and North America, of $4,557 which were announced
during such period, and (ii) the realignment of the analytical and precision
balance business in Switzerland of $6,205 which was internally announced in
December, 1996. In connection with such programs the Company reduced its
workforce by 168 employees in 1996 and intends to further reduce its workforce
by approximately 70 employees.
18. FINANCIAL INCOME, NET
Financial income (expense) consists of the following for the years ended
December 31:
<TABLE>
<CAPTION>
Predecessor Successor
----------------------------------------------- ------------------
Twelve months Twelve months For the period For the period
ended ended ended October 15, 1996
December 31, December 31, October 14, to December 31,
1994 1995 1996 1996
-------------- -------------- ------------- ------------------
<S> <C> <C> <C> <C>
Interest income $4,386 $5,388 $3,424 $ 1,079
Foreign currency transactions, net 478 3,242 (220) (8,324)
------ ------ ------ -------
Total $4,864 $8,630 $3,204 $(7,245)
======= ====== ====== =======
</TABLE>
19. COMMITMENTS AND CONTINGENCIES
Operating Leases
The Company leases certain of its facilities and
equipment under operating leases. The future minimum lease payments under
non-cancelable operating leases are as follows at December 31, 1996:
1997 $11,582
1998 8,521
1999 5,494
2000 2,236
2001 1,298
Thereafter 1,447
-------
Total $30,578
=======
Rent expense for operating leases amounted to $16,493, $13,034 and $3,430
in 1995 and for the period January 1, 1996 to October 14, 1996 and for the
period October 15, 1996 to December 31, 1996, respectively.
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
19. COMMITMENTS AND CONTINGENCIES-(Continued)
Legal
The Company is party to various legal proceedings, including certain
environmental matters, incidental to the normal course of business. Management
does not expect that any of such proceedings will have a material adverse
effect on the Company's financial condition or results of operations.
20. GEOGRAPHIC SEGMENT INFORMATION
The tables below shows the Company's operations by geographic region.
Transfers between geographic regions are priced to reflect consideration of
market conditions and the regulations of the countries in which the
transferring entities are located.
<TABLE>
<CAPTION>
Transfers Earnings
between Total net before
Twelve months ended Net sales by Net sales geographic sales by interest
December 31, 1994 destination by origin areas origin and taxes
- ---------------------- ------------ ------------ ------------ ----------- -----------
<S> <C> <C> <C> <C> <C>
Switzerland (1) $ 31,992 $ 89,495 $ 133,583 $ 223,078 $ 10,516
Germany 126,527 133,772 37,056 170,828 10,034
Other Europe 215,230 192,557 776 193,333 1,665
----------- ----------- ----------- ---------- ----------
Total Europe 373,749 415,824 171,415 587,239 22,215
United States 269,034 300,244 29,877 330,121 10,111
Other Americas 56,628 33,204 64 33,268 939
----------- ----------- ----------- ---------- ----------
Total Americas 325,662 333,448 29,941 363,389 11,050
Asia and other 69,725 19,864 75 19,939 238
Eliminations - - (201,431) (201,431) (2,553)
----------- ----------- ----------- ---------- ----------
Totals $ 769,136 $ 739,136 $ - $ 769,136 $ 30,950
========== =========== =========== ========== ==========
</TABLE>
<TABLE>
<CAPTION>
Transfers Earnings
between Total net before
Twelve months ended Net sales by Net sales geographic sales by interest
December 31, 1995 destination by origin areas origin and taxes Total assets
- ---------------------- ------------ ------------ ------------ ----------- ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
Switzerland (1) $ 41,820 $ 102,712 $ 159,453 $ 262,165 $ 6,316 $ 593,955
Germany 151,974 158,393 47,379 205,772 14,799 196,460
Other Europe 247,802 228,939 799 229,738 2,080 123,431
----------- ----------- ----------- ---------- ---------- ---------
Total Europe 441,596 490,044 207,631 697,675 23,195 913,846
United States 263,945 298,053 29,578 327,631 7,363 257,956
Other Americas 52,966 32,732 131 32,863 950 14,474
---------- ---------- ----------- ----------- ---------- ---------
Total Americas 316,911 330,785 29,709 360,494 8,313 272,430
Asia and other 91,908 29,586 97 29,683 2,331 31,777
Eliminations - - (237,437) (237,437) 3,554 (493,959)
---------- ---------- ----------- ----------- ---------- ---------
Totals $ 850,415 $ 850,415 $ - $ 850,415 $ 37,393 $ 724,094
========== ========= ========== ========== ========== =========
</TABLE>
MT INVESTORS INC.
NOTES TO THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
20. GEOGRAPHIC SEGMENT INFORMATION-(Continued)
<TABLE>
<CAPTION>
Transfers Earnings
For the period Net sales between Total net before
January 1, 1996 to by Net sales by geographic sales by interest and
October 14, 1996 destination origin areas origin taxes
- ---------------------- ------------ ------------ ------------ ----------- ------------
<S> <C> <C> <C> <C> <C>
Switzerland (1) $ 32,282 $ 74,303 $ 126,423 $ 200,726 $ 17,229
Germany 104,961 114,015 35,583 149,598 9,631
Other Europe 186,823 171,061 840 171,901 1,928
------------ ------------ ------------ ----------- -----------
Total Europe 324,066 359,379 162,846 522,225 28,858
United States 217,636 246,180 22,753 268,933 8,508
Other Americas 47,473 25,925 3 25,928 618
------------ ------------ ------------ ----------- -----------
Total Americas 265,109 272,105 22,756 294,861 9,126
Asia and other 73,046 30,737 265 31,002 1,241
Eliminations - - (185,867) (185,867) (3,408)
------------ ------------ ------------ ----------- -----------
Totals $ 662,221 $ 662,221 $ - $ 662,221 $ 35,817
============ ============ ============ ============ ===========
</TABLE>
<TABLE>
<CAPTION>
Transfers Earnings
For the period Net sales between Total net before
October 15, 1996 to by Net sales by geographic sales by interest and
December 31, 1996 destination origin areas origin taxes(2) Total assets
- ---------------------- ------------ ------------- ------------ ----------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Switzerland (1) $ 8,415 $ 15,892 $ 39,570 $ 55,462 $ (99,233) $ 432,387
Germany 29,688 29,117 10,965 40,082 (5,209) 170,845
Other Europe 58,598 59,688 485 60,173 (4,971) 126,063
------------ ------------ ------------ ----------- ----------- ------------
Total Europe 96,701 104,697 51,020 155,717 (109,413) 729,295
United States 56,405 64,109 6,731 70,840 (32,519) 477,762
Other Americas 13,436 7,371 3 7,374 (753) 17,730
------------ ------------ ------------ ----------- ----------- ------------
Total Americas 69,841 71,480 6,734 78,214 (33,327) 495,492
Asia and other 20,370 10,735 28 10,763 (1,919) 48,245
Eliminations - - (57,782) (57,782) 511 (501,144)
------------ ------------ ------------ ----------- ----------- ------------
Totals $ 186,912 $ 186,912 $ - $ 186,912 $(144,093) $ 771,888
============ ============ ============ =========== =========== ============
- --------------------------
(1) Includes Corporate.
(2) The effect of non-recurring acquisition charges arising from in-process research and
development projects ($114.1 million) and the revaluation of inventories to fair value
($32.2 million) by region are as follows
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
Home $108,100
Americas 36,000
Asia/Rest of World 2,200
</TABLE>
MT INVESTORS INC.
INTERIM CONSOLIDATED BALANCE SHEETS
December 31, 1996 and March 31, 1997
(in thousands, except per share data)
<TABLE>
<CAPTION>
Successor Successor
------------ ----------
December 31, March 31,
1996 1997
---- ----
(unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 60,696 $ 40,599
Trade accounts receivable, net 151,161 152,196
Inventories 102,526 104,474
Deferred taxes 7,565 8,026
Other current assets 17,268 17,868
------- -------
Total current assets 339,216 323,163
Property, plant and equipment, net 255,292 238,219
Excess of cost over net assets acquired, net 135,490 132,400
Long-term deferred taxes 3,916 3,720
Other assets 37,974 31,389
------- -------
Total assets $771,888 $728,891
======== ========
</TABLE>
<TABLE>
MT INVESTORS INC.
INTERIM CONSOLIDATED BALANCE SHEETS - (continued)
December 31, 1996 and March 31, 1997
(in thousands, except per share data)
<CAPTION>
Successor Successor
------------ ---------
December 31, March 31,
1996 1997
---- ----
(unaudited)
<S> <C> <C>
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Trade accounts payable $ 32,797 $ 29,888
Accrued and other liabilities 115,314 126,949
Taxes payable 17,580 16,363
Deferred taxes 9,132 8,630
Bank and other loans 80,446 54,754
------- -------
Total current liabilities 255,269 236,584
Long-term debt due to third parties 373,758 365,369
Long-term deferred taxes 30,467 28,273
Other long-term liabilities 96,810 92,177
------- -------
Total liabilities 756,304 722,403
Minority interest 3,158 3,506
Shareholders' equity:
Common stock, $0.01 par value per share:
Class A non-voting, authorized
2,233,117 shares; issued 1,899,779 at December 31, 1996 and
March 31, 1997 19 19
Class B voting, authorized 1,000 shares; issued
1,000 at December 31, 1996 and March 31, 1997 1 1
Class C non-voting, authorized
541,859 shares; issued 537,735 at December 31, 1996 and
March 31, 1997 5 5
Additional paid-in capital 188,084 188,084
Accumulated deficit (159,046) (160,168)
Currency translation adjustment (16,637) (24,959)
------- -------
Total shareholders' equity 12,426 2,982
------- -------
Total liabilities and shareholders' equity $771,888 $728,891
======== ========
</TABLE>
See the accompanying notes to the interim consolidated financial statements
<TABLE>
MT INVESTORS INC.
INTERIM CONSOLIDATED STATEMENTS OF OPERATIONS
Three months ended March 31, 1996 and 1997
(in thousands, except per share data)
<CAPTION>
Predecessor Successor
----------- ---------
March 31, March 31,
1996 1997
---- ----
(unaudited) (unaudited)
<S> <C> <C>
Net sales $201,373 $197,402
Cost of sales 120,979 114,120
-------- --------
Gross profit 80,394 83,282
Research and development 12,452 10,832
Selling, general and administrative 61,479 60,193
Amortization 671 1,157
Other charges, net - 11
-------- --------
Earnings before interest
and taxes 5,792 11,089
Interest expense 4,537 9,446
Financial expense (income), net (396) 3,743
-------- --------
Earnings (loss) before taxes and
minority interest 1,651 (2,100)
Provision for taxes 648 (1,087)
Minority interest 74 109
-------- --------
Net earnings (loss) $ 929 $ (1,122)
======== ========
Loss per common share:
Weighted average number
of common shares - 2,438,514
Loss per common share - $(0.46)
======== ========
</TABLE>
See the accompanying notes to the interim consolidated financial statements
<TABLE>
MT INVESTORS INC.
INTERIM CONSOLIDATED STATEMENTS OF CHANGES IN NET ASSETS/SHAREHOLDERS' EQUITY
Three months ended March 31, 1996 and 1997
(in thousands)
<CAPTION>
Predecessor
-------------------------------------------
Three months ended March 31, 1996
-------------------------------------------
Currency
Capital Translation
Employed Adjustment Total
-------- ----------- -----
<S> <C> <C> <C>
Net assets at January 1, 1996 $162,604 $30,650 $193,254
Capital transactions with Ciba and affiliates 1,330 - 1,330
Net earnings 929 - 929
Change in currency translation adjustment - (3,489) (3,489)
-------- -------- --------
Net assets at March 31, 1996 $164,863 $27,161 $192,024
======== ======= ========
</TABLE>
<TABLE>
MT INVESTORS INC.
INTERIM CONSOLIDATED STATEMENTS OF CHANGES IN NET
ASSETS/SHAREHOLDERS' EQUITY - (continued)
Three months ended March 31, 1996 and 1997
(in thousands, except per share data)
<CAPTION>
Successor
--------------------------------------------------------------------------------------------------
Three months ended March 31, 1997
--------------------------------------------------------------------------------------------------
Common Stock
---------------------------------------------------
Class A Class B Class C Additional Currency
----------------- --------------- --------------- Paid-in Accumulated Translation
Shares Amount Shares Amount Shares Amount Capital Deficit Adjustment Total
--------- ------ ------- ------ -------- ------ --------- ----------- ----------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1996 1,899,779 $ 19 1,000 $ 1 537,735 $ 5 $ 188,084 $ (159,046) $ (16,637) $12,426
Net loss - - - - - - - (1,122) - (1,122)
Change in currency
translation adjustment - - - - - - - - (8,322) (8,322)
--------- ----- ----- ---- ------- ----- --------- ---------- ------- ------
Balance at March 31, 1997 1,899,779 $ 19 1,000 $ 1 537,735 $ 5 $ 188,084 $ (160,168) (24,959) $ 2,982
========= ===== ===== ==== ======= ===== ========= ========== ======= =======
</TABLE>
See the accompanying notes to the interim consolidated financial statements
<TABLE>
MT INVESTORS INC.
INTERIM CONSOLIDATED STATEMENTS OF CASH FLOWS
Three months ended March 31, 1996 and 1997
(in thousands)
<CAPTION>
Predecessor Successor
----------- ---------
March 31, March 31,
1996 1997
---- ----
(unaudited) (unaudited)
<S> <C> <C>
Cash flows from operating activities:
Net earnings (loss) $929 $(1,122)
Adjustments to reconcile net
earnings (loss) to net cash
provided by operating activities:
Depreciation 6,559 5,821
Amortization 671 1,157
Net gain on disposal of long-term assets (202) (53)
Deferred taxes (807) (1,446)
Minority interest 74 109
Increase (decrease) in cash resulting from changes in:
Trade accounts receivable, net (3,176) (8,557)
Inventories (684) (7,819)
Other current assets (2,690) (2,405)
Trade accounts payable 588 (1,436)
Accruals and other liabilities, net 9,860 23,832
------ ------
Net cash provided by operating activities 11,122 8,081
------ ------
Cash flows from investing activities:
Proceeds from sale of property,
plant and equipment 179 431
Purchase of property, plant and equipment (4,099) (3,063)
Investments in other long term assets, net (123) (98)
------ ------
Net cash used in investing activities (4,043) (2,730)
------ ------
Cash flows from financing activities:
Borrowings of third party debt 1,643 1,055
Repayments of third party debt - (23,160)
Ciba and affiliates repayments (12,748) --
Capital transactions with Ciba and affiliates (2,865) --
------ ------
Net cash used in financing activities (13,970) (22,105)
------ ------
Effect of exchange rate changes
on cash and cash equivalents (1,524) (3,343)
------ ------
Net decrease in cash and cash equivalents (8,415) (20,097)
Cash and cash equivalents:
Beginning of period 41,402 60,696
------- ------
End of period $32,987 $40,599
======= =======
</TABLE>
See the accompanying notes to the interim consolidated financial statements
MT INVESTORS INC.
NOTES TO THE INTERIM CONSOLIDATED FINANCIAL STATEMENTS
(in thousands of dollars unless otherwise stated)
1. BASIS OF PRESENTATION
The accompanying interim consolidated financial statements have been prepared
in accordance with United States generally accepted accounting principles on a
basis which reflects the interim consolidated financial statements of MT
Investors Inc. ("MT Investors"). MT Investors was incorporated by AEA Investors
Inc. ("AEA") in December 1991. It was recapitalized to effect the acquisition
(the "Acquisition") of the Mettler-Toledo Group from Ciba-Geigy AG ("Ciba") and
its wholly owned subsidiary, AG fur Prazisionsinstrumente ("AGP"). Pursuant to
the terms of a stock purchase agreement dated April 2, 1996 between MT
Investors, AGP and Ciba, on October 15, 1996 MT Investors acquired the
Mettler-Toledo Group in a business combination accounted for as a purchase.
Between the date of formation and October 15, 1996, MT Investors had no
substantive operations.
In the accompanying interim consolidated financial statements the terms
"Mettler-Toledo" or the "Company" when used in situations pertaining to periods
prior to October 15, 1996 refer to the combined group of businesses sold by
Ciba and when used in situations pertaining to periods subsequent to October
15, 1996 refer to MT Investors and its consolidated subsidiaries. The combined
historical financial information of the business acquired from Ciba prior to
the Acquisition on October 15, 1996 are referred to as "Predecessor" while the
consolidated financial information of the Company subsequent to the date of the
Acquisition are referred to as "Successor". Because of purchase price
accounting for the Acquisition and the additional interest expense from debt
incurred to finance the Acquisition, the accompanying interim financial
statements of the Successor are not directly comparable to those of the
Predecessor.
The accompanying interim consolidated financial statements of the Company have
been prepared without audit, pursuant to the rules and regulations of the
Securities and Exchange Commission. Certain information and footnote
disclosures normally included in financial statements prepared in accordance
with generally accepted accounting principles have been condensed or omitted
pursuant to such rules and regulations. The accompanying interim consolidated
financial statements as of March 31, 1997 and for the three months ended March
31, 1996 and 1997 should be read in conjunction with the December 31, 1995 and
1996 Audited Consolidated Financial Statements and the notes thereto included
elsewhere is this Registration statement.
The accompanying unaudited interim consolidated financial statements reflect
all adjustments (consisting of only normal recurring adjustments) which, in the
opinion of management, are necessary for a fair statement of the results of the
interim periods presented. Operating results for the three months ended March
31, 1997 are not necessarily indicative of the results to be expected for the
full year ending December 31, 1997.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Business
Mettler-Toledo is a manufacturer and marketer of weighing instruments for use
in laboratory, industrial and food retailing applications. The Company also
manufactures and sells certain related laboratory measurement instruments. The
Company manufacturing facilities are located in Switzerland, the United States,
Germany and China.
Inventories
Inventories are valued at the lower of cost or market. Cost, which includes
direct materials, labor and overhead plus indirect overhead, is determined
using either the first in, first out (FIFO) or weighted average cost method.
Two companies in the U.S. use the last in, first out (LIFO) cost method.
MT INVESTORS INC.
NOTES TO THE INTERIM CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
(in thousands of dollars unless otherwise stated)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES - (Continued)
Inventories - (Continued)
Inventories consisted of the following at December 31, 1996 and March 31, 1997:
<TABLE>
<CAPTION>
December 31, March 31,
1996 1997
------------- ----------
<S> <C> <C>
Raw materials and parts $41,015 $38,795
Work in progress 31,534 33,263
Finished goods 29,982 32,433
------------- --------
102,531 104,491
LIFO reserve (5) (17)
------------- -----------
$102,526 $104,474
============= ===========
</TABLE>
3. SUBSEQUENT EVENT
On May 30, 1997, the Company acquired Safeline Limited ("Safeline") for
approximately $100 million, subject to future adjustment, plus up to an
additional $10 million for a contingent earnout payment. Safeline, based
in Manchester, U.K., is the world's leading supplier of metal detection
systems. The acquisition was financial by amounts provided under the
Amended and Restated Credit Agreement and approximately $20 million in
loan notes retained by the sellers.
Schedule I
Schedule I - Condensed Financial Information of Registrant
<TABLE>
MT INVESTORS INC.
BALANCE SHEET
(in thousands, except per share data)
<CAPTION>
December 31,
1996
----
ASSETS
<S> <C>
Current assets:
Cash and cash equivalents $ 1
----------
Total current assets 1
Investment in Mettler-Toledo Holding Inc. 29,062
----------
Total assets $ 29,063
==========
</TABLE>
<TABLE>
LIABILITIES AND SHAREHOLDERS' EQUITY
<CAPTION>
<S> <C>
Shareholders' equity:
Common stock, $0.01 par value per share:
Class A non-voting, authorized
2,233,117 shares; issued 1,899,779 $ 19
Class B voting, authorized 1,000 shares; issued
1,000 1
Class C non-voting, authorized
541,859 shares; issued 537,735 5
Additional paid-in capital 188,084
Accumulated deficit (159,046)
----------
Total shareholders' equity 29,063
----------
Total liabilities and shareholders' equity $ 29,063
==========
</TABLE>
See the accompanying notes to the financial statements
Schedule I
<TABLE>
MT INVESTORS INC.
STATEMENT OF OPERATIONS
(in thousands, except per share data)
<CAPTION>
For the period
October 15, 1996
to December 31,
1996
----
<S> <C>
Equity in loss of Mettler-Toledo Holding Inc. $ (159,046)
--------------
Net loss $ (159,046)
==============
Loss per common share:
Weighted average number
of common shares 499,165
Loss per common share $ (318.62)
==============
</TABLE>
See the accompanying notes to the financial statements
Schedule I
<TABLE>
MT INVESTORS INC.
STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
(in thousands, except per share data)
<CAPTION>
For the period from October 15, 1996 to December 31, 1996
-------------------------------------------------------------------------------------------------
Common Stock
------------------------------------------------------
Class A Class B Class C Additional
------------------ ----------------- --------------- Paid-in Accumulated
Shares Amount Shares Amount Shares Amount Capital Deficit Total
--------- -------- ------- --------- ------- ------- ---------- ----------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at October 15, 1996 -- $ -- 1,000 $ 1 -- $ -- $ -- $ -- $ 1
New Issuance of shares 1,899,779 19 -- -- 537,735 5 188,084 -- 188,108
Net loss -- -- -- -- -- -- -- (159,046) (159,046)
--------- ------- ------ ------ ------- ------ -------- ----------- ---------
Balance at December 31, 1996 1,899,779 $ 19 1,000 $ 1 537,735 $ 5 $188,084 $ (159,046) $ 29,063
========= ===== ===== ====== ======= ====== ======== =========== =========
</TABLE>
See the accompanying notes to the financial statements
Schedule I
<TABLE>
MT INVESTORS INC.
STATEMENT OF CASH FLOWS
(in thousands)
<CAPTION>
For the period
October 15, 1996
to December 31,
1996
----------------
<S> <C>
Cash flows from operating activities:
Net loss $ (159,046)
Adjustments to reconcile net
loss to net cash provided
by operating activities:
Equity in loss of Mettler-Toledo Holding Inc. 159,046
--------------
Net cash provided by operating activities -
--------------
Cash flows from investing activities:
Investments in Mettler-Toledo Holding Inc. (188,108)
--------------
Net cash used in investing activities (188,108)
--------------
Cash flows from financing activities:
Proceeds from issuance of common stock 188,108
--------------
Net cash provided by financing activities 188,108
--------------
Net change in cash and cash equivalents -
Cash and cash equivalents:
Beginning of period 1
--------------
End of period $ 1
==============
</TABLE>
See the accompanying notes to the financial statements
MT INVESTORS INC.
NOTES TO THE FINANCIAL STATEMENTS
(in thousands unless otherwise stated)
1. BASIS OF PRESENTATION AND ACQUISITION
MT Investors Inc. ("MT Investors") was incorporated by AEA Investors Inc.
("AEA") in December 1991. It was recapitalized to effect the acquisition of the
Mettler-Toledo Group from Ciba-Geigy AG ("Ciba") and its wholly owned
subsidiary, AG fur Prazisionsinstrumente ("AGP"). Pursuant to the terms of a
stock purchase agreement dated April 2, 1996 between MT Investors, AGP and
Ciba, on October 15, 1996 MT Investors acquired the Mettler-Toledo Group in a
transaction accounted for as a purchase. Between the date of formation and
October 15, 1996, MT Investors has no substantive operations.
The accompanying financial statements have been prepared in accordance
with United Sates generally accepted accounting principles.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Cash and Cash Equivalents
Cash and cash equivalents include highly liquid
investments with original maturity dates of three months or less.
Investment
The Company accounts for its investment in Mettler-Toledo
Holding Inc. under the equity method of accounting.
Stock Based Compensation
The Company applies Accounting Principles Board Opinion No. 25
"Accounting for Stock Issued to Employees" and related interpretations in
accounting for its stock option plan.
Earnings per Common Share
Earnings per common share has been computed using the weighted average
number of outstanding common shares during the period.
In February 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 128, "Earnings per Share." The
Company has yet to determine the effect of this statement on its earnings per
share.
Use of Estimates
The preparation of financial statements requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities, as well as disclosure of contingent assets and liabilities at the
date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results may differ from those
estimates.
MT INVESTORS INC.
NOTES TO THE FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
3. SHAREHOLDERS' EQUITY
The authorized capital stock of the Company consists of 2,775,976 shares
of Common Stock, $.01 par value of which 2,233,117 shares are designated as
Class A Common Stock, 1,000 shares are designated Class B Common Stock and
541,859 shares are designated Class C Common Stock. As of December 31, 1996,
the Company had outstanding 1,899,779 shares of Class A Common Stock, 1,000
shares of Class B Common Stock and 537,735 shares of Class C Common Stock.
Additionally, 333,117 shares of Class A Common Stock are reserved for the
Company's stock option plan (See Note 4).
Holders of the Company's common stock have no preemptive, subscription or
redemption rights. Except as described below, the Company's three classes of
common stock have identical rights under the Company's Certificate of
Incorporation and By-Laws.
Dividends or distributions in connection with the liquidation, dissolution
or winding up of the affairs of the Company or not paid out of the current and
accumulated earnings and profits shall be paid in the following manner. First,
exclusively to the holders of the shares of Class A Common Stock, ratably to
each such holder, until the sum of all dividends and distributions to each
holder of Class A Common Stock equals $100 for each share of Class A Common
Stock held by such holder. After each holder of shares of Class A Common Stock
shall have received dividends and distributions totaling $100, then exclusively
to the holders of the shares of Class B Common and Class C Common Stock ratably
to each such holder until the sum of all dividends and distributions to each
holder of Class B Common Stock and/or Class C Common Stock equals $100 for each
share of Class B Common Stock and/or Class C Common Stock held by such holder.
After each holder of Class B Common Stock and Class C Common Stock shall have
received such dividends and distributions, then to all holders of Class A
Common Stock, Class B Common Stock and/or Class C Common Stock, ratably to each
holder of such shares.
Class A and C Common Stock shareholders have no voting rights.
4. STOCK OPTION PLAN
Effective October 15, 1996, MT Investors adopted a stock option plan to
provide certain key employees and/or directors of the Company additional
incentive to join and/or remain in the service of the Company as well as to
maintain and enhance the long-term performance and profitability of the
Company. The plan reserves 333,117 shares of Class A non-voting common stock of
MT Investors.
Under the terms of the plan, options granted shall be nonqualified and the
exercise price, as determined by the committee, shall not be less than 100% of
the fair market value of the share of such common stock on the date of grant.
Options may not be exercised until the fifth anniversary of the date of grant,
subject to certain acceleration clauses.
MT INVESTORS INC.
NOTES TO THE FINANCIAL STATEMENTS-(Continued)
(in thousands unless otherwise stated)
4. STOCK OPTION PLAN-(Continued)
Stock option activity is shown below (per share average option price
amounts in whole dollars):
<TABLE>
<CAPTION>
Option Price
------------------
Number Per Share Total
of Shares Average Price
--------- --------- -----
<S> <C> <C> <C>
Granted during the period October 15,
1996 to December 31, 1996 278,988 $100.00 $27,899
Exercised - - -
Forfeited - - -
Outstanding at December 31, 1996 278,988 $100.00 $27,899
======== ======= =======
Shares exerciseable at
December 31, 1996 - $ - $ -
======== ======= =======
</TABLE>
The Company applies Accounting Standards Board Opinion No. 25 and related
interpretations in accounting for its plans. Accordingly, no compensation cost
has been recognized for its stock option plan as all options have been issued
at fair market value. The Company's net loss for the period October 15, 1996 to
December 31, 1996 would not have been materially different had compensation
cost been determined consistent with Financial Accounting Standards Board's
Statement of Financial Accounting Standards No. 123 "Accounting for Stock Based
Compensation".
Schedule II
Schedule II- Valuation and Qualifying Accounts
<TABLE>
<CAPTION>
- --------------------------- ------------------ ----------------------------- ------------- ------------
Column A Column B Column C Column D Column E
- --------------------------- ------------------ ----------------------------- ------------- ------------
Additions
-----------------------------
(1) (2)
Balance at Charged Charged to
the beginning to costs other accounts Balance at
and Deductions end of
Description of period expenses describe describe period
- --------------------------- ------------------ ------------- ---------------- ------------ ------------
<S> <C> <C> <C> <C> <C>
Accounts Receivable-
allowance for
doubtful
accounts:
For the period
October 15, 1996
to December 31, $9,429 $97 - $1,138 $8,388
1996
For the period
January 1, 1996
to October 14,
1996 9,292 370 - 233 9,429
Year ended
December 31,
1995 7,411 3,287 - 1,406 9,292
1994 5,926 2,342 - 857 7,411
- --------------------------- ------------- ------------------ -------------------- -------- ----------
</TABLE>
Note A
Represents excess of uncollectable balances written off over recoveries
of accounts previously written off. Additionally, amounts are net of foreign
currency translation effect of $(462), $(409), $(375) and $(159) for the years
ended 1994 and 1995 and for the period from January 1, 1996 to October 14, 1996
and for the period from October 15, 1996 to December 31, 1996, respectively.
=================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 15, 1996
among
METTLER-TOLEDO HOLDING INC.,
as Guarantor,
METTLER-TOLEDO, INC.
(survivor of the merger of MT Acquisition Corp.
and Mettler-Toledo, Inc.)
and
METTLER-TOLEDO HOLDING AG,
as Borrowers,
SAFELINE HOLDING COMPANY,
as UK Borrower,
METTLER-TOLEDO INC.,
as Canadian Borrower,
THE SUBSIDIARY SWING LINE BORROWERS NAMED HEREIN,
MERRILL LYNCH & CO.,
as Arranger and Documentation Agent,
THE BANK OF NOVA SCOTIA,
as Administrative Agent,
THE BANK OF NOVA SCOTIA,
as Canadian Agent,
CREDIT SUISSE FIRST BOSTON
and LEHMAN COMMERCIAL PAPER INC.,
as Co-Agents,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
AMENDED AND RESTATED AS OF MAY 29, 1997
=================================================================
TABLE OF CONTENTS
-----------------
Section Page
- ------- ----
ARTICLE 1. DEFINITIONS, ETC. 2
1.1. Certain Defined Terms. 2
1.2. Other Interpretive Provisions. 37
1.3. Accounting Principles. 38
1.4. Currency Equivalents Generally. 38
1.5. Principle of Deemed Reinvestment. 38
1.6. Effect on Original Credit Agreement and
Other Loan
Documents 46
1.7. Payments on Amendment and Restatement
Date; Assignments on Amendment and
Restatement Date; etc. 46
1.8. Certain Transactions Exempted. 48
1.9. Repayment of Safeline Funds. 48
ARTICLE II THE CREDITS 48
2.1. Amounts and Terms of Commitments and
Loans. 49
2.2. Notes. 52
2.3. Procedure for Committed Borrowing (Other
than Canadian Borrowings. 52
2.3A Procedure for Canadian Borrowings. 54
2.4. Conversion and Continuation Elections for
Committed Borrowings (Other Than Canadian
Borrowings). 54
2.4A Conversion and Continuation Elections for
Canadian Borrowings. 56
2.5. Utilization of Commitments in Offshore
Currencies. 57
2.6. Reduction or Termination of Commitments. 61
2.7. Prepayments. 62
2.8. Currency Exchange Fluctuations. 66
2.9. Repayment. 67
2.10. Interest. 69
2.11. Fees. 71
2.12. Computation of Fees, Interest and Dollar
Equivalent Amount. 71
2.13. Payments by Each Applicable Borrower. 72
2.14. Payments by the Lenders to the Applicable
Agent. 73
2.15. Adjustments. 74
2.16. Swing Line Commitment. 74
2.17. Borrowing Procedures for Swing Line Loans. 75
2.18. Refunding of Swing Line Loans. 76
2.19. Participations in Swing Line Loans. 77
2.20. Swing Line Participation Obligations
Unconditional. 78
2.21. Conditions to Swing Line Loans. 79
2.22. Substitution of Lenders in Certain
Circumstances. 79
2.23. Qualified Foreign Lender Notes. 79
ARTICLE III. THE LETTERS OF CREDIT 80
3.1. The Letter of Credit Subfacility. 80
3.2. Issuance, Amendment and Renewal of Letters
of Credit. 82
3.3. Risk Participations, Drawings and
Reimbursements. 85
3.4. Repayment of Participations. 87
3.5. Role of the L/C Lender. 88
3.6. Obligations Absolute. 89
3.7. Cash Collateral Pledge. 89
3.8. Letter of Credit Fees. 89
3.9. Uniform Customs and Practice. 90
3.10. Letters of Credit for the Account of
Subsidiaries. 91
ARTICLE IV. NET PAYMENTS, YIELD PROTECTION AND
ILLEGALITY 91
4.1. Net Payments. 91
4.2. Illegality. 116
4.3. Increased Costs and Reduction of Return. 117
4.4. Funding Losses. 118
4.5. Inability to Determine Rates. 119
4.6. Reserves on LIBOR Rate Loans; MLA Costs. 121
4.7. Certificates of Lenders. 122
4.8. Substitution of Lenders. 122
4.9. Right of Lenders to Fund Through Branches
and Affiliates. 122
ARTICLE V. CONDITIONS PRECEDENT 123
5.1. Conditions of Initial Loans. 123
(a) Credit Agreement; Notes. 123
(b) Transactions. 123
(c) Transaction Documents. 124
(d) Opinions of Counsel. 124
(e) Corporate Documents. 125
(f) Adverse Change, etc. 125
(g) Litigation. 125
(h) Approvals. 126
(i) Security Documents. 126
(j) Conditions Relating to Mortgaged Real Property
and Real Property. 127
(k) Solvency Opinion; Environmental Analyses;
Evidence of Insurance; Financial
Statements. 129
(l) Pro Forma Balance Sheet. 130
(m) Payment of Fees. 130
(n) Other Matters. 131
(o) Certificate. 131
(p) Debt to Be Repaid. 131
(q) Date of Closing. 131
5.1A Conditions of Loans to Effect the Safeline
Acquisition. 131
(a) Credit Agreement; Notes. 132
(b) Safeline Acquisitions Transactions. 132
(c) Safeline Acquisition Documents. 132
(d) Opinions of Counsel. 133
(e) Corporate Documents. 133
(f) Adverse Change, etc. 133
(g) Litigation. 134
(h) Approvals. 134
(i) Security Documents. 134
(j) Environmental Analyses. 135
(k) Pro Forma Balance Sheet. 135
(l) Payment of Fees. 136
(m) Other Matters. 136
(n) Certificate. 136
(o) Debt to Be Repaid. 137
(p) Date of Closing. 137
5.2. Conditions to All Credit Extensions. 137
(a) Notice, Application. 137
(b) Continuation of Representations and
Warranties. 137
(c) No Existing Default; No Legal Bar. 137
5.3. Conditions to Effectiveness of Amendment
and Restatement. 138
(a) Amended and Restated Credit Agreement;
Ratification of Security Documents by Loan
Parties; Notes. 138
(b) Opinions of Counsel. 138
(c) Corporate Documents. 139
(d) Accuracy of Representations and
Warranties. 139
(e) Adverse Change, etc. 139
(f) Litigation. 139
(g) Approvals. 139
(h) Payment Adjustments; Amendment and
Restatement Assignments. 140
(i) Certificate. 140
5.4. Delivery of Documents. 140
ARTICLE VI. REPRESENTATIONS AND WARRANTIES 141
6.1. Corporate Status. 141
6.2. Authority. 142
6.3. No Conflicts; Consents. 142
6.4. Binding Effect. 142
6.5. Litigation. 143
6.6. No Default. 143
6.7. Benefit Plans. 143
6.8. Use of Proceeds; Margin Regulations. 144
6.9. Financial Condition; Financial Statements;
Solvency; etc. 144
6.10. Properties. 146
6.11. Taxes. 146
6.12. Environmental Matters. 147
6.13. Regulated Entities. 149
6.14. Employee and Labor Matters. 150
6.15. Intellectual Property. 150
6.16. Subsidiaries. 151
6.17. Existing Indebtedness. 151
6.18. True and Complete Disclosure. 151
6.19. Security Interests. 152
6.20. Representations and Warranties in Basic
Documents. 153
6.21. M-T Acquisition and Safeline Acquisition. 153
6.22. Broker's Fees. 153
6.23. Senior Subordinated Notes. 154
6.24. Assignment of Rights Under M-T Acquisition
Documents. 154
ARTICLE VII. AFFIRMATIVE COVENANTS 154
7.1. Financial Statements, etc. 154
7.2. Certificates; Other Information. 156
7.3. Notices. 156
7.4. Preservation of Corporate Existence, etc. 158
7.5. Maintenance of Property; Insurance. 158
7.6. Payment of Obligations. 159
7.7. Compliance with Environmental Laws. 159
7.8. Compliance with ERISA. 160
7.9. Inspection of Property and Books and
Records. 160
7.10. End of Fiscal Years; Fiscal Quarters. 161
7.11. Use of Proceeds. 161
7.12. Further Assurances. 162
7.13. Equal Security for Loans and Notes; No
Further Negative Pledges. 162
7.14. Pledge of Additional Collateral. 163
7.15. Security Interests. 164
7.16. Interest Rate Protection. 165
7.17. Currency and Commodity Hedging
Transactions. 165
7.18. Foreign Subsidiaries Security. 166
7.19. Register. 167
7.20. New Subsidiaries. 168
7.21. Assumption by Mettler-Toledo, Inc. 169
7.22. Post-Closing Obligations. 169
7.23. Post-Amendment and Restatement and Post-
Safeline Closing Obligations. 170
ARTICLE VIII. NEGATIVE COVENANTS 170
8.1. Limitation on Liens. 171
8.2. Consolidations, Mergers and Disposition of
Assets. 175
8.3. Leases. 177
8.4. Loans and Investments. 178
8.5. Limitation on Indebtedness. 183
8.6. Transactions with Affiliates. 185
8.7. Use of Proceeds. 186
8.8. Contingent Obligations. 187
8.9. Restrictions on Subsidiaries. 189
8.10. Fixed Charge Coverage Ratio. 189
8.11. Minimum Net Worth. 190
8.12. Debt to EBITDA Ratio. 191
8.13. Restricted Payments. 191
8.14. ERISA. 193
8.15. Change in Business. 193
8.16. Accounting Changes. 193
8.17. Prepayments of Senior Subordinated Notes,
etc. 193
8.18. Amendments to Other Documents. 194
8.19. Capital Expenditures. 194
8.20. Sale and Lease-Backs. 195
8.21. Sale or Discount of Receivables. 195
8.22. Creation of Subsidiaries. 196
8.23. Designated Senior Debt. 197
8.24. Issuance or Disposal of Subsidiary Stock. 197
8.25. Limitation on Other Restrictions on
Amendment of Basic Documents. 197
8.26. Limitation on Swing Line Lenders. 197
ARTICLE IX EVENTS OF DEFAULT 198
9.1. Event of Default. 198
(a) Non-Payment. 198
(b) Representation or Warranty. 198
(c) Specific Defaults. 198
(d) Other Defaults. 198
(e) Cross-Default. 199
(f) Insolvency; Voluntary Proceedings. 199
(g) Involuntary Proceedings. 199
(h) ERISA. 200
(i) Monetary Judgments. 200
(j) Non-Monetary Judgments. 200
(k) Guarantees. 200
(i) Security Documents. 200
(m) Change of Control. 201
(n) Senior Subordinated Notes. 201
(o) Ciba Reimbursement Agreement. 201
(p) Consummation of the M-T Acquisition. 201
(q) Environmental Events. 201
9.2. Remedies. 202
9.3. Rights Not Exclusive. 203
ARTICLE X. THE AGENTS 203
10.1. Appointment and Authorization. 203
10.2. Delegation of Duties. 204
10.3. Exculpatory Provisions. 204
10.4. Reliance by Agents. 205
10.5. Notice of Default. 206
10.6. Credit Decision. 206
10.7. Indemnification. 207
10.8. Agents in Individual Capacity. 208
10.9. Successor Agents. 209
10.10. Holders. 209
10.11. Failure to Act. 209
ARTICLE XI. MISCELLANEOUS 209
11.1. Amendments and Waivers. 210
11.2. Notices. 212
11.3. No Waiver; Cumulative Remedies. 214
11.4. Expenses, Indemnity, etc. 214
11.15. Payments Pro Rata. 217
11.16. Payments Set Aside. 217
11.17. Successors and Assigns. 217
11.18. Assignments and Participations, etc. 217
11.9. Confidentiality. 221
11.10. Set-off. 222
11.11. Notification of Addresses, Lending
Offices, etc. 223
11.12. Counterparts. 223
11.13. Severability; Modification to Conform to
Law. 223
11.14. No Third Parties Benefitted. 224
11.15. Governing Law; Submission to Jurisdiction;
Venue. 224
11.16. Waiver of Jury Trial. 225
11.17. Judgment. 225
11.18 Prior Understandings. 225
11.19. Survival. 226
11.20. CH Foreign Subsidiary Mortgages. 226
ANNEXES
Annex A Agent's Payment Offices for
Offshore Currency Loans
SCHEDULES
Schedule 1.1(a) Ciba Loan Documents
Schedule 1.1(b) Calculation of the MLA Cost
Schedule 1.1(c) Mortgaged Properties
Schedule 1.1(d) M-T Acquisition Documents
Schedule 1.1(e) Non-Guarantor Subsidiaries
Schedule 1.1(f) Safeline Acquisition Documents
Schedule 1.7(a) Payment Adjustments for Paid Lenders
Relating to Amendment and Restatement
Schedule 1.7(b) Payment Adjustments for Paid Existing
Lenders Relating to
Amendment and Restatement
Schedule 1.7(c) Payment Adjustments for Paying Existing
Lenders Relating to
Amendment and Restatement
Schedule 1.7(d) Payment Adjustments for New Lenders
Relating to
Amendment and Restatement
Schedule 1.7(f) Amendment and Restatement Assignments
Schedule 1.8 Certain Exempted Transactions
Schedule 2.1 Commitments and Pro Rata Shares
Schedule 2.1(c) Canadian Lenders and Percentages
Schedule 5.1(p) Debt To Be Repaid
Schedule 5.1A(o) Debt To Be Repaid of Safeline Limited and
Its Subsidiaries
Schedule 5.3(a) Subsidiaries To Execute and Deliver
Ratification Agreement After Amendment and
Restatement Date
Schedule 6.5 Litigation
Schedule 6.12 Environmental Matters
Schedule 6.15 Intellectual Property
Schedule 6.16 Subsidiaries and Minority Interests
Schedule 6.17 Existing Indebtedness
Schedule 6.17A Existing Indebtedness of Safeline Limited
and Its Subsidiaries
Schedule 6.21 Certain Consents
Schedule 6.22 Broker's Fees
Schedule 7.22 Subsidiaries To Enter into Loan Documents
Post-Closing
Schedule 8.1(a) Certain Existing Liens as of the Original
Closing Date
Schedule 8.1(w) Certain Liens on Safeline Limited and Its
Subsidiaries as of the Safeline Closing
Date
Schedule 8.2(i) Certain Asset Sales
Schedule 8.4(j) Investments Made in Connection with the M-
T Acquisition
Schedule 8.4(o) Existing Investments and Investments To Be
Made Under Binding
Agreements
Schedule 8.8 Contingent Obligations
Schedule 8.8A Contingent Obligations of Safeline Limited
and Its Subsidiaries
Schedule 11.2 Addresses for Notices
EXHIBITS
Exhibit A-1 Form of Notice of Canadian Borrowing
Exhibit A-2 Form of Notice of Committed Borrowing
Exhibit B-1 Form of Notice of Conversion/Continuation
Exhibit B-2 Form of Canadian Notice of
Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Security Agreement
Exhibit E-1 Form of CH Borrower Guarantee
Exhibit E-2 Form of Amended and Restated Domestic
Subsidiary Guarantee
Exhibit E-3 [Intentionally Omitted]
Exhibit E-4 Form of Amended and Restated Holding Guarantee
Exhibit E-5 Form of Amended and Restated US Borrower
Guarantee
Exhibit F-1 Form of Opinion of Fried, Frank, Harris,
Shriver & Jacobson
Exhibit F-2 Form of Local Counsel Opinion to the Domestic
Loan Parties
Exhibit F-3 Form of Opinion of Fried, Frank, Harris,
Shriver & Jacobson To Be Delivered on the
Amendment and Restatement Date
Exhibit F-4 Form of Opinion of Fried, Frank, Harris,
Shriver & Jacobson To Be Delivered on the
Safeline Closing Date
Exhibit F-5 Form of Opinion of Counsel to Canadian Borrower
Exhibit F-6 Form of Opinion of Counsel to UK Borrower
Exhibit G Form of Assignment and Acceptance
Exhibit H-1 Form of Tranche A-CHF Term Note
Exhibit H-2 Form of Tranche B Term Note
Exhibit H-3 Form of Tranche A-UK Term Note
Exhibit H-4 Form of Tranche A-US Term Note
Exhibit H-5 Form of Revolving Note
Exhibit H-5A Form of Canadian Revolving Note
Exhibit H-6 Form of Swing Line Note
Exhibit H-7 Form of QFL A-US Note
Exhibit H-8 Form of QFL B Note
Exhibit H-9 Form of QFL A-UK Note
Exhibit I Form of Mortgage
Exhibit J-1 Form of Domestic Subsidiary Securities Pledge
Agreement
Exhibit J-2 [Intentionally Omitted]
Exhibit J-3 Form of Holding Securities Pledge Agreement
Exhibit J-4 Form of US Borrower Securities Pledge Agreement
Exhibit K Form of Interest Rate Certificate
Exhibit L-1 Form of Section 4.1(f)(i) Certificate
Exhibit L-2 Form of Section 4.1(f)(v) Certificate
Exhibit M Form of Assumption Agreement
Exhibit N Form of Intercreditor Agreement
Exhibit O Form of Ratification Agreement
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is entered
into as of October 15, 1996, among METTLER-TOLEDO HOLDING INC., a
Delaware corporation (together with its successors, "Holding");
METTLER-TOLEDO, INC. (the survivor of the merger of MT
Acquisition Corp. (a Delaware corporation) and Mettler-Toledo,
Inc.), a Delaware corporation (together with its successors, "US
Borrower"); METTLER-TOLEDO HOLDING AG, a corporation organized
under the laws of Switzerland and, after giving effect to the M-T
Acquisition, a Wholly-Owned Subsidiary of US Borrower (together
with its successors, "CH Borrower" and, together with US
Borrower; the "Borrowers"); SAFELINE HOLDING COMPANY, an
unlimited liability company organized under the laws of the
United Kingdom, as UK Borrower; METTLER-TOLEDO INC., a Canadian
corporation, as Canadian Borrower; the several SUBSIDIARY SWING
LINE BORROWERS named herein; the several financial institutions
from time to time party to this Agreement (collectively the
"Lenders"; individually each a "Lender"); MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as
documentation agent and arranger (together with its successors,
the "Documentation Agent" or "Arranger"); THE BANK OF NOVA SCOTIA
("Scotiabank"), as Administrative Agent (together with its
successors, the "Administrative Agent"), a Swing Line Lender and
L/C Lender; THE BANK OF NOVA SCOTIA, as Canadian Agent (together
with its successors, the "Canadian Agent"); CREDIT SUISSE FIRST
BOSTON, as a Swing Line Lender and as a co-agent; and LEHMAN
COMMERCIAL PAPER INC., as a co-agent (together with Credit Suisse
First Boston in its capacity as a co-agent and each of their
respective successors, the "Co-Agents"), as provided herein, and
is amended and restated as of May 29, 1997.
WHEREAS, subject to the terms and conditions of this
Agreement, to finance in part the M-T Acquisition, to repay
certain existing Indebtedness of the Borrowers and their
Subsidiaries, to pay fees and expenses in connection with the M-T
Acquisition Transactions and, after the Original Closing Date, to
provide working capital to, and for general corporate purposes
of, US Borrower and the Subsidiaries and to provide for the
making of the Ciba Loan,
(i) the Lenders made the Term Loans (as defined in the
Original Credit Agreement) to the Borrowers on the Original
Closing Date; and
(ii) the Lenders agreed to make available, during the
period from the Original Closing Date until 30 Business Days
prior to the Revolving Loan Maturity Date, (a) to the
Borrowers, a revolving multicurrency credit facility with
letter of credit and swing line subfacilities, and (b) to
the Subsidiary Swing Line Borrowers, the swing line
subfacility and the letter of credit subfacility,
WHEREAS, immediately following or in connection with
the consummation of the M-T Acquisition the rights and
obligations of MT Acquisition Corp. as "US Borrower" under and
pursuant to the Loan Documents were assumed (the "Assumption") by
Mettler-Toledo, Inc. pursuant to the Assumption Agreement,
WHEREAS, the Lenders, MT Acquisition Corp. (which
merged into Mettler-Toledo, Inc.), CH Borrower and the Subsidiary
Swing Line Borrowers originally entered into that certain Credit
Agreement dated as of October 15, 1996 (the "Original Credit
Agreement") prior to the consummation of the M-T Acquisition,
which has been consummated, and are entering into this Amended
and Restated Credit Agreement in order to amend and restate the
Original Credit Agreement to provide for Letters of Credit to be
issued by the Swing Line Lenders for the account of the
Subsidiary Swing Line Borrowers on the terms and conditions
herein set forth, to provide for the extensions of credit to be
made hereunder in connection with the Safeline Acquisition on the
terms and conditions herein set forth, to provide for the
conversion of the term extensions of credit existing as of the
Amendment and Restatement Date into term extensions of credit
under this Agreement as amended and restated, to provide for the
increased Revolving Facility Commitments set forth herein, to
provide for the Revolving Facility Commitments to be available
for UK Borrower (subject to the limitation herein) on the terms
and conditions herein set forth, to provide for a Canadian Dollar
revolving credit facility to be made available to Canadian
Borrower on the terms and conditions herein set forth, and to
make such other amendments thereto as are evidenced hereby, and
WHEREAS, the Borrowers, the Subsidiary Swing Line
Borrowers, the Lenders, the Agents and the Co-Agents intend that
(a) all obligations under the Original Credit Agreement of the
parties shall continue to exist under and be evidenced by this
Agreement and the other Loan Documents, and (b) except as
expressly stated herein or amended hereby, the Original Credit
Agreement and the other Loan Documents are ratified and confirmed
as remaining unmodified and in full force and effect with respect
to all Obligations.
NOW, THEREFORE, in consideration of the mutual
agreements, provisions and covenants contained herein, the
parties agree that the Original Credit Agreement is hereby
amended and restated in its entirety as follows:
ARTICLE 1.
DEFINITIONS, ETC.
-----------------
1.1. Certain Defined Terms. The following terms have
the following meanings:
ABR Loan means a Committed Loan or an L/C Advance that
bears interest based on the Alternate Base Rate. ABR Loans may
only be made in U.S. Dollars.
Acquisition means any transaction or series of related
transactions for the purpose of or resulting, directly or
indirectly, in (a) the acquisition of all or substantially all of
the assets of a Person, or of any business or division of a
Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of
any Person, or otherwise causing any Person to become a
Subsidiary, or (c) a merger or consolidation or any other
combination with another Person.
Additional Collateral - see Section 7.14.
Adjusted Working Capital means the remainder of: (a)
(i) the consolidated current assets of US Borrower and the
Subsidiaries, less (ii) the amount of cash and Cash Equivalents
included in such consolidated current assets; less (b) (i)
consolidated current liabilities of US Borrower and the
Subsidiaries, less (ii) the amount of short-term Indebtedness
(including Revolving Facility Loans and current maturities of
long-term Indebtedness) of US Borrower and the Subsidiaries
included in such consolidated current liabilities.
Adjustment Date - see the definition of Assumed Swing
Line Loan Amount.
Administrative Agent - see the introduction to this
Agreement.
Administrative Agent's Fee Letter - see subsection
2.11(a).
AEA means AEA Investors Inc., a Delaware corporation,
and its successors.
Affiliate means, as to any Person, any other Person
which, directly or indirectly, is in control of, is controlled
by, or is under common control with such Person. A Person shall
be deemed to control another Person if the controlling Person
possesses, directly or indirectly, the power to direct or cause
the direction of the management and policies of such other
Person, whether through the ownership of voting securities or
membership interests, by contract, or otherwise.
Agents means the Documentation Agent, the Canadian
Agent and the Administrative Agent; and Agent means the
Documentation Agent, the Canadian Agent or the Administrative
Agent.
Agent's Payment Office means (i) in respect of payments
by the Borrowers or UK Borrower in U.S. Dollars, The Bank of Nova
Scotia, One Liberty Plaza, 26th Floor, New York, New York 10006
or such other address as the Administrative Agent may from time
to time specify in accordance with Section 11.2, (ii) in the case
of payments by the Borrowers, UK Borrower, or the UK Swing Line
Borrowers in any Offshore Currency, as set forth in Annex A or
such other address as the Administrative Agent may from time to
time specify in accordance with Section 11.2, and (iii) in the
case of payments by Canadian Borrower, the address for payments
set forth on Schedule 11.2 for the Canadian Agent or such other
address as the Canadian Agent may from time to time specify in
accordance with Section 11.2.
Agreed Alternative Currency - see subsection 2.5(e).
Agreement means this Amended and Restated Credit
Agreement, as amended and in effect from time to time.
Aggregate Outstanding Revolving Credit means as to any
Revolving Facility Lender at any time an amount equal to the sum
of (a) the aggregate unpaid principal Dollar Equivalent amount at
such time of all Revolving Loans made by such Revolving Facility
Lender, (b) such Revolving Facility Lender's Pro Rata Share of
the Effective Amount of all outstanding L/C Obligations (other
than Subsidiary L/C Obligations, except those of the UK Swing
Line Borrowers) at such time, and (c) such Revolving Facility
Lender's Pro Rata Share of the aggregate Dollar Equivalent amount
of all outstanding Swing Line Loans (which for all purposes,
other than any Revolving Loan made pursuant to Section 2.18, any
Swing Line Loan made pursuant to Section 2.16 and any Revolving
Loan to be made pursuant to Section 3.3 and except as otherwise
expressly provided herein, shall include such Lender's Pro Rata
Share of the Assumed Swing Line Loan Amount).
Alternate Base Rate means, for any day, with respect to
all ABR Loans, a fluctuating rate of interest per annum (rounded,
if necessary, to the nearest 1/100 of 1%) equal to the higher of:
(a) 0.50% per annum above the latest U.S. Federal Funds Rate; and
(b) the per annum rate of interest in effect for such day as
published in The Wall Street Journal (or a comparable publication
if The Wall Street Journal is not then published) as the "Prime
Rate" for major money center banks in the United States.
Amendment and Restatement Assignments - see
Section 1.7.
Amendment and Restatement Date means the date on which
all conditions precedent set forth in Section 5.3 are satisfied
or waived by the Required Lenders, the Agents, the Swing Line
Lenders, each L/C Lender and the Co-Agents.
Amortization Payments means, as to any Term Loan
Facility, the scheduled repayments of the Term Loans of such Term
Loan Facility as set forth in subsections 2.9(a), (b) and (c) and
Amortization Payment means any such scheduled repayment.
Annualized Interest Expense means, for any period of
less than four fiscal quarters, the product of (x) Interest
Expense for such period and (y) a fraction, the numerator of
which is 365 and the denominator of which is the number of days
in such period.
Applicable Agent means (a) with respect to all matters
other than matters relating to Canadian Loans, the Administrative
Agent, and (b) with respect to matters relating to Canadian
Loans, the Canadian Agent.
Applicable Borrower means, with respect to any Loan, US
Borrower, CH Borrower, Canadian Borrower, UK Borrower or a
Subsidiary Swing Line Borrower, as applicable, which is the Loan
Party to whom such Loan was, or is to be, made.
Applicable Currency means, as to any particular payment
or Loan, U.S. Dollars, Canadian Dollars or the Offshore Currency
in which it is denominated or is payable.
Applicable Facility Fee Percentage means (i) 0.50% per
annum until the end of the fiscal quarter ending on or
immediately after the earlier of (x) the date six months after
the Safeline Closing Date, or (y) the date of consummation of a
Qualified Public Offering and (ii) thereafter when the Debt to
EBITDA Ratio at the end of the most recent fiscal quarter is as
set forth below, the percentage per annum set forth opposite such
Debt to EBITDA Ratio below:
<TABLE>
<CAPTION>
Applicable
Debt to EBITDA Ratio Facility Fee Percentage
---------------------------- -----------------------------
<S> <C>
> 5.25 to 1.0 0.50%
> 4.75 to 1.0 and 0.50%
5.25 to 1.0
> 4.50 to 1.0 and 0.375%
4.75 to 1.0
> 4.25 to 1.0 and 0.375%
4.50 to 1.0
> 4.00 to 1.0 and 0.375%
4.25 to 1.0
> 3.75 to 1.0 and 0.300%
4.00 to 1.0
> 3.50 to 1.0 and 0.300%
3.75 to 1.0
> 3.25 to 1.0 and 0.250%
3.50 to 1.0
> 2.75 to 1.0 and 0.250%
3.25 to 1.0
2.75 to 1.0 0.200%
</TABLE>
Any change in the Debt to EBITDA Ratio shall result in the
adjustment of the Applicable Facility Fee Percentage as of the
date of receipt by the Administrative Agent and the Canadian
Agent of the Interest Rate Certificate most recently delivered
pursuant to subsection 7.2(b) to the level applicable to such new
Debt to EBITDA Ratio.
Applicable Margin means (A) for Tranche B Term Loans,
Tranche A Term Loans, Revolving Facility Loans (including Non-
U.S. $ Swing Line Loans) and Canadian Loans at any time prior to
the end of the fiscal quarter ending on or immediately after the
earlier of (x) the date six months after the Safeline Closing
Date, or (y) the date of consummation of a Qualified Public
Offering (the date of such earlier event to occur, the "Reset
Date"), the percentages set forth in the table below:
<TABLE>
<CAPTION>
LIBOR Rate BA Equivalent Prime Rate
Type of Loan Loans ABR Loans Rate Loans Loans
--------------- ----------- --------- ----------- -----------
<S> <C> <C> <C> <C>
Revolving Facility 1.25% 0.25% 1.25% 1.25%
Loans (including Non-
U.S. $ Swing Line
Loans) and Canadian
Loans
Tranche A Term Loans
1.75% 0.75% N.A. N.A
Tranche B Term Loans
2.25% 1.25% N.A. N.A
</TABLE>
(B) for Tranche A Term Loans, Tranche B Term Loans,
Revolving Facility Loans (including Non-U.S. $ Swing Line Loans),
and Canadian Loans, at any time following the end of the fiscal
quarter ending on or immediately after the Reset Date, the
applicable percentage set forth below opposite the Debt to EBITDA
Ratio set forth below as of the end of the most recent
Computation Period:
<TABLE>
<CAPTION>
LIBOR Rate Canadian
Loans ABR Loans Loans
- --------------------------------------------------------------------------------------------------------------------
Debt to Revolving Tranche A Tranche B Revolving Tranche A Tranche B BA Prime Rate
EBITDA Ratio Facility Term Loans Term Loans Facility Term Loans Term Loans Equivalent Loans
Loans and Non- Loans Rate Loans
U.S. $ Swing
Line Loans
---------------- --------- -------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
> 5.25 to 1.0 1.500% 2.000% 2.500% 0.500% 1.000% 1.500% 1.500% 1.500%
> 4.75 to 1.0 and
< 5.25 to 1.0 1.250% 1.750% 2.250% 0.250% 0.750% 1.250% 1.250% 1.250%
> 4.50 to 1.0 and
< 4.75 to 1.0 1.250% 1.625% 2.250% 0.250% 0.625% 1.250% 1.250% 1.250%
> 4.25 to 1.0 and
< 4.50 to 1.0 1.125% 1.500% 2.000% 0.125% 0.500% 1.000% 1.125% 1.125%
> 4.00 to 1.0 and
< 4.25 to 1.0 1.000% 1.375% 2.000% 0.000% 0.375% 1.000% 1.000% 1.000%
> 3.75 to 1.0 and
< 4.00 to 1.0 0.825% 1.125% 1.750% -0.175% 0.125% 0.750% 0.825% 0.825%
> 3.50 to 1.0 and
< 3.75 to 1.0 0.700% 1.000% 1.750% -0.300% 0.000% 0.750% 0.700% 0.700%
> 3.25 to 1.0 and
< 3.50 to 1.0 0.625% 0.875% 1.750% -0.250% 0.000% 0.750% 0.625% 0.625%
> 2.75 to 1.0 and
< 3.25 to 1.0 0.500% 0.750% 1.750% -0.250% 0.000% 0.750% 0.500% 0.500%
< 2.75 to 1.0 0.425% 0.625% 1.750% -0.200% 0.000% 0.750% 0.425% 0.425%
</TABLE>
Any change in the Debt to EBITDA Ratio shall result in the
adjustment of the Applicable Margin as of the date of receipt by
the Administrative Agent and the Canadian Agent of the Interest
Rate Certificate most recently delivered pursuant to subsection
7.2(b) to the level applicable to such new Debt of EBITDA Ratio.
Applicable Swing Line Lender means, with respect to any
Swing Line Loan, the Swing Line Lender to whom a request for such
Loan has been made hereunder or who has made such Loan.
Arranger - see the introduction to this Agreement.
Asset Sale shall mean any sale, issuance, conveyance,
transfer, lease or other disposition (including by sale-
leaseback, merger, consolidation or otherwise) by US Borrower or
any Subsidiary, in one or a series of related transactions, of:
(a) any capital stock of any Subsidiary; (b) all or substantially
all of the properties and assets of any division or line of
business of US Borrower or any Subsidiary; (c) any payment,
liquidation or realization on any Investment permitted by
subsection 8.4(d); or (d) other than inventory in the ordinary
course of business, any properties or assets of US Borrower or
any Subsidiary. For the purposes of this definition, the term
"Asset Sale" shall not include (i) any sale, issuance,
conveyance, transfer, lease or other disposition of properties or
assets to either Borrower or any Wholly-Owned Subsidiary of US
Borrower which is a Qualified Subsidiary Guarantor, (ii) any
Asset Sale not resulting in total consideration individually of
more than the Dollar Equivalent amount of U.S. $250,000
(calculated only at the time of consummation thereof), (iii) any
sale, issuance, conveyance, transfer, lease or other disposition
of properties or assets of US Borrower or any Subsidiary
permitted by Section 8.2 (other than subsections (d), (i), (j)
and (k) thereof), (iv) Takings or Destructions or loss of title
to any Mortgaged Real Property, (v) any Lien permitted by Section
8.1, (vi) any Investment permitted by Section 8.4, and (vii) any
Restricted Payment permitted by Section 8.13.
Assignee - see subsection 11.8(a).
Assigning Lender - see subsection 1.7(f).
Assignment and Acceptance - see subsection 11.8(b).
Assumed Swing Line Loan Amount means the Dollar
Equivalent amount of the aggregate total of the Subsidiary Swing
Line Borrower Sublimits of the Subsidiary Swing Line Borrowers
other than the UK Swing Line Borrowers, which amount shall be
adjusted (up or down) after the Original Closing Date not less
frequently than on the last Business Day of each fiscal quarter
of US Borrower occurring after the Original Closing Date (each
such date, an "Adjustment Date") by the amount by which the
Dollar Equivalent amount as of such date of the Subsidiary Swing
Line Borrower Sublimits of the Subsidiary Swing Line Borrowers
other than the UK Swing Line Borrowers is greater than or less
than the Assumed Swing Line Loan Amount as of the immediately
preceding Adjustment Date (or the Original Closing Date with
respect to the first Adjustment Date occurring after the Original
Closing Date) (and from the most recent Adjustment Date until the
next immediately succeeding Adjustment Date the Administrative
Agent shall assume that the Dollar Equivalent amount of Swing
Line Loans in an amount of such adjusted amount is then
outstanding for all purposes other than any Revolving Loan to be
made under Section 2.18, any Swing Line Loan to be made under
Section 2.16 and any Revolving Loan to be made pursuant to
Section 3.3).
Assumption - see the recitals hereto.
Assumption Agreement means the Assumption Agreement
executed and delivered by a duly authorized officer of Mettler-
Toledo, Inc. in connection with or following the consummation of
the M-T Acquisition, substantially in the form of Exhibit M with
such changes thereto as shall be approved by the Arranger,
providing for the Assumption.
Attorney Costs means and includes all reasonable fees
and charges of any law firm or other external counsel.
Available Revolving Facility Commitment means, as to
any Revolving Facility Lender at any time, an amount equal to the
excess, if any, of (a) the amount of such Revolving Facility
Lender's Revolving Facility Commitment at such time, over (b) the
sum of (i) the aggregate unpaid principal Dollar Equivalent
amount at such time of all Revolving Loans made by such Revolving
Facility Lender, (ii) such Revolving Facility Lender's Pro Rata
Share of the Effective Amount of all outstanding L/C Obligations
(other than Subsidiary L/C Obligations, except those of the UK
Swing Line Borrowers) at such time, and (iii) such Revolving
Facility Lender's Pro Rata Share of the aggregate Dollar
Equivalent amount of all outstanding Swing Line Loans (which for
all purposes, other than any Revolving Loan made pursuant to
Section 2.18, any Swing Line Loan made pursuant to Section 2.16
and any Revolving Loan made pursuant to Section 3.3 and except as
otherwise expressly provided herein, shall include such Lender's
Pro Rata Share of the Assumed Swing Line Loan Amount).
Average Life means, when applied to any Indebtedness at
any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into
(b) the total of the product obtained by multiplying (i) the
amount of each then remaining installment, sinking fund, serial
maturity or other required payment of principal, including
payment at final maturity, in respect thereof, by (ii) the number
of years (calculated to the nearest one-twelfth) which will
elapse between such date and the making of such payment.
BA Equivalent Rate means, for any Interest Period with
respect to BA Equivalent Rate Loans comprising part of the same
Borrowing, the rate of interest per annum (rounded upward, if
necessary, to the next 1/100th of 1%) equal to the market bid
rate determined by the Canadian Agent for banker's acceptances
(with a tenor comparable to such Interest Period and in an amount
comparable to the BA Equivalent Rate Loan of Scotiabank for such
Interest Period) accepted by Scotiabank on the first day of such
Interest Period.
BA Equivalent Rate Loan means a Loan that bears
interest based on the BA Equivalent Rate.
Bankruptcy Code means the U.S. Federal Bankruptcy
Reform Act of 1978 (11 U.S.C. 101, et seq.), as amended.
Basic Documents means the Loan Documents, the
Transaction Documents and the Other Documents, collectively, and
Basic Document means any such agreement.
Beneficial Owner shall have the meaning assigned
thereto in Rule 13d-3 of the SEC under the Exchange Act as in
effect on the date hereof.
Benefitted Lender - see Section 2.15.
Board of Directors means the Board of Directors of any
of US Borrower, Holding and M-T Investors, as the case may be, or
a designated committee thereof.
Borrowers - see the introduction to this Agreement.
Borrowing means a borrowing hereunder consisting of (a)
Loans of the same Facility and Type and in the same Applicable
Currency made to a Borrower, UK Borrower or a Subsidiary Swing
Line Borrower on the same day by one or more Lenders under
Article II and, other than in the case of ABR Loans or Swing Line
Loans made to any Swing Line Borrower, having the same Interest
Period, or (b) Canadian Loans made to Canadian Borrower on the
same day by the Canadian Lenders pursuant to Article II and,
other than in the case of Prime Rate Loans, having the same
Interest Period.
Borrowing Date means any date on which a Borrowing
occurs under Section 2.3, 2.3A, or 2.17.
Business Day means any day other than a Saturday,
Sunday or other day on which commercial banks in Luxembourg,
London, England, New York, New York or Zurich, Switzerland (and
in the case of disbursements and payments in Canadian Dollars, in
Toronto, Canada) or, with respect to any Subsidiary Swing Line
Borrower, the applicable country of its incorporation or
organization are authorized or required by law to close and
(i) with respect to disbursements and payments in U.S. Dollars or
Canadian Dollars relating to LIBOR Rate Loans, a day on which
dealings are carried on in the applicable offshore U.S. Dollar or
Canadian Dollar interbank market, and (ii) with respect to
disbursements and payments in and calculations pertaining to any
Offshore Currency, a day on which commercial banks are open for
foreign exchange business in London, England, and on which
dealings in the relevant Offshore Currency are carried on in the
applicable offshore foreign exchange interbank market in which
disbursement of or payment in such Offshore Currency will be made
or received hereunder.
Canadian Agent - see the introduction to this
Agreement.
Canadian Borrower means Mettler-Toledo Inc., a Canadian
corporation, and its successors.
Canadian Borrowing means a Borrowing hereunder
consisting of Canadian Loans made by the Canadian Lenders ratably
according to their Percentages.
Canadian Certificate - see subsection 4.1(f)(vii).
Canadian Commitment - see subsection 2.1(c).
Canadian Dollars and Cdn. $ each mean lawful money of
Canada.
Canadian Facility means the revolving facility in an
aggregate principal amount of Cdn. $26.3 million provided
hereunder as set forth in subsection 2.1(c).
Canadian Facility Fee - see subsection 2.11(c).
Canadian Federal Funds Rate means the overnight rate
established by the Canadian Agent based on its customary
practice.
Canadian Lender means any Lender listed on Schedule
2.1(c) under the heading "Canadian Lender" and any other Lender
that may from time to time hold Canadian Loans.
Canadian Loan - see subsection 2.1(c).
Canadian Maturity Date means December 31, 2002.
Canadian Revolving Note and Canadian Revolving Notes -
see Section 2.2.
Canadian Termination Date means the earlier to occur of
(i) the date 30 Business Days prior to the Canadian Maturity Date
and (ii) the date on which the Canadian Commitments are
terminated or reduced to zero pursuant to Section 2.6.
Capital Adequacy Regulation means, in respect of any
Lender, any guideline, request or directive of any central bank
or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case,
regarding capital adequacy of such Lender or of any corporation
controlling such Lender which is generally applicable to banks or
corporations controlling banks in any applicable jurisdiction
(and not applicable to such Lender or the corporation controlling
such Lender solely due to the financial or regulatory condition
of such Lender or such corporation).
Capital Expenditures means all expenditures which, in
accordance with GAAP, would be required to be capitalized and
shown on the consolidated balance sheet of US Borrower, but
excluding (i) expenditures made in connection with the
replacement, substitution or restoration of assets to the extent
financed (x) from insurance proceeds (or other similar
recoveries) paid on account of the loss of or damage to the
assets being replaced or restored or (y) with awards of
compensation arising from the taking by eminent domain,
expropriation or condemnation of the assets being replaced, (ii)
the M-T Acquisition, (iii) any Acquisition effected in accordance
with subsection 8.4(f), (iv) any Investment (other than pursuant
to subsection 8.4(t)) permitted by Section 8.4, and (v) the
Safeline Acquisition.
Capital Lease, as applied to any Person, shall mean any
lease of any property (whether real, personal or mixed) by that
Person as lessee which, in conformity with GAAP, is accounted for
as a capital lease on the balance sheet of that Person.
Cash means money, currency or a credit balance in a
deposit account.
Cash Collateralize means to pledge and deposit with or
deliver to the Administrative Agent, for the benefit of the
Administrative Agent and the Revolving Facility Lenders, as
collateral for the L/C Obligations, Cash pursuant to
documentation in form and substance reasonably satisfactory to
the Administrative Agent and the L/C Lender (which documents are
hereby consented to by the Lenders). Derivatives of such term
shall have corresponding meanings. The Revolving Borrowers
hereby grant to the Administrative Agent, for the benefit of the
Administrative Agent, the L/C Lender and the Revolving Facility
Lenders, a security interest in all such Cash. Cash collateral
shall be maintained in blocked deposit accounts at Scotiabank.
Cash Equivalents means (i) any security, maturing not
more than one year after the date of acquisition, issued by the
United States of America or an instrumentality or agency thereof
and guaranteed fully as to principal, premium, if any, and
interest by the United States of America; (ii) any certificate of
deposit, time deposit or bankers' acceptance (or, with respect to
non-U.S. banking institutions, similar instruments), maturing not
more than one year after the day of acquisition, issued by any
commercial banking institution that is a member of the U.S.
Federal Reserve System or a commercial banking institution
organized and located in a country recognized by the United
States of America, in each case, having combined capital and
surplus and undivided profits of not less than U.S. $500 million
(or the foreign currency equivalent thereof), whose short-term
debt has a rating, at the time as of which any investment therein
is made, of "P-1" (or higher) according to Moody's or "A-1" (or
higher) according to S&P; (iii) commercial paper maturing not
more than one year after the date of acquisition issued by a
corporation (other than an Affiliate or Subsidiary of either
Borrower) with a rating, at the time as of which any investment
therein is made, of "P-1" (or higher) according to Moody's or "A-
1" (or higher) according to S&P; (iv) any money market deposit
accounts issued or offered by a commercial banking institution
that is a member of the U.S. Federal Reserve System or a
commercial banking institution organized and located in a country
recognized by the United States of America, in each case, having
combined capital and surplus in excess of U.S. $500 million (or
the foreign currency equivalent thereof); and (v) other short-
term investments utilized by Foreign Subsidiaries in accordance
with normal investment practices for cash management not
exceeding a Dollar Equivalent amount of U.S. $5.0 million in
aggregate principal amount outstanding at any time.
Change in Law means the introduction of any Requirement
of Law, or any change in any Requirement of Law or in the
interpretation or administration of any Requirement of Law.
Change of Control means any of the following events:
(a) Holding shall cease to own directly or indirectly 100% on a
fully diluted basis of the economic and voting interest in US
Borrower's capital stock or shall not have the power to appoint
all of the members of the Board of Directors of US Borrower; or
(b) US Borrower shall cease to own directly or indirectly 100% on
a fully diluted basis of the economic and voting interest in any
of CH Borrower's, Canadian Borrower's or UK Borrower's capital
stock or shall not have the power to appoint all of the members
of the Board of Directors of CH Borrower, Canadian Borrower or UK
Borrower; or (c) prior to an initial public offering of common
stock of M-T Investors or Holding, the Investors shall cease to
own on a fully diluted basis in the aggregate at least a majority
of the economic or voting interest in M-T Investors' or Holding's
capital stock, as the case may be (or of the capital stock of any
other Person of which US Borrower is a Subsidiary), or after such
an initial public offering, any "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act),
other than the Investors, is or becomes (as a result of the
acquisition or issuance of securities, by merger or otherwise)
the Beneficial Owner, directly or indirectly, on a fully diluted
basis of more than 30% of the economic or voting interest in M-T
Investors' or Holding's capital stock, as the case may be (or of
the capital stock of any other Person of which US Borrower is a
Subsidiary); (d) after the initial public offering of common
stock of M-T Investors or Holding, during any consecutive two-
year period, individuals who at the beginning of such period
constituted the Board of Directors of M-T Investors or Holding
(or any other parent of US Borrower), as the case may be
(together with any new directors whose election by the
shareholders of M-T Investors or Holding (or any other Person of
which US Borrower is a Subsidiary), as the case may be, was
approved by a vote of 66-2/3% of the directors then still in
office who were either directors at the beginning of such period
or whose election as directors or nomination for election was
previously so approved), cease for any reason to constitute a
majority of the Board of Directors of M-T Investors or Holding
(or any other Person of which US Borrower is a Subsidiary), as
the case may be, then in office; or (e) a "Change of Control" or
similar event shall occur as provided in the Senior Subordinated
Note Indenture; provided, however, that the merger of any of US
Borrower, Holding and M-T Investors with and into any other of
such three Persons shall not, in and of itself, be deemed a
Change of Control so long as the Lenders retain a pledge of 100%
of the capital stock of US Borrower or its successor in interest
in such merger.
CH Borrower - see the introduction to this Agreement.
CH Borrower Guarantee means a guarantee substantially
in the form of Exhibit E-1 entered into and delivered by CH
Borrower.
CHF and Swiss Francs mean lawful money of Switzerland.
CHF Equivalent means, at any time, (a) as to any amount
denominated in CHF, the amount thereof at such time, and (b) as
to any amount denominated in any Offshore Currency, the
equivalent amount in CHF as determined by Credit Suisse First
Boston at such time on the basis of the Spot Rate for the
purchase of CHF with such Offshore Currency on the date as is
specified herein.
CH Foreign Subsidiary means each Foreign Subsidiary
which is also a Subsidiary of CH Borrower.
Chinese Subsidiaries means each of the following
Subsidiaries: Changzhou Toledo Electronic Scale Ltd., Changzhou;
Panzhihua Toledo Electronic Scale Ltd., Panzhihua; Mettler-Toledo
Instruments (Shanghai) Ltd., Shanghai; Mettler-Toledo
International Trading (Shanghai) Corp., and Xinjian Toledo
Electronic Scale Ltd., Urumgi, each incorporated in the People's
Republic of China, and their respective successors.
Ciba Loan means the loan made by CH Borrower to AG fur
Prazisioninstrumente, Greifensee, Switzerland, pursuant to the
Ciba Loan Documents in the amount of approximately CHF
37.875 million.
Ciba Loan Documents means the documents set forth on
Schedule 1.1(a), as amended and in effect from time to time in
accordance with Section 8.18.
Ciba Reimbursement Agreement means the agreement dated
as of October 15, 1996 between Ciba-Geigy AG, US Borrower,
Holding and Mettler-Toledo, Inc., as amended and in effect from
time to time in accordance with Section 8.18.
Co-Agents - see the introduction to this Agreement.
Code means the United States Internal Revenue Code of
1986, as amended.
Collateral means all of the Security Agreement
Collateral, Pledged Securities and Mortgaged Real Property.
Commitment, as to each Lender, means its Tranche A-CHF
Facility Commitment, Tranche A-UK Facility Commitment, Tranche A-
US Facility Commitment, Tranche B Facility Commitment, Revolving
Facility Commitment, Canadian Commitment or Swing Line
Commitment.
Committed Borrowing means a Borrowing hereunder
consisting of Committed Loans of one Facility made by the Lenders
ratably according to their respective Pro Rata Shares in such
Facility.
Committed Loan means a Canadian Loan, a Revolving Loan,
a Swing Line Loan or a Term Loan.
Company means Holding or any of its Subsidiaries.
Compliance Certificate means a certificate
substantially in the form of Exhibit C and delivered by the
Borrowers pursuant to subsection 7.2(a).
Computation Amount - see subsection 3.8(a).
Computation Date means any date on which the
Administrative Agent determines the Dollar Equivalent amount of
any Offshore Currency Loans or Swing Line Loans pursuant to
subsection 2.5(a) or 2.8(b).
Computation Period means each period of four full
consecutive fiscal quarters most recently ended and for which
financial statements are or are required to be available. Prior
to such time as four full consecutive fiscal quarters of
financial information for US Borrower are available, Computation
Period shall include financial information of the Mettler-Toledo
Group to the extent necessary such that four full fiscal quarters
of financial information form the basis of the Computation
Period.
Confidential Memorandum shall mean the Confidential
Memorandum, dated September 1996, and all written supplemental
material thereto prepared by, or on behalf of, the Borrowers and
transmitted to the Lenders prior to the Original Closing Date,
and the Confidential Memorandum dated April 1997, and all written
supplemental material thereto prepared by, or on behalf, of the
Borrowers and transmitted to the Lenders prior to the Amendment
and Restatement Date.
Consolidated Net Income means, for any period, the
consolidated net income of US Borrower and the Subsidiaries for
such period; provided, however, that there shall be excluded
therefrom (i) the income of any Subsidiary to the extent that the
transfer of such income by such Subsidiary to either Borrower or
its direct parent at the time is restricted in any material way
by operation of the terms of its charter or any judgment, decree,
order, statute, rule or governmental regulation applicable to
such Subsidiary or any agreement or instrument which is binding
on such Subsidiary, (ii) the income of any Person which is not a
Subsidiary (but any dividends or other distributions received in
cash by either Borrower or any Subsidiary from such Person shall
be included in Consolidated Net Income), (iii) unrealized gains
or losses in respect of Swap Contracts, and (iv) unrealized
foreign currency transaction gains or losses in respect of
Indebtedness of any Person denominated in a currency other than
the functional currency of such Person and permitted by
Section 8.5.
Consolidated Net Worth means at the date of
determination thereof, the sum of (a) all items which in
conformity with GAAP would be classified as stockholders' equity
on a consolidated balance sheet of US Borrower at such date and
(b) preferred stock (whether or not so classified as
stockholders' equity) provided that such preferred stock (i) has
no mandatory redemptions prior to the Tranche B Term Loan
Maturity Date and (ii) was issued and is outstanding on terms and
conditions reasonably satisfactory to the Administrative Agent;
provided, however, that Consolidated Net Worth shall be
calculated without giving effect to (1) any item excluded from
the definition of Consolidated Net Income (other than clauses (i)
and (ii) thereof), (2) any write-off of deferred financing costs
in connection with the early extinguishment of Indebtedness
hereunder or under the Senior Subordinated Notes, (3) cumulative
currency translation adjustments and net unrealized investment
gains and losses, (4) charges relating to the closure of the
Westerville, Ohio facility, (5) nonrecurring restructuring
charges related to the M-T Acquisition and the Safeline
Acquisition and any nonrecurring restructuring charges recorded
on or prior to December 31, 1999 in an aggregate amount not to
exceed U.S.$30 million, and (6) any expense relating to bonuses
paid by Ciba-Geigy AG or its Affiliates (other than an Affiliate
that will be an Affiliate of US Borrower after the consummation
of the M-T Acquisition) to employees of US Borrower or any
Subsidiary pursuant to any agreements entered into in connection
with the disposition of the Mettler-Toledo Group by Ciba-Geigy AG
or assumed by US Borrower or any Subsidiary in consideration of a
reduction in the purchase price for the M-T Acquisition.
Contingent Obligation means, as to any Person, any
direct or indirect liability of such Person, whether or not
contingent, with or without recourse, (a) with respect to any
Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the
"primary obligor"), including any obligation of such Person (i)
to purchase, repurchase or otherwise acquire such primary
obligations or any security therefor, (ii) to advance or provide
funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet item, level of income or financial
condition of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation, or
(iv) otherwise to assure or hold harmless the holder of any such
primary obligation against loss in respect thereof (each of (i) -
(iv), a "Guaranty Obligation"); (b) with respect to any Surety
Instrument (other than any Letter of Credit) issued for the
account of such Person or as to which such Person is otherwise
liable for reimbursement of drawings or payments; (c) to purchase
any materials, supplies or other property from, or to obtain the
services of, another Person if the relevant contract or other
related document or obligation requires that payment for such
materials, supplies or other property, or for such services,
shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such
services are ever performed or tendered; or (d) in respect of any
Swap Contract. The amount of any Contingent Obligation shall (x)
in the case of a Guaranty Obligation, be deemed equal to the
stated or determinable amount of the primary obligation in
respect of which such Guaranty Obligation is made or, if not
stated or if indeterminable, the maximum reasonably anticipated
liability in respect thereof, and (y) in the case of other
Contingent Obligations, be equal to the maximum reasonably
anticipated liability in respect thereof.
Contractual Obligation means, as to any Person, any
term, covenant, provision of condition of any security issued by
such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document
or agreement to which such Person is a party or by which it or
any of its property is bound.
Conversion/Continuation Date means any Business Day on
which (a) either Borrower or UK Borrower, as the case may be,
(i) converts Committed Loans of a Facility from one Type to the
other Type or (ii) continues as Committed Loans of the same Type,
but with a new Interest Period, Committed Loans of a Facility
having Interest Periods expiring on such date or (b) Canadian
Borrower (i) converts Canadian Loans from one Type to another
Type or (ii) continues as Canadian Loans of the same Type, but
with a new Interest Period, Canadian Loans having Interest
Periods expiring on such date.
Covered Taxes means any and all Taxes, other than, in
the case of each Lender or Agent, Taxes of any jurisdiction (or
any political subdivision thereof) imposed on or measured by such
Lender's or such Agent's net income or net profits (including any
franchise Taxes imposed thereon and any branch profits Taxes)
that arise by reason of a former, present or future connection
between such Lender or Agent and such jurisdiction (including,
without limitation, a connection arising from such Lender or
Agent being or having been a citizen or resident of such
jurisdiction, or having been organized, present or engaged in a
trade or business in such jurisdiction, or having or having had a
permanent establishment or fixed place of business in such
jurisdiction, but excluding a connection arising solely from such
Lender or Agent having executed, delivered, performed its
obligations or received a payment under this Agreement). For the
avoidance of doubt, Covered Taxes shall include any deductions or
withholdings by a Borrower on account of any Taxes from payments
made under this Agreement or any other Loan Document.
Credit Agreement Loan Parties means the Revolving
Borrowers, Canadian Borrower and the Subsidiary Swing Line
Borrowers, collectively.
Credit Extension means and includes (a) the making of
any Loan hereunder and (b) the Issuance of any Letter of Credit
hereunder.
Credit Facilities means the Revolving Facility, the
Canadian Facility and the Term Loan Facilities.
Current Liabilities means, at any time, all amounts
which, in accordance with GAAP, would be included as current
liabilities on a consolidated balance sheet of US Borrower and
the Subsidiaries at such time, excluding current maturities of
Indebtedness.
Debt To Be Repaid means all Indebtedness listed on
Schedule 5.1(p) and on Schedule 5.1A(o).
Debt to EBITDA Ratio means, as of the last day of any
fiscal quarter, the ratio of: (a) the total consolidated
Indebtedness of US Borrower and the Subsidiaries as of such day
to (b) EBITDA for the Computation Period ending on such day.
Defaulting Lender means any Lender with respect to
which a Lender Default is in effect.
Destruction has the meaning assigned to that term in
the Mortgages.
Deutschemarks and DM each mean lawful money of Germany.
Disinterested Director means a member of a Board of
Directors who does not have any material direct or indirect
financial interest in or with respect to the transaction being
considered.
Documentation Agent - see the introduction to this
Agreement.
Dollar Equivalent means, at any time, (a) as to any
amount denominated in U.S. Dollars, the amount thereof at such
time, and (b) as to any amount denominated in Canadian Dollars or
any Offshore Currency, the equivalent amount in U.S. Dollars as
determined by the Administrative Agent at such time on the basis
of the Spot Rate for the purchase of U.S. Dollars with such
Canadian Dollars or Offshore Currency on the most recent
Computation Date provided for in subsection 2.5(a) or such other
date as is specified herein. With respect to Swing Line Loans,
Dollar Equivalent shall be based upon the Dollar Equivalent of
the Subsidiary Currency Equivalent thereof as of the date of the
calculation of such Dollar Equivalent.
Domestic Guarantors means Holding, US Borrower and the
Domestic Subsidiary Guarantors.
Domestic Loan Parties means the Domestic Guarantors.
Domestic Subsidiary means a Subsidiary that is
incorporated under the laws of any State of the United States or
Puerto Rico or the District of Columbia and that is a direct
Subsidiary of (i) US Borrower, (ii) another Domestic Subsidiary,
or (iii) UK Borrower, so long as UK Borrower is treated as a
"branch" of US Borrower for U.S. tax purposes. For the avoidance
of doubt, UK Borrower itself shall not be considered a Domestic
Subsidiary.
Domestic Subsidiary Guarantee means a guarantee
substantially in the form of Exhibit E-2 entered into and
delivered by a Domestic Subsidiary, as amended and restated on
the Amendment and Restatement Date.
Domestic Subsidiary Guarantor means each Domestic
Subsidiary which executes and delivers a Domestic Subsidiary
Guarantee.
Domestic Subsidiary Securities Pledge Agreement means a
securities pledge agreement substantially in the form of Exhibit
J-1 entered into and delivered by a Domestic Subsidiary.
EBITDA means, for any period, the sum of: (a)
Consolidated Net Income of US Borrower and the Subsidiaries for
such period excluding, to the extent reflected in determining
such Consolidated Net Income, (i) extraordinary gains and losses
for such period, (ii) any gain or loss associated with the sale
or write-down of assets not in the ordinary course of business,
(iii) any deferred financing costs for such period written off in
connection with the early extinguishment of Indebtedness
hereunder or under the Senior Subordinated Notes, (iv) any charge
for such period relating to the closure of the Westerville, Ohio
facility, (v) any non-recurring charges related to the M-T
Acquisition or the Safeline Acquisition, any non-recurring
charges recorded on or prior to December 31, 1999 in an aggregate
amount not to exceed $30.0 million and any non-recurring non-cash
charges related to any other Acquisition by US Borrower or any
Subsidiary occurring after the Original Closing Date, (vi) any
expense relating to bonuses paid by Ciba-Geigy AG or its
Affiliates (other than an Affiliate that became an Affiliate of
US Borrower after the consummation of the M-T Acquisition) to
employees of US Borrower or any Subsidiary pursuant to any
agreements entered into in connection with the disposition of the
Mettler-Toledo Group by Ciba-Geigy AG or assumed by US Borrower
or any Subsidiary in consideration of a reduction in the purchase
price for the M-T Acquisition and (vii) any other non-cash or non-
recurring items of income or expense (other than any non-cash
item of expense requiring an accrual or reserve for future cash
expense), plus (b) to the extent deducted in determining
Consolidated Net Income for such period, Interest Expense, income
tax and capital tax expense, depreciation, depletion and
amortization expense for such period. Prior to such time as four
full fiscal quarters of financial information of US Borrower
after (i) the Original Closing Date are available pursuant to
this Agreement, EBITDA shall be calculated by taking into account
the results of the Mettler-Toledo Group (in accordance with this
definition) for such number of fiscal quarters (or part thereof)
so that, when added to the financial information of US Borrower,
four full fiscal quarters of financial information form the basis
for the calculation under this definition, and (ii) the Safeline
Closing Date are available pursuant to this Agreement, EBITDA
shall be calculated, other than for purposes of Section 8.10, on
a pro forma basis consistent with GAAP as if the Safeline
Acquisition had been consummated at the beginning of the relevant
period.
Effective Amount means with respect to any outstanding
L/C Obligations on any date, the aggregate Dollar Equivalent
amount of such L/C Obligations on such date after giving effect
to any Issuances of Letters of Credit occurring on such date and
any other changes in the aggregate Dollar Equivalent amount of
the L/C Obligations as of such date, including as a result of any
reimbursement of outstanding unpaid drawings under any Letter of
Credit or any reduction in the maximum amount available for
drawing under any Letter of Credit taking effect on such date.
Eligible Assignee means (i) a commercial bank organized
under the laws of the United States, or any state thereof, and
having a combined capital and surplus of at least U.S. $100.0
million; (ii) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political
subdivision of any such country, and having a combined capital
and surplus in a Dollar Equivalent amount of at least U.S. $100.0
million; provided, however, that such bank is acting through a
branch or agency located in the country in which it is organized
or another country which is also a member of the OECD; (iii) a
Person that is primarily engaged in the business of commercial
banking and that is (A) a Subsidiary of a Lender, (B) a
Subsidiary of a Person of which a Lender is a Subsidiary, or
(C) a Person of which a Lender is a Subsidiary; (iv) an
"accredited investor" as such term is defined in Rule 501(a) of
Regulation D under the U.S. Securities Act of 1933, as amended,
and (v) an insurance company, mutual fund or other financial
institution organized under the laws of the United States, any
state thereof, any other country which is a member of the OECD or
a political subdivision of any such country with assets under
management in a Dollar Equivalent amount of at least U.S. $100.0
million; provided, however, that no Person shall be an Eligible
Assignee in respect of any Tranche A-CHF Facility Commitment,
Tranche A-UK Facility Commitment, Revolving Facility Commitment
or Canadian Commitment unless, at the time of the proposed
assignment to such Person, such Person is able to make (w) with
respect to the Tranche A-CHF Facility Commitment, Tranche A-CHF
Term Loans, (x) with respect to the Tranche A-UK Facility
Commitment, Tranche A-UK Term Loans, (y) with respect to the
Revolving Facility Commitments, Revolving Loans in U.S. Dollars
and each Offshore Currency, and (z) with respect to the Canadian
Commitments, Canadian Loans.
Environmental Approvals means any material approval,
determination, order, consent, authorization, certificate,
license, permit, franchise, concession or validation of, or
exemption or other action by, or filing, recording or
registration with, or notice to, any Governmental Authority
pursuant to or required under any Environmental Law.
Environmental Claims means all claims, however
asserted, by any Governmental Authority or other Person alleging
potential liability under, or responsibility for violation of,
any Environmental Law, or for any release or threatened release
of a Hazardous Material or injury to the environment.
Environmental Laws means all applicable federal, state,
local and foreign laws, common law or regulations, treaties,
orders, decrees, permits, licenses, authorizations, judgments or
injunctions issued, promulgated, approved or entered thereunder,
now or hereafter in effect in each case relating to pollution or
protection of employee health or safety or the environment
(including, without limitation, ambient and indoor air, surface
water, groundwater, soil, land surface or subsurface) including,
without limitation, laws relating to (a) emissions, discharges,
releases or threatened releases of Hazardous Materials into the
environment and (b) the manufacture, processing, distribution,
use, generation, treatment, storage, disposal, transport or
handling of Hazardous Materials.
Equipment has the meaning assigned to that term in the
Security Agreements.
Equity Issuance means the issuance of common equity
securities by Holding directly or indirectly to the Investors for
gross proceeds of the Dollar Equivalent amount of not less than
U.S. $190.0 million on or prior to the Original Closing Date;
provided, however, that up to the Dollar Equivalent amount of
U.S. $7.50 million to be contributed by employees of the Mettler-
Toledo Group may be contributed after the Original Closing Date,
but will be contributed by AEA or its designee if not so
contributed by employees prior to December 31, 1996 (and the term
Equity Issuance shall include such later contributions to the
extent made by December 31, 1996).
ERISA means the Employee Retirement Income Security Act
of 1974.
ERISA Affiliate means any trade or business (whether or
not incorporated) under common control with a Loan Party within
the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).
ERISA Event means (a) a Reportable Event with respect
to a Pension Plan; (b) the failure to make a required
contribution to a Pension Plan if such failure could give rise to
a Lien under Section 302(f) of ERISA; (c) a withdrawal by a Loan
Party or any ERISA Affiliate from a Pension Plan subject to
Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA)
or a cessation of operations which is treated as such a
withdrawal under Section 4062(e) of ERISA; (d) a complete or
partial withdrawal by a Loan Party or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (e) the filing of a notice of intent to
terminate, the treatment of a Plan amendment as a termination
under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (f) an event or condition which might
reasonably be expected to constitute grounds under Section 4042
of ERISA or the commencement of proceedings by the PBGC for the
termination of, or the appointment of a trustee to administer,
any Pension Plan or Multiemployer Plan; (g) the imposition of any
liability under Title IV of ERISA, other than PBGC premiums due
but not delinquent under Section 4007 of ERISA, upon a Loan Party
or any ERISA Affiliate; (h) the making of any amendment to a
Pension Plan which could result in the imposition of a Lien or
the posting of a bond or other security; (i) the engagement in
any transaction by a Loan Party or any ERISA Affiliate in
connection with which any such entity could be subject to either
a tax imposed by Section 4975(a) of the Code or the corresponding
civil penalty assessed pursuant to Section 502(i) of ERISA; or
(j) the application for a waiver of the minimum funding standard
under Section 412 of the Code with respect to a Pension Plan.
Event of Default means any of the events or
circumstances specified in Section 9.1.
Excess Cash Flow means, for any period, the remainder
of (a) the sum, without duplication, of (i) Consolidated Net
Income for such period (calculated by (x) excluding any gains or
losses on the sale or other disposition of assets (other than
sales of inventory in the ordinary course of business),
(y) adding back the non-cash component of all extraordinary or
non-recurring items of expense and (z) deducting the non-cash
component of all extraordinary or non-recurring items of income,
in each case to the extent taken into account in the calculation
of such Consolidated Net Income), plus (ii) all depreciation and
amortization of assets (including goodwill and other intangible
assets), non-cash interest expense and all other non-cash charges
of US Borrower and the Subsidiaries deducted in determining
Consolidated Net Income for such period, plus (iii) any net
decrease in Adjusted Working Capital (as reflected on the audited
consolidated statement of cash flows in accordance with FAS 52)
during such period (exclusive of decreases in working capital
associated with asset sales), plus (iv) all federal, state, local
and foreign income or capital taxes (whether paid or deferred) of
US Borrower and the Subsidiaries deducted in determining
Consolidated Net Income for such period, minus (b) the sum,
without duplication, of (i) regularly scheduled installment
payments of principal of Term Loans pursuant to Section 2.9,
voluntary prepayments of the Term Loans pursuant to subsection
2.7(g), prepayments of principal of Revolving Facility Loans
pursuant to Section 2.8, the aggregate principal amount of
permanent principal payments with respect to any other
Indebtedness of US Borrower and the Subsidiaries, prepayments of
the Revolving Loans and Canadian Loans to the extent of any
concurrent permanent reduction in the Revolving Facility
Commitments and Canadian Commitments, as the case may be, and the
portion of any regularly scheduled payments with respect to
Capital Leases allocable to principal, in each case made during
such period (in any such case other than to the extent any such
payment is made from the proceeds of any capital contribution to
US Borrower or any Subsidiary or from any proceeds from the
issuance or sale of capital stock of US Borrower or any
Subsidiary, any incurrence of Indebtedness by US Borrower or any
Subsidiary or from the proceeds of any sale or other disposition
of assets by US Borrower or any Subsidiary (other than sales of
inventory in the ordinary course of business)), plus (ii) Capital
Expenditures for such period and cash paid in connection with any
Acquisition during such period (other than to the extent made
from any capital contribution to US Borrower or any Subsidiary or
from any proceeds from the issuance or sale of capital stock of
US Borrower or any Subsidiary, any incurrence of Indebtedness by
US Borrower or any Subsidiary or from the proceeds of any sale or
other disposition of assets by US Borrower or any Subsidiary or
insurance proceeds (other than sales of inventory in the ordinary
course of business)), plus (iii) all federal, state, local and
foreign income or capital taxes paid by US Borrower and the
Subsidiaries during such period, plus (iv) non-cash charges added
back in any previous period pursuant to item (a)(ii) above to the
extent such charge has become a cash item in the current period,
plus (v) any net increase in Adjusted Working Capital (as
reflected on the audited consolidated statement of cash flows in
accordance with FAS 52) during such period (exclusive of
increases in working capital associated with asset sales). No
conversion of term extensions of credit made under the Original
Credit Agreement as of the Amendment and Restatement Date as
contemplated by Section 2.1 shall be taken into account in the
calculation of Excess Cash Flow for any period.
Exchange Act means the United States Securities
Exchange Act of 1934.
Exchange Notes - see subsection 2.23(a).
Facility means any of the Canadian Facility, the
Tranche A-CHF Term Loan Facility, the Tranche A-UK Term Loan
Facility, the Tranche A-US Term Loan Facility, the Tranche B Term
Loan Facility, or the Revolving Facility.
Facility Fee - see subsection 2.11(b).
Fee Letters - see subsection 2.11(a).
FIRREA means the Financial Institutions Reform,
Recovery & Enforcement Act of 1989, as amended from time to time,
and any successor statute.
Foreign Guarantor means each Foreign Subsidiary which
executes and delivers a Foreign Subsidiary Guarantee.
Foreign Loan Parties means Canadian Borrower, CH
Borrower, UK Borrower, the Subsidiary Swing Line Borrowers and
the Foreign Guarantors.
Foreign Subsidiary means a direct or indirect
Subsidiary of US Borrower which is not a Domestic Subsidiary.
Foreign Subsidiary Guarantee means a guarantee
substantially in the form of the Domestic Subsidiary Guarantee
entered into and delivered by a Foreign Subsidiary, but with such
modifications, additions and deletions as may be required to
comply with applicable law.
Foreign Subsidiary Securities Pledge Agreement means a
securities pledge agreement substantially in the form of the
Domestic Subsidiary Securities Pledge Agreement entered into and
delivered by a Foreign Subsidiary, but with such modifications,
additions and deletions as may be required to comply with
applicable law.
FRB means the Board of Governors of the U.S. Federal
Reserve System, and any Governmental Authority succeeding to any
of its principal functions.
French Francs and FF each mean lawful money of France.
GAAP means generally accepted accounting principles set
forth as of the relevant date in the opinions and pronouncements
of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the
circumstances as of the date of determination.
German Subsidiary means Mettler-Toledo Management
Holding Deutschland GmbH, a German corporation, and its
successors.
Governmental Authority means any nation or government,
any state, provincial, canton or other political subdivision
thereof, any central bank (or similar monetary or regulatory
authority) thereof (or any central bank or similar monetary or
regulatory authority created under the Treaty of Rome (being the
treaty establishing the European Economic Community signed in
Rome, Italy on 25 March 1957, as amended) or created by any group
of nations, governments or states), the NAIC, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
Guarantees means the Holding Guarantee, the Domestic
Subsidiary Guarantees, the Foreign Subsidiary Guarantees, the CH
Borrower Guarantee and the US Borrower Guarantee.
Guarantors means each of the Domestic Guarantors and
the Foreign Guarantors.
Guaranty Obligation has the meaning specified in the
definition of Contingent Obligation.
Hazardous Materials means any pollutant, contaminant,
toxic, hazardous or extremely hazardous substance, constituent or
waste, or any other constituent, waste, material, compound or
substance including, without limitation, petroleum (including
crude oil or any fraction thereof) or any petroleum product,
subject to regulation under any Environmental Law.
Holding - see the introduction to this Agreement.
Holding Guarantee means a guarantee substantially in
the form of Exhibit E-4 entered into and delivered by Holding, as
amended and restated on the Amendment and Restatement Date.
Holding Securities Pledge Agreement means a securities
pledge agreement substantially in the form of Exhibit J-3 entered
into and delivered by Holding.
Honor Date - see subsection 3.3(b).
Indebtedness of any Person means, without duplication,
(a) all indebtedness for borrowed money of such Person; (b) all
obligations issued, undertaken or assumed by such Person as the
deferred purchase price of property or services (other than trade
payables and accrued expenses entered into in the ordinary course
of business on ordinary terms); (c) all non-contingent
reimbursement or payment obligations of such Person with respect
to Surety Instruments (such as, for example, unpaid reimbursement
obligations in respect of a drawing under a letter of credit);
(d) all obligations of such Person evidenced by notes, bonds,
debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of
property, assets or businesses; (e) all indebtedness of such
Person created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either
case with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or
sale of such property); (f) all obligations of such Person with
respect to Capital Leases; (g) all net obligations of such Person
with respect to Swap Contracts (such obligations to be equal at
any time to the aggregate net amount that would have been payable
by such Person at the most recent fiscal quarter end in
connection with the termination of such Swap Contracts at such
fiscal quarter end); (h) all indebtedness of other Persons
referred to in clauses (a) through (g) above secured by (or for
which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in
property (including accounts and contracts rights) owned by such
Person, even though such Person has not assumed or become liable
for the payment of such Indebtedness; and (j) all Guaranty
Obligations of such Person in respect of indebtedness or
obligations of others of the kinds referred to in clauses (a)
through (h) above. Indebtedness shall not include (x) accounts
extended by suppliers in the ordinary course on normal trade
terms in connection with the purchase of goods and services, or
(y) any Indebtedness created by the sale or discount of
receivables permitted by Section 8.21.
Indemnified Person - see Section 11.4.
Independent Auditor - see subsection 7.1(a).
Initial Funding Date means the first date on which any
Lender makes a Loan hereunder.
Initial Public Offering shall mean an underwritten
public offering of the common stock of M-T Investors or Holding,
other than any public offering or sale pursuant to a registration
statement on Form S-8 or a comparable form.
Initial Loans means the Loans made on the Initial
Funding Date.
Insolvency Proceeding means, with respect to any
Person, (a) any case, action or proceeding with respect to such
Person before any court or by or before any other Governmental
Authority relating to bankruptcy, insolvency, reorganization,
liquidation, receivership, dissolution, sequestration,
conservatorship, winding-up or relief of debtors (or the
convening of a meeting or the passing of a resolution for or with
a view to any of the foregoing), or (b) any assignment for the
benefit of creditors, composition, marshalling of assets for
creditors, or other similar arrangement in respect of such
Person's creditors generally or any substantial portion of its
creditors.
Intellectual Property - see Section 6.15.
Intercompany Indebtedness - see subsection 8.4(c).
Intercreditor Agreement means an Intercreditor
Agreement, substantially in the form of Exhibit N with such
changes thereto as shall be approved by the Administrative Agent.
Interest Expense means for any period the consolidated
interest expense of US Borrower and the Subsidiaries for such
period (including all imputed interest on Capital Leases, but
excluding (i) amortization of fees and expenses in connection
with the M-T Acquisition and the Safeline Acquisition, this
Agreement and the transactions contemplated by the foregoing,
(ii) amortization in connection with Swap Contracts, (iii)
expenses relating to the sale or discount of receivables
permitted by Section 8.21, and (iv) interest expense on deferred
compensation or customer deposits).
Interest Payment Date means (a) as to any ABR Loan, the
last Business Day of each calendar quarter, (b) as to any Prime
Rate Loan and any Non-U.S.$ Swing Line Loan, the last Business
Day of each calendar month, and (c) as to any LIBOR Rate Loan,
the last day of each Interest Period applicable to such Loan;
provided, however, that if any Interest Period for a LIBOR Rate
Loan exceeds three months, the date that falls three months (or,
in the case of a 12-month Interest Period, three months, six
months and nine months) after the beginning of such Interest
Period also shall be an Interest Payment Date.
Interest Period means, (a) as to any LIBOR Rate Loan,
the period commencing on the Borrowing Date of such Loan or, on
the Conversion/Continuation Date on which such Loan is converted
into or continued as a LIBOR Rate Loan, as applicable, and ending
on the date one, two, three, six, or, if available from all of
the Lenders, twelve months thereafter as selected by the
Applicable Borrower in its Notice of Committed Borrowing or
Notice of Conversion/Continuation, as the case may be; and (b) as
to any BA Equivalent Rate Loan, the period commencing on the
Borrowing Date of such Loan or on the Conversion/Continuation
Date on which such Loan is converted into or continued as a BA
Equivalent Rate Loan, and ending on the date 30, 60, 90 or 180
days thereafter, as selected by Canadian Borrower in its Notice
of Canadian Borrowing or Notice of Continuation/Conversion;
provided, however, that:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall
be extended to the following Business Day unless, in the
case of a LIBOR Rate Loan, the result of such extension
would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the
preceding Business Day;
(ii) any Interest Period for a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period) shall
end on the last Business Day of the calendar month at the
end of such Interest Period;
(iii) no Interest Period for any Revolving Facility
Loan shall extend beyond the scheduled Termination Date and
no Interest Period for any Canadian Loan shall extend beyond
the Canadian Termination Date;
(iv) no Interest Period for any Tranche A-CHF Term Loan
or Tranche A-UK Term Loan shall extend beyond any scheduled
installment date for Term Loans under such Facility unless
the aggregate principal amount of Term Loans under such
Facility having Interest Periods that will expire on or
before such scheduled installment date equals or exceeds the
amount of the installment of Term Loans due under such
Facility on such date; and
(v) no Interest Period for any Term Loan under the
Tranche B Term Loan Facility, or the Tranche A-US Term Loan
Facility shall extend beyond any scheduled installment date
unless the aggregate principal amount of all Term Loans
under such Facility that are ABR Loans, plus the aggregate
principal amount of all Term Loans under such Facility
having Interest Periods that will expire on or before such
scheduled installment date, equals or exceeds the amount of
the installment of the Term Loans under such Facility due on
such date.
Interest Rate Certificate means an officers'
certificate substantially in the form of Exhibit K, delivered
pursuant to subsection 7.2(b), demonstrating in reasonable detail
the calculation of the Debt to EBITDA Ratio as of the last day of
the subject period.
Inventory means all of the inventory of US Borrower and
the Subsidiaries, whether now existing or existing in the future,
including, without limitation: (i) all raw materials, work in
process, parts, components, assemblies, supplies and materials
used or consumed in their business, (ii) all goods, wares and
merchandise, finished or unfinished, held for sale or lease or
leased or furnished or to be furnished under contracts of
service, and (iii) all goods returned or repossessed by US
Borrower or the Subsidiaries.
Investment - see Section 8.4.
Investors means AEA and its current, former and future
employees, stockholders, directors and officers and the officers
of Holding, US Borrower, CH Borrower, UK Borrower and their
respective subsidiaries, and (i) trusts for the benefit of such
Persons or the spouses, issue, parents or other relatives of such
Persons, (ii) entities controlling or controlled by such Persons
and (iii) in the event of the death of any such individual
Person, heirs or testamentary legatees of such Person. Investors
shall also include Novartis and its direct and indirect
subsidiaries, the specialty chemicals entity that was spun off
from Novartis in connection with the merger of Ciba-Geigy and
Sandoz and the direct and indirect subsidiaries of such specialty
chemicals entity; provided, however, that no such entity referred
to in this sentence owns, directly or indirectly, more than seven
and one-half percent (7.50%) on a fully diluted basis of the
economic or voting interest in the capital stock of Holding.
IRS means the United States Internal Revenue Service,
and any Governmental Authority succeeding to any of its principal
functions under the Code.
Issuance Date - see subsection 3.1(a).
Issue means, with respect to any Letter of Credit, to
issue or to extend the expiry of, or to renew or increase the
amount of, such Letter of Credit; and the terms Issued, Issuing
and Issuance have corresponding meanings.
Japanese Yen means lawful money of Japan.
Joint Venture means a corporation, partnership, limited
liability company, joint venture or other similar legal
arrangement (whether created by contract or conducted through a
separate legal entity) now or hereafter formed by US Borrower or
any Subsidiary with another Person or Persons in order to conduct
a common venture or enterprise with such Person or Persons and
that is not a Subsidiary (whether owned, directly or indirectly,
50% or less by US Borrower or any Subsidiary).
L/C Advance means each L/C Lender's participation in
any L/C Borrowing in accordance with its Pro Rata Share.
L/C Amendment Application means an application form for
amendment of outstanding standby or commercial documentary
letters of credit as shall at any time be in use by the
applicable L/C Lender, as the L/C Lender shall request.
L/C Application means an application form for issuances
of standby or commercial documentary letters of credit as shall
at any time be in use by the applicable L/C Lender, as the L/C
Lender shall request.
L/C Borrowing means an extension of credit resulting
from a drawing under any Letter of Credit (including any Letter
of Credit issued for the account of any Subsidiary Swing Line
Borrower) which shall not have been reimbursed on the date when
made nor converted into a Borrowing of Revolving Facility Loans
under subsection 3.3(b).
L/C Commitment means the commitment of the L/C Lender
(other than the Subsidiary Swing Line Lenders) to Issue Letters
of Credit from time to time Issued or outstanding under Article
III, in an aggregate Dollar Equivalent amount not to exceed on
any date an amount equal to the lesser of U.S. $40.0 million and
the amount of the combined Commitments of all L/C Lenders; it
being understood that the L/C Commitment is a part of the
combined Revolving Facility Commitments of all L/C Lenders,
rather than a separate, independent commitment.
L/C Lender means (x) with respect to the Borrowers and
UK Borrower, the New York agency of Scotiabank or such other
Lender or Lenders selected by the Administrative Agent
satisfactory to the Borrowers who agrees to act in such capacity
to issue Letters of Credit and (y) with respect to each
Subsidiary Swing Line Borrower, the Swing Line Lender who is to
make Swing Line Loans hereunder to such Subsidiary Swing Line
Borrower. All references in this Agreement to the L/C Lender
shall be deemed a reference to the applicable L/C Lender issuing
the applicable Letter of Credit.
L/C Obligations means at any time the sum of (a) the
aggregate undrawn Dollar Equivalent amount of all Letters of
Credit then outstanding, plus (b) the Dollar Equivalent amount of
all unreimbursed drawings under all Letters of Credit, including
all outstanding L/C Borrowings.
L/C-Related Documents means the Letters of Credit, the
L/C Applications, the L/C Amendment Applications and any other
document relating to any Letter of Credit, including any of the
applicable L/C Lender's standard form documents for letter of
credit issuances.
Lease means any lease, sublease, franchise agreement,
license, occupancy or concession agreement.
Lender - see the introduction to this Agreement; Lender
shall include (x) any L/C Lender or Swing Line Lender, and (y) at
any time prior to the consummation of the transactions to occur
on the Amendment and Restatement Date, any Person that is or was
a Lender under the Original Credit Agreement as of the time
immediately prior to the consummation of the transactions on the
Amendment and Restatement Date.
Lender Default means (i) the refusal (which has not
been retracted) of a Lender to make available its portion of any
Borrowing (including pursuant to Section 2.18) or to fund its
portion of any unreimbursed payment under Section 3.3, or (ii) a
Lender having notified the Applicable Agent and/or any Applicable
Borrower that it does not intend to comply with the obligations
under Section 2.1, 2.18 or 3.3.
Lending Office means, as to any Lender, the office or
offices of such Lender (or, in the case of any Offshore Currency
Loan or Canadian Loan, of an Affiliate of such Lender) specified
to the Administrative Agent and the Borrowers (and Canadian
Borrower and the Canadian Agent with respect to Canadian Loans)
as its "Lending Office" or "Domestic Lending Office" or "Offshore
Lending Office" or "Canadian Lending Office", as the case may be.
Letter of Credit means any letter of credit (whether a
standby letter of credit or a commercial documentary letter of
credit) Issued by an L/C Lender pursuant to Article III.
LIBOR Rate means, with respect to each day during each
Interest Period pertaining to LIBOR Rate Loans comprising part of
the same Borrowing, the rate per annum determined by the
Administrative Agent to be the arithmetic mean (rounded to the
nearest 1/100th of 1%) of the offered rates for deposits in
Dollars or in the Applicable Currency with a term comparable to
such Interest Period that appears on the Telerate British Bankers
Assoc. Interest Settlement Rates Page (as defined below) at
approximately 11:30 a.m., London, England time, on the second
full Business Day preceding the first day of such Interest Period
(or, in the case of Pounds Sterling, on the first day of such
Interest Period); provided, however, that if there shall at any
time no longer exist a Telerate British Bankers Assoc. Interest
Settlement Rates Page, "LIBOR Rate" shall mean, with respect to
each day during each Interest Period pertaining to LIBOR Rate
Loans comprising part of the same Borrowing, the rate per annum
equal to the rate at which Scotiabank is offered deposits in
Dollars or in the Applicable Currency at approximately 11:30
a.m., London, England time, two Business Days prior to the first
day of such Interest Period (or, in the case of Pounds Sterling,
on the first day of such Interest Period) in the interbank
eurocurrency market where the eurocurrency and foreign currency
and exchange operations in respect of Dollars or such Applicable
Currency, as the case may be, are then being conducted for
delivery on the first day of such Interest Period for the number
of days comprised therein and in an amount comparable to the
amount of its LIBOR Rate Loan to be outstanding during such
Interest Period. "Telerate British Bankers Assoc. Interest
Settlement Rates Page" shall mean the display designated as Page
3750 (or such other page on which any Applicable Currency then
appears) on the Telerate System Incorporated Service (or such
other page as may replace such page on such service for the
purpose of displaying the rates at which Dollar deposits in any
Applicable Currency are offered by leading banks in the London
interbank deposit market).
LIBOR Rate Loan means any Committed Loan that bears
interest based on the LIBOR Rate.
Lien means any security interest, mortgage, deed of
trust, pledge, claim, hypothecation, assignment for security,
charge or deposit arrangement, preferential arrangement in the
nature of security or lien (statutory or other), or other
encumbrance of any kind in respect of any property (including
those created by, arising under or evidenced by any conditional
sale or other title retention agreement).
Loan means (a) an extension of credit by a Lender to
either Borrower, UK Borrower or a Subsidiary Swing Line Borrower
under Article II or Article III, which may be a Term Loan, a
Revolving Loan, a Swing Line Loan or an L/C Advance, or (b) an
extension of credit by a Canadian Lender to Canadian Borrower
under Article II.
Loan Documents means this Agreement, any Note, the Fee
Letters, the L/C-Related Documents, the Guarantees, each Security
Document, each Swap Contract entered into with any Lender by any
Company and all other documents delivered to any Agent or any
Lender in connection herewith.
Loan Parties means the Domestic Loan Parties and the
Foreign Loan Parties.
Losses means as to any Person, the losses, liabilities,
claims (including those based upon negligence, strict or absolute
liability and liability in tort), damages, expenses, obligations,
penalties, actions, judgments, Liens, penalties, fines, suits,
costs or disbursements of any kind or nature whatsoever
(including Attorney Costs in connection with any Proceeding
commenced or threatened, whether or not such Person shall be
designated a party thereto) at any time (including following the
payment of the Obligations and/or the termination of the
Commitments hereunder) incurred by, imposed on or asserted
against such Person.
Majority Lenders of the Affected Tranche means (i) at
any time prior to the Original Closing Date, Non-Defaulting
Lenders holding at least a majority of the aggregate amount of
the Commitments of the Non-Defaulting Lenders of the applicable
Term Loan Facility which would be adversely affected by any
amendment, waiver or consent contemplated by clause (6) of the
second proviso to subsection 11.1(a) and (ii) at any time after
the Original Closing Date, Non-Defaulting Lenders holding at
least a majority of the aggregate amount of the outstanding Loans
of the Non-Defaulting Lenders of the applicable Term Loan
Facility which would be adversely affected by any amendment,
waiver or consent contemplated by clause (6) of the second
proviso to subsection 11.1(a).
Management Services Agreement means the Management
Services Agreement dated as of October 15, 1996, between AEA and
US Borrower, as in effect on the Original Closing Date and as the
same may be amended and in effect from time to time in accordance
with Section 8.18.
Margin Stock means "margin stock" as such term is
defined in Regulation G, T, U or X of the FRB.
Material Adverse Effect means (a) a material adverse
effect upon the operations, business, assets, nature of assets,
properties, condition (financial or otherwise), solvency or
prospects of US Borrower and the Subsidiaries taken as a whole
(which term "Subsidiary" shall include, on or prior to the
Original Closing Date or the Safeline Closing Date, as the case
may be, any entity which will become or be merged into or
acquired by either Borrower or any of its Subsidiaries on the
Original Closing Date or the Safeline Closing Date, as the case
may be, in connection with the Transactions); or (b) a material
adverse effect on the rights and remedies of the Agents or the
Lenders under the Loan Documents.
Mettler-Toledo Group means the entities (other than
those affiliated solely with Holding immediately prior to the
consummation of the M-T Acquisition) set forth in the M-T
Acquisition Documents and any additional entities formed by such
parties or their Affiliates in connection with consummating the M-
T Acquisition.
Mettler-Toledo, Inc. means Mettler-Toledo, Inc., a
Delaware corporation, the survivor of the merger of itself and MT
Acquisition Corp. (a Delaware corporation) and its successors.
Minimum Tranche means, in respect of Loans comprising
part of the same Borrowing, or to be converted or continued under
Section 2.4 or 2.4A, (a) in the case of ABR Loans, U.S. $1.0
million or a higher integral multiple of U.S. $1.0 million, (b)
in the case of Canadian Loans, Cdn. $250,000 or a higher integral
multiple of Cdn. $250,000, (c) in the case of LIBOR Rate Loans
(other than Revolving Loans, Tranche A-CHF Term Loans and
Tranche A-UK Term Loans), a minimum Dollar Equivalent amount of
U.S. $5.0 million and an integral multiple of U.S. $100,000,
(d) in the case of Revolving Loans which are LIBOR Rate Loans
(other than Revolving Loans made in Pounds Sterling and CHF), a
minimum Dollar Equivalent amount of U.S. $1.0 million and an
integral multiple of U.S. $1.0 million, (e) in the case of
Revolving Loans made in Pounds Sterling, a minimum of 500,000
Pounds Sterling and an integral multiple of 100,000 Pounds
Sterling, (f) in the case of Revolving Loans made in CHF, a
minimum of 1,000,000 CHF and an integral multiple of 100,000 CHF,
and (g) in the case of Tranche A-CHF Term Loans, a minimum amount
of CHF 5.0 million and an integral multiple of CHF 100,000, and
(h) in the case of Tranche A-UK Term Loans, a minimum amount of
2.5 million Pounds Sterling and an integral multiple of 100,000
Pounds Sterling.
MLA Cost means the cost imputed to a Lender making a
Committed Loan in Pounds Sterling of compliance with the
Mandatory Liquid Assets requirements of the Bank of England
during the Interest Period of that Loan determined in accordance
with Schedule 1.1(b).
Moody's means Moody's Investors Service, Inc. or its
successors.
Mortgage means a term loan and revolving credit
mortgage, assignment of leases, security agreement and fixture
filing, or a term loan and revolving credit deed of trust,
assignment of leases, security agreement and fixture filing
creating and evidencing a Lien on a Mortgaged Real Property,
which shall be substantially in the form of Exhibit I, containing
such schedules and including such additional provisions and other
deviations from such Exhibits as shall be necessary to conform
such document to applicable or local law or as shall be required
under local law and which shall be dated as of the date of
delivery thereof and made by the owner of the Mortgaged Real
Property described therein for the benefit of the Administrative
Agent, as mortgagee (grantee or beneficiary), assignee and
secured party, as the same may at any time be amended, modified
or supplemented in accordance with the terms thereof and hereof.
Mortgaged Real Property means each Real Property
designated on Schedule 1.1(c) which shall be subject to a
Mortgage and each additional Real Property which shall be subject
to a Mortgage delivered pursuant to Section 7.14.
M-T Acquisition means the acquisition by US Borrower or
one or more of the Subsidiaries of the Mettler-Toledo Group
pursuant to the M-T Acquisition Documents.
M-T Acquisition Documents means the documents listed in
Schedule 1.1(d) hereto, in each case as in effect on the Original
Closing Date and as amended and in effect from time to time in
accordance with Section 8.18.
M-T Acquisition Transactions means the M-T Acquisition,
the offering and sale of the Senior Subordinated Notes and the
other transactions contemplated hereby and thereby to be effected
in connection therewith on or about the Original Closing Date.
M-T GmbH means Mettler-Toledo GmbH Greifensee, a Swiss
corporation and a Subsidiary.
M-T Investors means MT Investors Inc., a Delaware
corporation, and its successors.
M-T Leicester means Mettler-Toledo Ltd., Leicester, an
English corporation and a Subsidiary, and its successors.
Multiemployer Plan means a "multiemployer plan," within
the meaning of Section 4001(a)(3) of ERISA, to which a Loan Party
or any ERISA Affiliate makes, is making or is obligated to make
contributions or with respect to which it otherwise may have any
liability.
NAIC means the National Association of Insurance
Commissioners.
New Lender - see subsection 1.7(d).
Net Award has the meaning assigned to that term in each
Mortgage.
Net Cash Proceeds means
(a) with respect to any Asset Sale, the aggregate cash
proceeds (including cash proceeds received by way of
deferred payment of principal pursuant to a note,
installment receivable, liquidation or payment of any
Investment permitted by subsection 8.4(d), reserve for
adjustment or otherwise, but only as and when received)
received by US Borrower or any Subsidiary pursuant to such
Asset Sale, net of (i) the direct and indirect costs
relating to such Asset Sale (including sales commissions and
legal, accounting and investment banking fees), (ii) taxes,
fees, impositions and recording charges paid or payable as a
result thereof (after taking into account any tax credits or
deductions taken in connection with such Asset Sale and any
tax sharing arrangements), (iii) amounts applied to the
repayment of any Indebtedness secured by a Lien on the asset
subject to such Asset Sale (other than the Obligations),
(iv) liabilities of the entity, or relating to the business
or assets, sold, transferred or otherwise disposed of which
are retained by US Borrower or the applicable Subsidiary,
(v) amounts required to be paid to any Person (other than US
Borrower or any Subsidiary) owning a beneficial interest in
the assets subject to the Asset Sale and (vi) appropriate
amounts to be provided by US Borrower or any Subsidiary, as
the case may be, as a reserve required in accordance with
GAAP against any liabilities associated with such Asset Sale
and retained by the US Borrower or any Subsidiary, as the
case may be, after such Asset Sale (but upon reversal of
such reserve, any amount so reserved shall thereupon be Net
Cash Proceeds);
(b) with respect to any issuance of equity securities
or Indebtedness, the aggregate cash proceeds (including cash
proceeds received by way of deferred payment of principal
pursuant to a note, installment receivable, reserve for
adjustment or otherwise, but only as and when received)
received by Holding or any of its Subsidiaries pursuant to
such issuance, net of the direct costs relating to such
issuance (including sales and underwriter's commissions and
legal, accounting and investment banking fees); and
(c) with respect to any Taking, Destruction, or loss
of title to all or a portion of any Mortgaged Real Property,
the Net Award, Net Proceeds or title insurance proceeds (net
of any reasonable costs incurred to recover such title
insurance proceeds), as applicable, resulting therefrom, to
be applied as Net Cash Proceeds under this Agreement
pursuant to the provisions of the Mortgages; provided,
however, such amounts have not been applied to restore or
rebuild the Mortgaged Real Property so Taken or Destroyed as
permitted or required by the applicable Mortgage and this
Agreement.
If Holding or any of its Subsidiaries receives Net Cash
Proceeds in a currency other than U.S. Dollars, the Dollar
Equivalent amount thereof shall be determined as of the earlier
of (i) the date on which such Net Cash Proceeds are required to
be applied to prepayments under Section 2.7 and (ii) the date on
which such Net Cash Proceeds are converted into the currency in
which any such prepayment will be required.
Net Proceeds has the meaning assigned to that term in
each Mortgage.
Net Tangible Assets means, at any time, the aggregate
amount which, in accordance with GAAP, would be included as total
assets (less intangible assets) on the consolidated balance sheet
of US Borrower and the Subsidiaries at such time, minus the
aggregate amount which, in accordance with GAAP, would be
included as Current Liabilities on the consolidated balance sheet
of US Borrower and the Subsidiaries at such time.
Non-Defaulting Lender means each Lender other than a
Defaulting Lender.
Non-Guarantor Subsidiary means any Subsidiary set forth
on Schedule 1.1(e).
Non-U.S. $ Swing Line Loans means any Swing Line Loan
that is not made in U.S. Dollars.
Notes means the Tranche A-CHF Term Notes, the Tranche A-
UK Term Notes, the Tranche A-US Term Notes, the Tranche B Term
Notes, the Revolving Notes, the Canadian Revolving Notes and the
Swing Line Notes and, if issued, the QFL Notes and Note means any
of them.
Notice of Canadian Borrowing means a notice in
substantially the form of Exhibit A-1.
Notice of Committed Borrowing means a notice in
substantially the form of Exhibit A-2.
Notice of Conversion/Continuation means a notice in
substantially the form of Exhibit B-1 (in the case of a notice
pursuant to Section 2.4) or Exhibit B-2 (in the case of a notice
pursuant to Section 2.4A).
Notional BA Proceeds means, relative to a particular BA
Equivalent Rate Loan, the aggregate face amount of such BA
Equivalent Rate Loan less a discount from the aggregate face
amount of such BA Equivalent Rate Loan calculated in accordance
with normal market practice based on:
(a) the BA Equivalent Rate for the term of such BA
Equivalent Rate Loan; and
(b) the Applicable Margin for such BA Equivalent Rate
Loan.
Obligations means all advances, debts, liabilities,
obligations, guarantees, covenants and duties arising under any
Loan Document, owing by any Loan Party to any Lender, any Agent
or any Indemnified Person, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising.
Officers' Certificate shall mean, as applied to any
corporation, a certificate executed on behalf of such corporation
by its Chairman of the Board (if an officer) or its President or
one of its Vice Presidents and by its Chief Financial Officer or
its Treasurer or, in the case of Foreign Subsidiaries, officers
or persons performing comparable functions. Each Officers'
Certificate with respect to the compliance with a condition
precedent or agreement hereunder shall include (i) a statement
that the signers have read such condition or agreement and any
definitions or other provisions contained in this Agreement
relating thereto, (ii) a statement that, in the opinion of the
signers, they have made or have caused to be made such
examination or investigation as is reasonably necessary to enable
them to express an opinion as to whether or not such condition or
agreement has been complied with, and (iii) a statement as to
whether, in the opinion of the signers, based upon such
examination or investigation, such condition or agreement has
been complied with.
Offshore Currency means at any time Deutschemarks,
French Francs, Japanese Yen, Pounds Sterling, Swiss Francs or any
Agreed Alternative Currency.
Offshore Currency Loan means any LIBOR Rate Loan
denominated in an Offshore Currency.
Offshore U.S. Dollar Loan means any LIBOR Rate Loan
denominated in U.S. Dollars.
Operating Lease Expense means all operating lease
expenses of US Borrower and the Subsidiaries.
Organization Documents means, for any corporation, the
certificate or articles of incorporation or association, the
bylaws, any unanimous shareholder agreement or declaration, any
certificate of determination or instrument relating to the rights
of preferred shareholders of such corporation, any shareholder
rights agreement or voting trust agreement, and all applicable
resolutions of the board of directors (or any committee thereof)
of such corporation and all other documents of a comparable
nature and, for each partnership, its partnership agreement, its
certificate of partnership and all other documents of the nature
previously described as to a corporation.
Original Closing Date means the date on which all
conditions precedent set forth in Section 5.1 were satisfied or
waived by all Lenders (October 15, 1996).
Original Credit Agreement -- see the recitals hereto.
Other Documents means the Ciba Loan Documents, the Ciba
Reimbursement Agreement, the Tax Sharing Agreement, the
Management Services Agreement, the Safeline Seller Notes, and all
other documents, instruments and agreements entered into in
connection with such documents including all appendices, annexes,
schedules, attachments and exhibits to any such document, in each
case as amended and in effect from time to time in accordance
with Section 8.18.
Overnight Rate means, for any Committed Loan (other
than a Swing Line Loan that is made in any Applicable Currency
other than U.S. Dollars or Pounds Sterling) for any day, the rate
of interest per annum at which overnight deposits in the
Applicable Currency, in an amount approximately equal to the
amount with respect to which such rate is being determined, would
be offered for such day by the Administrative Agent's London
Branch to major banks in the London or other applicable offshore
interbank market. The Overnight Rate for any day which is not a
Business Day shall be the Overnight Rate for the preceding
Business Day. The Overnight Rate for any Swing Line Loan made in
any Applicable Currency other than U.S. Dollars or Pounds
Sterling means, for any day, the rate of interest per annum
determined by the Applicable Swing Line Lender.
Participant - see subsection 11.8(d).
Paid Lender - see subsection 1.7(a).
Paid Lender's Payment - see subsection 1.7(a).
Paid Existing Lender - see subsection 1.7(b).
Paid Existing Lender Payment Amount - see
subsection 1.7(b).
Paying Existing Lender - see subsection 1.7(c).
Payment Adjustment - see Section 1.7.
PBGC means the Pension Benefit Guaranty Corporation, or
any Governmental Authority succeeding to any of its principal
functions under ERISA.
Pension Plan means a pension plan (as defined in
Section 3(2) of ERISA) subject to Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Code which
a Loan Party or any ERISA Affiliate sponsors or maintains, or to
which it makes, is making or is obligated to make contributions,
or with respect to which it otherwise may have any liability.
Percentage means, as to any Canadian Lender at any
time, the percentage equivalent (expressed as a decimal, rounded
to the ninth decimal place) at such time of such Canadian
Lender's portion of the Canadian Commitment divided by the amount
of the Canadian Commitment. The initial Percentage of each
Canadian Lender is set forth on Schedule 2.1(c), and each
Canadian Lender's Percentage shall change simultaneously with any
assignment by or to such Canadian Lender pursuant to Section
11.8.
Permitted Liens - see Section 8.1.
Person means an individual, partnership, corporation,
limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture or Governmental
Authority.
Plan means an employee benefit plan (as defined in
Section 3(3) of ERISA) which a Loan Party or any ERISA Affiliate
sponsors or maintains or to which a Loan Party or any ERISA
Affiliate makes, is making or is obligated to make contributions
or with respect to which it otherwise may have any liability, and
includes any Pension Plan.
Pledged Securities means all the Security Agreement
Collateral as defined in each of the Securities Pledge
Agreements.
Pounds Sterling means the lawful money of the United
Kingdom.
Prime Rate means, for any day, the per annum rate of
interest in effect for such day as publicly announced from time
to time by Scotiabank in Toronto, Ontario as its "prime rate."
(The "prime rate" is a rate set by Scotiabank based upon various
factors including Scotiabank's costs and desired return, general
economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above, or
below such announced rate.) Any change in the prime rate
announced by Scotiabank shall take effect at the opening of
business on the day specified in the public announcement of such
change.
Prime Rate Loan means a Canadian Loan that bears
interest based on the Prime Rate.
Prior Liens means Liens which pursuant to the
provisions of any Security Document are or may be superior to the
Liens of such Security Document.
Proceeding means any claim, action, judgment, suit,
hearing, governmental investigation, arbitration (to the extent
binding on US Borrower or any Subsidiary) or proceeding,
including by or before any Governmental Authority.
Pro Rata Share means as to any Lender in respect of any
Facility at any time, the percentage equivalent (expressed as a
decimal, rounded to the ninth decimal place) at such time of (a)
prior to termination of the Commitments in such Facility,
(i) such Lender's Commitment in such Facility divided by (ii) the
combined Commitments of all Lenders in such Facility, or (b)
after termination of the Commitments in such Facility, (i) the
aggregate principal Dollar Equivalent amount of such Lender's
Loans under such Facility, plus (in the case of the Revolving
Facility) (without duplication) the participation of such Lender
in the aggregate Effective Amount of all L/C Obligations and the
Dollar Equivalent amount of all Swing Line Loans, divided by
(ii) the aggregate Dollar Equivalent principal amount of all
Loans under such Facility, plus (in the case of the Revolving
Facility) (without duplication) the Effective Amount of all L/C
Obligations.
QFL A-UK Note - see subsection 2.23(a).
QFL A-US Note - see subsection 2.23(a).
QFL B Note - see subsection 2.23(a).
QFL Notes - see subsection 2.23(a).
Qualified Public Offering shall mean an Initial Public
Offering resulting in gross cash proceeds to M-T Investors or
Holding of at least U.S. $75.0 million the proceeds of which have
been contributed to US Borrower.
Qualified Subsidiary Guarantor means any Subsidiary
Guarantor the Guarantee of which does not on its face exclude any
Obligations of (i) with respect to any Domestic Subsidiary (other
than UK Borrower Guarantor), any Loan Party other than UK
Borrower, (ii) with respect to UK Borrower Guarantor, UK Borrower
and (iii) with respect to any Foreign Subsidiary, CH Borrower,
not taking into account any restrictions resulting from the
amount of capital of such Subsidiary Guarantor available for
distribution.
Quarterly Date means each March 31, June 30,
September 30 and December 31 of each year, commencing with and
including September 30, 1997 through and including December 31,
2004.
Ratification Agreement means a Ratification Agreement
substantially in the form of Exhibit O entered into on the
Amendment and Restatement Date.
Real Property means all right, title and interest of
the Borrowers or any of their respective Subsidiaries (including,
without limitation, any leasehold estate) in and to a parcel of
real property owned or operated by either Borrower or any of its
respective Subsidiaries together with, in each case, all
improvements and appurtenant fixtures, equipment, personal
property, easements and other property and rights incidental to
the ownership, lease or operation thereof.
Reimbursement Obligations shall mean, at any time, the
obligations of the Revolving Borrowers and the Subsidiary Swing
Line Borrowers then outstanding, or that may thereafter arise in
respect of all Letters of Credit then outstanding, to reimburse
amounts paid by the applicable L/C Lender in respect of any
drawings under a Letter of Credit issued for the account of such
Revolving Borrower or Subsidiary Swing Line Borrower, as the case
may be.
Related Business means the businesses of US Borrower
and the Subsidiaries as conducted on the Original Closing Date,
unless the Safeline Acquisition is consummated, and, then, the
Safeline Closing Date, and, in each case, any businesses related,
ancillary or complementary to such businesses.
Replacement Lender - see Section 4.8.
Reportable Event means any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder with
respect to which a Loan Party or any ERISA Affiliate would be
subject to the notice requirements of Section 4043(b), other than
any such event for which the 30-day notice requirement under
ERISA has been waived in regulations issued by the PBGC.
Required Canadian Lenders means (a) at any time prior
to the Canadian Termination Date, Canadian Lenders which are Non-
Defaulting Lenders then holding at least a majority of the
aggregate Canadian Commitments of all Canadian Lenders which are
Non-Defaulting Lenders, and (b) otherwise, Canadian Lenders which
are Non-Defaulting Lenders then holding at least a majority of
the then outstanding aggregate principal amount of Canadian Loans
of all Canadian Lenders which are Non-Defaulting Lenders.
Required Lenders means (a) at any time prior to the
Termination Date, Non-Defaulting Lenders then holding at least a
majority of the sum of (i) the then aggregate unused amount of
the Commitments of the Non-Defaulting Lenders, plus (ii) the then
aggregate unpaid Dollar Equivalent principal amount of the Loans
of the Non-Defaulting Lenders, plus (iii) (without duplication)
the then aggregate Effective Amount of the L/C Obligations of the
Non-Defaulting Lenders, and (b) otherwise, Non-Defaulting Lenders
then holding at least a majority of the sum of (i) the then
aggregate unpaid Dollar Equivalent principal amount of the Loans
of the Non-Defaulting Lenders, plus (ii) (without duplication)
the then aggregate Effective Amount of the L/C Obligations of the
Non-Defaulting Lenders (it being understood that, for purposes of
clauses (a) and (b), the principal amount of each Revolving
Facility Lender's Loans shall be deemed to be (i) in the case of
any Revolving Facility Lender other than any Applicable Swing
Line Lender, increased by such Revolving Facility Lender's
participations in the Swing Line Loans of such Applicable Swing
Line Lender pursuant to Section 2.19 (whether funded or
unfunded), except to the extent such Revolving Facility Lender
shall not have funded such participations as required pursuant to
Section 2.19, and (ii) in the case of any Applicable Swing Line
Lender, decreased by the amount of the participations of all
other Revolving Facility Lenders in its Swing Line Loans (whether
funded or unfunded), except to the extent any such other
Revolving Facility Lender shall not have funded such
participations as required pursuant to Section 2.19. For
purposes of determining whether the Required Lenders have
approved any amendment, waiver or consent or taken any other
action hereunder, the Dollar Equivalent amount of all Offshore
Currency Loans shall be calculated on the date immediately
preceding the date such amendment, waiver or consent is to become
effective or such action is to be taken.
Required Revolving Facility Lenders means (a) at any
time prior to the Termination Date, Revolving Facility Lenders
which are Non-Defaulting Lenders then holding at least a majority
of the sum of (i) the then aggregate Available Revolving Facility
Commitments of all Revolving Facility Lenders which are Non-
Defaulting Lenders, plus (ii) the then Aggregate Outstanding
Revolving Credit of all Revolving Facility Lenders which are Non-
Defaulting Lenders, and (b) otherwise, Revolving Facility Lenders
which are Non-Defaulting Lenders then holding at least a majority
of the then Aggregate Outstanding Revolving Credit of all
Revolving Facility Lenders which are Non-Defaulting Lenders (it
being understood that, for purposes of clauses (a) and (b), the
principal amount of each Revolving Facility Lender's Revolving
Facility Loans shall be deemed to be (i) in the case of any
Revolving Facility Lender other than any Applicable Swing Line
Lender, increased by such Revolving Facility Lender's
participations in the Swing Line Loans pursuant to Section 2.19
(whether funded or unfunded), except to the extent such Revolving
Facility Lender shall not have funded such participations as
required pursuant to Section 2.19, and (ii) in the case of any
Applicable Swing Line Lender, decreased by the amount of the
participations of all other Revolving Facility Lenders in its
Swing Line Loans (whether funded or unfunded), except to the
extent any such other Revolving Facility Lender shall not have
funded such participations as required pursuant to Section 2.19.
For purposes of determining whether the Required Revolving
Facility Lenders have approved any amendment, waiver or consent
or taken any other action hereunder, the Dollar Equivalent amount
of all Offshore Currency Loans shall be calculated on the date
immediately preceding the date such amendment, waiver or consent
is to become effective or such action is to be taken.
Requirement of Law means, as to any Person, any law
(statutory or common), treaty, rule or regulation or
determination of an arbitrator or of a Governmental Authority, in
each case applicable to or binding upon the Person or any of its
property or to which the Person or any of its property is
subject.
Reset Date - see the definition of Applicable Margin.
Responsible Officer means the chief executive officer,
the chief financial officer, the president or any vice-president
of the Applicable Borrower, or any other officer having
substantially the same authority and responsibility; or, with
respect to compliance with financial covenants, the chief
financial officer, the treasurer or controller of the Applicable
Borrower, or any other officer having substantially the same
authority and responsibility.
Restoration has the meaning assigned to that term in
each Mortgage.
Restricted Payment - see Section 8.13.
Revolving Borrowers means the Borrowers and UK
Borrower.
Revolving Facility means the revolving multicurrency
credit facility in an aggregate principal amount equal to the
Dollar Equivalent of U.S. $151.0 million with a letter of credit
subfacility and a swing line subfacility provided hereunder as
set forth in subsection 2.1(d) and Sections 2.16 and 3.1.
Revolving Facility Commitment - see subsection 2.1(d).
Revolving Facility Lender means a lender having a
Revolving Facility Commitment or a Swing Line Commitment or
holding a Revolving Facility Loan or a participation in an L/C
Advance.
Revolving Facility Loan means an extension of credit by
a Revolving Facility Lender to a Revolving Borrower or a
Subsidiary Swing Line Borrower under the Revolving Facility
pursuant to Article II or Article III, which may be a Revolving
Loan, a Swing Line Loan or an L/C Advance.
Revolving Loan - see subsection 2.1(d).
Revolving Loan Maturity Date means December 31, 2002.
Revolving Note and Revolving Notes - see Section 2.2.
Safeline Acquisition means the acquisition by US
Borrower through UK Borrower and Canadian Borrower of 100% of the
issued and outstanding share capital of Safeline Limited pursuant
to the Safeline Acquisition Documents.
Safeline Acquisition Documents means the documents
listed in Schedule 1.1(f), in each case as in effect on the
Safeline Closing Date as amended and in effect from time to time
in accordance with Section 8.18.
Safeline Acquisition Transactions means the Safeline
Acquisition, the issuance of the Safeline Seller Notes and each
other transaction contemplated hereby and thereby to be effected
in connection therewith on, about or after the Safeline Closing
Date.
Safeline Closing Date means the date on which all
conditions precedent set forth in Section 5.1A are satisfied or
waived by all Lenders.
Safeline Contingent Payment means the contingent
payments set forth in Section 1.2(c) of the acquisition agreement
relating to the Safeline Acquisition.
Safeline Limited means Safeline Limited, an English
corporation, and its successors.
Safeline Loan Parties means Canadian Borrower, UK
Borrower, the UK Borrower Guarantor and each other Subsidiary of
UK Borrower which becomes a party to a Loan Document in
connection with the Safeline Acquisition.
Safeline Seller Notes means the notes of UK Borrower in
an aggregate principal amount of 13.7 million Pounds Sterling
issued to the sellers in the Safeline Acquisition, as amended and
in effect from time to time in accordance with Section 8.18.
Same Day Funds means (i) with respect to disbursements
and payments in U.S. Dollars, immediately available funds, and
(ii) with respect to disbursements and payments in Canadian
Dollars or an Offshore Currency, same day or other funds as may
be determined by the Applicable Agent, as the case may be (or,
with respect to payments made by any Subsidiary Swing Line
Borrower, the Swing Line Lender who makes Swing Line Loans to
such Subsidiary Swing Line Borrower) to be customary in the place
of disbursement or payment for the settlement of international
banking transactions in Canadian Dollars or the relevant Offshore
Currency.
Scotiabank - see the introduction to this Agreement.
SEC means the United States Securities and Exchange
Commission, or any Governmental Authority succeeding to any of
its principal functions.
Section 4.1(f)(i) Certificate - see subsection
4.1(f)(i).
Section 4.1(f)(v) Certificate - see subsection
4.1(f)(v).
Secured Parties has the meaning specified in the
Security Documents.
Securities Pledge Agreements means the US Borrower
Securities Pledge Agreement, the Holding Securities Pledge
Agreement, the Domestic Subsidiary Securities Pledge Agreement,
the Foreign Subsidiary Securities Pledge Agreement, and any other
securities pledge agreements delivered pursuant to Section
5.1A(i), Section 7.14, Section 7.15, or Section 7.23.
Security Agreement means a security agreement
substantially in the form of Exhibit D entered into and delivered
by each of the Borrowers and certain of the Subsidiary
Guarantors, and any other security agreement delivered pursuant
to Section 7.14, Section 7.15, or Section 7.23.
Security Agreement Collateral means all "Collateral" as
defined in the Security Agreement.
Security Documents means each of the Securities Pledge
Agreements, Security Agreements, the Mortgages and any other
documents utilized to pledge as Collateral for the Obligations
any other property or assets of whatever kind or nature.
Senior Subordinated Note Documents shall mean and
include each of the documents and other agreements entered into
(including, without limitation, the Senior Subordinated Note
Indenture) relating to the issuance by US Borrower of the Senior
Subordinated Notes, as in effect on the Original Closing Date and
as the same may be entered into, modified, supplemented or
amended from time to time pursuant to the terms hereof and
thereof.
Senior Subordinated Note Indenture shall mean the
Indenture, dated as of October 15, 1996, entered into by and
among US Borrower, Holding and United States Trust Company of New
York, as trustee thereunder, as in effect on the Original Closing
Date and as amended and in effect from time to time in accordance
with Section 8.18.
Senior Subordinated Notes means the U.S. $135.0 million
9-3/4% senior subordinated notes due 2006 of US Borrower issued
under the Senior Subordinated Note Indenture.
S&P means Standard & Poor's Corporation.
Specified Subsidiary means any Non-Guarantor Subsidiary
or any Subsidiary set forth on Schedule 7.22.
Spot Rate means with respect to any Applicable
Currency, at any date of determination thereof, the spot rate of
exchange with respect to U.S. Dollars for such date in London
that appears on the display page applicable to such Applicable
Currency on the Telerate System Incorporated Service (or such
other page as may replace such page on such service for the
purpose of displaying the spot rate of exchange in London);
provided, however, that if there shall at any time no longer
exist such a page or a relevant spot rate is not shown on such
service, the spot rate of exchange shall be determined by
reference to another similar rate publishing service selected by
the Administrative Agent and if no such similar rate publishing
service is available by reference to the published rate of the
Administrative Agent in effect at such date for similar
commercial transactions.
State, Local and Foreign Real Property Disclosure
Requirements means any federal, state or local laws requiring
notification of the buyer of real property, or notification,
registration, or filing to or with any state or local agency,
prior to the sale of any real property or transfer of control of
an establishment, of the actual or threatened presence or release
into the environment, or the use, disposal, or handling of
Hazardous Materials on, at, under, or near the real property to
be sold or the establishment for which control is to be
transferred.
Subsidiary of a Person means any corporation,
association, partnership, limited liability company, joint
venture, business trust or other business entity of which more
than 50% of the voting stock, membership interests or other
equity interests is owned or controlled directly or indirectly by
such Person, or one or more of the Subsidiaries of such Person,
or a combination thereof. Notwithstanding the foregoing, any
Joint Venture which is not majority owned by, but is controlled
by, US Borrower or a Subsidiary and the financial results of
which are included in the consolidated financial statements of US
Borrower shall be deemed to be a Subsidiary of US Borrower.
Unless the context otherwise clearly requires, references herein
to a "Subsidiary" refer to a Subsidiary of US Borrower. The term
Subsidiary shall also include any Person to become a Subsidiary
pursuant to the M-T Acquisition or the Safeline Acquisition.
Subsidiary Currency means, as to any Subsidiary Swing
Line Borrower, the currency (or currencies with respect to M-T
GmbH) in which such Subsidiary Swing Line Borrower may borrow
Swing Line Loans pursuant to Section 2.16.
Subsidiary Currency Equivalent means at any time with
respect to any Subsidiary Swing Line Borrower, (a) with respect
to all Subsidiary Swing Line Borrowers other than M-T GmbH, as to
any amount denominated in the Subsidiary Currency, the amount
thereof at such time, and (b) with respect only to M-T GmbH, as
to any amount denominated in any Subsidiary Currency, the CHF
Equivalent thereof.
Subsidiary Guarantees means each Domestic Subsidiary
Guarantee and each Foreign Subsidiary Guarantee.
Subsidiary Guarantors means the Domestic Subsidiary
Guarantors and the Foreign Guarantors.
Subsidiary L/C Borrowing means, as to any Subsidiary
Swing Line Borrower, an extension of credit resulting from a
drawing under any Letter of Credit issued for the account of such
Subsidiary Swing Line Borrower which shall not have been
reimbursed on the date when made nor converted into a Borrowing
of Revolving Facility Loans under subsection 3.3(b).
Subsidiary L/C Commitment means the commitment of each
L/C Lender which is a Swing Line Lender to Issue Letters of
Credit from time to time under Article III to the Subsidiary
Swing Line Borrower to whom it is to make Subsidiary Swing Line
Loans, in an aggregate amount not to exceed the Subsidiary Swing
Line Borrower Sublimit of such Subsidiary Swing Line Borrower; it
being understood that the Subsidiary L/C Commitment is part of
the Swing Line Commitment of such Subsidiary Swing Line Lender
rather than a separate, independent commitment.
Subsidiary L/C Effective Amount means with respect to
any outstanding Subsidiary L/C Obligations of any Subsidiary
Swing Line Borrower on any date, the aggregate Subsidiary
Currency Equivalent of such Subsidiary L/C Obligations on such
date after giving effect to any Issuances of Letters of Credit
0occurring on such date for the account of such Subsidiary Swing
Line Borrower and any other changes in the aggregate Subsidiary
Currency Equivalent amount of the Subsidiary L/C Obligations of
such Subsidiary Swing Line Borrower as of such date, including as
a result of any reimbursement of outstanding unpaid drawings
under any Letter of Credit of such Subsidiary Swing Line Borrower
or any reduction in the maximum amount available for drawing
under any Letter of Credit of such Subsidiary Swing Line Borrower
taking effect on such date.
Subsidiary L/C Obligations means at any time, for any
Subsidiary Swing Line Borrower, the sum of (a) the aggregate
undrawn Subsidiary Currency Equivalent amount of all Letters of
Credit Issued for the account of such Subsidiary Swing Line
Borrower then outstanding, plus (b) the Subsidiary Currency
Equivalent amount of all unreimbursed drawings under all Letters
of Credit Issued for the account of such Subsidiary Swing Line
Borrower, including all outstanding Subsidiary L/C Borrowings of
such Subsidiary Swing Line Borrower.
Subsidiary Swing Line Borrowers means each of the
following Subsidiaries: the German Subsidiary; Mettler-Toledo
S.A., Veroflay, a French corporation; Mettler-Toledo K.K.,
Takarazuka, a Japanese corporation; M-T GmbH; each of the UK
Swing Line Borrowers; and each of their respective successors.
Subsidiary Swing Line Borrower Sublimit means the
amounts set forth opposite such Subsidiary's (or, in the case of
the UK Swing Line Borrowers, their collective) name in the table
below (it being understood that for the UK Swing Line Borrowers
the amount is an aggregate sublimit for all of them together), as
adjusted pursuant to subsection 2.6(a):
<TABLE>
<CAPTION>
Name of Subsidiary(ies) Units of Applicable Currency
- ------------------------------------ --------------------------------------
<S> <C>
German Subsidiary DM 18.0 million
Mettler-Toledo S.A., Veroflay FF 11.0 million
Mettler-Toledo K.K., Takarazuka 175.0 million Japanese Yen
M-T GmbH CHF 13.0 million
UK Swing Line Borrowers 5.0 million Pounds Sterling
</TABLE>
Substitute Lender - see Section 2.22.
Supermajority Lenders means Non-Defaulting Lenders then
holding at least 66-2/3% of the sum of (i) the then aggregate
unused amount of the Commitments of the Non-Defaulting Lenders,
plus (ii) the then aggregate unpaid Dollar Equivalent principal
amount of the Loans of the Non-Defaulting Lenders, plus (iii)
(without duplication) the then aggregate Effective Amount of the
L/C Obligations of the Non-Defaulting Lenders. For purposes of
determining whether the Supermajority Lenders have approved any
amendment, waiver or consent or taken any other action hereunder,
the Dollar Equivalent amount of all Canadian Loans and all
Offshore Currency Loans shall be calculated on the date
immediately preceding the date such amendment, waiver or consent
is to become effective or such action is to be taken.
Surety Instruments means all letters of credit
(including standby and commercial), banker's acceptances, bank
guaranties, surety bonds and similar instruments.
Survey means a survey of any Mortgaged Real Property
(and all improvements thereon): (i) prepared by a surveyor or
engineer licensed to perform surveys in the state, province or
country where such Mortgaged Real Property is located, (ii) dated
(or redated) not earlier than six months prior to the date of
delivery thereof unless there shall have occurred within the six
months prior to such date of delivery any exterior construction
on the site of such Mortgaged Real Property, in which event such
survey shall be dated (or redated) after the completion of such
construction or if such construction shall not have been
completed as of such date of delivery, not earlier than 20 days
prior to such date of delivery, (iii) certified by the surveyor
(in a manner reasonably acceptable to the Administrative Agent)
to the Administrative Agent and the Title Company and (iv)
complying in all material respects with the minimum detail
requirements of the American Land Title Association as such
requirements are in effect on the date of preparation of such
survey; provided, however, that such survey is in a form
reasonably acceptable to the Title Company.
Swap Contract means any agreement (including any master
agreement and any agreement, whether or not in writing, relating
to any single transaction) that is an interest rate swap
agreement, basis swap, forward rate agreement, commodity swap,
commodity option, equity or equity index swap or option, bond
option, interest rate option, foreign exchange agreement, rate
cap, collar or floor agreement, currency swap agreement, cross-
currency rate swap agreement, swaption, currency option or any
other, similar agreement (including any option to enter into any
of the foregoing).
Swing Line Borrowers means US Borrower and the
Subsidiary Swing Line Borrowers.
Swing Line Commitment means the commitment of each
Swing Line Lender to make Swing Line Loans hereunder in an
aggregate Dollar Equivalent amount not to exceed on any date on a
combined basis for all the Swing Line Lenders an amount equal to
the lesser of U.S. $40.0 million and the amount of the combined
Commitments of all Swing Line Lenders, it being understood that
the Swing Line Commitment is a part of the combined Revolving
Facility Commitments of all Swing Line Lenders, rather than a
separate independent commitment.
Swing Line Lender means each of Credit Suisse First
Boston (with respect solely to Swing Line Loans to be made to M-T
GmbH), Scotiabank (with respect solely to Swing Line Loans to be
made in U.S. Dollars to US Borrower and Pounds Sterling to the UK
Swing Line Borrowers), Commerzbank AG (with respect solely to
Swing Line Loans to be made to the German Subsidiary), and such
other Lender having a Revolving Facility Commitment as selected
by each Subsidiary Swing Line Borrower (or, with respect to the
UK Swing Line Borrowers, by them collectively) and agreed to by
such Lender (in each case solely with respect to the Offshore
Currency in which such Lender agrees to make Swing Line Loans
available to such Subsidiary Swing Line Borrower), in each case
in its capacity as a swing line lender hereunder, and Swing Line
Lenders means all of them.
Swing Line Loan - see Section 2.16.
Swing Line Loan Calculation Date - see subsection 2.7
(j).
Swing Line Note and Swing Line Notes - see Section 2.2.
Swiss Francs and CHF each mean lawful money of
Switzerland.
Taking has the meaning assigned to that term in each
Mortgage.
Tax Sharing Agreement means the Tax Sharing Agreement
dated as of October 15, 1996 between M-T Investors and US
Borrower, as amended and in effect from time to time in
accordance with Section 8.18.
Taxes means any and all present or future income,
stamp, documentary, excise, property or other taxes, levies,
imposts, duties, deductions, charges, fees or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by
any Governmental Authority, and all liabilities with respect
thereto, including any present or future Taxes or similar levies
which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect
to, this Agreement or any other Loan Document.
Termination Date means the earlier to occur of (i) the
date 30 Business Days prior to the Revolving Loan Maturity Date
and (ii) the date on which the Revolving Facility Commitments are
terminated or reduced to zero pursuant to Section 2.6.
Term Loan Commitments means the Tranche A-CHF Facility
Commitments, Tranche A-UK Facility Commitments, the Tranche A-US
Facility Commitments, and the Tranche B Commitments of all the
Lenders having such commitments.
Term Loan Facilities means the Tranche A-CHF Term Loan
Facility, the Tranche A-UK Term Loan Facility, Tranche A-US Term
Loan Facility, and the Tranche B Term Loan Facility.
Term Loans means the loans made under the Term Loan
Facilities.
Title Company shall mean First American Title Insurance
Company or such other title insurance or abstract company as
shall be designated by the Required Lenders.
Tranche A-CHF Facility Commitment means a Lender's
commitment to make a Tranche A-CHF Term Loan hereunder.
Tranche A-CHF Lender means a Lender having a Tranche A-
CHF Term Loan.
Tranche A-CHF Term Loan - see subsection 2.1(a).
Tranche A-CHF Term Loan Facility means the term loan
facility in an aggregate principal amount of CHF 171.5 million.
Tranche A-CHF Term Loan Maturity Date means
December 31, 2002.
Tranche A-CHF Term Note and Tranche A-CHF Term Notes -
see Section 2.2.
Tranche A Term Loans means the Tranche A-CHF Term
Loans, the Tranche A-UK Term Loans and the Tranche A-US Term
Loans, collectively.
Tranche A-UK Facility Commitment means a Lender's
commitment to make a Tranche A-UK Term Loan hereunder.
Tranche A-UK Lender means a Lender having a Tranche A-
UK Facility Commitment.
Tranche A-UK Term Loan - see subsection 2.1(a).
Tranche A-UK Term Loan Facility means the term loan
facility in an aggregate principal amount of 26.7 million Pounds
Sterling.
Tranche A-UK Term Loan Maturity Date means December 31,
2002.
Tranche A-UK Term Note and Tranche A-UK Term Notes -
see Section 2.2.
Tranche A-US Facility Commitment means a Lender's
commitment to make a Tranche A-US Term Loan hereunder.
Tranche A-US Lender means a Lender having a Tranche A-
US Facility Commitment.
Tranche A-US Term Loan - see subsection 2.1(a).
Tranche A-US Term Loan Facility means the term loan
facility in an aggregate principal amount of U.S.$33.8 million.
Tranche A-US Term Loan Maturity Date means December 31,
2002.
Tranche A-US Term Note and Tranche A-US Term Notes -
see Section 2.2.
Tranche B Facility Commitment means a Lender's
commitment to make a Tranche B Term Loan hereunder.
Tranche B Lender means a Lender having a Tranche B
Facility Commitment.
Tranche B Term Loan - see subsection 2.1(b).
Tranche B Term Loan Facility means the term loan
facility in an aggregate principal amount of U.S. $100.0 million.
Tranche B Term Loan Maturity Date means December 31,
2004.
Tranche B Term Note and Tranche B Term Notes - see
Section 2.2.
Transaction Documents means the M-T Acquisition
Documents, the Safeline Acquisition Documents, the Senior
Subordinated Note Documents, the Safeline Seller Notes, the
documents and instruments entered into in connection with the
Equity Issuance and each other document (other than the Loan
Documents) relating to the Transactions including all appendices,
annexes, schedules, attachments and exhibits to any such
document.
Transactions means the M-T Acquisition Transactions and
the Safeline Acquisition Transactions.
Treaty Lender - see the definition of UK Qualifying
Lender.
Type of Loan means (a) in the case of Committed Loans
(other than Canadian Loans), an ABR Loan or a LIBOR Rate Loan,
and (b) in the case of Canadian Loans, a Prime Rate Loan or a BA
Equivalent Rate Loan.
UCC means the Uniform Commercial Code as in effect in
the applicable jurisdiction.
UK Borrower means Safeline Holding Company, an
unlimited liability company organized under the laws of the
United Kingdom, and its successors.
UK Borrower Guarantor means Safeline Inc., a Florida
corporation, and each of its successors which is also a Domestic
Subsidiary. The term UK Borrower Guarantor also includes any
Domestic Subsidiary of UK Borrower which becomes a Guarantor
pursuant to Section 7.20, and each of any such Subsidiary's
successors which is also a Domestic Subsidiary.
UK Borrower Sublimit -- see subsection 2.1(d)
UK Borrower Swing Line L/C means any Letter of Credit
Issued for the account of UK Borrower that UK Borrower has
notified the Administrative Agent in writing is to be counted
against the Subsidiary Swing Line Borrower Sublimit of the UK
Swing Line Borrowers.
UK Certificate - see subsection 4.1(f)(viii).
UK Lender - see subsection 4.1(d)(ii).
UK Qualifying Lender means a UK Lender which either:
(a)(i) is a bank within the meaning of Section 840A of
the Income and Corporation Taxes Act 1988;
(ii) will be beneficially entitled to any interest
to be paid to it on any advance to UK Borrower
under this Agreement; and (iii) is within the
charge to United Kingdom corporation tax as
respects such interest; provided, however, that, if
Section 349 or Section 840A of the Income and
Corporation Taxes Act 1988 is repealed, modified,
extended or re-enacted, the Administrative Agent
may at any time and from time to time (after
consultation with UK Borrower) amend this paragraph
(a) in such manner as it may reasonably determine
to put, so far as practicable, UK Borrower and UK
Lenders in the same position as they would
otherwise have been in; and provided, further, that
an Assignee will not be a UK Qualifying Lender by
reason of this paragraph (a) unless the assignor
Lender was also a UK Qualifying Lender by reason of
this paragraph (a); or
(b)is "resident" (as such term is defined in the
appropriate double taxation treaty) in a country
with which the United Kingdom has a double taxation
treaty generally giving residents of that country
complete exemption from United Kingdom Tax on
interest (and which does not carry on business in
the United Kingdom through a permanent
establishment with which the indebtedness under
this Agreement in respect of which the interest is
paid is effectively connected) (a "Treaty Lender")
and for this purpose "double taxation treaty" means
any convention or agreement between the government
of the United Kingdom and any other government for
the avoidance of double taxation and the prevention
of fiscal evasion with respect to taxes on income
and capital gains.
UK Swing Line Borrowers means M-T Leicester, Safeline
Limited, and UK Borrower.
Unfunded Pension Liability means the excess of a
Pension Plan's benefit liabilities under Section 4001(a)(16) of
ERISA over the fair market value of such Plan's assets (including
all accrued contributions required to be made to the Plan in
respect of the applicable plan year), determined in accordance
with the actuarial assumptions used for funding such Plan
pursuant to Section 412 of the Code for the applicable plan year.
Unmatured Event of Default means any event or
circumstance which, with the giving of notice, the lapse of time,
or both, would (if not cured or otherwise remedied during such
time) constitute an Event of Default.
US Borrower - see the introduction to this Agreement.
US Borrower Guarantee means the guarantee agreement
substantially in the form of Exhibit E-5 entered into and
delivered by US Borrower, as amended and restated on the
Amendment and Restatement Date.
US Borrower Securities Pledge Agreement means a
securities pledge agreement substantially in the form of Exhibit
J-4 entered into and delivered by US Borrower.
US Borrower Sublimit means U.S. $8.0 million, as
adjusted pursuant to subsection 2.6(a).
U.S. Dollars and U.S. $ each mean lawful money of the
United States.
U.S. Federal Funds Rate means, for any day, the rate
set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the U.S.
Federal Reserve Bank of New York (including any such successor,
"H.15(519)") on the preceding Business Day opposite the caption
"U.S. Federal Funds (Effective)"; or, if for any relevant day
such rate is not so published on any such preceding Business Day,
the rate for such day will be the arithmetic mean as determined
by the Administrative Agent of the rates for the last transaction
in overnight U.S. Federal funds arranged prior to 9:00 a.m. (New
York City time) on that day by each of three leading brokers of
U.S. Federal funds transactions in New York City selected by the
Administrative Agent.
Wholly-Owned Subsidiary means, for any Person, any
corporation in which (other than directors' qualifying shares or
other shareholdings required by law) 100% of the capital stock of
each class having ordinary voting power, and 100% of the capital
stock of each other class, at the time as of which any
determination is being made, is owned, beneficially and of
record, by such Person, or by one or more of the other Wholly-
Owned Subsidiaries, or a combination thereof.
1.2. Other Interpretive Provisions. (a) The meanings
of defined terms are equally applicable to the singular and
plural forms of the defined terms.
(b) The words "hereof," "herein," "hereunder" and
similar words refer to this Agreement as a whole and not to any
particular provision of this Agreement; and subsection, Section,
Article, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(c)(i) The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures,
notices and other writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from" means
"from and including"; the words "to" and "until" each mean "to
but excluding," and the word "through" means "to and including."
(d) Unless otherwise expressly provided herein,
(i) references to agreements (including this Agreement) and other
contractual instruments shall be deemed to include all subsequent
amendments and other modifications thereto, but only to the
extent such amendments and other modifications are not prohibited
by the terms of any Loan Document, and (ii) references to any
statute or regulation are to be construed as including all
statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are
for convenience of reference only and shall not affect the
interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use
several different limitations, tests or measurements to regulate
the same or similar matters. All such limitations, tests and
measurements are cumulative and shall each be performed in
accordance with their terms.
(g) This Agreement and the other Loan Documents are
the result of negotiations among and have been reviewed by
counsel to the Agents, the Borrowers and the other parties, and
are the products of all parties. Accordingly, they shall not be
construed against the Lenders or any Agent merely because of an
Agent's or Lenders' involvement in their preparation.
1.3. Accounting Principles. (a) Unless the context
otherwise clearly requires, all accounting terms not expressly
defined herein shall be construed, and all financial computations
required under this Agreement shall be made, in accordance with
GAAP, consistently applied; provided, however, that if the
Borrowers notify the Arranger that the Borrowers wish to amend
any covenant in Article VIII to eliminate the effect of any
change in GAAP on the operation of such covenant (or if the
Arranger notifies the Borrowers that the Required Lenders wish to
amend Article VIII for such purpose), then the Borrowers'
compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Borrowers and
the Required Lenders.
(b) References herein to "fiscal year" and "fiscal
quarter" refer to such fiscal periods of US Borrower.
1.4. Currency Equivalents Generally. For all purposes
of any Loan or other Credit Extension pursuant to this Agreement
(but not for purposes of the preparation of any financial
statements delivered pursuant hereto), the equivalent in any
Offshore Currency or other currency (including Canadian Dollars)
of an amount in U.S. Dollars, and the equivalent in U.S. Dollars
of an amount in any Offshore Currency or other currency
(including Canadian Dollars), shall be determined at the Spot
Rate. For purposes of determining compliance with any
restriction limited to a Dollar Equivalent amount in this
Agreement (other than to the extent relating to any Loan or other
Credit Extension under this Agreement), the Dollar Equivalent
amount of transactions occurring prior to the date of
determination shall be calculated based on the Spot Rate on the
date of determination; provided, however, that if such Dollar
Equivalent amount shall be exceeded, such restriction shall
nonetheless be deemed not violated if such Dollar Equivalent
amount of such transactions was calculated based on the relevant
currency exchange rate in effect on the date of each such
transaction.
1.5. Principle of Deemed Reinvestment. Except to the
extent permitted under applicable law, all calculations of
interest and fees hereunder are to be made on the basis of the
nominal interest rate set forth herein and not using the
effective rate method of calculation or on any basis which gives
effect to the principle of deemed reinvestment. For the purposes
of disclosure under the Interest Act (Canada), if and to the
extent applicable, whenever interest is to be paid hereunder and
such interest is to be calculated on the basis of a period of
less than a calendar year, the yearly rate of interest to which
the rate determined pursuant to such calculation is equivalent is
the rate so determined multiplied by the actual number of days in
the calendar year in which the same is to be ascertained and
divided by the number of days in such period.
1.6 Effect on Original Credit Agreement and Other Loan
Documents. Upon the execution and delivery by the parties hereto
of this Agreement and the satisfaction (or waiver) of the
conditions set forth in Section 5.3, (i) this Agreement shall be
deemed to amend, restate and supersede the Original Credit
Agreement, except that the grants of security interests,
mortgages and Liens under and pursuant to the Loan Documents
shall continue unaltered and each other Loan Document shall
continue in full force and effect in accordance with its terms
and the parties hereto hereby ratify and confirm the terms
thereof as being in full force and effect and unaltered by this
Agreement, (ii) all Obligations under the Original Credit
Agreement and the other Loan Documents shall continue to be
outstanding except as expressly modified by this Agreement and
shall be governed in all respects by this Agreement and the other
Loan Documents, it being agreed and understood that this
Agreement does not constitute a novation, satisfaction, payment
or reborrowing of any Obligation under the Original Credit
Agreement or any other Loan Document except as expressly modified
by the Agreement, nor does it operate as a waiver of any right,
power or remedy of any Lender under any Loan Document (other than
the Original Credit Agreement), and (iii) all references to the
Original Credit Agreement in any Loan Document or other document
or instrument delivered in connection therewith shall be deemed
to refer to this Agreement and the provisions hereof.
1.7 Payments on Amendment and Restatement Date;
Assignments on Amendment and Restatement Date; etc. Each of the
Lenders and each of the Agents consents and agrees to each of the
following transactions, all of which shall occur simultaneously
with the effectiveness of the transactions to occur on the
Amendment and Restatement Date:
(a) Each of the Lenders listed in Schedule 1.7(a)
(each, a "Paid Lender") shall have all Obligations owing to
it under the Loan Documents (whether or not due) paid by the
Credit Agreement Loan Party responsible therefor (the "Paid
Lender's Payment"). The Paid Lender's Payment shall be
paid in each Applicable Currency as set forth opposite such
Paid Lender's name in Schedule 1.7(a). All Obligations of
the Paid Lenders shall become due and payable on the
Amendment and Restatement Date contingent upon the
effectiveness of all transactions to occur on such date.
The Paid Lender's Payment shall satisfy all obligations
to such Paid Lenders under the Loan Documents (other than
any amounts which may arise after the Amendment and
Restatement Date under Article IV or Section 11.4).
(b) Each Lender listed in Schedule 1.7(b) (each, a
"Paid Existing Lender") having loans and commitments
immediately prior to the Amendment and Restatement Date
shall be paid by the Credit Agreement Loan Party responsible
therefor in partial satisfaction of such loans and
commitments outstanding as of the Amendment and Restatement
Date that amount in Japanese Yen, Swiss Francs, U.S. Dollars
set forth opposite each such Paid Existing Lender's name in
Schedule 1.7(b) (the "Paid Existing Lender Payment Amount").
The Paid Existing Lender Payment Amount shall become due and
payable on the Amendment and Restatement Date contingent
upon the effectiveness of all transactions to occur on such
date.
(c) Each of the Lenders (each, a "Paying Existing
Lender") listed in Schedule 1.7(c) shall pay to the
Administrative Agent on behalf of the Credit Agreement Loan
Parties the total amounts in Japanese Yen, Swiss Francs, and
U.S. Dollars set forth opposite such Paying Existing
Lender's name in Schedule 1.7(c).
(d) Each Person which is to become a Lender on the
Amendment and Restatement Date (each, a "New Lender") and
listed in Schedule 1.7(d) shall pay to the Administrative
Agent on behalf of the Credit Agreement Loan Parties that
amount in Japanese Yen, Swiss Francs, and U.S. Dollars set
forth opposite such New Lender's Name in Schedule 1.7(d).
(e) The Borrower will pay all accrued interest, fees,
and all other amounts due under Article IV on the Amendment
and Restatement Date to the Administrative Agent for the
benefit of each of the Lenders (including all Paid Lenders,
all Paid Existing Lenders and the Paying Existing Lenders)
in accordance with the amount thereof owing to each such
Lender as of the Amendment and Restatement Date.
The payments contemplated by subsections 1.7(a),
1.7(b), 1.7(c), 1.7(d), and 1.7(e) are herein referred to as the
"Payment Adjustments" and will be made in connection with any
amendments and modifications including the reallocation of
commitments, conversions, or extensions of credit under this
Agreement as of the Amendment and Restatement Date. Each Payment
Adjustment shall be deemed to have taken place simultaneously
with the consummation of all transactions contemplated under this
Agreement on the Amendment and Restatement Date and is contingent
upon the consummation of all such transactions contemplated under
this Agreement as of the Amendment and Restatement Date.
If for any reason the amendments contemplated by this
Agreement to become effective on the Amendment and Restatement
Date do not become effective, then all amounts received by the
Administrative Agent or Lenders in connection with the Payment
Adjustments shall be returned by the Administrative Agent or
Lenders within two Business Days to Credit Agreement Loan
Parties, but without interest.
(f) Each Lender on Schedule 1.7(f) (each, an
"Assigning Lender") will enter into an Assignment and
Acceptance agreement (each, an "Amendment and Restatement
Assignment") whereby each assignor will assign all rights
and obligations under the Loan Documents to the parties set
forth across from such Assigning Lenders name on Schedule
1.7(f). Each Amendment and Restatement Assignment shall be
deemed to have taken place immediately prior to the
effectiveness of the transactions contemplated under this
Agreement to take place on the Amendment and Restatement
Date. Such Amendment and Restatement Assignment will no
longer be effective if the transactions contemplated by the
Amendment and Restatement are not consummated.
(g) Each Person which is a Lender as of the Amendment
and Restatement Date consents to the termination of all
Interest Periods relating to Loans which are LIBOR Rate
Loans immediately prior to the Amendment and Restatement
Date in connection with the transactions to occur on such
date.
1.8. Certain Transactions Exempted. Notwithstanding
any other provision of this Agreement or any other Loan Document,
each of the transactions set forth on Schedule 1.8 effected in
connection with UK Borrower Guarantor becoming a direct
Subsidiary of UK Borrower shall not be prohibited by, nor shall
the consummation thereof be a violation of, any term or provision
of this Agreement or any other Loan Document if and so long as
such transactions are effected substantially on the terms set
forth on Schedule 1.8.
1.9. Repayment of Safeline Funds. Each of the Agents
and the Lenders agree that all initial extensions of credit made
in connection with the Safeline Acquisition are being made prior
to the satisfaction of all conditions precedent set forth in
Section 5.1A based upon the Credit Agreement Loan Parties'
reasonable expectation of the satisfaction of such conditions and
that, pending such satisfaction, such proceeds shall be held in
escrow pursuant to arrangements satisfactory to US Borrower and
the Administrative Agent, which arrangements shall provide for
such funds being held for the benefit of the Credit Agreement
Loan Parties pursuant to the terms hereof and the Lenders having
made such extensions of credit and for the investment of such
funds pending application to the Safeline Acquisition in such
high quality investments as are reasonably acceptable to the
Administrative Agent and not inconsistent with the terms of this
Agreement. The Administrative Agent will hold such funds in
escrow until the satisfaction of the conditions precedent set
forth in Section 5.1A or until the repayment set forth in the
next sentence. Notwithstanding any other provision in this
Agreement, the Credit Agreement Loan Parties may, at any time
prior to the date on which the conditions set forth in Section
5.1A are not capable of being satisfied, repay the Tranche A-UK
Term Loans and any portion of the Tranche B Term Loans made to
effect the Safeline Acquisition (not to exceed U.S. $22.2 million
in the case of the Tranche B Term Loans) and in such case, the
Administrative Agent will release such funds from escrow as
appropriate. During such time as the proceeds of any Loans are
held in escrow, interest on such Loans shall accrue thereon at
the rates set forth herein applicable to the Types of Loans
constituting such Loans and shall be payable at the times and as
set forth herein applicable to all Loans of such Type. No Credit
Agreement Loan Party shall use any funds held pursuant to such
escrow arrangements referred to in this Section 1.9 other than to
effect the Safeline Acquisition or the repayments set forth in
this Section 1.9.
ARTICLE II
THE CREDITS
------------
2.1. Amounts and Terms of Commitments and Loans.(a)(1)
Each Tranche A-CHF Lender severally agrees, on the terms and
conditions set forth herein, that in consideration of the Payment
Adjustments (if applicable to such Lender) and the amendment of
the extensions of credit under the Original Credit Agreement it
shall convert its term extensions of credit under the Original
Credit Agreement into, in part, loans in CHF owing by CH Borrower
(each such loan, a "Tranche A-CHF Term Loan") and, in connection
therewith it shall surrender all notes issued in respect of term
extensions of credit under the Original Credit Agreements, all
such extensions of credit shall be deemed converted in full by
the Payment Adjustments (if applicable to such Lender) and the
amended agreements evidenced hereby and by new notes issued at
the Amendment and Restatement Date, including Tranche A-CHF Term
Loans as of the Amendment and Restatement Date in an amount as is
set forth on Schedule 2.1 opposite such Lender's name under the
heading "Tranche A-CHF Term Loans as of the Amendment and
Restatement Date." Each Tranche A-CHF Lender shall have, as of
the Amendment and Restatement Date, Tranche A-CHF Term Loans in
the amount set forth on Schedule 2.1 opposite such Lender's name
under the heading "Tranche A-CHF Term Loans as of the Amendment
and Restatement Date." The parties hereto acknowledge and agree
that no Lender having a Tranche A-CHF Term Loan as of the
Amendment and Restatement Date shall have any commitment to make
any extension of credit on the Amendment and Restatement Date or
at any other time in connection with its allocation of Tranche A-
CHF Term Loans as of such date, other than the Payment
Adjustments.
(ii) Each Tranche A-UK Lender severally agrees, on the
terms and conditions set forth herein, to make a single loan, in
Pounds Sterling, to UK Borrower (each such loan, a "Tranche A-UK
Term Loan") on the Safeline Closing Date in an amount of such
Lender's Pro Rata Share of 26.7 million Pounds Sterling. The
Tranche A-UK Commitment of each Tranche A-UK Lender is set forth
on Schedule 2.1 opposite such Lender's name under the heading
"Tranche A-UK Commitments."
(iii) Each Tranche A-US Lender severally agrees, on
the terms and conditions set forth herein, that, in consideration
of the Payment Adjustments (if applicable to such Lender) and the
amendment of the extensions of credit under the Original Credit
Agreement, it shall convert its term extensions of credit under
the Original Credit Agreement into, in part, loans in U.S.
Dollars owing by US Borrower (each such loan, a "Tranche A-US
Term Loan") and, in connection therewith, it shall surrender all
notes issued in respect of term extensions of credit under the
Original Credit Agreement, all such extensions of credit shall be
deemed converted in full by the Payment Adjustments (if
applicable to such Lender) and the amended agreements evidenced
hereby and by new notes issued at the Amendment and Restatement
Date, including loans owing by US Borrower (each such loan, a
"Tranche A-US Term Loan") as of the Amendment and Restatement
Date in an amount as is set forth on Schedule 2.1 opposite such
Lender's name under the heading "Tranche A-US Term Loans as of
the Amendment and Restatement Date." Each Tranche A-US Lender
shall have, as of the Amendment and Restatement Date, Tranche A-
US Term Loans in the amount set forth on Schedule 2.1 opposite
such Lender's name under the heading "Tranche A-US Term Loans as
of the Amendment and Restatement Date." The parties hereto
acknowledge and agree that no Lender having a Tranche A-US Term
Loan as of the Amendment and Restatement Date shall have any
commitment to make any extension of credit on the Amendment and
Restatement Date or at any other time in connection with the
allocation of Tranche A-US Term Loans as of such date, other than
the Payment Adjustments.
(b) Each Tranche B Lender severally agrees, on the
terms and conditions set forth herein, that in consideration of
the Payment Adjustments (if applicable to such Lender) and the
amendment of the extensions of credit under the Original Credit
Agreement it shall convert its term extensions of credit under
the Original Credit Agreement into, in part, loans in U.S.
Dollars owing by US Borrower (each such loan, a "Tranche B Term
Loan") and, in connection therewith it shall surrender all notes
issued in respect of term extensions of credit under the Original
Credit Agreement, all such extensions of credit shall be deemed
converted in full by the Payment Adjustments (if applicable to
such Lender) and the amended agreements evidenced hereby and by
new notes issued at the Amendment and Restatement Date, including
Tranche B Term Loans owing by US Borrower as of the Amendment and
Restatement Date in an amount as is set forth on Schedule 2.1
opposite such Lender's name under the heading "Tranche B Term
Loans as of Amendment and Restatement Date." Each Tranche B
Lender shall have, as of the Amendment and Restatement Date,
Tranche B Term Loans in the amount set forth on Schedule 2.1
opposite such Lender's name under the heading "Tranche B Term
Loans as of the Amendment and Restatement Date." In addition,
each Tranche B Lender severally agrees, on the terms and
conditions set forth herein, to make a single loan, in U.S.
Dollars, to US Borrower (each such loan also being referred to
herein as a "Tranche B Term Loan") on the Safeline Closing Date
in an amount of such Lender's Pro Rata Share of U.S. $22.2
million. The Tranche B Commitment of each Tranche B Lender is
set forth on Schedule 2.1 opposite such Lender's name under the
heading "Tranche B Commitments."
(c) Each Canadian Lender agrees, on the terms and
conditions set forth herein, to make loans in Canadian Dollars to
Canadian Borrower (each such loan, a "Canadian Loan") from time
to time on any Business Day during the period from the Safeline
Closing Date to the Canadian Termination Date, in an aggregate
principal amount at any one time outstanding not to exceed the
amount set forth opposite such Lender's name under the heading
"Canadian Commitments" on Schedule 2.1(c) (such amount, as
reduced pursuant to Section 2.6 or changed as a result of one or
more assignments under Section 4.8 or 11.8, such Lender's
"Canadian Commitment"); provided, however, that at no time shall
the aggregate principal amount of all Canadian Loans exceed the
combined Canadian Commitments of all Canadian Lenders. Subject
to the other terms and conditions hereof, Canadian Borrower may
borrow under this subsection 2.1(c), prepay pursuant to
subsection 2.7(g)(ii) and reborrow pursuant to this
subsection 2.1(c) from time to time.
(d) Each Revolving Facility Lender severally agrees,
on the terms and conditions set forth herein, to make loans to
each of the Revolving Borrowers (each such loan, a "Revolving
Loan") from time to time on any Business Day during the period
from the Original Closing Date to the Termination Date, in an
aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name under the
heading "Revolving Facility Commitments" on Schedule 2.1 (such
amount, as reduced pursuant to Section 2.6 or changed as a result
of one or more assignments under Section 4.8 or 11.8, such
Lender's "Revolving Facility Commitment") and in such currencies
as a Revolving Borrower may request pursuant to
subsection 2.3(a)(E); provided, however, that (1) Borrowings of
Revolving Loans on the Original Closing Date shall in no event
exceed the Dollar Equivalent amount of U.S. $75.0 million; (2)
after giving effect to any Borrowing of Revolving Loans, the
aggregate principal Dollar Equivalent amount of all outstanding
Revolving Loans, plus the aggregate principal Dollar Equivalent
amount of all outstanding Swing Line Loans, plus (without
duplication) the Effective Amount of all L/C Obligations (other
than Subsidiary L/C Obligations, except those of the UK Swing
Line Borrowers) shall not exceed the combined Revolving Facility
Commitments of all Revolving Facility Lenders; (3) the Aggregate
Outstanding Revolving Credit of any Revolving Facility Lender
shall not at any time exceed such Lender's Revolving Facility
Commitment; (4) UK Borrower may borrow under the Revolving
Facility only on and after the Safeline Closing Date; and (5)
after giving effect to any Borrowing of Revolving Loans by UK
Borrower, the aggregate principal Dollar Equivalent amount of
outstanding Revolving Loans owing by UK Borrower, plus (without
duplication) the Effective Amount of all L/C Obligations of
Letters of Credit Issued for the account of UK Borrower (other
than any UK Borrower Swing Line L/C) shall not exceed
20.0 million Pounds Sterling (the "UK Borrower Sublimit"). For
purposes of making any Revolving Loan or other extension of
credit under the Revolving Facility, other than a Revolving Loan
pursuant to Section 2.18, any Swing Line Loan pursuant to Section
2.16 and any Revolving Loan pursuant to Section 3.3, there shall
be deemed to be outstanding at all times Swing Line Loans in a
minimum aggregate amount equal to the Assumed Swing Line Loan
Amount. Any Revolving Loan made under Section 2.18 or Section
3.3 shall be made by each Revolving Facility Lender in an amount
equal to its Pro Rata Share of the Revolving Loan made
thereunder, provided that no Revolving Facility Lender need make
such a Revolving Loan to the extent that the sum of the aggregate
amount of Swing Line Loans made to any Subsidiary Swing Line
Borrower, plus the Subsidiary L/C Effective Amount of all Letters
of Credit issued for the account of such Subsidiary Swing Line
Borrower exceeds such Subsidiary Swing Line Borrower's Subsidiary
Swing Line Borrower Sublimit. Within the limits of each
Revolving Facility Lender's Revolving Facility Commitment (and,
with respect to UK Borrower, the sublimit set forth in clause (4)
of the proviso to the first sentence of this Section 2.1(d)), and
subject to the other terms and conditions hereof, each Revolving
Borrower may borrow under this subsection 2.1(d), prepay under
subsection 2.7(g)(i), and reborrow under this subsection 2.1(d).
The Revolving Borrowers shall not request extensions of credit
under the Revolving Facility (including pursuant to Article III)
that would result in UK Borrower not having availability under
its UK Borrower Sublimit of the Revolving Facility to fund its
obligations under the Safeline Seller Notes and the Safeline
Contingent Obligation.
(e) Amounts which are borrowed as Term Loans which are
repaid or prepaid may not be reborrowed.
2.2. Notes. Subject to Section 2.23, each Applicable
Borrower's obligation to pay the principal of, and interest on,
all the Loans made to it by each Lender shall be evidenced (i) if
Tranche A-CHF Term Loans, by a promissory note substantially in
the form of Exhibit H-1, with blanks appropriately completed
(each, a "Tranche A-CHF Term Note" and, collectively, the
"Tranche A-CHF Term Notes"), (ii) if Tranche B Term Loans, by a
promissory note substantially in the form of Exhibit H-2, with
blanks appropriately completed (each, a "Tranche B Term Note"
and, collectively, the "Tranche B Term Notes"), (iii) if Tranche
A-UK Term Loans, by a promissory note substantially in the form
of Exhibit H-3, with blanks appropriately completed (each, a
"Tranche A-UK Term Note" and, collectively, the "Tranche A-UK
Term Notes"), (iv) if Tranche A-US Term Loans, by a promissory
note substantially in the form of Exhibit H-4, with blanks
appropriately completed (each, a "Tranche A-US Term Note" and,
collectively, the "Tranche A-US Term Notes"), (v) if Revolving
Loans, by a promissory note substantially in the form of Exhibit
H-5, with blanks appropriately completed (each, a "Revolving
Note" and, collectively, the "Revolving Notes"), (vi) if a
Canadian Loan, by a promissory note substantially in the form of
Exhibit H-5A, with blanks appropriately completed (each, a
"Canadian Revolving Note" and, collectively, the "Canadian
Revolving Notes"), and (vii) if Swing Line Loans, by a promissory
note substantially in the form of Exhibit H-6, with blanks
appropriately completed (each, a "Swing Line Note" and,
collectively, the Swing Line Notes"). Each such Lender shall
make appropriate notations on the schedules annexed to the
applicable Note of the date, amount and maturity of each
applicable Loan made by it and the amount of each payment of
principal made by the Applicable Borrower with respect thereto.
Each such Lender is irrevocably authorized by the Applicable
Borrower to make such notations on the applicable Note and each
such Lender's record shall be conclusive absent manifest error;
provided, however, that the failure of a Lender to make, or an
error in making, a notation on any Note with respect to any Loan
shall not limit or otherwise affect the obligations of the
Applicable Borrower hereunder or under such Note to such Lender.
In connection with the increase in the Revolving Facility
Commitments on the Amendment and Restatement Date as part of the
amendments to the Original Credit Agreement, each Revolving
Facility Lender shall surrender its notes issued in connection
with its revolving facility commitments under the Original Credit
Agreement and be issued new Revolving Notes pursuant to this
Section 2.2. In connection with the amendment and conversion of
the term extensions of credit under the Original Credit Agreement
and the new term commitment provided on the terms herein
specified pursuant to this Amended and Restated Credit Agreement
to finance the Safeline Acquisition, each Lender having Term
Loans or Term Loan Commitments as of the Amendment and
Restatement Date shall surrender its old notes issued in
connection with its term extensions of credit under the Original
Credit Agreement and be issued the appropriate Term Notes
pursuant to this Section 2.2.
2.3. Procedure for Committed Borrowing (Other than
Canadian Borrowings. (a) The provisions of this Section 2.3
shall not apply to any Borrowing of a Canadian Loan, which shall
be governed solely by Section 2.3A. Each Committed Borrowing
(other than of a Swing Line Loan) shall be made upon the
Applicable Borrower's irrevocable written notice (or telephonic
notice promptly confirmed in writing) delivered to the
Administrative Agent in the form of a Notice of Committed
Borrowing (which notice must be received by the Administrative
Agent prior to (i) 10:00 a.m. (London, England time), three
Business Days prior to the requested Borrowing Date, in the case
of Offshore Currency Loans; (ii) 10:00 a.m. (New York City time),
three Business Days prior to the requested Borrowing Date, in the
case of Offshore U.S. Dollar Loans; and (iii) 10:00 a.m. (New
York City time), one Business Day prior to the requested
Borrowing Date, in the case of ABR Loans, and in each case not
more than five Business Days prior to the requested Borrowing
Date) specifying:
(A) the amount of the Committed Borrowing, which shall
be in an aggregate amount not less than the Minimum Tranche;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Loans comprising the Committed
Borrowing;
(D) in the case of a Borrowing of LIBOR Rate Loans,
the duration of the Interest Period therefor; and
(E) in the case of a Borrowing of Offshore Currency
Loans, the Applicable Currency.
(b) The Dollar Equivalent amount of any Borrowing of
Revolving Facility Loans in an Offshore Currency will be
determined by the Administrative Agent for such Borrowing on the
Computation Date therefor in accordance with subsection 2.5(a).
Upon receipt of a Notice of Committed Borrowing, the
Administrative Agent will promptly notify each Lender thereof and
of the amount of such Lender's Pro Rata Share of the Committed
Borrowing. In the case of a Borrowing of Revolving Facility
Loans comprised of Offshore Currency Loans, such notice will
provide the approximate amount of each Lender's Pro Rata Share of
the Borrowing, and the Administrative Agent will, upon the
determination of the Dollar Equivalent amount of the Borrowing as
specified in the Notice of Committed Borrowing, promptly notify
each Lender of the exact amount of such Lender's Pro Rata Share
of the Borrowing.
(c) Each Lender will make the amount of its Pro Rata
Share of each Committed Borrowing available to the Administrative
Agent for the account of the Applicable Borrower at the Agent's
Payment Office on the Borrowing Date requested by such Applicable
Borrower in Same Day Funds and in the requested currency (i) in
the case of a Committed Borrowing comprised of Loans in U.S.
Dollars, by 11:00 a.m. (New York City time), and (ii) in the case
of a Borrowing comprised of Offshore Currency Loans, by such time
(London, England time) as the Administrative Agent may specify.
The proceeds of all such Committed Loans will promptly be made
available to the Applicable Borrower by the Administrative Agent
at such office by crediting the account of such Borrower or UK
Borrower, as the case may be, where requested by such Applicable
Borrower with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received
by the Administrative Agent.
(d) After giving effect to any Committed Borrowing,
there may not be more than four different Interest Periods in
effect for all Tranche A-CHF Term Loans, four different Interest
Periods in effect for all Tranche B Term Loans, four different
Interest Periods in effect for all Tranche A-UK Term Loans, four
different Interest Periods in effect for all Tranche A-US Term
Loans, and six different Interest Periods in effect for all
Revolving Loans. No more than four different Applicable
Currencies shall be utilized for all outstanding Revolving Loans.
(e) ABR Loans shall only be made in U.S. Dollars.
2.3A Procedure for Canadian Borrowings. (a) Each
Canadian Borrowing shall be made upon Canadian Borrower's
irrevocable written notice delivered to the Canadian Agent in the
form of a Notice of Canadian Borrowing (which notice must be
received by the Canadian Agent prior to (i) 10:00 a.m. (New York
City time) two Business Days prior to the requested Borrowing
Date, in the case of BA Equivalent Rate Loans; and (ii) 9:00 a.m.
(New York City time) on the requested Borrowing Date, in the case
of Prime Rate Loans, and in each case not more than five Business
Days prior to the requested Borrowing Date) specifying:
(A) the amount of the Canadian Borrowing, which shall
be in an aggregate amount not less than the Minimum Tranche;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Loans comprising the Canadian
Borrowing; and
(D) in the case of a Borrowing of BA Equivalent Rate
Loans, the duration of the Interest Period therefor.
(b) Upon receipt of a Notice of Canadian Borrowing,
the Canadian Agent will promptly notify each Canadian Lender
thereof and of the amount of such Canadian Lender's Percentage of
the Canadian Borrowing.
(c) Each Canadian Lender will make the amount of its
Percentage of each Canadian Borrowing available to the Canadian
Agent for the account of Canadian Borrower at the applicable
Agent's Payment Office by 11:00 a.m. (New York City time) on the
Borrowing Date requested by Canadian Borrower in Same Day Funds.
The proceeds of all such Canadian Loans will then be made
available to Canadian Borrower by the Canadian Agent at such
office by crediting the account of Canadian Borrower on the books
of the Canadian Agent with the aggregate of the amounts made
available to the Canadian Agent by the Canadian Lenders and in
like funds as received by the Canadian Agent. Each BA Equivalent
Rate Loan shall, notwithstanding any other provision of this
Agreement, be advanced to Canadian Borrower in an amount equal to
the Notional BA Proceeds.
(d) After giving effect to any Canadian Borrowing,
there may not be more than four different Interest Periods in
effect in respect of all Canadian Loans then outstanding.
2.4. Conversion and Continuation Elections for
Committed Borrowings (Other Than Canadian Borrowings).(a) The
provisions of this Section 2.4 shall not apply to any conversion
or continuation election with respect to Canadian Loans, which
shall be governed solely by Section 2.4A. Any Applicable
Borrower may, upon irrevocable written notice to the
Administrative Agent in accordance with subsection 2.4(b) with
respect to Loans made to it:
(i) elect, as of any Business Day in the case of ABR
Loans, or as of the last day of the applicable Interest
Period (other than extensions of credit under the Original
Credit Agreement as of the Amendment and Restatement Date,
which election may be as of any Business Day), in the case
of Offshore U.S. Dollar Loans, to convert any such Committed
Loans (or any part thereof in an amount not less than the
Minimum Tranche) into Committed Loans in U.S. Dollars of the
other Type; or
(ii) elect, as of the last day of the applicable
Interest Period (other than extensions of credit under the
Original Credit Agreement as of the Amendment and
Restatement Date, which election may be as of any Business
Day), to continue any Committed Loans having Interest
Periods expiring on such day (or any part thereof in an
amount not less than the Minimum Tranche);
provided, however, that if at any time the aggregate amount of
Offshore U.S. Dollar Loans in respect of any Committed Borrowing
is reduced, by payment, prepayment or conversion of part thereof,
to be less than the Minimum Tranche, such Offshore U.S. Dollar
Loans shall automatically convert into ABR Loans, and on and
after such date the right of the Applicable Borrower to continue
such Committed Loans as, and convert such Committed Loans into,
Offshore U.S. Dollar Loans shall terminate unless and until such
Committed Loans are increased, by additional Borrowings or
Conversions, to be at least the Minimum Tranche.
(b) The Applicable Borrower shall deliver a Notice of
Conversion/Continuation to be received by the Administrative
Agent not later than (i) 10:00 a.m. (London, England time), three
Business Days prior to the Conversion/Continuation Date, if the
Committed Loans are to be continued as Offshore Currency Loans;
(ii) 10:00 a.m. (New York City time), three Business Days prior
to the Conversion/Continuation Date, if the Committed Loans are
to be converted into or continued as Offshore U.S. Dollar Loans;
and (iii) 10:00 a.m. (New York City time), one Business Day prior
to the Conversion/Continuation Date, if the Committed Loans are
to be converted into ABR Loans, and in each case not more than
five Business Days prior to the Conversion/Continuation Date,
specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount and Type of Committed Loans
to be converted or continued;
(C) the Type of Committed Loans resulting from the
proposed conversion or continuation; and
(D) other than in the case of conversions into ABR
Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period
applicable to Offshore U.S. Dollar Loans, the Applicable Borrower
has failed to select timely a new Interest Period to be
applicable to such Offshore U.S. Dollar Loans, the Applicable
Borrower shall be deemed to have elected to convert such Offshore
U.S. Dollar Loans into ABR Loans effective as of the expiration
date of such Interest Period. If the Applicable Borrower has
failed to select a new Interest Period to be applicable to
Offshore Currency Loans by the applicable time on the third
Business Day in advance of the expiration date of the current
Interest Period applicable thereto as provided in subsection
2.4(b), the Applicable Borrower shall be deemed to have elected
to continue such Offshore Currency Loans on the basis of a one
month Interest Period.
(d) The Administrative Agent will promptly notify each
Lender of its receipt of a Notice of Conversion/Continuation
pursuant to this Section 2.4, or, if no timely notice is provided
by the Applicable Borrower, the Administrative Agent will
promptly notify each Lender of the details of any automatic
conversion. All conversions and continuations shall be made
ratably according to the respective outstanding principal amounts
of the Committed Loans held by each Lender with respect to which
the notice was given.
(e) Unless the Required Lenders otherwise agree or
otherwise as permitted hereby, during the existence of an Event
of Default or Unmatured Event of Default, no Applicable Borrower
may elect to have a Committed Loan converted into an Offshore
U.S. Dollar Loan or continued as a LIBOR Rate Loan.
(f) After giving effect to any conversion or
continuation of Committed Loans, there may not be more than four
different Interest Periods in effect for all Tranche A-CHF Term
Loans, four different Interest Periods in effect for all
Tranche B Term Loans, four different Interest Periods in effect
for all Tranche A-UK Term Loans, four different Interest Periods
in effect for all Tranche A-US Term Loans, and six different
Interest Periods in effect for all Revolving Loans.
2.4A Conversion and Continuation Elections for Canadian
Borrowings. (a) Canadian Borrower may, upon irrevocable written
notice to the Canadian Agent in accordance with subsection
2.4A(b):
(i) elect, as of any Business Day, in the case of
Prime Rate Loans, or as of the last day of the applicable
Interest Period, in the case of BA Equivalent Rate Loans, to
convert any such Canadian Loans (or any part thereof in an
amount not less than the Minimum Tranche) into Canadian
Loans of another Type; or
(ii) elect, as of the last day of the applicable
Interest Period, to continue any Canadian Loans having
Interest Periods expiring on such day (or any part thereof
in an amount not less than the Minimum Tranche);
provided, however, that if at any time the aggregate amount of BA
Equivalent Rate Loans in respect of any Canadian Borrowing is
reduced, by payment, prepayment or conversion of part thereof, to
be less than the Minimum Tranche, such BA Equivalent Rate Loans
shall automatically convert into Prime Rate Loans, and on and
after such date the right of Canadian Borrower to continue such
Canadian Loans as, or convert such Canadian Loans into, BA
Equivalent Rate Loans shall terminate.
(b) Canadian Borrower shall deliver a Notice of
Conversion/Continuation to be received by the Agents not later
than (i) 10:00 a.m. (New York City time) two Business Days prior
to the Conversion/Continuation Date, if the Canadian Loans are to
be converted into or continued as BA Equivalent Rate Loans; and
(ii) 9:00 a.m. (New York City time) on the
Conversion/Continuation Date, if the Canadian Loans are to be
converted into Prime Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Canadian Loans to be
converted or renewed;
(C) the Type of Canadian Loans resulting from the
proposed conversion or continuation; and
(D) other than in the case of conversions into Prime
Rate Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period
applicable to BA Equivalent Rate Loans, Canadian Borrower has
failed to select timely a new Interest Period to be applicable to
such BA Equivalent Rate Loans, Canadian Borrower shall be deemed
to have elected to convert such BA Equivalent Rate Loans into
Prime Rate Loans effective as of the expiration date of such
Interest Period.
(d) The Canadian Agent will promptly notify each
Canadian Lender of its receipt of a Notice of
Conversion/Continuation pursuant to this Section 2.4A, or, if no
timely notice is provided by Canadian Borrower, the Canadian
Agent will promptly notify each Lender of the details of any
automatic conversion. All conversions and continuations shall be
made ratably according to the respective outstanding principal
amounts of the Canadian Loans held by each Canadian Lender with
respect to which the notice was given.
(e) Unless the Required Lenders otherwise agree,
during the existence of an Event of Default or Unmatured Event of
Default, Canadian Borrower may not elect to have a Canadian Loan
converted into or continued as a BA Equivalent Rate Loan and all
Canadian Loans which are BA Equivalent Rate Loans shall be
automatically converted into a Prime Rate Loan at the end of the
relevant Interest Period so long as an Event of Default or
Unmatured Event of Default is in existence.
(f) After giving effect to any conversion or
continuation of Canadian Loans, there may not be more than four
different Interest Periods in effect in respect of all Canadian
Loans together then outstanding.
2.5. Utilization of Commitments in Offshore Currencies.
(a) The Administrative Agent will determine the Dollar
Equivalent amount with respect to:
(i) any Borrowing (other than of Swing Line Loans)
comprised of Offshore Currency Loans three Business Days prior to
the requested Borrowing Date,
(ii) any Swing Line Loans made in U.S. Dollars or
Pounds Sterling, as of the proposed Borrowing Date thereof,
(iii) any Issuance of a Letter of Credit for the
account of any Revolving Borrower or any UK Swing Line Borrower
in an Offshore Currency as of the requested Issuance Date,
(iv) any drawing under a Letter of Credit Issued for
the account of any Revolving Borrower or any UK Swing Line
Borrower in an Offshore Currency as of the related Honor Date,
(v) all outstanding Offshore Currency Loans (other
than Swing Line Loans not made in U.S. Dollars or Pounds
Sterling), plus all Swing Line Loans made in U.S. Dollars or
Pounds Sterling, plus the Effective Amount of all L/C Obligations
under Letters of Credit Issued for the account of any Revolving
Borrower or any UK Swing Line Borrower as of the last Business
Day of each month and as of any other date selected by the
Administrative Agent,
(vi) the aggregate Dollar Equivalent amount of the
Subsidiary Swing Line Borrower Sublimits of all Subsidiary Swing
Line Borrowers other than the UK Swing Line Borrowers as of each
Adjustment Date,
(vii) any ABR Loan to be made in lieu of an
Offshore Currency Loan pursuant to subsection 2.5(b) as of the
Business Day prior to the proposed Borrowing Date,
(viii) the aggregate sum (without duplication) of
the amount of all Offshore Currency Loans (other than Swing Line
Loans), plus all L/C Obligations of the Revolving Borrowers, plus
all Swing Line Loans, plus the Subsidiary L/C Effective Amount of
all Subsidiary L/C Obligations immediately prior to and after
giving effect to any Revolving Loan made under Section 2.18 as of
the proposed date of the making of any such Revolving Loan,
(ix) the aggregate sum of the amount of all Offshore
Currency Loans (other than Swing Line Loans), plus all L/C
Obligations of the Revolving Borrowers, plus all Swing Line Loans
of the Subsidiary Swing Line Borrowers other than the UK Swing
Line Borrowers, plus the Subsidiary L/C Effective Amount of all
Subsidiary L/C Obligations immediately prior to and after giving
effect to any Revolving Loan made under Section 3.3 as of the
proposed date of the making of any such Revolving Loan,
(x) any outstanding Offshore Currency Loan as of any
redenomination date pursuant to this Section 2.5 or Section 4.5,
and
(xi) all Offshore Currency Loans, plus the Effective
Amount of all L/C Obligations on any date on which the Revolving
Facility Commitments, the US Borrower Sublimit or the Subsidiary
Swing Line Borrower Sublimits are reduced pursuant to Section
2.6.
(b) In the case of a proposed Borrowing (other than of
Swing Line Loans) under the Revolving Facility comprised of
Offshore Currency Loans, in the event that any Revolving Facility
Lender gives notice to the Administrative Agent not later than
10:00 a.m. (London, England time) one Business Day prior to the
proposed Borrowing Date that it is unable to fund Revolving
Facility Loans in an Offshore Currency at a reasonable cost to
it, such Lender shall make its Pro Rata Share of the proposed
Borrowing as an ABR Loan in the Dollar Equivalent amount of the
amount it otherwise would have made in such Offshore Currency;
provided, however, that the Lenders shall be under no obligation
to make Offshore Currency Loans in the requested Offshore
Currency as part of such Borrowing if the Administrative Agent
has received notice from the Required Revolving Facility Lenders
by 10:00 a.m. (London, England time), two Business Days prior to
the day of such Borrowing, that such Lenders cannot provide Loans
in the requested Offshore Currency, in which event the
Administrative Agent will promptly give notice to the applicable
Revolving Borrower that the Borrowing in the requested Offshore
Currency is not then available, and notice thereof also will be
given promptly by the Administrative Agent to the Lenders. If
the Administrative Agent shall have so notified the applicable
Revolving Borrower that, pursuant to any such notice from the
Required Revolving Facility Lenders, any such Borrowing in a
requested Offshore Currency is not then available, such Revolving
Borrower may, by notice to the Administrative Agent not later
than 10:00 a.m. (London, England time), on the requested date of
such Borrowing, withdraw the Notice of Committed Borrowing
relating to such requested Borrowing. If such Revolving Borrower
does so withdraw such Notice of Committed Borrowing, the
Borrowing requested therein shall not occur and the
Administrative Agent will promptly so notify each Lender. If
such Revolving Borrower does not so withdraw such Notice of
Committed Borrowing, the Administrative Agent will promptly so
notify each Lender and such Notice of Committed Borrowing shall
be deemed to be a Notice of Committed Borrowing that requests a
Borrowing comprised of ABR Loans in an aggregate amount equal to
the Dollar Equivalent of the amount of the originally requested
Borrowing in the Notice of Committed Borrowing (however, not in
excess of the aggregate Available Revolving Facility Commitment
of all Revolving Facility Lenders at such time); and in such
notice by the Administrative Agent to each Lender the
Administrative Agent will state such aggregate amount of such
Borrowing in U.S. Dollars and such Lender's Pro Rata Share
thereof.
(c) In the case of a proposed continuation of Offshore
Currency Loans under the Revolving Facility for an additional
Interest Period pursuant to Section 2.4, in the event that any
Revolving Facility Lender gives notice to the Administrative
Agent that it is unable to continue Revolving Facility Loans in
an Offshore Currency at a reasonable cost to it, such Lender's
Loans in such Offshore Currency shall be repaid on the last day
of the current Interest Period; provided, however, that the
Lenders shall be under no obligation to continue such Offshore
Currency Loans if the Administrative Agent has received notice
from the Required Revolving Facility Lenders by 10:00 a.m.
(London, England time), three Business Days prior to the day of
such continuation, that such Lenders cannot continue to provide
Loans in the relevant Offshore Currency, in which event the
Administrative Agent will promptly give notice to the applicable
Revolving Borrower that the continuation of such Offshore
Currency Loans in the relevant Offshore Currency is not then
available, and notice thereof also will be given promptly by the
Administrative Agent to the Lenders. If the Administrative Agent
shall have so notified such Revolving Borrower that, pursuant to
such notice from the Required Revolving Facility Lenders, any
such continuation of Offshore Currency Loans is not then
available, any Notice of Continuation/Conversion with respect
thereto shall be deemed withdrawn and such Offshore Currency
Loans shall be repaid on the last day of the Interest Period with
respect to such Offshore Currency Loans.
(d) Notwithstanding anything herein to the contrary,
during the existence of an Event of Default, upon the request of
the Required Revolving Facility Lenders (in the case of
clause (i) of this subsection), the Lenders holding at least a
majority of the Tranche A-CHF (in the case of clause (ii) of this
subsection) or the Lenders holding at least a majority of the
Tranche A-UK Term Loans (in the case of clause (iii) of this
subsection), (i) all or any part of any outstanding LIBOR Rate
Loans under the Revolving Facility shall be redenominated (if not
Offshore U.S. Dollar Loans) and converted into ABR Loans with
effect from the last day of the Interest Period with respect to
such LIBOR Rate Loans, (ii) at the end of the current Interest
Period therefor, each Tranche A-CHF Term Loan shall not be
continued for any Interest Period but instead shall bear interest
at a rate per annum equal to the Applicable Margin for Tranche A-
CHF Term Loans, plus the Overnight Rate for the Applicable
Currency from time to time in effect or such other rate as may be
agreed to by CH Borrower and the Lenders holding at least a
majority of the Tranche A-CHF Term Loans and specified to the
Administrative Agent, and (iii) at the end of the current
Interest Period therefor, each Tranche A-UK Term Loan shall not
be continued for any Interest Period but instead shall bear
interest at a rate per annum equal to the Applicable Margin for
Tranche A-UK Term Loans, plus the Overnight Rate for the
Applicable Currency from time to time in effect or such other
rate as may be agreed to by UK Borrower and the Lenders holding
at least a majority of the Tranche A-UK Term Loans and specified
to the Administrative Agent. The Administrative Agent will
promptly notify the applicable Borrower of any request pursuant
to the foregoing sentence.
(e) The Revolving Borrowers shall be entitled to
request that Revolving Facility Loans hereunder also be permitted
to be made in any other lawful currency constituting a
eurocurrency, in addition to the eurocurrencies specified in the
definition of "Offshore Currency" herein, that in the opinion of
the Required Revolving Facility Lenders is at such time freely
traded in the offshore interbank foreign exchange markets and is
freely transferable and freely convertible into U.S. Dollars (an
"Agreed Alternative Currency"). The applicable Revolving
Borrower shall deliver to the Administrative Agent any request
for designation of an Agreed Alternative Currency not later than
10:00 a.m. (London, England time), at least ten Business Days in
advance of the date of any Borrowing hereunder proposed to be
made in such Agreed Alternative Currency. Upon receipt of any
such request the Administrative Agent will promptly notify the
Revolving Facility Lenders thereof, and each Lender will use its
best efforts to respond to such request within two Business Days
of receipt thereof. If the Administrative Agent has not received
any response from a Revolving Facility Lender by the end of the
day four Business Days prior to the date of Borrowing to be made
in such Agreed Alternative Currency, the Administrative Agent
shall conclusively presume the assent of such Lender. Each
Revolving Facility Lender may grant or accept such request in its
sole discretion. The Administrative Agent will promptly notify
the applicable Revolving Borrower of the acceptance or rejection
of any such request.
2.6. Reduction or Termination of Commitments. (a) The
Borrowers may, upon not less than five Business Days' prior
notice to the Administrative Agent, terminate the Commitments in
any Facility (other than the Canadian Facility), or permanently
reduce the Commitments in any Facility (other than the Canadian
Facility) by an aggregate amount equal to the Dollar Equivalent
of U.S. $1.0 million or a higher integral multiple of U.S. $1.0
million; unless, in the case of the Revolving Facility, after
giving effect thereto and to any prepayments of the Revolving
Facility Loans made on the effective date of such termination or
reduction, the then outstanding principal Dollar Equivalent
amount of all Revolving Facility Loans (including the Assumed
Swing Line Loan Amount), plus (without duplication) the Effective
Amount of all L/C Obligations (other than Subsidiary L/C
Obligation, except those of the UK Swing Line Borrowers) together
would exceed the amount of the combined Revolving Facility
Commitments of all Revolving Facility Lenders then in effect.
The Borrowers may, upon not less than five Business Days' prior
notice to the Administrative Agent and the Applicable Swing Line
Lender, terminate or permanently reduce the Subsidiary Swing Line
Borrower Sublimit of any Subsidiary Swing Line Borrower or the US
Borrower Sublimit; unless, after giving effect thereto and to any
prepayment of the Swing Line Loans made on the effective date of
such termination or reduction the then outstanding Dollar
Equivalent amount of all Swing Line Loans, plus the Subsidiary
L/C Effective Amount of all Subsidiary L/C Obligations would
exceed the Dollar Equivalent amount of the aggregate of the
Subsidiary Swing Line Borrower Sublimits then in effect, plus the
US Borrower Sublimit then in effect.
(b) There are no commitments to make (x) any Tranche A-
CHF Term Loans or Tranche A-US Term Loans as of the Amendment and
Restatement Date other than by conversion of existing term
extensions of credit under the Original Credit Agreement and the
Payment Adjustments, or (y) Tranche B Term Loans in excess of
U.S. $22.2 million; the aggregate amount thereof as of the
Amendment and Restatement Date (before giving effect to the
funding of the Safeline Acquisition) reflects an adjustment and
conversion of term loan extensions of credit previously made by
the Lenders on the Original Closing Date. The Commitments
relating to the Tranche A-UK Term Loan Facility and the Tranche B
Term Loan Facility shall automatically and permanently expire
concurrently with the making of the Term Loans thereunder on the
Safeline Closing Date.
(c) The aggregate amount of the Canadian Commitments
shall be automatically and permanently reduced to zero on the
Canadian Termination Date.
(d) Canadian Borrower shall have the right at any time
or from time to time (i) so long as no Canadian Loans will be
outstanding as of the date specified for termination, to
terminate the Canadian Commitments and (ii) to permanently reduce
the aggregate amount of the unutilized Canadian Commitments of
all the Canadian Lenders; provided, however, that (x) Canadian
Borrower shall give five Business Days notice of each such
termination or reduction to the Canadian Agent and the Canadian
Lenders, and (y) each partial reduction shall be in an aggregate
amount at least equal to Cdn.$1.0 million (or a larger multiple
of Cdn.$1.0 million).
(e) Once reduced in accordance with this Section, the
Commitments may not be increased or reinstated. Any reduction of
the Commitments in any Facility shall be applied to each Lender's
Commitment in such Facility according to its Pro Rata Share or
Percentage, as applicable. All accrued Facility Fees or Canadian
Facility Fees, as the case may be, in respect of any Facility to,
but not including, the effective date of any reduction or
termination of Commitments in such Facility shall be paid on the
effective date of such reduction or termination.
2.7 Prepayments. (a) So long as any Term Loans are
outstanding, within 20 days following each date on which US
Borrower or any Subsidiary receives any Net Cash Proceeds from
any Taking or Destruction or loss of title to any Mortgaged Real
Property, a Dollar Equivalent amount equal to 100% of such Net
Cash Proceeds shall be applied as a mandatory prepayment of
principal of the Term Loans; provided, however, that so long as
no Event of Default or Unmatured Event of Default then exists and
such proceeds do not exceed the Dollar Equivalent amount of
U.S. $10.0 million, such proceeds shall not be required to be so
applied on such date to the extent that the Borrowers have
delivered an Officers' Certificate to the Administrative Agent on
or prior to such date stating that such proceeds shall be used to
replace or restore (in accordance with the procedures set forth
in the Mortgage) any properties or assets in respect of which
such proceeds were paid within 360 days following the date of the
receipt of such proceeds (which certificate shall set forth the
estimates of the proceeds to be so expended); provided, further,
however, that (i) if the amount of such proceeds exceeds the
Dollar Equivalent amount of U.S. $10.0 million, then the entire
amount and not just the portion in excess of the Dollar
Equivalent amount of U.S. $10.0 million shall be applied as a
mandatory prepayment of Term Loans as provided above in this
subsection 2.7(a) and (ii) if all or any portion of such proceeds
not required to be applied to the prepayment of Term Loans
pursuant to the preceding proviso are not so used within 360 days
after the date of the receipt of such proceeds, such remaining
portion shall be applied on the last day of such period (or the
next preceding Business Day if such last day is not a Business
Day) as a mandatory prepayment of principal of the Term Loans as
provided above in this subsection 2.7(a). Each such prepayment
shall be applied as set forth in subsection 2.7(f).
(b) So long as any Term Loans are outstanding, within
90 days after the end of each fiscal year of US Borrower ending
after December 31, 1996, the Term Loans shall be prepaid in a
Dollar Equivalent amount equal to 75% of Excess Cash Flow for
such fiscal year; provided, however, that if the Debt to EBITDA
Ratio as of the end of the fiscal year immediately preceding the
date of any such prepayment is less than 3.50 to 1.0, such
percentage shall be 50%. Each such prepayment shall be applied
as set forth in subsection 2.7(f).
(c) So long as any Term Loans are outstanding, within
30 days after the receipt by US Borrower or any Subsidiary of Net
Cash Proceeds from any Asset Sale, the Term Loans shall be
prepaid in a Dollar Equivalent amount equal to 100% of the Net
Cash Proceeds of such Asset Sale; provided, however, that the Net
Cash Proceeds from any Asset Sale permitted by each of subsection
8.2(d) and subsection 8.2(i) shall in each case not be required
to be so applied to the prepayment of the Term Loans on such date
if (i) no Event of Default or Unmatured Event of Default then
exists and (ii) the Borrowers deliver an Officers' Certificate to
the Administrative Agent on or prior to such date stating that
such Net Cash Proceeds shall be reinvested in the business of the
Borrowers or any Subsidiary within 180 days following the date of
such Asset Sale (which certificate shall set forth the estimates
of the proceeds to be so expended); provided, further, however,
that if all or any portion of such Net Cash Proceeds not so
applied to the prepayment of Term Loans is not so used within
such 180 day period, such remaining portion shall be applied on
the last day of such period (or the next preceding Business Day
if such last day is not a Business Day) as a mandatory prepayment
of principal of outstanding Term Loans as provided above in this
subsection 2.7(c). Each such prepayment shall be applied as set
forth in subsection 2.7(f).
(d) So long as any Term Loans are outstanding, the
Term Loans shall be prepaid concurrently with the receipt of any
Net Cash Proceeds from the issuance of any Indebtedness by US
Borrower or any Subsidiary (other than any Indebtedness permitted
by Section 8.5) in a Dollar Equivalent amount equal to 100% of
such Net Cash Proceeds. Each such prepayment shall be applied as
set forth in subsection 2.7(f).
(e) So long as any Term Loans are outstanding, the
Term Loans shall be prepaid concurrently with the receipt of any
Net Cash Proceeds from any capital contribution to US Borrower or
any Subsidiary or from the issuance or sale of any equity
securities of M-T Investors, Holding or any of its Subsidiaries
or any other direct or indirect parent of US Borrower (other than
(w) the Equity Issuance, (x) the exercise of employee stock
options and the repayment of loans to employees, (y) the issuance
of equity to William Donnelly or to the sellers in the Safeline
Acquisition (not to exceed U.S. $6.0 million in total proceeds),
and (z) in each case, contributions from or issuances to another
Company) in a Dollar Equivalent amount equal to 50% of such Net
Cash Proceeds; provided, however, that (A) no such prepayment
shall be required in connection with the issuance or sale by
Holding of any equity securities of Holding to the Investors or
from the proceeds of any capital contribution therefrom to US
Borrower or any Subsidiary in an aggregate amount of Net Cash
Proceeds up to the Dollar Equivalent amount of U.S. $35.0 million
since the Original Closing Date (over and above the Equity
Issuance) if (i) no Event of Default or Unmatured Event of
Default then exists, (ii) such Net Cash Proceeds are
contemporaneously utilized by US Borrower and the Subsidiaries in
their business, and (iii) such Net Cash Proceeds are not utilized
by US Borrower or any Subsidiary, directly or indirectly, to
redeem, retire or acquire any other Indebtedness of US Borrower
or any Subsidiary, and (B) if a Qualified Public Offering has
been consummated, US Borrower may, provided that no Event of
Default or Unmatured Event of Default has occurred and is
continuing, first use the Net Cash Proceeds thereof to redeem up
to U.S. $47.25 million of the Senior Subordinated Notes (plus
premiums thereon) in accordance with the terms of the Senior
Subordinated Note Indenture which permit such a redemption upon a
public equity offering before utilizing the Net Cash Proceeds
thereof to prepay the Term Loans, however, in such event, US
Borrower shall apply all remaining Net Cash Proceeds thereof to
prepay the Term Loans up to such amount thereof that would have
been applied if the application to redeem the Senior Subordinated
Notes had not taken place. Each such prepayment shall be applied
as set forth in subsection 2.7(f).
(f) Each prepayment of the Term Loans required by
subsections (a)-(e) of this Section 2.7 shall be applied pro rata
among the Term Loan Facilities (based on the then remaining
amounts of the Amortization Payments of the Term Loan Facilities)
and, as to each Term Loan Facility, first, to the next
immediately succeeding scheduled quarterly Amortization Payment
of such Term Loan Facility as set forth in the relevant
subsection of Section 2.9 and, second, pro rata to the remaining
Amortization Payments under such Term Loan Facility as set forth
in the relevant subsection of Section 2.9. Subject to subsection
2.10(b), all prepayments of Term Loans shall be made together
with all accrued interest thereon and any amounts required by
Section 4.4, and all such payments shall be applied to the
payment of interest and such Section 4.4 amounts before
application to principal. Without prejudice to the obligations
to prepay as set out in this Section 2.7, any Applicable Borrower
proposing to make any prepayment under this Section 2.7 will,
prior to making any such prepayment, take all steps required of
it to obtain any consents, authorizations or other approvals or
take any other action which may at any relevant time be required
of it in respect of any such prepayment to be made by it
(including taking all requisite steps under Chapter VI of the
Companies Act 1985 of Great Britain).
(g) (i) Subject to Section 4.4, any Applicable
Borrower may, at any time or from time to time, ratably prepay,
without premium or penalty, Committed Loans under the Revolving
Facility or under the Term Loan Facilities in whole or in part,
in an aggregate Dollar Equivalent principal amount of at least
U.S. $1.0 million and a higher integral multiple of 1.0 million
units of the Applicable Currency. The Applicable Borrower shall
deliver a notice of prepayment in accordance with Section 11.2 to
be received by the Administrative Agent not later than (i) 10:00
a.m. (London, England time), three Business Days in advance of
the prepayment date, if the Committed Loans to be prepaid are
LIBOR Rate Loans, and (ii) 10:00 a.m. (New York City time), one
Business Day prior to the prepayment date, if the Committed Loans
to be prepaid are ABR Loans (and in each case on not more than
five Business Days' prior notice). Such notice of prepayment
shall specify the date and amount of such prepayment and whether
such prepayment is of ABR Loans, LIBOR Rate Loans, or any
combination thereof, whether Revolving Loans or Term Loans are
being prepaid and the Applicable Currency. Such notice shall not
thereafter be revocable by the Applicable Borrower. The
Administrative Agent will promptly notify each Lender thereof and
of such Lender's Pro Rata Share of such prepayment. If such
notice is given by any Applicable Borrower, such Applicable
Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to each such
date on the amount prepaid and any amounts required pursuant to
Section 4.4. Each such prepayment (if a prepayment of Term
Loans) shall be applied pro rata among the Term Loan Facilities
(based on the then remaining amounts of the Amortization Payments
of the Term Loan Facilities) and, as to each Term Loan Facility,
first, to the next immediately succeeding scheduled quarterly
Amortization Payment of such Term Loan Facility and, second, pro
rata to the then remaining amounts of the Amortization Payments
under such Term Loan Facility, subject, however, to clause (iii)
of subsection 2.7(h).
(ii) Subject to Section 4.4, Canadian Borrower may, at
any time or from time to time, ratably prepay Canadian Loans in
whole or in part, in an aggregate principal amount of at least
Cdn. $250,000 and an integral multiple of Cdn. $250,000.
Canadian Borrower shall deliver a notice of prepayment in
accordance with Section 11.2 to be received by the Canadian Agent
not later than (i) 10:00 a.m. (New York City time) at least two
Business Days in advance of the prepayment date if the Loans to
be prepaid are BA Equivalent Rate Loans and (ii) 9:00 a.m. (New
York City time) on the prepayment date if the Loans to be prepaid
are Prime Rate Loans. Such notice of prepayment shall specify
the date and amount of such prepayment and whether such
prepayment is of Prime Rate Loans, BA Equivalent Rate Loans, or
any combination thereof. Such notice shall not thereafter be
revocable by Canadian Borrower. The Canadian Agent will promptly
notify each Canadian Lender thereof and of such Canadian Lender's
Percentage of such prepayment. If such notice is given by
Canadian Borrower, Canadian Borrower shall make such prepayment
and the payment amount specified in such notice shall be due and
payable on the date specified therein, together with, in the case
of BA Equivalent Rate Loans, accrued interest to each such date
on the amount prepaid and any amounts required pursuant to
Section 4.4.
(h) With respect to each prepayment of Loans pursuant
to Section 2.7, the Applicable Borrower may designate the Types
of Loans which are to be repaid and the specific Borrowing(s)
under the affected Facility pursuant to which made; provided,
however, that (i) LIBOR Rate Loans made pursuant to a specific
Facility may be designated for prepayment only on the last day of
an Interest Period applicable thereto unless all LIBOR Rate Loans
made pursuant to such Facility with Interest Periods ending on
such date of prepayment and all ABR Loans made pursuant to such
Facility have been paid in full; (ii) if any prepayment of LIBOR
Rate Loans made pursuant to a single Borrowing shall reduce the
outstanding Loans made pursuant to such Borrowing to an amount
less than the Minimum Tranche, such Borrowing shall be
immediately converted into, if such Borrowing is Offshore U.S.
Dollar Loans, ABR Loans, and, if such Borrowing is Offshore
Currency Loans, Offshore Currency Loans having an Interest Period
of one month; and (iii) each repayment of any Loans made pursuant
to a Borrowing shall be applied pro rata among such Loans, unless
an Applicable Borrower shall have become obligated to make any
payment pursuant to Section 4.1, in which case such Applicable
Borrower may prepay the Loans held solely by the Lender or
Lenders to which it is obligated to make such payment. In the
absence of a designation by the Applicable Borrower as described
in the preceding sentence, the Administrative Agent shall,
subject to the above, make such designation in its sole
discretion with a view, but no obligation, to minimize funding
losses owing under Section 4.4.
(i) Notwithstanding subsections 2.7(a) and (c), to the
extent that the Net Cash Proceeds required to be applied to a
prepayment of the Loans pursuant to such subsections (1) are
prohibited or delayed by applicable law from being repatriated to
the jurisdiction of the Borrower or UK Borrower, as the case may
be, required to make any such prepayment or (2) may not be so
repatriated without causing an adverse tax consequence, such Net
Cash Proceeds required to be applied to a prepayment of the Loans
pursuant to such subsections shall, so long as no Event of
Default or Unmatured Event of Default has occurred and is
continuing, not be required to be applied as a prepayment of the
Loans at the time provided in such subsections to the extent that
the aggregate Dollar Equivalent amount of Net Cash Proceeds
proposed to be not so applied for such event when added to the
aggregate Dollar Equivalent amount of Net Cash Proceeds from all
prior or concurrent events which have not been applied by virtue
of this subsection 2.7(i) is less than 5.0% of Net Tangible
Assets at such time. If and when such repatriation is permitted
under the applicable local law or may be made without an adverse
tax consequence, as the case may be, such repatriation shall be
immediately effected and such Net Cash Proceeds shall be applied
in the manner set forth in subsections 2.7(a) and (c), with any
time limit therein being deemed to have started upon receipt of
such Net Cash Proceeds by any Subsidiary of US Borrower
notwithstanding this subsection 2.7(i); provided, however, if the
time limit shall have expired, then such Net Cash Proceeds so
repatriated shall be applied to the prepayment of the Term Loans
as set forth in subsection 2.7(f) within three Business Days.
(j) On the last Business Day of each month occurring
after October 31, 1996, the Borrowers and the Subsidiary Swing
Line Borrowers shall determine the aggregate Dollar Equivalent
amount of the total amount of Swing Line Loans actually
outstanding, plus the Subsidiary L/C Effective Amount of all
Subsidiary L/C Obligations (the date of each such determination,
the "Swing Line Loan Calculation Date"). The Swing Line
Borrowers shall repay the Swing Line Loans and/or Cash
Collateralize Letters of Credit issued for the account of the
Subsidiary Swing Line Borrowers within 10 Business Days of any
Swing Line Loan Calculation Date if the aggregate Dollar
Equivalent amount of Swing Line Loans then outstanding, plus the
Subsidiary L/C Effective Amount of all Subsidiary L/C Obligations
exceeds U.S. $40.0 million in an amount equal to the amount such
that after giving effect thereto the Dollar Equivalent amount of
all Swing Line Loans then outstanding, plus the Subsidiary L/C
Effective Amount of all Subsidiary L/C Obligations would not
exceed U.S. $40.0 million.
2.8 Currency Exchange Fluctuations. (a) The Credit
Agreement Loan Parties will implement and maintain internal
controls to monitor the borrowings and repayments of Loans by the
Credit Agreement Loan Parties and the issuance of and drawings
under Letters of Credit, with the object of preventing any
request for a Credit Extension that would result in (i) the
Aggregate Outstanding Revolving Credit with respect to all of the
Revolving Facility Lenders (including the Swing Line Lenders)
being in excess of the aggregate Revolving Facility Commitments
then in effect or (ii) the Subsidiary Swing Line Borrowers
exceeding their respective Subsidiary Swing Line Borrower
Sublimits and of promptly identifying and remedying any
circumstance where, by reason of changes in exchange rates, the
Aggregate Outstanding Revolving Credit with respect to all of the
Revolving Facility Lenders (including the Swing Line Lenders)
exceeds the aggregate Revolving Facility Commitments then in
effect or the aggregate Swing Line Loans made to any Subsidiary
Swing Line Borrower, plus the Subsidiary L/C Effective Amount of
all Subsidiary L/C Obligations of such Subsidiary Swing Line
Borrower exceeds its Subsidiary Swing Line Borrower Sublimit.
(b) Subject to Section 4.4, if on any Computation Date
the Administrative Agent shall have determined that the Aggregate
Outstanding Revolving Credit of all of the Revolving Facility
Lenders exceeds the combined Revolving Facility Commitments of
all Revolving Facility Lenders by more than the Dollar Equivalent
amount of U.S. $5.0 million due to a change in applicable rates
of exchange between U.S. Dollars, on the one hand, and Offshore
Currencies, on the other hand, then the Administrative Agent
shall give notice to the Revolving Borrowers that a prepayment of
Loans (or, if no Revolving Credit Loans are outstanding, payment
of unreimbursed drawings under Letters of Credit, or if none
thereof, Cash Collateralization of outstanding Letters of Credit)
is required under this subsection, and the Revolving Borrowers
and the Subsidiary Swing Line Borrowers agree if such excess
shall not have been prepaid within 30 days of such notice or
during such 30 days such excess has not been eliminated by
changes in currency exchange rates thereupon to make prepayments
(by such repayment of Loans, payment of unreimbursed drawings or
Cash Collateralization) of their respective pro rata portion of
such excess (determined by reference to the aggregate Dollar
Equivalent amount of each Revolving Borrower's outstanding
Revolving Facility Loans, plus (without duplication) the
Effective Amount of all L/C Obligations relative to the total of
such amounts for each Revolving Borrower) such that, after giving
effect to such prepayment (or payment or Cash Collateralization
and changes in currency exchange rates), the Aggregate
Outstanding Revolving Credit of all of the Revolving Lenders does
not exceed the combined Revolving Facility Commitments of all
Revolving Facility Lenders.
2.9. Repayment. (a) US Borrower shall repay the
Tranche A-US Term Loans and the Tranche B Term Loans on the
Business Day immediately prior to the Quarterly Dates set forth
below in the installments as set forth below; provided, however,
that if the Safeline Acquisition is not consummated, then each
Amortization Payment in respect of the Tranche B Term Loans due
from and including March 31, 2003 to and including December 31,
2004 shall be reduced by U.S. $2.775 million:
<TABLE>
<CAPTION>
EACH QUARTERLY TRANCHE A-US TRANCHE B
DATE IN TERM LOANS TERM LOANS
CALENDAR YEAR (U.S. $) (U.S. $)
----------------- ----------- --------------------
<S> <C> <C>
1997 $1,500,000.00 $400,000.00
1998 $875,000.00 $250,000.00
1999 $1,500,000.00 $250,000.00
2000 $1,625,000.00 $250,000.00
2001 $1,750,000.00 $250,000.00
2002 $1,950,000.00 $250,000.00
2003 0 $10,000,000.00
2004 0 $13,550,000.00
</TABLE>
(b) CH Borrower shall repay the Tranche A-CHF Term
Loans on the Business Day immediately prior to the Quarterly
Dates set forth below in the installments set forth below:
<TABLE>
<CAPTION>
Tranche A-CHF
Each Quarterly Date in Term Loans
Calendar Year (CHF)
----------------------- ----------------
<S> <C>
1997 6,988,600.00
1998 4,892,010.00
1999 6,289,732.00
2000 8,735,736.00
2001 9,085,165.00
2002 10,378,057.00
</TABLE>
(c) UK Borrower shall repay the Tranche A-UK Term
Loans on the Business Day immediately prior to the Quarterly
Dates set forth below in the installments set forth below:
<TABLE>
<CAPTION>
Tranche A-UK
Each Quarterly Date in Term Loans
Calendar Year (Pounds Sterling)
--------------------------- -------------------
<S> <C>
1997 920,245.00
1998 920,245.00
1999 996,933.00
2000 1,303,681.00
2001 1,457,055.00
2002 1,536,963.50
</TABLE>
(d) Each Amortization Payment as set forth above in
subsections 2.9(a), (b) and (c) shall be automatically adjusted
upon application of any prepayment pursuant to Section 2.7.
(e) Until the Revolving Loan Maturity Date, the Credit
Agreement Loan Parties (other than Canadian Borrower) shall from
time to time immediately prepay the Revolving Facility Loans
(and/or provide cover for L/C Obligations as specified in
subsection 2.9(f)) in such amounts as shall be necessary so that
at all times the Aggregate Outstanding Revolving Credit of all of
the Revolving Facility Lenders shall not (other than as a result
of a change in currency exchange rates) exceed the Revolving
Facility Commitments of all of the Revolving Facility Lenders,
such amount to be applied, first, to Revolving Facility Loans
outstanding and, second, as cover for L/C Obligations outstanding
as specified in subsection 2.9(f).
(f) In the event that the Credit Agreement Loan
Parties shall be required pursuant to subsection 2.9(e) to
provide cover for L/C Obligations, the Credit Agreement Loan
Parties shall effect the same by paying to the Administrative
Agent immediately available funds in an amount equal to the
required amount, which funds shall be retained by the
Administrative Agent pursuant to arrangements and documentation
reasonably satisfactory to the Administrative Agent as collateral
security in the first instance for the L/C Obligations until such
time as all Letters of Credit shall have been terminated and all
of the L/C Obligations paid in full.
(g) All outstanding Revolving Loans (including Swing
Line Loans) shall be repaid in full on the Revolving Loan
Maturity Date.
(h) Until the Canadian Loan Maturity Date, Canadian
Borrower shall from time to time prepay the Canadian Loans in
such amounts as shall be necessary so that at all times the
aggregate outstanding amount of Canadian Loans shall not exceed
the Canadian Commitments of all of the Canadian Lenders.
(i) All outstanding Canadian Loans shall be repaid in
full on the Canadian Maturity Date.
2.10. Interest. (a) Each Committed Loan (other
than a Canadian Loan or any Non-U.S. $ Swing Line Loan) shall,
except as otherwise provided herein, bear interest on the
outstanding principal amount thereof from the applicable
Borrowing Date at a rate per annum equal to the LIBOR Rate or the
Alternate Base Rate, as the case may be (and subject to the
Applicable Borrowers' right to convert to the other Type of
Committed Loans under Section 2.4), plus the Applicable Margin,
plus, in the case of Loans made in Pounds Sterling, the MLA Cost.
Each Non-U.S. $ Swing Line Loan shall bear interest at the rate
per annum equal to (x) if such Loan is in Pounds Sterling, the
Overnight Rate from time to time in effect for Pounds Sterling,
plus the Applicable Margin, plus the MLA Cost and (y) if such
Loan is in any other Offshore Currency, such rate as is agreed to
by the Applicable Swing Line Lender and the applicable Swing Line
Borrower, plus the Applicable Margin. Each Prime Rate Loan shall
bear interest on the outstanding principal amount thereof from
the applicable Borrowing Date at a rate per annum equal to the
Prime Rate (subject to Canadian Borrower's right to convert to
other Types of Canadian Loans under Section 2.4A), plus the
Applicable Margin.
(b) Interest on each Loan shall be paid in arrears on
each Interest Payment Date. Interest shall also be paid on the
date of any prepayment of Loans pursuant to Section 2.7 for the
portion of the Loans so prepaid; provided, however, that in the
event that any Term Loans that are ABR Loans are prepaid pursuant
to Section 2.7, interest accrued on such Loans shall be payable
on the next succeeding Interest Payment Date thereafter (or at
final maturity, if earlier).
(c) Notwithstanding subsections (a) and (b) of this
Section, if any amount of principal of or interest on any Loan,
or any other amount payable hereunder or under any other Loan
Document, is not paid in full when due (whether at stated
maturity, by acceleration, demand or otherwise), the Applicable
Borrower agrees, to the extent permitted by applicable law, to
compensate the Lenders for additional administrative and other
costs they will thereafter incur and to pay interest on such
unpaid principal or other amount from the date such amount
becomes due until the date such amount is paid in full, after as
well as before any entry of judgment thereon, payable on demand,
at a rate per annum equal to (i) in the case of principal due in
respect of any Loan prior to the end of an Interest Period
applicable thereto, the rate otherwise applicable to such Loan,
plus 2%, and (ii) in the case of any other amount, (x) if such
amount is payable in U.S. Dollars, the Alternate Base Rate from
time to time in effect, plus the Applicable Margin (but not less
than 0) for ABR Loans, plus 2%, (y) if such amount is payable in
Canadian Dollars, the Prime Rate from time to time in effect,
plus 2%, and (z) if such amount is payable in a currency other
than U.S. Dollars and Canadian Dollars, the Overnight Rate from
time to time in effect, plus the Applicable Margin for LIBOR Rate
Loans for Loans under the applicable Facility from time to time
in effect, plus 2%, plus, in the case of Loans in Pounds
Sterling, the MLA Cost.
(d) Anything herein to the contrary notwithstanding,
the obligations of each Applicable Borrower to any Lender
hereunder shall be subject to the limitation that payments of
interest shall not be required for any period for which interest
is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Lender
would be contrary to the provisions of any law applicable to such
Lender limiting the highest rate of interest that may be lawfully
contracted for, charged or received by such Lender, and in such
event the Applicable Borrower shall pay such Lender interest at
the highest rate permitted by applicable law.
2.11. Fees. In addition to certain fees described
in Section 3.8:
(a) Arrangement, Agency Fees. The Borrowers shall pay
fees to the Arranger for the Arranger's own account as
required by the letter agreement ("Arranger Fee Letter")
between the Arranger and AEA dated April 10, 1996 and shall
pay agency fees to the Administrative Agent for the
Administrative Agent's own account as required by the letter
agreement between the Administrative Agent and AEA dated
October 7, 1996 (the "Administrative Agent's Fee Letter"
and, together with the Arranger Fee Letter, the "Fee
Letters"). All fees paid under the Fee Letters shall be
paid solely in U.S. Dollars.
(b) Facility Fees. The Borrowers shall pay to the
Administrative Agent for the account of each Revolving
Facility Lender a facility fee computed at a rate per annum
equal to the Applicable Facility Fee Percentage (the
"Facility Fee") on the average daily effective amount of
such Lender's Revolving Facility Commitment, computed on a
quarterly basis in arrears on the last Business Day of each
calendar quarter. Such Facility Fee shall accrue from the
Original Closing Date to the earlier of the Termination Date
and the date on which the Revolving Facility Commitments
have been terminated in full and shall be due and payable
quarterly in arrears on the last Business Day of each
calendar quarter (commencing December 31, 1996) through the
Termination Date or such earlier date as the Revolving
Facility Commitments have been terminated in full. The
Facility Fee shall be paid solely in U.S. Dollars.
(c) Canadian Facility Fees. Canadian Borrower shall
pay to the Canadian Agent for the account of each Canadian
Lender a facility fee computed at a rate per annum equal to
the Applicable Facility Fee Percentage (the "Canadian
Facility Fee") on the average daily effective amount of such
Canadian Lender's Canadian Commitment computed on a
quarterly basis in arrears on the last Business Day of each
calendar quarter. Such Canadian Facility Fee shall accrue
from the Safeline Closing Date to the earlier of the
Canadian Termination Date and the date on which the Canadian
Commitments have been terminated in full and shall be due
and payable quarterly in arrears on the last Business Day of
each calendar quarter (commencing June 30, 1997) through the
Canadian Termination Date or such earlier date as the
Canadian Commitments have been terminated in full. The
Canadian Facility Fee shall be paid solely in Canadian
Dollars.
2.12. Computation of Fees, Interest and Dollar
Equivalent Amount. (a) All computations of the Facility Fee and
the Canadian Facility Fee shall be made on the basis of a year of
360 days and actual days elapsed. All other computations of
interest and fees shall be made on the basis of a 360-day year
and actual days elapsed. Interest and fees shall accrue during
each period during which interest or such fees are computed from
the first day thereof to the last day thereof. If a Loan is
repaid on the day on which it is made, one day's interest shall
accrue at the rate per annum applicable thereto as determined in
accordance with Section 2.10 shall be paid.
(b) Each determination of an interest rate or a Dollar
Equivalent amount by the Applicable Agent or an Applicable Swing
Line Lender, as the case may be, shall be conclusive and binding
on each Applicable Borrower and the Lenders in the absence of
manifest error. The Applicable Agent or an Applicable Swing Line
Lender, as the case may be, will, at the request of the
Applicable Borrower or any Lender, deliver to the Borrowers or
such Lender, as the case may be, a statement showing the
calculations used by the Applicable Agent or such Applicable
Swing Line Lender in determining any interest rate or Dollar
Equivalent amount.
2.13. Payments by Each Applicable Borrower. (a)
All payments to be made by each Applicable Borrower shall be made
without set-off, recoupment or counterclaim. Except as otherwise
expressly provided herein, all payments by each Applicable
Borrower (other than any Subsidiary Swing Line Borrower) shall be
made to the Applicable Agent for the account of the Lenders or
Scotiabank (with respect to Swing Line Loans made in U.S. Dollars
or Pounds Sterling) at the Agent's Payment Office, and all
payments to be made by all other Subsidiary Swing Line Borrowers
shall be made to the Applicable Swing Line Lender as directed by
it for the account of such Applicable Swing Line Lender. Except
as otherwise provided herein, all payments by each Applicable
Borrower (i) with respect to principal of, interest on, and any
other amount relating to any Offshore Currency Loan, shall be
made in the Offshore Currency in which such Loan is denominated
or payable, (ii) with respect to the Canadian Facility Fee and
principal of, interest on and any other amount relating to any
Canadian Loan, shall be made in Canadian Dollars, and (iii) with
respect to all other amounts payable hereunder, shall be made in
U.S. Dollars. Such payments shall be made in Same Day Funds and
(x) in the case of Offshore Currency payments, no later than such
time on the dates specified herein as may be determined by the
Applicable Agent (or the Applicable Swing Line Lender for Swing
Line Loans not made in U.S. Dollars or Pounds Sterling) (and
advised in writing to each Applicable Borrower) to be necessary
for such payment to be credited on such date in accordance with
normal banking procedures in the place of payment, and (y) in the
case of any U.S. Dollar or Canadian Dollar payments, no later
than 11:00 a.m. (New York City time) on the date specified
herein. The Applicable Agent will promptly distribute to each
Lender its Pro Rata Share of such payment received by it for the
account of the Lenders in like funds as received. Any payment
received by the Applicable Agent or the Applicable Swing Line
Lender, as the case may be, later than the time specified in
clause (x) or (y) above, as applicable, shall be deemed to have
been received on the following Business Day, and any applicable
interest or fee shall continue to accrue.
(b) Whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following
Business Day, and such extension of time shall be included in the
computation of interest or fees, as the case may be.
(c) Unless the Applicable Agent receives notice from
an Applicable Borrower that borrows in Canadian Dollars, U.S.
Dollars or Pounds Sterling prior to the date on which any payment
is due to the Lenders that such Applicable Borrower will not make
such payment in full as and when required, the Applicable Agent
may assume that such Applicable Borrower has made such payment in
full to the Applicable Agent on such date in Same Day Funds and
the Applicable Agent may (but shall not be required to), in
reliance upon such assumption, distribute to each Lender on such
due date an amount equal to the amount then due such Lender. If
and to the extent an Applicable Borrower that borrows in Canadian
Dollars, U.S. Dollars or Pounds Sterling, as the case be, has not
made such payment in full to the Applicable Agent, each Lender
shall repay to the Applicable Agent on demand such amount
distributed to such Lender, together with interest thereon at
(i) in the case of a payment in an Offshore Currency, the
Overnight Rate, (ii) in the case of payment in Canadian Dollars,
the Canadian Federal Funds Rate, or (iii) in the case of a
payment in U.S. Dollars, the U.S. Federal Funds Rate, in each
case for each day from the date such amount is distributed to
such Lender until the date repaid.
2.14 Payments by the Lenders to the Applicable Agent.
(a) Unless the Applicable Agent receives notice from a Lender on
or prior to the Closing Date or, with respect to any Committed
Borrowing or Canadian Borrowing after the Original Closing Date,
at least one Business Day prior to the date of such Borrowing,
that such Lender will not make available as and when required
hereunder to the Applicable Agent for the account of the
Applicable Borrower the amount of that Lender's Pro Rata Share of
the Committed Borrowing or Percentage of the Canadian Borrowing,
as applicable, the Applicable Agent may assume that such Lender
has made such amount available to the Applicable Agent in Same
Day Funds on the Borrowing Date and the Applicable Agent may (but
shall not be required to), in reliance upon such assumption, make
available to the Applicable Borrower on such date a corresponding
amount. If and to the extent any Lender shall not have made its
full amount available to the Applicable Agent in Same Day Funds
and the Applicable Agent in such circumstances has made available
to the Applicable Borrower such amount, such Lender shall on the
Business Day following such Borrowing Date make such amount
available to the Applicable Agent, together with interest at
(i) in the case of a payment in an Offshore Currency, the
Overnight Rate, (ii) in the case of payment in Canadian Dollars,
the Canadian Federal Funds Rate, and (iii) in the case of a
payment in U.S. Dollars, at the U.S. Federal Funds Rate, in each
case for each day during such period. A notice of the Applicable
Agent submitted to any Lender with respect to amounts owing under
this subsection (a) shall be conclusive, absent manifest error.
If such amount is so made available, such payment to the
Applicable Agent shall constitute such Lender's Loan on the date
of Borrowing for all purposes of this Agreement. If such amount
is not made available to the Applicable Agent on the Business Day
following the Borrowing Date, the Applicable Agent will notify
the Applicable Borrower of such failure to fund and, upon demand
by the Applicable Agent, the Applicable Borrower shall pay such
amount to the Applicable Agent for the Applicable Agent's
account, together with interest thereon for each day elapsed
since the date of such Committed Borrowing or Canadian Borrowing,
at a rate per annum equal to the interest rate applicable at the
time to the Committed Loans or Canadian Loans, as the case may
be, comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any
Borrowing Date shall not relieve any other Lender of its
obligation hereunder (if any) to make a Loan on such Borrowing
Date, but no Lender shall be responsible for the failure of any
other Lender to make the Loan to be made by such other Lender on
any Borrowing Date.
2.15. Adjustments. If any Lender (a "Benefitted
Lender") shall at any time receive any payment of all or part of
the Obligations then due and owing to it, or receive any
collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in subsection 9.1(f) or (g), or otherwise
(except pursuant to Section 2.6, 2.7, 2.8 or 2.9, Article IV or
Section 11.8)), in a greater proportion than any such payment to
or collateral received by any other Lender, if any, in respect of
the Obligations then due and owing to such other Lender, such
Benefitted Lender shall purchase for cash from the other Lenders
an interest (by participation or assignment (each in accordance
with Section 11.8)) in such portion of each such other Lender's
Revolving Facility Loans, Term Loans, Canadian Loans or the L/C
Obligations, as the case may be, owing to it, or shall provide
such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such
Benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably (based upon Dollar Equivalent
amounts) with each of the Lenders; provided, however, that if all
or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest. Each Credit
Agreement Loan Party expressly consents to the foregoing
arrangement and agrees that any holder of a participation in any
such Loan or L/C Obligation, as the case may be, so purchased and
any other subsequent holder of a participation in any Loan or L/C
Obligation otherwise acquired may exercise any and all rights of
banker's lien, set off or counterclaim with respect to any and
all monies owing by such Credit Agreement Loan Party to that
holder as fully as if that holder were a holder of such a Loan or
L/C Obligation in the amount of the participation held by that
holder.
2.16. Swing Line Commitment. (a) Subject to the
terms and conditions of this Agreement, each Swing Line Lender
agrees to make loans to the Swing Line Borrowers on a revolving
basis (each such loan, a "Swing Line Loan") from time to time on
any Business Day during the period from the Closing Date to the
Termination Date in an aggregate principal amount at any one time
outstanding for the Swing Line Borrowers collectively not to
exceed the Dollar Equivalent amount of U.S. $40.0 million;
provided, however, that (i) the aggregate amount (or CHF
Equivalent with respect to M-T GmbH) of the sum of Swing Line
Loans made and outstanding at any one time to any Subsidiary
Swing Line Borrower, plus the Subsidiary L/C Effective Amount of
all Subsidiary L/C Obligations of such Subsidiary Swing Line
Borrower shall not exceed the Subsidiary Swing Line Borrower
Sublimit for such Subsidiary Swing Line Borrower (or with respect
to the UK Swing Line Borrowers, the collective sublimit of the UK
Swing Line Borrowers) and the aggregate Dollar Equivalent amount
of Swing Line Loans made to US Borrower shall not exceed the US
Borrower Sublimit, (ii) the sum of the Dollar Equivalent amount
of the aggregate principal amount of all outstanding Swing Line
Loans, plus the aggregate principal Dollar Equivalent amount of
all other outstanding Revolving Facility Loans, plus (without
duplication) the Effective Amount of all L/C Obligations
(including Subsidiary L/C Obligations) shall not at any time
exceed the Revolving Facility Commitments of all Revolving
Facility Lenders (which calculation shall not give effect to the
Assumed Swing Line Loan Amount) and (iii) Scotiabank need only
make Swing Line Loans in U.S. Dollars to US Borrower and in
Pounds Sterling to the UK Swing Line Borrowers; Credit Suisse
First Boston need only make Swing Line Loans to M-T GmbH in such
currencies as it shall agree with such Subsidiary Swing Line
Borrower; Commerzbank AG need only make Swing Line Loans in
Deutschemarks to the German Subsidiary; and each other Swing Line
Lender need only make Swing Line Loans to the Subsidiary Swing
Line Borrower as it shall agree with and in the Applicable
Currency as it and the applicable Subsidiary Swing Line Borrower
shall agree. All Swing Line Loans made in U.S. Dollars shall be
made and maintained as ABR Loans.
(b) Notwithstanding any other provision of this
Agreement, (i) the German Subsidiary shall only borrow Swing Line
Loans in, and no Swing Line Lender shall make any Swing Line Loan
to any such Subsidiary Swing Line Borrower other than in,
Deutschemarks; (ii) Mettler-Toledo S.A., Veroflay shall only
borrow Swing Line Loans in, and no Swing Line Lender shall make
any Swing Line Loan to such Subsidiary Swing Line Borrower other
than in, French Francs; (iii) Mettler-Toledo K.K., Takarazuka
shall only borrow Swing Line Loans in, and no Swing Line Lender
shall make any Swing Line Loan to such Subsidiary Swing Line
Borrower other than in, Japanese Yen; (iv) the UK Swing Line
Borrowers shall only borrow Swing Line Loans in, and no Swing
Line Lender shall make any Swing Line Loan to such Subsidiary
Swing Line Borrower other than in, Pounds Sterling; and (v) US
Borrower shall only borrow Swing Line Loans in, and no Swing Line
Lender shall make any Swing Line Loan to US Borrower other than
in, U.S. Dollars.
(c) Credit Suisse First Boston shall not permit the
CHF Equivalent amount of all Swing Line Loans outstanding for M-T
GmbH, plus the Subsidiary L/C Effective Amount of all Subsidiary
L/C Obligations of M-T GmbH to exceed M-T GmbH's Subsidiary Swing
Line Borrower Sublimit.
2.17. Borrowing Procedures for Swing Line Loans.
(a) A Swing Line Borrower requesting a Swing Line Loan shall
give written or telephonic notice to the Applicable Swing Line
Lender of each proposed Borrowing pursuant to this Section 2.17
not later than 11:00 a.m. (local time) on the proposed Borrowing
Date (promptly followed within one Business Day by delivery of a
written notice). Each such notice shall be effective upon
receipt by the Applicable Swing Line Lender and shall specify the
Borrowing Date and amount of Borrowing. Unless the Applicable
Swing Line Lender has received written notice prior to 1:00 p.m.
(local time) on the proposed Borrowing Date from the
Administrative Agent or any Lender (or otherwise has knowledge)
that one or more of the conditions precedent set forth in Article
V with respect to such Borrowing is not then satisfied, the
Applicable Swing Line Lender shall pay over the requested amount
to the applicable Swing Line Borrower on the requested Borrowing
Date. Each Swing Line Loan shall be made on a Business Day and
shall be in the amount of (x) if made in U.S. Dollars or Pounds
Sterling, at least the Dollar Equivalent amount of U.S. $500,000
and an integral multiple of U.S. $500,000 and (y) if made in any
Offshore Currency other than Pounds Sterling, at least such
number of units of the Applicable Currency and such integral
multiple units of such Applicable Currency as is agreed to by the
Applicable Swing Line Lender and the applicable Swing Line
Borrower.
(b) The Applicable Swing Line Lender will determine
the Subsidiary Currency Equivalent amount with respect to
(i) the sum of Swing Line Loans made by such Swing
Line Lender to the Subsidiary Swing Line Borrower to whom it
makes Swing Line Loans, plus the Subsidiary L/C Effective
Amount of all Subsidiary L/C Obligations of such Subsidiary
Swing Line Borrower as of the requested Borrowing Date of
any Swing Line Loan,
(ii) the sum of all outstanding Swing Line Loans made
by such Swing Line Lender to the Subsidiary Swing Line
Borrower to whom it makes Swing Line Loans, plus the
Subsidiary L/C Effective Amount of all Subsidiary L/C
Obligations of such Subsidiary Swing Line Borrower as of the
last Business Day of each month, and
(iii) the sum of all outstanding Swing Line Loans
made by such Swing Line Lender to the Subsidiary Swing Line
Borrower to whom it makes Swing Line Loans, plus the
Subsidiary L/C Effective Amount of all Subsidiary L/C
Obligations of such Subsidiary Swing Line Borrower as of any
date on which the Revolving Facility Commitments, the US
Borrower Sublimit or the Subsidiary Swing Line Borrower
Sublimits are reduced pursuant to Section 2.6.
2.18. Refunding of Swing Line Loans. The
Applicable Swing Line Lender may, at any time in its sole and
absolute discretion, on behalf of (i) US Borrower, with respect
to any Swing Line Loan made to US Borrower, (ii) UK Borrower with
respect to any Swing Line Loan made to UK Borrower or Safeline
Limited (or if UK Borrower is not able to borrow under the
Revolving Facility, US Borrower), or (iii) CH Borrower, with
respect to any Swing Line Borrower other than US Borrower, UK
Borrower and Safeline Limited (and each such Applicable Borrower
hereby irrevocably directs the Applicable Swing Line Lender to
act on its behalf), request each Revolving Facility Lender to
make a Revolving Loan to the Applicable Borrower (x) with respect
to Credit Suisse First Boston, in CHF in an amount equal to such
Revolving Facility Lender's Pro Rata Share of the CHF Equivalent
amount of the principal amount of the Swing Line Loans made by
such Swing Line Lender outstanding on the date such notice is
given, and (y) with respect to each other Swing Line Lender other
than Credit Suisse First Boston, in the Applicable Currency of
the Swing Line Loans made by such Swing Line Lender (or, with
respect to Scotiabank, as identified and made by it) in an amount
equal to such Revolving Facility Lender's Pro Rata Share of the
Subsidiary Currency Equivalent amount of the principal amount of
the Swing Line Loans made by such Swing Line Lender outstanding
on the date such notice is given. Unless any of the events
described in subsection 9.1(f) or (g) shall have occurred (in
which event the procedures of Section 2.19 shall apply), and
regardless of whether the conditions precedent set forth in this
Agreement to the making of a Revolving Loan are then satisfied or
the aggregate amount of such Revolving Loans is not in the
minimum or integral amount otherwise required hereunder, each
Revolving Facility Lender shall make the proceeds of its
Revolving Loan available to (x) with respect to US Borrower and
UK Borrower, the Administrative Agent for the account of
Scotiabank at the office of the Administrative Agent in New York
prior to 11:00 a.m. (New York City time with respect to any
refunding of a Swing Line Loan made in U.S. Dollars or London,
England time with respect to any other Swing Line Loan) in Same
Day Funds on the Business Day next succeeding the date such
notice is given, and (y) with respect to CH Borrower, the
Applicable Swing Line Lender for the account of such Applicable
Swing Line Lender at the office of such Applicable Swing Line
Lender prior to 11:00 a.m. (local time) in Same Day funds on the
Business Day next succeeding the date such notice is given. The
proceeds of such Revolving Loans shall be immediately applied to
repay the outstanding Swing Line Loans of the Applicable Swing
Line Lender. All Revolving Loans made pursuant to this Section
2.18 shall be LIBOR Rate Loans with an Interest Period of one
month (but, subject to the other provisions of this Agreement,
may be continued as LIBOR Rate Loans with a different Interest
Period). No Revolving Facility Lender need make any Loan under
this Section 2.18 (x) with respect to Credit Suisse First Boston,
other than in CHF and (y) with respect to any other Swing Line
Lender, unless the Swing Line Loan has been made in accordance
with subsection 2.16(b). Notwithstanding any other provision of
this Agreement, if any Swing Line Lender shall have made Swing
Line Loans to or Issued Letters of Credit for the account of a
Subsidiary Swing Line Borrower such that the sum of the amount of
Swing Line Loans made and outstanding to such Subsidiary Swing
Line Borrower, plus the Subsidiary L/C Effective Amount of
Subsidiary L/C Obligations of such Subsidiary Swing Line Borrower
is in excess of the applicable Subsidiary Swing Line Borrower
Sublimit of such Subsidiary Swing Line Borrower (or, with respect
to M-T GmbH, in excess of the CHF Equivalent of the Subsidiary
Swing Line Borrower Sublimit of M-T GmbH), no Lender shall have
any obligation to make a Revolving Loan with respect to such
excess.
2.19. Participations in Swing Line Loans. (a) If
an event described in subsection 9.1(f) or (g) occurs (or for any
reason the Revolving Facility Lenders may not make Revolving
Loans pursuant to Section 2.18, other than as specified in the
last sentence thereof), each Revolving Facility Lender will, upon
notice from the Administrative Agent, purchase from the
Applicable Swing Line Lender (and the Applicable Swing Line
Lender will sell to each such Revolving Facility Lender) an
undivided participation interest in all outstanding Swing Line
Loans of such Swing Line Lender in an amount equal to its Pro
Rata Share of (x) with respect to Credit Suisse First Boston, the
CHF Equivalent amount, and (y) with respect to each other Swing
Line Lender other than Credit Suisse First Boston, the Subsidiary
Currency Equivalent amount of the outstanding principal amount of
the Swing Line Loans of such Swing Line Lender (and each
Revolving Facility Lender will immediately transfer to the
Administrative Agent, for the account of the Applicable Swing
Line Lender, in immediately available funds, the amount of its
participation and in the same currencies as if it were refunding
such Swing Line Loans pursuant to Section 2.18).
(b) Whenever, at any time after a Swing Line Lender
has received payment for any Revolving Facility Lender's
participation interest in the Swing Line Loans of such Swing Line
Lender pursuant to subsection 2.19(a), such Swing Line Lender
receives any payment on account thereof, such Swing Line Lender
will distribute to the Administrative Agent for the account of
such Revolving Facility Lender its participation interest in such
amount (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Revolving
Facility Lender's participation interest was outstanding and
funded) in like funds as received; provided, however, that in the
event that such payment received by such Swing Line Lender is
required to be returned, such Revolving Facility Lender will
return to the Administrative Agent for the account of such Swing
Line Lender any portion thereof previously distributed by such
Swing Line Lender to it in like funds as such payment is required
to be returned by such Swing Line Lender.
(c) Notwithstanding any other provision of this
Agreement, if any Swing Line Lender shall have made Swing Line
Loans to or Issued Letters of Credit for the account of a
Subsidiary Swing Line Borrower such that the amount of Swing Line
Loans made and outstanding to such Subsidiary Swing Line
Borrower, plus the Subsidiary L/C Effective Amount of Subsidiary
L/C Obligations of such Subsidiary Swing Line Borrower is in
excess of the applicable Subsidiary Swing Line Borrower Sublimit
for such Subsidiary Swing Line Borrower (or, with respect to M-T
GmbH, in excess of the CHF Equivalent of the Subsidiary Swing
Line Borrower Sublimit of M-T GmbH), no Lender shall have any
obligation to purchase any participation in the amount of such
excess.
2.20. Swing Line Participation Obligations
Unconditional. (a) Except as provided in Section 2.18 and
Section 2.19, each Revolving Facility Lender's obligation to make
Revolving Loans pursuant to Section 2.18 and/or to purchase
participation interests in Swing Line Loans pursuant to Section
2.19 shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including (a) any set-
off, counterclaim, recoupment, defense or other right which such
Revolving Facility Lender may have against the Applicable Swing
Line Lender, any Loan Party or any other Person for any reason
whatsoever; (b) the occurrence or continuance of an Event of
Default; (c) any adverse change in the condition (financial or
otherwise) of any Loan Party or any other Person; (d) any breach
of this Agreement by any Loan Party or any other Revolving
Facility Lender; (e) any inability of the applicable Swing Line
Borrower to satisfy the conditions precedent to borrowing set
forth in this Agreement on the date upon which any Swing Line
Loan is to be refunded or any participation interest therein is
to be purchased; or (f) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
(b) Notwithstanding the provisions of subsection
2.20(a), no Revolving Facility Lender shall be required to make
any Revolving Loan to any Applicable Borrower to refund a Swing
Line Loan pursuant to Section 2.18 or to purchase a participation
interest in a Swing Line Loan pursuant to Section 2.19 if, prior
to the making by the Applicable Swing Line Lender of such Swing
Line Loan, such Swing Line Lender received written notice from
such Revolving Facility Lender specifying that such Revolving
Facility Lender believes in good faith that one or more of the
conditions precedent to the making of such Swing Line Loan were
not satisfied and, in fact, such conditions precedent were not
satisfied at the time of the making of such Swing Line Loan;
provided, however, that the obligation of such Revolving Facility
Lender to make such Revolving Loans and to purchase such
participation interests shall be reinstated upon the earlier to
occur of (i) the date on which such Revolving Facility Lender
notifies the Applicable Swing Line Lender that its prior notice
has been withdrawn and (ii) the date on which all conditions
precedent to the making of such Swing Line Loan have been
satisfied (or waived by the Required Revolving Facility Lenders,
the Required Lenders or all Lenders, as applicable).
2.21. Conditions to Swing Line Loans.
Notwithstanding any other provision of this Agreement, no Swing
Line Lender shall be obligated to make any Swing Line Loan if an
Event of Default or Unmatured Event of Default exists or would
result therefrom.
2.22. Substitution of Lenders in Certain
Circumstances. In the event that (x) S&P or Moody's shall, after
the date that any Person becomes a Lender, downgrade the long-
term certificate of deposit ratings of such Lender, and the
resulting ratings shall be below BBB- or Baa3, respectively, or
the equivalent or (y) any Revolving Facility Lender gives notice
to the Administrative Agent that it is unable to make, convert or
continue any Offshore Currency Loan pursuant to subsection 2.5(b)
or (c), then each Applicable Borrower or each Applicable Agent
shall each have the right, but not the obligation, upon notice to
such Lender and the Applicable Agent, to replace such Lender with
a financial institution (a "Substitute Lender") acceptable to
each Applicable Borrower and each Applicable Agent (such consents
not to be unreasonably withheld or delayed; provided, however,
that no such consent shall be required if the Substitute Lender
is an existing Lender), and upon any such downgrading of any
Lender's long-term certificate of deposit rating or the giving of
such notice, each such Lender hereby agrees to transfer and
assign (in accordance with and subject to the restrictions
contained in Section 11.8) its Commitments, Loans, Notes and
other rights and obligations under this Agreement and all other
Loan Documents to such Substitute Lender; provided, however, that
(i) such assignment shall be without recourse, representation or
warranty (other than that such Lender owns the Commitments,
Loans, and Notes being assigned, free and clear of any Liens) and
(ii) the purchase price paid by the Substitute Lender shall be in
the amount of such Lender's Loans and its Pro Rata Share of
outstanding L/C Obligations, together with all accrued and unpaid
interest and fees in respect thereof, plus all other amounts
(other than the amounts (if any) demanded and unreimbursed under
Sections 4.1, 4.3 and 4.4, which shall be paid by each Applicable
Borrower), owing to such Lender hereunder. Upon any such
termination or assignment, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of any
provisions of this Agreement which by their terms survive the
termination of this Agreement.
2.23. Qualified Foreign Lender Notes. (a) Any
Lender that is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code and that is in compliance with the
requirements of subsection 4.1(f)(i) (a "Qualified Foreign
Lender") shall upon receipt of the written request of US Borrower
or the Administrative Agent, and may upon its own written request
to the Administrative Agent, (i) exchange any Tranche A-US Term
Note held by or assigned to it for a note in the form attached
hereto as Exhibit H-7 (a "QFL A-US Note"), (ii) exchange any
Tranche B Term Note held by or assigned to it for a note in the
form attached hereto as Exhibit H-8 (a "QFL B Note"), and (iii)
exchange any Tranche A-UK Term Note held by or assigned to it for
a note in the form attached hereto as Exhibit H-9 (a "QFL A-UK
Note" and together with the QFL A-US Note and the QFL B Note, the
"QFL Notes"); provided, however that, prior to any exchange of
Notes, such Lender shall have delivered to US Borrower the
certificates, documents and forms described in subsection
4.1(f)(i). Any QFL Notes issued in exchange for any existing
Notes pursuant to this subsection 2.23(a) shall be (i) dated the
Original Closing Date, (ii) issued in the names of the entities
in whose names such existing Notes were issued and (iii) issued
in the same principal amounts as such existing Notes. Any
Tranche B Term Note or Tranche A-US Term Note exchanged pursuant
to this subsection is sometimes referred to herein as an
"Exchange Note".
(b) US Borrower agrees that, upon the request of or
delivery of a request to a Qualified Foreign Lender pursuant to
subsection (a) of this Section 2.23, it shall execute and deliver
QFL Notes to the Administrative Agent in exchange for the
Exchange Note surrendered in connection with such request
conforming to the requirements of such subsection (a). Each
Qualified Foreign Lender shall surrender its Exchange Notes to
the Administrative Agent in connection with any exchange pursuant
to this subsection (b). Upon receipt by the Administrative Agent
of the Exchange Notes to be exchanged for such QFL Notes in
accordance with this subsection (b), the Administrative Agent
shall forward the appropriate QFL Notes to the Qualified Foreign
Lender which surrendered its Exchange Notes for exchange and
shall forward the Exchange Notes to US Borrower marked
"cancelled." Once issued, QFL Notes (i) shall be deemed to and
shall be "Notes" and Tranche B Term Notes and Tranche A-US Term
Notes, as the case may be, for all purposes under this Agreement,
the Security Documents and the other Loan Documents, (ii) may not
be exchanged for Tranche B Term Notes or Tranche A-US Term Notes,
as the case may be, notwithstanding anything to the contrary in
this Agreement and (iii) shall at all times thereafter be QFL
Notes, including, without limitation, following any transfer or
assignment thereof.
ARTICLE III.
THE LETTERS OF CREDIT
---------------------
3.1. The Letter of Credit Subfacility. (a) On the
terms and conditions set forth herein, (i) the L/C Lender agrees,
(A) from time to time on any Business Day during the period from
the Closing Date to the Termination Date to issue Letters of
Credit (including irrevocable standby letters of credit) for the
account of any Revolving Borrower (or, if a Letter of Credit is
for the account of a Subsidiary, jointly for the account of the
applicable Revolving Borrower and such Subsidiary), or, if such
L/C Lender is a Swing Line Lender, for the account of the
Subsidiary Swing Line Borrower to whom it makes Swing Line Loans,
and to amend or renew Letters of Credit previously issued by it,
in accordance with subsections 3.2(c) and 3.2(d), and (B) to
honor properly drawn drafts under the Letters of Credit; and
(ii) the Revolving Facility Lenders severally agree to
participate in Letters of Credit Issued for the accounts of the
Revolving Borrowers (including any Letter of Credit issued
jointly for the account of a Revolving Borrower and any
Subsidiary) or the Subsidiary Swing Line Borrowers; provided,
however, that the L/C Lender shall not be obligated to Issue, and
no Lender shall be obligated to participate in, any Letter of
Credit if as of the date of Issuance of such Letter of Credit
(the "Issuance Date") (I) with respect to any Issuance for the
account of any Revolving Borrower (or jointly for the account of
a Revolving Borrower and a Subsidiary), (1) the Effective Amount
of all L/C Obligations (other than Subsidiary L/C Obligations,
except those of the UK Swing Line Borrowers), plus (without
duplication) the outstanding principal Dollar Equivalent amount
of all Revolving Loans and Swing Line Loans (including the
Assumed Swing Line Loan Amount) exceeds the combined Revolving
Facility Commitments of all Revolving Facility Lenders, (2) the
participation of such Revolving Facility Lender in the Effective
Amount of all L/C Obligations (other than Subsidiary L/C
Obligations, except those of the UK Swing Line Borrowers), plus
(without duplication) the outstanding principal Dollar Equivalent
amount of the Revolving Loans of such Revolving Facility Lender,
plus such Revolving Facility Lender's Pro Rata Share of the
Dollar Equivalent amount of all outstanding Swing Line Loans
(including the Assumed Swing Line Loan Amount) exceeds such
Revolving Facility Lender's Revolving Facility Commitment, or
(3) the Effective Amount of all L/C Obligations exceeds the L/C
Commitment, (II) with respect to any Letter of Credit Issued for
the account of UK Borrower (or jointly for the account of UK
Borrower and any of its Subsidiaries), such Letter of Credit is
requested for Issuance prior to the Safeline Closing Date or the
Effective Amount of all L/C Obligations of Letters of Credit
Issued for the account of UK Borrower (unless Issued jointly for
the account of UK Borrower and a Borrower), plus (without
duplication) the outstanding principal Dollar Equivalent amount
of all Revolving Loans of UK Borrower exceeds 20.0 million Pounds
Sterling or (III) with respect to any Issuance for the account of
any Subsidiary Swing Line Borrower (unless such Issuance is
jointly for the account of such Subsidiary Swing Line Borrower
and a Borrower), the Subsidiary L/C Effective Amount of all
Subsidiary L/C Obligations of such Subsidiary Swing Line
Borrower, plus the Subsidiary Currency Amount of all Swing Line
Loans then outstanding of such Subsidiary Swing Line Borrower
exceeds the Subsidiary Swing Line Borrower Sublimit of such
Subsidiary Swing Line Borrower. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrowers'
ability to obtain Letters of Credit shall be fully revolving,
and, accordingly, the Borrowers may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit which have
expired or which have been drawn upon and reimbursed.
(b) The L/C Lender is under no obligation to Issue any
Letter of Credit if: any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms purport
to enjoin or restrain the L/C Lender from Issuing such Letter of
Credit, or any Requirement of Law applicable to the L/C Lender or
any request or directive (whether or not having the force of law)
from any Governmental Authority with jurisdiction over the L/C
Lender shall prohibit, or request that the L/C Lender refrain
from, the Issuance of letters of credit generally or such Letter
of Credit in particular or shall impose upon the L/C Lender with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the L/C Lender is not otherwise
compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Lender any unreimbursed loss, cost or
expense which was not applicable on the Original Closing Date and
which the L/C Lender in good faith deems material to it; the L/C
Lender has received written notice from any Lender, the
Administrative Agent or either Borrower or any Subsidiary Swing
Line Borrower, on or prior to the Business Day prior to the
requested date of Issuance of such Letter of Credit, that one or
more of the applicable conditions contained in Article V is not
then satisfied; the expiry date of any requested Letter of
Credit is (A) more than twelve months after the date of such
Issuance for standby Letters of Credit or more than 180 days
after the date of such issuance for commercial documentation
Letters of Credit, unless the Required Revolving Facility Lenders
have approved such expiry date in writing; provided, however,
that any standby Letter of Credit may be automatically extendible
for periods of up to one year so long as such Letter of Credit
provides that the L/C Lender retains an option reasonably
satisfactory to the L/C Lender, to terminate such Letter of
Credit prior to each extension date, or (B) after the fifth
Business Day prior to the Termination Date, unless all of the
Revolving Facility Lenders have approved such expiry date in
writing; any requested Letter of Credit does not provide for
drafts, or is not otherwise in form and substance reasonably
acceptable to the L/C Lender, or the Issuance of a Letter of
Credit shall violate any applicable policies of the L/C Lender;
such Letter of Credit (other than any Letter of Credit issued
solely for the account of M-T GmbH) is denominated in a currency
other than U.S. $ or an Offshore Currency; or an Event of
Default or Unmatured Event of Default has occurred and is
continuing. No L/C Lender need Issue a Letter of Credit for the
account of any Subsidiary Swing Line Borrower denominated in a
currency other than a currency in which such Subsidiary Swing
Line Borrower may borrow Swing Line Loans in accordance with
subsection 2.16(b).
(c) Notwithstanding the foregoing, in the event a
Lender Default exists, the L/C Lender shall not be required to
Issue any Letter of Credit unless the L/C Lender has entered into
arrangements satisfactory to it and the Revolving Borrowers and
the Subsidiary Swing Line Borrowers to eliminate the L/C Lender's
risk with respect to the participation in Letters of Credit of
the Defaulting Lender or Lenders, including by Cash
Collateralizing such Defaulting Lender's or Lenders' Pro Rata
Share of the L/C Obligations.
(d) Each L/C Lender who is to Issue Letters of Credit
for the account of a Subsidiary Swing Line Borrower will
determine the Subsidiary Currency Equivalent amount with respect
to the sum of Swing Line Loans made by such Swing Line Lender to
the Subsidiary Swing Line Borrower to whom it makes Swing Line
Loans, plus the Subsidiary L/C Effective Amount of all Subsidiary
L/C Obligations of such Subsidiary Swing Line Borrower as of the
requested Issuance Date of any Letter of Credit for such
Subsidiary Swing Line Borrower.
3.2. Issuance, Amendment and Renewal of Letters of
Credit. (a) Each Letter of Credit shall be Issued upon the
irrevocable written request of the applicable Revolving Borrower
or Subsidiary Swing Line Borrower received by the L/C Lender
(with a copy sent by the applicable Revolving Borrower or
Subsidiary Swing Line Borrower to the Administrative Agent) at
least three Business Days (or such shorter time as the L/C Lender
may agree in a particular instance in its sole discretion) prior
to the proposed date of Issuance. Each such request for Issuance
of a Letter of Credit shall be by facsimile, confirmed in an
original writing, in the form of an L/C Application, and shall
specify in form and detail reasonably satisfactory to the L/C
Lender: (i) the proposed date of Issuance of the Letter of
Credit (which shall be a Business Day); (ii) the face amount of
the Letter of Credit; (iii) the expiry date of the Letter of
Credit; (iv) the name and address of the beneficiary thereof;
(v) the documents to be presented by the beneficiary of the
Letter of Credit in case of any drawing thereunder; (vi) the full
text of any certificate to be presented by the beneficiary in
case of any drawing thereunder; (vii) the type of Letter of
Credit; (viii) with respect to any Letter of Credit Issued for
the account of UK Borrower, whether such Letter of Credit is to
be counted against the UK Borrower Sublimit or the Subsidiary
Swing Line Borrower Sublimit of the UK Swing Line Borrowers; and
(ix) such other matters as the L/C Lender may reasonably require.
(b) At least two Business Days prior to the Issuance
of any Letter of Credit, the L/C Lender will, other than with
respect to the Subsidiary Swing Line Borrowers, confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of the L/C Application
or L/C Amendment Application from the applicable Revolving
Borrower and, if not, the L/C Lender will provide the
Administrative Agent with a copy thereof. Unless the L/C Lender
has received, on or before the Business Day immediately preceding
the date the L/C Lender is to Issue a requested Letter of Credit,
(A) notice from the Administrative Agent directing the L/C Lender
(other than any L/C Lender making Swing Line Loans other than to
the UK Swing Line Borrowers or US Borrower) not to Issue such
Letter of Credit because such Issuance is not then permitted
under subsection 3.1(a) as a result of the limitations set forth
in clauses (1) through (3) thereof, or (B) a notice described in
subsection 3.1(b)(ii), then, subject to the terms and conditions
hereof, the L/C Lender shall, on the requested date, Issue a
Letter of Credit for the account of the applicable Revolving
Borrower (or jointly for the account of the applicable Revolving
Borrower and the applicable Subsidiary) or the applicable
Subsidiary Swing Line Borrower in accordance with the L/C
Lender's usual and customary business practices.
(c) From time to time while a Letter of Credit is
outstanding and prior to the Termination Date, the L/C Lender
will, upon the written request of the applicable Revolving
Borrower or the applicable Subsidiary Swing Line Borrower
received by the L/C Lender (with a copy sent by the applicable
Revolving Borrower or the applicable Subsidiary Swing Line
Borrower to the Administrative Agent) at least three days (or
such shorter time as the L/C Lender may agree in a particular
instance in its sole discretion) prior to the proposed date of
amendment, amend any Letter of Credit Issued by it. Each such
request for amendment of a Letter of Credit shall be made by
facsimile, confirmed immediately in an original writing, made in
the form of an L/C Amendment Application and shall specify in
form and detail reasonably satisfactory to the L/C Lender:
(i) the Letter of Credit to be amended; (ii) the proposed date of
amendment of the Letter of Credit (which shall be a Business
Day); (iii) the nature of the proposed amendment; and (iv) such
other matters as the L/C Lender may reasonably require. The L/C
Lender shall be under no obligation to, and shall not, amend any
Letter of Credit if: (A) the L/C Lender would have no obligation
at such time to Issue such Letter of Credit in its amended form
under the terms of this Agreement; or (B) the beneficiary of any
such Letter of Credit does not accept the proposed amendment to
the Letter of Credit. The Administrative Agent will promptly
notify the Revolving Facility Lenders of the receipt by it of any
L/C Application or L/C Amendment Application.
(d) The L/C Lender and the Revolving Facility Lenders
agree that, while a standby Letter of Credit is outstanding and
prior to the Termination Date, at the option of the applicable
Revolving Borrower or the applicable Subsidiary Swing Line
Borrower and upon the written request of the applicable Revolving
Borrower or the applicable Subsidiary Swing Line Borrower
received by the L/C Lender (with a copy sent by the applicable
Revolving Borrower or the applicable Subsidiary Swing Line
Borrower to the Administrative Agent) at least three Business
Days (or such shorter time as the L/C Lender may agree in a
particular instance in its sole discretion) prior to the proposed
date of notification of renewal, the L/C Lender shall be entitled
to authorize the automatic renewal of any Letter of Credit Issued
by it. Each such request for renewal of a Letter of Credit shall
be made by facsimile, confirmed in an original writing, in the
form of an L/C Amendment Application, and shall specify in form
and detail reasonably satisfactory to the L/C Lender: (i) the
standby Letter of Credit to be renewed; (ii) the proposed date of
notification of renewal of the Letter of Credit (which shall be a
Business Day not more than 60 days prior to the expiry date of
the Letter of Credit being renewed); (iii) the revised expiry
date of the Letter of Credit; and (iv) such other matters as the
L/C Lender may reasonably require. The L/C Lender shall be under
no obligation so to renew any Letter of Credit and shall not do
so if: (A) the L/C Lender would have no obligation at such time
to Issue or amend such Letter of Credit in its renewed form under
the terms of this Agreement; or (B) the beneficiary of any such
Letter of Credit does not accept the proposed renewal of the
Letter of Credit. If any outstanding Letter of Credit shall
provide that it shall be automatically renewed unless the
beneficiary thereof receives notice from the L/C Lender that such
Letter of Credit shall not be renewed, and if at the time of
renewal the L/C Lender would be entitled to authorize the
automatic renewal of such Letter of Credit in accordance with
this subsection 3.2(d) upon the request of the applicable
Revolving Borrower or the applicable Subsidiary Swing Line
Borrower but the L/C Lender shall not have received any L/C
Amendment Application from the applicable Revolving Borrower or
the applicable Subsidiary Swing Line Borrower with respect to
such renewal or other written direction by the applicable
Revolving Borrower or the applicable Subsidiary Swing Line
Borrower with respect thereto, the L/C Lender shall nonetheless
be permitted to allow such Letter of Credit to renew, and the
applicable Revolving Borrower and the Revolving Facility Lenders
hereby authorize such renewal, and, accordingly, the L/C Lender
shall be deemed to have received an L/C Amendment Application
from the applicable Revolving Borrower or the applicable
Subsidiary Swing Line Borrower requesting such renewal.
(e) The L/C Lender may, at its election (or as
required by the Administrative Agent at the direction of the
Required Revolving Facility Lenders), deliver any notices of
termination or other communications to any Letter of Credit
beneficiary or transferee, and take any other reasonable action,
at any time and from time to time, in order to cause the expiry
date of such Letter of Credit to be a date not later than the
fifth Business Day prior to the Termination Date.
(f) This Agreement shall control in the event of any
conflict with any L/C-Related Document (other than any Letter of
Credit).
(g) The L/C Lender will also deliver to the
Administrative Agent, concurrently or promptly following its
delivery of a Letter of Credit, or amendment to or renewal of a
Letter of Credit, to an advising bank or a beneficiary, a true
and complete copy of each such Letter of Credit or amendment to
or renewal of a Letter of Credit.
3.3. Risk Participations, Drawings and Reimbursements.
(a) Immediately upon the Issuance of each Letter of Credit, each
Revolving Facility Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the L/C
Lender a participation in such Letter of Credit and each drawing
thereunder in an amount equal to the product of (i) the Pro Rata
Share of such Revolving Facility Lender times (ii) the maximum
amount available to be drawn under such Letter of Credit and the
amount of such drawing, respectively.
(b) In the event of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the
applicable L/C Lender will promptly notify the applicable
Revolving Borrower or the applicable Subsidiary Swing Line
Borrower (but the failure to so notify any Revolving Borrower or
any Subsidiary Swing Line Borrower shall not impair any rights of
the Lenders or modify any obligation of the Revolving Borrowers
or any Subsidiary Swing Line Borrower). The applicable Revolving
Borrower or the applicable Subsidiary Swing Line Borrower shall
reimburse the L/C Lender prior to 1:00 p.m. (New York City time
or local time with respect to any Letter of Credit Issued for a
Subsidiary Swing Line Borrower), on each date that any amount is
paid by the L/C Lender under any Letter of Credit issued for the
account of such Revolving Borrower or Subsidiary Swing Line
Borrower (each such date, an "Honor Date"), in an amount equal to
the amount so paid by the L/C Lender. In the event the
applicable Revolving Borrower or the applicable Subsidiary Swing
Line Borrower fails to reimburse the L/C Lender for the full
amount of any drawing under any Letter of Credit by 1:00 p.m.
(New York City time or local time with respect to any Subsidiary
Swing Line Borrower) on the Honor Date, the L/C Lender will
promptly notify the Administrative Agent and the Administrative
Agent will promptly notify each Lender thereof. Thereupon US
Borrower with respect to all Letters of Credit Issued for its
account, UK Borrower with respect to all Letters of Credit Issued
for its account or for the account of Safeline Limited (or if UK
Borrower is not able to borrow under the Revolving Facility, US
Borrower), and CH Borrower with respect to all Letters of Credit
Issued for the account of any Subsidiary Swing Line Borrower
(other than UK Borrower or Safeline Limited) and itself (unless
Issued jointly for the account of US Borrower) shall be deemed to
have requested that Revolving Loans be made by the Revolving
Facility Lenders to be disbursed on the Honor Date under such
Letter of Credit, subject to the amount of the unutilized portion
of the Revolving Facility Commitment and subject to the
conditions set forth in subsections 5.2(b) and (c), which Loans
shall be ABR Loans accruing interest at a rate per annum equal to
the Alternate Base Rate, plus the Applicable Margin for ABR Loans
which are Revolving Loans, in the case of a drawing in U.S.
Dollars, or Loans accruing interest at a rate per annum equal to
the Overnight Rate applicable to such Offshore Currency from time
to time in effect, plus the Applicable Margin for LIBOR Rate
Loans which are Revolving Loans, plus, in the case of Revolving
Loans in Pounds Sterling, the MLA Cost, in the case of a drawing
in an Offshore Currency. Any notice given by the L/C Lender or
the Administrative Agent pursuant to this subsection 3.3(b) may
be oral if immediately confirmed in writing (including by
facsimile); provided, however, that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding
effect of such notice.
(c) Each Revolving Facility Lender shall upon any
notice pursuant to subsection 3.3(b) make available to the
Administrative Agent for the account of the L/C Lender an amount
in U.S. Dollars or the Offshore Currency in which such Letter of
Credit is denominated, as the case may be, and in Same Day Funds
equal to its Pro Rata Share of the amount of the drawing,
whereupon the participating Revolving Facility Lenders shall
(subject to subsection 3.3(d)) each be deemed to have made a
Revolving Loan to the applicable Revolving Borrower in that
amount accruing interest at a rate per annum equal to the
Alternate Base Rate, plus the Applicable Margin for ABR Loans
which are Revolving Loans (in the case of a drawing in U.S.
Dollars), or the Overnight Rate applicable to such Offshore
Currency from time to time in effect, plus the Applicable Margin
for LIBOR Rate Loans which are Revolving Loans (in the case of a
drawing in an Offshore Currency), plus, in the case of Revolving
Loans in Pounds Sterling, the MLA Cost. If any Revolving
Facility Lender so notified fails to make available to the
Administrative Agent for the account of the L/C Lender the amount
of such Revolving Facility Lender's Pro Rata Share of the amount
of the drawing by no later than 1:00 p.m. (New York time) on the
Honor Date, then interest shall accrue on such Revolving Facility
Lender's obligation to make such payment, from the Honor Date to
the date such Revolving Facility Lender makes such payment, at a
rate per annum equal to (i) in the case of a drawing in U.S.
Dollars, the U.S. Federal Funds Rate in effect from time to time
during such period and (ii) in the case of a drawing in an
Offshore Currency, the Overnight Rate applicable to such Offshore
Currency from time to time in effect. The Administrative Agent
will promptly give notice of the occurrence of the Honor Date,
but failure of the Administrative Agent to give any such notice
on the Honor Date or in sufficient time to enable any Revolving
Facility Lender to effect such payment on such date shall not
relieve such Revolving Facility Lender from its obligations under
this Section 3.3.
(d) With respect to any unreimbursed drawing that is
not converted into Revolving Loans to the applicable Revolving
Borrower in whole or in part, because of such Revolving
Borrower's failure to satisfy the conditions set forth in
subsections 5.2(b) and (c) or for any other reason, such
Revolving Borrower shall be deemed to have incurred from the L/C
Lender an L/C Borrowing in the amount of such drawing, which L/C
Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at a rate per annum equal to
(i) in the case of a drawing in U.S. Dollars, the Alternate Base
Rate, plus 2% per annum, and (ii) in the case of a drawing in an
Offshore Currency, the Overnight Rate applicable to such Offshore
Currency from time to time in effect, plus 2% per annum, plus, in
the case of Revolving Loans in Pounds Sterling, the MLA Cost, and
each Revolving Facility Lender's payment to the L/C Lender
pursuant to subsection 3.3(c) shall be deemed payment in respect
of its participation in such L/C Borrowing and shall constitute
an L/C Advance from such Revolving Facility Lender in
satisfaction of its participation obligation under this Section
3.3.
(e) Each Revolving Facility Lender's obligation in
accordance with this Agreement to make the Revolving Loans or L/C
Advances, as contemplated by this Section 3.3, as a result of a
drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the L/C Lender and shall
not be affected by any circumstance, including (i) any set-off,
counterclaim, recoupment, defense or other right which such
Revolving Facility Lender may have against the L/C Lender, the
applicable Revolving Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of an Event of
Default, an Unmatured Event of Default or a Material Adverse
Effect; or (iii) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing;
provided, however, that each Revolving Facility Lender's
obligation to make Revolving Loans under this Section 3.3 is
subject to the conditions set forth in Section 5.2.
3.4. Repayment of Participations. (a) Upon (and only
upon) receipt by the Administrative Agent for the account of the
L/C Lender of Same Day Funds from the applicable Revolving
Borrower or the applicable Subsidiary Swing Line Borrower (i) in
reimbursement of any payment made by the L/C Lender under the
Letter of Credit with respect to which any Revolving Facility
Lender has paid the Administrative Agent for the account of the
L/C Lender for such Revolving Facility Lender's participation in
the Letter of Credit pursuant to Section 3.3 or (ii) in payment
of interest thereon, the Administrative Agent will pay to each
Revolving Facility Lender, in the same funds as those received by
the Administrative Agent for the account of the L/C Lender, the
amount of such Revolving Facility Lender's Pro Rata Share of such
funds, and the L/C Lender shall receive the amount of the Pro
Rata Share of such funds of any Revolving Facility Lender that
did not so pay the Administrative Agent for the account of the
L/C Lender.
(b) If the Administrative Agent or the L/C Lender is
required at any time to return to the applicable Revolving
Borrower or the applicable Subsidiary Swing Line Borrower, or to
a trustee, receiver, liquidator or custodian, or any official in
any Insolvency Proceeding, any portion of any payment made by
such Revolving Borrower to the Administrative Agent for the
account of the L/C Lender pursuant to subsection 3.4(a) in
reimbursement of a payment made under any Letter of Credit or
interest or fee thereon, each Revolving Facility Lender shall, on
demand of the Administrative Agent, forthwith return to the
Administrative Agent or the L/C Lender the amount of its Pro Rata
Share of any amount so returned by the Administrative Agent or
the L/C Lender, plus interest thereon from the date such demand
is made to the date such amount is returned by such Revolving
Facility Lender to the Administrative Agent or the L/C Lender, at
a rate per annum equal to the U.S. Federal Funds Rate in effect
from time to time.
3.5. Role of the L/C Lender. (a) Each Revolving
Facility Lender, the Revolving Borrowers and the Subsidiary Swing
Line Borrowers agree that, in paying any drawing under a Letter
of Credit, the L/C Lender shall not have any responsibility to
obtain any document (other than any sight draft and certificates
or other documents expressly required by the Letter of Credit) or
to ascertain or inquire as to the validity or accuracy of any
such document or the authority of the Person executing or
delivering any such document.
(b) None of the Agents, any of their respective
Affiliates or any of the respective correspondents, participants
or assignees of the L/C Lender shall be liable to any Revolving
Facility Lender for: (i) any action taken or omitted in
connection herewith at the request or with the approval of the
Revolving Facility Lenders (including the Required Revolving
Facility Lenders, as applicable); (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct;
or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) Each Revolving Borrower and each Subsidiary Swing
Line Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any
Letter of Credit issued for its account; provided, however, that
this assumption is not intended to, and shall not, preclude a
Revolving Borrower's or a Subsidiary Swing Line Borrower's
pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement.
None of the Agents, any of their respective Affiliates or any of
the respective correspondents, participants or assignees of the
L/C Lender shall be liable or responsible for any of the matters
described in clauses (i) through (iv) of Section 3.6; provided,
however, that, anything in such clauses to the contrary
notwithstanding, a Revolving Borrower or a Subsidiary Swing Line
Borrower may have a claim against the L/C Lender, and the L/C
Lender may be liable to such Revolving Borrower or such
Subsidiary Swing Line Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary,
damages suffered by such Revolving Borrower or such Subsidiary
Swing Line Borrower which such Revolving Borrower or such
Subsidiary Swing Line Borrower proves were caused directly by the
L/C Lender's willful misconduct or gross negligence or the L/C
Lender's willful failure to pay under any Letter of Credit after
the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions
of a Letter of Credit. In furtherance and not in limitation of
the foregoing: (i) the L/C Lender may accept documents that
appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to
the contrary; and (ii) the L/C Lender shall not be responsible
for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective
for any reason.
3.6. Obligations Absolute. The obligations of the
Revolving Borrowers and the Subsidiary Swing Line Borrowers under
this Agreement and any L/C-Related Document to reimburse the L/C
Lender for a drawing under a Letter of Credit, and to repay any
L/C Borrowing and any drawing under a Letter of Credit converted
into Committed Loans, shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this
Agreement and each such other L/C-Related Document under all
circumstances, including the following: any lack of validity or
enforceability of this Agreement or any L/C-Related Document;
the existence of any claim, set-off, defense or other right that
a Borrower may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any Person for whom any
such beneficiary or any such transferee may be acting), the L/C
Lender or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by the L/C-
Related Documents or any unrelated transaction; any draft,
demand, certificate or other document presented under any Letter
or Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue
or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to
make a drawing under any Letter of Credit; or any other
circumstance or happening whatsoever, whether or not similar to
any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, a
Revolving Borrower or a Subsidiary Swing Line Borrower or a
guarantor; provided, however, that the Revolving Borrowers and
the Subsidiary Swing Line Borrowers shall not be obligated to
reimburse the L/C Lender for any wrongful payment made by the L/C
Lender as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the L/C Lender.
3.7. Cash Collateral Pledge. If any Letter of Credit
remains outstanding and partially or wholly undrawn as of the
Termination Date, then the Revolving Borrowers or the applicable
Subsidiary Swing Line Borrower shall immediately Cash
Collateralize the L/C Obligations Issued for their respective
accounts in an amount equal to the maximum amount then available
to be drawn under all Letters of Credit.
3.8 Letter of Credit Fees. (a) The applicable
Revolving Borrower or the applicable Subsidiary Swing Line
Borrower shall pay to (i) with respect to any Letter of Credit
Issued for any Revolving Borrower (other than any UK Borrower
Swing Line L/C), the Administrative Agent for the account of each
of the Revolving Facility Lenders, and (ii) with respect to
Letters of Credit Issued for the account of any Subsidiary Swing
Line Borrower (other than UK Borrower if such Letter of Credit is
not a UK Borrower Swing Line L/C), the applicable L/C Lender for
its account only, a letter of credit fee with respect to the
Letters of Credit Issued for their respective accounts at a rate
per annum equal to the then Applicable Margin for LIBOR Rate
Loans which are Revolving Facility Loans on an amount equal to
the average daily maximum amount available to be drawn of the
outstanding Letters of Credit Issued for their respective
accounts (the "Computation Amount"), computed on a quarterly
basis in arrears on the last Business Day of each calendar
quarter and on the Termination Date (or such later date on which
all outstanding Letters of Credit Issued for their respective
accounts have been terminated or have expired) based upon Letters
of Credit outstanding Issued for their respective accounts for
the applicable period as calculated by (x) the Administrative
Agent with respect to Letters of Credit Issued for the account of
the Revolving Borrowers, or (y) the applicable L/C Lender with
respect to any Letter of Credit Issued solely for the account of
a Subsidiary Swing Line Borrower.
(b) The applicable Revolving Borrower or the
applicable Subsidiary Swing Line Borrower shall pay to (i) with
respect to Letters of Credit Issued for the account of any
Revolving Borrower, the Administrative Agent, or (ii) with
respect to Letters of Credit Issued for the account of any
Subsidiary Swing Line Borrower, the applicable L/C Lender, in
each case for the account of the L/C Lender a letter of credit
fronting fee for each Letter of Credit Issued by the L/C Lender
for the account of such Revolving Borrower or Subsidiary Swing
Line Borrower, as the case may be, of at least U.S. $100 or, if
greater, at the rate per annum equal to 1/4% of the Computation
Amount, computed on the last Business Day of each calendar
quarter and on the Termination Date (or such later date on which
all outstanding Letters of Credit Issued for their respective
accounts have been terminated or have expired) based upon the
Letters of Credit outstanding for the applicable period as
calculated by (x) the Administrative Agent with respect to
Letters of Credit Issued for the account of the Revolving
Borrowers or (y) the applicable L/C Lender with respect to any
Letter of Credit Issued solely for the account of a Subsidiary
Swing Line Borrower, which fee, with respect to the L/C Lender's
share of the fee set forth in this subsection 3.8(b), shall be
credited against the fee payable under subsection 3.8(a).
(c) The letter of credit fees payable under subsection
3.8(a) and the fronting fees payable under subsection 3.8(b)
shall be due and payable quarterly in arrears on the last
Business Day of each calendar quarter during which Letters of
Credit are outstanding, commencing on the first such quarterly
date to occur after the Closing Date, through the Termination
Date (or such later date upon which all outstanding Letters of
Credit Issued for the respective account of a Revolving Borrower
or a Subsidiary Swing Line Borrower have been terminated or have
expired), with the final payment to be made on the Termination
Date (or such later termination or expiration date). All fees
payable under this Section 3.8 shall be calculated as of their
due date based upon the Dollar Equivalent amount of the
Computation Amount as of such date based upon the Spot Rate. All
such fees shall be payable solely in U.S. Dollars.
(d) The Revolving Borrowers and the Subsidiary Swing
Line Borrowers shall pay to the L/C Lender from time to time on
demand the normal issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the L/C
Lender relating to letters of credit as from time to time in
effect.
3.9. Uniform Customs and Practice. The Uniform Customs
and Practice for Documentary Credits as published by the
International Chamber of Commerce most recently at the time of
issuance of any Letter of Credit shall (unless otherwise
expressly provided in such Letter of Credit) apply to such Letter
of Credit.
3.10. Letters of Credit for the Account of
Subsidiaries. Each Revolving Borrower and its applicable
Subsidiary shall be jointly and severally liable for any Letter
of Credit which is issued jointly for the account of that
Revolving Borrower and any of its Subsidiaries.
ARTICLE IV.
NET PAYMENTS, YIELD PROTECTION AND ILLEGALITY
----------------------------------------------
4.1. Net Payments. (a) Except as provided in
subsection 4.1(b), all payments by any Loan Party to any Lender
or any Agent under this Agreement and any other Loan Document
shall be made free and clear of, and without deduction or
withholding for, any Covered Taxes levied or imposed by any
Governmental Authority with respect to such payments. The
Borrowers covenant and agree on behalf of the Subsidiaries that
the provisions of this Section 4.1 shall apply to all payments
under any Loan Document. In the event that any Loan Party (other
than any Applicable Borrower) is obligated to make any payments
described in this Section 4.1 under any Loan Document, the
Lenders and Agents covenant and agree to deliver to any such Loan
Party any forms or certificates that (i) they are able to
deliver, and (ii) they would have been required to deliver to
such Loan Party if it were an Applicable Borrower pursuant to
this Section 4.1 and the appropriate requests therefor have been
made; provided, however, that no Lender or Agent shall have any
liability to any Loan Party or any other Person if such Lender or
Agent is not in compliance with this sentence.
(b) If any Loan Party shall be required by law to
deduct or withhold any Covered Taxes from or in respect of any
sum payable hereunder to any Lender or any Agent, then except as
provided in subsection 4.1(g): (i) the sum payable shall be
increased as necessary so that after making all such required
deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this
Section) such Lender or such Agent, as the case may be, receives
an amount equal to the sum it would have received had no such
deductions or withholdings been made; (ii) such Loan Party shall
make such deductions and withholdings; and (iii) such Loan Party
shall pay the full amount deducted or withheld to the relevant
taxing authority or other authority in accordance with applicable
law. If for any reason CH Borrower, Canadian Borrower or any
other Loan Party (other than UK Borrower) fails to make any
payments required under the preceding sentence, then US Borrower
shall make such payments on behalf of CH Borrower, Canadian
Borrower or such Loan Party. Within 30 days after the date of
any payment by a Loan Party of Covered Taxes, such Loan Party
shall furnish the Administrative Agent or the Applicable
Subsidiary Swing Line Lender, in the case of any Subsidiary Swing
Line Borrower, the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment
reasonably satisfactory to the Administrative Agent or the
Applicable Subsidiary Swing Line Lender, in the case of any
Subsidiary Swing Line Borrower.
(c) The Loan Parties agree to indemnify and hold
harmless each Lender and each Agent for (i) the full amount of
Covered Taxes (including any Covered Taxes imposed by any
jurisdiction on amounts payable under this Section 4.1) paid by
such Lender or such Agent and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or
with respect thereto, whether or not such Covered Taxes were
correctly or legally asserted, and (ii) any Taxes levied or
imposed by any Governmental Authority on any additional amounts
paid by any Loan Party under this Section 4.1 that are measured
by such Lender's or such Agent's net income by the jurisdiction
(or any political subdivision thereof) under the laws of which
such Lender or such Agent, as the case may be, is organized or
maintains a Lending Office.
(d)(i) If a Lender or an Agent receives a refund or
credit of Taxes paid or indemnified by a Loan Party pursuant to
subsection (b) or (c) of this Section 4.1, then such Lender or
such Agent shall promptly repay the applicable Loan Party such
refund or the net benefit obtained by such Lender as a
consequence of the receipt of such credit (whether paid pursuant
to subsection (b) or (c) of this Section 4.1 and whether of the
type described in either clause (i) or (ii) of such subsection
(c)) net of all out-of-pocket expenses related thereto and
without interest (other than interest received as part of such
refund or credit); provided, however, that if, due to any
adjustment of such Taxes (or of any liability, including
penalties, interest, additions to tax and expenses, arising
therefrom or with respect thereto), such Lender or such Agent
loses the benefit of all or any portion of such refund or credit,
the Loan Parties will indemnify and hold harmless such Lender or
such Agent in accordance with this subsection. A certificate as
to the amount of any such required indemnification payment
prepared by the Lender or such Agent and setting forth a
reasonable basis for such claim shall be final, conclusive and
binding for all purposes (it being understood and agreed that a
Lender shall in no circumstances be required to disclose any
information or details of or relating to its tax or financial
affairs under or pursuant to this Section 4.1(d)(i)). Payment
under this indemnification shall be made within 30 days after the
date such Lender or such Agent makes written demand therefor by
the delivery of such certificate.
(ii) In furtherance of the provisions of subsection
(d)(i), if a Lender having a Revolving Facility Commitment,
Revolving Facility Loan, Tranche A-UK Facility Commitment or
Tranche A-UK Term Loan (each, a "UK Lender") is entitled to
receive any additional amounts pursuant to this Section 4.1 which
are attributable to any withholding imposed prior to or during
the time that such Lender's UK Certificate (as defined in
subsection 4.1 (f)(viii)) is being processed or considered by
Inland Revenue (or by the taxing authority of such Lender's
jurisdiction of residence in support thereof), then such UK
Lender shall take all reasonable steps which are necessary to
obtain (or obtain the benefit of) any refund, credit, relief,
remission or repayment of Taxes, including filing such forms,
certificates, documents, applications or returns as may be
required to obtain such tax benefit and shall take such steps at
the earliest reasonable time; provided, however, that the amount
of any material expenses or costs incurred by such UK Lender
shall be reimbursed by UK Borrower promptly on demand by such
Lender.
(e) If any Loan Party is required to pay additional
amounts to any Lender or any Agent pursuant to this Section 4.1,
then such Lender shall use reasonable efforts (consistent with
legal and regulatory restrictions) to change the jurisdiction of
its Lending Office or take other appropriate action so as to
eliminate any obligation to make such additional payment by such
Loan Party which may thereafter accrue, if such change or other
action in the reasonable judgment of such Lender is not otherwise
disadvantageous or burdensome to such Lender.
(f)(i) Each Lender (other than a Canadian Lender
which is not also making a Revolving Facility Loan or Term Loan
to US Borrower or UK Borrower) or Agent which is not a United
States person (as such term is defined in Section 7701(a) of the
Code) agrees that:
(A) it shall, no later than the Original Closing Date
(or, in the case of a Lender which becomes a party hereto
after the Original Closing Date, the date upon which such
Lender becomes a party hereto) deliver to the Administrative
Agent and to the Borrowers through the Administrative Agent
(x) two accurate and complete signed originals of IRS Form
4224 or any successor thereto ("Form 4224"), or two accurate
and complete signed originals of IRS Form 1001 or any
successor thereto ("Form 1001"), as appropriate, or (y) if
such Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code and cannot deliver either Form 1001
or Form 4224 pursuant to clause (x) above, a certificate
substantially in the form of Exhibit L-1 (any such
certificate, a "Section 4.1(f)(i) Certificate") and, in the
case of either (x) or (y), two accurate and complete
original signed copies of IRS Form W-8 or any successor
thereto ("Form W-8") or IRS Form W-9 or any successor
thereto ("Form W-9"), whichever is applicable;
(B) if at any time such Lender or Agent makes any
changes necessitating a new Form 4224, Form 1001, Form W-8,
Form W-9 or Section 4.1(f)(i) Certificate, as the case may
be, it shall with reasonable promptness deliver to the
Administrative Agent and to the Borrowers through the
Administrative Agent in replacement for, or in addition to,
the forms previously delivered by it hereunder, two accurate
and complete signed originals of Form 4224, Form 1001, Form
W-8, Form W-9 or Section 4.1(f)(i) Certificate, as
appropriate; and
(C) it shall, before or promptly after the occurrence
of any event (including the passing of time (and in any
event (x) in the case of a Form 4224 or Section 4.1(f)(i)
Certificate, before the payment of any interest in each
succeeding taxable year of such Lender after the Original
Closing Date during which interest may be paid under this
Agreement, and (y) in the case of a Form 1001, before the
payment of any interest in each third succeeding calendar
year after the Original Closing Date during which interest
may be paid under this Agreement) but excluding any event
mentioned in clause (B) above) requiring a change in or
renewal of the most recent Form 4224, Form 1001, Form W-8,
Form W-9 or Section 4.1(f)(i) Certificate, previously
delivered by such Lender or Agent, deliver to the
Administrative Agent and to the Borrowers through the
Administrative Agent two accurate and complete original
signed copies of Form 4224, Form 1001, or Form W-8 and a
Section 4.1(f)(i) Certificate, in replacement for the forms
previously delivered by such Lender or Agent.
(ii) Each Lender or Agent that is incorporated or
organized under the laws of the United States of America or a
state thereof shall provide two properly completed and duly
executed copies of Form W-9, or successor applicable form, at the
times specified for delivery of forms under paragraph (f)(i) of
this subsection.
(iii) Each Form 1001 or 4224 delivered by a Lender
or Agent pursuant to this subsection (f) shall certify, unless
unable to do so by virtue of a Change in Law occurring after the
date such Lender or Agent becomes a party hereto, that the Lender
or Agent is entitled to receive payments under this Agreement
without deduction or withholding of U.S. federal income taxes and
each Form W-9 shall certify, unless unable to do so by virtue of
a Change in Law occurring after the date such Lender or Agent
becomes a party hereto, that such Lender or Agent is entitled to
an exemption from U.S. backup withholding. Each Canadian
Certificate (as defined in subsection 4.1(f)(vii)) shall certify,
unless unable to do so by virtue of a Change in Law occurring
after the date such Lender or Agent becomes a party hereto, that
the Lender or Agent is entitled to receive payments under this
Agreement without deduction or withholding of Canadian federal
income taxes. Each UK Certificate (as defined in subsection 4.1
(f)(viii)) shall certify or establish, unless unable to do so by
virtue of a Change in Law occurring after the date such Lender or
Agent becomes a party hereto, that the Lender or Agent is
entitled to receive payments under this Agreement without
deduction or withholding of UK income taxes.
(iv) Notwithstanding the foregoing provisions of this
subsection (f) or any other provision of this Section 4.1, no
Lender or Agent shall be required to deliver any form pursuant to
this Section 4.1 if such Lender or Agent is not legally able to
do so by virtue of a Change in Law occurring after the date such
Lender or Agent becomes a party hereto.
(v) Each Revolving Facility Lender and Tranche A-CHF
Lender shall, no later than the Original Closing Date (or, in the
case of any such Lender which becomes a party hereto after the
Original Closing Date, the date upon which such Lender becomes a
party hereto) deliver a certificate substantially in the form of
Exhibit L-2 or other form of certificate reasonably satisfactory
to CH Borrower (any such certificate, a "Section 4.1(f)(v)
Certificate"); provided, however, that with respect to any
Revolving Facility Loan or Tranche A-CHF Term Loan (a) no
Revolving Facility Lender or Tranche A-CHF Lender making Loans or
having Commitments as of the Original Closing Date need deliver
any Section 4.1(f)(v) Certificate if (i) it is unable to do so
and (ii) the total number of Lenders within the same Facility who
have not delivered Section 4.1(f)(v) Certificates does not exceed
three and (b) after the Original Closing Date no Assignee (or
branch or Affiliate designated pursuant to Section 4.9) of a
Revolving Facility Lender or Tranche A-CHF Lender need deliver
any Section 4.1(f)(v) Certificate if (i) it is unable to do so
and (ii) the assignment to such Assignee would not increase
beyond three the sum of (a) the total number of Lenders within
the same Facility who have not delivered Section 4.1(f)(v)
Certificates and (b) the total number of Lenders within the same
Facility who have notified CH Borrower or the Administrative
Agent that any of the representations made in a previously
delivered Section 4.1.(f)(v) Certificate are no longer true and
correct. Each Lender delivering a Section 4.1(f)(v) Certificate
further agrees to deliver a new Section 4.1(f)(v) Certificate at
the times specified for delivery of a Section 4.1(f)(i)
Certificate under subsections (f)(i)(B) and (C) of this Section
4.1, unless it is unable to do so by virtue of a Change in Law
occurring after the date such Lender becomes a party hereto.
(vi) Each Lender or Agent shall, promptly upon a Loan
Party's or the Administrative Agent's reasonable request to that
effect, deliver to such Loan Party or the Administrative Agent
(as the case may be) such other forms or similar documentation or
other information as may be required from time to time by any
applicable law, treaty, rule or regulation of any Governmental
Authority in order to establish such Lender's or Agent's tax
status for withholding purposes.
(vii) Each Canadian Lender agrees that it shall, no
later than the Safeline Closing Date (or, in the case of a
Canadian Lender which becomes a party hereto after the Safeline
Closing Date, the date upon which such Lender becomes a party
hereto), deliver to the Canadian Agent and to Canadian Borrower
through the Canadian Agent an instrument in writing (a "Canadian
Certificate") certifying one of the following:
(A) that such Canadian Lender is not a non-resident of
Canada for the purposes of Part XIII of the Income Tax Act
(Canada) and that it is the sole beneficial owner of
payments of principal and interest on its Canadian Loans
under this Agreement;
(B) its jurisdiction of incorporation and residence
for tax purposes, that it is the sole beneficial owner of
payments of principal and interest on its Canadian Loans
under this Agreement and the rate of withholding tax
applicable to any payment of interest to it as such rate may
be reduced by an applicable tax convention entered into by
Canada; or
(C) its jurisdiction of incorporation and residence
for tax purpose, the names of the beneficial owners of
payments of principal and interest on its Canadian Loans
under this Agreement, the residence for tax purposes of each
of such beneficial owners and the rate of withholding tax
applicable to any payment of interest in respect of each
beneficial owner as such rate may be reduced by an
applicable tax convention entered into by Canada.
In addition, each Canadian Lender shall notify Canadian Borrower
and the Canadian Agent of any changes in respect of (A), (B) or
(C), as the case may be, and shall promptly deliver to the
Administrative Agent and Borrowers a Canadian Certificate in
replacement thereof, which Canadian Certificate shall, in any
event, be delivered prior to the next date for the payment of any
interest to such Lender. If the Canadian Agent receives a
request from Revenue Canada Customs, Excise and Taxation or
another taxing authority to provide additional information
concerning the withholding tax status of any Canadian Lender,
such Canadian Lender shall (upon notice of such request from the
Canadian Agent) use reasonable efforts to obtain and deliver such
information to such taxing authority, the Canadian Agent and
Canadian Borrower.
(viii) Each UK Lender:
(A) represents and warrants that it is a UK Qualifying
Lender and that such warranty will be deemed to be
repeated by each UK Lender on the due date for payment
of any amount to such Lender under this Agreement;
provided, however, that if a UK Lender is not or ceases
to be a UK Qualifying Lender as a result of any Change
in Law occurring after the date hereof (or the date
upon which such Lender becomes a party hereto, if
later) such UK Lender shall not be liable to any Credit
Agreement Loan Party for a breach of such
representation and warranty;
(B) agrees to promptly notify the Administrative Agent and
the Borrowers of any change in its status as a UK
Qualifying Lender of which it is aware;
(C) agrees that, if it is a Treaty Lender, it shall (i) no
later than the Safeline Closing Date (or in the case of
a Lender which becomes a party hereto after the
Safeline Closing Date, the date upon which such Lender
becomes a party hereto) deliver to the Administrative
Agent an accurate and complete signed original of the
claim form for relief from the United Kingdom
withholding applicable to such Lender's jurisdiction of
residence (a "UK Certificate"), which the
Administrative Agent shall, if it receives such forms
on or prior to the Safeline Closing Date, deliver to US
Borrower no later than the Safeline Closing Date,
(ii) promptly complete and submit any other Inland
Revenue form or forms applicable to such Lender's
jurisdiction of residence, together with all necessary
certifications as are required to claim exemption from
Taxes in the United Kingdom for payments made
hereunder, and (iii) do all things reasonably requested
by the UK Borrower, the Administrative Agent, the
Inland Revenue or the taxing authority of such Lender's
jurisdiction of residence with a view to expediting
confirmation from the Inland Revenue of such exemption
and with a view to ensuring that such exemption is
maintained in full force and effect; provided, however,
that the amount (as certified by the Lender) of any
material expenses or costs incurred by any Lender in
compliance with this clause (iii) shall be reimbursed
by UK Borrower promptly on demand by such Lender. Each
Treaty Lender further agrees to deliver a new UK
Certificate in the event of the occurrence of any event
requiring a change in or renewal of any UK Certificate.
Nothing in this subsection 4.1(f)(viii)(C) shall
eliminate any form delivery requirement specified in
subsections 4.1(f)(i), (ii), or (v) for any UK Lender.
(g) No Loan Party will be required to pay any
additional amount in respect of Taxes pursuant to this Section
4.1 to any Lender or to any Agent with respect to any Lender if
the obligation to pay such additional amount would not have
arisen but for a failure by such Lender or Agent to comply with
its obligations under subsection 4.1(f) or Section 11.8 or
because such Lender is not or ceases to be a UK Qualifying Lender
(other than by reason of a Change in Law occurring after the date
hereof or the date upon which such Lender became a party hereto,
if later).
(h) Each Lender agrees to indemnify and hold harmless
the Loan Parties and each Agent from and against any Taxes,
penalties, interest and other costs or losses (including Attorney
Costs) incurred or payable by the Loan Parties or an Agent as a
result of the failure of the Loan Parties or an Agent to comply
with its obligations to deduct or withhold any Taxes from any
payments made pursuant to this Agreement which failure resulted
from such Loan Party's or an Agent's reasonable reliance on any
form, statement, certificate or other information provided to it
by such Lender pursuant to this Section 4.1.
(i) If, at any time, any Applicable Borrower requests
any Lender to deliver any forms or other documentation pursuant
to subsection 4.1(f)(vi), then such Applicable Borrower shall, on
demand of such Lender through the Administrative Agent, reimburse
such Lender for any material costs and expenses (including
Attorney Costs) reasonably incurred by such Lender in the
preparation or delivery of such forms or other documentation.
4.2. Illegality. (a) If any Lender determines that
any Change in Law has made it unlawful, or that any central bank
or other Governmental Authority has asserted that it is unlawful,
for such Lender or its applicable Lending Office to make or
maintain LIBOR Rate Loans in any Applicable Currency or, in the
case of any Canadian Lender, BA Equivalent Rate Loans, then, on
notice thereof by the Lender to the Applicable Borrower through
the Applicable Agent any obligation of such Lender to make,
convert or continue LIBOR Rate Loans in such Applicable Currency
or BA Equivalent Rate Loans, as the case may be, shall be
suspended until such Lender notifies the Applicable Agent and the
Applicable Borrower that the circumstances giving rise to such
determination no longer exist and until such time such Lender's
commitment shall be only to make an ABR Loan, or Prime Rate Loan
with respect to the Canadian Facility, when a LIBOR Rate Loan is
requested in such Applicable Currency or, in the case of any
Canadian Lender, when a BA Equivalent Rate Loan is requested.
(b) If a Lender determines that it is unlawful to
maintain any LIBOR Rate Loan in any Applicable Currency or, in
the case of any Canadian Lender, BA Equivalent Rate Loans,
(x) with respect to any such LIBOR Rate Loan that is an Offshore
U.S. Dollar Loan, such Loan shall be automatically converted to
an ABR Loan either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such
LIBOR Rate Loan to such day, or immediately if not, and (y) with
respect to any other LIBOR Rate Loan or BA Equivalent Rate Loan,
the Applicable Borrower shall, upon their receipt of notice of
such fact and demand from such Lender (with a copy to the
Applicable Agent), prepay in full such LIBOR Rate Loans or BA
Equivalent Rate Loans, as applicable, of such Lender then
outstanding in such Applicable Currency, together with interest
accrued thereon and amounts required under Section 4.4, either on
the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such LIBOR Rate Loan or such BA
Equivalent Rate Loan to such day, or immediately, if not. If
Canadian Borrower is required to so prepay any BA Equivalent Rate
Loan, then concurrently with such prepayment, Canadian Borrower
shall borrow from the affected Lender a Prime Rate Loan.
(c) Before giving any notice to the Administrative
Agent under this Section, the affected Lender shall designate a
different Lending Office with respect to its LIBOR Rate Loans or
BA Equivalent Rate Loans or take other appropriate action if
such designation or other action will avoid the need for giving
notice and will not, in the judgment of such Lender, be illegal
or otherwise disadvantageous to such Lender.
4.3. Increased Costs and Reduction of Return. (a) If
any Lender determines that, due to either (i) the introduction of
or any change in or in the interpretation of any law or
regulation or (ii) the compliance by such Lender with any
guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), in either
case after the Original Closing Date, there shall be any increase
in the cost to such Lender of agreeing to make or making, funding
or maintaining any LIBOR Rate Loan or BA Equivalent Rate Loan or
participating in Letters of Credit, or, in the case of the L/C
Lender, any increase in the cost to the L/C Lender of agreeing to
issue, issuing or maintaining any Letter of Credit or of agreeing
to make or making, funding or maintaining any unpaid drawing
under any Letter of Credit, then US Borrower (subject to the
limitations herein) and each Applicable Borrower shall be liable
for, and shall from time to time, upon demand (which demand shall
contain a reasonably detailed calculation of any relevant costs
and shall be conclusive and binding in the absence of manifest
error, and a copy thereof shall be sent to the Administrative
Agent), pay to the Administrative Agent for the account of such
Lender, additional amounts as are sufficient to compensate such
Lender for such increased costs; provided, however, that (i) CH
Borrower shall be liable only for those additional amounts
relating to the Obligations of CH Borrower and each CH Foreign
Subsidiary, (ii) UK Borrower shall be liable only for those
additional amounts relating to the Obligations of UK Borrower,
(iii) Canadian Borrower shall be liable only for those additional
amounts relating to Obligations of Canadian Borrower, and (iv) US
Borrower shall not be responsible for any additional amounts
relating to the Obligations of UK Borrower.
(b) If any Lender shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change
in any Capital Adequacy Regulation, (iii) any change in the
interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or
(iv) compliance by such Lender (or its Lending Office) or any
corporation controlling such Lender with any Capital Adequacy
Regulation, in each case after the date of this Agreement,
affects or would affect the amount of capital required or
expected to be maintained by such Lender or any corporation
controlling such Lender and (taking into consideration such
Lender's or such corporation's policies with respect to capital
adequacy) determines that the amount of such capital is increased
as a consequence of its Commitment, Loans, credits or obligations
under this Agreement, then, upon demand of such Lender to US
Borrower or the Applicable Borrower through the Applicable Agent,
US Borrower (subject to the limitations herein) and each
Applicable Borrower shall pay to such Lender, from time to time
as specified by such Lender, additional amounts reasonably
sufficient to compensate such Lender for such increase; provided,
however, that (i) CH Borrower shall be liable only for those
additional amounts relating to the Obligations of CH Borrower and
each CH Foreign Subsidiary, (ii) UK Borrower shall be liable only
for those additional amounts relating to the Obligations of UK
Borrower, (iii) Canadian Borrower shall be liable only for those
additional amounts relating to Obligations of Canadian Borrower,
and (iv) US Borrower shall not be responsible for any additional
amounts relating to the Obligations of UK Borrower. A statement
of such Lender as to any such additional amount or amounts
(including calculations thereof in reasonable detail), in the
absence of manifest error, shall be conclusive and binding on
each Applicable Borrower. In determining such amount or amounts,
such Lender may use any method of averaging and attribution that
it (in its sole and absolute discretion) shall deem applicable.
(c) Nothing in this Section 4.3 shall obligate any
Loan Party to make any payments with respect to Taxes of any
sort, indemnification for which is governed by Section 4.1.
4.4. Funding Losses. US Borrower and each Applicable
Borrower shall, within five days of receipt of written notice
thereof, reimburse each Lender and hold each Lender harmless from
any loss or expense which such Lender may sustain or incur as a
consequence of: (a) the failure of such Applicable Borrower to
make on a timely basis any payment of principal of any LIBOR Rate
Loan or BA Equivalent Rate Loan; (b) the failure (including by
reason of Section 4.5) of such Applicable Borrower to borrow,
continue or convert a LIBOR Rate Loan or BA Equivalent Rate Loan
after such Applicable Borrower has given (or is deemed to have
given) a Notice of Committed Borrowing, Notice of Canadian
Borrowing or a Notice of Conversion/Continuation (other than any
such failure arising as a result of a default by such Lender or
any Applicable Agent); (c) the failure of such Applicable
Borrower to make any prepayment of any Committed Loan in
accordance with any notice delivered under Section 2.7 or Section
2.3A; (d) the prepayment by such Applicable Borrower (including
pursuant to Section 2.7 or 2.8) or other payment (including after
acceleration thereof) the principal of any LIBOR Rate Loan or BA
Equivalent Rate Loan on a day that is not the last day of the
relevant Interest Period; or (e) the conversion by such
Applicable Borrower under Section 2.4 or Section 2.4A of any
LIBOR Rate Loan to an ABR Loan or a BA Equivalent Rate Loan to a
Prime Rate Loan, respectively, on a day that is not the last day
of the relevant Interest Period; including any such loss or
expense arising from the liquidation or reemployment of deposits
or other funds obtained by it to make, continue or maintain the
applicable Loans or from fees payable to terminate the deposits
from which such funds were obtained. Such written notice (which
shall include calculations in reasonable detail) shall, in the
absence of manifest error, be conclusive and binding on each
Applicable Borrower. For purposes of calculating amounts payable
by each Applicable Borrower to any Lender under this Section and
under subsection 4.3(a), (i) each LIBOR Rate Loan made by a
Lender (and each related reserve, special deposit or similar
requirement) shall be conclusively deemed to have been funded at
the LIBOR Rate used in determining the interest rate for such
LIBOR Rate Loan by a matching deposit or other borrowing in the
interbank eurocurrency market for a comparable amount and for a
comparable period and in the same Applicable Currency, whether or
not such LIBOR Rate Loan is in fact so funded, and (ii) each BA
Equivalent Rate Loan made by a Canadian Lender (and each related
reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded at the BA Equivalent Rate
applicable to such BA Equivalent Rate Loan by the purchase by
such Canadian Lender of a bankers' acceptance in a comparable
amount and for a comparable period, whether or not such BA
Equivalent Rate Loan is in fact so funded.
4.5. Inability to Determine Rates. (a) If the
Required Revolving Facility Lenders or Lenders holding a majority
of the Loans under the Tranche B Term Loan Facility or the
Tranche A-US Term Loan Facility determine that for any reason
adequate and reasonable means do not exist for determining the
LIBOR Rate for any requested Interest Period with respect to a
proposed LIBOR Rate Loan under the applicable Facility, the
Administrative Agent will promptly so notify the Applicable
Borrower and each Lender under such Facility. Thereafter, the
obligation of the Lenders under such Facility to make, convert or
maintain LIBOR Rate Loans in the Applicable Currency shall be
suspended until the Administrative Agent upon the instruction of
the Required Revolving Facility Lenders or Lenders holding a
majority of the Loans under the Tranche B Term Loan Facility, or
the Tranche A-US Term Loan Facility, as the case may be, revoke
such notice in writing. Upon receipt of such notice, the
Applicable Borrower may revoke any Notice of Committed Borrowing
or Notice of Conversion/Continuation then submitted by it. If
the Applicable Borrower does not revoke (x) any such Notice of
Committed Borrowing for Revolving Loans or (y) any such Notice of
Conversion/Continuation with respect solely to Offshore U.S.
Dollar Loans, the Lenders shall make, convert or continue the
applicable Loans, as proposed by such Applicable Borrower in the
amount specified in the applicable notice submitted by such
Applicable Borrower, but such Loans shall be made, converted or
continued as ABR Loans instead of LIBOR Rate Loans, and in the
case of any Offshore Currency Loans under the Revolving Facility,
the Borrowing shall be redenominated and thereby be made in an
aggregate amount equal to the Dollar Equivalent amount of the
originally requested Borrowing in the Offshore Currency. If the
Applicable Borrower does not revoke any Notice of
Conversion/Continuation with respect to any outstanding Revolving
Loans that are Offshore Currency Loans which are the subject of
any such continuation, such Offshore Currency Loans shall from
the end of the current Interest Period therefor bear interest at
a rate per annum equal to the Applicable Margin for LIBOR Rate
Loans which are Revolving Loans, plus the Overnight Rate for the
Applicable Currency as in effect from time to time or such other
rate as may be agreed to between the Borrowers or UK Borrower, as
the case may be, and the Required Revolving Facility Lenders, and
specified to the Administrative Agent from time to time.
(b) If Lenders holding a majority of the Tranche A-CHF
Term Loans or Tranche A-UK Term Loans, as the case may be,
determine that for any reason adequate and reasonable means do
not exist for determining the LIBOR Rate for any requested
Interest Period with respect to Tranche A-CHF Term Loans or
Tranche A-UK Term Loans, as the case may be, the Administrative
Agent will promptly so notify the Applicable Borrower and each
Lender under the Tranche A-CHF Term Loan Facility or the Tranche
A-UK Term Loan Facility, as the case may be. Thereafter, until
the Administrative Agent upon the instruction of Lenders holding
a majority of the Tranche A-CHF Term Loans or Tranche A-UK Term
Loans, as the case may be, revokes such notice in writing, the
Tranche A-CHF Term Loans or Tranche A-UK Term Loans, as the case
may be, shall bear interest at a rate per annum equal to the
Applicable Margin for LIBOR Rate Loans which are Tranche A-CHF
Term Loans or Tranche A-UK Term Loans, as the case may be, plus
the Overnight Rate for the Applicable Currency as in effect from
time to time or such other rate as may be agreed to between the
Applicable Borrower and Lenders holding a majority of the Tranche
A-CHF Term Loans or Tranche A-UK Term Loans, as the case may be,
and specified to the Administrative Agent from time to time.
(c) If the Canadian Agent shall have determined that
for any reason adequate and reasonable means do not exist for
ascertaining the BA Equivalent Rate for any requested Interest
Period with respect to a proposed BA Equivalent Rate Loan, or any
Canadian Lender shall have determined (and notified the Canadian
Agent) that the BA Equivalent Rate to be applicable for any
requested Interest Period with respect to a proposed BA
Equivalent Rate Loan does not adequately and fairly reflect the
cost to such Canadian Lender of funding such Loan, the Canadian
Agent will forthwith give notice of such determination to
Canadian Borrower, the Administrative Agent and each Canadian
Lender. Thereafter, the obligation of the Canadian Lenders to
make or maintain BA Equivalent Rate Loans for the account of
Canadian Borrower hereunder shall be suspended until the Canadian
Agent (at the request of the applicable Lender, if applicable)
revokes such notice in writing. Upon receipt of such notice,
Canadian Borrower may revoke any Notice of Canadian Borrowing or
Notice of Conversion/Continuation then submitted by it. If
Canadian Borrower does not revoke such notice, the Canadian
Lenders shall make, convert or continue the Loans, as proposed by
Canadian Borrower, in the amount specified in the applicable
notice submitted by Canadian Borrower, but such Loans shall be
made, converted or continued as Prime Rate Loans.
4.6. Reserves on LIBOR Rate Loans; MLA Costs. Each
Applicable Borrower shall pay to each Lender, as long as such
Lender shall be required under regulations of the FRB to maintain
reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities") and, in respect of any Offshore
Currency Loans, under any applicable regulations of the country
in which the Offshore Currency of such Offshore Currency Loans
circulates, additional costs on the unpaid principal amount of
each LIBOR Rate Loan and Offshore Currency Loan equal to the
actual costs of such reserves allocated to such Loan by such
Lender (as calculated by such Lender in good faith, which
calculation shall be set forth in reasonable detail and shall be
conclusive), payable on each date on which interest is payable on
such Loan, provided the Applicable Borrower shall have received
at least 15 days' prior written notice (with a copy to the
Administrative Agent) of the amount of such additional interest
from such Lender. If a Lender fails to give notice 15 days prior
to the relevant Interest Payment Date, such additional interest
shall be payable 15 days from receipt of such notice. Each
Applicable Borrower shall also pay all MLA Cost to each Lender
which makes Loans in Pounds Sterling.
4.7. Certificates of Lenders. Any Lender claiming
reimbursement or compensation under this Article IV shall deliver
to each Applicable Borrower (with a copy to the Administrative
Agent) a certificate (a) setting forth in reasonable detail the
circumstances giving rise to such claim and a computation of the
amount payable to such Lender hereunder in respect thereof and
(b) certifying that such Lender is making similar claims based on
such circumstances to similarly-situated borrowers from such
Lender. Any such certificate shall be conclusive and binding on
each Applicable Borrower in the absence of manifest error.
4.8. Substitution of Lenders. Upon (x) the receipt by
any Applicable Borrower or either Applicable Agent from any
Lender (an "Affected Lender") of a claim for compensation under
Section 4.1 or 4.3 (or a Change in Law which could reasonably be
determined to allow a Lender to make such a claim) or a notice of
the type described in subsection 2.5(b), 2.5(c), 4.2(a) or
4.2(b), (y) any Lender providing notice to any Applicable
Borrower that a representation contained in a Section 4.1(f)(i)
Certificate, Section 4.1(f)(v) Certificate, Canadian Certificate
or UK Certificate is no longer true and correct or (z) the
refusal of any Lender to consent to a proposed amendment, waiver
or consent with respect to the Loan Documents which has been
approved by the Required Lenders as provided in subsection
11.1(b), any Applicable Borrower may: (i) request the Affected
Lender to use its best efforts to obtain a replacement bank or
financial institution satisfactory to such Applicable Borrower to
acquire and assume all or a ratable part of all of such Affected
Lender's Loans, participation in L/C Obligations and Commitments
(a "Replacement Lender"); (ii) request one more of the other
Lenders to acquire and assume all or part of such Affected
Lender's Loans and Commitments; or (iii) designate a Replacement
Lender. Any such designation of a Replacement Lender under
clause (i) or (iii) shall be subject to the prior written consent
of the Agents (which consent shall not be unreasonably withheld).
4.9. Right of Lenders to Fund Through Branches and
Affiliates. Each Lender may, if it so elects, fulfill its
commitment as to any Loan hereunder by designating (in the case
of a Term Loan prior to the Original Closing Date, Amendment and
Restatement Date or the Safeline Closing Date, as applicable) a
branch or Affiliate of such Lender to make such Loan; provided,
however, that (a) such Lender shall remain solely responsible for
the performances of its obligations hereunder, (b) no such
designation shall result in any increased costs to any Applicable
Borrower and (c) such branch or Affiliate complies with all form
delivery and other requirements hereunder (including pursuant to
Section 4.1) as if it were a Lender.
ARTICLE V.
CONDITIONS PRECEDENT
--------------------
5.1. Conditions of Initial Loans. For purposes of this
Article V, the "Subsidiaries" of the Borrowers shall be deemed to
include those who will become Subsidiaries of the Borrowers upon
consummation of the M-T Acquisition Transactions for purposes of
the Initial Loans, and upon consummation of the Safeline
Acquisition Transactions for purposes of Loans made to effect the
Safeline Acquisition. The obligation of any Lender to make its
initial Credit Extension hereunder prior to the Amendment and
Restatement Date (whether by making a Loan or issuing a Letter of
Credit) is subject to the satisfaction of the following
conditions (all references herein in Section 5.1(a) through and
including Section 5.1(q) to any Loan Party (by whatever name
(e.g. Borrower, Domestic Guarantor, etc.) shall refer to Loan
Parties in existence at the Original Closing Date):
(a) Credit Agreement; Notes. On the Original Closing
Date, this Agreement shall have been duly authorized, executed
and delivered to the Lenders by the Borrowers and the Subsidiary
Swing Line Borrowers in form and substance acceptable to the
Agents and the Lenders. On the Original Closing Date there shall
have been duly authorized, executed and delivered to the Lenders
in form and substance satisfactory to the Agents and the Lenders
(i) the Holding Guarantee by Holding, (ii) the US Borrower
Guarantee by US Borrower, (iii) a Domestic Subsidiary Guarantee
by each Domestic Subsidiary, (iv) the CH Borrower Guarantee by CH
Borrower and (v) to the extent permitted by applicable law, a
Foreign Subsidiary Guarantee by each CH Foreign Subsidiary (other
than the Specified Subsidiaries). On or prior to the Original
Closing Date there shall have been delivered to the
Administrative Agent for the account of each Lender the
appropriate Note, in each case executed by the appropriate
Borrower or Subsidiary Swing Line Borrower and appropriately
completed as to amounts and maturities.
(b) Transactions. (i) The terms, conditions and
structure of each of the M-T Acquisition Transactions and the
Transaction Documents shall be in form and substance reasonably
satisfactory to the Agents. The terms and conditions of each of
the Other Documents shall be in form and substance reasonably
satisfactory to the Agents.
(ii) US Borrower shall have received aggregate gross
cash proceeds of not less than U.S. $135.0 million from the sale
of the Senior Subordinated Notes, Holding shall have consummated
the Equity Issuance and contributed the proceeds thereof (net of
any expenses of the M-T Acquisition) in cash to US Borrower.
(iii) On the Original Closing Date, the M-T
Acquisition Transactions shall have been consummated in all
material respects in accordance with the terms of the Transaction
Documents (without any waiver of any material provision thereof).
Except as set forth in Schedule 6.17, all Indebtedness of the
Mettler-Toledo Group existing immediately prior to the M-T
Acquisition shall be repaid in full (or provision made therefor)
to the reasonable satisfaction of the Agents and all lending
commitments thereunder terminated to the reasonable satisfaction
of the Agents with all security interests in favor of existing
lenders being unconditionally released and evidence therefor
shall have been provided to the Agents to their reasonable
satisfaction.
(c) Transaction Documents. A certificate of a
Responsible Officer certifying as of the Original Closing Date
true and complete copies of each of the Transaction Documents
relating to the M-T Acquisition and each of the Other Documents
shall have been delivered to the Agents.
(d) Opinions of Counsel. On the Original Closing
Date, the Lenders shall have received an opinion or opinions,
addressed to the Agents and each of the Lenders and dated the
Original Closing Date, from (i) Fried, Frank, Harris, Shriver &
Jacobson, counsel to the Loan Parties, which opinion shall cover
the matters contained in Exhibit F-1 and such other matters
incident to the transactions contemplated herein as the Agents
may reasonably request, (ii) local counsel to the Foreign Loan
Parties, which opinion shall be in form and substance reasonably
satisfactory to the Agents, (iii) local counsel to the Domestic
Loan Parties reasonably satisfactory to the Agents in each
jurisdiction in which Collateral is located, which opinions shall
cover the matters contained in Exhibit F-2 and such other matters
incident to the transactions contemplated herein and in the other
Loan Documents as the Agents may reasonably request and (iv) such
local, foreign and other counsel reasonably satisfactory to the
Agents, which opinions shall cover the perfection of the security
interest granted, the enforceability of the Loan Documents and
such other matters incident to the transactions contemplated
herein as the Agents may reasonably request, and each such
opinion shall be in form and substance reasonably satisfactory to
the Agents. At the Original Closing Date, the Arranger shall
have received the opinions, dated as of the Original Closing
Date, and addressed to them on behalf of the Lenders and the
Agents, of any counsel delivered to the underwriters of the
Senior Subordinated Notes in connection with the issuance and
sale thereof or the consummation of the M-T Acquisition, or
otherwise, or letters, dated as of the Original Closing Date,
from such counsel entitling the Arranger to rely on such
opinions, in each case as the Arranger may reasonably request.
(e) Corporate Documents. The Agents shall have
received on or prior to the Original Closing Date certified
copies of the Organization Documents of each Loan Party and of
all corporate authority for each Loan Party (including board of
director resolutions and evidence of the incumbency, including
specimen signatures, of officers) with respect to the execution,
delivery and performance of such of the Loan Documents to which
such Loan Party is intended to be a party and each other document
to be delivered by such Loan Party from time to time in
connection herewith and the extensions of credit hereunder (and
the Agents and each Lender may conclusively rely on such
certificate until it receives notice in writing from such Loan
Party to the contrary), the granting of Liens under the Security
Documents, the execution, delivery and performance of the
Transaction Documents related to the M-T Acquisition and the
consummation of the M-T Acquisition Transactions.
(f) Adverse Change, etc. On or prior to the Original
Closing Date, there shall not have occurred or become known any
material adverse change or any condition or event that has had or
could reasonably be expected to result in (i) a material adverse
change in the business, assets, liabilities (contingent or
otherwise), operations, condition (financial or otherwise) or
solvency of US Borrower and the Subsidiaries (after giving effect
to the M-T Acquisition Transactions), taken as a whole, or any
material adverse change in the prospects of US Borrower and the
Subsidiaries (after giving effect to the M-T Acquisition
Transactions), taken as a whole, in each case since December 31,
1995 or (ii) a material adverse effect on the rights or remedies
of the Agents or any Lender under the Loan Documents (except in
each case to the extent that the incurrence of the Indebtedness
pursuant to this Agreement and the Senior Subordinated Notes or
the consummation of the M-T Acquisition would be deemed such an
event or condition).
(g) Litigation. There shall be no litigation or
administrative proceedings or other legal or regulatory
developments, actual or threatened, that, singly or in the
aggregate, would have a Material Adverse Effect, or a material
adverse effect on the ability of the Loan Parties to consummate
the Transactions related to the M-T Acquisition or the validity
or enforceability of the Loan Documents or the rights, remedies
and benefits available to the Agents and the Lenders under the
Loan Documents, or which would be materially inconsistent with
the stated assumptions underlying the projections previously
provided to the Agents.
(h) Approvals. All requisite third parties (including
Governmental Authorities) shall have approved or consented to the
Transactions and the other transactions contemplated hereby to
the extent required in each case to the extent that the failure
to obtain such consent or approval would have a Material Adverse
Effect, and there shall be no governmental or judicial action,
actual or threatened, that has or would have, singly or in the
aggregate, a reasonable likelihood of restraining, preventing or
imposing burdensome conditions on the consummation of the
Transactions related to the M-T Acquisition.
(i) Security Documents. (i) On or before the
Original Closing Date, there shall have been duly authorized,
executed and delivered (i) by Holding, the Holding Securities
Pledge Agreement, (ii) by US Borrower, the US Borrower Securities
Pledge Agreement, (iii) by each Domestic Subsidiary which upon
giving effect to the consummation of the M-T Acquisition will
hold any capital stock or notes of any other Subsidiary, a
Domestic Subsidiary Securities Pledge Agreement and (iv) by CH
Borrower and by each CH Foreign Subsidiary (other than any
Subsidiary listed on Schedule 7.22) which upon giving effect to
the consummation of the M-T Acquisition will hold any capital
stock or notes of any other Subsidiary, a Foreign Subsidiary
Securities Pledge Agreement and there shall have been delivered
to the Administrative Agent, as pledgee thereunder, all of the
pledged securities referred to in any such Securities Pledge
Agreement, endorsed in blank in the case of promissory notes or
accompanied by executed and undated stock powers in the case of
certificated capital stock (or otherwise pledged in accordance
with applicable law), and the Securities Pledge Agreements shall
be in full force and effect.
(ii) On or before the Original Closing Date, the
Borrowers and each Subsidiary executing and delivering a
Subsidiary Guarantee (other than any Subsidiary listed on
Schedule 7.22) shall have duly authorized, executed and delivered
a Security Agreement and all such Security Agreements shall be in
full force and effect.
(iii) On or before the Original Closing Date, the
Borrowers shall or shall cause to be delivered each of the
following documents and instruments:
(1) executed copies of Financing Statements (Form
UCC-1) (and foreign equivalents thereof) in appropriate form
for filing under the UCC and any other applicable foreign,
domestic or local law, rules or regulation in each
jurisdiction as may be necessary or appropriate to perfect
the security interests purported to be created by the
Security Documents; and
(2) certified copies of Requests for Information (Form
UCC-11), or equivalent reports or lien search reports, each
of a recent date listing all effective financing statements
or comparable documents that name US Borrower or any
Subsidiary that will execute a Security Agreement as debtor
and that are filed in those jurisdictions in which any of
the Collateral is located and the jurisdictions in which US
Borrower and such Subsidiaries' principal place of business
is located, none of which encumber the Collateral covered or
intended or purported to be covered by the Security
Documents other than those encumbrances permitted by the
Security Documents.
(iv) To the extent that a material amount of Inventory
is maintained on a leased premise in the United States that is
leased by a Domestic Loan Party, such Domestic Loan Party shall
request agreements from the respective landlords of such of the
Real Property which is being leased by such Domestic Loan Party
confirming that such landlords have subordinated their landlord
liens in such personal property to the security interests held by
Administrative Agent pursuant to the applicable Security
Documents and that such landlords will provide Administrative
Agent with reasonable access to such facilities to exercise
Administrative Agent's remedies pursuant to such applicable
Security Documents.
(j) Conditions Relating to Mortgaged Real Property and
Real Property. On or prior to the Original Closing Date, each
Borrower and each Subsidiary to enter into a Mortgage shall have
caused to be delivered to the Administrative Agent, on behalf of
the Lenders, the following documents and instruments:
(i) a Mortgage encumbering each Mortgaged Real
Property in favor of the Administrative Agent, for the benefit of
the Lenders, in form for recording in the recording office of
each political subdivision or foreign jurisdiction where each
such Mortgaged Real Property is situated, together with such
certificates, affidavits, questionnaires or returns as shall be
required in connection with the recording or filing thereof to
create a lien under applicable law, and other similar statements
as are contemplated by the counsel opinions described in
subsection 5.1(e) in respect of such Mortgage, all of which shall
be in form and substance reasonably satisfactory to the Arranger,
and any other instruments necessary to grant a mortgage lien
under the laws of any applicable jurisdiction, which Mortgage and
financing statements and other instruments shall be effective to
create a first priority Lien on such Mortgaged Real Property
subject to no Liens other than Prior Liens applicable to such
Mortgaged Real Property and other than Permitted Liens;
(ii) with respect to each Mortgaged Real Property, such
consents, approvals, estoppels, tenant subordination agreements
or other instruments as necessary or required to consummate the
transactions contemplated hereby or as shall reasonably be deemed
necessary by the Arranger in order for the owner or holder of the
fee interest constituting such Mortgaged Real Property to grant
the Lien contemplated by the Mortgage with respect to such
Mortgaged Real Property; and
(iii) the following documents and instruments:
(1) with respect to each Mortgage, a policy (or
commitment to issue a policy) of title insurance insuring
(or committing to insure) the Lien of such Mortgage as a
valid first priority Lien on the real property and fixtures
described therein in an amount not less than 115% of the
fair market value thereof which policy (or commitment) shall
(a) be issued by the Title Company, (b) include such
reinsurance arrangements (with provisions for direct access)
as shall be reasonably acceptable to the Arranger,
(c) contain a "tie-in" or "cluster" endorsement (if
available under applicable law) (i.e., policies which insure
against losses regardless of location or allocated value of
the insured property up to a stated maximum coverage
amount), (d) have been supplemented by such endorsements (or
where such endorsements are not available, opinions of
special counsel or other professionals reasonably acceptable
to the Arranger) as shall be reasonably requested by the
Arranger, (e) such affidavits and instruments of
indemnification as shall be reasonably required to induce
the Title Company to issue the policy or policies (or
commitment) and endorsements contemplated in this
subparagraph (iii) and (f) contain no exceptions to title
other than exceptions for (x) Liens of the type described in
clauses (a), (b), (c), (d), (g), (h), (i), (o) and (p) of
the definition of Permitted Liens, (y) any Lien of the type
described in clause (r) of the definition of Permitted Liens
to the extent the original Lien is permitted hereunder and
(z) the Prior Liens applicable to such Mortgaged Real
Property;
(2) with respect to each Mortgaged Real Property, a
Survey;
(3) with respect to each Mortgaged Real Property,
policies or certificates of insurance as required by the
Mortgage relating thereto;
(4) with respect to each Mortgaged Real Property, UCC,
judgment and tax lien searches (or foreign jurisdictions
equivalent) confirming that the personal property comprising
a part of such Mortgaged Real Property is subject to no
Liens other than Prior Liens;
(5) evidence acceptable to the Arranger of payment by
the Borrowers of all title insurance premiums, search and
examination charges, survey costs and related charges,
mortgage recording taxes and related charges required for
the recording of the Mortgages and issuance of the title
insurance policies referred to in subparagraph (iii) above;
(6) with respect to each Real Property or Mortgaged
Real Property, copies of all Leases, subleases, leases in
which a Loan Party holds the tenant's interest or other
agreements relating to possessory interests. To the extent
any of the foregoing affect any Mortgaged Real Property,
such agreement shall be subordinate to the Lien of the
Mortgage to be recorded against such Mortgaged Real
Property, and shall otherwise be acceptable to the Arranger;
and
(7) with respect to each Mortgaged Real Property, an
Officers' Certificate or other evidence satisfactory to the
Arranger that as of the date thereof there (a) has been
issued and is in effect, to the extent required, a valid and
proper certificate of occupancy or local or foreign
equivalent for the use then being made of such Mortgaged
Real Property, (b) has not occurred any material Destruction
of any Mortgaged Real Property that has not been restored
and there is not pending any Taking of any Mortgaged Real
Property and (c) except as may be disclosed in the Survey of
such Mortgaged Real Property delivered pursuant to
subsection 5.1(j)(iii)(2) above, are no disputes regarding
boundary lines, location, encroachment or possession of such
Mortgaged Real Property and no state of facts existing which
could give rise to any such claim.
(k) Solvency Opinion; Environmental Analyses; Evidence
of Insurance; Financial Statements. On the Original Closing
Date, the Agents and the Lenders shall have received:
(i) an opinion (and related going-concern valuation)
satisfactory in all respects to the Agents and the Lenders
from Appraisal Economics or other independent valuation firm
reasonably satisfactory to the Agents and the Lenders to the
effect that after giving effect to the Transactions related
to the M-T Acquisition, US Borrower, on a consolidated
basis, is not and will not be insolvent, will not be left
with unreasonably small capital with which to engage in its
business and has not incurred and will not have incurred
debts beyond its ability to pay such debts as they mature;
(ii) Phase I environmental assessments or their
substantial equivalent from ICF Kaiser Engineers, Inc.
("ICF") with respect to domestic properties on which
manufacturing operations are currently conducted by US
Borrower or any Subsidiary (immediately after giving effect
to the Transactions related to the M-T Acquisition), and
written reports from ICF with respect to (A) foreign
properties on which manufacturing operations are currently
conducted by US Borrower or any Subsidiary (immediately
after giving effect to the Transactions), (B) former
manufacturing facilities at Landing, New Jersey and
Albstadt, Giessen and Steinbach, Germany, (C) certain non-
manufacturing properties in Switzerland and (D) certain
representative domestic and foreign sales and service
offices in each case the results of which shall be in form
and substance reasonably satisfactory to the Agents and the
Required Lenders; and
(iii) evidence of insurance complying with the
requirements of Section 7.5 for the business and properties
of US Borrower and the Subsidiaries, in scope, form and
substance satisfactory to the Agents and the Required
Lenders and naming the Administrative Agent as an additional
insured and/or loss payee.
(l) Pro Forma Balance Sheet. On or prior to the
Original Closing Date, there shall have been delivered to the
Agents, an unaudited pro forma consolidated balance sheet of US
Borrower and the Subsidiaries as at June 30, 1996, after giving
effect to the Transactions and prepared in accordance with GAAP
with U.S. $ as the functional currency, together with a related
funds flow statement, which pro forma balance sheet and funds
flow statement shall be satisfactory in form and substance to the
Agents and the Required Lenders.
(m) Payment of Fees. On the Original Closing Date,
all costs, fees and expenses, and all other compensation
contemplated by this Agreement, due to the Arranger, the
Administrative Agent or the Lenders (including, without
limitation, Attorney Costs of the Agents) shall have been paid to
the extent due and if then invoiced.
(n) Other Matters. The Agents and the Lenders shall
be reasonably satisfied in all respects with (i) the status of
all labor, employee benefit, environmental and health and safety
matters involving the Loan Parties, after giving effect to the
Transactions related to the M-T Acquisition, and their plans with
respect thereto; (ii) the corporate and capital structure, and
documents and instruments related thereto, of the Loan Parties,
after giving effect to the Transactions related to the M-T
Acquisition; (iii) the amount, terms and conditions of any
Indebtedness of any Loan Party to remain outstanding after the
Original Closing Date; (iv) the form and substance of all other
material documentation, including any tax sharing agreement,
employment agreement, management compensation arrangement
(including any agreements entered into with any of the senior
management of the Borrowers) or other financing arrangement of
the Loan Parties; and (v) all legal, tax, accounting and currency
hedging matters relating to the transactions contemplated hereby,
including, without limitation, the ability of Subsidiaries of US
Borrower to repatriate funds to US Borrower and the withholding
tax consequences thereof and the Borrowers' plans and programs
with respect to managing currency risk exposure.
(o) Certificate. A certificate signed by a
Responsible Officer, dated as of the Original Closing Date,
stating that: (i) the representations and warranties contained
in Article VI are true and correct in all material respects on
and as of such date, as though made on and as of such date (ii)
no Event of Default or Unmatured Event of Default exists or would
result from the initial Credit Extension; and (iii) no event or
circumstance has occurred since December 31, 1995 with respect to
US Borrower or any of its Subsidiaries (after giving effect to
the Transactions related to the M-T Acquisition) that has
resulted in a Material Adverse Effect (except to the extent that
the incurrence of Indebtedness pursuant to this Agreement and the
Senior Subordinated Notes or the consummation of the M-T
Acquisition would be deemed such an event or condition).
(p) Debt to Be Repaid. All Debt to Be Repaid set
forth on Schedule 5.1(p) shall have been repaid in a manner
satisfactory to the Agents and the Lenders.
(q) Date of Closing. The Original Closing Date shall
occur not later than November 15, 1996.
5.1A Conditions of Loans to Effect the Safeline
Acquisition. The obligation of any Lender to make any Credit
Extension hereunder pursuant to a Tranche A-UK Facility
Commitment, Tranche B Facility Commitment, Canadian Commitment or
Revolving Facility Commitment to effect the Safeline Acquisition
(whether by making a Loan or issuing a Letter of Credit) is
subject to the satisfaction of the conditions set forth in
Section 5.3 and to the satisfaction of the following conditions:
(a) Credit Agreement; Notes. On the Safeline Closing
Date, this Agreement shall have been duly authorized,
executed and delivered to the Lenders by the Revolving
Borrowers, Canadian Borrower and the Subsidiary Swing Line
Borrowers in form and substance acceptable to the Agents and
the Lenders. On or prior to the Safeline Closing Date there
shall have been delivered to the Administrative Agent for
the account of each Lender having a Tranche A-UK Facility
Commitment, a Tranche A-UK Term Note executed by UK Borrower
and appropriately completed as to amounts and maturities;
and for the account of each Lender having a Canadian
Commitment, a Canadian Revolving Note executed by Canadian
Borrower and appropriately completed as to amounts and
maturities.
(b) Safeline Acquisitions Transactions. (i) The
terms, conditions and structure of each of the Safeline
Acquisition Transactions and the Safeline Acquisition
Documents shall be in form and substance reasonably
satisfactory to the Agents. The terms and conditions of the
Safeline Seller Notes shall be in form and substance
reasonably satisfactory to the Agents.
(ii) The Safeline Seller Notes shall have been issued
to the sellers in the Safeline Acquisition at 100% of their
face value.
(iii) On the Safeline Closing Date, the Safeline
Acquisition Transactions shall have been consummated in all
material respects in accordance with the terms of Safeline
Acquisition Documents (without any waiver of any material
provision thereof). Except as set forth in Schedule 6.17A,
all Indebtedness of Safeline Limited and its Subsidiaries
existing immediately prior to the Safeline Acquisition shall
be repaid in full (or provision made therefor) to the
reasonable satisfaction of the Agents and all lending
commitments thereunder terminated to the reasonable
satisfaction of the Agents with all security interests in
favor of existing lenders being unconditionally released and
evidence therefor shall have been provided to the Agents to
their reasonable satisfaction.
(c) Safeline Acquisition Documents. A certificate of
a Responsible Officer certifying as of the Safeline Closing
Date true and complete copies of each of the Safeline
Acquisition Documents and the Safeline Seller Notes shall
have been delivered to the Agents.
(d) Opinions of Counsel. On the Safeline Closing
Date, the Lenders shall have received an opinion or
opinions, addressed to the Agents and each of the Lenders
and dated the Safeline Closing Date, from (i) Fried, Frank,
Harris, Shriver & Jacobson, counsel to the Loan Parties,
which opinion shall cover the matters contained in
Exhibit F-4 and such other matters incident to the
transactions contemplated herein as the Agents may
reasonably request, (ii) Davies Ward & Beck, counsel to
Canadian Borrower, which opinion shall cover the matters
contained in Exhibit F-5 and such other matters incident to
the transactions contemplated herein as the Agents may
reasonably request, (iii) S.J. Berwin, counsel to UK
Borrower, which opinion shall cover the matters contained in
Exhibit F-6 and such other matters incident to the
transactions contemplated herein as the Agents may
reasonably request, and (iv) such local, foreign and other
counsel reasonably satisfactory to the Agents, which
opinions shall cover the perfection of the security interest
granted, the enforceability of the Loan Documents and such
other matters incident to the transactions contemplated
herein as the Agents may reasonably request, and each such
opinion shall be in form and substance reasonably
satisfactory to the Agents.
(e) Corporate Documents. The Agents shall have
received on or prior to the Safeline Closing Date certified
copies of the Organization Documents of each Safeline Loan
Party and of all necessary corporate authority for each
Safeline Loan Party (including any board of director
resolutions and evidence of the incumbency, including
specimen signatures, of officers or other customary evidence
of the applicable jurisdiction) with respect to the
execution, delivery and performance of such of the Loan
Documents to which such Safeline Loan Party is intended to
be a party on the Safeline Closing Date and each other
document to be delivered by such Safeline Loan Party from
time to time in connection herewith and the extensions of
credit hereunder (and the Agents and each Lender may
conclusively rely on such certificate until it receives
notice in writing from such Safeline Loan Party to the
contrary), the granting of any Liens under the Security
Documents, the execution, delivery and performance of the
Safeline Acquisition Documents and the consummation of the
Safeline Acquisition Transactions.
(f) Adverse Change, etc. On or prior to the Safeline
Closing Date, there shall not have occurred or become known
any material adverse change or any condition or event that
has had or could reasonably be expected to result in a
material adverse change in the business, assets, liabilities
(contingent or otherwise), operations, condition (financial
or otherwise) or solvency of Safeline Limited and its
Subsidiaries (after giving effect to the Safeline
Transactions), taken as a whole, or any material adverse
change in the prospects of Safeline Limited and its
Subsidiaries (after giving effect to the Safeline
Acquisition Transactions), taken as a whole, in each case
since March 31, 1996.
(g) Litigation. There shall be no litigation or
administrative proceedings or other legal or regulatory
developments, actual or threatened, that, singly or in the
aggregate, would have a Material Adverse Effect, or a
material adverse effect on the ability of the Loan Parties
to consummate the Safeline Acquisition Transactions or the
validity or enforceability of the Loan Documents or the
rights, remedies and benefits available to the Agents and
the Lenders under the Loan Documents, or which would be
materially inconsistent with the stated assumptions
underlying the projections previously provided to the Agents
in connection with the Safeline Acquisition.
(h) Approvals. All requisite third parties (including
Governmental Authorities) shall have approved or consented
to the Safeline Acquisition Transactions and the other
transactions contemplated hereby to the extent required in
each case to the extent that the failure to obtain such
consent or approval would have a Material Adverse Effect,
and there shall be no governmental or judicial action,
actual or threatened, that has or would have, singly or in
the aggregate, a reasonable likelihood of restraining,
preventing or imposing burdensome conditions on the
consummation of the Safeline Acquisition Transactions.
(i) Security Documents. (i) On or before the
Safeline Closing Date, there shall have been duly
authorized, executed and delivered, in form and substance
satisfactory to the Agents, (i) by US Borrower, a Securities
Pledge Agreement, in form and substance satisfactory to the
Agents, to effect the pledge of not less than 65% of the
capital stock of UK Borrower, and (ii) by UK Borrower, a
Securities Pledge Agreement, in form and substance
satisfactory to the Agents, to effect the pledge of not less
than 65% of the capital stock of Safeline Limited; and there
shall have been delivered to the Administrative Agent, as
pledgee thereunder, all of the pledged securities referred
to in any such Securities Pledge Agreement, accompanied by
executed and undated stock powers in the case of
certificated capital stock (or otherwise pledged in
accordance with applicable law), and such Securities Pledge
Agreements shall be in full force and effect.
(ii) On or before the Safeline Closing Date, UK
Borrower shall or shall cause to be delivered each of the
following documents and instruments:
(1)executed copies of Financing Statements (Form
UCC-1) (and foreign equivalents thereof) in appropriate
form for filing under the UCC and any other applicable
foreign, domestic or local law, rules or regulation in
each jurisdiction as may be necessary or appropriate to
perfect the security interests purported to be created
by the Security Documents to be delivered on the
Safeline Closing Date; and
(2)certified copies of Requests for Information
(Form UCC-11), or equivalent reports or lien search
reports, each of a recent date listing all effective
financing statements or comparable documents that name
any Safeline Loan Party, Safeline Limited or any of
their respective Subsidiaries that will execute a
Security Agreement as debtor and that are filed in
those jurisdictions in which any of the Collateral is
located and the jurisdictions in which any such
Safeline Loan Party, Safeline Limited or any such
Subsidiary's principal place of business is located,
none of which encumber the Collateral covered or
intended or purported to be covered by the Security
Documents to be delivered on the Safeline Closing Date
other than those encumbrances permitted by such
Security Documents.
(j) Environmental Analyses. On the Safeline Closing
Date, the Agents and the Lenders shall have received written
environmental assessments from environmental engineers
reasonably acceptable to the Agents with respect to all
properties of Safeline Limited or any of its Subsidiaries
(immediately after giving effect to the Safeline Acquisition
Transactions), in each case the results of which shall be in
form and substance reasonably satisfactory to the Agents and
the Required Lenders.
(k) Pro Forma Balance Sheet. On or prior to the
Safeline Closing Date, there shall have been delivered to
the Agents, an unaudited pro forma consolidated balance
sheet of US Borrower and the Subsidiaries as at March 31,
1997, after giving effect to the Safeline Acquisition
Transactions, together with a related funds flow statement,
which pro forma balance sheet and funds flow statement shall
be satisfactory in form and substance to the Agents and the
Required Lenders.
(l) Payment of Fees. On the Safeline Closing Date,
all costs, fees and expenses, and all other compensation
contemplated by this Agreement, due to the Arranger, the
Administrative Agent or the Lenders (including, without
limitation, Attorney Costs of the Agents) shall have been
paid to the extent due and if then invoiced.
(m) Other Matters. The Agents and the Lenders shall
be reasonably satisfied in all respects with (i) the status
of all labor, employee benefit, environmental and health and
safety matters involving the Safeline Loan Parties, Safeline
Limited and its Subsidiaries, after giving effect to the
Safeline Acquisition Transactions, and their plans with
respect thereto; (ii) the corporate and capital structure,
and documents and instruments related thereto, of the
Safeline Loan Parties, Safeline Limited and its
Subsidiaries, after giving effect to the Safeline
Acquisition Transactions; (iii) the amount, terms and
conditions of any Indebtedness of any Safeline Loan Party,
Safeline Limited or any of its Subsidiaries to remain
outstanding after the Safeline Closing Date; (iv) the form
and substance of all other material documentation, including
any tax sharing agreement, employment agreement, management
compensation arrangement (including any agreements entered
into with any of the senior management of Safeline Limited
and its Subsidiaries) or other financing arrangement of the
Safeline Loan Parties, Safeline Limited or any of its
Subsidiaries; and (v) all legal, tax, accounting and
currency hedging matters relating to the Safeline
Acquisition Transactions.
(n) Certificate. A certificate signed by a
Responsible Officer of Canadian Borrower, CH Borrower, UK
Borrower and US Borrower, dated as of the Safeline Closing
Date, stating that: (i) the representations and warranties
contained in Article VI are true and correct in all material
respects on and as of such date, as though made on and as of
such date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case
they shall be true and correct as of such earlier date);
(ii) no Event of Default or Unmatured Event of Default
exists or would result from the Credit Extensions to effect
the Safeline Acquisition; and (iii) no event or circumstance
has occurred since December 31, 1996 with respect to US
Borrower or any of its Subsidiaries (after giving effect to
the Safeline Acquisition Transactions) that has resulted in
a Material Adverse Effect (except to the extent that the
incurrence of Indebtedness pursuant to this Agreement or the
consummation of the Safeline Acquisition would be deemed
such an event or condition).
(o) Debt to Be Repaid. All Debt to Be Repaid set
forth on Schedule 5.1A(o) shall have been repaid in a manner
satisfactory to the Agents and the Lenders.
(p) Date of Closing. The Safeline Closing Date shall
occur not later than June 30, 1997.
5.2. Conditions to All Credit Extensions. The
obligation of each Lender to make any Credit Extension (including
the initial Credit Extension) is subject to the satisfaction of
the following conditions precedent on the relevant Borrowing Date
or Issuance Date:
(a) Notice, Application. The Applicable Agent shall
have received a Notice of Canadian Borrowing, Notice of
Committed Borrowing or the Applicable Swing Line Lender
shall have received notice from the applicable Swing Line
Borrower of a Swing Line Loan or the L/C Lender and the
Administrative Agent shall have received an L/C Application
or L/C Amendment Application, as required under Section 3.2
(in the case of any Issuance of a Letter of Credit).
(b) Continuation of Representations and Warranties.
The representations and warranties in Article VI shall be
true and correct in all material respects on and as of the
date of such Credit Extension with the same effect as if
made on and as of such date (except to the extent such
representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of
such earlier date).
(c) No Existing Default; No Legal Bar. No Event of
Default or Unmatured Event of Default shall exist or will
result from such Credit Extension. No order, judgment or
decree of any court, arbitration or Governmental Authority
shall purport to restrain any Lender from making any Loans
to be made by it on the date of such Credit Extension; and
no injunction or other restraining order shall have been
issued and no hearing to cause an injunction or other
restraining order to be issued shall be pending or noticed
with respect to any action, suit or proceeding seeking to
enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the
transactions contemplated by this Agreement or the making of
Loans hereunder.
Each Notice of Canadian Borrowing, Notice of Committed
Borrowing, L/C Application, L/C Amendment Application and Swing
Loan request submitted by any Applicable Borrower hereunder shall
constitute a representation and warranty by each Applicable
Borrower hereunder, as of the date of such notice or request and
as of the relevant Borrowing Date or Issuance Date, as
applicable, that the applicable conditions in Section 5.1,
Section 5.1A, this Section 5.2 and/or Section 5.3 are satisfied.
5.3. Conditions to Effectiveness of Amendment and
Restatement. The effectiveness of this Amended and Restated
Credit Agreement is subject to the satisfaction of the following
conditions:
(a) Amended and Restated Credit Agreement;
Ratification of Security Documents by Loan Parties; Notes.
On the Amendment and Restatement Date, this Agreement and
the Notes shall have been duly authorized, executed and
delivered to the Lenders by each Credit Agreement Loan Party
which is a party thereto (other than UK Borrower and
Safeline Limited) in form and substance acceptable to the
Agents and the Lenders. On the Amendment and Restatement
Date there shall have been duly authorized, executed and
delivered to the Lenders in form and substance satisfactory
to the Agents and Lenders a Ratification Agreement by
Holding, each Domestic Subsidiary and each CH Foreign
Subsidiary (other than the Subsidiaries listed on Schedule
5.3(a), which shall take such action as soon as practicable
in accordance with Section 7.23, and other than the
Subsidiary Swing Line Borrowers) that shall have executed a
Loan Document prior to the Amendment and Restatement Date.
Each of Holding, US Borrower and each Domestic Subsidiary
(other than the UK Borrower Guarantor) shall have duly
authorized, executed and delivered a Guarantee in form and
substance satisfactory to the Administrative Agent.
(b) Opinions of Counsel. On the Amendment and
Restatement Date, the Lenders shall have received an opinion
or opinions, addressed to the Agents and each of the Lenders
and dated the Amendment and Restatement Date, from
(i) Fried, Frank, Harris, Shriver & Jacobson, counsel to the
Loan Parties, which opinion shall cover the matters
contained in Exhibit F-3 and such other matters incident to
the transactions contemplated herein to occur on the
Amendment and Restatement Date as the Agents may reasonably
request, and (ii) such local, foreign and other counsel
reasonably satisfactory to the Agents, which opinions shall
be in form and substance reasonable satisfactory to the
Agents.
(c) Corporate Documents. The Agents shall have
received on or prior to the Amendment and Restatement Date
certified copies of all necessary corporate authority for
each Loan Party executing any Loan Document on the Amendment
and Restatement Date (including any board of directors
resolutions and evidence of the incumbency, including
specimen signatures, of officers or other customary evidence
of the applicable jurisdictions) with respect to the
execution, delivery and performance of this Agreement, the
Ratification Agreement and each other Loan Document to be
amended or modified in connection with this Amendment and
Restatement to which such Loan Party is intended to be a
party.
(d) Accuracy of Representations and Warranties. The
representations and warranties in Article VI shall be true
and correct in all material respects on and as of the
Amendment and Restatement Date with the same effect as if
made on and as of such date (except to the extent such
representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of
such earlier date).
(e) Adverse Change, etc. On or prior to the Amendment
and Restatement Date, there shall not have occurred or
become known any material adverse change or any condition or
event that has had or could reasonably be expected to result
in (i) a material adverse change in the business, assets,
liabilities (contingent or otherwise), operations, condition
(financial or otherwise) or solvency of US Borrower and the
Subsidiaries, taken as a whole, or any material adverse
change in the prospects of US Borrower and the Subsidiaries,
taken as a whole, in each case since December 31, 1996 or
(ii) a material adverse effect on the rights or remedies of
the Agents or any Lender under the Loan Documents (except in
each case to the extent that the incurrence of the
Indebtedness pursuant to this Agreement and the Senior
Subordinated Notes or the consummation of the M-T
Acquisition would be deemed such an event or condition).
(f) Litigation. There shall be no litigation or
administrative proceedings or other legal regulatory
developments, actual or threatened, that, singly or in the
aggregate, would have a Material Adverse Effect, or a
material adverse effect on the validity or enforceability of
the Loan Documents or the rights, remedies and benefits
available to the Agents and the Lenders under the Loan
Documents.
(g) Approvals. All requisite third parties (including
Governmental Authorities) shall have approved or consented
to the transactions contemplated hereby to occur on the
Amendment and Restatement Date to the extent required in
each case to the extent that the failure to obtain such
consent or approval would have a Material Adverse Effect,
and there shall be no governmental or judicial action,
actual or threatened, that has or would have, singly or in
the aggregate, a reasonable likelihood of restraining,
preventing or imposing burdensome conditions on the
consummation of the transaction contemplated hereby to occur
on the Amendment and Restatement Date.
(h) Payment Adjustments; Amendment and Restatement
Assignments. All funds to be received by the Lenders
(including Paid Lenders, Paid Existing Lenders and the
Paying Existing Lenders) and the Credit Agreement Loan
Parties in connection with the Payment Adjustments as set
forth in Section 1.7 and Schedule 1.7 shall have been
received by the Administrative Agent. The Amendment and
Restatement Assignments shall have been executed and
delivered by the parties thereto and shall be in full force
and effect.
(i) Certificate. A certificate signed by a
Responsible Officer of CH Borrower and US Borrower, dated as
of the Amendment and Restatement Date, stating that:
(i) the representations and warranties contained in
Article VI are true and correct in all material respects on
and as of such date, as though made on and as of such date
(except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall
be true and correct as of such earlier date); (ii) no Event
of Default or Unmatured Event of Default exists or would
result from the transactions contemplated to occur on the
Amendment and Restatement Date; and (iii) no event or
circumstance has occurred since December 31, 1996 with
respect to US Borrower or any of the Subsidiaries that has
resulted in a Material Adverse Effect (except to the extent
that the incurrence of Indebtedness pursuant to this
Agreement and the Senior Subordinated Notes or the
consummation of the M-T Acquisition would be deemed such an
event or condition).
5.4. Delivery of Documents. All of the certificates,
legal opinions and other documents and papers referred to in
Sections 5.1, 5.1A, 5.2 and 5.3, unless otherwise specified,
shall be delivered to each of the Agents at their respective
office (or such other location as may be specified by such Agent)
for the account of each of the Lenders and in sufficient
counterparts for each Lender and, except where specifically
otherwise provided, shall be reasonably satisfactory to the
Agents and the Lenders; provided, however, that for any Credit
Extension other than the initial Credit Extension, Borrower shall
not be required to deliver surveys, leases, insurance
certificates, opinions, title insurance, UCC, tax lien or
judgment searches, or appraisals.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
--------------------------------
Each Credit Agreement Loan Party makes the following
representations and warranties to each Agent and each Lender, all
of which shall survive the execution and delivery of this
Agreement and the making of the Loans (with the execution and
delivery of this Agreement on the Original Closing Date and on
the Amendment and Restatement Date and the making of each Loan
thereafter being deemed to constitute a representation and
warranty that the matters specified in this Article VI are true
and correct in all material respects after giving effect to the
M-T Acquisition and (upon consummation of the Safeline
Acquisition) the Safeline Acquisition and the related
transactions and as of the date of such Loan unless such
representation and warranty expressly indicates that it is being
made as of any specific date).
6.1. Corporate Status. Each Company (a) is a
corporation, partnership, joint stock company, limited liability
company; unlimited liability company or other legal entity duly
organized, validly existing and, if applicable, in good standing
under the laws of its jurisdiction of organization; (b) has full
corporate or other power and authority and possesses all
governmental franchises, licenses, permits, authorizations and
approvals necessary to enable it to own, lease or otherwise hold
its properties and assets and to carry on its business as
presently conducted; (c) in the case of the Domestic Loan Parties
is duly qualified and in good standing to do business as a
foreign corporation in each U.S. state in which the conduct or
nature of its business or the ownership, leasing or holding of
its properties makes such qualification necessary; and (d) is in
compliance with all Requirements of Law, except, in each case
referred to in clauses (b), (c) and (d), to the extent that the
failure to do so would not, individually or in the aggregate,
have a Material Adverse Effect.
6.2. Authority. Each Loan Party has all requisite
corporate power and authority to enter into each Basic Document
to which it is a party and to perform its obligations thereunder
and to consummate the transactions contemplated thereby. All
corporate acts and other proceedings required to be taken by each
Company to authorize the execution, delivery and performance of
each Basic Document to which such entity is a party and the
consummation of the transactions contemplated thereby have been
duly and properly taken.
6.3. No Conflicts; Consents. (a) The execution,
delivery and performance by each Company of each Basic Document
to which such entity is a party does not and will not conflict
with, or result in any violation of or default (with or without
notice or lapse of time, or both) under, or give rise to a right
of termination, cancellation or acceleration of any obligation or
to loss of a material benefit under, any provision of (i) the
Organization Documents of such Company; (ii) any note, bond,
mortgage, indenture, deed of trust, license, lease, contract,
commitment, agreement or arrangement to which such Company is a
party or by which any of its properties or assets are bound,
except for Debt to Be Repaid; or (iii) any judgment, order or
decree, or statute, law, ordinance, rule or regulation applicable
to such Company or its properties or assets, other than, in the
case of clauses (ii) and (iii) above, any such items that would
not, individually or in the aggregate, have a Material Adverse
Effect.
(b) No material consent, approval, license, permit,
order or authorization of, or registration, declaration or filing
with, any Governmental Authority is required to be obtained or
made by or with respect to any Company in connection with the
execution, delivery and performance of any Basic Document or the
consummation of the Transactions or the other transactions
contemplated hereby or thereby, the failure of which to obtain
would not, individually or in the aggregate, have a Material
Adverse Effect, other than filings required pursuant to
applicable antitrust laws, approvals required pursuant to the Lex
Friedrich Statute if applicable to the transactions contemplated
hereby to occur in connection with the M-T Acquisition, U.S.
Federal, state and foreign securities and Blue Sky laws in
connection with the offering and sale of the Senior Subordinated
Notes and Equity Issuance and Chinese governmental consent to the
transfer of the Chinese Subsidiaries.
6.4. Binding Effect. Each Basic Document to which any
Company is a party constitutes the legal, valid and binding
obligation of such Company, enforceable against such Company in
accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability, or by other laws
and regulations of non-U.S. jurisdictions.
6.5. Litigation. Except as may exist with respect to
matters specifically disclosed in Schedule 6.5 (as amended and
restated as of the Amendment and Restatement Date for matters
relating to UK Borrower and its Subsidiaries), there are no
actions, suits, proceedings, claims or disputes pending or, to
the best knowledge of any Loan Party, threatened or contemplated,
at law, in equity, in arbitration or before any Governmental
Authority, against any Company or any of its properties which
(a) would have a Material Adverse Effect; or (b) would give rise
to any legal restraint on or prohibition against the Transactions
or any of the transactions contemplated by any Basic Document.
No Company is a party or subject to or in default under any
material judgment, order, injunction or decree of any
Governmental Authority or arbitration tribunal applicable to it
or any of its respective properties, assets, operations or
businesses, except where such events would not, singly or in the
aggregate, have a Material Adverse Effect. There is no pending
investigation of any Company, nor has there been any such
investigation threatened in writing in either case by any
Governmental Authority, except where such events could not,
individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
6.6. No Default. No Company is in default in the
performance, observance or fulfillment of any Contractual
Obligation of such Company which default would, singly or in the
aggregate with any other default, have a Material Adverse Effect,
and no condition exists which, with the giving of notice or the
lapse of time or both, would, individually or in the aggregate
with any other condition, constitute such a default. No event
has occurred and no condition exists which, singly or in the
aggregate with any other event or condition, would constitute an
Event of Default or an Unmatured Event of Default. No Company is
in violation of any term of its Organization Documents, except
where such violation would not, individually or in the aggregate,
have a Material Adverse Effect.
6.7. Benefit Plans. (a) Each Company and each of its
ERISA Affiliates are in compliance with all applicable provisions
and requirements of ERISA, the Code and other applicable laws
with respect to each Plan, and have performed all their material
obligations under each Plan, except where non-compliance or non-
performance would not, individually or in the aggregate, have a
Material Adverse Effect. No ERISA Events have occurred or are
reasonably expected to occur which individually or in the
aggregate resulted in or are reasonably likely to result in (i) a
Material Adverse Effect or (ii) the imposition of a lien on the
assets of any Company or any of its ERISA Affiliates or a
requirement for any Company or any of its ERISA Affiliates to
post a bond or other security. As of the most recent valuation
date for any Pension Plan, the amount of Unfunded Pension
Liabilities individually or in the aggregate for all Pension
Plans (excluding for purposes of such computation any Pension
Plans which have a negative amount of Unfunded Pension
Liabilities) does not exceed $6.5 million.
(b) Each Company and each of the Foreign Plans are in
compliance with all applicable laws and regulations with respect
to the Foreign Plans and the terms of the Foreign Plans, and all
required contributions have been made to the Foreign Plans as are
consistent with past practice and in the ordinary course of
business, except where non-compliance or failure would not,
individually or in the aggregate, have a Material Adverse Effect.
For purposes hereof, the term "Foreign Plans" shall mean any
employee benefit plan, program, policy, arrangement or agreement
maintained or contributed to by, or entered into with, a Company
with respect to employees employed outside the United States.
6.8. Use of Proceeds; Margin Regulations. The proceeds
of the Loans are to be used solely for the purposes set forth in
and permitted by Section 7.11 and Section 8.7. No Loan Party is
generally engaged in the business of purchasing or selling Margin
Stock or extending credit for the purpose of purchasing or
carrying Margin Stock.
6.9. Financial Condition; Financial Statements;
Solvency; etc. (a) The audited combined balance sheet of the
Mettler-Toledo Group dated December 31, 1995 (the "Balance
Sheet"), and the audited combined statements of operations and
cash flows of the Mettler-Toledo Group for the year ended
December 31, 1995, together with the notes to such financial
statements, have been prepared in conformity with United States
generally accepted accounting principles consistently applied
(except in each case as described in the notes thereto) and on
that basis fairly present the combined financial condition and
results of operations of the Mettler-Toledo Group as of the
respective dates thereof and for the respective periods
indicated. The audited consolidated balance sheets of Safeline
Limited and its Subsidiaries for each of the years ended March
31, 1993, March 31, 1994, March 31, 1995 and March 31, 1996 and
the audited consolidated profit and loss account and cash flow
statements of Safeline Limited and its Subsidiaries for each
fiscal year then ended, together with the notes to such financial
statements, have been prepared in conformity with generally
accepted accounting practices in the United Kingdom consistently
applied (except in each case as described in the notes thereto)
and on that basis fairly present the consolidated financial
condition and results of operations of Safeline Limited and its
Subsidiaries at the respective dates and for the respective
periods indicated above.
(b) Since December 31, 1995, there has not occurred an
event or condition that has had or would have, individually or in
the aggregate, a Material Adverse Effect, except to the extent
that the incurrence of Indebtedness pursuant to this Agreement
and the Senior Subordinated Notes or the consummation of the M-T
Acquisition would be deemed such an event or condition.
(c) On and as of the Original Closing Date, the
Amendment and Restatement Date, the Safeline Closing Date and on
and as of each Borrowing Date, on a pro forma basis after giving
effect to the Transactions to occur on such date (solely as to
the Original Closing Date and the Safeline Closing Date) and to
all Indebtedness incurred, and to be incurred, and Liens created,
and to be created, by each Loan Party on such date, (x) the sum
of the assets, at a fair valuation, of each Loan Party and of US
Borrower and the Subsidiaries, on a consolidated basis, will
exceed such Person's or Persons' debts, on a consolidated basis,
(y) each Loan Party has not and US Borrower and the Subsidiaries,
on a consolidated basis, have not incurred or intended to, or
believe that they will, incur debts beyond their ability to pay
such debts as such debts mature and (z) each Loan Party will have
and US Borrower and the Subsidiaries, on a consolidated basis,
will have sufficient capital with which to conduct their
business. For purposes of this Section 6.9(c), "debt" means any
liability on a claim, and "claim" means (i) right to payment
whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured or (ii) right
to an equitable remedy for breach of performance if such breach
gives rise to a payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured or unsecured.
(d) Except as fully reflected in the financial
statements delivered at any time pursuant to Section 7.1 or any
financial statements delivered in connection with the
consummation of the Transactions and except for the Indebtedness
incurred under this Agreement and the Senior Subordinated Notes,
there were as of the Original Closing Date, the Amendment and
Restatement Date, the Safeline Closing Date and on and as of each
Borrowing Date (and after giving effect to any Loans made on such
date), no liabilities or obligations (excluding current
obligations incurred in the ordinary course of business) with
respect to US Borrower or any Subsidiary of any nature whatsoever
(whether absolute, accrued, contingent or otherwise and whether
or not due), and the Borrowers do not know of any such liability
or obligation which, individually or in the aggregate, has had or
would have a Material Adverse Effect.
(e) During the period from December 31, 1995 to and
including the Original Closing Date, except as provided in the
Transaction Documents, there has been no sale, transfer or other
disposition by the Mettler-Toledo Group of any material part of
the business or property of the Mettler-Toledo Group, taken as a
whole, and no purchase or other acquisition by any of them of any
business or property (including any capital stock of any other
Person) material in relation to the consolidated financial
condition of the Mettler-Toledo Group, taken as a whole, in each
case, which is not reflected in the financial statements
delivered to the Agents and the Lenders or in the notes thereto
or otherwise in writing to the Agents and the Lenders on or prior
to the Original Closing Date (including the prospectus filed with
the SEC for the offering and sale of the Senior Subordinated
Notes).
6.10. Properties. US Borrower and each Subsidiary
owns or leases, as applicable, all properties and assets
reflected in the most recent financial statements delivered
pursuant to Section 7.1, except as sold or otherwise disposed of
since the date of such financial statements in the ordinary
course of business and in accordance with this Agreement and the
MT Acquisition Documents and Safeline Acquisition Documents. US
Borrower is sole legal and beneficial owner of all shares in UK
Borrower. Immediately following the Safeline Acquisition, UK
Borrower and Canadian Borrower will be sole legal and beneficial
owner of all shares in Safeline Limited and Safeline Limited will
be sole legal and beneficial owner of all shares in Safeline
Inc., Safeline SA and Safeline GmbH, except in each case as
provided for in the Safeline Acquisition Documents. Title to
each such property or asset is held by US Borrower or a
Subsidiary free and clear of all Liens, except for Prior Liens
and Permitted Liens. US Borrower and the Subsidiaries hold all
material licenses, certificates of occupancy or operation and
similar certificates and clearances of municipal and other
authorities necessary to own and operate their properties in the
manner and for the purposes currently operated by such parties
the absence of which would, individually or in the aggregate,
have a Material Adverse Effect. Neither US Borrower nor any
Subsidiary has received written notice of defaults of a material
nature with respect to any leases of real property under which US
Borrower or any Subsidiary, is lessor or lessee that would,
individually or in the aggregate, have a Material Adverse Effect.
6.11. Taxes. US Borrower and each Subsidiary (and
their predecessors, if any, for whose tax liabilities such Person
is or may be liable) has filed all tax returns reports and forms
required to be filed by it and has paid all taxes and assessments
shown to be due thereon or for which a notice of assessment or
deficiency has been received, except for those contested in good
faith and for which adequate reserves have been established in
accordance with GAAP, and except where failure would not,
individually or in the aggregate, have a Material Adverse Effect.
US Borrower and any Subsidiary has paid, or provided adequate
reserves (established in accordance with GAAP) for the payment
of, all U.S. Federal, state, local and foreign income taxes
(including franchise taxes based upon income) applicable for all
prior fiscal years and for the current fiscal year to the
Amendment and Restatement Date, except where failure would not,
individually or in the aggregate, have a Material Adverse Effect.
Neither Borrower knows of any proposed tax assessment against US
Borrower or any Subsidiary that would, individually or in the
aggregate, have a Material Adverse Effect, other than any
assessment which is being actively contested in good faith by
such Borrower or Subsidiary to the extent affected thereby and
for which reserves or other appropriate provisions, if any, as
shall be required in conformity with GAAP shall have been made or
provided therefor.
6.12. Environmental Matters. (A) Except as
disclosed in Schedule 6.12 (as amended and restated as of the
Amendment and Restatement Date for matters relating to UK
Borrower and its Subsidiaries) and except as would not,
individually or in the aggregate, have a Material Adverse Effect:
(i) US Borrower and each Subsidiary has obtained all
permits, licenses and other authorizations which are
required under any Environmental Law with respect to the
operation of the businesses and facilities and properties
owned, leased or operated by any of them including, without
limitation, any joint ventures.
(ii) US Borrower and each Subsidiary is in compliance
with all terms and conditions of the permits, licenses and
authorizations specified in subsection (i) above, and is
also in compliance with, and has no liability under, any
Environmental Laws applicable to it and its business and
operations and facilities and properties owned, leased or
operated by any of them.
(iii) Neither US Borrower nor any Subsidiary has
received written notice that it has been identified as a
potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), or any comparable foreign or
state law, nor has US Borrower or any Subsidiary received
any written notification that any Hazardous Materials that
it, or any of their respective predecessors in interest has
used, generated, stored, treated, handled, transported or
disposed of, or arranged for disposal or treatment of, or
arranged with a transporter for transport for disposal or
treatment of, have been found at any site at which any
governmental agency or private party is conducting or plans
to conduct a remedial investigation or other action pursuant
to any Environmental Law.
(iv) There have been no releases (i.e., any past or
present releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping,
leaching, disposing or dumping) of Hazardous Materials by US
Borrower or any Subsidiary or, to the knowledge of the
Borrowers, their respective predecessors in interest on, at,
upon, into or from any facilities or properties owned,
leased, or operated by any of them. To the knowledge of the
Borrowers, there have been no such releases of Hazardous
Materials on, at, under or from any property adjacent to any
Mortgaged Real Property that, through soil, air, surface
water or groundwater migration or contamination, may
reasonably have been expected to have migrated to or under
any Mortgaged Real Property.
(v) No properties now or formerly owned, leased or
operated by US Borrower or any Subsidiary are (i) listed or
proposed for listing on the National Priorities List under
CERCLA or (ii) listed in the Comprehensive Environmental
Response, Compensation, Liability Information System List
promulgated pursuant to CERCLA or (iii) to the knowledge of
the Borrowers, included on any comparable lists maintained
by any Governmental Authority.
(vi) To the knowledge of the Borrowers, there are no
past or present events, conditions, activities, practices,
or actions which would reasonably be expected to prevent US
Borrower's or any Subsidiary's compliance with any
Environmental Law, or which would reasonably be expected to
give rise to any liability under any Environmental Law,
including, without limitation, liability under CERCLA or
similar state, local or foreign laws.
(vii) No Lien has been asserted or recorded, or to
the knowledge of the Borrowers threatened under any
Environmental Law with respect to any assets, facility,
inventory or property owned, leased or operated by US
Borrower or any Subsidiary.
(viii) Neither US Borrower nor any Subsidiary has
assumed by contract any liabilities or obligations arising
under any Environmental Law in connection with (i) any
properties or facilities currently or formerly (a) owned,
leased or operated or (b) used for the storage or disposal
of Hazardous Materials, in each case by US Borrower or any
Subsidiary (or any of their respective predecessors in
interest) or (ii) any divisions, subsidiaries, companies or
other entities formerly owned by US Borrower or any
Subsidiary.
(ix) Neither US Borrower nor any Subsidiary has entered
into or agreed to any currently pending or effective
judgment, decree or order by any judicial or administrative
tribunal and are not subject to any judgment, decree or
order relating to compliance with any Environmental Law or
to investigation, response or corrective action with respect
to any Hazardous Material under any Environmental Law.
(x) Neither US Borrower nor any Subsidiary has
received any written notice of an Environmental Claim with
regard to any properties, facilities or business operated or
formerly operated by US Borrower or any Subsidiary or any of
their respective predecessors in interest.
(xi) To the knowledge of Borrowers, there are no
underground storage tanks or related piping at any property
owned, operated or leased by US Borrower or any Subsidiary,
and any former underground tanks or related piping on any
such property have been removed or closed in accordance with
any applicable Environmental Law.
(B) Environmental Documents. To the knowledge of the
Borrowers, all environmental investigations, studies, audits or
assessments in the possession or control of US Borrower or any
Subsidiary ("Reports") concerning any violation or potential
violation of, or liability or potential liability under, any
Environmental Law relating to any current or prior business,
facilities or properties of US Borrower or any Subsidiary (or any
of their respective predecessors in interest) or any property,
asset or facility currently or formerly (i) owned, operated or
leased or (ii) used for the storage or disposal of Hazardous
Materials, in each case by US Borrower or any Subsidiary (or any
of their respective predecessors in interest) have been made
available to the Arranger, except for Reports concerning such
violation or liability, individually or in the aggregate, which
would not have a Material Adverse Effect.
6.13. Regulated Entities. No Loan Party is an
"Investment Company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of
1940. Neither of the Borrowers nor any other Loan Party is
subject to regulation under the Public Utility Holding Company
Act of 1935, the U.S. Federal Power Act, the Interstate Commerce
Act, any state public utilities code, or any other U.S. Federal
or state statute or regulation limiting its ability to incur
Indebtedness.
6.14. Employee and Labor Matters. There is (i) no
unfair labor practice complaint pending against US Borrower or
any Subsidiary or, to the best knowledge of the Borrowers,
threatened against any of them, before the National Labor
Relations Board or similar foreign entity, and no grievance or
arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against US Borrower or any
Subsidiary or, to the best knowledge of the Borrowers, threatened
against any of them, (ii) no strike, labor dispute, slowdown or
stoppage pending against US Borrower or any Subsidiary or, to the
best knowledge of the Borrowers, threatened against US Borrower
or any Subsidiary, and (iii) to the best knowledge of the
Borrowers, no union representation question existing with respect
to the employees of US Borrower or any Subsidiary and, to the
best knowledge of the Borrowers, no union organizing activities
are taking place, except (with respect to any matter specified in
clause (i), (ii) or (iii) above, either individually or in the
aggregate) such as would not have a Material Adverse Effect.
6.15. Intellectual Property. To the knowledge of
the Borrowers, US Borrower and each Subsidiary owns or possesses
adequate licenses or otherwise has the right to use all of the
patents, patent applications, trademarks, trademark applications,
service marks, service mark applications, trade names,
copyrights, trade secrets and know-how (whether domestic or
foreign) (collectively, "Intellectual Property") that are
necessary for the operation of its business as presently
conducted, except where the failure to so own or possess licenses
or rights would not, individually or in the aggregate, have a
Material Adverse Effect. To the knowledge of US Borrower and the
Subsidiaries, no claim is pending that US Borrower or any
Subsidiary infringe upon the asserted rights of any other Person
under any Intellectual Property, except for any such claim which
would not, individually or in the aggregate, have a Material
Adverse Effect. To the knowledge of the Borrowers, no claim is
pending that any such Intellectual Property owned or licensed by
US Borrower or any Subsidiary or which US Borrower or any
Subsidiary otherwise have the right to use, is invalid or
unenforceable, except for any such claim which would not,
individually or in the aggregate, have a Material Adverse Effect.
Except as set forth in Schedule 6.15 (as amended and
restated as of the Amendment and Restatement Date for matters
relating to UK Borrower and its Subsidiaries) and except as would
not, individually or in the aggregate, have a Material Adverse
Effect, US Borrower or a Subsidiary owns or has the right to use
all Intellectual Property listed in Schedule 6.15 and the
consummation of the transactions contemplated hereby will not,
alter or impair any such rights. Subject to the rights of third
parties set forth in Schedule 6.15, all Intellectual Property
listed in Schedule 6.15 is free and clear of all Liens except
such as would not, individually or in the aggregate, have a
Material Adverse Effect.
6.16. Subsidiaries. As of the Original Closing
Date, US Borrower had no Subsidiaries other than those
specifically disclosed in part (a) of Schedule 6.16 hereto and
has no equity investments in any other corporation or entity
other than those specifically disclosed in part (b) of
Schedule 6.16.
6.17. Existing Indebtedness. Schedule 6.17 sets
forth a true and complete list of all Indebtedness of US Borrower
and the Subsidiaries as of the Original Closing Date and which is
to remain outstanding after giving effect to the Transactions
occurring on the Original Closing Date and the incurrence of
Loans on the Original Closing Date (excluding the Loans, the
Letters of Credit and the Senior Subordinated Notes, the
"Original Existing Indebtedness"), in each case showing the
aggregate principal amount thereof and the name of the respective
borrower and any other entity which directly or indirectly
guaranteed such debt. Schedule 6.17A sets forth a true and
complete list of all Indebtedness of Safeline Limited and its
Subsidiaries as of the Safeline Closing Date and which is to
remain outstanding after effect to the Safeline Acquisition
Transactions and the incurrence of loans on such date (excluding
the Loans, the "Safeline Existing Indebtedness" and together with
the Original Existing Indebtedness, the "Existing Indebtedness"),
in each case showing the aggregate principal amount thereof and
the name of the respective borrower and any other entity which
directly or indirectly guaranteed such debt.
6.18. True and Complete Disclosure. All factual
information (taken as a whole) heretofore or contemporaneously
furnished by or on behalf of the Borrowers and the other Loan
Parties in writing to any Lender (including, without limitation,
all information contained in the M-T Acquisition Documents, the
Safeline Acquisition Documents, the Basic Documents and the
Confidential Memorandum) for purposes of or in connection with
this Agreement or any transaction contemplated herein is (or was,
on the date of making the Initial Loans), and all other such
factual information (taken as a whole) furnished by or on behalf
of the Borrowers in writing to any Lender after the Original
Closing Date was and will be, true and accurate in all material
respects on the date as of which such information is dated or
certified and not incomplete by omitting to state any material
fact necessary to make such information, taken as a whole, not
misleading at such time in light of the circumstances under which
such information was provided. The projections and pro forma
financial information contained in or to be contained in such
materials (including the pro forma balance sheet furnished
pursuant to Section 5.1(l), the projections included in the
Confidential Memorandum, and the budgets to be furnished pursuant
to Section 7.1(c)) are based on good faith estimates and
assumptions believed by the Borrowers to be reasonable at the
time made, it being recognized by the Lenders that such
projections as to future events are not to be viewed as facts,
that actual results during the period or periods covered by any
such projections may differ materially from the projected results
and that the Borrowers make no representation or warranty that
such projections, pro forma results or budgets will be realized.
There is no fact known to either Borrower which materially and
adversely affects the business, operations, property, assets,
nature of assets, liabilities, condition (financial or otherwise)
or prospects of US Borrower and the Subsidiaries, taken as a
whole, which has not been disclosed herein or in such other
documents, certificates and written statements furnished to the
Lenders for use in connection with the transactions contemplated
hereby.
6.19. Security Interests. The Security Documents,
once executed, delivered, filed and/or recorded will create, in
favor of the Administrative Agent for the benefit of the Lenders,
as security for the obligations purported to be secured thereby,
a valid and enforceable perfected first priority security
interest in and Lien upon all of the Collateral, superior to and
prior to the rights of all third persons and subject to no Liens
except the Prior Liens applicable to such Collateral and
Permitted Liens. The mortgagor under each Mortgage has good and
marketable title to the Mortgaged Real Property free and clear of
all Liens other than Permitted Liens and Prior Liens applicable
to such Mortgaged Real Property. The respective pledgor or
assignor, as the case may be, has (or on and after the time it
executes the respective Security Document, will have) good and
marketable title to all items of Collateral (other than real
property subject to a Mortgage) covered by such Security Document
free and clear of all Liens other than Liens permitted by the
applicable Security Document. No filings or recordings are
required in order to perfect the security interests created under
any Security Document delivered on the Original Closing Date or
the Safeline Closing Date, except for filings or recordings
required in connection with any such Security Document as set
forth in the opinions of counsel delivered on the Original
Closing Date or the Safeline Closing Date.
6.20. Representations and Warranties in Basic
Documents. All representations and warranties set forth in the
other Basic Documents were (with respect to representations and
warranties of parties other than the Loan Parties, to the
knowledge of the Borrowers) true and correct in all material
respects as of the time such representations and warranties were
made and shall be true and correct in all material respects as of
the Original Closing Date and the Safeline Closing Date, as the
case may be, as if such representations and warranties were made
on and as of such date, unless stated to relate to a specific
earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such
earlier date.
6.21. M-T Acquisition and Safeline Acquisition. At
the time of consummation thereof, each of the M-T Acquisition and
Safeline Acquisition shall have been consummated substantially in
accordance with the terms of the M-T Acquisition Documents or the
Safeline Acquisition Documents, as the case may be, and all
applicable Requirements of Law. At the time of consummation
thereof, all consents and approvals of, and filings and
registrations with, and all other actions in respect of, all
governmental agencies, authorities or instrumentalities required
to make or consummate each of the M-T Acquisition and Safeline
Acquisition have been obtained, given, filed or taken or waived
and are or will be in full force and effect (or effective
judicial relief with respect thereto has been obtained), except
as set forth on Schedule 6.21 and except where the failure to
obtain, give, file, or take would not have a Material Adverse
Effect. All applicable waiting periods with respect thereto have
or, prior to the time when required, will have, expired without,
in all such cases, any action being taken by any competent
Governmental Authority which restrains, prevents, or imposes
material adverse conditions upon the M-T Acquisition or the
Safeline Acquisition. Additionally, there does not exist any
judgment, order or injunction prohibiting or imposing material
adverse conditions upon the M-T Acquisition or the Safeline
Acquisition or the performance by US Borrower and the
Subsidiaries of their obligations under the M-T Acquisition
Documents or the Safeline Acquisition Documents, as the case may
be, and all applicable Requirements of Law.
6.22. Broker's Fees. Except as disclosed in
Schedule 6.22, no broker's or finder's fee or commission will be
payable with respect to this Agreement or any of the Transactions
contemplated hereby, and the Borrowers hereby jointly and
severally indemnify the Agents and the Lenders against, and agree
that they will jointly and severally hold the Agents and the
Lenders harmless from, any claim, demand or liability for any
such broker's or finder's fees alleged to have been incurred in
connection herewith or therewith and any expenses (including
fees, expenses and disbursements or counsel) arising in
connection with any such claim, demand or liability.
6.23. Senior Subordinated Notes. The subordination
provisions contained in the Senior Subordinated Note Documents
are enforceable against US Borrower and each of its Subsidiaries
party thereto, and all Obligations are within the definition of
"Senior Indebtedness" or "Guarantor Senior Indebtedness", as the
case may be, included in such subordination provisions. Senior
Subordinated Notes, when issued and sold, will either (a) have
been registered or qualified under applicable federal and state
securities laws or (b) be exempt therefrom. The offering
documents for the issuance and sale of the Senior Subordinated
Notes, as of their date, did not contain an untrue statement of
material fact or omit to state a material fact required to be
stated therein or necessary to make the statement therein not
misleading.
6.24. Assignment of Rights Under M-T Acquisition
Documents. All rights of M-T Investors Inc. (formerly named AEA
MT Inc.) under the M-T Acquisition Documents will be assigned to
US Borrower effective upon the consummation of the merger of US
Borrower and Mettler-Toledo, Inc., to Mettler-Toledo, Inc. by
operation of law.
ARTICLE VII.
AFFIRMATIVE COVENANTS
----------------------
So long as any Lender shall have any Commitment
hereunder, or any Loan or other Obligation shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding:
7.1. Financial Statements, etc. The Borrowers shall
deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent and the Required
Lenders:
(a) as soon as available, but not later than 95 days
after the end of each fiscal year, a copy of the audited
consolidated (and consolidating with respect to (x) CH
Borrower and its Subsidiaries on a consolidated basis and
(y) UK Borrower and its Subsidiaries on a consolidated
basis) balance sheet of US Borrower and the Subsidiaries as
at the end of such year and the related consolidated (and
consolidating with respect to (x) CH Borrower and its
Subsidiaries on a consolidated basis and (y) UK Borrower and
its Subsidiaries on a consolidated basis) statements of
operations, retained earnings, shareholders' equity and cash
flow for such year, setting forth in each case in
comparative form the corresponding consolidated figures for
the previous fiscal year and comparable budgeted figures for
such fiscal year, and, in the case of the consolidated
statements, accompanied by the opinion of KPMG Fides Peat or
another nationally recognized independent certified public
accounting firm selected by the Borrowers and reasonably
acceptable to the Administrative Agent ("Independent
Auditor"), which opinion (i) shall state that such
consolidated financial statements present fairly the
consolidated financial position and results of operations of
US Borrower and the Subsidiaries for the periods indicated
in conformity with GAAP and (ii) shall not be qualified or
limited because of a restricted or limited examination by
the Independent Auditor of any material portion of US
Borrower's or any Subsidiary's records and shall be
delivered to the Administrative Agent pursuant to a reliance
agreement between the Administrative Agent and Lenders and
such Independent Auditor in form and substance satisfactory
to the Agents and a certificate of such accountants stating
that in the course of its regular audit of the business of
US Borrower and the Subsidiaries no Event of Default or
Unmatured Event of Default which has occurred and is
continuing has come to their attention or, if such an Event
of Default or Unmatured Event of Default has come to their
attention, a statement as to the nature thereof;
(b) as soon as available, but not later than 50 days
after the end of each of the fiscal quarters (other than the
fourth quarter which will be delivered in 95 days) of each
fiscal year, a copy of the consolidated (and consolidating
with respect to (x) CH Borrower and its Subsidiaries on a
consolidated basis and (y) UK Borrower and its Subsidiaries
on a consolidated basis) balance sheet of US Borrower and
the Subsidiaries as of the end of such quarter and the
related consolidated (and consolidating with respect to CH
Borrower and its Subsidiaries on a consolidated basis and
(y) UK Borrower and its Subsidiaries on a consolidated
basis) statements of operations, retained earnings and cash
flow for the period commencing on the first day and ending
on the last day of such quarter, and the period from the
beginning of the respective fiscal year to the end of such
quarter, setting forth in each case in comparative form the
corresponding consolidated figures for the corresponding
period in the previous fiscal year, accompanied by a
certificate of a Responsible Officer, which certificate
shall state that said consolidated financial statements
fairly present, in accordance with GAAP (subject to
ordinary, good-faith year-end adjustments), the consolidated
financial position and the results of operations of US
Borrower and the Subsidiaries;
(c) within 95 days after the commencement of each
fiscal year, budgets of US Borrower and the Subsidiaries in
reasonable detail for each fiscal quarter of such fiscal
year and for each fiscal quarter of the immediately
succeeding fiscal year, in each case, as customarily
prepared by management for its internal use, setting forth,
with appropriate discussion, the principal assumptions upon
which such budgets are based. Together with each delivery
of statements of operations pursuant to subsection 7.1(b), a
comparison of the current year-to-date financial results
against the budgets required to be submitted pursuant to
this subsection (c) shall be presented; and
(d) promptly upon receipt thereof, a copy of each
report or "management letter" submitted to US Borrower or
any Subsidiary by its independent accountants in connection
with any annual, interim or special audit made by them of
the books of US Borrower or any Subsidiary.
7.2. Certificates; Other Information. The Borrowers
shall furnish to the Administrative Agent and each Lender:
(a) concurrently with the delivery of the financial
statements referred to in subsections 7.1(a) and (b), a
Compliance Certificate executed by a Responsible Officer
stating that the Loan Parties are in compliance with the
covenants set forth under this Article VII and Article VIII;
(b) on and after the Reset Date, together with the
financial statements delivered pursuant to subsections
7.1(a) and 7.1(b), an Interest Rate Certificate;
(c) copies of all financial statements and regular,
periodical or special reports that US Borrower or any
Subsidiary may make to, or file with, the SEC if not
otherwise delivered under Section 7.1; and
(d) as soon as practicable, such additional
information regarding the business, financial or corporate
affairs of US Borrower or any Subsidiary as the
Administrative Agent or any Lender (through the
Administrative Agent) may from time to time reasonably (as
to type and interval) request.
7.3. Notices. Promptly upon a Responsible Officer
learning thereof, the Borrowers shall notify the Administrative
Agent and each Lender:
(a) of the occurrence of any Event of Default or
Unmatured Event of Default;
(b) of any of the following matters that has resulted
in a Material Adverse Effect: (i) any breach or non-
performance of, or any default under, a Contractual
Obligation of US Borrower or any Subsidiary; (ii) any
dispute, litigation, investigation, proceeding or suspension
by or before any Governmental Authority affecting US
Borrower or any Subsidiary; or (iii) to the knowledge of the
Borrowers the commencement of, or any material development
in, any litigation or proceeding affecting US Borrower or
any Subsidiary, including pursuant to any applicable
Environmental Laws;
(c) of the occurrence of any of the following events
if such event has resulted or could reasonably be expected
to result in any Material Adverse Effect or in a Lien under
ERISA or the Code (but in no event more than ten days after
such event), and deliver to the Administrative Agent and
each Lender a copy of any notice with respect to such event
that is filed with a Governmental Authority and any notice
delivered by a Governmental Authority to the Loan Party or
any ERISA Affiliate with respect to such event, and upon the
request of the Administrative Agent or any Lender shall
furnish any Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) filed by any Loan Party or ERISA
Affiliate with the Internal Revenue Service with respect to
any Pension Plan: (i) an ERISA Event; (ii) the adoption
after the date hereof of, or the commencement after the date
hereof of contributions to, any Plan subject to Section 412
of the Code by US Borrower or any ERISA Affiliate; (iii) the
adoption after the date hereof of any amendment to a Plan
subject to Section 412 of the Code; (iv) of any pending or
threatened Environmental Claim against US Borrower or any
Subsidiary or any Real Property owned or operated by US
Borrower or any Subsidiary that would, singly or in the
aggregate, have a Material Adverse Effect; (v) of any
condition or occurrence on any Real Property owned or
operated by US Borrower or any Subsidiary that (x) results
in noncompliance by US Borrower or any Subsidiary with any
applicable Environmental Law or (y) would form the basis of
an Environmental Claim against US Borrower or any Subsidiary
or any such Real Property in each case to the extent that
any such noncompliance or Environmental Claim would, singly
or in the aggregate, have a Material Adverse Effect; and
(vi) of any condition or occurrence on any Real Property
owned or operated by US Borrower or any Subsidiary that
could reasonably be expected to cause such Real Property to
be subject to any restrictions on the ownership, occupancy,
use or transferability by US Borrower or any Subsidiary, as
the case may be, of its interest in such Real Property under
any Environmental Law which condition or occurrence would,
singly or in the aggregate, have a Material Adverse Effect;
and
(d) of the occurrence of any default or event of
default under the Senior Subordinated Notes.
Each notice under this Section shall be accompanied by
a written statement by a Responsible Officer setting forth
details of the occurrence referred to therein, and stating what
action the Borrowers or any affected Subsidiary proposes to take
with respect thereto.
7.4. Preservation of Corporate Existence, etc. The
Borrowers shall, and shall cause each of their respective
Subsidiaries to: (a) preserve and maintain in full force and
effect its existence and good standing under the laws of its
state or jurisdiction of organization, except in a transaction
permitted by Section 8.3; (b) preserve and maintain in full force
and effect all material governmental rights, privileges,
qualifications, permits, licenses and franchises necessary in the
normal conduct of its business, except in connection with
transactions permitted by Section 8.3 and sales of assets
permitted by Section 8.2; (c) use reasonable efforts, in the
ordinary course of business, to preserve its business
organization and goodwill; (d) preserve or renew all of its
Intellectual Property, the non-preservation of which would,
singly or in the aggregate, have a Material Adverse Effect; and
(e) comply in all material respects with all material
Requirements of Law of any Governmental Authority having
jurisdiction over it or its business if failure to comply with
such requirements would, singly or in the aggregate, have a
Material Adverse Effect, except, in the case of clauses (a) (with
respect to any Subsidiary which is of de minimis significance to
US Borrower and the Subsidiaries taken as a whole), (b), (c) and
(d), to the extent no longer economically desirable, in the
commercially reasonable opinion of management and except for the
M-T Acquisition.
7.5. Maintenance of Property; Insurance.(a) Each
Borrower will, and will cause each of its Subsidiaries (i) to
exercise commercially reasonable efforts to maintain or cause to
be maintained in good repair, working order and condition
(subject to normal wear and tear) all properties used in its
businesses and from time to time will make or cause to be made
all repairs, renewals and replacements thereof, which the
applicable Borrower or the applicable Subsidiary deems
appropriate in its commercially reasonable opinion so that the
business carried on in connection therewith may be properly and
advantageously conducted and will maintain and renew as necessary
all licenses, permits and other clearances reasonably necessary
in the applicable Borrower's or the applicable Subsidiary's
commercially reasonable opinion to use and occupy such
properties, except to the extent no longer economically desirable
in the commercially reasonable opinion of the applicable Borrower
or the applicable Subsidiary, and (ii) promptly to pay all calls,
installments and other payments which may be made or become due
in respect of any shares held by US Borrower or any Subsidiary.
(b) The Borrowers shall, and shall cause each of their
respective Subsidiaries to, maintain in full force and effect,
with financially sound and reputable independent insurers,
insurance or reinsurance with respect to their properties and
business against loss or damage of the kinds customarily insured
against by corporations of established reputation engaged in the
same or similar business and similarly situated, of such types
and in such amounts as are customarily carried under similar
circumstances by such other corporations. The Borrowers and each
of their respective Subsidiaries, as applicable, shall furnish to
the Administrative Agent on the Closing Date a summary of the
material insurance carried in respect of US Borrower and the
Subsidiaries and the assets of US Borrower and the Subsidiaries,
together with certificates of insurance and other evidence of
such insurance, if any, naming the Administrative Agent as an
additional insured and/or loss payee.
(c) Without duplicating the requirements of subsection
7.5(b) above, each Borrower will, and will cause each of its
Subsidiaries to, maintain in full force the insurance coverages
specified in the Mortgages and the other Security Documents.
7.6. Payment of Obligations. The Borrowers shall, and
shall cause each of their respective Subsidiaries to, pay and
discharge as the same shall become due and payable all of their
obligations and liabilities, including: (a) all material tax
liabilities, assessments and governmental charges or levies upon
them or their properties or assets; and (b) all lawful claims
which, if unpaid, would by law become a Lien (other than a
Permitted Lien) upon their property; unless, in each case, the
same are being contested in good faith by appropriate proceedings
and adequate reserves in accordance with GAAP are being
maintained by such Borrower or such Subsidiary with respect
thereto, or the failure to so pay or discharge would not,
individually or in the aggregate, have a Material Adverse Effect.
7.7. Compliance with Environmental Laws. (a) Each
Borrower shall comply and if any of its Subsidiaries fails to
comply, shall cause such Subsidiary to comply with all
Environmental Laws; (b) each Borrower will pay, and, if any of
its Subsidiaries fails to pay, will cause each such Subsidiary to
pay, all costs and expenses incurred by it in complying in all
material respects with all Environmental Laws, and will keep or
cause to be kept all Real Property owned, operated or leased by
any of them free and clear of any Liens imposed pursuant to such
Environmental Laws unless the failure to comply with these
requirements specified in clause (a) or (b) above would not,
individually or in the aggregate, have a Material Adverse Effect;
(c) in the event of the presence of any Hazardous Material at,
on, under or upon any property owned, operated or leased by
either Borrower or any Subsidiary which would reasonably be
expected to result in liability under or a violation of any
Environmental Law, in each case which would, individually or in
the aggregate, have a Material Adverse Effect, the Borrowers
agree to undertake, and/or to cause any of their respective
Subsidiaries, tenants or occupants to undertake, at their sole
expense, any investigation, removal, remedial or other action
required pursuant to Environmental Laws to mitigate and eliminate
any such adverse effect; provided, however, that neither Borrower
nor any of their respective Subsidiaries shall be required to
comply with any order or directive which is being contested in
good faith and by proper proceedings so long as it has maintained
adequate reserves with respect to such compliance to the extent
required in accordance with GAAP; and (d) each Borrower shall as
promptly as practicable notify the Administrative Agent of the
occurrence of any event specified in clause (c) of this Section
7.7 and shall thereafter keep the Administrative Agent informed
on a periodic basis of any actions taken in response to such
event and the results of such actions.
7.8. Compliance with ERISA. The Borrowers shall, and
shall cause each of their respective ERISA Affiliates to:
(a) maintain each Plan in compliance in all material respects
with the applicable provisions of ERISA, the Code and other
applicable law; (b) cause each Plan which is qualified under
Section 401(a) of the Code to maintain such qualification; and
(c) make all required contributions to any Plan subject to
Section 412 of the Code, except where failure would not,
individually or in the aggregate, have a Material Adverse Effect.
7.9. Inspection of Property and Books and Records. The
Borrowers shall, and shall cause each of their respective
Subsidiaries to, maintain proper books of record and account, in
which full, true and correct entries in order to permit the
preparation of US Borrower's consolidated financial statements in
conformity with GAAP shall be made of all financial transactions
and matters involving the assets and business of US Borrower and
the Subsidiaries. The Borrowers shall, and shall cause each of
their respective Subsidiaries to, permit representatives and
independent contractors of the Administrative Agent or any Lender
to visit and inspect any of their respective properties or
assets, to examine their respective corporate, financial and
operating records, and make copies thereof or abstracts
therefrom, and to discuss their respective affairs, finances and
accounts with their respective directors, officers, and
independent public accountants (provided that officers of a
Borrower or such Subsidiary are offered the reasonable
opportunity to be present at such discussion), all at the expense
of the Borrowers (it being understood that travel and out-of-
pocket expenses of the Agents and the Lenders in connection
therewith shall not be for the account of the Borrowers) and at
such reasonable times and intervals during normal business hours
and as often as may be reasonably desired, upon reasonable
advance notice to the Borrowers or to the applicable Subsidiary
and in connection with commercially reasonable informational
needs of the Administrative Agent or any Lender; provided,
however, when an Event of Default or emergency exists the
Administrative Agent or any Lender may do any of the foregoing at
any time and without advance notice in a commercially reasonable
manner.
7.10. End of Fiscal Years; Fiscal Quarters. US
Borrower will, for financial reporting purposes, cause (i) each
of its, and each of its Subsidiaries', fiscal years to end on
December 31 of each year and (ii) each of its, and each of its
Subsidiaries', fiscal quarters to end on March 31, June 30,
September 30 and December 31 of each year.
7.11. Use of Proceeds. On the Original Closing
Date, the Borrowers shall use the proceeds of all of the Term
Loans and a borrowing of not more than U.S. $75 million of the
Revolving Facility Loans solely to (i) finance a portion of the
M-T Acquisition and (ii) pay fees and expenses in connection with
the M-T Acquisition. After the Original Closing Date, the
Revolving Facility will be used solely to provide working capital
and for general corporate purposes of the Credit Agreement Loan
Parties and their Subsidiaries (including the Safeline Contingent
Payment and the repayment of the Safeline Seller Notes) and to
make the Ciba Loan. On the Safeline Closing Date US Borrower and
the other Loan Parties shall use the proceeds of all Loans made
on such date solely to (i) finance the Safeline Acquisition and
(ii) pay fees and expenses in connection with the Safeline
Acquisition. After the Safeline Closing Date, the Canadian
Facility will be used solely to provide working capital and for
general corporate purposes of Canadian Borrower and its
Subsidiaries (including the Safeline Contingent Payment and the
repayment of the Safeline Seller Notes).
7.12. Further Assurances. The Borrowers shall take
such actions as are reasonably necessary, or as the
Administrative Agent or any Lender may reasonably request from
time to time, to (A) ensure that (i) the Obligations of the
Credit Agreement Loan Parties (other than UK Borrower) are
unconditionally guaranteed by each of the Domestic Subsidiaries,
and (ii) the Obligations of CH Borrower are unconditionally
guaranteed (subject to limitations under applicable law) by each
of the CH Foreign Subsidiaries (other than, subject to Section
7.22, the Specified Subsidiaries), (B) cause any Subsidiaries
created or acquired by US Borrower or any Subsidiary in which the
aggregate amount invested therein by any Company is in excess of
the Dollar Equivalent of U.S. $1.0 million after the Original
Closing Date to (i) execute and deliver (x) a Domestic Subsidiary
Guarantee, in the case of any Domestic Subsidiary, or (y) a
Foreign Subsidiary Guarantee (to the extent permitted by and
subject to limitations under applicable law (including
limitations as to the nature of the Obligations which may be
guaranteed)), in the case of any CH Foreign Subsidiaries (other
than any CH Foreign Subsidiary that cannot, by virtue of
applicable law, enter into a Foreign Subsidiary Guarantee), and
(ii) (other than, subject to Section 7.22, any Specified
Subsidiary or any Subsidiary that cannot, by virtue of applicable
law, enter into security documents in respect of the Obligations)
enter into any security documents that the Administrative Agent
may reasonably require (consistent with the principles of this
Agreement) to ensure that the Obligations are secured by
perfected Liens in favor of the Administrative Agent, for the
benefit of the Administrative Agent and the applicable Lenders,
on all of the Collateral (subject to limitations under applicable
law), and (C) ensure that UK Borrower, Safeline Limited and M-T
Leicester comply at all times with the provisions of Section 151
of the Companies Act 1985 of Great Britain and take promptly any
action required under Chapter VI of the Companies Act 1985 of
Great Britain to relax the requirements of Section 151 of the
Companies Act 1985 of Great Britain where necessary to enable
such corporation to comply with any provision of any of the Loan
Documents, and each of UK Borrower, Safeline Limited and M-T
Leicester agrees to take any such action accordingly.
7.13. Equal Security for Loans and Notes; No
Further Negative Pledges. (a) If either Borrower or any of
their respective Subsidiaries shall create or assume any Lien
upon any of their respective property or assets, whether now
owned or hereafter acquired and whether or not such property or
assets constitute Collateral, other than any Lien permitted by
the Loan Documents, it shall make or cause to be made effective
provisions whereby the Obligations will be secured by such Lien
equally and ratably with any and all other Indebtedness thereby
secured as long as any such Indebtedness shall be secured;
provided, however, that this covenant shall not be construed as
consent by the Administrative Agent and the Required Lenders to
any violation by either Borrower or any of their respective
Subsidiaries of the provisions of Section 8.1.
(b) Except with respect to prohibitions against other
encumbrances on specific property encumbered to secure payment of
particular Indebtedness permitted hereunder, neither Borrower nor
any of their respective Subsidiaries shall enter into any
agreement prohibiting the creation or assumption of any Lien upon
its properties or assets, whether now owned or hereafter
acquired.
7.14. Pledge of Additional Collateral. Subject to
Section 7.13, as soon as reasonably practicable after the
acquisition of any property or assets by US Borrower or any
Subsidiary with a Dollar Equivalent Value of in excess of U.S.
$100,000 individually and U.S. $5.0 million or more in the
aggregate of the type that would have constituted Collateral (if
the Person acquiring such assets had executed an appropriate
Security Document on the Original Closing Date (whether or not
actually so executed)) at the Original Closing Date (the
"Additional Collateral"), the Borrowers will, and will cause each
of their respective Subsidiaries to, take all reasonably
necessary or desirable action, including the filing of
appropriate financing statements under the provisions of the UCC
and applicable foreign, domestic or local laws, rules or
regulations in each of the offices where such filing is necessary
or appropriate, to grant to the Administrative Agent for the
benefit of, (i) with respect to any such Additional Collateral
acquired by US Borrower or any Domestic Subsidiary (other than UK
Borrower Guarantor), all of the Lenders (other than the UK
Lenders), and, with respect to UK Borrower Guarantor, the Lenders
with Obligations owing by UK Borrower, (ii) with respect to any
such Additional Collateral acquired by CH Borrower and CH Foreign
Subsidiaries, the Lenders owed Obligations by CH Borrower and/or
CH Foreign Subsidiaries, and (iii) with respect to any such
Additional Collateral acquired by UK Borrower, the Lenders owed
Obligations by UK Borrower, a perfected first priority Lien in
such Collateral (or comparable interest under foreign law in the
case of foreign Collateral) pursuant to and to the full extent
required by the applicable Security Documents and this Agreement;
provided, however, that notwithstanding the foregoing, (1) none
of US Borrower, UK Borrower or any Domestic Subsidiary shall be
required, subject to Section 7.18, to pledge more than 65% of the
capital stock of any Foreign Subsidiary and no capital stock of
any Foreign Subsidiary which is not a "first tier" Subsidiary of
US Borrower, UK Borrower or any Domestic Subsidiary need be
pledged by US Borrower, UK Borrower or any Domestic Subsidiary,
(2) none of US Borrower or any Subsidiary shall be required,
subject to Section 7.18, to pledge any property or assets which
in accordance with the terms of the Loan Documents was not
pledged (or would not have been so pledged if then in existence)
on the Original Closing Date, other than any property to be
pledged on the Safeline Closing Date, and (3) no Foreign
Subsidiary need pledge any property or assets to the extent
prohibited by applicable law, to the extent such pledge would
secure the Obligations of US Borrower or UK Borrower, or to the
extent such pledge would cause adverse tax consequences. In the
event that (x) US Borrower or any Domestic Subsidiary acquires an
interest in any additional real property which is a manufacturing
or significant assembly facility or of a character and importance
similar at such time to the facilities that are subject to the
Mortgages on the Original Closing Date, US Borrower or such
Subsidiary, as the case may be, will take such reasonable actions
and execute such documents as the Administrative Agent shall
reasonably require to confirm the Lien of a Mortgage, if
applicable, or to create a new Mortgage for the benefit of the
Lenders (it being agreed, however, that any real property owned
by UK Borrower Guarantor as of the Safeline Closing Date need not
be subject to a Mortgage pursuant to this Section 7.14), or (y)
CH Borrower or any CH Foreign Subsidiary acquires an interest in
any additional real property which is a manufacturing or
significant assembly facility or of a character and importance
similar at such time to the facilities that are subject to the
Mortgages on the Original Closing Date, CH Borrower or such
Subsidiary, as the case may be, will take such reasonable actions
and execute such documents as the Administrative Agent will
reasonably require to confirm the lien of a Mortgage, if
applicable, or to create a new Mortgage for the benefit of the
Lenders which are owed Obligations by CH Borrower or any CH
Foreign Subsidiary. All actions taken by the parties in
connection with the pledge of Additional Collateral, including,
without limitation, reasonable costs of counsel for the Lenders,
shall be for the account of the Borrowers, which shall pay all
reasonable sums due on demand.
7.15. Security Interests. (a) The Borrowers will,
and will cause each of their respective Subsidiaries to, perform
any and all reasonable acts and execute any and all documents
(including, without limitation, the execution, amendment or
supplementation of any financing statement, continuation
statement or other statement) for filing in any appropriate
jurisdiction under the provisions of the UCC and applicable
foreign, domestic or local law or any statute, rule or regulation
of any applicable jurisdiction, including any filings in local
real estate land record offices and the United States Patent and
Trademark Office, or the United States Copyright Office or
similar foreign offices, which are reasonably necessary or
advisable, from time to time, in order to grant, continue or
maintain in favor of the Administrative Agent for the benefit of
the applicable Lenders a valid and perfected Lien on the
Collateral and any Additional Collateral, subject to no Liens
except for Prior Liens, Permitted Liens and Liens permitted by
the applicable Security Documents.
(b) The Borrowers shall, and shall cause each of their
respective Subsidiaries to, deliver or cause to be delivered to
the Administrative Agent from time to time such other reasonable
documentation, consents, authorizations, approvals and orders in
form and substance reasonably satisfactory to the Administrative
Agent as the Administrative Agent shall deem reasonably necessary
or advisable to perfect or maintain the Liens on the Collateral.
Furthermore, with respect to any Additional Collateral, the
Borrowers shall cause to be delivered to the Administrative Agent
such opinions of counsel, title insurance and other related
documents as may reasonably be requested by the Administrative
Agent to assure itself that this Section 7.15 has been complied
with.
(c) If the Administrative Agent or the Required
Lenders determine that they are required by law or regulation to
have appraisals prepared in respect of the Real Property of the
Borrowers and their respective Subsidiaries constituting
Collateral, the Borrowers shall provide to the Administrative
Agent appraisals which satisfy the applicable requirements of the
Real Estate Appraisal Reform Amendments of FIRREA and which shall
be in form and substance satisfactory to the Administrative
Agent.
7.16. Interest Rate Protection. The Borrowers
shall obtain, on or within 60 days after the Amendment and
Restatement Date (and, in addition, within 60 days of the
Safeline Closing Date, if later), interest rate protection having
terms and with counterparties reasonably satisfactory to the
Administrative Agent as shall result in effectively limiting the
interest cost to the Borrowers of 50% of the aggregate Dollar
Equivalent principal amount of then outstanding Term Loans for a
period of at least three years from the date the initial interest
rate protection was obtained. The Lenders waive any failure to
comply with this covenant prior to the Amendment and Restatement
Date.
7.17. Currency and Commodity Hedging Transactions.
The Borrowers and each of the Subsidiaries shall only enter into,
purchase or otherwise acquire agreements or arrangements relating
to currency or commodity hedging to the extent and only to the
extent that such agreements or arrangements are entered into,
purchased or otherwise acquired in the ordinary course of
business of the Borrowers or any of the Subsidiaries with
reputable financial institutions and not for purposes of
speculation.
7.18. Foreign Subsidiaries Security. If following
a change in the relevant sections of the Code or the regulations,
rules, rulings, notices or other official pronouncements issued
or promulgated thereunder, counsel for the Borrowers reasonably
acceptable to the Arranger does not within 30 days after a
request from the Arranger or the Required Lenders deliver its
opinion (in form reasonably acceptable to the Arranger) with
respect to any Foreign Subsidiary which has not already had all
of its stock owned by Holding or any of its Subsidiaries pledged
pursuant to a Securities Pledge Agreement, that (i) a pledge to
secure the Obligations of US Borrower or the Domestic Subsidiary
Guarantor which is the parent of such Foreign Subsidiary, as the
case may be, (x) of 66-2/3% or more of the total combined voting
power of all classes of capital stock of such Foreign Subsidiary
entitled to vote and (y) of any promissory note issued by such
Foreign Subsidiary, if wholly-owned, to US Borrower or any of its
Domestic Subsidiaries, (ii) the entering into by such Foreign
Subsidiary, if wholly-owned, of a security agreement in
substantially the form of the Security Agreement executed and
delivered by the Domestic Subsidiary Guarantors (with appropriate
modifications to conform to applicable law) and (iii) the
entering into by such Foreign Subsidiary, if wholly-owned, of a
guaranty in substantially the form of the Domestic Subsidiary
Guarantee guaranteeing the Obligations of US Borrower and CH
Borrower, in any such case could reasonably be expected to cause
(I) the undistributed earnings of such Foreign Subsidiary as
determined for U.S. Federal income tax purposes to be treated as
a deemed dividend to such Foreign Subsidiary's United States
parent for U.S. Federal income tax purposes or (II) any other
material adverse U.S. Federal income tax consequences to the Loan
Parties, then in the case of a failure to deliver the opinion
with respect to the factors described in clause (i) above, that
portion of such Foreign Subsidiary's outstanding capital stock or
any promissory notes so issued by such Foreign Subsidiary, in
each case not theretofore pledged pursuant to a Securities Pledge
Agreement, shall be pledged to the Administrative Agent pursuant
to a Securities Pledge Agreement (with appropriate modifications
to conform to and subject to limitations of law) (or another
pledge agreement in substantially similar form, if needed) and,
in the case of a failure to deliver the opinion with respect to
the factors described in clause (ii) above, such Foreign
Subsidiary shall execute and deliver a Security Agreement in
substantially the form executed and delivered by the Foreign
Subsidiary Guarantors (with appropriate modifications to conform
to and subject to limitations of law) (or another security
agreement in substantially similar form, if needed) securing the
Obligations of US Borrower and CH Borrower and their obligations
under any Swap Agreement with a Lender and, in the event a
Guarantee guaranteeing the Obligations of US Borrower and/or CH
Borrower shall have been executed by such Foreign Subsidiary, the
obligations of such Foreign Subsidiary thereunder and, in the
case of a failure to deliver the opinion with respect to the
factors described in clause (iii) above, such Foreign Subsidiary
shall execute and deliver a Guarantee guaranteeing the
Obligations of US Borrower and CH Borrower (with appropriate
modifications to conform to and subject to limitations of law)
(or another guaranty in substantially similar form, if needed),
and their obligations under any Swap Agreement with a Lender, in
each case to the extent that the entering into of such Security
Agreement or Guarantee is permitted by the laws of the respective
foreign jurisdiction and with all documents delivered pursuant to
this Section 7.18 to be in form and substance reasonably
satisfactory to the Arranger; provided, however, that such
Foreign Subsidiary shall not be required to pledge pursuant to a
Foreign Subsidiary Security Agreement any property or assets that
it would not have been required to pledge had it executed a
Foreign Subsidiary Security Agreement at the Original Closing
Date.
7.19. Register. The Borrowers and UK Borrower
hereby designate the Administrative Agent to serve as the
Borrowers' agent, solely for purposes of this Section 7.19, to
maintain a register (the "Register") on which it will record the
Commitment from time to time of each of the Lenders, the Loans
made by each of the Lenders (other than any Swing Line Loan made
in other than U.S. Dollars or Pounds Sterling) and each repayment
in respect of the principal amount of the Loans of each Lender
(other than any Swing Line Loan made in other than U.S. Dollars
or Pounds Sterling). Failure to make any such recordation or any
error in such recordation shall not affect either Borrower's or
UK Borrower's obligations in respect of such Loans. The entries
in the Register shall be conclusive, in the absence of manifest
error, and the applicable Borrower, UK Borrower, the
Administrative Agent and the Lenders shall treat each Person
whose name is recorded in the Register as the owner of such a
Loan or other obligation hereunder as the owner thereof for all
purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. With respect to any
Lender, the transfer of any Commitment of such Lender or the
rights to the principal of, and interest on, any Loan (other than
any Swing Line Loan made in other than U.S. Dollars or Pounds
Sterling) shall not be effective until such transfer is recorded
on the Register maintained by the Administrative Agent with
respect to ownership of such Commitment or Loans and prior to
such recordation all amounts owing to the transferor with respect
to such Commitment or Loans shall remain owing to the transferor.
The registration of assignment or transfer of all or part of any
Commitment or Loans (other than any Swing Line Loan made in other
than U.S. Dollars or Pounds Sterling) shall be recorded by the
Administrative Agent on the Register only upon the acceptance by
the Administrative Agent of a properly executed and delivered
Assignment and Acceptance pursuant to Section 11.8. Coincident
with the delivery of such an Assignment and Acceptance to the
Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Loan, or as soon
thereafter as practicable, the assigning or transferor Lender
shall surrender the Note evidencing such Loan and thereupon one
or more new Notes in the same aggregate principal amount shall be
issued to the assigning or transferor Lender and/or the new
Lender. The Borrowers and the UK Borrower agree to indemnify the
Administrative Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed
on, asserted against or incurred by the Administrative Agent in
performing its duties under this Section 7.19.
7.20. New Subsidiaries. In addition to their
obligations with respect to Sections 7.14, 7.15 and 7.18, if,
after the Original Closing Date, the Borrowers or any Subsidiary
shall create or acquire any Subsidiary, the Borrowers shall,
concurrently with the creation or acquisition of such Subsidiary,
(i) cause such Subsidiary (other than (subject to Section 7.18) a
Foreign Subsidiary that is not a CH Foreign Subsidiary) to
execute and deliver to the Administrative Agent a Subsidiary
Guarantee, as appropriate (with appropriate modifications to
conform to and subject to the limitations of foreign law),
guaranteeing (1) with respect to any Domestic Subsidiary (other
than UK Borrower Guarantor), the Obligations of the Credit
Agreement Loan Parties (other than UK Borrower), (2) with respect
to UK Borrower Guarantor, UK Borrower and (3) with respect to any
CH Foreign Subsidiary, the Obligations of CH Borrower, and (ii)
take all necessary actions and execute such agreements,
instruments and documents, including, without limitation, stock
powers executed in blank, and deliver such opinions of counsel
with respect thereto, as the Administrative Agent may reasonably
require to cause, subject to Section 7.18, (x) 100%, with respect
to Domestic Subsidiaries, (y) at least 65% with respect to
Foreign Subsidiaries that are "first tier" Foreign Subsidiaries
of US Borrower or any Domestic Subsidiary, or (z) such amount as
may be pledged under applicable law without causing adverse tax
consequences, with respect to CH Foreign Subsidiaries, of the
capital stock of such Subsidiary owned or controlled by the
Borrowers or any Subsidiary to be pledged to the Administrative
Agent to secure such Guarantees hereunder such that the
Administrative Agent has a valid and perfected first-priority
security interest in such pledged capital stock or the equivalent
under applicable law.
7.21. Assumption by Mettler-Toledo, Inc. Holding
shall cause MT Acquisition Corp. and Mettler-Toledo, Inc. to
enter into the Assumption Agreement by the Original Closing Date.
7.22. Post-Closing Obligations. (a) US Borrower
shall, and shall cause each of the Subsidiaries set forth on
Schedule 7.22, to, as expeditiously as possible after the
Original Closing Date:
(i) execute and deliver each of the Loan Documents as
set forth on Schedule 7.22 identified thereon to be executed
and delivered by such Subsidiary, subject to limitations
under applicable law and any required third-party consents
(which consents US Borrower shall use its best efforts to
procure but such efforts need not include the payment of
money);
(ii) use commercially reasonably efforts to obtain and
deliver to the Administrative Agent a Mortgage encumbering
the Real Property located in Ithaca, New York in favor of
the Administrative Agent, for the benefit of the Lenders,
duly executed and acknowledged by the Loan Party that is the
owner of or holder of an interest in such real property and
otherwise in compliance with and in accordance with the
provisions of subsection 5.1(j), except that any opinion of
counsel in connection therewith need only be customary for
Mortgages of a similar nature;
(iii) request, and if obtained deliver to the
Administrative Agent zoning letters with respect to each
Mortgaged Property, for which a zoning endorsement from the
title insurance company has not been obtained, confirming
that each such Mortgaged Property is in compliance with
applicable zoning regulations; and
(iv) obtain and deliver to the Administrative Agent, to
the extent not previously delivered prior to the Original
Closing Date, UCC, judgment and the tax lien search reports
each of a recent date listing all effective financing
statements or comparable documents that name Mettler-
Toledo, Inc., as debtor in each of the jurisdictions set
forth below:
(1) Maricopa County, Arizona;
(2) New Haven County, Connecticut;
(3) Howard County, Maryland;
(4) Oakland County, Michigan;
(5) Independent City of Richmond, Virginia;
(6) Independent City of Winchester, Virginia; and
(7) Hancock County, West Virginia.
(b) The certificate of merger with respect to the
merger of MT Acquisition Corp. and Mettler-Toledo, Inc. shall be
filed with the Secretary of State of the State of Delaware on or
promptly after the Closing Date.
(c) Within a reasonable period of time after the
Original Closing Date, the Borrowers shall or shall cause to be
delivered evidence of the completion of all recordings and
filings of, or with respect to, the Security Documents and
delivery of such other security and other documents as may be
necessary or, in the opinion of the Arranger, desirable to
perfect the Liens created, or purported or intended to be
created, by the Security Documents.
7.23. Post-Amendment and Restatement and Post-
Safeline Closing Obligations. As soon as practicable (but with
respect to clause (b), no later than 180 days after the Safeline
Closing Date) following (a) the Amendment and Restatement Date,
the Borrowers will cause each Subsidiary listed in Schedule
5.3(a) to duly authorize, execute and deliver to the
Administrative Agent the Ratification Agreement, and provide to
the Administrative Agent the documents specified in subsection
5.3(c) as if such execution and delivery were on the Amendment
and Restatement Date, and (b) the Safeline Closing Date, US
Borrower shall cause (i) UK Borrower Guarantor to become a direct
Wholly-Owned Subsidiary of UK Borrower, (ii) UK Borrower
Guarantor to duly authorize, execute and deliver to the
Administrative Agent, in form and substance satisfactory to the
Administrative Agent, a Domestic Subsidiary Guarantee (but only
guaranteeing the Obligations of UK Borrower), a Domestic
Subsidiary Securities Pledge Agreement (but only for the benefit
of the UK Lenders) and a Security Agreement (but only for the
benefit of the UK Lenders), (iii) UK Borrower to duly authorize,
execute and deliver to the Administrative Agent, in form and
substance satisfactory to the Administrative Agent, a Securities
Pledge Agreement pledging not less than 100% of the capital stock
of UK Borrower Guarantor to the Administrative Agent on behalf of
the UK Lenders and the Agents, and (iv) UK Borrower and UK
Borrower Guarantor to deliver to the Administrative Agent copies
of all corporate resolutions authorizing the foregoing actions
and all other documents and instruments specified in subsection
5.1A(i) as if UK Borrower and UK Borrower Guarantor took each of
the foregoing actions on the Safeline Closing Date.
ARTICLE VIII.
NEGATIVE COVENANTS
-------------------
So long as any Lender shall have any Commitment
hereunder, or any Loan or other Obligation shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding:
8.1. Limitation on Liens. The Borrowers shall not, and
will not cause or permit any Subsidiary to, create, incur, assume
or suffer to exist any Lien upon or with respect to any property
or assets of either Borrower or any Subsidiary, whether now owned
or hereafter acquired, or sell any such property or assets
subject to an understanding or agreement, contingent or
otherwise, to repurchase such property or assets or assign any
right to receive income, or file or permit the filing of any
financing statement under the UCC or any other similar effective
notice of Lien under any similar recording or notice statute,
except Prior Liens and other Liens expressly permitted by the
Security Documents, and except the following, which are herein
collectively referred to as "Permitted Liens" (each of which
shall be given independent effect):
(a) any Lien existing on property of either Borrower
or any Subsidiary (including any member of the Mettler-
Toledo Group) on the Original Closing Date and set forth in
Schedule 8.1(a) covering only the property or assets set
forth in such Schedule 8.1(a) and securing Indebtedness
outstanding on such date (other than any Debt to Be Repaid);
(b) any Lien created under any Loan Document;
(c) to the extent complying with the provisions of the
Security Documents, Liens for taxes, fees, assessments or
other governmental charges which are not yet delinquent, or
to the extent that non-payment thereof is permitted by
Section 7.6;
(d) to the extent complying with the provisions of the
Security Documents, Liens in respect of property or assets
of US Borrower or any Subsidiary imposed by law which were
incurred in the ordinary course of business and have not
arisen to secure Indebtedness, such as landlords',
carriers', warehousemen's, mechanics', materialmen's,
workmen's and repairmen's Liens, equipment leases and other
similar Liens arising in the ordinary course of business,
and (x) which do not in the aggregate materially detract
from the value of such property or assets or materially
impair the use thereof in the operation of the business of
US Borrower and the Subsidiaries or (y) which are being
contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or
sale of the property or asset subject to such Lien;
(e) Liens (other than any Lien imposed by ERISA)
consisting of pledges or deposits required in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other social security or similar
legislation;
(f) Liens on the property of US Borrower or any
Subsidiary (other than Collateral) securing (i) the non-
delinquent performance of bids, trade contracts (other than
for borrowed money), leases or statutory obligations, (ii)
contingent obligations on surety or appeal bonds, and
(iii) other non-delinquent obligations of a like nature, in
each case, incurred in the ordinary course of business;
provided, however, that all such Liens individually or in
the aggregate would not (even if enforced) cause a Material
Adverse Effect;
(g) Liens consisting of judgment or judicial
attachment liens (including prejudgment attachment),
provided that the enforcement of such Liens is effectively
stayed or payment of which is covered in full (subject to a
customary deductible) by insurance or which do not otherwise
result in an Event of Default under subsection 9.1(i);
(h) easements, rights-of-way, servitudes, covenants,
restrictive covenants, encumbrances, minor defects or
irregularities in title and other similar restrictions
which, individually or in the aggregate, do not materially
interfere with the ordinary conduct of the businesses of US
Borrower and the Subsidiaries and which do not materially
impair for its intended purpose the Mortgaged Real Property
to which they relate;
(i) security interests (whether purchase money or
otherwise) on any property acquired, constructed or improved
after the Original Closing Date by US Borrower or any
Subsidiary securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of
acquiring, constructing or improving such property;
provided, however, that (i) any such Lien attaches to such
property concurrently with or within 180 days after the
acquisition thereof or the completion of construction or
improvement, (ii) such Lien attaches solely to the property
so acquired, constructed or improved in such transaction,
(iii) the principal amount of the Indebtedness secured
thereby does not exceed 100% of the fair market value of
such property at the time of incurrence of such
Indebtedness, plus the cost of construction or improvement,
and (iv) the principal amount of the Indebtedness secured by
any and all such security interests, plus the aggregate
amount of all Indebtedness arising under Capital Leases
permitted solely by subsection (j) below of this Section
8.1, shall not at any time exceed a Dollar Equivalent amount
of U.S. $10.0 million;
(j) Liens securing obligations in respect of Capital
Leases on assets subject to such leases; provided, however,
that the aggregate amount of all Indebtedness arising under
Capital Leases permitted solely by this subsection (j)
(other than in respect of Capital Leases for automobiles
leased in the ordinary course of business that are not
required to be capitalized under International Accounting
Standards), plus the aggregate amount of all Indebtedness
secured by security interests permitted solely by
subsection (i) above of this Section 8.1, shall not at any
time exceed a Dollar Equivalent amount of U.S. $10.0
million;
(k) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of
set-off or similar rights and remedies as to deposit
accounts or other funds maintained with a creditor
depository institution; provided, however, that (i) such
deposit account is not a dedicated cash collateral account
and is not subject to restrictions against access by US
Borrower or any Subsidiary in excess of those set forth by
regulations promulgated by the FRB, and (ii) such deposit
account is not intended by US Borrower or any Subsidiary to
provide collateral to the depository institution;
(l) Liens existing on any asset (other than of
Safeline Limited and its Subsidiaries as of the Safeline
Closing Date) prior to the date of acquisition thereof by US
Borrower or any Subsidiary which (i) were not created in
contemplation of or in connection with such acquisition and
(ii) do not extend to or cover any other property or assets
of US Borrower or any Subsidiary;
(m) Liens existing on any asset of any Person (other
than Safeline Limited and its Subsidiaries as of the
Safeline Closing Date) at the time such Person becomes a
Subsidiary or is merged, amalgamated or consolidated with or
into a Subsidiary which (i) were not created in
contemplation of or in connection with such event and
(ii) do not extend to or cover any other property or assets
of US Borrower or any Subsidiary;
(n) Liens (excluding Liens on Collateral) not
otherwise permitted hereunder securing obligations not at
any time exceeding in the aggregate a Dollar Equivalent
amount of U.S. $5.0 million;
(o) subject to the provisions of Section 8.20, Leases
with respect to the assets or properties of US Borrower or
any Subsidiary, subordinate in all respects to the Liens
granted and evidenced by the Security Documents;
(p) Liens evidenced by UCC financing statements
regarding operating and equipment leases permitted by this
Agreement or in respect of consigned goods;
(q) any encumbrance or restriction (including, without
limitation, any put and call agreements) with respect to the
capital stock of any Joint Venture or Subsidiary pursuant to
the agreement governing such Joint Venture or Subsidiary;
provided, however, that no such encumbrance or restriction
affects in any way the ability of US Borrower or any
Subsidiary to comply with Section 8.22;
(r) any Lien arising out of the refinancing,
extension, renewal or refunding of any Indebtedness secured
by any Lien permitted by any of subsection 8.1(a), (i), (j),
(l), (m), (n) or (v); provided, however, that such
Indebtedness is not increased, except as permitted under
subsection 8.5(o) and is not secured by any additional
assets as to which a Lien is not otherwise permitted
hereunder;
(s) Liens solely in favor of either Borrower or, if
granted by any Qualified Subsidiary Guarantor, any
Subsidiary which is a Qualified Subsidiary Guarantor or, if
granted by any other Subsidiary, any Subsidiary;
(t) Liens securing obligations under Swap Contracts
with Lenders;
(u) Liens securing Guaranty Obligations of US Borrower
or any Subsidiary in respect of Indebtedness incurred
pursuant to subsection 8.5(g); provided, however, that the
creditor in respect of such Indebtedness (or an agent on
behalf of the creditors) shall have executed and delivered
an Intercreditor Agreement which is in full force and
effect;
(v) Liens on cash in a deposit account securing
Indebtedness incurred under subsection 8.5(n) to the extent
that such deposit account is established in connection
therewith, not to exceed an amount of cash equal to such
Indebtedness; and
(w) Liens set forth on Schedule 8.1(w) and existing on
the assets of Safeline Limited and its Subsidiaries as in
effect on the Safeline Closing Date.
8.2 Consolidations, Mergers and Disposition of Assets.
The Borrowers shall not, and shall not cause or permit any
Subsidiary to, directly or indirectly, consummate any Asset Sale
or wind up, liquidate or dissolve its affairs or merge,
amalgamate, consolidate with or into, or convey, transfer, lease
or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of their
respective properties or assets (whether now owned or hereafter
acquired) to or in favor of any Person, except (each of which
shall be given independent effect):
(a) dispositions of inventory and of used, worn-out or
surplus equipment, all in the ordinary course of business;
provided, however, that the proceeds thereof are reinvested
in the business of US Borrower or the Subsidiaries;
(b) the sale of equipment to the extent that such
equipment is exchanged for credit against the purchase price
of similar replacement equipment, or the proceeds of such
sale are reasonably promptly applied to the purchase price
of similar replacement equipment;
(c) the Liens permitted by Section 8.1, the
Investments permitted pursuant to Section 8.4 and the
Restricted Payments permitted by Section 8.13;
(d) US Borrower or any Subsidiary may sell assets;
provided, however, that (x) the aggregate sale proceeds from
all such Assets Sales shall not exceed the Dollar Equivalent
amount of U.S. $2.0 million in any fiscal year of US
Borrower and (y) the Net Cash Proceeds therefrom are either
applied to prepay Term Loans as provided in subsection
2.7(c) or reinvested as provided in subsection 2.7(c);
(e) US Borrower or any Subsidiary may sell or
discount, in each case without recourse, accounts
receivables arising in the ordinary course of business, but
only in connection with the compromise or collection thereof
or as permitted by Section 8.21; provided, however, that any
Foreign Subsidiary may effect such sale or discount with
recourse if such is consistent with ordinary business terms
in such Subsidiary's country of business;
(f) US Borrower or any Subsidiary may, in the ordinary
course of business, license patents, trademarks, copyrights
and know-how to third Persons, so long as each such license
is permitted to be assigned pursuant to the Security
Agreement and does not otherwise prohibit the granting of a
Lien therein by US Borrower or any Subsidiary pursuant to
the Security Agreement;
(g) any Subsidiary may be merged or consolidated with
or into either Borrower or any Wholly-Owned Subsidiary of US
Borrower which is a Qualified Subsidiary Guarantor and may
transfer assets to either Borrower or any Wholly-Owned
Subsidiary of US Borrower which is a Qualified Subsidiary
Guarantor; provided, however, that (w) in any merger or
consolidation involving either Borrower, such Borrower (or
CH Borrower if between the Borrowers) shall be the surviving
corporation (provided that upon CH Borrower being the
survivor of any merger or consolidation between the
Borrowers, CH Borrower shall assume all Obligations of US
Borrower pursuant to documentation in form and substance
satisfactory to the Administrative Agent), (x) in any merger
or consolidation involving UK Borrower, the survivor (if not
UK Borrower) shall assume all Obligations of UK Borrower
pursuant to documentation in form and substance satisfactory
to the Administrative Agent, and (y) if the surviving
corporation of such merger or consolidation or the
transferee of such assets is a Subsidiary, (i) all of the
capital stock of such Subsidiary is pledged pursuant to a
Securities Pledge Agreement, (ii) such surviving Subsidiary
is a Qualified Subsidiary Guarantor, and (iii) the assets of
such surviving Subsidiary are pledged pursuant to an
appropriate Security Document, except in each case to the
extent prohibited by law or such as would cause adverse tax
consequences; and (z) UK Borrower Guarantor may not merge or
consolidate with or into any Person unless the surviving
entity would be a Guarantor of all Obligations of UK
Borrower;
(h) the consummation of the M-T Acquisition in
accordance with the M-T Acquisition Documents and the
Safeline Acquisition in accordance with the Safeline
Acquisition Documents;
(i) US Borrower or any Subsidiary may sell assets set
forth on Schedule 8.2(i); provided, however, that the Net
Cash Proceeds therefrom are either applied to prepay Term
Loans as provided in subsection 2.7(c) or reinvested as
provided in subsection 2.7(c);
(j) US Borrower or any Subsidiary may sell surplus
real property and improvements thereon not utilized in the
business of US Borrower or any Subsidiary; provided,
however, that the Net Cash Proceeds therefrom are applied to
prepay Term Loans as provided in subsection 2.7(c);
(k) US Borrower or any Subsidiary may sell a line of
business if the portion of the consolidated EBITDA of US
Borrower and the Subsidiaries for the latest twelve months
immediately prior to such sale attributable to such
business, plus the trailing twelve month EBITDA of all other
businesses sold pursuant to this subsection 8.2(k) (measured
at the time of sale) does not exceed 5.0% of the
consolidated EBITDA of US Borrower and the Subsidiaries for
the latest twelve months (before giving effect to the
current contemplated sale);
(l) any Acquisition permitted by Section 8.4;
(m) any Foreign Subsidiary which is not a Qualified
Subsidiary Guarantor may merge or consolidate with or into
or sell, assign or transfer its assets to any other Foreign
Subsidiary which is not a Qualified Subsidiary Guarantor,
except that no Subsidiary which is a CH Foreign Subsidiary
may enter into any such transaction with a Subsidiary that
is not a CH Foreign Subsidiary unless the CH Foreign
Subsidiary is the surviving or transferee corporation; and
(n) the abandonment or other disposition of patents,
trademarks or other intellectual property that is, in the
reasonable judgment of US Borrower, no longer economically
practicable to maintain or useful in the conduct of the
business of US Borrower and the Subsidiaries, taken as a
whole.
To the extent the Required Lenders waive the provisions of this
Section 8.2 with respect to the sale or other disposition of any
Collateral, or any Collateral is sold or otherwise disposed of as
permitted by this Section 8.2 (and such Collateral is released
(or permitted to be released) from the Liens created by the
respective Security Document), such Collateral in each case shall
be sold or otherwise disposed of free and clear of the Liens
created by the Security Documents and the Administrative Agent
shall take such actions as are appropriate in connection
therewith.
8.3. Leases. The Borrowers shall not permit, and shall
not cause or permit any Subsidiary to permit, the aggregate lease
payments calculated in accordance with GAAP (including, without
limitation, any property taxes paid as additional rent or lease
payments) by US Borrower and the Subsidiaries on a consolidated
basis under any agreement to rent or lease any real or personal
property (or any extension or renewal thereof) (excluding Capital
Leases) to exceed in any fiscal year (commencing with fiscal
1996) the Dollar Equivalent amount of U.S. $21.0 million,
increased each fiscal year after fiscal 1998 by the Dollar
Equivalent amount of U.S. $2.0 million.
8.4. Loans and Investments. The Borrowers shall not,
and shall not cause or permit any Subsidiary to, directly or
indirectly, purchase or acquire, or make any commitment to
purchase or acquire, any capital stock, equity interest, or
obligations or other securities of, or any interest in, any
Person, or make or commit to make any Acquisition, or make or
commit to make any advance, loan, extension of credit or capital
contribution to, or guarantee of any obligation of, or any other
investment in, or incur Guaranty Obligations on behalf of, any
Person (including any Affiliate of US Borrower) (any of the
foregoing, an "Investment"), except for (each of which shall be
given independent effect):
(a) Investments by US Borrower and the Subsidiaries in
Cash and Cash Equivalents;
(b) extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or
lease of goods or services in the ordinary course of
business;
(c) Investments (including extensions of credit (such
extensions of credit, "Intercompany Indebtedness") and
Guaranty Obligations) by US Borrower or any Subsidiary in or
to US Borrower, CH Borrower or any Wholly-Owned Subsidiary
of US Borrower which is a Qualified Subsidiary Guarantor (or
in any Person that thereby becomes a Wholly-Owned Subsidiary
of US Borrower which is a Qualified Subsidiary Guarantor or
is merged or consolidated into US Borrower, CH Borrower or
any Wholly-Owned Subsidiary of US Borrower which is a
Qualified Subsidiary Guarantor); provided, however, that (x)
with respect to any Guaranty Obligation issued by any
Subsidiary of either Borrower's obligations, such Subsidiary
has entered into a Subsidiary Guarantee at least as
favorable as such Guaranty Obligation, (y) upon request of
the Required Lenders, all such Intercompany Indebtedness
shall be evidenced by subordinated promissory notes in form,
and shall be pledged to the Administrative Agent pursuant to
documentation, reasonably satisfactory to the Required
Lenders, and (z) such Subsidiary shall have entered into the
appropriate Security Documents pursuant to Section 7.14 and
taken all necessary action pursuant to Section 7.15;
(d) Investments consisting of non-cash consideration
received in the form of securities, notes or similar
obligations in connection with disposition of assets
permitted by subsection 8.2(d), (i), (j) or (k); provided,
however, that (i) the aggregate amount of such non-cash
consideration received in connection with any such
disposition shall not exceed 25% with respect to subsections
8.2(d), (i) and (j) and 15% with respect to subsection
8.2(k) of the total consideration received in connection
with such disposition and (ii) such non-cash consideration
is pledged pursuant to the appropriate Security Document;
(e) Investments in Joint Ventures or non-Wholly-Owned
Subsidiaries (other than any Investment made to consummate
any Acquisition); provided, however, that the aggregate
amount of any such Investment, plus the aggregate value of
all such Investments (excluding Investments which constitute
part of the M-T Acquisition and the Safeline Acquisition)
made by US Borrower or any Subsidiary after the Original
Closing Date and (without duplication) the aggregate amount
of all Guaranty Obligations permitted solely by
subsection 8.8(f) paid after the Original Closing Date or
outstanding as of the date of such Investment, shall not
exceed a Dollar Equivalent amount of U.S. $25.0 million
(exclusive of any Investment pursuant to subsection 8.4(f));
provided, however, that any such Investment shall comply
with Section 8.6;
(f) Investments made in order to consummate
Acquisitions (other than the M-T Acquisition and the
Safeline Acquisition); provided, however, that (i) no Event
of Default or Unmatured Event of Default exists or will
result therefrom (including any such event under
Section 8.15), (ii) on a pro forma basis, after giving
effect to such Acquisition(s), US Borrower would have been
in compliance with Sections 8.10, 8.11 and 8.12 on the last
day of the most recently completed fiscal quarter (assuming,
for purposes of Sections 8.10 and, if applicable, 8.12, that
such Acquisition had occurred on the first day of the
Computation Period ending on such last day) which compliance
shall, for any Acquisition involving consideration of the
Dollar Equivalent amount of U.S. $10.0 million, be
demonstrated in an Officers' Certificate delivered to the
Administrative Agent and each Lender and (iii) the aggregate
Dollar Equivalent amount of the consideration (which for
each Acquisition shall be measured at the date of
consummation thereof and which shall include debt assumed,
earn outs, working capital deficits and deferred payments)
paid for all Acquisitions (other than the M-T Acquisition
and the Safeline Acquisition) consummated since the Original
Closing Date shall not exceed the Dollar Equivalent amount
of U.S. $30.0 million;
(g) pledges or deposits required in the ordinary
course of business in connection with workmen's
compensation, unemployment insurance and other social
security or similar legislation;
(h) pledges or deposits in connection with (i) the non-
delinquent performance of bids, trade contracts (other than
for borrowed money), leases or statutory obligations,
(ii) contingent obligations on surety or appeal bonds
(including those permitted by subsection 8.8(d)), and
(iii) other non-delinquent obligations of a like nature, in
each case incurred in the ordinary course of business;
(i) advances, loans or extensions of credit to
suppliers in the ordinary course of business by US Borrower
or any Subsidiary consistent with past practice as of the
Original Closing Date;
(j) advances, loans or extensions of credit by US
Borrower or any Subsidiary to employees of US Borrower or
any Subsidiary; provided, however, that the aggregate amount
of all such loans, advances and extensions of credit, other
than those entered into in connection with the consummation
of the M-T Acquisition and the Safeline Acquisition and set
forth on Schedule 8.4(j) and other than advances for travel
and entertainment expenses in the ordinary course of
business, shall not at any time exceed in the aggregate a
Dollar Equivalent amount of U.S. $5.0 million;
(k) other advances, loans or extensions of credit
(excluding advances, loans or extensions of credit of the
types described in subsection 8.4(j)) in the ordinary course
of business by US Borrower or any Subsidiary not at any time
exceeding in the aggregate a Dollar Equivalent amount of
U.S. $2.50 million;
(l) Investments to consummate the M-T Acquisition on
the terms set forth in the M-T Acquisition Documents and
Investments to consummate the Safeline Acquisition on the
terms set forth in the Safeline Acquisition Documents,
including Investments in UK Borrower or Canadian Borrower
necessary to repay the Safeline Seller Notes or pay the
Safeline Contingent Obligation;
(m) Investments (including debt obligations) received
in connection with the bankruptcy or reorganization of
suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
provided, however, that any securities or other property so
received is pledged pursuant to the appropriate Security
Document;
(n) Swap Contracts entered into in compliance with
subsection 8.8(b);
(o) Investments in existence on the Original Closing
Date and listed in Schedule 8.4(o), without giving effect to
any additions thereto and Investments to be made pursuant to
binding agreements in existence on the Original Closing Date
set forth on Schedule 8.4(o) to the extent made in
accordance with the terms of such agreements as in effect on
the Original Closing Date;
(p) Investments (including Intercompany Indebtedness
and Guaranty Obligations) by US Borrower or any Subsidiary
in any Subsidiary which is not a Qualified Subsidiary
Guarantor or which is not a Wholly-Owned Subsidiary of US
Borrower and not otherwise permitted by subsections (e),
(q), (v) and (w) of this Section 8.4, not to exceed an
aggregate amount outstanding at any time (net of returns,
dividends in cash, net cash proceeds on sale or other cash
realizations thereof) of the Dollar Equivalent amount of
U.S. $10.0 million; provided, however, that upon request of
the Required Lenders, all such Intercompany Indebtedness
shall be evidenced by subordinated promissory notes in form,
and shall be pledged to the Administrative Agent pursuant to
documentation, reasonably satisfactory to the Required
Lenders;
(q) US Borrower and the Subsidiaries may hold
additional Investments in any Subsidiary which is not a
Qualified Subsidiary Guarantor or a Wholly-Owned Subsidiary
to the extent that such Investments reflect an increase in
the value of such Subsidiary resulting from retained
earnings of such Subsidiary;
(r) any Subsidiary which is not a Qualified Subsidiary
Guarantor may make Investments in or to any other Subsidiary
which is not a Qualified Subsidiary Guarantor (other than by
a CH Foreign Subsidiary to a non-CH Foreign Subsidiary);
(s) Investment made in connection with the Ciba Loan;
provided, however, that (x) the Administrative Agent shall
have received evidence reasonably satisfactory to it from
Swiss tax authorities that the Swiss tax authorities will
refund the Swiss withholding tax payments for which
substantially all of such loan is the interim source pending
such repayment and (y) the Ciba Loan Documents are pledged
pursuant to the Security Documents;
(t) without duplication, Capital Expenditures
permitted by Section 8.19 and the Contingent Obligations
permitted by subsections 8.8(d), (g) and (i);
(u) US Borrower or any Subsidiary may make Investments
(including Intercompany Indebtedness and Guaranty
Obligations) in any Subsidiary Guarantor which is not a
Qualified Subsidiary Guarantor in an amount not to exceed
the Dollar Equivalent amount of the Obligations guaranteed
by such Subsidiary Guarantor; provided, however, that upon
request of the Required Lenders, all such Intercompany
Indebtedness shall be evidenced by subordinated promissory
notes in form, and shall be pledged to the Administrative
Agent pursuant to documentation, reasonably satisfactory to
the Required Lenders;
(v) Investments by US Borrower or any Subsidiary in
any Wholly-Owned Subsidiary which is not a Qualified
Subsidiary Guarantor to the extent that contemporaneously
with such Investment such entity in which the Investment is
being made issues an unsubordinated note to US Borrower or a
Qualified Subsidiary Guarantor in a Dollar Equivalent amount
equal to the Dollar Equivalent amount of the value of such
Investment at such time; provided, however, that (i) such
note is fully secured by all assets of the entity in which
the Investment is being made to the extent permitted by
applicable law; (ii) such note is pledged to the
Administrative Agent on behalf of the Lenders pursuant to
the Security Documents; and (iii) such security interests
securing such note, if any, are collaterally assigned to the
Administrative Agent on behalf of the Lenders;
(w) Investments (including Intercompany Indebtedness
and Guaranty Obligations) by either Borrower or any
Subsidiary in any Wholly-Owned Subsidiary to the extent made
in the ordinary course to fund or support the ordinary
course operations of such Wholly-Owned Subsidiary; provided,
however, that upon the request of the Required Lenders all
such Intercompany Indebtedness shall be evidenced by
promissory notes in form, and shall be pledged to the
Administrative Agent pursuant to documentation, reasonably
satisfactory to the Required Lenders;
(x) Investments by UK Borrower in any Subsidiary of UK
Borrower which is a Wholly-Owned Subsidiary of US Borrower
or Safeline S.A., or by any Subsidiary of UK Borrower in UK
Borrower or any other Subsidiary of UK Borrower; and
(y) Investments in UK Borrower (i) to prepay or to
repay Loans owing by UK Borrower or Safeline Limited or
other payment obligations under this Agreement or (ii) in an
amount at any time outstanding not to exceed the Dollar
Equivalent amount of U.S. $5 million.
8.5. Limitation on Indebtedness. The Borrowers shall
not, and shall not cause or permit any Subsidiary to, directly or
indirectly, create, incur, assume, suffer to exist, or otherwise
become or remain directly or indirectly liable with respect to,
any Indebtedness, except (each of which shall be given
independent effect):
(a) the Obligations;
(b) Indebtedness consisting of Contingent Obligations
permitted pursuant to Section 8.8;
(c) Indebtedness existing on the Original Closing Date
or the Safeline Closing Date which is Debt to Be Repaid
(which Indebtedness may not be outstanding beyond the
Original Closing Date or the Safeline Closing Date, as the
case may be) or is set forth in Schedule 6.17 or Schedule
6.17A;
(d) Indebtedness incurred in connection with Capital
Leases to the extent permitted by subsection 8.1(j) and
Indebtedness incurred in connection with the acquisition,
construction or improvement of property to the extent
permitted by subsection 8.1(i);
(e) Indebtedness of any Subsidiary to US Borrower or
CH Borrower and, to the extent the credit extension creating
such Indebtedness is permitted by subsection 8.4(c), (e),
(l), (p), (r), (u), (v) or (w) or (x), of any Subsidiary to
any other Subsidiary;
(f) Indebtedness of US Borrower under the Senior
Subordinated Notes in an aggregate principal amount not to
exceed U.S. $135.0 million, less any prepayments or
repayments thereof, and any guarantee of the Senior
Subordinated Notes by any Domestic Subsidiary in accordance
with the terms of the Senior Subordinated Note Documents as
in effect on the Original Closing Date;
(g) Indebtedness of Foreign Subsidiaries in an
aggregate principal amount not to exceed in the aggregate at
any time outstanding for all Foreign Subsidiaries (exclusive
of any amount incurred pursuant to subsection 8.5(n) below)
the Dollar Equivalent amount of U.S. $30.0 million (which
amount shall be increased to (x) U.S. $40.0 million after
the consummation of a Qualified Public Offering and (y)
U.S. $50.0 million after the consummation of a Qualified
Public Offering so long as the Debt to EBITDA Ratio as of
the end of the most recently completed fiscal quarter is
less than 3.5 to 1.0); provided, however, that not more than
the Dollar Equivalent amount of U.S. $15.0 million (which
amount shall be increased to (x) U.S. $20.0 million after
the consummation of a Qualified Public Offering and (y) U.S.
$30.0 million after the consummation of a Qualified Public
Offering so long as the Debt to EBITDA Ratio as of the end
of the most recently completed fiscal quarter is less than
3.5 to 1.0) in the aggregate may be incurred and outstanding
at any time pursuant to any agreement that is for permanent
funded debt or pursuant to agreements which individually do
not provide for annual clean down provisions (i.e., reducing
outstanding Indebtedness to zero) for not less than 30 days
per year;
(h) unsecured Indebtedness not to exceed in the
aggregate at any time outstanding the Dollar Equivalent
amount of U.S. $10.0 million;
(i) Indebtedness arising from honoring a check, draft
or similar instrument against insufficient funds; provided,
however, that such Indebtedness is extinguished within five
Business Days of its incurrence;
(j) obligations under operating leases permitted by
Section 8.3 or Section 8.20;
(k) the Safeline Seller Notes as in effect on the
Safeline Closing Date;
(l) Indebtedness of a Person (other than Indebtedness
of Safeline Limited and its Subsidiaries as of the Safeline
Closing Date) existing at the time such Person became a
Subsidiary or assets were acquired from such Person, to the
extent such Indebtedness was not incurred in connection
with, or in contemplation of, such Person becoming a
Subsidiary or the acquisition of such assets, not to exceed
in the aggregate at any time outstanding the Dollar
Equivalent amount of U.S. $10.0 million;
(m) unsecured Indebtedness incurred by US Borrower to
former employees in connection with the purchase or
redemption of stock of US Borrower, Holding or M-T Investors
not to exceed in aggregate amount outstanding the Dollar
Equivalent amount of U.S. $2.50 million;
(n) Indebtedness of the Chinese Subsidiaries pursuant
to local working capital facilities and other Indebtedness
not to exceed in the aggregate at any time outstanding for
all Chinese Subsidiaries the Dollar Equivalent amount of
U.S. $15.0 million; and
(o) any renewals, extensions, substitutions,
refinancings or replacements (each, for purposes of this
subsection (o), a "refinancing") of any Indebtedness
permitted by this Section 8.5, including any successive
refinancings, so long as any such refinancing Indebtedness
shall (w) not be on financial and other terms, in the
reasonable judgment of the Borrowers, that are more onerous
than the Indebtedness being refinanced, (x) not have a
stated maturity or Average Life that is shorter than the
Indebtedness being refinanced, (y) be at least as
subordinate to the Obligations as the Indebtedness being
refinanced (and unsecured if the refinanced Indebtedness is
unsecured) and (z) be in principal amount that does not
exceed the principal amount so refinanced, plus the lesser
of (I) the stated amount of any premium or other payment
required to be paid in connection with such refinancing
pursuant to the terms of the Indebtedness being refinanced
and (II) the amount of premium or other payment actually
paid at such time to refinance the Indebtedness, plus, in
either case, the amount of reasonable expenses of the
Borrowers or any Subsidiary incurred in connection with such
refinancing.
If such Indebtedness is incurred to refinance
Indebtedness denominated in a currency other than U.S. Dollars
and such refinancing would cause a Dollar Equivalent restriction
to be exceeded if calculated at the relevant currency exchange
rate in effect on the date of such refinancing, such Dollar
Equivalent restriction shall not be deemed to have been exceeded
so long as the principal amount of such refinancing Indebtedness
does not exceed the principal amount of such Indebtedness being
refinanced, but the ability to make subsequent incurrences of
Indebtedness subject to the applicable Dollar Equivalent
restriction shall be determined as if the relevant currency
exchange rate applied to any such previous refinancing was the
rate in effect on the date of such refinancing.
8.6. Transactions with Affiliates. The Borrowers shall
not, and shall not cause or permit any Subsidiary to, directly or
indirectly, enter into any transaction with any Affiliate of US
Borrower (other than a Borrower or a Subsidiary if no portion of
such Subsidiary is owned (other than through US Borrower or the
Subsidiaries) by Persons who control (directly or indirectly)
Holding), except upon fair and reasonable terms no less favorable
to such Borrower or such Subsidiary than would obtain in a
comparable arm's-length transaction with a Person not an
Affiliate of US Borrower or such Subsidiary; provided, however,
that the following shall in any event be permitted: (a) the
payment on the Original Closing Date of one time fees to AEA in
an aggregate amount not to exceed U.S. $5.50 million (plus
reasonable out-of-pocket expenses incurred by AEA in providing
services to US Borrower, including monies advanced for the
purchase of currency options and contracts entered into in
connection with consummation of the M-T Acquisition); (b) the
payment, on a quarterly basis, of management fees to AEA pursuant
to the Management Services Agreement in an aggregate amount (for
all such Persons taken together) not to exceed U.S. $250,000 in
any fiscal quarter of US Borrower; provided, however, that no
Event of Default or Unmatured Event of Default pursuant to
Section 9.1(a) then exists or would result therefrom; (c) the
reimbursement of AEA for its reasonable out-of-pocket expenses
incurred by it in connection with performing management services
to US Borrower and the Subsidiaries pursuant to the Management
Services Agreement; (d) Restricted Payments permitted by Section
8.13; (e) US Borrower and the Domestic Subsidiaries may enter
into the Tax Sharing Agreement and may make payments thereunder;
(f) the payment of reasonable and customary regular fees to
directors of US Borrower or any Subsidiary who are not employees
of US Borrower or any Subsidiary; (g) any transaction with an
officer or member of the board of directors of US Borrower or any
Subsidiary in the ordinary course of business involving
compensation, indemnity or employee benefit arrangements; (h)
loans or advances to employees permitted by subsection 8.4(j);
(i) the M-T Acquisition and all transactions related thereto
(including but not limited to the financing thereof) to the
extent consummated in accordance with the M-T Acquisition
Documents and the Safeline Acquisitions and all transactions
related thereto (including but not limited to the financing
thereof) to the extent consummated in accordance with the
Safeline Acquisition Documents; (j) any transaction in the
ordinary course of business or approved by a majority of the
Disinterested Directors, between US Borrower or any Subsidiary
and any Affiliate of US Borrower controlled by US Borrower that
is a Joint Venture or similar entity primarily engaged in a
Related Business; provided, however, that no person or entity
which has an economic interest in M-T Investors or Holding has an
interest in such Joint Venture other than through US Borrower or
any Subsidiary; (k) US Borrower and the Subsidiaries may enter
into and perform its obligations under the Ciba Reimbursement
Agreement and the Ciba Loan Documents; and (j) the payment on the
Safeline Closing Date of one time fees to AEA in an aggregate
amount not to exceed U.S. $1.5 million (plus reasonable out-of-
pocket expenses incurred by AEA in connection with the Safeline
Acquisition).
8.7. Use of Proceeds. (a) No Credit Agreement Loan
Party shall, and the Borrowers shall not cause or permit any
Subsidiary to, directly or indirectly, use any portion of the
Loan proceeds or any Letter of Credit, directly or indirectly,
(i) to purchase or carry Margin Stock, (ii) to repay or otherwise
refinance Indebtedness of any Loan Party or others incurred to
purchase or carry Margin Stock or (iii) to extend credit for the
purpose of purchasing or carrying any Margin Stock.
(b) No Credit Agreement Loan Party shall, directly or
indirectly, use any portion of the Loan proceeds or any Letter of
Credit (i) knowingly to purchase Ineligible Securities from the
Arranger during any period in which the Arranger makes a market
in such Ineligible Securities, (ii) knowingly to purchase during
the underwriting or placement period Ineligible Securities being
underwritten or privately placed by the Arranger, or (iii) to
make payments of principal or interest on Ineligible Securities
underwritten or privately placed by the Arranger and issued by or
for the benefit of a Borrower or any Affiliate of a Borrower.
The Arranger is a registered broker-dealer and permitted to
underwrite and deal in certain Ineligible Securities; and
"Ineligible Securities" means securities which may not be
underwritten or dealt in by member banks of the U.S. Federal
Reserve System under Section 16 of the Banking Act of 1933 (12
U.S.C. 24, Seventh), as amended.
8.8. Contingent Obligations. The Borrowers shall not,
and shall not cause or permit any Subsidiary to, directly or
indirectly, create, incur, assume or suffer to exist any
Contingent Obligations, except:
(a) endorsements for collection or deposit in the
ordinary course of business;
(b) Swap Contracts entered into in the ordinary course
of business and designed to protect against fluctuations in
interest rates, currency exchange rates, commodity prices or
similar risks (including any Swap Contract entered into
pursuant to Section 7.16 or Section 7.17);
(c) Contingent Obligations of US Borrower and the
Subsidiaries existing as of the Original Closing Date and
listed in Schedule 8.8 and Contingent Obligations of
Safeline Limited and its Subsidiaries existing as of the
Safeline Closing Date and listed in Schedule 8.8A;
(d) Contingent Obligations arising under (i) Surety
Instruments arising in the ordinary course of business of US
Borrower or any Subsidiary or (ii) any guaranty of the
performance of contractual obligations (other than
obligations to pay money) of other Persons that are not
Subsidiaries so long as such guaranty arises in connection
with a project in which a Borrower or the applicable
Subsidiary is otherwise involved in the ordinary course of
business, not to exceed in the aggregate for all Contingent
Obligations pursuant to this subclause (d) the Dollar
Equivalent amount of U.S. $25.0 million;
(e) Guaranty Obligations permitted by subsections
8.4(c), (i), (j), (k), (p), (r), (u) and (w);
(f) Guaranty Obligations in respect of the
Indebtedness or other liabilities of Joint Ventures or
Persons in which a Borrower or any Subsidiary has a minority
interest or in non-Wholly-Owned Subsidiaries of US Borrower;
provided, however, that the aggregate amount of all such
Guaranty Obligations at any time outstanding, plus the
aggregate amount of all Guaranty Obligations permitted
solely by this subsection (f) which are paid after the date
hereof and (without duplication) the aggregate amount of all
Investments (excluding Investments which constitute part of
the M-T Acquisition or the Safeline Acquisition) made after
the Original Closing Date which are permitted solely by
subsection 8.4(e), shall not exceed in the aggregate a
Dollar Equivalent amount of U.S. $25.0 million;
(g) other Contingent Obligations not at any time
exceeding in the aggregate outstanding a Dollar Equivalent
amount of U.S. $5.0 million;
(h) the Guarantees and reimbursement obligations
arising under the Loan Documents in respect of drawings
under Letters of Credit;
(i) Guaranty Obligations by Domestic Subsidiaries of
US Borrower in respect of US Borrower's obligations under
the Senior Subordinated Notes pursuant to the Senior
Subordinated Note Documents as in effect on the Original
Closing Date;
(j) the Ciba Reimbursement Agreement;
(k) Guaranty Obligations of Foreign Subsidiaries under
letters of credit;
(l) Guaranty Obligations by US Borrower or any
Subsidiary of Indebtedness of Foreign Subsidiaries permitted
by subsection 8.5(g) or (n);
(m) Guaranty Obligations in connection with sales and
other dispositions of assets permitted under Section 8.2,
arising in connection with indemnification and other
agreements in respect of any contract relating to such sale,
not to exceed the consideration received by US Borrower or
any Subsidiary in connection with such sale and excluding in
all cases any Guaranty Obligation with respect to any
obligation of any third person incurred in connection with
the acquisition of such assets; and
(n) the Safeline Contingent Payment.
8.9. Restrictions on Subsidiaries. The Borrowers shall
not cause or permit any Subsidiary to, directly or indirectly,
enter into any agreement or instrument (other than (i) the Senior
Subordinated Note Documents as in effect on the Closing Date,
(ii) the Loan Documents and (iii) any agreement or instrument
relating to Indebtedness permitted by subsection 8.5(c), provided
that such restriction relates solely to such Foreign Subsidiary)
which by its terms restricts the ability of such Subsidiary
(a) to declare or pay dividends or make similar distributions,
(b) to repay principal of, or pay any interest on, any
indebtedness owed to a Borrower or any other Subsidiary, (c) to
make payments of royalties, licensing fees and similar amounts to
a Borrower or any other Subsidiary or (d) to make loans or
advances to, or guarantee any Indebtedness or other obligation
of, a Borrower or any other Subsidiary, except for such
encumbrances or restrictions existing under or by reason of (i)
customary provisions restricting subletting or assignment of any
lease governing a leasehold interest of US Borrower or a
Subsidiary, (ii) customary provisions restricting assignment of
any agreement or license entered into by US Borrower or any
Subsidiary in the ordinary course of business, (iii) customary
provisions restricting the transfer of assets subject to Liens
permitted under subsections 8.1(a), (i), (j), (l), (m), (n) and
(q) and (iv) applicable law (including minimum capital
requirements).
8.10. Fixed Charge Coverage Ratio. The Borrowers
shall not permit, as of the last day of any fiscal quarter
(beginning with the fiscal quarter ending December 31, 1996)
ending during any period set forth below, the ratio of (a) EBITDA
less Capital Expenditures for the Computation Period ending on
such day, to (b) (x) prior to the first such time as four fiscal
quarters of financial information of US Borrower after the
Original Closing Date shall have been provided pursuant to this
Agreement, Annualized Interest Expense at the end of such fiscal
quarter and (y) thereafter, Interest Expense of US Borrower and
the Subsidiaries for such Computation Period, to be less than the
ratio set forth opposite such period in the table below:
<TABLE>
<CAPTION>
Period Ratio
- --------------------------------------- ---------
<S> <C>
Original Closing Date through 9/30/1997 1.20:1.0
10/1/1997 through 9/30/1998 1.30:1.0
10/1/1998 through 9/30/1999 1.50:1.0
10/1/1999 through 9/30/2000 1.75:1.0
10/1/2000 through 9/30/2001 2.00:1.0
10/1/2001 through 9/30/2002 2.25:1.0
10/1/2002 through 9/30/2003 2.50:1.0
10/1/2003 and thereafter 3.00:1.0
</TABLE>
8.11. Minimum Net Worth. The Borrowers shall not
permit Consolidated Net Worth (to be calculated for the purposes
of this Section 8.11 without giving effect to cumulative
depreciation and amortization of intangibles and excluding net
gains (but not losses) resulting from asset sales) at the end of
any fiscal quarter (beginning with the fiscal quarter ended
December 31, 1996) occurring during any period set forth below to
be less than the amount set forth opposite such period:
<TABLE>
<CAPTION>
Consolidated
Period Net Worth
- --------------------- ------------
<S> <C>
Original Closing Date through 9/30/1998 U.S.$40.0 million
10/1/1998 through 9/30/1999 U.S.$50 million
10/1/1999 through 9/30/2000 U.S.$65 million
10/1/2000 through 9/30/2001 U.S.$80 million
10/1/2001 through 9/30/2002 U.S.$110 million
10/1/2002 through 9/30/2003 U.S.$135 million
10/1/2003 through 9/30/2004 U.S.$155 million
10/1/2004 and thereafter U.S.$175 million
</TABLE>
To the extent that the final adjustments to
stockholders' equity (which shall be finalized not later than
such time as necessary to be reflected in the March 31, 1997
financial statements delivered hereunder) relating to the write-
down of research and development expense and inventory (of the
nature reflected in the pro forma financial statements in the
prospectus filed with the SEC relating to the Senior Subordinated
Notes) is greater than or less than U.S.$141.5 million (adjusted
to give effect to the effect of applicable taxes to the extent
relating to inventory), the amount of such excess or deficit (as
the case may be) shall be added to or subtracted from (as the
case may be) each amount set forth in the table above for each
fiscal year.
8.12. Debt to EBITDA Ratio. The Borrowers shall
not permit, as of the last day of any fiscal quarter (beginning
with the fiscal quarter ending March 31, 1997) ending during any
period set forth below, the Debt to EBITDA Ratio to exceed the
ratio set forth opposite such period in the table below:
<TABLE>
<CAPTION>
Period Ratio
- --------------------------------------- ------------
<S> <C>
Original Closing Date through 9/30/1997 6.25:1.0
10/1/1997 through 3/31/1998 5.75:1.0
4/1/1998 through 12/30/1998 5.50:1.0
12/31/1998 through 3/31/1999 5.25:1.0
4/1/1999 through 9/30/1999 5.00:1.0
10/1/1999 through 9/30/2000 4.50:1.0
10/1/2000 through 9/30/2001 4.00:1.0
10/1/2001 through 9/30/2002 3.50:1.0
10/1/2002 and thereafter 3.00:1.0
</TABLE>
8.13. Restricted Payments. Neither Borrower shall
(i) declare or make any dividend payment or other distribution of
assets, properties, cash, rights, obligations or securities on
account of any shares of any class of the capital stock of US
Borrower or any Subsidiary (other than to US Borrower or any
Subsidiary) or (ii) purchase, redeem or otherwise acquire for
value, or permit any Subsidiary to purchase or otherwise acquire
for value, any shares of US Borrower's or any Subsidiary's
capital stock or any warrants, rights or options to acquire such
shares, now or hereafter outstanding owned by any Person other
than US Borrower or any Wholly-Owned Subsidiary of US Borrower
(any such prohibited transaction, a "Restricted Payment"), except
that (each of which shall be given independent effect):
(a) US Borrower or any Subsidiary may declare and make
dividend payments or other distributions payable solely in
its common stock;
(b) US Borrower or any Subsidiary may purchase,
redeem, defease or otherwise acquire or retire for value
shares of its common stock or warrants or options to acquire
any such shares with shares of its common stock;
(c) any Subsidiary may pay dividends and distributions
or purchase, redeem, defease or otherwise acquire or retire
for value shares of its common stock or warrants or options
to acquire any such shares so long as any such payments
pursuant thereto by any non-Wholly-Owned Subsidiary of US
Borrower are made on a pro rata basis to such Subsidiary's
shareholders generally or are paid solely to a Loan Party;
(d) US Borrower may pay cash loans, advances,
dividends or distributions to Holding to permit Holding or M-
T Investors to purchase capital stock (or options or other
rights in respect thereof) of Holding or M-T Investors held
by former employees of Holding or any of its Subsidiaries
following termination of their employment or pursuant to
repurchase provisions under employee stock option agreements
or employee stock purchase agreements; provided, however,
that (i) no Event of Default or Unmatured Event of Default
shall then exist or would arise therefrom and (ii) the
aggregate amount of such dividends shall not exceed
U.S. $2.0 million in any fiscal year and U.S. $5.0 million
in the aggregate since the Original Closing Date;
(e) US Borrower may pay cash dividends to Holding to
enable Holding or M-T Investors to pay operating expenses
(including fees and indemnification payments to directors
and officers) in the ordinary course of business; provided,
however, that (i) no Event of Default or Unmatured Event of
Default under subsection 9.1(a) shall then exist or would
arise therefrom and (ii) the aggregate amount of such
dividends shall not exceed U.S. $1.0 million in any fiscal
year;
(f) US Borrower may pay dividends to Holding in
connection with the payment of items specified in
clauses (b) and (c) of the proviso to Section 8.6; and
(g) US Borrower may make any payments to Holding or
any parent company of Holding to enable Holding or any
parent company of Holding, as applicable, to make payments,
to holders of the common stock of US Borrower, Holding or
any parent company of Holding, as applicable, in lieu of
issuance of fractional shares of such common stock, in
connection with any recapitalization of US Borrower, Holding
or any parent company of Holding, as applicable, such
payments not to exceed U.S. $100,000 in the aggregate.
8.14. ERISA. The Loan Parties shall not, and shall
not permit any of their ERISA Affiliates to, engage in a
transaction that could be subject to Section 4069 or 4212(c) of
ERISA.
8.15. Change in Business. (a) The Borrowers shall
not, and shall not cause or permit any Subsidiary to, directly or
indirectly, engage in any material line of business substantially
different from those lines of business carried on by US Borrower
and the Subsidiaries (including the Mettler-Toledo Group) on the
Original Closing Date, unless the Safeline Acquisition is
consummated, and, then, on the Safeline Closing Date.
(b) Holding will engage in no business other than its
ownership of the capital stock of US Borrower and having those
liabilities which it is responsible for under the Basic Documents
to which it is a party. Notwithstanding the foregoing, Holding
may engage in those activities that are incidental to (a) the
maintenance of its corporate existence in compliance with
applicable law, (b) legal, tax and accounting matters in
connection with any of the foregoing activities and (c) the
entering into, and performing its obligations under, the Basic
Documents to which it is a party.
8.16. Accounting Changes. The Borrowers shall not,
and shall not cause or permit any Subsidiary to, make any
significant change in accounting principles or reporting
practices, except as required by GAAP, or change their fiscal
years.
8.17. Prepayments of Senior Subordinated Notes,
etc. Holding and the Borrowers shall not, and shall not cause or
permit any Subsidiary to: (a) make (or give any notice in
respect of) any voluntary or optional payment or prepayment or
redemption or acquisition for value of the Senior Subordinated
Notes (including, without limitation, by way of depositing with
any trustee with respect thereto money or securities before such
Indebtedness is due for the purpose of paying such Indebtedness
when due) or exchange of any such Indebtedness, except that (i) a
refinancing thereof may be effected in accordance with
subsection 8.5(o), and (ii) provided that no Event of Default or
Unmatured Event of Default shall have occurred and be continuing,
US Borrower may, prior to December 1, 1999, redeem Senior
Subordinated Notes with any Net Cash Proceeds of a Qualified
Public Offering not required by subsection 2.7(e) to be applied
to the prepayment of the Term Loans so long as after giving
effect thereto not less than U.S. $87.75 million in aggregate
principal amount of the Senior Subordinated Notes remain
outstanding; (b) amend, modify or change its certificate of
incorporation (including, without limitation, by the filing of
any certificate of designation) or its by-laws or any other
organizational document or the foreign equivalent thereof with
respect to Foreign Subsidiaries (other than such changes with
respect to Subsidiaries (other than CH Borrower) as are necessary
to effect changes in organizational structure (whether under
applicable corporate law or for tax purposes) from corporate to
partnership form in connection with the M-T Acquisition), or any
agreement entered into by it with respect to its capital stock,
or enter into any new agreement with respect to its capital stock
in any manner which would be materially adverse to the Lenders;
or (c) issue any capital stock other than non-redeemable common
stock.
8.18. Amendments to Other Documents. Holding and
the Borrowers shall not and shall not cause or permit any
Subsidiary to, directly or indirectly, make any amendment,
supplement or other modification of, or enter into any consent or
waiver with respect to, the subordination provisions of the
Senior Subordinated Note Documents or make any material
amendment, supplement or other modification of, or enter into any
consent or waiver with respect to, any Transaction Document or
Other Document.
8.19. Capital Expenditures. The Borrowers shall
not permit the aggregate amount of all Capital Expenditures made
by US Borrower and the Subsidiaries for any fiscal year to exceed
a Dollar Equivalent amount set forth in the table below:
<TABLE>
<CAPTION>
Fiscal Year U.S. Dollars
------------------------ -------------------------
<S> <C>
1996 30 million
1997 35 million
1998 35 million
1999 40 million
2000 40 million
2001 45 million
2002 45 million
2003 and thereafter 50 million
</TABLE>
; provided, however, that the unused permitted amount of such
Capital Expenditures in any fiscal year may be carried over and
used in the following fiscal year if and to the extent that such
carryover amount would not result in the amount expended in any
fiscal year exceeding 125% of the amount set forth in the above
table for such year (it being understood that in any fiscal year
the base permitted amount shall be counted first towards total
expenditures); provided, further, however, that the limitation
set forth above shall not include (1) Capital Expenditures made
with (i) the proceeds of additional capital contributions by
Holding or the proceeds of additional equity issuances and
(ii) Net Cash Proceeds of Asset Sales to the extent reinvested in
the business as permitted hereby, (2) Capital Expenditures
related to integration costs that arise out of the M-T
Acquisition in an amount not exceeding a Dollar Equivalent amount
of U.S. $5.0 million at any time prior to December 31, 1997, and
(3) Capital Leases with respect to automobiles leased in the
ordinary course of business that are not required to be
capitalized under International Accounting Standards.
8.20. Sale and Lease-Backs. The Borrowers shall
not, and shall not cause or permit any Subsidiary to, directly or
indirectly, become or thereafter remain liable as lessee or as
guarantor or other surety with respect to the lessee's
obligations under any lease, whether an operating lease or a
Capital Lease, of any property (whether real or personal or
mixed), whether now owned or hereafter acquired, (i) which US
Borrower or any Subsidiary has sold or transferred or is to sell
or transfer to any other Person (other than US Borrower or any
Wholly-Owned Subsidiary which is a Qualified Subsidiary
Guarantor) or (ii) which US Borrower or any Subsidiary intends to
use for substantially the same purpose as any other property
which has been or is to be sold or transferred by Borrower or any
Subsidiary to any Person in connection with such lease, if in the
case of clause (i) or (ii) above, such sale and such lease are
part of the same transaction or a series of related transactions
or such sale and such lease occur within one year of each other
or are with the same other Person, except for any transaction
permitted by subsection 8.2(d).
8.21. Sale or Discount of Receivables. Each
Borrower shall not, nor shall it cause or permit any Subsidiary
to, directly or indirectly, sell, with or without recourse, or
discount (other than in connection with trade discounts or
arrangements necessitated by the creditworthiness of the other
party, in each case in the ordinary course of business consistent
with past practice) or otherwise sell for less than the face
value thereof, notes or accounts receivable, except (i) to US
Borrower or any Wholly-Owned Subsidiary which is a Qualified
Subsidiary Guarantor, (ii) by Foreign Subsidiaries (x) in the
ordinary course and either (I) consistent with past practice as
of the Original Closing Date or (II) consistent with the
customary practices of the applicable country, and (iii) by
Mettler-Toledo (Albstadt) GmbH, Albstadt and Mettler-Toledo GmbH,
Greifensee in connection with the transfer of distribution rights
relating to the business in Japan, not to exceed the Dollar
Equivalent amount of U.S. $4.0 million.
8.22. Creation of Subsidiaries. The Borrowers
shall not, and shall not cause or permit any Subsidiary to,
establish, create or acquire after the Original Closing Date any
Subsidiary; provided, however, that, US Borrower and its Wholly-
Owned Subsidiaries shall be permitted to establish, create or
acquire Wholly-Owned Subsidiaries or any non-Wholly-Owned
Subsidiary in connection with any Investment permitted by
subsections 8.4(e) or (f) so long as, with respect to any such
new Subsidiary in which US Borrower or any Subsidiary has made
Investments of the Dollar Equivalent of U.S. $1.0 million or
more, (i) at least 30 days' prior written notice thereof is given
to the Administrative Agent, (ii) all of the capital stock of
such new Subsidiary held by US Borrower or any Subsidiary is
pledged pursuant to a Securities Pledge Agreement and the
certificates representing such stock, together with stock powers
duly executed in blank are delivered to the Administrative Agent;
provided, however, that (subject to Section 7.18) not more than
65% of the capital stock of Foreign Subsidiaries which are not CH
Foreign Subsidiaries need be pledged and no capital stock of any
such Foreign Subsidiary which is not a "first tier" Subsidiary of
US Borrower or any Domestic Subsidiary need be pledged by US
Borrower or any Domestic Subsidiary or Foreign Subsidiary that is
not a CH Foreign Subsidiary, (iii) any such new Subsidiary which
is a Domestic Subsidiary shall have executed and delivered a
Domestic Subsidiary Guarantee and, subject to Section 7.14, each
other Security Document executed and delivered by the Domestic
Subsidiaries on the Original Closing Date and each such new CH
Foreign Subsidiary shall have executed a Foreign Subsidiary
Guarantee and each other Security Document executed and delivered
by CH Foreign Subsidiaries on the Original Closing Date (subject
to applicable limitations under foreign law); provided, however,
that any Subsidiary which is prohibited by applicable local law
from entering into a Subsidiary Guarantee need not do so, and
(iv) to the extent requested by the Administrative Agent or the
Required Lenders, such Subsidiary takes all actions required
pursuant to Section 7.14 and Section 7.15. In addition, each new
Subsidiary which is a Domestic Subsidiary or a CH Foreign
Subsidiary, as the case may be, shall execute and deliver or
cause to be executed and delivered all other relevant
documentation of the type described in Section 5 as such new
Subsidiary would have had to deliver if such new Subsidiary were
a Domestic Subsidiary or CH Foreign Subsidiary, as the case may
be, on the Original Closing Date.
8.23. Designated Senior Debt. Neither Holding nor
US Borrower will, and each of them will not permit any Subsidiary
to, designate or permit the designation of any Indebtedness
(other than the Obligations) as "Designated Senior Indebtedness"
or "Designated Guarantor Senior Indebtedness" for purposes of,
and as defined in, the Senior Subordinated Note Documents.
8.24. Issuance or Disposal of Subsidiary Stock.
The Borrowers shall not, directly or indirectly: (a) issue,
sell, assign, pledge or otherwise encumber or dispose of any
shares of capital stock, partnership interests, or other equity
securities of (or warrants, rights or options to acquire shares
or other equity securities of) any Subsidiary; or (b) cause or
permit any Subsidiary to, directly or indirectly, issue, sell,
assign, pledge or otherwise encumber or dispose of any of their
respective or any of their respective Subsidiaries' shares of
capital stock, partnership interests, or other securities (or
warrants, rights or options to acquire any such shares or other
securities), except, in each case under clause (a) or (b), (i) to
US Borrower or any of its Wholly-Owned Subsidiaries, (ii) to
qualify directors if required by applicable law, (iii) the pledge
thereof pursuant to the Security Documents and (iv) as permitted
by subsection 8.2(d) or (k) (provided, in each case, such sale is
for all of the capital stock of such Subsidiary) or by
subsection 8.13(a) or (b).
8.25. Limitation on Other Restrictions on Amendment
of Basic Documents. None of Holding, the Borrowers or the
Subsidiaries shall enter into, suffer to exist or become or
remain subject to any agreement or instrument to which any of
them is a party or to which any of them or any property of any of
them (now owned or hereafter acquired) may be subject or bound
(except for the Loan Documents or the other Basic Documents (but
with respect to the Basic Documents that are not Loan Documents,
only as to themselves)) that would prohibit or restrict
(including by way of any covenant, representation or warranty or
event of default), or require the consent of any Person to any
amendment to, or waiver or consent to departure from the terms
of, any Basic Document (which, in the case of the Basic Documents
that are not Loan Documents, would be materially adverse to the
Lenders).
8.26. Limitation on Swing Line Lenders. No
Subsidiary Swing Line Borrower shall, and US Borrower shall not
cause or permit any Subsidiary Swing Line Borrower to, have or
arrange for, or enter into any agreement or understanding with
respect to, more than one Lender acting at any one time as a
Swing Line Lender for any Subsidiary Swing Line Borrower (or, for
the UK Swing Line Borrowers, for them collectively), or for any
Lender to replace any Swing Line Lender for any Subsidiary Swing
Line Borrower unless all extensions of credit hereunder to the
Subsidiary Swing Line Borrower to whom such replaced Swing Line
Lender made extensions of credit hereunder have been paid in full
and arrangements for potential L/C Obligations with respect to
all Letters of Credit Issued and outstanding by such replaced
Swing Line Lender have been provided for to the satisfaction of
such replaced Swing Line Lender.
ARTICLE IX
EVENTS OF DEFAULT
------------------
9.1. Event of Default. Any of the following shall
constitute an "Event of Default":
(a) Non-Payment. Any Loan Party fails to pay,
(i) when and as required to be paid herein, any principal of
any Loan or of any L/C Obligation or (ii) within three days
after the same becomes due, any interest, fee or any other
amount payable under any Loan Document.
(b) Representation or Warranty. Any representation or
warranty by any Loan Party made or deemed made in any Loan
Document, or which is contained in any certificate, document
or financial or other statement by any Loan Party or any
Responsible Officer furnished at any time under any Loan
Document, is incorrect in any material respect on or as of
the date made or deemed made.
(c) Specific Defaults. Any Loan Party fails to
perform or observe any term, covenant or agreement contained
in Section 7.3(a) or in Article VIII.
(d) Other Defaults. Any Loan Party fails to perform
or observe any term, covenant or agreement (other than those
referred to in subsections 9.1(a), (b) or (c) above)
contained in any Loan Document, and such failure shall
continue unremedied for a period of at least 30 days after
the date upon which written notice thereof is given to the
Borrowers by any Agent or any Lender.
(e) Cross-Default. (i) Any Company fails to make any
payment in respect of any one or more issues of Indebtedness
(other than the Obligations) or Contingent Obligation having
an aggregate principal of more than the Dollar Equivalent
amount of U.S. $5.0 million beyond the period of grace, if
any, provided in the instrument or agreement under which
such Indebtedness or Contingent Obligation was created or by
which it is governed; or (ii) any Company fails to perform
or observe any other term, condition or covenant, or any
other event shall occur or condition exist, under any
agreement or instrument relating to any Indebtedness or
Contingent Obligation, if the effect of such failure, event
or condition is to cause, or to permit the holder or holders
of such Indebtedness or beneficiary or beneficiaries of such
Indebtedness or Contingent Obligation (or a trustee or agent
on behalf of such holder or holders or beneficiary or
beneficiaries) to cause (with or without notice or passage
of time or both), such Indebtedness to be declared to be due
and payable prior to its stated maturity or to require any
Company to redeem or purchase, or offer to redeem or
purchase, all or any portion of such Indebtedness, or any
such Indebtedness shall be required to be prepaid (other
than by a regularly scheduled required prepayment or
redemption) prior to the stated maturity thereof or such
Contingent Obligation to become payable or cash collateral
in respect thereof to be demanded; provided, however, that
the aggregate amount of all such Indebtedness or Contingent
Obligations so affected and cash collateral so required
shall be in a Dollar Equivalent amount of U.S. $5.0 million
or more.
(f) Insolvency; Voluntary Proceedings. Any Company
(i) ceases or fails to be solvent, or generally fails to
pay, or admits in writing its inability to pay, its debts as
they become due; (ii) commences or consents to any
Insolvency Proceeding with respect to itself; or (iii) takes
any action to effectuate or authorize any of the foregoing.
(g) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against any
Company, or any writ, judgment, warrant of attachment,
execution or similar process is issued or levied against a
Company, and such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated
or fully bonded, within 60 days after commencement, filing
or levy; (ii) any Company admits the material allegations of
a petition against it in any Insolvency Proceeding, or an
order for relief (or similar order under non-U.S. law) is
ordered in any Insolvency Proceeding; or (iii) any Company
acquiesces in the appointment of a receiver, receiver and
manager, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor), or other
similar person for itself or a substantial portion of its
property or business.
(h) ERISA. (i) An ERISA Event shall occur with
respect to a Pension Plan or a Multiemployer Plan which has
resulted or is reasonably likely to result in liability of a
Loan Party under Title IV of ERISA to such Pension Plan or
Multiemployer Plan or to the PBGC in an aggregate Dollar
Equivalent amount in excess of U.S. $5.0 million; or
(ii) the aggregate Dollar Equivalent amount of Unfunded
Pension Liability among all Pension Plans at any time
exceeds U.S. $5.0 million and as a result thereof a lien
shall be imposed, a security interest shall be granted or a
material liability is incurred, which lien, security
interest or liability, in the reasonable judgment of the
Required Lenders, is reasonably likely to result in a
Material Adverse Effect.
(i) Monetary Judgments. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration
awards is entered against any Company involving in the
aggregate a liability (to the extent not covered by
independent third-party insurance as to which the insurer
does not dispute coverage) as to any single or related
series of transactions, incidents or conditions, of a Dollar
Equivalent amount of U.S. $5.0 million or more, and the same
shall remain unvacated and unstayed pending appeal for a
period of 30 days after the entry thereof.
(j) Non-Monetary Judgments. Any non-monetary
judgment, order or decree is entered against any Company
which does or would reasonably be expected to have a
Material Adverse Effect, and there shall be any period of 30
consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
(k) Guarantees. Any Guarantee ceases to be in full
force and effect (other than due to any effect of applicable
foreign law or action by any foreign government) or any of
the Guarantors repudiates, or attempts to repudiate, any of
its obligations under any of the Guarantees.
(i) Security Documents. Any Security Document shall
cease to be in full force and effect (other than due to any
effect of applicable foreign law or action by any foreign
government), or shall cease to give the Administrative Agent
the Liens, rights, powers and privileges purported to be
created thereby, in favor of the Administrative Agent,
superior to and prior to the rights of all third Persons and
subject to no Liens other than Prior Liens and Liens
expressly permitted by the applicable Security Document, or
any judgment creditor having a Lien against any item of
Collateral shall commence legal action to foreclose such
Lien or otherwise exercise its remedies against any item of
Collateral or either Borrower or any Subsidiary fails to
comply with or to perform any material obligation or
agreement under any Security Document within ten days after
being requested by the Administrative Agent or any Lender.
(m) Change of Control. Any Change of Control shall
occur.
(n) Senior Subordinated Notes. The subordination
provisions relating to the any Senior Subordinated Note
Document (the "Subordination Provisions") shall fail to be
enforceable by the Lenders (which have not effectively
waived the benefits thereof) in accordance with the terms
thereof, or any Obligation shall fail to constitute Senior
Indebtedness or Guarantor Senior Indebtedness (as defined in
the Senior Subordinated Note Documents); or Holding, US
Borrower or any Subsidiary shall, directly or indirectly,
disavow or contest in any manner any of the Subordination
Provisions.
(o) Ciba Reimbursement Agreement. Any Borrower shall
be in breach of its obligations under the Ciba Reimbursement
Agreement.
(p) Consummation of the M-T Acquisition. The M-T
Acquisition shall fail to be consummated promptly after the
making of the Loans on the Original Closing Date.
(q) Environmental Events. There shall have been
asserted against any Company, claims, whether accrued,
absolute or contingent, based on or arising from the
generation, storage, transport, handling or disposal of
Hazardous Materials by any Company or any Affiliate, or any
predecessor in interest of any Company or any Affiliate,
which claims are reasonably likely to be determined
adversely to any Company and the amount of any such claim
(insofar as it is payable by any Company but after deducting
any portion thereof which is reasonably expected to be paid,
discharged or forgiven by other creditworthy Persons jointly
and severally liable therefor), is, singly or in the
aggregate, reasonably likely to have a Material Adverse
Effect.
9.2. Remedies. If any Event of Default occurs, the
Administrative Agent shall, at the request, or may, with the
consent, of the Required Lenders:
(a) declare the commitment of each Lender to make
Loans and the obligation of the L/C Lender to Issue Letters
of Credit to be terminated, whereupon such commitments and
obligation shall be terminated;
(b) declare an amount equal to the maximum aggregate
amount that is or at any time thereafter may become
available for drawing under any outstanding Letters of
Credit (whether or not any beneficiary shall have presented,
or shall be entitled at such time to present, the drafts or
other documents required to draw under such Letters of
Credit) to be immediately due and payable, and declare the
unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts
owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Credit Agreement Loan
Parties;
(c) direct the Credit Agreement Loan Parties to pay
(and the Credit Agreement Loan Parties agree that upon
receipt of such notice, or upon the occurrence of an Event
of Default specified in subsection 9.1(f) or (g) with
respect to any Credit Agreement Loan Party, such Credit
Agreement Loan Party will pay) to the Applicable Agent at
the Agent's Payment Office such additional amount of cash,
to be held as security by the Administrative Agent, as is
equal to the aggregate undrawn face amount of all Letters of
Credit issued for the account of any Credit Agreement Loan
Party and then outstanding; and
(d) exercise on behalf of the Administrative Agent and
the Lenders all rights and remedies available to the
Administrative Agent and the Lenders under the Loan
Documents or applicable law;
provided, however, that upon the occurrence of any event
specified in subsection (f) or (g) of Section 9.1, the obligation
of each Lender to make Loans and any obligation of the L/C Lender
to Issue Letters of Credit, shall automatically terminate and the
unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and
payable without further act of the Administrative Agent, the L/C
Lender or any other Lender.
9.3. Rights Not Exclusive. The rights provided for in
this Agreement and the other Loan Documents are cumulative and
are not exclusive of any other rights, powers, privileges or
remedies provided by law or in equity, or under any other
instrument, document or agreement now existing or hereafter
arising.
ARTICLE X.
THE AGENTS
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10.1. Appointment and Authorization. (a) Each
Lender hereby irrevocably (subject to Section 10.9) appoints,
designates and authorizes each Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as
are expressly delegated to it by the terms of this Agreement or
any other Loan Document, together with such powers as are
reasonably incidental thereto. The Administrative Agent is
expressly authorized to (A) execute and deliver, and approve the
form and substance of, all Security Documents on the Original
Closing Date and the Safeline Closing Date and take all actions
incidental or related thereto and to execute and deliver, and
approve the form and substance of, the Ratification Agreement and
each Intercreditor Agreement entered into in connection with any
Lien granted pursuant to subsection 8.1(u), (B) approve and agree
with the Credit Agreement Loan Parties each form of Exhibit to
this Agreement modified or added in connection with the
amendments hereto effected on the Amendment and Restatement Date
and (C) execute and deliver, and approve the form and substance
of, any release of all or part of security comprised in any
Security Document which is necessary to ensure no transaction set
forth on Schedule 1.8 (if and so long as such transactions are
effected substantially on the terms set forth on Schedule 1.8)
results in a pledge of more than 65% of the capital stock of
Safeline Limited, and take all actions incidental or related
thereto. Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Loan Document, none
of any Agent, the Arranger or any Co-Agent shall have any duties
or responsibilities except those expressly set forth herein, nor
shall any of any Agent, the Arranger or any Co-Agent have or be
deemed to have any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or
any other Loan Document or otherwise exist against any of any
Agent, the Arranger or any Co-Agent or any of their affiliates.
The provisions of this Article X are solely for the benefit of
the Agents, the Arranger, the Co-Agents and the Lenders, and no
Loan Party shall have any rights as a third party beneficiary of
any of the provisions hereof. In performing its functions and
duties under this Agreement, each Agent shall act solely as an
Agent of the Lenders as provided for herein and no Agent assumes
and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for any Loan Party. None
of the Documentation Agent, the Arranger or any Co-Agent shall
have any responsibilities under any Loan Document, except as
expressly set forth therein.
(b) The L/C Lender shall act on behalf of the
Revolving Facility Lenders with respect to any Letters of Credit
Issued by it and the documents associated therewith until such
time and except for so long as the Administrative Agent may agree
at the request of the Required Lenders to act for the L/C Lender
with respect thereto; provided, however, that the L/C Lender
shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article X with respect to any acts
taken or omissions suffered by the L/C Lender in connection with
Letters of Credit Issued by it or proposed to be Issued by it and
the application and agreements for letters of credit pertaining
to the Letters of Credit as fully as if the term "Administrative
Agent," as used in this Article X, included the L/C Lender with
respect to such acts or omissions and (ii) as additionally
provided in this Agreement with respect to the L/C Lender.
(c) Each Swing Line Lender shall have all of the
benefits and immunities (i) provided to the Administrative Agent
in this Article X with respect to any acts taken or omissions
suffered by such Swing Line Lender in connection with Swing Line
Loans made or proposed to be made by it as fully as if the term
"Administrative Agent," as used in this Article X, included the
Swing Line Lenders with respect to such acts or omissions and
(ii) as additionally provided in this Agreement with respect to
the Swing Line Lenders.
10.2. Delegation of Duties. Each Agent may execute
any of its duties under this Agreement or any other Loan Document
by or through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining
to such duties. No Agent shall be responsible for the negligence
or misconduct of any agent or attorney-in-fact that it selects
with reasonable care.
10.3. Exculpatory Provisions. None of any Agent,
the Arranger, any Co-Agent or any of their respective Affiliates
shall (i) be liable for any action taken or omitted to be taken
by any of them under or in connection with this Agreement or any
other Loan Document or under any other document or instrument
referred to or provided for herein or therein or the transactions
contemplated hereby or thereby (except for its own gross
negligence or willful misconduct), (ii) be responsible in any
manner to any of the Lenders for any recital, statement,
representation or warranty made by any Loan Party or any
Subsidiary or Affiliate of any Loan Party, or any officer
thereof, contained in this Agreement or in any other Loan
Document, under or in connection with, this Agreement or any
other Loan Document, or the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document referred to or
provided for herein or therein, or for any failure of any Loan
Party or any other party to any Loan Document to perform its
obligations hereunder or thereunder, (iii) except to the extent
that, with respect to any Agent, it is expressly instructed by
the Lenders with respect to collateral security under the
Security Documents, be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other
Loan Document or (iv) with respect to any Agent, be under any
obligation to take any action hereunder or under any other Loan
Document if such Agent believes in good faith that taking such
action may conflict with any law or any provision of any Loan
Document, or may require such Agent to qualify to do business in
any jurisdiction where it is not then so qualified. None of any
Agent, the Arranger, any Co-Agent or any of their respective
Affiliates shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party or any Subsidiary
or Affiliate of any Loan Party.
10.4. Reliance by Agents. (a) Each Agent shall be
entitled to rely, and shall be fully protected in relying, upon
any writing, resolution, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by or
on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to any Loan Party
or any Subsidiary), independent accountants and other experts
selected by any Agent. Each Agent shall be fully justified in
failing or refusing to take any action under this Agreement or
any other Loan Document, unless it shall first receive such
advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified
to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or
continuing to take any such action. Each Agent shall in all
cases be fully protected in acting, or in refraining from acting,
under this Agreement or any other Loan Document, in accordance
with a request or consent of the Required Lenders, and such
request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the
conditions specified in Section 5.1, each Lender that has
executed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with each document or
other matter either sent by any Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to
be consented to or approved by or acceptable or satisfactory to
the Lender.
10.5. Notice of Default. No Agent shall be deemed
to have knowledge or notice of the occurrence of any Event of
Default or Unmatured Event of Default, unless such Agent shall
have received written notice from a Lender or a Borrower
referring to this Agreement, describing such Event of Default or
Unmatured Event of Default and stating that such notice is a
"notice of default." If an Agent receives such a notice, such
Agent will notify the Lenders of its receipt thereof. Each Agent
shall take such action with respect to such Event of Default or
Unmatured Event of Default as may be requested by the Required
Lenders in accordance with Article IX; provided, however, that,
unless and until an Agent has received any such request, such
Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Event of
Default or Unmatured Event of Default as it shall deem advisable
or in the best interest of the Lenders except to the extent that
this Agreement expressly requires otherwise.
10.6. Credit Decision. Each Lender acknowledges
that none of any Agent, the Arranger, any Co-Agent or any of
their respective Affiliates has made any representation or
warranty to it, and that no act by any Agent hereafter taken,
including any review of the affairs of any Loan Party, shall be
deemed to constitute any representation or warranty by any Agent,
the Arranger, any Co-Agent or any Lender. None of any Agent, the
Arranger or any Co-Agent shall be required to keep itself
informed as to the performance or observance by any Lender of
this Agreement or any of the other Loan Documents or any other
document referred to or provided for herein or therein or to
inspect the properties or books of any Loan Party. Each Lender
represents to each Agent, the Arranger and the Co-Agents that it
has, independently and without reliance upon any Agent, the
Arranger, any Co-Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and
creditworthiness of the Loan Parties, and all applicable bank
regulatory laws relating to the transactions contemplated hereby,
and made its own decision to enter into this Agreement and to
extend credit hereunder. Each Lender also represents that it
will, independently and without reliance upon any Agent, the
Arranger, any Co-Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement or
any other Loan Document, and to make such investigations as it
deems necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and
creditworthiness of the Loan Parties. Except for notices,
reports and other documents and information expressly herein
required to be furnished to the Lenders by any Agent, none of any
Agent, the Arranger or any Co-Agent shall have any duty or
responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of
the Loan Parties which may come into the possession of any Agent,
the Arranger, any Co-Agent or any of their respective Affiliates.
10.7. Indemnification. Whether or not the
transactions contemplated hereby are consummated, the Lenders
shall indemnify upon demand each Agent, the Arranger, the Co-
Agents and each of their respective Affiliates (to the extent not
reimbursed by or on behalf of the Loan Parties in accordance with
the terms hereof and without limiting the obligation of the
Borrowers to do so), pro rata (determined on the same basis used
in determining Required Lenders), from and against any and all
Losses which may at any time be imposed on, incurred by or
asserted against any Agent, the Arranger or any Co-Agent in their
respective capacity as such (including by any Lender) arising out
of or by reason of any investigation in any way relating to or
arising out of this Agreement or any other Loan Document, or any
documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or the enforcement of
any of the terms hereof or thereof or of any such other
documents; provided, however, that (A) no Lender shall be liable
for the payment to, the Arranger or any Co-Agent or any of their
respective Affiliates of any portion of the Losses resulting from
such Person's gross negligence or willful misconduct and (B) no
non-Canadian Lender shall have any obligation to the Canadian
Agent. Without limitation of the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for its ratable
share (determined on the same basis used in determining Required
Lenders) of any costs or out-of-pocket expenses (including
Attorney Costs) incurred by such Agent in connection with the
preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein
or therein, to the extent that any Agent is not reimbursed for
such expenses by or on behalf of the Loan Parties. The
agreements set forth in this Section 10.7 shall survive the
payment of all Loans and other obligations hereunder and the
resignation or replacement of any Agent and shall be in addition
to and not in lieu of any other indemnification agreements
contained in any other Loan Document.
10.8. Agents in Individual Capacity. Each Agent
and its Affiliates may make loans to, issue letters of credit for
the account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with the Loan Parties
and Affiliates of the Loan Parties as though such Agent were not
an Agent hereunder, without notice to or consent of the Lenders.
The Lenders acknowledge that, pursuant to such activities, an
Agent and its Affiliates may receive information regarding the
Loan Parties or their Affiliates (including information that may
be subject to confidentiality obligations in favor of the
Borrowers or such Affiliates) and acknowledge that no Agent or
any of its Affiliates shall be under any obligation to provide
such information to them. With respect to its Loans, an Agent
(and any of its Affiliates which may become a Lender) shall have
the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not an Agent
or the L/C Lender. The terms "Lender" and "Lenders" shall,
unless the context otherwise indicates, include Agent in its
individual capacity.
10.9. Successor Agents. Any Agent may, and at the
request of the Required Lenders shall, resign as an Agent upon 30
days' notice to the Lenders and the Borrowers. If an Agent
resigns under this Agreement, the Required Lenders shall appoint
from among the Lenders a successor Agent, as applicable, which
successor agent shall, so long as no Event of Default exists, be
subject to the approval of the Borrowers (which approval shall
not be unreasonably withheld or delayed). If no successor agent
is appointed prior to the effective date of the resignation of an
Agent, such Agent may appoint, after consulting with the Lenders
and the Borrowers, a successor agent, from among the Lenders.
Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights,
powers and duties of the retiring Agent, and the term
"Administrative Agent," "Canadian Agent" or "Documentation Agent"
shall mean such successor agent and the retiring Agent's
appointment, powers and duties as such Agent shall be terminated.
After the retiring Agent's resignation hereunder as such Agent,
the provisions of this Article X and Section 11.4 shall inure to
its benefit as to any actions taken or omitted to be taken by it
while it was such Agent under this Agreement. If no successor
agent has accepted appointment as the applicable Agent by the
date which is 30 days following the retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of
the duties of such Agent hereunder until such time, if any, as
the Required Lenders appoint a successor agent as provided for
above. Each successor Agent shall comply with subsection 4.1(f).
10.10. Holders. Each Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof
unless and until a written notice of the assignment, transfer or
endorsement thereof, as the case may be, shall have been filed
with such Agent. Any request, authority or consent of any Person
or entity who, at the time of making such request or giving such
consent, is the holder of any Note shall be conclusive and
binding on any subsequent holder, transferee, assignee or
indorsee, as the case may be, of such Note or of any Note or
Notes issued in exchange therefor.
10.11. Failure to Act. Except for action expressly
required of an Agent hereunder and under the other Loan
Documents, each Agent shall in all cases be fully justified in
failing or refusing to act hereunder and thereunder unless it
shall receive further assurances to its satisfaction from the
Lenders of their indemnification obligations under Section 10.7
against any and all liability and expense that may be incurred by
it by reason of taking or continuing to take any such action.
ARTICLE XI.
MISCELLANEOUS
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11.1. Amendments and Waivers. (a) The
Administrative Agent, each Swing Line Lender affected thereby and
the Credit Agreement Loan Parties, without notice to or consent
of any Lender or other Agent, may (i) modify or amend the
definition of Subsidiary Swing Line Borrowers, including by
naming additional Subsidiaries as Subsidiary Swing Line
Borrowers, or (ii) modify or amend the definition of the
Subsidiary Swing Line Borrower Sublimits or US Borrower Sublimit
so long as the Dollar Equivalent amount thereof on the date of
such modification or amendment is not greater than the Swing Line
Commitment; provided, however, that no additional currencies to
be made available to any Subsidiary Swing Line Borrower beyond
that in effect on the Amendment and Restatement Date or
thereafter approved in accordance with this Agreement may be
effected pursuant to this sentence. No other amendment or waiver
of any provision of this Agreement or any other Loan Document,
and no consent with respect to any other departure by any Credit
Agreement Loan Party therefrom, shall be effective unless the
same shall be in writing and signed by the Required Lenders (or
by the Administrative Agent at the written request of the
Required Lenders) and the Credit Agreement Loan Parties and
acknowledged by the Administrative Agent, and then any such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided,
however, that no such waiver, amendment or consent shall, unless
in writing and signed by all the Non-Defaulting Lenders and the
Credit Agreement Loan Parties and acknowledged by the
Administrative Agent, do any of the following: (i) increase or
extend the term of any of the Commitments (it being understood
that a waiver of any condition, covenant violation, Event of
Default or Unmatured Event of Default shall not constitute a
change in the terms of any Commitment of any Lender) or extend
the time or waive any requirement for the reduction or
termination of any of the Commitments (or reinstate any
Commitment terminated pursuant to Section 9.2) or change the
currency in which any Loan or L/C Obligation is payable, except
as expressly permitted herein (provided that the consent of the
Lenders whose Loans or Commitments are being so changed (and none
other) shall be required); (ii) postpone or delay any date fixed
by subsection 2.9(a), (b) or (c) for any payment of any
Amortization Payment or for any payment of interest, fees or
other amounts (other than any prepayment of the Term Loans as a
result of any of the events set forth in Section 2.7) due to the
Lenders (or any of them) under any Loan Document; (iii) reduce
the principal of, or the rate of interest specified herein (other
than as a result of waiving the applicability of any post-default
increase in interest rates) on, any Loan or (subject to clause
(5) below) any fees or other amounts payable under any Loan
Document; (iv) modify the definition of the term "Required
Canadian Lenders", "Required Lenders", "Required Revolving
Facility Lenders", "Majority Lenders of the Affected Tranche" or
"Supermajority Lenders" or change the percentage of the
Commitments or of the aggregate unpaid principal amount of the
Loans and L/C Obligations which is required for the Non-
Defaulting Lenders or any of them to take any action hereunder
(it being understood that, with the consent of the Required
Lenders, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Required
Lenders on substantially the same basis as the Commitments (and
related extensions of credit) are included on the Amendment and
Restatement Date); (v) release any material portion of the
Collateral (except as expressly permitted by the Loan Documents);
(vi) amend this Section 11.1, Section 2.15, Article IV, or
Section 11.4 or any provision herein or under any Loan Document
providing for consent or other action by all Lenders; (vii)
release any Guarantor from its obligations under its Guarantee
(except upon a permitted sale of such Guarantor); or (viii)
consent to the assignment or transfer by any Loan Party of its
rights and obligations under any Loan Document or the making of
any assignment of Loans or other Obligations or participation
therein to any Loan Party or any Affiliate thereof; provided,
further, however, that (1) no amendment, waiver or consent shall,
unless in writing and signed by the L/C Lender in addition to the
Required Lenders or all Non-Defaulting Lenders, as the case may
be, affect the rights or duties of the L/C Lender under this
Agreement or any L/C-Related Document, (2) no amendment, waiver
or consent shall, unless in writing signed by each Swing Line
Lender affected thereby in addition to the Required Lenders or
all Non-Defaulting Lenders, as the case may be, affect the rights
or duties of any Swing Line Lender under any Loan Document,
(3) no amendment, waiver or consent shall, unless in writing and
signed by the Applicable Agent in addition to the Required
Lenders or all Non-Defaulting Lenders, as the case may be, affect
the rights or duties of the Applicable Agent under any Loan
Document, (4) no amendment, waiver or consent (including any of
the foregoing with respect to any representation, warranty,
covenant, default or other matter which is otherwise effective
for purposes of this Agreement) shall, unless in writing and
signed by the (I) Required Revolving Facility Lenders, be
effective for determining whether the conditions precedent to any
Credit Extension under the Revolving Facility have been satisfied
or (II) Required Canadian Lenders, be effective for determining
whether the conditions precedent to any Credit Extension under
the Canadian Facility have been satisfied, (5) the Fee Letters
may be amended, or rights or privileges thereunder waived, in
accordance with their respective terms, (6) no amendment, waiver
or consent shall, unless in writing signed by the Majority
Lenders of the Affected Tranche, in addition to the Required
Lenders, change the application of prepayments under Section 2.7
as among the Term Loan Facilities or the order in which such
prepayments are applied to any such Facility (although any
required prepayment under Section 2.7 may be waived or amended,
in whole or in part, by the Supermajority Lenders so long as the
application of any such prepayment which is still made is not
altered), and (7) no amendment, waiver or consent shall, unless
in writing and signed by all Canadian Lenders in addition to the
Required Lenders or all Lenders, as the case may be, affect the
rights or duties of the Canadian Lenders under this Agreement or
any other Loan Document; provided, further, still, however, that
no amendment, waiver or consent shall, unless in writing signed
by the Supermajority Lenders, amend, waive or consent to the
departure from any required prepayment under Section 2.7. In the
case of any waiver effected in accordance with this Section 11.1,
the Loan Parties, the Lenders and the Agents shall be restored to
their former position and rights under each Loan Document, and
any Event of Default or Unmatured Event of Default waived shall
be deemed to be cured and not continuing; but no such waiver
shall extend to any subsequent or other Event of Default or
Unmatured Event of Default, or impair any right consequent
thereon. Any amendment, waiver or consent effected in accordance
with this Section 11.1 shall be binding upon each holder of the
Notes at the time outstanding, each future holder of the Notes
and, if signed by the Credit Agreement Loan Parties, on the
Credit Agreement Loan Parties and the other Loan Parties.
(b) If, in connection with any proposed amendment,
waiver or consent to any of the provisions of this Agreement as
contemplated by clauses (i)-(viii), inclusive, of the first
proviso to subsection 11.1(a), the consent of the Required
Lenders is obtained but the consent of one or more of such other
Lenders whose consent is required is not obtained, then the
Credit Agreement Loan Parties shall have the right to replace
each such non-consenting Lender or Lenders (so long as all non-
consenting Lenders are so replaced) with one or more Replacement
Lenders pursuant to Section 4.8 so long as at the time of such
replacement each such Replacement Lender consents to the proposed
amendment, waiver or consent; provided, however, that the Credit
Agreement Loan Parties shall not have the right to replace a
Lender solely as a result of the exercise of such Lender's rights
(and the withholding of any required consent by such Lender)
pursuant to the second or third proviso to subsection 11.1(a).
11.2. Notices. (a) Except as otherwise expressly
provided herein, all notices, requests and other communications
hereunder and under the Security Documents (including any
modifications of, or waivers, requests or consents under, this
Agreement) shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission;
provided, however, that any matter transmitted by any Credit
Agreement Loan Party (x) to any Agent or any Applicable Swing
Line Lender by facsimile shall be immediately confirmed by a
telephone call to the recipient at the number specified on
Schedule 11.2 and (y) to any Lender by facsimile shall be
immediately confirmed by a telephone call to the recipient at the
number specified on Schedule 11.2 or by overnight mail to the
recipient at the address specified on Schedule 11.2) and mailed,
faxed or delivered to the applicable party at the address or
facsimile number specified for notices on Schedule 11.2 (which
such facsimile notices shall be confirmed by overnight mail); or,
as directed to any Credit Agreement Loan Party or any Agent or
any Applicable Swing Line Lender, to such other address as shall
be designated by such party in a written notice to the other
parties, and as directed to any other party, at such other
address as shall be designated by such party in a written notice
to the Credit Agreement Loan Parties and the Agents and the
Applicable Swing Line Lenders (it being understood that these
provisions with respect to any Applicable Swing Line Lenders and
any Subsidiary Swing Line Borrower to which it has agreed to make
Swing Line Loans shall apply only to such parties.)
(b) All such notices, requests and communications
shall be effective, (i) if transmitted by overnight delivery or
faxed, when delivered or transmitted in legible form by facsimile
machine, respectively, (ii) if mailed, upon receipt or (iii) if
delivered, upon delivery; except that notices pursuant to Article
II, III or X to an Agent shall not be effective until actually
received by such Agent, and notices pursuant to Article III to
the L/C Lender shall not be effective until actually received by
the L/C Lender.
(c) Any agreement of any Agent and the Lenders herein
to receive certain notices by telephone or facsimile is solely
for the convenience and at the request of the Credit Agreement
Loan Parties. The Agents and the Lenders shall be entitled to
rely on the authority of any Person purporting to be a Person
authorized by a Credit Agreement Loan Party to give such notice,
and neither any Agent nor any Lenders shall have any liability to
any Credit Agreement Loan Party or any other Person on account of
any action taken or not taken by an Agent or any Lender in
reliance upon such telephonic or facsimile notice. The
obligation of the Credit Agreement Loan Parties to repay the
Loans and L/C Obligations shall not be affected in any way or to
any extent by any failure by any Agent or any Lender to receive
written confirmation of any telephonic or facsimile notice or the
receipt by the Administrative Agent or any Lender of a
confirmation which is at variance with the terms understood by
such Agent or such Lender to be contained in the telephonic or
facsimile notice.
(d) All notices to the Canadian Agent shall also be
sent simultaneously to the Administrative Agent.
11.3. No Waiver; Cumulative Remedies. No failure
to exercise and no delay in exercising, on the part of any Agent
or any Lender, any right, remedy, power or privilege hereunder or
under any other Loan Document, and no course of dealing between
any Loan Party and any Agent or Lenders shall operate as a waiver
thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder or under any other Loan
Document preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege hereunder
or under such other Loan Document. The rights and remedies
expressly provided herein are cumulative and not exclusive of any
rights or remedies provided by law. No notice to or demand upon
any Loan Party in any case shall entitle any Loan Party to any
other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agents
or the Lenders to any other or further action in any circumstance
without notice or demand.
11.4. Expenses, Indemnity, etc. Each Credit
Agreement Loan Party agrees: (a) to pay or reimburse the Agents
for its proportionate share of all of their reasonable out-of-
pocket costs and expenses (including the reasonable fees and
expenses of Cahill Gordon & Reindel and of all local and foreign
counsel) in connection with (i) the negotiation, preparation,
execution and delivery of this Agreement and the other Loan
Documents and the extensions of credit hereunder, the
administration of the transactions contemplated hereby (including
the monitoring of the Collateral) and the Arranger's syndication
efforts (including the Agents' due diligence investigation
expenses) with respect to this Agreement and (ii) the negotiation
or preparation of any modification, supplement or waiver of any
of the terms of this Agreement or any of the other Loan Documents
(whether or not consummated or effective); (b) to pay or
reimburse each of the Lenders and each Agent for its
proportionate share of all reasonable out-of-pocket costs and
expenses of the Lenders and each Agent (including Attorney Costs
of each Agent and the Lenders) in connection with (i) protection
of the Lenders' rights following any Event of Default and any
enforcement or collection proceedings resulting therefrom,
including all manner of participation in or other involvement
with (x) bankruptcy, insolvency, receivership, foreclosure,
winding up, dissolution or liquidation proceedings, (y) judicial
or regulatory proceedings, and (z) workout, restructuring or
other negotiations or proceedings (whether or not the workout,
restructuring or transaction contemplated thereby is
consummated), and (ii) the enforcement of this Section 11.4; and
(c) to pay or reimburse each of the Lenders and each Agent for
its proportionate share of all transfer, stamp, documentary or
other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement or
any of the other Loan Documents or any other document referred to
herein or therein and all costs, expenses, taxes, assessments and
other charges (including title insurance and Attorney Costs)
incurred in connection with any filing, registration, recording
or perfection of any security interest contemplated by any Loan
Document or any other document referred to therein.
Subject to the limitations under Article IV, each
Credit Agreement Loan Party agrees, whether or not the
transactions contemplated hereby are consummated, to indemnify
each Lender, each Agent, each Co-Agent and each of their
respective directors, officers, employees, attorneys, trustees
and agents (each, an "Indemnified Person") from, and hold each of
them harmless against, its proportionate share of any and all
Losses incurred by any of them in connection with any Proceeding
(whether or not any Agent, any Co-Agent or any Lender is a party
thereto and whether or not brought by or on behalf of any Loan
Party or any other Person) arising out of or by reason of
relating to any of the Loan Documents, the extensions of credit
hereunder or any actual or proposed use by any Credit Agreement
Loan Party or any Subsidiary of the proceeds of any of the
extensions of credit hereunder or the use of any collateral
security for the Loans (including the exercise by any Agent or
any Lender of the rights and remedies or any power of attorney
with respect thereto and any action or inaction in respect
thereof), but excluding any such Losses to the extent resulting
from the gross negligence or bad faith of the Indemnified Person.
Without limiting the generality of the foregoing, each Credit
Agreement Loan Party agrees to (x) indemnify each Agent for any
payments that any Agent is required to make under any indemnity
issued to any Lender referred to in any Security Document, and
(y) indemnify each Lender and each other Indemnified Person from,
and hold each Lender and each other Indemnified Person harmless
against, any Losses described in the preceding sentence (net of
insurance proceeds actually received but excluding, as provided
in the preceding sentence, any Loss to the extent resulting from
the gross negligence or bad faith of such Indemnified Person)
arising under any Environmental Law based on or arising out of
(A) the past, present or future operations of either Borrower or
any Subsidiary (or any predecessor in interest to either Borrower
or any Subsidiary), (B) the past, present or future condition of
any facility or property owned, operated or leased at any time by
either Borrower or any Subsidiary (or any of their respective
predecessors in interest), or (C) any Release or threatened
Release of any Hazardous Materials at, under or from any such
facility or property, including, without limitation, any such
Release or threatened Release that shall occur during any period
when any Lender or other Indemnified Person shall be in
possession of any such facility or property following the
exercise by such Lender or other Indemnified Person of any of its
rights and remedies hereunder or under any of the Security
Documents, and the alleged disposal or alleged arranging for
disposal or treatment of any Hazardous Materials by either
Borrower or any Subsidiary (or any of their respective
predecessors in interest) at any third-party site.
To the extent that the undertaking to indemnify and
hold harmless set forth in this Section 11.4 is unenforceable
because it is violative of any law or public policy or otherwise,
each Credit Agreement Loan Party shall contribute the maximum
portion that each of them is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all indemnified
liabilities incurred by any of the Persons indemnified hereunder.
Each Credit Agreement Loan Party also agrees that no
Indemnified Person shall have any liability (whether direct or
indirect, in contract or tort or otherwise) for any Losses to any
Loan Party or any Loan Party's security holders or creditors
resulting from, arising out of, in any way related to or by
reason of, any matter referred to in the second paragraph of this
Section 11.4, except to the extent that any Loss resulted from
the gross negligence or bad faith of such Indemnified Person.
In the event that any Indemnified Person is requested
or required to appear as a witness in any Proceeding brought by
or on behalf of or against any Loan Party or any affiliate of any
Loan Party in which such Indemnified Person is not named as a
defendant, each Credit Agreement Loan Party agrees to reimburse
each Indemnified Person for all reasonable out-of-pocket expenses
and all reasonable allocable costs of in-house legal counsel
incurred by each Indemnified Person in connection with such
Indemnified Person's appearing and preparing to appear as such a
witness, including the reasonable fees and disbursements of one
common counsel for all Indemnified Persons.
Each Credit Agreement Loan Party agrees that, without
the prior written consent of the Administrative Agent, the
Arranger and the Required Lenders, no Loan Party will settle,
compromise or consent to the entry of any judgment in any pending
or threatened Proceeding in respect of which indemnification
could be sought under the indemnification provisions of this
Section 11.4 (whether or not any Indemnified Person is an actual
or potential party to such Proceeding), unless such settlement,
compromise or consent includes an unconditional written release
reasonably satisfactory to the Administrative Agent, the Arranger
and the Required Lenders of each Indemnified Person from all
liability arising out of such Proceeding and does not include any
statement as to an admission of fault, culpability or failure to
act by or on behalf of any Indemnified Person and does not
involve any payment of money or other value by any Indemnified
Person or any injunctive relief or factual findings or
stipulations binding on any Indemnified Person. No Indemnified
Person shall settle, compromise or consent to the entry of any
judgment in any pending or threatened Proceeding without the
prior written consent of the Borrowers, which consent shall not
be unreasonably withheld or delayed.
11.15. Payments Pro Rata. Subject to Section 2.15,
each Applicable Agent agrees that promptly after its receipt of
each payment from or on behalf of any Loan Party in respect of
any Obligations of such Loan Party, it shall distribute such
payment to the Lenders based upon their respective Pro Rata
Shares, if any, of the Obligations with respect to which such
payment was received.
11.16. Payments Set Aside. To the extent that a
Credit Agreement Loan Party makes a payment to an Applicable
Agent or any Lender, or an Applicable Agent or any Lender
exercises its right of set-off, and such payment or the proceeds
of such set-off or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by an
Applicable Agent or such Lender in its discretion) to be repaid
to a trustee, receiver, receiver manager or any other party, in
connection with any Insolvency Proceeding or otherwise, then
(a) to the extent of such recovery the obligation or part thereof
originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not
been made or such set-off had not occurred and (b) each Lender
severally agrees to pay to such Applicable Agent upon demand its
pro rata share of any amount so recovered from or repaid by such
Applicable Agent.
11.17. Successors and Assigns. The provisions of
this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
11.18. Assignments and Participations, etc. (a) No
Credit Agreement Loan Party may assign its rights or obligations
hereunder or under the Notes without the prior written consent of
all of the Lenders and the Agents.
(b) Any Lender may, with the written consent of the
Borrowers and the Agents (and Scotiabank in its capacity as a
Swing Line Lender and Scotiabank in its capacity as an L/C Lender
in the case of any assignment of Revolving Facility Commitments)
(which consent, in each case, shall not be unreasonably withheld
or delayed) , at any time assign and delegate to one or more
Eligible Assignees (provided that, except with respect to any
assignment of a Tranche A-CHF Note or Revolving Note, each of
which shall require the consent of the Borrowers as described
above, no written consent of the Borrowers, any Agent, any Swing
Line Lender or any L/C Lender shall be required in connection
with any assignment and delegation by a Lender to an Eligible
Assignee that is an Affiliate of such Lender or to another
Lender) (each an "Assignee") (in which case, the Assignee and
assignor Lenders shall give notice of the assignment to the
Agents) all or any part of the Loans, the Commitments, the L/C
Obligations and the other rights and obligations of such Lender
hereunder, which assignment, other than to a Lender or an
Affiliate of a Lender, shall be in a minimum (unless the
Borrowers and the Agents agree to a lesser amount) Dollar
Equivalent amount of U.S. $5.0 million (or, in the case of any
assignment of a portion of the Canadian Commitment, a minimum
amount of Cdn. $5.0 million) or, if less, the entire amount of
all Loans, the Commitments, L/C Obligations and other rights and
obligations of such Lender hereunder in any Facility; provided,
however, that (i) in no event may any such assignment be made to
the Credit Agreement Loans Party or any of their Affiliates;
(ii) the Credit Agreement Loan Parties and the Agents may
continue to deal solely and directly with such Lender in
connection with the interest so assigned to an Assignee until
(x) written notice of such assignment, together with payment
instructions, addresses and related information with respect to
the Assignee, shall have been given to any Credit Agreement Loan
Party and the Agents by such Lender and the Assignee, (y) such
Lender and its Assignee shall have delivered to the Borrowers and
the Administrative Agent an Assignment and Acceptance in the form
of Exhibit G ("Assignment and Acceptance") together with any Note
or Notes subject to such assignment, and (z) the assignor Lender
shall have paid to the Administrative Agent a processing fee in
the amount of U.S. $3,000 (except that no such fee shall apply to
assignments by any Lender to any of its Affiliates); and (iii) no
Canadian Lender may assign any of its rights and obligations
hereunder unless arrangements satisfactory to Canadian Borrower
and the Canadian Agent have been made for one or more Lenders to
act (or to cause their respective Affiliates to act) as Canadian
Lenders hereunder in the full amount of the Canadian Commitment
of such Lender. Notwithstanding any other term of this
subsection 11.8(b), the agreement of any Swing Line Lender to
provide the Swing Line Commitment shall not impair or otherwise
restrict in any manner the ability of such Swing Line Lender to
make any assignment of its Loans or Commitments in accordance
with the provisions of this Section 11.8, it being understood and
agreed that such Swing Line Lender may terminate its Swing Line
Commitment, either in whole or in part, in connection with the
making of any assignment; provided, however, that the Assignee
assumes the Swing Line Commitment of such Swing Line Lender. At
the time of each assignment pursuant to this subsection 11.8(b)
to a Person which is not already a Lender hereunder within the
same Facility, the Assignee shall provide to the Credit Agreement
Loan Parties and the Agents the appropriate forms and
certificates described in subsection 4.1(f) (except to the extent
expressly provided otherwise). To the extent that an assignment
of all or any portion of a Lender's Commitments and related
outstanding Obligations pursuant to this subsection 11.8(b)
would, at the time of such assignment, result in increased costs
payable to such assignee Lender under Section 4.1, 4.3 or 4.4
from those being charged by the respective assigning Lender prior
to such assignment, then no Credit Agreement Loan Party shall be
obligated to pay such increased costs (although the Credit
Agreement Loan Parties shall be obligated to pay any other
increased costs of the type described above resulting from
changes after the date of the respective assignment). In
connection with any assignment it is agreed that, among other
things, the imposition of any withholding tax applicable at the
time of assignment on payments to an Eligible Assignee at the
time of assignment or the inability of an Eligible Assignee to
provide Loans in any Offshore Currency in which Loans under the
Facility being assigned are made at the time of assignment
(unless all Lenders are then so unable) shall be reasonable
grounds to withhold consent required from the Borrowers;
provided, however, that in connection with any assignment by a UK
Lender, the parties acknowledge that (i) in the case of an
Eligible Assignee that qualifies as a UK Qualifying Lender by
reason of being a Treaty Lender, if such Eligible Assignee shall
have delivered a UK Certificate in compliance with the provisions
of Section 4.1(f)(viii)(C), the potential imposition of UK
withholding tax while such UK Certificate is being processed or
considered by the appropriate taxing authorities shall not be
reasonable grounds for withholding such consent, but (ii) the
Borrowers shall have reasonable grounds to withhold consent in
the case of an assignment by a Treaty Lender to an Eligible
Assignee that is not a UK Qualifying Lender (including certain
banks which generally would qualify as UK Qualifying Lenders).
(c) From and after the date that the Agents notify the
assignor Lender that they have received (and provided their
consent and, to the extent required, received the consents of the
Credit Agreement Loan Parties and the L/C Lender with respect to)
an executed Assignment and Acceptance and payment of the above-
referenced processing fee, (i) the Assignee thereunder shall be a
party hereto and, to the extent that rights hereunder have been
assigned to it and obligations hereunder have been assumed by it
pursuant to such Assignment and Acceptance, shall have the rights
and obligations of a Lender under the Loan Documents, and
(ii) the assignor Lender shall, to the extent that rights and
obligations hereunder and under the other Loan Documents have
been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under
the Loan Documents.
(d) Any Lender may at any time sell to one or more
commercial banks or other Persons that are not Affiliates of
either Borrower (a "Participant") participating interests in any
Loan, the Commitment of such Lender and the other interests of
such Lender (the "originating Lender") hereunder and under the
other Loan Documents; provided, however, that (i) the originating
Lender's obligations under this Agreement shall remain unchanged,
(ii) the originating Lender shall remain solely responsible for
the performance of such obligations, (iii) the Credit Agreement
Loan Parties, the Swing Line Lenders, the L/C Lender and the
Agents shall continue to deal solely and directly with the
originating Lender in connection with the originating Lender's
rights and obligations under this Agreement and the other Loan
Documents, and (iv) no Lender shall transfer or grant any
participating interest under which the Participant has rights to
approve any amendment to, or any consent or waiver with respect
to, this Agreement or any other Loan Document, except to the
extent such amendment, consent or waiver would (1) extend the
final scheduled maturity of any Loan, Note or Letter of Credit
(unless such Letter of Credit is not extended beyond the
Termination Date) in which such Participant is participating, or
reduce the rate or extend the time of payment of interest or fees
thereon (except in connection with a waiver of applicability of
any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the
Participant's participation over the amount thereof then in
effect (it being understood that a waiver of any condition,
covenant, violation, Event of Default or Unmatured Event of
Default shall not constitute a change in the terms of such
participation, and that an increase in any Revolving Facility
Commitment or Revolving Facility Loan shall be permitted without
the consent of any Participant if the Participant's participation
is not increased as a result thereof), (2) consent to the
assignment or transfer by any Credit Agreement Loan Party of any
of its rights and obligations under this Agreement or (3) release
all or substantially all of the Collateral under all of the
Security Documents (except as expressly provided in the Loan
Documents) supporting the Loans hereunder in which such
Participant is participating. In the case of any such
participation, the Participant shall be entitled to the benefit
of Sections 2.15, 4.1, 4.3, 4.4, 4.6 and 11.4 as though it were
also a Lender hereunder (provided that the originating Lender and
not any Credit Agreement Loan Party shall be obligated to pay any
amount under Section 4.1, 4.3, 4.4 or 4.6 to any Participant
which is greater than a Credit Agreement Loan Party would have
been required to pay to the originating Lender if no such
participation had been sold), and if amounts outstanding under
this Agreement are due and unpaid, or shall have been declared or
shall have become due and payable upon the occurrence of an Event
of Default, the Participant shall be deemed to have the right of
set-off in respect of its participating interest in amounts owing
under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender
under this Agreement. Each originating Lender shall indemnify
and hold harmless each Credit Agreement Loan Party and each Agent
from and against any taxes, penalties, interest and other costs
and losses (including Attorney Costs) incurred or payable by any
Credit Agreement Loan Party or any Agent as a result of the
failure of any Credit Agreement Loan Party or any Agent to comply
with its obligations to deduct or withhold any Taxes from any
payments made pursuant to this Agreement to such Lender or any
Agent, as the case may be, which Taxes would not have been
incurred or payable if such Participant had been a Lender that
had complied with the requirements of subsection 4.1(f)
(including subsection 4.1(f)(iii)).
(e) Notwithstanding any other provision in this
Agreement, any Lender may at any time create a security interest
in, or pledge, all or any portion of its rights under and
interest in this Agreement and any Note held by it in favor of
any U.S. Federal Reserve Bank in accordance with Regulation A and
any Operating Circular issued by such U.S. Federal Reserve Bank.
No such assignment shall release the assigning Lender from its
obligations hereunder.
(f) Each Credit Agreement Loan Party shall and shall
cause each of its Subsidiaries to assist any Lender in
effectuating any assignment or participation pursuant to this
subsection 11.8(f) (including during syndication) in whatever
manner such Lender reasonably deems necessary, including the
participation in meetings with prospective Assignees.
11.9. Confidentiality. (a) Each of the Lenders
agrees that it will use its reasonable efforts not to disclose
without the prior consent of the Borrowers (other than to its
employees, auditors, counsel or other professional advisors, to
Affiliates or to another Lender if the Lender or such Lender's
holding or parent company in its sole discretion determines that
any such party should have access to such information) any
information with respect to the Borrowers or any of their
Subsidiaries which is furnished pursuant to this Agreement;
provided, however, that any Lender may disclose any such
information (i) as has become generally available to the public,
(ii) as may be required or appropriate in any report, statement
or testimony submitted to any municipal, state, provincial or
U.S. Federal or foreign regulatory body having or claiming to
have jurisdiction over such Lender or to the U.S. Federal Reserve
Board or the U.S. Federal Deposit Insurance Corporation or the
NAIC or similar organizations (whether in the United States or
elsewhere) or their successors, (iii) as may be required or
appropriate in response to any summons or subpoena or in
connection with any litigation (provided that, where practicable,
the Borrowers shall be afforded prior notice thereof and a
reasonable opportunity to contest such summons or subpoena; it
being understood, however, that the Agents and Lenders shall be
permitted in any event to comply with such summons or subpoena),
(iv) to comply with any law, order, regulation or ruling
applicable to such Lender, (v) to any prospective transferee in
connection with any contemplated transfer of any of the Notes or
any interest therein by such Lender; provided, however, that the
transferring Lender shall use reasonable efforts to procure that
such prospective transferee (unless it is a Lender) executes an
agreement with such Lender containing provisions substantially
identical to those contained in this Section 11.9, and (vi) to
any direct or indirect contractual counterparties in swap
agreements or such contractual counterparties' professional
advisors provided that such contractual counterparty or
professional advisor to such contractual counterparty agrees in
writing to keep such information confidential to the same extent
required of the Lenders hereunder.
(b) Each Credit Agreement Loan Party hereby
acknowledges and agrees that each Lender may share with any of
its Affiliates any information related to any Credit Agreement
Loan Party or any of its Subsidiaries (including, without
limitation, any nonpublic customer information regarding the
creditworthiness of any Credit Agreement Loan Party and its
Subsidiaries, provided that such Persons shall be subject to the
provisions of this Section 11.9 to the same extent as such
Lender).
(c) Notwithstanding anything herein to the contrary,
each Credit Agreement Loan Party hereby acknowledges and agrees
that each Lender may share any information with respect to any
Credit Agreement Loan Party or any of its Subsidiaries furnished
pursuant to this Agreement to any Person which shares or bears,
whether directly or indirectly, such Lender's economic benefits
or burdens hereunder; provided, however, that such Person shall
be subject to the provisions of this Section 11.9 to the same
extent as such Lender.
11.10. Set-off. In addition to any right or remedy
of the Lenders now or hereafter provided by law, and not by way
of limitation of any such right or remedy, during the continuance
of an Event of Default such Lender is authorized at any time and
from time to time, without prior notice to any Credit Agreement
Loan Party, any such notice being waived by the Credit Agreement
Loan Parties to the fullest extent permitted by law, to set off
and to appropriate and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held
by, and other indebtedness at any time owing by, such Lender
(including by branches and agencies of such Lender wherever
located) to or for the credit or the account of the applicable
Credit Agreement Loan Party against such amount, irrespective of
whether or not any Agent or such Lender shall have made demand
under this Agreement or any Loan Document, including all
interests in Obligations of such Loan Party purchased by such
Lender pursuant to Section 2.19 and all other claims of any
nature or description arising out of or connected with any Loan
Document, irrespective of whether or not such Lender shall have
made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or
unmatured. Each Lender agrees promptly to notify the applicable
Credit Agreement Loan Party and the Agents after any such set-off
and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such
set-off and application.
11.11. Notification of Addresses, Lending Offices,
etc. Each Lender shall notify the Agents in writing of any
change in the address to which notices to such Lender should be
directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the
Agents shall reasonably request.
11.12. Counterparts. This Agreement may be executed
in any number of separate counterparts, each of which, when so
executed, shall be deemed an original, and all of which taken
together shall be deemed to constitute but one and the same
instrument. Any of the parties hereto may execute this Agreement
by signing any such counterpart.
11.13. Severability; Modification to Conform to Law.
It is the intention of the parties that this Agreement be
enforceable to the fullest extent permissible under applicable
law, but that the unenforceability (or modification to conform to
such law) of any provision or provisions hereof shall not render
unenforceable, or impair, the remainder hereof. If any provision
of this Agreement shall be held invalid or unenforceable in whole
or in part in any jurisdiction, this Agreement shall, as to such
jurisdiction, be deemed amended to modify or delete, as
necessary, the offending provision or provisions and to alter the
bounds thereof in order to render it or them valid and
enforceable to the maximum extent permitted by applicable law,
without in any manner affecting the validity or enforceability of
such provision or provisions in any other jurisdiction or the
remaining provisions hereof in any jurisdiction.
11.14. No Third Parties Benefitted. This Agreement
is made and entered into for the sole protection and legal
benefit of the Credit Agreement Loan Parties, the Lenders, the
Agents and the Affiliates of the Agents, and their permitted
successors and assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect
cause of action or claim in connection with, this Agreement or
any other Loan Document.
11.15. Governing Law; Submission to Jurisdiction;
Venue. (a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL, EXCEPT AS OTHERWISE SET FORTH THEREIN, BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THEREOF.
Any legal action or proceeding with respect to this Agreement or
any other Loan Document may be brought in the courts of the State
of New York or of the United States for the Southern District of
New York and, by execution and delivery of this Agreement, each
Loan Party hereby irrevocably accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction
of the aforesaid courts. Each Loan Party hereby further
irrevocably waives any claim that any such courts lack
jurisdiction over such Loan Party, and agrees not to plead or
claim, in any legal action or proceeding with respect to this
Agreement or any other Loan Document brought in any of the
aforesaid courts, that any such court lacks jurisdiction over
such Loan Party. Each Loan Party irrevocably consents to the
service of process in any such action or proceeding by the
mailing of copies thereof by registered or certified mail,
postage prepaid, to such Loan Party, at its address for notices
pursuant to Section 11.2, such service to become effective 30
days after such mailing. Each Loan Party hereby irrevocably
waives any objection to such service of process and further
irrevocably agrees not to plead or claim in any action or
proceeding commenced hereunder or under any other Loan Document
that service of process was in any way invalid or in effective.
Nothing herein shall affect the right of any Agent, any Lender or
the holder of any Note to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise
proceed against any Loan Party in any other jurisdiction.
(b) Each Credit Agreement Loan Party on its own behalf
and each Borrower on behalf of each other Loan Party hereby
irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid proceedings
arising out of or in connection with this Agreement or any other
Loan Document brought in the courts referred to in clause (a)
above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such proceeding brought
in any such court has been brought in an inconvenient forum.
11.16. Waiver of Jury Trial. Each of the parties to
this Agreement hereby irrevocably waives all right to a trial by
jury in any proceeding or counterclaim arising out of or relating
to this Agreement, any other Loan Document or any of the
transactions contemplated hereby or thereby. In the event of
litigation, this Agreement may be filed as a written consent to a
trial by the court.
11.17. Judgment. If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum due
hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could
purchase the first currency with such other currency on the
Business Day preceding that on which final judgment is given.
The obligation of each Credit Agreement Loan Party in respect of
any such sum due from it to the Administrative Agent hereunder or
under any other Loan Document shall, notwithstanding any judgment
in a currency (the "Judgment Currency") other than that in which
such sum is denominated in accordance with the applicable
provisions of this Agreement (the "Agreement Currency"), be
discharged only to the extent that on the Business Day following
receipt by the Applicable Agent of any sum adjudged to be so due
in the Judgment Currency, such Agent may in accordance with
normal banking procedures purchase the Agreement Currency with
the Judgment Currency. If the amount of the Agreement Currency
so purchased is less than the sum originally due to the
Applicable Agent in the Agreement Currency, each Credit Agreement
Loan Party agrees, as a separate obligation and notwithstanding
any such judgment, to indemnify such Agent or the Person to whom
such obligation was owing against such loss. If the amount of
the Agreement Currency so purchased is greater than the sum
originally due to the Applicable Agent in such currency, such
Agent agrees to return the amount of any excess to the applicable
Credit Agreement Loan Party (or to any other Person who may be
entitled thereto under applicable law).
11.18 Prior Understandings. This Agreement,
together with the other Loan Documents, embodies the entire
agreement and understanding among the Credit Agreement Loan
Parties, the Lenders and the Agents, and supersedes all prior or
contemporaneous agreements and understandings of such Persons,
verbal or written, relating to the subject matter hereof and
thereof, except that as between the Loan Parties and the Arranger
and the Agent the following shall continue to remain in effect:
(a) the Commitment Letter (other than (A) the Term Sheet (as
defined in the Commitment Letter) and (B) the commitments of
Merrill Lynch Capital Corporation thereunder), and (b) the Fee
Letters.
11.19. Survival. The obligations of the Credit
Agreement Loan Parties under Article IV and Sections 11.4, 11.15
and 11.16 shall survive the repayment of the Loans and other
Obligations and the termination of the Commitments and, in the
case of any Lender that may assign any interest in its
Commitments, Loans or Letter of Credit interest hereunder, shall
survive the making of such assignment, notwithstanding that such
assigning Lender may cease to be a "Lender" hereunder.
11.20. CH Foreign Subsidiary Mortgages.
Notwithstanding anything else herein to the contrary, after the
Original Closing Date, in order to reduce or eliminate the
potential imposition of withholding taxes, at CH Borrower's
request, the Agent shall permit Mortgages with respect to
Mortgaged Properties securing any Foreign Subsidiary Guarantee to
be released and to be replaced by Mortgages in favor of CH
Borrower securing intercompany indebtedness owed from the
applicable Foreign Subsidiary Guarantor to CH Borrower; provided,
however, that (i) such intercompany indebtedness is pledged by CH
Borrower to secure its Obligations hereunder pursuant to the
Securities Pledge Agreement entered into by CH Borrower and the
documents evidencing such intercompany indebtedness and such
Mortgages are delivered to the Administrative Agent; (ii) the
Administrative Agent receives opinions of counsel satisfactory to
the Administrative Agent with respect to the validity, binding
effect and enforceability of such mortgages and the perfection of
the security interest created by such mortgages, which opinions
of counsel shall be substantially equivalent in form and
substance to the opinions of counsel delivered with respect to
the Mortgages being replaced; and (iii) all other matters
relating to such transactions shall be in form and substance
reasonably satisfactory to the Administrative Agent and its
counsel and the Loan Parties shall take all action and execute
all such documents and instruments as are reasonably requested by
the Administrative Agent to provide for the security interest
therein of the Lenders. The Administrative Agent and the Lenders
shall take all actions, at the expense of the Borrowers,
reasonably requested by the Borrowers to effect such
transactions.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
METTLER-TOLEDO, INC. (the survivor of
the merger of MT Acquisition Corp.
and Mettler-Toledo, Inc.), as a Borrower
By: /s/ William P. Donnelly
--------------------------------
Name: William P. Donnelly
Title:
METTLER-TOLEDO HOLDING AG,
as a Borrower
By: /s/ William P. Donnelly
--------------------------------
Name: William P. Donnelly
Title:
METTLER-TOLEDO HOLDING INC.,
as Guarantor
By: /s/ William P. Donnelly
--------------------------------
Name: William P. Donnelly
Title:
SAFELINE HOLDING COMPANY,
as UK Borrower and as a Subsidiary
Swing Line Borrower
By: /s/ William P. Donnelly
--------------------------------
Name: William P. Donnelly
Title:
METTLER-TOLEDO INC.,
as Canadian Borrower
By: /s/ William P. Donnelly
--------------------------------
Name: William P. Donnelly
Title:
METTLER TOLEDO MANAGEMENT HOLDING
DEUTSCHLAND GMBH, as a
Subsidiary Swing
Line Borrower
By: /s/ William P. Donnelly
--------------------------------
Name: William P. Donnelly
Title:
METTLER-TOLEDO S.A., VEROFLAY,
as a Subsidiary Swing Line Borrower
By: /s/ William P. Donnelly
--------------------------------
Name: William P. Donnelly
Title:
METTLER-TOLEDO K.K., TAKARAZUKA,
as a Subsidiary Swing Line Borrower
By: /s/ William P. Donnelly
--------------------------------
Name: William P. Donnelly
Title:
METTLER-TOLEDO GMBH, GREIFENSEE,
as a Subsidiary Swing Line Borrower
By: /s/ William P. Donnelly
--------------------------------
Name: William P. Donnelly
Title:
METTLER-TOLEDO LTD., LEICESTER,
as a Subsidiary Swing Line Borrower
By: /s/ William P. Donnelly
--------------------------------
Name: William P. Donnelly
Title:
SAFELINE LIMITED,
as a Subsidiary Swing Line Borrower
By: /s/ Lukas Braunschweiler
--------------------------------
Name: Lukas Braunschweiler
Title:
MERRILL LYNCH & CO., MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED,
as Arranger and Documentation Agent
By: /s/ Christopher K. Stout
--------------------------------
Name: Christopher K. Stout
Title: Vice President
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By: /s/ Todd Meller
--------------------------------
Name: Todd Meller
Title: Senior Relationship Manager
THE BANK OF NOVA SCOTIA,
as Canadian Agent
By: /s/ Stephen P. Heart
--------------------------------
Name: Stephen P. Heart
Title: Vice President and Unit Head
CREDIT SUISSE FIRST BOSTON,
as Co-Agent
By: /s/ Karl Studer
--------------------------------
Name: Karl Studer
Title: Director
LEHMAN COMMERCIAL PAPER INC.,
as Co-Agent
By: /s/ Michele Swanson
--------------------------------
Name: Michele Swanson
Title: Authorized Signatory
MERRILL LYNCH CAPITAL CORPORATION,
as a Lender
By: /s/ Christopher K. Stout
----------------------------------
Name: Christopher K. Stout
Title: Vice President
MERRILL LYNCH, PIERCE, FENNER & SMTIH
INCORPORATED, as a Lender
By: /s/ Neil Brisson
----------------------------------
Name: Neil Brisson
Title:
CREDITANSTALT-BANKVEREIN,
as a Lender
By: /s/ Christina T. Schoen
----------------------------------
Name: Christina T. Schoen
Title: Vice President
By: /s/ Richard P. Buckanavage
----------------------------------
Name: Richard P. Buckanavage
Title: Vice President
CRESTAR BANK,
as a Lender
By: /s/ Linda L. Bergmann
----------------------------------
Name: Linda L. Bergmann
Title: Vice President
DG BANK,
as a Lender
By: /s/ Norah McCann
----------------------------------
Name: Norah McCann
Title: Senior Vice President
By: /s/ Karen A. Brinkman
----------------------------------
Name: Karen A. Brinkman
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
as a Lender
By: /s/ Karen Studer
----------------------------------
Name: Karl Studer
Title: Director
By: /s/ Martin Lasance
----------------------------------
Name: Martin Lasance
Title: Associate
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Lender
By: /s/ Paul P. Malecki
----------------------------------
Name: Paul P. Malecki
Title: Vice President
CREDIT AGRICOLE,
as a Lender
By: /s/ David Bouhl
----------------------------------
Name: David Bouhl
Title: F.V.P., Head of Corporate
Banking, Chicago
TCW ASSET MANAGEMENT COMPANY,
as Attorney-in-Fact for Integon
Life Insurance Corporation, as a Lender
By: /s/ Justin Driscoll
----------------------------------
Name: Justin Driscoll
Title: Vice President
TCW ASSET MANAGEMENT COMPANY,
as Attorney-in-Fact for United Companies Life
Insurance Corporation, as a Lender
By: /s/ Justin Driscoll
----------------------------------
Name: Justin Driscoll
Title: Vice President
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company
Its Investment Manager, as a Lender
By: /s/ Justin Driscoll
----------------------------------
Name: Justin Driscoll
Title: Vice President
COMMERZBANK AG, New York
and/or Grand Cayman Branches, as a Lender
By: /s/ Andreas Schwung
----------------------------------
Name: Andreas Schwung
Title: Vice President
By: /s/ Andrew R. Campbell
----------------------------------
Name: Andrew R. Campbell
Title: Assistant Treasurer
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY, as a Lender
By: /s/ Takuya Honjo
----------------------------------
Name: Takuya Honjo
Title: Senior Vice President
PRIME INCOME TRUST,
as a Lender
By: /s/ Rafael Scolari
----------------------------------
Name: Rafael Scolari
Title: Vice President, Portfolio Manager
METROPOLITAN LIFE INSURANCE COMPANY,
as a Lender
By: /s/ James R. Dingler
----------------------------------
Name: James R. Dingler
Title: Assistant Vice President
UNITED OF OMAHA LIFE INSURANCE
COMPANY, as a Lender
By: /s/ Edwin H. Garrison Jr.
----------------------------------
Name: Edwin H. Garrison Jr.
Title: First Vice President
ABN AMRO BANK N.V.,
as a Lender
By: /s/ J. Gregory Seibly
----------------------------------
Name: J. Gregory Seibly
Title: Vice President
By: /s/ Kathryn C. Toth
----------------------------------
Name: Kathryn C. Toth
Title: Group Vice President
and Operating Manager
CAMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE, as a Lender
By: /s/ Sean Mounier
----------------------------------
Name: Sean Mounier
Title: First Vice President
By: /s/ Brian O'Leary
----------------------------------
Name: Brian O'Leary
Title: Vice President
PILGRIM AMERICA PRIME RATE TRUST,
as a Lender
By: /s/ Michael J. Bacevich
----------------------------------
Name: Michael J. Bacevich
Title: Vice President
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (a unit of the Chase Manhattan
Bank), as a Lender
By: /s/ Joyce C. DeLucca
----------------------------------
Name: Joyce C. DeLucca
Title: Managing Director
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ Todd Meller
----------------------------------
Name: Todd Meller
Title: Senior Relationship Manager
BANKBOSTON, N.A.,
as a Lender
By: /s/ Diane J. Exter
----------------------------------
Name: Diane J. Exter
Title: Managing Director
KEYPORT LIFE INSURANCE COMPANY,
as a Lender
By: /s/ Daniel T.H. Yin
----------------------------------
Name: Daniel T. H. Yin
Title: Assistant Vice President
PNC BANK, OHIO, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Toby B. Rau
----------------------------------
Name: Toby B. Rau
Title: Assistant Vice President
NATIONAL WESTMINSTER BANK Plc,
as a Lender
By: /s/ Phillip Krall
----------------------------------
Name: Phillip Krall
Title: Vice President
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, as a Lender
By: /s/ Andrew C. Dickey
----------------------------------
Name: Andrew C. Dickey
Title: Managing Director
BANQUE FRANCAISE du COMMERCE
EXTERIEUR, as a Lender
By: /s/ Kevin Dorley
----------------------------------
Name: Kevin Dorley
Title: Vice President
By: /s/ William C. Maier
----------------------------------
Name: William C. Maier
Title: Vice President-Group Manager
LTCB TRUST COMPANY,
as a Lender
By: /s/ Shuichi Tajima
----------------------------------
Name: Shuichi Tajima
Title: Senior Vice President
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.
its General Partner
By: Oak Hill Securities MGP, Inc.
its General Partner
By: /s/ Scott D. Krase
----------------------------------
Name: Scott D. Krase
Title: Vice President
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY, as a Lender
By: /s/ Richard A. Strait
----------------------------------
Name: Richard A. Strait
Title: Vice President
THE FUJI BANK AND TRUST COMPANY,
as a Lender
By: /s/ Toshiaki Yakura
----------------------------------
Name: Toshiaki Yakura
Title: Executive Vice President
INDOSUEZ CAPITAL FUNDING III, LIMITED,
by Indosuez Capital Luxembourg,
as Collateral Manager
By: /s/ Philipp Debin
----------------------------------
Name: Philipp Debin
Title: Authorized Signatory
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST, as a Lender
By: /s/ Jeffrey W. Maillet
----------------------------------
Name: Jeffrey W. Maillet
Title: Senior Vice President and
Director
UNION DES BANQUES SUISSES
(Luxembourg) S.A., as a Lender
By: /s/ Wolfgang Schwartzkopf
----------------------------------
Name: Wolfgang Schwartzkopf
Title:
KZH HOLDING CORPORATION,
as a Lender
By: /s/ Andrew Taylor
----------------------------------
Name: Andrew Taylor
Title: Authorized Agent
ML CBO IV (CAYMAN) LTD.,
By: Protective Asset Management, L.L.C.
as Collateral Manager, as a Lender
By: /s/ James Dondero
----------------------------------
Name: James Dondero
Title: President, Protective Asset
Management, L.L.C.
NEW YORK LIFE INSURANCE COMPANY,
as a Lender
By: /s/ Steven M. Benevento
----------------------------------
Name: Steven M. Benevento
Title: Investment Manager
MERITA BANK LTD., New York Branch,
as a Lender
By: /s/ Frank Mapps
----------------------------------
Name: Frank Mapps
Title: Vice President
By: /s/ Charles Fester
----------------------------------
Name: Charles Fester
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as a Lender
By: /s/ Patricia Loret de Mola
----------------------------------
Name: Patricia Loret de Mola
Title: Senior Vice President
BANQUE PARIBAS,
as a Lender
By: /s/ Mary Finnegan
----------------------------------
Name: Mary Finnegan
Title: Group Vice President
By: /s/ Robert Carino
----------------------------------
Name: Robert Carino
Title: Vice President
LEHMAN COMMERCIAL PAPER INC.,
as a Lender
By: /s/ Michele Swanson
----------------------------------
Name: Michele Swanson
Title: Authorized Signatory
SOCIETE GENERALE,
as a Lender
By: /s/John J. Wagner
----------------------------------
Name: John J. Wagner
Title: Vice President
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C> <C> <C>
<PERIOD-TYPE> 3-MOS YEAR YEAR
<FISCAL-YEAR-END> DEC-31-1997 DEC-31-1996 DEC-31-1995
<PERIOD-END> MAR-31-1997 DEC-31-1996 DEC-31-1995
<CASH> 40,599 60,696 41,402
<SECURITIES> 0 0 0
<RECEIVABLES> 159,124 159,549 168,510
<ALLOWANCES> (6,928) (8,388) (9,292)
<INVENTORY> 104,474 102,526 110,986
<CURRENT-ASSETS> 323,163 339,216 372,327
<PP&E> 255,076 262,429 460,973
<DEPRECIATION> (16,857) (7,137) (219,955)
<TOTAL-ASSETS> 728,891 771,888 724,094
<CURRENT-LIABILITIES> 236,584 255,269 281,587
<BONDS> 0 0 0
0 0 0
0 0 0
<COMMON> 0 25 0
<OTHER-SE> 2,982 12,401 193,254
<TOTAL-LIABILITY-AND-EQUITY> 728,891 771,888 724,094
<SALES> 197,402 849,133 850,415
<TOTAL-REVENUES> 197,402 849,133 850,415
<CGS> 114,120 532,059 508,089
<TOTAL-COSTS> 114,120 532,059 508,089
<OTHER-EXPENSES> 76,659 425,350 304,933
<LOSS-PROVISION> (614) 467 3,287
<INTEREST-EXPENSE> 9,446 22,606 18,219
<INCOME-PRETAX> (2,209) (134,923) 27,804
<INCOME-TAX> (1,087) 9,117 8,782
<INCOME-CONTINUING> (1,122) (144,585) 18,254
<DISCONTINUED> 0 0 0
<EXTRAORDINARY> 0 0 0
<CHANGES> 0 0 0
<NET-INCOME> (1,122) (144,585) 18,254
<EPS-PRIMARY> 0.00 (59.51) 0.00
<EPS-DILUTED> 0.00 (59.51) 0.00
</TABLE>
