1
EXECUTION COPY
U.S. $200,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 11, 1998
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..............................................................19
SECTION 1.03. Accounting Terms.........................................................................19
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances.............................................................................19
SECTION 2.02. Making the Advances......................................................................21
SECTION 2.03. The Competitive Bid Advances.............................................................23
SECTION 2.04. Issuance of and Drawings and Reimbursement Under Letters of Credit.......................27
SECTION 2.05. Fees.....................................................................................28
SECTION 2.06. Termination or Reduction of the Commitments..............................................28
SECTION 2.07. Repayment of Advances....................................................................29
SECTION 2.08. Interest.................................................................................30
SECTION 2.09. Interest Rate Determination..............................................................31
SECTION 2.10. Conversion of Advances...................................................................32
SECTION 2.11. Prepayments..............................................................................32
SECTION 2.12. Increased Costs..........................................................................33
SECTION 2.13. Illegality...............................................................................34
SECTION 2.14. Payments and Computations................................................................34
SECTION 2.15. Taxes....................................................................................35
SECTION 2.16. Sharing of Payments, Etc.................................................................37
SECTION 2.17. Use of Proceeds..........................................................................37
SECTION 2.18. Additional Borrowers.....................................................................37
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01, 2.03 and 2.04....................37
SECTION 3.02. Conditions Precedent to the Initial Borrowing of Each
Additional Borrower..............................................................39
SECTION 3.03. Conditions Precedent to Each Borrowing (other than a Competitive Bid
Borrowing and Issuance...........................................................40
SECTION 3.04. Conditions Precedent to Each Competitive Bid Borrowing...................................41
SECTION 3.05. Determinations Under Section 3.01........................................................41
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers..........................................42
ARTICLE V
COVENANTS OF PAXAR
SECTION 5.01. Affirmative Covenants....................................................................44
SECTION 5.02. Negative Covenants.......................................................................47
SECTION 5.03. Financial Covenants......................................................................52
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default........................................................................53
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action.................................................................55
SECTION 7.02. Administrative Agent's Reliance, Etc.....................................................56
SECTION 7.03. Fleet and Affiliates.....................................................................56
SECTION 7.04. Lender Credit Decision...................................................................56
SECTION 7.05. Indemnification..........................................................................56
SECTION 7.06. Successor Administrative Agent...........................................................57
ARTICLE VIII
GUARANTY
SECTION 8.01. Guaranty.................................................................................57
SECTION 8.02. Guaranty Absolute........................................................................58
SECTION 8.03. Waivers and Acknowledgments..............................................................59
SECTION 8.04. Subrogation..............................................................................59
SECTION 8.05. Continuing Guarantee; Assignments........................................................60
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc..........................................................................60
SECTION 9.02. Notices, Etc.............................................................................61
SECTION 9.03. No Waiver; Remedies......................................................................61
SECTION 9.04. Costs and Expenses.......................................................................61
SECTION 9.05. Right of Set-off.........................................................................62
SECTION 9.06. Binding Effect...........................................................................63
SECTION 9.07. Assignments, Designations and Participations.............................................63
SECTION 9.08. Confidentiality..........................................................................66
SECTION 9.09. No Liability of the Issuing Bank.........................................................66
SECTION 9.10. Governing Law............................................................................67
SECTION 9.11. Execution in Counterparts................................................................67
SECTION 9.12. Judgment.................................................................................67
SECTION 9.13. Jurisdiction, Etc........................................................................68
SECTION 9.14. Waiver of Jury Trial.....................................................................69
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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(i) - Environmental Laws
Schedule 5.02(a) - Existing Liens
Schedule 5.02(d) - Existing Debt
Schedule 5.02(g) - Scheduled Investments
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Credit Agreement Supplement
Exhibit F-1 - Form of Opinion of Counsel for Paxar
Exhibit F-2 - Form of Opinion of Counsel for Additional Borrowers
Exhibit G - Form of Acceptance of Process Agent
Exhibit H - Subsidiary Guaranty
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 11, 1998
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 to amend and restate the Existing Credit Agreement
(as defined below) in its entirety 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: Xxxxx 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 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.
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"Applicable Margin" means, at any time, a percentage per annum
determined by reference to the Debt to EBITDA Ratio as set forth below:
Applicable Margin for
Debt To Revolving Credit
EBITDA Ratio Advances
Level 1
Greater than or
equal to 3.00 to 1
or above 0.5000%
Level 2
Greater than or
equal to 2.50 to 1
but less than 3.00 to
1 0.4125%
Level 3
Greater than or
equal to 2.00 to 1
but less than 2.50 to
1 0.3500%
Level 4
Greater than or
equal to 1.50 to 1
but less than 2.00 to
1 0.3000%
Level 5
Greater than or
equal to 1.00 to 1
but less than 1.50 to
1 0.2500%
Xxxxx 0
Less than 1.00 to 1 0.2200%
The Applicable Margin for each Advance (other than a Competitive Bid
Advance) shall be determined by reference to the Debt to EBITDA Ratio
in effect on the first day of each Interest Period for such Advance;
provided, however, that no change in the Applicable Margin shall be
effective until three Business Days after the date on which the
Administrative Agent receives financial statements pursuant to Section
5.01(m)(i) or (ii) and a certificate of the chief financial officer or
the treasurer of Paxar demonstrating such ratio.
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"Applicable Percentage" means, at any time, a percentage per
annum determined by reference to the Debt to EBITDA Ratio as set forth
below:
Debt To Applicable
EBITDA Ratio Percentage
Level 1 0.2500%
Greater than or equal to
3.00 to 1 or above
Xxxxx 0 0.1875%
Greater than or equal to
2.50 to 1 but less than 3.00 to 1
Level 3 0.1500%
Greater than or equal to
2.00 to 1 but less than
2.50 to 1
Level 4 0.1250%
Greater than or equal to
1.50 to 1 but less than
2.00 to 1
Level 5 0.1000%
Greater than or equal to
1.00 to 1 but less than
1.50 to 1
Level 6 0.0800%
Less than 1.00 to 1
The Applicable Percentage for the Revolving Credit Facility shall be
determined by reference to the Debt to EBITDA Ratio in effect from time
to time; provided, however, that no change in the Applicable Percentage
shall be effective until three Business Days after the date on which
the Administrative Agent receives financial statements pursuant to
Section 5.01(m)(i) or (ii) and a certificate of the chief financial
officer or the treasurer of Paxar demonstrating such ratio.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted
by the Administrative Agent, in substantially the form of Exhibit C
hereto.
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"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"Borrower" means Paxar and each wholly owned Subsidiary of
Paxar that has delivered a Credit Agreement Supplement which has become
effective; provided, however, that in no event shall the number of
Borrowers hereunder exceed four at any one time.
"Borrowing" means a Revolving Credit Borrowing, a Swing Line
Borrowing or a Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurocurrency Rate Advances, on
which dealings are carried on in the London interbank market and banks
are open for business in the country of issue of the currency of such
Eurocurrency Rate Advance.
"Capital Expenditures" means, for any Person for any period,
the sum of (a) all expenditures made, directly or indirectly, by such
Person or any of its Subsidiaries during such period for equipment,
fixed assets, real property or improvements, or for replacements or
substitutions therefor or additions thereto, that have been or should
be, in accordance with GAAP, reflected as additions to property, plant
or equipment on a Consolidated balance sheet of such Person or have a
useful life of more than one year plus (b) without duplication, the
aggregate principal amount of all Debt (including Obligations under
Capitalized Leases) assumed or incurred in connection with any such
expenditures.
"Capitalized Leases" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
"Cash Equivalents" means any of the following, to the extent
owned by Paxar or any of its Subsidiaries free and clear of all Liens
and having a maturity of not greater than 180 days from the date of
issuance thereof: (a) readily marketable direct obligations of the
Government of the United States or any agency or instrumentality
thereof or obligations unconditionally guaranteed by the full faith and
credit of the Government of the United States, (b) insured certificates
of deposit of or time deposits with any commercial bank that is a
Lender Party or a member of the Federal Reserve System, issues (or the
parent of which issues) commercial paper rated as described in clause
(c), is organized under the laws of the United States or any state
thereof and has combined capital and surplus of at least $1 billion,
(c) commercial paper issued by any corporation organized under the laws
of any state of the United States and rated at least "Prime-1" (or the
then equivalent grade) by Xxxxx'x or "A-1" (or the then equivalent
grade) by S&P or (d) Investments in money market funds that invest
primarily in Cash Equivalents of the types described in clauses (a),
(b) and (c) above and are established by a Lender Party or any
Affiliate of a Lender Party.
"Commitment" means a Revolving Credit Commitment or a Letter
of Credit Commitment.
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"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
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or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss,
(3) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective
of whether such property is received or such services are rendered) or
(4) otherwise to assure a creditor against loss, and (j) all Debt
referred to in clauses (a) through (i) above secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise,
to be secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Debt.
"Debt to EBITDA Ratio" means, for any fiscal quarter of Paxar,
a ratio of Debt of Paxar and its Subsidiaries as at the end of such
fiscal quarter to Consolidated EBITDA of Paxar and its Subsidiaries for
the most recently completed four fiscal quarters.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Bidder" means (a) an Eligible Assignee or (b) a
special purpose corporation that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and that issues (or the parent of which issues) commercial
paper rated at least "Prime-1" (or the then equivalent grade) by
Xxxxx'x or "A-1" (or the then equivalent grade) by S&P that, in the
case of either clause (a) or (b), (i) is organized under the laws of
the United States or any State thereof, (ii) shall have become a party
hereto pursuant to Section 9.07(d), (e) and (f) and (iii) is not
otherwise a Lender Party.
"Designation Agreement" means a designation agreement entered
into by a Lender Party (other than a Designated Bidder) and a
Designated Bidder, and accepted by the Administrative Agent, in
substantially the form of Exhibit D hereto.
"Domestic Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party,
or such other office of such Lender Party as such Lender Party may from
time to time specify to Paxar and the Administrative Agent.
"EBIT" means, for any period, net income (or net loss) before
deduction for income taxes and net interest expense, in each case
determined in accordance with GAAP for such period.
"EBITDA" means, for any period, net income (or net loss) plus
the sum of (a) interest expense, (b) income tax expense, (c)
depreciation expense and (d) amortization expense, in each case
determined in accordance with GAAP for such period and, in the case of
clauses (a) through (d), to the extent such expenses are actually
deducted in calculating net income (or net loss); provided, however,
that the $2,300,000 non-recurring charge taken by Paxar in respect of
the quarter ended June 30, 1998 shall be excluded from the calculations
of EBITDA for all purposes of this Agreement.
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"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender Party; (ii) an
Affiliate of a Lender Party; (iii) a commercial bank organized under
the laws of the United States, or any State thereof, and having total
assets in excess of $500,000,000; (iv) a savings and loan association
or savings bank organized under the laws of the United States, or any
State thereof, and having total assets in excess of $500,000,000; (v) a
commercial bank organized under the laws of any other country that is a
member of the Organization for Economic Cooperation and Development or
has concluded special lending arrangements with the International
Monetary Fund associated with its General Arrangements to Borrow, or a
political subdivision of any such country, and having total assets in
excess of $500,000,000, so long as such bank is acting through a branch
or agency located in the United States; (vi) the central bank of any
country that is a member of the Organization for Economic Cooperation
and Development; (vii) a finance company, insurance company or other
financial institution or fund (whether a corporation, partnership,
trust or other entity) that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and having total assets in excess of $500,000,000 and (viii)
any other Person approved by the Administrative Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 9.07, Paxar, such
approval not to be unreasonably withheld or delayed; provided, however,
that neither Paxar nor an Affiliate of Paxar shall qualify as an
Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety
or natural resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"Equivalent" means (a) in US Dollars of any Primary Currency
on any date of determination, the equivalent in US Dollars of such
Primary Currency determined by using the quoted spot rate at which
Fleet's principal office in New York City, New York, offers to exchange
US Dollars for such Primary Currency in New York City, New York, at the
opening of business on such date and (b) in any Primary Currency of US
Dollars on any date of determination, the equivalent in such Primary
Currency of US Dollars determined by using the quoted spot rate at
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which Fleet's principal office in New York City, New York offers to
exchange such Primary Currency for US Dollars in New York City, New
York at the opening of business on such date.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of Paxar's controlled group, or under common
control with Paxar, within the meaning of Section 414 of the Internal
Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph
(9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30
days; (b) the application for a minimum funding waiver with respect to
a Plan; (c) the provision by the administrator of any Plan of a notice
of intent to terminate such Plan pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (d) the cessation of
operations at a facility of Paxar or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (e) the withdrawal
by Paxar or any ERISA Affiliate from a Multiple Employer Plan during a
plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for the imposition of a
lien under Section 302(f) of ERISA shall have been met with respect to
any Plan; (g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that constitutes grounds
for the termination of, or the appointment of a trustee to administer,
a Plan.
"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
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not available, the term "Eurocurrency Rate" shall mean, for any
Interest Period for each Eurocurrency Rate Advance comprising part of
the same Borrowing, the rate per annum (rounded upwards to the nearest
1/16 of 1%) appearing on the appropriate Reuters Screen as the London
interbank offered rate for deposits in US Dollars or in the applicable
Primary Currency, as the case may be, at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on such Reuters Screen, the
applicable rate shall be the arithmetic mean of all such rates.
"Eurocurrency Rate Advance" means an Advance (other than a
Competitive Bid Advance) denominated in US Dollars or in a Primary
Currency that bears interest as provided in Section 2.08(a)(ii).
"Eurocurrency Rate Reserve Percentage" means, with respect to
any Lender for any Interest Period for any Eurocurrency Rate Advance
made by such Lender from time to time, the reserve percentage
applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor thereto) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for such Lender with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference
to which the interest rate on Eurocurrency Rate Advances is determined)
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Credit Agreement" means the Credit Agreement dated
as of March 3, 1997, as amended by Letter Amendment dated as of October
1, 1997 and Letter Amendment No. 2 dated as of June ____, 1998, among
the Borrower, the banks, financial institutions and other institutional
lenders party thereto and Fleet as administrative agent.
"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.
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"Facility" means the Revolving Credit Facility, the Swing Line
Facility or the Letter of Credit Facility.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fiscal Year" means a fiscal year of Paxar and its
Consolidated Subsidiaries ending on December 31 in any calendar year.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i), which Advances shall be denominated in US Dollars.
"Fleet" has the meaning specified in the recital of parties to
this Agreement.
"Foreign Loan Amount" means, at any date, the sum of the
Equivalent on such date of the aggregate principal amount on such date
of the outstanding Revolving Credit Advances denominated in any Primary
Currency plus the aggregate principal amount on such date of the
outstanding advances made by Paxar and its domestic Subsidiaries to any
wholly-owned foreign Subsidiaries of Paxar.
"Funded Debt" of any Person means Debt in respect of the
Advances, in the case of any Borrower, and all other Debt of such
Person that by its terms matures more than one year after the date of
determination or matures within one year from such date but is
renewable or extendible, at the option of such Person, to a date more
than one year after such date or arises under a revolving credit or
similar agreement that obligates the lender or lenders to extend credit
during a period of more than one year after such date, including,
without limitation, all amounts of Funded Debt of such Person required
to be paid or prepaid within one year after the date of determination.
"GAAP" has the meaning specified in Section 1.03.
"Guaranteed Obligations" has the meaning specified in Section
8.01.
"Guaranty" has the meaning specified in Section 8.01.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
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"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 July __, 1998 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 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;
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(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(c)(ii).
"Lender Party" means any Lender, the Issuing Bank or the Swing
Line Bank.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 9.07(a), (b) and (c) and,
except when used in reference to a Borrowing (other than a Competitive
Bid Borrowing), a Note (other than a Competitive Bid Note), a
Commitment or a related term, each Designated Bidder.
"Letter of Credit" has the meaning specified in Section
2.01(c).
"Letter of Credit Advance" means an advance made by the
Issuing Bank or any Lender pursuant to Section 2.04(c), which advance
shall be denominated in US Dollars.
"Letter of Credit Agreement" has the meaning specified in
Section 2.04(a).
"Letter of Credit Commitment" means, with respect to the
Issuing Bank at any time, $5,000,000 or, if the Issuing Bank has
entered into one or more Assignments and Acceptances, set forth for the
Issuing Bank in the Register maintained by the Administrative Agent
pursuant to
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Section 9.07(g) as the Issuing Bank's "Letter of Credit Commitment"
and, in each case, as such amount may be reduced at or prior to such
time pursuant to Section 2.06.
"Letter of Credit Facility" means, at any time, an amount
equal to the amount of the Issuing Bank's Letter of Credit Commitment
at such time, as such amount may be reduced at or prior to such time
pursuant to Section 2.06.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, the
rate per annum (rounded upwards to the nearest 1/16 of 1%) appearing on
Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in US Dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason
such rate is not available, the term "LIBO Rate" shall mean, for any
Interest Period for each LIBO Rate Advance comprising part of the same
Competitive Bid Borrowing, the rate per annum (rounded upwards to the
nearest 1/16 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in US Dollars at approximately
11:00 A.M. (London time) two Business Days prior to the first day of
such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen
LIBO Page, the applicable rate shall be the arithmetic mean of all such
rates.
"LIBO Rate Advances" has the meaning specified in Section
2.03(a)(i).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Loan Documents" means this Agreement, the Notes, the
Subsidiary Guaranty, any Credit Agreement Supplement entered into by a
Borrower and any pledge agreement or security agreement entered into by
Paxar or any Subsidiary Guarantor pursuant to the provisions of Section
5.02(d)(ii).
"Loan Parties" means each Borrower and each Subsidiary
Guarantor.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance, properties or prospects of Paxar or Paxar and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of Paxar or Paxar and its
Subsidiaries taken as a whole, (b) the rights and remedies of the
Administrative Agent or any Lender Party under the Loan Documents or
(c) the ability of any Loan Party to perform its obligations under the
Loan Documents.
"Moody's" means Xxxxx'x Investors Service, Inc.
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"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which Paxar or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within
any of the preceding five plan years made or accrued an obligation to
make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of Paxar or any ERISA Affiliate and at least one Person other
than Paxar and the ERISA Affiliates or (b) was so maintained and in
respect of which Paxar or any ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or
were to be terminated.
"Net Cash Proceeds" means, with respect to the sale or
issuance of any Debt or capital stock or other ownership or profit
interest, any securities convertible into or exchangeable for capital
stock or other ownership or profit interest or any warrants, rights,
options or other securities to acquire capital stock or other ownership
or profit interest by any Person, the aggregate amount of cash received
from time to time (whether as initial consideration or through payment
or disposition of deferred consideration) by or on behalf of such
Person in connection with such transaction after deducting therefrom
only (without duplication) (a) reasonable and customary brokerage
commissions, underwriting fees and discounts, legal fees, finder's fees
and other similar fees and commissions and (b) the amount of taxes
payable in connection with or as a result of such transaction and (c)
the amount of any Debt secured by a Lien on such asset that, by the
terms of such transaction, is required to be repaid upon such
disposition, in each case to the extent, but only to the extent, that
the amounts so deducted are, at the time of receipt of such costs,
actually paid to a Person that is not an affiliate of such Person or
any Loan Party or any Affiliate of any Loan Party and are properly
attributable to such transaction or to the asset that is the subject
thereof.
"Net Interest Expense" means, for any period, the sum of the
aggregate net interest expense of any Person and its Subsidiaries for
such period, as determined in accordance with GAAP, and in any event
including, without duplication, all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers'
acceptances and net costs under interest rate protection agreements and
the portion of any obligation under Capitalized Leases allocable to
consolidated net interest expense.
"Note" means a Revolving Credit Note or a Competitive Bid
Note.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a)(i).
"Notice of Issuance" has the meaning specified in Section
2.04(a).
"Notice of Renewal" has the meaning specified in Section
2.01(c).
"Notice of Swing Line Borrowing" has the meaning specified in
Section 2.02(b).
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"Notice of Termination" has the meaning specified in Section
2.01(c).
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the foregoing, the obligations of the Loan
Parties under the Loan Documents include (a) the obligation to pay
principal, interest, Letter of Credit commissions, charges, expenses,
fees, attorneys' fees and disbursements, indemnities and other amounts
payable by any Loan Party under any Loan Document and (b) the
obligation of any Loan Party to reimburse any amount in respect of any
of the foregoing that any Lender Party, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party.
"Other Taxes" has the meaning specified in Section 2.15(b).
"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.
"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
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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.
"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 and the Registration Rights Agreement.
"Required Lenders" means at any time Lenders owed or holding
at least a majority in interest of the sum of (a) the aggregate
principal amount of the Advances (other than Competitive Bid Advances)
outstanding at such time and (b) the aggregate Available Amount of all
Letters of Credit outstanding at such time, or, if no such principal
amount and no Letters of Credit are outstanding at such time, Lenders
holding at least a majority in interest of the aggregate of the
Revolving Credit Commitments. For purposes of this definition, the
aggregate principal amount of Swing Line Advances owing to the Swing
Line Bank and of Letter of Credit Advances owing to the Issuing Bank
and the Available Amount of each Letter of Credit shall be considered
to be owed to the Lenders ratably in accordance with their respective
Revolving Credit Commitments.
"Revolving Credit Advance" has the meaning specified in
Section 2.01(a).
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"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lender Parties pursuant to Section 2.01(a).
"Revolving Credit Commitment" means, with respect to any
Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Revolving Credit Commitment" or,
if such Lender has entered into one or more Assignments and
Acceptances, set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 9.07(g) as such Lender's
"Revolving Credit Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.06.
"Revolving Credit Facility" means, at any time, the aggregate
amount of the Lenders' Revolving Credit Commitments at such time.
"Revolving Credit Note" means a promissory note of each
Borrower payable to the order of any Lender, in substantially the form
of Exhibit A-1 hereto, evidencing the aggregate indebtedness of such
Borrower to such Lender resulting from the Revolving Credit Advances
made by such Lender to such Borrower.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Senior Notes" means the 6.74% Senior Notes due 2008 issued by
Paxar in an aggregate principal amount not to exceed $150,000,000.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of Paxar or any ERISA Affiliate and no Person other than
Paxar and the ERISA Affiliates or (b) was so maintained and in respect
of which Paxar or any ERISA Affiliate could have liability under
Section 4069 of ERISA in the event such plan has been or were to be
terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to pay
such debts and liabilities as they mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in light
of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or
matured liability.
"Standby Letter of Credit" means any Letter of Credit issued
under the Letter of Credit Facility, other than a Trade Letter of
Credit.
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"Stock Purchase Agreement" means the Purchase and Sale
Agreement dated as of December 20, 1996 between Paxar and Odyssey
Partners, L.P., as the same may be amended, modified or otherwise
supplemented from time to time in accordance with the terms of this
Agreement.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Subsidiary Guarantors" means each of the Subsidiaries of
Paxar that is organized under the laws of the United States of America
or any state thereof.
"Subsidiary Guaranty" means the Guaranty dated as of March 3,
1997 (which is attached hereto as Exhibit H) made by the Subsidiary
Guarantors in favor of the Administrative Agent and the Lender Parties,
as the same may be amended, modified or otherwise supplemented from
time to time.
"Swing Line Advance" means an advance which shall be
denominated in US Dollars made by (a) the Swing Line Bank pursuant to
Section 2.01(b) or (b) any Lender pursuant to Section 2.02(b).
"Swing Line Bank" has the meaning specified in the recital of
parties to this Agreement.
"Swing Line Borrowing" means a borrowing consisting of a Swing
Line Advance made by the Swing Line Bank.
"Swing Line Facility" has the meaning specified in Section
2.01(b).
"Termination Date" means the earlier of August 11, 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.
"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.
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"Unused Revolving Credit Commitment" means, with respect to
any Lender at any time (a) such Lender's Revolving Credit Commitment at
such time minus (b) the sum of (i) the aggregate principal amount of
all Revolving Credit Advances, Swing Line Advances and Letter of Credit
Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time, plus (ii) such Lender's Pro Rata Share of (A)
the aggregate Available Amount of all Letters of Credit outstanding at
such time, (B) the aggregate principal amount of all Letter of Credit
Advances made by the Issuing Bank pursuant to Section 2.04(c) and
outstanding at such time, (C) the aggregate principal amount of all
Swing Line Advances made by the Swing Line Bank pursuant to Section
2.01(b) and outstanding at such time, and (D) the aggregate principal
amount of all Competitive Bid Advances outstanding at such time.
"US Dollars" and the "$" sign each mean the lawful money of
the United States of America.
"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.
"Year 2000 Risk" means the risk that computer applications
used by Paxar and its Subsidiaries and/or its suppliers, vendors and
customers may be unable to recognize and perform without error
date-sensitive functions involving certain dates prior to and any date
after December 31, 1999.
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
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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
$100,000,000. Any "Revolving Credit Advances" outstanding on the Effective Date
under the Existing Credit Agreement shall be Revolving Credit Advances for all
purposes hereunder and under the other Loan Documents. Within the limits of each
Lender's Commitment, the Borrowers may borrow under this Section 2.01, prepay
pursuant to Section 2.11 and reborrow under this Section 2.01.
(b) The Swing Line Advances. Paxar may request the Swing Line
Bank to make, and the Swing Line Bank shall make, on the terms and conditions
hereinafter set forth, Swing Line Advances to Paxar from time to time on any
Business Day during the period from the date hereof until the Termination Date
(i) in an aggregate amount not to exceed at any time outstanding $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. Any "Swing Line Advances" outstanding on the
Effective Date under the Existing Credit Agreement shall be Swing Line Advances
for all purposes hereunder and under the other Loan Documents. Within the limits
of the Swing Line Facility and within the limits referred to in clause (ii)
above, Paxar may borrow under this Section 2.01(b), repay pursuant to Section
2.07(c) or prepay pursuant to Section 2.11 and reborrow under this Section
2.01(b).
(c) Letters of Credit. The Issuing Bank agrees, on the terms
and conditions hereinafter set forth, to issue letters of credit (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
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(a "Notice of Renewal") given to the Issuing Bank and the Administrative Agent
on or prior to any date for notice of renewal set forth in such Letter of Credit
but in any event at least three Business Days prior to the date of the proposed
renewal of such Standby Letter of Credit and upon fulfillment of the applicable
conditions set forth in Article III unless such Issuing Bank has notified the
relevant Borrower (with a copy to the Administrative Agent) on or prior to the
date for notice of termination set forth in such Letter of Credit but in any
event at least 30 Business Days prior to the date of automatic renewal of its
election not to renew such Standby Letter of Credit (a "Notice of Termination"))
and (B) in the case of a Trade Letter of Credit, 60 days after the date of
issuance thereof; provided that the terms of each Standby Letter of Credit that
is automatically renewable annually shall (x) require the Issuing Bank that
issued such Standby Letter of Credit to give the beneficiary named in such
Standby Letter of Credit notice of any Notice of Termination, (y) permit such
beneficiary, upon receipt of such notice, to draw under such Standby Letter of
Credit prior to the date such Standby Letter of Credit otherwise would have been
automatically renewed and (z) not permit the expiration date (after giving
effect to any renewal) of such Standby Letter of Credit in any event to be
extended to a date later than 60 days before the Termination Date. If either a
Notice of Renewal is not given by the relevant Borrower or a Notice of
Termination is given by the Issuing Bank pursuant to the immediately preceding
sentence, such Standby Letter of Credit shall expire on the date on which it
otherwise would have been automatically renewed; provided, however, that even in
the absence of receipt of a Notice of Renewal the Issuing Bank may in its
discretion, unless instructed to the contrary by the Administrative Agent or the
relevant Borrower, deem that a Notice of Renewal had been timely delivered and
in such case, a Notice of Renewal shall be deemed to have been so delivered for
all purposes under this Agreement. Any "Letters of Credit" outstanding on the
Effective Date under the Existing Credit Agreement shall be Letters of Credit
for all purposes hereunder and under the other Loan Documents. Within the limits
of the Letter of Credit Facility, and subject to the limits referred to above,
the Borrower may request the issuance of Letters of Credit under this Section
2.01(c), repay any Letter of Credit Advances resulting from drawings thereunder
pursuant to Section 2.04(c) and request the issuance of additional Letters of
Credit under this Section 2.01(c).
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.
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(b) Each Swing Line Borrowing shall be made on notice, given
not later than 12:00 Noon (New York City time) on the date of the proposed Swing
Line Borrowing, by Paxar to the Swing Line Bank and the Administrative Agent.
Each such notice of a Swing Line Borrowing (a "Notice of Swing Line Borrowing")
shall be by telephone, confirmed immediately in writing, or telex or telecopier,
specifying therein the requested (i) date of such Borrowing, (ii) amount of such
Borrowing and (iii) interest rate to be applicable to the Advances comprising
such Borrowing (which interest rate shall either be the Prime Rate or such other
interest rate as may be agreed upon by Paxar and the Swing Line Bank). The Swing
Line Bank will make the amount thereof available to the Administrative Agent at
the Administrative Agent's Account, in same day funds. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to Paxar at the Administrative Agent's address referred to in Section
9.02. Upon written demand by the Swing Line Bank, with a copy of such demand to
the Administrative Agent, each other Lender shall purchase from the Swing Line
Bank, and the Swing Line Bank shall sell and assign to each such other Lender,
such other Lender's Pro Rata Share of such outstanding Swing Line Advance as of
the date of such demand, by making available for the account of its Applicable
Lending Office to the Administrative Agent for the account of the Swing Line
Bank, by deposit to the Administrative Agent's Account, in same day funds, an
amount equal to the portion of the outstanding principal amount of such Swing
Line Advance to be purchased by such Lender. Paxar hereby agrees to each such
sale and assignment. Effective upon each such sale and assignment, each Swing
Line Advance purchased by a Lender shall be, for all purposes under this
Agreement, a Revolving Credit Advance (which shall be a Prime Rate Advance).
Upon any such assignment by the Swing Line Bank to any other Lender of a portion
of a Swing Line Advance, the Swing Line Bank represents and warrants to such
other Lender that the Swing Line Bank is the legal and beneficial owner of such
interest being assigned by it, free and clear of any liens, but makes no other
representation or warranty and assumes no responsibility with respect to such
Swing Line Advance, the Loan Documents or any Loan Party. If and to the extent
that any Lender shall not have so made the amount of such Swing Line Advance
available to the Administrative Agent, such Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Swing Line Bank until the
date such amount is paid to the Administrative Agent, at the Federal Funds Rate.
If such Lender shall pay to the Administrative Agent such amount for the account
of the Swing Line Bank on any Business Day, such amount so paid in respect of
principal shall constitute a Swing Line Advance made by such Lender on such
Business Day for purposes of this Agreement, and the outstanding principal
amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by
such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) a Borrower may not select Eurocurrency Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than $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
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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.
(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
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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 canceled pursuant to paragraph (iii)(x)
above, the Administrative Agent shall give prompt notice thereof to the
Lenders and such Competitive Bid Borrowing shall not be made.
(v) If Paxar accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, the
Administrative Agent shall in turn promptly notify (A) each Lender that
has made an offer as described in paragraph (ii) above, of the date and
aggregate amount of such Competitive Bid Borrowing and whether or not
any offer or offers made by such Lender pursuant to paragraph (ii)
above have been accepted by Paxar, (B) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, of
the amount of each Competitive Bid Advance to be made by such Lender as
part of such Competitive Bid Borrowing, and (C) each Lender that is to
make a Competitive Bid Advance as part of such Competitive Bid
Borrowing, upon receipt, that the Administrative Agent has received
forms of documents appearing to fulfill the applicable conditions set
forth in Article III. Each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing shall, before 1:00
P.M. (New York City time) on the date of such Competitive Bid Borrowing
specified in the notice received from the Administrative Agent pursuant
to clause (A) of the preceding sentence or any later time when such
Lender shall have received notice from the Administrative Agent
pursuant to clause (C) of the preceding sentence, make available for
the account of its Applicable Lending Office to the Administrative
Agent at the Administrative Agent's Account, in same day funds, such
Lender's portion of such Competitive Bid Borrowing. Upon fulfillment of
the applicable conditions set forth in Article III and after receipt by
the Administrative Agent of such funds, the Administrative Agent will
make such funds available to Paxar at the Administrative Agent's
address referred to in Section 9.02. Promptly after each Competitive
Bid Borrowing the Administrative Agent will notify each Lender of the
amount of the Competitive Bid Borrowing and the Unused Revolving Credit
Commitments of the Lenders after giving effect to such Competitive Bid
Borrowing.
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(vi) If Paxar notifies the Administrative Agent that it
accepts one or more of the offers made by any Lender or Lenders
pursuant to paragraph (iii)(y) above, such notice of acceptance shall
be irrevocable and binding on Paxar. Paxar shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result
of any failure to fulfill on or before the date specified in the
related Notice of Competitive Bid Borrowing for such Competitive Bid
Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund
the Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing when such Competitive Bid Advance, as a
result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $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.
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(f) The indebtedness of Paxar resulting from each Competitive
Bid Advance shall be evidenced by a separate Competitive Bid Note of Paxar
payable to the order of the Lender making such Competitive Bid Advance.
(g) Upon delivery of each Notice of Competitive Bid Borrowing,
Paxar shall pay a non-refundable fee of $3,500 to the Administrative Agent for
its own account.
SECTION 2.04. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (New York City time) on the
fifth Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the relevant Borrower to the Issuing Bank, which shall give to the
Administrative Agent and each Lender prompt notice thereof by telex or
telecopier. Each such notice of issuance of a Letter of Credit (a "Notice of
Issuance") shall be by telephone, confirmed immediately in writing, or telex or
telecopier, specifying therein the requested (A) date of such issuance (which
shall be a Business Day), (B) Available Amount of such Letter of Credit, (C)
expiration date of such Letter of Credit, (D) name and address of the
beneficiary of such Letter of Credit and (E) form of such Letter of Credit, and
shall be accompanied by such application and agreement for letter of credit as
the Issuing Bank may specify to such Borrower for use in connection with such
requested Letter of Credit (a "Letter of Credit Agreement"). If (x) the
requested form of such Letter of Credit is acceptable to the Issuing Bank in its
sole discretion and (y) it has not received written notice of objection to such
issuance from the Required Lenders, the Issuing Bank will, upon fulfillment of
the applicable conditions set forth in Article III, make such Letter of Credit
available to the relevant Borrower at its office referred to in Section 9.02 or
as otherwise agreed with such Borrower in connection with such issuance. In the
event and to the extent that the provisions of any Letter of Credit Agreement
shall conflict with this Agreement, the provisions of this Agreement shall
govern.
(b) Letter of Credit Reports. The Issuing Bank shall furnish
(A) to the Administrative Agent and each Lender on the first Business Day of
each month a written report summarizing issuance and expiration dates of Letters
of Credit issued during the preceding month and drawings during such month under
all Letters of Credit and (B) to the Administrative Agent and each Lender on the
first Business Day of each calendar quarter a written report setting forth the
average daily aggregate Available Amount during the preceding calendar quarter
of all Letters of Credit.
(c) Drawing and Reimbursement. The payment by the Issuing Bank
of a draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by the Issuing Bank of a Letter of Credit Advance,
which shall be a Prime Rate Advance, in the amount of such draft. Upon written
demand by the Issuing Bank, with a copy of such demand to the Administrative
Agent, each Lender shall purchase from the Issuing Bank, and the Issuing Bank
shall sell and assign to each such Lender, such Lender's Pro Rata Share of such
outstanding Letter of Credit Advance as of the date of such purchase, by making
available for the account of its Applicable Lending Office to the Administrative
Agent for the account of the Issuing Bank, by deposit to the Administrative
Agent's Account, in same day funds, an amount equal to the portion of the
outstanding principal amount of such Letter of Credit Advance to be purchased by
such Lender. Promptly after receipt thereof, the Administrative Agent shall
transfer such funds to the Issuing Bank. Each Borrower hereby agrees to each
such sale and assignment. Each Lender agrees to purchase its Pro Rata Share of
an outstanding Letter of Credit Advance on (i) the Business Day
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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.
SECTION 2.05. Fees. (a) Revolving Credit Facility Fee. Paxar
agrees to pay to the Administrative Agent for the account of each Lender (other
than the Designated Bidders) a facility fee on the aggregate amount of such
Lender's Revolving Credit Commitment from the Effective Date in the case of each
Initial Lender and from the later of the Effective Date and the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender until the Termination Date at a rate per annum
equal to the Applicable Percentage in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and December,
commencing September 30, 1998, and on the Termination Date.
(b) Letter of Credit Fees, Etc. (i) Paxar shall pay to the
Administrative Agent for the account of each Lender a commission, payable in
arrears quarterly on the last Business Day of each March, June, September and
December, commencing September 30,1998, 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.
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(c) Administrative Agent's Fees. Paxar shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between Paxar and the Administrative Agent.
SECTION 2.06. Termination or Reduction of the Commitments. The
Borrower shall have the right, upon at least five Business Days' notice to the
Administrative Agent, to terminate in whole or reduce ratably in part the Unused
Revolving Credit Commitments of the Lenders, provided that each partial
reduction shall be in the aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and provided further that the aggregate
amount of the Revolving Credit Commitments of the Lenders shall not be reduced
to an amount that is less than an amount equal to the sum of (x) the aggregate
principal amount of the Competitive Bid Advances then outstanding and (y) the
aggregate Available Amount of all Letters of Credit then outstanding.
SECTION 2.07. Repayment of Advances. (a) Revolving Credit
Advances. Each Borrower shall repay to the Administrative Agent for the ratable
account of the Lenders on the Termination Date the aggregate principal amount of
the Revolving Credit Advances then outstanding.
(b) Swing Line Advances. Paxar shall repay to the
Administrative Agent for the account of the Swing Line Bank and each other
Lender that has made a Swing Line Advance the outstanding principal amount of
each Swing Line Advance made by each of them on the earliest of (i) the date
repayment is demanded by the Swing Line Bank, (ii) 60 days after such Swing Line
Advance is made and (iii) the Termination Date.
(c) Letter of Credit Advances. (i) The relevant Borrower shall
repay to the Administrative Agent for the account of the Issuing Bank and each
other Lender that has made a Letter of Credit Advance on the earlier of demand
and the Termination Date the outstanding principal amount of each Letter of
Credit Advance made by each of them.
(ii) The Obligations of each Borrower under this Agreement,
any Letter of Credit Agreement and any other agreement or instrument relating to
any Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances (it being understood
that any such payment by a Borrower is without prejudice to, and does not
constitute a waiver of, any rights such Borrower might have or might acquire as
a result of the payment by the Issuing Bank of any draft or the reimbursement by
such Borrower thereof):
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C Related Documents");
(B) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of any Borrower in
respect of any L/C Related Document or any other amendment or waiver of
or any consent to departure from all or any of the L/C Related
Documents;
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(C) the existence of any claim, set-off, defense or other
right that a Borrower may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank or
any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure from
the Guaranty, the Subsidiary Guaranty or any other guarantee, for all
or any of the Obligations of a Borrower in respect of the L/C Related
Documents; or
(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 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
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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 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
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Eurocurrency Rate Advance, such Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 9.04(c).
(b) Mandatory. (i) Paxar shall, on each Business Day, prepay
an aggregate principal amount of the Revolving Credit Advances comprising part
of the same Borrowings, the Letter of Credit Advances and the Swing Line
Advances equal to the amount by which (A) the sum of the aggregate principal
amount of (u) the Revolving Credit Advances denominated in US Dollars, plus (v)
the Equivalent on such day of the Revolving Credit Advances denominated in
Primary Currencies, plus (w) the Letter of Credit Advances, plus (x) the
aggregate Available Amount of all Letters of Credit then outstanding, plus (y)
the Swing Line Advances plus (z) the Competitive Bid Advances then outstanding
exceeds (B) the Revolving Credit Facility.
(ii) Prepayments of the Revolving Credit Facility made
pursuant to clause (i) above shall be first applied to prepay Letter of Credit
Advances then outstanding until such Advances are paid in full, second applied
to prepay Swing Line Advances then outstanding until such Advances are paid in
full and third applied to prepay Revolving Credit Advances then outstanding
comprising part of the same Borrowings until such Advances are paid in full.
(iii) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
SECTION 2.12. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender Party of agreeing to make
or making, funding or maintaining Eurocurrency Rate Advances or LIBO Rate
Advances (excluding for purposes of this Section 2.12 any such increased costs
resulting from (i) Taxes or Other Taxes (as to which Section 2.15 shall govern)
and (ii) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
laws of which such Lender Party is organized or has its Applicable Lending
Office or any political subdivision thereof), then Paxar shall from time to
time, upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party additional amounts sufficient to compensate such Lender Party for
such increased cost. A certificate as to the amount of such increased cost,
submitted to Paxar and the Administrative Agent by such Lender Party, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender Party determines that compliance with any
law or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender Party or any corporation controlling such Lender Party and that the
amount of such capital is increased by or based upon the existence of such
Lender Party's commitment to lend or to issue or participate in Letters of
Credit hereunder and other commitments of this type or the issuance or
maintenance of, or participation in, the Letters of Credit (or similar
contingent obligations), then, upon demand by such Lender Party (with a copy of
such demand to the Administrative Agent), Paxar shall pay to the Administrative
Agent for the account of such Lender Party, from time to time as specified by
such
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Lender Party, additional amounts sufficient to compensate such Lender Party or
such corporation in the light of such circumstances, to the extent that such
Lender Party reasonably determines such increase in capital to be allocable to
the existence of such Lender Party's commitment to lend or to issue or
participate in Letters of Credit hereunder or to the issuance or maintenance of,
or participation in, any Letters of Credit. A certificate as to such amounts
submitted to Paxar and the Administrative Agent by such Lender Party shall be
conclusive and binding for all purposes, absent manifest error.
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
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actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or facility fees are payable.
Each determination by the Administrative Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility or Letter
of Credit fee, as the case may be; provided, however, that, if such extension
would cause payment of interest on or principal of Eurocurrency Rate Advances or
LIBO Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice
from a Borrower prior to the date on which any payment is due to any Lender
Party hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender Party on
such due date an amount equal to the amount then due such Lender Party. If and
to the extent a Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender Party shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender Party together with
interest thereon, for each day from the date such amount is distributed to such
Lender Party until the date such Lender Party repays such amount to the
Administrative Agent, at the Federal Funds Rate.
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").
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(c) Each Borrower shall indemnify each Lender Party and the
Administrative Agent for and hold it harmless against the full amount of Taxes
and Other Taxes (including, without limitation, taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 2.15) imposed on or paid by
such Lender Party or the Administrative Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the date
such Lender Party or the Administrative Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
relevant Borrower shall furnish to the Administrative Agent, at its address
referred to in Section 9.02, the original or a certified copy of a receipt
evidencing such payment. In the case of any payment hereunder or under the Notes
by or on behalf of a Borrower through an account or branch outside the United
States or by or on behalf of a Borrower by a payor that is not a United States
person, if such Borrower determines that no Taxes are payable in respect
thereof, such Borrower shall furnish, or shall cause such payor to furnish, to
the Administrative Agent, at such address, an opinion of counsel acceptable to
the Administrative Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States, on or prior to the date of its execution
and delivery of this Agreement in the case of each Initial Lender or the Initial
Issuing Bank, as the case may be, and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender Party in the case of each other
Lender Party, and from time to time thereafter as requested in writing by a
Borrower (but only so long as such Lender Party remains lawfully able to do so),
shall provide each of the Administrative Agent and the Borrower with two
original Internal Revenue Service Forms 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.
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(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.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances
shall be available (and Paxar agrees that it and any other Borrower shall use
such proceeds) solely for general corporate purposes of Paxar and its
Subsidiaries.
SECTION 2.18. Additional Borrowers. Upon the execution and
delivery by any Subsidiary of Paxar acceptable to the Required Lenders in their
reasonable judgment of a supplement to this Agreement, in substantially the form
of Exhibit E hereto (a "Credit Agreement Supplement"), (i) such Person shall be
referred to as a "Borrower" and shall be and become a Borrower, and each
reference in this Agreement to a "Borrower" shall also mean and be a reference
to such Borrower and each reference in any other Loan Document to a "Borrower"
or a "Loan Party" shall also mean and be a reference to such Borrower, and (ii)
such Person shall assume all of the Obligations of a Borrower hereunder. The
Administrative Agent shall promptly notify each Lender of each such additional
Borrower.
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ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01, 2.03 and 2.04. Sections 2.01, 2.03 and 2.04 of this Agreement
shall become effective on and as of the first date (the "Effective Date") on
which the following conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 1997.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting Paxar or any of its Subsidiaries
pending or threatened before any court, governmental agency or
arbitrator that (i) could be reasonably likely to have a Material
Adverse Effect or (ii) purports to adversely affect the Facilities or
the consummation of the transactions contemplated hereby.
(c) All governmental and third party consents and approvals
necessary in connection with the Facilities and the other transactions
contemplated hereby shall have been obtained (without the imposition of
any conditions that are not acceptable to the Lender Parties) and shall
remain in effect, and no law or regulation shall be applicable in the
reasonable judgment of the Lender Parties that restrains, prevents or
imposes materially adverse conditions upon the transactions
contemplated hereby.
(d) Paxar shall have notified each Lender Party and the
Administrative Agent in writing as to the proposed Effective Date.
(e) Paxar shall have paid all accrued fees and expenses of the
Administrative Agent and the Lender Parties (including the accrued fees
and expenses of counsel to the Administrative Agent).
(f) Paxar shall have received Net Cash Proceeds from the
issuance of the Senior Notes of at least $149,000,000 and shall have
applied such Net Cash Proceeds first, to prepay in full the "Term
Advances" under the Existing Credit Agreement and second, to prepay the
"Revolving Credit Advances" under the Existing Credit Agreement.
(g) 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.
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(h) The Administrative Agent shall have received on or before
the Effective Date the following, each dated such day, in form and
substance satisfactory to the Administrative Agent and in sufficient
copies for each Lender Party:
(i) A certificate of the Secretary or an Assistant
Secretary of Paxar and each other Loan Party certifying the
names and true signatures of the officers of Paxar and such
other Loan Party authorized to sign this Agreement and the
Notes and the other documents to be delivered hereunder.
(ii) A copy of the charter of Paxar and each 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.
(iii) A consent executed by each of the Loan Parties
(other than Paxar) to the amendment and restatement of the
Existing Credit Agreement, in form and substance reasonably
satisfactory to the Administrative Agent.
(iv) Certificates, in form and substance satisfactory
to the Lender Parties, attesting to the Solvency of each Loan
Party after giving effect to the Transaction and the other
transactions contemplated hereby, from its chief financial
officer.
(v) A favorable opinion of Snow Xxxxxx Xxxxxx P.C.,
counsel for Paxar, substantially in the form of Exhibit F-1
hereto and as to such other matters as any Lender Party
through the Administrative Agent may reasonably request.
(i) The Existing Credit Agreement shall have been terminated
and all amounts due and owing under the Existing Credit Agreement shall
have been paid in full in cash.
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
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Revolving Credit Notes, and all documents evidencing other necessary
corporate (or equivalent) action and governmental approvals, if any,
with respect to this Agreement and its Revolving Credit Notes (copies
of which shall be attached thereto), (B) copies of the by-laws (or the
equivalent thereof) of such Borrower (copies of which shall be attached
thereto) and (C) the names and true signatures of the officers of such
Borrower authorized to sign the Credit Agreement Supplement relating to
such Borrower and its Revolving Credit Notes and the other documents to
be delivered by such Borrower hereunder.
(d) A copy of the charter or articles (or other similar
organizational document) of such Borrower, certified (as of a date
reasonably near the date of such Borrowing) as being a true and
complete copy thereof by the Secretary of State (or other appropriate
governmental authority) of the jurisdiction of organization of such
Borrower or, if such certificate is not provided in the jurisdiction of
organization of such Borrower, certified (as of a date reasonably near
the date of such Borrowing) as being a true and complete copy thereof
by a duly authorized officer of such Borrower.
(e) A copy of a certificate of the Secretary of State (or
other appropriate governmental authority) of the jurisdiction of
organization of such Borrower, dated reasonably near the date of such
Borrowing, certifying that such Borrower is duly organized and in good
standing (or the equivalent thereof) under the laws of the jurisdiction
of its organization.
(f) A certificate signed by a duly authorized officer of such
Borrower, dated as of the date of such Borrowing, certifying that such
Borrower has obtained all authorizations, consents, approvals
(including, without limitation, exchange control approvals) and
licenses of any governmental authority or other third party necessary
for such Borrower to execute and deliver its Credit Agreement
Supplement and its Revolving Credit Notes and to perform its
obligations under this Agreement or any of its Revolving Credit Notes.
(g) Evidence of acceptance by Paxar of its appointment as the
process agent of such Borrower in accordance with Section 9.13(a), in
substantially the form of Exhibit G hereto.
(h) A favorable opinion of counsel for such Borrower
reasonably acceptable to the Administrative Agent, dated the date of
such Borrowing, in substantially the form of Exhibit F-2 hereto, and
addressing such other matters as any Lender Party through the
Administrative Agent may reasonably request.
(i) Such other documents, opinions and other information as
any Lender Party, through the Administrative Agent, may reasonably
request.
SECTION 3.03. 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
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of Credit and the right of a Borrower to request a Swing Line Borrowing or the
issuance or renewal of a Letter of Credit, shall be subject to the conditions
precedent that the Effective Date shall have occurred and on the date of such
Borrowing or issuance or renewal (a) the following statements shall be true (and
each of the giving of the applicable Notice of Borrowing, Notice of Swing Line
Borrowing, Notice of Issuance or Notice of Renewal and the acceptance by the
relevant Borrower of the proceeds of such Borrowing or of such Letter of Credit
or the renewal of such Letter of Credit shall constitute a representation and
warranty by Paxar and such Borrower that on the date of such Borrowing or
issuance or renewal such statements are true):
(i) the representations and warranties contained in each Loan
Document are correct on and as of such date, before and after giving
effect to such Borrowing or issuance or renewal and to the application
of the proceeds therefrom, as though made on and as of such date other
than any such representations or warranties that, by their terms, refer
to a specific date other than the date of such Borrowing or issuance or
renewal, in which case as of such specific date, and
(ii) no event has occurred and is continuing, or would result
from such Borrowing or issuance or renewal or from the application of
the proceeds therefrom, that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender Party through the Administrative Agent may
reasonably request.
SECTION 3.04. 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
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(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 3.05. 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.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers.
Each Borrower represents and warrants as follows:
(a) Each Loan Party is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation.
(b) The execution, delivery and performance by each Loan Party
of this Agreement, the Notes and each other Loan Document to which it
is or is to be a party, and the consummation of the transactions
contemplated hereby, are within such Loan Party's corporate powers,
have been duly authorized by all necessary corporate action, and do not
(i) contravene such Loan Party's charter or by-laws, (ii) violate any
law (including, without limitation, the Securities Exchange Act of 1934
and the Racketeer Influenced and Corrupt Organizations Chapter of the
Organized Crime Control Act of 1970), rule, regulation (including,
without limitation, Regulation X of the Board of Governors of the
Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach of,
or constitute a default under, any contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument binding on or
affecting any Loan Party, any of its Subsidiaries or any of their
properties or (iv) except for the Liens created under the Loan
Documents, result in or require the creation or imposition of any Lien
upon or with respect to any of the properties of any Loan Party or any
of its Subsidiaries.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for (i) the due execution,
delivery and performance by any Loan Party of this Agreement, the Notes
or any other Loan Document to which it is or is to be a party or for
the consummation of the transactions contemplated hereby or (ii) the
exercise by the Administrative Agent or any Lender Party of its
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rights under the Loan Documents, except for those authorizations,
approvals, actions, notices and filings listed on Schedule 4.01(c)
hereto, all of which have been duly obtained, taken, given or made and
are in full force and effect.
(d) This Agreement, each of the Notes and each other Loan
Document has been duly executed and delivered by each Loan Party
thereto. This Agreement, each of the Notes and each other Loan Document
is the legal, valid and binding obligation of each Loan Party party
thereto, enforceable against such Loan Party in accordance with its
respective terms.
(e) The Consolidated balance sheet of Paxar and its
Subsidiaries as at December 31, 1997, 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 March 31, 1998, and
the related Consolidated statements of income and cash flows of Paxar
and its Subsidiaries for the three 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 March 31, 1998, and said statements of
income and cash flows for the three months then ended, to year-end
audit adjustments, the Consolidated financial condition of Paxar and
its Subsidiaries as at such dates and the Consolidated results of the
operations of Paxar and its Subsidiaries for the periods ended on such
dates, all in accordance with generally accepted accounting principles
consistently applied. Since December 31, 1997, there has been no
Material Adverse Change.
(f) Except with respect to the matters disclosed on Schedule
4.01(f), there is no pending or threatened action, suit, investigation,
litigation or proceeding, including, without limitation, any
Environmental Action, affecting the Borrower or any of its Subsidiaries
before any court, governmental agency or arbitrator that (i) could be
reasonably likely to have a Material Adverse Effect or (ii) purports to
affect the legality, validity or enforceability of this Agreement or
any Note or the consummation of the transactions contemplated hereby.
(g) No Borrower is engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock.
(h) Neither the 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.
(i) Except with respect to the matters disclosed on Schedule
4.01(i), the operations and properties of Paxar and each of its
Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non-compliance
with such
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Environmental Laws and Environmental Permits has been resolved without
ongoing obligations or costs, and no circumstances exist that would be
reasonably likely to (i) form the basis of an Environmental Action
against any Loan Party or any of its Subsidiaries or any of their
properties that could have a Material Adverse Effect or (ii) cause any
such property to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law.
(j) Neither any Loan Party nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, nor the issuance of any Letters of Credit, nor
the application of the proceeds or repayment thereof by the Borrower,
nor the consummation of the other transactions contemplated hereby,
will violate any provision of such Act or any rule, regulation or order
of the Securities and Exchange Commission thereunder.
(k) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(l) Paxar has reviewed the Year 2000 Risk and is taking such
action as may be necessary to ensure that the Year 2000 Risk will not
adversely affect its business operations and/or financial condition.
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.
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(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which Paxar
or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that Paxar and its Subsidiaries may consummate any
merger or consolidation permitted under Section 5.02(b), and provided
further that neither Paxar nor any of its Subsidiaries shall be
required to preserve any right or franchise if the Board of Directors
of Paxar or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of Paxar
or such Subsidiary, as the case may be, and that the loss thereof is
not disadvantageous in any material respect to Paxar, such Subsidiary
or the Lender Parties.
(e) Visitation Rights. At any reasonable time and from time to
time, permit (i) the Administrative Agent or any agents or
representatives thereof to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
Paxar and any of its Subsidiaries, and (ii) the Administrative Agent or
any of the Lender Parties or any agents or representatives thereof to
discuss, in connection with the Loan Documents, the affairs, finances
and accounts of Paxar and any of its Subsidiaries with any of their
officers and with their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of Paxar and each such Subsidiary in accordance with generally
accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
(h) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property to which Paxar or any of its Subsidiaries is a party, keep
such leases in full force and effect and not allow such leases to lapse
or be terminated or any rights to renew such leases to be forfeited or
canceled, notify the Administrative Agent of any default by any party
with respect to such leases and cooperate with the Administrative Agent
in all respects to cure any such default, and cause each of its
Subsidiaries to do so except, in any case, where the failure to do so,
either individually or in the aggregate, would not be reasonably likely
to have a Material Adverse Effect.
(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
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Administrative Agent and, upon request of the Administrative Agent,
make to each other party to each such Related Document such demands and
requests for information and reports or for action as Paxar is entitled
to make under such Related Document.
(j) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
this Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to Paxar or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not
an Affiliate.
(k) Compliance with Environmental Laws. Comply, and cause each
of its Subsidiaries and all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with all
applicable Environmental Laws and Environmental Permits; obtain and
renew and cause each of its Subsidiaries to obtain and renew all
Environmental Permits necessary for its operations and properties; and
conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that neither
Paxar nor any of its Subsidiaries shall be required to undertake any
such cleanup, removal, remedial or other action to the extent that its
obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect
to such circumstances.
(l) Preparation of Environmental Reports. If an Event of
Default shall have occurred and be continuing, at the request of the
Required Lenders, provide to the Lender Parties within 60 days after
such request, at the expense of Paxar, an environmental site assessment
report for the properties described in such request, prepared by an
environmental consulting firm acceptable to the Required Lenders,
indicating the presence or absence of Hazardous Materials and the
estimated cost of any compliance, removal or remedial action in
connection with any Hazardous Materials on such properties; without
limiting the generality of the foregoing, if the Required Lenders
determine at any time that a material risk exists that any such report
will not be provided within the time referred to above, the Required
Lenders may retain an environmental consulting firm to prepare such
report at the expense of Paxar, and Paxar hereby grants and agrees to
cause any Subsidiary that owns any property described in such request
to grant at the time of such request, to the Administrative Agent, the
Lender Parties, such firm and any agents or representatives thereof an
irrevocable non-exclusive license, subject to the rights of tenants, to
enter onto their respective properties to undertake such an assessment.
(m) Reporting Requirements. Furnish to the Lender Parties:
(i) as soon as available and in any event within 50
days after the end of each of the first three quarters of each
fiscal year of Paxar, Consolidated and consolidating balance
sheets of Paxar and its Subsidiaries as of the end of such
quarter and Consolidated and consolidating statements of
income and cash flows of Paxar and its Subsidiaries for the
period commencing at the end of the previous fiscal year and
ending with the end of such quarter, duly certified (subject
to year-end audit adjustments) by the chief financial
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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 provide, if necessary for the determination of compliance
with Section 5.03, a statement of reconciliation conforming
such financial statements to GAAP;
(iii) as soon as available and in any event no later
than 105 days after the end of each fiscal year of Paxar,
forecasts prepared by management of Paxar, in form
satisfactory to the Administrative Agent, of balance sheets,
income statements and cash flow statements on an annual basis
for each of the three immediately succeeding fiscal years;
(iv) as soon as possible and in any event within five
days after the occurrence of each Default continuing on the
date of such statement, a statement of the chief financial
officer or treasurer of Paxar setting forth details of such
Default and the action that Paxar has taken and proposes to
take with respect thereto;
(v) promptly after the sending or filing thereof,
copies of all reports that Paxar sends to any of its security
holders, and copies of all reports and registration statements
that Paxar or any Subsidiary files with the Securities and
Exchange Commission or any national securities exchange;
(vi) promptly after the commencement thereof, notice
of all actions and proceedings before any court, governmental
agency or arbitrator affecting Paxar or any of its
Subsidiaries of the type described in Section 4.01(f);
(vii) promptly after the assertion or occurrence
thereof, notice of any Environmental Action against or of any
noncompliance by Paxar or any of its Subsidiaries
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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.
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, however, that no such Lien shall extend to or cover
any properties of any character other than the real property
or equipment being acquired, and no such extension, renewal or
replacement shall extend to or cover any properties not
theretofore subject to the Lien being extended, renewed or
replaced, provided further that the sum of the aggregate
principal amount of the indebtedness secured by the Liens
referred to in this clause (ii) plus the aggregate principal
amount of the indebtedness secured by the Liens referred to in
clause (iv) below shall not exceed the amount specified
therefor in Section 5.02(d)(iii)(C) at any time outstanding,
(iii) the Liens existing on the Effective Date and
described on Schedule 5.02(a) hereto,
(iv) Liens arising in connection with Capitalized
Leases permitted under Section 5.02(d)(iii)(C); provided that
no such Lien shall extend to or cover any assets other than
the assets subject to such Capitalized Leases,
(v) the replacement, extension or renewal of any Lien
permitted by clause (iii) above upon or in the same property
theretofore subject thereto or the replacement, extension or
renewal (without increase in the amount or change in any
direct or contingent obligor) of the Debt secured thereby, and
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(vi) other Liens securing Debt in an aggregate
principal amount not to exceed the amount specified therefor
in Section 5.02(d)(iii)(H) at any time outstanding.
(b) Mergers, Etc. Merge or consolidate with or into any
Person, or permit any of its Subsidiaries to do so, except that (i) any
domestic Subsidiary of Paxar may merge or consolidate with or into any
other domestic Subsidiary of Paxar, (ii) any foreign Subsidiary of
Paxar may merge or consolidate with or into any other foreign
Subsidiary of Paxar, (iii) any Subsidiary of Paxar may merge into Paxar
and (iv) the Borrower may merge into or consolidate with any other
Person or permit any other Person to merge into or consolidate with it;
provided, however, in each case, that no Default shall have occurred
and be continuing at the time of such proposed transaction or would
result therefrom and, in the case of any merger or consolidation to
which the Borrower is a party, the Borrower shall be the surviving
corporation.
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally
accepted accounting principles.
(d) Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist,
any Debt other than:
(i) in the case of Paxar, Debt in respect of Hedge
Agreements designed to hedge against fluctuations in interest
rates incurred in the ordinary course of business and
consistent with prudent business practice;
(ii) (A) in the case of any of its domestic
Subsidiaries, Debt owed to Paxar or to a wholly-owned
Subsidiary of Paxar and (B) in the case of any of its foreign
Subsidiaries, Debt owed to Paxar or to a wholly-owned domestic
Subsidiary of Paxar, provided that (1) after giving effect to
the incurrence of any such Debt referred to in this clause
(B), the Foreign Loan Amount shall not exceed $100,000,000 and
(2) any such Debt referred to in this clause (B) shall be
evidenced by a promissory note and such promissory note shall
be pledged in favor of the Administrative Agent and the Lender
Parties pursuant to the terms of a pledge agreement or a
security agreement in form and substance reasonably
satisfactory to the Administrative Agent; and
(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
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therefor shall not be changed, as a result of or in
connection with such extension, refunding or
refinancing and (2) any Existing Debt constituting
Debt owed by a foreign Subsidiary to Paxar or to a
wholly owned domestic Subsidiary of Paxar shall be
evidenced by a promissory note and such promissory
note shall be pledged in favor of the Administrative
Agent and the Lender Parties pursuant to the terms of
the Pledge Agreement or a pledge agreement or a
security agreement in form and substance reasonably
satisfactory to the Administrative Agent,
(C) Capitalized Leases and Debt secured by
Liens permitted by Section 5.02(a)(ii), provided that
(i) on any date the sum of Capitalized Leases then
outstanding plus the aggregate amount of Debt then
outstanding and secured by Liens permitted by Section
5.02(a)(ii) plus the aggregate amount of Debt then
outstanding and secured by Liens permitted by Section
5.02(a)(vi) shall not exceed $50,000,000 and (ii)
after giving effect to the creation, incurrence or
assumption of such Capitalized Lease or such Debt,
the Debt to EBITDA Ratio of Paxar and its
Subsidiaries (calculated on a pro forma basis) as of
the end of the most recently ended fiscal quarter of
Paxar would be less than 3.25:1,
(D) in the case of Existing Debt of Paxar
and its Subsidiaries, Debt of Paxar and its domestic
Subsidiaries of the type described in clause (i) of
the definition of "Debt" guaranteeing the Obligations
of Paxar or such Subsidiary, as the case may be,
under such Existing Debt,
(E) Debt of Paxar or any of its wholly owned
domestic Subsidiaries that is subordinate to the
Obligations of the Loan Parties under the Loan
Documents in an aggregate principal amount acceptable
to the Required Lenders and on terms and conditions
satisfactory to the Required Lenders,
(F) endorsement of negotiable instruments
for deposit or collection or similar transactions in
the ordinary course of business;
(G) Debt of Paxar or any of its wholly owned
Subsidiaries so long as (i) both before and after
giving effect to the creation, incurrence or
assumption of such Debt, no Default shall occur and
be continuing and (ii) after giving effect to the
creation, incurrence or assumption of such Debt, the
Debt to EBITDA Ratio of Paxar and its Subsidiaries
(calculated on a pro forma basis) as of the end of
the most recently ended fiscal quarter of Paxar would
be less than 3.25:1,
(H) secured Debt of Paxar or any of its
wholly owned Subsidiaries, provided that (i) on any
date the sum of Capitalized Leases then outstanding
plus the aggregate amount of Debt then outstanding
and secured by Liens permitted by Section 5.02(a)(ii)
plus the aggregate amount of Debt then outstanding
and secured by Liens permitted by Section 5.02(a)(vi)
shall not exceed $50,000,000 and (ii) after giving
effect to the creation, incurrence or assumption of
such Debt, the Debt to EBITDA Ratio of Paxar and its
Subsidiaries (calculated on an pro
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forma basis) as of the end of the most recently ended
fiscal quarter of Paxar would be less than 3.25:1,
and
(I) in the case of Paxar, the Senior Notes
in an aggregate principal amount not to exceed
$150,000,000 at any time outstanding.
(e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any assets, or grant any option or other right
to purchase, lease or otherwise acquire any assets, except (i) sales of
inventory in the ordinary course of its business, (ii) in a transaction
authorized by subsection (b) of this Section and (iii) sales of assets
for cash and for fair value in an aggregate amount not to exceed an
amount equal to 10% of the Consolidated total assets of Paxar and its
Subsidiaries.
(f) Investments in Other Persons. Make or hold, or permit any
of its Subsidiaries to make or hold, any Investment in any Person other
than:
(i) (A) Investments by Paxar and its domestic
Subsidiaries in their Subsidiaries outstanding on the date
hereof and additional Investments in wholly owned domestic
Subsidiaries of Paxar that, prior to the making of such
Investments, were wholly owned Subsidiaries of Paxar, (B)
Investments by Paxar and its Subsidiaries in wholly owned
Subsidiaries of Paxar that, prior to the making of such
Investments were not wholly owned Subsidiaries of Paxar,
provided that (i) both before and after giving effect to such
Investment, no Default shall have occurred and be continuing
and (ii) with respect to Investments in any newly acquired or
created wholly owned Subsidiary of Paxar, (1) the aggregate
amount (including the fair market value of any non-cash
portion of any such Investment) invested in each such
Subsidiary shall not exceed $75,000,000, (2) if the aggregate
amount (including the fair market value of any non-cash
portion of any such Investment) invested in any such
Subsidiary is greater than $25,000,000, Paxar must deliver,
prior to such Investment, a certificate of the chief financial
officer of Paxar, describing such Investment and demonstrating
compliance with the covenants (on a pro forma basis giving
effect to such Investment) set forth in Section 5.03 and (3)
such Subsidiary (if it is a domestic Subsidiary of Paxar)
shall become a Subsidiary Guarantor pursuant to the terms of
the Subsidiary Guaranty, (C) Investments by the foreign
Subsidiaries of Paxar in their Subsidiaries outstanding on the
date hereof and (D) the Investment described on Schedule
5.02(g) hereto;
(ii) loans and advances to employees in the ordinary
course of the business of Paxar and its Subsidiaries as
presently conducted in an aggregate principal amount not to
exceed $5,000,000 at any time outstanding;
(iii) Investments in Cash Equivalents;
(iv) Investments in overnight Eurodollar deposits
with any commercial bank that is a Lender Party or a member of
the Federal Reserve System, issues (or the parent of which
issues) commercial paper rated as described in clause (c) of
the definition of
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"Cash Equivalents", is organized under the laws of the United
States or any State thereof and has combined capital and
surplus of at least $1 billion;
(v) Investments consisting of intercompany Debt
permitted under Section 5.02(d)(ii); and
(vi) other Investments in an aggregate amount
invested not to exceed $25,000,000 in Persons other than
wholly owned Subsidiaries; provided that with respect to any
such Investment in any newly acquired or created domestic
Subsidiary of Paxar, such Subsidiary shall become a Subsidiary
Guarantor pursuant to the terms of the Subsidiary Guaranty.
(g) Change in Nature of Business. Engage, or permit any of its
Subsidiaries to engage, to any substantial extent in any business other
than the businesses in which Paxar and its Subsidiaries are engaged on
the Effective Date and businesses reasonably related thereto or in
furtherance thereof.
(h) Charter Amendments. Amend, or permit any of its
Subsidiaries to amend, its certificate of incorporation or bylaws,
other than any amendment which would not adversely affect the rights or
interests of the Lender Parties hereunder and under the other Loan
Documents.
(i) Prepayments, Etc. of Debt. (x) Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in
any manner, or make any payment in violation of any subordination terms
of, any Debt unless both before and after giving effect to any such
prepayment, redemption, purchase, defeasance or satisfaction, no
Default shall have occurred and be continuing, or (y) amend, modify or
change in any manner any term or condition of any Existing Debt or the
Senior Notes, or permit any of its Subsidiaries to do any of the
foregoing other than to prepay any Debt payable to Paxar.
(j) Amendment, Etc. of Related Documents. Cancel or terminate
any Related Document or consent to or accept any cancellation or
termination thereof, amend, modify or change in any manner any term or
condition of any Related Document (other than any amendment,
modification or change which would not adversely affect the rights or
interests of the Lender Parties hereunder and under the other Loan
Documents) or give any consent, waiver or approval thereunder (other
than any consent, waiver or approval which would not adversely affect
the rights or interests of the Lender Parties hereunder and under the
other Loan Documents), waive any default under or any breach of any
term or condition of any Related Document, agree in any manner to any
other amendment, modification or change of any term or condition of any
Related Document or take any other action in connection with any
Related Document that would impair the value of the interest or rights
of Paxar thereunder or that would impair the rights or interests of the
Administrative Agent or any Lender Party, or permit any of its
Subsidiaries to do any of the foregoing.
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(k) Partnerships, Etc. Become a general partner in any general
or limited partnership or joint venture, or permit any of its
Subsidiaries to do so, other than any Subsidiary of Paxar the sole
assets of which consist of its interest in such partnership or joint
venture.
SECTION 5.03. Financial Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, Paxar will:
(a) Net Worth. Maintain at all times an excess of Consolidated
total assets over Consolidated total liabilities, in each case of Paxar
and its Subsidiaries, of not less than $190,000,000 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 October 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 October 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 3.25:1.
(c) Fixed Charge Coverage Ratio. Maintain at the end of each
fiscal quarter of Paxar a ratio of Consolidated EBITDA of Paxar and its
Subsidiaries for the most recently completed four fiscal quarters of
Paxar and its Subsidiaries less the aggregate amount of Capital
Expenditures made by Paxar and its Subsidiaries during such four fiscal
quarter period to the sum of (i) interest and fees payable on all Debt
during such four fiscal quarter period plus (ii) principal amounts of
all Debt scheduled to be payable during such four fiscal quarter period
plus (iii) the aggregate amount of all taxes payable in cash during
such four fiscal quarter period, in each case by Paxar and its
Subsidiaries, of not less 1.50:1.
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
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(c) (i) Paxar shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d), (e), (j) or (k),
5.02 or 5.03, or (ii) any Loan Party shall fail to perform or observe
any other term, covenant or agreement contained in any Loan Document on
its part to be performed or observed if such failure shall remain
unremedied for 10 days after the earlier of the date on which (A) an
officer of Paxar becomes aware of such failure or (B) written notice
thereof shall have been given to Paxar by the Administrative Agent or
any Lender Party; or
(d) Paxar or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in
a principal or notional amount of at least $500,000 in the aggregate
(but excluding Debt outstanding hereunder) of Paxar or such Subsidiary
(as the case may be), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Debt; or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
Debt; or any such Debt shall be declared to be due and payable, or
required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer
to prepay, redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof; or
(e) Paxar or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against Paxar or any of its Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted
against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 30 days, or any of the
actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or Paxar or any of its
Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess
of $500,000 shall be rendered against Paxar or any of its Subsidiaries
and either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any period
of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
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(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
(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.
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ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender Party
hereby appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion under this
Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental thereto.
As to any matters not expressly provided for by this Agreement (including,
without limitation, enforcement or collection of the Notes), the Administrative
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lender Parties and all
holders of Notes; provided, however, that the Administrative Agent shall not be
required to take any action that exposes the Administrative Agent to personal
liability or that is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Lender Party prompt notice of each
notice given to it by Paxar pursuant to the terms of this Agreement and, upon
request by any Lender Party, a copy of any such notice.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (i) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender Party that is the payee of such Note,
as assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07;
(ii) may consult with legal counsel (including counsel for Paxar), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender Party and shall not be responsible to any Lender
Party for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of Paxar or to
inspect the property (including the books and records) of Paxar; (v) shall not
be responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
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
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with or own securities of Paxar or any such Subsidiary, all as if Fleet were not
the Administrative Agent and without any duty to account therefor to the Lender
Parties.
SECTION 7.04. Lender Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender Party and based on the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender Party also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender Party and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lender Parties (other than
the Designated Bidders) agree to indemnify the Administrative Agent (to the
extent not reimbursed by Paxar), ratably according to the respective principal
amounts of the Notes then held by each of them (or if no Notes are at the time
outstanding or if any Notes are held by Persons that are not Lender Parties,
ratably according to the respective amounts of their Commitments), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by the Administrative Agent under this Agreement
(collectively, the "Indemnified Costs"), provided that no Lender Party shall be
liable for any portion of the Indemnified Costs resulting from the
Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender Party (other than the Designated
Bidders) agrees to reimburse the Administrative Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, to the
extent that the Administrative Agent is not reimbursed for such expenses by the
Borrower, provided that no Lender Party shall be required to reimburse any
portion of such out-of-pocket expenses resulting from the Administrative Agent's
gross negligence or willful misconduct. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05
applies whether any such investigation, litigation or proceeding is brought by
the Administrative Agent, any Lender Party or a third party.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Lender Parties and Paxar and may be removed at any time with or without
cause by the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Administrative Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Lender Parties, appoint a
successor Administrative Agent, which shall be a commercial bank organized under
the laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $50,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of
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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
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Loan Party or any other insider guarantor, directly or indirectly, in cash or
other property or by setoff or in any other manner, payment or security on
account of such claim, remedy or right, until such time as all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash, all of the Letters of Credit shall have expired,
terminated or been canceled and the Commitments shall have expired or
terminated. If any amount shall be paid to Paxar in violation of the immediately
preceding sentence at any time prior to the latest of (a) the payment in full in
cash of all of the Guaranteed Obligations and all other amounts payable under
this Guaranty, (b) the full drawing, termination, expiration or cancellation of
all Letters of Credit and (c) the Termination Date, such amount shall be held in
trust for the benefit of the Administrative Agent and the Lender Parties and
shall forthwith be paid to the Administrative Agent to be credited and applied
to the Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as Collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter arising. If (i) Paxar shall pay
to the Administrative Agent all or any part of the Guaranteed Obligations, (ii)
all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash, (iii) all of the Letters of
Credit shall have expired, terminated or been canceled, and (iv) the Termination
Date shall have occurred, the Administrative Agent and the Lender Parties will,
at Paxar's request and expense, execute and deliver to Paxar appropriate
documents, without recourse and without representation or warranty, necessary to
evidence the transfer of subrogation to Paxar of an interest in the Guaranteed
Obligations resulting from the payment made by Paxar.
SECTION 8.05. Continuing Guarantee; Assignments. This Guaranty
is a continuing guaranty and shall (a) remain in full force and effect until
(subject to reinstatement pursuant to Section 8.02) the latest of (i) the
payment in full in cash of all of the Guaranteed Obligations and all other
amounts payable under this Guaranty, (ii) the full drawing, termination,
expiration or cancellation of all Letters of Credit, and (iii) the Termination
Date, (b) be binding upon Paxar and its respective successors and assigns and
(c) inure to the benefit of, and be enforceable by, the Administrative Agent and
the Lender Parties and their respective successors, transferees and assigns.
Without limiting the generality of clause (c) of the immediately preceding
sentence, any Lender Party may assign or otherwise transfer all or any portion
of its rights and obligations under this Agreement (including, without
limitation, all or any portion of its Commitment or Commitments, the Advances
owing to it and the Notes held by it) to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect thereof granted
to such Lender Party under this Article VIII or otherwise, in each case as
provided in Section 9.07.
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
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in Section 3.01, (b) increase the Commitments of the Lenders or subject the
Lenders to any additional obligations, (c) reduce the principal of, or interest
on, the Notes (other than Competitive Bid Notes) or any fees or other amounts
payable hereunder, (d) postpone any date fixed for any payment of principal of,
or interest on, the Notes (other than Competitive Bid Notes) or any fees or
other amounts payable hereunder, (e) change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Notes (other than Competitive
Bid Notes), or the number of Lenders, that shall be required for the Lenders or
any of them to take any action hereunder, (f) reduce or limit the obligations of
Paxar under Section 8.01 or otherwise limit the Obligations of any Loan Party
owing to any Lender Party or the Administrative Agent under the Loan Documents,
(g) reduce or limit the obligations of Paxar under Article VIII or reduce or
limit the obligations of any Subsidiary Guarantor under the Subsidiary Guaranty
or release Paxar or any Subsidiary Guarantor from its respective obligations
under Article VIII or the Subsidiary Guaranty, as the case may be, or limit
Paxar's or any Subsidiary Guarantor's liability with respect to the Obligations
owing to the Administrative Agent and the other Lender Parties or (h) amend this
Section 9.01; and provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note; provided further that no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Bank or the Issuing Bank, as the case may be, in addition to the Lenders
required above to take such action, affect the rights or obligations of the
Swing Line Bank or of the Issuing Bank, as the case may be, under this
Agreement.
SECTION 9.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed
or delivered, if to Paxar, at its address at 000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx
Xxxxxx, Xxx Xxxx 00000-0000, Attention: Xxxx Xxxxx, Chief Financial Officer; if
to any other Borrower, at its address specified in the applicable Credit
Agreement Supplement; if to any Initial Lender, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender Party,
at its Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender Party; and if to the Administrative Agent,
at its address at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxx; or, as to Paxar or the Administrative Agent, at such
other address as shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to Paxar and the Administrative
Agent. All such notices and communications shall, when mailed, telecopied,
telegraphed or telexed, be effective when deposited in the mails, telecopied,
delivered to the telegraph company or confirmed by telex answerback,
respectively, except that notices and communications to the Administrative Agent
pursuant to Article II, III or VII shall not be effective until received by the
Administrative Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the Notes or of any
Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the part of
any Lender Party or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
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SECTION 9.04. Costs and Expenses. (a) Paxar agrees to pay on
demand all costs and expenses of the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes, the other Loan Documents and the other documents to
be delivered hereunder, including, without limitation, (A) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and audit expenses
and (B) the reasonable fees and expenses of counsel for the Administrative Agent
with respect thereto and with respect to advising the Administrative Agent as to
its rights and responsibilities under this Agreement. The Borrower further
agrees to pay on demand all costs and expenses of the Administrative Agent and
the Lender Parties, if any (including, without limitation, reasonable counsel
fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Administrative Agent and each
Lender Party in connection with the enforcement of rights under this Section
9.04(a).
(b) Paxar agrees to indemnify and hold harmless the
Administrative Agent and each Lender Party and each of their Affiliates and
their officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation
or proceeding or preparation of a defense in connection therewith) (i) the
Notes, this Agreement, the other Loan Documents, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Advances or (ii) the actual or alleged presence of Hazardous Materials on any
property of Paxar or any of its Subsidiaries or any Environmental Action
relating in any way to Paxar or any of its Subsidiaries, except to the extent
such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity
in this Section 9.04(b) applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is brought by Paxar, its
directors, shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. Paxar also agrees not to
assert any claim against the Administrative Agent, any Lender Party, any of
their Affiliates, or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Notes, this Agreement, any of the other Loan Documents, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Advances.
(c) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Advance or LIBO Rate Advance is made by a Borrower to or for
the account of a Lender Party other than on the last day of the Interest Period
for such Advance, or if any payment of principal of any Swing Line Advance
(other than a Swing Line Advance that is a Prime Rate Advance) is made by Paxar
to or for the account of the Swing Line Bank other than on the day on which
Paxar and the Swing Line Bank had agreed such Swing Line Advance would be
payable, as a result of a payment or Conversion pursuant to Section 2.09(d) or
(e), 2.11 or 2.13, acceleration of the maturity of the Notes pursuant to Section
6.01 or for any other reason, such Borrower shall, upon demand by such Lender
(with a copy of such demand to
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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.
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
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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 for the surrendered Note a
new Note to the order of such
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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
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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 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
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67
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.
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.
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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.
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
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69
other Loan Documents in any New York State or federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(c) To the extent that any Borrower has or hereafter may
acquire any immunity from the jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, such Borrower hereby irrevocably waives such immunity in
respect of its obligations under this Agreement and the Notes and the other Loan
Documents.
SECTION 9.14. Waiver of Jury Trial. Each of the Borrowers, the
Administrative Agent and the Lender Parties hereby irrevocably waives all right
to trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the
Notes or the other Loan Documents or the actions of the Administrative Agent or
any Lender Party in the negotiation, administration, performance or enforcement
thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
PAXAR CORPORATION
By
--------------------------------
Title:
76
71
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:
BANK OF BOSTON CONNECTICUT
By
-------------------------------
Title:
THE BANK OF NEW YORK
By
-------------------------------
Title:
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72
CREDITO ITALIANO S.p.A.
By
-------------------------------
Title:
By
-------------------------------
Title:
FIRST UNION NATIONAL BANK
By
-------------------------------
Title:
KEYBANK, NATIONAL ASSOCIATION
By
-------------------------------
Title:
MARINE MIDLAND BANK
By
-------------------------------
Title:
MELLON BANK, N.A.
By
-------------------------------
Title:
NATIONAL CITY BANK
By
-------------------------------
Title:
78
73
NATIONSBANK, N.A.
By
-------------------------------
Title:
STATE STREET BANK AND TRUST
COMPANY
By
-------------------------------
Title:
SUNTRUST BANK, ATLANTA
By
-------------------------------
Title:
By
-------------------------------
Title:
WACHOVIA BANK OF GEORGIA, N.A.
By
-------------------------------
Title:
79
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S. _______________ Dated: August __, 1998
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 Amended and Restated
Credit Agreement dated as of August 11, 1998 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.
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2
[NAME OF BORROWER]
By
-------------------------------
Title:
81
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Principal Paid Unpaid Principal Notation
Date Advance or Prepaid Balance Made By
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
82
EXHIBIT A-2 - 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 Amended and Restated Credit Agreement dated as
of August 11, 1998 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.
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2
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
PAXAR CORPORATION
By
-----------------------------------
Title:
84
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 Amended and
Restated Credit Agreement, dated as of August 11, 1998 (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
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2
(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:
86
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 Amended and
Restated Credit Agreement, dated as of August 11, 1998 (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
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2
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.
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:
88
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement
dated as of August 11, 1998 (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
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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.
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.
90
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]
--------
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Administrative Agent.
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Eurocurrency Lending Office:
[Address]
Accepted [and Approved]* this
__________ day of _______________, 199_
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".
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (viii) of the definition of "Eligible Assignee".
92
EXHIBIT D - FORM OF
DESIGNATION AGREEMENT
Dated _______________, 199_
Reference is made to the Amended and Restated Credit Agreement
dated as of August 11, 1998 (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
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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 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.
94
EXHIBIT E - FORM OF
CREDIT AGREEMENT
SUPPLEMENT
[DATE]
To each of the Banks under the Credit
Agreement referred to below
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement
dated as of August 11, 1998 (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
Bank 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 as if it had been a party thereto as a Borrower. The
Additional Borrower further agrees, as of the date first above written,
that each reference in the Credit Agreement to a "Borrower" shall, as
and where the context requires 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, as and where the context
requires and be a reference to the Additional Borrower.
2. The Additional Borrower hereby represents and warrants to
the Administrative Agent and each of the Banks 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
(provided that the representations and warranties referred to therein
may be qualified, to the reasonable satisfaction of the Administrative
Agent, to take into account requirements of the local laws of the
foreign jurisdiction in which the Additional Borrower is located)
3. Pursuant to the terms of the Credit Agreement, the
Administrative Agent hereby indicates its approval of the Additional
Borrower.
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2
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) THIS CREDIT AGREEMENT SUPPLEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
Any legal action or proceeding with respect to this Credit Agreement
Supplement or any other Loan Document may be brought in the courts of
the State of New York or of the United States for the Southern District
of New York, and, by execution and delivery of this Credit Agreement
Supplement, the Additional Borrower hereby irrevocably accepts for
itself and in respect of its property, generally and unconditionally,
the jurisdiction of the aforesaid courts. The Additional Borrower
hereby further irrevocably waives any claim that any such courts lack
jurisdiction over such Additional Borrower, and agrees not to plead or
claim, in any legal action or proceeding with respect to this Credit
Agreement Supplement or any other Loan Document brought in any of the
aforesaid courts, that any such court lacks jurisdiction over the
Additional Borrower. 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. The Additional Borrower hereby
irrevocably appoints CT Corporation System with an office on the date
hereof at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Process
Agent"), as its agent to receive on behalf of the Additional Borrower
and its property service of copies of the summons and complaint and any
other process which may be served in any such action or proceeding. The
Additional Borrower irrevocably consents to the service of process in
any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Additional
Borrower at its address set forth on the signature pages hereof, such
service to become effective 30 days after such mailing. The Additional
Borrower hereby irrevocably waives any objection to such service of
process and further irrevocably waives and agrees not to plead or claim
in any action or proceeding commenced hereunder or under any other Loan
Document that service of process was in any way invalid or ineffective.
Nothing herein shall affect the right of the Administrative Agent,, any
Lender Party or the holder of any Note to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise
proceed against the Additional Borrower in any other jurisdiction.
(b) The Additional Borrower hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of
any of the aforesaid actions or proceedings arising out of or in
connection with this Credit Agreement Supplement or any other Loan
Document brought in the courts referred to in clause (a) above and
hereby further irrevocably waives and agrees not to plead or claim in
any such court that any such action or proceeding brought in any such
court has been brought in an inconvenient forum.
(c) To the extent that the Additional Borrower has or
hereafter may acquire any immunity from 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 to the extent permitted by law hereby irrevocably waives such
immunity in respect of its obligations under this Credit Agreement
Supplement or any other Loan Document and, without limiting the
generality of the foregoing, agrees that the waivers set forth in this
subsection (c) shall have the fullest scope permitted under the United
States Foreign Sovereign Immunities Act of 1976, as amended, or any
other similarly
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3
applicable foreign law and are intended to be irrevocable for purposes
of such Act or any other similarly applicable foreign law.
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:
Accepted and Agreed:
FLEET BANK, N.A.,
as Administrative Agent
By________________________________
Title:
97
EXHIBIT G - 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 Amended and Restated Credit
Agreement dated as of August 11, 1998 (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,
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2
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.
This acceptance and agreement shall be binding upon Paxar and
all of its successors and assigns.
Very truly yours,
PAXAR CORPORATION
By
--------------------------------
Name:
Title:
99
SCHEDULE 4.01(c)
None.
100
SCHEDULE 4.01(f)
None.
101
SCHEDULE 4.01(i)
None.
102
SCHEDULE 5.02(g)
None.
