1
EXECUTION COPY
U.S. $280,000,000
CREDIT AGREEMENT
Dated as of March 3, 1997
Among
PAXAR CORPORATION
as Borrower
and
THE INITIAL LENDERS, INITIAL ISSUING BANK
AND SWING LINE BANK NAMED HEREIN
as Initial Lenders, Initial Issuing Bank and Swing Line Bank
and
FLEET BANK, N.A.
as Administrative Agent
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms........................................ 1
SECTION 1.02. Computation of Time Periods.................................. 18
SECTION 1.03. Accounting Terms............................................. 18
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances................................................. 18
SECTION 2.02. Making the Advances.......................................... 20
SECTION 2.03. The Competitive Bid Advances................................. 21
SECTION 2.04. Issuance of and Drawings and Reimbursement Under Letters
of Credit.................................................... 24
SECTION 2.05. Fees......................................................... 26
SECTION 2.06. Termination or Reduction of the Commitments.................. 26
SECTION 2.07. Repayment of Advances........................................ 26
SECTION 2.08. Interest..................................................... 28
SECTION 2.09. Interest Rate Determination.................................. 29
SECTION 2.10. Conversion of Advances....................................... 30
SECTION 2.11. Prepayments.................................................. 30
SECTION 2.12. Increased Costs.............................................. 31
SECTION 2.13. Illegality................................................... 32
SECTION 2.14. Payments and Computations.................................... 32
SECTION 2.15. Taxes........................................................ 33
SECTION 2.16. Sharing of Payments, Etc..................................... 34
SECTION 2.17. Use of Proceeds.............................................. 35
SECTION 2.18. Additional Borrowers......................................... 35
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01, 2.03
and 2.04..................................................... 35
SECTION 3.02. Conditions Precedent to the Initial Borrowing of Each
Additional Borrower.......................................... 38
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SECTION 3.03. Conditions Precedent to Certain Term Borrowings.............. 39
SECTION 3.04. Conditions Precedent to Each Borrowing (other than a
Competitive Bid Borrowing) and Issuance...................... 39
SECTION 3.05. Conditions Precedent to Each Competitive Bid Borrowing....... 40
SECTION 3.06. Determinations Under Section 3.01............................ 40
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers.............. 41
ARTICLE V
COVENANTS OF PAXAR
SECTION 5.01. Affirmative Covenants........................................ 43
SECTION 5.02. Negative Covenants........................................... 46
SECTION 5.03. Financial Covenants.......................................... 50
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default............................................ 51
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action..................................... 53
SECTION 7.02. Administrative Agent's Reliance, Etc......................... 53
SECTION 7.03. Fleet and Affiliates......................................... 54
SECTION 7.04. Lender Credit Decision....................................... 54
SECTION 7.05. Indemnification.............................................. 54
SECTION 7.06. Successor Administrative Agent............................... 54
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ARTICLE VIII
GUARANTY
SECTION 8.01. Guaranty..................................................... 55
SECTION 8.02. Guaranty Absolute............................................ 55
SECTION 8.03. Waivers and Acknowledgments.................................. 56
SECTION 8.04. Subrogation.................................................. 56
SECTION 8.05. Continuing Guarantee; Assignments............................ 57
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc.............................................. 57
SECTION 9.02. Notices, Etc................................................. 58
SECTION 9.03. No Waiver; Remedies.......................................... 58
SECTION 9.04. Costs and Expenses........................................... 58
SECTION 9.05. Right of Set-off............................................. 59
SECTION 9.06. Binding Effect............................................... 59
SECTION 9.07. Assignments, Designations and Participations................. 60
SECTION 9.08. Confidentiality.............................................. 62
SECTION 9.09. No Liability of the Issuing Bank............................. 63
SECTION 9.10. Governing Law................................................ 63
SECTION 9.11. Execution in Counterparts.................................... 63
SECTION 9.12. Judgment..................................................... 63
SECTION 9.13. Jurisdiction, Etc............................................ 64
SECTION 9.14. Waiver of Jury Trial......................................... 65
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Schedules
Schedule I - List of Applicable Lending Offices
Schedule 4.01(c) - Required Authorizations and Approvals
Schedule 4.01(f) - Environmental Actions
Schedule 4.01(j) - Environmental Laws
Schedule 5.02(a) - Existing Liens
Schedule 5.02(d) - Existing Debt
Schedule 5.02(g) - Scheduled Investments
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Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Term Note
Exhibit A-3 - 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 F - Form of Pledge Agreement
Exhibit G - Form of Subsidiary Guaranty
Exhibit H-1 - Form of Opinion of Counsel for Paxar
Exhibit H-2 - Form of Opinion of Counsel for Additional Borrowers
Exhibit I - Form of Acceptance of Process Agent
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CREDIT AGREEMENT
Dated as of March 3, 1997
Paxar Corporation, a New York corporation ("Paxar"), 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 Bank, N.A. ("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"), and Fleet as administrative
agent (in such capacity, the "Administrative Agent") for the Lender Parties (as
hereinafter defined), agree as follows:
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 Bank, N.A. with
its office at 1133 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Account No. 0000000, Attention: Xxxxxx Xxxxxxxxx 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 Term 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) at any time prior to the later
of March 31, 1997 and the date on which the Company executes and
delivers a supplement to the Subsidiary Guaranty in accordance with the
provisions of Section 5.01(n), 1.00% per annum for Term Advances and
0.625% per annum for Revolving Credit Advances and (y) at any time
thereafter, a percentage per annum determined by reference to the Debt
to EBITDA Ratio as set forth below:
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================================================================================
Applicable Margin for
Debt To Revolving Credit Applicable Margin for
EBITDA Ratio Advances Term Advances
================================================================================
Level 1
3.25 to 1 or above 0.6250% 1.0000%
--------------------------------------------------------------------------------
Level 2
Greater than or equal
to 3.00 to 1 but less
than 3.25 to 1 0.5000% 0.7500%
--------------------------------------------------------------------------------
Level 3
Greater than or equal
to 2.50 to 1 but less
than 3.00 to 1 0.4125% 0.6000%
--------------------------------------------------------------------------------
Level 4
Greater than or equal
to 2.00 to 1 but less
than 2.50 to 1 0.3500% 0.5000%
--------------------------------------------------------------------------------
Level 5
Greater than or equal
to 1.50 to 1 but less
than 2.00 to 1 0.3000% 0.4250%
--------------------------------------------------------------------------------
Level 6
Greater than or equal
to 1.00 to 1 but less
than 1.50 to 1 0.2500% 0.3500%
--------------------------------------------------------------------------------
Level 7
Less than 1.00 to 1 0.2200% 0.3000%
================================================================================
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(o)(i) or (ii) and a certificate of the chief financial officer or
the treasurer of Paxar demonstrating such ratio.
"Applicable Percentage" means (x) at any time prior to the
later of March 31, 1997 and the date on which the Company executes and
delivers a supplement to the Subsidiary Guaranty in accordance with the
provisions of Section 5.01(n), 0.375% per annum and (y) at any time
thereafter, a percentage per annum determined by reference to the Debt
to EBITDA Ratio as set forth below:
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================================================================================
Debt To Applicable
EBITDA Ratio Percentage
================================================================================
Level 1 0.3750%
3.25 to 1 or above
--------------------------------------------------------------------------------
Xxxxx 0 0.2500%
Greater than or equal to
3.00 to 1 but less than
3.25 to 1
--------------------------------------------------------------------------------
Xxxxx 0 0.1875%
Greater than or equal to
2.50 to 1 but less than
3.00 to 1
--------------------------------------------------------------------------------
Xxxxx 0 0.1500%
Greater than or equal to
2.00 to 1 but less than
2.50 to 1
--------------------------------------------------------------------------------
Xxxxx 0 0.1250%
Greater than or equal to
1.50 to 1 but less than
2.00 to 1
--------------------------------------------------------------------------------
Xxxxx 0 0.1000%
Greater than or equal to
1.00 to 1 but less than
1.50 to 1
--------------------------------------------------------------------------------
Xxxxx 0 0.0800%
Less than 1.00 to 1
================================================================================
The Applicable Percentage for the Revolving Credit Facility and the
Term 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(o)(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).
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"Bankers Trust Credit Agreements" means, collectively, the
Credit Agreement dated as of June 29, 1995 among the Company, the
financial institutions party thereto, BT Commercial Corporation, as
administrative agent, and Bankers Trust Company, as Issuing Bank, as
amended, and the Canadian Credit Agreement dated as of June 29, 1995
among the Company, Monarch Marking Systems Canada, Inc., the financial
institutions party thereto and BT Bank of Canada, as agent, as amended.
"Borrower" means Paxar and each 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 Term
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.
"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.
"Chemical Credit Agreement" means the U.S. $60,000,000 Amended
and Restated Multi-Currency Revolving Credit Agreement dated as of June
18, 1996 among Paxar, Paxar Europe Limited, the Banks party thereto and
Chemical Bank, as agent, as such agreement shall have been amended,
supplemented or otherwise modified through the date hereof.
"Collateral" has the meaning specified in the Pledge
Agreement.
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"Commitment" means a Term Commitment, a Revolving Credit
Commitment or a Letter of Credit Commitment.
"Company" means Monarch Marking Systems, Inc., a Delaware
corporation.
"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.
"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
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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; provided, however,
that, for each of the fiscal quarters ending March 31, 1997, June 30,
1997, September 30, 1997 and December 31, 1997, Consolidated EBITDA for
the most recently completed four fiscal quarters shall be based on the
Consolidated EBITDA of Paxar and its Subsidiaries for such period,
adjusted on a pro forma basis for the Transaction in a manner
acceptable to the Administrative Agent; provided further that for
purposes of determining the Applicable Margin and the Applicable
Percentage on March 31, 1997 (if such determination is necessary
pursuant to those definitions), the Debt to EBITDA Ratio shall be
determined based on Debt of Paxar and its Subsidiaries as at March 31,
1997 and Consolidated EBITDA of Paxar and its Subsidiaries for the four
fiscal quarters ended December 31, 1996, adjusted on a pro forma basis
for the Transaction in a manner acceptable to the Administrative Agent.
"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).
"Effective Date" has the meaning specified in Section 3.01.
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"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
open 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 open 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.
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"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.
"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
15
9
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 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.
"Facility" means the Revolving Credit Facility, the Term
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
16
10
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).
"Information Memorandum" means the information memorandum
dated January 1997 used by the Administrative Agent in connection with
the syndication of the Commitments.
"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
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11
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.
"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.
"L/C Related Documents" has the meaning specified in Section
2.07(d)(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(d).
"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 the
Issuing Bank at any time, (x) during the period from the date hereof
through the date on which the Odyssey Note is paid in full, the amount
set
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12
forth opposite the Issuing Bank's name on Schedule I hereto under the
caption "Letter of Credit Commitment" and (y) thereafter, the Letter of
Credit Commitment shall be $5,000,000 or, in either case, 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 Pledge
Agreement, 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.
"Monarch Bonds" means the Indenture dated as of June 29, 1995
between the Company and Shawmut Bank Connecticut, National Association,
as such agreement may be amended, modified or supplemented pursuant to
its terms.
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13
"Monarch Indenture" means the 12-1/2% Senior Notes due 2003
issued by the Company pursuant to the terms of the Monarch Indenture.
"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 any sale, lease,
transfer or other disposition of any asset or 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, or any Extraordinary Receipt received by or
paid to or for the account of 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.
"Note" means a Revolving Credit Note, a Term 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(d).
"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(d).
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14
"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.
"Odyssey Note" means the promissory note dated March 3, 1997
made by Paxar and payable to Odyssey Partners, L.P. in an aggregate
principal amount of $10,000,000.
"Other Taxes" has the meaning specified in Section 2.15(b).
"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.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Pledge Agreement" has the meaning specified in Section
3.01(l)(v).
"Primary Currencies" means, collectively, the lawful currency
of the United Kingdom of Great Britain and Northern Ireland, the lawful
currency of the Federal Republic of Germany, the lawful currency of the
Republic of France, the lawful currency of The Kingdom of the
Netherlands, the lawful currency of The Swiss Confederation, the lawful
currency of Spain, the lawful currency of Italy, the lawful currency of
Belgium, the lawful currency of Australia and the lawful currency of
Canada; 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.
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"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.
"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, the Registration Rights Agreement and the Odyssey
Note.
"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 Term
Commitments and 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.
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"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.
"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 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" has the meaning specified in Section
3.01(l)(vi).
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"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(c) 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.
"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(c).
"Term Advance" has the meaning specified in Section 2.01(b).
"Term Advance Termination Date" means the earlier of July 31,
1997 and the date on which the aggregate Unused Term Credit Commitments
of the Lenders are reduced to zero.
"Term Borrowing" means a borrowing consisting of simultaneous
Term Advances of the same Type made by the Lenders, which Term Advances
shall be denominated in US Dollars.
"Term 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 "Term 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 "Term Commitment", as such
amount may be reduced at or prior to such time pursuant to Section
2.06.
"Term Facility" means, at any time, the aggregate amount of
the Lenders' Term Commitments at such time.
"Term Note" means a promissory note of Paxar payable to the
order of any Lender, in substantially the form of Exhibit A-2 hereto,
evidencing the indebtedness of Paxar to such Lender resulting from the
Term Advances made by such Lender to Paxar.
"Termination Date" means the earlier of March 3, 2003 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.
"Transaction" has the meaning specified in Section 2.17.
"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
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by the Swing Line Bank pursuant to Section 2.01(c) and outstanding at
such time, and (D) the aggregate principal amount of all Competitive
Bid Advances outstanding at such time.
"Unused Term Credit Commitment" means, with respect to any
Lender at any time, such Lender's Term Commitment at such time minus
the aggregate principal amount of all Term Advances made by such Lender
and outstanding at such time.
"US Dollars" and the "$" sign each mean the lawful money of
the United States of America.
"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").
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 $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) (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 $55,000,000. Within
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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 Term Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make three advances (each a "Term
Advance") to Paxar from time to time on any Business Day during the period from
the date hereof until the Term Advance Termination Date in an amount for each
such Term Advance not to exceed such Lender's Unused Term Commitment at such
time; provided, however, that Paxar shall borrow at least $100,000,000 under the
Term Facility on the Effective Date. Each Term Borrowing shall consist of Term
Advances of the same Type denominated in US Dollars made simultaneously by the
Lenders ratably according to their Term Commitments. Amounts borrowed under this
Section 2.01(b) and repaid or prepaid may not be reborrowed.
(c) 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 $5,000,000 (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. 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(c), repay pursuant to Section 2.07(c) or prepay pursuant to Section
2.11 and reborrow under this Section 2.01(c).
(d) Letters of Credit. The Issuing Bank agrees, on the terms
and conditions hereinafter set forth, to issue letters of credit (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, 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,
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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. 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(d), 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(d).
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
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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 $5,000,000
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.
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.
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(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:
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(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 cancelled 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
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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 $5,000,000 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.
(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,
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(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.
(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.
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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 March 31, 1997, and on the Termination Date.
(b) Term 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 Unused Term
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 Term Advance Termination Date at a rate per annum
equal to the Applicable Percentage in effect from time to time, payable
quarterly on the last day of each March and June, commencing March 31, 1997, and
on the Term Advance 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 March 31, 1997, 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) Term Advances. Paxar shall repay to the Administrative
Agent for the ratable account of the Lenders the aggregate outstanding principal
amount of the Term Advances on the following dates in the amounts indicated
(which amounts shall be reduced as a result of the application of prepayments in
accordance with the order of priority set forth in Section 2.11):
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Date Amount
---- ------
March 31, 1998 $5.0 million
June 30, 1998 5.0 million
September 30, 1998 5.0 million
December 31, 1998 5.0 million
March 31, 1999 6.25 million
June 30, 1999 6.25 million
September 30, 1999 6.25 million
December 31, 1999 6.25 million
March 31, 2000 7.5 million
June 30, 2000 7.5 million
September 30, 2000 7.5 million
December 31, 2000 7.5 million
March 31, 2001 7.5 million
June 30, 2001 7.5 million
September 30, 2001 7.5 million
December 31, 2001 7.5 million
March 31, 2002 8.75 million
June 30, 2002 8.75 million
September 30, 2002 8.75 million
December 31, 2002 8.75 million
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term Advances outstanding on such date.
(c) 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.
(d) 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
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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 other 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
(G) 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
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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).
(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 or Term 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.
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(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). Each such
prepayment of the Term Advances shall be applied to the installments of the Term
Facility on a pro rata basis.
(b) Mandatory. (i) Paxar shall, on the date of receipt of the
Net Cash Proceeds by Paxar or any of its Subsidiaries from (A) the sale, lease,
transfer or other disposition of any assets of Paxar or any of its Subsidiaries
(other than any sale, lease, transfer or other disposition of assets pursuant to
clause (i) or (ii) of Section 5.02(f)), (B) the incurrence or issuance by Paxar
or any of its Subsidiaries of any Debt (other than Debt incurred or issued
pursuant to the exceptions set forth in Section 5.02(d) on the date hereof), (C)
the sale or issuance by Paxar or any of its Subsidiaries of any capital stock or
other ownership or profit interest, any securities convertible into or
exchangeable for capital stock or other ownership or profit interest and (D) any
Extraordinary Receipt
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received by or paid to or for the account of Paxar or any of its Subsidiaries
and not otherwise included in clause (A), (B) or (C) above, prepay an aggregate
principal amount of the Term Advances comprising part of the same Borrowings
equal to (x) in the case of clause (A) above, the amount of such Net Cash
Proceeds in excess of the Permitted Asset Sale Amount and (y) in the case of
clauses (B), (C) and (D) above, the amount of such Net Cash Proceeds. Each such
prepayment described in subclause (x) of the immediately preceding sentence
shall be applied to the Term Facility and to the installments thereof in reverse
order of maturity. Each such prepayment described in subclause (y) of the
immediately preceding sentence shall be applied to the Term Facility and to the
installments thereof on a pro rata basis.
(ii) 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.
(iii) Prepayments of the Revolving Credit Facility made
pursuant to clause (ii) 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.
(iv) 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
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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.
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.
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(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.
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.
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(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 1001 or 4224, 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 1001 or 4224, 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.
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.
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SECTION 2.17. Use of Proceeds. The proceeds of the Term
Advances shall be used to finance the acquisition (the "Transaction") by Paxar
of the remaining portion of the outstanding capital stock of the Company that is
not, prior to the date hereof, owned by Paxar and to redeem, purchase, defease
or otherwise satisfy the Monarch Bonds, and in the case of all of the Advances,
the proceeds thereof 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.
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) The terms and conditions of the Transaction shall be
satisfactory to the Lender Parties; and the Transaction shall have been
consummated strictly in accordance with the terms of the Stock Purchase
Agreement, without any waiver or amendment of any material term,
provision or condition set forth therein, and in compliance with all
applicable laws.
(b) The Stock Purchase Agreement shall be in full force and
effect.
(c) The Lender Parties shall be satisfied with the corporate
and legal structure and capitalization of Paxar and each of its
Subsidiaries, including the terms and conditions of the charter, bylaws
and each class of capital stock of each Loan Party and each such
Subsidiary and of each agreement or instrument relating to such
structure or capitalization.
(d) There shall have occurred (i) no Material Adverse Change
since December 31, 1995 and (ii) no material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Company and its Subsidiaries, taken as a
whole, since December 31, 1995.
(e) 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 Transaction,
the Facilities or the consummation of the transactions contemplated
hereby.
(f) The Lenders shall have completed a due diligence
investigation of Paxar and its Subsidiaries and of the Company and its
Subsidiaries in scope, and with results, satisfactory to the Lender
Parties, and nothing shall have come to the attention of any of the
Lender Parties during the course of such due diligence investigation to
lead them to believe that the Information Memorandum was or has become
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misleading, incorrect or incomplete in any material respect; without
limiting the generality of the foregoing, the Lender Parties shall have
been given such access to the management, records, books of account,
contracts and properties of Paxar and its Subsidiaries and of the
Company and its Subsidiaries as they shall have requested.
(g) All governmental and third party consents and approvals
necessary in connection with the Transaction, 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.
(h) All of the information provided by or on behalf of Paxar
to the Administrative Agent and the Lender Parties prior to their
commitment (the "Pre-Commitment Information") shall be true and correct
in all material aspects; and no additional information shall have come
to the attention of the Administrative Agent or of any of the Lenders
that is inconsistent in any material respect with the Pre-Commitment
Information or that could reasonably be expected to have a Material
Adverse Effect.
(i) Paxar shall have notified each Lender Party and the
Administrative Agent in writing as to the proposed Effective Date.
(j) 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).
(k) 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.
(l) 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 (except for the
Notes) in sufficient copies for each Lender Party:
(i) The Notes to the order of the Lenders.
(ii) Certified copies of (A) the resolutions of the
Board of Directors of Paxar and each other Loan Party
approving the Transaction, this Agreement, the Notes, each
other Loan Document and each Related Document to which it is
or is to be a party, (B) the bylaws of Paxar and each other
Loan Party and (C) all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to the Transaction, this Agreement, the Notes, each
other Loan Document and each Related Document.
(iii) 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, the Notes,
each other Loan Document and each Related Document to which
they are or are to be parties and the other documents to be
delivered hereunder.
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(iv) A copy of the charter of Paxar, the Company and
each other Loan Party 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.
(v) A pledge agreement in substantially the form of
Exhibit F hereto (as amended, supplemented or otherwise
modified from time to time in accordance with its terms, the
"Pledge Agreement"), duly executed by Paxar and the other Loan
Parties (other than the Company), together with:
(A) certificates representing the Pledged
Shares referred to therein accompanied by undated
stock powers executed in blank and instruments
evidencing the Pledged Debt referred to therein
indorsed in blank,
(B) acknowledgment copies or stamped receipt
copies of proper financing statements, duly filed on
or before the day of the Initial Extension of Credit
under the Uniform Commercial Code of all
jurisdictions that the Administrative Agent may deem
necessary or desirable in order to perfect and
protect the first priority liens and security
interests created under the Pledge Agreement,
covering the Collateral described in the Pledge
Agreement,
(C) completed requests for information,
dated on or before the date of the Initial Extension
of Credit, listing the financing statements referred
to in clause (B) above and all other effective
financing statements filed in the jurisdictions
referred to in clause (B) above that name Paxar as
debtor, together with copies of such other financing
statements, and
(D) evidence that all other action that the
Administrative Agent may deem necessary or desirable
in order to perfect and protect the first priority
liens and security interests created under the Pledge
Agreement has been taken.
(vi) A guaranty in substantially the form of Exhibit
G hereto (as amended, supplemented or otherwise modified from
time to time in accordance with its terms, the "Subsidiary
Guaranty"), duly executed by each of the Subsidiary Guarantors
(other than the Company).
(vii) Certified copies of each of the Related
Documents, duly executed by the parties thereto and in form
and substance satisfactory to the Lender Parties, together
with all agreements, instruments and other documents delivered
in connection therewith.
(viii) Such financial, business and other information
regarding each Loan Party and its Subsidiaries as the Lender
Parties shall have requested, including, without limitation,
information as to possible contingent liabilities, tax
matters, environmental matters, obligations under Plans,
Multiemployer Plans and Welfare Plans, collective bargaining
agreements and other arrangements with employees, audited
annual financial statements dated December 31, 1995, interim
financial statements dated the end of the most recent fiscal
quarter for which financial statements are available (or, in
the event the Lender Parties' due diligence review reveals
material changes since such financial statements, as of a
later date within 45 days of the day of the Effective Date),
pro forma financial statements as to Paxar and forecasts
prepared by management of Paxar, in form and substance
satisfactory to the Lender Parties, of balance sheets, income
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statements and cash flow statements on an annual basis for
each year following the Effective Date until the Termination
Date.
(ix) 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.
(x) Evidence of insurance with such responsible and
reputable insurance companies or associations, and in such
amounts and covering such risks, as is satisfactory to the
Lender Parties, including, without limitation, business
interruption insurance.
(xi) A favorable opinion of Snow Xxxxxx Xxxxxx P.C.,
counsel for Paxar, substantially in the form of Exhibit H-1
hereto and as to such other matters as any Lender Party
through the Administrative Agent may reasonably request.
(xii) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
(xiii) Evidence satisfactory to the Administrative
Agent of (A) the termination of the Chemical Credit Agreement
and the Bankers Trust Credit Agreements and (B) the payments
in full of all amounts due under or in respect of the Chemical
Credit Agreement and the Bankers Trust Credit Agreements.
SECTION 3.02. 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
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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.
(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 I 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 H-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 3.03. Conditions Precedent to Certain Term Borrowings.
The obligation of each Lender to make a Term Advance on the occasion of each
Term Borrowing the proceeds of which will be used to purchase, defease or
otherwise satisfy the Monarch Bonds (other than in connection with the
redemption of $30,000,000 aggregate principal amount of the Monarch Bonds from
the proceeds of an "Equity Offering" (as defined in the Monarch Indenture))
shall be subject to the condition precedent that the Company shall have executed
and delivered a supplement to the Subsidiary Guaranty and a supplement to the
Pledge Agreement in accordance with the provisions of Section 5.01(n).
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
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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):
(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, each other Loan Document and each Related
Document to which it is or is to be a party, and the consummation of
the Transaction and the other 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, any other Loan Document or any Related Document to which it is
or is to be a party or for the consummation of the Transaction or the
other transactions contemplated hereby, (ii) the grant by Paxar of the
Liens granted by it pursuant to the Pledge Agreement, (iii) the
perfection or maintenance of the Liens created by the Pledge Agreement
(including the first priority nature thereof) or (iv) the exercise by
the Administrative Agent or any Lender Party of its rights under the
Loan Documents or the remedies in respect of the Collateral pursuant to
the Pledge Agreement, 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 has been, and each of the Notes, each other
Loan Document and each Related Document when delivered hereunder will
have been, duly executed and delivered by each Loan Party party
thereto. This Agreement is, and each of the Notes, each other Loan
Document and each Related Document when delivered hereunder will be,
the legal, valid and binding obligation of each Loan Party party
thereto, enforceable against such Loan Party in accordance with its
respective terms.
(e) (i) The Consolidated balance sheet of Paxar and its
Subsidiaries as at December 31, 1995, 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 Xxxxxx
Xxxxxxxx LLP, independent public accountants, and the Consolidated
balance sheet of Paxar and its Subsidiaries as at September 30, 1996,
and the related Consolidated statements of income and cash flows of
Paxar and its Subsidiaries for the nine 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 September 30, 1996,
and said statements of income and cash flows for the nine months then
ended, to
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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, 1995,
there has been no Material Adverse Change.
(ii) The Consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 1995, and the related Consolidated
statements of income and cash flows of the Company and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of Xxxxxx
Xxxxxxxx LLP, independent public accountants, and the Consolidated
balance sheet of the Company and its Subsidiaries as at September 30,
1996, and the related Consolidated statements of income and cash flows
of the Company and its Subsidiaries for the nine months then ended,
duly certified by the vice president of finance or the treasurer of the
Company, copies of which have been furnished to each Lender Party,
fairly present, subject, in the case of said balance sheet as at
September 30, 1996, and said statements of income and cash flows for
the nine months then ended, to year-end audit adjustments, the
Consolidated financial condition of the Company and its Subsidiaries as
at such dates and the Consolidated results of operations of the Company
and its Subsidiaries for the periods ended on such dates, all in
accordance with generally accepted accounting principles consistently
applied. Since December 31, 1995, there has been no material adverse
change in the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Company and its
Subsidiaries, taken as a whole.
(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) The Consolidated pro forma balance sheet of Paxar and its
Subsidiaries as at December 31, 1996, and the related Consolidated pro
forma statement of income and cash flows of Paxar and its Subsidiaries
for the fiscal year then ended, certified by the chief financial
officer of Paxar, copies of which have been furnished to each Lender
Party, fairly present the Consolidated pro forma financial condition of
Paxar and its Subsidiaries as at such date and the Consolidated pro
forma results of operations of Paxar and its Subsidiaries for the
period ended on such date, in each case giving effect to the
Transactions and the other transactions contemplated hereby.
(i) Neither the Information Memorandum 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.
(j) Except with respect to the matters disclosed on Schedule
4.01(j), 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
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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.
(k) 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.
(l) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
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.
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(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
cancelled, 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.
(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) Interest Rate Hedging. On or prior to September 30, 1997,
enter into, and maintain at all times thereafter, interest rate Hedge
Agreements with Persons acceptable to the Administrative Agent on terms
and conditions reasonably satisfactory to the Required Lenders.
(l) 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
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good faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances.
(m) 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.
(n) Monarch as Subsidiary Guarantor. On or prior to the 150th
day following the Effective Date, cause the Company to (i) execute a
supplement to the Subsidiary Guaranty pursuant to the terms of the
Subsidiary Guaranty without conflicting with or resulting in the breach
of, or constituting a default under, the Monarch Indenture, (ii)
execute a supplement to the Pledge Agreement pursuant to the terms of
the Pledge Agreement without conflicting with or resulting in the
breach of, or constituting a default under, the Monarch Indenture and
(iii) cause certain covenants (acceptable to the Required Lenders)
contained in the Monarch Indenture to be deleted in their entirety.
(o) 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;
(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 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 Xxxxxx Xxxxxxxx LLP 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
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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
securityholders, 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.
(p) Release of Security Relating to Bankers Trust Credit
Agreements. Within 30 days of the date hereof, the Administrative Agent
shall have received satisfactory evidence that all liens and any other
security interests relating to the Bankers Trust Credit Agreements and
any other loan documents relating thereto have been terminated or
released.
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,
(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,
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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 principal amount of the
indebtedness secured by a Lien referred to in this clause (ii)
shall not exceed $500,000, and 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, and
(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.
(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 and (iii) any Subsidiary of Paxar may merge into
Paxar, provided, in each case, that no Default shall have occurred and
be continuing at the time of such proposed transaction or would result
therefrom.
(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 in an aggregate
notional amount not to exceed $100,000,000 at any time
outstanding;
(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 $55,000,000 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 the Pledge Agreement or 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
the sum of such Capitalized Leases plus the aggregate
amount of Debt secured by Liens permitted by Section
5.02(a)(ii) shall not exceed $10,000,000 at any one
time outstanding,
(D) unsecured Debt incurred in the ordinary
course of business aggregating not more than
$20,000,000 at any one time outstanding,
(E) in the case of Existing Debt of Paxar
and its Subsidiaries and the Debt referred to in
clause (D) above, 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 or such Debt referred to in
cause (D) above,
(F) 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; and
(G) endorsement of negotiable instruments
for deposit or collection or similar transactions in
the ordinary course of business.
(e) Lease Obligations. Create, incur, assume or suffer to
exist, or permit any of its Subsidiaries to create, incur, assume or
suffer to exist, any obligations as lessee for the rental or hire of
real or personal property of any kind under leases or agreements to
lease having an original term of one year or more that would cause the
direct and contingent liabilities of Paxar and its Subsidiaries, on a
Consolidated basis, in respect of all such obligations to exceed
$10,000,000 payable in any period of 12 consecutive months.
(f) 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
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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 $1,000,000 in any Fiscal Year.
(g) 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, provided
that, prior to the date on which the Company complies with the
provisions of Section 5.01(n), the aggregate amount that may
be invested in the Company shall not exceed $34,000,000 (which
amount shall be used solely to redeem the Monarch Bonds), (B)
Investments by Paxar and its domestic Subsidiaries in wholly
owned domestic Subsidiaries of Paxar that, prior to the making
of such Investments were not wholly owned Subsidiaries of
Paxar, in an aggregate amount invested from the date hereof
not to exceed $25,000,000, provided that with respect to
Investments in any newly acquired or created wholly owned
domestic Subsidiary of Paxar, such Subsidiary shall become (1)
a Subsidiary Guarantor pursuant to the terms of the Subsidiary
Guaranty and (2) an "Additional Grantor" pursuant to the terms
of the Pledge Agreement, (C) Investments by the foreign
Subsidiaries of Paxar in their Subsidiaries outstanding on the
date hereof and (D) Investments by Paxar and its domestic
Subsidiaries in wholly owned foreign Subsidiaries of Paxar
(whether such wholly owned Subsidiaries are existing on the
date hereof or are newly acquired or created) in an aggregate
amount invested from the date hereof not to exceed the
difference between (i) $25,000,000 and (ii) the aggregate
amount of all Investments made by Paxar and its domestic
Subsidiaries pursuant to clause (F) of this Section
5.02(g)(i), provided that (x) no single Investment permitted
by this clause (D) in any newly acquired or created wholly
owned foreign subsidiary shall exceed $10,000,000 and (y) no
Investment may be made in foreign Subsidiaries of the Company
prior to the date on which the Company complies with Section
5.01(n), (E) the Investment described on Schedule 5.02(g)
hereto, and (F) Investments by Paxar and its domestic
Subsidiaries in non-wholly owned foreign Subsidiaries in an
aggregate amount invested from the date hereof not to exceed
$10,000,000;
(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 $2,000,000 at any time outstanding;
(iii) Investments in Cash Equivalents;
(iv) Investments in an aggregate principal amount not
to exceed $15,000,000 at any time outstanding 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 $1,000,000 in Persons other than wholly
owned Subsidiaries; provided that (1) Paxar and its domestic
Subsidiaries shall not make any Investments pursuant to this
clause (vi) in any foreign Subsidiary
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of Paxar or any foreign Person and (2) 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.
(h) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business
as carried on at the date hereof.
(i) Charter Amendments. Amend, or permit any of its
Subsidiaries to amend, its certificate of incorporation or bylaws.
(j) Prepayments, Etc. of Debt. 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, other than (i) the prepayment of the Advances in
accordance with the terms of this Agreement, (ii) regularly scheduled
or required repayments or redemptions of Existing Debt or (iii) the
redemption, purchase, defeasance or other satisfaction of the Monarch
Bonds prior to the scheduled maturity thereof, or amend, modify or
change in any manner any term or condition of any Existing Debt, or
permit any of its Subsidiaries to do any of the foregoing other than to
prepay any Debt payable to Paxar.
(k) 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 or give any consent, waiver or
approval thereunder, 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.
(l) Negative Pledge. Enter into or suffer to exist, or permit
any of its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon
any of its property or assets other than an agreement that permits
Liens (i) in favor of the Lender Parties, (ii) in connection with any
Existing Debt or (iii) in connection with Debt permitted pursuant to
Section 5.02(d)(iii)(C), provided that any such agreement permitted by
this clause (iii) shall only relate to the asset that is the subject of
the Capitalized Lease or the purchase money Lien, as the case may be.
(m) 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 $137,000,000 plus 50% 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 January 1, 1997 to and including each
date of determination computed on a cumulative basis for said entire
period plus 100% of the Net Cash Proceeds received by Paxar from the
sale or issuance by Paxar of its capital stock on and after January 1,
1997.
(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 the ratio set forth below for such fiscal quarter:
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Fiscal Quarter
Ending Ratio
-------------- -----
March 31, 1997 3.50:1
June 30, 1997 3.50:1
September 30, 1997 3.25:1
December 31, 1997 3.25:1
Thereafter 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, in each case by Paxar and its Subsidiaries, of not less 1.50:1;
provided, however, that, for each of the fiscal quarters ending March
31, 1997, June 30, 1997, September 30, 1997 and December 31, 1997, each
of the financial components for this fixed charge coverage ratio shall
be based on such the financial statements of Paxar and its Subsidiaries
for such period, adjusted on a pro forma basis for the Transaction in a
manner acceptable to the Administrative Agent.
(d) Foreign Subsidiary Financial Covenant. Cause each Borrower
that is a foreign Subsidiary of Paxar to maintain, at the end of each
fiscal quarter of such Borrower, a ratio of Consolidated EBIT for the
most recently completed four fiscal quarters of such Borrower and its
Subsidiaries to Consolidated Net Interest Expense for the most recently
completed four fiscal quarters of such Borrower and its Subsidiaries of
not less than 1.25:1.
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) The Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable; or the 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), (k), (n)
or (p), 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
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(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
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(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
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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.
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
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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.
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;
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(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.
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 cancelled
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
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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 cancelled, 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.
ARTICLE IX
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) release all or substantially all of the Collateral in any transaction or
series of related transactions or permit the creation, incurrence, assumption or
existence of any Lien on all or substantially all of the Collateral in any
transaction or series of related transactions to secure any Obligations other
than Obligations owing to any Lender Party or the Administrative Agent under the
Loan Documents 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
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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: Xxxxxx Xxxxxxxx; 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: Xxxx
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.
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
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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.
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.
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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 $5,000,000, (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.
(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
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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.
(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
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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.
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.
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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.
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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.
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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.
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
---------------------------------
Title:
FLEET BANK, N.A.,
as Administrative Agent
By
---------------------------------
Title:
FLEET BANK, N.A.,
as Initial Issuing Bank
By
---------------------------------
Title:
Initial Lenders
FLEET BANK, N.A.
By
---------------------------------
Title:
ABN AMRO BANK N.V.
NEW YORK BRANCH
By
---------------------------------
Title:
By
---------------------------------
Title:
00
XXXX XX XXXXXX XXXXXXXXXXX
By
---------------------------------
Title:
THE BANK OF NEW YORK
By
---------------------------------
Title:
THE BANK OF NOVA SCOTIA
By
---------------------------------
Title:
CORESTATES BANK, N.A.
By
---------------------------------
Title:
CREDITO ITALIANO S.p.A.
By
---------------------------------
Title:
By
---------------------------------
Title:
FIRST UNION NATIONAL BANK
By
---------------------------------
Title:
MELLON BANK, N.A.
By
---------------------------------
Title:
73
NATIONAL CITY BANK OF DAYTON
By
---------------------------------
Title:
NATIONSBANK, N.A.
By
---------------------------------
Title:
STATE STREET BANK AND TRUST COMPANY
By
---------------------------------
Title:
THE SUMITOMO BANK, LIMITED
By
---------------------------------
Title:
By
---------------------------------
Title:
SUNTRUST BANK, ATLANTA
By
---------------------------------
Title:
By
---------------------------------
Title:
WACHOVIA BANK OF GEORGIA, N.A.
By
---------------------------------
Title:
74
SCHEDULE I
LIST OF APPLICABLE LENDING OFFICES
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NAME OF DOMESTIC EUROCURRENCY REVOLVING CREDIT TERM CREDIT LETTER OF
INITIAL LENDER LENDING OFFICE LENDING OFFICE COMMITMENT COMMITMENT CREDIT
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Fleet Bank, N.A. 1133 Avenue of the Americas 1133 Avenue of the Americas $17,500,000 $17,500,000 $15,000,000
00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, XX Xxx Xxxx, XX
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attn: Xxxxxx Xxxxxxxxx Attn: Xxxxxx Xxxxxxxxx
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ABN-AMRO 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx 4,000,000 4,000,000 X/X
Xxxx X.X., Xxx Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
York Branch Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attn: Xxxxxx Del Xxxxxxx Attn: Xxxxxx Del Vecchio
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Bank of Boston - One Landmark Square, One Landmark Square, 9,000,000 9,000,000 X/X
Xxxxxxxxxxx Xxxxx 0000 Xxxxx 0000
Xxxxxxxx, XX 06901 Xxxxxxxx, XX 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attn: Xxxxxx Xxxxxxx Attn: Xxxxxxxx Xxxxxxx
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The Bank of New 00 Xxxxxxx Xxx Xxxx Xxx Xxxx xx Xxx Xxxx 13,750,000 13,750,000 N/A
York Xxxxxxxxxx, XX 00000 Grand Cayman
Tel: (000) 000-0000 00 Xxxx Xxxxxx, 00xx Xxxxx
Fax: (000) 000-0000 Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxxxx Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxx Xxxxxxxxxxx
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75
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The Bank of Xxx Xxxxxxx Xxxxx Xxx Xxxxxxx Xxxxx $ 9,000,000 $ 9,000,000 N/A
Nova Scotia 00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attn: Xxxxx Xxxx Attn: Xxxxx Xxxx
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Corestates Bank, 0000 Xxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxx 9,000,000 9,000,000 N/A
N.A. X.X. Xxx 0000 X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxx Attn: Xxxxx X. Xxxxx
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Credito Italiano, 000 Xxxx Xxxxxx Xxxxx Xxxxxx Branch 4,000,000 4,000,000 N/A
S.p.A. 0xx Xxxxx x/x Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000 000 Xxxx Xxx., 0xx Xxxxx
Tel: (000) 000-0000 Xxx Xxxx, XX 00000
Fax: (000) 000-0000 Tel: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx, FVP Fax: (000) 000-0000
Attn: Xxx Xxxxx
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First Union 00 Xxxx Xxxxxx 0 Xxxxxxxxxxx 9,000,000 9,000,000 X/X
Xxxxxxxx Xxxx Xxxxx Xxxxxx, XX 00000 London, XXX 0XX, Xxxxxxx
Tel: (000) 000-0000 Tel: 000-00-000-000-0000
Fax: (000) 000-0000 Fax: 000-00-000-000-0000
Attn: Xxxxx Xxxx, VP Attn: Xxx Xxxxxxxx, VP
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Mellon Bank, 165 EAB Xxxxx-0 Xxxx 000 Xxxxxx Xxxxxx 9,000,000 9,000,000 N/A
N.A. Xxxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxx Attn: Xxxxx Xxxxx
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National City 0 X. Xxxx Xxxxxx 0 X. Xxxx Xxxxxx $ 4,000,000 $ 4,000,000 X/X
Xxxx xx Xxxxxx Xxxxxx, XX 00000 Xxxxxx, XX 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attn: Xxxx Xxxxxx Attn: Xxxx Xxxxxx
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76
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NationsBank, 000 Xxxxx Xxxxx Xxxxxx 000 Xxxxx Xxxxx Xxxxxx 13,750,000 13,750,000 N/A
N.A. Charlotte, NC 28255 Xxxxxxxxx, XX 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxx Attn: Xxxxx X. Xxxxx
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State Street Bank 000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx 4,000,000 4,000,000 N/A
and Trust Xxxxxx, XX 00000 Xxxxxx, XX 00000
Company Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attn: Xxxxxx Xxxx Attn: Xxxxxx Xxxx
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The Sumitomo 000 X. Xxxxxx Xxxxx, 000 X. Xxxxxx Xxxxx, 9,000,000 9,000,000 N/A
Bank, Limited Suite 5400 Suite 5400
Chicago, IL 60606 Xxxxxxx, XX 00000
Tel: n/a Tel: n/a
Fax: n/a Fax: n/a
Attn: n/a Attn: n/a
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SunTrust Bank, 00 Xxxx Xxxxx, 00 Xxxx Xxxxx, 9,000,000 9,000,000 N/A
Atlanta 26th Floor 26th Floor
Atlanta, GA 30303 Xxxxxxx, XX 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attn: Xxxx Xxxx Attn: Xxxx Xxxx
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Wachovia Bank 000 Xxxxxxxxx Xx. X.X. 000 Xxxxxxxxx Xx. X.X. 16,000,000 16,000,000 N/A
of Georgia, N.A. Atlanta, GA 30303 Xxxxxxx, XX 00000
Tel: (000) 000-0000/7709 Tel: (000) 000-0000/7709
Fax: (000) 000-0000 Fax: (000) 000-0000
Attn: Xxxx Xxxxx/Xxxxx Xxxx Attn: Xxxx Xxxxx/Xxxxx Xxxx
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77
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S. _______________ Dated: March __, 1997
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________________________ corporation (the "Borrower"), HEREBY PROMISES TO PAY
to the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office (as defined in the Credit Agreement referred to below)
the aggregate principal amount of the Revolving Credit Advances (as defined
below) owing to the Lender by the Borrower pursuant to the Credit Agreement
dated as of March __, 1997 among the Borrower, [Paxar Corporation,] the other
Borrowers party thereto, the Lender and certain other lenders party thereto, and
Fleet Bank, N.A., as Administrative Agent for the Lender and such other lenders
(as amended or modified from time to time, the "Credit Agreement"; the terms
defined therein being used herein as therein defined) on the Termination Date.
The Borrower promises to pay the Lender interest on the unpaid
principal amount of each Revolving Credit Advance from the date of such
Revolving Credit Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in the Credit
Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Fleet Bank, N.A., as Administrative Agent, at
_________________________, ____________________, __________, in same day funds.
Each Revolving Credit Advance owing to the Lender by the Borrower pursuant to
the Credit Agreement, and all payments made on account of principal thereof,
shall be recorded by the Lender and, prior to any transfer hereof, endorsed on
the grid attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes
referred to in, and is entitled to the benefits of, the Credit Agreement. The
Credit Agreement, among other things, (i) provides for the making of advances
(the "Revolving Credit Advances") by the Lender to the Borrower from time to
time in an aggregate amount not to exceed at any time outstanding the U.S.
dollar amount first above mentioned, the indebtedness of the Borrower resulting
from each such Revolving Credit Advance being evidenced by this Promissory Note,
and (ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified. The obligations of the Borrower under this Promissory Note
and the Credit Agreement, and the obligations of the other Loan Parties under
the Loan Documents, are secured by the Collateral as provided in the Loan
Documents.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
[NAME OF BORROWER]
By______________________________
Title:
78
ADVANCES AND PAYMENTS OF PRINCIPAL
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AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
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79
EXHIBIT A-2 - FORM OF
TERM PROMISSORY NOTE
U.S. _______________ Dated: March __, 1997
FOR VALUE RECEIVED, the undersigned, PAXAR CORPORATION, a New
York corporation ("Paxar"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office as defined in the Credit Agreement referred to below) the
aggregate principal amount of the Term Advances (as defined below) owing to the
Lender by Paxar pursuant to the Credit Agreement dated as of March __, 1997
among Paxar, the other Borrowers party thereto, the Lender and certain other
lenders party thereto, and Fleet Bank, N.A., as Administrative Agent for the
Lender and such other lenders (as amended or modified from time to time, the
"Credit Agreement"; the terms defined therein being used herein as therein
defined) on the Termination Date and as otherwise provided in the Credit
Agreement.
Paxar promises to pay the Lender interest on the unpaid
principal amount of each Term Advance from the date of such Term Advance until
such principal amount is paid in full, at such interest rates, and payable at
such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Fleet Bank, N.A., as Administrative Agent, at
_________________________, ____________________, __________, in same day funds.
Each Term Advance owing to the Lender by Paxar pursuant to the Credit Agreement,
and all payments made on account of principal thereof, shall be recorded by the
Lender and, prior to any transfer hereof, endorsed on the grid attached hereto
which is part of this Promissory Note.
This Promissory Note is one of the Term Notes referred to in,
and is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of advances (the "Term
Advances") by the Lender to Paxar from time to time in an aggregate amount not
to exceed at any time outstanding the U.S. dollar amount first above mentioned,
the indebtedness of Paxar resulting from each such Term Advance being evidenced
by this Promissory Note, and (ii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified. The obligations of Paxar under this
Promissory Note and the Credit Agreement, and the obligations of the other Loan
Parties under the Loan Documents, are secured by the Collateral as provided in
the Loan Documents.
Paxar hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
PAXAR CORPORATION
By__________________________________
Title:
80
ADVANCES AND PAYMENTS OF PRINCIPAL
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AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
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81
EXHIBIT A-3 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S. _______________ Dated: _______________, 199_
FOR VALUE RECEIVED, the undersigned, PAXAR CORPORATION, a New
York corporation ("Paxar"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the Credit Agreement dated as of March __, 1997
among Paxar, the other Borrowers party thereto, the Lender and certain other
lenders party thereto, and Fleet Bank, N.A., as Administrative Agent for the
Lender and such other lenders (as amended or modified from time to time, the
"Credit Agreement"; the terms defined therein being used herein as therein
defined)), on _______________, 199_, the principal amount of U.S.
_______________.
Paxar promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of
_____ days for the actual number of days elapsed).
Interest Payment Date: _____ and _____.
Both principal and interest are payable in lawful money of the
United States of America to Fleet Bank, N.A. for the account of the Lender at
the office of Fleet Bank, N.A., at _________________________ in same day funds.
This Promissory Note is one of the Competitive Bid Notes
referred to in, and is entitled to the benefits of, the Credit Agreement. The
Credit Agreement, among other things, contains provisions for acceleration of
the maturity hereof upon the happening of certain stated events. The obligations
of Paxar under this Promissory Note and the Credit Agreement are secured by
collateral as provided therein.
Paxar hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
PAXAR CORPORATION
By_____________________________________
Title:
82
EXHIBIT B-1 - FORM OF
NOTICE OF BORROWING
Fleet Bank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
_________________________
_________________________ [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Credit
Agreement, dated as of March __, 1997 (as amended or modified from time to time,
the "Credit Agreement", the terms defined therein being used herein as therein
defined), among [Paxar Corporation], the undersigned,the other Borrowers party
thereto, certain Lenders party thereto and Fleet Bank, N.A., as Administrative
Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby requests a
Borrowing under the Credit Agreement, and in that connection sets forth below
the information relating to such Borrowing (the "Proposed Borrowing") as
required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_______________, 199_.
(ii) The Facility under which the Proposed Borrowing is
requested is the ________ Facility.
(iii) The Type of Advances comprising the Proposed Borrowing
is [Prime Rate Advances] [Eurocurrency Rate Advances].
(iv) The aggregate amount of the Proposed Borrowing is
_______________.
[(v) The initial Interest Period [and the currency] for each
Eurocurrency Rate Advance made as part of the Proposed Borrowing is
_____ month[s] and [Primary Currency].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Revolving Credit Borrowing:
(A) the representations and warranties contained in each Loan
Document are correct, before and after giving effect to the Proposed
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 Proposed Borrowing, in which case as of such specific
date); and
(B) no event has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
[NAME OF BORROWER]
By________________________________
Title:
83
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Fleet Bank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
_________________________
_________________________ [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, Paxar Corporation, refers to the Credit
Agreement, dated as of March __, 1997 (as amended or modified from time to time,
the "Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, the other Borrowers party thereto, certain
Lenders party thereto and Fleet Bank, N.A., as Administrative Agent for said
Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.03 of
the Credit Agreement that the undersigned hereby requests a Competitive Bid
Borrowing under the Credit Agreement, and in that connection sets forth the
terms on which such Competitive Bid Borrowing (the "Proposed Competitive Bid
Borrowing") is requested to be made:
(A) Date of Competitive Bid Borrowing _____________________
(B) Amount of Competitive Bid Borrowing _____________________
(C) [Maturity Date] [Interest Period] _____________________
(D) Interest Rate Basis _____________________
(E) Interest Payment Date(s) _____________________
(F) ___________________ _____________________
(G) ___________________ _____________________
(H) ___________________ _____________________
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(a) the representations and warranties contained in each Loan
Document are correct, before and after giving effect to the Proposed
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 Proposed Competitive Bid Borrowing, in
which case as of such specific date);
(b) no event has occurred and is continuing, or would result
from the Proposed Competitive Bid Borrowing or from the application of
the proceeds therefrom, that constitutes a Default;
(c) no event has occurred and no circumstance exists as a
result of which the information concerning the undersigned that has
been provided to the Administrative Agent and each Lender by the
undersigned in connection with the Credit Agreement 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;
and
(d) the aggregate amount of the Proposed Competitive Bid
Borrowing and all Revolving Credit Borrowings and Swing Line Borrowings
to be made on the same day under the Credit Agreement is within the
aggregate amount of the Unused Revolving Credit Commitments of the
Lenders.
84
2
The undersigned hereby confirms that the Proposed Competitive
Bid Borrowing is to be made available to it in accordance with Section
2.03(a)(v) of the Credit Agreement.
Very truly yours,
PAXAR CORPORATION
By________________________________
Title:
85
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of March
__, 1997 (as amended or modified from time to time, the "Credit Agreement")
among Paxar Corporation, a New York corporation ("Paxar"), the other Borrowers
(as defined in the Credit Agreement) party thereto, the Lenders (as defined in
the Credit Agreement) and Fleet Bank, N.A., as administrative agent for the
Lenders (the "Administrative Agent"). Terms defined in the Credit Agreement are
used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee
without recourse, and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to the Assignor's rights and obligations under the
Credit Agreement as of the date hereof (other than in respect of Competitive Bid
Advances and Competitive Bid Notes) equal to the percentage interest specified
on Schedule 1 hereto of all outstanding rights and obligations under the Credit
Agreement (other than in respect of Competitive Bid Advances and Competitive Bid
Notes). After giving effect to such sale and assignment, the Assignee's
Commitments and the amount of the Advances owing to the Assignee will be as set
forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Loan
Documents or any other instrument or document provided pursuant thereto or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, the Loan Documents or any
other instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under the Loan Documents or any other
instrument or document furnished pursuant thereto; and (iv) attaches the Note or
Notes held by the Assignor and requests that the Administrative Agent exchange
such Note or Notes for a new Note or Notes payable to the order of the Assignee
in an amount equal to the Commitments assumed by the Assignee pursuant hereto or
new Notes payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto and the Assignor in an amount
equal to the Commitment retained by the Assignor under the Credit Agreement,
respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 or delivered pursuant to Section 5.01(o) thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance; (ii)
agrees that it will, independently and without reliance upon the Administrative
Agent, the Assignor 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 the Credit Agreement;
(iii) confirms that it is an Eligible Assignee; (iv) appoints and authorizes the
Administrative Agent to take such action as administrative agent on its behalf
and to exercise such powers and discretion under the Loan Documents as are
delegated to the Administrative Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; (v) agrees that it
will perform in accordance with their terms all of the obligations that by the
terms of the Credit Agreement are required to be performed by it as a Lender
Party; and (vi) attaches any U.S. Internal Revenue Service forms required under
Section 2.15 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent. The effective date for this Assignment and Acceptance
(the "Effective Date") shall be the date of acceptance hereof by the
Administrative Agent, unless otherwise specified on Schedule 1 hereto.
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5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender Party thereunder and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights, except under Section 2.11, 2.15 and 9.04 of the Credit Agreement, and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall make
all payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and facility fees with respect thereto) to the Assignee. The Assignor
and Assignee shall make all appropriate adjustments in payments under the Credit
Agreement and the Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance 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 Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
87
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: __________
Aggregate outstanding principal amount of Revolving Credit Advances assigned: __________
Aggregate outstanding principal amount of Term Advances assigned:
Principal amount of Revolving Credit Note payable to Assignee: __________
Principal amount of Term Note payable to Assignee:
Principal amount of Revolving Credit Note payable to Assignor: __________
Principal amount of Term Note payable to Assignor:
Effective Date*: _______________, 199_
[NAME OF ASSIGNOR], as Assignor
By_________________________________
Title:
Dated: _______________, 199_
[NAME OF ASSIGNEE], as Assignee
By_________________________________
Title:
Dated: _______________, 199_
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
Accepted [and Approved]** this
__________ day of _______________, 199_
________
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Administrative Agent.
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (viii) of the definition of "Eligible Assignee".
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FLEET BANK, N.A., as Administrative Agent
By_________________________________________
Title:
[Approved this __________ day
of _______________, 199_
PAXAR CORPORATION
By__________________________________________]*
Title:
________
* Required if the Assignee is an Eligible Assignee solely by reason of
clause (viii) of the definition of "Eligible Assignee".
89
EXHIBIT D - FORM OF
DESIGNATION AGREEMENT
Dated _______________, 199_
Reference is made to the Credit Agreement dated as of March
__, 1997 (as amended or modified from time to time, the "Credit Agreement")
among Paxar Corporation, a New York corporation ("Paxar"), the other Borrowers
(as defined in the Credit Agreement) party thereto, the Lenders (as defined in
the Credit Agreement) and Fleet Bank, N.A., as agent for the Lenders (the
"Administrative Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
_________________________ (the "Designor") and
_________________________ (the "Designee") agree as follows:
1. The Designor hereby designates the Designee, and the
Designee hereby accepts such designation, to have a right to make Competitive
Bid Advances pursuant to Section 2.03 of the Credit Agreement.
2. The Designor makes no representation or warranty and
assumes no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Loan Documents or any other
instrument or document provided pursuant thereto or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, the Loan Documents or any other
instrument or document furnished pursuant thereto and (ii) the financial
condition of any Loan Party or the performance or observance by any Loan Party
of any of its obligations under the Loan Documents or any other instrument or
document furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 or delivered pursuant to Section 5.01(o) thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Designation Agreement; (ii)
agrees that it will, independently and without reliance upon the Administrative
Agent, the Designor 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 the Credit Agreement;
(iii) confirms that it is a Designated Bidder; (iv) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; and (v) agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of the Credit Agreement are required to be performed by it as a Designated
Bidder.
4. Following the execution of this Designation Agreement by
the Designor and its Designee, it will be delivered to the Administrative Agent
for acceptance and recording by the Administrative Agent. The effective date for
this Designation Agreement (the "Effective Date") shall be the date of
acceptance hereof by the Administrative Agent, unless otherwise specified on the
signature page hereto.
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, the Designee shall be a party to the Credit
Agreement with a right to make Competitive Bid Advances as a Designated Bidder
pursuant to Section 2.03 of the Credit Agreement and the rights and obligations
of a Lender related thereto.
6. This Designation Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
7. This Designation 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
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and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Designation
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee have caused
this Designation Agreement to be executed by their officers thereunto duly
authorized as of the date first above written.
Effective Date*: _______________, 199__
[NAME OF DESIGNOR],
as Designor
By______________________________
Title:
[NAME OF DESIGNEE],
as Designee
By______________________________
Title:
Applicable Lending
Office (and address for notices):
[Address]
Accepted this ____ day
of _______________, 199_
FLEET BANK, as Administrative Agent
By_________________________________
Title:
________
* This date should be no earlier than five Business Days after the
delivery of this Designation Agreement to the Administrative Agent.
91
EXHIBIT E - FORM OF
CREDIT AGREEMENT
SUPPLEMENT
[DATE]
To each of the Lender Parties pursuant to the Credit
Agreement referred to below
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of March
__, 1997 (as amended or modified from time to time, the "Credit Agreement")
among Paxar Corporation, a New York corporation ("Paxar"), the other Borrowers
(as defined in the Credit Agreement) party thereto, the Lenders (as defined in
the Credit Agreement) and Fleet Bank,N.A., as agent for the Lenders (the
"Administrative Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
[NAME AND JURISDICTION OF INCORPORATION OF ADDITIONAL
BORROWER] (the "Additional Borrower"), in consideration of the agreement of each
Lender Party to extend credit to it from time to time under, and on the terms
and conditions set forth in, the Credit Agreement does hereby assume each of the
obligations imposed upon an Additional Borrower under the Credit Agreement and
agrees to be bound by all of the terms and conditions of the Credit Agreement.
The Additional Borrower hereby agrees as follows:
1. The Additional Borrower hereby agrees, as of the date first
above written, to be bound as a Borrower by all of the terms and
conditions of the Credit Agreement to the same extent as each of the
other Borrowers. The Additional Borrower further agrees, as of the date
first above written, that each reference in the Credit Agreement to a
"Borrower" shall also mean and be a reference to the Additional
Borrower, and each reference in any other Loan Document to a "Borrower"
or a "Loan Party" shall also mean and be a reference to the Additional
Borrower.
2. The Additional Borrower hereby represents and warrants to
the Administrative Agent and each of the Lender Parties that the
representations and warranties contained in each Loan Document are
correct on and as of the date hereof as though made on and as of such
date other than any such representations and warranties that, by their
terms, refer to a date other than the date hereof, in which case as of
such specific date.
3. Pursuant to the terms of the Credit Agreement, the Required
Lenders hereby indicate their approval of the Additional Borrower.
4. This Credit Agreement Supplement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New
York.
5. (a) The Additional Borrower 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 Credit Agreement Supplement or any other
Loan Document to which it is a party, or for recognition or enforcement
of any judgment, and the Additional Borrower hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding
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may be heard and determined in any such New York State court or, to the
extent permitted by law, in such federal court. The Additional Borrower
further irrevocably consents to the service or 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 the Additional
Borrower at its address set forth below its name on the signature pages
hereto. The Additional Borrower 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 of the Credit Agreement, and the
Additional Borrower 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 the
Additional Borrower shall not impair or affect the validity of such
service or of any judgment rendered in any action or proceeding based
thereon. The Additional Borrower 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 Credit Agreement Supplement shall
affect any right that any party may otherwise have to bring any action
or proceeding relating to this Credit Agreement Supplement or the other
Loan Documents to which it is a party in the courts of any
jurisdiction.
(b) The Additional Borrower 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
Credit Agreement Supplement in any New York State or federal court. The
Additional Borrower 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 the Additional 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, the Additional
Borrower hereby irrevocably waives such immunity in respect of its
obligations under this Agreement.
6. The Additional Borrower 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 Credit Agreement Supplement or any of the other Loan Documents to
which it is a party, or the actions of the Administrative Agent or any
Lender Party in the negotiation, administration, performance or
enforcement thereof.
Very truly yours,
[NAME OF ADDITIONAL BORROWER]
By _______________________________
Name:
Title:
Address:
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Accepted and Agreed:
FLEET BANK, N.A.
as Administrative Agent
By_______________________________
Title:
FLEET BANK, N.A.,
as Initial Issuing Bank
By_______________________________
Title:
Initial Lenders
FLEET BANK, N.A.
By_______________________________
Title:
ABN AMRO BANK N.V.
NEW YORK BRANCH
By_______________________________
Title:
By_______________________________
Title:
BANK OF BOSTON CONNECTICUT
By_______________________________
Title:
THE BANK OF NEW YORK
By_______________________________
Title:
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XXX XXXX XX XXXX XXXXXX
By_______________________________
Title:
CORESTATES BANK, N.A.
By_______________________________
Title:
CREDITO ITALIANO S.p.A.
By_______________________________
Title:
By_______________________________
Title:
FIRST UNION NATIONAL BANK
By_______________________________
Title:
MELLON BANK, N.A.
By_______________________________
Title:
NATIONAL CITY BANK OF DAYTON
By_______________________________
Title:
NATIONSBANK, N.A.
By_______________________________
Title:
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XXXXX XXXXXX XXXX AND TRUST COMPANY
By_______________________________
Title:
THE SUMITOMO BANK, LIMITED
By_______________________________
Title:
By_______________________________
Title:
SUNTRUST BANK, ATLANTA
By_______________________________
Title:
By_______________________________
Title:
WACHOVIA BANK OF GEORGIA, N.A.
By_______________________________
Title:
96
EXHIBIT F
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated March 3, 1997 made by Paxar
Corporation, a New York corporation ("Paxar") and each of the direct and
indirect domestic Subsidiaries (as defined in the Credit Agreement) of Paxar
listed on the signature pages hereof and the Additional Grantors (as defined in
Section 16(b)) (such Persons so listed and the Additional Grantors being,
collectively, the "Subsidiary Grantors"; together with Paxar, the "Grantors") to
Fleet Bank, N.A. ("Fleet"), as administrative agent (the "Administrative Agent")
for the lenders (the "Lenders") party to the Credit Agreement (as hereinafter
defined) and for the issuing bank (the "Issuing Bank"; together with the
Lenders, the "Lender Parties") party to the Credit Agreement.
PRELIMINARY STATEMENTS:
(1) The Lender Parties and the Administrative Agent have
entered into a Credit Agreement dated as of March 3, 1997 (said Agreement, as it
may hereafter be amended or otherwise modified from time to time, being the
"Credit Agreement"; the terms defined therein and not otherwise defined herein
being used herein as therein defined) with Paxar and other Subsidiaries of Paxar
that may, pursuant to the terms of the Credit Agreement, become Borrowers
thereunder. Pursuant to the Credit Agreement, the Lender Parties will make
Advances to finance, in part, the acquisition by Paxar of all shares of the
outstanding common stock, $0.01 par value ( all such common stock being the
"Company Stock") of Monarch Marking Systems, Inc., a Delaware corporation (the
"Company"), pursuant to the Stock Purchase Agreement, that are not presently
owned by Paxar.
(2) Each Grantor is the owner of the shares (the "Pledged
Shares") set forth opposite such Grantor's name in Part I of Schedule I hereto
and issued by the corporations named therein and of the indebtedness (the
"Pledged Debt") set forth opposite such Grantor's name in Part II of said
Schedule I and issued by the obligors named therein.
(3) It is a condition precedent to the making of Advances and
the issuing of Letters of Credit by the Lender Parties under the Credit
Agreement that the Grantors shall have granted the assignment and security
interest and made the pledge and assignment contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Lender Parties to make Advances and otherwise extend credit under
the Credit Agreement, each of the Grantors hereby agrees with the Administrative
Agent for its benefit and the ratable benefit of the Lender Parties as follows:
SECTION 1. Grant of Security. Each of the Grantors hereby
assigns and pledges to the Administrative Agent for its benefit and the ratable
benefit of the Lender Parties, and hereby grants to the Administrative Agent for
its benefit and the ratable benefit of the Lender Parties a security interest
in, the following (collectively, the "Collateral"):
(a) all of the following (the "Security Collateral"):
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(i) the Pledged Shares and the certificates
representing the Pledged Shares, and all dividends, cash,
instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in
exchange for any or all of the Pledged Shares. Notwithstanding
anything to the contrary, the foreign Subsidiaries of the
Grantors are not included in any pledge hereunder;
(ii) the Pledged Debt and the instruments evidencing
the Pledged Debt, and all interest, cash, instruments and
other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or
all of the Pledged Debt;
(iii) all additional shares of Company Stock from
time to time acquired by Paxar in any manner, and the
certificates representing such additional shares, and all
dividends, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect
of or in exchange for any or all of such shares; and
(iv) all additional indebtedness from time to time
owed to such Grantor by any obligor of the Pledged Debt and
the instruments evidencing such indebtedness, and all
interest, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect
of or in exchange for any or all of such indebtedness; and
(b) all proceeds of any and all of the foregoing Collateral
(including, without limitation, proceeds that constitute property of
the types described in clause (a) of this Section 1).
SECTION 2. Security for Obligations. This Agreement secures
the payment of all Obligations of each Grantor now or hereafter existing under
the Loan Documents, whether for principal, interest, fees, expenses or otherwise
(all such Obligations being the "Secured Obligations"). Without limiting the
generality of the foregoing, this Agreement secures the payment of all amounts
that constitute part of the Secured Obligations and would be owed by such
Grantor to the Administrative Agent or the Lender Parties 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 Grantor.
SECTION 3. Grantors Remain Liable. Anything herein to the
contrary notwithstanding, (a) each Grantor shall remain liable under the
contracts and agreements included in the Collateral to the extent set forth
therein to perform all of its duties and obligations thereunder to the same
extent as if this Agreement had not been executed, (b) the exercise by the
Administrative Agent of any of the rights hereunder shall not release any
Grantor from any of its duties or obligations under the contracts and agreements
included in the Collateral and (c) neither the Administrative Agent nor any
Lender Party shall have any obligation or liability under the contracts and
agreements included in the Collateral by reason of this Agreement, nor shall the
Administrative Agent or any Lender Party be obligated to perform any of the
obligations or duties of any Grantor thereunder or to take any action to collect
or enforce any claim for payment assigned hereunder.
SECTION 4. Delivery of Security Collateral. All certificates
or instruments representing or evidencing Security Collateral shall be delivered
to and held by or on behalf of the Administrative
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Agent pursuant hereto and shall be in suitable form for transfer by delivery, or
shall be accompanied by duly executed, undated instruments of transfer or
assignment in blank, all in form and substance satisfactory to the
Administrative Agent. The Administrative Agent shall have the right, at any time
in its discretion and without notice to Paxar, to transfer to or to register in
the name of the Administrative Agent or any of its nominees any or all of the
Security Collateral, subject only to the revocable rights specified in Section
8(a). In addition, the Administrative Agent shall have the right at any time to
exchange certificates or instruments representing or evidencing Security
Collateral for certificates or instruments of smaller or larger denominations.
SECTION 5. Representations and Warranties. Each Grantor
represents and warrants as follows:
(a) The chief place of business and chief executive office of
such Grantor and the office where such Grantor keeps its records
concerning the Collateral are located at the address specified below
the name of such Grantor on the signature pages hereof (or, in the case
of any Additional Grantor, at the address listed below the name of such
Additional Grantor on the signature page of the Pledge Agreement
Supplement (as defined in Section 16(b)) executed and delivered by such
Additional Grantor).
(b) Such Grantor is the legal and beneficial owner of the
Collateral free and clear of any Lien, except for the security interest
created by this Agreement. No effective financing statement or other
instrument similar in effect covering all or any part of the Collateral
is on file in any recording office, except such as may have been filed
in favor of the Administrative Agent relating to this Agreement. Such
Grantor has no trade names.
(c) The Pledged Shares have been duly authorized and validly
issued and are fully paid and non-assessable. The Pledged Debt owed to
such Grantor has been duly authorized, authenticated or issued and
delivered and is the legal, valid and binding obligation of the issuers
thereof and is not in default.
(d) The Pledged Shares constitute 100% of Company Stock. The
Pledged Debt is outstanding in the principal amount indicated on
Schedule I.
(e) This Agreement and the pledge of the Security Collateral
pursuant hereto create a valid and perfected first priority security
interest in the Collateral, securing the payment of the Secured
Obligations, and all filings and other actions necessary or desirable
to perfect and protect such security interest have been duly taken.
(f) No consent of any other Person and no authorization,
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or other third party is
required either (i) for the grant by such Grantor of the assignment and
security interest granted hereby, for the pledge by such Grantor of the
Security Collateral pursuant hereto or for the execution, delivery or
performance of this Agreement by such Grantor, (ii) for the perfection
or maintenance of the pledge, assignment and security interest created
hereby (including the first priority nature of such pledge, assignment
or security interest) or (iii) for the exercise by the
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Administrative Agent of its voting or other rights provided for in this
Agreement or the remedies in respect of the Collateral pursuant to this
Agreement, except as may be required in connection with the disposition
of any portion of the Security Collateral by laws affecting the
offering and sale of securities generally.
SECTION 6. Further Assurances. (a) Each of the Grantors agrees
that from time to time, at the expense of Paxar, such Grantor will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that the Administrative Agent may
request, in order to perfect and protect any pledge, assignment or security
interest granted or purported to be granted hereby or to enable the
Administrative Agent to exercise and enforce its rights and remedies hereunder
with respect to any Collateral. Without limiting the generality of the
foregoing, such Grantor will, (i) if any Collateral shall be evidenced by a
promissory note or other instrument, deliver and pledge to the Administrative
Agent hereunder such note or instrument duly indorsed and accompanied by duly
executed instruments of transfer or assignment, all in form and substance
satisfactory to the Administrative Agent and (ii) execute and file such
financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the
Administrative Agent may request, in order to perfect and preserve the pledge,
assignment and security interest granted or purported to be granted hereby.
(b) Each Grantor hereby authorizes the Administrative Agent to
file one or more financing or continuation statements, and amendments thereto,
relating to all or any part of the Collateral without the signature of such
Grantor where permitted by law. A photocopy or other reproduction of this
Agreement or any financing statement covering the Collateral or any part thereof
shall be sufficient as a financing statement where permitted by law.
(c) Each Grantor will furnish to the Administrative Agent from
time to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Administrative Agent may reasonably request, all in reasonable detail.
SECTION 7. Place of Perfection; Records. Each of the Grantors
shall keep its chief place of business and chief executive office and the office
where it keeps its records concerning the Collateral at the location therefor
specified in Section 5(a) or, upon 30 days' prior written notice to the
Administrative Agent, at such other locations in a jurisdiction where all
actions required by Section 6 shall have been taken with respect to the
Collateral. Each of the Grantors will hold and preserve such records and will
permit representatives of the Administrative Agent at any time during normal
business hours to inspect and make abstracts from such records.
SECTION 8. Voting Rights; Dividends; Etc. (a) So long as no
Event of Default shall have occurred and be continuing:
(i) The Grantors shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Security
Collateral or any part thereof for any purpose not inconsistent with
the terms of this Agreement or the other Loan Documents; provided,
however, that the Grantors shall not exercise or refrain from
exercising any such right if, in the Administrative
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Agent's judgment, such action would have a material adverse effect on
the value of the Security Collateral or any part thereof.
(ii) The Grantors shall be entitled to receive and retain any
and all dividends and interest paid in respect of the Security
Collateral; provided, however, that any and all
(A) dividends and interest paid or payable other than
in cash in respect of, and instruments and other property
received, receivable or otherwise distributed in respect of,
or in exchange for, any Security Collateral,
(B) dividends and other distributions paid or payable
in cash in respect of any Security Collateral in connection
with a partial or total liquidation or dissolution or in
connection with a reduction of capital, capital surplus or
paid-in-surplus, and
(C) cash paid, payable or otherwise distributed in
respect of principal of, or in redemption of, or in exchange
for, any Security Collateral
shall be, and shall be forthwith delivered to the Administrative Agent
to hold as, Security Collateral and shall, if received by any of the
Grantors, be received in trust for the benefit of the Administrative
Agent and the Lender Parties, be segregated from the other property or
funds of such Grantor and be forthwith delivered to the Administrative
Agent as Security Collateral in the same form as so received (with any
necessary indorsement).
(iii) The Administrative Agent shall execute and deliver (or
cause to be executed and delivered) to each of the Grantors all such
proxies and other instruments as such Grantor may reasonably request
for the purpose of enabling such Grantor to exercise the voting and
other rights that it is entitled to exercise pursuant to paragraph (i)
above and to receive the dividends or interest payments that it is
authorized to receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of any
Event of Default:
(i) All rights of the Grantors (x) to exercise or refrain from
exercising the voting and other consensual rights that they would
otherwise be entitled to exercise pursuant to Section 8(a)(i) shall
automatically cease and (y) to receive the dividends and interest
payments that they would otherwise be authorized to receive and retain
pursuant to Section 8(a)(iii) shall automatically cease, and all such
rights shall thereupon become vested in the Administrative Agent, which
shall thereupon have the sole right to exercise or refrain from
exercising such voting and other consensual rights and to receive and
hold as Security Collateral such dividends and interest payments.
(ii) All dividends and interest payments that are received by
any of the Grantors contrary to the provisions of paragraph (i) of this
Section 8(b) shall be received in trust for the benefit of the
Administrative Agent and the Lender Parties, shall be segregated from
other funds of such Grantor and shall be forthwith paid over to the
Administrative Agent as Security Collateral in the same form as so
received (with any necessary indorsement).
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SECTION 9. Transfers and Other Liens; Additional Shares. (a)
Each of the Grantors agrees that it shall not (i) sell, assign (by operation of
law or otherwise) or otherwise dispose of, or grant any option with respect to,
any of the Collateral, or (ii) create or suffer to exist any Lien upon or with
respect to any of the Collateral except for the pledge, assignment and security
interest created by this Agreement.
(b) Paxar shall (i) from and after the date hereof, cause the
Company not to issue any stock or other securities in addition to or in
substitution for the Pledged Shares, except to Paxar, and (ii) deliver or
otherwise transfer to the Administrative Agent as pledgee hereunder, immediately
upon its acquisition (directly or indirectly) thereof, any and all additional
shares of Company Stock or other securities of the Company.
SECTION 10. Administrative Agent Appointed Attorney-in-Fact.
Each Grantor hereby irrevocably appoints the Administrative Agent such Grantor's
attorney-in-fact, with full authority in the place and stead of such Grantor and
in the name of such Grantor or otherwise, upon the occurrence of an Event of
Default, to take any action and to execute any instrument that the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Agreement, including, without limitation:
(a) to ask for, demand, collect, xxx for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral,
(b) to receive, indorse and collect any drafts or other
instruments and documents in connection with clause (a) above, and
(c) to file any claims or take any action or institute any
proceedings that the Administrative Agent may deem necessary or
desirable for the collection of any of the Collateral or otherwise to
enforce the rights of the Administrative Agent with respect to any of
the Collateral.
SECTION 11. Administrative Agent May Perform. If any of the
Grantors fails to perform any agreement contained herein, the Administrative
Agent may itself perform, or cause performance of, such agreement, and the
expenses of the Administrative Agent incurred in connection therewith shall be
payable by Paxar under Section 15(b).
SECTION 12. The Administrative Agent's Duties. The powers
conferred on the Administrative Agent hereunder are solely to protect its
interest in the Collateral and shall not impose any duty upon it to exercise any
such powers. Except for the safe custody of any Collateral in its possession and
the accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral, as to ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Security Collateral, whether or not the
Administrative Agent or any Lender has or is deemed to have knowledge of such
matters, or as to the taking of any necessary steps to preserve rights against
any parties or any other rights pertaining to any Collateral. The Administrative
Agent shall be deemed to have exercised reasonable care in the custody and
preservation
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of any Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which Fleet accords its own property.
SECTION 13. Remedies. If any Event of Default shall have
occurred and be continuing:
(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a
secured party upon default under the Uniform Commercial Code in effect
in the State of New York at such time (the "N.Y. Uniform Commercial
Code") (whether or not the N.Y. Uniform Commercial Code applies to the
affected Collateral) and also may (i) require any or all of the
Grantors to, and each Grantor hereby agrees that it will at its expense
and upon request of the Administrative Agent forthwith, assemble all or
part of the Collateral as directed by the Administrative Agent and make
it available to the Administrative Agent at a place to be designated by
the Administrative Agent that is reasonably convenient to both parties
and (ii) without notice except as specified below, sell the Collateral
or any part thereof in one or more parcels at public or private sale,
at any of the Administrative Agent's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as the
Administrative Agent may deem commercially reasonable. Each Grantor
agrees that, to the extent notice of sale shall be required by law, at
least ten days' notice to such Grantor of the time and place of any
public sale or the time after which any private sale is to be made
shall constitute reasonable notification. The Administrative Agent
shall not be obligated to make any sale of Collateral regardless of
notice of sale having been given. The Administrative Agent may adjourn
any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so adjourned.
(b) All cash proceeds received by the Administrative Agent in
respect of any sale of, collection from, or other realization upon all
or any part of the Collateral may, in the discretion of the
Administrative Agent, be held by the Administrative Agent as collateral
for, and/or then or at any time thereafter applied (after payment of
any amounts payable to the Administrative Agent pursuant to Section 15)
in whole or in part by the Administrative Agent for the ratable benefit
of the Lender Parties against all or any part of the Secured
Obligations in such order as the Administrative Agent shall elect. Any
surplus of such cash or cash proceeds held by the Administrative Agent
and remaining after payment in full of all the Secured Obligations
shall be paid over to the applicable Grantors or to whomsoever may be
lawfully entitled to receive such surplus.
(c) The Administrative Agent may exercise any and all rights
and remedies of any of the Grantors under or in connection with or
otherwise in respect of the Collateral.
(d) All payments received by any Grantor under or in
connection with or otherwise in respect of the Collateral shall be
received in trust for the benefit of the Administrative Agent and the
Lender Parties, shall be segregated from other funds of such Grantor
and shall be forthwith paid over to the Administrative Agent in the
same form as so received (with any necessary indorsement).
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8
SECTION 14. Registration Rights. If the Administrative Agent
shall determine to exercise its right to sell all or any of the Security
Collateral pursuant to Section 13, Paxar agrees that, upon request of the
Administrative Agent, Paxar will, at its own expense:
(a) execute and deliver, and cause each issuer of the Security
Collateral contemplated to be sold and the directors and officers
thereof to execute and deliver, all such instruments and documents, and
do or cause to be done all such other acts and things, as may be
necessary or, in the opinion of the Administrative Agent, advisable to
register such Security Collateral under the provisions of the
Securities Act of 1933, as from time to time amended (the "Securities
Act"), to cause the registration statement relating thereto to become
effective and to remain effective for such period as prospectuses are
required by law to be furnished and to make all amendments and
supplements thereto and to the related prospectus that, in the opinion
of the Administrative Agent, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the rules
and regulations of the Securities and Exchange Commission applicable
thereto;
(b) use its best efforts to qualify the Security Collateral
under the state securities or "Blue Sky" laws and to obtain all
necessary governmental approvals for the sale of the Security
Collateral, as requested by the Administrative Agent;
(c) cause each such issuer to make available to its security
holders, as soon as practicable, an earnings statement that will
satisfy the provisions of Section 11(a) of the Securities Act;
(d) provide the Administrative Agent with such other
information and projections as may be necessary or, in the opinion of
the Administrative Agent, advisable to enable the Administrative Agent
to effect the sale of such Security Collateral; and
(e) do or cause to be done all such other acts and things as
may be necessary to make such sale of the Security Collateral or any
part thereof valid and binding and in compliance with applicable law.
The Administrative Agent is authorized, in connection with any sale of the
Security Collateral pursuant to Section 13, to deliver or otherwise disclose to
any prospective purchaser of the Security Collateral (i) any registration
statement or prospectus, and all supplements and amendments thereto, prepared
pursuant to clause (a) above, (ii) any information and projections provided to
it pursuant to clause (d) above and (iii) any other information in its
possession relating to the Security Collateral.
SECTION 15. Indemnity and Expenses. (a) Each of the Grantors
agrees to indemnify the Administrative Agent from and against any and all
claims, losses and liabilities growing out of or resulting from this Agreement
(including, without limitation, enforcement of this Agreement), except claims,
losses or liabilities resulting from the Administrative Agent's gross negligence
or willful misconduct as determined by a final judgment of a court of competent
jurisdiction.
(b) Paxar will upon demand pay to the Administrative Agent the
amount of any and all reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts and
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agents, that the Administrative Agent may incur in connection with (i) the
administration of this Agreement, (ii) the custody, preservation, use or
operation of, or the sale of, collection from or other realization upon, any of
the Collateral, (iii) the exercise or enforcement of any of the rights of the
Administrative Agent or the Lenders hereunder or (iv) the failure by Paxar or
any of the Grantors to perform or observe any of the provisions hereof.
SECTION 16. Amendments; Waivers; Etc. (a) Subject to the
provisions of Section 9.01 of the Credit Agreement, no amendment or waiver of
any provision of this Agreement, and no consent to any departure by any Grantor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. No failure on the part of the Administrative Agent to exercise, and no
delay in exercising, any right hereunder 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.
(b) Upon the execution and delivery by any Person of a
supplement to this Agreement pursuant to either Section 5.01(n) or Section
5.02(g) of the Credit Agreement, in each case in substantially the form of
Exhibit A hereto (each a "Pledge Agreement Supplement"), (i) such Person shall
be referred to as an "Additional Grantor" and shall be and become a Grantor, and
each reference in this Agreement to an "Additional Grantor" or a "Grantor" shall
also mean and be a reference to such Additional Grantor and each reference in
any other Loan Document to a "Grantor" or a "Loan Party" shall also mean and be
a reference to such Additional Grantor, and (ii) the schedules attached to each
Pledge Agreement Supplement shall be incorporated into and become a part of and
supplement the schedules to this Agreement, as appropriate, and the
Administrative Agent may attach such supplements to such schedules, and each
reference to such schedules shall mean and be a reference to such schedules, as
supplemented pursuant hereto.
SECTION 17. Security Interest Absolute. The obligations of
each of the Subsidiary Grantors under this Agreement are independent of the
Secured Obligations, and a separate action or actions may be brought and
prosecuted against any of the Subsidiary Grantors to enforce this Agreement,
irrespective of whether any action is brought against Paxar or whether Paxar is
joined in any such action or actions. All rights of the Administrative Agent and
the pledge, assignment and security interest hereunder, and all obligations of
the Subsidiary Grantors hereunder, shall be absolute and unconditional,
irrespective of:
(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 Secured Obligations or any
other amendment or waiver of or any consent to any departure from any
Loan Document, including, without limitation, any increase in the
Secured Obligations resulting from the extension of additional credit
to Paxar or any of its subsidiaries or otherwise;
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10
(c) any taking, exchange, release or non-perfection of any
other collateral, or any taking, release or amendment or waiver of or
consent to departure from any guaranty, for all or any of the Secured
Obligations;
(d) any manner of application of collateral, or proceeds
thereof, to all or any of the Secured Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Secured Obligations or any other assets of Paxar or any of its
subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of Paxar or any of its subsidiaries; or
(f) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, any Subsidiary Grantor or a
third party grantor of a security interest.
SECTION 18. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic, telex or cable communication) and, mailed, telegraphed, telecopied,
telexed, cabled or delivered, if to any Grantor, addressed to it at the address
set forth below its name on the signature pages hereof; if to any Additional
Grantor, addressed to it at the address set forth below its name on the
signature pages to the Pledge Agreement Supplement executed and delivered by
such Additional Grantor; if to the Administrative Agent, addressed to it at its
address specified in the Credit Agreement or, as to any party, at such other
address as shall be designated by such party in a written notice to each other
party complying as to delivery with the terms of this Section . All such notices
and other communications shall, when mailed, telecopied, telegraphed, telexed or
cabled, respectively, be effective when deposited in the mails, telecopied,
delivered to the telegraph company, confirmed by telex answerback or delivered
to the cable company, respectively, addressed as aforesaid.
SECTION 19. Continuing Security Interest; Assignments Under
the Credit Agreement. This Agreement shall create a continuing security interest
in the Collateral and shall (a) remain in full force and effect until the later
of the payment in full in cash of the Secured Obligations and the Termination
Date, (b) be binding upon each Grantor, its successors and assigns and (c)
inure, together with the rights and remedies of the Administrative Agent
hereunder, to the benefit of the Administrative Agent, the Lender Parties and
their respective successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), any Lender Party may assign or otherwise
transfer all or any portion of its rights and obligations under the Credit
Agreement (including, without limitation, all or any portion of its Commitment,
the Advances owing to it and the Note or 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 herein or otherwise, in each case as
provided in Section 9.07 of the Credit Agreement.
SECTION 20. Release and Termination. (a) Upon the later of the
payment in full in cash of the Secured Obligations and the Termination Date, the
pledge, assignment and security interest granted by each of the Grantors hereby
shall terminate and all rights to the Collateral shall revert to the appropriate
Grantor. Upon any such termination, the Administrative Agent will, at Paxar's
expense,
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execute and deliver to the appropriate Grantor such documents as such Grantor
shall reasonably request to evidence such termination.
(b) Notwithstanding the provisions of Section 20(a), upon the
earlier of (x) the execution and delivery by the Company of a supplement to the
Subsidiary Guaranty in accordance with the provisions of Section 5.01(n) of the
Credit Agreement and (y) the later of the payment in full in cash of the Secured
Obligations and the Termination Date, the pledge, assignment and security
interest in the Pledge Shares granted hereby shall terminate and all rights to
the Pledged Shares shall revert to Paxar. Upon any such termination, the
Administrative Agent will, at Paxar's expense, execute and deliver to Paxar such
documents as Paxar shall reasonably request to evidence such termination.
SECTION 21. Governing Law; Terms. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
Unless otherwise defined herein or in the Credit Agreement, terms used in
Article 9 of the N.Y. Uniform Commercial Code are used herein as therein
defined.
IN WITNESS WHEREOF, Paxar has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
PAXAR CORPORATION
By_______________________________________
Title:
Address: 000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxxx, XX 00000-0000
PAXAR CAPITAL CORPORATION
By_______________________________________
Title:
Address: 000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxxx, XX 00000-0000
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SYSTEMS HOLDINGS, INC.
By_______________________________________
Title:
Address: 000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxxx, XX 00000-0000
WOVEN LABEL HOLDINGS, INC.
By_______________________________________
Title:
Address: 000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxxx, XX 00000-0000
108
SCHEDULE I
PART I
PLEDGED SHARES
Issuer Class of Stock Stock Certificate No(s). Number of Shares
------ -------------- ------------------------ ----------------
Monarch Marking Common, 1 1,000
Systems, Inc. par value
$.01
per share
PART II
PLEDGED DEBT
Original
Principal
Grantor Debt Issuer Description of Debt Debt Certificate No(s). Final Maturity Amount
------- ----------- ------------------- ----------------------- -------------- ---------
NONE.
109
EXHIBIT A
FORM OF PLEDGE AGREEMENT SUPPLEMENT
______________, 19
Fleet Bank, N.A., as Administrative Agent
1133 Avenue of the Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Attention:___________________________
Pledge Agreement dated as of March 3, 1997
made by PAXAR CORPORATION and the Subsidiary
Grantors party thereto to Fleet Bank, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to the above-captioned Pledge Agreement (such Pledge
Agreement, as in effect on the date hereof and as it may hereafter be amended,
modified or supplemented from time to time, being the "Pledge Agreement"). The
terms defined in the Pledge Agreement and not otherwise defined herein are used
herein as therein defined.
The undersigned hereby agrees, as of the date first above written, to
become an Additional Grantor under the Pledge Agreement as if it were an
original party thereto and agrees that each reference in the Pledge Agreement to
an "Additional Grantor" or to a "Grantor" shall also mean and be a reference to
the undersigned.
The undersigned hereby assigns and pledges to the Administrative Agent
for its benefit and the ratable benefit of the Lender Parties, and hereby grants
to the Administrative Agent for its benefit and the ratable benefit of the
Lender Parties as security for the Secured Obligations a lien on and security
interest in, all of the right, title and interest of the undersigned, whether
now owned or hereafter acquired, in and to the Collateral listed on the attached
supplement to Schedule I to the Pledge Agreement. The undersigned hereby
certifies that such supplement has been prepared by the undersigned in
substantially the form of such Schedule I and is accurate and complete as of the
date hereof.
The undersigned hereby makes each representation and warranty set forth
in Section 5 of the Pledge Agreement (as modified by the attached supplement to
Schedule I to the Pledge Agreement) to the same extent as each other Grantor and
hereby agrees to be bound as a Grantor by all of the terms and provisions of the
Pledge Agreement to the same extent as each other Grantor.
110
This letter shall be governed by, and construed in accordance with, the
law of the State of New York.
THE UNDERSIGNED 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 THE LOAN DOCUMENTS (AS DEFINED IN THE CREDIT
AGREEMENT) , THE TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF THE
ADMINISTRATIVE AGENT, ANY LENDER PARTY OR THE ISSUING BANK IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Very truly yours,
[NAME OF ADDITIONAL
GRANTOR]
By________________________
Title:
Address:
111
EXHIBIT G
SUBSIDIARY GUARANTY
GUARANTY dated March 3, 1997 made by each of the Persons
listed on the signature pages hereof (the "Initial Guarantors"); and the
Additional Guarantors (as defined in Section 8(b)) (such Persons, together with
the Initial Guarantors, being collectively referred as the "Guarantors") in
favor of the Lender Parties as defined in the Credit Agreement referred to
below.
PRELIMINARY STATEMENT. The Lender Parties and Fleet Bank,
N.A., as Administrative Agent for the Lender Parties, are parties to a Credit
Agreement dated as of March 3, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"; capitalized terms not
otherwise defined herein are used herein as therein defined) with Paxar
Corporation, a Delaware corporation ("Paxar"), and other Subsidiaries of Paxar
that may, pursuant to the terms of the Credit Agreement, become Borrowers
thereunder. Each of the Guarantors may receive a portion of the proceeds of the
Advances under the Credit Agreement and will derive substantial direct and
indirect benefit from the transactions contemplated by the Credit Agreement. It
is a condition precedent to the making of Advances and the issuance of Letters
of Credit by the Lender Parties under the Credit Agreement that each of the
Guarantors shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Lender Parties to make Advances and to issue Letters of Credit
under the Credit Agreement from time to time, each of the Guarantors hereby
agrees as follows:
Section 1. Guaranty; Limitation of Liability. (a) Each of the
Guarantors hereby absolutely, unconditionally and irrevocably guarantees the
punctual payment when due, whether at stated maturity, by acceleration or
otherwise, of all Obligations of the Borrowers now or hereafter existing under
the Loan Documents, whether for principal, interest, fees, expenses or otherwise
(such Obligations being the "Guaranteed Obligations"), and agrees to pay any and
all expenses (including reasonable counsel fees and expenses) incurred by the
Administrative Agent or any Lender Party in enforcing any rights under this
Guaranty. Without limiting the generality of the foregoing, each Guarantors'
liability shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by the Borrowers 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 any Borrower.
(b) The liability of each of the Guarantors under this
Guaranty shall not exceed the greater of (i) the net benefit realized by such
Guarantor from the proceeds of the advances made from time to time by the
Borrowers to such Guarantor or any Subsidiary of such Guarantor and (ii) the
greater of (x) 95% of the Adjusted Net Assets of such Guarantor on the date of
delivery hereof and (y) 95% of the Adjusted Net Assets of such Guarantor on the
date of any payment hereunder. "Adjusted Net Assets" of any of the Guarantors at
any date means the lesser of (x) the amount by which the fair value of the
property of such Guarantor exceeds the total amount of liabilities, including,
without limitation, contingent liabilities, but excluding liabilities under this
Guaranty, of such Guarantor at such date and (y) the amount by which the present
fair salable value of the assets of such Guarantor at such date
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exceeds the amount that will be required to pay the probable liability of such
Guarantor on its debts, excluding debt in respect of this Guaranty, as they
become absolute and matured.
Section 2. Guaranty Absolute. Each of the Guarantors
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 Lender Party with respect thereto.
The Obligations of each of the Guarantors under this Guaranty are independent of
the Guaranteed Obligations or any other Obligations of any other Loan Party
under the Loan Documents, and a separate action or actions may be brought and
prosecuted against any of the Guarantors to enforce this Guaranty, irrespective
of whether any action is brought against any Borrower or any other Loan Party or
whether any Borrower or any other Loan Party is joined in any such action or
actions. The liability of each of the Guarantors under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and each of the
Guarantors hereby irrevocably waives any defenses it may now or hereafter have
in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan
Document or any 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 other 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 the Borrower 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 guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of Collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any Collateral for all or any of the
Guaranteed Obligations or any other Obligations of any other Loan Party
under the Loan Documents or any other assets of Paxar or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of Paxar or any of its Subsidiaries;
(f) any failure of any Lender Party to disclose to Paxar or
any of the Guarantors any information relating to the financial
condition, operations, properties or prospects of any Loan Party now or
in the future known to any Lender Party (each of the Guarantors waiving
any duty on the part of the Lender Parties to disclose such
information); or
(g) 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
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Party that might otherwise constitute a defense available to, or a
discharge of, any of the Borrowers, any of the Guarantors or any other
guarantor or surety.
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 any Lender Party or any other Person upon the
insolvency, bankruptcy or reorganization of any Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) Each of the
Guarantors hereby 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 protect,
secure, perfect or insure any Lien or any property subject thereto or exhaust
any right or take any action against the Borrowers or any other Person or any
Collateral.
(b) Each of the Guarantors hereby 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.
(c) Each of the Guarantors 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 3 are knowingly made in contemplation of such benefits.
Section 4. Subrogation. Each of the Guarantors will not
exercise any rights that it may now or hereafter acquire against any Borrower or
any other insider guarantor that arise from the existence, payment, performance
or enforcement of such Guarantor's Obligations under this Guaranty or 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
Party against any Borrower or any other insider guarantor or any Collateral,
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 any Borrower or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Obligations and all other amounts payable under this Guaranty shall
have been paid in full in cash, and the Commitments shall have expired or
terminated. If any amount shall be paid to any of the Guarantors in violation of
the preceding sentence at any time prior to the later of the payment in full in
cash of the Guaranteed Obligations and all other amounts payable under this
Guaranty and 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) any Guarantor shall make payment to the
Administrative Agent or any Lender Party of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall be paid in full in cash and (iii) the
Termination Date shall have occurred, the Administrative Agent and the Lender
Parties will, at such Guarantor's request and expense, execute and deliver to
such Guarantor appropriate documents,
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without recourse and without representation or warranty, necessary to evidence
the transfer by subrogation to such Guarantor of an interest in the Guaranteed
Obligations resulting from such payment by such Guarantor.
Section 5. Payments Free and Clear of Taxes, Etc. (a) Any and
all payments made by any Guarantor hereunder shall be made, in accordance with
Section 2.15 of the Credit Agreement, free and clear of and without deduction
for any and all present or future Taxes. If any Guarantor shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder to the
Administrative Agent or any Lender Party, (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 ) the
Administrative Agent or such Lender Party (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Guarantor shall make such deductions and (iii) such Guarantor shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, each of the Guarantors agrees to pay any
present or future Other Taxes.
(c) Each of the Guarantors will indemnify the Administrative
Agent and each Lender Party for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section ) paid by the Administrative
Agent or such Lender Party (as the case may be) and any liability (including
penalties, additions to tax, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the date
the Administrative Agent or such Lender Party (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes by
or on behalf of any of the Guarantors, such Guarantor will furnish to the
Administrative Agent, at its address referred to in the Credit Agreement, the
original receipt of payment thereof or a certified copy of such receipt. In the
case of any payment hereunder by or on behalf of any Guarantor through an
account or branch outside the United States or on behalf of any Guarantor by a
payor that is not a United States person, if such Guarantor determines that no
Taxes are payable in respect thereof, such Guarantor 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) Upon the reasonable request in writing of any Guarantor,
each Lender Party organized under the laws of a jurisdiction outside the United
States shall, on or prior to the date of its execution and delivery of the
Credit Agreement in the case of each Initial Lender or Initial Issuing Bank, as
the case may be, and on the date of the Assignment and Acceptance or other
agreement pursuant to which it became a Lender Party in the case of each other
Lender Party, and from time to time thereafter upon the reasonable request in
writing by any Guarantor (but only so long thereafter as such Lender Party
remains lawfully able to do so), provide the Administrative Agent and such
Guarantor with Internal Revenue Service Form 1001 or 4224, as appropriate, or
any successor or other form prescribed by the
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5
Internal Revenue Service, certifying that such Lender Party is exempt from or is
entitled to a reduced rate of United States withholding tax on payments under
the Credit Agreement or the Notes. If the form provided by a Lender Party at the
time such Lender Party first becomes a party to the Credit 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 form 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 the Credit 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) and requested by any Guarantor pursuant to 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 1001 or 4224, that any Lender Party reasonably considers to be
confidential, such Lender Party shall give notice thereof to such Guarantor 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 any Guarantor following such Guarantor's
request therefor pursuant to subsection (e) above with the appropriate form
described in subsection (e) (other than if such failure is due to a change in
law occurring after the date on which a form originally was required to be
provided or if such form otherwise is not required under subsection (e)), such
Lender Party shall not be entitled to indemnification under subsection (a) or
(c) with respect to Taxes imposed by the United States; provided, however, that
should a Lender Party become subject to Taxes because of its failure to deliver
a form required hereunder, each of the Guarantors shall take such steps as such
Lender Party shall reasonably request to assist such Lender Party to recover
such Taxes.
(g) Without prejudice to the survival of any other agreement
of each of the Guarantors hereunder or under any other Loan Document, the
agreements and obligations of each of the Guarantors contained in this Section 5
shall survive the payment in full of the Guaranteed Obligations and all other
amounts payable under this Guaranty.
Section 6. Representations and Warranties. Each of the
Guarantors hereby represents and warrants to each of the Lender Parties as
follows:
(a) There are no conditions precedent to the effectiveness of
this Guaranty that have not been satisfied or waived.
(b) Such Guarantor has, independently and without reliance
upon the Administrative Agent or any Lender Party and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Guaranty, and such Guarantor has established
adequate means of obtaining from any other Loan Parties on a continuing basis
information pertaining
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to, and is now and on a continuing basis will be completely familiar with, the
financial condition, operations, properties and prospects of such other Loan
Parties.
(c) Such Guarantor is, individually and together with its
Subsidiaries, solvent.
Section 7. Confirmation of Certain Provisions of the Credit
Agreement. Each of the Guarantors hereby confirms and agrees that so long as any
part of the Guaranteed Obligations shall remain unpaid, any Letter of Credit
shall be outstanding, or any Lender Party shall have any Commitment, such
Guarantor will perform and observe all of the terms, covenants and agreements
set forth in the Loan Documents to be performed or observed by such Guarantor or
that Paxar has agreed to cause such Guarantor to perform or observe.
Section 8. Amendments; Supplements, Etc. (a) No amendment or
waiver of any provision of this Guaranty and no consent to any departure by any
of the Guarantors therefrom shall in any event be effective unless the same
shall be in writing and signed by the Administrative Agent and 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 of
the Lender Parties (other than any Lender Party that is, at such time, a
Defaulting Lender), (i) limit, reduce or terminate the liability of any of the
Guarantors hereunder, (ii) postpone any date fixed for payment hereunder or
(iii) change the number of Lender Parties required to take any action hereunder.
(b) Upon the execution and delivery by any Person of a
supplement to this Guaranty pursuant to either Section 5.01(n) or Section
5.02(g) of the Credit Agreement, in each case in substantially the form of
Exhibit A attached hereto (each a "Guaranty Supplement"), such Person shall be
referred to as an "Additional Guarantor" and shall be and become a Guarantor,
and each reference in this Guaranty to a "Guarantor" shall also mean and be a
reference to such Additional Guarantor and each reference in any other Loan
Document to a "Guarantor" or a "Loan Party" shall also mean and be a reference
to such Additional Guarantor.
Section 9. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered
to it, if to any Initial Guarantor, addressed to it at its address set forth
below its name on the signature pages hereto, if to any Additional Guarantor, at
its address set forth below its name on the signature page to the Guarantee
Supplement executed and delivered by it, if to the Administrative Agent or any
Lender Party, at its address specified in the Credit Agreement, or as to any
party at such other address as shall be designated by such party in a written
notice to each other party. All such notices and other communications shall,
when mailed, telegraphed, telecopied or telexed, be effective when deposited in
the mails, delivered to the telegraph company, transmitted by telecopier or
confirmed by telex answerback, respectively.
Section 10. No Waiver; Remedies. No failure on the part of the
Administrative Agent or any other Lender Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or
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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.
Section 11. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 of the Credit Agreement
to authorize the Administrative Agent to declare the Notes due and payable
pursuant to the provisions of said Section 6.01, each Lender Party and each of
its respective 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 any Guarantor against any and
all of the Obligations of such Guarantor now or hereafter existing under this
Guaranty, whether or not such Lender Party shall have made any demand under this
Guaranty and although such Obligations may be unmatured. Each Lender Party
agrees promptly to notify such Guarantor after any such set-off and application;
provided, however, 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 respective 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 respective Affiliates may have.
Section 12. Indemnification. Without limitation on any other
Obligations of any Guarantor or remedies of the Lender Parties under this
Guaranty, each of the Guarantors shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless each Lender Party from and against,
and shall pay on demand, any and all losses, liabilities, damages, costs,
expenses and charges (including the reasonable fees and disbursements of such
Lender Party's legal counsel) suffered or incurred by such Lender Party as a
result of any failure of any Guaranteed Obligations to be the legal, valid and
binding obligations of any Borrower enforceable against such Borrower in
accordance with their terms.
Section 13. Continuing Guaranty; Assignments under the Credit
Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the later of the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty and the
Termination Date, (b) be binding upon each of the Guarantors, their successors
and assigns and (c) inure to the benefit of and be enforceable by the
Administrative Agent and the Lender Parties and their successors, transferees
and assigns. Without limiting the generality of the foregoing clause (c), any
Lender Party may assign or otherwise transfer all or any portion of its rights
and obligations under the Credit Agreement (including, without limitation, all
or any portion of its Commitment, the Advances owing to it and the Note or 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
herein or otherwise, in each case as and to the extent provided in Section 9.07
of the Credit Agreement.
SECTION 14. Judgment. (a) Rate of Exchange. If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum due
hereunder, under the Credit Agreement or under any Note or Notes in another
currency into US Dollars or into a Primary Currency, as the case may be, each of
the Guarantors agrees, 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
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8
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 of the Guarantors in
respect of any sum due from it to the Administrative Agent or any Lender Party
hereunder, under the Credit Agreement 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 such Administrative Agent or
such Lender Party in US Dollars or in such Primary Currency, each of the
Guarantors 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 Guarantor such excess.
SECTION 15. Jurisdiction, Etc. (a) Each of the Guarantors
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
Guaranty or any of the other Loan Documents, or for recognition or enforcement
of any judgment, and each of the Guarantors 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 of the Guarantors
further irrevocably consents to the service or 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 Guarantor at its address
set forth below its name on the signature pages hereto. Each of the Guarantors
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 of the Credit
Agreement, and each of the Guarantors 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
Guarantor 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
Guarantors 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 Guaranty shall affect
any right that any party may otherwise have to bring any action or proceeding
relating to this Guaranty or any of the other Loan Documents to which it is or
is to be a party in the courts of any jurisdiction.
(b) Each of the Guarantors 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 Guaranty or any of the
other
119
9
Loan Documents to which it is or is to be a party in any New York State or
federal court. Each of the Guarantors 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.
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10
(c) To the extent that any Guarantor 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 Guarantor hereby irrevocably waives such immunity in
respect of its obligations under this Agreement and the other Loan Documents.
SECTION 16. Waiver of Jury Trial. Each of the Guarantors
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 Guaranty or any of the other Loan Documents, the transactions
contemplated thereby or the actions of the Administrative Agent or any Lender
Party in the negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, each of the Guarantors has caused this
Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
PAXAR CAPITAL CORPORATION
By_______________________________________
Title:
Address: 000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxxx, XX 00000-0000
SYSTEMS HOLDINGS, INC.
By_______________________________________
Title:
Address: 000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxxx, XX 00000-0000
WOVEN LABEL HOLDINGS, INC.
By_______________________________________
Title:
Address: 000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxxx, XX 00000-0000
121
EXHIBIT A TO THE
SUBSIDIARY GUARANTY
FORM OF GUARANTY SUPPLEMENT
__________, ____
To each of the Lender Parties pursuant to the Credit
Agreement referred to below
Credit Agreement dated as of March 3, 1997 (as in
effect on the date hereof and as it may be hereafter amended, supplemented or
otherwise modified hereafter from time to time, the "Credit Agreement")
among Paxar Corporation, the Lenders, Issuing Banks and Swing Line
Bank named therein and Fleet Bank, N.A. as Administrative Agent.
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement and
to the Subsidiary Guaranty referred to therein (such Subsidiary Guaranty, as in
effect on the date hereof and as it may be hereafter amended, supplemented or
otherwise modified from time to time, the "Subsidiary Guaranty"). Capitalized
terms not otherwise defined herein shall have the same meanings as specified in
the Credit Agreement and in the Subsidiary Guaranty.
The undersigned hereby agrees as follows:
1. The undersigned hereby unconditionally and irrevocably
guarantees the punctual payment when due, whether at stated maturity,
by acceleration or otherwise, of all Obligations of the Borrower now or
hereafter existing under the Loan Documents, whether for principal,
interest, fees, expenses or otherwise (such Obligations being the
"Guaranteed Obligations"), and agrees to pay any and all expenses
(including reasonable counsel fees and expenses) incurred by the
Administrative Agent or any Lender Party in enforcing any rights under
this Guaranty Supplement and the Subsidiary Guaranty and the other Loan
Documents, on the terms and subject to the limitations set forth in the
Subsidiary Guaranty as if it were an original party thereto. Without
limiting the generality of the foregoing, the undersigned's liability
shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by the Borrower 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 the
Borrower.
2. The undersigned hereby confirms that it is the intention of
all parties that the Obligations of the undersigned under this Guaranty
Supplement and the Subsidiary Guaranty not constitute a fraudulent
transfer or conveyance for purposes of the United States Federal
Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to this Guaranty Supplement and the Subsidiary
Guaranty or any of the Obligations of the undersigned hereunder or
thereunder. To effectuate the foregoing intention, the undersigned
hereby irrevocably agrees that, notwithstanding anything to the
contrary contained in this Guaranty Supplement or the Subsidiary
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2
Guaranty, the Obligations of the undersigned and all other liabilities
of the undersigned under this Guaranty Supplement and the Subsidiary
Guaranty shall not exceed the greater of (i) the net benefit realized
by such Guarantor from the proceeds of the advances made from time to
time by the Borrowers to such Guarantor or any Subsidiary of such
Guarantor and (ii) the greater of (x) 95% of the Adjusted Net Assets of
such Guarantor on the date of delivery hereof and (y) 95% of the
Adjusted Net Assets of such Guarantor on the date of any payment
hereunder.
3. The undersigned hereby agrees, as of the date first above
written, to be bound as a Guarantor by all of the terms and conditions
of the Subsidiary Guaranty to the same extent as each of the other
Guarantors. The undersigned further agrees, as of the date first above
written, that each reference in the Subsidiary Guaranty to a
"Guarantor" shall also mean and be a reference to the undersigned, and
each reference in any other Loan Document to a "Guarantor" or a "Loan
Party" shall also mean and be a reference to the undersigned.
4. This Guaranty Supplement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New
York.
5. (a) The undersigned 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
Guaranty Supplement, or for recognition or enforcement of any judgment,
and the undersigned 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. The undersigned further irrevocably
consents to the service or 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 the undersigned at its address set
forth below its name on the signature pages hereto. The undersigned
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 of the Credit Agreement, and the undersigned 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 the undersigned shall not
impair or affect the validity of such service or of any judgment
rendered in any action or proceeding based thereon. The undersigned
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
Guaranty Supplement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Guaranty
Supplement or the other Loan Documents to which it is a party in the
courts of any jurisdiction.
(b) The undersigned 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 Guaranty
Supplement in any New York State or federal court. The undersigned
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.
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3
(c) To the extent that the undersigned 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, the undersigned hereby irrevocably
waives such immunity in respect of its obligations under this
Agreement.
6. The undersigned 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
Guaranty Supplement or any of the other Loan Documents to which it is a
party, or the actions of the Administrative Agent or any Lender Party
in the negotiation, administration, performance or enforcement thereof.
Very truly yours,
[NAME OF ADDITIONAL GUARANTOR]
By _______________________________
Name:
Title:
Address:
124
EXHIBIT H-2 - FORM
OF OPINION OF COUNSEL
FOR ADDITIONAL BORROWERS
[Date]
To each of the Lenders parties
to the Credit Agreement dated
as of March __, 1997
among Paxar Corporation,
said Lenders and Fleet Bank, N.A.,
as Administrative Agent for said Lenders, and
to Fleet Bank, N.A., as Administrative Agent
[Name of Additional Borrower]
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.02(h)
of the Credit Agreement, dated as of March __, 1997 (as amended, supplemented or
otherwise modified through the date hereof the "Credit Agreement"), among Paxar
Corporation, a New York corporation (the "Paxar") and the other Borrowers (as
defined therein) party thereto, the Lender Parties party thereto, Fleet Bank,
N.A. ("Fleet") as Initial Issuing Bank, Fleet as the Swing Line Bank, and Fleet
as Administrative Agent for said Lender Parties. Terms defined in the Credit
Agreement are used herein as therein defined.
We have acted as [NAME OF JURISDICTION] counsel for
_____________________ (the "Additional Borrower") in connection with the
preparation, execution and delivery of the Credit Agreement Supplement executed
by the Additional Borrower.
In that connection, we have examined:
(1) The Credit Agreement Supplement executed by the Additional
Borrower.
(2) The Credit Agreement.
(3) Each of the Revolving Credit Notes delivered by the
Additional Borrower pursuant to Section 3.02 of the Credit Agreement on
the date hereof.
(4) The documents furnished by the Additional Borrower
pursuant to Article III of the Credit Agreement.
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2
(5) The [Articles] [Certificate] of Incorporation [or other
similar organizational document] of the Additional Borrower and all
amendments thereto (the "Charter").
(6) The [by-laws][other similar constituent documents] of the
Additional Borrower and all amendments thereto (the "By-laws").
(5) A certificate of the [Secretary of State][other similar
governmental authority, if applicable] of _____________ (the
"Jurisdiction"), dated _______________, 199_, attesting to the
continued corporate existence and good standing of the Additional
Borrower in such Jurisdiction.
We have also examined the originals, or copies certified to our satisfaction, of
the documents listed in a certificate of the chief financial officer of the
Additional Borrower, dated the date hereof (the "Certificate"), certifying that
the documents listed in such certificate are all of the indentures, loan or
credit agreements, leases, guarantees, mortgages, security agreements, bonds,
notes and other agreements or instruments, and all of the orders, writs,
judgments, awards, injunctions and decrees, that affect or purport to affect the
Additional Borrower's right to borrow money or the Additional Borrower's
obligations under the Credit Agreement, the Credit Agreement Supplement or the
Revolving Credit Notes. In addition, we have examined the originals, or copies
certified to our satisfaction, of such other corporate records of the Additional
Borrower, certificates of public officials and of officers of the Additional
Borrower, and agreements, instruments and other documents, as we have deemed
necessary as a basis for the opinions expressed below. As to questions of fact
material to such opinions, we have, when relevant facts were not independently
established by us, relied upon certificates of the Additional Borrower or its
officers or of public officials.
In rendering the opinions set forth below, we have assumed
that all documents submitted to us as certified or photostatic copies conform to
the original documents, all signatures on all documents submitted to us for
examination (other than that of the Additional Borrower on the Credit Agreement
Supplement and each of the Revolving Credit Notes executed by it) are genuine,
and all public records reviewed by us or on our behalf are accurate and
complete.
Based upon the foregoing and upon such investigation as we
have deemed necessary, we are of the following opinion:
1. The Additional Borrower is [a corporation] duly
organized[,][and] validly existing [and in good standing] under the
Jurisdiction.
2. The Additional Borrower has all necessary corporate power
and authority to execute and deliver, and to perform its obligations
under, each of the Loan Documents to which it is a party and to own or
lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted.
3. The execution, delivery and performance by the Additional
Borrower of each Loan Document to which it is a party, and the
consummation of the transactions contemplated thereby, are within the
Additional Borrower's corporate powers, have been duly authorized by
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3
all necessary corporate action, and do not contravene (i) the Charter
or the By-laws or (ii) any law, rule or regulation applicable to the
Additional Borrower or (iii) any contractual or legal restriction
contained in any document listed in the Certificate or, to the best of
our knowledge, contained in any other similar document or any order
writ, judgment, award, injunction or decree that affects or purports to
affect the Additional Borrower.
4. The Credit Agreement Supplement and each other Loan
Document to be delivered pursuant to the Credit Agreement or the Credit
Agreement Supplement on or prior to the date hereof has been duly
executed and delivered by the Additional Borrower.
5. No authorization, 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 the due execution, delivery
and performance by the Additional Borrower of the Credit Agreement, the
Credit Agreement Supplement and the other Loan Documents.
[6. The Credit Agreement, the Credit Agreement Supplement and
each of the other Loan Documents is, and after giving effect to the
initial Borrowing, the Notes will be, legal, valid and binding
obligations of the Additional Borrower enforceable against the
Additional Borrower in accordance with their respective terms.](1)
[__. The choice of New York law to govern the Credit Agreement
Supplement of the Additional Borrower, the Credit Agreement and each of
the Revolving Credit Notes issued by the Additional Borrower is a valid
and effective choice of law under the laws of the Jurisdiction, and
under the Jurisdiction's principles of conflicts of laws, a court of
the Jurisdiction will apply New York law in an action or proceeding
arising out of such Credit Agreement Supplement, the Credit Agreement
or any such Revolving Credit Note to the extent that the parties
thereto have agreed to its application therein, except to the extent
that the Jurisdiction's procedural or remedial law shall apply. Without
limiting the generality of the foregoing, a court of the Jurisdiction
will apply the usury law of the State of New York to the Credit
Agreement and each of the Revolving Credit Notes.
__. Neither the Administrative Agent nor any Lender is
required to qualify to do business in the Jurisdiction or to comply
with the requirements of any foreign lender statute in order to perform
under the Credit Agreement or any of the Notes or to carry out any of
the other transactions contemplated thereby or to avail themselves of
the rights and remedies provided thereby, nor will the Administrative
Agent or any Lender be subject to taxation in the Jurisdiction, in each
case solely as the result of the performance of the Credit Agreement or
any of the Notes.
________
(1) This opinion should be given if the Additional Borrower is a U.S. Person.
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4
__. No stamp, registration or other similar taxes, fees or
charges are or will be required to be paid in the Jurisdiction in
connection with the execution, delivery, performance or enforcement of
the Credit Agreement or any of the Notes.]2
We express no opinion as to the laws of any jurisdiction other
than the laws of the Jurisdiction.
Very truly yours,
________
(2) These opinions should be given if the Additional Borrower is a foreign
Person.
128
EXHIBIT I - FORM OF
ACCEPTANCE OF
PROCESS AGENT
[LETTERHEAD OF PAXAR]
[Date]
To each of the Lenders party to the
Credit Agreement referred to below,
and to Fleet Bank, N.A., as Administrative
Agent for such Lenders
[NAME OF ADDITIONAL BORROWER]
Ladies and Gentlemen:
Reference is made to (a) the Credit Agreement dated as of
March __, 1997 (as amended or modified from time to time, the "Credit
Agreement") among Paxar Corporation, a New York corporation ("Paxar"), the other
Borrowers (as defined in the Credit Agreement) party thereto, the Lenders (as
defined in the Credit Agreement) and Fleet Bank, N.A., as agent for the Lenders
(the "Administrative Agent"), and (b) the Credit Agreement Supplement dated
_________, pursuant to which __________, a ___________ (the "Additional
Borrower"), has become a "Borrower" under and for all purposes of the Credit
Agreement. Terms defined in the Credit Agreement are used herein with the same
meaning
Pursuant to Section 9.13 of the Credit Agreement and to the
Credit Agreement Supplement, the Additional Borrower has appointed Paxar (with
its address at _________________________, Attention: _______________) as its
process agent (the "Process Agent") to receive on behalf of the Additional
Borrower and its property service of copies of any summons and complaint and any
other process that may be served in any action or proceeding in any New York
state court or any federal court sitting in New York City, New York, and any
appellate court from any thereof, arising out of or relating to its Credit
Agreement Supplement, the Credit Agreement or any of the Notes issued by it.
The undersigned hereby accepts such appointment as the Process
Agent and agrees with each of you that (a) Paxar will maintain an office in
White Plains, through the Termination Date and will give the Administrative
Agent prompt notice of any change of its address, (b) Paxar will perform its
duties as the Process Agent to receive on behalf of the Additional Borrower and
its property service of copies of any summons and complaint and any other
process that may be served in any action or proceeding in any New York state
court or any federal court sitting in New York City, New York, and any appellate
court from any thereof, arising out of or relating to the Credit Agreement
Supplement of the Additional Borrower, the Credit Agreement or any of the Notes
issued by the Additional Borrower and (c) the undersigned will forward forthwith
to the Additional Borrower at its address at ________________ or, if different,
its then current address, copies of any summons, complaint and other process
that the undersigned receives in connection with its appointment as the Process
Agent therefor.
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2
This acceptance and agreement shall be binding upon the
Company and all of its successors and assigns.
Very truly yours,
PAXAR CORPORATION
By_______________________________
Name:
Title:
130
Schedule 4.01(c)
Required Authorizations and Approvals
None.
131
Schedule 4.01(f)
Environmental Actions
The following materials are enclosed with this Schedule:
(1) A draft of the Form 10K filing together with the Superfund Status
Report for Monarch Marking Systems, Inc. pertaining to environmental matters.
(2) Letter from Xxxxxxxx Xxxxxxxx & Xxxxx to Xxxxxx Xxxxxxxx LLP, dated
January 31, 1997, pertaining to environmental matters for Paxar Corporation.
132
Schedule 4.01(j)
Environmental Laws
See Schedule 4.01(f), which is identical.
133
Schedule 5.02(d)
Existing Debt
Outstanding Total Facility Expires
----------- -------------- -------
PAXAR:
Economic Development Revenue
Bonds - Wachovia $ 8,000,000 $ 8,000,000 2011
Unsecured Letter of Credit line of
credit - Bank of Boston 0 3,000,000 1998
Nationsbank of Va. - EDA loan 67,000 2000
Pennsylvania Industrial Develop.
Authority 69,000 2000
Interest rate swap - Chase 15,000,000 15,000,000 1998
G.P. Rustichelli - Collitax acquisition debt 3,500,000,000 ITL 1997
Collitax:
Interbanca 135,730 1998
Mediocredito 775,991 2003
Fime Leasing Spa. 978,543 0000
Xxxxx:
B.N.L. 23,397 1998
Mediocredito 200,017 2001
Monarch foreign subsidiaries:
UK capital lease 387,000 2000
Overdraft lines: 150,000 GBP
UK - NatWest Bank 0
France - Banque De Beacque Beau 0 5,000,000 FRF
Credit Comm. De France 0 3,000,000 FRF
TOTAL $25,637,578
" 3,500,000,000 ITL
134
Schedule 5.02(g)
Scheduled Investments
1. Acquisition of 100% of Golden State, a $23,000,000 coated fabric
company with a principal office in Taiwan. The consideration for the proposed
acquisition is estimated to be approximately $18,000,000 in cash. The proposed
acquisition is scheduled to close in approximately 60 - 180 days from the date
hereof.
2. The transfer of ownership of Italian based Orvac, S.r.l. from
Systems Holdings, Inc. (a wholly owned subsidiary of Paxar Corporation) to North
Middletown Road Holdings, B.V., a Netherlands based Subsidiary of Paxar
Corporation. The transferred Investment totals approximately $8,600,000 and
includes a note payable to Paxar Corporation of $5,100,000. Orvac, S.r.l. has
annual sales of approximately $8,000,000 and is a manufacturer of hot stamp inks
and coated fabrics.
