Exhibit 10-14
EXECUTION COPY
U.S. $150,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 24, 2002
Among
PAXAR CORPORATION,
XXXXXXXXX + XXXX GMBH & CO. KG
and
PAXAR UK LIMITED
as Borrowers
------------
and
THE INITIAL LENDERS, INITIAL ISSUING BANK
AND SWING LINE BANK NAMED HEREIN
as Initial Lenders, Initial Issuing Bank and Swing Line Bank,
-------------------------------------------------------------
FLEET NATIONAL BANK
as Administrative Agent,
------------------------
SUNTRUST BANK
as Syndication Agent
--------------------
and
HSBC BANK USA
as Documentation Agent
----------------------
TABLE OF CONTENTS
Table of Contents
Page
Article I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms................................................................................2
SECTION 1.02. Computation of Time Periods.........................................................................14
SECTION 1.03. Accounting Terms....................................................................................14
Article II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances........................................................................................15
SECTION 2.02. Making the Advances.................................................................................16
SECTION 2.03. The Competitive Bid Advances........................................................................17
SECTION 2.04. Issuance of and Drawings and Reimbursement Under Letters of Credit..................................18
SECTION 2.05. Fees ..............................................................................................19
SECTION 2.06. Termination or Reduction of the Commitments.........................................................19
SECTION 2.07. Repayment of Advances...............................................................................19
SECTION 2.08. Interest............................................................................................20
SECTION 2.09. Interest Rate Determination.........................................................................20
SECTION 2.10. Conversion of Advances..............................................................................21
SECTION 2.11. Prepayments.........................................................................................21
SECTION 2.12. Increased Costs.....................................................................................22
SECTION 2.13. Illegality..........................................................................................23
SECTION 2.14. Payments and Computations...........................................................................23
SECTION 2.15. Taxes...............................................................................................24
SECTION 2.16. Sharing of Payments, Etc............................................................................25
SECTION 2.17. Use of Proceeds.....................................................................................25
SECTION 2.18. Additional Borrowers................................................................................25
Article III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01, 2.03 and 2.04...............................26
SECTION 3.02. Conditions Precedent to the Initial Borrowings of Xxxxxxxxx and Paxar UK............................27
SECTION 3.03. Conditions Precedent to the Initial Borrowing of Each Additional Borrower...........................27
SECTION 3.04. Conditions Precedent to Each Borrowing (other than a Competitive Bid Borrowing) and Issuance........28
SECTION 3.05. Conditions Precedent to Each Competitive Bid Borrowing..............................................28
SECTION 3.06. Determinations Under Section 3.01...................................................................29
Article IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers.....................................................30
Article V
COVENANTS OF PAXAR
SECTION 5.01. Affirmative Covenants...............................................................................32
SECTION 5.02. Negative Covenants..................................................................................34
SECTION 5.03. Financial Covenants.................................................................................38
Article VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default...................................................................................39
Article VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action............................................................................40
SECTION 7.02. Administrative Agent's Reliance, Etc................................................................40
SECTION 7.03. Fleet and Affiliates................................................................................41
SECTION 7.04. Lender Credit Decision..............................................................................41
SECTION 7.05. Indemnification.....................................................................................41
SECTION 7.06. Successor Administrative Agent......................................................................41
Article VIII
GUARANTY
SECTION 8.01. Guaranty............................................................................................42
SECTION 8.02. Guaranty Absolute...................................................................................42
SECTION 8.03. Waivers and Acknowledgments.........................................................................43
SECTION 8.04. Subrogation.........................................................................................43
SECTION 8.05. Continuing Guarantee; Assignments...................................................................43
Article IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc.....................................................................................44
SECTION 9.02. Notices, Etc........................................................................................44
SECTION 9.03. No Waiver; Remedies.................................................................................44
SECTION 9.04. Costs and Expenses..................................................................................45
SECTION 9.05. Right of Set-off....................................................................................46
SECTION 9.06. Binding Effect......................................................................................46
SECTION 9.07. Assignments, Designations and Participations........................................................46
SECTION 9.08. Confidentiality.....................................................................................49
SECTION 9.09. No Liability of the Issuing Bank....................................................................49
SECTION 9.10. Governing Law.......................................................................................49
SECTION 9.11. Execution in Counterparts...........................................................................49
SECTION 9.12. Judgment............................................................................................49
SECTION 9.13. Jurisdiction, Etc...................................................................................50
SECTION 9.14. Waiver of Jury Trial................................................................................50
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Credit Agreement Supplement
Exhibit G - Form of Acceptance of Process Agent
Schedules
Schedule 4.01(c) - Required Authorizations and Approvals
Schedule 4.01(f) - Environmental Actions
Schedule 4.01(i) - Environmental Laws
Schedule 5.02(d) - Existing Debt
Schedule 5.02(g) - Scheduled Investments
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 24, 2002
Paxar Corporation, a New York corporation ("Paxar"), Xxxxxxxxx + Xxxx GMBH
& Co. KG ("Xxxxxxxxx"), Paxar UK Limited ("Paxar UK") any other Subsidiary (as
hereinafter defined) that becomes a Borrower (as hereinafter defined) pursuant
to the terms hereof, the banks, financial institutions and other institutional
lenders (the "Initial Lenders") listed on the signature pages hereof as the
Initial Lenders, Fleet National Bank ("Fleet") as initial issuing bank (in such
capacity, the "Initial Issuing Bank"), Fleet as the swing line bank (in such
capacity, the "Swing Line Bank"), Fleet as administrative agent (in such
capacity, the "Administrative Agent") for the Lender Parties (as hereinafter
defined), SunTrust Bank, as Syndication Agent (the "Syndication Agent") and HSBC
Bank USA, as Documentation Agent (the "Documentation Agent"), agree to amend and
restate the Existing Credit Agreement (as defined below) in its entirety as
follows:
PRELIMINARY STATEMENTS
(1) Paxar entered into a Credit Agreement dated as of March 3, 1997, as
amended by the Letter Amendment dated as of October 1, 1997 and Letter Amendment
No. 2 dated as of June 30, 1998 (such Credit Agreement, as so amended, being the
"Original Credit Agreement"), with the banks, financial institutions and other
institutional lenders party thereto and Fleet, as Initial Issuing Bank, Swing
Line Bank and Administrative Agent.
(2) Pursuant to the Original Credit Agreement, Paxar requested that the
banks, financial institutions and other institutional lenders party thereto make
advances to it, in an aggregate principal amount of up to $280,000,000, on the
terms and conditions set forth therein.
(3) Subsequently, Paxar entered into an Amended and Restated Credit
Agreement dated as of August 11, 1998, as amended by the Letter Amendment dated
as of February 1, 1999 and Letter Amendment No. 2 dated as of February 29, 2000
(said agreement, as so amended, being the "Existing Credit Agreement") with the
banks, financial institutions and other institutional lenders party thereto,
Fleet, as Initial Issuing Bank, Swing Line Bank and Administrative Agent.
(4) Pursuant to the Existing Credit Agreement, Paxar requested that the
banks, financial institutions and other institutional lenders party thereto make
advances to it and to any other "Borrowers" (as defined in the Existing Credit
Agreement) party to the Existing Credit Agreement, in an aggregate principal
amount of up to $200,000,000, on the terms and conditions set forth therein.
(5) Pursuant to the terms of the Existing Credit agreement, on September
9, 1999, Paxar UK delivered a Credit Agreement Supplement (as defined in the
Existing Credit Agreement) and became a "Borrower" under and as defined in the
Existing Credit agreement.
(6) Pursuant to the terms of the Existing Credit Agreement, on February
16, 2001, Xxxxxxxxx delivered a Credit Agreement Supplement (as defined in the
Existing Credit Agreement) and became a "Borrower" under and as defined in the
Existing Credit Agreement.
(7) Paxar has requested that the Lender Parties party hereto enter into
this Agreement to amend and restate the Existing Credit Agreement and to lend
the Borrowers (as hereinafter defined) and issue Letters of Credit (as
hereinafter defined) for the benefit of the Borrowers from time to time in an
aggregate principal amount of up to $150,000,000. The Lender Parties hereunder
have indicated their willingness to amend and restate the Existing Credit
Agreement and to agree to lend such amounts on the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the parties hereto hereby agree that, subject
to the satisfaction of the conditions set forth in Section 3.01, the Existing
Credit Agreement is amended and restated in its entirety to read as follows:
1
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
---------------------
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Administrative Agent's Account" means (a) in the case of Advances
denominated in US Dollars, the account of the Administrative Agent maintained by
the Administrative Agent at Fleet National Bank with its office at 1185 Avenue
of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No. 0000000,
Attention: Lung Xxxxx and (b) in the case of Advances denominated in any Primary
Currency, the account of the Administrative Agent designated in writing from
time to time by the Administrative Agent to Paxar, the other Borrowers and the
Lender Parties for such purpose.
"Advance" means a Revolving Credit Advance, a Swing Line Advance, a Letter
of Credit Advance or a Competitive Bid Advance.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 5% or more of the Voting Stock of such Person or
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"Applicable Lending Office" means, with respect to each Lender Party, such
Lender Party's Domestic Lending Office in the case of a Prime Rate Advance and
such Lender Party's Eurocurrency Lending Office in the case of a Eurocurrency
Rate Advance and, in the case of a Competitive Bid Advance, the office of such
Lender Party notified by such Lender Party to the Administrative Agent as its
Applicable Lending Office with respect to such Competitive Bid Advance.
"Applicable Margin" means, (x) during the period from the Effective Date
until March 24, 2003, 0.60% and (y) at any time after March 24, 2003, a
percentage per annum determined by reference to the Debt to EBITDA Ratio as set
forth below:
----------------------------------- ----------------------------------
Debt To Applicable Margin for Revolving
EBITDA Ratio Credit Advances
----------------------------------- ----------------------------------
Xxxxx 0 0.80%
-------
Greater than or equal to 2.50 to
1 but less than 3.00 to 1
----------------------------------- ----------------------------------
Level 2 0.60%
-------
Greater than or equal to 2.00 to
1 but less than 2.50 to 1
----------------------------------- ----------------------------------
Level 3 0.50%
-------
Greater than or equal to 1.50 to
1 but less than 2.00 to 1
----------------------------------- ----------------------------------
Level 4 0.40%
-------
Greater than or equal to 1.00 to
1 but less than 1.50 to 1
----------------------------------- ----------------------------------
Level 5 0.30%
--------
Less than 1.00 to 1
----------------------------------- ----------------------------------
The Applicable Margin for each Advance (other than a Competitive Bid
Advance) shall be determined by reference to the Debt to EBITDA Ratio in effect
on the first day of each Interest Period for such Advance; provided, however,
that no change in the Applicable Margin shall be effective until three Business
Days after the date on which the Administrative Agent receives financial
statements pursuant to Section 5.01(m)(i) or (ii) and a certificate of the chief
financial officer or the treasurer of Paxar demonstrating such ratio.
"Applicable Percentage" means, (x) during the period from the Effective
Date until March 24, 2003, 0.300% and (y) at any time after March 24, 2003, a
percentage per annum determined by reference to the Debt to EBITDA Ratio as set
forth below:
------------------------------------- -------------------------------------
Debt To Applicable
EBITDA Ratio Percentage
------------------------------------- -------------------------------------
Xxxxx 0 0.350%
-------
Greater than or equal to 2.50 to 1
but less than 3.00 to 1
------------------------------------- -------------------------------------
Xxxxx 0 0.300%
-------
Greater than or equal to 2.00 to 1
but less than 2.50 to 1
------------------------------------- -------------------------------------
Xxxxx 0 0.275%
-------
Greater than or equal to 1.50 to 1
but less than 2.00 to 1
------------------------------------- -------------------------------------
Xxxxx 0 0.250%
-------
Greater than or equal to 1.00 to 1
but less than 1.50 to 1
------------------------------------- -------------------------------------
Level 5 0.225%
-------
Less than 1.00 to 1
------------------------------------- -------------------------------------
The Applicable Percentage for the Revolving Credit Facility shall be
determined by reference to the Debt to EBITDA Ratio in effect from time to time;
provided, however, that no change in the Applicable Percentage shall be
effective until three Business Days after the date on which the Administrative
Agent receives financial statements pursuant to Section 5.01(m)(i) or (ii) and a
certificate of the chief financial officer or the treasurer of Paxar
demonstrating such ratio.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender Party and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time, the maximum
amount available to be drawn under such Letter of Credit at such time (assuming
compliance at such time with all conditions to drawing).
"Borrower" means Paxar and each other wholly owned Subsidiary of Paxar
that has delivered a Credit Agreement Supplement which has become effective;
provided, however, that in no event shall the number of Borrowers hereunder
exceed four at any one time.
"Borrowing" means a Revolving Credit Borrowing, a Swing Line Borrowing or
a Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are not required or
authorized by law to close in New York City and, if the applicable Business Day
relates to any Eurocurrency Rate Advances, on which dealings are carried on in
the London interbank market and banks are open for business in the country of
issue of the currency of such Eurocurrency Rate Advance.
2
"Capital Expenditures" means, for any Person for any period, the sum of
(a) all expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or additions
thereto, that have been or should be, in accordance with GAAP, reflected as
additions to property, plant or equipment on a Consolidated balance sheet of
such Person or have a useful life of more than one year plus (b) without
duplication, the aggregate principal amount of all Debt (including Obligations
under Capitalized Leases) assumed or incurred in connection with any such
expenditures.
"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"Cash Equivalents" means any of the following, to the extent owned by
Paxar or any of its Subsidiaries free and clear of all Liens and having a
maturity of not greater than 180 days from the date of issuance thereof: (a)
readily marketable direct obligations of the Government of the United States or
any agency or instrumentality thereof or obligations unconditionally guaranteed
by the full faith and credit of the Government of the United States, (b) insured
certificates of deposit of or time deposits with any commercial bank that is a
Lender Party or a member of the Federal Reserve System, issues (or the parent of
which issues) commercial paper rated as described in clause (c), is organized
under the laws of the United States or any state thereof and has combined
capital and surplus of at least $1 billion, (c) commercial paper issued by any
corporation organized under the laws of any state of the United States and rated
at least "Prime-1" (or the then equivalent grade) by Xxxxx'x or "A-1" (or the
then equivalent grade) by S&P or (d) Investments in money market funds that
invest primarily in Cash Equivalents of the types described in clauses (a), (b)
and (c) above and are established by a Lender Party or any Affiliate of a Lender
Party.
"Commitment" means a Revolving Credit Commitment or a Letter of Credit
Commitment.
"Competitive Bid Advance" means an advance by a Lender Party to Paxar as
part of a Competitive Bid Borrowing resulting from the competitive bidding
procedure described in Section 2.03 and refers to a Fixed Rate Advance or a LIBO
Rate Advance (each of which may only be in US Dollars).
"Competitive Bid Borrowing" means a borrowing consisting of simultaneous
Competitive Bid Advances from each of the Lender Parties to Paxar whose offer to
make one or more Competitive Bid Advances as part of such borrowing has been
accepted under the competitive bidding procedure described in Section 2.03.
"Competitive Bid Note" means a promissory note of Paxar payable to the
order of any Lender Party, in substantially the form of Exhibit A-3 hereto,
evidencing the indebtedness of Paxar to such Lender Party resulting from a
Competitive Bid Advance made by such Lender Party.
"Confidential Information" means information that any Borrower furnishes
to the Administrative Agent or any Lender Party in a writing designated as
confidential, but does not include any such information that is or becomes
generally available to the public or that is or becomes available to the
Administrative Agent or such Lender Party from a source other than the
Borrowers.
"Consolidated" refers to the consolidation of accounts in accordance with
GAAP.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances (other than Competitive Bid Advances) of one Type into Advances of the
other Type (other than Competitive Bid Advances) pursuant to Section 2.09 or
2.10.
"Credit Agreement Supplement" has the meaning specified in Section 2.18.
3
"Debt" of any Person means, without duplication, (a) all indebtedness of
such Person for borrowed money, (b) all Obligations of such Person for the
deferred purchase price of property or services (other than trade payables not
overdue by more than 90 days incurred in the ordinary course of such Person's
business), (c) all Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all Obligations of such Person
created or arising under any conditional sale or other title retention agreement
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), (e) all Obligations of
such Person as lessee under Capitalized Leases, (f) all Obligations, contingent
or otherwise, of such Person in respect of acceptances, letters of credit or
similar extensions of credit, (g) all Obligations of such Person in respect of
Hedge Agreements, (h) all Obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any capital stock of
or other ownership or profit interest in such Person or any other Person or any
warrants, rights or options to acquire such capital stock, (i) Debt of others
referred to in clauses (a) through (h) above or clause (j) below guaranteed
directly or indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (1) to pay or
purchase such Debt or to advance or supply funds for the payment or purchase of
such Debt, (2) to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the debtor to
make payment of such Debt or to assure the holder of such Debt against loss, (3)
to supply funds to or in any other manner invest in the debtor (including any
agreement to pay for property or services irrespective of whether such property
is received or such services are rendered) or (4) otherwise to assure a creditor
against loss, and (j) all Debt referred to in clauses (a) through (i) above
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including,
without limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Debt.
"Debt to EBITDA Ratio" means, for any fiscal quarter of Paxar, a ratio of
Debt of Paxar and its Subsidiaries as at the end of such fiscal quarter to
Consolidated EBITDA of Paxar and its Subsidiaries for the most recently
completed four fiscal quarters.
"Default" means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both.
"Designated Bidder" means (a) an Eligible Assignee or (b) a special
purpose corporation that is engaged in making, purchasing or otherwise investing
in commercial loans in the ordinary course of its business and that issues (or
the parent of which issues) commercial paper rated at least "Prime-1" (or the
then equivalent grade) by Xxxxx'x or "A-1" (or the then equivalent grade) by S&P
that, in the case of either clause (a) or (b), (i) is organized under the laws
of the United States or any State thereof, (ii) shall have become a party hereto
pursuant to Section 9.07(d), (e) and (f) and (iii) is not otherwise a Lender
Party.
"Designation Agreement" means a designation agreement entered into by a
Lender Party (other than a Designated Bidder) and a Designated Bidder, and
accepted by the Administrative Agent, in substantially the form of Exhibit D
hereto.
"Domestic Lending Office" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender Party, or such other office of such Lender Party as
such Lender Party may from time to time specify to Paxar and the Administrative
Agent.
"EBIT" means, for any period, net income (or net loss) before deduction
for income taxes and net interest expense, in each case determined in accordance
with GAAP for such period.
"EBITDA" means, for any period, net income (or net loss) plus the sum of
(a) interest expense, (b) income tax expense, (c) depreciation expense and (d)
amortization expense, in each case determined in accordance with GAAP for such
period and, in the case of clauses (a) through (d), to the extent such expenses
are actually deducted in calculating net income (or net loss); provided,
however, that any non-recurring gains or losses (determined in accordance with
GAAP) shall be excluded for purposes of calculating "EBITDA".
4
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender Party; (ii) an Affiliate of a
Lender Party; (iii) a commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of $500,000,000;
(iv) a savings and loan association or savings bank organized under the laws of
the United States, or any State thereof, and having total assets in excess of
$500,000,000; (v) a commercial bank organized under the laws of any other
country that is a member of the Organization for Economic Cooperation and
Development or has concluded special lending arrangements with the International
Monetary Fund associated with its General Arrangements to Borrow, or a political
subdivision of any such country, and having total assets in excess of
$500,000,000, so long as such bank is acting through a branch or agency located
in the United States; (vi) the central bank of any country that is a member of
the Organization for Economic Cooperation and Development; (vii) a finance
company, insurance company or other financial institution or fund (whether a
corporation, partnership, trust or other entity) that is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary course of
its business and having total assets in excess of $500,000,000 and (viii) any
other Person approved by the Administrative Agent and, unless an Event of
Default has occurred and is continuing at the time any assignment is effected in
accordance with Section 9.07, Paxar, such approval not to be unreasonably
withheld or delayed; provided, however, that neither Paxar nor an Affiliate of
Paxar shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, Environmental Permit or Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory authority or
any third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, judgment, decree or judicial or
agency interpretation, policy or guidance relating to pollution or protection of
the environment, health, safety or natural resources, including, without
limitation, those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
"Equivalent" means (a) in US Dollars of any Primary Currency on any date
of determination, the equivalent in US Dollars of such Primary Currency
determined by using the quoted spot rate at which Fleet's principal office in
New York City, New York, offers to exchange US Dollars for such Primary Currency
in New York City, New York, at the opening of business on such date and (b) in
any Primary Currency of US Dollars on any date of determination, the equivalent
in such Primary Currency of US Dollars determined by using the quoted spot rate
at which Fleet's principal office in New York City, New York offers to exchange
such Primary Currency for US Dollars in New York City, New York at the opening
of business on such date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
is a member of Paxar's controlled group, or under common control with Paxar,
within the meaning of Section 414 of the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day
notice requirement with respect to such event has been waived by the PBGC, or
(ii) the requirements of subsection (1) of Section 4043(b) of ERISA (without
regard to subsection (2) of such Section) are met with a contributing sponsor,
as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the following 30
days; (b) the application for a minimum funding waiver with respect to a Plan;
(c) the provision by the administrator of any Plan of a notice of intent to
terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in Section 4041(e) of
ERISA); (d) the cessation of operations at a facility of Paxar or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by Paxar or any ERISA Affiliate from a Multiple Employer Plan during
a plan year for which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien under
Section 302(f) of ERISA shall have been met with respect to any Plan; (g) the
adoption of an amendment to a Plan requiring the provision of security to such
Plan pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a trustee to
administer, a Plan.
5
"Eurocurrency Lending Office" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Eurocurrency Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party (or, if no such office is specified,
its Domestic Lending Office), or such other office of such Lender Party as such
Lender Party may from time to time specify to Paxar and the Administrative
Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for each Eurocurrency
Rate Advance comprising part of the same Borrowing (other than a Competitive Bid
Borrowing), the rate per annum (rounded upwards to the nearest 1/16 of 1%) at
which deposits in US Dollars or in the applicable Primary Currency, as the case
may be, appear on Page 3740 or 3750 of the Dow Xxxxx Telerate Screen at or about
11:00 A.M. (London time) two Business Days before the first day of such Interest
Period and for a period equal to such Interest Period. If for any reason such
rate is not available, the term "Eurocurrency Rate" shall mean, for any Interest
Period for each Eurocurrency Rate Advance comprising part of the same Borrowing,
the rate per annum (rounded upwards to the nearest 1/16 of 1%) appearing on the
appropriate Reuters Screen as the London interbank offered rate for deposits in
US Dollars or in the applicable Primary Currency, as the case may be, at
approximately 11:00 A.M. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on such Reuters Screen, the
applicable rate shall be the arithmetic mean of all such rates.
"Eurocurrency Rate Advance" means an Advance (other than a Competitive Bid
Advance) denominated in US Dollars or in a Primary Currency that bears interest
as provided in Section 2.08(a)(ii).
"Eurocurrency Rate Reserve Percentage" means, with respect to any Lender
for any Interest Period for any Eurocurrency Rate Advance made by such Lender
from time to time, the reserve percentage applicable two Business Days before
the first day of such Interest Period under regulations issued from time to time
by the Board of Governors of the Federal Reserve System (or any successor
thereto) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement)
for such Lender with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities
that includes deposits by reference to which the interest rate on Eurocurrency
Rate Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Credit Agreement" has the meaning specified in the Preliminary
Statements.
"Existing Debt" has the meaning specified in Section 5.02(d)(iii)(B)
hereof.
"Extraordinary Receipt" means any cash received by or paid to or for the
account of any Person not in the ordinary course of business, including, without
limitation, pension plan reversions, proceeds of insurance (other than proceeds
of business interruption insurance to the extent such proceeds constitute
compensation for lost earnings), condemnation awards (and payments in lieu
thereof) and indemnity payments; provided, however, that an Extraordinary
Receipt shall not include cash receipts received from proceeds of insurance,
condemnation awards (or payments in lieu thereof) or indemnity payments to the
extent that such proceeds, awards or payments in respect of loss or damage to
equipment, fixed assets or real property are applied (or in respect of which
expenditures were previously incurred) to replace or repair the equipment, fixed
assets or real property in respect of which such proceeds were received in
accordance with the terms of the Loan Documents, so long as such application is
made within 6 months after the occurrence of such damage or loss.
6
"Facility" means the Revolving Credit Facility, the Swing Line Facility or
the Letter of Credit Facility.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fiscal Year" means a fiscal year of Paxar and its Consolidated
Subsidiaries ending on December 31 in any calendar year.
"Fixed Rate Advances" has the meaning specified in Section 2.03(a)(i),
which Advances shall be denominated in US Dollars.
"Fleet" has the meaning specified in the recital of parties to this
Agreement.
"Foreign Loan Amount" means, at any date, the sum of the Equivalent on
such date of the aggregate principal amount on such date of the outstanding
Revolving Credit Advances denominated in any Primary Currency plus the aggregate
principal amount on such date of the outstanding advances made by Paxar and its
domestic Subsidiaries to any wholly-owned foreign Subsidiaries of Paxar.
"Funded Debt" of any Person means Debt in respect of the Advances, in the
case of any Borrower, and all other Debt of such Person that by its terms
matures more than one year after the date of determination or matures within one
year from such date but is renewable or extendible, at the option of such
Person, to a date more than one year after such date or arises under a revolving
credit or similar agreement that obligates the lender or lenders to extend
credit during a period of more than one year after such date, including, without
limitation, all amounts of Funded Debt of such Person required to be paid or
prepaid within one year after the date of determination.
"GAAP" has the meaning specified in Section 1.03.
"Guaranteed Obligations" has the meaning specified in Section 8.01.
"Guaranty" has the meaning specified in Section 8.01.
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"Indemnified Party" has the meaning specified in Section 9.04(b).
7
"Independent Machine" means Independent Machine Service, Inc., a Delaware
corporation and a wholly-owned Subsidiary of Paxar.
"Initial Extension of Credit" means the earlier to occur of the initial
Borrowing and the initial issuance of a Letter of Credit hereunder.
"Initial Issuing Bank" has the meaning specified in the recital of parties
to this Agreement.
"Initial Lenders" has the meaning specified in the recital of parties to
this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if any, of
its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Interest Period" means, for each Eurocurrency Rate Advance comprising
part of the same Borrowing (other than a Competitive Bid Borrowing) and each
LIBO Rate Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurocurrency Rate Advance or LIBO Rate
Advance or the date of the Conversion of any Prime Rate Advance into such
Eurocurrency Rate Advance and ending on the last day of the period selected by
the relevant Borrower pursuant to the provisions below and, thereafter, with
respect to Eurocurrency Rate Advances, each subsequent period commencing on the
last day of the immediately preceding Interest Period and ending on the last day
of the period selected by such Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six months, as
the relevant Borrower may, upon notice received by the Administrative Agent not
later than 11:00 A.M. (New York City time) on the third Business Day prior to
the first day of such Interest Period, select; provided, however, that:
(i) a Borrower may not select any Interest Period with respect to any
Eurocurrency Rate Advance or LIBO Rate Advance that ends after any principal
repayment installment date unless, after giving effect to such selection, the
aggregate principal amount of Prime Rate Advances and of Eurocurrency Rate
Advances and LIBO Rate Advances having Interest Periods that end on or prior to
such principal repayment installment date shall be at least equal to the
aggregate principal amount of Advances due and payable on or prior to such date;
(ii) Interest Periods commencing on the same date for Eurocurrency Rate
Advances comprising part of the same Borrowing (other than a Competitive Bid
Borrowing) or for LIBO Rate Advances comprising part of the same Competitive Bid
Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would otherwise occur on
a day other than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day, provided, however, that,
if such extension would cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such Interest Period shall
occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a day of an
initial calendar month for which there is no numerically corresponding day in
the calendar month that succeeds such initial calendar month by the number of
months equal to the number of months in such Interest Period, such Interest
Period shall end on the last Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Investment" in any Person means any loan or advance to such Person, any
purchase or other acquisition of any capital stock or other ownership or profit
interest, warrants, rights, options, obligations or other securities of such
Person, any capital contribution to such Person or any other investment in such
Person, including, without limitation, any arrangement pursuant to which the
investor incurs Debt of the types referred to in clause (i) or (j) of the
definition of "Debt" in respect of such Person.
8
"Issuing Bank" means the Initial Issuing Bank and each Eligible Assignee
to which the Letter of Credit Commitment hereunder has been assigned pursuant to
Section 9.07, and, solely with respect to the SunTrust LC, SunTrust.
"L/C Related Documents" has the meaning specified in Section 2.07(c)(ii).
"Lender Party" means any Lender, the Issuing Bank or the Swing Line Bank.
"Lenders" means the Initial Lenders and each Person that shall become a
party hereto pursuant to Section 9.07(a), (b) and (c) and, except when used in
reference to a Borrowing (other than a Competitive Bid Borrowing), a Note (other
than a Competitive Bid Note), a Commitment or a related term, each Designated
Bidder.
"Letter of Credit" has the meaning specified in Section 2.01(c).
"Letter of Credit Advance" means an advance made by the Issuing Bank or
any Lender pursuant to Section 2.04(c), which advance shall be denominated in US
Dollars.
"Letter of Credit Agreement" has the meaning specified in Section 2.04(a).
"Letter of Credit Commitment" means, with respect to any Letter of Credit
other than the SunTrust LC, with respect to the Issuing Bank at any time,
$5,000,000 or, if the Issuing Bank has entered into one or more Assignments and
Acceptances, set forth for the Issuing Bank in the Register maintained by the
Administrative Agent pursuant to Section 9.07(g) as the Issuing Bank's "Letter
of Credit Commitment" and, in each case, as such amount may be reduced at or
prior to such time pursuant to Section 2.06.
"Letter of Credit Facility" means, at any time, an amount equal to the
amount of the Issuing Bank's Letter of Credit Commitment at such time, as such
amount may be reduced at or prior to such time pursuant to Section 2.06.
"LIBO Rate" means, for any Interest Period for all LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing, the rate per annum
(rounded upwards to the nearest 1/16 of 1%) appearing on Telerate Page 3750 (or
any successor page) as the London interbank offered rate for deposits in US
Dollars at approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period.
If for any reason such rate is not available, the term "LIBO Rate" shall mean,
for any Interest Period for each LIBO Rate Advance comprising part of the same
Competitive Bid Borrowing, the rate per annum (rounded upwards to the nearest
1/16 of 1%) appearing on Reuters Screen LIBO Page as the London interbank
offered rate for deposits in US Dollars at approximately 11:00 A.M. (London
time) two Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period; provided, however, if more than one
rate is specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates.
"LIBO Rate Advances" has the meaning specified in Section 2.03(a)(i).
"Lien" means any lien, security interest or other charge or encumbrance of
any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property.
"Loan Documents" means this Agreement, the Notes, the Subsidiary Guaranty,
any Credit Agreement Supplement entered into by a Borrower and any pledge
agreement or security agreement entered into by Paxar or any Subsidiary
Guarantor pursuant to the provisions of Section 5.02(d)(ii).
"Loan Parties" means each Borrower and each Subsidiary Guarantor.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of Paxar or Paxar and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of Paxar or Paxar and its Subsidiaries taken as a whole,
(b) the rights and remedies of the Administrative Agent or any Lender Party
under the Loan Documents or (c) the ability of any Loan Party to perform its
obligations under the Loan Documents.
9
"Monarch" means Monarch Marking Systems, Inc., a Delaware corporation and
wholly-owned Subsidiary of Paxar.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which Paxar or any ERISA Affiliate is making or accruing
an obligation to make contributions, or has within any of the preceding five
plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of Paxar or
any ERISA Affiliate and at least one Person other than Paxar and the ERISA
Affiliates or (b) was so maintained and in respect of which Paxar or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to the sale or issuance of any
Debt or capital stock or other ownership or profit interest, any securities
convertible into or exchangeable for capital stock or other ownership or profit
interest or any warrants, rights, options or other securities to acquire capital
stock or other ownership or profit interest by any Person, the aggregate amount
of cash received from time to time (whether as initial consideration or through
payment or disposition of deferred consideration) by or on behalf of such Person
in connection with such transaction after deducting therefrom only (without
duplication) (a) reasonable and customary brokerage commissions, underwriting
fees and discounts, legal fees, finder's fees and other similar fees and
commissions and (b) the amount of taxes payable in connection with or as a
result of such transaction and (c) the amount of any Debt secured by a Lien on
such asset that, by the terms of such transaction, is required to be repaid upon
such disposition, in each case to the extent, but only to the extent, that the
amounts so deducted are, at the time of receipt of such costs, actually paid to
a Person that is not an affiliate of such Person or any Loan Party or any
Affiliate of any Loan Party and are properly attributable to such transaction or
to the asset that is the subject thereof.
"Net Interest Expense" means, for any period, the sum of the aggregate net
interest expense of any Person and its Subsidiaries for such period, as
determined in accordance with GAAP, and in any event including, without
duplication, all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptances and net costs under
interest rate protection agreements and the portion of any obligation under
Capitalized Leases allocable to consolidated net interest expense.
"New Subsidiary Guarantors" means Independent Machine, Monarch, PIHI, and
USL.
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Competitive Bid Borrowing" has the meaning specified in Section
2.03(a)(i).
"Notice of Issuance" has the meaning specified in Section 2.04(a).
"Notice of Renewal" has the meaning specified in Section 2.01(c).
"Notice of Swing Line Borrowing" has the meaning specified in Section
2.02(b).
"Notice of Termination" has the meaning specified in Section 2.01(c).
10
"Obligation" means, with respect to any Person, any payment, performance
or other obligation of such Person of any kind, including, without limitation,
any liability of such Person on any claim, whether or not the right of any
creditor to payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to in Section 6.01(f).
Without limiting the generality of the foregoing, the obligations of the Loan
Parties under the Loan Documents include (a) the obligation to pay principal,
interest, Letter of Credit commissions, charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by any Loan Party under
any Loan Document and (b) the obligation of any Loan Party to reimburse any
amount in respect of any of the foregoing that any Lender Party, in its sole
discretion, may elect to pay or advance on behalf of such Loan Party.
"Other Taxes" has the meaning specified in Section 2.15(b).
"Paxar Capital" means Paxar Capital Corporation, a New York corporation
and wholly-owned Subsidiary of Paxar.
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).
"Permitted Asset Sale Amount" means, with respect to any Fiscal Year, an
amount equal to the Net Cash Proceeds from asset sales permitted by Section
5.02(f)(iii).
"Permitted Liens" means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced:
(a) Liens for taxes, assessments and governmental charges or levies to the
extent not required to be paid under Section 5.01(b) hereof; (b) Liens imposed
by law, such as materialmen's, mechanics', carriers', workmen's and repairmen's
Liens and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 30 days; (c)
pledges or deposits to secure obligations under workers' compensation laws or
similar legislation or to secure public or statutory obligations; and (d)
easements, rights of way and other encumbrances on title to real property that
do not render title to the property encumbered thereby unmarketable or
materially adversely affect the use of such property for its present purposes.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"PIHI" means Paxar International Holdings, Inc., a Delaware corporation
and wholly-owned Subsidiary of Paxar.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Primary Currencies" means, collectively, the lawful currency of the
United Kingdom of Great Britain and Northern Ireland, the lawful currency of the
European Union, the lawful currency of The Swiss Confederation, the lawful
currency of Australia, the lawful currency of Canada and the lawful currency of
Hong Kong; provided, however, that any of the above-enumerated currencies shall
cease to be a "Primary Currency" upon notification by the Required Lenders to
the Administrative Agent that such currency is not freely transferable and
convertible into US Dollars or dealings in deposits in such currency are not
carried out in the London interbank market.
11
"Prime Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by Fleet in New York, New
York, from time to time, as Fleet's prime rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Prime Rate Advance" means an Advance (other than a Competitive Bid
Advance) that bears interest as provided in Section 2.08(a)(i).
"Pro Rata Share" of any amount means, with respect to any Lender at any
time, the product of such amount times a fraction the numerator of which is the
amount of such Lender's Revolving Credit Commitment at such time and the
denominator of which is the Revolving Credit Facility at such time.
"Projections" means the projected balance sheet, statement of income and
statement of cash flows of Paxar and its Subsidiaries for each of the five
fiscal years ending on or prior to December 31, 2007 provided by Paxar to the
Lenders on or about September 4, 2001.
"Register" has the meaning specified in Section 9.07(g).
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of March 3, 1997 between Paxar and Odyssey Partners, L.P., as the same
may be amended, modified or otherwise supplemented from time to time in
accordance with the terms of this Agreement.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Related Documents" means the Stock Purchase Agreement, the Warrant
Agreement and the Registration Rights Agreement.
"Required Lenders" means at any time Lenders owed or holding at least a
majority in interest of the sum of (a) the aggregate principal amount of the
Advances (other than Competitive Bid Advances) outstanding at such time and (b)
the aggregate Available Amount of all Letters of Credit outstanding at such
time, or, if no such principal amount and no Letters of Credit are outstanding
at such time, Lenders holding at least a majority in interest of the aggregate
of the Revolving Credit Commitments. For purposes of this definition, the
aggregate principal amount of Swing Line Advances owing to the Swing Line Bank
and of Letter of Credit Advances owing to the Issuing Bank and the Available
Amount of each Letter of Credit shall be considered to be owed to the Lenders
ratably in accordance with their respective Revolving Credit Commitments.
"Revolving Credit Advance" has the meaning specified in Section 2.01(a).
"Revolving Credit Borrowing" means a borrowing consisting of simultaneous
Revolving Credit Advances of the same Type made by each of the Lender Parties
pursuant to Section 2.01(a).
"Revolving Credit Commitment" means, with respect to any Lender at any
time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Revolving Credit Commitment" or, if such Lender has entered
into one or more Assignments and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 9.07(g) as
such Lender's "Revolving Credit Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.06.
"Revolving Credit Facility" means, at any time, the aggregate amount of
the Lenders' Revolving Credit Commitments at such time.
"Revolving Credit Note" means a promissory note of each Borrower payable
to the order of any Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of such Borrower to such Lender resulting
from the Revolving Credit Advances made by such Lender to such Borrower.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc.
12
"Senior Notes" means the 6.74% Senior Notes due 2008 issued by Paxar in an
aggregate principal amount not to exceed $150,000,000.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of Paxar or any ERISA
Affiliate and no Person other than Paxar and the ERISA Affiliates or (b) was so
maintained and in respect of which Paxar or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been or were to
be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a particular
date, that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay such debts
and liabilities as they mature and (d) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person's property would constitute an unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the amount
that, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
"Standby Letter of Credit" means the SunTrust LC and any Letter of Credit
issued under the Letter of Credit Facility, other than a Trade Letter of Credit.
"Stock Purchase Agreement" means the Purchase and Sale Agreement dated as
of December 20, 1996 between Paxar and Odyssey Partners, L.P., as the same may
be amended, modified or otherwise supplemented from time to time in accordance
with the terms of this Agreement.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (c) the beneficial interest
in such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Subsidiary Guarantors" means each of the Subsidiaries of Paxar that is
organized under the laws of the United States of America or any state thereof.
"Subsidiary Guaranty" means the Guaranty dated as of March 3, 1997 (which
is attached hereto as Exhibit H) made by the Subsidiary Guarantors in favor of
the Administrative Agent and the Lender Parties, as the same may be amended,
modified or otherwise supplemented from time to time.
"SunTrust" means SunTrust Bank.
"SunTrust LC" means letter of credit number F502425 with the face amount
of $8,144,145 issued by SunTrust on August 11, 1999 for the benefit of SunTrust
as Trustee under the Indenture of Trust dated as of August 1, 1999 between City
of Xxxxx Heights, Ohio, as Issuer and SunTrust, as Trustee for the holders of
$8,000,000 principal amount of Industrial Development Revenue Bonds, Series 1999
(Paxar Corporation Project).
"Swing Line Advance" means an advance which shall be denominated in US
Dollars made by (a) the Swing Line Bank pursuant to Section 2.01(b) or (b) any
Lender pursuant to Section 2.02(b).
"Swing Line Bank" has the meaning specified in the recital of parties to
this Agreement.
13
"Swing Line Borrowing" means a borrowing consisting of a Swing Line
Advance made by the Swing Line Bank.
"Swing Line Facility" has the meaning specified in Section 2.01(b).
"Termination Date" means the earlier of September 24, 2005 and the date of
termination in whole of the Commitments pursuant to Section 2.06 or 6.01.
"Trade Letter of Credit" means any Letter of Credit that is issued under
the Letter of Credit Facility for the benefit of a supplier of inventory to
Paxar or any of its Subsidiaries to effect payment for such inventory.
"Type" refers to the distinction between Advances (other than Competitive
Bid Advances) bearing interest at the Prime Rate and Advances bearing interest
at the Eurocurrency Rate.
"Unused Revolving Credit Commitment" means, with respect to any Lender at
any time (a) such Lender's Revolving Credit Commitment at such time minus (b)
the sum of (i) the aggregate principal amount of all Revolving Credit Advances,
Swing Line Advances and Letter of Credit Advances made by such Lender (in its
capacity as a Lender) and outstanding at such time, plus (ii) such Lender's Pro
Rata Share of (A) the aggregate Available Amount of all Letters of Credit
outstanding at such time, (B) the aggregate principal amount of all Letter of
Credit Advances made by the Issuing Bank pursuant to Section 2.04(c) and
outstanding at such time, (C) the aggregate principal amount of all Swing Line
Advances made by the Swing Line Bank pursuant to Section 2.01(b) and outstanding
at such time, and (D) the aggregate principal amount of all Competitive Bid
Advances outstanding at such time.
"US Dollars" and the "$" sign each mean the lawful money of the United
States of America.
"USL" means USL Acquisition Corp., a Delaware corporation and wholly-owned
Subsidiary of Paxar.
"Voting Stock" means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.
"Warrant Agreement" means the Warrant Agreement dated as of March 3, 1997
between Paxar and Odyssey Partners, L.P., as the same may be amended, modified
or otherwise supplemented from time to time in accordance with the terms of this
Agreement.
SECTION 1.02. Computation of Time Periods. In this Agreement in the computation
of periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles consistent with those applied in the preparation of the financial
statements referred to in Section 4.01(e) ("GAAP").
14
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances. (a) The Revolving Credit Advances. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "Revolving Credit Advance") to each Borrower from time to time
on any Business Day during the period from the Effective Date until the
Termination Date in an amount for each such Revolving Credit Advance (determined
in the case of any Revolving Credit Advance denominated in a Primary Currency by
reference to the Equivalent thereof in US Dollars on such Business Day) not to
exceed such Lender's Unused Revolving Credit Commitment at such time; provided,
however, that, after giving effect to such Revolving Credit Borrowing, the sum
of (x) the aggregate principal amount of all Revolving Credit Advances, Swing
Line Advances, Letter of Credit Advances and Competitive Bid Advances made
hereunder and outstanding on such Business Day plus (y) the aggregate Available
Amount of all Letters of Credit outstanding on such Business Day shall not
exceed the Revolving Credit Facility on such Business Day. Each Revolving Credit
Borrowing shall be in an aggregate amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof (or the Equivalent thereof in the Primary
Currency in which such Revolving Credit Borrowing is denominated) (other than a
Borrowing the proceeds of which shall be used solely to repay or prepay in full
outstanding Swing Line Advances or outstanding Letter of Credit Advances) and
shall consist of Revolving Credit Advances of the same Type and in the same
currency made simultaneously by the Lenders ratably according to their Revolving
Credit Commitments; provided, however, that after giving effect to any Revolving
Credit Borrowing denominated in a Primary Currency, the Foreign Loan Amount on
such date shall not exceed $100,000,000. Any "Revolving Credit Advances"
outstanding on the Effective Date under the Existing Credit Agreement shall be
Revolving Credit Advances for all purposes hereunder and under the other Loan
Documents. Within the limits of each Lender's Commitment, the Borrowers may
borrow under this Section 2.01, prepay pursuant to Section 2.11 and reborrow
under this Section 2.01.
(b) The Swing Line Advances. Paxar may request the Swing Line Bank to
make, and the Swing Line Bank shall make, on the terms and conditions
hereinafter set forth, Swing Line Advances to Paxar from time to time on any
Business Day during the period from the date hereof until the Termination Date
(i) in an aggregate amount not to exceed at any time outstanding $10,000,000
(the "Swing Line Facility") and (ii) in an amount for each such Swing Line
Borrowing not to exceed the aggregate of the Unused Revolving Credit Commitments
of the Lenders at such time. No Swing Line Advance shall be used for the purpose
of funding the payment of principal of any other Swing Line Advance. Each Swing
Line Borrowing shall be in an amount of $100,000 or an integral multiple of
$100,000 in excess thereof and shall be made as a Prime Rate Advance or shall
bear interest at such other interest rate, if any, as may be agreed upon by
Paxar and the Swing Line Bank. Any "Swing Line Advances" outstanding on the
Effective Date under the Existing Credit Agreement shall be Swing Line Advances
for all purposes hereunder and under the other Loan Documents. Within the limits
of the Swing Line Facility and within the limits referred to in clause (ii)
above, Paxar may borrow under this Section 2.01(b), repay pursuant to Section
2.07(c) or prepay pursuant to Section 2.11 and reborrow under this Section
2.01(b).
(c) Letters of Credit. The Issuing Bank agrees, on the terms and conditions
hereinafter set forth, to issue letters of credit (together with the SunTrust
LC, the "Letters of Credit") for the account of a Borrower from time to time on
any Business Day during the period from the date hereof until 60 days before the
Termination Date (i) in an aggregate Available Amount for all Letters of Credit
not to exceed at any time the Issuing Bank's Letter of Credit Commitment at such
time and (ii) in an Available Amount for each such Letter of Credit not to
exceed the lesser of (x) the Letter of Credit Facility at such time and (y) the
Unused Revolving Credit Commitments of the Lenders at such time. No Letter of
Credit shall have an expiration date (including all rights of the relevant
Borrower or the beneficiary to require renewal) later than the earlier of 60
days before the Termination Date and (A) in the case of a Standby Letter of
Credit (other than the SunTrust LC), one year after the date of issuance
thereof, but may by its terms be automatically renewable annually upon notice (a
"Notice of Renewal") given to the Issuing Bank and the Administrative Agent on
or prior to any date for notice of renewal set forth in such Letter of Credit
but in any event at least three Business Days prior to the date of the proposed
renewal of such Standby Letter of Credit and upon fulfillment of the applicable
conditions set forth in Article III unless such Issuing Bank has notified the
relevant Borrower (with a copy to the Administrative Agent) on or prior to the
date for notice of termination set forth in such Letter of Credit but in any
event at least 30 Business Days prior to the date of automatic renewal of its
election not to renew such Standby Letter of Credit (a "Notice of Termination"))
and (B) in the case of a Trade Letter of Credit, 60 days after the date of
issuance thereof; provided that the terms of each Standby Letter of Credit that
is automatically renewable annually shall (x) require the Issuing Bank that
issued such Standby Letter of Credit to give the beneficiary named in such
Standby Letter of Credit notice of any Notice of Termination, (y) permit such
beneficiary, upon receipt of such notice, to draw under such Standby Letter of
Credit prior to the date such Standby Letter of Credit otherwise would have been
automatically renewed and (z) not permit the expiration date (after giving
effect to any renewal) of such Standby Letter of Credit in any event to be
extended to a date later than 60 days before the Termination Date. If either a
Notice of Renewal is not given by the relevant Borrower or a Notice of
Termination is given by the Issuing Bank pursuant to the immediately preceding
sentence, such Standby Letter of Credit shall expire on the date on which it
otherwise would have been automatically renewed; provided, however, that even in
the absence of receipt of a Notice of Renewal the Issuing Bank may in its
discretion, unless instructed to the contrary by the Administrative Agent or the
relevant Borrower, deem that a Notice of Renewal had been timely delivered and
in such case, a Notice of Renewal shall be deemed to have been so delivered for
all purposes under this Agreement. Any "Letters of Credit" outstanding on the
Effective Date under the Existing Credit Agreement shall be Letters of Credit
for all purposes hereunder and under the other Loan Documents. Within the limits
of the Letter of Credit Facility, and subject to the limits referred to above,
the Borrower may request the issuance of Letters of Credit under this Section
2.01(c), repay any Letter of Credit Advances resulting from drawings thereunder
pursuant to Section 2.04(c) and request the issuance of additional Letters of
Credit under this Section 2.01(c). For the avoidance of doubt, it is understood
that SunTrust shall not issue Letters of Credit hereunder other than the
SunTrust LC.
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SECTION 2.02. Making the Advances. (a) Except as otherwise provided in Section
2.02(b) or 2.03, each Borrowing (other than a Competitive Bid Borrowing) shall
be made on notice, given not later than 12:00 Noon (New York City time) on the
third Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurocurrency Rate Advances, or the first Business Day
prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of Prime Rate Advances, by the relevant Borrower to the
Administrative Agent, which shall give to each Lender prompt notice thereof by
telecopier or telex. Each such notice of a Borrowing (a "Notice of Borrowing")
shall be by telephone, confirmed immediately in writing, or telecopier or telex
in substantially the form of Exhibit B-1 hereto, specifying therein the
requested (i) date of such Borrowing, (ii) Facility under which such Borrowing
is to be made, (iii) Type of Advances comprising such Borrowing, (iv) aggregate
amount of such Borrowing, and (v) in the case of a Borrowing consisting of
Eurocurrency Rate Advances, initial Interest Period and the currency for each
such Advance. Each Lender shall, before 12:00 Noon (New York City time) on the
date of such Borrowing, make available for the account of its Applicable Lending
Office to the Administrative Agent at the Administrative Agent's Account, in
same day funds, such Lender's ratable portion of such Borrowing. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower at the Administrative Agent's address
referred to in Section 9.02.
(b) Each Swing Line Borrowing shall be made on notice, given not later
than 12:00 Noon (New York City time) on the date of the proposed Swing Line
Borrowing, by Paxar to the Swing Line Bank and the Administrative Agent. Each
such notice of a Swing Line Borrowing (a "Notice of Swing Line Borrowing") shall
be by telephone, confirmed immediately in writing, or telex or telecopier,
specifying therein the requested (i) date of such Borrowing, (ii) amount of such
Borrowing and (iii) interest rate to be applicable to the Advances comprising
such Borrowing (which interest rate shall either be the Prime Rate or such other
interest rate as may be agreed upon by Paxar and the Swing Line Bank). The Swing
Line Bank will make the amount thereof available to the Administrative Agent at
the Administrative Agent's Account, in same day funds. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to Paxar at the Administrative Agent's address referred to in Section
9.02. Upon written demand by the Swing Line Bank, with a copy of such demand to
the Administrative Agent, each other Lender shall purchase from the Swing Line
Bank, and the Swing Line Bank shall sell and assign to each such other Lender,
such other Lender's Pro Rata Share of such outstanding Swing Line Advance as of
the date of such demand, by making available for the account of its Applicable
Lending Office to the Administrative Agent for the account of the Swing Line
Bank, by deposit to the Administrative Agent's Account, in same day funds, an
amount equal to the portion of the outstanding principal amount of such Swing
Line Advance to be purchased by such Lender. Paxar hereby agrees to each such
sale and assignment. Effective upon each such sale and assignment, each Swing
Line Advance purchased by a Lender shall be, for all purposes under this
Agreement, a Revolving Credit Advance (which shall be a Prime Rate Advance).
Upon any such assignment by the Swing Line Bank to any other Lender of a portion
of a Swing Line Advance, the Swing Line Bank represents and warrants to such
other Lender that the Swing Line Bank is the legal and beneficial owner of such
interest being assigned by it, free and clear of any liens, but makes no other
representation or warranty and assumes no responsibility with respect to such
Swing Line Advance, the Loan Documents or any Loan Party. If and to the extent
that any Lender shall not have so made the amount of such Swing Line Advance
available to the Administrative Agent, such Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Swing Line Bank until the
date such amount is paid to the Administrative Agent, at the Federal Funds Rate.
If such Lender shall pay to the Administrative Agent such amount for the account
of the Swing Line Bank on any Business Day, such amount so paid in respect of
principal shall constitute a Swing Line Advance made by such Lender on such
Business Day for purposes of this Agreement, and the outstanding principal
amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by
such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary notwithstanding, (i)
a Borrower may not select Eurocurrency Rate Advances for any Borrowing if the
aggregate amount of such Borrowing is less than $10,000,000 or if the obligation
of the Lenders to make Eurocurrency Rate Advances shall then be suspended
pursuant to Section 2.09 or 2.13 and (ii) the Eurocurrency Rate Advances may not
be outstanding as part of more than 10 separate Borrowings.
(d) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be
irrevocable and binding on the relevant Borrower. In the case of any Borrowing
that the related Notice of Borrowing specifies is to be comprised of
Eurocurrency Rate Advances, the relevant Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in such Notice of Borrowing
for such Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Advance to be made
by such Lender as part of such Borrowing when such Advance, as a result of such
failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) or (b) of this Section 2.02 and the
Administrative Agent may, in reliance upon such assumption, make available to
the appropriate Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available to
the Administrative Agent, such Lender and the appropriate Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the appropriate Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of such
Borrower, the interest rate applicable at the time to Advances comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Advance as part of such
Borrowing for purposes of this Agreement.
(f) The failure of any Lender to make the Advance to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
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SECTION 2.03. The Competitive Bid Advances. (a) Each Lender severally agrees
that Paxar may make Competitive Bid Borrowings under this Section 2.03 from time
to time on any Business Day during the period from the date hereof until the
date occurring 30 days prior to the Termination Date in the manner set forth
below; provided that, following the making of each Competitive Bid Borrowing,
(x) the aggregate amount of the Competitive Bid Advances then outstanding shall
not exceed $60,000,000 and (y) the sum of the aggregate principal amount of the
Revolving Credit Advances, the Swing Line Advances, the Letter of Credit
Advances and the Competitive Bid Advances then outstanding plus the aggregate
Available Amount of all Letters of Credit outstanding at such time shall not
exceed the aggregate amount of the Revolving Credit Commitments of the Lenders.
(i) Paxar may request a Competitive Bid Borrowing under this
Section 2.03 by delivering to the Administrative Agent, by telecopier or telex,
a notice of a Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit B-2 hereto, specifying therein
the requested (v) date of such proposed Competitive Bid Borrowing, (w) aggregate
amount of such proposed Competitive Bid Borrowing, (x) in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances, the Interest Period
for and the maturity date of such LIBO Rate Advance, or in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances, maturity date for
repayment of each Fixed Rate Advance to be made as part of such Competitive Bid
Borrowing (which maturity date may not be earlier than the date occurring 7 days
after the date of such Competitive Bid Borrowing or later than the earlier of
(I) 180 days after the date of such Competitive Bid Borrowing and (II) the
Termination Date), (y) interest payment date or dates relating thereto, and (z)
other terms (if any) to be applicable to such Competitive Bid Borrowing, not
later than 10:00 A.M. (New York City time) (A) at least one Business Day prior
to the date of the proposed Competitive Bid Borrowing, if Paxar shall specify in
the Notice of Competitive Bid Borrowing that the rates of interest to be offered
by the Lenders shall be fixed rates per annum (the Advances comprising any such
Competitive Bid Borrowing being referred to herein as "Fixed Rate Advances") and
(B) at least five Business Days prior to the date of the proposed Competitive
Bid Borrowing, if Paxar shall instead specify in the Notice of Competitive Bid
Borrowing that the rates of interest be offered by the Lenders are to be based
on the LIBO Rate (the Advances comprising such Competitive Bid Borrowing being
referred to herein as "LIBO Rate Advances"). Each Notice of Competitive Bid
Borrowing shall be irrevocable and binding on Paxar. The Administrative Agent
shall in turn promptly notify each Lender of each request for a Competitive Bid
Borrowing received by it from Paxar by sending such Lender a copy of the related
Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Advances to Paxar
as part of such proposed Competitive Bid Borrowing at a rate or rates of
interest specified by such Lender in its sole discretion, by notifying the
Administrative Agent (which shall give prompt notice thereof to Paxar), before
9:30 A.M. (New York City time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and before 10:00 A.M. (New York City time) three Business Days before
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances, of the minimum
amount and maximum amount of each Competitive Bid Advance which such Lender
would be willing to make as part of such proposed Competitive Bid Borrowing
(which amounts may, subject to the proviso to the first sentence of this Section
2.03(a), exceed such Lender's Commitment, if any), the rate or rates of interest
therefor and such Lender's Applicable Lending Office with respect to such
Competitive Bid Advance; provided that if the Administrative Agent in its
capacity as a Lender shall, in its sole discretion, elect to make any such
offer, it shall notify Paxar of such offer at least 30 minutes before the time
and on the date on which notice of such election is to be given to the
Administrative Agent by the other Lenders. If any Lender shall elect not to make
such an offer, such Lender shall so notify the Administrative Agent, before
10:00 A.M. (New York City time) on the date on which notice of such election is
to be given to the Administrative Agent by the other Lenders, and such Lender
shall not be obligated to, and shall not, make any Competitive Bid Advance as
part of such Competitive Bid Borrowing; provided that the failure by any Lender
to give such notice shall not cause such Lender to be obligated to make any
Competitive Bid Advance as part of such proposed Competitive Bid Borrowing.
(iii)Paxar shall, in turn, before 10:30 A.M. (New York City
time) on the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances and before 11:00
A.M. (New York City time) three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting
of LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by giving the
Administrative Agent notice to that effect, or
(y) accept one or more of the offers made by any Lender
or Lenders pursuant to paragraph (ii) above, in its sole
discretion, by giving notice to the Administrative Agent of the
amount of each Competitive Bid Advance (which amount shall be
equal to or greater than the minimum amount, and equal to or
less than the maximum amount, notified to Paxar by the
Administrative Agent on behalf of such Lender for such
Competitive Bid Advance pursuant to paragraph (ii) above) to be
made by each Lender as part of such Competitive Bid Borrowing,
and reject any remaining offers made by Lenders pursuant to
paragraph (ii) above by giving the Administrative Agent notice
to that effect. Paxar shall accept the offers made by any Lender
or Lenders to make Competitive Bid Advances in order of the
lowest to the highest rates of interest offered by such Lenders.
If two or more Lenders have offered the same interest rate, the
amount to be borrowed at such interest rate will be allocated
among such Lenders in proportion to the amount that each such
Lender offered at such interest rate.
(iv) If Paxar notifies the Administrative Agent that such
Competitive Bid Borrowing is canceled pursuant to paragraph (iii)(x) above, the
Administrative Agent shall give prompt notice thereof to the Lenders and such
Competitive Bid Borrowing shall not be made.
(v) If Paxar accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, the Administrative Agent
shall in turn promptly notify (A) each Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount of such
Competitive Bid Borrowing and whether or not any offer or offers made by such
Lender pursuant to paragraph (ii) above have been accepted by Paxar, (B) each
Lender that is to make a Competitive Bid Advance as part of such Competitive Bid
Borrowing, of the amount of each Competitive Bid Advance to be made by such
Lender as part of such Competitive Bid Borrowing, and (C) each Lender that is to
make a Competitive Bid Advance as part of such Competitive Bid Borrowing, upon
receipt, that the Administrative Agent has received forms of documents appearing
to fulfill the applicable conditions set forth in Article III. Each Lender that
is to make a Competitive Bid Advance as part of such Competitive Bid Borrowing
shall, before 1:00 P.M. (New York City time) on the date of such Competitive Bid
Borrowing specified in the notice received from the Administrative Agent
pursuant to clause (A) of the preceding sentence or any later time when such
Lender shall have received notice from the Administrative Agent pursuant to
clause (C) of the preceding sentence, make available for the account of its
Applicable Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, such Lender's portion of such Competitive
Bid Borrowing. Upon fulfillment of the applicable conditions set forth in
Article III and after receipt by the Administrative Agent of such funds, the
Administrative Agent will make such funds available to Paxar at the
Administrative Agent's address referred to in Section 9.02. Promptly after each
Competitive Bid Borrowing the Administrative Agent will notify each Lender of
the amount of the Competitive Bid Borrowing and the Unused Revolving Credit
Commitments of the Lenders after giving effect to such Competitive Bid
Borrowing.
(vi) If Paxar notifies the Administrative Agent that it accepts
one or more of the offers made by any Lender or Lenders pursuant to paragraph
(iii)(y) above, such notice of acceptance shall be irrevocable and binding on
Paxar. Paxar shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before the
date specified in the related Notice of Competitive Bid Borrowing for such
Competitive Bid Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid Borrowing when
such Competitive Bid Advance, as a result of such failure, is not made on such
date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each Competitive Bid Borrowing, the Borrowers shall be
in compliance with the limitations set forth in the proviso to the first
sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this Section 2.03,
Paxar may from time to time borrow under this Section 2.03, repay or prepay
pursuant to subsection (d) below, and reborrow under this Section 2.03, provided
that a Competitive Bid Borrowing shall not be made within three Business Days of
the date of any other Competitive Bid Borrowing.
(d) Paxar shall repay to the Administrative Agent for the account of each
Lender that has made a Competitive Bid Advance, on the maturity date of each
Competitive Bid Advance (such maturity date being that specified by Paxar for
repayment of such Competitive Bid Advance in the related Notice of Competitive
Bid Borrowing delivered pursuant to subsection (a)(i) above and provided in the
Competitive Bid Note evidencing such Competitive Bid Advance), the then unpaid
principal amount of such Competitive Bid Advance. Paxar shall have no right to
prepay any principal amount of any Competitive Bid Advance unless, and then only
on the terms, specified by Paxar for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above and set forth in the Competitive Bid Note evidencing such Competitive Bid
Advance.
17
(e) Paxar shall pay interest on the unpaid principal amount of each
Competitive Bid Advance from the date of such Competitive Bid Advance to the
date the principal amount of such Competitive Bid Advance is repaid in full, at
the rate of interest for such Competitive Bid Advance specified by the Lender
making such Competitive Bid Advance in its notice with respect thereto delivered
pursuant to subsection (a)(ii) above, payable on the interest payment date or
dates specified by Paxar for such Competitive Bid Advance in the related Notice
of Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above, as
provided in the Competitive Bid Note evidencing such Competitive Bid Advance.
Upon the occurrence and during the continuance of an Event of Default, Paxar
shall pay interest on the amount of unpaid principal of and interest on each
Competitive Bid Advance owing to a Lender, payable in arrears on the date or
dates interest is payable thereon, at a rate per annum equal at all times to 2%
per annum above the rate per annum required to be paid on such Competitive Bid
Advance under the terms of the Competitive Bid Note evidencing such Competitive
Bid Advance unless otherwise agreed in such Competitive Bid Note.
(f) The indebtedness of Paxar resulting from each Competitive Bid Advance
shall be evidenced by a separate Competitive Bid Note of Paxar payable to the
order of the Lender making such Competitive Bid Advance.
(g) Upon delivery of each Notice of Competitive Bid Borrowing, Paxar shall
pay a non-refundable fee of $3,500 to the Administrative Agent for its own
account.
SECTION 2.04. Issuance of and Drawings and Reimbursement Under Letters of
Credit. (a) Request for Issuance. Each Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M. (New York City time) on the fifth
Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the relevant Borrower to the Issuing Bank, which shall give to the
Administrative Agent and each Lender prompt notice thereof by telex or
telecopier. Each such notice of issuance of a Letter of Credit (a "Notice of
Issuance") shall be by telephone, confirmed immediately in writing, or telex or
telecopier, specifying therein the requested (A) date of such issuance (which
shall be a Business Day), (B) Available Amount of such Letter of Credit, (C)
expiration date of such Letter of Credit, (D) name and address of the
beneficiary of such Letter of Credit and (E) form of such Letter of Credit, and
shall be accompanied by such application and agreement for letter of credit as
the Issuing Bank may specify to such Borrower for use in connection with such
requested Letter of Credit (a "Letter of Credit Agreement"). If (x) the
requested form of such Letter of Credit is acceptable to the Issuing Bank in its
sole discretion and (y) it has not received written notice of objection to such
issuance from the Required Lenders, the Issuing Bank will, upon fulfillment of
the applicable conditions set forth in Article III, make such Letter of Credit
available to the relevant Borrower at its office referred to in Section 9.02 or
as otherwise agreed with such Borrower in connection with such issuance. In the
event and to the extent that the provisions of any Letter of Credit Agreement
shall conflict with this Agreement, the provisions of this Agreement shall
govern.
(b) Letter of Credit Reports. The Issuing Bank shall furnish (A) to the
Administrative Agent and each Lender on the first Business Day of each month a
written report summarizing issuance and expiration dates of Letters of Credit
issued during the preceding month and drawings during such month under all
Letters of Credit and (B) to the Administrative Agent and each Lender on the
first Business Day of each calendar quarter a written report setting forth the
average daily aggregate Available Amount during the preceding calendar quarter
of all Letters of Credit.
(c) Drawing and Reimbursement. The payment by the Issuing Bank of a draft
drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of a Letter of Credit Advance, which
shall be a Prime Rate Advance, in the amount of such draft. Upon written demand
by the Issuing Bank, with a copy of such demand to the Administrative Agent,
each Lender shall purchase from the Issuing Bank, and the Issuing Bank shall
sell and assign to each such Lender, such Lender's Pro Rata Share of such
outstanding Letter of Credit Advance as of the date of such purchase, by making
available for the account of its Applicable Lending Office to the Administrative
Agent for the account of the Issuing Bank, by deposit to the Administrative
Agent's Account, in same day funds, an amount equal to the portion of the
outstanding principal amount of such Letter of Credit Advance to be purchased by
such Lender. Promptly after receipt thereof, the Administrative Agent shall
transfer such funds to the Issuing Bank. Each Borrower hereby agrees to each
such sale and assignment. Each Lender agrees to purchase its Pro Rata Share of
an outstanding Letter of Credit Advance on (i) the Business Day on which demand
therefor is made by the Issuing Bank, provided notice of such demand is given
not later than 11:00 A.M. (New York City time) on such Business Day or (ii) the
first Business Day next succeeding such demand if notice of such demand is given
after such time. Upon any such assignment by the Issuing Bank to any other
Lender of a portion of a Letter of Credit Advance, the Issuing Bank represents
and warrants to such other Lender that the Issuing Bank is the legal and
beneficial owner of such interest being assigned by it, free and clear of any
liens, but makes no other representation or warranty and assumes no
responsibility with respect to such Letter of Credit Advance, the Loan Documents
or any Loan Party. If and to the extent that any Lender shall not have so made
the amount of such Letter of Credit Advance available to the Administrative
Agent, such Lender agrees to pay to the Administrative Agent forthwith on demand
such amount together with interest thereon, for each day from the date of demand
by the Issuing Bank until the date such amount is paid to the Administrative
Agent, at the Federal Funds Rate for its account or the account of the Issuing
Bank, as applicable. If such Lender shall pay to the Administrative Agent such
amount for the account of the Issuing Bank on any Business Day, such amount so
paid in respect of principal shall constitute a Letter of Credit Advance made by
such Lender on such Business Day for purposes of this Agreement, and the
outstanding principal amount of the Letter of Credit Advance made by the Issuing
Bank shall be reduced by such amount on such Business Day.
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(d) Failure to Make Letter of Credit Advances. The failure of any Lender
to make the Letter of Credit Advance to be made by it on the date specified in
Section 2.04(c) shall not relieve any other Lender of its obligation hereunder
to make its Letter of Credit Advance on such date, but no Lender shall be
responsible for the failure of any other Lender to make the Letter of Credit
Advance to be made by such other Lender on such date.
SECTION 2.05. Fees. (a) Revolving Credit Facility Fee. Paxar agrees to pay to
the Administrative Agent for the account of each Lender (other than the
Designated Bidders) a facility fee on the aggregate amount of such Lender's
Revolving Credit Commitment from the Effective Date in the case of each Initial
Lender and from the later of the Effective Date and the effective date specified
in the Assignment and Acceptance pursuant to which it became a Lender in the
case of each other Lender until the Termination Date at a rate per annum equal
to the Applicable Percentage in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December,
commencing [September 30], 2002, and on the Termination Date.
(b) Utilization Fee. Paxar agrees to pay to the Administrative Agent for
the account of each Lender a utilization fee on the aggregate amount of the
outstanding Advances owing to such Lender for each day on which the aggregate
amount of all outstanding Advances exceeds 50% of the aggregate Commitments, at
a rate per annum equal to 0.125%, payable in arrears quarterly on the last day
of each March, June, September and December of any such period, and, if
applicable, on the Termination Date.
(c) Letter of Credit Fees, Etc. (i) Paxar shall pay to the Administrative
Agent for the account of each Lender a commission, payable in arrears quarterly
on the last Business Day of each March, June, September and December, commencing
[September 30], 2002, and on the earliest to occur of the full drawing,
expiration, termination or cancellation of any such Letter of Credit and on the
Termination Date, on such Lender's Pro Rata Share of the average daily aggregate
Available Amount during such quarter of all Letters of Credit outstanding from
time to time at the Applicable Margin then in effect for the Revolving Credit
Facility.
(ii) Paxar shall pay to the Issuing Bank, for its own account,
such commissions, issuance fees, fronting fees, transfer fees and other fees and
charges in connection with the issuance or administration of each Letter of
Credit as Paxar and the Issuing Bank shall agree.
(d) Administrative Agent's Fees. Paxar shall pay to the Administrative
Agent for its own account such fees as may from time to time be agreed between
Paxar and the Administrative Agent.
SECTION 2.06. Termination or Reduction of the Commitments. The Borrower shall
have the right, upon at least five Business Days' notice to the Administrative
Agent, to terminate in whole or reduce ratably in part the Unused Revolving
Credit Commitments of the Lenders, provided that each partial reduction shall be
in the aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in
excess thereof and provided further that the aggregate amount of the Revolving
Credit Commitments of the Lenders shall not be reduced to an amount that is less
than an amount equal to the sum of (x) the aggregate principal amount of the
Competitive Bid Advances then outstanding and (y) the aggregate Available Amount
of all Letters of Credit then outstanding.
SECTION 2.07. Repayment of Advances. (a) Revolving Credit Advances. Each
Borrower shall repay to the Administrative Agent for the ratable account of the
Lenders on the Termination Date the aggregate principal amount of the Revolving
Credit Advances then outstanding.
(b) Swing Line Advances. Paxar shall repay to the Administrative Agent for
the account of the Swing Line Bank and each other Lender that has made a Swing
Line Advance the outstanding principal amount of each Swing Line Advance made by
each of them on the earliest of (i) the date repayment is demanded by the Swing
Line Bank, (ii) 60 days after such Swing Line Advance is made and (iii) the
Termination Date.
(c) Letter of Credit Advances. (i) The relevant Borrower shall repay to
the Administrative Agent for the account of the Issuing Bank and each other
Lender that has made a Letter of Credit Advance on the earlier of demand and the
Termination Date the outstanding principal amount of each Letter of Credit
Advance made by each of them.
(ii) The Obligations of each Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument relating to any
Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances (it being understood
that any such payment by a Borrower is without prejudice to, and does not
constitute a waiver of, any rights such Borrower might have or might acquire as
a result of the payment by the Issuing Bank of any draft or the reimbursement by
such Borrower thereof):
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C Related Documents");
(B) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations of any Borrower
in respect of any L/C Related Document or any other amendment or waiver
of or any consent to departure from all or any of the L/C Related
Documents;
(C) 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 a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank or
any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from the Guaranty, the Subsidiary Guaranty or any other
guarantee, for all or any of the Obligations of a Borrower in respect of
the L/C Related Documents; or
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(d) any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing, including, without limitation, any other circumstance
that might otherwise constitute a defense available to, or a discharge of, a
Borrower or a guarantor.
SECTION 2.08. Interest. (a) Scheduled Interest. Each Borrower shall pay interest
on the unpaid principal amount of each Advance (other than Competitive Bid
Advances or Swing Line Advances that are not Prime Rate Advances) owing to each
Lender by such Borrower from the date of such Advance until such principal
amount shall be paid in full, at the following rates per annum:
(i) Prime Rate Advances. During such periods as such Advance is
a Prime Rate Advance, a rate per annum equal at all times to the Prime Rate in
effect from time to time, payable in arrears quarterly on the last day of each
March, June, September and December during such periods and on the date such
Prime Rate Advance shall be Converted or paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such
Advance is a Eurocurrency Rate Advance, a rate per annum equal at all times
during each Interest Period for such Advance to the sum of (x) the Eurocurrency
Rate for such Interest Period for such Advance plus (y) the Applicable Margin in
effect on the first day of such Interest Period, payable in arrears on the last
day of such Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period every
three months from the first day of such Interest Period and on the date such
Eurocurrency Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of an
Event of Default, each Borrower shall pay interest on (i) the unpaid principal
amount of each Advance (other than a Competitive Bid Advance) owing to each
Lender by such Borrower, payable in arrears on the dates referred to in clause
(a)(i) or (a)(ii) above, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on such Advance pursuant to clause
(a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law, the
amount of any interest, fee or other amount payable hereunder that is not paid
when due, from the date such amount shall be due until such amount shall be paid
in full, payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on Prime Rate Advances pursuant to clause (a)(i)
above.
(c) Additional Interest on Eurocurrency Rate Advances. Each Borrower shall
pay to each Lender, so long as and to the extent such Lender shall be required
under regulations of the Board of Governors of the Federal Reserve System to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid principal
amount of each Eurocurrency Rate Advance of such Lender, from the date of such
Eurocurrency Rate Advance until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder obtained by
subtracting (a) the Eurocurrency Rate for the applicable Interest Period for
such Eurocurrency Rate Advance from (b) the rate obtained by dividing such
Eurocurrency Rate by a percentage equal to 100% minus the Eurocurrency Rate
Reserve Percentage of such Lender for such Interest Period, payable on each date
on which interest is otherwise payable on such Eurocurrency Rate Advance. Such
Lender shall as soon as practicable provide notice to the Administrative Agent
and the Borrowers of any such additional interest arising in connection with any
such Eurocurrency Rate Advance, which notice shall be conclusive and binding,
absent manifest error.
SECTION 2.09. Interest Rate Determination. (a) The Administrative Agent shall
give prompt notice to the Borrowers and the Lenders of the applicable interest
rate determined by the Administrative Agent for purposes of Section 2.08(a)(i)
or (ii).
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(b) If, with respect to any Eurocurrency Rate Advances, the Required
Lenders notify the Administrative Agent that the Eurocurrency Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Required Lenders of making, funding or maintaining their respective Eurocurrency
Rate Advances for such Interest Period, the Administrative Agent shall forthwith
so notify the Borrowers and the Lenders, whereupon (i) each Eurocurrency Rate
Advance will automatically, on the last day of the then existing Interest Period
therefor, (A) if such Eurocurrency Rate Advances are denominated in US Dollars,
Convert into Prime Rate Advances and (B) if such Eurocurrency Rate Advances are
denominated in a Primary Currency, be exchanged for an Equivalent amount of US
Dollars and converted into Prime Rate Advances, and (ii) the obligation of the
Lenders to make, or to Convert Revolving Credit Advances into, Eurocurrency Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrowers and the Lenders that the circumstances causing such suspension no
longer exist.
(c) If a Borrower shall fail to select the duration of any Interest Period
for any Eurocurrency Rate Advances in accordance with the provisions contained
in the definition of "Interest Period" in Section 1.01, the Administrative Agent
will forthwith so notify such Borrower and the Lenders and such Advances will
automatically, on the last day of the then existing Interest Period therefor,
(i) if such Eurocurrency Rate Advances are denominated in US Dollars, Convert
into Prime Rate Advances and (ii) if such Eurocurrency Rate Advances are
denominated in a Primary Currency, be exchanged for an Equivalent amount of US
Dollars and Converted into Prime Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $5,000,000, such Advances shall
automatically (i) if such Eurocurrency Rate Advances are denominated in US
Dollars, Convert into Prime Rate Advances and (ii) if such Eurocurrency Rate
Advances are denominated in a Primary Currency, be exchanged for an Equivalent
amount of US Dollars and Converted into Prime Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurocurrency Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, (A) if such Eurocurrency Rate
Advances are denominated in US Dollars, Convert into Prime Rate Advances and (B)
if such Eurocurrency Rate Advances are denominated in a Primary Currency, be
exchanged for an Equivalent amount of US Dollars and Converted into Prime Rate
Advances and (ii) the obligation of the Lenders to make, or to Convert Advances
into, Eurocurrency Rate Advances shall be suspended.
SECTION 2.10. Conversion of Advances. Each Borrower may on any Business Day,
upon notice given to the Administrative Agent not later than 12:00 Noon (New
York City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.09 and 2.13, Convert all
Advances owing by such Borrower (other than Competitive Bid Advances) of one
Type comprising the same Borrowing into Advances (other than Competitive Bid
Advances) of the other Type, so long as, after giving effect to any such
Conversion, each such Borrowing is comprised of Advances denominated in the same
currency and, in the case of any Borrowing comprised of Eurocurrency Rate
Advances, having the same Interest Period; provided, however, that (w) no
Eurocurrency Rate Advances of one currency shall be Converted into Eurocurrency
Rate Advances of another currency, (x) any Conversion of Eurocurrency Rate
Advances into Prime Rate Advances shall be made only on the last day of an
Interest Period for such Eurocurrency Rate Advances, (y) any Conversion of Prime
Rate Advances into Eurocurrency Rate Advances shall be in an amount not less
than the minimum amount specified in Section 2.02(c) and (z) no Conversion of
any such Advances shall result in more separate Borrowings than permitted under
Section 2.02(c). Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Advances to
be Converted, and (iii) if such Conversion is into Eurocurrency Rate Advances,
the currency of and the duration of the initial Interest Period for each such
Advance. Each notice of Conversion shall be irrevocable and binding on the
relevant Borrower.
SECTION 2.11. Prepayments. (a) Optional. Each Borrower may, upon at least one
Business Day's notice in the case of Prime Rate Advances and three Business
Days' notice in the case of Eurocurrency Rate Advances, in each case to the
Administrative Agent stating the proposed date and aggregate principal amount of
the prepayment, and if such notice is given such Borrower shall, prepay the
outstanding principal amount of the Advances owing by such Borrower and
comprising part of the same Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof (or the Equivalent thereof in the Primary Currency in which such
Revolving Credit Borrowing is denominated, determined on the date the related
notice of prepayment is given) and (y) in the event of any such prepayment of a
Eurocurrency Rate Advance, such Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 9.04(c).
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(b) Mandatory. (i) Paxar shall, on each Business Day, prepay an aggregate
principal amount of the Revolving Credit Advances comprising part of the same
Borrowings, the Letter of Credit Advances and the Swing Line Advances equal to
the amount by which (A) the sum of the aggregate principal amount of (u) the
Revolving Credit Advances denominated in US Dollars, plus (v) the Equivalent on
such day of the Revolving Credit Advances denominated in Primary Currencies,
plus (w) the Letter of Credit Advances, plus (x) the aggregate Available Amount
of all Letters of Credit then outstanding, plus (y) the Swing Line Advances plus
(z) the Competitive Bid Advances then outstanding exceeds (B) the Revolving
Credit Facility.
(ii) Prepayments of the Revolving Credit Facility made pursuant
to clause (i) above shall be first applied to prepay Letter of Credit Advances
then outstanding until such Advances are paid in full, second applied to prepay
Swing Line Advances then outstanding until such Advances are paid in full and
third applied to prepay Revolving Credit Advances then outstanding comprising
part of the same Borrowings until such Advances are paid in full.
(iii) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
SECTION 2.12. Increased Costs. (a) If, due to either (i) the introduction of or
any change in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the cost to any Lender Party of agreeing to make or making,
funding or maintaining Eurocurrency Rate Advances or LIBO Rate Advances
(excluding for purposes of this Section 2.12 any such increased costs resulting
from (i) Taxes or Other Taxes (as to which Section 2.15 shall govern) and (ii)
changes in the basis of taxation of overall net income or overall gross income
by the United States or by the foreign jurisdiction or state under the laws of
which such Lender Party is organized or has its Applicable Lending Office or any
political subdivision thereof), then Paxar shall from time to time, upon demand
by such Lender Party (with a copy of such demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Lender Party additional
amounts sufficient to compensate such Lender Party for such increased cost. A
certificate as to the amount of such increased cost, submitted to Paxar and the
Administrative Agent by such Lender Party, shall be conclusive and binding for
all purposes, absent manifest error.
(b) If any Lender Party determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender Party or any corporation controlling such Lender Party and that the
amount of such capital is increased by or based upon the existence of such
Lender Party's commitment to lend or to issue or participate in Letters of
Credit hereunder and other commitments of this type or the issuance or
maintenance of, or participation in, the Letters of Credit (or similar
contingent obligations), then, upon demand by such Lender Party (with a copy of
such demand to the Administrative Agent), Paxar shall pay to the Administrative
Agent for the account of such Lender Party, from time to time as specified by
such Lender Party, additional amounts sufficient to compensate such Lender Party
or such corporation in the light of such circumstances, to the extent that such
Lender Party reasonably determines such increase in capital to be allocable to
the existence of such Lender Party's commitment to lend or to issue or
participate in Letters of Credit hereunder or to the issuance or maintenance of,
or participation in, any Letters of Credit. A certificate as to such amounts
submitted to Paxar and the Administrative Agent by such Lender Party shall be
conclusive and binding for all purposes, absent manifest error.
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SECTION 2.13. Illegality. Notwithstanding any other provision of this Agreement,
if any Lender shall notify the Administrative Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurocurrency Lending Office to perform its
obligations hereunder to make Eurocurrency Rate Advances or LIBO Rate Advances
or to fund or maintain Eurocurrency Rate Advances or LIBO Rate Advances
hereunder, (i) each Eurocurrency Rate Advance or LIBO Rate Advance, as the case
may be, will automatically, upon such demand, be exchanged for an Equivalent
amount of US Dollars and Converted into a Prime Rate Advance or an Advance that
bears interest at the rate set forth in Section 2.08(a)(i), as the case may be,
and (ii) the obligation of the Lenders to make Eurocurrency Rate Advances or
LIBO Rate Advances or to Convert Prime Rate Advances into Eurocurrency Rate
Advances shall be suspended until the Administrative Agent shall notify Paxar
and the Lenders that the circumstances causing such suspension no longer exist.
SECTION 2.14. Payments and Computations. (a) Each Borrower shall make each
payment required to be made by it hereunder and under the Notes not later than
12:00 Noon (New York City time) on the day when due in like funds as advanced to
the Administrative Agent at the Administrative Agent's Account in same day
funds. The Administrative Agent will promptly thereafter cause to be distributed
like funds relating to the payment of principal or interest or facility or
Letter of Credit fees ratably (other than amounts payable pursuant to Section
2.03, 2.12, 2.15 or 9.04(c)) to the Lender Parties for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender Party to such Lender Party for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 9.07(g), from and after the effective date
specified in such Assignment and Acceptance, the Administrative Agent shall make
all payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender Party assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) Each Borrower hereby authorizes each Lender Party, if and to the
extent payment owed to such Lender Party is not made when due hereunder or under
any Note held by such Lender Party, to charge from time to time against any or
all of such Borrower's accounts with such Lender Party any amount so due.
(c) All computations of interest based on the Prime Rate shall be made by
the Administrative Agent on the basis of a year of 365 or 366 days, as the case
may be, and all computations of interest based on the Eurocurrency Rate or the
Federal Funds Rate and of Facility and Letter of Credit fees shall be made by
the Administrative Agent on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or facility fees are payable.
Each determination by the Administrative Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or facility or Letter of
Credit fee, as the case may be; provided, however, that, if such extension would
cause payment of interest on or principal of Eurocurrency Rate Advances or LIBO
Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from a
Borrower prior to the date on which any payment is due to any Lender Party
hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender Party on
such due date an amount equal to the amount then due such Lender Party. If and
to the extent a Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender Party shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender Party together with
interest thereon, for each day from the date such amount is distributed to such
Lender Party until the date such Lender Party repays such amount to the
Administrative Agent, at the Federal Funds Rate.
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SECTION 2.15. Taxes. (a) Any and all payments by a Borrower hereunder or under
the Notes shall be made, in accordance with Section 2.14, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender Party and the Administrative Agent, taxes
imposed on its overall net income, and franchise taxes imposed on it in lieu of
overall net income taxes, by the jurisdiction under the laws of which such
Lender Party or the Administrative Agent (as the case may be) is organized or
any political subdivision thereof and, in the case of each Lender Party, taxes
imposed on its overall net income, and franchise taxes imposed on it in lieu of
overall net income taxes, by the jurisdiction of such Lender Party's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being hereinafter referred to
as "Taxes"). If a Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder or under any Note to any Lender Party or
the Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.15) such Lender Party
or the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such Borrower
shall make such deductions and (iii) such Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, each Borrower shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) Each Borrower shall indemnify each Lender Party and the Administrative
Agent for and hold it harmless against the full amount of Taxes and Other Taxes
(including, without limitation, taxes of any kind imposed by any jurisdiction on
amounts payable under this Section 2.15) imposed on or paid by such Lender Party
or the Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be made within 30 days from the date such Lender
Party or the Administrative Agent (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes, the relevant
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 9.02, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes by or on behalf
of a Borrower through an account or branch outside the United States or by or on
behalf of a Borrower by a payor that is not a United States person, if such
Borrower determines that no Taxes are payable in respect thereof, such Borrower
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender or the Initial Issuing Bank, as the
case may be, and on the date of the Assignment and Acceptance pursuant to which
it becomes a Lender Party in the case of each other Lender Party, and from time
to time thereafter as requested in writing by a Borrower (but only so long as
such Lender Party remains lawfully able to do so), shall provide each of the
Administrative Agent and the Borrower with two original Internal Revenue Service
Forms W-8BEN or W-8ECI, as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender Party is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes. If the form provided by a
Lender Party at the time such Lender Party first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender Party provides the appropriate forms certifying
that a lesser rate applies, whereupon withholding tax at such lesser rate only
shall be considered excluded from Taxes for periods governed by such form;
provided, however, that, if at the date of the Assignment and Acceptance
pursuant to which a Lender Party assignee becomes a party to this Agreement, the
Lender Party assignor was entitled to payments under subsection (a) in respect
of United States withholding tax with respect to interest paid at such date,
then, to such extent, the term Taxes shall include (in addition to withholding
taxes that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
Lender Party assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof
by Internal Revenue Service Form W-8BEN or W-8ECI, that the applicable Lender
Party reasonably considers to be confidential, such Lender Party, if legally
required to do so, shall give notice thereof to the Borrower and shall not be
obligated to include in such form or document such confidential information.
(f) For any period with respect to which a Lender Party required to do so
has failed to provide a Borrower with the appropriate form described in Section
2.15(e) (other than if such failure is due to a change in law occurring
subsequent to the date on which a form originally was required to be provided,
or if such form otherwise is not required under subsection (e) above), such
Lender Party shall not be entitled to indemnification under Section 2.15(a) or
(c) with respect to Taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender Party become subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower shall
take such steps as such Lender Party shall reasonably request to assist the
Lender Party to recover such Taxes.
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SECTION 2.16. Sharing of Payments, Etc. If any Lender Party shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) (a) on account of obligations owing to such Lender Party
hereunder and under the Notes in excess of its ratable share of payments on
account of the Obligations owing to all Lender Parties hereunder and under the
Notes at such time obtained by all the Lender Parties at such time, such Lender
Party shall forthwith purchase from the other Lender Parties such participations
in the Obligations owing to them as shall be necessary to cause such purchasing
Lender Party to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender Party, such purchase from each Lender
Party shall be rescinded and such Lender Party shall repay to the purchasing
Lender Party the purchase price to the extent of such recovery together with an
amount equal to such Lender Party's ratable share (according to the proportion
of (i) the amount of such Lender Party's required repayment to (ii) the total
amount so recovered from the purchasing Lender Party) of any interest or other
amount paid or payable by the purchasing Lender Party in respect of the total
amount so recovered. Each Borrower agrees that any Lender Party so purchasing a
participation from another Lender Party pursuant to this Section 2.16 may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender Party were the direct creditor of such Borrower in the amount of
such participation.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be available
(and Paxar agrees that it and any other Borrower shall use such proceeds) solely
for general corporate purposes of Paxar and its Subsidiaries.
SECTION 2.18. Additional Borrowers. Upon the execution and delivery by any
Subsidiary of Paxar acceptable to the Required Lenders in their reasonable
judgment of a supplement to this Agreement, in substantially the form of Exhibit
E hereto (a "Credit Agreement Supplement"), (i) such Person shall be referred to
as a "Borrower" and shall be and become a Borrower, and each reference in this
Agreement to a "Borrower" shall also mean and be a reference to such Borrower
and each reference in any other Loan Document to a "Borrower" or a "Loan Party"
shall also mean and be a reference to such Borrower, and (ii) such Person shall
assume all of the Obligations of a Borrower hereunder. The Administrative Agent
shall promptly notify each Lender of each such additional Borrower.
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ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01, 2.03 and
2.04. Sections 2.01, 2.03 and 2.04 of this Agreement shall become effective on
and as of the first date (the "Effective Date") on which the following
conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since December
31, 2001.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting Paxar or any of its Subsidiaries pending or threatened
before any court, governmental agency or arbitrator that (i) could be reasonably
likely to have a Material Adverse Effect or (ii) purports to adversely affect
the Facilities or the consummation of the transactions contemplated hereby.
(c) All governmental and third party consents and approvals necessary in
connection with the Facilities and the other transactions contemplated hereby
shall have been obtained (without the imposition of any conditions that are not
acceptable to the Lender Parties) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of the Lender Parties
that restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated hereby.
(d) Paxar shall have notified each Lender Party and the Administrative
Agent in writing as to the proposed Effective Date.
(e) Paxar shall have paid all accrued fees and expenses of the
Administrative Agent and the Lender Parties (including the accrued fees and
expenses of counsel to the Administrative Agent).
(f) On the Effective Date, the following statements shall be true and the
Administrative Agent shall have received for the account of each Lender Party a
certificate signed by a duly authorized officer of Paxar dated the Effective
Date, stating that:
(i) The representations and warranties contained in Section 4.01 are
correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a
Default.
(g) The Administrative Agent shall have received on or before the
Effective Date the following, each dated such day, in form and substance
satisfactory to the Administrative Agent and in sufficient copies for each
Lender Party:
(i) A certificate of the Secretary or an Assistant Secretary of Paxar
and each other Loan Party certifying the names and true signatures of the
officers of Paxar and such other Loan Party authorized to sign this
Agreement and the Notes and the other documents to be delivered hereunder.
(ii) A copy of the charter of Paxar and each amendment thereto,
certified (as of a date reasonably near the Effective Date) by the
Secretary of State of the jurisdiction of its incorporation as being a true
and correct copy thereof.
(iii) A consent executed by Paxar Capital to the amendment and
restatement of the Existing Credit Agreement, in form and substance
reasonably satisfactory to the Administrative Agent.
(iv) Certificates, in form and substance satisfactory to the Lender
Parties, attesting to the Solvency of each Loan Party after giving effect
to the Transaction and the other transactions contemplated hereby, from its
chief financial officer.
26
(v) A favorable opinion of Xxxxxx X. Xxxxx, Esq., in-house counsel for
Paxar, substantially in the form of Exhibit F-1 hereto and as to such other
matters as any Lender Party through the Administrative Agent may reasonably
request.
(vi) A favorable opinion of Snow Xxxxxx Xxxxxx P.C., counsel for
Paxar, inform and substance satisfactory to the Administrative Agent.
(vii) Evidence satisfactory to the Administrative Agent of termination
of the Letter of Credit Agreement dated as of August 1, 1999 by and between
Paxar and SunTrust.
(viii) A Guaranty Supplement in substantially the form of Exhibit A to
the Subsidiary Guaranty duly executed by each of Monarch, PIHI, USL and
Independent Machine.
SECTION 3.02. Conditions Precedent to the Initial Borrowings of Xxxxxxxxx and
Paxar UK. (a) The obligation of each Lender to make an initial Advance to
Xxxxxxxxx is subject to the Administrative Agent's receipt of a favorable
opinion of German counsel for Xxxxxxxxx, substantially in the form of Exhibit
F-2 hereto and as to such other matters as any Lender Party through the
Administrative Agent may reasonably request.
(b) The obligation of each Lender to make an initial Advance to Paxar UK
is subject to the Administrative Agent's receipt of
(i) a favorable opinion of UK counsel to Paxar UK, substantially in
the form of Exhibit F-2 hereto and as to such other matters as any Lender
Party through the Administrative Agent may reasonably request;
(ii) evidence of acceptance by Paxar of its appointment as the process
agent for Paxar UK in accordance with Section 9.13(a), substantially in the
form of Exhibit G hereto; and
(iii) a Revolving Credit Note of Paxar UK to the order of each of the
Lenders, respectively.
SECTION 3.03. Conditions Precedent to the Initial Borrowing of Each Additional
Borrower. The obligation of each Lender to make an initial Advance to each
Borrower (other than Paxar) following its designation as a Borrower hereunder
pursuant to Section 2.18 on the occasion of the initial Borrowing thereby is
subject to the Administrative Agent's receipt on or before the date of such
initial Borrowing of each of the following, in form and substance satisfactory
to the Administrative Agent and dated such date:
(a) The Credit Agreement Supplement relating to such Borrower, in
substantially the form of Exhibit E hereto.
(b) A Revolving Credit Note of such Borrower to the order of each of the
Lenders, respectively.
(c) A certificate of the Secretary or an Assistant Secretary (or person
performing similar functions) of such Borrower certifying (A) appropriate
resolutions of the board of directors (or persons performing similar functions)
of such Borrower approving this Agreement and its Revolving Credit Notes, and
all documents evidencing other necessary corporate (or equivalent) action and
governmental approvals, if any, with respect to this Agreement and its Revolving
Credit Notes (copies of which shall be attached thereto), (B) copies of the
by-laws (or the equivalent thereof) of such Borrower (copies of which shall be
attached thereto) and (C) the names and true signatures of the officers of such
Borrower authorized to sign the Credit Agreement Supplement relating to such
Borrower and its Revolving Credit Notes and the other documents to be delivered
by such Borrower hereunder.
(d) A copy of the charter or articles (or other similar organizational
document) of such Borrower, certified (as of a date reasonably near the date of
such Borrowing) as being a true and complete copy thereof by the Secretary of
State (or other appropriate governmental authority) of the jurisdiction of
organization of such Borrower or, if such certificate is not provided in the
jurisdiction of organization of such Borrower, certified (as of a date
reasonably near the date of such Borrowing) as being a true and complete copy
thereof by a duly authorized officer of such Borrower.
(e) A copy of a certificate of the Secretary of State (or other
appropriate governmental authority) of the jurisdiction of organization of such
Borrower, dated reasonably near the date of such Borrowing, certifying that such
Borrower is duly organized and in good standing (or the equivalent thereof)
under the laws of the jurisdiction of its organization.
27
(f) A certificate signed by a duly authorized officer of such Borrower,
dated as of the date of such Borrowing, certifying that such Borrower has
obtained all authorizations, consents, approvals (including, without limitation,
exchange control approvals) and licenses of any governmental authority or other
third party necessary for such Borrower to execute and deliver its Credit
Agreement Supplement and its Revolving Credit Notes and to perform its
obligations under this Agreement or any of its Revolving Credit Notes.
(g) Evidence of acceptance by Paxar of its appointment as the process
agent of such Borrower in accordance with Section 9.13(a), in substantially the
form of Exhibit G hereto.
(h) A favorable opinion of counsel for such Borrower reasonably acceptable
to the Administrative Agent, dated the date of such Borrowing, in substantially
the form of Exhibit F-2 hereto, and addressing such other matters as any Lender
Party through the Administrative Agent may reasonably request.
(i) Such other documents, opinions and other information as any Lender
Party, through the Administrative Agent, may reasonably request.
SECTION 3.04. Conditions Precedent to Each Borrowing (other than a Competitive
Bid Borrowing) and Issuance. The obligation of each Lender to make an Advance
(other than a Competitive Bid Advance, a Letter of Credit Advance made by the
Issuing Bank or a Lender pursuant to Section 2.04(c) and a Swing Line Advance
made by a Lender pursuant to Section 2.02(b)) on the occasion of each Borrowing
(other than a Competitive Bid Borrowing but including the Initial Extension of
Credit), and the obligation of the Issuing Bank to issue a Letter of Credit
(including the initial issuance) or renew a Letter of Credit and the right of a
Borrower to request a Swing Line Borrowing or the issuance or renewal of a
Letter of Credit, shall be subject to the conditions precedent that the
Effective Date shall have occurred and on the date of such Borrowing or issuance
or renewal (a) the following statements shall be true (and each of the giving of
the applicable Notice of Borrowing, Notice of Swing Line Borrowing, Notice of
Issuance or Notice of Renewal and the acceptance by the relevant Borrower of the
proceeds of such Borrowing or of such Letter of Credit or the renewal of such
Letter of Credit shall constitute a representation and warranty by Paxar and
such Borrower that on the date of such Borrowing or issuance or renewal such
statements are true):
(i) the representations and warranties contained in each Loan
Document are correct on and as of such date, before and after giving effect to
such Borrowing or issuance or renewal and to the application of the proceeds
therefrom, as though made on and as of such date other than any such
representations or warranties that, by their terms, refer to a specific date
other than the date of such Borrowing or issuance or renewal, in which case as
of such specific date, and
(ii) no event has occurred and is continuing, or would result
from such Borrowing or issuance or renewal or from the application of the
proceeds therefrom, that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender Party through the Administrative Agent may
reasonably request.
SECTION 3.05. Conditions Precedent to Each Competitive Bid Borrowing. The
obligation of each Lender that is to make a Competitive Bid Advance on the
occasion of a Competitive Bid Borrowing to make such Competitive Bid Advance as
part of such Competitive Bid Borrowing is subject to the conditions precedent
that (i) the Administrative Agent shall have received the written confirmatory
Notice of Competitive Bid Borrowing with respect thereto, (ii) on or before the
date of such Competitive Bid Borrowing, but prior to such Competitive Bid
Borrowing, the Administrative Agent shall have received a Competitive Bid Note
payable to the order of such Lender for each of the one or more Competitive Bid
Advances to be made by such Lender as part of such Competitive Bid Borrowing, in
a principal amount equal to the principal amount of the Competitive Bid Advance
to be evidenced thereby and otherwise on such terms as were agreed to for such
Competitive Bid Advance in accordance with Section 2.03, and (iii) on the date
of such Competitive Bid Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of Competitive Bid Borrowing and the
acceptance by Paxar of the proceeds of such Competitive Bid Borrowing shall
constitute a representation and warranty by such Borrower that on the date of
such Competitive Bid Borrowing such statements are true):
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(a) the representations and warranties contained in each Loan Document are
correct on and as of the date of such Competitive Bid Borrowing, before and
after giving effect to such Competitive Bid Borrowing and to the application
of the proceeds therefrom, as though made on and as of such date other than
any such representations or warranties that, by their terms, refer to a
specific date other than the date of such Competitive Bid Borrowing, in which
case as of such specific date,
(b) no event has occurred and is continuing, or would result from such
Competitive Bid Borrowing or from the application of the proceeds therefrom,
that constitutes a Default, and
(c) no event has occurred and no circumstance exists as a result of which
the information concerning Paxar that has been provided to the Administrative
Agent and each Lender by Paxar in connection herewith would include an untrue
statement of a material fact or omit to state any material fact or any fact
necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.
SECTION 3.06. Determinations Under Section 3.01. For purposes of determining
compliance with the conditions specified in Section 3.01, each Lender Party
shall be deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Lender Party
prior to the date that the Borrower, by notice to the Lender Parties, designates
as the proposed Effective Date, specifying its objection thereto. The
Administrative Agent shall promptly notify the Lender Parties of the occurrence
of the Effective Date.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers. Each Borrower
represents and warrants as follows:
(a) Each Loan Party is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation.
(b) The execution, delivery and performance by each Loan Party of this
Agreement, the Notes and each other Loan Document to which it is or is to be a
party, and the consummation of the transactions contemplated hereby, are within
such Loan Party's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene such Loan Party's charter or
by-laws, (ii) violate any law (including, without limitation, the Securities
Exchange Act of 1934 and the Racketeer Influenced and Corrupt Organizations
Chapter of the Organized Crime Control Act of 1970), rule, regulation
(including, without limitation, Regulation X of the Board of Governors of the
Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach of, or
constitute a default under, any contract, loan agreement, indenture, mortgage,
deed of trust, lease or other instrument binding on or affecting any Loan Party,
any of its Subsidiaries or any of their properties or (iv) except for the Liens
created under the Loan Documents, result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of any Loan
Party or any of its Subsidiaries.
(c) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other third
party is required for (i) the due execution, delivery and performance by any
Loan Party of this Agreement, the Notes or any other Loan Document to which it
is or is to be a party or for the consummation of the transactions contemplated
hereby or (ii) the exercise by the Administrative Agent or any Lender Party of
its rights under the Loan Documents, except for those authorizations, approvals,
actions, notices and filings listed on Schedule 4.01(c) hereto, all of which
have been duly obtained, taken, given or made and are in full force and effect.
(d) This Agreement, each of the Notes and each other Loan Document has
been duly executed and delivered by each Loan Party thereto. This Agreement,
each of the Notes and each other Loan Document is the legal, valid and binding
obligation of each Loan Party party thereto, enforceable against such Loan Party
in accordance with its respective terms.
(e) The Consolidated balance sheet of Paxar and its Subsidiaries as at
December 31, 2001, and the related Consolidated statements of income and cash
flows of Paxar and its Subsidiaries for the fiscal year then ended, accompanied
by an opinion of PriceWaterhouseCoopers, independent public accountants, and the
Consolidated balance sheet of Paxar and its Subsidiaries as at June 30, 2002,
and the related Consolidated statements of income and cash flows of Paxar and
its Subsidiaries for the six months then ended, duly certified by the chief
financial officer or treasurer of Paxar, copies of which have been furnished to
each Lender Party, fairly present, subject, in the case of said balance sheet as
at June 30, 2002, and said statements of income and cash flows for the six
months then ended, to year-end audit adjustments, the Consolidated financial
condition of Paxar and its Subsidiaries as at such dates and the Consolidated
results of the operations of Paxar and its Subsidiaries for the periods ended on
such dates, all in accordance with generally accepted accounting principles
consistently applied. Since December 31, 2001, there has been no Material
Adverse Change.
30
(f) Except with respect to the matters disclosed on Schedule 4.01(f),
there is no pending or threatened action, suit, investigation, litigation or
proceeding, including, without limitation, any Environmental Action, affecting
the Borrower or any of its Subsidiaries before any court, governmental agency or
arbitrator that (i) could be reasonably likely to have a Material Adverse Effect
or (ii) purports to affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions contemplated
hereby.
(g) No Borrower is engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of Regulation
U issued by the Board of Governors of the Federal Reserve System), and no
proceeds of any Advance will be used to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any margin
stock.
(h) Neither the Projections nor any other information, exhibit or report
furnished by any Loan Party to the Administrative Agent or any Lender Party in
connection with the negotiation of the Loan Documents or pursuant to the terms
of the Loan Documents contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements made therein
not misleading.
(i) Except with respect to the matters disclosed on Schedule 4.01(i), the
operations and properties of Paxar and each of its Subsidiaries comply in all
material respects with all applicable Environmental Laws and Environmental
Permits, all past non-compliance with such Environmental Laws and Environmental
Permits has been resolved without ongoing obligations or costs, and no
circumstances exist that would be reasonably likely to (i) form the basis of an
Environmental Action against any Loan Party or any of its Subsidiaries or any of
their properties that could have a Material Adverse Effect or (ii) cause any
such property to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law.
(j) Neither any Loan Party nor any of its Subsidiaries is an "investment
company", or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended. Neither the making of any Advances, nor the
issuance of any Letters of Credit, nor the application of the proceeds or
repayment thereof by the Borrower, nor the consummation of the other
transactions contemplated hereby, will violate any provision of such Act or any
rule, regulation or order of the Securities and Exchange Commission thereunder.
(k) Each Loan Party is, individually and together with its Subsidiaries,
Solvent.
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ARTICLE V
COVENANTS OF PAXAR
SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, Paxar will:
(a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries
to comply, in all material respects, with all applicable laws, rules,
regulations and orders, such compliance to include, without limitation,
compliance with ERISA and Environmental Laws as provided in Section 5.01(l).
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges or levies imposed upon it or
upon its property and (ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property; provided, however, that neither Paxar nor any
of its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained, unless
and until any Lien resulting therefrom attaches to its property and becomes
enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries
to maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which Paxar or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that Paxar and its Subsidiaries may consummate any merger or consolidation
permitted under Section 5.02(b), and provided further that neither Paxar nor any
of its Subsidiaries shall be required to preserve any right or franchise if the
Board of Directors of Paxar or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
Paxar or such Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to Paxar, such Subsidiary or the Lender
Parties.
(e) Visitation Rights. At any reasonable time and from time to time,
permit (i) the Administrative Agent or any agents or representatives thereof to
examine and make copies of and abstracts from the records and books of account
of, and visit the properties of, Paxar and any of its Subsidiaries, and (ii) the
Administrative Agent or any of the Lender Parties or any agents or
representatives thereof to discuss, in connection with the Loan Documents, the
affairs, finances and accounts of Paxar and any of its Subsidiaries with any of
their officers and with their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of Paxar and each
such Subsidiary in accordance with generally accepted accounting principles in
effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause each
of its Subsidiaries to maintain and preserve, all of its properties that are
used or useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
(h) Compliance with Terms of Leaseholds. Make all payments and otherwise
perform all obligations in respect of all leases of real property to which Paxar
or any of its Subsidiaries is a party, keep such leases in full force and effect
and not allow such leases to lapse or be terminated or any rights to renew such
leases to be forfeited or canceled, notify the Administrative Agent of any
default by any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and cause each of
its Subsidiaries to do so except, in any case, where the failure to do so,
either individually or in the aggregate, would not be reasonably likely to have
a Material Adverse Effect.
32
(i) Performance of Related Documents. Perform and observe all of the terms
and provisions of each Related Document to be performed or observed by it,
maintain each such Related Document in full force and effect, enforce such
Related Document in accordance with its terms, take all such action to such end
as may be from time to time requested by the Administrative Agent and, upon
request of the Administrative Agent, make to each other party to each such
Related Document such demands and requests for information and reports or for
action as Paxar is entitled to make under such Related Document.
(j) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates on terms that are fair and reasonable and
no less favorable to Paxar or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate.
(k) Compliance with Environmental Laws. Comply, and cause each of its
Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause each of
its Subsidiaries to obtain and renew all Environmental Permits necessary for its
operations and properties; and conduct, and cause each of its Subsidiaries to
conduct, any investigation, study, sampling and testing, and undertake any
cleanup, removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that neither Paxar
nor any of its Subsidiaries shall be required to undertake any such cleanup,
removal, remedial or other action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and appropriate reserves
are being maintained with respect to such circumstances.
(l) Preparation of Environmental Reports. If an Event of Default shall
have occurred and be continuing, at the request of the Required Lenders, provide
to the Lender Parties within 60 days after such request, at the expense of
Paxar, an environmental site assessment report for the properties described in
such request, prepared by an environmental consulting firm acceptable to the
Required Lenders, indicating the presence or absence of Hazardous Materials and
the estimated cost of any compliance, removal or remedial action in connection
with any Hazardous Materials on such properties; without limiting the generality
of the foregoing, if the Required Lenders determine at any time that a material
risk exists that any such report will not be provided within the time referred
to above, the Required Lenders may retain an environmental consulting firm to
prepare such report at the expense of Paxar, and Paxar hereby grants and agrees
to cause any Subsidiary that owns any property described in such request to
grant at the time of such request, to the Administrative Agent, the Lender
Parties, such firm and any agents or representatives thereof an irrevocable
non-exclusive license, subject to the rights of tenants, to enter onto their
respective properties to undertake such an assessment.
(m) Reporting Requirements. Furnish to the Lender Parties:
(i) as soon as available and in any event within 50 days after
the end of each of the first three quarters of each fiscal year of Paxar,
Consolidated and consolidating balance sheets of Paxar and its Subsidiaries as
of the end of such quarter and Consolidated and consolidating statements of
income and cash flows of Paxar and its Subsidiaries for the period commencing at
the end of the previous fiscal year and ending with the end of such quarter,
duly certified (subject to year-end audit adjustments) by the chief financial
officer or treasurer of Paxar as having been prepared in accordance with
generally accepted accounting principles and certificates of the chief financial
officer of Paxar as to compliance with the terms of this Agreement and setting
forth in reasonable detail the calculations necessary to demonstrate compliance
with Section 5.03, provided that in the event of any change in GAAP used in the
preparation of such financial statements, Paxar shall also provide, if necessary
for the determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to GAAP;
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(ii) as soon as available and in any event within 105 days after
the end of each fiscal year of Paxar, a copy of the annual audit report for such
year for Paxar and its Subsidiaries, containing Consolidated and consolidating
balance sheets of Paxar and its Subsidiaries as of the end of such fiscal year
and Consolidated and consolidating statements of income and cash flows of Paxar
and its Subsidiaries for such fiscal year, together with a certificate of the
chief financial officer or treasurer of Paxar as to compliance with the terms of
this Agreement and setting forth in reasonable detail the calculations necessary
to demonstrate compliance with Section 5.03 and in each case accompanied by an
opinion acceptable to the Required Lenders by PriceWaterhouseCoopers or other
independent public accountants acceptable to the Required Lenders, provided that
in the event of any change in GAAP used in the preparation of such financial
statements, Paxar shall also provide, if necessary for the determination of
compliance with Section 5.03, a statement of reconciliation conforming such
financial statements to GAAP;
(iii) as soon as available and in any event no later than 105
days after the end of each fiscal year of Paxar, forecasts prepared by
management of Paxar, in form satisfactory to the Administrative Agent, of
balance sheets, income statements and cash flow statements on an annual basis
for each of the three immediately succeeding fiscal years;
(iv) as soon as possible and in any event within five days after
the occurrence of each Default continuing on the date of such statement, a
statement of the chief financial officer or treasurer of Paxar setting forth
details of such Default and the action that Paxar has taken and proposes to take
with respect thereto;
(v) promptly after the sending or filing thereof, copies of all
reports that Paxar sends to any of its security holders, and copies of all
reports and registration statements that Paxar or any Subsidiary files with the
Securities and Exchange Commission or any national securities exchange;
(vi) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or arbitrator
affecting Paxar or any of its Subsidiaries of the type described in Section
4.01(f);
(vii) promptly after the assertion or occurrence thereof, notice
of any Environmental Action against or of any noncompliance by Paxar or any of
its Subsidiaries with any Environmental Law or Environmental Permit that could
reasonably be expected to have a Material Adverse Effect; and
(viii) such other information respecting Paxar or any of its
Subsidiaries as any Lender Party through the Administrative Agent may from time
to time reasonably request.
(n) New Subsidiary Guarantor Documents. Furnish to the Lender Parties,
within five Business Days after the Effective Date, the following:
(i) A copy of the charter of each New Subsidiary Guarantor and
each amendment thereto, certified (as of a date reasonably near the Effective
Date) by the Secretary of State of the jurisdiction of its incorporation as
being a true and correct copy thereof.
(ii) A copy of the by-laws of such New Subsidiary Guarantor
certified by the Secretary or an Assistant Secretary of such New Subsidiary
Guarantor.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, Paxar will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to any of
its properties, whether now owned or hereafter acquired, or assign, or permit
any of its Subsidiaries to assign, any right to receive income, other than:
(i) Permitted Liens,
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(ii) purchase money Liens upon or in any real property or
equipment acquired or held by Paxar or any of its Subsidiaries in the ordinary
course of business to secure the purchase price of such property or equipment or
to secure Debt incurred solely for the purpose of financing the acquisition of
such property or equipment, or Liens existing on such property or equipment at
the time of its acquisition (other than any such Liens created in contemplation
of such acquisition that were not incurred to finance the acquisition of such
property) or extensions, renewals or replacements of any of the foregoing for
the same or a lesser amount, provided, however, that no such Lien shall extend
to or cover any properties of any character other than the real property or
equipment being acquired, and no such extension, renewal or replacement shall
extend to or cover any properties not theretofore subject to the Lien being
extended, renewed or replaced, provided further that the sum of the aggregate
principal amount of the indebtedness secured by the Liens referred to in this
clause (ii) plus the aggregate principal amount of the indebtedness secured by
the Liens referred to in clause (iv) below shall not exceed the amount specified
therefor in Section 5.02(d)(iii)(C) at any time outstanding,
(iii) the Liens existing on the Effective Date and described on
Schedule 5.02(a) hereto,
(iv) Liens arising in connection with Capitalized Leases
permitted under Section 5.02(d)(iii)(C); provided that no such Lien shall extend
to or cover any assets other than the assets subject to such Capitalized Leases,
(v) the replacement, extension or renewal of any Lien permitted
by clause (iii) above upon or in the same property theretofore subject thereto
or the replacement, extension or renewal (without increase in the amount or
change in any direct or contingent obligor) of the Debt secured thereby, and
(vi) other Liens securing Debt in an aggregate principal amount
not to exceed the amount specified therefor in Section 5.02(d)(iii)(H) at any
time outstanding.
(b) Mergers, Etc. Merge or consolidate with or into any Person, or permit
any of its Subsidiaries to do so, except that (i) any domestic Subsidiary of
Paxar may merge or consolidate with or into any other domestic Subsidiary of
Paxar, (ii) any foreign Subsidiary of Paxar may merge or consolidate with or
into any other foreign Subsidiary of Paxar, (iii) any Subsidiary of Paxar may
merge into Paxar and (iv) the Borrower may merge into or consolidate with any
other Person or permit any other Person to merge into or consolidate with it;
provided, however, in each case, that no Default shall have occurred and be
continuing at the time of such proposed transaction or would result therefrom
and, in the case of any merger or consolidation to which the Borrower is a
party, the Borrower shall be the surviving corporation.
(c) Accounting Changes. Make or permit, or permit any of its Subsidiaries
to make or permit, any change in accounting policies or reporting practices,
except as required or permitted by generally accepted accounting principles.
(d) Debt. Create, incur, assume or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any Debt other than:
(i) in the case of Paxar, Debt in respect of Hedge Agreements
designed to hedge against fluctuations in interest rates incurred in the
ordinary course of business and consistent with prudent business practice;
(ii) (A) in the case of any of its domestic Subsidiaries, Debt
owed to Paxar or to a wholly-owned Subsidiary of Paxar and (B) in the case of
any of its foreign Subsidiaries, Debt owed to Paxar or to a wholly-owned
domestic Subsidiary of Paxar, provided that (1) after giving effect to the
incurrence of any such Debt referred to in this clause (B), the Foreign Loan
Amount shall not exceed $100,000,000 and (2) any such Debt referred to in this
clause (B) shall be evidenced by a promissory note and such promissory note
shall be pledged in favor of the Administrative Agent and the Lender Parties
pursuant to the terms of a pledge agreement or a security agreement in form and
substance reasonably satisfactory to the Administrative Agent; and
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(iii) in the case of Paxar and any of its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt existing on the Effective Date or Debt created
or incurred under a loan or credit facility existing on the Effective
Date and, in each case, described on Schedule 5.02(d) hereto (the
"Existing Debt"), and any Debt extending the maturity of, or refunding
or refinancing, in whole or in part, the Existing Debt, provided that
(1) the principal amount of such Existing Debt shall not be increased
above the principal amount thereof outstanding immediately prior to such
extension, refunding or refinancing, and the direct and contingent
obligors therefor shall not be changed, as a result of or in connection
with such extension, refunding or refinancing and (2) any Existing Debt
constituting Debt owed by a foreign Subsidiary to Paxar or to a wholly
owned domestic Subsidiary of Paxar shall be evidenced by a promissory
note and such promissory note shall be pledged in favor of the
Administrative Agent and the Lender Parties pursuant to the terms of the
Pledge Agreement or a pledge agreement or a security agreement in form
and substance reasonably satisfactory to the Administrative Agent,
(C) Capitalized Leases and Debt secured by Liens
permitted by Section 5.02(a)(ii), provided that (i) on any date the sum
of Capitalized Leases then outstanding plus the aggregate amount of Debt
then outstanding and secured by Liens permitted by Section 5.02(a)(ii)
plus the aggregate amount of Debt then outstanding and secured by Liens
permitted by Section 5.02(a)(vi) shall not exceed $50,000,000 and (ii)
after giving effect to the creation, incurrence or assumption of such
Capitalized Lease or such Debt, the Debt to EBITDA Ratio of Paxar and
its Subsidiaries (calculated on a pro forma basis) as of the end of the
most recently ended fiscal quarter of Paxar would be less than 3.00:1,
(D) in the case of Existing Debt of Paxar and its
Subsidiaries, Debt of Paxar and its domestic Subsidiaries of the type
described in clause (i) of the definition of "Debt" guaranteeing the
Obligations of Paxar or such Subsidiary, as the case may be, under such
Existing Debt,
(E) Debt of Paxar or any of its wholly owned domestic
Subsidiaries that is subordinate to the Obligations of the Loan Parties
under the Loan Documents in an aggregate principal amount acceptable to
the Required Lenders and on terms and conditions satisfactory to the
Required Lenders,
(F) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(G) Debt of Paxar or any of its wholly owned
Subsidiaries so long as (i) both before and after giving effect to the
creation, incurrence or assumption of such Debt, no Default shall occur
and be continuing and (ii) after giving effect to the creation,
incurrence or assumption of such Debt, the Debt to EBITDA Ratio of Paxar
and its Subsidiaries (calculated on a pro forma basis) as of the end of
the most recently ended fiscal quarter of Paxar would be less than
3.00:1,
(H) secured Debt of Paxar or any of its wholly owned
Subsidiaries, provided that (i) on any date the sum of Capitalized
Leases then outstanding plus the aggregate amount of Debt then
outstanding and secured by Liens permitted by Section 5.02(a)(ii) plus
the aggregate amount of Debt then outstanding and secured by Liens
permitted by Section 5.02(a)(vi) shall not exceed $50,000,000 and (ii)
after giving effect to the creation, incurrence or assumption of such
Debt, the Debt to EBITDA Ratio of Paxar and its Subsidiaries (calculated
on an pro forma basis) as of the end of the most recently ended fiscal
quarter of Paxar would be less than 3.00:1, and
(I) in the case of Paxar, the Senior Notes in an
aggregate principal amount not to exceed $150,000,000 at any time
outstanding.
(e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of,
or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose
of, any assets, or grant any option or other right to purchase, lease or
otherwise acquire any assets, except (i) sales of inventory in the ordinary
course of its business, (ii) in a transaction authorized by subsection (b) of
this Section and (iii) sales of assets for cash and for fair value in an
aggregate amount not to exceed an amount equal to 10% of the Consolidated total
assets of Paxar and its Subsidiaries.
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(f) Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in any Person other than:
(i) (A) Investments by Paxar and its domestic Subsidiaries in
their Subsidiaries outstanding on the date hereof and additional Investments in
wholly owned domestic Subsidiaries of Paxar that, prior to the making of such
Investments, were wholly owned Subsidiaries of Paxar, (B) Investments by Paxar
and its Subsidiaries in wholly owned Subsidiaries of Paxar that, prior to the
making of such Investments were not wholly owned Subsidiaries of Paxar, provided
that (i) both before and after giving effect to such Investment, no Default
shall have occurred and be continuing and (ii) with respect to Investments in
any newly acquired or created wholly owned Subsidiary of Paxar, (1) the
aggregate amount (including the fair market value of any non-cash portion of any
such Investment) invested in each such Subsidiary shall not exceed $75,000,000,
(2) if the aggregate amount (including the fair market value of any non-cash
portion of any such Investment) invested in any such Subsidiary is greater than
$25,000,000, Paxar must deliver, prior to such Investment, a certificate of the
chief financial officer of Paxar, describing such Investment and demonstrating
compliance with the covenants (on a pro forma basis giving effect to such
Investment) set forth in Section 5.03 and (3) such Subsidiary (if it is a
domestic Subsidiary of Paxar) shall become a Subsidiary Guarantor pursuant to
the terms of the Subsidiary Guaranty, (C) Investments by the foreign
Subsidiaries of Paxar in their Subsidiaries outstanding on the date hereof and
(D) the Investment described on Schedule 5.02(g) hereto;
(ii) loans and advances to employees in the ordinary course of
the business of Paxar and its Subsidiaries as presently conducted in an
aggregate principal amount not to exceed $5,000,000 at any time outstanding;
(iii) Investments in Cash Equivalents;
(iv) Investments in overnight Eurodollar deposits with any
commercial bank that is a Lender Party or a member of the Federal Reserve
System, issues (or the parent of which issues) commercial paper rated as
described in clause (c) of the definition of "Cash Equivalents", is organized
under the laws of the United States or any State thereof and has combined
capital and surplus of at least $1 billion;
(v) Investments consisting of intercompany Debt permitted under
Section 5.02(d)(ii); and
(vi) other Investments in an aggregate amount invested not to
exceed $25,000,000 in Persons other than wholly owned Subsidiaries; provided
that with respect to any such Investment in any newly acquired or created
domestic Subsidiary of Paxar, such Subsidiary shall become a Subsidiary
Guarantor pursuant to the terms of the Subsidiary Guaranty.
(g) Change in Nature of Business. Engage, or permit any of its
Subsidiaries to engage, to any substantial extent in any business other than the
businesses in which Paxar and its Subsidiaries are engaged on the Effective Date
and businesses reasonably related thereto or in furtherance thereof.
(h) Charter Amendments. Amend, or permit any of its Subsidiaries to amend,
its certificate of incorporation or bylaws, other than any amendment which would
not adversely affect the rights or interests of the Lender Parties hereunder and
under the other Loan Documents.
(i) Prepayments, Etc. of Debt. (x) Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner, or make
any payment in violation of any subordination terms of, any Debt unless both
before and after giving effect to any such prepayment, redemption, purchase,
defeasance or satisfaction, no Default shall have occurred and be continuing, or
(y) amend, modify or change in any manner any term or condition of any Existing
Debt or the Senior Notes, or permit any of its Subsidiaries to do any of the
foregoing other than to prepay any Debt payable to Paxar.
37
(j) Amendment, Etc. of Related Documents. Cancel or terminate any Related
Document or consent to or accept any cancellation or termination thereof, amend,
modify or change in any manner any term or condition of any Related Document
(other than any amendment, modification or change which would not adversely
affect the rights or interests of the Lender Parties hereunder and under the
other Loan Documents) or give any consent, waiver or approval thereunder (other
than any consent, waiver or approval which would not adversely affect the rights
or interests of the Lender Parties hereunder and under the other Loan
Documents), waive any default under or any breach of any term or condition of
any Related Document, agree in any manner to any other amendment, modification
or change of any term or condition of any Related Document or take any other
action in connection with any Related Document that would impair the value of
the interest or rights of Paxar thereunder or that would impair the rights or
interests of the Administrative Agent or any Lender Party, or permit any of its
Subsidiaries to do any of the foregoing.
(k) Partnerships, Etc. Become a general partner in any general or limited
partnership or joint venture, or permit any of its Subsidiaries to do so, other
than any Subsidiary of Paxar the sole assets of which consist of its interest in
such partnership or joint venture.
SECTION 5.03. Financial Covenants. So long as any Advance shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, Paxar will:
(a) Net Worth. Maintain at all times an excess of Consolidated total
assets over Consolidated total liabilities, in each case of Paxar and its
Subsidiaries, of not less than the sum of (x) $274,000,000 plus (y) 35% of
Consolidated net income (without taking into account any net loss that occurs
for any period after the date hereof) of Paxar and its Subsidiaries for the
period after July 1, 2002 to and including each date of determination computed
on a cumulative basis for said entire period plus (z) 100% of the Net Cash
Proceeds received by Paxar from the sale or issuance by Paxar of its capital
stock on and after July 1, 2002.
(b) Debt to EBITDA Ratio. Maintain at the end of each fiscal quarter of
Paxar, a Debt to EBITDA Ratio of Paxar and its Subsidiaries of less than 3.00:1.
(c) Fixed Charge Coverage Ratio. Maintain at the end of each fiscal
quarter of Paxar a ratio of Consolidated EBITDA of Paxar and its Subsidiaries
for the most recently completed four fiscal quarters of Paxar and its
Subsidiaries less the aggregate amount of Capital Expenditures made by Paxar and
its Subsidiaries during such four fiscal quarter period to the sum of (i)
interest and fees payable on all Debt during such four fiscal quarter period
plus (ii) principal amounts of all Debt scheduled to be payable during such four
fiscal quarter period plus (iii) the aggregate amount of all taxes payable in
cash during such four fiscal quarter period, in each case by Paxar and its
Subsidiaries, of not less 1.50:1.
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Advance when the
same becomes due and payable; or any Borrower shall fail to pay any interest on
any Advance or make any other payment of fees or other amounts payable under
this Agreement or any Note within two days after the same becomes due and
payable; or
(b) Any representation or warranty made or deemed made by any Loan Party
(or any of its officers) in connection with any Loan Document shall prove to
have been incorrect in any material respect when made or deemed made; or
(c) (i) Paxar shall fail to perform or observe any term, covenant or
agreement contained in Section 5.01(d), (e), (j) or (k), 5.02 or 5.03, or (ii)
any Loan Party shall fail to perform or observe any other term, covenant or
agreement contained in any Loan Document on its part to be performed or observed
if such failure shall remain unremedied for 10 days after the earlier of the
date on which (A) an officer of Paxar becomes aware of such failure or (B)
written notice thereof shall have been given to Paxar by the Administrative
Agent or any Lender Party; or
(d) Paxar or any of its Subsidiaries shall fail to pay any principal of or
premium or interest on any Debt that is outstanding in a principal or notional
amount of at least $500,000 in the aggregate (but excluding Debt outstanding
hereunder) of Paxar or such Subsidiary (as the case may be), when the same
becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or any such Debt shall be
declared to be due and payable, or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be
required to be made, in each case prior to the stated maturity thereof; or
(e) Paxar or any of its Subsidiaries shall generally not pay its debts as
such debts become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against Paxar or any of its
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a period of 30
days, or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or Paxar or any of its
Subsidiaries shall take any corporate action to authorize any of the actions set
forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of $500,000
shall be rendered against Paxar or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 10 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; or
(g) Any non-monetary judgment or order shall be rendered against Paxar or
any of its Subsidiaries that could be reasonably expected to have a Material
Adverse Effect, and there shall be any period of 10 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; or
(h) (i) Any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Stock of Paxar (or other securities
convertible into such Voting Stock) representing 30% or more of the combined
voting power of all Voting Stock of Paxar; or (ii) during any period of up to 24
consecutive months, commencing after the date of this Agreement, individuals who
at the beginning of such 24-month period were directors of Paxar shall cease for
any reason to constitute a majority of the board of directors of Paxar; or (iii)
any Person or two or more Persons acting in concert shall have acquired by
contract or otherwise, or shall have entered into a contract or arrangement
that, upon consummation, will result in its or their acquisition of the power to
exercise, directly or indirectly, a controlling influence over the management or
policies of Paxar; or
39
(i) Paxar or any of its ERISA Affiliates shall incur or, in the reasonable
opinion of the Required Lenders, shall be reasonably likely to incur liability
in excess of $500,000 in the aggregate as a result of one or more of the
following: (i) the occurrence of any ERISA Event; (ii) the partial or complete
withdrawal of Paxar or any of its ERISA Affiliates from a Multiemployer Plan; or
(iii) the reorganization or termination of a Multiemployer Plan;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to each of the
Borrowers, declare the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Required Lenders, by notice to each of
the Borrowers, declare the Notes, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Notes, all such interest and all such amounts shall become and be forthwith due
and payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by each of the Borrowers; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to any Borrower under the Federal Bankruptcy Code, (A) the
obligation of each Lender to make Advances shall automatically be terminated and
(B) the Notes, all such interest and all such amounts shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by each of the Borrowers.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender Party hereby appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement as are delegated
to the Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto. As to any matters not expressly
provided for by this Agreement (including, without limitation, enforcement or
collection of the Notes), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lender Parties and all holders of Notes;
provided, however, that the Administrative Agent shall not be required to take
any action that exposes the Administrative Agent to personal liability or that
is contrary to this Agreement or applicable law. The Administrative Agent agrees
to give to each Lender Party prompt notice of each notice given to it by Paxar
pursuant to the terms of this Agreement and, upon request by any Lender Party, a
copy of any such notice.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither the Administrative
Agent nor any of its directors, officers, agents or employees shall be liable
for any action taken or omitted to be taken by it or them under or in connection
with this Agreement, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the
Administrative Agent: (i) may treat the payee of any Note as the holder thereof
until the Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender Party that is the payee of such Note, as assignor,
and an Eligible Assignee, as assignee, as provided in Section 9.07; (ii) may
consult with legal counsel (including counsel for Paxar), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender Party and shall not be responsible to any Lender
Party for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of Paxar or to
inspect the property (including the books and records) of Paxar; (v) shall not
be responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
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SECTION 7.03. Fleet and Affiliates. With respect to its Commitment, the Advances
made by it and the Note issued to it, Fleet shall have the same rights and
powers under this Agreement as any other Lender Party and may exercise the same
as though it were not the Administrative Agent; and the term "Lender",
"Lenders", "Lender Party" or "Lender Parties" shall, unless otherwise expressly
indicated, include Fleet in its individual capacity. Fleet and its Affiliates
may accept deposits from, lend money to, act as trustee under indentures of,
accept investment banking engagements from and generally engage in any kind of
business with, Paxar, any of its Subsidiaries and any Person who may do business
with or own securities of Paxar or any such Subsidiary, all as if Fleet were not
the Administrative Agent and without any duty to account therefor to the Lender
Parties.
SECTION 7.04. Lender Credit Decision. Each Lender Party acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Lender Party and based on the financial statements referred to in Section
4.01 and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
Party also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender Party and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lender Parties (other than the Designated
Bidders) agree to indemnify the Administrative Agent (to the extent not
reimbursed by Paxar), ratably according to the respective principal amounts of
the Notes then held by each of them (or if no Notes are at the time outstanding
or if any Notes are held by Persons that are not Lender Parties, ratably
according to the respective amounts of their Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by the Administrative Agent under this Agreement
(collectively, the "Indemnified Costs"), provided that no Lender Party shall be
liable for any portion of the Indemnified Costs resulting from the
Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender Party (other than the Designated
Bidders) agrees to reimburse the Administrative Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by the Administrative 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, to the
extent that the Administrative Agent is not reimbursed for such expenses by the
Borrower, provided that no Lender Party shall be required to reimburse any
portion of such out-of-pocket expenses resulting from the Administrative Agent's
gross negligence or willful misconduct. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05
applies whether any such investigation, litigation or proceeding is brought by
the Administrative Agent, any Lender Party or a third party.
SECTION 7.06. Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Lender Parties and
Paxar and may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Lender Parties, appoint a successor Administrative
Agent, which shall be a commercial bank organized under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $50,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, discretion, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement.
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ARTICLE VIII
GUARANTY
SECTION 8.01. Guaranty. Paxar absolutely, unconditionally and irrevocably
guarantees (the undertaking by Paxar under this Article VIII being the
"Guaranty") the punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all Obligations of each other Loan Party now or
hereafter existing under the Loan Documents, whether for principal, interest,
fees, commissions, expenses or otherwise (such Obligations being the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any Lender Party in enforcing any rights under this
Guaranty. Without limiting the generality of the foregoing, Paxar's liability
shall extend to all amounts that constitute part of the Guaranteed Obligations
and would be owed by any other Loan Party to the Administrative Agent or any
Lender Party under the Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such other Loan Party.
SECTION 8.02. Guaranty Absolute. Paxar guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or any other Lender Party with respect thereto. The
Obligations of Paxar under this Guaranty are independent of the Guaranteed
Obligations or any other Obligations of any Loan Party under the Loan Documents,
and a separate action or actions may be brought and prosecuted against Paxar to
enforce this Guaranty, irrespective of whether any action is brought against any
other Loan Party or whether any other Loan Party is joined in any such action or
actions. The liability of Paxar under this Guaranty shall be absolute,
unconditional and irrevocable irrespective of, and Paxar hereby irrevocably
waives any defenses it may now or hereafter have in any way relating to, any and
all of the following:
(a) any lack of validity or enforceability of any Loan Document or any
other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Guaranteed Obligations or any other Obligations of
any Loan Party under the Loan Documents, or any other amendment or waiver of or
any consent to departure from any Loan Document (including, without limitation,
any increase in the Guaranteed Obligations resulting from the extension of
additional credit to any Loan Party or any of its Subsidiaries or otherwise);
(c) any taking, exchange, release or non-perfection of any Collateral or
any taking, release or amendment or waiver of or consent to departure from any
other guarantee for all or any of the Guaranteed Obligations;
(d) any change, restructuring or termination of the corporate structure or
existence of any other Loan Party or any of its Subsidiaries;
(e) any failure of the Administrative Agent or any Lender Party to
disclose to any Loan Party any information relating to the financial condition,
operations, properties or prospects of any other Loan Party now or hereafter
known to the Administrative Agent or such Lender Party, as the case may be; or
(f) any other circumstance (including, without limitation, any statute of
limitations or any existence of or reliance on any representation by the
Administrative Agent or any Lender Party) that might otherwise constitute a
defense available to, or a discharge of, Paxar, any other Loan Party or any
other guarantor or surety.
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This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Administrative Agent or any Lender Party or
by any other Person upon the insolvency, bankruptcy or reorganization of any
other Loan Party or otherwise, all as though such payment had not been made.
SECTION 8.03. Waivers and Acknowledgments. (a) Paxar hereby unconditionally and
irrevocably waives promptness, diligence, notice of acceptance and any other
notice with respect to any of the Guaranteed Obligations and this Guaranty, and
any requirement that the Administrative Agent or any Lender Party exhaust any
right or take any action against any other Loan Party or any other Person or any
Collateral.
(b) Paxar hereby unconditionally and irrevocably waives any duty on the
part of the Administrative Agent or any Lender Party to disclose to Paxar any
matter, fact or thing relating to the business, operation or condition of any
other Loan Party or any of its Subsidiaries or its property and assets now or
hereafter known by the Administrative Agent or such Lender Party.
(c) Paxar hereby unconditionally waives any right to revoke this Guaranty,
and acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
(d) Paxar acknowledges that it will receive substantial direct and
indirect benefits from the financing arrangements contemplated by the Loan
Documents and that the waivers set forth in this Section 8.03 are knowingly made
in contemplation of such benefits.
SECTION 8.04. Subrogation. Paxar hereby unconditionally and irrevocably agrees
not to exercise any rights that it may now have or may hereafter acquire against
any other Loan Party or any other insider guarantor that arise from the
existence, payment, performance or enforcement of its Obligations under this
Guaranty or under any other Loan Document, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the
Administrative Agent or any Lender against such other Loan Party or any other
insider guarantor, whether or not such claim, remedy or right arises in equity
or under contract, statute or common law, including, without limitation, the
right to take or receive from such other Loan Party or any other insider
guarantor, directly or indirectly, in cash or other property or by setoff or in
any other manner, payment or security on account of such claim, remedy or right,
until such time as all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall have been paid in full in cash, all of the
Letters of Credit shall have expired, terminated or been canceled and the
Commitments shall have expired or terminated. If any amount shall be paid to
Paxar in violation of the immediately preceding sentence at any time prior to
the latest of (a) the payment in full in cash of all of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (b) the full
drawing, termination, expiration or cancellation of all Letters of Credit and
(c) the Termination Date, such amount shall be held in trust for the benefit of
the Administrative Agent and the Lender Parties and shall forthwith be paid to
the Administrative Agent to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Guaranty, whether matured
or unmatured, in accordance with the terms of the Loan Documents, or to be held
as Collateral for any Guaranteed Obligations or other amounts payable under this
Guaranty thereafter arising. If (i) Paxar shall pay to the Administrative Agent
all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash, (iii) all of the Letters of Credit shall have expired,
terminated or been canceled, and (iv) the Termination Date shall have occurred,
the Administrative Agent and the Lender Parties will, at Paxar's request and
expense, execute and deliver to Paxar appropriate documents, without recourse
and without representation or warranty, necessary to evidence the transfer of
subrogation to Paxar of an interest in the Guaranteed Obligations resulting from
the payment made by Paxar.
SECTION 8.05. Continuing Guarantee; Assignments. This Guaranty is a continuing
guaranty and shall (a) remain in full force and effect until (subject to
reinstatement pursuant to Section 8.02) the latest of (i) the payment in full in
cash of all of the Guaranteed Obligations and all other amounts payable under
this Guaranty, (ii) the full drawing, termination, expiration or cancellation of
all Letters of Credit, and (iii) the Termination Date, (b) be binding upon Paxar
and its respective successors and assigns and (c) inure to the benefit of, and
be enforceable by, the Administrative Agent and the Lender Parties and their
respective successors, transferees and assigns. Without limiting the generality
of clause (c) of the immediately preceding sentence, any Lender Party may assign
or otherwise transfer all or any portion of its rights and obligations under
this Agreement (including, without limitation, all or any portion of its
Commitment or Commitments, the Advances owing to it and the Notes held by it) to
any other Person, and such other Person shall thereupon become vested with all
the benefits in respect thereof granted to such Lender Party under this Article
VIII or otherwise, in each case as provided in Section 9.07.
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ARTICLE IV
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision of this
Agreement or the Notes, nor consent to any departure by Paxar therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Required Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders (other than the Designated Bidders), do any of the
following: (a) waive any of the conditions specified in Section 3.01, (b)
increase the Commitments of the Lenders or subject the Lenders to any additional
obligations, (c) reduce the principal of, or interest on, the Notes (other than
Competitive Bid Notes) or any fees or other amounts payable hereunder, (d)
postpone any date fixed for any payment of principal of, or interest on, the
Notes (other than Competitive Bid Notes) or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes (other than Competitive Bid Notes), or the
number of Lenders, that shall be required for the Lenders or any of them to take
any action hereunder, (f) reduce or limit the obligations of Paxar under Section
8.01 or otherwise limit the Obligations of any Loan Party owing to any Lender
Party or the Administrative Agent under the Loan Documents, (g) reduce or limit
the obligations of Paxar under Article VIII or reduce or limit the obligations
of any Subsidiary Guarantor under the Subsidiary Guaranty or release Paxar or
any Subsidiary Guarantor from its respective obligations under Article VIII or
the Subsidiary Guaranty, as the case may be, or limit Paxar's or any Subsidiary
Guarantor's liability with respect to the Obligations owing to the
Administrative Agent and the other Lender Parties or (h) amend this Section
9.01; and provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note; provided further that no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Bank or the Issuing Bank, as the case may be, in addition to the Lenders
required above to take such action, affect the rights or obligations of the
Swing Line Bank or of the Issuing Bank, as the case may be, under this
Agreement.
SECTION 9.02. Notices, Etc. All notices and other communications provided for
hereunder shall be in writing (including telecopier, telegraphic or telex
communication) and mailed, telecopied, telegraphed, telexed or delivered, if to
Paxar, at its address at 000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx Xxxxxx, Xxx Xxxx
00000-0000, Attention: Xxxx Xxxxx, Chief Financial Officer; if to Xxxxxxxxx, at
its address at care of Paxar Corporation 000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx Xxxxxx,
Xxx Xxxx 00000-0000, Attention: Xxxx Xxxxx, Chief Financial Officer; if to any
other Borrower, at its address specified in the applicable Credit Agreement
Supplement; if to any Initial Lender, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender Party, at its
Domestic Lending Office specified in the Assignment and Acceptance pursuant to
which it became a Lender Party; and if to the Administrative Agent, at its
address at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx Xxxxx; or, as to Paxar or the Administrative Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to Paxar and the Administrative
Agent. All such notices and communications shall, when mailed, telecopied,
telegraphed or telexed, be effective when deposited in the mails, telecopied,
delivered to the telegraph company or confirmed by telex answerback,
respectively, except that notices and communications to the Administrative Agent
pursuant to Article II, III or VII shall not be effective until received by the
Administrative Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the Notes or of any
Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any Lender Party or
the Administrative Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
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SECTION 9.04. Costs and Expenses. (a) Paxar agrees to pay on demand all costs
and expenses of the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Agreement, the Notes, the other Loan Documents and the other documents to be
delivered hereunder, including, without limitation, (A) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and audit expenses
and (B) the reasonable fees and expenses of counsel for the Administrative Agent
with respect thereto and with respect to advising the Administrative Agent as to
its rights and responsibilities under this Agreement. The Borrower further
agrees to pay on demand all costs and expenses of the Administrative Agent and
the Lender Parties, if any (including, without limitation, reasonable counsel
fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Administrative Agent and each
Lender Party in connection with the enforcement of rights under this Section
9.04(a).
(b) Paxar agrees to indemnify and hold harmless the Administrative Agent
and each Lender Party and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Notes, this Agreement,
the other Loan Documents, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Advances or (ii) the actual or
alleged presence of Hazardous Materials on any property of Paxar or any of its
Subsidiaries or any Environmental Action relating in any way to Paxar or any of
its Subsidiaries, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 9.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by Paxar, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated. Paxar also agrees not to assert any claim against the
Administrative Agent, any Lender Party, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys and agents, on any theory
of liability, for special, indirect, consequential or punitive damages arising
out of or otherwise relating to the Notes, this Agreement, any of the other Loan
Documents, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurocurrency
Rate Advance or LIBO Rate Advance is made by a Borrower to or for the account of
a Lender Party other than on the last day of the Interest Period for such
Advance, or if any payment of principal of any Swing Line Advance (other than a
Swing Line Advance that is a Prime Rate Advance) is made by Paxar to or for the
account of the Swing Line Bank other than on the day on which Paxar and the
Swing Line Bank had agreed such Swing Line Advance would be payable, as a result
of a payment or Conversion pursuant to Section 2.09(d) or (e), 2.11 or 2.13,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, such Borrower shall, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender any amounts required to compensate such Lender for
any additional losses, costs or expenses that it may reasonably incur as a
result of such payment or Conversion, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in Sections 2.12, 2.15 and 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
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SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender Party and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender Party or such Affiliate to or for the credit or
the account of a Borrower against any and all of the obligations of the
Borrowers now or hereafter existing under this Agreement and the Notes held by
such Lender Party, whether or not such Lender Party shall have made any demand
under this Agreement or such Note and although such obligations may be
unmatured. Each Lender Party agrees promptly to notify the relevant Borrower
after any such set-off and application, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of each Lender Party and its Affiliates under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) that such Lender Party and its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective (other than
Sections 2.01, 2.03 and 2.04, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by Paxar and the Administrative Agent and when the
Administrative Agent shall have been notified by each Initial Lender and the
Initial Issuing Bank that such Initial Lender and the Initial Issuing Bank has
executed it and thereafter shall be binding upon and inure to the benefit of the
Borrowers, the Administrative Agent and each Lender Party and their respective
successors and assigns, except that no Borrower shall have the right to assign
its rights hereunder or any interest herein without the prior written consent of
the Lender Parties.
SECTION 9.07. Assignments, Designations and Participations. (a) Each Lender
(other than the Designated Bidders) may assign to one or more Persons all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances (other than
Competitive Bid Advances) owing to it and the Note or Notes (other than any
Competitive Bid Note) held by it); provided, however, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all rights
and obligations under this Agreement (other than any right to make Competitive
Bid Advances, Competitive Bid Advances owing to it and Competitive Bid Notes),
(ii) except in the case of an assignment to a Person that, immediately prior to
such assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $10,000,000, (iii) each such assignment shall be to an
Eligible Assignee, and (iv) the parties to each such assignment shall execute
and deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note subject to such
assignment and a processing and recordation fee of $3,500. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
any other instrument or document furnished pursuant hereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; (ii)
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrowers or any
other Loan Party or the performance or observance by the Borrowers or any other
Loan Party of any of their respective obligations under this Agreement or any
other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 or Section 5.01(o) and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon the Administrative
Agent, such assigning Lender 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 decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender.
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(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Administrative
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to Paxar. Within five Business Days after its
receipt of such notice, the Borrowers, at Paxar's own expense, shall execute and
deliver to the Administrative Agent in exchange for the surrendered Note a new
Note to the order of such Eligible Assignee in an amount equal to the Commitment
assumed by it pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained a Commitment hereunder, a new Note to the order of the
assigning Lender in an amount equal to the Commitment retained by it hereunder.
Such new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 or A-2 hereto, as the case may be.
(d) Each Lender (other than the Designated Bidders) may designate one or
more banks or other entities to have a right to make Competitive Bid Advances as
a Lender pursuant to Section 2.03; provided, however, that (i) no such Lender
shall be entitled to make more than one such designation, (ii) each such Lender
making one or more of such designations shall retain the right to make
Competitive Bid Advances as a Lender pursuant to Section 2.03, (iii) each such
designation shall be to a Designated Bidder and (iv) the parties to each such
designation shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, a Designation Agreement. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Designation Agreement, the designee thereunder shall be a
party hereto with a right to make Competitive Bid Advances as a Lender pursuant
to Section 2.03 and the obligations related thereto.
(e) By executing and delivering a Designation Agreement, the Lender making
the designation thereunder and its designee thereunder confirm and agree with
each other and the other parties hereto as follows: (i) such Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other instrument or document furnished pursuant hereto or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any other instrument or document furnished pursuant hereto;
(ii) such Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrowers or any
other Loan Party or the performance or observance by the Borrowers or any other
Loan Party of any of their respective obligations under this Agreement or any
other instrument or document furnished pursuant hereto; (iii) such designee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Designation Agreement; (iv) such designee will,
independently and without reliance upon the Administrative Agent, such
designating Lender 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 decisions in taking or not taking action under this Agreement; (v) such
designee confirms that it is a Designated Bidder; (vi) such designee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto; and (vii) such
designee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
(f) Upon its receipt of a Designation Agreement executed by a designating
Lender and a designee representing that it is a Designated Bidder, the
Administrative Agent shall, if such Designation Agreement has been completed and
is substantially in the form of Exhibit D hereto, (i) accept such Designation
Agreement, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to Paxar.
47
(g) The Administrative Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assignment and Acceptance and each Designation
Agreement delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lender Parties and, with respect to Lender
Parties other than Designated Bidders, the Commitment of, and principal amount
of the Advances owing to, each Lender Party from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and each Borrower, the Administrative Agent and the
Lender Parties may treat each Person whose name is recorded in the Register as a
Lender Party hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrowers or any Lender Party at any reasonable
time and from time to time upon reasonable prior notice.
(h) The Issuing Bank may assign to an Eligible Assignee all of its rights
and obligations under the undrawn portion of its Letter of Credit Commitment at
any time; provided, however, that (i) except in the case of an assignment to a
Person that immediately prior to such assignment was an Issuing Bank or an
assignment of all of an Issuing Bank's rights and obligations under this
Agreement, the amount of the Letter of Credit Commitment of the assigning
Issuing Bank being assigned pursuant to each such assignment (determined as of
the date of the Assignment and Acceptance with respect to such assignment) shall
in no event be less than the undrawn portion of the Letter of Credit Commitment
at such time, (ii) each such assignment shall be to an Eligible Assignee and
(iii) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500.
(i) Each Lender Party may sell participations to one or more banks or
other entities (other than Paxar or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes held by it); provided, however, that (i) such Lender Party's
obligations under this Agreement (including, without limitation, its Commitments
to the Borrower hereunder) shall remain unchanged, (ii) such Lender Party shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) such Lender Party shall remain the holder of any such
Note for all purposes of this Agreement, (iv) the Borrowers, the Administrative
Agent and the other Lender Parties shall continue to deal solely and directly
with such Lender Party in connection with such Lender Party's rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note or any other Loan Document, or any
consent to any departure by the Borrowers therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or postpone any date fixed for any payment
of principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation.
(j) Any Lender Party may, in connection with any assignment, designation
or participation or proposed assignment, designation or participation pursuant
to this Section 9.07, disclose to the assignee, designee or participant or
proposed assignee, designee or participant, any information relating to the
Borrowers or any other Loan Party furnished to such Lender Party by or on behalf
of the Borrowers; provided that, prior to any such disclosure, the assignee,
designee or participant or proposed assignee, designee or participant shall
agree to preserve the confidentiality of any Confidential Information relating
to the Borrowers received by it from such Lender.
(k) Notwithstanding any other provision set forth in this Agreement, any
Lender Party may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
48
SECTION 9.08. Confidentiality. Neither the Administrative Agent nor any Lender
Party shall disclose any Confidential Information to any other Person without
the consent of Paxar, other than (a) to the Administrative Agent's or such
Lender Party's Affiliates and their officers, directors, employees, agents and
advisors and, as contemplated by Section 9.07(j), to actual or prospective
assignees and participants, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial process, (c) to any rating
agency when required by it, provided that, prior to any such disclosure, such
rating agency shall undertake to preserve the confidentiality of any
Confidential Information relating to any Borrower received by it from such
Lender and (d) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
SECTION 9.09. No Liability of the Issuing Bank. Each Borrower assumes all risks
of the acts or omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit. Neither the Issuing
Bank nor any of its officers or directors shall be liable or responsible for:
(a) the use that may be made of any Letter of Credit or any acts or omissions of
any beneficiary or transferee in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by the Issuing Bank against presentation of
documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the
Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that the relevant Borrower
shall have a claim against the Issuing Bank, and the Issuing Bank shall be
liable to such Borrower, to the extent of any direct, but not consequential,
damages suffered by such Borrower that such Borrower proves were caused by (i)
the Issuing Bank's willful misconduct or gross negligence in determining whether
documents presented under any Letter of Credit issued on account of such
Borrower comply with the terms of the Letter of Credit or (ii) the Issuing
Bank's willful failure to make lawful payment under a Letter of Credit issued on
account of such Borrower after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of the Letter of
Credit. In furtherance and not in limitation of the foregoing, the Issuing Bank
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.
SECTION 9.10. Governing Law. This Agreement and the Notes shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 9.11. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Agreement by telecopier shall
be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.12. Judgment. (a) Rate of Exchange. If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum due hereunder
(including, without limitation, under Section 8.01) or under any Note or Notes
in another currency into US Dollars or into a Primary Currency, as the case may
be, the parties hereto agree, to the fullest extent that they may effectively do
so, that the rate of exchange used shall be that at which, in accordance with
normal banking procedures, a Lender Party could purchase such other currency
with US Dollars or with a Primary Currency, as the case may be, in New York
City, New York at the close of business on the Business Day immediately
preceding the day on which final judgment is given, together with any premiums
and costs of exchange payable in connection with such purchase.
(b) Indemnity. The obligation of each Borrower in respect of any sum due
from it to the Administrative Agent or any Lender Party hereunder or under any
Note or Notes shall, notwithstanding any judgment in a currency other than US
Dollars or a Primary Currency, as the case may be, be discharged only to the
extent that on the Business Day next succeeding receipt by the Administrative
Agent or such Lender Party of any sum adjudged to be so due in such other
currency, the Administrative Agent or such Lender Party may, in accordance with
normal banking procedures, purchase US Dollars or such Primary Currency, as the
case may be, with such other currency. If the US Dollars or such Primary
Currency so purchased are less than the sum originally due to the Administrative
Agent or such Lender Party in US Dollars or in such Primary Currency, each
Borrower agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify the Administrative Agent or such Lender Party against such loss,
and if the US Dollars or such Primary Currency so purchased exceed the sum
originally due to the Administrative Agent or any Lender Party in US Dollars or
in such Primary Currency, as the case may be, the Administrative Agent or such
Lender Party agrees to remit to such Borrower such excess.
49
SECTION 9.13. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each Borrower further
irrevocably consents to the service of process in any action or proceeding in
such courts by the mailing thereof by any parties thereto by registered or
certified mail, postage prepaid, to such Borrower at its address specified
pursuant to Section 9.02 or in the Credit Agreement Supplement. Each Borrower
(other than Paxar) hereby further agrees that service of process in any such
action or proceeding brought in any such New York state court or in any such
federal court may be made upon Paxar at its address specified in Section 9.02,
and each Borrower (other than Paxar) hereby irrevocably appoints Paxar as its
authorized agent to accept such service of process, and hereby irrevocably
agrees that the failure of Paxar to give any notice of such service to such
Borrower shall not impair or affect the validity of such service or of any
judgment rendered in any action or proceeding based thereon. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes or the
other Loan Documents in any New York State or federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(c) To the extent that any Borrower has or hereafter may acquire any
immunity from the jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, such
Borrower hereby irrevocably waives such immunity in respect of its obligations
under this Agreement and the Notes and the other Loan Documents.
SECTION 9.14. Waiver of Jury Trial. Each of the Borrowers, the Administrative
Agent and the Lender Parties hereby irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim (whether based on contract, tort
or otherwise) arising out of or relating to this Agreement or the Notes or the
other Loan Documents or the actions of the Administrative Agent or any Lender
Party in the negotiation, administration, performance or enforcement thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above written.
PAXAR CORPORATION
By /s/ Xxxx X. Xxxxx
--------------------------------------------------
Title: Senior Vice President and Chief Financial Officer
XXXXXXXXX + XXXX GMBH & CO. KG
By /s/ Xxxxxx Xxxxxxxxx
--------------------------------------------------
Title: Chief Financial Officer
PAXAR UK LIMITED
By /s/ Niels Boudeling
--------------------------------------------------
Title: Vice President, Finance
51
FLEET NATIONAL BANK
as Administrative Agent
By /s/ Xxxxxxx X. Xxxxx
---------------------------------------------------
Title: Senior Vice President
FLEET NATIONAL BANK
as Initial Issuing Bank
By /s/ Xxxxxxx X. Xxxxx
---------------------------------------------------
Title: Senior Vice President
Initial Lenders
FLEET NATIONAL BANK
By /s/ Xxxxxxx X. Xxxxx
---------------------------------------------------
Title: Senior Vice President
ABN AMRO BANK N.V.
By /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------------------------
Title: Vice President
By /s/ Xxxxxx Xxxxxx
---------------------------------------------------
Title: Group Vice President and Director
52
HSBC BANK USA
By /s/ Xxxxxxx Xxxxxx
---------------------------------------------------
Title: First Vice President
SUNTRUST BANK
By /s/ Xxxxx X. Xxxxxxxx
---------------------------------------------------
Title: Vice President
BANK OF NEW YORK
By /s/ Xxxxxx Xxxxxxxx
---------------------------------------------------
Title: Assistant Vice President
53
