UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-K
(MARK ONE)
|X| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
OR
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
FOR THE TRANSITION PERIOD FROM _______ TO _______
COMMISSION FILE NUMBER 0-22493
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METTLER-TOLEDO INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3668641
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
IM LANGACHER
P.O. BOX MT-100
CH 8606 GREIFENSEE, SWITZERLAND
(Address of principal executive (Zip Code)
offices)
011-41-1-944-22-11
(Registrant's telephone number, including area code)
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Securities registered pursuant to Section 12(b) of the Act:
Name of each
exchange
Title of each class on which registered
------------------- -------------------
Common Stock, $.01 par New York Stock
value Exchange
Securities registered pursuant to Section 12(g) of the Act: NONE
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Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or such shorter
period that the Registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K (ss. 229.405 of this chapter)
is not contained herein, and will not be contained, to the best of
Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K.[ ]
As of March 5, 1998 there were 38,336,015 shares of the
Registrant's Common Stock, $0.01 par value per share, outstanding. The
aggregate market value of the shares of common stock held by
non-affiliates of the Registrant (based on the closing price for the
Common Stock on the New York Stock Exchange on March 5, 1998) was
approximately $738,502,073. For purposes of this computation, shares
held by affiliates and by directors of the Registrant have been
excluded. Such exclusion of shares held by directors is not intended,
nor shall it be deemed, to be an admission that such persons are
affiliates of the Registrant.
DOCUMENTS INCORPORATED BY REFERENCE
DOCUMENT PART OF FORM 10-K
PROXY STATEMENT FOR 1998 INTO WHICH INCORPORATED
ANNUAL MEETING OF STOCKHOLDERS PART III
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METTLER-TOLEDO INTERNATIONAL INC.
ANNUAL REPORT ON FORM 10-K
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
PAGE
PART I
ITEM 1.
BUSINESS....................................................1
ITEM 2.
PROPERTIES.................................................13
ITEM 3. LEGAL
PROCEEDINGS................................................14
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY
HOLDERS....................................................14
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND
RELATED STOCKHOLDER MATTERS................................15
ITEM 6. SELECTED FINANCIAL
DATA.......................................................17
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS..............19
ITEM 7A QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET
RISK.......................................................29
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA................29
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL DISCLOSURE.....................29
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT ........30
ITEM 11. EXECUTIVE COMPENSATION.....................................31
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT.................................................32
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.............32
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON
FORM 8-K...................................................33
SIGNATURES..........................................................34
The "Company" or "Mettler-Toledo" as used herein means
Mettler-Toledo International Inc. and its subsidiaries.
This Annual Report on Form 10-K contains forward-looking
statements. These statements are subject to a number of risks and
uncertainties, certain of which are beyond the Company's control. See
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" and Exhibit 99.1 hereto. Mettler-Toledo(R),
Mettler(R), Ingold(R), Garvens(R), Ohaus(R), DigiTol(R) and
Safeline(R) are registered trademarks of the Company and
Brickstone(TM), Spider(TM), Mentor SC(TM), MultiRange(TM),
TRUCKMATE(TM), Signature(TM) and Powerphase(TM) are trademarks of the
Company.
PART I
ITEM 1. BUSINESS
GENERAL
Mettler-Toledo is a leading global supplier of precision
instruments. The Company is the world's largest manufacturer and
marketer of weighing instruments for use in laboratory, industrial and
food retailing applications. In addition, the Company holds one of the
top three market positions in several related analytical instruments
such as titrators, thermal analysis systems, pH meters, automatic lab
reactors and electrodes. Through its recent acquisition (the "Safeline
Acquisition") of Safeline Limited ("Safeline"), the Company is also
the world's largest manufacturer and marketer of metal detection
systems for companies that produce and package goods in the food
processing, pharmaceutical, cosmetics, chemicals and other industries.
The Company focuses on high value-added segments of its markets by
providing innovative instruments, by integrating these instruments
into application-specific solutions for customers, and by facilitating
the processing of data gathered by its instruments and the transfer of
this data to customers' management information systems. Mettler-Toledo
services a worldwide customer base through its own sales and service
organization and has a global manufacturing presence in Europe, the
United States and Asia. The Company generated 1997 net sales of $878.4
million which were derived 45% in Europe, 42% in North and South
America and 13% in Asia and other markets. For additional financial
information by geographic segment, see Note 16 to the Consolidated
Financial Statements included elsewhere in this Form 10-K (the
"Consolidated Financial Statements").
The Company believes that in 1997 the global market for the
Company's products and services was approximately $6.0 billion. In the
weighing instruments market, Mettler-Toledo is the only company to
offer products for laboratory, industrial and food retailing
applications throughout the world and believes that it holds a market
share more than two times greater than that of its nearest competitor.
The Company believes that in 1997 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 the number two position 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 also holds one of the top three global market
positions in several analytical instruments such as titrators, thermal
analysis systems, electrodes, pH meters and automatic lab reactors.
The Company recently enhanced its leading positions in precision
instruments through the addition of Safeline's market leading metal
detection products, which can be used in conjunction with the
Company's checkweighing instruments for important quality and safety
checks in the food processing, pharmaceutical, cosmetics, chemicals
and other industries. 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 Instruments 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. 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 the Company's
existing geographic markets and products. 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 Company was incorporated in December 1991, and was
recapitalized in connection with the October 15, 1996 acquisition of
the Mettler-Toledo Group from Ciba-Geigy AG ("Ciba") in a transaction
(the "Acquisition") sponsored by management and AEA Investors Inc.
("AEA Investors"). See Note 1 to the Consolidated Financial Statements
included herein for further information with respect to the
Acquisition. On May 30, 1997, the Company purchased Safeline, the
world's leading supplier of metal detection systems for companies that
produce and package goods in the food processing, pharmaceutical,
cosmetics, chemicals and other industries.
In November 1997, the Company completed its initial public
offering of shares of its Common Stock (the "Offering") at a price per
share equal to $14.00. The Offering, in which 7,666,667 shares
(including the underwriters' over-allotment option) were sold, raised
net proceeds, after underwriters' commission and expenses, of
approximately $97.3 million. The net proceeds from the Offering,
together with additional borrowings under the Company's Credit
Agreement, were used to repurchase the Company's Senior Subordinated
Notes and to pay related premiums and fees and expenses.
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, electrodes,
pH meters and automatic lab reactors, for laboratory applications in
research and development, quality assurance, production and education.
Laboratory products accounted for approximately 38% of the Company's
net sales in 1997 (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
producers worldwide of titrators, thermal analysis systems,
electrodes, pH meters and automatic lab reactors. The Company believes
it has the leading market share for laboratory balances in each of
Europe, the United States and Asia (excluding Japan) and the number
two position 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 generically 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, 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 branded products, the Company
also manufactures and sells balances under the brand name "Ohaus."
Ohaus branded products include mechanical 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 support and 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.
Automatic Lab Reactors and Reaction Calorimeters. Automatic
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. Automatic 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 $160.
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 instruments are among the most broadly used
measurement devices 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), metal detectors,
dimensioning equipment and scales for use in food retailing
establishments and specialized software systems for industrial and
perishable goods management 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 62% of the Company's net sales in 1997 (including
revenues from related after-sale service). The Company believes that
it has the largest market share in the industrial and food retailing
market in each of Europe and in the United States. In Asia, the
Company has a substantial, rapidly growing industrial and food
retailing business supported by an established manufacturing presence
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 scale
prices generally range from $20,000 to $50,000.
Dynamic Checkweighing. The Company offers solutions to
checkweighing requirements in the food processing, pharmaceutical,
chemicals 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.
Metal Detection Systems. Metal detection systems control the
removal of product that is identified as contaminated by metal during
the manufacturing process in the food processing, pharmaceutical,
cosmetics, chemicals and other industries. Metal detectors therefore
provide manufacturers with vital protection against metal
contamination arising from their own production processes or from use
of contaminated raw materials. Metal detectors are most commonly
utilized in conjunction with checkweighers as components of integrated
packaging lines in the food processing, pharmaceutical and other
industries. Prices for metal detection systems generally range from
$5,000 to $20,000.
Dimensioning Equipment. The Company recently introduced
automated dimensioning equipment that is utilized in the shipping
industry to measure package volumes. These products employ a patented
Parallel Infrared Laser Array ("PILAR") technology and are integrated
with industrial scales to combine volume-based and weight-based tariff
calculations. Prices for integrated dimensioning/weighing systems
range from $5,000 to $20,000.
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 delicatessen counter or at the checkout 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
1997 net sales derived 45% in Europe, 42% in North and South America
and 13% 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 2.6% of 1997 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. In addition, the Company began
to distribute laboratory products directly in certain other Asian
countries.
Ohaus branded products are generally positioned in
alternative distribution channels to those of Mettler-Toledo branded
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
branded 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), pharmaceutical companies (e.g.,
formulating and filling 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 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 the Company's modules into larger
process control applications, or comprehensive packaging lines. OEM
applications often include software content and technical support, as
the Company's modules 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 metal detection systems are typically food
processing, pharmaceutical, cosmetics and chemicals manufacturers who
must ensure that their products are free from contamination by metal
particles. Selling product that is contaminated by metal can have
severe consequences for these companies, resulting in potential
litigation and product recalls. Metal detection systems are most
commonly utilized in conjunction with checkweighers as components of
integrated packaging lines as important safety checks before food and
other products are delivered to customers. Other applications of metal
detection systems include pipeline detectors for dairy and other
liquids, gravity fall systems for grains and sugar and throat
detection systems for raw material monitoring.
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, direct sales slightly exceed distribution sales. Distributors
are highly fragmented in the U.S. 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 the Company's 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,
1997, this organization consisted of approximately 3,100 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 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 16% of the Company's
total net sales in 1997 (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 generating repeat sales. Moreover, the
Company believes that it has the largest installed base of weighing
instruments in the world. The close relationships and frequent contact
with its large customer base provide the Company with sales
opportunities and innovative product and application ideas. A global
service network also 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 represent 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
the Company's 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 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, 1997,
POs included approximately 4,000 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, analytical instruments and metal detectors. In addition,
the Company's in-house development is complemented by technology and
product development alliances with customers and OEMs.
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 $47.6 million on research and development
in 1997, $50.0 million in 1996 and $54.5 million in 1995 (excluding
research and development purchased in connection with the Acquisition
and the Safeline Acquisition). Including costs associated with
customer-specific engineering projects, which are included in cost of
sales for financial reporting purposes, the Company spent
approximately 5.7% of net sales on research and development in 1997.
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 seven manufacturing plants in the U.S., four
in Switzerland, two in Germany, one in the U.K. and two in China, of
which one is a joint venture in which the Company owns a 60% interest
and the other, the Shanghai facility, was completed and commenced
production of laboratory products at the end of 1996. Laboratory
products are produced mainly in Switzerland and to a lesser extent in
the United States and China, while industrial and food retailing
products are produced in all five countries. The Company's metal
detectors are produced in the U.K. The Company has manufacturing
expertise in sensor technology, precision machining and electronics,
as well as strength in software development. Furthermore, most of the
Company's manufacturing facilities have achieved ISO 9001
certification. 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, 1997, the Company had approximately 6,700
employees throughout the world, including more than 3,400 in Europe
and more than 2,500 in North and South America, and more than 800 in
Asia and other countries. 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
INTELLECTUAL PROPERTY
The Company holds more than 1,100 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,
implementation of a final remedy has not yet been completed, 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; Seaboard
Chemical Company Site, Jamestown, North Carolina; and the Stickney and
Tyler Landfills in Toledo, Ohio. 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 or taken steps to undertake 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 fragmented nature of certain of the
Company's weighing instruments markets, particularly the industrial
and food retailing weighing instruments 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 in its markets 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.
YEAR 2000 COMPLIANCE
Where necessary, the Company is in the process of modifying,
upgrading, or replacing its computer software applications and
internal information systems to accommodate the "year 2000" dating
changes necessary to permit correct recording of year dates for 2000
and later years. The Company does not expect that the cost of its year
2000 compliance program will be material to its business, financial
condition or results of operations. The Company believes that it will
be able to achieve compliance by the end of 1999, and does not
currently anticipate any material disruption in its operations as the
result of any failure by the Company to be in compliance. If any of
the Company's significant suppliers or customers do not successfully
and timely achieve year 2000 compliance, the Company's business or
operations could be adversely affected.
ITEM 2. 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(FN1) OWNED/LEASED
- - - -------- ------------------ ------------
Europe:
Greifensee/Nanikon, Production, Corporate Owned
Switzerland................. Headquarters
Uznach, Switzerland......... Production Owned
Urdorf, Switzerland......... Production Owned
Schwerzenbach, Switzerland.. Production Leased
Albstadt, Germany........... Production Owned
Giesen, 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
Manchester, England......... Production, Sales Leased
and Service
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
Tampa, Florida.............. Production, Sales and Leased
Service
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(FN2)....... Production Building Owned;
Land Leased
Melbourne, Australia..... Sales and Service Leased
- - - -------------------
[FN]
(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 joint venture in which the Company owns a 60%
interest.
</FN>
The Company believes its facilities are adequate for its
current and reasonably anticipated future needs.
ITEM 3. 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 Part I, Item 1 for information concerning legal
proceedings relating to certain environmental claims.
The Company has received a Notice of Proposed Adjustment
from the Internal Revenue Service disallowing $20.4 million of
intercompany interest deductions taken by the Company in its 1994 and
1995 tax returns when the Company was a subsidiary of Ciba. The
Company is indemnified under the acquisition agreement with Ciba
against any loss that may arise from the proposed adjustment. However,
the Company believes that such deductions were properly made and
intends to assist Ciba in contesting the proposed adjustment.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On October 15, 1997, the Company solicited written consents
from the holders of its Class B common stock to amend its Restated
Certificate of Incorporation (i) to change the corporate name of the
Company from MT Investors Inc. to Mettler-Toledo International Inc.
and (ii) to increase the authorized capital stock of the Company by an
additional 168,977 shares of Class A common stock. The Company
received written consents in favor of the amendment to its Restated
Certificate of Incorporation from holders of 100% of the Class B
common stock.
On October 15, 1997, the Company solicited written consents
from the holders of its Class B common stock to increase the number of
shares of common stock reserved for the Company's Stock Option Plan
and to approve an amended and restated stock option plan (the "1997
Amended and Restated 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 Company received written consents in favor of the amendment of the
Stock Option Plan and the 1997 Amended and Restated Stock Option Plan
from holders of 100% of the Class B common stock.
On November 13, 1997, the Company solicited written consents
from the holders of its Class B common stock to approve a merger
agreement providing for (i) the merger of the Company's wholly owned
subsidiary, Mettler-Toledo Holding Inc., with and into the Company
with the Company surviving, (ii) the conversion of each share of the
Company's existing Class A, Class B and Class C common stock into
12.58392 shares of the Company's Common Stock and (iii) the adoption
of the Company's Amended and Restated Certificate of Incorporation and
Amended By-laws (the "Reorganization"). The Company received written
consents in favor of the merger from holders of 100% of the Class B
common stock.
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
MARKET INFORMATION FOR COMMON STOCK
The Company's Common Stock, par value $.01 per share (the
"Common Stock"), is listed on the New York Stock Exchange under the
symbol "MTD." The following table sets forth the high and low sale
prices for the Common Stock as reported by the New York Stock Exchange
from November 19, 1997, the first day the Common Stock began trading
on the New York Stock Exchange through December 31, 1997.
High Low
---- ---
November 19, 1997 to December 31, 1997 $18-3/4 $14-3/4
HOLDERS
At March 5, 1998 there were 867 holders of record of Common
Stock and 38,336,015 shares of Common Stock outstanding.
DIVIDEND POLICY
The Company has never paid any dividends on its common stock
and does not anticipate paying any cash dividends on the Common Stock
in the foreseeable future. The current policy of the Company's Board
of Directors is to retain earnings to finance the operations and
expansion of the Company's business. In addition, the Company's Credit
Agreement restricts the Registrant's ability to pay dividends to its
shareholders. Any future determination to pay dividends will depend on
the Company's results of operations, financial condition, capital
requirements, contractual restrictions and other factors deemed
relevant by the Board of Directors.
RECENT SALES OF SECURITIES
1. On November 13, 1997, the Company's Registration
Statement on Form S-1 (the "Registration Statement") was declared
effective by the Securities and Exchange Commission (the
"Commission"). The Registration Statement (Commission File Number
333-35597) covered 38,336,801 shares of the Company's Common Stock,
with a proposed maximum aggregate offering amount of $613,388,816. On
November 13, 1997, a public offering (the "Public Offering") of the
Company's Common Stock was commenced, and in connection therewith,
7,666,667 shares of Common Stock (including the underwriters'
over-allotment option) were sold to the public for an aggregate
offering price of $107,333,338. The balance of the shares covered by
the Registration Statement were issued to holders of the Company's
Class A, Class B and Class C common stock upon conversion of such
shares of Class A, Class B and Class C common stock into shares of
Common Stock pursuant to a merger agreement between the Company and
Mettler-Toledo Holding Inc.
In connection with the Public Offering, the Company incurred
the following expenses:
Underwriting discounts and commissions $7,283,334
Other expenses (estimated) $2,776,518
----------
Total expenses $10,059,852
No portion of the above expenses was paid to (i)
directors or officers of the Company or to their associates; (ii)
persons owning 10% of more of any class of equity securities of the
issuer; or (iii) affiliates of the issuer. After deducting the
foregoing expenses, the net proceeds to the Company from the Public
Offering amounted to approximately $97,273,486. Such net proceeds were
used, together with additional borrowings under the Company's bank
credit agreement, to repay substantially all of the Company's then
outstanding indebtedness. The managing underwriters of the Public
Offering were Merrill Lynch & Co., BT Alex. Brown, Credit Suisse First
Boston and Goldman, Sachs & Co., and their international affiliates.
2. In April 1997, the Company issued 3,857 shares of common
stock for an aggregate consideration of approximately $300,000. 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. In
connection with the Merger, these shares converted into shares of
Common Stock.
ITEM 6. SELECTED FINANCIAL DATA
The selected historical financial information set forth
below at December 31, 1994, 1995, 1996 and 1997, for the years ended
December 31, 1993, 1994 and 1995, for the period from January 1, 1996
to October 14, 1996, for the period from October 15, 1996 to December
31, 1996, and for the year ended December 31, 1997 is derived from the
Company'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 combined historical data of the Predecessor Business
and the consolidated historical data of the Company are not comparable
in many respects due to the Acquisition and the Safeline Acquisition.
See Part II, Item 7, "Management's Discussion and Analysis of
Financial Condition and Results of Operations" below and the
consolidated financial statements and accompanying notes included
herein. The financial information presented below was prepared in
accordance with U.S. GAAP.
<TABLE>
<CAPTION>
METTLER-TOLEDO
PREDECESSOR BUSINESS INTERNATIONAL INC.
------------------------------------------------- ---------------------------
JANUARY 1 OCTOBER 15
YEAR ENDED DECEMBER 31, to to Year Ended
---------------------------------- OCTOBER 14, DECEMBER 31, DECEMBER 31,
1993 1994 1995 1996 1996 1997
---- ---- ---- ----------- ------------ ------------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
STATEMENT OF OPERATIONS
DATA:
<S> <C> <C> <C> <C> <C> <C>
Net sales ..................... $ 728,958 $ 769,136 $ 850,415 $ 662,221 $ 186,912 $ 878,415
Cost of sales ................. 443,534 461,629 508,089 395,239 136,820(FNb) 493,480(FNd)
---------- ---------- ---------- ---------- ---------- ----------
Gross profit .................. 285,424 307,507 342,326 266,982 50,092 384,935
Research and development ...... 46,438 47,994 54,542 40,244 9,805 47,551
Selling, general and
administrative .............. 209,692 224,978 248,327 186,898 59,353 260,397
Amortization .................. 2,917 6,437 2,765 2,151 1,065 6,222
Purchased research and
development ................. -- -- -- -- 114,070(FNc) 29,959(FNe)
Interest expense .............. 15,239 13,307 18,219 13,868 8,738 35,924
Other charges (income),
net(FNf) .................... 14,110 (7,716) (9,331) (1,332) 17,137 10,834
---------- ---------- ---------- ---------- ---------- ----------
Earnings (loss) before
taxes, minority interest
and extraordinary items .... (2,972) 22,507 27,804 25,153 (160,076) (5,952)
Provision for taxes ........... 3,041 8,676 8,782 10,055 (938) 17,489
Minority interest ............. 1,140 347 768 637 (92) 468
---------- ---------- ---------- ---------- ---------- ----------
Earnings (loss) before
extraordinary items ......... (7,153) 13,484 18,254 14,461 (159,046) (23,909)
Extraordinary items
- - - -- debt extinguishments ....... -- -- -- -- -- (41,197)(FNg)
---------- ---------- ---------- ---------- ---------- ----------
Net earnings (loss) ........... $ (7,153) $ 13,484 $ 18,254 $ 14,461 $ (159,046) $ (65,106)
========== ========== ========== ========== ========== ==========
Basic and diluted loss
per common share(FNh):
Loss per common
share before
extraordinary items ...... $ (5.18) $ (0.76)
Extraordinary items ........ -- (1.30)
---------- ----------
Loss per common share ...... $ (5.18) $ (2.06)
========== ==========
Weighted average number
of common shares ......... 30,686,065 31,617,071
BALANCE SHEET DATA (AT
END OF PERIOD)(FNa)
Cash and cash equivalents ..... $ 63,802 $ 41,402 $ 60,696 $ 23,566
Working capital ............... 132,586 136,911 103,697 79,163
Total assets .................. 683,198 724,094 771,888 749,313
Long-term third party debt .... 862 3,621 373,758 340,334
Net borrowing from
Ciba and affiliates(FNi) ..... 177,651 203,157 -- --
Other long-term
liabilities(FNj) ............. 83,964 84,303 96,810 91,011
Shareholders' equity(FNk) ..... 228,194 193,254 12,426 25,399
- - - -------------
<FN>
(a) Balance sheet information at December 31, 1993 is not available.
(b) In connection with the Acquisition, the Company allocated $32,194
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.
(c) In connection with the Acquisition, the Company allocated, based
upon independent valuations, $114,070 of the purchase price to
purchased research and development in process. This amount was
recorded as an expense immediately following the Acquisition.
(d) In connection with the Safeline Acquisition, the Company
allocated, $2,054 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 second quarter of 1997.
(e) In connection with the Safeline Acquisition, the Company
allocated, based upon independent valuations, $29,959 of the
purchase price to purchased research and development in process.
This amount was recorded as an expense immediately following the
Safeline Acquisition.
(f) Other charges (income), net generally includes interest income,
foreign currency transactions (gains) losses, (gains) losses from
sales of assets and other charges (income). In 1993, the amount
shown includes costs associated with the closure of a
manufacturing facility in Cologne, Germany, the restructuring of
certain manufacturing operations and an early retirement program
in the United States. For the period January 1, 1996 to October
14, 1996, the amount shown includes employee severance and other
exit costs associated with the closing of the Company's
Westerville, Ohio facility. For the period October 15, 1996 to
December 31, 1996, the amount shown includes employee severance
benefits associated with the Company's general headcount
reduction programs, in Europe and North America and the
realignment of the analytical and precision balance business in
Switzerland. For the period ended December 31, 1997, the amount
shown includes a restructuring charge of $6,300 to close three
facilities in North America. See Note 14 to the Consolidated
Financial Statements included herein.
(g) Represents charges for the write-off of capitalized debt issuance
fess and related expenses associated with the Company's previous
credit facilities as well as the prepayment premium on the Senior
Subordinated Notes and the write-off of the related capitalized
debt issuance fees.
(h) Effective December 31, 1997, the Company adopted the Statement of
Financial Accounting Standards Note 128, "Earnings per Share"
("SFAS 128"). Accordingly, basic and diluted loss per common
share data for each period presented have been determined in
accordance with the provisions of SFAS 128. Outstanding options
to purchase shares of common stock were not included in the
computation of diluted loss per common share for the periods
ended December 31, 1996 and 1997, as the effect is antidilutive.
(i) Includes notes payable and long-term debt payable to Ciba and
affiliates less amounts due from Ciba and affiliates.
(j) Consists primarily of obligations under various pension plans and
plans that provide post-retirement medical benefits. See Note 12
to the Consolidated Financial Statements included herein.
(k) Shareholders' equity for the Predecessor Business consists of the
combined net assets of the Mettler-Toledo Group.
</FN>
</TABLE>
ITEM 7. 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 Consolidated Financial Statements included
herein.
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 Consolidated Financial Statements included herein. Operating
results subsequent to the Acquisition and the Safeline Acquisition are
not comparable in many respects to the operating results prior to the
Acquisition and the Safeline Acquisition. Financial information is
presented in accordance with generally accepted accounting principles
in the United States of America.
The Company operates a global business, with net sales that
are diversified by geographic region, product range and customer. The
Company believes that it has achieved its market leadership positions
through its continued investment in product development, the
maintenance and, in some instances, expansion, of its existing
position in established markets and its pursuit of new markets. Net
sales in local currency (adjusted for the exit in 1996 and 1995 from
certain systems businesses) have increased in both the laboratory and
industrial and food retailing product lines, increasing by 11% in 1997
and by 3% and 6% in 1996 and 1995, respectively. Net sales in U.S.
dollars increased by 3% in 1997, as the strengthening of the U.S.
dollar versus the Company's major trading currencies reduced U.S.
dollar reported sales. Net sales in U.S. dollars were unchanged in
1996 and increased by 11% in 1995. The Company's growth in 1997 has
benefited from recent investments to establish distribution and
manufacturing infrastructure in certain emerging markets, particularly
in Asia. Net sales in Asia and other emerging markets in local
currency increased by 30% in 1997 over the prior year, despite
weakening economic conditions in the region. The Company believes that
its growth over the next several years will come primarily from (i)
the needs of customers in developed markets to continue to automate
their research and development and manufacturing processes, (ii) the
needs of customers in emerging markets to continue modernizing these
same processes through the use of increasingly sophisticated
instruments, and (iii) the pursuit of the Company's acquisition
strategy.
During the periods presented, the Company increased its
gross profit margins before non-recurring acquisition costs from 40.3%
in 1995 to 44.1% in 1997 and increased its Adjusted Operating Income
(gross profit less research and development and selling, general and
administrative expenses) before amortization and non-recurring costs
as a percentage of net sales from 4.6% in 1995 to 9.3% for 1997. These
increases were achieved despite the Company's continued investments in
product development and in its distribution and manufacturing
infrastructure. The Company believes that a significant portion of
these increases can be attributed to its strategy to reduce costs and
reengineer its operations. This strategy has a number of key elements,
such as ongoing efforts to direct more of its research and development
activities to the reduction of product costs, to reengineer
manufacturing, distribution, sales and administrative processes, and
to consolidate operations and re-deploy resources to lower cost
facilities. Examples of recent efforts to implement the different
elements of this strategy include the introduction of several products
in 1997 with significantly reduced manufacturing costs compared to
their predecessors, the closure of the Westerville, Ohio manufacturing
facility in 1996, completion of a targeted workforce reduction of
approximately 170 personnel, planned closure of three North American
facilities as described below and the opening of a new laboratory
manufacturing facility in Shanghai, China in 1997 with significant
production and research and development capabilities. The Company is
currently implementing several additional reengineering and cost
reduction projects, including the consolidation of worldwide precision
balance manufacturing, the restructuring of its ordering process,
product delivery and parts inventory management in Europe, the
realignment of industrial product manufacturing in Europe and the
consolidation of the Company's North American laboratory, industrial
and food retailing businesses into a single marketing organization.
On May 30, 1997, the Company acquired Safeline for
(pound)61.0 million (approximately $100.0 million at May 30, 1997),
plus up to an additional (pound)6.0 million (approximately $10.0
million at May 30, 1997) for a contingent earn-out payment. In October
1997, the Company made an additional payment, representing a
post-closing adjustment, of (pound)1.9 million (approximately $3.1
million at October 3, 1997). Such amount has been accounted for as
additional purchase price. Safeline, based in Manchester, U.K., is the
world's largest manufacturer and marketer of metal detection systems
for companies that produce and package goods in the food processing,
pharmaceutical, cosmetics, chemicals and other industries. Safeline's
metal detectors can also be used in conjunction with the Company's
checkweighing products for important quality and safety checks in
these industries. From 1992 to 1996, Safeline's sales increased at a
compounded annual growth rate of approximately 30%, in part due to the
introduction of new products such as the first digital electronic and
Zero Metal-Free Zone metal detectors. Safeline had net sales and
Adjusted Operating Income of $40.4 million and $9.9 million,
respectively, for the year ended December 31, 1996. The Safeline
Acquisition was financed by (pound)47.3 million (approximately $77.4
million at May 30, 1997) loaned under a credit agreement together with
the issuance of (pound)13.7 million (approximately $22.4 million at
May 30, 1997) of seller loan notes which mature May 30, 1999.
In the third and fourth quarters of 1997, the Company
recorded restructuring charges totaling approximately $6.3 million.
These charges are in connection with the closure of three facilities
in North America and are comprised primarily of severance and other
related benefits and costs of exiting facilities, including lease
termination costs and write-down of existing assets to their expected
net realizable value. The Company expects these actions will be
substantially completed in 1998 and that the two owned facilities will
be sold after that period. In connection with the closure of these
facilities, the Company expects to involuntarily terminate
approximately 70 employees. The Company is undertaking these actions
as part of its efforts to reduce costs through reengineering. When
complete, these actions will enable the Company to close certain
operations and realize cost savings estimated at approximately $2.5
million on an annual basis. The Company also estimates that it will
receive, after 1998, upon the sale of the two facilities which the
Company owns proceeds in excess of $5.0 million. The Company believes
that the fair market value of these facilities approximates their
respective book values.
During the fourth quarter of 1997, the Company completed its
initial public offering of 7,666,667 shares of Common Stock, including
the underwriters' over-allotment option, (the "Offering") at a per
share price equal to $14.00. The Offering raised net proceeds, after
underwriters' commission and expenses, of approximately $97.3 million.
In connection with the Offering, the Company effected a merger by and
between it and its direct wholly owned subsidiary, Mettler-Toledo
Holding Inc., whereby Mettler-Toledo Holding Inc. was merged with and
into the Company (the "Merger"). In connection with the Merger, all
classes of the Company's previous outstanding common stock were
converted into 30,669,348 shares of a single class of Common Stock.
Concurrently with the Offering, the Company entered into a bank credit
agreement (the "Credit Agreement") borrowings from which, along with
the proceeds from the Offering, were used to repay substantially all
of the Company's then existing debt (collectively, the "Refinancing").
In connection with the Refinancing, the Company recorded an
extraordinary charge of $31.6 million, net of tax, principally for
prepayment premiums on certain debt repaid and for the write-off of
existing deferred financing fees. The Company also incurred a
non-recurring termination fee of $2.5 million in connection with the
termination of its management consulting agreement with AEA Investors
Inc. (the "Termination Fee").
RESULTS OF OPERATIONS
The following table sets forth certain items from the
consolidated statements of operations for the year ended December 31,
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 actual for the year ended December 31, 1997. The pro
forma 1996 information gives effect to the Acquisition, the Safeline
Acquisition, the Offering and the Refinancing as if such transactions
had occurred on January 1, 1996, and does not purport to represent the
Company's actual results if such transactions had occurred on such
date. The pro forma 1996 information reflects the historical results
of operations of the Predecessor Business for the period from January
1, 1996 to October 14, 1996 and the historical results of operations
of the Company for the period from October 15, 1996 to December 31,
1996, together with certain pro forma adjustments as described below.
The consolidated statement of operations data for the year ended
December 31, 1997 include Safeline results from May 31, 1997. The pro
forma 1996 information includes Safeline's historical results of
operations for all of 1996. The pro forma information is presented in
order to facilitate management's discussion and analysis.
<TABLE>
<CAPTION>
PREDECESSOR BUSINESS METTLER-TOLEDO INTERNATIONAL INC.
----------------------- ------------------------------------
FOR THE
FOR THE PERIOD
PERIOD OCT. 15, PRO FORMA
JAN. 1, 1996 1996 YEAR ENDED
YEAR 1996 TO DEC. (FNa)(FNb) DEC. 31,
ENDED DEC. TO OCT.14, 31, 1996 (FNc)(FNd) 1997
31, 1995 1996 (FNb)(FNc) (FNe) (FNb)(FNc)
---------- ---------- ---------- ---------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Net sales ............... $ 850,415 $ 662,221 $ 186,912 $ 889,567 $ 878,415
Cost of sales ........... 508,089 395,239 136,820 523,783 493,480
---------- ---------- ---------- ---------- ----------
Gross profit ............ 342,326 266,982 50,092 365,784 384,935
Research and development. 54,542 40,244 9,805 50,608 47,551
Selling, general and
administrative ......... 248,327 186,898 59,353 252,085 260,397
Amortization ............ 2,765 2,151 1,065 6,526 6,222
Purchased research and
development ............ -- -- 114,070 -- 29,959
Interest expense ........ 18,219 13,868 8,738 30,007 35,924
Other charges (income),
net(FNf) ............... (9,331) (1,332) 17,137 14,036 10,834
---------- ---------- ---------- ---------- ----------
Earnings (loss) before
taxes, minority
interest and
extraordinary items .... $ 27,804 $ 25,153 $ (160,076) $ 12,522 $ (5,952)
========== ========== ========== ========== ==========
Adjusted Operating
Income(FNg) ............. $ 39,457 $ 39,840 $ 17,912 $ 63,091 $ 81,541
========== ========== ========== ========== ==========
- - - ------------------
<FN>
(a) In giving effect to the Acquisition, the Safeline Acquisition,
the Offering and the Refinancing, the Pro Forma 1996 data
includes certain adjustments to historical results to reflect:
(i) an increase in interest expense resulting from
acquisition-related borrowings, which expense has been partially
offset by reduced borrowings following application of Offering
proceeds and a lower effective interest rate following the
Refinancing including the repayment of the Company's 9 3/4%
Senior Subordinated Notes, (ii) an increase in amortization of
goodwill and other intangible assets following the Acquisition
and the Safeline Acquisition, and (iii) changes to the provision
for taxes to reflect the Company's estimated effective income tax
rate at a stated level of pro forma earnings before tax for the
year ended December 31, 1996.
(b) In connection with the Acquisition and the Safeline Acquisition,
the Company allocated $32,194 and $2,054, respectively, of the
purchase prices to revalue certain inventories (principally
work-in-progress and finished goods) to fair value (net
realizable value). Substantially all such inventories revalued in
connection with the Acquisition were sold during the period
October 15, 1996 to December 31, 1996, and substantially all such
inventories revalued in connection with the Safeline Acquisition
were sold in the second quarter of 1997. The expense related to
inventory revalued in connection with the Acquisition has been
excluded from the 1996 pro forma information.
(c) In conjunction with the Acquisition and the Safeline Acquisition,
the Company allocated, based upon independent valuations,
$114,070 and $29,959, respectively, of the purchase prices to
purchased research and development in process. These amounts were
expensed immediately following the Acquisition and the Safeline
Acquisition, respectively. The amounts related to the Acquisition
and have been excluded from the 1996 pro forma information.
(d) Certain one-time charges incurred during 1996 have not been
excluded from the 1996 pro forma information. These charges
consist of certain non-recurring items for (i) advisory fees
associated with the reorganization of the Company's structure of
approximately $4,800 and (ii) restructuring charges of
approximately $12,600.
(e) Selling, general and administrative expense has been adjusted to
eliminate the AEA Investors annual management fee of $1,000,
payment of which was discontinued upon consummation of the
Offering.
(f) Other charges (income), net generally includes interest income,
foreign currency transactions (gains) losses, (gains) losses from
sales of assets and other charges (income). For the period
January 1, 1996 to October 14, 1996 the amount shown includes
employee severance and other exit costs associated with the
closing of its Westerville, Ohio facility. For the period October
15, 1996 to December 31, 1996 the amount shown includes employee
severance benefits associated with the Company's general
headcount reduction programs in Europe and North America, and the
realignment of the analytical and precision balance business in
Switzerland. For the year ended December 31, 1997 the amount
shown includes a restructuring charge of $6,300 to close three
facilities in North America. See Note 14 to the Consolidated
Financial Statements included herein.
(g) Adjusted Operating Income is operating income (gross profit less
research and development and selling, general and administrative
expenses) before amortization and non-recurring costs.
Non-recurring costs which have been excluded are those costs
associated with selling inventories revalued to fair value in
connection with the Acquisition and the Safeline Acquisition,
fees associated with the termination of the Company's management
consulting agreement with AEA Investors at the time of the
Offering of $2,500 in 1997 and advisory fees associated with the
reorganization of the Company's structure of approximately $4,800
in 1996.
</FN>
</TABLE>
Year Ended December 31, 1997 Compared to Pro Forma Year Ended
December 31, 1996
Net sales were $878.4 million for 1997, compared to pro
forma 1996 net sales of $889.6 million. As previously described, pro
forma 1996 includes a full year of Safeline's operating results, while
1997 only includes the operating results of Safeline from May 31,
1997. Net sales in local currencies during the year increased 11%
(excluding Safeline results from pro forma 1996) and 7% (excluding
Safeline results from both pro forma 1996 and actual 1997).
Net sales in local currencies in 1997 in Europe increased 6%
as compared to net sales in local currencies in pro forma 1996
(excluding Safeline results from pro forma 1996). Net sales in local
currencies during 1997 in the Americas increased 11%, principally due
to improved market conditions for sales to industrial and food
retailing customers. Net sales in local currencies in 1997 in Asia and
other markets increased 30%, primarily as a result of the
establishment of additional direct marketing and distribution in the
region. During the six months ended December 31, 1997, sales trends in
Europe were more favorable compared to sales trends in the first two
quarters of 1997. Overall, the Company's business in Asia and other
markets has remained solid. However, growth in net sales in Southeast
Asia and Korea (which collectively represent approximately 3% of the
Company's total net sales for 1997) has slowed, and the Company
anticipates that overall net sales growth in Asia will slow in 1998
and margins will be reduced. The Company believes Asia and other
emerging markets will continue to provide opportunities for growth in
the long-term based upon the movement toward international quality
standards, the need to upgrade mechanical scales to electronic
versions and the establishment of local production facilities by the
Company's multinational client base.
The operating results for Safeline (which as previously
noted were included in the Company's results from May 31, 1997) had
the effect of increasing the Company's net sales by $28.5 million for
1997. Additionally, Safeline's operating results had the effect of
increasing the Company's Adjusted Operating Income by $7.1 million for
the same period. The Company recorded non-cash purchase accounting
adjustments for purchased research and development ($30.0 million) and
the sale of inventories revalued to fair value ($2.1 million) during
such period.
Gross profit before non-recurring acquisition costs as a
percentage of net sales increased to 44.1% for 1997, compared to 41.1%
for pro forma 1996. Gross profit in 1997 includes the previously noted
$2.1 million non-cash charge associated with the excess of the fair
value over the historic value of inventory acquired in the Safeline
Acquisition. The improved gross profit percentage reflects 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.
Research and development expenses as a percentage of net
sales decreased to 5.4% for 1997, compared to 5.7% for pro forma 1996;
however, the local currency spending level remained relatively
constant period to period.
Selling, general and administrative expenses as a percentage
of net sales increased to 29.6% for 1997, compared to 28.3% for pro
forma 1996. This increase is primarily a result of establishing
additional direct marketing and distribution in Asia.
Adjusted Operating Income was $81.5 million, or 9.3% of net
sales in 1997 compared to $63.1 million, or 7.1% of net sales in pro
forma 1996, an increase of 29.2% (40.0% excluding Safeline results
from both pro forma 1996 and actual 1997). The 1997 period excludes
non-recurring costs of $2.1 million for the revaluation of inventories
to fair value in connection with the Safeline Acquisition and $2.5
million for the Termination Fee.
As previously noted, in connection with the Safeline
Acquisition, $30.0 million of the purchase price was attributed to
purchased research and development in process. Such amount was
expensed immediately following the Safeline Acquisition. The
technological feasibility of the products being developed had not been
established as of the date of the Safeline Acquisition. The Company
expects that the projects underlying these research and development
efforts will be substantially complete over the next two years.
Interest expense was $35.9 million for 1997, compared to
$30.0 million for pro forma 1996. The difference is principally due to
the fact that the pro forma 1996 information reflects a full year of
the benefits of reduced borrowing costs in connection with the
Company's Offering and Refinancing which occurred in November 1997.
Other charges, net of $10.8 million for 1997 includes
restructuring related charges of approximately $6.3 million and other
charges of approximately $3.5 million relating to (i) certain
financial derivative financial instruments acquired in 1996 and closed
in 1997 and (ii) foreign currency exchange losses resulting from
certain unhedged bank debt denominated in foreign currencies (such
derivative financial instruments and such unhedged bank debt are no
longer held pursuant to current Company policy). The decrease compared
to other charges, net of $14.0 million for pro forma 1996 is
principally a result of lower restructuring related charges in 1997
compared to pro forma 1996 ($6.3 million versus $12.6 million).
The significant increase in the Company's effective tax rate
in 1997 was primarily attributable to the nondeductibility of goodwill
and purchased research and development charges incurred in connection
with the Safeline Acquisition.
Net earnings before non-recurring items were $19.1 million
in 1997. Such non-recurring items in 1997 include the previously
mentioned charges for purchased research and development, the
revaluation of inventories to fair value, the Termination Fee, the
restructuring of North American operations and losses relating to
derivative financial instruments and unhedged bank debt denominated in
foreign currencies. Including these charges of $43.0 million after
taxes, the net loss before extraordinary items was $23.9 million for
1997 compared to net earnings of $5.0 million for pro forma 1996.
The extraordinary loss of $41.2 million in 1997 represents
charges for the early repayment premium on the senior subordinated
notes and the write-off of capitalized debt issuance fees associated
with the senior subordinated notes and previous credit facilities. See
"Liquidity and Capital Resources" under Part II, Item 7.
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 $889.6 million, or $849.1 million excluding Safeline
results, compared to actual net sales of $850.4 million in 1995. Net
sales (pro forma excluding Safeline) in local currency increased 3%,
excluding the impact of reductions 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 excluding Safeline) 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 (excluding
Safeline) 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 where the
Company has been able to retain its market share. This market weakness
has persisted in early 1997.
Net sales (pro forma excluding Safeline) 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 excluding Safeline) 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 excluding Safeline) 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 1996
gross profit was $365.8 million or $349.3 million (excluding Safeline
results). This compares to $342.3 million in actual 1995. 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" below.
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 1996 selling, general and administrative and research and
development expenses totaled $302.7 million or $296.1 million
excluding Safeline. This compares to $302.9 million in actual 1995.
Pro forma selling, general and administrative expenses and research
and development expenses as a percentage of net sales decreased to an
aggregate of 34.0% in 1996 from 35.6% 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. These cost
decreases were partially offset by non-recurring legal and advisory
fees of $4.8 million.
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.
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 $30.0 million in 1996 from $18.2 million
in actual 1995, principally due to a higher debt level as a result of
the Acquisition and the Safeline Acquisition. Interest expense since
the Acquisition and the Safeline Acquisition is materially different.
See "Liquidity and Capital Resources" below.
Other income, net for the period January 1, 1996 to October
14, 1996 of $1.3 million includes interest income of $3.4 million and
severance and other exit costs of $1.9 million associated with the
closing of its Westerville, Ohio facility. Other charges, net for the
period October 15, 1996 to December 31, 1996 of $17.1 million
principally represent (i) losses on foreign currency transactions of
$8.3 million of which $5.7 million were incurred in connection with
the Acquisition, (ii) employee severance benefits associated with the
Company's general headcount reduction programs in Europe and North
America of $4.6 million which were announced during such period, and
(iii) 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 approximately 170 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 it will
achieve cost savings in the range of $8.3 million. Such cost savings
consist primarily of lower employee salary and benefit costs and fixed
manufacturing costs. In addition, at the time of the Acquisition, the
Company estimated it would incur additional selling, general and
administrative expenses of $1.3 million annually as a result of the
Acquisition.
Earnings before taxes and minority interest for the period
from January 1, 1996 to October 14, 1996 were $25.2 million. Loss
before taxes and minority interest for the period from October 15,
1996 to December 31, 1996 was $160.1 million. This loss includes
non-recurring costs of $114.1 million for the allocation of purchase
price to in-process research and development projects, $32.2 million
for the revaluation of inventories to fair value, $9.9 million of
other charges (an additional $1.9 million of other charges was
incurred by the Predecessor Business in 1996) and $4.8 million for
non-recurring legal and advisory fees. Pro forma earnings before taxes
and minority interest would have been $12.5 million in 1996. Pro Forma
Adjusted Operating Income would have been $67.9 million in 1996, or
$58.0 million (excluding Safeline), compared to $39.5 million in
actual 1995.
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 $159.0 million. Pro forma net
earnings of $5.0 million in 1996 compared to net earnings of $18.3
million in actual 1995.
LIQUIDITY AND CAPITAL RESOURCES
In November 1997, the Company refinanced its previous credit
agreement and purchased all of its 9 3/4% Senior Subordinated Notes
due 2006 (the "Notes") pursuant to a tender offer with proceeds from
the Offering and additional borrowings under the Credit Agreement. The
Notes were originally issued in October 1996 at the time of the
Acquisition.
The Credit Agreement provides for term loan borrowings in
aggregate principal amounts of $101.6 million, SFr 85.5 million
(approximately $59.0 million at December 31, 1997) and (pound)21.7
million (approximately $36.2 million at December 31, 1997) that are
scheduled to mature in 2004, a Canadian revolver with availability of
CDN $26.3 million (approximately CDN $19.0 million of which was drawn
as of December 31, 1997) which is scheduled to mature in 2004, and a
multi-currency revolving credit facility with availability of $400.0
million (approximately $220.0 million was available at December 31,
1997) which is also scheduled to mature in 2004. The Company had
borrowings of $357.6 million under the Credit Agreement and $39.2
million under various other arrangements as of December 31, 1997.
Under the Credit Agreement, amounts outstanding under the term loans
amortize in quarterly installments. In addition, the Credit Agreement
obligates the Company to make mandatory prepayments in certain
circumstances with the proceeds of asset sales or issuance of capital
stock or indebtedness and with certain excess cash flow. The 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 Credit Agreement is secured by
certain assets of the Company. The Credit Agreement imposes certain
restrictions on the Company's ability to pay dividends to its
shareholders.
In connection with the Refinancing, the Company recorded an
extraordinary charge amounting to $31.6 million, principally for
prepayment premiums on its Notes and the write-off of capitalized debt
issuance fees. In addition, with the May 29, 1997 refinancing of its
previous credit facility, the Company recorded an extraordinary charge
of $9.6 million, representing a charge for the write-off of
capitalized debt issuance fees and related expenses associated with
the previous credit facility.
At December 31, 1997, approximately $102.0 million of the
borrowings under the Credit Agreement were denominated in U.S.
dollars. The balance of the borrowings under the Credit Agreement and
under local working capital facilities were also denominated in
certain of the Company's other principal trading currencies amounting
to approximately $295.0 million at December 31, 1997. 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. In addition, because the Company
borrows in a variety of currencies, its debt balances will fluctuate
due to changes in exchange rates. See "Effect of Currency on Results
of Operations" below.
The Acquisition was financed principally through capital
contributions of $190.0 million before related expenses from the
Company, borrowings under a previous credit agreement of $307.0
million and $135.0 million from the issuance of the Notes. The
Safeline Acquisition was financed by (pound)47.3 million ($77.4
million at May 30, 1997) loaned under the Company's previous credit
agreement together with the issuance of (pound)13.7 million ($22.4
million at May 30, 1997) of seller loan notes which mature May 30,
1999.
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 and the Safeline Acquisition, the annual interest
expense associated with increased borrowings, as well as scheduled
principal payments of term loans under the Credit Agreement, have
significantly increased the Company's liquidity requirements.
The Company's capital expenditures totaled $25.9 million in
1995, $29.4 million in pro forma 1996 and $22.3 million in actual
1997. 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 1998 are expected to increase over
1997 levels, but should remain consistent with earlier periods. In
connection with the transfer of the Japanese laboratory business from
a former agent to a subsidiary of the Company, the Company agreed to
make total payments of approximately SFr 8.0 million of which only
approximately SFr 1.0 million remains to be paid.
The Company's cash provided by operating activities was
$55.6 million in 1997 as compared to $62.5 million for the period
January 1, 1996 to October 14, 1996 and $9.6 million for the period
October 15, 1996 to December 31, 1996. The 1997 results include higher
interest costs resulting from the Acquisition and the Safeline
Acquisition.
At December 31, 1997, consolidated debt, net of cash, was
$373.2 million.
The Company continues to explore potential 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 are 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
consolidated financial statements. Accordingly, the results of
operations of such subsidiaries as reported in U.S. dollars can vary
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, whereas 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 translation effect on
earnings before interest and taxes of changes in exchange rates
between the U.S. dollar and other currencies described in the
preceding paragraph.
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/combined basis or (ii) on a consolidated/combined
basis only with other eligible entities subject to tax in the same
jurisdiction, in either case without regard to the taxable losses of
non-consolidated/combined affiliated entities. As a result, the
Company may pay income taxes to 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.
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 China, Latin
America and Eastern Europe, 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 China, Latin America and Eastern Europe 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
Prior to 1997, the Company entered 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. At December
31, 1997, all remaining derivative instruments met the requirements of
hedge accounting.
During 1997, the Company has entered into certain interest
rate swap and cap agreements. See Note 5 to the Consolidated Financial
Statements included herein.
New Accounting Standards
In June 1997, the Financial Accounting Standards Board
issued Statement of Financial Accounting Standards No. 130 ("SFAS
130"), "Reporting Comprehensive Income." SFAS 130 becomes effective
for fiscal years beginning after December 15, 1997 and requires
reclassification of earlier financial statements for comparison
purposes. SFAS 130 requires that changes in the amounts of certain
items, including foreign currency translation adjustments and gains
and losses on certain securities, be shown in the financial
statements. SFAS 130 does not require a specific format for the
financial statement in which comprehensive income is reported, but
does require that an amount representing total comprehensive income be
reported in that statement. Management has not yet determined the
effect of the adoption of SFAS 130.
Also in June 1997, the Financial Accounting Standards Board
issued Statement of Financial Accounting Standards No. 131 ("SFAS
131"), "Disclosures about Segments of an Enterprise and Related
Information." This Statement will change the way public companies
report information about segments of their business in annual
financial statements and requires them to report selected financial
information in their quarterly reports issued to shareholders. It also
requires entity-wide disclosures about products and services an entity
provides, the material countries in which it holds assets and reports
revenues, and its major customers. The Statement is effective for
fiscal years beginning after December 15, 1997. Management has not
determined the effect of the adoption of SFAS 131.
Forward-Looking Statements and Associated Risks
This Annual Report on Form 10-K includes forward-looking
statements that reflect the Company's current views with respect to
future events and financial performance, including capital
expenditures, planned product introductions, research and development
expenditures, potential future growth, including potential penetration
of developed markets and potential growth opportunities in emerging
markets, potential future acquisitions, potential cost savings from
planned employee reductions and restructuring programs, estimated
proceeds from and timing of asset sales, planned operational changes
and research and development efforts, strategic plans and future cash
sources and requirements. 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 Company undertakes
no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or
otherwise. These forward-looking statements are subject to a number of
risks and uncertainties, including the risk of substantial
indebtedness on operations and liquidity, risks associated with
currency fluctuations, risks associated with international operations,
highly competitive markets and technological developments, risks
relating to downturns or consolidation affecting the Company's
customers, risks relating to future acquisitions, risks associated
with reliance on key management, uncertainties associated with
environmental matters, risks relating to restrictions on payment of
dividends and risks relating to certain anti-takeover provisions,
which could cause actual results to differ materially from historical
results or those anticipated. For a discussion of these risks and
uncertainties, see Exhibit 99.1, Factors Affecting Future Operating
Results, included as part of this Annual Report on Form 10-K.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not Applicable.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial statements required by this item are set forth
on pages F-1 through F-29 and the related financial schedule is set
forth on page S-2.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE
Not Applicable.
PART III
ITEM 10. 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
shareholders 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
- - - ---- --- --------
Philip Caldwell................ 78 Chairman of the Board of Directors
Robert F. Spoerry.............. 42 President, Chief Executive Officer
and Director
William P. Donnelly............ 36 Vice President, Chief Financial
Officer, and Assistant Secretary
Karl M. Lang................... 50 Head, Laboratory Division
Lukas Braunschweiler........... 41 Head, Industrial and Retail (Europe)
John D. Robechek............... 49 Head, Industrial and Retail (Americas)
Peter Burker................... 52 Head, Human Resources
Thomas Rubbe................... 43 Head, Logistics and Information Systems
Reginald H. Jones.............. 80 Director
John D. Macomber............... 70 Director
John M. Manser................. 50 Director
Laurence Z.Y. Moh.............. 71 Director
Thomas P. Salice............... 37 Director
Alan W. Wilkinson.............. 42 Director
Philip Caldwell has been Chairman of the Board of Directors
since October 1996. Effective May 18, 1998, Mr. Caldwell will no
longer serve as Chairman. Mr. Caldwell has been Senior Managing
Director of Lehman Brothers Inc. and its predecessor, Shearson Lehman
Brothers Holdings Inc., since 1985. During a 32 year career at Ford
Motor Company, Mr. Caldwell was Chairman of the Board of Directors and
Chief Executive Officer from 1980 to 1985 and a Director from 1973 to
1990. Mr. Caldwell is also a Director of Zurich Holding Company of
America, Inc., American Guarantee & Liability Insurance Company, The
Mexico Fund, Waters Corporation and Russell Reynolds Associates, Inc.
He has served as a Director of the Chase Manhattan 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., Specialty Coatings
International Inc., and Zurich Reinsurance Centre Holdings, Inc.
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. Effective May 18, 1998, Mr. Spoerry
will assume the additional office of Chairman of the Board of
Directors.
William P. Donnelly has been Vice President, Chief Financial
Officer and Assistant Secretary of the Company since April 1, 1997.
From 1993 until joining the Company, he held various senior financial
and management positions, including most recently Group Vice President
and Chief Financial Officer, with Elsag Bailey Process Automation, a
global manufacturer of instrumentation and analytical products, and
developer of distributed control systems. Prior to 1993, 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.
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., Pilkington plc and Brown Group, Inc.
John M. Manser has been a Director since August 1997. He is
the Treasurer of the Worldwide Life Science Group of Novartis, which
has its headquarters in Switzerland. He has been with Novartis (and
its predecessor Ciba-Geigy) since 1981.
Laurence Z.Y. Moh has been a Director since October 1996. At
present he is Chairman and CEO of Plantation Timber Products Limited
(CHINA), which he founded in 1996. He is Chairman Emeritus of
Universal Furniture Limited, which he founded in 1959.
Thomas P. Salice has been a Director since October 1996. Mr.
Salice 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.
Mr. Wilkinson 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 11. EXECUTIVE COMPENSATION
The information appearing in the sections captioned
"Directors' Compensation," "Executive Compensation" and "Compensation
Committee Interlocks and Insider Participation" in the Registrant's
Proxy Statement for the 1998 Annual Meeting of Stockholders (the "1998
Proxy Statement") is incorporated by reference herein.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The information appearing in the section "Principal
Shareholders" in the 1998 Proxy Statement is incorporated by reference
herein.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information appearing in the section captioned "Certain
Transactions" in the 1998 Proxy Statement is incorporated by reference
herein.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON
FORM 8-K
(a) Documents Filed as Part of this Report:
1. Financial Statements. See Index to Consolidated
Financial Statements included on page F-1.
2. Financial Statement Schedule and related Audit
Report. See Schedule I - included on pages S-1 and S-2.
3. List of Exhibits. See Index of Exhibits included
on page E-1.
(b) Reports on Form 8-K:
None.
SIGNATURES
Pursuant to the requirements of Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended, the Registrant has
duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
Mettler-Toledo International Inc.
(Registrant)
Date: March 13, 1998
By: /s/ ROBERT F. SPOERRY
-----------------------
Robert F. Spoerry
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Exchange
Act of 1934, as amended, this Annual Report on Form 10-K has been
signed below by the following persons on behalf of the registrant
and in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
President and Chief March 11, 1998
/s/ ROBERT F. SPOERRY Executive Officer
- - - ------------------------- and Director
Robert F. Spoerry
/s/ WILLIAM P. DONNELLY Vice President, Chief March 11, 1998
- - - ------------------------- Financial Officer and
William P. Donnelly Assistant Secretary
(Principal financial
and accounting
officer)
/s/ PHILIP CALDWELL Chairman of the Board March 11, 1998
- - - -------------------------
Philip Caldwell
/s/ REGINALD H. JONES Director March 11, 1998
- - - -------------------------
Reginald H. Jones
/s/ JOHN D. MACOMBER Director March 11, 1998
- - - -------------------------
John D. Macomber
/s/ JOHN M. MANSER Director March 11, 1998
- - - -------------------------
John M. Manser
/s/ LAURENCE Z.Y. MOH Director March 11, 1998
- - - -------------------------
Laurence Z.Y. Moh
/s/ THOMAS P. SALICE Director March 11, 1998
- - - -------------------------
Thomas P. Salice
/s/ ALAN W. WILKINSON Director March 11, 1998
- - - -------------------------
Alan W. Wilkinson
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 Registration Statement, as amended,
fur Prazisionsinstrumente on Form S-1, of the Company
and Ciba-Geigy AG, as (Reg. No. 33-09621) and
amended incorporated herein by
reference
2.2 Share Sale and Purchase Filed as Exhibit 2 to the
Agreement relating to the Current Report on Form 8-K
acquisition of the entire of Mettler-Toledo Holding
issued share capital Inc. dated June 3, 1997
of Safeline Limited and incorporated herein
by reference
3.1* Amended and Restated Page 70
Certificate of
Incorporation of the
Company
3.2* Amended By-laws of the Page 76
Company
4.1 Specimen Form of the Filed as Exhibit 4.3 to the
Company's Stock Certificate Statement, as amended, on
Form S-1 of the Company
(Reg. No. 333-35597) and
incorporated herein by
reference
10.1 Employment Agreement between Filed as Exhibit 10.4 to the
Robert F. Spoerry and Annual Report on Form 10-K
Mettler-Toledo AG, dated of Mettler-Toledo Holding Inc.
as of October 30, 1996 dated March 31,1997 and
incorporated herein by
reference
10.2* Employment Agreement between Page 91
Lukas Braunschweiler and
Mettler-Toledo GmbH dated as
of November 10, 1997
10.3* Employment Agreement between Page 97
William P. Donnelly and
Mettler-Toledo GmbH dated as
of November 10, 1997
10.4* Employment Agreement between Page 103
Karl M. Lang and Mettler-
Toledo GmbH dated as of
November 10, 1997
10.5* Employment Agreement between Page 109
John D. Robachek and Mettler-
Toledo, Inc. dated as of
November 10, 1997
10.6 Loan Agreement between Filed as Exhibit 10.5 to the
Robert F. Spoerry and Annual Report on Form 10-K of
Mettler-Toledo AG, dated Mettler-Toledo Holding Inc.
as of October 7, 1996 dated March 31, 1997 and
incorporated herein by
reference
10.7 Mettler Toledo Performance - Filed as Exhibit 10.7 to the
Oriented Bonus System Annual Report on Form 10-K of
(POBS), effective as of Mettler-Toledo Holding Inc. dated
1993 March 31, 1997 and
incorporated herein by reference
10.8 Mettler Toledo POBS Plus - Filed as Exhibit 10.8 to the
Incentive Scheme for Senior Annual Report on Form 10-K of
Management of Mettler of Mettler-Toledo Holding Inc.
Toledo, dated as of dated March 31, 1997 and
November 4, 1996 incorporated herein by reference
10.9* Credit Agreement, dated Page 115
as of November 19,
1997, between Mettler-
Toledo International Inc.,
as Guarantor, Mettler-
Toledo, Inc., Mettler-Toledo
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
10.10* Agreement of Merger, dated Page 322
November 13, 1997, between
MT Investors Inc. and
Mettler-Toledo Holding Inc.
10.11 1997 Amended and Restated Filed as Exhibit 10.10 to the
Stock Option Plan Registration Statement on Form
S-1 of the Company (Reg. No.
333-35597) and incorporated
herein by reference
10.12 Form of Participants' Filed as Exhibit 10.11 to the
Subscription Agreement Registration Statement, as
amended, on Form S-1 of the
Company (Reg. No. 333-35597)
and incorporated herein by
reference
10.13 Form of GMC Subscription Filed as Exhibit 10.12 to the
Agreement Registration Statement, as
amended, on Form S-1 of the
Company (Reg. No. 333-35597)
and incorporated herein by
reference
11* Statements regarding Page 334
computation of per share
earnings
21 Subsidiaries of the Filed as Exhibit 21 to the
Company Registration Statement, as
amended, on Form S-1 of the
Company (Reg. No. 333-35597)
and incorporated herein by
reference
27.1* Financial Data Schedule Page 335
99.1* Factors Affecting Future Page 336
Operating Results
- - - ------------
* Filed herewith
METTLER-TOLEDO INTERNATIONAL INC.
(FORMERLY "MT INVESTORS INC.")
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
PAGE
Independent Auditors' Report........................................... F-2
Consolidated Balance Sheets as of December 31, 1996 and 1997........... F-3
Consolidated Statements of Operations for the year ended
December 31, 1995 and for the period January 1, 1996 to
October 14, 1996 and for the period October 15, 1996 to
December 31, 1996 and for the year ended December 31, 1997........ F-4
Consolidated Statements of Changes in Net Assets / Shareholders'
Equity for the year ended December 31, 1995 and for
the period January 1, 1996 to October 14, 1996 and
for the period October 15, 1996 to December 31, 1996 and for
the year ended December 31, 1997.................................. F-5
Consolidated Statements of Cash Flows for the year ended
December 31, 1995 and for the period January 1, 1996 to
October 14, 1996 and for the period October 15, 1996 to
December 31, 1996 and for the year
ended December 31, 1997........................................... F-6
Notes to Consolidated Financial Statements................. F-7
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Shareholders
Mettler-Toledo International Inc.
We have audited the accompanying consolidated balance sheets of
Mettler-Toledo International Inc. (formerly "MT Investors Inc.") and
subsidiaries (as defined in Note 1 to the consolidated financial
statements) as of December 31, 1996 and 1997, and the related consolidated
statements of operations, net assets / shareholders' equity and cash flows
for the year ended December 31, 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, and for the year ended December 31, 1997, the
Successor periods. These consolidated financial statements are the
responsibility of the Company's management. Our responsibility is to
express an opinion on these consolidated financial statements 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 consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial
position of Mettler-Toledo International Inc. and subsidiaries as of
December 31, 1996 and 1997, and the consolidated results of their
operations and their cash flows for the year ended December 31, 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, and for
the year ended December 31, 1997, the Successor periods, in conformity with
generally accepted accounting principles in the United States of America.
As more fully described in Note 1 to the consolidated financial statements,
Mettler-Toledo International 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 consolidated financial statements for the
Successor periods 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
February 6, 1998
METTLER-TOLEDO INTERNATIONAL INC.
(FORMERLY "MT INVESTORS INC.")
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
SUCCESSOR SUCCESSOR
--------- ---------
DECEMBER DECEMBER
31, 31,
1996 1997
--------- ---------
ASSETS
Current assets:
Cash and cash equivalents................. $ 60,696 $ 23,566
Trade accounts receivable, less allowances
of $8,388 in 1996
and $7,669 in 1997...................... 151,161 153,619
Inventories............................... 102,526 101,047
Deferred taxes............................ 7,565 7,584
Other current assets and prepaid expenses. 17,268 24,066
------- -------
Total current assets.................... 339,216 309,882
Property, plant and equipment, net.......... 255,292 235,262
Excess of cost over net assets acquired, net
of accumulated amortization
of $982 in 1996 and $6,427 in 1997........ 135,490 183,318
Non-current deferred taxes.................. 3,916 5,045
Other assets ............................... 37,974 15,806
------- ------
Total assets............................. $771,888 $749,313
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Trade accounts payable.................... $ 32,797 $ 39,342
Accrued and other liabilities............. 79,857 80,844
Accrued compensation and related items.... 35,457 43,214
Taxes payable............................. 17,580 33,267
Deferred taxes............................ 9,132 10,486
Short-term borrowings and current
maturities of long-term debt............ 80,446 56,430
------- -------
Total current liabilities................. 255,269 263,583
Long-term debt.............................. 373,758 340,334
Non-current deferred taxes.................. 30,467 25,437
Other non-current liabilities............... 96,810 91,011
------- -------
Total liabilities........................ 756,304 720,365
Minority interest........................... 3,158 3,549
Shareholders' equity:
Preferred stock, $0.01 par value per share;
authorized 10,000,000 shares............ -- --
Common stock, $0.01 par value per share;
authorized 125,000,000 shares;
issued 38,336,015 (excluding 64,467 shares
held in treasury) at
December 31, 1997....................... -- 383
Class A, B and C common stock, $0.01 par
value per share; authorized
2,775,976 shares; issued 2,438,514 at
December 31, 1996....................... 25 --
Additional paid-in capital................ 188,084 284,630
Accumulated deficit ...................... (159,046) (224,152)
Currency translation adjustment........... (16,637) (35,462)
------- --------
Total shareholders' equity ............... 12,426 25,399
Commitments and contingencies............... -- --
Total liabilities and shareholders' equity . $771,888 $749,313
======== ========
See the accompanying notes to the consolidated financial statements
METTLER-TOLEDO INTERNATIONAL INC.
(FORMERLY "MT INVESTORS INC.")
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
PREDECESSOR SUCCESSOR
----------------- -----------------------
FOR THE FOR THE
PERIOD PERIOD
YEAR JANUARY OCTOBER
ENDED 1, 1996 15, 1996 YEAR
DECEMBER TO TO ENDED
31, OCTOBER DECEMBER DECEMBER
1995 14, 1996 31, 1996 31, 1997
----------- ------------ ----------- --------
Net sales............... $850,415 $662,221 $186,912 $878,415
Cost of sales........... 508,089 395,239 136,820 493,480
-------- -------- --------- -------
Gross profit......... 342,326 266,982 50,092 384,935
Research and development 54,542 40,244 9,805 47,551
Selling, general and
administrative........ 248,327 186,898 59,353 260,397
Amortization............ 2,765 2,151 1,065 6,222
Purchased research and
development........... -- -- 114,070 29,959
Interest expense........ 18,219 13,868 8,738 35,924
Other charges (income),
net................... (9,331) (1,332) 17,137 10,834
-------- -------- --------- --------
Earnings (loss)
before taxes,
minority interest
and extraordinary
items.............. 27,804 25,153 (160,076) (5,952)
Provision for taxes..... 8,782 10,055 (938) 17,489
Minority interest....... 768 637 (92) 468
-------- -------- --------- --------
Net earnings (loss)
before
extraordinary items 18,254 14,461 (159,046) (23,909)
Extraordinary items-debt
extinguishments,
net of tax............ -- -- -- (41,197)
-------- -------- --------- --------
Net earnings (loss).. $ 18,254 $ 14,461 $(159,046) $(65,106)
======== ======== ========= ========
Basic and diluted loss
per common share:
Loss before
extraordinary items.. $ (5.18) $ (0.76)
Extraordinary items.. -- (1.30)
--------- --------
Net loss............. $ (5.18) $ (2.06)
========= ========
Weighted average
number of
common shares...... 30,686,065 31,617,071
See the accompanying notes to the consolidated financial statements
METTLER-TOLEDO INTERNATIONAL INC.
(FORMERLY "MT INVESTORS INC.")
CONSOLIDATED STATEMENTS OF CHANGES IN NET ASSETS / SHAREHOLDERS' EQUITY
(IN THOUSANDS, EXCEPT PER SHARE DATA)
PREDECESSOR
------------------------------------------
YEAR ENDED DECEMBER 31, 1995 AND FOR THE
PERIOD JANUARY 1, 1996 TO OCTOBER 14, 1996
------------------------------------------
CURRENCY
CAPITAL TRANSLATION
EMPLOYED ADJUSTMENT TOTAL
-------- ----------- --------
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>
<CAPTION>
SUCCESSOR
---------------------------------------------------------------------------------------------------
FOR THE PERIOD FROM OCTOBER 15, 1996 TO DECEMBER 31, 1996 AND FOR THE YEAR ENDED DECEMBER 31, 1997
---------------------------------------------------------------------------------------------------
COMMON STOCK
ALL CLASSES ADDITIONAL CURRENCY
----------------------- PAID-IN ACCUMULATED TRANSLATION
SHARES AMOUNT CAPITAL DEFICIT ADJUSTMENT TOTAL
---------- ---------- ------------- ------------ ------------- -------
<S> <C> <C> <C> <C> <C> <C>
Balance at October 15, 1996.... 1,000 $ 1 $ -- $ -- $ -- $ 1
New issuance of Class A and C
shares....................... 2,437,514 24 188,084 -- -- 188,108
Net loss....................... -- -- -- (159,046) -- (159,046)
Change in currency translation
adjustment................... -- -- -- -- (16,637) (16,637)
---------- ------- -------- --------- --------- --------
Balance at December 31, 1996... 2,438,514 25 188,084 (159,046) (16,637) 12,426
New issuance of Class A and C
shares....................... 3,857 -- 300 -- -- 300
Purchase of Class A and C
treasury stock............... (5,123) (1) (668) -- -- (669)
Common stock conversion........ 28,232,100 282 (282) -- -- --
Proceeds from stock offering... 7,666,667 77 97,196 -- -- 97,273
Net loss....................... -- -- -- (65,106) -- (65,106)
Change in currency translation
adjustment.................... -- -- -- -- (18,825) (18,825)
---------- ------- -------- --------- --------- --------
Balance at December 31, 1997... 38,336,015 $ 383 $284,630 $(224,152) $(35,462) $ 25,399
========== ======= ======== ========= ========= ========
</TABLE>
See the accompanying notes to the consolidated financial statements
METTLER-TOLEDO INTERNATIONAL INC.
(FORMERLY "MT INVESTORS INC.")
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
PREDECESSOR SUCCESSOR
------------------- ------------------------
FOR THE
PERIOD FOR THE
YEAR JANUARY PERIOD
ENDED 1, 1996 OCTOBER 15,
DECEMBER TO TO YEAR ENDED
31, OCTOBER DECEMBER DECEMBER 31,
1995 14, 1996 31, 1996 1997
-------- --------- ------------ ------------
Cash flows from operating
activities:
Net earnings (loss)........ $ 18,254 $ 14,461 $(159,046) $(65,106)
Adjustments to reconcile
net earnings (loss) to
net cash provided by
operating activities:
Depreciation.............. 30,598 19,512 7,925 25,613
Amortization.............. 2,765 2,151 1,065 6,222
Write-off of purchased
research and
development and cost of
sales associated
with revaluation of
inventories............. -- -- 146,264 32,013
Extraordinary items....... -- -- -- 41,197
Net loss (gain) on
disposal of long-term
assets.................. (1,053) (768) -- 33
Deferred taxes and
adjustments to goodwill. (551) (1,934) (4,563) (4,244)
Minority interest......... 768 637 (92) 468
Increase (decrease) in
cash resulting from
changes in:
Trade accounts
receivable, net...... (9,979) 9,569 (10,159) (8,113)
Inventories............ (607) 1,276 3,350 (2,740)
Other current assets... (3,058) 14,748 (10,605) (7,177)
Trade accounts payable. 1,437 (3,065) 3,415 4,936
Accruals and other
liabilities, net.... 13,095 5,948 32,030 32,547
-------- --------- --------- --------
Net cash provided by
operating
activities......... 51,669 62,535 9,584 55,649
-------- --------- --------- --------
Cash flows from investing
activities:
Proceeds from sale of
property, plant and
equipment................ 4,000 1,606 736 15,913
Purchase of property,
plant and equipment...... (25,858) (16,649) (11,928) (22,251)
Acquisition of
Mettler-Toledo from Ciba. -- -- (314,962) --
Acquisition, net of seller
financing................ -- -- -- (80,469)
Other investing activities. (7,484) (1,632) 4,857 (9,184)
-------- --------- --------- --------
Net cash used in
investing
activities.......... (29,342) (16,675) (321,297) (95,991)
------- --------- --------- --------
Cash flows from financing
activities:
Proceeds from borrowings... 3,983 -- 414,170 614,245
Repayments of borrowings... -- (13,464) -- (703,201)
Proceeds from issuance of
common stock............. -- -- 188,108 97,573
Purchase of treasury stock. -- -- -- (669)
Ciba and affiliates
borrowings (repayments).. (15,693) (26,589) (184,666) --
Capital transactions with
Ciba and affiliates...... (37,361) (7,716) (80,687) --
-------- --------- --------- --------
Net cash provided by
(used in)
financing activities (49,071) (47,769) 336,925 7,948
Effect of exchange rate -------- --------- --------- --------
changes on cash and cash
equivalents................ 4,344 (3,394) (615) (4,736)
-------- --------- --------- --------
Net increase (decrease) in
cash and cash
equivalents................ (22,400) (5,303) 24,597 (37,130)
-------- --------- --------- --------
Cash and cash equivalents:
Beginning of period........ 63,802 41,402 36,099 60,696
-------- --------- --------- --------
End of period.............. $ 41,402 $ 36,099 $ 60,696 $ 23,566
======== ========= ========= ========
Supplemental disclosures of
cash flow information:
Cash paid during the year
for:
Interest.................. $ 18,927 $ 6,524 $ 17,874 $ 38,345
Taxes..................... 9,970 9,385 2,470 6,140
Non-cash financing and
investing activities:
Due to Ciba for capital
transactions............. 36,418 -- -- --
Seller financing on
acquisition.............. -- -- -- 22,514
See the accompanying notes to the consolidated financial
statements
1. BUSINESS DESCRIPTION AND BASIS OF PRESENTATION
Mettler-Toledo International Inc. ("Mettler Toledo," the "Company" or
"Successor"), formerly MT Investors Inc., is a global supplier of precision
instruments and 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 analytical and measurement
technologies. The Company's manufacturing facilities are located in
Switzerland, the United States, Germany, the United Kingdom and China. The
Company's principal executive offices are located in Greifensee,
Switzerland.
The Company was incorporated by AEA Investors Inc. ("AEA") and
recapitalized to effect the acquisition (the "Acquisition") of the
Mettler-Toledo Group ("Predecessor") from Ciba-Geigy AG ("Ciba") and its
wholly owned subsidiary, AG fur Prazisionsinstrumente ("AGP") on October
15, 1996. The Company acquired the Mettler-Toledo Group 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
Investors, 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.
In connection 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. Additionally, 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. 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 the Successor are not directly comparable to those of the
Predecessor.
The consolidated financial statements have been prepared in accordance
with generally accepted accounting principles in the United States of
America and include all entities in which the Company has control,
including its majority owned subsidiaries. All intercompany transactions
and balances have been eliminated. Investments in which the Company has
voting rights between 20% to 50% are generally accounted for using the
equity method of accounting. Certain amounts in the prior period financial
statements have been reclassified to conform with current year
presentation.
The combined financial statements of the Predecessor include the
combined historical assets and liabilities and combined results of
operations of the Mettler-Toledo Group. All intergroup transactions have
been eliminated as part of the combination process.
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.
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.
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 to 5 years
Leasehold improvements Shorter of useful life
or lease term
Beginning January 1, 1996 the Company adopted 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 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 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.
Deferred Financing Costs
Debt financing costs are deferred and amortized over the life of the
underlying indebtedness using the interest method.
Taxation
The Company files 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.
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. 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.
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 and such determination is not
practicable. 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 $62,400, $45,100, $11,100 and
$50,200 for the year ended December 31, 1995, for the period from January
1, 1996 to October 14, 1996, for the period from October 15, 1996 to
December 31, 1996 and for the year ended December 31, 1997, respectively.
Currency Translation and Transactions
The reporting currency for the 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.
The Company has designated certain of its Swiss franc debt as a hedge
of its net investments. Any gains and losses due to changes on the debt are
recorded to currency translation adjustment and offset the net investments
which they hedge.
Derivative Financial Instruments
The Company has only limited involvement with derivative financial
instruments and does not use them for trading purposes. The Company enters
into foreign currency forward contracts to hedge short-term intercompany
transactions with its foreign businesses. 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 other charges (income), net.
The Company enters into certain interest rate cap and swap agreements
in order to reduce its exposure to changes in interest rates. The
differential paid or received on interest rate swap agreements is
recognized over the life of the agreements. Realized and unrealized gains
on interest rate cap agreements are recognized as adjustments to interest
expense as incurred.
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.
Loss per Common Share
Effective December 31, 1997, the Company adopted the Statement of
Financial Accounting Standards No. 128, "Earnings per Share" ("SFAS 128").
Accordingly, basic and diluted loss per common share data for each period
presented have been determined in accordance with the provisions of SFAS
128. Outstanding options to purchase shares of common stock, as described
in Note 11, were not included in the computation of diluted loss per common
share for the periods ended December 31, 1996 and 1997, as the effect is
antidilutive. The Company retroactively adjusted its weighted average
common shares for the purpose of the basic and diluted loss per common
share computations for the 1996 and 1997 periods pursuant to SFAS 128 and
Securities and Exchange Commission Staff Accounting Bulletin No. 98 issued
in February 1998.
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.
3. BUSINESS COMBINATIONS
On May 30, 1997, the Company purchased the entire issued share capital
of Safeline Limited ("Safeline"), a manufacturer of metal detection systems
based in Manchester in the United Kingdom, for approximately (pound)61,000
(approximately $100,000), plus up to an additional (pound)6,000
(approximately $10,000) for a contingent earn-out payment. In October 1997,
the Company made an additional payment, representing a post-closing
adjustment, of (pound)1,900 (approximately $3,100). Such amount has been
accounted for as additional purchase price. Under the terms of the
agreement the Company paid approximately (pound)47,300 (approximately
$77,400) of the purchase price in cash, provided by amounts loaned under
its Credit Agreement, with the remaining balance of approximately
(pound)13,700 (approximately $22,400) paid in the form of seller loan notes
which mature May 30, 1999. In connection with the acquisition the Company
incurred expenses of approximately $2,200 which have been accounted for as
part of the purchase price.
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. Approximately $30,000 of the purchase price was attributed to
purchased research and development in process. Such amount was expensed
immediately in the second quarter of 1997. The technological feasibility of
the products being developed had not been established as of the date of the
acquisition. The Company expects that the projects underlying these
research and development efforts will be substantially complete over the
next two years. In addition, the Company allocated approximately $2,100 of
the purchase price to revalue certain finished goods inventories to fair
value. Substantially all of such inventories were sold in the second
quarter of 1997. The excess of the cost of the acquisition over the fair
value of the net assets acquired of approximately $65,000 is being
amortized over 30 years. The results of operations and cash flows of
Safeline have been consolidated with those of the Company from the date of
the acquisition.
The following unaudited pro forma summary presents the consolidated
results of operations of the Company as if the Acquisition (see Note 1) and
Safeline acquisition had been completed as of the beginning of each of the
periods presented, after giving effect to certain adjustments, including
Safeline's historical results of operations prior to the acquisition date,
depreciation and amortization of the assets acquired based upon their fair
values, increased interest expense from the financing of the acquisitions
and income tax effects. The Company allocated a portion of the purchase
prices to (i) in-process research and development projects, that have
economic value and (ii) the revaluation of inventories. 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 acquisitions 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.
PRO FORMA FINANCIAL INFORMATION (UNAUDITED)
---------------------------------------------
PREDECESSOR SUCCESSOR
-------------- --------------------------
FOR THE FOR THE
PERIOD PERIOD
JANUARY 1, OCTOBER 15,
1996 TO 1996 TO YEAR ENDED
OCTOBER DECEMBER DECEMBER
14, 1996 31, 1996 31, 1997
---------- ------------- -------------
Net sales........................... $694,231 $195,336 $897,448
Earnings (loss) before
extraordinary items............... 826 (2,128) 9,565
Net earnings (loss)................. $ 826 $ (2,128) $(31,632)
======== ======== ========
Basic and diluted loss per $ (0.07) $ (1.00)
common share...................... ======== ========
4. INVENTORIES
Inventories consisted of the following:
Successor
--------------------------
December 31, December 31,
1996 1997
----------- ------------
Raw materials and parts............. $ 41,015 $ 42,435
Work-in-progress.................... 31,534 29,746
Finished goods...................... 29,982 28,968
---------- ---------
102,531 101,149
LIFO reserve........................ (5) (102)
---------- ---------
$ 102,526 $ 101,047
========== =========
At December 31, 1996 and 1997, 13.2% and 12.7%, 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.
5. FINANCIAL INSTRUMENTS WITH OFF-BALANCE SHEET RISKS
At December 31, 1996, the Company had forward 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.
In July 1997, the Company entered into three year interest rate cap
agreements to limit the impact of increases in interest rates on its U.S.
dollar based debt. These agreements "cap" the effects of an increase in
three month LIBOR above 8.5%. In addition, the Company has entered into
three year interest rate swap agreements which swap the interest obligation
associated with $100,000 of U.S. dollar based debt from variable to fixed.
The fixed rate associated with the swap is 6.09% plus the Company's normal
interest margin. The swap is effective at three month LIBOR rates up to
7.00%.
In August 1997, the Company entered into certain three year interest
rate swap agreements that fix the interest obligation associated with SFr.
112,500 of Swiss franc based debt at rates varying between 2.17% and 2.49%
plus the Company's normal interest margin. The swaps are effective at one
month LIBOR rates up to 3.5%.
The Company may be exposed to credit losses in the event of
nonperformance by the counterparties to its derivative financial instrument
contracts. Counterparties are established banks and financial institutions
with high credit ratings. The Company has no reason to believe that such
counterparties will not be able to fully satisfy their obligations under
these contracts.
At December 31, 1996 and 1997, the fair value of such financial
instruments was approximately $(5,100) and $(1,064), respectively. The fair
values of all derivative financial instruments are estimated based on
current settlement prices of comparable contracts obtained from dealer
quotes. The values represent the estimated amount the Company would pay to
terminate the agreements at the reporting date, taking into account current
creditworthiness of the counterparties.
6. PROPERTY, PLANT AND EQUIPMENT, NET
Property, plant and equipment, net, consisted of the
following:
Successor
--------------------------
December 31, December 31,
1996 1997
----------- -------------
Land.................................... $ 63,514 $ 58,226
Buildings and leasehold
improvements.......................... 120,173 111,065
Machinery and equipment................. 75,675 93,418
Computer software....................... 3,067 3,948
---------- ---------
Less accumulated depreciation 262,429 266,657
and amortization...................... (7,137) (31,395)
---------- ---------
$ 255,292 $ 235,262
========== =========
7. OTHER ASSETS
Other assets include deferred financing fees of $22,015 and $4,101, net
of accumulated amortization of $820 and $76 at December 31, 1996 and 1997,
respectively. During 1997, the Company wrote off deferred financing costs
associated with its previous credit facilities and its Senior Subordinated
Notes as further discussed in Note 9. Also included in other assets are
restricted bank deposits of $5,960 and $1,756 at December 31, 1996 and
1997, respectively. Other assets at December 31, 1996 and 1997 also
included a loan due from the Company's Chief Executive Officer of
approximately $740. Such loan bears an interest rate of 5% and is payable
upon demand, which may not be made until 2003.
8. SHORT-TERM BORROWINGS AND CURRENT MATURITIES OF LONG-TERM DEBT
Short-term borrowings and current maturities of long-term debt
consisted of the following:
Successor
--------------------------
December 31, December 31,
1996 1997
----------- -------------
Current maturities of long-term debt... $ 8,968 $ 14,915
Borrowings under revolving credit
facility............................. 51,928 33,320
Other short-term borrowings............ 19,550 8,195
---------- ---------
$ 80,446 $ 56,430
========== =========
9. LONG-TERM DEBT
Long-term debt consisted of the following:
Successor
--------------------------
December 31, December 31,
1996 1997
----------- ------------
9.75% Senior Subordinated Notes due
October 1, 2006............................. $ 135,000 $ --
Credit Agreement:
Term A USD Loans, interest at LIBOR plus
1.125% (7.03% at December 31, 1997)
payable in quarterly installments
beginning March 31, 1998 due May 19,
2004..................................... -- 101,573
Term A SFr. Loans, interest at LIBOR
plus 1.125% (2.57% at December 31,
1997) payable in quarterly installments
beginning March 31, 1998 due May 19,
2004..................................... -- 58,991
Term A GBP Loans, interest at LIBOR plus
1.125% (8.71% at December 31, 1997)
payable in quarterly installments
beginning March 31, 1998 due May 19,
2004..................................... -- 36,198
Seller Notes, interest at LIBOR plus
0.26% (7.84% at December 31, 1997) due
in full May 30, 1999..................... -- 22,946
Term A SFr. 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 USD 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 USD 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 facilities............... 51,928 160,862
Other....................................... 27,546 16,194
--------- ---------
454,204 396,764
Less current maturities..................... 80,446 56,430
--------- ---------
$ 373,758 $ 340,334
========= =========
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.
At December 31, 1996, loans under the credit agreement consisted 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 loans in an aggregate principal amount of $72,000
and (iv) a multi-currency revolving credit facility in an aggregate
principal amount of $140,000, which included letter of credit and swingline
subfacilities available to certain subsidiaries.
On May 29, 1997, the Company refinanced its previous credit facility
and entered into a new credit facility. This credit facility provided for
term loan borrowings in an aggregate principal amount of approximately
$133,800, SFr. 171,500 and (pound)26,700, that were scheduled to mature
between 2002 and 2004, a Canadian revolving credit facility with
availability of CDN $26,300 and a multi-currency revolving credit facility
with availability of $151,000. The revolving credit facilities were
scheduled to mature in 2002. The Company recorded an extraordinary loss of
approximately $9,600 representing a charge for the write-off of capitalized
debt issuance fees and related expenses associated with the Company's
previous credit facility.
On November 19, 1997, in connection with the initial public offering,
the Company refinanced its existing credit facility by entering into a new
credit facility (the "Credit Agreement") with certain financial
institutions. At December 31, 1997, loans under the Credit Agreement
consisted of: (i) Term A Loans in aggregate principle amount of $101,573,
SFr. 85,467 ($58,991 at December 31, 1997) and (pound)21,661 ($36,198 at
December 31, 1997); (ii) a Canadian revolving credit facility with
availability of CDN $26,300 and (iii) a multi-currency revolving credit
facility in an aggregate principle amount of $400,000 including a $100,000
acquisition facility.
Concurrent with the initial public offering and refinancing, the
Company consummated a tender offer to repurchase the Senior Subordinated
Notes. The aggregate purchase price in connection with the tender offer was
approximately $152,500. In connection with the refinancing and the note
repurchase, the Company recorded an extraordinary loss of $31,600
representing primarily the premium paid in connection with the early
extinguishment of the notes of $17,900 and the write-off of capitalized
debt issuance fees associated with the Senior Subordinated Notes and the
Company's previous credit facility.
The Company's weighted average interest rate at December 31, 1997 was
approximately 6.3%.
Loans under the Credit Agreement may be repaid and reborrowed and are
due in full on May 19, 2004. The Company is required to pay a facility fee
based upon certain financial ratios 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. The facility fee at
December 31, 1997 was equal to 0.3%. At December 31, 1997, the Company had
available approximately $220,000 of additional borrowing capacity under its
Credit Agreement. The Company has the ability to refinance its short-term
borrowings through its revolving facility for an uninterrupted period
extending beyond one year. Accordingly, approximately $128,000 of the
Company's short-term borrowings at December 31, 1997 have been reclassified
to long-term. At December 31, 1997, borrowings under the Company's
revolving facility carried an interest rate of LIBOR plus 0.825%.
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; or make certain 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 1999 through 2002 are approximately $42,748, $32,691, $34,531 and
$34,531, respectively.
The estimated fair value of the Company's obligations under the Credit
Agreement approximate fair value due to the variable rate nature of the
obligations.
10. SHAREHOLDERS' EQUITY
Common Stock
At 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. All general voting power was vested in the holders of
the Class B common stock. At 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.
In November 1997, pursuant to a merger with its wholly owned subsidiary
Mettler-Toledo Holding Inc., each share of the Company's existing Class A,
Class B and Class C common stock converted into 12.58392 shares of common
stock and increased the number of authorized shares to 125,000,000 shares
with a par value of $0.01 per share. Concurrent therewith, the Company
completed an underwritten initial public offering of 7,666,667 shares at a
public offering price of $14.00 per share. The net proceeds from the
offerings of approximately $97,300 were used to repay a portion of the
Company's 9.75% Senior Subordinated Notes (see Note 9). As part of the
offering the Company sold approximately 287,000 shares of its common stock
to Company sponsored benefit plans at the public offering price. Holders of
the Company's common stock are entitled to one vote per share.
At December 31, 1997, 6,368,445 shares of the Company's common stock
were reserved for the Company's stock option plan.
Preferred Stock
The Board of Directors, without further shareholder authorization, is
authorized to issue up to 10,000,000 shares of preferred stock, par value
$0.01 per share in one or more series and to determine and fix the rights,
preferences and privileges of each series, including dividend rights and
preferences over dividends on the common stock and one or more series of
the preferred stock, conversion rights, voting rights (in addition to those
provided by law), redemption rights and the terms of any sinking fund
therefore, and rights upon liquidation, dissolution or winding up,
including preferences over the common stock and one or more series of the
preferred stock. The issuance of shares of preferred stock, or the issuance
of rights to purchase such shares, may have the effect of delaying,
deferring or preventing a change in control of the Company or an
unsolicited acquisition proposal.
11. STOCK OPTION PLAN
Effective October 15, 1996, the Company 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.
Under the terms of the plan, options granted shall be nonqualified and
the exercise price shall not be less than 100% of the fair market value of
the common stock on the date of grant. Options vest equally over a five
year period from the date of grant.
Stock option activity is shown below:
Weighted-Average
Number of Shares Exercise Price
------------------ ----------------
Granted during the period October
15, 1996 to December 31, 1996......... 3,510,747 $ 7.95
Exercised............................... -- --
Forfeited............................... -- --
--------- --------
Outstanding at December 31, 1996........ 3,510,747 $ 7.95
Granted................................. 1,028,992 14.68
Exercised............................... -- --
Forfeited............................... (130,999) (7.95)
--------- --------
Outstanding at December 31, 1997........ 4,408,740 $ 9.75
========= ========
Shares exercisable at December
31, 1997.............................. 675,950 $ 7.95
========= ========
At December 31, 1997, there were 3,537,047 and 871,693 options
outstanding to purchase shares of common stock with exercise prices of
$7.95 and $15.89, respectively. The weighted-average remaining contractual
life of such options was 8.7 and 9.7 years, respectively.
As of the date granted, the weighted-average grant-date fair value of
the options granted during the period from October 15, 1996 to December 31,
1996 and for the year ended December 31, 1997 was approximately $1.99 and
$3.37 per share, respectively. Such weighted-average grant-date fair value
was determined using an option pricing model which incorporated the
following assumptions:
Successor
----------------------------------------
For the period
October 15, 1996 Year ended
to December 31, 1996 December 31, 1997
-------------------- ----------------
Risk-free interest rate.............. 4.0% 5.4%
Expected life, in years.............. 7 4
Expected volatility.................. -- 26%
Expected dividend yield.............. -- --
The Company applies Accounting Standards Board Opinion No. 25 and
related interpretations in accounting for its plans. Had compensation cost
for the Company stock option plan been determined based upon the fair value
of such awards at the grant date, consistent with the methods of Statement
of Financial Accounting Standards No. 123 "Accounting for Stock Based
Compensation" ("SFAS 123"), the Company's net loss and basic and diluted
net loss per common share for the twelve months ended December 31, 1997
would have been as follows:
Net loss:
As reported $ (65,106)
Pro forma (66,417)
==========
Basic and diluted loss per common share:
As reported $ (2.06)
Pro forma (2.10)
==========
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 SFAS 123.
12. 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 $9,413, $9,484, $2,496 and
$8,925 in 1995, for the period January 1, 1996 to October 14, 1996, for the
period October 15, 1996 to December 31, 1996 and for the year ended
December 31, 1997, respectively.
Certain companies sponsor defined benefit plans. Benefits are provided
to employees 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
consolidated financial statements for the Company's principal defined
benefit plans at December 31, 1996 and 1997:
Successor
-----------------------------------------------------
December 31, December 31,
1996 1997
------------------------------ ---------------------
Assets Accumulated Assets Accumulated
exceed benefits exceed benefits
accumulated exceed accumulated exceed
benefits assets benefits assets
----------- ----------- ---------- -----------
Actuarial present
value of
accumulated benefit
obligations:
Vested benefits....... $ 10,211 $ 97,639 $ 11,712 $ 98,974
Non-vested
benefits.............. 16 2,280 20 3,574
-------- --------- -------- ---------
10,227 99,919 11,732 102,548
Projected benefit -------- --------- -------- ---------
obligations............ 12,458 108,504 13,350 111,608
Plan assets at fair
value.................. 13,336 50,609 14,899 58,176
-------- --------- -------- ---------
Projected benefit
obligations in
excess of (less
than) plan assets....... (878) 57,895 (1,549) 53,432
Unrecognized net
(losses) gains.......... 22 1,479 544 561
(Prepaid) accrued -------- --------- -------- ---------
pension costs.......... $ (856) $ 59,374 $ (1,005) $ 53,993
======== ========= ======== =========
The (prepaid) accrued pension costs are recognized in the accompanying
consolidated financial statements as other long-term assets and other long
term liabilities, respectively.
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:
1996 1997
------------ ------------
Discount rate....................... 6.0% to 8.5% 6.0% to 8.5%
Compensation increase rate.......... 2.0% to 6.5% 2.0% to 6.5%
The expected long term rates of return on plan assets ranged between
9.5% and 10.0% for 1995, 7.0% and 10.0% for 1996, and 6.0% and 9.5% in
1997. 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:
Predecessor Successor
-------------------- ----------------------
For the
period For the
Year January period Year
ended 1, 1996 October 15, ended
December to 1996 to December
31, October December 31,
1995 14, 1996 31, 1996 1997
------- ---------- ------------ ---------
Service cost
(benefits earned
during
the period)............. $ 3,668 $ 3,850 $ 1,013 $ 5,655
Interest cost on
projected benefit 7,561 6,540 1,721 8,020
obligations.............
Actual gain on plan
assets.................. (8,653) (6,079) (1,600) (8,543)
Net amortization and
deferral................ 5,137 2,485 -- 2,516
------- ---------- ----------- ---------
Net periodic pension
expense................. $ 7,713 $ 6,796 $ 1,134 $ 7,648
======= ========== =========== ==========
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:
Successor
--------------------
December December
31, 1996 31, 1997
-------- -----------
Accumulated postretirement benefit
obligations:
Retired........................ $ 25,894 $ 26,702
Fully eligible................. 3,033 4,154
Other.......................... 3,098 5,256
-------- --------
32,025 36,112
Unrecognized net loss............ (540) (4,465)
-------- --------
Accrued postretirement
benefit cost................... $ 31,485 $ 31,647
======== ========
Net periodic postretirement benefit cost for the above plans includes
the following components:
Predecessor Successor
-------------------- ----------------------
For the
period For the
January period
Year 1, 1996 October 15, Year
ended to 1996 to ended
December October December December
31, 1995 14, 1996 31, 1996 31, 1997
-------- --------- ----------- --------
Service cost (benefits
earned during
the period)......... $ 285 $ 431 $ 114 $ 440
Interest cost on
projected benefit
obligations......... 2,371 1,795 472 2,296
Net amortization and
deferral.............. 99 343 -- 33
------ ------- ------- --------
Net periodic
postretirement
benefit cost........ $2,755 $ 2,569 $ 586 $ 2,769
====== ======= ======= ========
The accumulated postretirement benefit obligation and net
periodic postretirement benefit cost were principally determined
using discount rates of 7.3% in 1995, 7.6% in 1996 and 7.0 % in
1997 and health care cost trend rates ranging from 9.5% to 12.25%
in 1995, 1996 and 1997 decreasing to 5.0% in 2006.
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 1997
the effect of a one-percentage-point increase in the assumed
health care cost trend rate would be an increase of $3,611 on the
accumulated postretirement benefit obligations and an increase of
$464 on the aggregate of the service and interest cost components
of the net periodic benefit cost.
13. TAXES
The sources of the Company's earnings (loss) before taxes, minority
interest and extraordinary items were as follows:
Predecessor
-------------------------------
Year ended For the Period
December January 1, 1996 to
31, 1995 October 14, 1996
-------- ---------------------
Switzerland.......................... $ 11,431 $ 21,241
Non-Switzerland...................... 16,373 3,912
-------- ----------
Earnings before taxes, minority
interest and extraordinary items... $ 27,804 $ 25,153
======== ==========
Successor
---------------------------------
For the Period Year ended
October 15, 1996 to December
December 31, 1996 31, 1997
-------------------- ----------
United States........................ $ (37,293) $ (14,178)
Non-United States.................... (122,783) 8,226
---------- ----------
Loss before taxes, minority interest
and extraordinary items............. $ (160,076) $ (5,952)
========== ==========
The provision (benefit) for taxes consists of:
Adjustments
to
Current Deferred Goodwill Total
------- --------- ----------- -----
Predecessor:
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
======= ======== ====== ========
Adjustments
to
Current Deferred Goodwill Total
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)
======= ======== ======= ========
Adjustments
to
Current Deferred Goodwill Total
------- --------- ----------- -----
Year ended December 31,
1997:
United States Federal......... $ -- $ (351) $ -- $ (351)
State and Local............... 466 (41) 107 532
Non-United States............. 12,779 2,600 1,929 17,308
------- -------- ------- -------
$13,245 $ 2,208 $ 2,036 $17,489
======= ======== ======= =======
The adjustments to goodwill during the year ending December 31,
1997 relate to tax benefits received on amounts which were included in
the purchase price allocation pertaining to the Acquisition of the
Company described in Note 1.
The provision for tax expense for the year ended December 31, 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:
Predecessor
-----------------------------------
Year ended For the Period
December January 1, 1996 to
31, 1995 October 14, 1996
---------- -----------------------
Expected tax...................... $ 2,725 $ 2,465
Switzerland Canton (state) and
local income taxes,
net of federal income
tax benefit..................... (21) 3,573
Non-deductible intangible
amortization.................... 248 205
Change in valuation allowance..... 1,603 1,235
Non-Switzerland income taxes in
excess of 9.8%.................. 4,968 2,291
Other, net........................ (741) 286
------- ----------
Total provision for taxes......... $ 8,782 $ 10,055
======= ==========
The provision for tax expense (benefit) for the period
October 15, 1996 to December 31, 1996 and for the year ended
December 31, 1997, subsequent to 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,
minority interest and extraordinary items as a result of the
following:
Successor
----------------------------
For the Period
October 15,
1996 to Year ended
December December 31,
31, 1996 1997
-------- ---------------
Expected tax...................... $(56,027) $ (2,083)
United States state and local
income taxes, net of federal
income tax benefit.............. 333 276
Non-deductible purchased research
and development................. 39,925 10,486
Non-deductible intangible
amortization.................... 336 2,073
Change in valuation allowance..... 4,662 263
Non-United States income taxes at
other than a 35% rate........... 10,037 5,545
Other, net........................ (204) 929
-------- --------
Total provision, for taxes........ $ (938) $ 17,489
======== ========
The tax effects of temporary differences that give rise to
significant portions of the deferred tax assets and deferred tax
liabilities are presented below:
Successor
----------------------------
December 31, December 31,
1996 1997
------------ ------------
Deferred tax assets:
Inventory......................... $ 7,974 $ 7,552
Accrued and other liabilities... 7,046 9,278
Deferred loss on sale of
subsidiaries.................. 7,907 7,907
Accrued postretirement benefit
and pension costs............. 19,043 19,161
Net operating loss
carryforwards.................. 15,817 27,345
Other.......................... 408 678
------- -------
Total deferred tax assets........ 58,195 71,921
Less valuation allowance......... (46,714) (59,292)
------- -------
Total deferred tax assets less
valuation allowance............ 11,481 12,629
Deferred tax liabilities: ------- -------
Inventory...................... 5,618 6,177
Property, plant and equipment.. 31,123 24,081
Other.......................... 2,858 5,665
------- -------
Total deferred tax liabilities... 39,599 35,923
------- -------
Net deferred tax liability....... $28,118 $23,294
======= =======
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:
Successor
-----------------------------
December 31, December 31,
1996 1997
------------ ------------
Summary of valuation allowances:
Cumulative net operating
losses........................ $15,817 $27,345
Deferred loss on sale of
subsidiaries.................. 7,907 7,907
Accrued postretirement and
pension benefit costs......... 18,122 17,104
Other........................... 4,868 6,936
------- -------
Total valuation allowance......... $46,714 $59,292
======= =======
The total valuation allowances relating to acquired businesses
amount to $38,785 and $35,524 at December 31, 1996 and 1997,
respectively. Future reductions of these valuation allowances will be
credited to goodwill.
At December 31, 1997, the Company had net operating loss
carryforwards for income tax purposes of (i) $45,939 related to U.S.
Federal net operating losses of which $4,376 expires in 2011 and
$41,563 expires in 2012, (ii) $51,832 related to U.S. State net
operating losses which expire in varying amounts through 2012, (iii)
$15,595 related to foreign net operating losses with no expiration
date and (iv) $14,205 related to foreign net operating losses which
expire in varying amounts through 2003.
14. OTHER CHARGES (INCOME), NET
Other charges (income), net consists primarily of foreign currency
transactions, interest income and charges related to the Company's
restructuring programs. Foreign currency transactions, net for the
year ended December 31, 1995, for the period January 1, 1996 to
October 14, 1996, for the period October 15, 1996 to December 31, 1996
and for the year ended December 31, 1997 were $(3,242), $(220), $8,324
and $4,235, respectively. Interest income for the year ended December
31, 1995, for the period January 1, 1996 to October 14, 1996, for the
period October 15, 1996 to December 31, 1996 and for the year ended
December 31, 1997 was $(5,388), $(3,424), $(1,079) and $(1,832),
respectively.
Severance and other exit costs 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. Severance costs 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
announced in December 1996. In connection with such programs the
Company reduced its workforce by 168 employees in 1996.
The Company recorded further restructuring charges of $6,300
during 1997. Such charges are in connection with the closure of three
facilities in North America and are comprised primarily of severance
and other related benefits and costs of existing facilities, including
lease termination costs and write-down of existing assets to their
expected net realizable value. In connection with the closure of these
facilities, the Company expects to involuntarily terminate
approximately 70 employees. The Company is undertaking these actions
as part of its efforts to reduce costs through reengineering.
A rollforward of the components of the Company's accrual for
restructuring activities is as follows:
Balance at December 31, 1996 $10,762
1997 Activities:
Restructuring accrual for North
American operations 6,300
Reductions in workforce and
other cash outflows (7,182)
Non-cash write-downs of property,
plant and equipment (540)
Impact of foreign currency (582)
-------
Balance at December 31, 1997 $8,758
=======
The Company's accrual for restructuring activities of $8,758 at
December 31, 1997 primarily consisted of $6,544 for severance and
other related benefits with the remaining balance for lease
termination and other costs of exiting facilities. Such programs are
expected to be substantially complete in 1998.
15. 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, 1997:
1998................... $12,006
1999................... 8,565
2000................... 5,771
2001................... 4,023
2002................... 3,296
Thereafter............. 1,856
-------
Total................ $35,517
=======
Rent expense for operating leases amounted to $13,034, $3,430 and
$16,420 for the period January 1, 1996 to October 14, 1996, for the
period October 15, 1996 to December 31, 1996 and for the year ended
December 31, 1997, respectively.
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.
16. GEOGRAPHIC SEGMENT INFORMATION
The tables below show 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.
Twelve Total
months Net Transfers net Earnings
ended Net sales sales between sales (loss)
December 31, by by geographic by before
1995 destination origin areas origin taxes
- - - ------------ ------------ -------- ----------- --------- --------
Switzerland (1)... $ 41,820 $102,712 $159,453 $262,165 $ 11,431
Germany........... 151,974 158,393 47,379 205,772 9,626
Other Europe...... 247,802 228,939 799 229,738 1,780
-------- -------- -------- -------- --------
Total Europe...... 441,596 490,044 207,631 697,675 22,837
United States..... 263,945 298,053 29,578 327,631 (1,353)
Other Americas.... 52,966 32,732 131 32,863 905
-------- -------- -------- -------- --------
Total Americas.... 316,911 330,785 29,709 360,494 (448)
Asia and other.... 91,908 29,586 97 29,683 1,861
Eliminations...... -- -- (237,437) (237,437) 3,554
-------- -------- -------- -------- --------
Totals............ $850,415 $850,415 $ -- $850,415 $ 27,804
======== ======== ======== ======== ========
For
the period Total
January 1, Net Net Transfers net Earnings
1996 to sales sales between sales (loss)
October by by geographic by before
14, 1996 destination origin areas origin taxes
- - - ---------- ------------ -------- ----------- -------- --------
Switzerland (1)... $ 32,282 $ 74,303 $ 126,423 $200,726 $ 21,241
Germany........... 104,961 114,015 35,583 149,598 8,292
Other Europe...... 186,823 171,061 840 171,901 591
-------- -------- --------- -------- --------
Total Europe...... 324,066 359,379 162,846 522,225 30,124
United States..... 217,636 246,180 22,753 268,933 (1,577)
Other Americas.... 47,473 25,925 3 25,928 1,078
-------- -------- --------- -------- --------
Total Americas.... 265,109 272,105 22,756 294,861 (499)
Asia and other.... 73,046 30,737 265 31,002 686
Eliminations...... -- -- (185,867) (185,867) (5,158)
-------- -------- --------- -------- --------
Totals............ $662,221 $662,221 $ -- $662,221 $ 25,153
======== ======== ========= ======== ========
<TABLE>
<CAPTION>
For the
period Total
October Net Net Transfers net Earnings
15, 1996 to sales sales between sales (loss)
December by by geographic by before Total
31, 1996 destination origin areas origin taxes(2) Assets
- - - ----------- ------------ -------- ----------- -------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C>
Switzerland (1)... $ 8,415 $ 15,892 $ 39,570 $ 55,462 $(108,865) $ 432,387
Germany........... 29,688 29,117 10,965 40,082 (6,041) 170,845
Other Europe...... 58,598 59,688 485 60,173 (5,809) 126,063
------- -------- --------- -------- ---------- ---------
Total Europe...... 96,701 104,697 51,020 155,717 (120,715) 729,295
United States..... 56,405 64,109 6,731 70,840 (37,293) 477,762
Other Americas.... 13,436 7,371 3 7,374 (446) 17,730
------- -------- --------- -------- --------- ---------
Total Americas.... 69,841 71,480 6,734 78,214 (37,739) 495,492
Asia and other.... 20,370 10,735 28 10,763 (2,267) 48,245
Eliminations...... -- -- (57,782) (57,782) 645 (501,144)
------- -------- --------- -------- --------- ---------
Totals............ $186,912 $186,912 $ -- $186,912 $(160,076) $ 771,888
======== ======== ========= ======== ========= =========
</TABLE>
<TABLE>
<CAPTION>
Twelve Total
months Net Net Transfers net Earnings
ended sales sales between sales (loss)
December by by geographic by before Total
31, 1997 destination origin areas origin taxes Assets
- - - --------------- ----------- --------- ----------- --------- -------- ---------
<S> <C> <C> <C> <C> <C> <C>
Switzerland(1).... $ 34,555 $ 69,700 $ 186,292 $ 255,992 $ 31,621 $ 430,436
Germany........... 115,665 123,382 51,502 174,884 5,519 144,660
Other Europe...... 245,945 232,105 10,857 242,962 (16,441) 337,720
--------- --------- --------- --------- -------- ---------
Total Europe...... 396,165 425,187 248,651 673,838 20,699 912,816
United States..... 297,688 335,630 32,009 367,639 (14,176) 589,775
Other Americas.... 71,403 37,330 165 37,495 (3,245) 32,941
--------- --------- --------- --------- -------- ---------
Total Americas.... 369,091 372,960 32,174 405,134 (17,421) 622,716
Asia and other.... 113,159 80,268 1,834 82,102 1,413 63,453
Eliminations...... -- -- (282,659 (282,659) (10,643) (849,672)
--------- -------- --------- --------- -------- ---------
Totals............ $ 878,415 $ 878,415 $ -- $ 878,415 $ (5,952) $ 749,313
========= ========= ========= ========= ======== =========
</TABLE>
[FN]
(1) Includes Corporate.
(2) The effect of non-recurring Acquisition charges arising from
in-process research and development projects ($114,100) and
the revaluation of inventories to fair value ($32,200) by
region are as follows:
Europe....................$108,100
Americas.................. 36,000
Asia/Rest of World........ 2,200
</FN>
17. QUARTERLY FINANCIAL DATA (UNAUDITED)
Quarterly financial data for the years 1996 and 1997 are as
follows:
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER(1) QUARTER QUARTER(2)
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
1996
Net sales .............................. $ 201,373 $ 222,429 $ 200,391 $ 224,940
Gross profit ........................... 80,394 91,204 79,013 66,463
Net income (loss) ...................... 929 9,078 3,129 (157,721)
========= ========= ========= =========
1997
Net sales .............................. $ 197,402 $ 220,412 $ 215,929 $ 244,672
Gross profit ........................... 83,282 97,016 94,365 110,272
Net income (loss)
before extraordinary items ............ (1,122) (25,613) (284) 3,110
Extraordinary items .................... -- (9,552) -- (31,645)
--------- --------- --------- ---------
Net income (loss)....................... $ (1,122) $ (35,165) $ (284) $ (28,535)
========= ========= ========= =========
Basic earnings
(loss) per common share:
Earnings (loss) before
extraordinary items.................... $ (0.04) $ (0.84) $ (0.01) $ 0.09
Extraordinary items .................... -- (0.31) -- (0.92)
--------- --------- --------- ---------
Net loss ............................... $ (0.04) $ (1.15) $ (0.01) $ (0.83)
========= ========= ========= =========
Diluted earnings
(loss) per common share:
Earnings (loss) before
extraordinary items ................... $ (0.04) $ (0.84) $ (0.01) $ 0.09
Net loss ............................... -- (0.31) -- (0.88)
--------- --------- --------- ---------
$ (0.04) $ (1.15) $ (0.01) $ (0.79)
========= ========= ========= =========
Market price per
share: (3)
High................................... -- -- -- 18 3/4
Low.................................... -- -- -- 14 1/16
</TABLE>
[FN]
(1) The financial data for the second quarter of 1997 includes
charges in connection with the Safeline Acquisition, as
discussed in Note 3, for the sale of inventories revalued to
fair value of $2,054 and in-process research and development
of $29,959. The second quarter also includes extraordinary
charges for the write-off of capitalized debt issuance fees
of $9,552 as discussed in Note 9.
(2) The financial data for the fourth quarter of 1996 represents
the Company's combined results of operations for the period
from October 1, 1996 to October 14, 1996 and for the period
from October 15, 1996 to December 31, 1996. The period from
October 15, 1996 to December 31, 1996 includes charges in
connection with the Acquisition, as discussed in Note 1, for
the sale of inventories revalued to fair value of $32,194
and in-process research and development of $114,070. The
fourth quarter 1997 data includes charges for the early
extinguishment of debt and the write-off of capitalized debt
issuance fees totaling $31,645 as further discussed in Note
9.
(3) The Company's shares began trading on the New York Stock
Exchange on November 14, 1997.
</FN>
SCHEDULE I
INDEPENDENT AUDITORS' REPORT ON FINANCIAL STATEMENT SCHEDULE
The Board of Directors and Shareholders
Mettler-Toledo International Inc.:
Under date of February 6, 1998, we reported on the consolidated
balance sheets of Mettler-Toledo International Inc. (formerly "MT
Investors Inc.") and subsidiaries (as defined in Note 1 to the
consolidated financial statements) as of December 31, 1996 and
1997, and the related consolidated statements of operations, net
assets / shareholders' equity and cash flows for the year ended
December 31, 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, and for the year ended December 31,
1997, the Successor periods, included herein. In connection with
our audits of the aforementioned consolidated financial
statements, we also audited the related consolidated financial
statement schedule included under Item 14 of the Form 10-K. This
financial statement schedule is the responsibility of the
Company's management. Our responsibility is to express an opinion
on this financial statement schedule based on our audits.
In our opinion, such financial statement schedule, when
considered in relation to the basic consolidated financial
statements taken as a whole, present fairly, in all material
respects, the information set forth therein.
KPMG FIDES PEAT
Zurich, Switzerland
February 6, 1998
SCHEDULE I- VALUATION AND QUALIFYING ACCOUNTS
- - - ----------------------------------------------------------------------------
Column A Column B Column C Column D Column E
- - - ----------------------------------------------------------------------------
Additions
-----------------------
(1) (2)
Balance at Charged Charged to Balance
the to costs other at
beginning and accounts -Deductions- end of
Description of period expenses describe describe period
- - - ---------------------------------------------------------------------------
Note (A)
Accounts
Receivable-
allowance for
doubtful
accounts:
Year ended
December 31,
1997 8,388 1,516 - 2,235 7,669
For the period
October 15,
1996 to
December 31,
1996 9,429 97 - 1,138 8,388
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
- - - ---------------------------------------------------------------------------
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
$(409), $(375), $(159) and $(552) for the year ended 1995, for
the period from January 1, 1996 to October 14, 1996, for the
period from October 15, 1996 to December 31, 1996 and for the
year ended December 31, 1997, respectively.
EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
METTLER-TOLEDO INTERNATIONAL INC.
FIRST: The name of the Corporation is Mettler-Toledo
International Inc.
SECOND: The address of the Corporation's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of its registered agent
as such address is the Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of capital
stock which the Corporation shall have the authority to issue is
135,000,000 shares, all with a par value of One Cent ($.01) per share, of
which 10,000,000 shares shall be designated as Preferred Stock, and
125,000,000 shares shall be designated as Common Stock.
A. Preferred Stock. The Board of Directors is authorized, subject
to limitations prescribed by law, to provide for the issuance of shares of
Preferred Stock in one or more series, to establish the number of shares to
be included in each such series, and to fix the designations, powers,
preferences, and rights of the share of each such series, and any
qualifications, limitations, or restrictions thereof.
B. Common Stock. A statement of the powers, preferences, and
rights, and the qualifications, limitations or restrictions thereof, in
respect of each class of Common Stock is as follows:
1. Dividends and Distributions:
---------------------------
1.01. The holders of Common Stock shall be entitled to receive
dividends and distributions, including distributions in connection with the
liquidation, dissolution or winding up of the affairs of the Corporation,
when and as declared or made by the Board of Directors of the Corporation,
out of funds of the Corporation legally available therefor, payable on such
dividend or distribution payment dates to stockholders of record on such
record dates, not exceeding 60 days preceding the dividend or distribution
payment dates, as shall be fixed for the purpose by the Board of Directors
of the Corporation, upon the following terms:
1.01(a). Dividends or distributions shall be paid ratably to all
of the holders of Common Stock in the proportion that the number of shares
of Common Stock held by such holder bears to the total number of
outstanding shares of Common Stock of the Corporation.
1.01(b). Dividends or distributions of any property of the
Corporation shall be made as follows:
1.01(b)(i). The value of such property shall be determined in the
manner set forth in Section 1.01(b)(ii) on the last business day prior to
the date of declaration of such distribution; and such property shall be
deemed to have been sold with the resulting net proceeds being equal to
such value and shall be distributed to the holders of shares of stock of
the Corporation in accordance with Section 1.01(a).
1.01(b)(ii). For the purpose of determining the value of any
property of the Corporation, freely marketable securities which are listed
on a national securities exchange shall be valued at the average of their
last sales prices on each of the last 20 trading days ending on and
including the date of determination. If no sales occurred on any such
trading day, such sales price shall be deemed to be the mean between the
"bid" and "ask" prices on such day. Freely marketable securities which are
not so listed shall be valued at the average of their last closing "bid"
and "ask" prices on each of the last 20 trading days ending on and
including the date of determination on the basis of quotations furnished by
the National Association of Securities Dealers Incorporated, if available.
Any security which is held under the representation that it has been
acquired for investment and not with a view to public sale or distribution
or which is held subject to any other restriction affecting marketability
shall be valued at such discount from the value determined under the
applicable provisions above as the Board of Directors of the Corporation
deems necessary to reflect properly the restricted marketability of such
securities. Notwithstanding the foregoing, securities which are not freely
marketable securities and all other property may be assigned such value as
the Board of Directors of the Corporation determines to be the fair value.
All matters concerning the valuation of the properly of the Corporation,
the determination of earnings and profits and accounting procedures not
specifically and expressly provided for by the terms of this Certificate of
Incorporation shall be determined by the Board of Directors of the
Corporation, whose determination shall, when made in good faith and with
due care to the performance of its duties, be final and conclusive as to
all of the holders of outstanding shares of the Corporation.
2. Voting Rights.
-------------
2.01. Except as expressly required by statute, each share of
Common Stock shall be entitled to one vote per share on all matters voted
on by the stockholders.
2.02. As permitted by Section 242(b)(2) of the Delaware General
Corporation Law, the number of authorized shares of any class of the
Corporation's Common Stock may be increased at any time and from time to
time by the affirmative vote of the holders of a majority of the shares of
Common Stock then outstanding.
FIFTH:
1. Stockholder Actions. Any action required or permitted to be
taken by the Corporation's stockholders must be effected at a duly called
annual or special meeting of stockholders.
2. Special Meetings. A special meeting of the stockholders of the
Corporation may be called at any time by the Board of Directors, the
Chairman of the Board or the President and Chief Executive Officer and
shall be called by the Chairman of the Board, the President and the Chief
Executive Officer or the Secretary at the request in writing of
stockholders holding together at least fifty percent (50%) of the number of
shares of stock outstanding and entitled to vote at such meeting. Any
special meeting of the stockholders shall be held on such date, at such
time and at such place within or without the State of Delaware as the Board
of Directors or the officer calling the meeting may designate. At a special
meeting of stockholders, no business shall be transacted and no corporate
action shall be taken other than that stated in the notice of the meeting
unless all of the stockholders are present in person or by proxy, in which
case any and all business may be transacted at the meeting even though the
meeting is held without notice.
3. Consents in writing. Any action required or permitted to be
taken by the Corporation's stockholders may not be effected by consent in
writing."
SIXTH: Elections of directors need not be by ballot unless the
By-Laws of the Corporation so provide.
SEVENTH: The Board of Directors of the Corporation may make
By-laws and from time to time may alter, amend or repeal By-laws.
EIGHTH: 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.
NINTH:
1. Nature of Indemnity. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he (or a person of
whom he is the legal representative), is or was a director or officer of
the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary, or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a director,
officer, employee, fiduciary or agent or in any other capacity while
serving as a director, officer, employee, fiduciary or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
which it is empowered to do so by the General Corporation Law of the State
of Delaware, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment) against all
expense, liability and loss (including attorneys' fees actually and
reasonably incurred by such person in connection with such proceeding) and
such indemnification shall inure to the benefit of his heirs, executors and
administrators; provided, however, that, except as provided in Section 2 of
this Article Ninth, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding initiated by such person
only if such proceeding was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred in this Article Ninth
shall be contract right and, subject to Sections 2 and 5, shall include the
right to payment by the Corporation of the expenses incurred in defending
any such proceeding in advance of its final disposition. The Corporation
may, by action of the Board of Directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect as
the foregoing indemnification of directors and officers.
2. Procedure for Indemnification of Directors and Officers. Any
indemnification of a director or officer of the Corporation under Section 1
of this Article Ninth or advance of expenses under Section 5 of this
Article Ninth shall be made promptly, and in any event within 30 days, upon
the written request of the director or officer. If a determination by the
Corporation that the director or officer is entitled to indemnification
pursuant to this Article Ninth is required, and the Corporation fails to
respond within sixty days to a written request for indemnity, the
Corporation shall be deemed to have approved the request. If the
Corporation denies a written request for indemnification or advancing of
expenses, in whole or in part, or if payment in full pursuant to such
request is not made within 30 days, the right to indemnification or
advances as granted by this Article Ninth shall be enforceable by the
director or officer in any court of competent jurisdiction. Such person's
costs and expenses incurred in connection with successfully establishing
his right to indemnification, in whole or in part, in any such action shall
also be indemnified by the Corporation. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition
where the required undertaking, if any, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which
make it permissible under the General Corporation Law of the State of
Delaware for the Corporation to indemnify the claimant for the amount
claimed, but the burden of such defense shall be on the Corporation .
Neither the failure of the Corporation (including the Board of Directors,
independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification
of the claimant is proper in the circumstances because he or she has met
the applicable standard of conduct set forth in the General Corporation Law
of the State of Delaware, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or it
stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the application standard of conduct.
3. Nonexclusivity of Article Ninth. The rights conferred in this
Article Ninth to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition shall not be
exclusive of any other right which any person may have or hereafter acquire
under any stature, provision of the certificate of incorporation, by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
4. Insurance. The Corporation may purchase and maintain insurance
on its own behalf and on behalf of any person who is or was a director,
officer, employee, fiduciary, or agent of the Corporation 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 against any liability asserted against him and incurred by him
in any such capacity, whether or not the Corporation would have the power
to indemnify such person against such liability under this Article Ninth.
5. Expenses. Expenses incurred by any person described in Section
1 of this Article Ninth in defending a proceeding shall be paid by the
Corporation in advance of such proceeding's final disposition, unless
otherwise reasonably determined by the Board of Directors for good reason;
in each case upon receipt of an undertaking by or on behalf of the director
or office to repay such amount if it shall ultimately be determined that he
is not entitled to be indemnified by the Corporation. Such expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
6. Employees and Agents. Persons who are not covered by the
foregoing provisions of this Article Ninth and who are or were employees or
agents of the Corporation, or who are or were serving at the request of the
Corporation as employee or agents of another corporation, partnership,
joint venture, trust or other enterprise, may be indemnified to the extent
authorized at any time or from time to time by the Board of Directors.
7. Contract Rights. The provision of this Article Ninth shall be
deemed to be a contract right between the Corporation and each director or
officer who serves in any such capacity at any time while this Article
Ninth and the relevant provisions of the General Corporation Law of the
State of Delaware or other applicable law are in effect, and any repeal or
modification of this Article Ninth or any such law shall not affect any
rights or obligations then existing with respect to any state of facts or
proceeding then existing.
8. Merger or Consolidation. For purposes of this Article Ninth,
reference to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify
its directors, officers, and employees or agents, so that any person who is
or was a director, officer, employee, or agent of such constituent
corporation or is or was serving at the request of such constituent
corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall
stand in the same position under this Article Ninth with respect to the
resulting or surviving corporation as he or she would have with respect to
such constituent corporation if its separate existence had continued."
TENTH: The Corporation reserves the right to amend or repeal any
provisions contained in this Amended and Restated Certificate of
Incorporation from time to time and at any time in the manner now or
hereafter prescribed by the laws of the State of Delaware, and all rights
conferred upon stockholders and directors are granted subject to such
reservation, except that the contract rights described in Article Ninth may
no be abrogated by reason of any such amendment.
EXHIBIT 3.2
AMENDED BY-LAWS
OF
METTLER-TOLEDO INTERNATIONAL INC.
ARTICLE I
---------
Stockholders
------------
SECTION 1. Annual Meeting. The annual meeting of the stockholders
of the Corporation shall be held on such date, at such time and at such
place within or without the State of Delaware as may be designated by the
Board of Directors, for the purpose of electing Directors and for the
transaction of such other business as may be properly brought before the
meeting.
SECTION 2. Special Meetings. Except as otherwise provided in the
Certificate of Incorporation, a special meeting of the stockholders of the
Corporation may be called at any time by the Board of Directors, the
Chairman of the Board or the President and shall be called by the Chairman
of the Board, the President or the Secretary at the request in writing of
stockholders holding together at least twenty-five percent of the number of
shares of stock outstanding and entitled to vote at such meeting. Any
special meeting of the stockholders shall be held on such date, at such
time and at such place within or without the State of Delaware as the Board
of Directors or the officer calling the meeting may designate. At a special
meeting of the stockholders, no business shall be transacted and no
corporate action shall be taken other than that stated in the notice of the
meeting unless all of the stockholders are present in person or by proxy,
in which case any and all business may be transacted at the meeting even
though the meeting is held without notice.
SECTION 3. Notice of Meetings. Except as otherwise provided in
these BY-LAWS or by law, a written notice of each meeting of the
stockholders shall be given not less than ten (10) nor more than sixty (60)
days before the date of the meeting to each stockholder of the Corporation
entitled to vote at such meeting at his address as it appears on the
records of the Corporation. The notice shall state the place, date and hour
of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called.
SECTION 4. Quorum. At any meeting of the stockholders, the
holders of a majority in number of the total outstanding shares of stock of
the Corporation entitled to vote at such meeting, present in person or
represented by proxy, shall constitute a quorum of the stockholders for all
purposes, unless the representation of a larger number of shares shall be
required by law, by the Certificate of Incorporation or by these By-Laws,
in which case the representation of the number of shares so required shall
constitute a quorum; provided that at any meeting of the stockholders at
which the holders of any class of stock of the Corporation shall be
entitled to vote separately as a class, the holders of a majority in number
of the total outstanding shares of such class, present in person or
represented by proxy, shall constitute a quorum for purposes of such class
vote unless the representation of a larger number of shares of such class
shall be required by law, by the Certificate of Incorporation or by these
By-Laws.
SECTION 5. Adjourned Meetings. Whether or not a quorum shall be
present in person or represented at any meeting of the stockholders, the
holders of a majority in number of the shares of stock of the Corporation
present in person or represented by Proxy and entitled to vote at such
meeting may adjourn from time to time; provided, however, that if the
holders of any class of stock of the Corporation are entitled to vote
separately as a class upon any matter at such meeting, any adjournment of
the meeting in respect of action by such class upon such matter shall be
determined by the holders of a majority of the shares of such class present
in person or represented by proxy and entitled to vote at such meeting.
When a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place thereof are announced
at the meeting at which the adjournment is taken. At the adjourned meeting
the stockholders, or the holders of any class of stock entitled to vote
separately as a class, as the case may be, may transact any business which
might have been transacted by them at the original meeting. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at
the adjourned meeting.
SECTION 6. Organization. The Chairman of the Board or, in his
absence, the President shall call all meetings of the stockholders to
order, and shall act as Chairman of such meetings. In the absence of the
Chairman of the Board and the President, the holders of a majority in
number of the shares of stock of the Corporation present in person or
represented by proxy and entitled to vote at such meeting shall elect a
Chairman.
The Secretary of the Corporation shall act as Secretary of all
meetings of the stockholders; but in the absence of the Secretary, the
Chairman may appoint any person to act as Secretary of the meeting. It
shall be the duty of the Secretary to prepare and make, at least ten days
before every meeting of stockholders, a complete list of stockholders
entitled to vote at such meeting, arranged in alphabetical order and
showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open, either at a place
within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting or, if not so specified, at the
place where the meeting is to be held, for the ten days next preceding the
meeting, to the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, and shall be produced and kept
at the time and place of the meeting during the whole time thereof and
subject to the inspection of any stockholder who may be present.
SECTION 7. Voting. Except as otherwise provided in the
Certificate of Incorporation or by law, each stockholder shall be entitled
to one vote for each share of the capital stock of the Corporation
registered in the name of such stockholder upon the books of the
Corporation. Each stockholder entitled to vote at meeting of stockholders
or to express consent or dissent to corporate action in writing without a
meeting may authorize another person or persons to act for him by proxy,
but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period. When directed by the
presiding officer or upon the demand of any stockholder, the vote upon any
matter before a meeting of stockholders shall be by ballot. Except as
otherwise provided by law or by the Certificate of Incorporation, Directors
shall be elected by a plurality of the votes cast at a meeting of
stockholders by the stockholders entitled to vote in the election and,
whenever any corporate action, other than the election of Directors is to
be taken, it shall be authorized by a majority of the votes cast at a
meeting of stockholders by the stockholders entitled to vote thereon.
Shares of the capital stock of the Corporation belonging to the
Corporation or to another corporation, if a majority of the shares entitled
to vote in the election of directors of such other corporation is held,
directly or indirectly, by the Corporation, shall neither be entitled to
vote nor be counted for quorum purposes.
SECTION 8. Inspectors. When required by law or directed by the
presiding officer or upon the demand of any stockholder entitled to vote,
but not otherwise, the polls shall be opened and closed, the proxies and
ballots shall be received and taken in charge, and all questions touching
the qualification of voters, the validity of proxies and the acceptance or
rejection of votes shall be decided at any meeting of the stockholders by
two or more Inspectors who may be appointed by the Board of Directors
before the meeting, or if not so appointed, shall be appointed by the
presiding officer at the meeting. If any person so appointed fails to
appear or act, the vacancy may be filled by appointment in like manner.
SECTION 9. Consent of Stockholder in Lieu of Meeting. Unless
otherwise provided in the Certificate of Incorporation, any action required
to be taken or which may be taken at any annual or special meeting of the
stockholders of the Corporation, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of any
such corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in
writing.
SECTION 10. Advance Notice Provisions for Election of Directors.
Only persons who are nominated in accordance with the following procedures
shall be eligible for election as directors of the Corporation. Nominations
of persons for election to the Board of Directors may be made at any annual
meeting of stockholders, or at any special meeting of stockholders called
for the purpose of electing directors, (a) by or at the direction of the
Board of Directors (or any duly authorized committee thereof) or (b) by any
stockholder of the Corporation (i) who is a stockholder of record on the
date of the giving of the notice provided for in this Section 10 and on the
record date for the determination of stockholders entitled to vote at such
meeting and (ii) who complies with the notice procedures set forth in this
Section 10.
In addition to any other applicable requirements, for a
nomination to be made by a stockholder such stockholder must have given
timely notice thereof in proper written form to the Secretary of the
Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of
the Corporation (a) in the case of an annual meeting, not less than sixty
(60) days nor more than ninety (90) days prior to the date of the annual
meeting; provided, however, that in the event that less than seventy (70)
days notice or prior public disclosure of the date of the annual meeting is
given or made to stockholders, notice by the stockholder in order to be
timely must be so received not later than the close of business on the
tenth (10th) day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs; and (b) in the case of a
special meeting of stockholders called for the purpose of electing
directors, not later than the close of business on the tenth (10th) day
following the day on which notice of the date of the special meeting was
mailed or public disclosure of the date of the special meeting was made,
whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder
proposes to nominate for election as a director (i) the name, age, business
address and residence address of the person, (ii) the principal occupation
or employment of the person, (iii) the class or series and number of shares
of capital stock of the Corporation which are owned beneficially or of
record by the person and (iv) any other information relating to the person
that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder; and (b) as to the stockholder giving the notice (i)
the name and record address of such stockholder, (ii) the class or series
and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by
proxy, at the meeting to nominate the persons named in its notice and (v)
any other information relating to such stockholder that would be required
to be disclosed in a proxy statement or other filings required to be made
in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to being named as a nominee and to serve
as a director if elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in
this Section 10. If the Chairman of the meeting determines that a
nomination was not made in accordance with the foregoing procedures, the
Chairman shall declare to the meeting that the nomination was defective and
such defective nomination shall be disregarded.
SECTION 11. Advance Notice Provisions for Business to be
Transacted at Annual Meeting. No business may be transacted at an annual
meeting of stockholders, other than business that is either (a) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors (or any duly authorized committee
thereof), (b) otherwise properly brought before the annual meeting by or at
the direction of the Board of Directors (or any duly authorized committee
thereof) or (c) otherwise properly brought before the annual meeting by any
stockholder of the Corporation (i) who is a stockholder of record on the
date of the giving of the notice provided for in this Section 11 and on the
record date for the determination of stockholders entitled to vote at such
annual meeting and (ii) who complies with the notice procedures set forth
in this Section 11.
In addition to any other applicable requirements, for business to
be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to
the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of
the Corporation not less than sixty (60) days nor more than ninety (90)
days prior to the date of the annual meeting; provided, however, that in
the event that less than seventy (70) days notice or prior public
disclosure of the date of the annual meeting is given or made to
stockholders, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day
following the day on which such notice of the date of the annual meeting
was mailed or such public disclosure of the date of the annual meeting was
made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes to
bring before the annual meeting (i) a brief description of the business
desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name and record
address of such stockholder, (iii) the class or series and number of shares
of capital stock of the Corporation which are owned beneficially or of
record by such stockholder, (iv) a description of all arrangements or
understandings between such stockholder and any other person or persons
(including their names) in connection with the proposal of such business by
such stockholder and any material interest of such stockholder in such
business and (v) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such business before
the meeting.
No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in
accordance with the procedures set forth in this Section 11, provided,
however that, once business has been properly brought before the annual
meeting in accordance with such procedures, nothing in this Section 11
shall be deemed to preclude discussion by any stockholder of any such
business. If the Chairman of an annual meeting determines that business was
not properly brought before the annual meeting in accordance with the
foregoing procedures, the Chairman shall declare to the meeting that the
business was not properly brought before the meeting and such business
shall not be transacted.
SECTION 12. Order of Business. The order of business at all
meetings of the stockholders shall be determined by the Chairman of the
meeting.
ARTICLE II
----------
Board of Directors
------------------
SECTION 1. Number and Term of Office. The business and affairs of
the Corporation shall be managed by or under the direction of eight (8)
Directors, who need not be stockholders of the Corporation. The Directors
shall, except as hereinafter otherwise provided for filling vacancies, be
elected at the annual meeting of stockholders, and shall hold office until
their respective successors are elected and qualified or until their
earlier resignation or removal. The number of Directors may be altered from
time to time by amendment of these By-Laws.
SECTION 2. Removal, Vacancies and Additional Directors. The
stockholders may, at any special meeting the notice of which shall state
that it is called for that purpose, remove, with or without cause, any
Director and fill the vacancy; provided that whenever any Director shall
have been elected by the holders of any class of stock of the Corporation
voting separately as a class under the provisions of the Certificate of
Incorporation, such Director may be removed and the vacancy filled only by
the holders of that class of stock voting separately as a class. Vacancies
caused by any such removal and not filled by the stockholders at the
meeting at which such removal shall have been made, or any vacancy caused
by the death or resignation of any Director or for any other reason, and
any newly created directorship resulting from any increase in the
authorized number of Directors, may be filled by the affirmative vote of a
majority of the Directors then in office, although less than a quorum, and
any Director so elected to fill any such vacancy or newly created
directorship shall hold office until his successor is elected and qualified
or until his earlier resignation or removal.
When one or more Directors shall resign effective at a future
date, a majority of Directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each Director so chosen shall hold office as herein provided
in connection with the filling of other vacancies.
SECTION 3. Place of Meeting. The Board of Directors may hold its
meetings in such place or places in the State of Delaware or outside the
State of Delaware as the Board from time to time shall determine.
SECTION 4. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times and places as the Board from time to
time by resolution shall determine. No notice shall be required for any
regular meeting of the Board of Directors; but a copy of every resolution
fixing or changing the time or place of regular meetings shall be mailed to
every Director at least five days before the first meeting held in
pursuance thereof.
SECTION 5. Special Meetings. Special meetings of the Board of
Directors shall be held whenever called by direction of the Chairman of the
Board, the President or by any two of the Directors then in office.
Notice of the day, hour and place of holding of each special
meeting shall be given by mailing the same at least two days before the
meeting or by causing the same to be delivered personally or transmitted by
telegraph, facsimile, telex or sent by certified, registered or overnight
mail at least one day before the meeting to each Director. Unless otherwise
indicated in the notice thereof, any and all business other than an
amendment of these By-Laws may be transacted at any special meeting, and an
amendment of these By-Laws may be acted upon if the notice of the meeting
shall have stated that the amendment of these By-Laws is one of the
purposes of the meeting. At any meeting at which every Director shall be
present, even though without any notice, any business may be transacted,
including the amendment of these By-Laws.
SECTION 6. Quorum. Subject to the provisions of Section 2 of this
Article II, a majority of the members of the Board of Directors in office
(but in no case less than one-third of the total number of Directors nor
less than two Directors) shall constitute a quorum for the transaction of
business and the vote of the majority of the Directors present at any
meeting of the Board of Directors at which a quorum is present shall be the
act of the Board of Directors, If at any meeting of the Board there is less
than a quorum present, a majority of those present may adjourn the meeting
from time to time.
SECTION 7. Organization. The Chairman of the Board or, in his
absence, the President shall preside at all meetings of the Board of
Directors. In the absence of the Chairman of the Board and the President, a
Chairman shall be elected from the Directors present. The Secretary of the
Corporation shall act as Secretary of all meetings of the Directors; but in
the absence of the Secretary, the Chairman may appoint any person to act as
Secretary of the meeting.
SECTION 8. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees,
each committee to consist of one or more of the Directors of the
Corporation. The Board may designate one or more Directors as alternate
members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided by resolution passed by a
majority of the whole Board, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
the affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange
of all or substantially all of the Corporations property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending these By-Laws; and unless such
resolution, these By-Laws, or the Certificate of Incorporation expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
SECTION 9. Conference Telephone Meetings. Unless otherwise
restricted by the Certificate of Incorporation or by these By-Laws, the
members of the Board of Directors or any committee designated by the Board,
may participate in a meeting of the Board or such committee, as the case
may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other, and such participation shall constitute presence in person
at such meeting.
SECTION 10. Consent of Directors or Committee in Lieu of Meeting.
Unless otherwise restricted by the Certificate of Incorporation or by these
By-Laws, any action required or permitted to be taken at any meeting of the
Board of Directors, or of any committee thereof, may be taken without a
meeting if all members of the Board or committee, as the case may be,
consent thereto in writing and the writing or writings are filed with the
minutes of proceedings of the Board or committee, as the case may be.
ARTICLE III
-----------
Officers
--------
SECTION 1. Officers. The officers of the Corporation shall be a
Chairman of the Board, a President, one or more Vice Presidents, a Chief
Financial Officer, a Secretary and a Treasurer, and such additional
officers, if any, as shall be elected by the Board of Directors pursuant to
the provisions of Section 7 of this Article III. The Chairman of the Board,
the President, one or more Vice Presidents, a Chief Financial Officer, the
Secretary and the Treasurer shall be elected by the Board of Directors at
its first meeting after each annual meeting of the stockholders. The
failure to hold such election shall not of itself terminate the term of
office of any officer. All officers shall hold office at the pleasure of
the Board of Directors. Any officer may resign at any time upon written
notice to the Corporation. Officers may, but need not, be Directors. Any
number of offices may be held by the same person.
All officers, agents and employees shall be subject to removal,
with or without cause, at any time by the Board of Directors. The removal
of an officer without cause shall be without prejudice to his contract
rights, if any. The election or appointment of an officer shall not of
itself create contract rights. All agents and employees other than officers
elected by the Board of Directors shall also be subject to removal, with or
without cause, at any time by the officers appointing them.
Any vacancy caused by the death of any officer, his resignation,
his removal, or otherwise, may be filled by the Board of Directors, and any
officer so elected shall hold office at the pleasure of the Board of
Directors.
In addition to the powers and duties of the officers of the
Corporation as set forth in these By-Laws, the officers shall have such
authority and shall perform such duties as from time to time may be
determined by the Board of Directors.
SECTION 2. Powers and Duties of the Chairman of the Board, The
Chairman of the Board shall preside at all meetings of the stockholders and
at all meetings of the Board of Directors and shall have such other powers
and perform such other duties as may from time to time be assigned to him
by these By-Laws or by the Board of Directors.
SECTION 3. Powers and Duties of the President. The President
shall be the chief executive officer of the Corporation and, subject to the
control of the Board of Directors and the Chairman of the Board, shall have
general charge and control of all its operations and shall perform all
duties incident to the office of President. In the absence of the Chairman
of the Board, he shall preside at all meetings of the stockholders and at
all meetings of the Board of Directors and shall have such other powers and
perform such other duties as may from time to time be assigned to him by
these By-Laws or by the Board of Directors or the Chairman of the Board.
SECTION 4. Powers and Duties of the Vice Presidents. Each Vice
President shall perform all duties incident to the office of Vice President
and shall have such other powers and perform such other duties as may from
time to time be assigned to him by these By-Laws or by the Board of
Directors, the Chairman of the Board or the President.
SECTION 5. Powers and Duties of the Chief Financial Officer. The
Chief Financial Officer shall be the principal financial officer of the
Corporation, and shall be in charge of, and have control over, all
financial accounting and tax matters regarding the Corporation. The Chief
Financial Officer shall have such other powers and perform such other
duties as may from time to time be assigned to him by these By-Laws or by
the Board of Directors, the Chairman of the Board or the President.
SECTION 6. Powers and Duties of the Secretary. The Secretary
shall keep the minutes of all meetings of the Board of Directors and the
minutes of all meetings of the stockholders in books provided for that
purpose; he shall attend to the giving or serving of all notices of the
Corporation; he shall have custody of the corporate seal of the Corporation
and shall affix the same to such documents and other papers as the Board of
Directors, the Chairman of the Board or the President shall authorize and
direct; he shall have charge of the stock certificate books, transfer books
and stock ledgers and such other books and papers as the Board of
Directors, the Chairman of the Board or the President shall direct, all of
which shall at reasonable times be open to the examination of any Director,
upon application, at the office of the Corporation during business hours;
and he shall perform duties incident to the office of Secretary and shall
also have such other powers and shall perform such other duties as may from
time to time be assigned to him by these By-Laws or the Board of Directors,
the Chairman of the Board or the President.
SECTION 7. Powers and Duties of the Treasurer. The Treasurer
shall act at the direction of the Chief Financial Officer. At the direction
of the Chief Financial Officer, the Treasurer shall have custody of, and
when proper shall pay out, disburse or otherwise dispose of, all funds and
securities of the Corporation which may have come into his hands; he may
endorse on behalf of the Corporation for collection checks, notes and other
obligations and shall deposit the same to the credit of the Corporation in
such bank or banks or depository or depositories as the Board of Directors
may designate; he shall enter or cause to be entered regularly in the books
of the Corporation kept for the purpose full and accurate accounts of all
moneys received or paid or otherwise disposed of by him and whenever
required by the Board of Directors, or the President or Chief Financial
Officer shall render statements of such accounts; he shall, at all
reasonable times, exhibit his books and accounts to any Director of the
Corporation upon application at the office of the Corporation during
business hours; and he shall perform all duties incident to the office of
Treasurer and shall also have such other powers and shall perform such
other duties as may from time to time be assigned to him by these By-Laws
or by the Board of Directors, the Chairman of the Board, or the President
or the Chief Financial Officer.
SECTION 8. Additional Officers. The Board of Directors may from
time to time elect such other officers (who may but need not be Directors),
including a Controller, Assistant Treasurers, Assistant Secretaries and
Assistant Controllers, as the Board may deem advisable and such officers
shall have such authority and shall perform such duties as may from time to
time be assigned to them by the Board of Directors, the Chairman of the
Board or the President.
The Board of Directors may from time to time by resolution
delegate to any Assistant Treasurer or Assistant Treasurers any of the
powers or duties herein assigned to the Treasurer; and may similarly
delegate to any Assistant Secretary or Assistant Secretaries any of the
powers or duties herein assigned to the Secretary.
SECTION 9. Giving of Bond by Officers. All officers of the
Corporation, if required to do so by the Board of Directors, shall furnish
bonds to the Corporation for the faithful performance of their duties, in
such penalties and with such conditions and security as the Board shall
require.
SECTION 10. Voting Upon Stocks. Unless otherwise ordered by the
Board of Directors, the Chairman of the Board, the President or any Vice
President shall have full power and authority on behalf of the Corporation
to attend and to act and to vote, or in the name of the Corporation to
execute proxies to vote, at any meetings of stockholders of any corporation
in which the Corporation may hold stock, and at any such meetings shall
possess and may exercise, in person or by proxy, any and all rights, powers
and privileges incident to the ownership of such stock. The Board of
Directors may from time to time, by resolution, confer like powers upon any
other person or persons.
SECTION 11. Compensation of Officers. The officers of the
Corporation shall be entitled to receive such compensation for their
services as shall from time to time be determined by the Board of
Directors.
ARTICLE IV
----------
Stock-Seal-Fiscal Year
----------------------
SECTION 1. Certificates For Shares of Stock. The certificates for
shares of stock of the Corporation shall be in such form, not inconsistent
with the Certificate of Incorporation, as shall be approved by the Board of
Directors. All certificates shall be signed by the Chairman of the Board,
the President or a Vice President and by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer, and shall not be
valid unless so signed.
In case any officer or officers who shall have signed any such
certificate or certificates shall cease to be such officer or officers of
the Corporation, whether because of death, resignation or otherwise, before
such certificate or certificates shall have been delivered by the
Corporation, such certificate or certificates may nevertheless be issued
and delivered as though the person or persons who signed such certificate
or certificates had not ceased to be such officer or officers of the
Corporation.
All certificates for shares of stock shall be consecutively
numbered as the same are issued. The name of the person owning the shares
represented thereby with the number of such shares and the date of issue
thereof shall be entered on the books of the Corporation.
Except as hereinafter provided, all certificates surrendered to
the Corporation for transfer shall be canceled, and no new certificates
shall be issued until former certificates for the same number of shares
have been surrendered and canceled.
SECTION 2. Lost, Stolen or Destroyed Certificates. Whenever
person owning a certificate for shares of stock of the Corporation alleges
that it has been lost stolen or destroyed, he shall in the office of the
Corporation an affidavit setting forth, to the best of his knowledge and
belief, the time, place and circumstances of the loss, theft or
destruction, and, if required by the Board of Directors, a bond of
indemnity or other indemnification sufficient in the opinion of the Board
of Directors to indemnify the Corporation and its agents against any claim
that may be made against it or them on account of the alleged loss, theft
or destruction of any such certificate or the issuance of a new certificate
in replacement therefor. Thereupon the Corporation may cause to be issued
to such person a new certificate in replacement for the certificate alleged
to have been lost, stolen or destroyed. Upon the stub of every new
certificate so issued shall be noted the fact of such issue and the number,
date and the name of the registered owner of the lost, stolen or destroyed
certificate in lieu of which the new certificate is issued.
SECTION 3. Transfer of Shares. Shares of stock of the Corporation
shall be transferred on the books of the Corporation by the holder thereof,
in person or by his attorney duly authorized in writing, upon surrender and
cancellation of certificates for the number of shares of stock to be
transferred, except as provided in the preceding section.
SECTION 4. Regulations. The Board of Directors shall have power
and authority to make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates for shares
of stock of the Corporation.
SECTION 5. Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting or entitled to receive
payment of any dividend or other distribution or allotment of any rights,
or entitled to exercise any rights in respect of any change, conversion or
exchange of stock Or for the purpose of any other lawful action, as the
case may be, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before
the date of such meeting, nor more than sixty (60) days prior to any other
action.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; the record
date for determining stockholders entitled to express consent to corporate
action in writing without a meeting, when no prior action by the Board of
Directors is necessary, shall be the day on which the first written consent
is expressed; and the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto. A determination
of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the
adjourned meeting.
SECTION 6. Dividends. Subject to the provisions of the
Certificate of Incorporation, the Board of Directors shall have power to
declare and pay dividends upon shares of stock of the Corporation, but only
out of funds available f6r the payment of dividends as provided by law.
Subject to the provisions of the Certificate of Incorporation,
any dividends declared upon the stock of the Corporation shall be payable
on such date or dates as the Board of Directors shall determine. If the
date fixed for the payment of any dividend shall in any year fall upon a
legal holiday, then the dividend payable on such date shall be paid on the
next day not a legal holiday.
SECTION 7. Corporate Seal. The Board of Directors shall provide a
suitable seal, containing the name of the Corporation, which seal shall be
kept in the custody of the Secretary. A duplicate of the seal may be kept
and be used by any officer of the Corporation designated by the Board of
Directors, the Chairman of the Board or the President.
SECTION 8. Fiscal Year. The fiscal year of the Corporation shall
be such fiscal year as the Board of Directors from time to time by
resolution shall determine.
ARTICLE V
---------
Miscellaneous Provisions
------------------------
SECTION 1. Checks, Notes, Etc. All checks, drafts, bills of
exchange, acceptances, notes or other obligations or orders for the payment
of money shall be signed and, if so required by the Board of Directors,
countersigned by such officers of the Corporation and/or other persons as
the Board of Directors from time to time shall designate.
Checks, drafts, bills of exchange, acceptances, notes,
obligations and orders for the payment of money made payable to the
Corporation may be endorsed for deposit to the credit of the Corporation
with a duly authorized depository by the Treasurer, or otherwise as the
Board of Directors may from time to time, by resolution, determine.
SECTION 2. Loans. No loans and no renewals of any loans shall be
contracted on behalf of the Corporation except as authorized by the Board
of Directors. When authorized so to do, any officer or agent of the
Corporation may effect loans and advances for the Corporation from any
bank, trust company or other institution or from any firm, corporation or
individual, and for such loans and advances may make, execute and deliver
promissory notes, bonds or other evidences of indebtedness of the
Corporation. When authorized so to do, any officer or agent of the
Corporation may pledge, hypothecate or transfer, as security for the
payment of any and all loans, advances, indebtedness and liabilities of the
Corporation, any and all stocks, securities and other personal property at
any time held by the Corporation, and to that end may endorse, assign and
deliver the same. Such authority may be general or confined to specific
instances.
SECTION 3. Waivers of Notice. Whenever any notice whatever is
required to be given by law, by the Certificate of Incorporation or by
these By-Laws to any person or persons, a waiver thereof in writing, signed
by the person or persons entitled to the notice, whether before or after
the time stated therein, shall be deemed equivalent thereto.
SECTION 4. Offices Outside of Delaware. Except as otherwise
required by the laws of the State of Delaware, the Corporation may have an
office or offices and keep its books, documents and papers outside of the
State of Delaware at such place or places as from time to time may be
determined by the Board of Directors, the Chairman of the Board or the
President.
SECTION 5. Indemnification of Directors Officers and Employees.
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.
ARTICLE VI
----------
Amendments
----------
These By-Laws and any amendment thereof may be altered, amended
or repealed, or new By-Laws may be adopted, by the Board of Directors at
any regular or special meeting by the affirmative vote of a majority of all
of the members of the Board, provided in the case of any special meeting at
which all of the members of the Board are not present, that the notice of
such meeting shall have stated that the amendment of these By-Laws was one
of the purposes of the meeting; but these By-Laws and any amendment
thereof, including the By-Laws adopted by the Board of Directors, may be
altered, amended or repealed and other By-Laws may be adopted by the
holders of a majority of the total outstanding stock of the Corporation
entitled to vote at any annual meeting or at any special meeting, provided,
in the case of any special meeting, that notice of such proposed
alteration, amendment, repeal or adoption is included in the notice of the
meeting.
EXHIBIT 10.2
EMPLOYMENT AGREEMENT
AGREEMENT made this 10th day of November, 1997, by and between
Mettler-Toledo GmbH (the "Company"), and Lukas Braunschweiler (the
"Executive").
The Executive is presently employed as Head of the Industrial & Retail
Europe Division and as Member of the Group Management Committee of the
METTLER TOLEDO Group ("METTLER TOLEDO").
The Board of Directors of the ultimate parent company (the "Board")
recognizes that the Executive's contribution to the growth and success of
METTLER TOLEDO has been substantial. The Board desires to provide for the
continued employment of the Executive and to make certain changes in the
Executive's employment arrangements with the Company which the Board has
determined will reinforce and encourage the continued attention and
dedication to METTLER TOLEDO of the Executive as a member of METTLER
TOLEDO's management, in the best interest of METTLER TOLEDO and its
shareholders. The Executive is willing to commit himself to continue to
serve METTLER TOLEDO, on the terms and conditions herein provided.
In order to effect the foregoing, the Company and the Executive wish to
enter into an employment agreement on the terms and conditions set forth
below. Accordingly, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and intending to
be legally bound hereby, the parties hereto agree as follows:
SECTION 1. EMPLOYMENT.
The Company hereby agrees to continue to employ the Executive, and the
Executive hereby agrees to continue to serve METTLER TOLEDO, on the terms
and conditions set forth herein.
SECTION 2. TERM.
This Agreement enters info force as of November 10, 1997. It is of
unlimited duration.
SECTION 3. POSITION AND DUTIES.
During the Term, the Executive shall serve as Head of the Industrial &
Retail Europe Division and as Member of the Group Management Committee of
METTLER TOLEDO and shall hove such responsibilities, duties and authority
as he may have as of the date hereof and as may from time to time be
assigned to the Executive by the Board that ore consistent with such
responsibilities, duties and authority.
SECTION 4. PLACE OF PERFORMANCE.
In connection with the Executive's employment by the Company, the Executive
shall be based at the principal executive offices of METTLER TOLEDO in
Greifensee, Switzerland, except for required travel on METTLER TOLEDO's
business to an extent substantially consistent with present business travel
obligations.
SECTION 5. COMPENSATION AND RELATED MATTERS.
(a) SALARY.
During the Term, the Company shall pay to the Executive an annual base
salary at a rate of CHF 244'000.-- or such higher rate as may from time to
time be determined by the Board, such salary to be paid in substantially
equal installments in accordance with the Company's payroll practices for
its senior executives. This salary may be increased from time to time in
accordance with normal business practices of the Company. Compensation of
the Executive by salary payments shall not be deemed exclusive and shall
not prevent the Executive from participating in any other compensation or
benefit plan of the Company. The salary payments (including any increased
salary payments) hereunder shall not in any way limit or reduce any other
obligation of the Company hereunder, and no other compensation, benefit or
payment hereunder shall in any way limit or reduce the obligation of the
Company to pay the Executive's salary hereunder.
(b) BONUS.
During the Term, the Executive shall be entitled to earn annual incentive
compensation in accordance with the POBS Plus Plan for Senior Management,
as attached hereto as Exhibit Al.
(c) EXPENSES.
(1) Expenses shall be reimbursed according to the Company expense
regulations as amended from time to time.
(ii) In addition the Executive is entitled to flat compensation for minor
expenses according to the Group Management Committee Supplement to the
expense regulations, as amended from time to time, as attached hereto as
Exhibit Bl.
(d) OTHER BENEFITS.
(i) The Company shall maintain in full force and effect, and the Executive
shall be entitled to continue to participate in, all of the Company's
insurance benefit plans and arrangements in effect on the date hereof in
which the Executive participates or plans or arrangements providing the
Executive with at least equivalent benefits thereunder (including, Without
limitation, the Mettler-Toledo Fonds pension scheme for senior management,
and the Company's accident plan and disability plan), provided that the
Company shall not make any changes in such plans or arrangements that would
adversely affect the Executive's rights or benefits thereunder; provided,
however, that, such a change may be made, including termination of such
plans or arrangements if it occurs pursuant to a program applicable to all
executives of the Company and does not result in a proportionately greater
reduction in the rights of or benefits to the Executive as compared with
any other executive of the Company. The Executive shall be entitled to
participate in or receive benefits under any employee benefit plan or
arrangement made available by the Company in the future to its executives
and key management employees, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and
arrangements. Nothing paid to the Executive under any plan or arrangement
presently in effect or made available in the future shall be deemed to be
in lieu of the salary payable to the Executive pursuant to paragraph (a) of
this Section.
(ii) The Executive shall be entitled to participation in the (x)
Mettler-Toledo Group Management Committee Stock Purchase Plan, and (y) the
Mettler-Toledo Management Share Option Plan, each as may be amended from
time to time.
(iii) Any payments or benefits payable to the Executive under this
Agreement in respect of any calendar year during which the Executive is
employed by the Company for less than the entire such year shall, unless
otherwise provided in the applicable plan or arrangement, be prorated in
accordance with the number of full and partial months in such calendar year
during which he is so employed.
(e) VACATIONS.
The Executive shall be entitled to no less than 30 paid vacation days in
each calendar year. The Executive shall also be entitled to all paid
holidays and personal days given by the Company to its executives.
SECTION 6. OFFICES.
Subject to Sections 3 and 4, the Executive agrees to serve without
additional compensation, if elected or appointed thereto, as a director of
any of METTLER TOLEDO's group companies, and in one or more executive
offices of any of METTLER TOLEDO's group companies.
SECTION 7. TERMINATION.
a) This Agreement may be terminated by either party with or without cause
giving twelve (12) months notice to the end of a calendar month,
subject, however, to the provisions allowing for immediate termination
according to Article 337 of the Swiss Code of Obligations ("Article
337").
b) The Executive may terminate his employment under Article 337 in case
of failure by the Company to comply with any material provision of
this Agreement.
SECTION 8. COMPENSATION UPON TERMINATION.
During the notice period, the Executive is entitled to full compensation as
defined in Section 5 of this Agreement and in the annexes / exhibits
therein referred to.
SECTION 9. NO MITIGATION OR OFFSET / NONCOMPETITION.
During notice periods, the Company may waive the services of the Executive.
If the Company so decides, the Executive shall have no duty to mitigate
damages by seeking another employment or otherwise, nor shall the amount of
any payment or benefit due under Section 5 be reduced by any compensation
earned by the Executive as the result of an employment by another employer,
by retirement benefits (other than as paid by the Company or under Company
benefits schemes) or by offset against any amount claimed to be owed by the
Executive to the Company. While the Executive is employed by the Company
hereunder and for a period of twelve (12) months after the termination of
the Executive's employment, the Executive shall not knowingly engage in or
be employed by any business anywhere in the world which competes With the
principal businesses of the Company or its affiliates as conducted at the
date of such employment termination.
SECTION 10. SUCCESSORS; BINDING AGREEMENT.
(a) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially 911
of the business and / or assets of the Company, by agreement in form and
substance satisfactory to the Executive, to expressly assume and agree to
perform this Agreement in same manner and to the some extent that the
Company would be required to perform it if no such succession had taken
place. Failure of the Company to obtain such assumption and agreement prior
to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company
in the some amount and on the same terms as he would be entitled to under
Sections 7 and 8 hereof if the Company had terminated his employment under
Section 7 (a) hereof. As used in this Agreement, Company shall mean the
Company as herein before defined and any successor to its business and/or
assets as aforesaid which executes and delivers the agreement provided for
in this Section 11 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
(b) If the Executive should die after the giving of notice pursuant to
Section 7 but while any amounts would still be payable to him hereunder if
he had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the
Executive's devisee, legatee, or other designee or, if there be no such
designee, to the Executive's estate. If the Executive should die before the
giving of such notice under Section 7 and while he is employed pursuant to
this Agreement, the Company shall continue to pay to the Executive's estate
his salary for the period of six months from the date of such death and a
pro rata portion of the bonus, if any, payable for the year in which the
Executive died.
SECTION 11. NOTICE.
For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall
be deemed to hove been duly given when delivered or (unless otherwise
specified) mailed by US or Swiss certified or registered mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Executive:
Mr. Lukas Braunschweiler
Sonnhaldenstrasse 91
CH-6331 Hunenberg
Switzerland
If to the Company"
Mettler-Toledo GmbH
Im Langacher
8606 Greifensee
Switzerland
Attn.: Chief Executive Officer
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
SECTION 12. MISCELLANEOUS.
No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing
signed by the Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto at
any time of any breach by the other party hereto of, or compliance with,
any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the some or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which ore not set
forth expressly in this Agreement. Insofar as this Agreement does not
stipulate anything else to the contrary, the General Rules of Employment
("Allgemeine Arbeitsvertragliche Bestimmungen / AVB") of the Company shall
be applicable. The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of Switzerland.
SECTION 13. VALIDITY.
The invalidity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
SECTION 14. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together will constitute
one and the some instrument.
SECTION 15. DISPUTES.
All disputes between the Executive and the Company concerning the terms and
conditions of this Agreement shall be brought before the ordinary courts in
the Canton of Zurich, Switzerland.
SECTION 16. ENTIRE AGREEMENT.
This Agreement sets forth the entire agreement of the parties hereto in
respect of the subject matter contained herein and supersedes all prior
agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer,
employee or representative of any party hereto; and any prior agreement of
the parties; hereto in respect of the subject matter contained herein is
hereby terminated and canceled.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
Mettler-Toledo GmbH,
by: /s/ ROBERT F. SPOERRY
------------------------
Robert F. Spoerry
by: /s/ PETER BURKER
------------------------
Peter Burker
by: /s/ LUKAS BRAUNSCHWEILER
-------------------------
Lukas Braunschweiler
EXHIBIT 10.3
EMPLOYMENT AGREEMENT
AGREEMENT made this 10th day of November, 1997, by and between
Mettler-Toledo GmbH (the Company), and William P. Donnelly (the
"Executive").
The Executive is presently employed as Chief Financial Officer and as
Member of the Group Management Committee of the METTLER TOLEDO Group
("METTLER TOLEDO").
The Board of Directors of the ultimate parent company (the "Board")
recognizes the Executive's contribution to the success of METTLER TOLEDO.
The Board desires to provide for the continued employment of the Executive
and to set up an employment arrangement with the Company which the Board
has determined will reinforce and encourage the continued attention and
dedication to METTLER TOLEDO of the Executive as a member of METTLER
TOLEDO's management, in the best interest of METTLER TOLEDO and its
shareholders. The Executive is willing to commit himself to continue to
serve METTLER TOLEDO, on the terms and conditions herein provided.
In order to effect the foregoing, the Company and the Executive wish to
enter into an employment agreement on the terms and conditions set forth
below. Accordingly, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and intending to
be legally bound hereby, the parties hereto agree as follows:
SECTION 1. EMPLOYMENT.
The Company hereby agrees to continue to employ the Executive, and the
Executive hereby agrees to continue to serve METTLER TOLEDO, on the terms
and conditions set forth herein.
SECTION 2. TERM.
This Agreement enters into force as of November 10, 1997. It is of
unlimited duration.
SECTION 3. POSITION AND DUTIES.
During the Term, the Executive shall serve as Chief Financial Officer and
as Member of the Group Management Committee of METTLER TOLEDO and shall
have such responsibilities, duties and authority as he may have as of the
date hereof and as may from time to time be assigned to the Executive by
the Board that are consistent with such responsibilities, duties and
authority.
SECTION 4. PLACE OF PERFORMANCE.
In connection with the Executive's employment by the Company, the Executive
shall be based at the principal executive offices of METTLER TOLEDO in
Greifensee, Switzerland, except for required travel on METTLER TOLEDO's
business to an extent substantially consistent with present business travel
obligations.
SECTION 5. COMPENSATION AND RELATED MATTERS.
(a) SALARY.
During the Term, the Company shall pay to the Executive an annual base
salary at a rate of CHF 240'000 -- or such higher rate as may from time to
time be determined by the Board, such salary to be paid in substantially
equal installments in accordance with the Company's payroll practices for
its senior executives. This salary may be increased from time to time in
accordance with normal business practices of the Company. Compensation of
the Executive by salary payments shall not be deemed exclusive and shall
not prevent the Executive from participating in any other compensation or
benefit plan of the Company. The salary payments (including any increased
salary payments) hereunder, shall not in any way limit or reduce any other
obligation of the Company hereunder, and no other compensation, benefit or
payment hereunder shall in any way limit or reduce the obligation of the
Company to pay the Executive's salary hereunder.
(b) BONUS.
During the Term, the Executive shall be entitled to earn annual incentive
compensation in accordance with the POBS Plus Plan for Senior Management,
as attached hereto as Exhibit A.
(c) EXPENSES.
(i) Expenses shall be reimbursed according to the Company expense
regulations as amended from time to time.
(ii) In addition the Executive is entitled to flat compensation for minor
expenses according to the Group Management Committee Supplement to the
expense regulations, as amended from time to time, as attached hereto as
Exhibit B.
(d) OTHER BENEFITS.
(i) The Company shall maintain in full force and effect, and the Executive
shall be entitled to continue to participate in, all of the Company's
insurance benefit plans and arrangements in effect on the date hereof in
which the Executive participates or plans or arrangements providing the
Executive with at least equivalent benefits thereunder (including, without
limitation, the Mettler-Toledo Fonds pension scheme for senior management,
and the Company's accident plan and disability plan), provided that the
Company shall not make any changes in such plans or arrangements that would
adversely affect the Executive's rights or benefits thereunder; provided,
however, that such a change may be made, including termination of such
plans or arrangements if it occurs pursuant to a program applicable to all
executives of the Company and does not result in a proportionately greater
reduction in the rights of or benefits to the Executive as compared with
any other executive of the Company. The Executive shall be entitled to
participate in or receive benefits under any employee benefit plan or
arrangement made available by the Company in the future to its executives
and key management employees, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and
arrangements. Nothing paid to the Executive under any plan or arrangement
presently in effect or made available in the future shall be deemed to be
in lieu of the salary payable to the Executive pursuant to paragraph (a) of
this Section.
(ii) The Executive shall be entitled to participation in the (x)
Mettler-Toledo Group Management Committee Stock Purchase Plan, and (y) the
Mettler-Toledo Management Share Option Plan, each as may be amended from
time to time.
(iii) Any payments or benefits payable to the Executive under this
Agreement in respect of any calendar year during which the Executive is
employed by the Company for less than the entire such year shall, unless
otherwise provided in the applicable plan or arrangement, be prorated in
accordance with the number of full and partial months in such calendar year
during which he is so employed.
(e) VACATIONS.
The Executive shall be entitled to no less than 30 paid vacation days in
each calendar year. The Executive shall also be entitled to all paid
holidays and personal days given by the Company to its executives.
(f) HOUSING ALLOWANCE.
The Company will contribute to the cost of housing in Switzerland by paying
a special allowance of CHF 36'000 -- per year (paid out in 12 monthly
installments of CHF 3'000).
(g) SCHOOLING FOR CHILDREN.
The Company will reimburse the Executive for the schooling fees for his
children should they go to an international school.
(h) HOME LEAVE.
The Company pays for economy air fares to the US and back to Switzerland
for the Executive, his wife and children once in a calendar year.
(i) SIGN ON BONUS.
The Company has paid to the Executive a one time sign on bonus in the
amount of USD 75'000 -- to compensate for the loss of incentive and stock
options with his previous employer. This bonus becomes partially refundable
if the Executive leaves the Company earlier than 3 years after the starting
date, which has been April 1, 1997 (USD 50'000 -- after year one, USD
25'000 -- after year two).
SECTION 6. OFFICES.
Subject to Sections 3 and 4, the Executive agrees to serve without
additional compensation, if elected or appointed thereto, as a director of
any of METTLER TOLEDO's group companies, and in one or more executive
offices of any of METTLER TOLEDO's group companies.
SECTION 7. TERMINATION.
a) This Agreement may be terminated by either party with or without cause
giving twelve (12) months notice to the end of a calendar month,
subject, however, to the provisions allowing for immediate termination
according to Article 337 of the Swiss Code of Obligations (Article
337).
b) The Executive may terminate his employment under Article 337 in case
of failure by the Company to comply with any material provision of
this Agreement.
SECTION 8. COMPENSATION UPON TERMINATION.
During the notice period, the Executive is entitled to full compensation as
defined in Section 5 of this Agreement and in the annexes/exhibits therein
referred to.
SECTION 9. NO MITIGATION OR OFFSET/NONCOMPETITION.
During notice periods, the Company may waive the services of the Executive.
If the Company so decides, the Executive shall have no duty to mitigate
damages by seeking another employment or otherwise, nor shall the amount of
any payment or benefit due under Section 5 be reduced by any compensation
earned by the Executive as the result of an employment by another employer,
by retirement benefits (other than as paid by the Company or under Company
benefits schemes) or by offset against any amount claimed to be owed by the
Executive to the Company. While the Executive is employed by the Company
hereunder and for a period of twelve (12) months after the termination of
the Executive's employment, the Executive shall not knowingly engage in or
be employed by any business anywhere in the world which competes with the
principal businesses of the Company or its affiliates as conducted at the
date of such employment termination.
SECTION 10. SUCCESSORS; BINDING AGREEMENT.
(a) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all
of the business and/or assets of the Company, by agreement in form and
substance satisfactory to the Executive, to expressly assume and agree to
perform this Agreement in same manner and to the some extent that the
Company would be required to perform it if no such succession had taken
place. Failure of the Company to obtain such assumption and agreement prior
to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company
in the same amount and on the some terms as he would be entitled to under
Sections 7 and 8 hereof if the Company had terminated his employment under
Section 7 (a) hereof. As used in this Agreement, "Company" shall mean the
Company as herein before defined and any successor to its business and/or
assets as aforesaid which executes and delivers the agreement provided for
in this Section 11 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of low.
(b) If the Executive should die after the giving of notice pursuant to
Section 7 but while any amounts would still be payable to him hereunder if
he had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the
Executive's devisee, legatee, or other designee or, if there be no such
designee, to the Executive's estate. If the Executive should die before the
giving of such notice under Section 7 and while he is employed pursuant to
this Agreement, the Company shall continue to pay to the Executive's estate
his salary for the period of six months from the date at such death and a
pro rata portion of the bonus, if any, payable for the year in which the
Executive died.
SECTION 11. NOTICE.
For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall
be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by US or Swiss certified or registered mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Executive:
Mr. William P. Donnelly
Alte Seefeldstrasse 72A
8616 Riedikon
Switzerland
If to the Company:
Mettler-Toledo GmbH
Im Longacher
8606 Greifensee
Switzerland
Attn.: Chief Executive Officer
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
SECTION 12. MISCELLANEOUS.
No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing
signed by the Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto at
any time of any breach by the other party hereto of, or compliance with,
any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the some or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set
forth expressly in this Agreement. Insofar as this Agreement does not
stipulate anything else to the contrary, the General Rules of Employment
("Allgemeine Arbeitsvertragliche Bestimmungen/AVB") of the Company shall be
applicable. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of Switzerland.
SECTION 13. VALIDITY.
The invalidity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
SECTION 14. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together will constitute
one and the some instrument.
SECTION 15. DISPUTES.
All disputes between the Executive and the Company concerning the terms and
conditions of this Agreement shall be brought before the ordinary courts in
the Canton of Zurich, Switzerland.
SECTION 16. ENTIRE AGREEMENT.
This Agreement sets forth the entire agreement of the parties hereto in
respect of the subject matter contained herein and supersedes all prior
agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer,
employee or representative of any party hereto; and any prior agreement of
the parties hereto in respect of the subject matter contained herein is
hereby terminated and canceled.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
Mettler-Toledo GmbH,
by: /s/ ROBERT F. SPOERRY
-------------------------------
Robert F. Spoerry
by: /s/ PETER BURKER
-------------------------------
Peter Burker
by: /s/ WILLIAM P. DONNELLY
-------------------------------
William P. Donnelly
EXHIBIT 10.4
EMPLOYMENT AGREEMENT
AGREEMENT made this 10th day of November 1997, by and between
Mettler-Toledo GmbH (the "Company"), and Karl M. Lang (the "Executive").
The Executive is presently employed as Head of the Laboratory Division and
as Member of the Group Management Committee of the METTLER TOLEDO Group
("METTLER TOLEDO").
The Board of Directors of the ultimate parent company (the "Board")
recognizes that the Executive's contribution to the growth and success of
METTLER TOLEDO has been substantial. The Board desires to provide for the
continued employment of the Executive and to make certain changes in the
Executive's employment arrangements with the Company which the Board has
determined will reinforce and encourage the continued attention and
dedication to METTLER TOLEDO of the Executive as a member of METTLER
TOLEDO's management, in the best interest of METTLER TOLEDO and its
shareholders. The Executive is willing to commit himself to continue to
serve METTLER TOLEDO, on the terms and conditions herein provided.
In order to effect the foregoing, the Company and the Executive wish to
enter into an employment agreement on the terms and conditions set forth
below. Accordingly, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and intending to
be legally bound hereby, the parties hereto agree as follows:
SECTION 1. EMPLOYMENT.
The Company hereby agrees to continue to employ the Executive, and the
Executive hereby agrees to continue to serve METTLER TOLEDO, on the terms
and conditions set forth herein.
SECTION 2. TERM.
This Agreement enters into force as of November 10, 1997. it is of
unlimited duration.
SECTION 3. POSITION AND DUTIES.
During the Term, the Executive shall serve as Head of the Laboratory
Division and as Member of the Group Management Committee of METTLER TOLEDO
and shall hove such responsibilities, duties and authority as he may have
as of the date hereof and as may from time to time be assigned to the
Executive by the Board that are consistent with such responsibilities,
duties and authority.
SECTION 4. PLACE OF PERFORMANCE.
In connection with the Executive's employment by the Company, the Executive
shall be based at the principal executive offices of METTLER TOLEDO in
Greifensee, Switzerland, except for required travel on METTLER TOLEDO's
business to an extent substantially consistent with present business travel
obligations.
SECTION 5. COMPENSATION AND RELATED MATTERS.
(a) SALARY.
During the Term, the Company shall pay to the Executive an annual base
salary at a rote of CHF 247'200. -- or such higher rate as may from time to
time be determined by the Board, such salary to be paid in substantially
equal installments in accordance with the Company's payroll practices for
its senior executives. This salary may be increased from time to time in
accordance with normal business practices of the Company. Compensation of
the Executive by salary payments shall not be deemed exclusive and shall
not prevent the Executive from participating in any other compensation or
benefit plan of the Company. The salary payments (including any increased
salary payments) hereunder shall not in any way limit or reduce any other
obligation of the Company hereunder, and no other compensation, benefit or
payment hereunder shall in any way limit or reduce the obligation of the
Company to pay the Executive's salary hereunder.
(b) BONUS.
During the Term, the Executive shall be entitled to earn annual incentive
compensation in accordance with the POBS Plus Plan for Senior Management,
as attached hereto as Exhibit Al.
(C) EXPENSES.
(i) Expenses shall be reimbursed according to the Company expense
regulations as amended from time to time.
(ii) In addition the Executive is entitled to flat compensation for minor
expenses according to the Group Management Committee Supplement to the
expense regulations, as amended from time to time, as attached hereto as
Exhibit Bl.
(d) OTHER BENEFITS.
(i) The Company shall maintain in full force and effect, and the Executive
shall be entitled to continue to participate in, all of the Company's
insurance benefit plans and arrangements in effect on the date hereof in
which the Executive participates or plans or arrangements providing the
Executive with at least equivalent benefits thereunder (including, without
limitation, the Mettler-Toledo Fonds pension scheme for senior management,
and the Company's accident plan and disability plan), provided that the
Company shall not make any changes in such plans or arrangements that would
adversely affect the Executive's rights or benefits thereunder, provided,
however, that such a change may be made, including termination of such
plans or arrangements if it occurs pursuant to a program applicable to all
executives of the Company and does not result in a proportionately greater
reduction in the rights of or benefits to the Executive as compared with
any other executive of the Company. The Executive shall be entitled to
participate in or receive benefits under any employee benefit plan or
arrangement made available by the Company in the future to its executives
and key management employees, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and
arrangements. Nothing paid to the Executive under any plan or arrangement
presently in effect or made available in the future shall be deemed to be
in lieu of the salary payable to the Executive pursuant to paragraph (a) of
this Section.
(ii) The Executive shall be entitled to participation in the (x)
Mettler-Toledo Group Management Committee Stock Purchase Plan, and (y) the
Mettler-Toledo Management Share Option Plan, each as may be amended from
time to time.
(iii) Any payments or benefits payable to the Executive under this
Agreement in respect of any calendar year during which the Executive is
employed by the Company for less than the entire such year shall, unless
otherwise provided in the applicable plan or arrangement, be prorated in
accordance with the number of full and partial months in such calendar year
during which he is so employed.
(e) VACATIONS.
The Executive shall be entitled to no less than 30 paid vacation days in
each calendar year. The Executive shall also be entitled to all paid
holidays and personal days given by the Company to its executives.
SECTION 6. OFFICES.
Subject to Sections 3 and 4, the Executive agrees to serve without
additional compen-sation, if elected or appointed thereto, as a director of
any of METTLER TOLEDO's group companies, and in one or more executive
offices of any of METTLER TOLEDO's group companies.
SECTION 7. TERMINATION.
a) This Agreement may be terminated by either party with or without cause
giving twelve (12) months notice to the end of a calendar month,
subject, however, to the provisions allowing for immediate termination
according to Article 337 of the Swiss Code of Obligations ("Article
337"),
b) The Executive may terminate his employment under Article 337 in case
of failure by the Company to comply with any material provision of
this Agreement.
SECTION 8. COMPENSATION UPON TERMINATION.
During the notice period, the Executive is entitled to full compensation as
defined in Section 5 of this Agreement and in the annexes / exhibits
therein referred to.
SECTION 9. NO MITIGATION OR OFFSET / NONCOMPETITION.
During notice periods, the Company may waive the services of the Executive.
If the Company so decides, the Executive shall have no duty to mitigate
damages by seeking another employment or otherwise, nor shall the amount of
any payment or benefit due under Section 5 be reduced by any compensation
earned by the Executive as the result of an employment by another employer,
by retirement benefits (other than as paid by the Company or under Company
benefits schemes) or by offset against any amount claimed to be owed by the
Executive to the Company. While the Executive is employed by the Company
hereunder and for a period of twelve (12) months after the termination of
the Executive's employment, the Executive shall not knowingly engage in or
be employed by any business anywhere in the world which competes with the
principal businesses of the Company or its affiliates as conducted at the
date of such employment termination.
SECTION 10. SUCCESSORS; BINDING AGREEMENT.
(a) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all
of the business and / or assets of the Company, by agreement in form and
substance satisfactory to the Executive, to expressly assume and agree to
perform this Agreement in same manner and to the some extent that the
Company would be required to perform it if no such succession had taken
place. Failure of the Company to obtain such assumption and agreement prior
to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company
in the same amount and on the same terms as he would be entitled to under
Sections 7 and 8 hereof if the Company had terminated his employment under
Section 7 (a) hereof. As used in this Agreement, "Company" shall mean the
Company as herein before defined and any successor to its business and / or
assets as aforesaid which executes and delivers the agreement provided for
in this Section 11 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of low.
(b) If the Executive should die after the giving of notice pursuant to
Section 7 but while any amounts would still be payable to him hereunder if
he had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the
Executive's devisee, legatee, or other designee or, if there be no such
designee, to the Executive's estate. If the Executive should die before the
giving of such notice under Section 7 and while he is employed pursuant to
this Agreement, the Company shall continue to pay to the Executive's estate
his salary for the period of six months from the date of such death and a
pro rata portion of the bonus, if any, payable for the year in which the
Executive died.
SECTION 11. NOTICE.
For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall
be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by US or Swiss certified or registered mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Executive:
Mr. Karl M. Lang
Ceresstrasse 27
8008 Zurich
Switzerland
If to the Company:
Mettler-Toledo GmbH
Im Langacher
8606 Greifensee
Switzerland
Attn.: Chief Executive Officer
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
SECTION 12. MISCELLANEOUS.
No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing
signed by the Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto at
any time of any breach by the other party hereto of, or compliance with,
any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the some or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set
forth expressly in this Agreement. Insofar as this Agreement does not
stipulate anything else to the contrary, the General Rules of Employment
("Allgemeine Arbeitsvertragliche Bestimmungen / AVB") of the Company shall
be applicable. The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of Switzerland.
SECTION 13, VALIDITY.
The invalidity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
SECTION 14. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together will constitute
one and the same instrument.
SECTION 15. DISPUTES.
All disputes between the Executive and the Company concerning the terms and
conditions of this Agreement shall be brought before the ordinary courts in
the Canton of Zurich, Switzerland.
SECTION 16. ENTIRE AGREEMENT.
This Agreement sets forth the entire agreement of the parties hereto in
respect of the subject matter contained herein and supersedes all prior
agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer,
employee or representative of any party hereto; and any prior agreement of
the parties hereto in respect of the subject matter contained herein is
hereby terminated and canceled.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
Mettler-Toledo GmbH,
by:/s/ ROBERT F. SPOERRY
---------------------------
Robert F. Spoerry
by:/s/ PETER BURKER
---------------------------
Peter Burker
by:/s/ KARL M. LANG
---------------------------
Karl M. Lang
EXHIBIT 10.5
EMPLOYMENT AGREEMENT
AGREEMENT made this 10th day of November, 1997, by and between
Mettler-Toledo Inc. (the "Company"), and John D. Robechek (the
"Executive").
The Executive is presently employed as Head of Industrial and Retail
Division Americas and as Member of the Group Management Committee of the
METTLER TOLEDO Group ("METTLER TOLEDO").
The Board of Directors of the ultimate parent company (the "Board")
recognizes that the Executive's contribution to the growth and success of
METTLER TOLEDO has been substantial. The Board desires to provide for the
continued employment of the Executive and to make certain changes in the
Executive's employment arrangements with the Company which the Board has
determined will reinforce and encourage the continued attention and
dedication to METTLER TOLEDO of the Executive as a member of METTLER
TOLEDO's management, in the best interest of METTLER TOLEDO and its
shareholders. The Executive is willing to commit himself to continue to
serve METTLER TOLEDO, on the terms and conditions herein provided.
In order to effect the foregoing, the Company and the Executive wish to
enter into an employment agreement on the terms and conditions set forth
below. Accordingly, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and intending to
be legally bound hereby, the parties hereto agree as follows:
SECTION 1. EMPLOYMENT.
The Company hereby agrees to continue to employ the Executive, and the
Executive hereby agrees to continue to serve METTLER TOLEDO, on the terms
and conditions set forth herein.
SECTION 2. TERM.
This Agreement enters into force as of November 10, 1997. It is of
unlimited duration.
SECTION 3. POSITION AND DUTIES.
During the Term, the Executive shall serve as Head of Industrial and Retail
Division Americas and as Member of the Group Management Committee of
METTLER TOLEDO and shall have such responsibilities, duties and authority
as he may have as of the date hereof and as may from time to time be
assigned to the Executive by the Board that are consistent with such
responsibilities, duties and authority.
SECTION 4. PLACE OF PERFORMANCE.
In connection with the Executive's employment by the Company, the Executive
shall be based at the executive offices of METTLER TOLEDO in Worthington,
Ohio, USA, except for required travel on METTLER TOLEDO's business to on
extent substantially consistent with present business travel obligations.
SECTION 5. COMPENSATION AND RELATED MATTERS.
(a) SALARY.
During the Term, the Company shall pay to the Executive an annual base
salary at a rate of USD 220'000. -- or such higher rate as may from time to
time be determined by the Board, such salary to be paid in substantially
equal installments in accordance with the Company's payroll practices for
its senior executives. This salary may be increased from time to time in
accordance with normal business practices of the Company. Compensation of
the Executive by salary payments shall not be deemed exclusive and shall
not prevent the Executive from participating in any other compensation or
benefit plan of the Company. The salary payments (including any increased
salary payments) hereunder shall not in any way limit or reduce any other
obligation of the Company hereunder, and no other compensation, benefit or
payment hereunder shall in any way limit or reduce the obligation of the
Company to pay the Executive's salary hereunder.
(b) BONUS.
During the Term, the Executive shall be entitled to earn annual incentive
compensation in accordance with the POBS Plus Plan for Senior Management,
as attached hereto as Exhibit Al.
(c) EXPENSES.
Expenses shall be reimbursed according to the Company expense regulations
as amended from time to time.
(d) OTHER BENEFITS.
(i) The Company shall maintain in full force and effect, and the Executive
shall be entitled to continue to participate in, all of the Company's
insurance benefit plans and arrangements in effect on the date hereof in
which the Executive participates or plans or arrangements providing the
Executive with at least equivalent benefits thereunder (including, without
limitation, the Mettler-Toledo, Inc. Pension Plan, the 401 K Retirement
Plan, and the Company's medical and life / accident / disability plans),
provided that the Company shall not make any changes in such plans or
arrangements that would adversely affect the Executive's rights or benefits
thereunder; provided, however, that, such a change may be made, including
termination of such plans or arrangements if it occurs pursuant to a
program applicable to all executives of the Company and does not result in
a proportionately greater reduction in the rights of or benefits to the
Executive as compared with any other executive of the Company. The
Executive shall be entitled to participate in or receive benefits under any
employee benefit plan or arrangement made available by the Company in the
future to its executives and key management employees, subject to and on a
basis consistent with the terms, conditions and overall administration of
such plans and arrangements. Nothing paid to the Executive under any plan
or arrangement presently in effect or made available in the future shall be
deemed to be in lieu of the salary payable to the Executive pursuant to
paragraph (a) of this Section.
(ii) The Executive shall be entitled to participation in the (x)
Mettler-Toledo Group Management Committee Stock Purchase Plan, and (y) the
Mettler-Toledo Management Share Option Plan, each as may be amended from
time to time.
(iii) Any payments or benefits payable to the Executive under this
Agreement in respect of any calendar year during which the Executive is
employed by the Company for less than the entire such year shall, unless
otherwise provided in the applicable plan or arrangement, be prorated in
accordance with the number of full and partial months in such calendar year
during which he is so employed.
(e) VACATIONS.
The Executive shall be entitled to no less than 20 paid vacation days in
each calendar year. The Executive shall also be entitled to all paid
holidays and personal days given by the Company to its executives.
(f) COMPANY CAR.
The Executive shall be provided with the company car that he has been
provided with by the Company as of the date hereof (or a similar car as a
replacement therefore), always in line with the actually valid car policy
and rules for the senior management staff of the Company.
SECTION 6. OFFICES.
Subject to Sections 3 and 4, the Executive agrees to serve without
additional compensation, if elected or appointed thereto, as a director of
any of METTLER TOLEDO's group companies, and in one or more executive
offices of any of METTLER TOLEDO's group companies.
SECTION 7. TERMINATION.
(a) This Agreement may be terminated by either party without cause by
giving twelve (12) months notice in writing to the end of a month, and
shall terminate at the end of such notice period.
(b) The Company may terminate the Executive's employment hereunder without
any breach of this Agreement and without a twelve months notice period only
under the following circumstances:
(aa) Death: The Executive's employment hereunder shall terminate upon
his death.
(bb) Disability: If, as a result of the Executive's incapacity due to
physical or mental illness, the Executive shall have been absent from
his duties hereunder on a full-time basis for the entire period of six
consecutive months, and within thirty (30) days after written notice
of termination is given (which may occur before or after the end of
such six month period) shall not have returned to the performance of
his duties hereunder on a full-time basis, the Company may terminate
the Executive's employment hereunder.
(cc) Cause: The Company may terminate the Executive's employment
hereunder for cause, with immediate effect.
(c) The Executive may terminate his employment in case of failure by the
Company to comply with any material provision of this Agreement with
immediate effect.
SECTION 8. COMPENSATION UPON TERMINATION.
During the notice period, the Executive is entitled to full compensation as
defined in Section 5 of this Agreement and in the annexes / exhibits
therein referred to.
During the disability period of 6 months, the Executive is entitled to full
compensation as defined in Section 5 of this Agreement and in the annexes /
exhibits therein referred to, while his employment is terminated pursuant
to Section 7(b)(bb) hereof.
SECTION 9. NO MITIGATION OR OFFSET / NONCOMPETITION.
During notice periods, the Company may waive the services of the Executive.
If the Company so decides, the Executive shall have no duty to mitigate
damages by seeking another employment or otherwise, nor shall the amount of
any payment or benefit due under Section 5 be reduced by any compensation
earned by the Executive as the result of an employment by another employer,
by retirement benefits (other than as paid by the Company or under Company
benefits schemes) or by offset against any amount claimed to be owed by the
Executive to the Company. While the Executive is employed by the Company
hereunder and for a period of twelve (12) months after the termination of
the Executive's employment, the Executive shall not knowingly engage in or
be employed by any business anywhere in the world which competes with the
principal businesses of the Company or its affiliates as conducted at the
date of such employment termination.
SECTION 10. SUCCESSORS; BINDING AGREEMENT.
(a) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all
of the business and/or assets of the Company, by agreement in form and
substance satisfactory to the Executive, to expressly assume and agree to
perform this Agreement in some manner and to the some extent that the
Company would be required to perform it if no such succession had taken
place. Failure of the Company to obtain such assumption and agreement prior
to the effectiveness of any such succession shall, be a breach of this
Agreement and shall entitle the Executive to compensation from the Company
in the some amount and on the some terms as he would be entitled to under
Sections 7 and 8 hereof if the Company had terminated his employment under
Section 7(a) hereof. As used in this Agreement, "Company" shall mean the
Company as herein before defined and any successor to its business and/or
assets as aforesaid which executes and delivers the agreement provided for
in this Section 11 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of low.
(b) If the Executive should die after the giving of notice pursuant to
Section 7 but while any amounts would still be payable to him hereunder if
he hod continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the
Executive's devisee, legatee, or other designee or, if there be no such
designee, to the Executive's estate. If the Executive should die before the
giving of such notice under Section 7 and while he is employed pursuant to
this Agreement, the Company shall continue to pay to the Executive's estate
his salary for the period of six months from the date of such death and a
pro rata portion of the bonus, if any, payable for the year in which the
Executive died.
SECTION 11. NOTICE.
For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall
be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by US or Swiss certified or registered mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Executive:
Mr. John D. Robechek
160 Whieldon Lane
Worthington, OH 43085
USA
If to the Company:
Mettler-Toledo GmbH
Im Langacher
CH-8606 Greifensee
Attn.: Chief Executive Officer
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
SECTION 12. MISCELLANEOUS.
No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing
signed by the Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto at
any time of any breach by the other party hereto of, or compliance with,
any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set
forth expressly in this Agreement. Insofar as this Agreement does not
stipulate anything else to the contrary, the Human Resources Policy and
General Rules of Employment of the Company shall be applicable. The
validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the United States.
SECTION 13. VALIDITY.
The invalidity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
SECTION 14. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together will constitute
one and the some instrument.
SECTION 15. DISPUTES.
All disputes between the Executive and the Company concerning the terms and
conditions of this Agreement shall be brought before the ordinary courts in
the United States.
SECTION 16. ENTIRE AGREEMENT.
This Agreement sets forth the entire agreement of the parties hereto in
respect of the subject matter contained herein and supersedes all prior
agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer,
employee or representative of any party hereto; and any prior agreement of
the parties hereto in respect of the subject matter contained herein is
hereby terminated and canceled.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
Mettler-Toledo GmbH,
by:/s/ ROBERT F. SPOERRY
---------------------------
Robert F. Spoerry
by:/s/ PETER BURKER
---------------------------
Peter Burker
by:/s/ JOHN D. ROBECHEK
---------------------------
John D. Robechek
EXHIBIT 10.9
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 15, 1996
among
METTLER-TOLEDO INTERNATIONAL INC.
(survivor of the merger of
MT Investors Inc.
and 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,
THE CO-AGENTS NAMED HEREIN
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
AMENDED AND RESTATED AS OF NOVEMBER 19, 1997
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS, ETC.
-----------------
1.1 Certain Defined Terms............................................ 2
1.2 Other Interpretive Provisions.................................... 45
1.3 Accounting Principles............................................ 46
1.4 Currency Equivalents Generally................................... 46
1.5 Principle of Deemed Reinvestment................................. 46
1.6 Effect on Original Credit Agreement and Other Loan Documents..... 46
1.7 Payments on Second Amendment and Restatement Date; Assignments
on Second Amendment and Restatement Date; etc.................... 47
1.8 Certain Transactions Exempted.................................... 48
1.9 Repayment of Safeline Funds...................................... 48
ARTICLE II
THE CREDITS
-----------
2.1 Amounts and Terms of Commitments and Loans....................... 49
2.2 Evidence of Debt; Notes.......................................... 52
2.3 Procedure for Borrowings (Other Than Canadian Borrowings)........ 53
2.3A Procedure for Canadian Borrowings................................ 54
2.4 Conversion and Continuation Elections for 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.......................... 60
2.7 Prepayments...................................................... 60
2.8 Currency Exchange Fluctuations................................... 64
2.9 Repayment........................................................ 65
2.10 Interest......................................................... 67
2.11 Fees............................................................. 67
(a) Arrangement, Agency Fees................................... 68
(b) Facility Fees.............................................. 68
(c) Canadian Facility Fees..................................... 68
2.12 Computation of Fees, Interest and Dollar Equivalent Amount....... 68
2.13 Payments by Each Applicable Borrower............................. 69
2.14 Payments by the Lenders to the Applicable Agent.................. 69
2.15 Adjustments...................................................... 70
2.16 Swing Line Commitment............................................ 70
2.17 Borrowing Procedures for Swing Line Loans........................ 71
2.18 Refunding of Swing Line Loans.................................... 72
2.19 Participations in Swing Line Loans............................... 73
2.20 Swing Line Participation Obligations Unconditional............... 73
2.21 Conditions to Swing Line Loans................................... 74
2.22 Substitution of Lenders in Certain Circumstances................. 74
2.23 Qualified Foreign Lender Notes................................... 75
ARTICLE III
THE LETTERS OF CREDIT
---------------------
3.1 The Letter of Credit Subfacility................................. 75
3.2 Issuance, Amendment and Renewal of Letters of Credit............. 77
3.3 Risk Participations, Drawings and Reimbursements................. 79
3.4 Repayment of Participations...................................... 81
3.5 Role of the L/C Lender........................................... 81
3.6 Obligations Absolute............................................. 82
3.7 Cash Collateral Pledge........................................... 82
3.8 Letter of Credit Fees............................................ 82
3.9 Uniform Customs and Practice..................................... 83
3.10 Letters of Credit for the Account of Subsidiaries................ 83
ARTICLE IV
NET PAYMENTS, YIELD PROTECTION AND ILLEGALITY
---------------------------------------------
4.1 Net Payments..................................................... 83
4.2 Illegality....................................................... 88
4.3 Increased Costs and Reduction of Return.......................... 89
4.4 Funding Losses................................................... 90
4.5 Inability To Determine Rates..................................... 91
4.6 Reserves on LIBOR Rate Loans; MLA Costs.......................... 92
4.7 Certificates of Lenders.......................................... 92
4.8 Substitution of Lenders.......................................... 92
4.9 Right of Lenders To Fund Through Branches and Affiliates......... 93
ARTICLE V
CONDITIONS PRECEDENT
--------------------
5.1 Conditions of Initial Loans...................................... 93
5.1A Conditions of Loans To Effect the Safeline Acquisition........... 93
5.2 Conditions to All Credit Extensions.............................. 93
(a) Notice, Application....................................... 93
(b) Continuation of Representations and Warranties............ 93
(c) No Existing Default; No Legal Bar ........................ 93
5.3 Conditions to Effectiveness of Second Amended and Restated
Credit Agreement................................................. 94
(a) Second Amended and Restated Credit Agreement; Ratification
of Security Documents by Loan Parties; Notes; Holding
Guarantee and US Borrower Guarantee....................... 94
(b) Opinions of Counsel....................................... 94
(c) Corporate Documents....................................... 94
(d) Accuracy of Representations and Warranties................ 95
(e) Adverse Change, etc....................................... 95
(f) Litigation................................................ 95
(g) Approvals................................................. 95
(h) Payment Adjustments; Second Amendment and Restatement
Assignments............................................... 95
(i) Certificate............................................... 95
(j) Initial Public Offering................................... 96
(k) Tender Offer or Redemption of Senior Subordinated Notes... 96
5.4 Delivery of Documents............................................ 96
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
------------------------------
6.1 Corporate Status................................................. 96
6.2 Authority........................................................ 97
6.3 No Conflicts; Consents........................................... 97
6.4 Binding Effect................................................... 97
6.5 Litigation....................................................... 97
6.6 No Default....................................................... 98
6.7 Benefit Plans.................................................... 98
6.8 Use of Proceeds; Margin Regulations.............................. 98
6.9 Financial Condition; Financial Statements; Solvency; etc......... 98
6.10 Properties....................................................... 99
6.11 Taxes............................................................ 100
6.12 Environmental Matters............................................ 100
6.13 Regulated Entities............................................... 102
6.14 Employee and Labor Matters....................................... 102
6.15 Intellectual Property............................................ 102
6.16 Subsidiaries..................................................... 103
6.17 Existing Indebtedness............................................ 103
6.18 True and Complete Disclosure..................................... 103
6.19 Security Interests............................................... 103
6.20 Representations and Warranties in Basic Documents................ 104
6.21 M-T Acquisition and Safeline Acquisition......................... 104
6.22 Broker's Fees.................................................... 104
6.23 Assignment of Rights Under M-T Acquisition Documents............. 105
6.24 IPO and Repurchase of Senior Subordinated Notes.................. 105
ARTICLE VII
AFFIRMATIVE COVENANTS
---------------------
7.1 Financial Statements, etc........................................ 105
7.2 Certificates; Other Information.................................. 106
7.3 Notices.......................................................... 107
7.4 Preservation of Corporate Existence, etc......................... 108
7.5 Maintenance of Property; Insurance............................... 108
7.6 Payment of Obligations........................................... 108
7.7 Compliance with Environmental Laws............................... 109
7.8 Compliance with ERISA............................................ 109
7.9 Inspection of Property and Books and Records..................... 109
7.10 End of Fiscal Years; Fiscal Quarters............................. 110
7.11 Use of Proceeds.................................................. 110
7.12 Further Assurances............................................... 110
7.13 Equal Security for Loans and Notes; No Further Negative Pledges.. 110
7.14 Pledge of Additional Collateral.................................. 111
7.15 Security Interests............................................... 112
7.16 Interest Rate Protection......................................... 112
7.17 Currency and Commodity Hedging Transactions...................... 112
7.18 Foreign Subsidiaries Security.................................... 113
7.19 Register......................................................... 113
7.20 New Subsidiaries................................................. 114
7.21 Assumption by Mettler-Toledo, Inc................................ 114
7.22 Post-Closing Obligations......................................... 114
ARTICLE VIII
NEGATIVE COVENANTS
------------------
8.1 Limitation on Liens.............................................. 116
8.2 Consolidations, Mergers and Disposition of Assets................ 118
8.3 Leases. . ....................................................... 120
8.4 Loans and Investments............................................ 120
8.5 Limitation on Indebtedness....................................... 124
8.6 Transactions with Affiliates..................................... 126
8.7 Use of Proceeds.................................................. 126
8.8 Contingent Obligations........................................... 127
8.9 Restrictions on Subsidiaries..................................... 128
8.10 Fixed Charge Coverage Ratio...................................... 128
8.11 Minimum Net Worth................................................ 129
8.12 Debt to EBITDA Ratio............................................. 129
8.13 Restricted Payments.............................................. 129
8.14 ERISA. . . . . . . . ............................................ 130
8.15 Change in Business............................................... 130
8.16 Accounting Changes .............................................. 131
8.17 Prepayments of Senior Subordinated Notes, etc.................... 131
8.18 Amendments to Other Documents.................................... 131
8.19 Capital Expenditures............................................. 131
8.20 Sale and Lease-Backs............................................. 132
8.21 Sale or Discount of Receivables.................................. 132
8.22 Creation of Subsidiaries......................................... 133
8.23 Designated Senior Debt........................................... 133
8.24 Issuance or Disposal of Subsidiary Stock......................... 133
8.25 Limitation on Other Restrictions on Amendment of Basic Documents. 134
8.26 Limitation on Swing Line Lenders................................. 134
ARTICLE IX
EVENTS OF DEFAULT
-----------------
9.1 Event of Default................................................. 134
(a) Non-Payment............................................... 134
(b) Representation or Warranty................................ 134
(c) Specific Defaults......................................... 134
(d) Other Defaults............................................ 134
(e) Cross-Default............................................. 134
(f) Insolvency; Voluntary Proceedings......................... 135
(g) Involuntary Proceedings................................... 135
(h) ERISA..................................................... 135
(i) Monetary Judgments........................................ 135
(j) Non-Monetary Judgments.................................... 136
(k) Guarantees................................................ 136
(l) Security Documents........................................ 136
(m) Change of Control......................................... 136
(n) Environmental Events...................................... 136
9.2 Remedies....................................................... 136
9.3 Rights Not Exclusive........................................... 137
ARTICLE X
THE AGENTS
----------
10.1 Appointment and Authorization.................................. 137
10.2 Delegation of Duties........................................... 138
10.3 Exculpatory Provisions......................................... 138
10.4 Reliance by Agents............................................. 139
10.5 Notice of Default.............................................. 139
10.6 Credit Decision................................................ 139
10.7 Indemnification ............................................... 140
10.8 Agents in Individual Capacity.................................. 140
10.9 Successor Agents............................................... 141
10.10 Holders........................................................ 141
10.11 Failure To Act................................................. 141
ARTICLE XI
MISCELLANEOUS
-------------
11.1 Amendments and Waivers......................................... 141
11.2 Notices........................................................ 144
11.3 No Waiver; Cumulative Remedies................................. 144
11.4 Expenses, Indemnity, etc....................................... 145
11.5 Payments Pro Rata.............................................. 146
11.6 Payments Set Aside............................................. 146
11.7 Successors and Assigns......................................... 147
11.8 Assignments and Participations, etc............................ 147
11.9 Confidentiality................................................ 149
11.10 Set-off........................................................ 150
11.11 Notification of Addresses, Lending Offices, etc................ 150
11.12 Counterparts................................................... 150
11.13 Severability; Modification To Conform to Law................... 150
11.14 No Third Parties Benefitted.................................... 151
11.15 Governing Law; Submission to Jurisdiction; Venue............... 151
11.16 Waiver of Jury Trial........................................... 151
11.17 Judgment....................................................... 151
11.18 Prior Understandings........................................... 152
11.19 Survival....................................................... 152
11.20 CH Foreign Subsidiary Mortgages................................ 152
11.21 Release of Collateral.......................................... 153
11.22 Amendments Effective Regardless of Effectiveness of Second
Amended and Restated Credit Agreement.......................... 153
Signatures..................................................... S-1
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
Schedule 1.7(b) 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 8.2(i)(A) Certain Additional Assets Sale of Properties
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 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 [Reserved]
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 F-7 Form of Opinion of Fried, Frank, Harris, Shriver &
Jacobson To Be Delivered on the Second Amendment and
Restatement Date
Exhibit G Form of Assignment and Acceptance
Exhibit H-1 Form of Tranche A-CHF Term Note
Exhibit H-2 [Reserved]
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 A-CHF 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 [Reserved]
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
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is entered into
as of October 15, 1996, among METTLER-TOLEDO INTERNATIONAL INC. (the
survivor of the merger of MT Investors Inc. and 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 arranger and
documentation agent (together with its successors, the "Arranger" or
"Documentation Agent"); 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; ABN AMRO BANK, as a co-agent; BANK OF
TOKYO-MITSUBISHI TRUST COMPANY, as a co-agent; BANKERS TRUST COMPANY,
as a co-agent; COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPENNE, as
a co-agent; GOLDMAN SACHS, as a co-agent; THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY, as a co-agent; and SOCIETE GENERALE, as a co-agent
(together with Credit Suisse First Boston in its capacity as a
co-agent, ABN AMRO Bank, Bank of Tokyo-Mitsubishi Trust Company,
Bankers Trust Company, Compagnie Financiere de CIC et de L'Union
Europenne, Goldman Sachs, The Industrial Bank of Japan Trust Company,
PNC Bank and Societe Generale and each of their respective successors,
the "Co-Agents"), as provided herein, and is amended and restated as
of November 19, 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, the Agents (as defined in the Original
Credit Agreement), the Co-Agents, 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,
together with the UK Borrower, Canadian Borrower and Canadian Agent,
entered into the 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 set
forth in the Amended and Restated Credit Agreement, to provide for the
extensions of credit to be made hereunder in connection with the
Safeline Acquisition on the terms and conditions set forth in the
Amended and Restated Credit Agreement, 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 the Amended and
Restated Credit Agreement, 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 were evidenced by
the Amended and Restated Credit Agreement,
WHEREAS, the Lenders, the Agents, the Co-Agents, the Borrowers,
Canadian Borrower, UK Borrower and the Subsidiary Swing Line Borrowers
are entering into this Second Amended and Restated Credit Agreement in
order to amend and restate the Original Credit Agreement as amended
and restated by the Amended and Restated Credit Agreement to provide
for the conversion of term extensions of credit existing as of the
Second Amendment and Restatement Date into term extensions of credit
under this Agreement as amended and restated as of the Second
Amendment and Restatement Date, to provide for an increase in the
Revolving Facility Commitments and to make such other amendments as
are evidenced hereby,
WHEREAS, in connection with the effectiveness of this Second
Amended and Restated Credit Agreement (i) MT Investors Inc. and
Mettler-Toledo Holding Inc. will merge and the survivor will be named
Mettler-Toledo International Inc., (ii) Mettler-Toledo International
Inc. will effect an initial public offering of its common stock, and
(iii) U.S. Borrower will effect a tender offer for its outstanding
U.S. $135.0 million 9 3/4% senior subordinated notes due 2006, and
WHEREAS, the Borrowers, Canadian Borrower, UK Borrower, the
Subsidiary Swing Line Borrowers, the Lenders, the Agents and the
Co-Agents intend that (a) all obligations of the parties under the
Original Credit Agreement as amended to the Second Amendment and
Restatement Date 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 as amended to the Second
Amendment and Restatement Date 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 as amended to the Second Amendment and
Restatement Date is hereby amended and restated in its entirety as
follows:
ARTICLE I.
DEFINITIONS, ETC.
-----------------
1.1. Certain Defined Terms. The following terms have the
following meanings:
ABR Loan means a 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 Second 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.
Amended and Restated Credit Agreement means the Original Credit
Agreement as amended and restated as of May 29, 1997 upon satisfaction
or waiver of the conditions precedent set forth in Section 5.3 (as
such Section was in effect on the Amendment and Restatement Date)
prior to the Second Amendment and Restatement Date.
Amendment and Restatement Date means the date on which all
conditions precedent set forth in Section 5.3 (as such Section was in
effect on the Amendment and Restatement Date) were satisfied or waived
by the Required Lenders, the Agents, the Swing Line Lenders, each L/C
Lender and the Co-Agents (May 29, 1997).
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) upon the Second
Amendment and Restatement Date, the percentage per annum in the table
below corresponding to the pro forma Debt to EBITDA Ratio as of the
end of most recent fiscal quarter ended immediately prior to the
Second Amendment and Restatement Date for which financial statements
have been delivered to the Lenders under the Amended and Restated
Credit Agreement after giving effect to all transactions to occur as
of the Second Amendment and Restatement Date and (ii) thereafter (the
first quarter ended after the Second Amendment and Restatement Date,
the "Reset Date") 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 in the grid below
(the "Facility Fee Leverage Grid"):
- - - -------------------------------------------------------------------------------
Debt to EBITDA Ratio Applicable
Facility Fee Percentage
- - - -------------------------------------------------------------------------------
greater than 4.25 to 1.0 0.375%
- - - -------------------------------------------------------------------------------
greater than 4.00 to 1.0 and 0.375%
less than or equal to
4.25 to 1.0
- - - -------------------------------------------------------------------------------
greater than 3.75 to 1.0 and 0.300%
less than or equal to
4.00 to 1.0
- - - -------------------------------------------------------------------------------
greater than 3.50 to 1.0 and 0.300%
less than or equal to
3.75 to 1.0
- - - -------------------------------------------------------------------------------
greater than 3.25 to 1.0 and 0.250%
less than or equal to
3.50 to 1.0
- - - -------------------------------------------------------------------------------
greater than 2.75 to 1.0 and 0.250%
less than or equal to
3.25 to 1.0
- - - -------------------------------------------------------------------------------
less than or equal to 0.200%
2.75 to 1.0
- - - -------------------------------------------------------------------------------
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 (and if not delivered, the Debt to EBITDA Ratio shall be
presumed to be greater than 4.25:1.0 until delivered). From and after
such date on which Moody's and S&P have given a rating for the Index
Debt in any of the categories set forth in the table below (the
"Investment Grade Date"), Applicable Facility Fee Percentage shall
mean at any date on or after the Investment Grade Date (subject to the
proviso to this sentence) the applicable percentage set forth below
based upon the ratings by Moody's and S&P, respectively, applicable on
such date to the Index Debt; provided, however, that notwithstanding
the foregoing if and for so long as S&P has rated the Index Debt at
BB+ or below or Moody's has rated the Index Debt at Ba1 or below, the
Applicable Facility Fee Percentage shall be determined solely by the
Facility Fee Leverage Grid.
Applicable Facility
Fee Percentage
Category 1
S&P: BBB+ or better 0.125%
Moody's: Baa1 or better
Category 2
S&P: BBB to BBB+ 0.125%
Moody's: Baa2 to Baa1
Category 3
S&P: BBB- 0.150%
Moody's: Baa3
For purposes of the foregoing, (i) if either Moody's or S&P shall not
have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition)
and (x) the other rating agency shall have in effect a rating for the
Index Debt in Category 1, then such rating agency not so having a
rating in effect shall be deemed to have established a rating for the
Index Debt in Category 2 or (y) the other rating agency shall have in
effect a rating for the Index Debt in Category 2 or Category 3, then
such rating agency not so having a rating in effect shall be deemed to
have established a rating for the Index Debt in Category 3, (ii) if
the rating established or deemed to have been established by Moody's
and S&P for the Index Debt shall fall within different Categories, the
Applicable Facility Fee Percentage shall be based on the Category
corresponding to the lower of the two ratings; (iii) if neither
Moody's nor S&P shall have in effect a rating for the Index Debt
(other than by reason of the circumstances described in the last
sentence of this definition) then for so long as such condition
exists, the Applicable Facility Fee Percentage will be determined
solely by the Facility Fee Leverage Grid; and (iv) if the ratings
established or deemed to have been established by Moody's and S&P for
the Index Debt shall be changed (other than as a result of a change in
the rating system of Moody's or S&P), such change shall be effective
as of the date on which it is first announced by the applicable rating
agency. Each change in the Applicable Facility Fee Percentage shall
apply during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date
of the next such change. If the rating system of Moody's or S&P shall
change, or if either such rating agency shall cease to be in the
business of rating corporate debt obligations, or if the Index Debt
shall be unrated by Moody's or S&P as a result of a reasonable
business decision of US Borrower, US Borrower and the Lenders shall
negotiate in good faith to amend this definition to reflect such
changed rating system or the non-availability of ratings from such
rating agency and, pending the effectiveness of any such amendment,
the Applicable Facility Fee Percentage most recently in effect shall
continue in effect.
Applicable Margin means for each category of Loan set forth in
the table below (i) upon the Second Amendment and Restatement Date,
with respect to such Loan category specified below, the percentage per
annum in the table below corresponding to the pro forma Debt to EBITDA
Ratio as of the end of the most recent fiscal quarter ended
immediately prior to the Second Amendment and Restatement Date for
which financial statements have been delivered to Lenders under the
Amended and Restated Credit Agreement after giving effect to the
transactions to occur as of the Amendment and Restatement Date and
(ii) thereafter, with respect to such Loan category specified below,
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 for such category of Loan in the
grid below (the "Applicable Margin Leverage Grid"):
=========================================================================
LIBOR Rate Loans ABR Loans Canadian Loans
-----------------------------------------------------------
Revolving
Facility
Loans
Non-U.S. Tranche Revolving Tranche BA Prime
Debt to $ Swing A Term Facility A Term Equivalent Rate
EBITDA Ratio Line Loans Loans Loans Loans Rate Loans Loans
- - - -------------------------------------------------------------------------
greater than
4.25 to 1.0 1.125% 1.500% 0.125% 0.500% 1.125% 1.125%
- - - -------------------------------------------------------------------------
greater than
4.00 to 1.0
and less than
or equal to
4.25 to 1.0 1.000% 1.375% 0.000% 0.375% 1.000% 1.000%
- - - -------------------------------------------------------------------------
greater than
3.75 to 1.0
and less than
or equal to
4.00 to 1.0 0.825% 1.125% -0.175% 0.125% 0.825% 0.825%
- - - -------------------------------------------------------------------------
greater than
3.50 to 1.0
and less than
or equal to
3.75 to 1.0 0.700% 1.000% -0.30% 0.000% 0.700% 0.700%
- - - -------------------------------------------------------------------------
greater than
3.25 to 1.0
and less than
or equal to
3.50 to 1.0 0.625% 0.875% -0.25% 0.000% 0.625% 0.625%
- - - -------------------------------------------------------------------------
greater than
2.75 to 1.0
and less than
or equal to
3.25 to 1.0 0.500% 0.750% -0.25% 0.000% 0.500% 0.500%
- - - -------------------------------------------------------------------------
less than
or equal to
2.75 to 1.0 0.425% 0.625% -0.20% 0.000% 0.425% 0.425%
=========================================================================
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 to EBITDA Ratio (and if not
delivered, the Debt to EBITDA Ratio shall be presumed to be greater
than 4.25:1.0 until delivered). From and after the Investment Grade
Date, Applicable Margin shall mean at any date on or after the
Investment Grade Date (subject to the proviso to this sentence) the
applicable percentage set forth below applicable to the category of
Loan in question based upon the ratings by Moody's and S&P,
respectively, applicable on such date to the Index Debt; provided,
however, that notwithstanding the foregoing if and for so long as S&P
has rated the Index Debt at BB+ or below or Moody's has rated the
Index Debt at Ba1 or below, the Applicable Margin shall be determined
solely by the Applicable Margin Leverage Grid.
- - - -------------------------------------------------------------------------------
LIBOR Rate Loan ABR Loans Canadian Loans
----------------------------------------------------------
Revolving
Facility
Loans
Non-U.S. Tranche Revolving Tranche BA Prime
$ Swing A Term Facility A Term Equivalent Rate
Line Loans Loans Loans Loans Rate Loans Loans
- - - -------------------------------------------------------------------------------
Category 1 0.175% 0.300% 0.000% 0.000% 0.175% 0.175%
S&P: BBB+ or better
Moody's: Baa1 or
better
- - - -------------------------------------------------------------------------------
Category 2 0.250% 0.375% 0.000% 0.000% 0.250% 0.250%
S&P: BBB to BBB+
Moody's: Baa2 to
Baa1
- - - -------------------------------------------------------------------------------
Category 3 0.300% 0.450% 0.000% 0.000% 0.300% 0.300%
S&P: BBB-
Moody's: Baa3
- - - -------------------------------------------------------------------------------
For purposes of the foregoing, (i) if either Moody's or S&P shall not
have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition)
and (x) the other rating agency shall have in effect a rating for the
Index Debt in Category 1, then such rating agency not so having a
rating in effect shall be deemed to have established a rating for the
Index Debt in Category 2 or (y) the other rating agency shall have in
effect a rating for the Index Debt in Category 2 or Category 3, then
such rating agency not so having a rating in effect shall be deemed to
have established a rating for the Index Debt in Category 3; (ii) if
the ratings established or deemed to have been established by Moody's
and S&P for the Index Debt shall fall within different Categories, the
Applicable Margin shall be based on the Category corresponding to the
lower of the two ratings; (iii) if neither Moody's and S&P shall have
in effect a rating for the Index Debt (other than by reason of the
circumstances described in the last sentence of this definition) then
for so long as such condition exists, the Applicable Margin will be
determined solely by the Applicable Margin Leverage Grid; and (iv) if
the ratings established or deemed to have been established by Moody's
and S&P for the Index Debt shall be changed (other than as a result of
a change in the rating system of Moody's or S&P), such change shall be
effective as of the date on which it is first announced by the
applicable rating agency. Each change in the Applicable Margin shall
apply during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date
of the next such change. If the rating system of Moody's or S&P shall
change, or if either such rating agency shall cease to be in the
business of rating corporate debt obligations, or if the Index Debt
shall be unrated by Moody's or S&P as a result of a reasonable
business decision of US Borrower, US Borrower and the Lenders shall
negotiate in good faith to amend this definition to reflect such
changed rating system or the non-availability of ratings from such
rating agency and, pending the effectiveness of any such amendment,
the Applicable Margin most recently in effect shall continue in
effect.
Applicable Margin Leverage Grid -- see the definition of
Applicable Margin.
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. ss. 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 or Holding, 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 May 19, 2004.
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) 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 Holding's capital
stock (or of the capital stock of any other Person of which US
Borrower is a Subsidiary); or (d) during any consecutive two-year
period, individuals who at the beginning of such period constituted
the Board of Directors of Holding (or any other parent of US
Borrower), as the case may be (together with any new directors whose
election by the shareholders of 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 Holding (or any other Person of which US Borrower is a
Subsidiary), as the case may be, then in office; provided, however,
that the merger of US Borrower and Holding 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, Revolving Facility Commitment, Canadian Commitment or
Swing Line Commitment.
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, 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, and the
Confidential Memorandum dated October 1997, and all written
supplemental material thereto prepared by, or on behalf of, US
Borrower and transmitted to the Lenders prior to the Second 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 A 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, or premiums paid, 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) (v) any nonrecurring restructuring charges related to
the M-T Acquisition and the Safeline Acquisition, (w) any nonrecurring
charges recorded prior to the Second Amendment and Restatement Date
(including (whether or not recorded) an announced charge for the
fourth quarter of fiscal 1997 of U.S. $3.0 million disclosed in the
registration statement relating to the IPO), (x) any other
non-recurring charges in an aggregate amount not to exceed U.S. $30
million, (y) any non-recurring non-cash charges related to any
Acquisition (other than the M-T Acquisition and the Safeline
Acquisition) by US Borrower or any Subsidiary, and (z) any
non-recurring cash charges in connection with any Acquisition (other
than the M-T Acquisition or the Safeline Acquisition) occurring after
the Second Amendment and Restatement Date in an amount not to exceed
U.S. $10.0 million per Acquisition and U.S. $25.0 million in the
aggregate, (6) any write-off of note tender premiums relating to the
repurchase of the Senior Subordinated Notes in connection with this
Second Amended and Restated Credit Agreement, and (7) 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 Loans
of a Facility from one Type to the other Type or (ii) continues as
Loans of the same Type, but with a new Interest Period, 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 (including, for the
avoidance of doubt, Taxes imposed by any U.K. Governmental Authority
on payments received by a Treaty Lender hereunder for any period
during which the U.K. Certificate of such Treaty Lender is being
processed or reviewed by Inland Revenue (under U.K. advance clearance
procedures) provided that such Treaty Lender has represented that it
is a UK Qualifying Lender and otherwise has complied with all of its
obligations under Section 4.1(f)(viii)), 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 or performed its
obligations or having received a payment under this Agreement, the
Amended and Restated Credit Agreement or the Original Credit
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, or premiums paid, 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) (1) any non-recurring
restructuring charges related to the M-T Acquisition or the Safeline
Acquisition, (2) any non-recurring charges recorded prior to the
Second Amendment and Restatement Date (including (whether or not
recorded) an announced charge for fiscal 1997 of U.S. $3.0 million
disclosed in the registration statement relating to the IPO), (3) any
other non-recurring charges in an aggregate amount not to exceed U.S.
$30.0 million, (4) any non-recurring non-cash charges related to any
Acquisition (other than the M-T Acquisition and the Safeline
Acquisition) by US Borrower or any Subsidiary and (5) any
non-recurring cash charges incurred in connection with any Acquisition
by US Borrower or any Subsidiary (other than the M-T Acquisition or
the Safeline Acquisition) occurring after the Second Amendment and
Restatement Date in an amount not to exceed U.S. $10.0 million per
Acquisition and U.S. $25.0 million in the aggregate, (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, (vii) other
income (expense) items as reported on US Borrower's financial
statements not to exceed U.S. $3.0 million in the aggregate for any
fiscal year and (viii) 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. EBITDA shall be
calculated to give pro forma effect to any Acquisition occurring
during any period for which it is being measured by giving pro forma
effect to such Acquisition as if it had occurred at the beginning of
such period, which pro forma calculation shall be made in accordance
with GAAP and with respect to any Acquisition which involves U.S.
$10.0 million or more in the aggregate for all consideration paid in
connection therewith, such calculation must be based on financial
statements prepared in accordance with GAAP, which financial
statements may be prepared reasonably and in good faith by management
of US Borrower, and which financial statements shall, in any case, be
delivered to the Administrative Agent.
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; (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; and (vi) any Affiliate of a Lender; 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. With respect to any Lender that is a fund that invests in
loans, any other fund that invests in loans and is managed or advised
by the same investment advisor of such Lender or by an Affiliate of
such investment advisor shall be treated as a single Eligible
Assignee.
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 or repayment of term extensions of credit
made under the Original Credit Agreement as of the Amendment and
Restatement Date as contemplated by Section 1.7 or Section 2.1 shall
be taken into account in the calculation of Excess Cash Flow for any
period and no repayment or conversion of term extensions of credit
made under the Amended and Restated Credit Agreement as of the Second
Amendment and Restatement Date as contemplated by Section 1.10 or
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, or the Revolving Facility.
Facility Fee -- see subsection 2.11(b).
Facility Fee Leverage Grid -- see the definition of Applicable
Facility Fee Percentage.
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 -- see 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 Second 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
(i) 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. For purposes of Section 8.12, Indebtedness will be
defined as above except that all non-US dollar borrowings, including
US dollar borrowings converted to another currency via forward
exchange contracts, will be converted to US dollars at the average
exchange rate of the previous twelve months.
Indemnified Person -- see Section 11.4.
Independent Auditor -- see subsection 7.1(a).
Index Debt means the senior, unsecured, non-externally credit
enhanced, long-term indebtedness for borrowed money of US Borrower.
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); provided, however, that interest
expense shall give effect to any currency exchange agreements which
have the effect of converting the currency in which the related Loan
is payable.
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, (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, and
(d) as to any BA Equivalent Rate Loan, the last day of each Interest
Period applicable to such Loan; provided, however, that if any
Interest Period for a BA Equivalent Rate Loan exceeds 90 days, the
date that falls 90 days 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 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
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.
Investment Grade Date -- see the definition of Applicable
Facility Fee Percentage.
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.
IPO means the public offering of newly issued shares of common
stock of Holding pursuant to a registration statement filed with the
SEC under the Securities Act of 1933 consummated concurrently with the
transactions to occur on the Second Amendment and Restatement Date.
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. $60.0 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, (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, and (z) at any time prior to the consummation of the
transactions to occur on the Second Amendment and Restatement Date,
any Person that is or was a Lender under the Amended and Restated
Credit Agreement as of the time immediately prior to the consummation
of the transactions on the Second 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 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 or any Affiliate of a
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 which are Tranche A-US 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. Notwithstanding the
foregoing, Loans made on the Second Amendment and Restatement Date
need not be in integral multiples as so specified (as long as in the
minimum amount specified), nor do any continuation thereof.
MLA Cost means the cost imputed to a Lender making a 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.
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.
New Lender -- see subsection 1.7(d).
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 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 Borrowing means a notice in substantially the form of
Exhibit A-2.
Notice of Canadian Borrowing means a notice in substantially the
form of Exhibit A-1.
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).
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 (as such Section was in effect on
the Original Closing Date) 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 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.
Payment Date means (x) each March 31, June 30, September 30 and
December 31 of each year, commencing with and including December 31,
1997 through and including March 31, 2004 and (y) May 19, 2004.
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-CHF Note -- see subsection 2.23(a).
QFL A-UK Note -- see subsection 2.23(a).
QFL A-US 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 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.
Ratification Agreement means a Ratification Agreement
substantially in the form of Exhibit O entered into on the Amendment
and Restatement Date and on the Second 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 Safeline Closing Date, and 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 Facility Fee
Percentage.
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. $400.0 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 May 19, 2004.
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.
Second Amendment and Restatement Assignments -- see Section 1.7.
Second Amendment and Restatement Date means the date on which all
of the 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. 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) of the Amended
and Restated Credit Agreement, or 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 and
the First Supplemental Indenture, each 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, the Second Supplemental Indenture dated as of
October 16, 1997, entered into by and among US Borrower, Holding and
United States Trust Company of New York, as Trustee and the Third
Supplemental Indenture dated as of November 14, 1997, entered into by
and among US Borrower, Holding and United States Trust Company of New
York, as Trustee 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 Ratings Group, a division of
McGraw-Hill, Inc.
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 occurring 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, subject to the first
sentence of subsection 11.1(a), 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, subject to the
first sentence of subsection 11.1(a), 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):
======================================================================
Name of Subsidiary(ies) Units of Applicable Currency
- - - ----------------------------------------------------------------------
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
======================================================================
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. $50.0
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, and the Tranche A-US
Facility 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, and Tranche A-US 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 85,466,550 million.
Tranche A-CHF Term Loan Maturity Date means May 19, 2004.
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 21,661,158.38 million Pounds
Sterling.
Tranche A-UK Term Loan Maturity Date means May 19, 2004.
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. $101,573,374.74 million.
Tranche A-US Term Loan Maturity Date means May 19, 2004.
Tranche A-US Term Note and Tranche A-US 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 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 Second 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 Second Amendment and Restatement Date;
Assignments on Second 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 Second 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 Second Amendment and
Restatement Date under Article IV or Section 11.4).
(b) Each Lender listed in Schedule 1.7 (each, a "Paid
Existing Lender") having loans and commitments immediately prior
to the Second 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
Second Amendment and Restatement Date that amount in the
Applicable Currency set forth opposite each such Paid Existing
Lender's name in Schedule 1.7(a) (the "Paid Existing Lender
Payment Amount"). The Paid Existing Lender Payment Amount shall
become due and payable on the Second 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(a) shall pay to the Administrative Agent
on behalf of the Credit Agreement Loan Parties the total amounts
in the Applicable Currency set forth opposite such Paying
Existing Lender's name in Schedule 1.7(a).
(d) Each Person which is to become a Lender on the Second
Amendment and Restatement Date (each, a "New Lender") and listed
in Schedule 1.7(a) shall pay to the Administrative Agent on
behalf of the Credit Agreement Loan Parties that amount in the
Applicable Currency set forth opposite such New Lender's name in
Schedule 1.7(a).
(e) The Borrowers will pay all accrued interest, fees, and
all other amounts due under Article IV on the Second 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 Second 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 Second Amendment and
Restatement Date and is contingent upon the consummation of all such
transactions contemplated under this Agreement as of the Second
Amendment and Restatement Date.
If for any reason the amendments contemplated by this Agreement
to become effective on the Second 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(b) (each, an "Assigning
Lender") will enter into an Assignment and Acceptance agreement
(each, a "Second 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 Lender's name on Schedule 1.7(b). Each Second 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 Second
Amendment and Restatement Date. Such Second Amendment and
Restatement Assignment will no longer be effective if the
transactions contemplated by this Agreement to occur on the
Amendment and Restatement Date are not consummated.
(g) Each Person which is a Lender as of the Second 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.
(h) Schedules 1.7(a)-(f) of the Amended and Restated Credit
Agreement are amended and restated as of the Second Amendment and
Restatement Date as set forth in Schedule 1.7(a) and (b) 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
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2.1. Amounts and Terms of Commitments and Loans. (a) (i) Each
Tranche A-CHF Lender (other than a New Lender) severally agrees, on
the terms and conditions set forth herein, that in consideration of
the Payment Adjustments (if applicable to such Lender) and (if
applicable to such Lender) the amendment of the extensions of credit
under the Amended and Restated Credit Agreement it shall convert its
term extensions of credit under the Amended and Restated Credit
Agreement into, in part, loans in CHF owing by US Borrower (each such
loan, a "Tranche A-CHF Term Loan") and, in connection therewith it
shall surrender all notes issued in respect of extensions of credit
under the Amended and Restated 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 (if requested by such Lender) issued at the
Second Amendment and Restatement Date, including Tranche A-CHF Term
Loans as of the Second 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 Second Amendment and
Restatement Date." Each Tranche A-CHF Lender which is a New Lender
severally agrees, on the terms and conditions set forth herein, to
make a single Tranche A-CHF Term Loan on the Second Amendment and
Restatement Date in an amount set forth opposite such Lender's name on
Schedule 1.7(a). Each Tranche A-CHF Lender shall have, as of the
Second 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 Second Amendment and
Restatement Date." The parties hereto acknowledge and agree that no
Lender, other than a New Lender, having a Tranche A-CHF Term Loan as
of the Second Amendment and Restatement Date shall have any commitment
to make any extension of credit on the Second 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 (other than a New Lender) severally
agrees, on the terms and conditions set forth herein, that in
consideration of the Payment Adjustments (if applicable to such
Lender) and (if applicable to such Lender) the amendment of the
extensions of credit under the Amended and Restated Credit Agreement
it shall convert its term extensions of credit under the Amended and
Restated Credit Agreement into, in part, loans in Pounds Sterling owed
by UK Borrower (each such loan, a "Tranche A-UK Term Loan") and in
connection therewith it shall surrender all notes issued in respect of
extensions of credit under the Amended and Restated 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 (if requested by such
Lender) issued at the Second Amendment and Restatement Date, including
Tranche A-UK Term Loans as of the Second Amendment and Restatement
Date in an amount set forth on Schedule 2.1 opposite such Lender's
name under the heading "Tranche A-UK Term Loans as of the Second
Amendment and Restatement Date." Each Tranche A-UK Lender which is a
New Lender severally agrees, on the terms and conditions set forth
herein, to make a single Tranche A-UK Term Loan on the Second
Amendment and Restatement Date in an amount set forth opposite such
Lender's name on Schedule 1.7(a). Each Tranche A-UK Lender shall have,
as of the Second Amendment and Restatement Date, Tranche A-UK Term
Loans in the amount set forth on Schedule 2.1 opposite such Lender's
name under the heading "Tranche A-UK Term Loans as of the Second
Amendment and Restatement Date." The parties hereto acknowledge and
agree that no Lender, other than a New Lender, having a Tranche A-UK
Term Loan as of the Second Amendment and Restatement Date shall have
any commitment to make any extension of credit on the Second Amendment
and Restatement Date or at any other time in connection with its
allocation of Tranche A-UK Term Loans as of such date, other than the
Payment Adjustments.
(iii) Each Tranche A-US Lender (other than a New Lender)
severally agrees, on the terms and conditions set forth herein, that,
in consideration of the Payment Adjustments (if applicable to such
Lender) and (if applicable to such Lender) the amendment of the
extensions of credit under the Amended and Restated Credit Agreement,
it shall convert its extensions of credit under the Amended and
Restated 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 Amended and Restated 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 (if requested by
such Lender) issued at the Second Amendment and Restatement Date,
including loans owing by US Borrower (each such loan, a "Tranche A-US
Term Loan") as of the Second 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 Second Amendment
and Restatement Date." Each Tranche A-US Lender which is a New Lender
severally agrees, on the terms and conditions set forth herein, to
make a single Tranche A-US Term Loan on the Second Amendment and
Restatement Date in the amount set forth opposite such Lender's name
on Schedule 1.7(a). Each Tranche A-US Lender shall have, as of the
Second 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 Second Amendment and
Restatement Date." The parties hereto acknowledge and agree that no
Lender having a Tranche A-US Term Loan as of the Second Amendment and
Restatement Date shall have any commitment to make any extension of
credit on the Second 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) [Reserved]
(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. Evidence of Debt; Notes.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the
Applicable Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable
and paid to such Lender from time to time hereunder.
(b) The Administrative Agent shall maintain accounts in which its
shall record (i) the amount of each Loan made hereunder, the class and
type thereof and the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder for
the account of the Lenders and each Lender's share thereof.
(c) The entries made in the accounts maintained pursuant to
paragraph (a) or (b) of this Section 2.2 shall be prima facie evidence
of the existence and amounts of the obligations recorded therein;
provided, however, that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein
shall not in any manner affect the obligation of the Applicable
Borrower to repay the Loans in accordance with the terms of this
Agreement.
(d) 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, if requested by any Lender, 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) [Reserved], (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 Second Amendment and Restatement Date as part of
the amendments to the Amended and Restated Credit Agreement, each
Revolving Facility Lender (other than a New Lender) shall surrender
its notes issued in connection with its revolving facility commitments
under the Amended and Restated Credit Agreement and, if requested by
such Lender, 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 Amended and Restated Credit Agreement,
each Lender (other than a New Lender) having Term Loans or Term Loan
Commitments as of the Second Amendment and Restatement Date (other
than Tranche A-UK Facility Commitments or Tranche A-UK Term Loans)
shall surrender its old notes issued in connection with its term
extensions of credit under the Amended and Restated Credit Agreement
and, if requested by such Lender, be issued the appropriate Term Notes
pursuant to this Section 2.2.
2.3. Procedure for Borrowings (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 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 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 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 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 Borrowing, the Administrative Agent will promptly notify
each Lender thereof and of the amount of such Lender's Pro Rata Share
of the 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 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 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 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 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 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.
(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 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 Loans (or any part thereof in an amount not
less than the Minimum Tranche) into 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 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 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 Loans as, and convert such Loans
into, Offshore U.S. Dollar Loans shall terminate unless and until such
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 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 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 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 Loans to be converted
or continued;
(C) the Type of 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 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
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
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 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 Borrowing relating to such requested
Borrowing. If such Revolving Borrower does so withdraw such Notice of
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 Borrowing, the
Administrative Agent will promptly so notify each Lender and such
Notice of Borrowing shall be deemed to be a Notice of 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 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 by any Lender other than New Lenders
to make any Tranche A-CHF Term Loans, Tranche A-US Term Loans or
Tranche A-UK Term Loans as of the Second Amendment and Restatement
Date other than by conversion of existing term extensions of credit
under the Amended and Restated Credit Agreement and the Payment
Adjustments; the aggregate amount thereof as of the Second Amendment
and Restatement Date reflects an adjustment and conversion of term
loan extensions of credit previously made by the Lenders on the
Amendment and Restatement Date.
(c) The aggregate amount of the Revolving Commitments shall be
automatically and permanently terminated on the Termination Date. 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 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. Notwithstanding the foregoing, if the Net Cash
Proceeds of the IPO are applied to repurchase the Senior Subordinated
Notes in full and pay related expenses and premiums pursuant to the
tender offer therefor being consummated concurrently with the
transactions to occur on the Second Amendment and Restatement Date any
excess proceeds of such IPO need not be applied to prepay the Term
Loans. 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, 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 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 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. $50.0
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. $50.0 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 A-CHF Term Loans on the Business Day immediately
prior to the Payment Dates set forth below in the installments as set
forth below:
======================================================================
Tranche A-US Tranche A-CHF
Each Payment Date in Term Loans Term Loans
Calendar Year (U.S. $) (CHF)
- - - ----------------------------------------------------------------------
1998 1,905,000.00 1,602,000.00
- - - ----------------------------------------------------------------------
1999 2,539,000.00 2,137,000.00
- - - ----------------------------------------------------------------------
2000 3,174,000.00 2,671,000.00
- - - ----------------------------------------------------------------------
2001 4,444,000.00 3,739,000.00
- - - ----------------------------------------------------------------------
2002 4,444,000.00 3,739,000.00
- - - ----------------------------------------------------------------------
2003 5,079,000.00 4,273,000.00
- - - ----------------------------------------------------------------------
2004 7,616,687.38 6,411,275.00
======================================================================
(b) [Reserved]
(c) UK Borrower shall repay the Tranche A-UK Term Loans on the
Business Day immediately prior to the Payment Dates set forth below in
the installments set forth below [MODIFY, IF APPLICABLE]:
==========================================
Tranche A-UK
Term Loans
Each Payment Date in (Pounds Sterling)
Calendar Year
- - - ------------------------------------------
1998 406,000.00
- - - ------------------------------------------
1999 542,000.00
- - - ------------------------------------------
2000 677,000.00
- - - ------------------------------------------
2001 948,000.00
- - - ------------------------------------------
2002 948,000.00
- - - ------------------------------------------
2003 1,083,000.00
- - - ------------------------------------------
2004 1,622,579.19
==========================================
(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 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 Borrower's right to convert to the other Type of 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. Each BA Equivalent Rate Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing
Date at a rate per annum equal to the BA Equivalent 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
U.S. Borrower dated November [ ], 1997 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, except that
interest on Loans made in Pounds Sterling shall be made on the basis
of a 365 or 366-day year, as the case may be, and the actual number of
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 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 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 Borrowing or Canadian Borrowing, at a rate per annum
equal to the interest rate applicable at the time to the 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 Original 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. $50.0 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. $250,000 and an integral multiple of U.S.
$250,000 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 A-CHF Term Note held by or assigned to it for a note in the
form attached hereto as Exhibit H-8 (a "QFL A-CHF 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 A-CHF Term Note, Tranche A-UK 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 A-CHF Term Notes, Tranche A-UK 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 A-CHF Term Notes, Tranche A-UK 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 Original
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 (other than Subsidiary L/C Obligations except those of the
UK Swing Line Borrower) 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),
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: (i) 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 Original 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; (ii) 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; (iii) 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 no Event of Default or Unmatured Event of
Default then exists and 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; (iv) 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; (v) 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 (vi) 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 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:
(i) any lack of validity or enforceability of this Agreement or any
L/C-Related Document; (ii) 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; (iii) 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 (iv)
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 1/8% 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 Second Amendment and
Restatement Date (or, in the case of a Lender which becomes a
party hereto after the Second Amendment and Restatement 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 Second Amendment and Restatement 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 Second Amendment and
Restatement 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 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 (a) no Revolving Facility 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 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 Amendment
and Restatement Date (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 (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 US Borrower 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), (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, (x) 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, and (y) that a Treaty Lender that is
already a Treaty Lender with respect to a Facility under the
Amended and Restated Credit Agreement or the Original Credit
Agreement and that has previously provided the
Administrative Agent or the Borrower with a UK Certificate
establishing its exemption from Taxes in the United Kingdom
for payments made hereunder shall not be required to deliver
a new UK Certificate by reason of clauses (i), (ii) or (iii)
above, unless specifically requested to do so by the
Borrowers. 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 Amendment and Restatement Date 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 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 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 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 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 Borrowing or Notice of Conversion/Continuation then submitted by
it. If the Applicable Borrower does not revoke (x) any such Notice of
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, the Safeline
Closing Date or Second Amendment and Restatement 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. The conditions to the Loans
made on the Original Closing Date set forth in Section 5.1 of the
Original Credit Agreement have been certified by US Borrower to have
been satisfied as of the Original Closing Date (other than any
condition which was to be satisfactory to any Agent or Lender) and the
text thereof is herein deleted for economy of documentation; however,
such certification continues in full force and effect. Reference is
made to the terms of the Original Credit Agreement for the text of
Section 5.1.
5.1A. Conditions of Loans To Effect the Safeline Acquisition. The
conditions to the Loans made on the Safeline Closing Date set forth in
Section 5.1A of the Amended and Restated Credit Agreement have been
certified by US Borrower to have been satisfied as of the Safeline
Closing Date (other than any condition which was to be satisfactory to
any Agent or Lender) and the text thereof is herein deleted for
economy of documentation; however, such certification continues in
full force and effect. Reference is made to the Amended and Restated
Credit Agreement for the text of Section 5.1A.
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 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 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 Second Amended and Restated
Credit Agreement. The effectiveness of this Second Amended and
Restated Credit Agreement is subject to the satisfaction of the
following conditions:
(a) Second Amended and Restated Credit Agreement;
Ratification of Security Documents by Loan Parties; Notes;
Holding Guarantee and US Borrower Guarantee. On the Second
Amendment and Restatement Date, this Agreement, the Holding
Guarantee, the US Borrower Guarantee 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 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 Second Amendment and Restatement Date.
(b) Opinions of Counsel. On the Second 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 Second 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-7
and such other matters incident to the transactions contemplated
herein to occur on the Second 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. At the Second Amendment and Restatement Date, the
Agents shall have received the opinions, dated as of the Second
Amendment and Restatement Date, and addressed to them on behalf
of the Lenders and the Agents, of any counsel to US Borrower
delivered to the underwriters of the IPO or the dealer manager of
the repurchase of the Senior Subordinated Notes, or otherwise, or
letters, dated the Second Amendment and Restatement Date, from
such counsel entitling the Agents and the Lenders to rely on such
opinions, in each case as the Arranger may reasonably request.
(c) Corporate Documents. The Agents shall have received on
or prior to the Second Amendment and Restatement Date certified
copies of all necessary corporate authority for each Loan Party
executing any Loan Document on the Second 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 to be
delivered on the Second Amendment and Restatement Date and each
other Loan Document to be amended or modified in connection with
this Second Amended and Restated Credit Agreement 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 Second
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 Second 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 Second 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 Second Amendment and Restatement Date.
(h) Payment Adjustments; Second 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
Second 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 Second
Amendment and Restatement Date, (1) 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 Second 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), and (2)
showing the pro forma Debt to EBITDA Ratio giving effect to the
transactions to occur on the Second Amendment and Restatement
Date.
(j) Initial Public Offering. The IPO shall have been
consummated and shall have resulted in gross proceeds of not less
than U.S. $85.0 million to US Borrower, and the net proceeds
thereof shall have been applied to redeem or repurchase the
Senior Subordinated Notes.
(k) Tender Offer or Redemption of Senior Subordinated Notes.
Not less than U.S. $110.0 million of the Senior Subordinated
Notes shall have been redeemed or repurchased, and US Borrower
shall have a plan with respect to such U.S. $25.0 million thereof
remaining reasonably satisfactory to the Agents.
5.4. Delivery of Documents. All of the certificates, legal
opinions and other documents and papers referred to in Sections 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, US 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, on the Amendment and
Restatement Date and on the Second 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 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 or the
Safeline Acquisition or the repurchase of the Senior Subordinated
Notes 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, the Second Amendment and
Restatement 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, the Second Amendment and Restatement 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, 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, in all cases until
the security interests created thereby are released in accordance with
this Agreement and the Security Documents. 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. 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.
6.24. IPO and Repurchase of Senior Subordinated Notes. No
document filed with the SEC or distributed to investors in connection
with the IPO or the repurchase of the Senior Subordinated Notes
contained as of the respective date of any such document any untrue
statement of material fact or omitted to state any material fact
required to be stated therein necessary in order to make the
statements therein not misleading. At the time of consummation
thereof, the IPO and the repurchase of the Senior Subordinated Notes
complied in all material respects with applicable 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 and, with respect
to any calculation utilizing EBITDA, a schedule showing the pro
forma effect of any Acquisition to the extent pro forma effect is
given thereto with appropriate supporting information and data;
(b) on and after the Reset Date and until the Investment
Grade 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 Original Closing Date of, or the commencement after the
Original Closing Date of contributions to, any Plan subject to
Section 412 of the Code by US Borrower or any ERISA Affiliate;
(iii) the adoption after the Original Closing Date 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
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 so long as any Collateral
is pledged thereunder pursuant to the terms of this Agreement and the
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 and up to U.S. $100.0 million thereof
may be used to effect any Acquisition permitted by subsection 8.4(f).
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 (other than Safeline Inc.), 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 (other than Safeline Inc.) 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); provided, however, that the
provisions of this subsection 7.12(B)(ii) shall not apply from and
after the Investment Grade Date, 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 and except as provided in
the Senior Subordinated Note Indenture and the Senior Subordinated
Notes, 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 (other than
Safeline Inc.) 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 (other than
Safeline Inc.) 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, (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, and (4) the provisions of this sentence shall not apply
from and after the Investment Grade Date. 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; provided, however, that the foregoing
provisions shall not apply from and after the Investment Grade Date.
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; provided, however,
that the foregoing provisions shall not apply from and after the
Investment Grade Date.
(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; provided, however,
that the foregoing provisions shall not apply from and after the
Investment Grade Date. 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 Second Amendment and Restatement Date,
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 (1) 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 and (2) the provisions of the foregoing
shall not apply from and after the Investment Grade 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 (other than Safeline Inc.), 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; provided, however, that the provisions of this
subsection 7.20(ii) shall not apply from and after the Investment
Grade Date.
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) of the Original Credit Agreement, 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.
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 or any Affiliate of a Lender;
(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) or set forth on Schedule 8.2(i)(A); 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. $100 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
(including in connection with the transactions to occur on the
Second Amendment and Restatement Date), 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 (x) U.S. $50.0 million and (y) U.S. $60.0
million so long as the Debt to EBITDA Ratio as of the end of the
most recently completed fiscal quarter is less than 2.5 to 1.0;
provided, however, that not more than the Dollar Equivalent
amount of ((x) U.S. $25.0 million and (y) U.S. $30.0 million so
long as the Debt to EBITDA Ratio as of the end of the most
recently completed fiscal quarter is less than 2.5 to 1.0 in the
aggregate may be incurred and outstanding at any time pursuant to
any agreement that is for permanent funded debt;
(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 or Holding 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 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; (l) 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); and (m) the fee payable upon the
termination of the Management Services Agreement.
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. ss. 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 Original Closing Date 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 Original 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, 1997) 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:
==========================================================
Period Ratio
- - - ----------------------------------------------------------
December 31, 1997 through 6/30/1998 2.00:1.0
- - - ----------------------------------------------------------
7/1/1998 through 6/30/1999 2.50:1.0
- - - ----------------------------------------------------------
7/1/1999 through 6/30/2000 3.00:1.0
- - - ----------------------------------------------------------
7/1/2000 and thereafter 3.25:1.0
==========================================================
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, 1997) occurring
during any period set forth below to be less than the amount set forth
opposite such period:
==========================================================
Consolidated
Period Net Worth
- - - ----------------------------------------------------------
December 31, 1997 through 9/30/1998 U.S. $175.0 million
- - - ----------------------------------------------------------
10/1/1998 through 9/30/1999 U.S. $200 million
- - - ----------------------------------------------------------
10/1/1999 through 9/30/2000 U.S. $250 million
- - - ----------------------------------------------------------
10/1/2000 through 9/30/2001 U.S. $275 million
- - - ----------------------------------------------------------
10/1/2001 and thereafter U.S. $300 million
==========================================================
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 December 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:
==========================================================
Period Ratio
- - - ----------------------------------------------------------
December 31, 1997 through 3/31/1999 5.0:1.0
- - - ----------------------------------------------------------
4/1/1999 through 9/30/1999 4.75:1.0
- - - ----------------------------------------------------------
10/1/1999 through 3/31/2000 4.50:1.0
- - - ----------------------------------------------------------
4/1/2000 through 9/30/2000 4.25:1.0
- - - ----------------------------------------------------------
10/1/2000 and thereafter 4.00:1.0
==========================================================
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 to purchase capital
stock (or options or other rights in respect thereof) of Holding
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 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) the Senior Subordinated Notes may be
redeemed or repurchased with the net proceeds of the IPO and, after
the IPO, may be repurchased in open market purchases (and cancelled)
on ordinary business terms; (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:
==========================================================
Fiscal Year U.S. Dollars
- - - ----------------------------------------------------------
1997 40 million
- - - ----------------------------------------------------------
1998 40 million
- - - ----------------------------------------------------------
1999 45 million
- - - ----------------------------------------------------------
2000 45 million
- - - ----------------------------------------------------------
2001 50 million
- - - ----------------------------------------------------------
2002 50 million
- - - ----------------------------------------------------------
2003 and thereafter 50 million
==========================================================
; provided, however, that (x) 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); and (y) 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 (other than Safeline, Inc.) 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,
(x) 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 and (y) the
provisions of this subsection 8.22(ii) shall not apply from and after
the Investment Grade Date, (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 (x) any Subsidiary which is prohibited
by applicable local law from entering into a Subsidiary Guarantee need
not do so and (y) the requirements of this subsection 8.22(iii) with
respect to Security Documents shall not apply from and after the
Investment Grade Date, 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.
(l) 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, provided, however, that the
foregoing shall not apply from and after the Investment Grade
Date.
(m) Change of Control. Any Change of Control shall occur.
(n) 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
----------
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 or any other time and take all actions incidental or
related thereto and to execute and deliver, and approve the form and
substance of, the Ratification Agreement (entered into on the
Amendment and Restatement Date or the Second Amendment and Restatement
Date) 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 the Second
Amendment and Restatement Date, (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, and (D) execute and deliver on behalf of the Lenders and the
Agents all documents necessary to release Collateral from the Lien of
the Loan Documents as and when permitted by Section 11.21.
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
-------------
11.1. Amendments and Waivers. (a) Subject to Section 8.26, 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) add additional Swing Line Lenders for
the Subsidiary Swing Line Borrowers (with only the new Swing Line
Lender being deemed affected thereby), (ii) modify or amend the
definition of Subsidiary Swing Line Borrowers, including by naming
additional Subsidiaries as Subsidiary Swing Line Borrowers, or (iii)
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 (with only the Swing Line
Lender which lends to the Subsidiary Swing Line Borrower whose
sublimit is increased deemed affected thereby); provided, however,
that no additional currencies to be made available to any Subsidiary
Swing Line Borrower beyond that in effect on the Second 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 (i) no such waiver, amendment
or consent shall, unless in writing and signed by all the affected
Non-Defaulting Lenders (or by the Administrative Agent at the written
request of all the affected Non-Defaulting Lenders) and the Credit
Agreement Loan Parties and acknowledged by the Administrative Agent,
do any of the following: (A) 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 term 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);
(B) extend the final scheduled maturity of any Loan or Note, or extend
the expiration date of any Letter of Credit beyond the Termination
Date or postpone or delay any date fixed for any payment of interest,
fees or other amounts (other than interim principal payments and 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; (C) 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; (D) reduce the percentage set forth in the
definition of the term "Required Lenders", or "Supermajority Lenders"
(it being understood that additional extensions of credit pursuant to
this Agreement consented to by the Required Lenders may be included in
the determination of any such definition without notice or consent of
any other Lender or Agent on substantially the same basis as the
Commitments (and related extensions of credit) are included on the
Second Amendment and Restatement Date); (E) release any material
portion of the Collateral (except as expressly permitted by the Loan
Documents), provided that from and after the Investment Grade Date all
of the Collateral may be released as provided in Section 11.21; (F)
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; (G) release any Guarantor from its
obligations under its Guarantee (except upon a permitted sale of such
Guarantor); or (H) 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; (ii)
no such waiver, amendment or consent shall increase the Commitments of
any Lender over the amount thereof then in effect without the consent
of such Lender (it being understood that amendments, modifications or
waivers of conditions precedent, covenants, Events of Default or
Unmatured Events of Default shall not constitute an increase of the
Commitment of any Lender); (iii) no consent of any Lender need be
obtained, and the Administrative Agent is hereby authorized, to
release any Lien securing the Obligations on property which is the
subject of any disposition permitted by this Agreement and the other
Loan Documents; (iv) no reduction of the percentage specified in the
definition of "Required Revolving Facility Lenders" shall be made
without the consent of each Revolving Facility Lender (it being
understood that additional extensions of credit pursuant to this
Agreement consented to by the Required Lenders may be included in such
definition without notice to or consent of any other Lender or Agent
on substantially the same terms as the Commitments (and related
extensions of credit) are included on the Closing Date); (v) no
reduction of the percentage specified in the definition of Required
Canadian Lenders shall be made without the consent of each Canadian
Lender (it being understood that additional extensions of credit
pursuant to this Agreement consented to by the Required Lenders may be
included in such definition without notice to or consent of any other
Lender or Agent on substantially the same terms as the Commitments
(and related extensions of credit) all included on the Second
Amendment and Restatement Date); and (vi) no reduction of the
percentage specified in the definition of "Majority Lenders of the
Affected Tranche" shall be made without the consent of each Lender
having a Term Loan Commitment or Term Loan (it being understood that
additional extensions of credit pursuant to this Agreement consented
to by the Required Lenders may be included in such definition without
notice to or consent of any other Lender or Agent on substantially the
same terms as the Commitments (and related extensions of credit) all
included on the Second Amendment and Restatement Date); 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, (x) 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) or (y) extend the
time for any scheduled Amortization Payments or reduce the principal
amount of any scheduled Amortization Payment, 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)(A)-(H), 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
clauses (ii), (iii) or (iv) of the first proviso of subsection 11.1(a)
or 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.
11.5. 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.
11.6. 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.
11.7. 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.
11.8. 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 Revolving Note, 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 Loan Parties 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 any Borrower (a
"Participant") participating interests in all or any part of 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 dated November [ ], 1997
between US Borrower and Merrill Lynch Capital Corporation (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 by 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 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.
11.21. Release of Collateral. From and after the Investment Grade
Date the Administrative Agent shall, at the request and sole expense
of US Borrower, take any action and execute all documents and
instruments to effect the release of the Lien of the Loan Documents
(as well as of Swap Contracts with Lenders or their Affiliates) on the
Collateral.
11.22. Amendments Effective Regardless of Effectiveness of Second
Amended and Restated Credit Agreement. Notwithstanding the failure of
any condition to the effectiveness of this Second Amended and Restated
Credit Agreement set forth in Section 5.3 or elsewhere, each of the
following provisions shall be effective upon execution and delivery of
this document by the parties hereto and shall amend the Amended and
Restated Credit Agreement:
(a) The parties hereby agree that for any Security Document
entered into on or after the Original Closing Date securing Swap
Obligations (as defined in any such Security Document) pursuant
to a Swap Contract, the term Swap Obligations shall include, in
addition to Swap Contracts entered into with any Lender, Swap
Contracts entered into with any Affiliate of any Lender. In any
such Security Document, the term Secured Parties shall include,
in addition to Lenders, Affiliates of any Lender who entered into
Swap Contracts with US Borrower or any Subsidiary; provided,
however, that if such Security Document does not secure the
obligations, or a guarantee of the obligations, under this
Agreement of US Borrower, then in such case with respect to such
Security Document no such change shall be effected; and
(b) Notwithstanding anything to the contrary contained in
the Amended and Restated Credit Agreement, from and including
November 12, 1997 to and including November 20, 1997, Borrowers
may elect an Interest Period different from those contained in
the definition of Interest Period above.
[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
-----------------------
Title:
METTLER-TOLEDO HOLDING AG,
as a Borrower
By: /s/ William P. Donnelly
-----------------------
Title:
METTLER-TOLEDO INTERNATIONAL INC.,
as Guarantor
By: /s/ William P. Donnelly
-----------------------
Title:
SAFELINE HOLDING COMPANY,
as UK Borrower and as a Subsidiary
Swing Line Borrower
By: /s/ William P. Donnelly
-----------------------
Title:
METTLER-TOLEDO INC.,
as Canadian Borrower
By: /s/ William P. Donnelly
-----------------------
Title:
METTLER TOLEDO MANAGEMENT HOLDING
DEUTSCHLAND GMBH, as a Subsidiary
Swing Line Borrower
By: /s/ William P. Donnelly
-----------------------
Title:
METTLER-TOLEDO S.A., VEROFLAY,
as a Subsidiary Swing Line Borrower
By: /s/ William P. Donnelly
-----------------------
Title:
METTLER-TOLEDO K.K., TAKARAZUKA,
as a Subsidiary Swing Line Borrower
By: /s/ William P. Donnelly
-----------------------
Title:
METTLER-TOLEDO GMBH, GREIFENSEE,
as a Subsidiary Swing Line Borrower
By: /s/ William P. Donnelly
-----------------------
Title:
METTLER-TOLEDO LTD., LEICESTER,
as a Subsidiary Swing Line Borrower
By: /s/ William P. Donnelly
-----------------------
Title:
SAFELINE LIMITED,
as a Subsidiary Swing Line Borrower
By: /s/ William P. Donnelly
-----------------------
Title:
MERRILL LYNCH & CO., MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED,
as Arranger and Documentation Agent
By: /s/
-----------------------
Title: Director
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By: /s/ Todd Meller
-----------------------
Title: Senior Relationship Manager
THE BANK OF NOVA SCOTIA,
as Canadian Agent
By: /s/
-----------------------
Title:
CREDIT SUISSE FIRST BOSTON,
as Co-Agent
By: /s/ Karl Studer /s/ Ronnie Mueller
----------------------------------
Title: Director Associate
ABN AMRO BANK N.V.,
as Co-Agent
By: /s/ Patrick M. Pastore
-----------------------
Title: Vice President
By: /s/ Louis K. McLinden, Jr.
--------------------------
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as Co-Agent
By: /s/
-----------------------
Title:
BANKERS TRUST COMPANY,
as Co-Agent
By: /s/ Patricia Hogan
-----------------------
Title: Vice President
COMPAGNIE FINANCIERE DE CIC
ET DE L'UNION EUROPEENNE,
as Co-Agent
By: /s/ Sean Mounier
-----------------------
Title: First Vice President
COMPAGNIE FINANCIERE DE CIC
ET DE L'UNION EUROPEENNE,
as Co-Agent
By: /s/ Marcus Edward
-----------------------
Title: Vice President
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Co-Agent
By: /s/
-----------------------
Title:
THE INDUSTRIAL BANK OF JAPAN TRUST
COMPANY,
as Co-Agent
By: /s/ Jeffrey Cole
-----------------------
Title: Senior Vice President
SOCIETE GENERALE,
as Co-Agent
By: /s/ Eric Bellaiche
-----------------------
Title: Vice President
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG,
as a Lender
By: /s/Uwe Roeder
-----------------------
Name: Uwe Roeder
Title: Vice President
By: /s/David A. Rockwell
-----------------------
Name: David A. Rockwell
Title: Senior Vice President
Address for Notices:
Financial Square
32 Old Slip
New York, NY 10005
Attention: Uwe Roeder
Telecopier No.: (212) 440-0741
Telephone No.: (212) 440-0785
DG BANK Deutsche Genossenschaftsbank,
as a Lender
By: /s/Norah McCann
-----------------------
Name: Norah McCann
Title: Senior Vice President
By: /s/Sabine Wendt
-----------------------
Name: Sabine Wendt
Title: Assistant Vice President
Address for Notices:
609 Fifth Avenue
8th Floor
New York, NY 10017
Attention: Norah McCann
Telecopier No.: (212) 745-1556
Telephone No.: (212) 745-1584
ROYAL BANK OF CANADA,
as a Lender,
By: /s/John C. Lastgarten
-----------------------
Name: John C. Lastgarten
Title: Manager
By: /s/Martin Broadhurst
-----------------------
Name: Martin Broadhurst
Title: Manager
Address for Notices:
Financial Square
New York, NY 10005-3531
Attention: Frederick Haddad
Telecopier No.: (212) 428-2319
Telephone No.: (212) 428-2391
71 Queen Victoria Street
London EC4 V4DE
England
Attention: Martin Broadhurst
Telecopier No.: 441 71 329-6144
Telephone No.: 441 71 489-1188
BANKERS TRUST COMPANY,
as a Lender
By: /s/Anthony LoGrippo
-----------------------
Name: Anthony LoGrippo
Title: Vice President
Address for Notices:
130 Liberty Street
New York, NY 10006
Attention: Greg Maragni
Telecopier No.: (212) 250-7351
Telephone No.: (212) 250-4398
NATEXIS BANQUE BFCE,
as a Lender
By: /s/Kevin Dooley
-----------------------
Name: Kevin Dooley
Title: Vice President
By: /s/Frederick K. Kammler
-----------------------
Name: Frederick K. Kammler
Title: Vice President
Address for Notices:
645 Fifth Avenue
New York, NY 10022
Attention: Kevin Dooley
Telecopier No.: (212) 872-5054
Telephone No.: (212) 872-5195
THE FUJI BANK AND TRUST COMPANY,
as a Lender
By: /s/Toshiaki Yakura
-----------------------
Name: Toshiaki Yakura
Title: Executive Vice President
Address for Notices:
225 West Wacker Drive
Suite 2000
Chicago, IL 60606
Attention: James R. Fayen
Telecopier No.: (312) 621-0539
Telephone No.: (312) 621-0397
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY,
as a Lender
By: /s/ Jeffrey Cole
-----------------------
Name: Jeffrey Cole
Title: Senior Vice President
Address for Notices:
1251 Avenue of the Americas
New York, NY 10020
Attention: Chris Droussiotis
Telecopier No.: (212) 282-4490
Telephone No.: (212) 282-3323
227 West Monroe Street
Suite 2600
Chicago, IL 60606
Attention: Steve Ryan
Telecopier No.: (312) 855-8200
Telephone No.: (312) 855-6251
MERRILL LYNCH CAPITAL CORPORATION,
as a Lender
By: /s/ Christopher K. Stout
-----------------------
Name: Christopher K. Stout
Title: Vice President
Address for Notices:
Merrill Lynch & Co.
World Financial Center
North Tower
New York, NY 10281
Attention: Christopher Reilly
Telecopier No.: (212) 449-2372
Telephone No.: (212) 449-8405
GOLDMAN SACHS INTERNATIONAL BANK,
as a Lender
By: /s/
-----------------------
Name:
Title:
Address for Notices:
Peterborough Court
133 Fleet Street
London
EC4 2BB
England
Attention: Sue Wolstenholme
Telecopier No.:
Telephone No.: 0171 774-2551
CREDITANSTALT CORPORATE FINANCE, INC.,
as a Lender
By: /s/ Richard P. Buckanavage
--------------------------
Name: Richard P. Buckanavage
Title: Vice President
By: /s/Maura Connor
-----------------------
Name: Maura Connor
Title: Senior Associate
Address for Credit Related Matters and
Notices:
2 Greenwich Plaza
Greenwich, CT 06830
Attention: Maura Connor
Telecopier No.: (203) 861-1475
Telephone No.: (203) 861-6432
Address for Borrowing Notices:
2 Greenwich Avenue
Greenwich, CT 06830
Telecopier No.: (203) 861-6594
Telephone No.: (203) 861-6423
LTCB TRUST COMPANY,
as a Lender
By: /s/ Satoru Otsubo
-----------------------
Name: Satoru Otsubo
Title: Executive Vice President
Address for Notices:
165 Broadway
New York, NY 10006
Attention: Koji Sasayama
Telecopier No.: (212) 608-2371
Telephone No.: (212) 335-4576
COMPAGNIE FINANCIERE DE CIC
ET DE L'UNION EUROPEENE,
as a Lender
By: /s/ Sean Mounier
-----------------------
Name: Sean Mounier
Title: First Vice President
By: /s/ Marcus Edward
-----------------------
Name: Marcus Edward
Title: Vice President
Address for Notices:
520 Madison Avenue
New York, NY 10022
Attention: Sean Mounier
Telecopier No.: (212) 715-4535
Telephone No.: (212) 715-4413
DG BANK Deutsche Genossenschaftsbank,
as a Lender
By: /s/ Norah McCann
-----------------------
Name: Norah McCann
Title: Senior Vice President
By: /s/ Sabine Wendt
-----------------------
Name: Sabine Wendt
Title: Assistant Vice President
Address for Notices:
609 Fifth Avenue
8th Floor
New York, NY 10017
Attention: Norah McCann
Telecopier No.: (212) 745-1556
Telephone No.: (212) 745-1584
CREDIT LYONNAIS New York Branch,
as a Lender
By: /s/ W. Michael George
-----------------------
Name: W. Michael George
Title: Vice President
Address for Notices:
1301 Avenue of the Americas
New York, NY 10019
Attention: W. Michael George
Telecopier No.: (212) 459-3176
Telephone No.: (212) 261-7865
COMMERZBANK AG, NEW YORK and/or
GRAND CAYMAN BRANCHES,
as a Lender
By: /s/ Andreas D. Schwung
-----------------------
Name: Andreas D. Schwung
Title: Vice President
By: /s/ David A. Wagner
-----------------------
Name: David A. Wagner
Title: Assistant Treasurer
Address for Notices:
2 Financial Center
New York, NY 10281-1050
Attention: Andreas Schwung
Telecopier No.: (212) 266-7594
Telephone No.: (212) 266-7386
NATIONAL CITY BANK,
as a Lender
By: /s/ Lisa Beth Lisi
-----------------------
Name: Lisa Beth Lisi
Title: AVP
Address for Notices:
National City Center
1900 East Ninth Avenue
Attention: Ms. Lisa Lisi
Telecopier No.: (216) 222-0003
Telephone No.: (216) 575-9166
ROYAL BANK OF SCOTLAND plc,
as a Lender
By: /s/ Grant Stoddart
-----------------------
Name: Grant Stoddat
Title: Senior Vice President and Manager
Address for Notices:
88 Pine Street
26th Floor
New York, NY 10005-1801
Attention:
Telecopier No.: (212) 480-0791
Telephone No.: (212) 269-0299
BAYERISCHE HYPOTHEKEN-UND
WECHSEL-BANK AG,
as a Lender
By: /s/ Uwe Roeder
-----------------------
Name: Uwe Roeder
Title: Vice President
By:/s/David Rockwell
-----------------------
Name: David Rockwell
Title: Senior Vice President
Address for Notices:
Financial Square
32 Old Slip
New York, NY 10005
Attention: Uwe Roeder
Telecopier No.: (212) 440-0741
Telephone No.: (212) 440-0785
Bayerische Vereins Bank AG New York Branch,
as a Lender
By: /s/ Hans Dick
-----------------------
Name: Hans Dick
Title: Vice President
By: /s/ Sylvia Cheng
-----------------------
Name: Sylvia Cheng
Title: Senior Vice President
Address for Notices:
335 Madison Avenue
19th Floor
New York, NY 10017
Attention: Hans Dick
Telecopier No.: (212) 880-9762
Telephone No.: (212) 880-9775
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
as a Lender
By: /s/ Paul P. Malecki
-----------------------
Name: Paul P. Malecki
Title: Vice President
Address for Notices:
1251 Avenue of the Americas
New York, NY 10020-1104
Attention: Paul P. Malecki
Telecopier No.: (212) 782-4981
Telephone No.: (212) 782-4343
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ Todd Meller
-----------------------
Name: Todd Meller
Title: Senior Relationship Manager
Address for Notices:
(Administration)(USS)
One Liberty Plaza
26th Floor
New York, NY 10006
Attention: Tilsa Cora
Telecopier No.: (212) 225-5145
Telephone No.: (212) 225-5044
Address for Notices:
(Administrative)(Non-U.S.)
Scotia House - 33 Finsbury Square
London EC2A 1BB England
Attention: Marian Staples
Telecopier No.: 011-44-171-826-5857
Telephone No.: 011-44-171-683-5644
Address for Notices:
(Credit)
One Liberty Plaza
26th Floor
New York, NY 10006
Attention: Todd Meller
Telecopier No.: (212) 225-5090
Telephone No.: (212) 225-5096
SOCIETE GENERALE,
as a Lender
By: /s/ Eric Bellaiche
-----------------------
Name: Eric Bellaiche
Title: Vice President
Address for Notices:
181 West Madison Street
Suite 3400
Chicago, IL 60602
Attention: Eric Bellaiche
(credit matters)
Telecopier No.: (212) 578-5099
Telephone No.: (212) 578-5154
Attention: Karen Bonomo
(Administrative Matters)
Telephone No.: (312) 578-5111
CRESTAR BANK,
as a Lender
By: /s/ Linda L. Bergmann
-----------------------
Name: Linda L. Bergmann
Title: Vice President
Address for Notices:
919 East Main Street
Richmond, VA 23219
Attention: Linda L. Bergmann
Telecopier No.: (804) 782-5413
Telephone No.: (804) 782-7806
CREDIT AGRICOLE INDOSUEZ,
as a Lender
By: /s/ Katherine L. Abbott
------------------------
Name: Katherine L. Abbot
Title: First Vice President
By: /s/ Alain Butzbach
-----------------------
Name: Alain Butzbach
Title: Executive Vice President
Deputy General Manager - USA
Address for Notices:
55 E. Monroe Street
Suite 4700
Chicago, IL 60603
Attention: Raymond Falkenberg, V.P.
Telecopier No.: (312) 372-3724
Telephone No.: (312) 917-7426
THE SUMITOMO BANK LTD.
CHICAGO BRANCH,
as a Lender
By: /s/ Ken-Ichiro Kobayashi
--------------------------
Name: Ken-Ichiro Kobayashi
Title: Joint General Manager
Address for Notices:
233 So. Wacker Drive
Suite 4800
Chicago, IL 60606-6448
Attention:
Telecopier No.: (312) 876-6436
Telephone No.: (312) 876-6444
ABN AMRO BANK N.V.,
as a Lender
By: /s/ Patrick M. Pastore
--------------------------
Name: Patrick M. Pastore
Title: Vice President
By: /s/ Louis K. McLinden Jr.
--------------------------
Name: Louis K. McLinden Jr.
Title: Vice PResident
Address for Notices:
One PPG Place, Suite 2950
Pittsburgh, PA 15222
Attention: Patrick M. Pastore
Telecopier No.: (412) 566-2266
Telephone No.: (412) 566-2297
MERITA BANK LTD, NEW YORK BRANCH,
as a Lender
By: /s/ Frank Maffei
--------------------------
Name: Frank Maffei
Title: Vice President
By: /s/ Clifford Abramsky
--------------------------
Name: Clifford Abramsky
Title: Vice President
Address for Notices:
435 Madison Avenue
New York, NY 10022
Attention: Frank Maffei
Telecopier No.: (212) 318-9318
Telephone No.: (212) 318-9561
THE MITSUBISHI TRUST AND BANKING
CORPORATION,
as a Lender
By: /s/ Beatrice Kossodo
--------------------------
Name: Beatrice Kossodo
Title: Vice President
Address for Notices:
520 Madison Avenue
25th Floor
New York, NY 10022
Attention: Beatrice Kossodo
Telecopier No.: (212) 644-6825
Telephone No.: (212) 891-8363
THE HUNTINGTON NATIONAL BANK,
as a Lender
By: /s/ Christopher Spence
--------------------------
Name: Christopher Spence
Title: Assistant Vice President
Address for Notices:
41 South High Street
HC-0810
Columbus, OH 43215
Attention: Christopher Spence
Telecopier No.: (614) 480-5791
Telephone No.: (614) 480-3129
BANQUE PARIBAS,
as a Lender
By: /s/ Robert G. Carino
--------------------------
Name: Robert G. Carino
Title: Vice President
By: /s/ John J. McCormick, III
--------------------------
Name: John J. McCormick, III
Title: Vice President
Address for Notices:
787 Fifth Avenue
New York, NY 10019
Attention: Mary T. Finnegan
Telecopier No.: (212) 841-2333
Telephone No.: (212) 841-2551
CREDIT SUISSE FIRST BOSTON,
as a Lender
By: /s/ Karl Studer
--------------------------
Name: Karl Studer
Title: Director
By: /s/ Ronnie Mueller
--------------------------
Name: Ronnie Mueller
Title: Associate
Address for Notices:
Credit Suisse First Boston
11 Madison Avenue
New York, NY 10010-3629
Attention: Karl Studer
Telecopier No.: (212) 325-8326
Telephone No.: (212) 325-9163
METTLER-TOLEDO, INC. Annex A
The Bank of Nova Scotia Administrative Details:
For payment of principal, fees, or interest paid in the following
currencies to The Bank of Nova Scotia, please credit our accounts:
U.S. Dollar Denominated: The Bank of Nova Scotia
ABA# 026002532
for credit to account no. 2086-12
Reference: Mettler Toledo
French Franc Denominated: Banque Francaise Du Commerce Exteriuer
Paris, France
For further credit to The Bank of Nova Scotia London
Reference: Mettler Toledo
Swift Code: BFCEFRPP
Pounds Sterling Denominated: The Bank of Nova Scotia London
33 Finsbury Square, London EC2A 1BB
For further credit to The Bank of Nova Scotia London
Reference: Mettler Toledo
Chips UID 301661
Swift Code: LOYD GB 2L
Japanese Yen Denominated: Sanwa Bank
Tokyo, Japan
For further credit to The Bank of Nova Scotia London
Reference: Mettler Toledo
Swift Code: SANWJPJT
Deutsche Mark Denominated: Deutsche Bank AG
Frankfurt, Germany
For further credit to The Bank of Nova Scotia London
Reference: Mettler Toledo
Swift Code: DEUTDEFF
Swiss Franc Denominated: Swiss Bank Corp.
Zurich, Switzerland
For further credit to The Bank of Nova Scotia London
Reference: Mettler Toledo
Swift Code: SBCOCHZZ80A
U.S. Account
Administrator:
- - - --------------
The Bank of Nova Scotia Tilsa Cora
One Liberty Plaza, Tel: (212) 225-5044
26th Floor Fax: (212) 225-5145
New York, NY 10006
CH Account
Administrator:
- - - --------------
The Bank of Nova Scotia Marian Staples Sue Ward
Scotia House Tel: (44-171) 826-5648 Tel: (44-171) 826-5963
33 Finsbury Square Fax: (44-171) 826-5857 Fax: (44-171) 826-5857
London, EC2A 1BB
Canadian Account
Administrator:
- - - --------------
The Bank of Nova Scotia Bonnie McKee Gail Banich
Scotia Plaza Tel: (416) 866-6776 Tel: (416) 866-6774
44 King St. West Fax: (416) 866-6489 Fax: (416) 866-6489
Toronto, Ontario M5H 1H1
Primary Secondary
Credit Contact: Credit Contact:
--------------- ---------------
The Bank of Nova Scotia Todd S. Meller Maria Bate
One Liberty Plaza, Tel: (212) 225-5096 Tel: (212) 225-5179
26th Floor Fax: (212) 225-5090 Fax: (212) 225-5090
New York, NY 10006
EXHIBIT 10.10
AGREEMENT OF MERGER
-------------------
AGREEMENT OF MERGER (this "Agreement"), dated as of November 13,
1997, by and between MT Investors Inc., a Delaware corporation (the
"Company"), and Mettler-Toledo Holding Inc., a Delaware corporation
("Holding"). The Company and Holding are hereinafter sometimes collectively
called the "Constituent Corporations."
RECITALS
WHEREAS, the Board of Directors of each of the Constituent
Corporations deems it advisable and to the welfare and advantage of such
Constituent Corporation and its respective stockholders that the
Constituent Corporations merge under and pursuant to Section 251 of the
General Corporation Law of the State of Delaware into a single corporation,
to wit, the Company shall be the surviving corporation, and have approved
this Agreement and the merger contemplated hereby (the "Merger");
WHEREAS, the registered office of the Company in the State of
Delaware is located at Corporation Trust Center, 1209 Orange Street in the
City of Wilmington, County of New Castle, and the name of its registered
agent at such address is The Corporation Trust Company; and the registered
office of Holding in the State of Delaware is located at Corporation Trust
Center, 1209 Orange Street in the City of Wilmington, County of New Castle,
and the name of its registered agent at such address is The Corporation
Trust Company.
NOW, THEREFORE, the corporations, parties to this Agreement, in
consideration of the mutual covenants, agreements and provisions
hereinafter contained do hereby prescribe the terms and conditions of said
merger and mode of carrying the same into effect as follows:
ARTICLE 1.
THE MERGER
1.1. Surviving Corporation. In accordance with the provisions of
this Agreement and the applicable laws of the State of Delaware, at the
Effective Time (as defined in Section 1.2 hereof), Holding shall be merged
with and into the Company, and the Company shall be the surviving
corporation (such corporation in its capacity as such surviving corporation
being hereinafter sometimes called the "Surviving Corporation") and shall
continue its corporate existence and organization under the laws of the
State of Delaware, and the separate existence of Holding shall thereupon
cease.
1.2. Effective Time. A certificate of merger in substantially the
form annexed hereto as Annex A (the "Certificate of Merger") shall be filed
with the Secretary of State of the State of Delaware by the Company to
effect the Merger. The term "Effective Time" shall mean the time at which
the Certificate of Merger is filed with the Secretary of State of the State
of Delaware.
1.3. Certificate of Incorporation. At the Effective Time, the
form of Amended and Restated Certificate of Incorporation attached hereto
as Exhibit A shall become and constitute the Amended and Restated
Certificate of Incorporation of the Surviving Corporation until further
amended or changed as provided therein or by law.
1.4. Bylaws. At the Effective Time, the form of amended Bylaws
attached hereto as Exhibit B shall become and constitute the Bylaws of the
Surviving Corporation until amended or changed as provided therein or by
law.
1.5. Directors. The directors of the Company at the Effective
Time shall be and remain the directors of the Surviving Corporation and
each shall hold office until their respective successors are duly elected
and qualified.
1.6. Officers. The officers of the Company at the Effective Time
shall be and remain the officers of the Surviving Corporation and shall
hold office until their respective successors are duly elected or appointed
and qualified.
1.7. Effect of the Merger. The Surviving Corporation shall
succeed, without other transfer, to all the rights and property of Holding
and shall be subject to all the debts and liabilities thereof in the same
manner as if the Surviving Corporation had itself incurred them. All rights
of creditors and all liens put on the property of each of the Constituent
Corporations shall be preserved unimpaired.
1.8. Confirmatory Instruments. If any time after the Effective
Time the Surviving Corporation shall consider or be advised that any
instruments of further assurance are desirable in order to evidence the
vesting in it of the title of either of the Constituent Corporations to any
of the property rights of the Constituent Corporations, the appropriate
officers or directors of either of the Constituent Corporations, are hereby
authorized to execute, acknowledge and deliver all such instruments of
further assurance and to do all other acts or things, either in the name of
the Company or in the name of Holding, as may be requisite or desirable to
carry out the provisions of this Agreement.
ARTICLE 2.
MANNER AND BASIS OF CONVERTING SECURITIES
2.1. Conversion of Securities. At the Effective Time, by virtue
of the Merger and without any action on the part of the Company, Holding or
the holders thereof:
(i) all of the issued and outstanding shares of
capital stock of Holding shall be canceled;
(ii) each share of Class A Common Stock, par value
$.01, of Holding which are issued and outstanding
immediately prior to the Effective Time shall be
converted into and represent the right to receive
12.58392 shares of Common Stock, $.01 par value, of the
Surviving Corporation;
(iii) each share of Class B Common Stock, par
value $.01, of the Company which are issued and
outstanding immediately prior to the Effective Time
shall be converted into and represent the right to
receive 12.58392 shares of Common Stock, $.01 par
value, of the Surviving Corporation; and
(iv) each share of Class C Common Stock, par value
$.01, of the Company which are issued and outstanding
immediately prior to the Effective Time shall be
converted into and represent the right to receive
12.58392 shares of Common Stock $.01 par value, of the
Surviving Corporation.
At and after the Effective Time, all of the outstanding certificates which
immediately prior to the Effective Time represented shares of Class A
Common Stock, Class B Common Stock or Class C Common Stock of the Company
shall be deemed for all purposes to evidence ownership of, and to
represent, shares of Common Stock of the Surviving Corporation into which
the shares of Class A Common Stock, Class B Common Stock or Class C Common
Stock of the Company formerly represented by such certificates have been
converted as herein provided. The registered owner on the books and records
of the Company of any such outstanding stock certificate without taking any
action shall, until such certificate shall have been surrendered for
transfer or otherwise accounted for to the Surviving Corporation or its
transfer agent, have and be able to exercise any voting and all other
rights with respect to and receive any dividend or other distributions upon
the Common Stock of the Surviving Corporation evidenced by such outstanding
certificate as provided.
2.2. Fractional Securities. No fractional shares shall be issued
by the Surviving Corporation as part of the merger consideration. Each
shareholder of the Company who otherwise would be entitled to a fractional
interest in a share of Common Stock of the Surviving Corporation shall
receive an amount of cash (without interest) equal to the market value of
any fractional share of Common Stock to which any person becomes entitled
as a result of the conversion ratio set forth herein. For such purpose, the
market value of a share of Common Stock shall be $___, or such other price
as shall be set by the Board of Directors of the Surviving Corporation.
ARTICLE 3.
MISCELLANEOUS
3.1. Conditions. The consummation of the Merger is subject to the
following condition: approval of the Merger by the stockholders of the
Constituent Corporations as required by Delaware law.
3.2. Termination of Merger. Anything herein or elsewhere to the
contrary notwithstanding, this Agreement may be terminated and abandoned by
the board of directors of any Constituent Corporation at any time prior to
the date of filing the Certificate of Merger with the Secretary of State of
the State of Delaware. This Agreement may be amended by the boards of
directors of the Constituent Corporations at any time prior to the date of
filing the Certificate of Merger with the Secretary of State, provided that
an amendment made subsequent to the adoption of the Agreement by the
stockholders of any Constituent Corporation shall not (1) alter or change
the amount or kind of shares, securities, cash, property and/or rights to
be received in exchange for or on conversion of all or any of the shares of
any class or series thereof of such Constituent Corporation, (2) alter or
change any term of the Certificate of Incorporation of the Surviving
Corporation to be effected by the merger, or (3) alter or change any of the
terms and conditions of this Agreement if such alteration or change would
adversely affect the holders of any class or series thereof of such
Constituent Corporation.
3.3. Execution in Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties to this Agreement have caused
these presents to be executed by an authorized officer and attested by the
Secretary of each party hereto as the respective act, deed and agreement of
each of said corporations, on this 14th day of November, 1997.
MT INVESTORS INC.
By: /s/ Robert F. Spoerry
------------------------------
Name: Robert F. Spoerry
----------------------------
Title: President
---------------------------
ATTEST:
By: /s/ Christine J. Smith
--------------------------------
Christine J. Smith
Secretary
METTLER-TOLEDO HOLDING INC.
By: /s/ William P. Donnelly
------------------------------
Name: William P. Donnelly
----------------------------
Title: Chief Financial Officer
and Treasurer
---------------------------
ATTEST:
By: /s/ Christine J. Smith
-------------------------------
Christine J. Smith
Secretary
<PAGE>
Annex A
CERTIFICATE OF MERGER
OF
METTLER-TOLEDO HOLDING INC.
A DELAWARE CORPORATION
INTO
METTLER-TOLEDO INTERNATIONAL INC.
(a Delaware corporation Pursuant to Section 251 of the
Delaware General Corporation Law)
The undersigned corporation, organized and existing under and by
virtue of the General Corporation Law of the State of Delaware
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent corporations in the merger is as follows:
Name State of Incorporation
---- ----------------------
Mettler-Toledo Holding Inc. Delaware
Mettler-Toledo International Inc. Delaware
SECOND: That an Agreement of Merger between the parties to the
merger has been approved, adopted, certified, executed and acknowledged by
each of the constituent corporations in accordance with the requirements of
Section 251 of the General Corporation Law of the State of Delaware.
THIRD: That Mettler-Toledo International Inc., a Delaware
corporation, shall be the surviving corporation.
FOURTH: That upon the effectiveness of the merger herein
described the form of Amended and Restated Certificate of Incorporation
attached hereto as Exhibit A shall become and constitute of the surviving
the Certificate of Incorporation of Mettler-Toledo International Inc. until
further amended or changed as provided therein or by law.
FIFTH: That the executed Agreement of Merger is on file at the
principal place of business of the surviving corporation. The address of
the principal place of business of the surviving corporation is Im
Langacher, P.O. Box MT-100, CH 8606 Greifensee, Switzerland.
SIXTH: That a copy of the Agreement and Plan of Merger will be
furnished by the surviving corporation, on request and without cost, to any
stockholder of any constituent corporation.
METTLER-TOLEDO INTERNATIONAL INC.
By:
------------------------------
Name:
Title:
<PAGE>
EXHIBIT A
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
METTLER-TOLEDO INTERNATIONAL INC.
FIRST: The name of the Corporation is Mettler-Toledo
International Inc.
SECOND: The address of the Corporation's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of its registered agent
as such address is the Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of capital
stock which the Corporation shall have the authority to issue is
135,000,000 shares, all with a par value of One Cent ($.01) per share, of
which 10,000,000 shares shall be designated as Preferred Stock, and
125,000,000 shares shall be designated as Common Stock.
A. Preferred Stock. The Board of Directors is authorized, subject
to limitations prescribed by law, to provide for the issuance of shares of
Preferred Stock in one or more series, to establish the number of shares to
be included in each such series, and to fix the designations, powers,
preferences, and rights of the share of each such series, and any
qualifications, limitations, or restrictions thereof.
B. Common Stock. A statement of the powers, preferences, and
rights, and the qualifications, limitations or restrictions thereof, in
respect of each class of Common Stock is as follows:
1. Dividends and Distributions:
---------------------------
1.01. The holders of Common Stock shall be entitled to receive
dividends and distributions, including distributions in connection with the
liquidation, dissolution or winding up of the affairs of the Corporation,
when and as declared or made by the Board of Directors of the Corporation,
out of funds of the Corporation legally available therefor, payable on such
dividend or distribution payment dates to stockholders of record on such
record dates, not exceeding 60 days preceding the dividend or distribution
payment dates, as shall be fixed for the purpose by the Board of Directors
of the Corporation, upon the following terms:
1.01(a). Dividends or distributions shall be paid ratably to all
of the holders of Common Stock in the proportion that the number of shares
of Common Stock held by such holder bears to the total number of
outstanding shares of Common Stock of the Corporation.
1.01(b). Dividends or distributions of any property of the
Corporation shall be made as follows:
1.01(b)(i). The value of such property shall be determined in the
manner set forth in Section 1.01(b)(ii) on the last business day prior to
the date of declaration of such distribution; and such property shall be
deemed to have been sold with the resulting net proceeds being equal to
such value and shall be distributed to the holders of shares of stock of
the Corporation in accordance with Section 1.01(a).
1.01(b)(ii). For the purpose of determining the value of any
property of the Corporation, freely marketable securities which are listed
on a national securities exchange shall be valued at the average of their
last sales prices on each of the last 20 trading days ending on and
including the date of determination. If no sales occurred on any such
trading day, such sales price shall be deemed to be the mean between the
"bid" and "ask" prices on such day. Freely marketable securities which are
not so listed shall be valued at the average of their last closing "bid"
and "ask" prices on each of the last 20 trading days ending on and
including the date of determination on the basis of quotations furnished by
the National Association of Securities Dealers Incorporated, if available.
Any security which is held under the representation that it has been
acquired for investment and not with a view to public sale or distribution
or which is held subject to any other restriction affecting marketability
shall be valued at such discount from the value determined under the
applicable provisions above as the Board of Directors of the Corporation
deems necessary to reflect properly the restricted marketability of such
securities. Notwithstanding the foregoing, securities which are not freely
marketable securities and all other property may be assigned such value as
the Board of Directors of the Corporation determines to be the fair value.
All matters concerning the valuation of the properly of the Corporation,
the determination of earnings and profits and accounting procedures not
specifically and expressly provided for by the terms of this Certificate of
Incorporation shall be determined by the Board of Directors of the
Corporation, whose determination shall, when made in good faith and with
due care to the performance of its duties, be final and conclusive as to
all of the holders of outstanding shares of the Corporation.
2. Voting Rights.
-------------
2.01. Except as expressly required by statute, each share of
Common Stock shall be entitled to one vote per share on all matters voted
on by the stockholders.
2.02. As permitted by Section 242(b)(2) of the Delaware General
Corporation Law, the number of authorized shares of any class of the
Corporation's Common Stock may be increased at any time and from time to
time by the affirmative vote of the holders of a majority of the shares of
Common Stock then outstanding.
FIFTH:
1. Stockholder Actions. Any action required or permitted to be
taken by the Corporation's stockholders must be effected at a duly called
annual or special meeting of stockholders.
2. Special Meetings. A special meeting of the stockholders of the
Corporation may be called at any time by the Board of Directors, the
Chairman of the Board or the President and Chief Executive Officer and
shall be called by the Chairman of the Board, the President and the Chief
Executive Officer or the Secretary at the request in writing of
stockholders holding together at least fifty percent (50%) of the number of
shares of stock outstanding and entitled to vote at such meeting. Any
special meeting of the stockholders shall be held on such date, at such
time and at such place within or without the State of Delaware as the Board
of Directors or the officer calling the meeting may designate. At a special
meeting of stockholders, no business shall be transacted and no corporate
action shall be taken other than that stated in the notice of the meeting
unless all of the stockholders are present in person or by proxy, in which
case any and all business may be transacted at the meeting even though the
meeting is held without notice.
3. Consents in writing. Any action required or permitted to be
taken by the Corporation's stockholders may not be effected by consent in
writing."
SIXTH: Elections of directors need not be by ballot unless the
By-Laws of the Corporation so provide.
SEVENTH: The Board of Directors of the Corporation may make
By-laws and from time to time may alter, amend or repeal By-laws.
EIGHTH: 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.
NINTH:
1. Nature of Indemnity. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he (or a person of
whom he is the legal representative), is or was a director or officer of
the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, fiduciary, or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a director,
officer, employee, fiduciary or agent or in any other capacity while
serving as a director, officer, employee, fiduciary or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
which it is empowered to do so by the General Corporation Law of the State
of Delaware, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment) against all
expense, liability and loss (including attorneys' fees actually and
reasonably incurred by such person in connection with such proceeding) and
such indemnification shall inure to the benefit of his heirs, executors and
administrators; provided, however, that, except as provided in Section 2 of
this Article Ninth, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding initiated by such person
only if such proceeding was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred in this Article Ninth
shall be contract right and, subject to Sections 2 and 5, shall include the
right to payment by the Corporation of the expenses incurred in defending
any such proceeding in advance of its final disposition. The Corporation
may, by action of the Board of Directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect as
the foregoing indemnification of directors and officers.
2. Procedure for Indemnification of Directors and Officers. Any
indemnification of a director or officer of the Corporation under Section 1
of this Article Ninth or advance of expenses under Section 5 of this
Article Ninth shall be made promptly, and in any event within 30 days, upon
the written request of the director or officer. If a determination by the
Corporation that the director or officer is entitled to indemnification
pursuant to this Article Ninth is required, and the Corporation fails to
respond within sixty days to a written request for indemnity, the
Corporation shall be deemed to have approved the request. If the
Corporation denies a written request for indemnification or advancing of
expenses, in whole or in part, or if payment in full pursuant to such
request is not made within 30 days, the right to indemnification or
advances as granted by this Article Ninth shall be enforceable by the
director or officer in any court of competent jurisdiction. Such person's
costs and expenses incurred in connection with successfully establishing
his right to indemnification, in whole or in part, in any such action shall
also be indemnified by the Corporation. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition
where the required undertaking, if any, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which
make it permissible under the General Corporation Law of the State of
Delaware for the Corporation to indemnify the claimant for the amount
claimed, but the burden of such defense shall be on the Corporation .
Neither the failure of the Corporation (including the Board of Directors,
independent legal counsel, or it stockholders) to have made a determination
prior to the commencement of such action that indemnification of the
claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the General Corporation Law of
the State of Delaware, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or it
stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the application standard of conduct.
3. Nonexclusivity of Article Ninth. The rights conferred in this
Article Ninth to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition shall not be
exclusive of any other right which any person may have or hereafter acquire
under any stature, provision of the certificate of incorporation, by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
4. Insurance. The Corporation may purchase and maintain insurance
on its own behalf and on behalf of any person who is or was a director,
officer, employee, fiduciary, or agent of the Corporation 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 against any liability asserted against him and incurred by him
in any such capacity, whether or not the Corporation would have the power
to indemnify such person against such liability under this Article Ninth.
5. Expenses. Expenses incurred by any person described in Section
1 of this Article Ninth in defending a proceeding shall be paid by the
Corporation in advance of such proceeding's final disposition, unless
otherwise reasonably determined by the Board of Directors for good reason;
in each case upon receipt of an undertaking by or on behalf of the director
or office to repay such amount if it shall ultimately be determined that he
is not entitled to be indemnified by the Corporation. Such expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
6. Employees and Agents. Persons who are not covered by the
foregoing provisions of this Article Ninth and who are or were employees or
agents of the Corporation, or who are or were serving at the request of the
Corporation as employee or agents of another corporation, partnership,
joint venture, trust or other enterprise, may be indemnified to the extent
authorized at any time or from time to time by the Board of Directors.
7. Contract Rights. The provision of this Article Ninth shall be
deemed to be a contract right between the Corporation and each director or
officer who serves in any such capacity at any time while this Article
Ninth and the relevant provisions of the General Corporation Law of the
State of Delaware or other applicable law are in effect, and any repeal or
modification of this Article Ninth or any such law shall not affect any
rights or obligations then existing with respect to any state of facts or
proceeding then existing.
8. Merger or Consolidation. For purposes of this Article Ninth,
reference to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify
its directors, officers, and employees or agents, so that any person who is
or was a director, officer, employee, or agent of such constituent
corporation or is or was serving at the request of such constituent
corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall
stand in the same position under this Article Ninth with respect to the
resulting or surviving corporation as he or she would have with respect to
such constituent corporation if its separate existence had continued."
TENTH: The Corporation reserves the right to amend or repeal any
provisions contained in this Amended and Restated Certificate of
Incorporation from time to time and at any time in the manner now or
hereafter prescribed by the laws of the State of Delaware, and all rights
conferred upon stockholders and directors are granted subject to such
reservation, except that the contract rights described in Article Ninth may
no be abrogated by reason of any such amendment.
Exhibit B
AMENDED BY-LAWS
OF
METTLER-TOLEDO INTERNATIONAL INC.
ARTICLE I
Stockholders
------------
SECTION 1. Annual Meeting. The annual meeting of the stockholders
of the Corporation shall be held on such date, at such time and at such
place within or without the State of Delaware as may be designated by the
Board of Directors, for the purpose of electing Directors and for the
transaction of such other business as may be properly brought before the
meeting.
SECTION 2. Special Meetings. Except as otherwise provided in the
Certificate of Incorporation, a special meeting of the stockholders of the
Corporation may be called at any time by the Board of Directors, the
Chairman of the Board or the President and shall be called by the Chairman
of the Board, the President or the Secretary at the request in writing of
stockholders holding together at least twenty-five percent of the number of
shares of stock outstanding and entitled to vote at such meeting. Any
special meeting of the stockholders shall be held on such date, at such
time and at such place within or without the State of Delaware as the Board
of Directors or the officer calling the meeting may designate. At a special
meeting of the stockholders, no business shall be transacted and no
corporate action shall be taken other than that stated in the notice of the
meeting unless all of the stockholders are present in person or by proxy,
in which case any and all business may be transacted at the meeting even
though the meeting is held without notice.
SECTION 3. Notice of Meetings. Except as otherwise provided in
these BY-LAWS or by law, a written notice of each meeting of the
stockholders shall be given not less than ten (10) nor more than sixty (60)
days before the date of the meeting to each stockholder of the Corporation
entitled to vote at such meeting at his address as it appears on the
records of the Corporation. The notice shall state the place, date and hour
of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called.
SECTION 4. Quorum. At any meeting of the stockholders, the
holders of a majority in number of the total outstanding shares of stock of
the Corporation entitled to vote at such meeting, present in person or
represented by proxy, shall constitute a quorum of the stockholders for all
purposes, unless the representation of a larger number of shares shall be
required by law, by the Certificate of Incorporation or by these By-Laws,
in which case the representation of the number of shares so required shall
constitute a quorum; provided that at any meeting of the stockholders at
which the holders of any class of stock of the Corporation shall be
entitled to vote separately as a class, the holders of a majority in number
of the total outstanding shares of such class, present in person or
represented by proxy, shall constitute a quorum for purposes of such class
vote unless the representation of a larger number of shares of such class
shall be required by law, by the Certificate of Incorporation or by these
By-Laws.
SECTION 5. Adjourned Meetings. Whether or not a quorum shall be
present in person or represented at any meeting of the stockholders, the
holders of a majority in number of the shares of stock of the Corporation
present in person or represented by Proxy and entitled to vote at such
meeting may adjourn from time to time; provided, however, that if the
holders of any class of stock of the Corporation are entitled to vote
separately as a class upon any matter at such meeting, any adjournment of
the meeting in respect of action by such class upon such matter shall be
determined by the holders of a majority of the shares of such class present
in person or represented by proxy and entitled to vote at such meeting.
When a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place thereof are announced
at the meeting at which the adjournment is taken. At the adjourned meeting
the stockholders, or the holders of any class of stock entitled to vote
separately as a class, as the case may be, may transact any business which
might have been transacted by them at the original meeting. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at
the adjourned meeting.
SECTION 6. Organization. The Chairman of the Board or, in his
absence, the President shall call all meetings of the stockholders to
order, and shall act as Chairman of such meetings. In the absence of the
Chairman of the Board and the President, the holders of a majority in
number of the shares of stock of the Corporation present in person or
represented by proxy and entitled to vote at such meeting shall elect a
Chairman.
The Secretary of the Corporation shall act as Secretary of all
meetings of the stockholders; but in the absence of the Secretary, the
Chairman may appoint any person to act as Secretary of the meeting. It
shall be the duty of the Secretary to prepare and make, at least ten days
before every meeting of stockholders, a complete list of stockholders
entitled to vote at such meeting, arranged in alphabetical order and
showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open, either at a place
within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting or, if not so specified, at the
place where the meeting is to be held, for the ten days next preceding the
meeting, to the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, and shall be produced and kept
at the time and place of the meeting during the whole time thereof and
subject to the inspection of any stockholder who may be present.
SECTION 7. Voting. Except as otherwise provided in the
Certificate of Incorporation or by law, each stockholder shall be entitled
to one vote for each share of the capital stock of the Corporation
registered in the name of such stockholder upon the books of the
Corporation. Each stockholder entitled to vote at meeting of stockholders
or to express consent or dissent to corporate action in writing without a
meeting may authorize another person or persons to act for him by proxy,
but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period. When directed by the
presiding officer or upon the demand of any stockholder, the vote upon any
matter before a meeting of stockholders shall be by ballot. Except as
otherwise provided by law or by the Certificate of Incorporation, Directors
shall be elected by a plurality of the votes cast at a meeting of
stockholders by the stockholders entitled to vote in the election and,
whenever any corporate action, other than the election of Directors is to
be taken, it shall be authorized by a majority of the votes cast at a
meeting of stockholders by the stockholders entitled to vote thereon.
Shares of the capital stock of the Corporation belonging to the
Corporation or to another corporation, if a majority of the shares entitled
to vote in the election of directors of such other corporation is held,
directly or indirectly, by the Corporation, shall neither be entitled to
vote nor be counted for quorum purposes.
SECTION 8. Inspectors. When required by law or directed by the
presiding officer or upon the demand of any stockholder entitled to vote,
but not otherwise, the polls shall be opened and closed, the proxies and
ballots shall be received and taken in charge, and all questions touching
the qualification of voters, the validity of proxies and the acceptance or
rejection of votes shall be decided at any meeting of the stockholders by
two or more Inspectors who may be appointed by the Board of Directors
before the meeting, or if not so appointed, shall be appointed by the
presiding officer at the meeting. If any person so appointed fails to
appear or act, the vacancy may be filled by appointment in like manner.
SECTION 9. Consent of Stockholder in Lieu of Meeting. Unless
otherwise provided in the Certificate of Incorporation, any action required
to be taken or which may be taken at any annual or special meeting of the
stockholders of the Corporation, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of any
such corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in
writing.
SECTION 10. Advance Notice Provisions for Election of Directors.
Only persons who are nominated in accordance with the following procedures
shall be eligible for election as directors of the Corporation. Nominations
of persons for election to the Board of Directors may be made at any annual
meeting of stockholders, or at any special meeting of stockholders called
for the purpose of electing directors, (a) by or at the direction of the
Board of Directors (or any duly authorized committee thereof) or (b) by any
stockholder of the Corporation (i) who is a stockholder of record on the
date of the giving of the notice provided for in this Section 10 and on the
record date for the determination of stockholders entitled to vote at such
meeting and (ii) who complies with the notice procedures set forth in this
Section 10.
In addition to any other applicable requirements, for a
nomination to be made by a stockholder such stockholder must have given
timely notice thereof in proper written form to the Secretary of the
Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of
the Corporation (a) in the case of an annual meeting, not less than sixty
(60) days nor more than ninety (90) days prior to the date of the annual
meeting; provided, however, that in the event that less than seventy (70)
days notice or prior public disclosure of the date of the annual meeting is
given or made to stockholders, notice by the stockholder in order to be
timely must be so received not later than the close of business on the
tenth (10th) day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs; and (b) in the case of a
special meeting of stockholders called for the purpose of electing
directors, not later than the close of business on the tenth (10th) day
following the day on which notice of the date of the special meeting was
mailed or public disclosure of the date of the special meeting was made,
whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder
proposes to nominate for election as a director (i) the name, age, business
address and residence address of the person, (ii) the principal occupation
or employment of the person, (iii) the class or series and number of shares
of capital stock of the Corporation which are owned beneficially or of
record by the person and (iv) any other information relating to the person
that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder; and (b) as to the stockholder giving the notice (i)
the name and record address of such stockholder, (ii) the class or series
and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by
proxy, at the meeting to nominate the persons named in its notice and (v)
any other information relating to such stockholder that would be required
to be disclosed in a proxy statement or other filings required to be made
in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to being named as a nominee and to serve
as a director if elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in
this Section 10. If the Chairman of the meeting determines that a
nomination was not made in accordance with the foregoing procedures, the
Chairman shall declare to the meeting that the nomination was defective and
such defective nomination shall be disregarded.
SECTION 11. Advance Notice Provisions for Business to be
Transacted at Annual Meeting. No business may be transacted at an annual
meeting of stockholders, other than business that is either (a) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors (or any duly authorized committee
thereof), (b) otherwise properly brought before the annual meeting by or at
the direction of the Board of Directors (or any duly authorized committee
thereof) or (c) otherwise properly brought before the annual meeting by any
stockholder of the Corporation (i) who is a stockholder of record on the
date of the giving of the notice provided for in this Section 11 and on the
record date for the determination of stockholders entitled to vote at such
annual meeting and (ii) who complies with the notice procedures set forth
in this Section 11.
In addition to any other applicable requirements, for business to
be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to
the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of
the Corporation not less than sixty (60) days nor more than ninety (90)
days prior to the date of the annual meeting; provided, however, that in
the event that less than seventy (70) days notice or prior public
disclosure of the date of the annual meeting is given or made to
stockholders, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day
following the day on which such notice of the date of the annual meeting
was mailed or such public disclosure of the date of the annual meeting was
made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes to
bring before the annual meeting (i) a brief description of the business
desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name and record
address of such stockholder, (iii) the class or series and number of shares
of capital stock of the Corporation which are owned beneficially or of
record by such stockholder, (iv) a description of all arrangements or
understandings between such stockholder and any other person or persons
(including their names) in connection with the proposal of such business by
such stockholder and any material interest of such stockholder in such
business and (v) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such business before
the meeting.
No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in
accordance with the procedures set forth in this Section 11, provided,
however that, once business has been properly brought before the annual
meeting in accordance with such procedures, nothing in this Section 11
shall be deemed to preclude discussion by any stockholder of any such
business. If the Chairman of an annual meeting determines that business was
not properly brought before the annual meeting in accordance with the
foregoing procedures, the Chairman shall declare to the meeting that the
business was not properly brought before the meeting and such business
shall not be transacted.
SECTION 12. Order of Business. The order of business at all
meetings of the stockholders shall be determined by the Chairman of the
meeting.
ARTICLE 11
Board of Directors
------------------
SECTION 1. Number and Term of Office. The business and affairs
the Corporation shall be managed by or under the direction of eight (8)
Directors, who need not be stockholders of the Corporation. The Directors
shall, except as hereinafter otherwise provided for filling vacancies, be
elected at the annual meeting of stockholders, and shall hold office until
their respective successors are elected and qualified or until their
earlier resignation or removal. The number of Directors may be altered from
time to time by amendment of these By-Laws.
SECTION 2. Removal, Vacancies and Additional Directors. The
stockholders may, at any special meeting the notice of which shall state
that it is called for that purpose, remove, with or without cause, any
Director and fill the vacancy; provided that whenever any Director shall
have been elected by the holders of any class of stock of the Corporation
voting separately as a class under the provisions of the Certificate of
Incorporation, such Director may be removed and the vacancy filled only by
the holders of that class of stock voting separately as a class. Vacancies
caused by any such removal and not filled by the stockholders at the
meeting at which such removal shall have been made, or any vacancy caused
by the death or resignation of any Director or for any other reason, and
any newly created directorship resulting from any increase in the
authorized number of Directors, may be filled by the affirmative vote of a
majority of the Directors then in office, although less than a quorum, and
any Director so elected to fill any such vacancy or newly created
directorship shall hold office until his successor is elected and qualified
or until his earlier resignation or removal.
When one or more Directors shall resign effective at a future
date, a majority of Directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each Director so chosen shall hold office as herein provided
in connection with the filling of other vacancies.
SECTION 3. Place of Meeting. The Board of Directors may hold its
meetings in such place or places in the State of Delaware or outside the
State of Delaware as the Board from time to time shall determine.
SECTION 4. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times and places as the Board from time to
time by resolution shall determine. No notice shall be required for any
regular meeting of the Board of Directors; but a copy of every resolution
fixing or changing the time or place of regular meetings shall be mailed to
every Director at least five days before the first meeting held in
pursuance thereof.
SECTION 5. Special Meetings. Special meetings of the Board of
Directors shall be held whenever called by direction of the Chairman of the
Board, the President or by any two of the Directors then in office.
Notice of the day, hour and place of holding of each special
meeting shall be given by mailing the same at least two days before the
meeting or by causing the same to be delivered personally or transmitted by
telegraph, facsimile, telex or sent by certified, registered or overnight
mail at least one day before the meeting to each Director. Unless otherwise
indicated in the notice thereof, any and all business other than an
amendment of these By-Laws may be transacted at any special meeting, and an
amendment of these By-Laws may be acted upon if the notice of the meeting
shall have stated that the amendment of these By-Laws is one of the
purposes of the meeting. At any meeting at which every Director shall be
present, even though without any notice, any business may be transacted,
including the amendment of these By-Laws.
SECTION 6. Quorum. Subject to the provisions of Section 2 of this
Article II, a majority of the members of the Board of Directors in office
(but in no case less than one-third of the total number of Directors nor
less than two Directors) shall constitute a quorum for the transaction of
business and the vote of the majority of the Directors present at any
meeting of the Board of Directors at which a quorum is present shall be the
act of the Board of Directors. If at any meeting of the Board there is less
than a quorum present, a majority of those present may adjourn the meeting
from time to time.
SECTION 7. Organization. The Chairman of the Board or, in his
absence, the President shall preside at all meetings of the Board of
Directors. In the absence of the Chairman of the Board and the President, a
Chairman shall be elected from the Directors present. The Secretary of the
Corporation shall act as Secretary of all meetings of the Directors; but in
the absence of the Secretary, the Chairman may appoint any person to act as
Secretary of the meeting.
SECTION 8. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees,
each committee to consist of one or more of the Directors of the
Corporation. The Board may designate one or more Directors as alternate
members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided by resolution passed by a
majority of the whole Board, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
the affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange
of all or substantially all of the Corporations property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending these By-Laws; and unless such
resolution, these By-Laws, or the Certificate of Incorporation expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
SECTION 9. Conference Telephone Meetings. Unless otherwise
restricted by the Certificate of Incorporation or by these By-Laws, the
members of the Board of Directors or any committee designated by the Board,
may participate in a meeting of the Board or such committee, as the case
may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other, and such participation shall constitute presence in person
at such meeting.
SECTION 10. Consent of Directors or Committee in Lieu of Meeting.
Unless otherwise restricted by the Certificate of Incorporation or by these
By-Laws, any action required or permitted to be taken at any meeting of the
Board of Directors, or of any committee thereof, may be taken without a
meeting if all members of the Board or committee, as the case may be,
consent thereto in writing and the writing or writings are filed with the
minutes of proceedings of the Board or committee, as the case may be.
ARTICLE III
Officers
--------
SECTION 1. Officers. The officers of the Corporation shall be a
Chairman of the Board, a President, one or more Vice Presidents, a Chief
Financial Officer, a Secretary and a Treasurer, and such additional
officers, if any, as shall be elected by the Board of Directors pursuant to
the provisions of Section 7 of this Article III. The Chairman of the Board,
the President, one or more Vice Presidents, a Chief Financial Officer, the
Secretary and the Treasurer shall be elected by the Board of Directors at
its first meeting after each annual meeting of the stockholders. The
failure to hold such election shall not of itself terminate the term of
office of any officer. All officers shall hold office at the pleasure of
the Board of Directors. Any officer may resign at any time upon written
notice to the Corporation. Officers may, but need not, be Directors. Any
number of offices may be held by the same person.
All officers, agents and employees shall be subject to removal,
with or without cause, at any time by the Board of Directors. The removal
of an officer without cause shall be without prejudice to his contract
rights, if any. The election or appointment of an officer shall not of
itself create contract rights. All agents and employees other than officers
elected by the Board of Directors shall also be subject to removal, with or
without cause, at any time by the officers appointing them.
Any vacancy caused by the death of any officer, his resignation,
his removal, or otherwise, may be filled by the Board of Directors, and any
officer so elected shall hold office at the pleasure of the Board of
Directors.
In addition to the powers and duties of the officers of the
Corporation as set forth in these By-Laws, the officers shall have such
authority and shall perform such duties as from time to time may be
determined by the Board of Directors.
SECTION 2. Powers and Duties of the Chairman of the Board. The
Chairman of the Board shall preside at all meetings of the stockholders and
at all meetings of the Board of Directors and shall have such other powers
and perform such other duties as may from time to time be assigned to him
by these By-Laws or by the Board of Directors.
SECTION 3. Powers and Duties of the President. The President
shall be the chief executive officer of the Corporation and, subject to the
control of the Board of Directors and the Chairman of the Board, shall have
general charge and control of all its operations and shall perform all
duties incident to the office of President. In the absence of the Chairman
of the Board, he shall preside at all meetings of the stockholders and at
all meetings of the Board of Directors and shall have such other powers and
perform such other duties as may from time to time be assigned to him by
these By-Laws or by the Board of Directors or the Chairman of the Board.
SECTION 4. Powers and Duties of the Vice Presidents. Each Vice
President shall perform all duties incident to the office of Vice President
and shall have such other powers and perform such other duties as may from
time to time be assigned to him by these By-Laws or by the Board of
Directors, the Chairman of the Board or the President.
SECTION 5. Powers and Duties of the Chief Financial Office. The
Chief Financial Officer shall be the principal financial officer of the
Corporation, and shall be in charge of, and have control over, all
financial accounting and tax matters regarding the Corporation. The Chief
Financial Officer shall have such other powers and perform such other
duties as may from time to time be assigned to him by these By-Laws or by
the Board of Directors, the Chairman of the Board or the President.
SECTION 6. Powers and Duties of the Secretary. The Secretary
shall keep the minutes of all meetings of the Board of Directors and the
minutes of all meetings of the stockholders in books provided for that
purpose; he shall attend to the giving or serving of all notices of the
Corporation; he shall have custody of the corporate seal of the Corporation
and shall affix the same to such documents and other papers as the Board of
Directors, the Chairman of the Board or the President shall authorize and
direct; he shall have charge of the stock certificate books, transfer books
and stock ledgers and such other books and papers as the Board of
Directors, the Chairman of the Board or the President shall direct, all of
which shall at reasonable times be open to the examination of any Director,
upon application, at the office of the Corporation during business hours;
and he shall perform duties incident to the office of Secretary and shall
also have such other powers and shall perform such other duties as may from
time to time be assigned to him by these By-Laws or the Board of Directors,
the Chairman of the Board or the President.
SECTION 7. Powers and Duties of the Treasurer. The Treasurer
shall act at the direction of the Chief Financial Officer. At the direction
of the Chief Financial Officer, the Treasurer shall have custody of, and
when proper shall pay out, disburse or otherwise dispose of, all funds and
securities of the Corporation which may have come into his hands; he may
endorse on behalf of the Corporation for collection checks, notes and other
obligations and shall deposit the same to the credit of the Corporation in
such bank or banks or depository or depositories as the Board of Directors
may designate; he shall enter or cause to be entered regularly in the books
of the Corporation kept for the purpose full and accurate accounts of all
moneys received or paid or otherwise disposed of by him and whenever
required by the Board of Directors, or the President or Chief Financial
Officer shall render statements of such accounts; he shall, at all
reasonable times, exhibit his books and accounts to any Director of the
Corporation upon application at the office of the Corporation during
business hours; and he shall perform all duties incident to the office of
Treasurer and shall also have such other powers and shall perform such
other duties as may from time to time be assigned to him by these By-Laws
or by the Board of Directors, the Chairman of the Board, or the President
or the Chief Financial Officer.
SECTION 8. Additional Officers. The Board of Directors may from
time to time elect such other officers (who may but need not be Directors),
including a Controller, Assistant Treasurers, Assistant Secretaries and
Assistant Controllers, as the Board may deem advisable and such officers
shall have such authority and shall perform such duties as may from time to
time be assigned to them by the Board of Directors, the Chairman of the
Board or the President.
The Board of Directors may from time to time by resolution
delegate to any Assistant Treasurer or Assistant Treasurers any of the
powers or duties herein assigned to the Treasurer; and may similarly
delegate to any Assistant Secretary or, Assistant Secretaries any of the
powers or duties herein assigned to the Secretary.
SECTION 9. Giving of Bond by Officers. All officers of the
Corporation, if required to do so by the Board of Directors, shall furnish
bonds to the Corporation for the faithful performance of their duties, in
such penalties and with such conditions and security as the Board shall
require.
SECTION 10. Voting Upon Stocks. Unless otherwise ordered by the
Board of Directors, the Chairman of the Board, the President or any Vice
President shall have full power and authority on behalf of the Corporation
to attend and to act and to vote, or in the name of the Corporation to
execute proxies to vote, at any meetings of stockholders of any corporation
in which the Corporation may hold stock, and at any such meetings shall
possess and may exercise, in person or by proxy, any and all rights, powers
and privileges incident to the ownership of such stock. The Board of
Directors may from time to time, by resolution, confer like powers upon any
other person or persons.
SECTION 11. Compensation of Officers. The officers of the
Corporation shall be entitled to receive such compensation for their
services as shall from time to time be determined by the Board of
Directors.
ARTICLE IV
Stock-Seal-Fiscal Year
----------------------
SECTION 1. Certificates For Shares of Stock. The certificates for
shares of stock of the Corporation shall be in such form, not inconsistent
with the Certificate of Incorporation, as shall be approved by the Board of
Directors. All certificates shall be signed by the Chairman of the Board,
the President or a Vice President and by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer, and shall not be
valid unless so signed.
In case any officer or officers who shall have signed any such
certificate or certificates shall cease to be such officer or officers of
the Corporation, whether because of death, resignation or otherwise, before
such certificate or certificates shall have been delivered by the
Corporation, such certificate or certificates may nevertheless be issued
and delivered as though the person or persons who signed such certificate
or certificates had not ceased to be such officer or officers of the
Corporation.
All certificates for shares of stock shall be consecutively
numbered as the same are issued. The name of the person owning the shares
represented thereby with the number of such shares and the date of issue
thereof shall be entered on the books of the Corporation.
Except as hereinafter provided, all certificates surrendered to
the Corporation for transfer shall be canceled, and no new certificates
shall be issued until former certificates for the same number of shares
have been surrendered and canceled.
SECTION 2. Lost, Stolen or Destroyed Certificates. Whenever
person owning a certificate for shares of stock of the Corporation alleges
that it has been lost stolen or destroyed, he shall in the office of the
Corporation an affidavit setting forth, to the best of his knowledge and
belief, the time, place and circumstances of the loss, theft or
destruction, and, if required by the Board of Directors, a bond of
indemnity or other indemnification sufficient in the opinion of the Board
of Directors to indemnify the Corporation and its agents against any claim
that may be made against it or them on account of the alleged loss, theft
or destruction of any such certificate or the issuance of a new certificate
in replacement therefor. Thereupon the Corporation may cause to be issued
to such person a new certificate in replacement for the certificate alleged
to have been lost, stolen or destroyed. Upon the stub of every new
certificate so issued shall be noted the fact of such issue and the number,
date and the name of the registered owner of the lost, stolen or destroyed
certificate in lieu of which the new certificate is issued.
SECTION 3. Transfer of Shares. Shares of stock of the Corporation
shall be transferred on the books of the Corporation by the holder thereof
in person or by his attorney duly authorized in writing, upon surrender and
cancellation of certificates for the number of shares of stock to be
transferred, except as provided in the preceding section.
SECTION 4. Regulations. The Board of Directors shall have power
and authority to make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates for shares
of stock of the Corporation.
SECTION 5. Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting or entitled to receive
payment of any dividend or other distribution or allotment of any rights,
or entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, as the
case may be, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before
the date of such meeting, nor more than sixty (60) days prior to any other
action.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; the record
date for determining stockholders entitled to express consent to corporate
action in writing without a meeting, when no prior action by the Board of
Directors is necessary, shall be the day on which the first written consent
is expressed; and the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto. A determination
of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the
adjourned meeting.
SECTION 6. Dividends. Subject to the provisions of the
Certificate of Incorporation, the Board of Directors shall have power to
declare and pay dividends upon shares of stock of the Corporation, but only
out of funds available for the payment of dividends as provided by law.
Subject to the provisions of the Certificate of Incorporation,
any dividends declared upon the stock of the Corporation shall be payable
on such date or dates as the Board of Directors shall determine. If the
date fixed for the payment of any dividend shall in any year fall upon a
legal holiday, then the dividend payable on such date shall be paid on the
next day not a legal holiday.
SECTION 7. Corporate Seal. The Board of Directors shall provide a
suitable seal, containing the name of the Corporation, which seal shall be
kept in the custody of the Secretary. A duplicate of the seal may be kept
and be used by any officer of the Corporation designated by the Board of
Directors, the Chairman of the Board or the President.
SECTION 8. Fiscal Year. The fiscal year of the Corporation shall
be such fiscal year as the Board of Directors from time to time by
resolution shall determine.
ARTICLE V
Miscellaneous Provisions
------------------------
SECTION 1. Checks, Notes, Etc. All checks, drafts, bills of
exchange, acceptances, notes or other obligations or orders for the payment
of money shall be signed and, if so required by the Board of Directors,
countersigned by such officers of the Corporation and/or other persons as
the Board of Directors from time to time shall designate.
Checks, drafts, bills of exchange, acceptances, notes,
obligations and orders for the payment of money made payable to the
Corporation may be endorsed for deposit to the credit of the Corporation
with a duly authorized depository by the Treasurer, or otherwise as the
Board of Directors may from time to time, by resolution, determine.
SECTION 2. Loans. No loans and no renewals of any loans shall be
contracted on behalf of the Corporation except as authorized by the Board
of Directors. When authorized so to do, any officer or agent of the
Corporation may effect loans and advances for the Corporation from any
bank, trust company or other institution or from any firm, corporation or
individual, and for such loan and advances may make, execute and deliver
promissory notes, bonds or other evidences of indebtedness of the
Corporation. When authorized so to do, any officer or agent of the
Corporation may pledge, hypothecate or transfer, as security for the
payment of any and all loans, advances, indebtedness and liabilities of the
Corporation, any and all stocks, securities and other personal property at
any time held by the Corporation, and to that end may endorse, assign and
deliver the same. Such authority may be general or confined to specific
instances.
SECTION 3. Waivers of Notice. Whenever any notice whatever is
required to be given by law, by the Certificate of Incorporation or by
these By-Laws to any person or persons, a waiver thereof in writing, signed
by the person or persons entitled to the notice, whether before or after
the time stated therein, shall be deemed equivalent thereto.
SECTION 4. Offices Outside of Delaware. Except as otherwise
required by the laws of the State of Delaware, the Corporation may have an
office or offices and keep its books, documents and papers outside of the
State of Delaware at such place or places as from time to time may be
determined by the Board of Directors, the Chairman of the Board or the
President.
SECTION 5. Indemnification of Directors, Officers and Employees.
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.
ARTICLE VI
Amendments
----------
These By-Laws and any amendment thereof may be altered, amended
or repeated, or new By-Laws may be adopted, by the Board of Directors at
any regular or special meeting by the affirmative vote of a majority of all
of the members of the Board, provided in the case of any special meeting at
which all of the members of the Board are not present, that the notice of
such meeting shall have stated that the amendment of these By-Laws was one
of the purposes of the meeting; but these By-Laws and any amendment
thereof, including the By-Laws adopted by the Board of Directors, may be
altered, amended or repealed and other By-Laws may be adopted by the
holders of a majority of the total outstanding stock of the Corporation
entitled to vote at any annual meeting or at any special meeting, provided,
in the case of any special meeting, that notice of such proposed
alteration, amendment, repeal or adoption is included in the notice of the
meeting.
EXHIBIT 11
STATEMENTS RE COMPUTATION OF PER SHARE EARNINGS
For the
Period from
October 15,
1996 to Year Ended
December 31, December 31,
1996 1997
------------ ------------
Loss before extraordinary item ......... $ (159,046) $ (23,909)
Extraordinary item ..................... (41,197)
------------ ------------
Net loss ............................... $ (159,046) $ (65,106)
============ ============
Basic and diluted loss per common share:
Loss before extraordinary items ..... $ (5.18) $ (0.76)
Extraordinary items ................. (1.30)
------------ ------------
Net loss ............................ $ (5.18) $ (2.06)
============ ============
Weighted average number of
common shares ...................... 30,686,065 31,617,071
============ ============
Calculation of weighted average number
of common shares(a):
For the Period from October 15, 1996
to December 31, 1996(b) ............ 30,686,065
============
For the Year Ended December 31, 1997:
Weighted average shares for Q1 ... 30,686,065
Weighted average shares for Q2 ... 30,702,367
Weighted average shares for Q3 ... 30,670,134
Weighted average shares for Q4 ... 34,409,718
------------
Weighted average shares
for 1997 ........................ 31,617,071
============
------------
[FN]
(a) The calculations of the weighted average number of common
shares for the 1996 and 1997 periods assume that the previously
existing Class A, B and C common shares have been converted into
the Company's common stock in connection with the reorganization
of the Company as described in Note 10 to the consolidated
financial statements.
(b) The weighted average number outstanding shares computation
assumes that all common shares issued in connection with the
Acquisition were outstanding during the period from October 15,
1996 to December 31, 1997.
</FN>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-Mos
<FISCAL-YEAR-END> Dec-31-1997
<PERIOD-END> Dec-31-1997
<CASH> 23,566
<SECURITIES> 0
<RECEIVABLES> 161,288
<ALLOWANCES> (7,669)
<INVENTORY> 101,047
<CURRENT-ASSETS> 309,882
<PP&E> 266,657
<DEPRECIATION> (31,395)
<TOTAL-ASSETS> 749,313
<CURRENT-LIABILITIES> 263,583
<BONDS> 0
0
0
<COMMON> 383
<OTHER-SE> 25,016
<TOTAL-LIABILITY-AND-EQUITY> 749,313
<SALES> 878,415
<TOTAL-REVENUES> 878,415
<CGS> 493,480
<TOTAL-COSTS> 493,480
<OTHER-EXPENSES> 353,915
<LOSS-PROVISION> 1,516
<INTEREST-EXPENSE> 35,924
<INCOME-PRETAX> (6,420)
<INCOME-TAX> 17,489
<INCOME-CONTINUING> (23,909)
<DISCONTINUED> 0
<EXTRAORDINARY> (41,197)
<CHANGES> 0
<NET-INCOME> (65,106)
<EPS-PRIMARY> (2.06)
<EPS-DILUTED> (2.06)
</TABLE>
EXHIBIT 99.1
FACTORS AFFECTING FUTURE OPERATING RESULTS
Certain statements contained in the Company's public filings, press
releases and other documents and materials as well as certain statements in
written or oral statements made by or on behalf of the Company are
forward-looking statements that reflect the Company's current views with
respect to future events and financial performance, including capital
expenditures, planned product introductions, research and development
expenditures, potential future growth, including potential penetration of
developed markets and potential growth opportunities in emerging markets,
potential future acquisitions, potential cost savings from planned employee
reductions and restructuring programs, estimated proceeds from and timing
of asset sales, planned operational changes and research and development
efforts, strategic plans and future cash sources and requirements. These
forward-looking statements are subject to certain risks and uncertainties,
including those discussed 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 Company 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 factors could cause actual results to differ materially
from historical results or anticipated results:
EFFECT OF SUBSTANTIAL INDEBTEDNESS ON OPERATIONS AND LIQUIDITY
In connection with the Acquisition and the Safeline Acquisition, the
Company incurred a significant amount of indebtedness. At December 31,
1997, the Company's consolidated indebtedness (excluding unused
commitments) on was approximately $396.8 million. The Company has
additional borrowing capacity on a revolving credit basis under the Credit
Agreement and under local working capital facilities for acquisitions and
other purposes. The Company is required to make scheduled principal
payments on the term loans under the Credit Agreement. The Company's
ability to comply with the terms of the Credit Agreement and its other debt
obligations to make cash payments with respect to such obligations 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. See "Management's Discussion
and Analysis of Financial Condition and Results of Operations--Liquidity
and Capital Resources" under Part II, Item 7.
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 borrowings under the
Credit Agreement and the Company's 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.
The Credit Agreement and the Company's other debt obligations contain a
number of covenants that, among other things, restrict the ability of the
Company to incur additional indebtedness, dispose of certain assets, make
capital expenditures and otherwise restrict corporate activities. The
Company's ability to comply with such covenants may be affected by events
beyond its control, including prevailing economic, financial and industry
conditions. A failure to comply with the covenants and restrictions
contained in the Credit Agreement, the Company's other debt obligations or
any agreements with respect to any additional financing could result in an
event of default under its debt agreements.
RISKS ASSOCIATED WITH CURRENCY FLUCTUATIONS
Swiss franc-denominated expenses represent a much greater percentage of
the Company's operating expenses than Swiss franc-denominated sales
represent of total net sales. Some of the Company's manufacturing costs in
Switzerland relate to products that are sold outside of Switzerland,
including many technologically sophisticated products requiring highly
skilled personnel. Moreover, a substantial percentage of the Company's
research and development expenses and general and administrative expenses
are incurred in Switzerland. Appreciation of the Swiss franc against the
Company's major trading currencies (i.e., the U.S. dollar, certain major
European currencies and the Japanese yen) has a negative impact on the
Company's income from operations, whereas depreciation of the Swiss franc
has a positive impact.
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 currency exchange
rate for inclusion in the Company's consolidated financial statements. As
exchange rates between these foreign currencies and the U.S. dollar
fluctuate, the translation effect of such fluctuations may have a material
adverse effect on the Company's results of operations or financial position
as reported in U.S. dollars. However, the effect of these changes on income
from operations generally offsets in part the effect on income from
operations of changes in the exchange rate between the Swiss franc and
other currencies described in the preceding paragraph.
RISKS ASSOCIATED WITH INTERNATIONAL OPERATIONS
The Company does business in numerous countries, including emerging
markets in Asia, Latin America and Eastern Europe. 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 is
increasing its presence in China, Latin America and Eastern Europe. As a
result, inflationary conditions in these countries could have an
increasingly significant effect on the Company's operating results.
Recently, growth in net sales in Southeast Asia and Korea (which
collectively represent approximately 3% of the Company's total net sales)
has slowed and the Company anticipates this trend to continue for the next
term.
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 instruments 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 respective
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 the
continued productive 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 CHEMICALS INDUSTRIES
The Company's products are used extensively in the pharmaceutical and
chemicals industries. Consolidation in these industries has had an adverse
impact on the Company's sales in prior years. A prolonged downturn or any
additional consolidation in these industries could adversely affect the
Company's operating results.
RISKS RELATING TO FUTURE ACQUISITIONS
The Company may in the future pursue acquisitions of complementary
product lines, technologies or businesses. Future acquisitions by the
Company may result in potentially dilutive issuances of equity securities,
the incurrence of debt and contingent liabilities and amortization expenses
related to goodwill and other intangible assets, which could materially
adversely affect the Company's profitability. In addition, acquisitions
involve numerous risks, including difficulties in the assimilation of the
operations, technologies and products of the acquired companies, the
diversion of management's attention from other business concerns and the
potential loss of key employees of the acquired company. There are
currently no understandings or agreements with respect to any material
acquisition, nor can there be any assurances that the Company will be able
to identify and successfully complete and integrate potential acquisitions
in the future. In the event that any such acquisition does occur, however,
there can be no assurance as to the effect thereof on the Company's
business or operating results.
RELIANCE ON KEY MANAGEMENT
Robert F. Spoerry, the Company's Chief Executive Officer, and each of
the other key management employees of the Company have employment contracts
with the Company. In addition, various members of management own a portion
of the shares of Common Stock of the Company and have options to purchase
additional shares of such Common 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 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, 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, 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
results of operations or financial condition. See "Business--Environmental
Matters" under Part I, Item 1.
RESTRICTIONS ON PAYMENT OF DIVIDENDS; ABSENCE OF DIVIDENDS
The Credit Agreement restricts, among other things, the ability of the
Company to pay dividends. The Company does not anticipate paying any cash
dividends on the Common Stock in the foreseeable future.
CERTAIN ANTI-TAKEOVER PROVISIONS
The Company's amended and restated certificate of incorporation (the
"Amended and Restated Certificate of Incorporation") and amended by-laws
(the "Amended By-laws") contain certain provisions that could make more
difficult the acquisition of the Company by means of a tender offer, proxy
contest or otherwise. The Amended and Restated Certificate of Incorporation
authorizes the issuance of preferred stock without shareholder approval and
upon such terms as the Board of Directors may determine. The rights of the
holders of Common Stock are subject to, and may be adversely affected by,
the rights of holders of preferred stock that may be issued in the future.
In addition, the Amended By-laws contain advance notice procedures for
shareholders to nominate candidates for election as directors and for
shareholders to submit proposals for consideration at shareholder meetings.
Under certain circumstances, Section 203 of the Delaware General
Corporation Law makes it more difficult for an "interested stockholder"
(generally a 15% stockholder) to effect various business combinations with
a corporation for a three-year period.
