EXHIBIT 10.12
AMENDMENT NO. 2
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AMENDMENT NO. 2 (this "Amendment"), dated as of June 4, 2001, to that
certain Second Amended and Restated Credit Agreement, dated as of November
19, 1997 (as amended, modified or supplemented to the date hereof, the
"Credit Agreement"), among METTLER-TOLEDO INTERNATIONAL INC., a Delaware
corporation (together with its successors, "Holding"); METTLER-TOLEDO,
INC., a Delaware corporation (together with its successors, "US Borrower");
METTLER-TOLEDO HOLDING AG, a corporation organized under the laws of
Switzerland (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 England (together with its
successors, "UK Borrower"); METTLER-TOLEDO INC., a Canadian corporation
(together with its successors, "Canadian Borrower"); the several SUBSIDIARY
SWING LINE BORROWERS named therein; the several financial institutions from
time to time party thereto (the "Lenders"); MERRILL LYNCH & CO., MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as Arranger and Documentation
Agent, THE BANK OF NOVA SCOTIA, as Administrative Agent, CREDIT SUISSE
FIRST BOSTON, as a co-agent and as a Swing-Line Lender, ABN AMRO BANK, BANK
OF TOKYO-MITSUBISHI TRUST COMPANY, BANKERS TRUST COMPANY, COMPAGNE
FINANCIERE DE CIC ET DE L'UNION EUROPEENNE, GOLDMAN SACHS CREDIT PARTNERS
L.P., THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY and SOCIETE GENERAL (each
a co-agent and, together with Credit Suisse First Boston in its capacity as
a co-agent, the "Co-Agents"). Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to those terms in the
Credit Agreement.
WITNESSETH:
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WHEREAS the Borrowers, UK Borrower, Canadian Borrower, the Subsidiary
Swing Line Borrowers and the Lenders wish to amend the Credit Agreement
pursuant to Section 11.1 of the Credit Agreement as herein provided;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION ONE - AMENDMENTS
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1.1 Section 1.1 is amended by
(a) deleting "which is a Qualified Subsidiary Guarantor" from
clause (i) of the second sentence of the definition of "Asset Sale";
(b) replacing "U.S. $250,000" in clause (ii) of the second
sentence of the definition of "Asset Sale" with "U.S. $1.0 million";
(c) replacing "(other than subsections (d), (i), (j) and (k)
thereof)" in clause (iii) of the second sentence of the definition of
"Asset Sale" with "(other than subsections (d) except in respect of
Sale and Leaseback Transactions to the extent, but solely to the
extent, the aggregate Net Cash Proceeds of sale of such Sale and
Leaseback Transactions (including the fair market value of non-cash
consideration and of any notes received as consideration) do not
exceed the Dollar Equivalent amount of U.S. $25,000,000, (e) except to
the extent, but solely to the extent, the aggregate Net Cash Proceeds
from the sale or discount of receivables described therein do not
exceed the Dollar Equivalent amount of U.S. $25,000,000, (i), (j) and
(k) thereof)"; and
(d) adding the following definition in appropriate alphabetical order:
"Sale and Leaseback Transaction means any sale and/or lease of
property (whether real or personal or mixed), whether now 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) and
lease (whether under an operating lease or a Capital Lease) or (ii) which
US Borrower or any Subsidiary intends to lease (whether under an operating
lease or a Capital Lease) 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 related series of transactions or such sale and such lease
occur within one year of each other or are with the same other Person.".
1.2 Section 2.1 is amended by
(a) deleting "as reduced pursuant to Section 2.6" in paragraph
(d) and replacing it with "as reduced pursuant to Section 2.6 or
subsections 2.7(c) or (d)"; and
(b) adding "; amounts which are borrowed as Revolving Loans which
are prepaid pursuant to subsections 2.7(c) or (d) may not be
reborrowed" at the end of paragraph (e) before the final period.
1.3 Section 2.6 is amended by
(a) renumbering subsection (e) as subsection (f); and
(b) inserting a new subsection (e) as follows:
" (e) Without limiting any other provision of this Agreement, the
aggregate amount of the Revolving Facility Commitments shall be
permanently reduced at the times and in the amounts provided in
subsection 2.7(f)."
1.4 Section 2.7 is amended by
(a) inserting "(other than an Asset Sale which is a Sale and
Leaseback Transaction)" immediately following the reference to
"subsection 8.2(d)" in paragraph (c);
(b) adding at the end of (c), before the final period, the
following:
"So long as any Revolving Loans are outstanding, within 30 days
after the receipt by US Borrower or any Subsidiary of Net Cash
Proceeds from any Asset Sale that is a Sale and Leaseback
Transaction or is permitted pursuant to subsection 8.2 (e) and,
in either case, any such Net Cash Proceeds are not required to be
prepaid against the Term Loans in accordance with the immediately
preceding sentence, the Revolving Loans shall be prepaid in a
Dollar Equivalent amount equal to 100% of such Net Cash
Proceeds."
(c) deleting paragraph (d) and replacing it with the following:
"So long as any Term Loans or Revolving Loans are outstanding,
the Term Loans (and, to the extent there are insufficient Term Loans,
the Revolving 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 except (x) Indebtedness pursuant to subsection (h) thereof
to the extent, but only to the extent, such Indebtedness pursuant to
subsection (h) exceeds in the aggregate at any time outstanding the
Dollar Equivalent amount of U.S. $20 million, and (y) Indebtedness
pursuant to subsection (g) thereof to the extent, but only to the
extent, such Indebtedness pursuant to subsection (g) exceeds in the
aggregate at any time outstanding (exclusive of any amount incurred
pursuant to subsection 8.5(n)) the Dollar Equivalent amount of U.S.$60
million), 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)."; and
(d) adding immediately before the last sentence of paragraph (f):
"Any prepayment of the Revolving Loans required by subsection (c)
or (d) of this Section 2.7 shall be made together with all accrued
interest 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. Each such prepayment of
the Revolving Loans, to the extent applied to principal in accordance
with the foregoing, shall reduce the Revolving Facility Commitments in
a corresponding amount."
1.5 Section 7.4 is amended by replacing "Section 8.3" in clauses (a)
and (b) with "Section 8.2".
1.6 Section 8.1 is amended by replacing "U.S. $5.0 million" with "U.S.
$10.0 million" in paragraph (n).
1.7 Section 8.2 is amended by
(a) replacing "U.S. $2.0 million" with "U.S. $25.0 million" in
paragraph (d) and replacing "that (x)" therein with "that, except for
Sale and Leaseback Transactions in respect of which any requirements
under subsection 2.7(c) are complied with, (x)";
(b) replacing "US Borrower or any Subsidiary" with "US Borrower
or any Subsidiary that is organized under the laws of the United
States or any political subdivision thereof may sell or discount
accounts receivable arising in the ordinary course of business, but
only in connection with the compromise or collection thereof or as
permitted by Section 8.21, and any Foreign Subsidiary" in paragraph
(e); and
(c) deleting the phrase "which is a Qualified Subsidiary
Guarantor" in both instances in which such phrase appears in paragraph
(g), deleting the phrase "(ii) such surviving Subsidiary is a
Qualified Subsidiary Guarantor," from clause (y) of the proviso to
paragraph (g) and renumbering clause (iii) of such clause (y) as
clause (ii) of such clause (y).
1.8 Section 8.3 is amended by replacing "U.S. $21.0 million, increased
each fiscal year after fiscal 1998 by the Dollar Equivalent amount of U.S.
$2.0 million" with "U.S. $35.0 million, increased each fiscal year after
fiscal 2001 by the Dollar Equivalent amount of U.S. $2.0 million.".
1.9 Section 8.4 is amended by deleting the phrase "which is a
Qualified Subsidiary Guarantor" in all three instances in which such phrase
appears in paragraph (c).
1.10 Section 8.5 is amended by
(a) deleting paragraph (g) and replacing it with the following:
"(g) Indebtedness of Foreign Subsidiaries;"; and
(b) deleting "not to exceed in the aggregate at any time
outstanding the Dollar Equivalent amount of U.S. $20 million" in
paragraph (h).
1.11 Section 8.8 is amended by
(a) inserting ", (f)," immediately after "8.4(c)," in paragraph
(e); and
(b) replacing "U.S. $5.0 million" with "U.S. $10.0 million" in
paragraph (g).
1.12 Section 8.13 is amended by
(a) deleting "and" at the end of paragraph (f);
(b) replacing "aggregate." with "aggregate;" at the end of
paragraph (g); and
(c) inserting at the end thereof:
"(h) 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 repurchase, redeem, acquire or
retire for value any shares of capital stock of Holding or any
parent company of Holding, or warrants, rights or options for the
purchase or other acquisition from Holding or any parent company
of Holding of such shares, in any such case held by current or
former employees of Holding, any parent company of Holding or any
Subsidiaries of Holding pursuant to any employee equity
subscription agreement, stock option agreement or stock ownership
arrangement; provided, however, that no Event of Default or
Unmatured Event of Default shall then exist or would arise
therefrom;
(i) 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 repurchase, redeem, acquire or
retire for value any shares of capital stock of Holding or any
parent company of Holding; provided, however, that (i) no Event
of Default or Unmatured Event of Default shall then exist or
would arise therefrom; (ii) the aggregate amount of such payments
by US Borrower shall not exceed U.S. $25 million in any fiscal
year; and (iii) the Debt to EBITDA Ratio as of the end of the
most recently completed fiscal quarter prior to the date of such
payment is less than 3.0:1.0; and
(j) concurrent with or following an Acquisition by US
Borrower or any of its Subsidiaries in which shares of capital
stock of Holding or any parent company of Holding are issued as
the sole consideration for the Acquisition other than in lieu of
fractional shares, 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 repurchase, redeem, acquire
or retire for value any shares of capital stock of Holding or any
parent company of Holding, provided, however, that the aggregate
amount of such payments in relation to an Acquisition is not
greater than the excess of (i) the Cash Equivalents of any
Persons acquired in the Acquisition over (ii) the Indebtedness of
such Persons, determined in each case for such Persons on a
consolidated basis in conformity with GAAP; provided, further,
that no Event of Default or Unmatured Event of Default shall then
exist or would arise therefrom."
1.13 Section 8.20 is amended by deleting the heading and text in its
entirety and substituting "[Reserved]".
1.14 Section 8.21 is amended by adding "by US Borrower or any
Subsidiary that is organized under the laws of the United States or any
political subdivision thereof, (iii)" immediately following "(ii)", and
renumbering "(iii)" as "(iv)".
SECTION TWO - CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT
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2.1 The amendments provided for in Section One hereof shall become
effective on the date on which the Administrative Agent shall have received
duly executed counterparts hereof from the Borrowers, UK Borrower, Canadian
Borrower, the Subsidiary Swing Line Borrowers and the Required Lenders. The
effectiveness of this Amendment (other than Section Four) is conditioned
upon the accuracy of the representations and warranties set forth in
Section Three.
SECTION THREE - REPRESENTATIONS AND WARRANTIES
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3.1 In order to induce the Lenders to enter into this Amendment, the
Borrowers, UK Borrower, Canadian Borrower and the Subsidiary Swing Line
Borrowers represent and warrant to the Administrative Agent and each of the
Lenders that after giving effect to this Amendment, (i) no Unmatured Event
of Default or Event of Default has occurred and is continuing ; and (ii)
all of the representations and warranties in the Credit Agreement after
giving effect to this Amendment are true and correct in all material
respects on and as of the date hereof unless such representation and
warranty expressly indicates that it is being made as of another date, in
which case such representation and warrant was true and correct as of such
date. Holding, the Borrowers, UK Borrower, Canadian Borrower and the
Subsidiary Swing Line Borrowers further represent and warrant (which
representations and warranties shall survive the execution and delivery
hereof) to the Administrative Agent and each Lender that:
(i) Each Credit Agreement Loan Party has full corporate or other
power, authority and legal right to execute, deliver and perform its
obligations under this Amendment and has taken all actions necessary to
authorize the execution, delivery and performance of its obligations under
this Amendment;
(ii) No consent of any person other than the Lenders, and no
consent, permit, approval or authorization of, exemption by, notice or
report to, or registration, filing or declaration with, any governmental
authority is required in connection with the execution, delivery,
performance of any Credit Agreement Loan Party's obligations, validity or
enforceability of this Amendment;
(iii) This Amendment has been duly executed and delivered on
behalf of each Credit Agreement Loan Party by a duly authorized officer of
the respective Credit Agreement Loan Party and constitutes a legal, valid
and binding obligation of each Credit Agreement Loan Party enforceable in
accordance with its terms, except as the enforceability thereof may be
limited by applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally; and
(iv) The execution, delivery and performance of this Amendment
will not violate a requirement of law or Contractual Obligation of any
Credit Agreement Loan Party.
SECTION FOUR - MISCELLANEOUS
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4.1 Except as herein expressly amended, waived or consented to, the
Credit Agreement and all other agreements, documents, instruments and
certificates executed in connection therewith are ratified and confirmed in
all respects and shall remain in full force and effect in accordance with
their respective terms.
4.2 All references to the Credit Agreement contained in any of the
Basic Documents shall mean the Credit Agreement as amended hereby, and as
the same may at any time be amended, amended and restated, supplemented or
otherwise modified from time to time and as in effect.
4.3 This Amendment may be executed by the parties hereto in one or
more counterparts, each of which shall be an original and all of which
shall constitute one and the same agreement.
4.4 Each of the Credit Agreement Loan Parties agree to reimburse the
Administrative Agent and the Arranger and Documentation Agent for their
out-of-pocket expenses in connection with this Amendment, including the
reasonable fees, charges and disbursements of Cahill Gorden & Reindel,
counsel for the Administrative Agent and the Arranger and Documentation
Agent.
4.5 THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment 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.,
as a Borrower
By: /s/ William P. Donnelly
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Name: William P. Donnelly
Title:
METTLER-TOLEDO HOLDING AG,
as a Borrower
By: /s/ William P. Donnelly
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Name: William P. Donnelly
Title:
METTLER-TOLEDO INTERNATIONAL INC.,
as Guarantor
By: /s/ William P. Donnelly
---------------------------------
Name: William P. Donnelly
Title:
SAFELINE HOLDING COMPANY
as UK Borrower and as a Subsidiary
Swing Line Borrower
By: /s/ William P. Donnelly
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Name: William P. Donnelly
Title:
METTLER-TOLEDO INC.,
as Canadian Borrower
By: /s/ William P. Donnelly
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Name: William P. Donnelly
Title:
METTLER-TOLEDO MANAGEMENT HOLDING
DEUTSCHLAND GMBH,
as a Subsidiary Swing Line Borrower
By: /s/ William P. Donnelly
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Name: William P. Donnelly
Title:
METTLER-TOLEDO S.A., VEROFLAY,
as a Subsidiary Swing Line Borrower
By: /s/ William P. Donnelly
---------------------------------
Name: William P. Donnelly
Title:
METTLER-TOLEDO K.K., TAKARAZUKA,
as a Subsidiary Swing Line Borrower
By: /s/ William P. Donnelly
---------------------------------
Name: William P. Donnelly
Title:
METTLER-TOLEDO GMBH, GREIFENSEE
as a Subsidiary Swing Line Borrower
By: /s/ William P. Donnelly
---------------------------------
Name: William P. Donnelly
Title:
METTLER-TOLEDO LTD, LEICESTER
as a Subsidiary Swing Line Borrower
By: /s/ William P. Donnelly
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Name: William P. Donnelly
Title:
SAFELINE LIMITED,
as a Subsidiary Swing Line Borrower
By: /s/ William P. Donnelly
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Name: William P. Donnelly
Title:
MERRILL LYNCH & CO., MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED, as Arranger
and Documentation Agent
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA
as Administrative Agent
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA
as Canadian Agent
By:
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Name:
Title:
Name of Lender:
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Signature:
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Name of Signatory:
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Title of Signatory:
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