SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
FORM 10-Q
(Mark One)
( X ) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1994
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________to_______
Commission file number 1-7834
SEALED AIR CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 22-1682767
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization
Identification Number)
Park 80 East 07663-5291
Saddle Brook, New Jersey (Zip Code)
(Address of Principal
Executive Offices)
Registrant's telephone number, including area code (201) 791-7600
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days.
YES X NO
There were 19,951,633 shares of the registrant's common stock, par
value $0.01 per share, outstanding as of July 29, 1994.
<TABLE>
PART I
FINANCIAL INFORMATION
SEALED AIR CORPORATION AND SUBSIDIARIES
Consolidated Statements of Earnings
For the Three Months and Six Months Ended June 30, 1994 and 1993
(In thousands of dollars except per share data)
(Unaudited)
<CAPTION>
For the For the
Three Months Ended Six Months Ended
June 30 June 30
1994 1993 1994 1993
<S> <C> <C> <C> <C>
Net sales $126,761 $113,652 $244,222 $222,798
Cost of sales 79,007 70,521 152,010 138,560
Gross profit 47,754 43,131 92,212 84,238
Marketing, administrative and
development expenses 26,179 23,789 51,115 46,803
Operating profit 21,575 19,342 41,097 37,435
Other income (expense):
Interest income 423 398 605 504
Interest expense (6,229) (6,858) (12,425) (14,331)
Other, net (1,410) (331) (2,338) (239)
Other income (expense), net (7,216) (6,791) (14,158) (14,066)
Earnings before income taxes 14,359 12,551 26,939 23,369
Income taxes 5,690 5,522 10,722 10,282
Earnings before cumulative
effect of accounting change
and early extinguishment of
subordinated notes 8,669 7,029 16,217 13,087
Cumulative effect of
accounting change - - - 1,459
Early extinguishment of subordinated
debt, net of taxes (5,576) - (5,576) -
Net earnings $ 3,093 $ 7,029 $ 10,641 $ 14,546
Earnings per share:
Before cumulative effect of
accounting change and early
extinguishment of
subordinated debt $ .43 $ .36 $ .81 $ .67
Cumulative effect of accounting
change - - - .08
Early extinguishment of
subordinated debt (.28) - (.28) -
Net earnings per common share .15 $ .36 $ .53 $ .75
Weighted average number of
shares outstanding (000) 19,929 19,478 19,914 19,430
See accompanying notes to consolidated financial statements.
</TABLE>
<TABLE>
SEALED AIR CORPORATION
Consolidated Balance Sheets
June 30, 1994 and December 31, 1993
(In thousands of dollars except share data)
<CAPTION>
June 30, December 31,
1994 1993
(Unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 23,137 $ 19,392
Accounts receivable, less allowance for
doubtful accounts of $3,063 in 1994 and
$2,675 in 1993 78,363 66,966
Other receivables 2,515 2,598
Inventories 34,509 32,035
Prepaid expenses 1,131 1,278
Deferred taxes 5,743 5,892
Total current assets 145,398 128,161
Property and equipment:
Land and buildings 60,653 58,658
Machinery and equipment 131,590 121,782
Leasehold improvements 4,297 4,202
Furniture and fixtures 9,440 10,180
Construction in progress 9,216 7,386
215,196 202,208
Less accumulated depreciation and amortization 89,164 81,458
Property and equipment, net 126,032 120,750
Patents, patent applications and rights, less
accumulated amortization of $11,056 in 1994
$10,357 in 1993 9,965 8,348
Excess of cost over fair value of net assets
acquired, less accumulated amortization of
$4,314 in 1994 and $3,988 in 1993 8,196 8,190
Deferred financing and other costs, less
accumulated amortization of $16,262 in 1993 684 1,611
Other assets 11,621 12,758
$301,896 $279,818
See accompanying notes to consolidated financial statements.
</TABLE>
<TABLE>
SEALED AIR CORPORATION
Consolidated Balance Sheets
June 30, 1994 and December 31, 1993 (Continued)
(In thousands of dollars except share data)
<CAPTION>
June 30, December 31,
1994 1993
(Unaudited)
LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIT)
<S> <C> <C>
Current Liabilities:
Notes payable and current
installments of long-term debt $ 27,894 $ 15,618
Accounts payable 28,874 22,908
Accrued interest 11,264 11,127
Other accrued liabilities 40,833 33,640
Income taxes payable 14,454 11,040
Total current liabilities 123,319 94,333
Long-term debt, less current
installments 165,650 190,058
Deferred income taxes 15,231 14,960
Other non-current liabilities 10,333 9,886
Total liabilities 314,533 309,237
Shareholders' equity (deficit):
Common stock, $.01 par value. Authorized
35,000,000 shares, issued 20,066,739 shares
in 1994 and 19,924,661 shares in 1993 201 199
Additional paid-in capital 112,701 108,361
Retained earnings (deficit) (127,035) (137,676)
Accumulated translation adjustment 5,793 5,063
(8,340) (24,053)
Less deferred compensation and cost ($246
in 1994 and 1993) of 119,306 shares
in 1994 and 1993 of common stock
held as treasury stock 4,297 5,366
Shareholders' equity (deficit) (12,637) (29,419)
$301,896 $279,818
See accompanying notes to consolidated financial statements.
</TABLE>
<TABLE>
SEALED AIR CORPORATION AND SUBSIDIARIES
Consolidated Statements (abbreviated) of Cash Flows
For the Six Months Ended June 30, 1994 and 1993
(In thousands of dollars)
(Unaudited)
<CAPTION>
1994 1993
<S> <C> <C>
Cash Flows From Operating Activities:
Net earnings $ 10,641 $14,546
Adjustments to net earnings to reconcile to
net cash provided by operating activities:
Cumulative adjustment for effect of accounting
change - (1,459)
Early extinguishment of subordinated notes 5,576 -
Depreciation and amortization 12,357 12,041
Deferred credits - income taxes and other 898 (41)
Net losses on disposals of fixed assets 260 64
Other, net (1,965) (427)
Cash provided (used) by changes in:
Receivables (9,832) (2,687)
Inventories (1,799) (302)
Prepaid expenses 171 286
Accounts payable 5,181 (1,077)
Accrued interest 137 37
Other accrued liabilities (1,652) (765)
Income taxes payable 7,130 3,872
Net cash provided by operating activities 27,103 24,088
Cash Flows From Investing Activities:
Capital expenditures for property and equipment (8,738) (12,984)
Proceeds from sales of property and equipment 65 4
Net cash utilized in purchase of subsidiary (400) -
Net cash used in investing activities (9,073) (12,980)
Cash Flows From Financing Activities:
Proceeds from long-term debt 5,015 4,104
Payments of long-term debt (18,885) (23,568)
Net (payments) proceeds on notes payable (635) 766
Net cash used in financing activities (14,505) (18,698)
Effect of exchange rate changes on cash and cash
equivalents 220 227
Cash and Cash Equivalents:
Decrease during the period (3,745) (7,363)
Balance, beginning of period 19,392 26,042
Balance, end of period $ 23,137 $ 18,679
Supplemental Disclosures of Cash Flow Information
Cash paid during the period for:
Interest $ 11,921 $ 13,160
Income taxes $ 3,592 $ 6,410
See accompanying notes to consolidated financial statements.
</TABLE>
SEALED AIR CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements
June 30, 1994 and 1993
(Unaudited)
(1) Principles of Consolidation
The consolidated financial statements include the accounts of Sealed
Air Corporation and its subsidiaries (the "Company"). All significant
intercompany transactions and balances have been eliminated in
consolidation. In management's opinion, all adjustments (consisting
only of normal recurring accruals) necessary for a fair presentation of
the results of operations for the quarter and six months ended June 30, 1994
have been made.
Where appropriate, financial statement amounts for prior periods have
been reclassified to conform with their 1994 presentation.
(2) Income Taxes
Effective January 1, 1993 the Company adopted Financial Accounting
Standards Board Statement No. 109, "Accounting for Income Taxes" ("FAS
109"). The cumulative effect of this change at January 1, 1993 was a
reduction to the net deferred tax liability and a corresponding credit
to earnings of $1,459,000, or $0.08 per share. Adoption of FAS 109 has
not had a material impact on the Company's effective tax rate in
subsequent periods.
An explanation of the difference between the effective income tax rate
and statutory U.S. federal income tax rate expressed as a percentage of
earnings before income taxes for the six months ended June 30, 1994 and
1993 follows:
<TABLE>
1994 1993
<S> <C> <C>
Statutory U.S. federal income tax rate 35.0% 34.0%
Provision for foreign withholding taxes and
additional U.S. taxes on the accumulated
earnings of foreign subsidiaries 2.1 1.3
Tax effect of U.S. expenses not subject to
tax benefit 0.1 1.6
State income taxes, net of U.S. federal
income tax benefit 3.8 3.1
Taxes on foreign earnings at other than the
statutory U.S. federal income tax rate (1.6) 1.3
Other miscellaneous items 0.3 2.7
Effective income tax rate 39.8% 44.0%
</TABLE>
SEALED AIR CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements
June 30, 1994 and 1993
(Unaudited)
(3) Early Redemption of Subordinated Notes
On June 8, 1994, the Company entered into a credit agreement with
Bankers Trust Company, as agent, and a syndicate of banks and called
for redemption all of its outstanding $170,000,000 12-5/8% Senior
Subordinated Notes (the "Notes") at a price of 104.734% of their
aggregate principal amount together with accrued interest to the date
of redemption. Such Notes were redeemed on July 8, 1994 from the
proceeds of a $100 million term-loan borrowing and $78 million of
revolving credit borrowings under such credit agreement. The early
redemption of these Notes resulted in an after-tax charge to earnings
of $5,576,000, or $.28 per share, in the second quarter of 1994,
reflecting the 4.734% call premium due on the redemption of the Notes
and the write-off of the related unamortized deferred financing costs.
At June 30, 1994, a portion of the Notes was reclassified to current
installments of long-term debt to reflect the maturity schedule of the
debt used to redeem the Notes.
(4) Acquisitions
In May 1994, the Company acquired the outstanding capital stock of
Delsopak, S.A. and an exclusive license and option to purchase certain
patents in exchange for shares of the Company's common stock and cash.
This transaction was not material to the Company's consolidated
financial statements.
(5) Other Matters
In 1992 and 1993, the FASB issued Statement No. 112, "Employers'
Accounting for Post- employment Benefits", and Statement No. 115,
"Accounting for Certain Investments in Debt and Equity Securities",
which are effective for fiscal years beginning after December 15, 1993.
Adoption of such financial accounting statements did not have a
material effect on the Company's consolidated financial statements.
MANAGEMENT'S DISCUSSION AND ANALYSIS
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
Results of Operations
The Company's net sales increased 12% in the second quarter and 10% in
the first six months of 1994 compared with the respective 1993 periods
primarily due to the factors discussed below.
Net sales from domestic operations increased 12% in the second quarter
and 10% in the first six months of 1994 while net sales from foreign
operations increased approximately 11% in the second quarter and 9% in
the first six months of 1994.
Net sales of engineered products, primarily Instapak products and
thick polyethylene foams, increased 12% in the second quarter and 9% in
the first six months of 1994 primarily due to increased unit volume of
Instapak products, Korrvu suspension packaging and, to a lesser
extent, thick polyethylene foams. Net sales of surface protection and
other cushioning products, primarily air cellular products, other
polyethylene foam products and protective and durable mailers,
increased 15% in the second quarter and 12% in the first six months of
1994 due primarily to increased unit volume, including the added sales
of Shurtuff durable mailers, partially offset by lower average selling
prices for certain products and changes in product mix. Net sales of
food packaging products decreased 2% in the second quarter but
increased 2% in the first six months of 1994 compared with the
respective 1993 periods. The decrease in the second quarter was due
primarily to lower average selling prices for certain products and
changes in product mix that more than offset increased unit volume
while, for the six-month period, increased unit volume more than offset
such lower average selling prices and changes in product mix. Foreign
currency translation did not have a significant effect on the Company's
operating results in the second quarter or first six months of 1994.
Cost of sales increased 12% in the second quarter and 10% in the first
six months of 1994 primarily reflecting the Company's higher level of
net sales and certain higher raw material costs. Marketing,
administrative and development expenses increased 10% in the second
quarter and 9% in the first six months of 1994, primarily due in each
case to the higher level of net sales. As a percentage of net sales,
cost of sales and marketing, administrative and development expenses
remained substantially unchanged in each period.
Operating profit increased 12% in the second quarter and 10% in the
first six months of 1994 primarily reflecting the Company's higher net
sales.
Interest expense, which is the principal component of other expense,
net, decreased to $6,229,000 in the second quarter and $12,425,000 in
the first six months of 1994 compared to $6,858,000 in the second quarter
and $14,331,000 in the first six months of 1993 primarily due to lower
average outstanding borrowings in the 1994 period. Also included in
other expense, net in the second quarter and first six months of
1994 are net losses attributable to foreign exchange compared with net
gains in the respective 1993 periods.
The Company's effective income tax rate decreased to 39.6% in the
second quarter of 1994 from 44.0% for the second quarter of 1993
primarily reflecting lower tax provisions required, including primarily
lower taxes on foreign earnings at other than the statutory U.S.
federal income tax rate.
Before the effect of the extraordinary charge to earnings and the other
adjustment discussed below, earnings for the quarter increased 23% to
$8,669,000, or $.43 per share, compared with earnings of $7,029,000, or
$.36 per share, for the second quarter of 1993 while earnings for the
first six months of 1994 increased 24% to $16,217,000, or $.81 per
share, compared with earnings of $13,087,000, or $.67 per share, for
the first six months of 1993.
The Company incurred an extraordinary charge to earnings of $5,576,000,
or $.28 per share, after taxes in the second quarter of 1994 in
connection with the early redemption, which is discussed below, of its
12-5/8% Senior Subordinated Notes (the "12-5/8% Notes"), which were
refinanced on July 8, 1994 with the proceeds of borrowings under the
1994 Credit Facility (as defined below). This extraordinary charge to
earnings primarily reflects the 4.734% call premium paid on the
redemption of the 12-5/8% Notes and the write-off of the related
unamortized deferred financing costs.
Due to this extraordinary item, net earnings declined to $3,093,000 for
the second quarter compared to $7,029,000 for the second quarter of
1993 and declined to $10,641,000 for the first six months compared with
$14,546,000 for the first six months of 1993. In the 1993 six-month
period, net earnings were favorably impacted by a cumulative credit
adjustment to earnings of $1,459,000, or $.08 per share, resulting from
the adoption at the beginning of 1993 of Financial Accounting Standard
No. 109 relating to accounting for income taxes.
Liquidity and Capital Resources
On June 8, 1994, the Company and certain of its subsidiaries entered
into a credit agreement with Bankers Trust Company, as agent for a
syndicate of banks (the "1994 Credit Facility"). The 1994 Credit
Facility provides for a five-year $175 million unsecured revolving
credit facility (the "1994 Revolving Credit Facility") and an unsecured
five-year $100 million term loan facility (the "1994 Term Loan
Facility"). On such date, the Company also called for redemption at a
price of 104.734% of their aggregate principal amount all of the
Company's outstanding 12-5/8% Notes, and these Notes were redeemed on
July 8, 1994 from the proceeds of a $100 million borrowing under the
1994 Term Loan Facility and a $78 million borrowing under the 1994
Revolving Credit Facility, which borrowings were made immediately prior
to such redemption date.
Under the terms of the 1994 Credit Facility, $20,000,000 aggregate
principal amount of the 1994 Term Loan Facility is repayable each year
in equal quarterly installments beginning on September 30, 1994. There
is no required annual minimum paydown provision under the 1994
Revolving Credit Facility, but the available commitment under this
facility will be reduced by $25 million on each of June 30, 1997 and
June 30, 1998. Such Facility terminates on June 30, 1999.
The Company currently intends to make principal payments due under the
1994 Credit Facility primarily out of funds provided by operations.
Accordingly, $20,000,000 of the Company's long-term debt at June 30,
1994 was re-classified as current portion of long-term debt to reflect
the maturity schedule of the term-loan portion of the 1994 Credit
Facility. Primarily as a result of this reclassification, long-term
debt, less current installments, declined to $165,650,000 at June 30,
1994 from $190,058,000 at December 31, 1993 while notes payable and
current installments of long-term debt increased to $27,894,000 at June
30, 1994 from $15,618,000 at December 31, 1993. As of July 8, 1994,
the date on which the 12-5/8% Notes were redeemed, the Company's
available lines of credit, including the 1994 Revolving Credit
Facility, amounted to approximately $201,000,000 of which approximately
$119,000,000 were unused. Such lines of credit permit the Company and
certain of its subsidiaries to make borrowings for working capital and
other corporate purposes.
The balance of the net reduction in long-term debt in the first six
months of 1994 was due primarily to the repayment in March 1994 of the
remaining principal balance outstanding under a senior secured credit
agreement entered into in 1989 with Bankers Trust Company, as agent for
a syndicate of banks, which amount was refinanced in part with the
proceeds of a $7,000,000 drawing under an unsecured revolving credit
agreement entered into in March 1994 with United Jersey Bank (the "UJB
Credit Agreement"). During the second quarter of 1994, the Company
repaid its borrowings under the UJB Credit Agreement with funds
provided by operations, and such agreement was terminated in accordance
with its terms in upon the signing of the 1994 Credit Facility.
The Company's obligations under the 1994 Credit Facility and certain
other loans and other lines of credit bear interest at floating rates.
The 1994 Credit Facility provides for changes in interest rate margins
based on certain financial criteria and imposes certain limitations on
the operations of the Company that include restrictions on the
incurrence of additional indebtedness, the creation of liens, the
making of investments and capital expenditures, dispositions of
property or assets, certain transactions with affiliates, and the
payment by the Company of cash dividends to its stockholders as well as
certain financial covenants including requirements as to interest
coverage and debt leverage. The Company was in compliance with these
requirements as of June 30, 1994.
The Company expects that the payment of principal and interest on its
indebtedness will remain a significant use of the Company's funds for
the foreseeable future. The Company also expects to continue to make
the principal and interest payments on its outstanding indebtedness as
well as to meet its working capital and capital expenditure
requirements with funds provided by operations and borrowings under its
available lines of credit.
The ability of the Company to make payments of principal and interest
on its indebtedness, and to comply with the financial covenants
(discussed above) to which it is subject is dependent on the Company's
future performance and business growth, which are subject to financial,
economic, competitive and other factors affecting the Company, many of
which may be beyond the Company's control.
The Company's deficit in shareholders' equity, which resulted from the
payment of a special cash dividend of $40 per share to the Company's
stockholders in 1989 ($20 per share after giving effect to a two-for-
one stock split distributed in September 1992) and financing
transactions related to the payment of that dividend, declined to
$12,637,000 at June 30, 1994 from $29,419,000 at December 31, 1993
primarily as a result of the Company's net earnings for the first six
months of 1994 and common stock issued for non-cash compensation and
for acquisitions.
Cash flows from operating activities increased to $27,103,000 in the
first six months of 1994 compared with $24,088,000 for the 1993 period
primarily due to the increase in earnings before cumulative adjustment
for effect of accounting change and early extinguishment of
subordinated notes, and changes in operating assets and liabilities.
Cash flows used in investing activities were $9,073,000 in the first
six months of 1994 compared with $12,980,000 for the 1993 period. Such
cash was used primarily to fund capital expenditures. Capital
expenditures were $8,738,000 in the first six months of 1994 compared
with $12,984,000 in the 1993 period.
Cash flows used in financing activities were $14,505,000 in the first
six months of 1994 compared with $18,698,000 in the 1993 period. In
each period, such cash was used primarily to repay long-term debt.
At June 30, 1994, the Company had working capital of $22,079,000, or 7%
of total assets, compared with $33,828,000, or 12% of total assets, at
December 31, 1993. The decrease in working capital was due primarily
to increases in current installments of long-term debt and accrued
liabilities arising from the redemption of the 12-5/8% Notes, which
were partially offset by increases in accounts receivable and
inventories. The increase in current installments of long-term debt
primarily reflects the reclassification of a portion of the 12-5/8%
Notes to reflect the maturity schedule of the term loan borrowings
under the 1994 Credit Facility. The increase in accrued liabilities
primarily reflects the call premium on the 12-5/8% Notes. Accounts
receivable, inventories and accounts payable increased during the first
six months of 1994 due primarily to higher net sales and the timing of
payments.
The Company's ratio of current assets to current liabilities (current
ratio) was 1.2 at June 30, 1994 and 1.4 at December 31, 1993. The
Company's ratio of current assets less inventory to current liabilities
(quick ratio) was 0.9 at June 30, 1994 and 1.0 at December 31, 1993.
PART II
OTHER INFORMATION
Item 2. Changes in Securities.
On June 8, 1994, the Company and certain of its subsidiaries
entered into a Credit Agreement with Bankers Trust Company, as agent
for a syndicate of banks (the "1994 Credit Agreement"), providing for a
five-year $175 million unsecured revolving credit facility and a five-
year $100 million unsecured term loan facility. The following summary
of certain provisions in the 1994 Credit Agreement does not purport to
be complete and is subject to, and qualified in its entirety by
reference to, the full text of such 1994 Credit Agreement, a copy of
which is filed as an exhibit to this Quarterly Report on Form 10-Q.
Under the 1994 Credit Agreement, the Company has agreed to
maintain (i) a ratio of EBDITA (as defined in the 1994 Credit
Agreement) to Consolidated Interest Expense (as defined in the 1994
Credit Agreement) of not less than 3.5:1 and (ii) a ratio of
Consolidated Debt to EBDITA (as so defined) of 3.0:1. The 1994 Credit
Agreement also restricts the Company and its subsidiaries from making
capital expenditures (including expenditures in respect of capitalized
lease obligations) in excess of $35 million in any year, provided that
to the extent such capital expenditures in any year are less than such
amount, the difference may be carried forward to the immediately
succeeding year.
Under the 1994 Credit Agreement, the Company has also agreed,
among other things, that it will not, and will not permit any
subsidiary to, without the prior consent of the banks holding 51% of
the commitments, (i) incur, assume or guarantee indebtedness (other
than indebtedness that is specifically permitted), (ii) engage in
certain sale-leaseback transactions, (iii) incur any liens (except
liens that are specifically permitted), (iv) pay any dividend, make any
distribution or repurchase capital stock (other than dividends,
distributions or repurchases that are specifically permitted), (v)
engage in transactions with affiliates other than on arm's length
terms, (vi) make any loan, advance, guarantee or investment (other than
those specifically permitted), or (vii) effect any merger,
consolidation, acquisition or sale of assets (except as specifically
permitted).
On July 8, 1994, the Company redeemed the entire $170 million
outstanding amount of its 12-5/8% Senior Subordinated Notes due July 1,
1999 at a price of 104.734% of their aggregate principal amount from
the proceeds of term-loan and revolving credit borrowings under the
1994 Credit Agreement.
In March 1994, the Company repaid the remaining principal
balance outstanding under a senior secured credit agreement entered
into in 1989 with Bankers Trust Company, as agent for a syndicate of
banks, which amount was refinanced in part with the proceeds of a $7
million drawing under an unsecured revolving credit agreement entered
into in March 1994 with United Jersey Bank (the "UJB Credit
Agreement"). During the second quarter of 1994, the Company repaid its
borrowings under the UJB Credit Agreement with funds provided by
operations, and such agreement was terminated in accordance with its
terms upon the signing of the 1994 Credit Agreement.
Item 4. Submission of Matters to a Vote of Security Holders.
On May 20, 1994, the Company held its annual meeting of
stockholders, at which the stockholders elected the eight nominees
listed in the Company's proxy statement dated March 30, 1994 to serve
on the Board of Directors for the ensuing year and ratified the
appointment of KPMG Peat Marwick as the Company's independent public
accountants for 1994. A total of 18,244,029 shares of common stock
were voted in person or by proxy at the annual meeting, representing
approximately 92% of the shares entitled to vote at such meeting.
There were no broker non-votes. The votes cast on the matters before
the meeting were as follows:
Nominees for Election Number of Votes
to Board of Directors: In Favor Withheld
John K. Castle 18,109,133 134,096
Lawrence R. Codey 18,012,456 131,573
T. J. Dermot Dunphy 18,115,196 142,468
Charles F. Farrell, Jr. 18,115,196 128,833
David Freeman 18,112,532 131,493
Shirley A. Jackson 18,111,593 132,436
Alan H. Miller 18,115,672 128,357
Robert L. San Soucie 18,114,907 129,122
Number of Votes
Ratification of KPMG For 18,066,052
Peat Marwick as Against 87,476
independent auditors Abstentions 90,501
Item 6. Exhibits and Reports on Form 10-K.
(a) Exhibits
Exhibit Number Description
4 Credit Agreement dated as of June 8, 1994 among the
Company, certain of its subsidiaries, various banks and
Bankers Trust Company, as agent.
(b) Reports on Form 8-K
The Company did not file any reports on Form 8-K during the
quarter ended June 30, 1994.
Signatures
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
SEALED AIR CORPORATION
Date: August 10, 1994 By s/William V. Hickey
William V. Hickey
Senior Vice President-Finance
(Authorized Executive Officer
and Principal Financial Officer)
EXHIBIT 4
CREDIT AGREEMENT
among
SEALED AIR CORPORATION,
CERTAIN OF ITS SUBSIDIARIES,
VARIOUS BANKS
and
BANKERS TRUST COMPANY,
as Agent
__________________________________
Dated as of June 8, 1994
__________________________________
<PAGE>
TABLE OF CONTENTS
Page
Section 1. Amount and Terms of Credit. . . . . . . . . . . . 1
1.01 The Commitments . . . . . . . . . . . . . . . . . . 1
1.02 Minimum Amount of Each Borrowing. . . . . . . . . . 5
1.03 Notice of Borrowing . . . . . . . . . . . . . . . . 5
1.04 Disbursement of Funds . . . . . . . . . . . . . . . 6
1.05 Notes . . . . . . . . . . . . . . . . . . . . . . . 7
1.06 Conversions . . . . . . . . . . . . . . . . . . . . 8
1.07 Pro Rata Borrowings . . . . . . . . . . . . . . . . 9
1.08 Interest. . . . . . . . . . . . . . . . . . . . . . 9
1.09 Interest Periods. . . . . . . . . . . . . . . . . . 11
1.10 Increased Costs, Illegality, etc. . . . . . . . . . 12
1.11 Compensation. . . . . . . . . . . . . . . . . . . . 15
1.12 Change of Lending Office. . . . . . . . . . . . . . 16
1.13 Replacement of Banks. . . . . . . . . . . . . . . . 16
Section 2. Letters of Credit . . . . . . . . . . . . . . . . 18
2.01 Letters of Credit . . . . . . . . . . . . . . . . . 18
2.02 Minimum Stated Amount . . . . . . . . . . . . . . . 19
2.03 Letter of Credit Requests . . . . . . . . . . . . . 19
2.04 Letter of Credit Participations . . . . . . . . . . 20
2.05 Agreement to Repay Letter of Credit
Drawings . . . . . . . . . . . . . . . . . . . . 22
2.06 Increased Costs . . . . . . . . . . . . . . . . . . 23
Section 3. Commitment Commission; Fees; Reductions
of Commitments. . . . . . . . . . . . . . . . . . 24
3.01 Fees. . . . . . . . . . . . . . . . . . . . . . . . 24
3.02 Voluntary Reduction of Commitments. . . . . . . . . 26
3.03 Mandatory Reduction of Commitments. . . . . . . . . 27
Section 4. Prepayments; Payments . . . . . . . . . . . . . . 28
4.01 Voluntary Prepayments . . . . . . . . . . . . . . . 28
4.02 Mandatory Prepayments . . . . . . . . . . . . . . . 29
4.03 Method and Place of Payment . . . . . . . . . . . . 31
4.04 Net Payments. . . . . . . . . . . . . . . . . . . . 32
Section 5. Conditions Precedent. . . . . . . . . . . . . . . 35
5.01 Conditions to Credit Events on the
Effective Date . . . . . . . . . . . . . . . . . 35
5.02 Conditions to All Credit Events . . . . . . . . . . 39
5.03 Subsidiary Borrowers, etc.. . . . . . . . . . . . . 41
Section 6. Representations, Warranties and
Agreements. . . . . . . . . . . . . . . . . . . 42
6.01 Corporate Status. . . . . . . . . . . . . . . . . . 42
6.02 Corporate Power and Authority . . . . . . . . . . . 42
6.03 No Violation. . . . . . . . . . . . . . . . . . . . 43
6.04 Governmental Approvals. . . . . . . . . . . . . . . 43
6.05 Financial Statements; Financial Condition;
Undisclosed Liabilities, etc.. . . . . . . . . . .43
6.06 Litigation. . . . . . . . . . . . . . . . . . . . . 45
6.07 True and Complete Disclosure. . . . . . . . . . . . 45
6.08 Use of Proceeds; Margin Regulations . . . . . . . . 45
6.09 Tax Returns and Payments. . . . . . . . . . . . . . 46
6.10 Compliance with ERISA . . . . . . . . . . . . . . . 46
6.11 Subsidiaries. . . . . . . . . . . . . . . . . . . . 47
6.12 Compliance with Statutes, etc.. . . . . . . . . . . 47
6.13 Environmental Matters.. . . . . . . . . . . . . . . 48
6.14 Investment Company Act. . . . . . . . . . . . . . . 48
6.15 Public Utility Holding Company Act. . . . . . . . . 48
6.16 Patents, Licenses, Franchises and Formulas. . . . . 49
6.17 Properties. . . . . . . . . . . . . . . . . . . . . 49
6.18 Labor Relations . . . . . . . . . . . . . . . . . . 49
6.19 Indebtedness. . . . . . . . . . . . . . . . . . . . 50
6.20 Subordinated Securities . . . . . . . . . . . . . . 50
Section 7. Affirmative Covenants . . . . . . . . . . . . . . 50
7.01 Information Covenants . . . . . . . . . . . . . . . 50
7.02 Books, Records and Inspections. . . . . . . . . . . 54
7.03 Maintenance of Property, Insurance. . . . . . . . . 55
7.04 Corporate Franchises. . . . . . . . . . . . . . . . 55
7.05 Compliance with Statutes, etc.. . . . . . . . . . . 55
7.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . 56
7.07 Performance of Obligations. . . . . . . . . . . . . 57
7.08 Payment of Taxes. . . . . . . . . . . . . . . . . . 57
7.09 Existing Senior Subordinated Note
Redemption . . . . . . . . . . . . . . . . . . . 57
Section 8. Negative Covenants. . . . . . . . . . . . . . . . 58
8.01 Liens . . . . . . . . . . . . . . . . . . . . . . . 58
8.02 Consolidation, Merger, Sale of Assets,
etc. . . . . . . . . . . . . . . . . . . . . . . 61
8.03 Restricted Payments . . . . . . . . . . . . . . . . 62
8.04 Indebtedness. . . . . . . . . . . . . . . . . . . . 63
8.05 Advances, Investments and Loans . . . . . . . . . . 65
8.06 Transactions with Affiliates. . . . . . . . . . . . 66
8.07 Capital Expenditures. . . . . . . . . . . . . . . . 67
8.08 Interest Coverage Ratio . . . . . . . . . . . . . . 67
8.09 Leverage Ratio. . . . . . . . . . . . . . . . . . . 67
8.10 Limitation on Modifications of
Indebtedness; Modifications of
Certificate of Incorporation; By-Laws and
Certain Other Agreements; etc. . . . . . . . . . 67
8.11 Limitation on Restrictions on Subsidiary
Dividends and Other Distributions. . . . . . . . 68
8.12 Limitation on Issuances of Capital Stock by
Subsidiaries . . . . . . . . . . . . . . . . . . 68
8.13 Business. . . . . . . . . . . . . . . . . . . . . . 69
Section 9. Events of Default . . . . . . . . . . . . . . . . 69
9.01 Payments. . . . . . . . . . . . . . . . . . . . . . 69
9.02 Representations, etc. . . . . . . . . . . . . . . . 69
9.03 Covenants . . . . . . . . . . . . . . . . . . . . . 69
9.04 Default Under Other Agreements. . . . . . . . . . . 70
9.05 Bankruptcy, etc.. . . . . . . . . . . . . . . . . . 70
9.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . 71
9.07 Judgments . . . . . . . . . . . . . . . . . . . . . 71
9.08 Company Guaranty. . . . . . . . . . . . . . . . . . 72
9.09 Change in Control . . . . . . . . . . . . . . . . . 72
Section 10. Definitions and Accounting Terms . . . . . . . . 73
10.01 Defined Terms. . . . . . . . . . . . . . . . . . . 73
10.02 Principles of Construction . . . . . . . . . . . 101
Section 11. The Agent. . . . . . . . . . . . . . . . . . . 101
11.01 Appointment. . . . . . . . . . . . . . . . . . . 101
11.02 Nature of Duties . . . . . . . . . . . . . . . . 102
11.03 Lack of Reliance on the Agent. . . . . . . . . . 102
11.04 Certain Rights of the Agent. . . . . . . . . . . 103
11.05 Reliance . . . . . . . . . . . . . . . . . . . . 103
11.06 Indemnification. . . . . . . . . . . . . . . . . 103
11.07 The Agent in its Individual Capacity . . . . . . 104
11.08 Holders. . . . . . . . . . . . . . . . . . . . . 104
11.09 Resignation by the Agent . . . . . . . . . . . . 104
Section 12. Company Guaranty . . . . . . . . . . . . . . . 105
12.01 The Guaranty . . . . . . . . . . . . . . . . . . 105
12.02 Bankruptcy . . . . . . . . . . . . . . . . . . . 105
12.03 Nature of Liability. . . . . . . . . . . . . . . 105
12.04 Independent Obligation . . . . . . . . . . . . . 106
12.05 Authorization. . . . . . . . . . . . . . . . . . 106
12.06 Reliance . . . . . . . . . . . . . . . . . . . . 107
12.07 Subordination. . . . . . . . . . . . . . . . . . 108
12.08 Waiver . . . . . . . . . . . . . . . . . . . . . 108
12.09 Nature of Liability. . . . . . . . . . . . . . . 110
12.10 Judgments Binding. . . . . . . . . . . . . . . . 110
Section 13. Miscellaneous. . . . . . . . . . . . . . . . . 111
13.01 Payment of Expenses, etc.. . . . . . . . . . . . 111
13.02 Right of Setoff. . . . . . . . . . . . . . . . . 112
13.03 Notices. . . . . . . . . . . . . . . . . . . . . 113
13.04 Benefit of Agreement . . . . . . . . . . . . . . 113
13.05 No Waiver; Remedies Cumulative . . . . . . . . . 115
13.06 Payments Pro Rata. . . . . . . . . . . . . . . . 116
13.07 Calculations; Computations . . . . . . . . . . . 116
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION;
VENUE; WAIVER OF JURY TRIAL. . . . . . . . . 117
13.09 Counterparts . . . . . . . . . . . . . . . . . . 119
13.10 Effectiveness. . . . . . . . . . . . . . . . . . 119
13.11 Headings Descriptive . . . . . . . . . . . . . . 119
13.12 Amendment or Waiver; etc.. . . . . . . . . . . . 119
13.13 Survival . . . . . . . . . . . . . . . . . . . . 121
13.14 Domicile of Loans. . . . . . . . . . . . . . . . 121
13.15 Confidentiality. . . . . . . . . . . . . . . . . 121
13.16 Register . . . . . . . . . . . . . . . . . . . . 122
SCHEDULE I Commitments
SCHEDULE II Subsidiaries
SCHEDULE III Existing Indebtedness
SCHEDULE IV Existing Liens
SCHEDULE V Bank Addresses
EXHIBIT A Notice of Borrowing
EXHIBIT B-1 Term Note
EXHIBIT B-2 Revolving Note
EXHIBIT B-3 Swingline Note
EXHIBIT C Letter of Credit Request
EXHIBIT D Section 4.04(b)(ii) Certificate
EXHIBIT E Opinion of General Counsel to the Company
EXHIBIT F Officers' Certificate for each of the
Borrowers
EXHIBIT G Solvency Certificate
EXHIBIT H Assignment and Assumption Agreement
EXHIBIT I Election to Become a Subsidiary Borrower
<PAGE>
CREDIT AGREEMENT, dated as of June 8, 1994, among
SEALED AIR CORPORATION, a Delaware corporation (the "Com-
pany"), each Subsidiary Borrower (together with the Company,
the "Borrowers," and each, a "Borrower"), the Banks party
hereto from time to time, and BANKERS TRUST COMPANY, as
Agent. All capitalized terms used herein shall have the
meanings provided in Section 10.
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and condi-
tions set forth herein, the Banks are willing to make avail-
able to the Borrowers the credit facilities provided for
herein;
NOW, THEREFORE, IT IS AGREED:
Section 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon
the terms and conditions set forth herein, each Bank with a
Term Loan Commitment severally agrees to make, on the Term
Loan Borrowing Date, a term loan (each, a "Term Loan" and,
collectively, the "Term Loans") to the Company, which Term
Loans (i) shall be made and initially maintained as a single
Borrowing of Base Rate Loans (subject to the option to con-
vert such Term Loans to CD Rate Loans and/or Eurodollar Rate
Loans pursuant to Section 1.06) and (ii) shall not exceed for
any Bank, in initial aggregate principal amount, that amount
which equals the Term Loan Commitment of such Bank on the
Term Loan Borrowing Date (before giving effect to any reduc-
tions thereto on such date pursuant to Section 3.03(b)(i) but
after giving effect to any reductions thereto on or prior to
such date pursuant to Section 3.03(b)(ii)). Once repaid,
Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions
set forth herein, each Bank with a Revolving Loan Commitment
severally agrees to make, at any time and from time to time
on or after the Effective Date and prior to the Final
Maturity Date, a revolving loan or revolving loans (each, a
"Revolving Loan" and, collectively, the "Revolving Loans") to
one or more Borrowers, which Revolving Loans (i) shall, at
the option of the respective Borrower, be either Base Rate
Loans, CD Rate Loans or Eurodollar Rate Loans, provided that
(x) all Revolving Loans made as part of the same Borrowing
shall, unless otherwise specifically provided herein, be of
the same Type and (y) no Revolving Loans maintained as Fixed
Rate Loans may be incurred prior to the earlier of (1) the
30th day after the Effective Date and (2) the Revolving Loan
Syndication Date, (ii) may be repaid and reborrowed in accor-
dance with the provisions hereof, (iii) shall not exceed for
any Bank at any time outstanding that aggregate principal
amount which, when added to the product of (x) such Bank's
Revolving Loan Percentage and (y) the sum of (A) the
aggregate principal amount of all Swingline Loans (exclusive
of Swingline Loans which are repaid with the proceeds of, and
simultaneously with the respective incurrence of, the
Revolving Loans then being incurred) then outstanding, (B)
the aggregate amount of all Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the
proceeds of, and simultaneously with the incurrence of, the
Revolving Loans then being incurred) at such time and (C) the
aggregate principal amount of all Third-Party Subsidiary
Borrowings then outstanding (or the Dollar Equivalent thereof
in the case of Third-Party Subsidiary Borrowings incurred in
a currency other than Dollars), equals the Revolving Loan
Commitment of such Bank at such time, (iv) shall not exceed
for all Banks at any time outstanding that aggregate
principal amount which, when added to the sum of (x) the
aggregate principal amount of all Swingline Loans (exclusive
of Swingline Loans which are repaid with the proceeds of, and
simultaneously with the respective incurrence of, the
Revolving Loans then being incurred) then outstanding, (y)
the aggregate amount of all Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the pro-
ceeds of, and simultaneously with the incurrence of, the
Revolving Loans then being incurred) at such time and (z) the
aggregate principal amount of all Third-Party Subsidiary Bor-
rowings then outstanding (or the Dollar Equivalent thereof in
the case of Third-Party Subsidiary Borrowings incurred in a
currency other than Dollars), equals the Total Revolving Loan
Commitment at such time minus, if the determination pursuant
to this clause (iv) is made any time prior to the Term Loan
Borrowing Date, the Revolving Loan Commitment Redemption
Reserve at such time and (v) shall not exceed for any Sub-
sidiary Borrower at any time outstanding that aggregate prin-
cipal amount which equals such Subsidiary Borrower's Sub-
Limit at such time.
(c) Subject to and upon the terms and conditions
set forth herein, BTCo in its individual capacity agrees to
make, at any time and from time to time on or after the
Effective Date and prior to the Swingline Expiry Date, a
revolving loan or revolving loans (each, a "Swingline Loan"
and, collectively, the "Swingline Loans"), to the Company,
which Swingline Loans (i) shall be made and maintained as
Base Rate Loans, (ii) may be repaid and reborrowed in accor-
dance with the provisions hereof, (iii) shall not exceed in
aggregate principal amount at any time outstanding that
aggregate principal amount which, when added to the sum of
(A) the aggregate principal amount of all Revolving Loans
then outstanding, (B) the aggregate amount of all Letter of
Credit Outstandings at such time and (C) the aggregate
principal amount of all Third-Party Subsidiary Borrowings
then outstanding (or the Dollar Equivalent thereof in the
case of Third-Party Subsidiary Borrowings incurred in a
currency other than Dollars), an amount equal to the Total
Revolving Loan Commitment at such time minus, if the
determination pursuant to this clause (iii) is made at any
time prior to the Term Loan Borrowing Date, the Revolving
Loan Commitment Redemption Reserve at such time and (iv)
shall not exceed the Maximum Swingline Amount. BTCo will not
make a Swingline Loan after it has received written notice
from the Required Banks stating that a Default or an Event of
Default exists and specifically requesting that BTCo not make
any Swingline Loans, provided that BTCo may continue making
Swingline Loans at such time thereafter as the respective
Default or Event of Default has been cured or waived in
accordance with the requirements of this Agreement or the
Required Banks have withdrawn the written notice described
above in this sentence. In addition, BTCo shall not be
obligated to make any Swingline Loan at a time when a Bank
Default exists unless BTCo shall have entered into
arrangements satisfactory to it and the Company to eliminate
BTCo's risk with respect to the Bank which is the subject of
such Bank Default, including by cash collateralizing such
Bank's Revolving Loan Percentage of the outstanding Swingline
Loans.
(d) On any Business Day, BTCo may, in its sole dis-
cretion, give notice to the Banks that its outstanding
Swingline Loans shall be funded with a Borrowing of Revolving
Loans (provided that such notice shall be deemed to have been
automatically given upon the occurrence of a Default or an
Event of Default under Section 9.05 or upon the exercise of
any of the remedies provided in the last paragraph of Section
9), in which case a Borrowing of Revolving Loans constituting
Base Rate Loans (each such Borrowing, a "Mandatory Borrow-
ing") shall be made on the immediately succeeding Business
Day by all Banks with a Revolving Loan Commitment (without
giving effect to any reductions thereto pursuant to the last
paragraph of Section 9) pro rata based on each such Bank's
Revolving Loan Percentage (determined before giving effect to
any termination of the Revolving Loan Commitments pursuant to
the last paragraph of Section 9), and the proceeds thereof
shall be applied directly to BTCo to repay BTCo for such out-
standing Swingline Loans. Each such Bank hereby irrevocably
agrees to make Revolving Loans upon one Business Day's notice
pursuant to each Mandatory Borrowing in the amount and in the
manner specified in the preceding sentence and on the date
specified in writing by BTCo notwithstanding (i) the amount
of the Mandatory Borrowing may not comply with the minimum
amount for Borrowings otherwise required hereunder, (ii) any
condition specified in Section 5 may not then be satisfied,
(iii) the existence of any Default or Event of Default, (iv)
the date of such Mandatory Borrowing and (v) the amount of
the Total Revolving Loan Commitment at such time. In the
event that any Mandatory Borrowing cannot for any reason be
made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding
under the Bankruptcy Code with respect to the Company), then
each such Bank hereby agrees that it shall forthwith purchase
(as of the date the Mandatory Borrowing would otherwise have
occurred, but adjusted for any payments received from the
Company on or after such date and prior to such purchase)
from BTCo (without recourse or warranty) such participations
in the outstanding Swingline Loans as shall be necessary to
cause such Banks to share in such Swingline Loans ratably
based upon their respective Revolving Loan Percentages
(determined before giving effect to any termination of the
Revolving Loan Commitments pursuant to the last paragraph of
Section 9), provided that (x) all interest payable on the
Swingline Loans shall be for the account of BTCo until the
date the respective participation is required to be purchased
and, to the extent attributable to the purchased participa-
tion, shall be payable to the participant from and after such
date and (y) at the time any purchase of participations pur-
suant to this sentence is actually made, the purchasing Bank
shall be required to pay BTCo interest on the principal
amount of participation purchased for each day from and in-
cluding the day upon which the Mandatory Borrowing would
otherwise have occurred to but excluding the date of payment
for such participation, at the overnight Federal Funds Rate
for the first three days and at the rate otherwise applicable
to Revolving Loans maintained as Base Rate Loans for each day
thereafter.
(e) More than one Borrowing may occur on the same
date, but at no time shall there be outstanding more than ten
Borrowings of Fixed Rate Loans.
1.02 Minimum Amount of Each Borrowing. (a) The
aggregate principal amount of each Borrowing of Term Loans
shall not be less than $5,000,000 and, if greater, shall be
in an integral multiple of $500,000.
(b) The aggregate principal amount of each Borrow-
ing of Revolving Loans shall not be less than $2,000,000,
and, if greater, shall be in an integral multiple of
$500,000, provided that Mandatory Borrowings shall be made in
the amounts required by Section 1.01(d).
(c) The aggregate principal amount of each Borrow-
ing of Swingline Loans shall not be less than $500,000 and,
if greater, shall be in an integral multiple of $50,000.
1.03 Notice of Borrowing. (a) Whenever any Bor-
rower desires to make a Borrowing hereunder (excluding Bor-
rowings of Swingline Loans and Mandatory Borrowings), it
shall give the Agent at its Notice Office at least (x) three
Business Days' prior written notice of each Eurodollar Rate
Loan to be made hereunder, (y) two Business Days' prior writ-
ten notice of each CD Rate Loan to be made hereunder and (z)
one Business Day's prior written notice of each Base Rate
Loan to be made hereunder, provided that any such notice
shall be deemed to have been given on a certain day only if
given before 11:00 A.M. (New York time) (12:00 Noon (New York
time) in the case of a Borrowing of Base Rate Loans) on such
day. Each such written notice (each a "Notice of Borrow-
ing"), except as otherwise expressly provided in Section
1.10, shall be irrevocable and shall be given by the respec-
tive Borrower in the form of Exhibit A, appropriately com-
pleted to specify (i) whether the Loans being made pursuant
to such Borrowing are Term Loans or Revolving Loans, (ii) the
date of such Borrowing (which shall be a Business Day), (iii)
the aggregate principal amount of the Loans to be made pursu-
ant to such Borrowing, (iv) whether the Loans to be made pur-
suant to such Borrowing are to be initially maintained as
Base Rate Loans, CD Rate Loans or Eurodollar Rate Loans and
(v) in the case of Fixed Rate Loans, the initial Interest
Period to be applicable thereto. The Agent shall promptly
give each Bank which is required to make Loans of the respec-
tive Tranche specified in the Notice of Borrowing, notice of
such proposed Borrowing, of such Bank's proportionate share
thereof and of the other matters required by the immediately
preceding sentence to be specified in the Notice of Borrow-
ing.
(b) (i) Whenever the Company desires to make a
Borrowing of Swingline Loans hereunder, it shall give BTCo no
later than 12:00 Noon (New York time) on the day such
Swingline Loan is to be made, written notice or telephonic
notice promptly confirmed in writing of each Swingline Loan
to be made hereunder. Each such notice shall be irrevocable
and specify in each case (i) the date of Borrowing (which
shall be a Business Day) and (ii) the aggregate principal
amount of the Swingline Loans to be made pursuant to such
Borrowing.
(ii) Without in any way limiting the obligation of
the Company to confirm in writing any telephonic notice of
such Borrowing of Swingline Loans, BTCo may act without lia-
bility upon the basis of telephonic notice of such Borrowing,
believed by BTCo in good faith to be from the President, the
Chief Financial Officer, the Treasurer or an Assistant
Treasurer of the Company (or from any other officer of the
Company designated in writing from time to time by the
President or the Chief Financial Officer of the Company as a
person entitled to give telephonic notices pursuant to this
Section 1.03(b)), prior to receipt of written confirmation.
In each such case, the Company hereby waives the right to
dispute BTCo's record of the terms of such telephonic notice
of such Borrowing of Swingline Loans.
(iii) Mandatory Borrowings shall be made upon the
notice specified in Section 1.01(d), with the Company irrev-
ocably agreeing, by its incurrence of any Swingline Loan, to
the making of Mandatory Borrowings as set forth in Section
1.01(d).
1.04 Disbursement of Funds. No later than 12:00
Noon (New York time) on the date specified in each Notice of
Borrowing (or (x) in the case of Swingline Loans, no later
than 2:00 P.M. (New York time) on the date specified in
Section 1.03(b)(i) or (y) in the case of Mandatory
Borrowings, no later than 12:00 Noon (New York time) on the
date specified in Section 1.01(d)), each Bank with a
Commitment of the respective Tranche will make available
through such Bank's applicable lending office its pro rata
portion of each Borrowing requested to be made on such date
to the Agent (or, in the case of Swingline Loans, BTCo shall
make available the full amount thereof), in Dollars and in
immediately available funds at the Agent's Payment Office.
The Agent will make available to the respective Borrower at
the Agent's Payment Office the aggregate of the amounts so
made available by the Banks prior to 1:00 P.M. (New York
time) on such day, to the extent of funds actually received
by the Agent prior to 12:00 Noon (New York time). Unless the
Agent shall have been notified by any Bank prior to the date
of any Borrowing that such Bank does not intend to make
available to the Agent such Bank's portion of any Borrowing
to be made on such date, the Agent may assume that such Bank
has made such amount available to the Agent on such date of
Borrowing and the Agent may, in reliance upon such assump-
tion, make available to the respective Borrower a corre-
sponding amount. If such corresponding amount is not in fact
made available to the Agent by such Bank, the Agent shall be
entitled to recover such corresponding amount on demand from
such Bank. If such Bank does not pay such corresponding
amount forthwith upon the Agent's demand therefor, the Agent
shall promptly notify the respective Borrower and such
Borrower shall immediately pay such corresponding amount to
the Agent. The Agent shall also be entitled to recover on
demand from such Bank or such Borrower, as the case may be,
interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by
the Agent to such Borrower until the date such corresponding
amount is recovered by the Agent, at a rate per annum equal
to (i) if recovered from such Bank, the overnight Federal
Funds Rate and (ii) if recovered from such Borrower, the rate
of interest applicable to the respective Borrowing as deter-
mined in accordance with Section 1.08. Nothing in this Sec-
tion 1.04 shall be deemed to relieve any Bank from its obli-
gation to fulfill its Commitments hereunder or to prejudice
any rights which any Borrower may have against any Bank as a
result of any default by such Bank hereunder.
1.05 Notes. (a) Each Borrower's obligation to
pay the principal of, and interest on, all Loans made by each
Bank to such Borrower shall be evidenced (i) if Term Loans,
by a promissory note duly executed and delivered to such Bank
by the Company in the form of Exhibit B-1 with blanks appro-
priately completed in conformity herewith (each, a "Term
Note" and, collectively, the "Term Notes"), (ii) if Revolving
Loans, by a promissory note duly executed and delivered to
such Bank by such Borrower in the form of Exhibit B-2 with
blanks appropriately completed in conformity herewith (each,
a "Revolving Note" and, collectively, the "Revolving Notes")
and (iii) if Swingline Loans, by a promissory note duly
executed and delivered by the Company to BTCo substantially
in the form of Exhibit B-3 with blanks appropriately com-
pleted in conformity herewith (the "Swingline Note").
(b) The Term Note issued to each Bank shall (i) be
executed by the Company, (ii) be payable to such Bank or its
registered assigns and be dated the Effective Date, (iii) be
in a stated principal amount equal to the Term Loan
Commitment of such Bank on the Effective Date and be payable
in the outstanding principal amount of Term Loans evidenced
thereby, (iv) mature on the Final Maturity Date, (v) bear
interest as provided in the appropriate clause of Section
1.08 in respect of the Base Rate Loans, CD Rate Loans and
Eurodollar Rate Loans, as the case may be, evidenced thereby
and (vi) be entitled to the benefits of this Agreement and
the other Credit Documents.
(c) The Revolving Note issued to each Bank shall
(i) be executed by the respective Borrower, (ii) be payable
to such Bank or its registered assigns and be dated the
Effective Date, (iii) be in a stated principal amount equal
to the Revolving Loan Commitment of such Bank and be payable
in the principal amount of the outstanding Revolving Loans
evidenced thereby, (iv) mature on the Final Maturity Date,
(v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans, CD Rate Loans
and Eurodollar Rate Loans, as the case may be, evidenced
thereby and (vi) be entitled to the benefits of this Agree-
ment and the other Credit Documents.
(d) The Swingline Note issued to BTCo shall (i) be
executed by the Company, (ii) be payable to BTCo or its
registered assigns and be dated the Effective Date, (iii) be
in a stated principal amount equal to the Maximum Swingline
Amount and be payable in the principal amount of the
outstanding Swingline Loans evidenced thereby, (iv) mature on
the Swingline Expiry Date, (v) bear interest as provided in
the appropriate clause of Section 1.08 in respect of the Base
Rate Loans evidenced thereby, and (vi) be entitled to the
benefits of this Agreement and the other Credit Documents.
(e) Each Bank will note on its internal records
the amount of each Loan made by it and each payment and con-
version in respect thereof and will prior to any transfer of
any of its Notes endorse on the reverse side thereof the out-
standing principal amount of Loans evidenced thereby. Fail-
ure to make any such notation shall not affect any Borrower's
obligations in respect of such Loans.
1.06 Conversions. Each Borrower shall have the
option to convert on any Business Day occurring on or after
the earlier of (A) in the case of Term Loans, (i) the 30th
day after the Term Loan Borrowing Date and (ii) the Term Loan
Syndication Date or (B) in the case of Revolving Loans, (i)
the 30th day after the Effective Date and (ii) the Revolving
Loan Syndication Date, all or a portion equal to at least (x)
in the case of a conversion of Term Loans, $5,000,000 (and,
if greater, in an integral multiple of $500,000) and (y) in
the case of a conversion of Revolving Loans, $2,000,000 (and,
if greater, in an integral multiple of $500,000), of the out-
standing principal amount of Loans made to such Borrower
pursuant to one or more Borrowings (so long as of the same
Tranche) of one or more Types of Loans into a Borrowing (of
the same Tranche) of another Type of Loan, provided that (i)
except as otherwise provided in Section 1.10(b), Fixed Rate
Loans may be converted into Loans of another Type only on the
last day of an Interest Period applicable thereto and no such
partial conversion of Fixed Rate Loans shall reduce the
outstanding principal amount of Fixed Rate Loans made
pursuant to any single Borrowing to less than (x) in the case
of Term Loans, $5,000,000 and (y) in the case of Revolving
Loans, $2,000,000, (ii) Base Rate Loans may only be converted
into Fixed Rate Loans if no Default or Event of Default is in
existence on the date of the conversion, (iii) no conversion
pursuant to this Section 1.06 shall result in a greater
number of Borrowings than is permitted under Section 1.01(e)
and (iv) Swingline Loans may not be converted pursuant to
this Section 1.06. Each such conversion shall be effected by
such Borrower giving the Agent at its Notice Office prior to
11:00 A.M. (New York time) at least three Business Days' (two
Business Days' in the case of conversions into Base Rate
Loans or CD Rate Loans) prior written notice (each a "Notice
of Conversion") specifying the Loans to be so converted, the
Borrowing(s) pursuant to which such Loans were made, the date
of such conversion (which shall be a Business Day) and, if to
be converted into Fixed Rate Loans, the Interest Period to be
initially applicable thereto. The Agent shall give each Bank
prompt notice of any such proposed conversion affecting any
of its Loans.
1.07 Pro Rata Borrowings. All Borrowings of Term
Loans and Revolving Loans under this Agreement shall be in-
curred from the Banks pro rata on the basis of their respec-
tive Term Loan Commitments or Revolving Loan Commitments, as
the case may be. It is understood that no Bank shall be
responsible for any default by any other Bank of its obliga-
tion to make Loans hereunder and that each Bank shall be
obligated to make the Loans provided to be made by it here-
under regardless of the failure of any other Bank to make its
Loans hereunder.
1.08 Interest. (a) Each Borrower agrees to pay
interest in respect of the unpaid principal amount of each
Base Rate Loan made to such Borrower from the date the pro-
ceeds thereof are made available to such Borrower until the
earlier of (i) the maturity (whether by acceleration or
otherwise) of such Base Rate Loan and (ii) the conversion of
such Base Rate Loan into a Loan of a different Type pursuant
to Section 1.06 at a rate per annum which shall be equal to
the sum of the Applicable Margin plus the Base Rate in effect
from time to time.
(b) Each Borrower agrees to pay interest in re-
spect of the unpaid principal amount of each Eurodollar Rate
Loan made to such Borrower from the date the proceeds thereof
are made available to such Borrower until the earlier of (i)
the maturity (whether by acceleration or otherwise) of such
Fixed Rate Loan and (ii) the conversion of such Fixed Rate
Loan into a Loan of a different Type pursuant to Section 1.06
at a rate per annum which shall, during each Interest Period
applicable thereto, be equal to the sum of the Applicable
Margin plus the Eurodollar Rate for such Interest Period.
(c) Each Borrower agrees to pay interest in
respect of the unpaid principal amount of each CD Rate Loan
made to such Borrower from the date the proceeds thereof are
made available to such Borrower until the earlier of (x) the
maturity (whether by acceleration or otherwise) of such CD
Rate Loan and (ii) the conversion of such CD Rate Loan into
a Loan of different Type pursuant to Section 1.06 at a rate
per annum which shall, during each Interest Period applicable
thereto, be equal to the sum of the Applicable Margin plus
the CD Rate for such Interest Period.
(d) Overdue principal and, to the extent permitted
by law, overdue interest in respect of each Loan and any
other overdue amount payable hereunder shall, in each case,
bear interest at a rate per annum equal to the greater of (x)
2% in excess of the rate otherwise applicable to Base Rate
Loans of the respective Tranche from time to time and (y) the
rate which is 2% in excess of the rate then borne by such
Loan. Interest which accrues under this Section 1.08(d)
shall be payable on demand.
(e) Accrued (and theretofore unpaid) interest
shall be payable (i) in respect of each Base Rate Loan, quar-
terly in arrears on the last Business Day of each March,
June, September and December, (ii) in respect of each Euro-
dollar Rate Loan, on the last day of each Interest Period
applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month
intervals after the first day of such Interest Period, (iii)
in respect of each CD Rate Loan, on the last day of each
Interest Period applicable thereto and, in the case of an
Interest Period in excess of 90 days, on each date occurring
at 90-day intervals after the first day of such Interest
Period and (iv) in respect of each Loan, on any repayment or
prepayment (on the amount repaid or prepaid), at maturity
(whether by acceleration or otherwise) and, after such matur-
ity, on demand.
(g) Upon each Interest Determination Date, the
Agent shall determine the interest rate for the Fixed Rate
Loans for each Interest Period applicable to such Fixed Rate
Loans and shall promptly notify the Borrowers and the Banks
thereof. Each such determination shall, absent manifest
error, be final and conclusive and binding on all parties
hereto.
1.09 Interest Periods. At the time it gives any
Notice of Borrowing or Notice of Conversion in respect of the
making of, or conversion into, any Fixed Rate Loan (in the
case of the initial Interest Period applicable thereto) or on
the third Business Day prior to the expiration of an Interest
Period applicable to such Fixed Rate Loan (in the case of
subsequent Interest Periods), the respective Borrower shall
have the right to elect, by giving the Agent notice thereof,
the interest period (each an "Interest Period") applicable to
such Borrowing, which Interest Period shall, at the option of
such Borrower, be (x) in the case of a CD Rate Loan, a 30,
60, 90 or 180-day period and (y) in the case of a Eurodollar
Rate Loan, a one, two, three or six-month period, provided
that:
(i) all Fixed Rate Loans comprising a Borrowing
shall at all times have the same Interest Period;
(ii) the initial Interest Period for any Borrowing
of Fixed Rate Loans shall commence on the date of such
Borrowing (including the date of any conversion from a
Borrowing of a different Type) and each Interest Period
occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest
Period expires;
(iii) if any Interest Period relating to a Borrowing
of Eurodollar Rate Loans begins on a day for which there
is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such
calendar month;
(iv) if any Interest Period would otherwise expire
on a day which is not a Business Day, such Interest
Period shall expire on the next succeeding Business Day;
provided, however, that if any Interest Period in
respect of a Borrowing of Eurodollar Rate Loans would
otherwise expire on a day which is not a Business Day
but is a day of the month after which no further
Business Day occurs in such month, such Interest Period
shall expire on the next preceding Business Day;
(v) no Interest Period may be selected at any time
when an Event of Default is then in existence;
(vi) no Interest Period in respect of any Borrowing
of Term Loans shall be selected which extends beyond any
date upon which a mandatory repayment of such Term Loans
will be required to be made under Section 4.02(b) if the
aggregate principal amount of Term Loans which have
Interest Periods which will expire after such date will
be in excess of the aggregate principal amount of Term
Loans then outstanding less the aggregate amount of such
required repayment;
(vii) no Interest Period in respect of any Borrowing
of Revolving Loans shall be selected which extends
beyond any date upon which a mandatory reduction to the
Total Revolving Loan Commitment will be required to be
made pursuant to Section 3.03(c) if, after giving effect
to the selection of such Interest Period, the aggregate
principal amount of Revolving Loans which have Interest
Periods ending after the date of such mandatory reduc-
tion would exceed the Total Revolving Loan Commitment
after giving effect to the mandatory reduction thereto;
and
(viii) no Interest Period in respect of any Borrowing
of Fixed Rate Loans shall be selected which extends
beyond the Final Maturity Date.
If upon the expiration of any Interest Period
applicable to a Borrowing of Fixed Rate Loans, the respective
Borrower has failed to elect (or is not permitted to elect)
a new Interest Period to be applicable to such Borrowing as
provided above, such Borrower shall be deemed to have elected
to convert such Borrowing into a Borrowing of Base Rate Loans
effective as of the expiration date of such current Interest
Period.
1.10 Increased Costs, Illegality, etc. (a) In
the event that any Bank shall have determined (which deter-
mination shall, absent manifest error, be final and conclu-
sive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Agent):
(i) on any Interest Determination Date that, by
reason of any changes arising after the date of this
Agreement affecting the interbank Eurodollar market or
the secondary certificate of deposit market, as the case
may be, adequate and fair means do not exist for ascer-
taining the applicable interest rate on the basis pro-
vided for in the definition of Eurodollar Rate or CD
Rate, as the case may be; or
(ii) at any time, that such Bank shall incur in-
creased costs or reductions in the amounts received or
receivable hereunder with respect to any Fixed Rate Loan
because of (x) any change since the date of this Agree-
ment in any applicable law or governmental rule, regula-
tion, guideline, order or request (whether or not having
the force of law) or in the interpretation or adminis-
tration thereof and including the introduction of any
new law or governmental rule, regulation, guideline or
order such as, for example, but not limited to, (A) a
change in official reserve requirements, but, in all
events, excluding reserves required under Regulation D
to the extent included in the computation of the Euro-
dollar Rate or the CD Rate, as the case may be or (B) a
change in the basis of taxation of payments to any Bank
of the principal of or interest on such Fixed Rate Loan
or any other amounts payable hereunder (except for
changes in the rate of tax on, or determined by refer-
ence to, the net income or profits of such Bank pursuant
to the laws of the jurisdiction in which such Bank is
organized or the jurisdiction in which such Bank's prin-
cipal office or applicable lending office is located or
any subdivision thereof or therein) and/or (y) any other
circumstances affecting such Bank or the interbank Euro-
dollar market or the secondary certificate of deposit
market or the position of such Bank in such market; or
(iii) at any time that the making or continuance of
any Fixed Rate Loan has become (x) unlawful by compli-
ance by such Bank with any law, governmental rule, regu-
lation, guideline or order, (y) impossible by compliance
by such Bank with any governmental request (whether or
not having the force of law) or (z) has become imprac-
ticable as a result of a contingency occurring after the
date of this Agreement which materially and adversely
affects the interbank Eurodollar market or the secondary
certificate of deposit market, as the case may be;
then, and in any such event, such Bank (or the Agent, in the
case of clause (i) above) shall promptly give notice (by
telephone confirmed in writing) to the Company, any affected
Borrower and, except in the case of clause (i) above, to the
Agent of such determination (which notice the Agent shall
promptly transmit to each of the other Banks). Thereafter
(x) in the case of clause (i) above, Fixed Rate Loans of the
affected Type shall no longer be available until such time as
the Agent notifies the Company, any affected Borrower and the
Banks that the circumstances giving rise to such notice by
the Agent no longer exist, and any Notice of Borrowing or
Notice of Conversion given by any Borrower with respect to
such affected Fixed Rate Loans which have not yet been in-
curred (including by way of conversion) shall be deemed
rescinded by such Borrower, (y) in the case of clause (ii)
above, such Borrower shall pay to such Bank, within 15 days
of receipt of the notice referred to below, such additional
amounts (in the form of an increased rate of, or a different
method of calculating, interest or otherwise as such Bank in
its sole discretion shall determine) as shall be required to
compensate such Bank for such increased costs or reductions
in amounts received or receivable hereunder (a written notice
as to the additional amounts owed to such Bank, setting forth
in reasonable detail the basis for the calculation thereof,
submitted to the affected Borrower by such Bank shall, absent
manifest error, be final and conclusive and binding upon all
parties hereto) and (z) in the case of clause (iii) above,
such Borrower shall take one of the actions specified in
Section 1.10(b) as promptly as possible and, in any event,
within the time period required by law. To the extent the
notice required by the preceding sentence and relating to
costs arising under clause (ii) above is given by any Bank
more than 90 days after the occurrence of the event giving
rise to the additional costs of the type described in clause
(ii) above, such Bank shall not be entitled to compensation
under this Section 1.10(a) for any amounts incurred or
accrued prior to the giving of such notice to the affected
Borrower.
(b) At any time that any Fixed Rate Loan is
affected by the circumstances described in Section
1.10(a)(ii) or (iii), the respective Borrower may (and in the
case of a Fixed Rate Loan affected pursuant to Section
1.10(a)(iii) shall) either (x) if the affected Fixed Rate
Loan is then being made initially or pursuant to a conver-
sion, cancel the respective Borrowing by giving the Agent
telephonic notice (confirmed in writing) thereof on the same
date that such Borrower was notified by the affected Bank or
the Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if
the affected Fixed Rate Loan is then outstanding, upon at
least three Business Days' written notice to the Agent,
require the affected Bank to convert such Fixed Rate Loan
into a Loan (of the same Tranche) of another Type, provided
that, if more than one Bank is similarly affected at any
time, then all similarly affected Banks must be treated the
same pursuant to this Section 1.10(b).
(c) If any Bank determines at any time that any
change after the date of this Agreement in any applicable law
or governmental rule, regulation, guideline, order, directive
or request (whether or not having the force of law) concern-
ing capital adequacy, or any change in the interpretation or
administration thereof by any governmental authority, central
bank or comparable agency, will have the effect of increasing
the amount of capital required or expected to be maintained
by such Bank or any corporation controlling such Bank based
on the existence of such Bank's Commitments hereunder or its
obligations hereunder, then the Borrowers jointly and
severally agree to pay to such Bank, within 15 days of the
receipt of the notice referred to below, such additional
amounts as shall be required to compensate such Bank or such
other corporation for the increased cost to such Bank or such
other corporation as a result of such increase of capital.
In determining such additional amounts, each Bank will act
reasonably and in good faith and will use averaging and
attribution methods which are reasonable, provided that such
Bank's determination of compensation owing under this Section
1.10(c) shall, absent manifest error, be final and conclusive
and binding on all the parties hereto. Each Bank, upon
determining that any additional amounts will be payable
pursuant to this Section 1.10(c), will give prompt written
notice thereof to the Borrowers, which notice shall show in
reasonable detail the basis for calculation of such
additional amounts, although the failure to give any such
notice shall not release or diminish the Borrowers' obli-
gations to pay additional amounts pursuant to this Section
1.10(c). To the extent the notice required by the immediate-
ly preceding sentence is given by any Bank more than 120 days
after the occurrence of the event giving rise to the addi-
tional costs of the type described in this Section 1.10(c),
such Bank shall not be entitled to compensation under this
Section 1.10(c) for any amounts incurred or accrued prior to
the giving of such notice to the Borrowers.
1.11 Compensation. Each Borrower shall compensate
each Bank, upon its written request (which request shall set
forth the basis for requesting such compensation), for all
reasonable losses, expenses and liabilities (including, with-
out limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or
other funds required by such Bank to fund its Fixed Rate
Loans, but excluding any loss of anticipated profits) which
such Bank may sustain: (i) if for any reason (other than a
default by such Bank or the Agent) a Borrowing of, or conver-
sion from or into, Fixed Rate Loans does not occur on a date
specified therefor in a Notice of Borrowing or Notice of
Conversion (whether or not withdrawn by the Borrower or
deemed withdrawn pursuant to Section 1.10); (ii) if any re-
payment (including any repayment made pursuant to Section
4.01 or 4.02 or as a result of an acceleration of the Loans
pursuant to Section 9) or conversion of any of its Fixed Rate
Loans occurs on a date which is not the last day of an
Interest Period with respect thereto; (iii) if any prepayment
of any of its Fixed Rate Loans is not made on any date speci-
fied in a notice of prepayment given by any Borrower; or (iv)
as a consequence of (x) any other default by any Borrower to
repay its Loans when required by the terms of this Agreement
or the Notes held by such Bank or (y) any election made
pursuant to Section 1.10(b).
1.12 Change of Lending Office. Each Bank agrees
that on the occurrence of any event giving rise to the oper-
ation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Sec-
tion 2.06 or Section 4.04 with respect to such Bank, it will,
if requested by the Company, use reasonable efforts (subject
to overall policy considerations of such Bank) to designate
another lending office for any Loans or Letters of Credit
affected by such event, provided that such designation is
made on such terms that such Bank and its lending office
suffer no economic, legal or regulatory disadvantage, with
the object of avoiding the consequence of the event giving
rise to the operation of such Section. Nothing in this
Section 1.12 shall affect or postpone any of the obligations
of any Borrower or the right of any Bank provided in Sec-
tions 1.10, 2.06 and 4.04.
1.13 Replacement of Banks. (a) (i) Upon the
occurrence of any event giving rise to the operation of Sec-
tion 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.06 or
Section 4.04 with respect to any Bank which results in such
Bank charging to any Borrower increased costs in excess of
those being generally charged by the other Banks or (ii) if
any Bank refuses to consent to certain proposed changes,
waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as
provided in Section 13.12(b), the Company shall have the
right, in accordance with the requirements of Section
13.04(b), if no Default or Event of Default will exist after
giving effect to such replacement, to replace such Bank (the
"Replaced Bank") with one or more other Eligible Transferee
or Transferees (collectively, the "Replacement Bank")
acceptable to the Agent, provided that (i) at the time of any
replacement pursuant to this Section 1.13, the Replacement
Bank shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 13.04(b) (and with all fees
payable pursuant to said Section 13.04(b) to be paid by the
Replacement Bank) pursuant to which the Replacement Bank
shall acquire the entire Revolving Loan Commitment and all
outstanding Revolving Loans and/or Term Loans (or such
Replaced Bank's entire Term Loan Commitment if the Term Loan
Borrowing Date has not yet occurred), as the case may be, of
the Replaced Bank and, in connection therewith, shall pay to
(x) the Replaced Bank in respect thereof an amount equal to
the sum of (A) an amount equal to the principal of, and all
accrued interest on, all outstanding Revolving Loans of the
Replaced Bank and an amount equal to all Unpaid Drawings that
have been funded by (and not reimbursed to) such Replaced
Bank, together with all then unpaid interest with respect
thereto at such time, (B) an amount equal to the principal
of, and all accrued interest on, all outstanding Term Loans
of the Replaced Bank and (C) an amount equal to all accrued,
but theretofore unpaid, Fees owing to the Replaced Bank
pursuant to Section 3.01 and (y) BTCo an amount equal to such
Replaced Bank's Revolving Loan Percentage of any Mandatory
Borrowings and any Unpaid Drawing (which at such time remains
an Unpaid Drawing) to the extent such amount was not
theretofore funded by such Replaced Bank, and (ii) all obli-
gations of the Borrowers owing to the Replaced Bank (other
than those specifically described in clause (i) above in
respect of which the assignment purchase price has been, or
is concurrently being, paid) shall be paid in full by the
Borrowers to such Replaced Bank concurrently with such
replacement.
(b) Upon the execution of the respective
Assignment and Assumption Agreements, the payment of the
amounts referred to in clauses (i) and (ii) of Section
1.13(a) and, if so requested by the Replacement Bank,
delivery to the Replacement Bank of the appropriate Note or
Notes executed by the appropriate Borrowers, the Replacement
Bank shall become a Bank hereunder and the Replaced Bank
shall cease to constitute a Bank hereunder, except with
respect to indemnification provisions under this Agreement
(including, without limitation, Sections 1.10, 1.11, 2.06,
4.04, 13.01 and 13.06), which shall survive as to such
Replaced Bank.
Section 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon
the terms and conditions set forth herein, the Company may
request that BTCo issue, at any time and from time to time on
and after the Effective Date and prior to the Final Maturity
Date, for the account of the Company and for the benefit of
any holder (or any trustee, agent or other similar
representative for any such holders) of L/C Supportable
Indebtedness of the Company or any of its Subsidiaries, an
irrevocable standby letter of credit, in a form customarily
used by BTCo or in such other form as has been approved by
BTCo (each such standby letter of credit, a "Letter of
Credit") in support of such L/C Supportable Indebtedness.
(b) BTCo hereby agrees that it will (subject to
the terms and conditions contained herein) at any time and
from time to time on or after the Effective Date and prior to
the Final Maturity Date, following its receipt of the
respective Letter of Credit Request, issue for the account of
the Company one or more Letters of Credit, in support of such
L/C Supportable Indebtedness of the Company or any of its
Subsidiaries as is permitted to remain outstanding without
giving rise to a Default or an Event of Default, provided
that BTCo shall be under no obligation to issue any Letter of
Credit if at the time of such issuance:
(i) any order, judgment or decree of any govern-
mental authority or arbitrator shall purport by its
terms to enjoin or restrain BTCo from issuing such
Letter of Credit or any requirement of law applicable to
BTCo or any request or directive (whether or not having
the force of law) from any governmental authority with
jurisdiction over BTCo shall prohibit, or request that
BTCo refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or
shall impose upon BTCo with respect to such Letter of
Credit any restriction or reserve or capital requirement
(for which BTCo is not otherwise compensated) not in
effect on the date hereof, or any unreimbursed loss,
cost or expense which was not applicable, in effect or
known to BTCo as of the date hereof and which BTCo in
good faith deems material to it; or
(ii) BTCo shall have received notice from the
Required Banks prior to the issuance of such Letter of
Credit of the type described in the penultimate sentence
of Section 2.03(b).
In addition, BTCo shall not be obligated to issue any Letter
of Credit at a time when a Bank Default exists unless BTCo
shall have entered into arrangements satisfactory to it and
the Company to eliminate BTCo's risk with respect to the Bank
which is the subject of the Bank Default, including by cash
collateralizing such Bank's Revolving Loan Percentage of the
Letter of Credit Outstandings.
(c) Notwithstanding the foregoing, (i) no Letter
of Credit shall be issued the Stated Amount of which, when
added to the Letter of Credit Outstandings (exclusive of
Unpaid Drawings which are repaid on the date of, and prior to
the issuance of, the respective Letter of Credit) at such
time would exceed either (x) $20,000,000 or (y) when added to
the sum of (A) the aggregate principal amount of all
Swingline Loans and Revolving Loans then outstanding and (B)
the aggregate principal amount of all Third-Party Subsidiary
Borrowings then outstanding (or the Dollar Equivalent thereof
in the case of Third-Party Subsidiary Borrowings incurred in
a currency other than Dollars), an amount equal to the Total
Revolving Loan Commitment at such time minus, if the
determination pursuant to this clause (i) is made at any time
prior to the Term Loan Borrowing Date, the Revolving Loan
Commitment Redemption Reserve at such time and (ii) each
Letter of Credit shall by its terms terminate on or before
the earlier of (x) the date which occurs 12 months after the
date of the issuance thereof (although any such Letter of
Credit may be extendable for successive periods of up to 12
months, but not beyond the Final Maturity Date, on terms
acceptable to BTCo) and (y) the Final Maturity Date.
2.02 Minimum Stated Amount. The Stated Amount of
each Letter of Credit shall not be less than $250,000 or such
lesser amount as is acceptable to BTCo.
2.03 Letter of Credit Requests. (a) Whenever the
Company desires that a Letter of Credit be issued for its
account, the Company shall give the Agent and BTCo at least
five Business Days' (or such shorter period as is acceptable
to BTCo) written notice thereof. Each notice shall be in the
form of Exhibit C (each a "Letter of Credit Request").
(b) The making of each Letter of Credit Request
shall be deemed to be a representation and warranty by the
Company that such Letter of Credit may be issued in accord-
ance with, and will not violate the requirements of, Section
2.01(c). Unless BTCo has received notice from the Required
Banks before it issues a Letter of Credit that a Default or
an Event of Default then exists or that the issuance of such
Letter of Credit would violate Section 2.01(c), then BTCo
shall issue the requested Letter of Credit for the account of
the Company in accordance with BTCo's usual and customary
practices. Upon its issuance of any Letter of Credit, BTCo
shall promptly notify each Bank of such issuance, which
notice shall be accompanied by a copy of the Letter of Credit
actually issued.
2.04 Letter of Credit Participations. (a) Im-
mediately upon the issuance by BTCo of any Letter of Credit,
BTCo shall be deemed to have sold and transferred to each
Bank with a Revolving Loan Commitment, other than BTCo (each
such Bank, in its capacity under this Section 2.04, a "Parti-
cipant"), and each such Participant shall be deemed irrevo-
cably and unconditionally to have purchased and received from
BTCo, without recourse or warranty, an undivided interest and
participation, to the extent of such Participant's Revolving
Loan Percentage in such Letter of Credit, each drawing made
thereunder and the obligations of the Company under this
Agreement with respect thereto, and any security therefor or
guaranty pertaining thereto. Upon any change in the Revolv-
ing Loan Commitments of the Banks pursuant to Section 1.13 or
13.04, it is hereby agreed that, with respect to all
outstanding Letters of Credit and Unpaid Drawings, there
shall be an automatic adjustment to the participations
pursuant to this Section 2.04 to reflect the new Revolving
Loan Percentages of the assignor and assignee Bank or of all
Banks with Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter
of Credit, BTCo shall have no obligation relative to the
other Banks other than to confirm that any documents required
to be delivered under such Letter of Credit appear to have
been delivered and that they appear to comply on their face
with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by BTCo under or in connection
with any Letter of Credit if taken or omitted in the absence
of gross negligence or willful misconduct, shall not create
for BTCo any resulting liability to the Company, any
Subsidiary of the Company or any Bank.
(c) In the event that BTCo makes any payment under
any Letter of Credit and the Company shall not have reim-
bursed such amount in full to BTCo pursuant to Section
2.05(a), BTCo shall promptly notify the Agent, which shall
promptly notify each Participant of such failure, and each
Participant shall promptly and unconditionally pay to BTCo
the amount of such Participant's Revolving Loan Percentage of
such unreimbursed payment in Dollars and in same day funds.
If the Agent so notifies, prior to 11:00 A.M. (New York time)
on any Business Day, any Participant required to fund a
payment under a Letter of Credit, such Participant shall make
available to BTCo in Dollars such Participant's Revolving
Loan Percentage of the amount of such payment on such
Business Day in same day funds. If and to the extent such
Participant shall not have so made its Revolving Loan Per-
centage of the amount of such payment available to BTCo, such
Participant agrees to pay to BTCo, forthwith on demand such
amount, together with interest thereon, for each day from
such date until the date such amount is paid to BTCo at the
overnight Federal Funds Rate. The failure of any Participant
to make available to BTCo its Revolving Loan Percentage of
any payment under any Letter of Credit shall not relieve any
other Participant of its obligation hereunder to make avail-
able to BTCo its Revolving Loan Percentage of any Letter of
Credit on the date required, as specified above, but no
Participant shall be responsible for the failure of any other
Participant to make available to BTCo such other
Participant's Revolving Loan Percentage of any such payment.
(d) Whenever BTCo receives a payment of a reim-
bursement obligation as to which it has received any payments
from the Participants pursuant to clause (c) above, BTCo
shall pay to each Participant which has paid its Revolving
Loan Percentage thereof, in Dollars and in same day funds, an
amount equal to such Participant's share (based upon the pro-
portionate aggregate amount originally funded by such
Participant to the aggregate amount funded by all Partici-
pants) of the principal amount of such reimbursement obliga-
tion and interest thereon accruing after the purchase of the
respective participations.
(e) Upon the request of any Participant, BTCo
shall furnish to such Participant copies of any Letter of
Credit issued by it and such other documentation as may
reasonably be requested by such Participant.
(f) The obligations of the Participants to make
payments to BTCo with respect to Letters of Credit issued by
it shall be irrevocable and not subject to any qualification
or exception whatsoever and shall be made in accordance with
the terms and conditions of this Agreement under all circum-
stances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or
other right which the Company or any of its Subsidiaries
may have at any time against a beneficiary named in a
Letter of Credit, any transferee of any Letter of Credit
(or any Person for whom any such transferee may be
acting), the Agent, any Participant, or any other
Person, whether in connection with this Agreement, any
Letter of Credit, any other Credit Document, the
transactions contemplated herein or therein or any
unrelated transactions (including any underlying
transaction between the Company or any of its
Subsidiaries on the one hand and the beneficiary named
in any such Letter of Credit on the other hand);
(iii) any draft, certificate or any other document
presented under any Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccu-
rate in any respect;
(iv) the surrender or impairment of any security
for the performance or observance of any of the terms of
any of the Credit Documents; or
(v) the occurrence of any Default or Event of
Default.
2.05 Agreement to Repay Letter of Credit Drawings.
(a) The Company hereby agrees to reimburse BTCo, by making
payment to the Agent in immediately available funds at the
Payment Office of the Agent, for any payment or disbursement
made by BTCo under any Letter of Credit (each such amount, so
paid until reimbursed, an "Unpaid Drawing"), immediately
after, and in any event on the date of such payment or
disbursement, with interest on the amount so paid or dis-
bursed by BTCo, to the extent not reimbursed prior to 12:00
Noon (New York time) on the date of such payment or disburse-
ment, from and including the date paid or disbursed to but
excluding the date BTCo was reimbursed by the Company
therefor at a rate per annum which shall be the Base Rate in
effect from time to time plus the Applicable Margin for
Revolving Loans maintained as Base Rate Loans; provided,
however, to the extent such amounts are not reimbursed prior
to 12:00 Noon (New York time) on the third Business Day
following such payment or disbursement, interest shall
thereafter accrue on the amounts so paid or disbursed by BTCo
(and until reimbursed by the Company) at a rate per annum
which shall be the Base Rate in effect from time to time plus
the Applicable Margin for Revolving Loans maintained as Base
be payable on demand. BTCo shall give the Company prompt
notice of each Drawing under any Letter of Credit, provided
that the failure to give any such notice shall in no way
affect, impair or diminish the Company's obligations
hereunder.
(b) The obligations of the Company under this
Section 2.05 to reimburse BTCo with respect to drawings on
Letters of Credit (each, a "Drawing") (including, in each
case, interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any
setoff, counterclaim or defense to payment which the Company
may have or have had against any Bank (including in its
capacity as issuer of the Letter of Credit or as Partici-
pant), or any nonapplication or misapplication by the
beneficiary of the proceeds of such Drawing, BTCo's only
obligation to the Company being to confirm that any documents
required to be delivered under such Letter of Credit appear
to have been delivered and that they appear to comply on
their face with the requirements of such Letter of Credit.
Any action taken or omitted to be taken by BTCo under or in
connection with any Letter of Credit if taken or omitted in
the absence of gross negligence or willful misconduct, shall
not create for BTCo any resulting liability to the Company or
any of its Subsidiaries.
2.06 Increased Costs. If at any time after the
date of this Agreement, the introduction of or any change in
any applicable law or governmental rule, regulation, order,
guideline, directive or request (whether or not having the
force of law), or any change in the interpretation or
administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or
administration thereof, or compliance by BTCo or any Partici-
pant with any request or directive by any such authority
(whether or not having the force of law), or any change in
generally acceptable accounting principles, shall either
(i) impose, modify or make applicable any reserve, deposit,
capital adequacy or similar requirement against letters of
credit issued by BTCo or participated in by any Participant,
or (ii) impose on BTCo or any Participant any other condi-
tions relating, directly or indirectly, to this Agreement or
any Letter of Credit; and the result of any of the foregoing
is to increase the cost to BTCo or any Participant of issu-
ing, maintaining or participating in any Letter of Credit, or
reduce the amount of any sum received or receivable by BTCo
or any Participant hereunder or reduce the rate of return on
its capital with respect to Letters of Credit (except for
changes in the rate of tax on, or determined by reference to,
the net income or profits of BTCo or such Participant,
pursuant to the laws of the jurisdiction in which BTCo or
such Participant is organized or the jurisdiction in which
BTCo's or such Participant's principal office or applicable
lending office is located or any subdivision thereof or
therein), then, within 15 days after demand to the Company by
BTCo or such Participant (a copy of which demand shall be
sent by BTCo or such Participant to the Agent), the Company
shall pay to BTCo or such Participant such additional amount
or amounts as will compensate BTCo or such Participant for
such increased cost or reduction in the amount receivable or
reduction on the rate of return on its capital. BTCo or any
Participant, upon determining that any additional amounts
will be payable pursuant to this Section 2.06, will give
prompt written notice thereof to the Company, which notice
shall include a certificate submitted to the Company by BTCo
or such Participant (a copy of which certificate shall be
sent by BTCo or such Participant to the Agent), setting forth
in reasonable detail the basis for the calculation of such
additional amount or amounts necessary to compensate BTCo or
such Participant. The certificate required to be delivered
pursuant to this Section 2.06 shall, if delivered in good
faith and absent manifest error, be final and conclusive and
binding on the Company. To the extent the notice required by
the second preceding sentence is given by BTCo or any
Participant more than 90 days after the occurrence of the
event giving rise to the additional costs of the type
described in this Section 2.06, BTCo or such Participant
shall not be entitled to compensation under this Section 2.06
for any amounts incurred or accrued prior to the giving of
such notice to the Company.
Section 3. Commitment Commission; Fees; Reductions
of Commitments.
3.01 Fees. (a) The Company agrees to pay to the
Agent for distribution to each Bank with a Term Loan Commit-
ment a commitment commission (the "Term Loan Commitment
Commission") for the period from the Effective Date to and
including the date on which the Total Term Loan Commitment
shall have been terminated, computed at a rate for each day
equal to 3/8 of 1% per annum on the daily average Term Loan
Commitment of such Bank, provided, that, so long as (x) no
Default or Event of Default exists and (y) the Applicable
Margin for Eurodollar Rate Loans is .5% or less, the
foregoing percentage shall be reduced to 1/4 of 1%. Accrued
Term Loan Commitment Commission shall be due and payable in
arrears on the Term Loan Borrowing Date or upon any earlier
date on which the Total Term Loan Commitment is terminated.
(b) The Company agrees to pay to the Agent for
distribution to each Bank with a Revolving Loan Commitment a
commitment commission (the "Revolving Loan Commitment Commis-
sion") for the period from the Effective Date to and includ-
ing the Final Maturity Date (or such earlier date as the
Total Revolving Loan Commitment shall have been terminated)
computed at a rate for each day equal to 3/8 of 1% per annum
on the daily average Unutilized Revolving Loan Commitment of
such Bank, provided, that, so long as (x) no Default or Event
of Default exists and (y) the Applicable Margin for Euro-
dollar Rate Loans is .5% or less, the foregoing percentage
shall be reduced to 1/4 of 1%. Accrued Revolving Loan Com-
mitment Commission shall be due and payable quarterly in
arrears on the last Business Day of each March, June,
September and December of each year, and on the Final
Maturity Date (or upon such earlier date as the Total
Revolving Loan Commitment is terminated).
(c) The Company agrees to pay to the Agent for pro
rata distribution to each Bank with a Revolving Loan Commit-
ment (based upon such Bank's Revolving Loan Percentage) a fee
in respect of each Letter of Credit issued hereunder (the
"Letter of Credit Fee") for the period from and including the
date of issuance of such Letter of Credit to and including
the termination of such Letter of Credit, computed at a rate
per annum equal to the Applicable Margin for Revolving Loans
maintained as Eurodollar Rate Loans as in effect from time to
time on the daily average Stated Amount of such Letter of
Credit. Accrued Letter of Credit Fees shall be due and pay-
able quarterly in arrears on the last Business Day of each
March, June, September and December and upon the first day on
or after the termination of the Total Revolving Loan Com-
mitment upon which no Letters of Credit remain outstanding.
(d) The Company agrees to pay to BTCo, for its
account, a facing fee in respect of each Letter of Credit
(the "Facing Fee"), for the period from and including the
date of issuance of such Letter of Credit to and including
the termination of such Letter of Credit, computed at a rate
per annum equal to 1/4 of 1% per annum on the daily average
Stated Amount of such Letter of Credit, provided, that in any
event the minimum amount of the Facing Fee payable in any 12
month period for each Letter of Credit shall be $500; it
being agreed that, on the date of issuance of any Letter of
Credit and on each anniversary thereof prior to the termina-
tion of such Letter of Credit, if $500 will exceed the amount
of Facing Fees that will accrue with respect to such Letter
of Credit for the immediately succeeding 12 month period, the
full $500 shall be payable on the date of issuance of such
Letter of Credit and on each such anniversary thereof prior
to the termination of such Letter of Credit. Except as
otherwise provided in the proviso to the immediately
preceding sentence, accrued Facing Fees shall be due and
payable quarterly in arrears on the last Business Day of each
March, June, September and December and upon the first day on
or after the termination of the Total Revolving Loan
Commitment upon which no Letters of Credit remain
outstanding.
(e) The Company agrees to pay to BTCo, upon each
drawing under, issuance of, or amendment to, any Letter of
Credit, such amount as shall at the time of such event be the
administrative charge which BTCo is generally imposing in
connection with such occurrence with respect to letters of
credit.
(f) The Company agrees to pay to the Agent, for
the account of each Bank with a Revolving Loan Commitment, on
the Effective Date, such upfront fee as has been previously
agreed to among the Company, the Agent and the Banks.
(g) The Company agrees to pay to the Agent, for
its own account, such other fees as shall have been agreed to
by the Company and the Agent.
3.02 Voluntary Reduction of Commitments. (a)
Upon at least five Business Days' prior notice to the Agent
at its Notice Office (which notice the Agent shall promptly
transmit to each of the Banks), the Company shall have the
right, at any time or from time to time, without premium or
penalty, to terminate the Total Unutilized Revolving Loan
Commitment, in whole or in part, in integral multiples of
$1,000,000 in the case of partial reductions to the Total
Unutilized Revolving Loan Commitment, provided that (i) each
such reduction shall apply proportionately to permanently
reduce the Revolving Loan Commitment of each Bank with such
a Commitment and (ii) the reduction to the Total Unutilized
Revolving Loan Commitment shall in no case be in an amount
which would cause the Revolving Loan Commitment of any Bank
to be reduced (as required by preceding clause (i)) by an
amount which exceeds the remainder of (x) the Unutilized
Revolving Loan Commitment of such Bank as in effect immedi-
ately before giving effect to such reduction minus (y) such
Bank's Revolving Loan Percentage of the aggregate principal
amount of Swingline Loans then outstanding; and provided
further, that no reduction to the Total Unutilized Revolving
Loan Commitment shall be in an amount which would cause the
Total Unutilized Revolving Loan Commitment to be reduced, at
any time prior to the Term Loan Borrowing Date, to an amount
below the Revolving Loan Commitment Redemption Reserve at
such time.
(b) In the event of certain refusals by a Bank to
consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been
approved by the Required Banks as provided in Section
13.12(b), the Company may, upon five Business Days' prior
notice to the Agent at its Notice Office (which notice the
Agent shall promptly transmit to each of the Banks) terminate
the entire Revolving Loan Commitment and Term Loan Commitment
(if not theretofore terminated) of such Bank so long as all
Loans, together with all accrued and unpaid interest, Fees
and all other amounts, owing to such Bank are repaid
concurrently with the effectiveness of such termination (at
which time Schedule I shall be deemed modified to reflect
such changed amounts), and at such time such Bank shall no
longer constitute a "Bank" for purposes of this Agreement,
except with respect to indemnifications under this Agreement
(including, without limitation, Sections 1.10, 1.11, 2.06,
4.04, 13.01 and 13.06), which shall survive as to such repaid
Bank.
3.03 Mandatory Reduction of Commitments. (a) The
Total Commitment (and the Term Loan Commitment and the
Revolving Loan Commitment of each Bank) shall terminate in
its entirety on July 30, 1994 unless the Effective Date has
occurred on or before such date.
(b) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, the Total Term Loan
Commitment (and the Term Loan Commitment of each Bank) shall
(i) terminate in its entirety on the Term Loan Borrowing Date
(after giving effect to the making of the Term Loans on such
date), (ii) prior to the termination of the Total Term Loan
Commitment as provided in clause (i) above, be reduced from
time to time to the extent required by Section 4.02(c) and
(iii) terminate in its entirety (to the extent not
theretofore terminated) at 5:00 p.m. (New York time) on the
Term Loan Borrowing Date whether or not any Term Loans are
incurred on such date.
(c) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, the Total Revolving
Loan Commitment shall be reduced on each date and in the
amount set forth below:
June 30, 1997 $25,000,000
June 30, 1998 $25,000,000
(d) In addition to any other mandatory commitment
reductions pursuant to this Section 3.03, the Total Revolving
Loan Commitment (and the Revolving Loan Commitment of each
Bank) shall terminate in its entirety on the Final Maturity
Date.
(e) Each partial reduction to the Total Term Loan
Commitment or the Total Revolving Loan Commitment pursuant to
this Section 3.03 shall apply proportionately to the Term
Loan Commitment or the Revolving Loan Commitment, as the case
may be, of each Bank with such a Commitment.
Section 4. Prepayments; Payments.
4.01 Voluntary Prepayments. Each Borrower shall
have the right to prepay the Loans made to it, without
premium or penalty, in whole or in part at any time and from
time to time on the following terms and conditions: (i) the
respective Borrower shall give the Agent prior to 12:00 Noon
(New York time) at its Notice Office (x) at least one
Business Day's prior written notice (or telephonic notice
promptly confirmed in writing) of such Borrower's intent to
prepay Base Rate Loans (or same day notice in the case of
Swingline Loans provided such notice is given prior to 11:00
A.M. (New York time)) and (y) at least three Business Days'
prior written notice (or telephonic notice promptly confirmed
in writing) of such Borrower's intent to prepay Fixed Rate
Loans, whether Term Loans, Revolving Loans or Swingline Loans
shall be prepaid, the amount of such prepayment and the Types
of Loans to be prepaid and, in the case of Fixed Rate Loans,
the specific Borrowing or Borrowings pursuant to which made,
which notice the Agent shall promptly transmit to each of the
Banks; (ii) each prepayment shall be in an aggregate princi-
pal amount of at least $500,000 (or $250,000 in the case of
Swingline Loans), provided that if any partial prepayment of
Fixed Rate Loans made pursuant to any Borrowing shall reduce
the outstanding Fixed Rate Loans made pursuant to such Bor-
rowing to an amount less than (1) in the case of Term Loans,
$5,000,000 and (2) in the case of Revolving Loans,
$2,000,000, then such Borrowing may not be continued as a
Borrowing of Fixed Rate Loans and any election of an Interest
Period with respect thereto given by the respective Borrower
shall have no force or effect; (iii) each prepayment in re-
spect of any Loans made pursuant to a specific Borrowing
shall be applied pro rata among such Loans; and (iv) in the
event of certain refusals by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with
respect to this Agreement which have been approved by the
Required Banks as provided in Section 13.12(b), the
respective Borrower may, upon five Business Days' written
notice by such Borrower to the Agent at its Notice Office
(which notice the Agent shall promptly transmit to each of
the Banks), repay all Loans, together with all accrued and
unpaid interest, Fees, and all other amounts owing to such
Bank in accordance with said Section 13.12(b) so long as (A)
in the case of the repayment of Revolving Loans of any Bank
pursuant to this clause (iv) the Revolving Loan Commitment of
such Bank is terminated concurrently with such repayment (at
which time Schedule I shall be deemed modified to reflect the
changed Revolving Loan Commitments) and (B) the consents
required by Section 13.12(b) in connection with the repayment
pursuant to this clause (iv) have been obtained. Each
prepayment of principal of Term Loans pursuant to this
Section 4.01 (excluding prepayments of Term Loans as contem-
plated by clause (iv) of the immediately preceding sentence
except to the extent that the Term Loans of the Bank which is
receiving the prepayment are not replaced as contemplated by
Section 13.12(b)) shall be applied to reduce the then
remaining Scheduled Repayments in inverse order of maturity
based upon the then remaining amount of each such Scheduled
Repayment after giving effect to all prior reductions
thereto; provided that the Company shall be entitled at the
time of any prepayment of Term Loans pursuant to this Section
4.01 to request that such prepayment be applied (in which
case it will be applied) first in direct order of maturity to
reduce any Scheduled Repayments of Term Loans which will be
due and payable (after giving effect to all prior reductions
thereto) on the next four Scheduled Repayment Dates to occur
after the date of the respective prepayment of Term Loans
pursuant to this Section 4.01, with any remainder to be
applied as provided above without regard to this proviso.
4.02 Mandatory Prepayments. (a) If on any date
the sum of (A) the aggregate outstanding principal amount of
Revolving Loans and Swingline Loans, (B) the aggregate amount
of Letter of Credit Outstandings and (C) the aggregate
outstanding principal amount of Third-Party Subsidiary
Borrowings (or the Dollar Equivalent thereof in the case of
Third-Party Subsidiary Borrowings incurred in a currency
other than Dollars) exceeds the Total Revolving Loan
Commitment as then in effect, there shall be required to be
repaid on such date that principal amount of Swingline Loans,
and if no Swingline Loans are or remain outstanding,
Revolving Loans, in an amount equal to such excess. If,
after giving effect to the prepayment of all outstanding
Swingline Loans and Revolving Loans, the aggregate amount of
the Letter of Credit Outstandings exceeds the Total Revolving
Loan Commitment as then in effect, there shall be paid to the
Agent at the Payment Office on such date an amount of cash or
Cash Equivalents equal to the amount of such excess (up to a
maximum amount equal to the Letter of Credit Outstandings at
such time), such cash or Cash Equivalent to be held as
security for the obligations of the Company hereunder in a
cash collateral account established by the Agent.
(b) In addition to any other mandatory repayments
pursuant to this Section 4.02, on each date set forth below
the Company shall be required to repay that principal amount
of Term Loans, to the extent then outstanding, as is set
forth opposite such date (each such repayment, as the same
may be reduced as provided in Sections 4.01 and 4.02(c), a
"Scheduled Repayment," and each such date, a "Scheduled
Repayment Date"):
Scheduled Repayment Date
Amount
the last Business Day in September, 1994 $5,000,000
the last Business Day in December, 1994 $5,000,000
the last Business Day in March, 1995 $5,000,000
the last Business Day in June, 1995 $5,000,000
the last Business Day in September, 1995 $5,000,000
the last Business Day in December, 1995 $5,000,000
the last Business Day in March, 1996 $5,000,000
the last Business Day in June, 1996 $5,000,000
the last Business Day in September, 1996 $5,000,000
the last Business Day in December, 1996 $5,000,000
the last Business Day in March, 1997 $5,000,000
the last Business Day in June, 1997 $5,000,000
the last Business Day in September, 1997 $5,000,000
the last Business Day in December, 1997 $5,000,000
the last Business Day in March, 1998 $5,000,000
the last Business Day in June, 1998 $5,000,000
the last Business Day in September, 1998 $5,000,000
the last Business Day in December, 1998 $5,000,000
the last Business Day in March, 1999 $5,000,000
Final Maturity Date $5,000,000
(c) In addition to any other mandatory repayments
pursuant to this Section 4.02, on each date upon which the
Company receives any proceeds from the issuance of the New
Senior Subordinated Notes, an amount equal to 100% of the
proceeds thereof (net of underwriting discounts or placement
discounts and commissions and other reasonable costs
associated therewith) shall be applied as a mandatory
repayment of principal of outstanding Term Loans (or, if the
Term Loan Borrowing Date has not yet occurred, such amounts
shall be applied as a mandatory reduction to the Total Term
Loan Commitment). The amount of each principal repayment of
Term Loans (and the amount of each reduction to the Total
Term Loan Commitment) made as required by this Section
4.02(c) shall be applied to reduce the then remaining
Scheduled Repayments in the inverse order of maturity after
giving effect to all prior reductions thereto.
(d) With respect to each repayment of Loans
required by this Section 4.02, the respective Borrower may
designate the Types of Loans which are to be repaid and, in
the case of Fixed Rate Loans, the specific Borrowing or
Borrowings of the respective Tranche pursuant to which made,
provided that: (i) repayments of Fixed Rate Loans made
pursuant to this Section 4.02 may only be made on the last
day of an Interest Period applicable thereto unless all such
Fixed Rate Loans of the respective Tranche with Interest
Periods ending on such date of required repayment and all
Base Rate Loans of the respective Tranche have been paid in
full; (ii) if any repayment of Fixed Rate Loans made pursuant
to a single Borrowing shall reduce the outstanding Fixed Rate
Loans made pursuant to such Borrowing to an amount less than
(x) in the case of Term Loans, $5,000,000 and (y) in the case
of Revolving Loans, $2,000,000, such Borrowing shall be
converted at the end of the then current Interest Period into
a Borrowing of Base Rate Loans; and (iii) each repayment in
respect of any Loans made pursuant to a specific Borrowing
shall be applied pro rata among such Loans. In the absence
of a designation by the respective Borrower as described in
the preceding sentence, the Agent shall, subject to the
above, make such designation in its sole discretion.
(e) Notwithstanding anything to the contrary
contained elsewhere in this Agreement, (i) all then
outstanding Term Loans and Revolving Loans shall be repaid in
full on the Final Maturity Date and (ii) all then outstanding
Swingline Loans shall be repaid in full on the Swingline
Expiry Date.
4.03 Method and Place of Payment. Except as other-
wise specifically provided herein, all payments under this
Agreement or any Note shall be made to the Agent for the
account of the Bank or Banks entitled thereto no later than
12:00 Noon (New York time) on the date when due and shall be
made in Dollars in immediately available funds at the Agent's
Payment Office. Whenever any payment to be made hereunder or
under any Note shall be stated to be due on a day which is
not a Business Day, the due date thereof shall be extended to
the next succeeding Business Day and, with respect to
payments of principal, interest shall be payable at the
applicable rate during such extension.
4.04 Net Payments. (a) All payments made by the
Borrowers hereunder or under any Note will be made without
setoff, counterclaim or other defense. Except as provided in
Section 4.04(b) and (c) with respect to payments made by the
Company, all such payments will be made free and clear of,
and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or
other charges of whatever nature now or hereafter imposed by
any jurisdiction or by any political subdivision or taxing
authority thereof or therein with respect to such payments
(but excluding, in the case of each Bank and the Agent,
except as provided in the second succeeding sentence, any tax
imposed on or measured by the net income or profits pursuant
to the laws of the jurisdiction in which such Bank or the
Agent (as the case may be) is organized or any subdivision
thereof or therein and, in the case of each Bank, any tax
imposed on or measured by the net income or profits pursuant
to the laws of the jurisdiction in which the principal office
or applicable lending office of such Bank is located or any
subdivision thereof or therein) and all interest, penalties
or similar liabilities with respect thereto (all such non-
excluded taxes, levies, imposts, duties, fees, assessments or
other charges being referred to collectively as "Taxes"). If
any Taxes are so levied or imposed, the respective Borrower
agrees to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every payment
of all amounts due under this Agreement or under any Note,
after withholding or deduction for or on account of any
Taxes, will not be less than the amount provided for herein
or in such Note. If any amounts are payable in respect of
Taxes pursuant to the preceding sentence, the respective
Borrower agrees to reimburse each Bank, upon the written
request of such Bank, for taxes imposed on or measured by the
net income or profits of such Bank pursuant to the laws of
the jurisdiction in which such Bank is organized or the
jurisdiction in which the principal office or applicable
lending office of such Bank is located or under the laws of
any political subdivision or taxing authority of any such
jurisdiction in which such Bank is organized or the juris-
diction in which such Bank is organized or the jurisdiction
in which the principal office or applicable lending office of
such Bank is located and for any withholding of income or
similar taxes imposed by the United States of America as such
Bank shall determine are payable by, or withheld from, such
Bank in respect of such amounts so paid to or on behalf of
such Bank pursuant to the preceding sentence and in respect
of any amounts paid to or on behalf of such Bank pursuant to
this sentence. The respective Borrower will furnish to the
Agent within 45 days after the date the payment of any Taxes
is due pursuant to applicable law certified copies of tax
receipts evidencing such payment by such Borrower. The
respective Borrower agrees to indemnify and hold harmless
each Bank, and reimburse such Bank upon its written request,
for the amount of any Taxes so levied or imposed and paid by
such Bank. If any Bank shall obtain a refund, credit or
deduction as a result of the payment of or indemnification
for any Taxes made by any Borrower to such Bank pursuant to
this Section 4.04(a), such Bank shall pay to such Borrower an
amount with respect to such refund, credit or deduction equal
to any net tax benefit actually received by such Bank as a
result thereof which such Bank determines, in its sole
discretion, to be attributable to such payment.
(b) Each Bank that is not a United States person
(as such term is defined in Section 7701(a)(30) of the Code)
agrees to deliver to the Company and the Agent on or prior to
the Effective Date, or in the case of a Bank that is an
assignee or transferee of an interest under this Agreement
pursuant to Section 1.13 or 13.04 (unless the respective Bank
was already a Bank hereunder immediately prior to such
assignment or transfer), on the date of such assignment or
transfer to such Bank, (i) two accurate and complete original
signed copies of Internal Revenue Service Form 4224 or 1001
(or successor forms) certifying to such Bank's entitlement to
a complete exemption from United States withholding tax with
respect to payments to be made by the Company under this
Agreement and under any Note, or (ii) if the Bank is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code
and cannot deliver either Internal Revenue Service Form 1001
or 4224 pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit D (any such certificate,
a "Section 4.04(b)(ii) Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service
Form W-8 (or successor form) certifying to such Bank's
entitlement to a complete exemption from United States
withholding tax with respect to payments of interest to be
made by the Company under this Agreement and under any Note.
In addition, each Bank agrees that from time to time after
the Effective Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or
inaccurate in any material respect, it will deliver to the
Company and the Agent two new accurate and complete original
signed copies of Internal Revenue Service Form 4224 or 1001,
or Form W-8 and a Section 4.04(b)(ii) Certificate, as the
case may be, and such other forms as may be required in order
to confirm or establish the entitlement of such Bank to a
continued exemption from or reduction in United States
withholding tax with respect to payments by the Company under
this Agreement and any Note, or it shall immediately notify
the Company and the Agent of its inability to deliver any
such Form or Certificate. Notwithstanding anything to the
contrary contained in Section 4.04(a), but subject to Section
13.04(b) and the immediately succeeding sentence, (x) the
Company shall be entitled, to the extent it is required to do
so by law, to deduct or withhold income or similar taxes
imposed by the United States (or any political subdivision or
taxing authority thereof or therein) from interest, fees or
other amounts payable hereunder for the account of any Bank
which is not a United States person (as such term is defined
in Section 7701(a)(30) of the Code) for U.S. Federal income
tax purposes to the extent that such Bank has not provided to
the Company U.S. Internal Revenue Service Forms that
establish a complete exemption from such deduction or
withholding and (y) the Company shall not be obligated
pursuant to Section 4.04(a) to gross-up payments to be made
to a Bank in respect of income or similar taxes imposed by
the United States if (I) such Bank has not provided to the
Company the Internal Revenue Service Forms required to be
provided to the Company pursuant to this Section 4.04(b) or
(II) in the case of a payment, other than interest, to a Bank
described in clause (ii) above, to the extent that such Forms
do not establish a complete exemption from withholding of
such taxes. Notwithstanding anything to the contrary con-
tained in the preceding sentence or elsewhere in this Section
4.04 and except as set forth in Section 13.04(b), the Company
agrees to pay additional amounts and to indemnify each Bank
in the manner set forth in Section 4.04(a) (without regard to
the identity of the jurisdiction requiring the deduction or
withholding) in respect of any amounts deducted or withheld
by it as described in the immediately preceding sentence as
a result of any changes after the Effective Date in any
applicable law, treaty, governmental rule, regulation, guide-
line or order, or in the interpretation thereof, relating to
the deducting or withholding of income or similar Taxes.
(c) If a Bank is managed and controlled from or
incorporated under the laws of any jurisdiction other than
the United Kingdom and is required to make Revolving Loans to
a Subsidiary Borrower incorporated in the United Kingdom
through a lending office located outside the United Kingdom
(a "Non-U.K. Bank"), such Non-U.K. Bank agrees to file with
the relevant taxing authority, to the extent that it is
entitled to file, at the expense of such Subsidiary Borrower
within 20 days after the Effective Date, or in the case of a
Non-U.K. Bank that is an assignee or transferee of an
interest under this Agreement pursuant to Section 1.13 or
13.04 in respect of the Total Revolving Loan Commitment
(unless the respective Non-U.K. Bank was already a Non-U.K.
Bank immediately prior to such assignment or transfer), on
the date of such assignment or transfer to such Non-U.K.
Bank, two accurate and complete copies of the form entitled
"Claim on Behalf of a United States Domestic Corporation to
Release from United Kingdom Tax on Interest and Royalties
Arising in the United Kingdom," or its counterpart with
respect to jurisdictions other than the United States, or any
successor form. Such Non-U.K. Bank shall claim in such form
its entitlement to a complete exemption from or reduced rate
of U.K. withholding tax on interest paid by such Subsidiary
Borrower hereunder, and shall file with the relevant taxing
authority any successor forms thereto if any previously filed
form is found to be incomplete or incorrect in any material
respect or upon the obsolescence of any previously delivered
form, provided that the failure to obtain such exemption from
or reduced rate of U.K. withholding tax shall not alter the
obligations of the Borrowers under Section 4.04(a).
Section 5. Conditions Precedent.
5.01 Conditions to Credit Events on the Effective
Date. The occurrence of the Effective Date pursuant to
Section 13.10, and the obligation of each Bank to make Loans,
and the obligation of BTCo to issue Letters of Credit, in
each case on the Effective Date, are subject at the time of
such Credit Event to the satisfaction of the following
conditions:
(a) Execution of Agreement; Notes. (i) This
Agreement shall have been executed and delivered as
provided in Section 13.10 and (ii) there shall have been
delivered to (x) the Agent for the account of each of
the Banks the appropriate Term Note and/or Revolving
Note executed by the respective Borrower and (y) to
BTCo, the Swingline Note executed by the Company, in
each case in the amount, maturity and as otherwise
provided herein.
(b) Opinions of Counsel. On the Effective Date,
the Agent shall have received an opinion, addressed to
the Agent and each of the Banks and dated the Effective
Date, (i) from Robert M. Grace, Jr., Esq., General
Counsel of the Company, covering the matters set forth
in and in the form of Exhibit E and such other matters
incident to the transactions contemplated herein as the
Agent may reasonably request and (ii) from foreign
counsel reasonably satisfactory to the Agent as the
Agent may reasonably request, which opinions shall be in
form and substance reasonably satisfactory to the Agent
and shall cover the obligations of the initial Subsidi-
ary Borrowers hereunder and such other matters incident
to the transactions contemplated herein as the Agent may
reasonably request.
(c) Corporate Documents; Proceedings; Officers'
Certificates. (i) On the Effective Date, the Agent
shall have received from each Borrower a certificate,
dated the Effective Date, signed by the President or any
Vice President of such Borrower, and attested to by the
Secretary or any Assistant Secretary of such Borrower,
substantially in the form of Exhibit F with appropriate
insertions, together with copies of the certificate of
incorporation and by-laws of such Borrower (or any
equivalent charter documents in the case of a Subsidiary
Borrower) and the resolutions of such Borrower referred
to in such certificate, and the foregoing shall be
satisfactory to the Agent.
(ii) All corporate and legal proceedings and all
instruments and agreements in connection with the trans-
actions contemplated by this Agreement and the other
Credit Documents shall be satisfactory in form and sub-
stance to the Agent and the Required Banks, and the
Agent shall have received all information and copies of
all documents and papers, including records of corporate
proceedings and governmental approvals, good standing
certificates and bring-down telegrams, if any, which the
Agent reasonably may have requested in connection there-
with, such documents and papers where appropriate to be
certified by proper corporate or governmental authori-
ties.
(iii) On the Effective Date, the Agent shall have
received a certificate from the President or any Vice
President of the Company dated the Effective Date
stating that all of the applicable conditions set forth
in Sections 5.01(d), (e), (g) and (h) and Section 5.02
have been satisfied as of such date.
(d) Existing Senior Subordinated Note Redemption.
On or prior to the Effective Date, the Company shall
have mailed to the Existing Senior Subordinated Note
Trustee a notice of redemption satisfying the provisions
of the Existing Senior Subordinated Note Indenture
providing that all of the outstanding Existing Senior
Subordinated Notes will become due and payable on a date
which is no later than July 15, 1994 (the "Existing
Senior Subordinated Note Redemption Date") and shall
have given the Existing Senior Subordinated Note Trustee
instructions to deliver such notice of redemption to the
holders of the Existing Senior Subordinated Notes,
provided that the redemption price shall not exceed
104.734% of the principal amount of the Existing Senior
Subordinated Notes being redeemed plus accrued and
unpaid interest on such Existing Senior Subordinated
Notes through the Existing Senior Subordinated Note
Redemption Date. On the Effective Date, there shall
have been delivered to the Agent a true and correct copy
of the notice of redemption delivered to the Existing
Senior Subordinated Note Trustee.
(e) Termination of the Existing Credit Agreement.
On or prior to the Effective Date, the total commitments
under the Existing Credit Agreement shall have been
terminated, all loans thereunder shall have been repaid
in full, together with interest thereon, all letters of
credit issued thereunder shall have been terminated
(other than a letter of credit in an aggregate amount
not to exceed $500,000) and all other amounts owing
pursuant to the Existing Credit Agreement shall have
been repaid in full, and the Existing Credit Agreement
and any security interests and guaranties delivered
pursuant thereto shall have been terminated and be of no
further force or effect (other than those provisions of
the Existing Credit Agreement which relate to the
reimbursement obligations for drawings under the letter
of credit which is to remain outstanding thereunder and
the payment of fees with respect to such letter of
credit, in each case only for so long as such letter of
credit remains outstanding). On the Effective Date, the
Agent shall have received evidence in form, scope and
substance satisfactory to it that the matters set forth
in this Section 5.01(e) have been satisfied as of such
date.
(f) Debt Agreements. On the Effective Date, there
shall have been delivered to the Agent true and correct
copies, certified as true and complete by an authorized
officer of the Company, of all agreements evidencing or
relating to Indebtedness of the Company or any of its
Subsidiaries which is to remain outstanding after giving
effect to the Effective Date if the aggregate principal
amount of the respective Indebtedness exceeds (or upon
the utilization of any unused commitments may exceed)
$1,000,000 (other than in respect of the Existing Senior
Subordinated Notes and up to approximately $4,300,000 of
two lines of credit made available to the Company's
Subsidiary, Instapak Limited) (collectively, the "Debt
Agreements"), all of which Debt Agreements shall be in
form and substance satisfactory to the Agent and the
Required Banks.
(g) Adverse Change, etc. (i) On the Effective
Date, nothing shall have occurred (and the Banks shall
have become aware of no facts, conditions or other
information not previously known) which the Agent or the
Required Banks shall determine has, or could reasonably
be expected to have, a material adverse effect on the
rights or remedies of the Agent or the Banks, or on the
ability of any Borrower to perform its respective
obligations to the Agent and the Banks or which has, or
could reasonably be expected to have, a material adverse
effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or
prospects of the Company or of the Company and its
Subsidiaries taken as a whole.
(ii) On or prior to the Effective Date, all
necessary governmental (domestic and foreign) and third
party approvals in connection with the transactions
contemplated by the Credit Documents and otherwise
referred to herein or therein shall have been obtained
and remain in effect, and all applicable waiting periods
shall have expired without any action being taken by any
competent authority which restrains, prevents or imposes
materially adverse conditions upon the consummation of
the transactions contemplated by the Credit Documents.
Additionally, there shall not exist any judgment, order,
injunction or other restraint issued or filed or a hear-
ing seeking injunctive relief or other restraint pending
or notified prohibiting or imposing materially adverse
conditions upon the consummation of the transactions
contemplated by the Credit Documents.
(h) Litigation. On the Effective Date, no
litigation by any entity (private or governmental) shall
be pending or threatened with respect to this Agreement
or any documentation executed in connection herewith or
therewith, or the transactions contemplated hereby or
thereby, or with respect to any material Indebtedness of
the Company or any of its Subsidiaries which is to
remain outstanding after the Effective Date, or which
the Agent or the Required Banks shall determine could
reasonably be expected to have a materially adverse
effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or
prospects of the Company or of the Company and its
Subsidiaries taken as a whole.
(i) Solvency Certificate. On the Effective Date,
there shall have been delivered to the Agent a
certificate in the form of Exhibit G, addressed to the
Agent and each of the Banks and dated the Effective
Date, from the chief financial officer of the Company,
providing the opinion of such chief financial officer as
to the solvency of the Company (on a stand-alone basis)
and of the Company and its Subsidiaries (taken as a
whole).
(j) Pro Forma Balance Sheet. On or prior to the
Effective Date, the Agent shall have received an unaud-
ited pro forma consolidated balance sheet of the Company
and its Subsidiaries at April 30, 1994 prepared on a
basis consistent with the consolidated balance sheets
referred to in Section 6.05(a) and in accordance with
generally accepted accounting principles except as
specifically set forth in the notes to such balance
sheet, immediately after giving effect to transactions
contemplated hereby, which pro forma consolidated bal-
ance sheet shall be in form and substance satisfactory
to the Agent and the Required Banks.
(k) Fees, etc. On the Effective Date, the Company
shall have paid to the Agent and the Banks all costs,
fees and expenses (including, without limitation, legal
fees and expenses) payable to the Agent and the Banks to
the extent then due.
5.02 Conditions to All Credit Events. The
occurrence of the Effective Date pursuant to Section 13.10,
and the obligation of each Bank to make Loans (including
Loans made on the Effective Date, but excluding Mandatory
Borrowings made thereafter, which shall be made as provided
in Section 1.01(d)), and the obligation of BTCo to issue any
Letter of Credit, is subject, at the time of each such Credit
Event (except as hereinafter indicated), to the satisfaction
of the following conditions:
(a) No Default; Representations and Warranties.
At the time of each such Credit Event and also after
giving effect thereto (i) there shall exist no Default
or Event of Default and (ii) all representations and
warranties contained herein and in the other Credit
Documents shall be true and correct in all material re-
spects with the same effect as though such representa-
tions and warranties had been made on the date of the
making of such Credit Event (it being understood and
agreed that any representation or warranty which by its
terms is made as of a specified date shall be required
to be true and correct in all material respects only as
of such specified date); it being further understood and
agreed, however, that with respect to the incurrence of
Term Loans on the Term Loan Borrowing Date and the
incurrence of Revolving Loans (up to the Revolving Loan
Commitment Redemption Reserve at such time) on the Term
Loan Borrowing Date, the conditions precedent set forth
in this Section 5.02(a) shall be deemed satisfied so
long as (x) no Specified Event of Default then exists,
(y) the representations and warranties set forth in
Sections 6.01, 6.02 and 6.08 are true and correct in all
material respects with the same effect as though such
representations and warranties had been made on the date
of the making of such Credit Event and (z) all of the
proceeds of such Term Loans and Revolving Loans are
deposited on such date with the Existing Senior
Subordinated Note Trustee to effect the Existing Senior
Subordinated Note Redemption.
(b) Notice of Borrowing; Letter of Credit Request.
(i) Prior to the making of each Loan (excluding
Swingline Loans), the Agent shall have received a Notice
of Borrowing meeting the requirements of Section
1.03(a). Prior to the making of each Swingline Loan,
BTCo shall have received the notice required by Section
1.03(b)(i).
(ii) Prior to the issuance of each Letter of
Credit, the Agent and BTCo shall have received a Letter
of Credit Request meeting the requirements of Section
2.03.
(c) Available Commitments. At any time after the
Effective Date and so long as any Existing Senior
Subordinated Notes remain outstanding, at the time of
each Credit Event occurring prior to the consummation of
the Existing Senior Subordinated Note Redemption, (x)
the sum of (i) Total Term Loan Commitment then in
effect, (ii) the net cash proceeds received by the
Company from the issuance of the New Senior Subordinated
Notes and (iii) the Total Unutilized Revolving Loan
Commitment at such time shall equal or exceed the
Redemption Amount at such time and (y) the Total
Unutilized Revolving Loan Commitment shall equal or
exceed the sum of (i) the Revolving Loan Commitment
Redemption Reserve at such time plus (ii) $15,000,000.
The occurrence of the Effective Date and the acceptance of
the benefits of each Credit Event shall constitute a
representation and warranty by the Borrowers that all the
applicable conditions to such Credit Event specified in this
Section 5 have been satisfied or waived as of that time. All
of the Notes, certificates, legal opinions and other docu-
ments and papers referred to in this Section 5, unless other-
wise specified, shall be delivered to the Agent at its Notice
Office for the account of each of the Banks and, except for
the Notes, in sufficient counterparts for each of the Banks
and shall be satisfactory in form and substance to the Agent
and the Banks.
5.03 Subsidiary Borrowers, etc. At any time that
any Subsidiary Borrower first desires to incur Revolving
Loans, such Subsidiary Borrower shall satisfy the following
conditions prior to the incurrence of such Revolving Loans
(to the extent such conditions have not been previously sat-
isfied by such Subsidiary Borrower on the Effective Date
pursuant to Section 5.01):
(i) such Subsidiary Borrower shall have executed
and delivered Revolving Notes satisfying the conditions
of Section 1.05;
(ii) such Subsidiary Borrower shall have executed
and delivered an Election to Become a Subsidiary
Borrower, which shall be in full force and effect;
(iii) to the extent any of the documents, writings,
records, instruments and consents that would have been
required by Section 5.01(c) if such Subsidiary Borrower
had been subject thereto on the Effective Date had not
been heretofore delivered, such items shall have been
delivered to, and shall be satisfactory to, the Agent;
and
(iv) the Agent shall have received an opinion from
counsel (who shall be satisfactory to the Agent) for
such Subsidiary Borrower in form and substance satisfac-
tory to the Agent, addressed to the Agent and each of
the Banks and dated the date of such Credit Event,
covering such matters set forth in the opinions of coun-
sel delivered pursuant to Section 5.01(b) as the Agent
shall specify or other such matters incident to the
Credit Event to be effected at such time as the Agent
may reasonably request.
Section 6. Representations, Warranties and Agree-
ments. In order to induce the Banks to enter into this
Agreement and to make the Loans, and issue (and participate
in) the Letters of Credit as provided herein, each Borrower
makes the following representations, warranties and agree-
ments, in each case after giving effect to the Effective
Date, all of which shall survive the execution and delivery
of this Agreement and the Notes and the making of the Loans
and issuance of the Letters of Credit, with the occurrence of
each Credit Event on or after the Effective Date being deemed
to constitute a representation and warranty that the matters
specified in this Section 6 are true and correct in all
material respects on and as of the Effective Date and on the
date of each such Credit Event (it being understood and
agreed that any representation or warranty which by its terms
is made as of a specified date shall be required to be true
and correct in all material respects only as of such
specified date).
6.01 Corporate Status. Each of the Company and
each of its Subsidiaries (i) is a duly organized and validly
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, (ii) has the power and
authority to own its property and assets and to transact the
business in which it is engaged and presently proposes to
engage and (iii) is duly qualified as a foreign corporation
and in good standing in each jurisdiction where the owner-
ship, leasing or operation of property or the conduct of its
business requires such qualification except where the failure
to be so qualified could not reasonably be expected to have
a material adverse effect on the business, operations, prop-
erty, assets, liabilities, condition (financial or otherwise)
or prospects of the Company or of the Company and its Sub-
sidiaries taken as a whole.
6.02 Corporate Power and Authority. Each Borrower
has the corporate power and authority to execute, deliver and
perform the terms and provisions of each of the Credit Docu-
ments to which it is a party and has taken all necessary cor-
porate action to authorize the execution, delivery and per-
formance by it of each of such Credit Documents. Each Bor-
rower has duly executed and delivered each of the Credit
Documents to which it is a party, and each of such Credit
Documents constitutes its legal, valid and binding obligation
enforceable in accordance with its terms, except to the ex-
tent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights
and by equitable principles (regardless of whether enforce-
ment is sought in equity or at law).
6.03 No Violation. Neither the execution, deliv-
ery or performance by any Borrower of the Credit Documents to
which it is a party, nor compliance by it with the terms and
provisions thereof, (i) will contravene any provision of any
law, statute, rule or regulation or any order, writ, injunc-
tion or decree of any court or governmental instrumentality,
(ii) will conflict or be inconsistent with or result in any
breach of any of the terms, covenants, conditions or provi-
sions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or
impose) any Lien upon any of the property or assets of the
Company or any of its Subsidiaries pursuant to the terms of
any indenture, mortgage, deed of trust, credit agreement,
loan agreement or any other material agreement, contract or
instrument to which the Company or any of its Subsidiaries is
a party or by which it or any of its property or assets are
bound or to which it may be subject or (iii) will violate any
provision of the certificate of incorporation or by-laws of
the Company or any of its Subsidiaries (or the equivalent
charter documents in the case of a Foreign Subsidiary).
6.04 Governmental Approvals. No order, consent,
approval, license, authorization or validation of, or filing,
recording or registration with (except as have been obtained
or made on or prior to the Effective Date and which remain in
full force and effect), or exemption by, any governmental or
public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with, (i)
the execution, delivery and performance of any Credit
Document or (ii) the legality, validity, binding effect or
enforceability of any Credit Document.
6.05 Financial Statements; Financial Condition;
Undisclosed Liabilities, etc. (a) The consolidated state-
ments of financial condition of the Company and its Subsidi-
aries at December 31, 1993 and March 31, 1994, and the re-
lated consolidated statements of income and retained earnings
and cash flows of the Company and its Subsidiaries for the
fiscal year and three-month period ended on such date, as the
case may be, and heretofore furnished to the Banks present
fairly the consolidated financial condition of the Company
and its Subsidiaries at the date of such statements of finan-
cial condition and the consolidated results of the operations
of the Company and its Subsidiaries at the date of such
statements of financial condition and the consolidated re-
sults of the operations of the Company and its Subsidiaries
for such fiscal year or three-month period, as the case may
be. All such financial statements have been prepared in
accordance with generally accepted accounting principles and
practices consistently applied (except as set forth in the
notes to such financial statements). Since December 31,
1993, there has been no material adverse change in the
business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the
Company or of the Company and its Subsidiaries taken as a
whole.
(b) Except as fully reflected in the financial
statements delivered pursuant to Section 6.05(a) and as
specifically noted on Schedule III, there were as of the
Effective Date no liabilities or obligations (excluding
current obligations incurred in the ordinary course of
business) with respect to the Company or any of its
Subsidiaries of any nature whatsoever (whether absolute,
accrued, contingent or otherwise and whether or not due), and
the Company does not know of any basis for the assertion
against the Company or any of its Subsidiaries of any such
liability or obligation which, either individually or in
aggregate, are or would be reasonably likely to be material
to the Company or to the Company and its Subsidiaries taken
as a whole.
(c) On and as of the Effective Date, the financial
projections (the "Projections") previously delivered to the
Agent and the Banks are based on good faith estimates and
assumptions made by the management of the Company and its
Subsidiaries and on the Effective Date, such management
believed that the Projections were reasonable and attainable,
it being recognized by the Banks, however, that projections
as to future events are not to be viewed as facts and that
the actual results during the period or periods covered by
the Projections probably will differ from the projected
results and that the differences may be material.
(d) On and as of the Effective Date, after giving
effect to all Indebtedness (including the Loans and the
Letters of Credit) being incurred, assumed or guaranteed in
connection therewith, (a) the sum of the assets, at a fair
valuation, of the Company (on a stand-alone basis) and the
Company and its Subsidiaries (taken as a whole) will exceed
their debts; (b) the Company (on a stand-alone basis) and the
Company and its Subsidiaries (taken as a whole) have not
incurred and do not intend to, or believe that they will,
incur debts beyond their ability to pay such debts as such
debts mature; and (c) the Company (on a stand-alone basis)
and the Company and its Subsidiaries (taken as a whole) will
have sufficient capital and assets with which to conduct
their businesses. For purposes of this Section 6.05(d)
"debt" means any liability on a claim, and "claim" means (i)
right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable,
secured, or unsecured; or (ii) right to an equitable remedy
for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured or unsecured.
6.06 Litigation. There are no actions, suits or
proceedings pending or, to the best knowledge of any Bor-
rower, threatened (i) with respect to any Credit Document,
(ii) with respect to any material Indebtedness of the Company
or any of its Subsidiaries or (iii) that could reasonably be
expected to materially and adversely affect the business,
operations, property, assets, liabilities, condition (finan-
cial or otherwise) or prospects of the Company or of the
Company and its Subsidiaries taken as a whole.
6.07 True and Complete Disclosure. All factual
information (taken as a whole) heretofore or contemporane-
ously furnished by or on behalf of the Company or any of its
Subsidiaries in writing to any Bank (including, without limi-
tation, all information contained in the Credit Documents but
excluding the Projections and any other forecasts and projec-
tions of financial information and results submitted to any
Bank) for purposes of or in connection with this Agreement,
or any transaction contemplated herein is true and accurate
in all material respects on the date as of which such infor-
mation is dated or certified and not incomplete by omitting
to state any fact necessary to make such information (taken
as a whole) not misleading at such time in light of the
circumstances under which such information was provided.
6.08 Use of Proceeds; Margin Regulations. (a)
All proceeds of Term Loans shall be used by the Company only
to consummate the Existing Senior Subordinated Note
Redemption.
(b) All proceeds of Revolving Loans and Swingline
Loans shall be used by the respective Borrowers (w) to con-
summate the Existing Senior Subordinated Note Redemption, (x)
to repay in full all amounts owing under the Existing Credit
Agreement, (y) to pay the fees and expenses incurred in con-
nection with the transactions contemplated by this Agreement
and (z) for the working capital and general corporate pur-
poses (including acquisitions) of the Company and its
Subsidiaries.
(c) No part of the proceeds of any Loan will be
used by any Borrower or any Subsidiary thereof to purchase or
carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock. Neither
the making of any Loan nor the use of the proceeds thereof
will violate or be inconsistent with the provisions of Regu-
lations G, T, U or X of the Board of Governors of the Federal
Reserve System.
6.09 Tax Returns and Payments. Each of the Com-
pany and each of its Subsidiaries has timely filed or caused
to be timely filed, on the due dates thereof or pursuant to
applicable extensions thereof, with the appropriate taxing
authority, all Federal, state and other material returns,
statements, forms and reports for taxes (the "Returns") re-
quired to be filed by or with respect to the income, prop-
erties or operations of the Company and/or any of its Sub-
sidiaries. The Returns accurately reflect in all material
respects all liability for taxes of the Company and its
Subsidiaries for the periods covered thereby. Each of the
Company and each of its Subsidiaries has paid all material
taxes payable by them other than taxes which are not delin-
quent, and other than those contested in good faith and for
which adequate reserves have been established in accordance
with generally accepted accounting principles. Except as
disclosed in the financial statements referred to in Sec-
tion 6.05(a), there is no material action, suit, proceeding,
investigation, audit, or claim now pending or, to the best
knowledge of any Borrower, threatened by any authority re-
garding any taxes relating to the Company or any of its Sub-
sidiaries.
6.10 Compliance with ERISA. Each Plan is in
substantial compliance with ERISA and the Code; no Reportable
Event has occurred with respect to a Plan; no Plan is insol-
vent or in reorganization; excluding Plans which are
multiemployer plans (as defined in Section 4001(a)(3) of
ERISA) the aggregate Unfunded Current Liability for all Plans
does not exceed $2,000,000, and no Plan has an accumulated or
waived funding deficiency or has applied for an extension of
any amortization period within the meaning of Section 412 of
the Code; all material contributions required to be made with
respect to a Plan have been timely made; neither the Company
nor any Subsidiary of the Company nor any ERISA Affiliate has
incurred any material liability to or on account of a Plan
pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063,
4064, 4069, 4201, 4204 or 4212 of ERISA or Section
401(a)(29), 4971, 4975 or 4980 of the Code or expects to
incur any material liability (including any indirect,
contingent or secondary liability) under any of the foregoing
Sections with respect to any Plan; no proceedings have been
instituted to terminate, or to appoint a trustee to adminis-
ter, any Plan other than pursuant to Section 4041(b) of
ERISA; no condition exists which presents a material risk to
the Company or any Subsidiary of the Company or any ERISA
Affiliate of incurring a material liability to or on account
of a Plan pursuant to the foregoing provisions of ERISA and
the Code; no lien imposed under the Code or ERISA on the
assets of the Company or any Subsidiary of the Company or any
ERISA Affiliate exists or is likely to arise on account of
any Plan; and each of the Company and its Subsidiaries may
cease contributions to or terminate any employee benefit plan
maintained by them which provides benefits to retired
employees or other former employees without incurring any
material liability. All representations made in this Section
6.10 with respect to Plans which are multiemployer plans (as
defined in Section 4001(a)(3) of ERISA) shall be to the best
knowledge of the Company.
6.11 Subsidiaries. Schedule II correctly sets
forth, as of the Effective Date, each Subsidiary of the
Company and the percentage ownership (direct and indirect) of
the Company in each class of capital stock of each of its
Subsidiaries and also identifies the direct owner thereof.
6.12 Compliance with Statutes, etc. Each of the
Company and each of its Subsidiaries is in compliance with
all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of their busi-
nesses and the ownership of their property, except such non-
compliances as could not reasonably be expected to have,
either individually or in the aggregate, a material adverse
effect on the business, operations, property, assets, liabil-
ities, condition (financial or otherwise) or prospects of the
Company or of the Company and its Subsidiaries taken as a
whole.
6.13 Environmental Matters. Except to the extent
that the aggregate effect of all failures and noncompliances
of the types described below in this Section 6.13 could not
reasonably be expected to have a material adverse effect on
the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the
Company or of the Company and its Subsidiaries taken as a
whole:
(a) Each of the Company and each of its
Subsidiaries is in compliance with all applicable Environ-
mental Laws and the requirements of any permits issued under
such Environmental Laws. There are no pending or, to the
best knowledge of any Borrower after due inquiry, threatened
Environmental Claims against the Company or any of its Sub-
sidiaries or any Real Property owned or operated by the
Company or any of its Subsidiaries. There are no facts, cir-
cumstances, conditions or occurrences on any Real Property
owned or operated by the Company or any of its Subsidiaries
that, to the best knowledge of any Borrower after due
inquiry, could reasonably be expected (i) to form the basis
of an Environmental Claim against the Company or any of its
Subsidiaries or any such Real Property, or (ii) to cause any
such Real Property to be subject to any restrictions on the
ownership, occupancy, use or transferability of such Real
Property by the Company or any of its Subsidiaries under any
applicable Environmental Law.
(b) Hazardous Materials have not been generated,
used, treated or stored on, or transported to or from, any
Real Property owned or operated by the Company or any of its
Subsidiaries where such generation, use, treatment or storage
has violated or could reasonably be expected to violate any
Environmental Law. Hazardous Materials have not been
Released on or from any Real Property owned or operated by
the Company or any of its Subsidiaries where such Release has
violated or could reasonably be expected to violate any
applicable Environmental Law.
6.14 Investment Company Act. Neither the Company
nor any of its Subsidiaries is an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
6.15 Public Utility Holding Company Act. Neither
the Company nor any of its Subsidiaries is a "holding com-
pany," or a "subsidiary company" of a "holding company," or
an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
6.16 Patents, Licenses, Franchises and Formulas.
Each of the Company and each of its Subsidiaries owns all the
patents, trademarks, permits, service marks, trade names,
copyrights, licenses, franchises and formulas, or rights with
respect to the foregoing, or each has obtained licenses or
assignments of all other rights of whatever nature necessary
for the present conduct of its businesses, without any known
conflict with the rights of others which, or the failure to
obtain which, as the case may be, could reasonably be ex-
pected to result in a material adverse effect on the busi-
ness, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Company or of
the Company and its Subsidiaries taken as a whole.
6.17 Properties. Each of the Company and each of
its Subsidiaries has good and marketable title to all prop-
erties owned by them, including all property reflected in the
March 31, 1994 consolidated balance sheet of the Company and
its Subsidiaries referred to in Section 6.05(a) (except as
sold or otherwise disposed of since the date of such balance
sheet in the ordinary course of business or since the
Effective Date, in accordance with Section 8.02), free and
clear of all Liens, other than (i) as referred to in such
consolidated balance sheet or in the notes thereto or (ii)
otherwise permitted by Section 8.01.
6.18 Labor Relations. Neither the Company nor any
of its Subsidiaries is engaged in any unfair labor practice
that could reasonably be expected to have a material adverse
effect on the business, operations, property, assets, liabil-
ities, condition (financial or otherwise) or prospects of the
Company or of the Company and its Subsidiaries taken as a
whole. There is (i) no unfair labor practice complaint pend-
ing against the Company or any of its Subsidiaries or, to the
best knowledge of any Borrower, threatened against any of
them, before the National Labor Relations Board, and no
material grievance or arbitration proceeding arising out of
or under any collective bargaining agreement is so pending
against the Company or any of its Subsidiaries or, to the
best knowledge of any Borrower, threatened against any of
them, (ii) no strike, labor dispute, slowdown or stoppage
pending against the Company or any of its Subsidiaries or, to
the best knowledge of any Borrower, threatened against the
Company or any of its Subsidiaries and (iii) to the best
knowledge of any Borrower, no union representation proceeding
is pending with respect to the employees of the Company or
any of its Subsidiaries, except (with respect to any matter
specified in clause (i), (ii) or (iii) above, either indi-
vidually or in the aggregate) such as could not reasonably be
expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (finan-
cial or otherwise) or prospects of the Company or of the
Company and its Subsidiaries taken as a whole.
6.19 Indebtedness. Schedule III sets forth a true
and complete list of all Indebtedness of the Company and its
Subsidiaries as of the Effective Date and which is to remain
outstanding after giving effect thereto (excluding the Loans,
the Letters of Credit and the Existing Senior Subordinated
Notes, all such non-excluded Indebtedness, the "Existing
Indebtedness"), in each case showing the aggregate principal
amount thereof and the name of the respective borrower and
any other entity which directly or indirectly guaranteed such
Indebtedness.
6.20 Subordinated Securities. The subordination
provisions of the Existing Senior Subordinated Notes are, and
upon the issuance of any New Senior Subordinated Notes the
subordination provisions contained therein will be,
enforceable against the respective obligors and holders
thereof, and the Loans and all other monetary obligations
hereunder (including, without limitation, pursuant to the
Company Guaranty) are (and will be, as the case may be)
within the definition of "Senior Indebtedness" included in
such provisions.
Section 7. Affirmative Covenants. Each Borrower
covenants and agrees that on and after the Effective Date and
until the Total Commitment and all Letters of Credit have
terminated, and the Loans, any Unpaid Drawings and the Notes,
together with interest, Fees and all other obligations
incurred hereunder and thereunder, are paid in full:
7.01 Information Covenants. The Company will
furnish to each Bank:
(a) Monthly Reports. Within 30 days after the end
of each fiscal month other than the last such fiscal
month of any fiscal quarter of the Company, the consoli-
dated balance sheet of the Company and its Subsidiaries
as at the end of such fiscal month, the related con-
solidated statement of income for such fiscal month and
the related consolidated statements of income and cash
flows for the elapsed portion of the fiscal year ended
with the last day of such fiscal month, in each case
setting forth comparative figures for the budgeted
figures for such fiscal month as set forth in the
respective budget delivered pursuant to 7.01(d) and,
except with respect to the statements of cash flows,
setting forth comparative figures for the corresponding
fiscal month in the prior fiscal year, together with a
discussion of the results thereof.
(b) Quarterly Financial Statements. Within 45
days after the close of the first three quarterly
accounting periods in each fiscal year of the Company,
the consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarterly accounting
period and the related consolidated statements of income
and cash flows for such quarterly accounting period and
for the elapsed portion of the fiscal year ended with
the last day of such quarterly accounting period, in
each case setting forth comparative figures for the
related periods in the prior fiscal year, all of which
shall be certified by the chief financial officer of the
Company subject to normal year-end audit adjustments.
(c) Annual Financial Statements. Within 90 days
after the close of each fiscal year of the Company, the
consolidated balance sheets of the Company and its
Subsidiaries as at the end of such fiscal year and the
related consolidated statements of income and retained
earnings and cash flows for such fiscal year, in each
case setting forth comparative figures for the preceding
fiscal year and certified by independent certified
public accountants of recognized national standing
acceptable to the Agent, together with a report of such
accounting firm stating that in the course of its regu-
lar audit of the financial statements of the Company,
which audit was conducted in accordance with generally
accepted auditing standards, such accounting firm
obtained no knowledge of any Default or Event of Default
which has occurred and is continuing or, if in the
opinion of such accounting firm such a Default or Event
of Default has occurred and is continuing, a statement
as to the nature thereof.
(d) Budgets. As promptly as same are approved by
the Board of Directors of the Company, but in any event
within 30 days after the first day of each fiscal year
of the Company, a budget in form satisfactory to the
Agent (including, without limitation, a breakdown of the
projected results of each line of business of the Com-
pany and its Subsidiaries, and budgeted statements of
income, and sources and uses of cash and balance sheets
for the Company and its Subsidiaries taken as a whole)
prepared by the Company for the twelve months beginning
on the first day of such fiscal year accompanied by the
statement of the chief financial officer of the Company
to the effect that, to the best of such officer's knowl-
edge, such budget is a reasonable estimate for the
period covered thereby. Within 30 days after the first
day of the third fiscal quarter of the Company, the
chief financial officer of the Company shall deliver
either (i) a certificate to the effect that, to the best
of such officer's knowledge, the budget previously
delivered remains a reasonable estimate for the re-
mainder of the period covered thereby or (ii) a budget
summary for such remaining period covering any signifi-
cant changes to the budget previously delivered.
(e) Officer's Certificates. At the time of the
delivery of the financial statements provided for in
Section 7.01(b) and (c), a certificate of the chief
financial officer of the Company to the effect that to
the best of such officer's knowledge, no Default or
Event of Default has occurred and is continuing, or if
the chief financial officer is unable to make the certi-
fications required herein, such officer shall supply a
statement setting forth the reasons for such inability,
specifying the nature and extent of such reasons. Such
certificate shall also set forth the calculations re-
quired to establish whether the Company was in compli-
ance with the provisions of Sections 8.07 through 8.09,
inclusive, at the end of such fiscal quarter or year, as
the case may be. At the time of the delivery of the
financial statements provided for in Section 7.01(b) and
within 45 days after the end of the fourth quarterly
accounting period in each fiscal year of the Company, a
certificate of the chief financial officer of the
Company setting forth the outstanding Third-Party
Subsidiary Borrowings as of the last Business Day of
such quarterly accounting period and the Dollar
Equivalent of those Third-Party Subsidiary Borrowings
incurred in a currency other than Dollars as of the last
Business Day of such quarterly accounting period.
(f) Notice of Default or Litigation. Promptly,
and in any event within five Business Days (three Busi-
ness Days with respect to an event described in clause
(i) below) after an officer of the Company obtains act-
ual knowledge thereof, notice of (i) the occurrence of
any event which constitutes a Default or an Event of
Default or (ii) any litigation or governmental proceed-
ing pending (x) against the Company or any of its Sub-
sidiaries which could reasonably be expected to materi-
ally and adversely affect the business, operations,
property, assets, liabilities, condition (financial or
otherwise) or prospects of the Company or of the Company
and its Subsidiaries taken as a whole or of any Subsidi-
ary Borrower or (y) with respect to any Credit Document.
(g) Management Letters. Promptly after the Com-
pany's receipt thereof, a copy of any "management let-
ter" received from its certified public accountants and
the management's responses thereto.
(h) Other Reports and Filings. Promptly, copies
of all financial information, proxy materials and other
information and reports, if any, which the Company or
any of its Subsidiaries (x) has filed with the
Securities and Exchange Commission or any governmental
agencies substituted therefor (the "SEC") or any compar-
able agency outside of the United States or (y) has
delivered to holders of, or to any agent or trustee with
respect to, Indebtedness of the Company or any of its
Subsidiaries in their capacity as such a holder, agent
or trustee to the extent that the aggregate principal
amount of such Indebtedness exceeds (or upon the
utilization of any unused commitments may exceed)
$5,000,000.
(i) Environmental Matters. Promptly upon, and in
any event within ten Business Days after an officer of
any Borrower obtains knowledge thereof, notice of one or
more of the following environmental matters, unless such
environmental matters could not, individually or when
aggregated with all other such environmental matters, be
reasonably expected to materially and adversely affect
the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the
Company or of the Company and its Subsidiaries taken as
a whole:
(i) any pending or threatened Environmental
Claim against the Company or any of its Subsidi-
aries or any Real Property owned or operated by
the Company or any of its Subsidiaries;
(ii) any condition or occurrence on or
arising from any Real Property owned or operated
by the Company or any of its Subsidiaries that (a)
results in noncompliance by the Company or any of
its Subsidiaries with any applicable Environmental
Law or (b) could reasonably be expected to form
the basis of an Environmental Claim against the
Company or any of its Subsidiaries or any such
Real Property;
(iii) any condition or occurrence on any Real
Property owned or operated by the Company or any
of its Subsidiaries that could reasonably be
expected to cause such Real Property to be subject
to any restrictions on the ownership, occupancy,
use or transferability by the Company or any of
its Subsidiaries of such Real Property under any
Environmental Law; and
(iv) the taking of any removal or remedial
action in response to the actual or alleged pres-
ence of any Hazardous Material on any Real
Property owned or operated by the Company or any
of its Subsidiaries as required by any Environ-
mental Law or any governmental or other adminis-
trative agency.
All such notices shall describe in reasonable detail the
nature of the claim, investigation, condition, occur-
rence or removal or remedial action and the Company's or
such Subsidiary's response thereto.
(j) Other Information. From time to time, such
other information or documents (financial or otherwise)
as any Bank may reasonably request.
7.02 Books, Records and Inspections. The Company
will, and will cause each of its Subsidiaries to, keep proper
books of record and account in which full, true and correct
entries in conformity with generally accepted accounting
principles and all requirements of applicable law shall be
made of all dealings and transactions in relation to its
business and activities. The Company will, and will cause
each of its Subsidiaries to, permit officers and designated
representatives of the Agent or the Required Banks, upon five
Business Days' notice, to visit and inspect any of the prop-
erties of the Company or such Subsidiary, and to examine the
books of account of the Company or such Subsidiary and dis-
cuss the affairs, finances and accounts of the Company or
such Subsidiary with, and be advised as to the same by, its
and their officers and independent accountants, all at such
reasonable times and intervals and to such reasonable extent
as the Agent or the Required Banks may request.
7.03 Maintenance of Property, Insurance. The
Company will, and will cause each of its Subsidiaries to, (i)
keep all property useful and necessary in its business in
good working order and condition, (ii) maintain with finan-
cially sound and reputable insurance companies insurance
which provides substantially the same (or greater) coverage
and against at least such risks as is in accordance with
industry practice and (iii) furnish to each Bank, upon
written request, full information as to the insurance
carried.
7.04 Corporate Franchises. The Company will, and
will cause each of its Subsidiaries to, do or cause to be
done, all things necessary to preserve and keep in full force
and effect its existence and its material rights, franchises,
licenses and patents; provided, however, that nothing in this
Section 7.04 shall prevent (i) sales of assets by the Company
or any of its Subsidiaries in accordance with Section 8.02,
(ii) the dissolution or liquidation of any Subsidiary of the
Company (other than a Subsidiary Borrower) or the merger or
consolidation between or among the Subsidiaries of the
Company, in each case in accordance with Section 8.02 or
(iii) the withdrawal by the Company or any of its
Subsidiaries of its qualification to do business as a foreign
corporation in any jurisdiction where such withdrawal could
not reasonably be expected to have a material adverse effect
on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the
Company or of the Company and its Subsidiaries taken as a
whole.
7.05 Compliance with Statutes, etc. The Company
will, and will cause each of its Subsidiaries to, comply with
all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its busi-
ness and the ownership of its property (including, without
limitation, all Environmental Laws applicable to the
ownership or use of Real Property now or hereafter owned or
operated by the Company or any of its Subsidiaries), except
such noncompliances as could not, individually or in the
aggregate, reasonably be expected to have a material adverse
effect on the business, operations, property, assets, liabil-
ities, condition (financial or otherwise) or prospects of the
Company or of the Company and its Subsidiaries taken as a
whole.
7.06 ERISA. As soon as possible and, in any
event, within 10 days after the Company or any Subsidiary of
the Company or any ERISA Affiliate knows or has reason to
know of the occurrence of any of the following, the Company
will deliver to each of the Banks a certificate of the chief
financial officer of the Company setting forth details as to
such occurrence and the action, if any, that the Company,
such Subsidiary or such ERISA Affiliate is required or pro-
poses to take, together with any notices required or proposed
to be given to or filed with or by the Company, the Subsidi-
ary, the ERISA Affiliate, the PBGC, a Plan participant or the
Plan administrator with respect thereto: that a Reportable
Event has occurred, that an accumulated funding deficiency
has been incurred or an application may be or has been made
to the Secretary of the Treasury for a waiver or modification
of the minimum funding standard (including any required in-
stallment payments) or an extension of any amortization
period under Section 412 of the Code with respect to a Plan;
that a contribution required to be made to a Plan has not
been timely made; that a Plan has been or may be terminated,
reorganized, partitioned or declared insolvent under Title IV
of ERISA; that a Plan has an Unfunded Current Liability
giving rise to a lien under ERISA or the Code; that
proceedings may be or have been instituted to terminate or
appoint a trustee to administer a Plan pursuant to which the
Company, a Subsidiary of the Company or an ERISA Affiliate
will be required to contribute amounts in excess of
$2,000,000 in the aggregate in any fiscal year of the Company
in order to effect such termination; that a proceeding has
been instituted pursuant to Section 515 of ERISA to collect
a delinquent contribution to a Plan; that the Company, any
Subsidiary of the Company or any ERISA Affiliate will or may
incur any material liability (including any indirect,
contingent or secondary liability) to or on account of the
termination of or withdrawal from a Plan under Section 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect
to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the
Code or Section 409, 502(i) or 502(l) of ERISA; or that the
Company or any Subsidiary of the Company has or may incur any
material liability pursuant to any employee welfare benefit
plan (as defined in Section 3(1) of ERISA) that provides
benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or any
employee pension benefit plan (as defined in Section 3(2) of
ERISA). At the request of any Bank, the Company will deliver
to such Bank a complete copy of the annual report (Form 5500)
of each Plan required to be filed with the Internal Revenue
Service. In addition to any certificates or notices deliv-
ered to the Banks pursuant to the first sentence hereof,
copies of annual reports and any material notices received by
the Company or any Subsidiary of the Company or any ERISA
Affiliate with respect to any Plan shall be delivered to the
Banks no later than 10 days after the date such report has
been filed with the Internal Revenue Service or such notice
has been received by the Company, the Subsidiary or the ERISA
Affiliate, as applicable.
7.07 Performance of Obligations. The Company
will, and will cause each of its Subsidiaries to, perform all
of its obligations under the terms of each mortgage, inden-
ture, security agreement and other agreement by which it is
bound, except such non-performances as could not, individu-
ally or in the aggregate, reasonably be expected to have a
material adverse effect on the business, operations, prop-
erty, assets, liabilities, condition (financial or otherwise)
or prospects of the Company or of the Company and its
Subsidiaries taken as a whole.
7.08 Payment of Taxes. The Company will, and will
cause each of its Subsidiaries to, pay and discharge, all
taxes, assessments and governmental charges or levies imposed
upon it or upon its income or profits, or upon any properties
belonging to it, prior to the date on which any penalties
attach thereto, and all lawful claims for sums that have
become due and payable which, if unpaid, might become a lien
or charge upon any properties of the Company or any such
Subsidiary; provided that neither the Company nor any such
Subsidiary shall be required to pay any such tax, assessment,
charge, levy or claim which is being contested in good faith
and by proper proceedings if it has maintained adequate
reserves with respect thereto in accordance with generally
accepted accounting principles.
7.09 Existing Senior Subordinated Note Redemption.
The Company (x) on the Business Day prior to the Existing
Senior Subordinated Note Redemption Date, shall have
delivered to the Existing Senior Subordinated Note Trustee
sufficient funds (to be held by the Existing Senior Subordin-
ated Note Trustee in trust as trust funds for the holders of
the Existing Senior Subordinated Notes in accordance with the
terms of the Existing Senior Subordinated Note Indenture) to
pay and discharge the entire indebtedness on all of the
Existing Senior Subordinated Notes outstanding on the Exist-
ing Senior Subordinated Note Redemption Date, including prin-
cipal and premium thereon, and accrued and unpaid interest to
the Existing Senior Subordinated Note Redemption Date, and
all other amounts owing pursuant to the Existing Senior Sub-
ordinated Note Indenture and (y) shall have taken all other
actions required by the terms of the Existing Senior Sub-
ordinated Note Indenture to be taken in order to satisfy and
discharge such Existing Senior Subordinated Note Indenture on
the Existing Senior Subordinated Note Redemption Date (all
such actions referred to in this Section 7.09, together with
all actions taken pursuant to Section 5.01(d), collectively,
the "Existing Senior Subordinated Note Redemption"). The
Agent shall have received evidence in form, scope and
substance satisfactory to it that the matters set forth in
this Section 7.09 have been satisfied at such time.
Section 8. Negative Covenants. Each Borrower
covenants and agrees that on and after the Effective Date and
until the Total Commitment and all Letters of Credit have
terminated, and the Loans, any Unpaid Drawings and the Notes,
together with interest, Fees and all other obligations
incurred hereunder and thereunder, are paid in full:
8.01 Liens. The Company will not, and will not
permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Lien upon or with respect to any property
or assets (real or personal, tangible or intangible) of the
Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets sub-
ject to an understanding or agreement, contingent or other-
wise, to repurchase such property or assets (including sales
of accounts receivable with recourse to the Company or any of
its Subsidiaries), or assign any right to receive income or
permit the filing of any financing statement under the UCC or
any other similar notice of Lien under any similar recording
or notice statute; provided that the provisions of this
Section 8.01 shall not prevent the creation, incurrence,
assumption or existence of the following (the Liens described
below, the "Permitted Liens"):
(i) inchoate Liens for taxes, governmental
assessments, charges or levies in the nature of taxes
not yet due and payable, or Liens for taxes, govern-
mental assessments, charges or levies in the nature of
taxes being contested in good faith and by appropriate
proceedings for which adequate reserves (in the good
faith judgment of the management of the Company) have
been established;
(ii) Liens in respect of property or assets of the
Company or any of its Subsidiaries imposed by law, which
were incurred in the ordinary course of business and do
not secure Indebtedness for borrowed money, such as
carriers', warehousemen's, materialmen's, repairmen's
and mechanics' liens and other similar Liens arising in
the ordinary course of business, including, without
limitation, Liens in respect of litigation claims made
or filed against the Company or any of its Subsidiaries
in the ordinary course of business, and (x) which do not
in the aggregate materially detract from the value of
such property or assets or materially impair the use
thereof in the operation of the business of the Company
and its Subsidiaries or (y) which are being contested in
good faith by appropriate proceedings, which proceedings
have the effect of preventing the forfeiture or sale of
the property or assets subject to any such Lien;
(iii) Liens in existence on the Effective Date which
are listed, and the property subject thereto described,
in Schedule IV, plus any renewals, extensions, refinan-
cings or refundings of such Liens, provided that (x) the
aggregate principal amount of the Indebtedness, if any,
secured by such Liens does not increase from that amount
outstanding at the time of any such renewal, extension,
refinancing or refunding and (y) any such renewal,
extension, refinancing or refunding does not encumber
any additional assets or properties of the Company or
any of its Subsidiaries;
(iv) Permitted Encumbrances;
(v) utility deposits and pledges or deposits in
connection with worker's compensation, unemployment
insurance and other social security legislation;
(vi) Liens securing Indebtedness in the amount per-
mitted by Section 8.04(vi) upon (i) any property or
assets acquired (whether by purchase, merger or other-
wise) after the Effective Date (and not theretofore
owned by the Company or any of its Subsidiaries) or (ii)
any improvements made on any property or assets now
owned or hereafter acquired by the Company or any of its
Subsidiaries and securing the purchase price thereof or
created or incurred simultaneously with, or within 180
days after, such acquisition or the making of such
improvements or existing at the time of such acquisition
(whether or not assumed), so long as (x) such Lien shall
be limited to the property or assets so acquired or the
improvements so made, (y) the amount of the obligations
or Indebtedness secured by such Liens shall not be
increased after the date that the Lien attaches to such
property or assets or the making of such improvements,
except to the extent improvements are made to such
property or assets after the date of the acquisition or
the making of the initial improvements, and (z) in each
instance where the obligation or Indebtedness secured by
such Lien constitutes an obligation or Indebtedness of,
or is assumed by, the Company or any of its
Subsidiaries, the principal amount of the obligation or
Indebtedness secured by such Lien shall not exceed 100%
of the cost or fair value (which may be determined in
good faith by the Board of Directors of the Company),
whichever is lower, of the property or assets or
improvements at the time of the acquisition or making
thereof;
(vii) Liens arising under capitalized leases to the
extent permitted by Section 8.04(vi), provided that (x)
such Liens only serve to secure the payment of Indebted-
ness arising under such capitalized leases and (y) the
Lien encumbering the asset giving rise to the capitali-
zed lease does not encumber any other asset of the
Company or any of its Subsidiaries;
(viii) Liens arising from precautionary UCC financing
statement filings regarding operating leases;
(ix) statutory and common law landlord's liens
under leases to which the Company or any of its
Subsidiaries is a party;
(x) Liens arising under any Permitted Receivables
Financing, provided that the aggregate face amount of
all uncollected receivables at any time sold or the sub-
ject of the Permitted Receivables Financings shall at no
time exceed $20,000,000 and, provided further, that the
Liens permitted by this clause (x) shall extend only to
the receivables sold or financed from time to time
within the limits of this clause (x); and
(xi) Liens on assets of Foreign Subsidiaries (other
than a Subsidiary Borrower) existing prior to the
acquisition of such assets by such Foreign Subsidiary,
or prior to the acquisition of the stock of the Foreign
Subsidiary which owns such assets, in each case pursuant
to a Permitted Acquisition, provided that (x) such Liens
were not created in contemplation of such acquisition
and (y) all such Liens do not secure Indebtedness in an
aggregate principal amount greater than $25,000,000 (or
the Dollar Equivalent thereof in the case of
Indebtedness in a currency other than Dollars) at any
time outstanding.
8.02 Consolidation, Merger, Sale of Assets, etc.
The Company will not, and will not permit any of its Subsidi-
aries to, wind up, liquidate or dissolve its affairs or enter
into any transaction of merger or consolidation, or convey,
sell, lease or otherwise dispose of (or agree to do any of
the foregoing at any future time) all or any part of its
property or assets, or enter into any partnerships, joint
ventures or sale-leaseback transactions, or purchase or
otherwise acquire (in one or a series of related transac-
tions) any part of the property or assets (other than pur-
chases or other acquisitions of inventory, materials and
equipment in the ordinary course of business) of any Person,
except that:
(i) the Company and its Subsidiaries may sell and
lease inventory, materials and equipment in the ordinary
course of business;
(ii) Capital Expenditures shall be permitted to the
extent not in violation of Section 8.07;
(iii) the Company and its Subsidiaries may sell or
otherwise dispose of any assets which, in the reasonable
judgment of such Person, have become uneconomic,
obsolete or worn out;
(iv) the Company and its Subsidiaries may, in con-
nection with their business activities in Japan, sell
promissory notes issued to them in payment of trade pay-
ables arising in the ordinary course of business, so
long as the sale of such promissory notes is also in the
ordinary course of business of the Company and its
Subsidiaries;
(v) subject to the limits set forth in Section
8.01(x), Foreign Subsidiaries of the Company may sell
receivables from time to time pursuant to the Permitted
Receivables Financings;
(vi) investments may be made to the extent permit-
ted by Section 8.05;
(vii) Permitted Acquisitions shall be permitted;
(viii) Permitted Sale-Leaseback Transactions shall be
permitted;
(ix) the Company and its Subsidiaries may dissolve
or liquidate any Subsidiary of the Company or of such
Subsidiary (other than a Subsidiary Borrower) so long as
all of the assets of such dissolved or liquidated
Subsidiary are concurrently transferred to the Company
or a direct or indirect Wholly-Owned Subsidiary of the
Company (other than Sealed Air S.A.);
(x) any Wholly-Owned Subsidiary of the Company may
be merged or consolidated with or into any other Wholly-
Owned Subsidiary of the Company (in each case other than
Sealed Air S.A.) so long as in the case of any such
merger or consolidation involving a Subsidiary Borrower,
the Subsidiary Borrower is the surviving corporation of
such merger or consolidation;
(xi) in addition to the sales and other disposit-
ions permitted under clauses (i), (iii), (iv), (v) and
(viii) of this Section 8.02, the Company and its
Subsidiaries may sell or otherwise dispose of other
assets, provided that (x) such sales are at fair market
value (as determined in good faith by the management of
the Company) and (y) the aggregate proceeds for all such
sales effected on or after the Effective Date do not
exceed $10,000,000; and
(xii) with the prior written consent of the Required
Banks, any other assets may be sold or transferred.
8.03 Restricted Payments. The Company will not
authorize, declare, pay or make, or permit any of its Sub-
sidiaries to authorize, declare, pay or make, any Restricted
Payments, except that (i) any Subsidiary of the Company may
make Distributions to the Company or any Wholly-Owned Sub-
sidiary of the Company, (ii) any non-Wholly-Owned Subsidiary
of the Company may pay cash Distributions on a pro rata basis
to its shareholders generally, (iii) so long as no Default or
Event of Default then exists or would result therefrom, the
Company may repurchase capital stock from time to time from
its and its Subsidiaries' employees pursuant to stock option
and stock purchase plans, provided that the aggregate amount
of Distributions made pursuant to this clause (iii) shall not
exceed $1,000,000 in any fiscal year of the Company, (iv) so
long as no Specified Event of Default then exists, the Com-
pany may consummate the Existing Senior Subordinated Note
Redemption and (v) so long as no Default or Event of Default
then exists or would result therefrom, the Company may make
additional Restricted Payments so long as the aggregate
amount of such Restricted Payments made on or after the
Effective Date, when added to all Restricted Payments there-
tofore made pursuant to this clause (v), would not exceed an
amount equal to the sum of (1) $25,000,000 plus (2) 33-1/3%
of Cumulative Consolidated Net Income (it being understood
that if Cumulative Consolidated Net Income for any period is
less than zero, then minus 100% of the amount of such loss),
provided that in no event shall the aggregate amount of
Restricted Payments made pursuant to this clause (v) for the
period from and including the Effective Date to and including
December 31, 1994 exceed $25,000,000.
8.04 Indebtedness. The Company will not, and will
not permit any of its Subsidiaries to, contract, create,
incur, assume or suffer to exist any Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agree-
ment and the other Credit Documents;
(ii) prior to the Existing Senior Subordinated Note
Redemption Date, Indebtedness of the Company evidenced
by the Existing Senior Subordinated Notes in an
aggregate principal amount not to exceed $170,000,000;
(iii) unsecured subordinated Indebtedness of the
Company so long as (x) all of the terms and conditions
of such Indebtedness (including, without limitation,
interest rates, amortization schedules, maturities,
covenants, defaults, remedies, subordination provisions,
redemption provisions and all other terms) are
satisfactory to the Required Banks (the "New Senior
Subordinated Notes"), (y) the net cash proceeds received
by the Company from the issuance of the New Senior
Subordinated Notes, to the extent received (i) prior to
the Term Loan Borrowing Date, are deposited with the
Agent pursuant to a cash collateral arrangement satis-
factory to the Agent to be held therein for the purpose
of consummating the Existing Senior Subordinated Note
Redemption and (ii) after the Term Loan Borrowing Date,
are applied to the extent required by Section 4.02(c)
and (z) no Event of Default exists both before and after
giving effect to the incurrence thereof and the applica-
tion of the proceeds therefrom;
(iv) Existing Indebtedness to the extent that same
is listed on Schedule III, plus any refinancings,
extensions, refundings or renewals thereof, provided
that any such refinancings, extensions, refundings and
renewals shall not exceed the principal amount of such
Existing Indebtedness outstanding at the time of the
refinancing, extension, refunding or renewal thereof;
(v) accrued expenses incurred in the ordinary
course of business;
(vi) Indebtedness arising under capitalized leases
and Indebtedness secured by Liens permitted pursuant to
Section 8.01(vi), provided that the aggregate principal
amount of Indebtedness permitted to be incurred under
this clause (vi) shall not exceed (x) $15,000,000 in any
fiscal year of the Company and (y) $50,000,000 at any
time outstanding;
(vii) Indebtedness of any Subsidiary of the Company
under lines of credit extended by third parties to such
Subsidiary which conducts substantially all of its
business outside of the United States the proceeds of
which Indebtedness are used for such Subsidiary's
working capital and general corporate purposes, provided
that the aggregate principal amount of all such
Indebtedness incurred pursuant to this clause (vii)
shall not exceed $30,000,000 (or the Dollar Equivalent
thereof in the case of Indebtedness incurred in a
currency other than Dollars) at any time outstanding
(the "Third-Party Subsidiary Borrowings");
(viii) Indebtedness under Interest Rate Protection
Agreements relating to Indebtedness otherwise permitted
under this Section 8.04;
(ix) Indebtedness under Other Hedging Agreements
(x) providing protection against fluctuations in
currency or commodity prices in connection with (A) the
Company's or any of its Subsidiaries' operations or (B)
the purchase or sale of goods or services or (y)
providing market value protection for acquisitions by
the Company of its common stock to the extent permitted
by Section 8.03, in each case so long as management of
the Company or such Subsidiary, as the case may be, has
determined that the entering into of such Other Hedging
Agreements are bona fide hedging activities;
(x) Indebtedness of Foreign Subsidiaries arising
in connection with Permitted Receivables Financings so
long as the aggregate principal amount of such Indebted-
ness shall not exceed $20,000,000 at any time outstand-
ing;
(xi) intercompany Indebtedness among the Company
and its Subsidiaries to the extent permitted by Section
8.05(iv);
(xii) Indebtedness consisting of, without duplica-
tion, letters of credit incurred other than under this
Agreement and reimbursement obligations with respect
thereto, provided that the aggregate amount thereof at
any time outstanding shall not exceed $5,000,000; and
(xiii) additional Indebtedness not otherwise
permitted under this Section 8.04 so long as the
aggregate principal amount thereof does not exceed
$30,000,000 at any time outstanding, which Indebtedness
may, to the extent provided in Section 8.01(xi), be
secured.
8.05 Advances, Investments and Loans. The Company
will not, and will not permit any of its Subsidiaries to,
directly or indirectly, lend money or credit or make advances
to any Person, or purchase or acquire any stock, obligations
or securities of, or any other interest in, or make any capi-
tal contribution to, any other Person, or purchase or own a
futures contract or otherwise become liable for the purchase
or sale of currency or other commodities at a future date in
the nature of a futures contract, or hold any cash or Cash
Equivalents, except that the following shall be permitted:
(i) the Company and its Subsidiaries may acquire
and hold receivables owing to it, if created or acquired
in the ordinary course of business and payable or dis-
chargeable in accordance with customary trade terms;
(ii) the Company and its Subsidiaries may acquire
and hold cash and Cash Equivalents;
(iii) the Company and its Subsidiaries may, in con-
nection with their business activities in Japan, acquire
and hold promissory notes issued to them in payment of
trade payables arising in the ordinary course of busi-
ness, so long as the holding of such promissory notes is
also in the ordinary course of business of the Company
and such Subsidiaries;
(iv) the Company may make intercompany loans and
advances to its Wholly-Owned Subsidiaries, and any
Subsidiary of the Company may make intercompany loans
and advances to the Company, to the Subsidiaries of such
Subsidiary or to any Wholly-Owned Subsidiary of the
Company (i) for working capital purposes in the ordinary
course of business, (ii) to consolidate cash management
activities of the Company and its Subsidiaries in the
ordinary course of business, or (iii) to provide for
advance payment of dividends anticipated to be paid or
declared by Wholly-Owned Subsidiaries to the Company,
provided that (x) if the obligor on any such
intercompany loans or advances is a Borrower, the
repayment obligations of such obligor on such
intercompany loans or advances shall be subordinated to
the fullest extent permitted by applicable law to the
payment in full in cash of all Obligations of such
Borrower to the Agent and the Banks hereunder and under
the other Credit Documents and (y) the aggregate
principal amount of intercompany loans outstanding at
any one time to Sealed Air S.A. shall not exceed
$5,000,000 (determined without regard to any write-downs
or write-offs thereof);
(v) the Company may hold and acquire the stock of
Subsidiaries in connection with Permitted Acquisitions
structured as stock acquisitions or as otherwise
permitted under this Agreement;
(vi) the Company may make payments pursuant to its
Contingent Stock Plan; and
(vii) in addition to investments permitted by
clauses (i) through (vi) of this Section 8.05, the
Company and its Subsidiaries make additional loans,
advances, contributions and investments in an aggregate
principal amount not to exceed $30,000,000 at any time
outstanding (determined without regard to any write-
downs or write-offs thereof).
8.06 Transactions with Affiliates. The Company
will not, and will not permit any of its Subsidiaries to,
enter into any transaction or series of related transactions,
whether or not in the ordinary course of business, with any
Affiliate of the Company or any of its Subsidiaries, other
than on terms and conditions substantially as favorable to
the Company or such Subsidiary as would be obtainable by the
Company or such Subsidiary at the time in a comparable arm's-
length transaction with a Person other than an Affiliate,
except that (i) loans and advances may be incurred and made
to the extent permitted by Sections 8.04 and 8.05 and (ii)
the Company and its Subsidiaries may effect intercompany
transactions and transfers of goods and services in the
ordinary course of business and in conformity with the
business practices in effect on the Effective Date and as
otherwise permitted pursuant to Section 8.02.
8.07 Capital Expenditures. (a) The Company will
not, and will not permit any of its Subsidiaries to, make any
expenditure for fixed or capital assets (including, without
limitation, expenditures for maintenance and repairs which
should be capitalized in accordance with generally accepted
accounting principles and capitalized lease obligations)
(collectively, "Capital Expenditures"), except that during
any fiscal year of the Company, the Company and its
Subsidiaries may make Capital Expenditures so long as the
aggregate amount thereof does not exceed $35,000,000.
Notwithstanding anything to the contrary contained
above in this Section 8.07(a), to the extent that the amount
of Capital Expenditures actually made in any fiscal year of
the Company are less than the sum of (i) the amount permitted
to be made during such fiscal year plus (ii) any amount
permitted to be carried over from a previous fiscal year in
accordance with the operation of this sentence, the amount
equal to the lesser of (x) such deficiency and (y)
$35,000,000 may be carried forward and used to make Capital
Expenditures in the immediately succeeding fiscal year of the
Company.
(b) Notwithstanding anything to the contrary con-
tained in clause (a) of this Section 8.07 and in addition to
the Capital Expenditures permitted to be made pursuant to
such clause (a), the Company and its Subsidiaries may make
additional Capital Expenditures to effect Permitted
Acquisitions.
8.08 Interest Coverage Ratio. The Company will
not permit the Interest Coverage Ratio for any Test Period
ending on the last day of any fiscal quarter of the Company
to be less than 3.50:1.00.
8.09 Leverage Ratio The Company will not permit
the Leverage Ratio at any time to be more than 3.00:1.00.
8.10 Limitation on Modifications of Indebtedness;
Modifications of Certificate of Incorporation; By-Laws and
Certain Other Agreements; etc. The Company will not, and
will not permit any of its Subsidiaries to, (i) amend or
modify, or permit the amendment or modification of, any
provision of any agreement (including, without limitation,
any purchase agreement, indenture, loan agreement or security
agreement) relating to the Existing Senior Subordinated Notes
or the New Senior Subordinated Notes, (ii) amend, modify or
change its certificate of incorporation or by-laws (includ-
ing, without limitation, by the filing or modification of any
certificate of designation) (or any equivalent charter
documents in the case of a Foreign Subsidiary), or any
agreement entered into by it, with respect to its capital
stock, or enter into any new agreement with respect to its
capital stock (except changes which in each case are not
reasonably likely to adversely affect the Banks) or (iii)
amend, modify or change any, or enter into any new, Employee
Benefit Plan (other than welfare benefit plans), except to
the extent such action is not reasonably likely to adversely
affect the Banks.
8.11 Limitation on Restrictions on Subsidiary Div-
idends and Other Distributions. The Company will not, and it
will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the
ability of any Subsidiary of the Company to (a) pay dividends
or make any other distributions on its capital stock or any
other interest or participation in its profits, owned by the
Company or any Subsidiary of the Company, or pay or repay any
Indebtedness owed to the Company or any Subsidiary of the
Company, (b) make loans or advances to the Company or any
Subsidiary of the Company or (c) transfer any of its
properties or assets to the Company or any Subsidiary of the
Company, except for such encumbrances or restrictions
existing under or by reason of (i) applicable law, (ii) this
Agreement, (iii) to the extent restricting the disposition of
any property serving as security therefor, any agreements
relating to Indebtedness permitted pursuant to Section
8.04(vi), (iv) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of the
Company or any of its Subsidiaries, (v) customary
restrictions on dispositions of real property interests found
in reciprocal easement agreements of the Company or any of
its Subsidiaries and (vi) restrictions on the ability of a
Subsidiary of the Company which has incurred Third-Party
Subsidiary Borrowings to make Distributions to the extent
that such restrictions (x) are only set forth in the
documentation governing the Third-Party Subsidiary Borrowings
incurred by such Subsidiary and (y) only prohibit such
Subsidiary from making Distributions in the event that its
net worth has fallen below such Subsidiary's net worth at the
time of the incurrence of the respective Third-Party
Subsidiary Borrowing.
8.12 Limitation on Issuances of Capital Stock by
Subsidiaries. The Company will not permit any of its Sub-
sidiaries to issue any capital stock (including by way of
sales of treasury stock) or any options or warrants to pur-
chase, or securities convertible into, capital stock, except
for (i) transfers and replacements of then outstanding shares
of capital stock, (ii) stock splits, stock dividends and
similar issuances which do not decrease the percentage
ownership of the Company or any of its Subsidiaries in any
class of the capital stock of such Subsidiary, (iii) other
issuances of capital stock to the parent corporation of such
Subsidiary or to the Company or a Wholly-Owned Subsidiary of
the Company which do not decrease the percentage ownership of
the Company and/or its Wholly-Owned Subsidiaries in such
Subsidiary and (iv) to qualify directors to the extent
required by applicable law.
8.13 Business. The Company will not, and will not
permit any of its Subsidiaries to, engage (directly or indi-
rectly) in any business other than the business in which it
is engaged on the Effective Date, plus reasonable extensions
and expansions thereof.
Section 9. Events of Default. Upon the occurrence
of any of the following specified events (each an "Event of
Default"):
9.01 Payments. Any Borrower shall (i) default in
the payment when due of any payment of principal of its Loans
or Notes or (ii) default, and such default shall continue
unremedied for at least two Business Days, of any payment of
interest on its Loans or Notes, of any Unpaid Drawing or any
Fees or any other amounts owing by it hereunder or
thereunder; or
9.02 Representations, etc. Any representation,
warranty or statement made by any Borrower herein or in any
other Credit Document or in any certificate delivered
pursuant hereto or thereto shall prove to be untrue in any
material respect, or any other factual information (taken as
a whole) furnished on behalf of the Company or any of its
Subsidiaries in writing to any Bank shall prove to be untrue
in any material respect on the date as of which made or
deemed made; or
9.03 Covenants. Any Borrower shall (i) default in
the due performance or observance by it of any term, covenant
or agreement contained in Sections 7.01(f)(i) (if constitut-
ing failure to give notice of an Event of Default) and/or 8
or (ii) default in the due performance or observance by it of
any term, covenant or agreement (other than those referred to
in Sections 9.01 and 9.02 and clause (i) of this Section
9.03) contained in this Agreement and such default shall
continue unremedied for a period of 30 days after written
notice to the Company by the Agent or the Required Banks; or
9.04 Default Under Other Agreements. (i) The
Company or any of its Subsidiaries shall (x) default in any
payment of any Indebtedness (other than the Notes) beyond the
period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created or (y)
default in the observance or performance of any agreement or
condition relating to any Indebtedness (other than the Notes)
or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur
or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf
of such holder or holders) to cause (determined without
regard to whether any notice is required), any such
Indebtedness to become due prior to its stated maturity or
(ii) any Indebtedness of the Company or any of its
Subsidiaries shall be declared to be due and payable, or
required to be prepaid other than by a regularly scheduled or
other mandatory required prepayment, prior to the stated
maturity thereof, provided that it shall not constitute an
Event of Default pursuant to this Section 9.04 unless the
aggregate amount of all Indebtedness referred to in clauses
(i) and (ii) above exceeds $5,000,000 at any one time; or
9.05 Bankruptcy, etc. The Company or any of its
Subsidiaries shall commence a voluntary case concerning
itself under Title 11 of the United States Code entitled
"Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is
commenced against the Company or any of its Subsidiaries, and
the petition is not controverted within 10 days, or is not
dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed
for, or takes charge of, all or substantially all of the
property of the Company or any of its Subsidiaries, or the
Company or any of its Subsidiaries commences any other pro-
ceeding under any reorganization, arrangement, adjustment of
debt, relief of debtors, dissolution, insolvency or liquida-
tion or similar law of any jurisdiction whether now or here-
after in effect relating to the Company or any of its Subsid-
iaries, or there is commenced against the Company or any of
its Subsidiaries any such proceeding which remains
undismissed for a period of 60 days, or the Company or any of
its Subsidiaries is adjudicated insolvent or bankrupt; or any
order of relief or other order approving any such case or
proceeding is entered; or the Company or any of its Subsidi-
aries suffers any appointment of any custodian or the like
for it or any substantial part of its property to continue
undischarged or unstayed for a period of 60 days; or the
Company or any of its Subsidiaries makes a general assignment
for the benefit of creditors; or any corporate action is
taken by the Company or any of its Subsidiaries for the
purpose of effecting any of the foregoing; or
9.06 ERISA. (a) Any Plan shall fail to satisfy
the minimum funding standard required for any plan year or
part thereof or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of
the Code, any Plan shall have had or is likely to have a
trustee appointed to administer such Plan, any Plan is, shall
have been or is likely to be terminated or to be the subject
of termination proceedings under ERISA, any Plan shall have
an Unfunded Current Liability, a contribution required to be
made to a Plan has not been timely made, the Company or any
Subsidiary of the Company or any ERISA Affiliate has incurred
or is likely to incur a liability to or on account of a Plan
under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29),
4971, 4975 or 4980 of the Code, or the Company or any
Subsidiary of the Company has incurred or is likely to incur
liabilities pursuant to one or more employee welfare benefit
plans (as defined in Section 3(l) of ERISA) that provide
benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or employee
pension benefit plans (as defined in Section 3(2) of ERISA);
(b) there shall result from any such event or events the
imposition of a lien, the granting of a security interest, or
a liability or a material risk of incurring a liability; and
(c) which lien, security interest or liability, in the
opinion of the Required Banks, could reasonably be expected
to have a material adverse effect on the business,
operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Company or of
the Company and its Subsidiaries taken as a whole; or
9.07 Judgments. One or more judgments or decrees
shall be entered against the Company or any of its
Subsidiaries involving in the aggregate for the Company and
its Subsidiaries a liability (not paid or fully covered by
insurance) of $5,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged or stayed or
bonded pending appeal within 30 days from the entry thereof;
or
9.08 Company Guaranty. The Company Guaranty or
any provision thereof shall cease to be in full force or
effect, or the Company or any Person acting by or on behalf
of the Company shall deny or disaffirm the Company's obliga-
tions under the Company Guaranty, or the Company shall
default in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed
pursuant to the Company Guaranty; or
9.09 Change in Control. A Change of Control shall
occur;
then, and in any such event, and at any time thereafter, if
any Event of Default shall then be continuing, the Agent
shall upon the written request of the Required Banks, by
written notice to the Company, take any or all of the follow-
ing actions, without prejudice to the rights of the Agent,
any Bank or the holder of any Note to enforce its claims
against any Borrower (provided, that, if an Event of Default
specified in Section 9.05 shall occur with respect to any
Borrower, the result which would occur upon the giving of
written notice by the Agent to the Company as specified in
clauses (i), (ii) and (v) below shall occur automatically
without the giving of any such notice): (i) declare the
Total Commitment terminated, whereupon the Commitments of
each Bank shall forthwith terminate immediately and any
Commitment Commission and Fees shall forthwith become due and
payable without any other notice of any kind; (ii) declare
the principal of and any accrued interest in respect of all
Loans and the Notes and all obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith
due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the
Borrowers; (iii) terminate any Letter of Credit which may be
terminated in accordance with its terms; (iv) direct the
Company to pay (and the Company agrees that upon receipt of
such notice, or upon the occurrence of an Event of Default
specified in Section 9.05 in respect of the Company, it will
pay) to the Agent at its Payment Office such additional
amounts of cash, to be held as security for the Company's
reimbursement obligations for Drawings that may subsequently
occur under outstanding Letters of Credit thereunder, equal
to the aggregate Stated Amount of all Letters of Credit
issued and then outstanding; and (v) apply any cash
collateral as provided in Section 4.02(a).
Section 10. Definitions and Accounting Terms.
10.01 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):
"Acquired Entities" shall have the meaning provided
in the definition of Permitted Acquisitions.
"Adjusted Certificate of Deposit Rate" shall mean,
on any day, the sum (rounded to the nearest 1/100 of 1%) of
(1) the rate obtained by dividing (x) the most recent weekly
average dealer offering rate for negotiable certificates of
deposit with a three-month maturity in the secondary market
as published in the most recent Federal Reserve System pub-
lication entitled "Select Interest Rates," published weekly
on Form H.15 as of the date hereof, or if such publication or
a substitute containing the foregoing rate information shall
not be published by the Federal Reserve System for any week,
the weekly average offering rate determined by the Agent on
the basis of quotations for such certificates received by it
from three certificate of deposit dealers in New York of
recognized standing or, if such quotations are unavailable,
then on the basis of other sources reasonably selected by the
Agent, by (y) a percentage equal to 100% minus the stated
maximum rate of all reserve requirements as specified in
Regulation D applicable on such day to a three-month certi-
ficate of deposit of a member bank of the Federal Reserve
System in excess of $100,000 (including, without limitation,
any marginal, emergency, supplemental, special or other re-
serves), plus (2) the then daily net annual assessment rate
as estimated by the Agent for determining the current annual
assessment payable by the Agent to the Federal Deposit
Insurance Corporation for insuring three-month certificates
of deposit.
"Affiliate" shall mean, with respect to any Person,
any other Person (i) directly or indirectly controlling
(including, but not limited to, all directors and officers of
such Person), controlled by, or under direct or indirect
common control with, such Person or (ii) that directly or
indirectly owns more than 5% of the voting securities of such
Person. A Person shall be deemed to control a corporation if
such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies
of, such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" shall mean BTCo, in its capacity as Agent
for the Banks hereunder, and shall include any successor to
the Agent appointed pursuant to Section 11.09.
"Agreement" shall mean this Credit Agreement, as
modified, supplemented, amended, restated, extended, renewed
or replaced from time to time.
"Applicable Credit Rating" at any time shall mean
(i) the Moody's Credit Rating at such time and the S&P Credit
Rating at such time, if such Credit Ratings are the same or
(ii) if the Moody's Credit Rating and the S&P Credit Rating
differ by one level (it being understood that a rating level
shall include numerical modifiers and (+) and (-) modifiers),
the Applicable Credit Rating shall be the lower of the two
Credit Ratings or (iii) if the Moody's Credit Rating and the
S&P Credit Rating differ by more than one level, the
Applicable Credit Rating shall the Credit Rating that is one
level higher than the lower of the two Credit Ratings. If
any Credit Rating shall be changed by Moody's or S&P, such
change shall be effective for purposes of this definition as
of the Business Day following such change. Any change in the
Applicable Credit Rating shall apply during the period
beginning on the effective date of such change and ending on
the date immediately preceding the effective date of the next
such change.
"Applicable Margin" shall mean, for any day, the
rate per annum set forth below opposite the Applicable Rating
Period then in effect as set forth in either Table A or Table
B below, it being understood that (i) so long as the Total
Term Loan Commitment is in effect and/or any Term Loans are
outstanding, the Applicable Margin shall be based on the
margins set forth in Table B below and at all other times
shall be based on the margins set forth in Table A below,
(ii) the Applicable Margin for (x) Base Rate Loans shall be
the percentage set forth under the column "Base Rate Margin",
(y) CD Rate Loans shall be the percentage set forth under the
column "CD Rate Margin" and (z) Eurodollar Rate Loans shall
be the percentage set forth under the column "Eurodollar Rate
Margin" and (iii) the Applicable Margin shall be based on the
Applicable Rating Period designated as a "Category C Period"
until such time as either (A) there exists a Moody's Credit
Rating and a S&P Credit Rating or (B) the Leverage Ratio for
the first Test Period ended after the Effective Date shall be
determined as provided in the definition of "Applicable
Rating Period", at which time the Applicable Margin shall be
determined as provided below:
Table A
Eurodollar
Applicable Rating Base Rate CD Rate Rate
Period Margin Margin Margin
Category A Period 0% .5% .375%
Category B Period 0% .625% .5%
Category C Period 0% .75% .625%
Category D Period 0% 1% .875%
Category E Period 0% 1.125% 1%
Table B
Eurodollar
Applicable Rating Base Rate CD Rate Rate
Period Margin Margin Margin
Category A Period 0% .75% .625%
Category B Period 0% .875% .75%
Category C Period 0% 1% .875%
Category D Period .125% 1.25% 1.125%
Category E Period .25% 1.375% 1.25%
Notwithstanding anything to the contrary contained
in either Table A or Table B above or in clause (iii) set
forth above in this definition, at any time that a Default or
an Event of Default exists, the Applicable Margin shall be
the margin set forth opposite the respective Applicable
Rating Period designated as the "Category E Period".
"Applicable Rating Period" shall mean, subject to
the terms and conditions set forth below, the period set
forth below then in effect:
Applicable Rating Period Criteria
Category A Period Either (i) the Applicable
Credit Rating is BBB or
higher (to the extent
based on a S&P Credit
Rating) and Baa2 or
higher (to the extent
based on a Moody's Credit
Rating) or (ii) the
Leverage Ratio for the
Test Period ended
immediately prior to the
first day of the
respective Calculation
Period as set forth in
the financial statements
delivered pursuant to
Section 7.01(b) or (c) is
less than or equal to
1.00:1.00.
Category B Period Either (i) the Applicable
Credit Rating is BBB- (to
the extent based on a S&P
Credit Rating) and Baa3
(to the extent based on a
Moody's Credit Rating) or
(ii) the Leverage Ratio
for the Test Period ended
immediately prior to the
first day of the
respective Calculation
Period as set forth in
the financial statements
delivered pursuant to
Section 7.01(b) or (c) is
greater than 1.00:1.00,
but less than or equal to
1.75:1.00, and in either
case a Category A Period
is not then in effect.
Category C Period Either (i) the Applicable
Credit Rating is BB+ (to
the extent based on a S&P
Credit Rating) and Ba1
(to the extent based on a
Moody's Credit Rating) or
(ii) the Leverage Ratio
for the Test Period ended
immediately prior to the
first day of the
respective Calculation
Period as set forth in
the financial statements
delivered pursuant to
Section 7.01(b) or (c) is
greater than 1.75:1.00,
but less than or equal to
2.25:1.00, and in either
case neither a Category A
Period nor a Category B
Period is then in effect.
Category D Period Either (i) the Applicable
Credit Rating is BB (to
the extent based on a S&P
Credit Rating) and Ba2 to
the extent based on a
Moody's Credit Rating) or
(ii) the Leverage Ratio
for the Test Period ended
immediately prior to the
first day of the
respective Calculation
Period as set forth in
the financial statements
delivered pursuant to
Section 7.01(b) or (c) is
greater than 2.25:1.00,
but less than or equal to
2.75:1.00, and in either
case neither a Category A
Period, Category B Period
nor a Category C Period
is in effect.
Category E Period Either (i) the Applicable
Credit Rating is BB- or
lower (to the extent
based on a S&P Credit
Rating) and Ba3 or lower
(to the extent based on a
Moody's Credit Rating) or
(ii) the Leverage Ratio
for the Test Period ended
immediately prior to the
first day of the
respective Calculation
Period as set forth in
the financial statements
delivered pursuant to
Section 7.01(b) or (c) is
greater than 2.75:1.00,
and in either case
neither a Category A
Period, Category B
Period, Category C Period
nor Category D Period is
then in effect.
Notwithstanding anything to the contrary contained
herein, in the event that only one Credit Rating exists at any
time or if no Credit Rating exists at any time or if no Credit
Rating exists, then the Applicable Rating Period shall be based
on the Leverage Ratio for the Test Period ended immediately prior
to the first day of the respective Calculation Period.
"Assignment and Assumption Agreement" shall mean
the Assignment and Assumption Agreement substantially in the
form of Exhibit I (appropriately completed).
"Bank" shall mean each financial institution listed
in Schedule I, as well as any Person which becomes a "Bank"
hereunder pursuant to Section 13.04.
"Bank Default" shall mean (i) the refusal (which
has not been retracted) of a Bank to make available its
portion of any Borrowing (including any Mandatory Borrowing)
or to fund its portion of any unreimbursed payment under
Section 2.04(c) or (ii) a Bank having notified in writing the
Company and/or the Agent that it does not intend to comply
with its obligations under Section 1.01(b) or 1.01(d) or
Section 2, in the case of either clause (i) or (ii) as a
result of any takeover of such Bank by any regulatory
authority or agency.
"Bankruptcy Code" shall have the meaning provided
in Section 9.05.
"Base Rate" at any time shall mean the higher of
(x) the rate which is 1/2 of 1% in excess of the Adjusted
Certificate of Deposit Rate and (y) the Prime Lending Rate as
in effect from time to time.
"Base Rate Loans" shall mean any Loan designated as
such by the respective Borrower at the time of the incurrence
thereof or conversion thereto, and in any event shall at all
times include all Swingline Loans.
"Borrower" shall have the meaning provided in the
first paragraph of this Agreement.
"Borrowing" shall mean the borrowing of one Type of
Loan of a single Tranche from all the Banks having Commit-
ments of the respective Tranche (or from BTCo in the case of
Swingline Loans) on a given date (or resulting from a conver-
sion or conversions on such date) having in the case of Fixed
Rate Loans the same Interest Period, provided that Base Rate
Loans incurred pursuant to Section 1.10(b) shall be con-
sidered part of the related Borrowing of Fixed Rate Loans.
"BTCo" shall mean Bankers Trust Company in its
individual capacity.
"Business Day" shall mean (i) for all purposes
other than as covered by clause (ii) below, any day except
Saturday, Sunday and any day which shall be in New York City
a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to
close and (ii) with respect to all notices and determinations
in connection with, and payments of principal and interest
on, Eurodollar Rate Loans, any day which is a Business Day
described in clause (i) above and which is also a day for
trading by and between banks in the New York interbank
Eurodollar market.
"Calculation Period" shall mean each period which
shall commence on a date on which the respective financial
statements are delivered pursuant to Section 7.01(b) or (c)
and which shall end on the earlier of (i) the date of actual
delivery of the next financial statements pursuant to Section
7.01(b) or (c) and (ii) the latest date on which the next
financial statements are required to be delivered pursuant to
Section 7.01(b) or (c).
"Capital Expenditures" shall have the meaning pro-
vided in Section 8.07.
"Cash Equivalents" shall mean, as to any Person,
(i) securities issued or directly and fully guaranteed or
insured by the United States or any agency or instrumentality
thereof (provided that the full faith and credit of the
United States is pledged in support thereof), (ii) time
deposits and certificates of deposit of (a) any Bank or any
commercial bank incorporated in the United States or any
State thereof or the District of Columbia of recognized
standing having capital and surplus in excess of $100,000,000
or (b) any commercial bank of recognized standing having
capital and surplus in excess of the local currency
equivalent of $100,000,000 incorporated in a country where
the Company has one or more locally operating Subsidiaries,
and that is, as of the date hereof, providing banking
services to the Company or any of its Subsidiaries, (iii)
repurchase obligations for underlying securities of the types
described in clause (i) above, provided that there shall be
no restriction on the maturities of such underlying
securities pursuant to this clause (iii) entered into with a
bank meeting the qualifications specified in clause (ii)
above, (iv) commercial paper issued by the parent corporation
of any commercial bank (provided that the parent corporation
and the bank are both incorporated in the United States) of
recognized standing having capital and surplus in excess of
$500,000,000 and commercial paper issued by any Person
incorporated in the United States rated at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent
thereof by Moody's, (v) bankers acceptances and current
accounts maintained at (a) any bank meeting the
qualifications specified in clause (ii) above, (vi) municipal
bonds issued by municipalities located in the United States
rated at least AA or the equivalent thereof by S&P or Aa2 or
the equivalent thereof by Moody's, (vii) money market
preferred stock and variable rate demand notes, each rated
AAA or the equivalent thereof by S&P or Aaa or the equivalent
thereof by Moody's, and (viii) investments in money market
funds substantially all of whose assets are comprised of
securities of the types described in clauses (i) through
(vii) above. Each Cash Equivalent referred to above shall
mature not more than two years after the date of its
acquisition by the Company or any of its Subsidiaries,
provided that in no case shall the weighted average maturity
of all Cash Equivalents at any time held by the Company and
its Subsidiaries taken as a whole exceed six months.
"CD Rate" shall mean with respect to each Interest
Period for a Borrowing of a CD Rate Loan the sum (rounded
upward, where necessary, to the nearest 1/16 of 1%) of (A)
the rate obtained by dividing (x) the Certificate of Deposit
Rate for such Interest Period by (y) a percentage equal to
100% minus the stated maximum rate of all reserve require-
ments as specified in Regulation D (including, without limi-
tation, any marginal, emergency, supplemental, special or
other reserves) that would be applicable on the first day of
such Interest Period to a negotiable certificate of deposit
in excess of $100,000 and with a maturity equal to such
Interest Period of any member bank of the Federal Reserve
System, plus (B) the then daily net annual assessment payable
by the Agent to the Federal Deposit Insurance Corporation for
insuring such certificates of deposit rounded upward, where
necessary, to the nearest 1/100 of 1%.
"CD Rate Loan" shall mean each Loan (excluding
Swingline Loans) designated as such by the respective
Borrower at the time of incurrence thereof or conversion
thereto.
"Certificate of Deposit Rate" shall mean the
arithmetic average of the consensus bid rate determined by
the Agent for the bid rates per annum, at 10:00 A.M.
(New York time) on the first day of the Interest Period for
which such Certificate of Deposit Rate is to be applicable of
two or more New York certificate of deposit dealers of
recognized standing selected by the Agent for the purchase at
face value from the Agent in New York of certificates of
deposit in an aggregate amount approximately comparable to
the CD Rate Loan of the Agent for which such Certificate of
Deposit Rate is to be applicable and with a maturity equal to
such Interest Period.
"Change of Control" shall mean (i) any "Person" or
"group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act), excluding an employee benefit or stock
ownership plan of the Company, is or shall become the
"beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5
under the Exchange Act), directly or indirectly, of 50% or
more on a fully diluted basis of the voting and economic
interests of the Company or shall have the right to elect a
majority of the directors of the Company or (ii) the Board of
Directors of the Company shall cease to consist of a majority
of Continuing Directors.
"Code" shall mean the Internal Revenue Code of
1986, as amended from time to time and the regulations
promulgated and rulings issued thereunder. Section
references to the Code are to the Code, as in effect at the
date of this Agreement, and to any subsequent provisions of
the Code amendatory thereof, supplemental thereto or
substituted therefor.
"Commitment" of any Bank shall mean its Term Loan
Commitment and its Revolving Commitment.
"Commitment Commission" shall mean and include the
Term Loan Commitment Commission and the Revolving Loan
Commitment Commission.
"Company" shall have the meaning provided in the
first paragraph of this Agreement.
"Company Guaranty" shall mean the Guaranty of the
Company set forth in Section 12.
"Consolidated Debt" shall mean, at any time, all
Indebtedness of the Company and its Subsidiaries determined
on a consolidated basis.
"Consolidated Interest Expense" for any period
shall mean total interest expense (including amounts properly
attributable to interest with respect to capital leases in
accordance with generally accepted accounting principles and
amortization of debt discount and debt issuance costs) of the
Company and its Subsidiaries on a consolidated basis for such
period, provided that there shall be excluded from the
calculation of the total interest expense for such period the
non-cash interest expense associated with the amortization or
write-off of the fees and expenses relating to the original
incurrence of the Existing Senior Subordinated Notes.
"Consolidated Net Income" shall mean, for any
period, the consolidated net income (or loss) of the Company
and its Subsidiaries for such period.
"Contingent Obligation" shall mean, as to any
Person, any obligation of such Person guaranteeing any
Indebtedness, leases, dividends or other obligations ("pri-
mary obligations") of any other Person (the "primary obli-
gor") in any manner, whether directly or indirectly, includ-
ing, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (x) for
the purchase or payment of any such primary obligation or (y)
to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of
the primary obligor, (iii) to purchase property, securities
or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof; provided,
however, that the term Contingent Obligation shall not in-
clude endorsements of instruments for deposit or collection
in the ordinary course of business. The amount of any Con-
tingent Obligation shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation
in respect of which such Contingent Obligation is made or, if
not stated or determinable, the maximum reasonably antici-
pated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person
in good faith.
"Continuing Directors" shall mean the directors of
the Company on the Effective Date and each other director, if
such director's nomination for election to the Board of
Directors of the Company is recommended by a majority of the
then Continuing Directors.
"Credit Documents" shall mean this Agreement, and
once executed and delivered pursuant to the terms of this
Agreement, each Note, each Letter of Credit Request, each
Notice of Borrowing, each Notice of Conversion and each Let-
ter of Credit.
"Credit Event" shall mean (i) the occurrence of the
Effective Date and (ii) the making of any Loan or the
issuance of any Letter of Credit.
"Creditors" shall mean and include the Agent, each
Bank and each Other Creditor.
"Credit Rating" shall mean the Moody's Credit
Rating or the S&P Credit Rating.
"Cumulative Consolidated Net Income" shall mean, at
any time for any determination thereof, the Consolidated Net
Income for the period (taken as one accounting period)
commencing on January 1, 1994 and ending on the last day of
the then most recently ended fiscal quarter of the Company.
"Debt Agreements" shall have the meaning provided
in Section 5.01(f).
"Default" shall mean any event, act or condition
which with notice or lapse of time, or both, would constitute
an Event of Default.
"Distribution" with respect to any Person shall
mean that such Person has declared or paid any dividend or
returned any capital to, its stockholders or authorized or
made any other distribution, payment or delivery of property
(other than common stock of the Company) or cash to its
stockholders as such, or redeemed, retired, purchased, or
otherwise acquired, directly or indirectly, for considera-
tion, any shares of any class of its capital stock outstand-
ing on or after the Effective Date (or any options or
warrants issued by such Person with respect to its capital
stock), or set aside any funds for any of the foregoing
purposes, or shall have permitted any of its Subsidiaries to
purchase or otherwise acquire for a consideration any shares
of any class of the capital stock of such Person outstanding
on or after the Effective Date (or any options or warrants
issued by such Person with respect to its capital stock).
Without limiting the foregoing, "Distributions" with respect
to any Person shall also include all payments made or
required to be made by such Person with respect to any stock
appreciation rights plans, equity incentive or achievement
plans or any similar plans or the setting aside of any funds
for the foregoing purposes.
"Dollar Equivalent" shall mean, at any time of
determination thereof, the amount of Dollars which could be
purchased with the amount of currency involved in such
computation at the spot exchange rate therefor as published
in the New York edition of The Wall Street Journal on the
date one Business Day subsequent to the date of any
determination thereof, provided that if the New York edition
of The Wall Street Journal is not published on such date,
reference shall be made to such rate as set forth in most
recently published New York edition of The Wall Street
Journal, and provided further, that if at any time the
New York edition of The Wall Street Journal ceases to publish
such exchange rates, the Dollar Equivalent shall be the
amount of Dollars which could be purchased with the amount of
currency involved in such computation at the spot rate
therefor as quoted by the Agent at approximately 11:00 a.m.
(London time) on the date two Business Days prior to the date
of any determination thereof for purchase on such date, it
being understood and agreed that for purposes of determining
compliance with Sections 1.01(b), 1.01(c), 2.01(c), 4.02(a),
8.01 and 8.04 the Dollar Equivalent of any Third-Party
Subsidiary Borrowings or any such other Indebtedness incurred
in a currency other than Dollars shall be the Dollar
Equivalent thereof as in effect on the last Business Day of
the then most recently ended fiscal month of the Company and
such Dollar Equivalent shall remain in effect until same is
recalculated as of the last Business Day of the immediately
succeeding fiscal month.
"Dollars" and the sign "$" shall each mean freely
transferable lawful money of the United States (expressed in
dollars).
"Drawing" shall have the meaning provided in Sec-
tion 2.05(b).
"EBIT" shall mean, for any period, the Consolidated
Net Income of the Company and its Subsidiaries, before inter-
est expense and provision for income taxes and without giving
effect to any extraordinary gains and gains from sales of
assets (other than sales of inventory in the ordinary course
of business; provided that the gains resulting from aggregate
gross proceeds of all sales of up to $1,000,000 of assets in
the ordinary course of business (other than any such sale of
assets the value of which individually exceeds $500,000) in
the fiscal year in which such period occurs shall be con-
sidered gains from sales of assets for the purposes of the
foregoing calculation only to the extent such gains exceed
losses relating to such sales), for such period.
"EBITDA" for any period shall mean EBIT, adjusted
by (i) adding thereto the amount of (a) all amortization of
goodwill and other intangibles and, in respect of any period
occurring in 1994, fees relating to the transactions
contemplated hereby paid during such period, not exceeding
$5,000,000 in the aggregate for all such periods, (b)
depreciation, (c) all non-cash contributions or accruals to
or with respect to deferred profit sharing plans, (d) all
non-cash contributions and accruals to and/or with respect to
deferred compensation plans and (e) the call premium and
related costs (including deferred financing costs) associated
with the Existing Senior Subordinated Note Redemption, in
each case to the extent deducted in arriving at EBIT for such
period, and (ii) subtracting therefrom the amount of all non-
cash gains that were added in arriving at EBIT for such
period other than such gains arising from sales of inventory
in the ordinary course of business.
"Effective Date" shall have the meaning provided in
Section 13.10.
"Election to Become a Subsidiary Borrower" shall
mean an Election to Become a Subsidiary Borrower in the form
of Exhibit J, which shall be executed by each Subsidiary
Borrower in accordance with Section 5.03.
"Eligible Transferee" shall mean and include a com-
mercial bank, financial institution or other "accredited
investor" (as defined in Regulation D of the Securities Act).
"Employee Benefit Plans" shall mean all profit
sharing plans, deferred compensation plans, employee benefit
plans, or any other similar plans or arrangements for the
benefit of employees of the Company or any of its
Subsidiaries.
"Environmental Claims" shall mean any and all
administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of non-com-
pliance or violation, investigations or proceedings relating
in any way to any violation (or alleged violation) by the
Company or any of its Subsidiaries under any Environmental
Law (hereafter "Claims") or any permit issued under any such
law, including, without limitation, (a) any and all Claims by
governmental or regulatory authorities for enforcement,
cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or
arising from alleged injury or threat of injury to health,
safety or the environment.
"Environmental Law" shall mean any federal, state
or local statute, law, rule, regulation, ordinance, code,
policy or rule of common law now or hereafter in effect and
in each case as amended, and any judicial or administrative
interpretation thereof, including any judicial or administra-
tive order, consent, decree or judgment, relating to the
environment, health, safety or Hazardous Materials.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time and the
regulations promulgated and rulings issued thereunder.
Section references to ERISA are to ERISA, as in effect at the
date of this Agreement and any subsequent provisions of
ERISA, amendatory thereof, supplemental thereto or
substituted therefor.
"ERISA Affiliate" shall mean each person (as
defined in Section 3(9) of ERISA) which together with the
Company or any of its Subsidiaries would be deemed to be a
"single employer" (i) within the meaning of Section 414(b),
(c), (m) and (o) of the Code or (ii) as a result of the
Company or any of its Subsidiaries being or having been a
general partner of such person.
"Eurodollar Rate" shall mean (a) the offered quota-
tion to first-class banks in the New York interbank Euro-
dollar market by BTCo for Dollar deposits of amounts in
immediately available funds comparable to the outstanding
principal amount of the Eurodollar Rate Loan of BTCo with
maturities comparable to the Interest Period applicable to
such Eurodollar Rate Loan commencing two Business Days there-
after as of 10:00 A.M. (New York time) on the date which is
two Business Days prior to the commencement of such Interest
Period, divided (and rounded off to the nearest 1/16 of 1%)
by (b) a percentage equal to 100% minus the then stated
maximum rate of all reserve requirements (including, without
limitation, any marginal, emergency, supplemental, special or
other reserves required by applicable law) applicable to any
member bank of the Federal Reserve System in respect of
Eurocurrency funding or liabilities as defined in Regula-
tion D (or any successor category of liabilities under Regu-
lation D).
"Eurodollar Rate Loan" shall mean any Loan desig-
nated as such by the respective Borrower at the time of the
incurrence thereof or conversion thereto.
"Event of Default" shall have the meaning provided
in Section 9.
"Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
"Existing Credit Agreement" shall mean the Credit
Agreement, dated as of March 10, 1994, between the Company
and United Jersey Bank.
"Existing Indebtedness" shall have the meaning
provided in Section 6.19.
"Existing Senior Subordinated Note Indenture" shall
mean the Indenture, dated as of July 1, 1989, between the
Company and the Existing Senior Subordinated Note Trustee.
"Existing Senior Subordinated Note Redemption"
shall have the meaning provided in Section 7.09.
"Existing Senior Subordinated Note Redemption Date"
shall have the meaning provided in Section 5.01(d).
"Existing Senior Subordinated Notes" shall mean the
Company's outstanding 12 % Senior Subordinated Notes due 1999
which were issued pursuant to the Existing Senior
Subordinated Note Indenture.
"Existing Senior Subordinated Note Trustee" shall
mean The First National Bank of Boston.
"Facing Fee" shall have the meaning provided in
Section 3.01(d).
"Fair Market Value" shall mean, when determining
the fair market value of any common stock of the Company, the
value thereof based on the publicly quoted prices of the
Company's common stock on the NYSE for the respective time
period set forth in the acquisition agreement to which such
Permitted Acquisition relates, or in the absence of such a
time period, the average of such publicly quoted prices for
the five Business Days preceding the 30th day prior to the
date of the consummation of such Permitted Acquisition, in
either case so long as such common stock is publicly traded
on the NYSE or if any such common stock is not so publicly
traded on the NYSE, the fair market value thereof shall mean
the fair market value as determined in good faith by the
Board of Directors of the Company or any duly authorized
committee of the Board of Directors of the Company as of the
date of such determination.
"Federal Funds Rate" shall mean for any period, a
fluctuating interest rate (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 which is a Business Day, the average of
the quotations for such day on such transactions received by
the Agent from three Federal Funds brokers of recognized
standing selected by the Agent.
"Fees" shall mean all amounts payable pursuant to
or referred to in Section 3.01.
"Final Maturity Date" shall mean June 30, 1999.
"Fixed Rate Loan" shall mean any CD Rate Loan and
any Eurodollar Rate Loan.
"Foreign Subsidiary" shall mean each Subsidiary of
the Company not incorporated under the laws of the United
States or of any State thereof.
"Guaranteed Obligations" shall mean (i) the full
and prompt payment when due (whether at the stated maturity,
by acceleration or otherwise) of the principal and interest
on each Note issued by, and Loan made to, any Subsidiary
Borrower under this Agreement, together with all the other
obligations and liabilities (including, without limitation,
indemnities, fees and interest thereon) of each Subsidiary
Borrower to the Agent and the Banks now existing or hereafter
incurred under, arising out of or in connection with this
Agreement or any other Credit Document to which such
Subsidiary Borrower is a party and the due performance and
compliance with all the terms, conditions and agreements
contained in such Credit Documents by such Subsidiary
Borrower and (ii) the full and prompt payment when due
(whether by acceleration or otherwise) of all obligations of
any Subsidiary Borrower owing under any Interest Rate
Protection Agreement or Other Hedging Agreement entered into
with any Other Creditor, whether now in existence or
hereafter arising, and the due performance and compliance by
such Subsidiary Borrower with all of the terms, conditions
and agreements contained therein.
"Hazardous Materials" shall mean (a) any petro-
chemical or petroleum products, radioactive materials, asbes-
tos in any form that is or could become friable, urea formal-
dehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated
biphenyls, and radon gas; and (b) any chemicals, materials or
substances defined as or included in the definition of
"hazardous substances," "hazardous wastes," "hazardous mate-
rials," "restricted hazardous materials," "extremely hazard-
ous wastes," "restrictive hazardous wastes," "toxic substan-
ces," "toxic pollutants," "contaminants" or "pollutants," or
words of similar meaning and regulatory effect under any
applicable Environmental Law.
"Indebtedness" shall mean, as to any Person, with-
out duplication, (i) all indebtedness (including principal,
interest, fees and charges) of such Person for borrowed money
or for the deferred purchase price of property or services,
but excluding current trade accounts payable incurred in the
ordinary course of business, (ii) the maximum amount
available to be drawn under all letters of credit issued for
the account of such Person and all unpaid drawings in respect
of such letters of credit, (iii) all Indebtedness of the
types described in clause (i), (ii), (iv), (v), (vi) or (vii)
of this definition secured by any Lien on any property owned
by such Person, whether or not such Indebtedness has been
assumed by such Person, (iv) the aggregate amount required to
be capitalized under leases under which such Person is the
lessee, (v) all obligations of such person to pay a specified
purchase price for goods or services, whether or not
delivered or accepted, i.e., take-or-pay and similar
obligations, (vi) all Contingent Obligations of such Person
and (vii) all obligations under any Interest Rate Protection
Agreement or Other Hedging Agreement.
"Interest Coverage Ratio" for any period shall mean
the ratio of EBITDA to Consolidated Interest Expense for such
period.
"Interest Determination Date" shall mean, (i) with
respect to any Eurodollar Rate Loan, the second Business Day
prior to the commencement of any Interest Period relating to
such Eurodollar Rate Loan and (ii) with respect to any CD
Rate Loan, the first day of any Interest Period relating to
such CD Rate Loan.
"Interest Period" shall have the meaning provided
in Section 1.09.
"Interest Rate Protection Agreement" shall mean any
interest rate swap agreement, interest rate cap agreement,
interest collar agreement, interest rate hedging agreement or
other similar agreement or arrangement.
"L/C Supportable Indebtedness" shall mean (i) obli-
gations of the Company or any of its Subsidiaries incurred in
the ordinary course of business with respect to insurance
obligations and workers' compensation, surety bonds and other
similar statutory obligations, (ii) all Third-Party
Subsidiary Borrowings and (iii) such other obligations of the
Company or any of its Subsidiaries as are reasonably
acceptable to BTCo and otherwise permitted to exist pursuant
to the terms of this Agreement.
"Letter of Credit" shall have the meaning provided
in Section 2.01(a).
"Letter of Credit Fee" shall have the meaning pro-
vided in Section 3.01(c).
"Letter of Credit Outstandings" shall mean, at any
time, the sum of (i) the aggregate Stated Amount of all
outstanding Letters of Credit and (ii) the aggregate amount
of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning
provided in Section 2.03(a).
"Leverage Ratio" shall mean, at any time, the ratio
of Consolidated Debt at such time to EBITDA for the Test
Period last ended.
"Lien" shall mean any mortgage, pledge, hypotheca-
tion, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional
sale or other title retention agreement and any lease having
substantially the same effect as any of the foregoing and any
assignment or deposit arrangement in the nature of a security
device).
"Loan" shall mean any Term Loan, Revolving Loan or
Swingline Loan.
"Mandatory Borrowings" shall have the meaning pro-
vided in Section 1.01(d).
"Margin Stock" shall have the meaning provided in
Regulation U of the Board of Governors of the Federal Reserve
System.
"Maximum Swingline Amount" shall mean $10,000,000.
"Moody's" shall mean Moody's Investors Service,
Inc.
"Moody's Credit Rating" shall mean the rating level
(it being understood that a rating level shall include
numerical modifiers and (+) and (-) modifiers) assigned by
Moody's to the Company's senior unsecured long-term debt,
provided that in the event that (x) no senior unsecured long-
term debt of the Company is rated by Moody's and (y) a rating
level has been assigned by Moody's to the New Senior
Subordinated Notes, the Moody's Credit Rating shall be an
implied rating equal to one full rating level above such
rating level assigned by Moody's to the New Senior
Subordinated Notes (unless Moody's has informed the Company
and the Agent in writing that such implied rating is other
than one full rating level above such rating level assigned
to the New Senior Subordinated Notes in which case such
implied rating shall be as so designated by Moody's), and,
provided further, that in the event that (x) no senior
unsecured long-term debt of the Company is rated by Moody's
and (y) the New Senior Subordinated Notes are not rated by
Moody's (whether because the same are not then outstanding or
otherwise), there shall be no Moody's Credit Rating.
"New Senior Subordinated Notes" shall have the
meaning provided in Section 8.04(iii).
"Non-U.K. Bank" shall have the meaning provided in
Section 4.04(c).
"Note" shall mean and include each Term Note, each
Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning pro-
vided in Section 1.03(a).
"Notice of Conversion" shall have the meaning pro-
vided in Section 1.06.
"Notice Office" shall mean the office of the Agent
located at 130 Liberty Street, 14th Floor, Commercial Loan
Division, New York, New York 10006, Attention: Jerome
Martellaro, or such other office as the Agent may hereafter
designate in writing as such to the other parties hereto.
"NYSE" shall mean The New York Stock Exchange.
"Obligations" shall mean all amounts owing to the
Agent or any Bank pursuant to the terms of this Agreement or
any other Credit Document.
"Other Creditors" shall mean any Bank or any
affiliate thereof party to any Interest Rate Protection
Agreement or Other Hedging Agreement with any Subsidiary
Borrower (even if such Bank ceases to be a Bank under this
Agreement for any reason), and their subsequent assigns, if
any, so long as such Bank or such affiliate participates in
the extension of such Interest Rate Protection Agreement or
Other Hedging Agreement.
"Other Hedging Agreements" shall mean any forward,
future or option contract or other similar agreements or
arrangements designed to protect against fluctuations in
currency, commodity or equity values.
"Other Parties" shall have the meaning provided in
Section 12.08(c).
"Participant" shall have the meaning provided in
Section 2.04(a).
"Payment Office" shall mean the office of the Agent
located at One Bankers Trust Plaza, New York, New York 10006,
or such other office as the Agent may hereafter designate in
writing as such to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Cor-
poration established pursuant to Section 4002 of ERISA or any
successor thereto.
"Permitted Acquisitions" shall mean any acquisi-
tions by the Company or any of its Subsidiaries of all or a
portion of the assets or capital stock or other equity
interest of one or more Persons (such assets or corporations
are hereinafter called the "Acquired Entities") so long as
(i) the only consideration paid by the Company or such
Subsidiary in respect of any such acquisition consists of
cash, common stock of the Company and/or Indebtedness issued,
incurred or assumed by the Company or such Subsidiary to the
extent permitted under Section 8.04(xiii), (ii) to the extent
that such acquisition is of the capital stock or other equity
interest of such Person, such acquisition must be of at least
80% of such capital stock or other equity interest, (iii) no
Event of Default then exists (both before and after giving
effect to such acquisition), (iv) such Acquired Entity is to
be employed in, and/or at the time of such acquisition such
Acquired Entity was engaged in, the type of business
permitted pursuant to Section 8.13, (v) any Liens or
Indebtedness assumed in connection with any such acquisition
are otherwise permitted under Section 8.01 or 8.04, as the
case may be, (vi) if the aggregate consideration paid in
respect of any such acquisition exceeds $25,000,000
(including in such calculation, the amount of cash, the Fair
Market Value of any common stock of the Company and the
principal amount of any Indebtedness incurred, issued or
assumed in connection therewith) or if the Acquired Entity
has a net loss for the immediately preceding 12 month period
of at least $2,000,000, the Company shall deliver to the
Agent and each of the Banks no less than 30 days prior to the
consummation of any such acquisition a certificate of its
chief financial officer, certifying (and showing the
calculations therefor in reasonable detail) that (1) the
Interest Coverage Ratio for each of (x) the Test Period then
most recently ended prior to the date of the consummation of
such acquisition and (y) the immediately succeeding Test
Period is at least 3.50:1.00 and (2) the Leverage Ratio for
each of the two Test Periods referred to in clause (1) above
is no greater than 3.00:1.00, in each case with such Interest
Coverage Ratio and Leverage Ratio to be determined on a pro
forma basis as if such acquisition (and any Indebtedness
incurred, issued or assumed in connection therewith and
assuming that such Indebtedness had remained outstanding
throughout each such Test Period) had been consummated on the
first day of each such Test Period and (B) immediately after
giving effect to the consummation of any such acquisition,
the Total Unutilized Revolving Loan Commitment shall equal at
least $15,000,000 and (vii) the aggregate consideration paid
in respect of all such acquisitions (including in such
calculation, the amount of cash, the Fair Market Value of any
common stock of the Company and the principal amount of any
Indebtedness incurred, issued or assumed in connection
therewith) shall not exceed $150,000,000.
"Permitted Encumbrances" shall mean as of any
particular time, (i) such easements, encroachments, rights of
way, minor defects, irregularities or encumbrances on title
which are not unusual with respect to property similar in
character to any such Real Property and which do not secure
Indebtedness and do not materially impair such Real Property
for the purpose for which it is held or materially interfere
with the conduct of the business of the Company or any of its
Subsidiaries and (ii) municipal and zoning ordinances, which
are not violated by the existing improvements and the present
use made by the Company or any of its Subsidiaries of such
Real Property.
"Permitted Liens" shall have the meaning provided
in Section 8.01.
"Permitted Receivables Financing" shall mean any
arrangement for the sale or transfer of receivables of any of
the Foreign Subsidiaries.
"Permitted Sale-Leaseback Transactions" shall mean
one or more sale-leaseback transactions entered into by the
Company or any of its Subsidiaries so long as (i) all such
sales are for cash, (ii) the lease payments arising as a
result of such transactions are otherwise permitted under
this Agreement and (iii) the aggregate fair market value (as
determined in good faith by the management of the Company) of
the assets subject to all such transactions does not exceed
$20,000,000.
"Person" shall mean any individual, partnership,
joint venture, firm, corporation, association, trust or other
enterprise or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" shall mean any multiemployer or single-
employer plan (as each such term is defined in Section 4001
of ERISA) which is maintained or contributed to by (or to
which there is an obligation to contribute to) the Company or
a Subsidiary of the Company or an ERISA Affiliate, and each
such plan for the five year period immediately following the
latest date on which the Company or a Subsidiary of the
Company or an ERISA Affiliate maintained, contributed to or
had an obligation to contribute to such plan.
"Prime Lending Rate" shall mean the rate which BTCo
announces from time to time as its prime lending rate, the
Prime Lending Rate to change when and as such prime lending
rate changes. The Prime Lending Rate is a reference rate and
does not necessarily represent the lowest or best rate actu-
ally charged to any customer. BTCo may make commercial loans
or other loans at rates of interest at, above or below the
Prime Lending Rate.
"Projections" shall have the meaning provided in
Section 6.05(c).
"Real Property" of any Person shall mean all of the
right, title and interest of such Person in and to land,
improvements and fixtures, including leaseholds.
"Redemption Amount" shall mean, at any time, an
amount equal to the sum of (i) the aggregate principal amount
of Existing Senior Subordinated Notes then outstanding, (ii)
the amount of interest which will accrue on such aggregate
outstanding principal amount of Existing Senior Subordinated
Notes through the Existing Senior Subordinated Note
Redemption Date and (iii) the amount required to pay the
premiums in connection with the consummation of the Existing
Senior Subordinated Note Redemption.
"Register" shall have the meaning provided in
Section 13.16.
"Regulation D" shall mean Regulation D of the Board
of Governors of the Federal Reserve System as from time to
time in effect and any successor to all or a portion thereof
establishing reserve requirements.
"Release" shall mean any spilling, leaking, pump-
ing, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing or migration into the
environment.
"Replaced Bank" shall have the meaning provided in
Section 1.13.
"Replacement Bank" shall have the meaning provided
in Section 1.13.
"Reportable Event" shall mean an event described in
Section 4043(b) of ERISA with respect to a Plan as to which
the 30-day notice requirement has not been waived by the
PBGC.
"Required Banks" shall mean Banks, the sum of whose
outstanding Term Loans (or, if prior to the Term Loan
Borrowing Date, Term Loan Commitments) and Revolving Loan
Commitments (or after the termination thereof, outstanding
Revolving Loans and Revolving Loan Percentage of Swingline
Loans and Letter of Credit Outstandings) represent an amount
greater than 50% of the sum of all outstanding Term Loans
(or, if prior to the Term Loan Borrowing Date, Term Loan
Commitments) and the Total Revolving Loan Commitment (or
after the termination thereof, the sum of the then total
outstanding Revolving Loans and the aggregate Revolving Loan
Percentages of the total outstanding Swingline Loans and
Letter of Credit Outstandings at such time).
"Restricted Payment" shall mean (a) any
authorization, declaration or payment of any Distributions
with respect to the Company or any of its Subsidiaries or (b)
the making (or the giving of any notice in respect thereof)
by the Company or any of its Subsidiaries of any voluntary or
optional payment or prepayment on or redemption or
acquisition for value of (including, without limitation, by
way of depositing with the trustee with respect thereto money
or securities before due for the purpose of paying when due)
the Existing Senior Subordinated Notes or the New
Subordinated Notes.
"Returns" shall have the meaning provided in
Section 6.09.
"Revolving Loan" shall have the meaning provided in
Section 1.01(b).
"Revolving Loan Commitment" shall mean, for each
Bank, the amount set forth opposite such Bank's name in
Schedule I directly below the column entitled "Revolving Loan
Commitment," as same may be (x) reduced from time to time
pursuant to Sections 3.02, 3.03 and/or 9 or (y) adjusted from
time to time as a result of assignments to or from such Bank
pursuant to Section 1.13 or 13.04(b).
"Revolving Loan Commitment Commission" shall have
the meaning provided in Section 3.01(b).
"Revolving Loan Commitment Redemption Reserve"
shall mean, at any time, an amount equal to the excess of the
Redemption Amount at such time over the sum of (i) the Total
Term Loan Commitment as then in effect and (ii) the net cash
proceeds received by the Company from the issuance of the New
Senior Subordinated Notes.
"Revolving Loan Percentage" of any Bank at any time
shall mean a fraction (expressed as a percentage) the
numerator of which is the Revolving Loan Commitment of such
Bank at such time and the denominator of which is the Total
Revolving Loan Commitment at such time; provided, that if the
Revolving Loan Percentage of any Bank is to be determined
after the Total Revolving Loan Commitment has been
terminated, then the Revolving Loan Percentages of the Banks
shall be determined immediately prior (and without giving
effect) to such termination.
"Revolving Loan Syndication Date" shall mean that
date upon which the Agent determines in its sole discretion
(and notified the Company) that the primary syndication (and
resultant addition of institutions as Banks pursuant to
Section 13.04 in respect of the Total Revolving Loan
Commitment has been completed.
"Revolving Note" shall have the meaning provided in
Section 1.05(a).
"Scheduled Repayment" shall have the meaning
provided in Section 4.02(b).
"Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(b).
"Sealed Air B.V." shall mean Sealed Air B.V., a
Dutch corporation and a Wholly-Owned Subsidiary of the
Company, with its registered office at Lindenhoutseweg 45,
6545 AH, Nijmegen, The Netherlands.
"Sealed Air Limited" shall mean Sealed Air Limited,
an English corporation and a Wholly-Owned Subsidiary of the
Company.
"Sealed Air S.A." shall mean Sealed Air S.A., a
French corporation and a Wholly-Owned Subsidiary of the
Company.
"SEC" shall have the meaning provided in Section
7.01(h).
"Section 4.04(b)(ii) Certificate" shall have the
meaning provided in Section 4.04(b).
"Securities Act" shall mean the Securities Act of
1933, as amended and the rules and regulations promulgated
thereunder.
"S&P" shall mean Standard & Poor's Ratings
Corporation.
"S&P Credit Rating" shall mean the rating level (it
being understood that a rating level shall include numerical
modifiers and (+) and (-) modifiers) assigned by S&P to the
Company's senior unsecured long-term debt, provided that in
the event that (x) no senior unsecured long-term debt of the
Company is rated by S&P and (y) a rating level has been
assigned by S&P to the New Senior Subordinated Notes, the S&P
Credit Rating shall be an implied rating equal to one full
rating level above such rating level assigned by S&P to the
New Senior Subordinated Notes (unless S&P has informed the
Company and the Agent in writing that such implied rating is
other than one full rating level above such rating level
assigned to the New Senior Subordinated Debt in which case
such implied rating shall be as so designated by S&P), and,
provided further, that in the event that (x) no senior
unsecured long-term debt of the Company is rated by S&P and
(y) the New Senior Subordinated are not rated by S&P (whether
because the same are not then outstanding or otherwise),
there shall be no S&P Credit Rating.
"Specified Event of Default" shall mean any of (i)
any default in the payment when due of any principal or
interest on any Loan or in the payment when due of regularly
accruing Fees, (ii) the acceleration of the maturity of the
Loans or (iii) the occurrence of an Event of Default under
Section 9.05 with respect to the Company.
"Stated Amount" of each Letter of Credit shall mean
at any time the maximum amount available to be drawn
thereunder at such time, determined without regard to whether
any conditions to drawing could then be met.
"Sub-Limit" shall mean (i) with respect to Sealed
Air B.V., $15,000,000, (ii) with respect to Sealed Air
Limited, $8,000,000 and (iii) with respect to each other
Wholly-Owned Foreign Subsidiary that becomes a Subsidiary
Borrower after the Effective Date, such aggregate amount as
shall be established by the Agent at the time such Foreign
Subsidiary becomes a Subsidiary Borrower hereunder, it being
understood that the Agent may, upon the written request of
the Company, increase or decrease from time to time any
Subsidiary Borrower's Sub-Limit. The Agent will give any
Bank that has requested the same, notice as to the amount of
any Subsidiary Borrower's Sub-Limit at such time.
"Subrogation Trigger Date" shall have the meaning
provided in Section 12.08(d).
"Subsidiary" shall mean, as to any Person, (i) any
corporation more than 50% of whose stock of any class or
classes having by the terms thereof ordinary voting power to
elect a majority of the directors of such corporation (irre-
spective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at
the time owned by such Person and/or one or more Subsidiaries
of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or
more Subsidiaries of such Person has more than a 50% equity
interest at the time.
"Subsidiary Borrower" shall mean and include Sealed
Air B.V., Sealed Air Limited and any other Wholly-Owned
Subsidiary of the Company (other than Sealed Air S.A.)
designated by the Company and acceptable to the Agent
"Swingline Expiry Date" shall mean the date which
is two Business Days prior to the Final Maturity Date.
"Swingline Loan" shall have the meaning provided in
Section 1.01(c).
"Swingline Note" shall have the meaning provided in
Section 1.05(a).
"Taxes" shall have the meaning provided in Section
4.04(a).
"Term Loan" shall have the meaning provided in Sec-
tion 1.01(a).
"Term Loan Borrowing Date" shall mean the Business
Day immediately preceding the Existing Senior Subordinated
Note Redemption Date.
"Term Loan Commitment" shall mean, for each Bank,
the amount set forth opposite such Bank's name in Schedule I
directly below the column entitled "Term Loan Commitment", as
same may be (x) reduced from time to time pursuant to
Sections 3.03, 4.02 and/or 9 or (y) adjusted from time to
time as a result of assignments to or from such Bank pursuant
to Section 1.13 or 13.04.
"Term Loan Commitment Commission" shall have the
meaning provided in Section 3.01(a).
"Term Loan Syndication Date" shall mean that date
upon which the Agent determines in its sole discretion (and
notifies the Company) that the primary syndication (and
resultant addition of institutions as Banks pursuant to
Section 13.04) in respect of the Total Term Loan Commitment
has been completed.
"Term Note" shall have the meaning provided in
Section 1.05(a).
"Test Period" shall mean (i) for any determination
made on and prior to March 31, 1995, the period from July 1,
1994 to the last day of the fiscal quarter of the Company
then last ended, provided that (x) for purposes of
determining the Leverage Ratio for any period ending on or
prior to March 31, 1995, EBITDA shall be based on the four
consecutive fiscal quarters of the Company then last ended
and (y) the first Test Period shall end on September 30,
1994, and (ii) for any determination made thereafter, the
four consecutive fiscal quarters of the Company then last
ended, in each case taken as one accounting period.
"Third Party Subsidiary Borrowings" shall have the
meaning provided in Section 8.04(vii).
"Total Commitment" shall mean, at any time, the sum
of the Commitments of each of the Banks.
"Total Revolving Loan Commitment" shall mean, at
any time, the sum of the Revolving Loan Commitments of each
of the Banks.
"Total Term Loan Commitment" shall mean, at any
time, the sum of the Term Loan Commitments of each of the
Banks.
"Total Unutilized Revolving Loan Commitment" shall
mean, at any time, an amount equal to the remainder of (x)
the then Total Revolving Loan Commitment less (y) the sum of
the aggregate principal amount of Revolving Loans and
Swingline Loans outstanding plus the then aggregate amount of
Letter of Credit Outstandings.
"Tranche" shall mean the respective facility and
commitments utilized in making Loans, with there being three
separate Tranches, i.e., Term Loans, Revolving Loans and
Swingline Loans.
"Type" shall mean any type of Loan determined with
respect to the interest option applicable thereto, i.e., a
Base Rate Loan, a Eurodollar Rate Loan or a CD Rate Loan.
"UCC" shall mean the Uniform Commercial Code as
from time to time in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the
amount, if any, by which the actuarial present value of the
accumulated plan benefits under the Plan as of the close of
its most recent plan year exceeds the fair market value of
the assets allocable thereto, each determined in accordance
with Statement of Financial Accounting Standards No. 35,
based upon the actuarial assumptions used by the Plan's
actuary in the most recent annual valuation of such Plan.
"United States" and "U.S." shall each mean the
United States of America.
"Unpaid Drawings" shall have the meaning provided
in Section 2.05(a).
"Unutilized Revolving Loan Commitment" of any Bank
at any time shall mean the Revolving Loan Commitment of such
Bank less the sum of (i) the aggregate principal amount of
Revolving Loans made by such Bank and then outstanding and
(ii) such Bank's Revolving Loan Percentage of the Letter of
Credit Outstandings at such time.
"Wholly-Owned Subsidiary" shall mean, as to any
Person, (i) Sealed Air S.A. so long as the Company owns
directly or indirectly at least 65% of the total voting and
economic interest of such Subsidiary, (ii) any corporation
100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or
more Wholly-Owned Subsidiaries of such Person and (iii) any
partnership, association, joint venture or other entity in
which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at
such time.
10.02 Principles of Construction. (a) All ref-
erences to sections, schedules and exhibits are to sections,
schedules and exhibits in or to this Agreement unless other-
wise specified.
(b) All accounting terms not specifically defined
herein shall be construed in accordance with generally ac-
cepted accounting principles in the United States in conform-
ity with those used in the preparation of the financial
statements referred to in Section 6.05(a).
Section 11. The Agent.
11.01 Appointment. The Banks hereby designate
Bankers Trust Company as Agent to act as specified herein and
in the other Credit Documents. Each Bank hereby irrevocably
authorizes, and each holder of any Note by the acceptance of
such Note shall be deemed irrevocably to authorize, the Agent
to take such action on its behalf under the provisions of
this Agreement, the other Credit Documents and any other
instruments and agreements referred to herein or therein and
to exercise such powers and to perform such duties hereunder
and thereunder as are specifically delegated to or required
of the Agent by the terms hereof and thereof and such other
powers as are reasonably incidental thereto. The Agent may
perform any of its duties hereunder by or through its
respective officers, directors, agents, employees or
affiliates.
11.02 Nature of Duties. The Agent shall not have
any duties or responsibilities except those expressly set
forth in this Agreement and the other Credit Documents.
Neither the Agent nor any of its respective officers,
directors, agents, employees or affiliates shall be liable
for any action taken or omitted by it or them hereunder or
under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or
willful misconduct. The duties of the Agent shall be
mechanical and administrative in nature; the Agent shall not
have by reason of this Agreement or any other Credit Document
a fiduciary relationship in respect of any Bank or the holder
of any Note; and nothing in this Agreement or any other
Credit Document, expressed or implied, is intended to or
shall be so construed as to impose upon the Agent any
obligations in respect of this Agreement or any other Credit
Document except as expressly set forth herein or therein.
11.03 Lack of Reliance on the Agent. Independ-
ently and without reliance upon the Agent, each Bank and the
holder of each Note, to the extent it deems appropriate, has
made and shall continue to make (i) its own independent in-
vestigation of the financial condition and affairs of the
Company and its Subsidiaries in connection with the making
and the continuance of the Loans and the taking or not taking
of any action in connection herewith and (ii) its own
appraisal of the creditworthiness of the Company and its Sub-
sidiaries and, except as expressly provided in this Agree-
ment, the Agent shall not have any duty or responsibility,
either initially or on a continuing basis, to provide any
Bank or the holder of any Note with any credit or other
information with respect thereto, whether coming into its
possession before the making of the Loans or at any time or
times thereafter. The Agent shall not be responsible to any
Bank or the holder of any Note for any recitals, statements,
information, representations or warranties herein or in any
document, certificate or other writing delivered in connec-
tion herewith or for the execution, effectiveness, genuine-
ness, validity, enforceability, perfection, collectibility,
priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of the Company and its
Subsidiaries or be required to make any inquiry concerning
either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other
Credit Document, or the financial condition of the Company
and its Subsidiaries or the existence or possible existence
of any Default or Event of Default.
11.04 Certain Rights of the Agent. If the Agent
shall request instructions from the Required Banks with
respect to any act or action (including failure to act) in
connection with this Agreement or any other Credit Document,
the Agent shall be entitled to refrain from such act or tak-
ing such action unless and until the Agent shall have re-
ceived instructions from the Required Banks; and the Agent
shall not incur liability to any Person by reason of so
refraining. Without limiting the foregoing, no Bank or the
holder of any Note shall have any right of action whatsoever
against the Agent as a result of the Agent acting or refrain-
ing from acting hereunder or under any other Credit Document
in accordance with the instructions of the Required Banks.
11.05 Reliance. The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, statement, certificate, telex,
teletype or telecopier message, cablegram, radiogram, order
or other document or telephone message signed, sent or made
by any Person that the Agent believed to be the proper
Person, and, with respect to all legal matters pertaining to
this Agreement and any other Credit Document and its duties
hereunder and thereunder, upon advice of counsel selected by
the Agent.
11.06 Indemnification. To the extent the Agent is
not reimbursed and indemnified by the Borrowers the Banks
will reimburse and indemnify the Agent, in proportion to
their respective "percentages" as used in determining the
Required Banks, for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever
kind or nature which may be imposed on, asserted against or
incurred by the Agent in performing its respective duties
hereunder or under any other Credit Document, in any way
relating to or arising out of this Agreement or any other
Credit Document; provided that no Bank shall be liable for
any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expen-
ses or disbursements resulting from the Agent's gross negli-
gence or willful misconduct.
11.07 The Agent in its Individual Capacity. With
respect to its obligation to make Loans and issue Letters of
Credit under this Agreement, the Agent shall have the rights
and powers specified herein for a "Bank" and may exercise the
same rights and powers as though it were not performing the
duties specified herein; and the term "Banks," "Required
Banks," "holders of Notes" or any similar terms shall, unless
the context clearly otherwise indicates, include the Agent in
its individual capacity. The Agent may accept deposits from,
lend money to, and generally engage in any kind of banking,
trust or other business with the Company or any Subsidiary or
Affiliate of the Company as if they were not performing the
duties specified herein, and may accept fees and other
consideration from the Borrowers for services in connection
with this Agreement and otherwise without having to account
for the same to the Banks.
11.08 Holders. The Agent shall deem and treat the
payee of any Note as the owner thereof for all purposes
hereof unless and until a written notice of the assignment,
transfer or endorsement thereof, as the case may be, shall
have been filed with the Agent. Any request, authority or
consent of any Person who, at the time of making such request
or giving such authority or consent, is the holder of any
Note shall be conclusive and binding on any subsequent
holder, transferee, assignee or indorsee, as the case may be,
of such Note or of any Note or Notes issued in exchange
therefor.
11.09 Resignation by the Agent. (a) The Agent
may resign from the performance of all its functions and
duties hereunder and/or under the other Credit Documents at
any time by giving 15 Business Days' prior written notice to
the Company and the Banks. Such resignation shall take
effect upon the appointment of a successor Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Banks
shall appoint a successor Agent hereunder or thereunder who
shall be a commercial bank or trust company reasonably
acceptable to the Company.
(c) If a successor Agent shall not have been so
appointed within such 15 Business Day period, the Agent, with
the consent of the Company, shall then appoint a commercial
bank or trust company with capital and surplus of not less
than $500,000,000 as successor Agent who shall serve as Agent
hereunder or thereunder until such time, if any, as the Banks
appoint a successor Agent as provided above.
(d) If no successor Agent has been appointed pur-
suant to clause (b) or (c) above by the 20th Business Day
after the date such notice of resignation was given by the
Agent, the Agent's resignation shall become effective and the
Banks shall thereafter perform all the duties of the Agent
hereunder and/or under any other Credit Document until such
time, if any, as the Banks appoint a successor Agent as
provided above.
Section 12. Company Guaranty.
12.01 The Guaranty. In order to induce the Banks
to enter into this Agreement and to extend credit hereunder
to the Subsidiary Borrowers and in recognition of the direct
benefits to be received by the Company from the proceeds of
the Loans to the Subsidiary Borrowers, the Company hereby
agrees with the Banks as follows: the Company hereby
unconditionally and irrevocably guarantees as primary obligor
and not merely as surety the full and prompt payment when
due, whether upon maturity, by acceleration or otherwise, of
any and all of the Guaranteed Obligations of the Subsidiary
Borrowers to the Creditors. If any or all of the Guaranteed
Obligations of any Subsidiary Borrower to the Creditors
becomes due and payable hereunder, the Company uncondi-
tionally promises to pay such indebtedness to the Creditors,
or order, on demand, together with any and all reasonable
expenses which may be incurred by the Agent or the Creditors
in collecting any of the Guaranteed Obligations.
12.02 Bankruptcy. Additionally, the Company
unconditionally and irrevocably guarantees the payment of any
and all of the Guaranteed Obligations of the Subsidiary
Borrowers to the Creditors whether or not then due or payable
by any Borrower upon the occurrence in respect of such
Subsidiary Borrower of any of the events specified in Section
9.05, and unconditionally and irrevocably promises to pay
such Guaranteed Obligations to the Creditors, or order, on
demand, in lawful money of the United States.
12.03 Nature of Liability. The liability of the
Company hereunder is exclusive and independent of any
security for or other guaranty of the Guaranteed Obligations
of the Subsidiary Borrowers whether executed by the Company,
any other guarantor or by any other party, and the liability
of the Company hereunder shall not be affected or impaired by
(a) any direction as to application of payment by any
Subsidiary Borrower or by any other party, or (b) any other
continuing or other guaranty, undertaking or maximum liabil-
ity of a guarantor or of any other party as to the Guaranteed
Obligations of any Subsidiary Borrower, or (c) any payment on
or in reduction of any such other guaranty or undertaking, or
(d) any dissolution, termination or increase, decrease or
change in personnel by any Subsidiary Borrower, or (e) any
payment made to the Agent or the Creditors on the indebt-
edness which the Agent or such Creditors repay any Subsidiary
Borrower pursuant to court order in any bankruptcy, reorgan-
ization, arrangement, moratorium or other debtor relief pro-
ceeding, and the Company waives any right to the deferral or
modification of its obligations hereunder by reason of any
such proceeding.
12.04 Independent Obligation. The obligations of
the Company hereunder are independent of the obligations of
any other guarantor or any Subsidiary Borrower, and a
separate action or actions may be brought and prosecuted
against the Company whether or not action is brought against
any other guarantor or any Subsidiary Borrower and whether or
not any other guarantor or any Subsidiary Borrower be joined
in any such action or actions. The Company waives, to the
fullest extent permitted by law, the benefit of any statute
of limitations affecting its liability hereunder or the
enforcement thereof. Any payment by any Subsidiary Borrower
or other circumstance which operates to toll any statute of
limitations as to such Subsidiary Borrower shall operate to
toll the statute of limitations as to the Company.
12.05 Authorization. The Company authorizes the
Agent and the Creditors without notice or demand (except as
shall be required by applicable law and cannot be waived),
and without affecting or impairing its liability hereunder,
from time to time to:
(a) change the manner, place or terms of payment
of, and/or change or extend the time of payment of, re-
new, increase, accelerate or alter, any of the Guaran-
teed Obligations (including any increase or decrease in
the rate of interest thereon), any security therefor, or
any liability incurred directly or indirectly in respect
thereof, and the Guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended, renewed
or altered;
(b) take and hold security for the payment of the
Guaranteed Obligations and sell, exchange, release,
surrender, realize upon or otherwise deal with in any
manner and in any order any property by whomsoever at
any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities
(including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and/or any
offset thereagainst;
(c) exercise or refrain from exercising any rights
against any Subsidiary Borrower or others or otherwise
act or refrain from acting;
(d) release or substitute any one or more endor-
sers, guarantors, any Subsidiary Borrower or other
obligors;
(e) settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability
(including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and may sub-
ordinate the payment of all or any part thereof to the
payment of any liability (whether due or not) of any
Subsidiary Borrower to its creditors other than the
Banks;
(f) apply any sums by whomsoever paid or howsoever
realized to any liability or liabilities of any
Subsidiary Borrower to the Creditors regardless of what
liability or liabilities of the Company or any
Subsidiary Borrower remain unpaid;
(g) consent to or waive any breach of, or any act,
omission or default under, this Agreement or any of the
instruments or agreements referred to herein, or other-
wise amend, modify or supplement this Agreement or any
of such other instruments or agreements; and/or
(h) take any other action which would, under
otherwise applicable principles of common law, give rise
to a legal or equitable discharge of the Company from
its liabilities under this Section 12.
12.06 Reliance. It is not necessary for the Agent
or the Creditors to inquire into the capacity or powers of
any Subsidiary Borrower or the officers, directors, partners
or agents acting or purporting to act on its behalf, and any
Guaranteed Obligations made or created in reliance upon the
professed exercise of such powers shall be guaranteed here-
under.
12.07 Subordination. Any of the indebtedness of
any Subsidiary Borrower relating to the Guaranteed
Obligations now or hereafter owing to the Company is hereby
subordinated to the Guaranteed Obligations of such Subsidiary
Borrower owing to the Agent and the Creditors; and if the
Agent so requests at a time when an Event of Default exists,
all such indebtedness relating to the Guaranteed Obligations
of such Subsidiary Borrower to the Company shall be
collected, enforced and received by the Company for the
benefit of the Creditors and be paid over to the Agent on
behalf of the Creditors on account of the Guaranteed
Obligations of such Subsidiary Borrower to the Creditors, but
without affecting or impairing in any manner the liability of
the Company under the other provisions of this Guaranty.
Prior to the transfer by the Company of any note or nego-
tiable instrument evidencing any of the indebtedness relating
to the Guaranteed Obligations of any Subsidiary Borrower to
the Company, the Company shall mark such note or negotiable
instrument with a legend that the same is subject to this
subordination. The provisions of this Section 12.07 (and any
claims of the Company as described above) are subject to the
provisions of Section 12.08(c) and (d).
12.08 Waiver. (a) The Company waives any right
(except as shall be required by applicable law and cannot be
waived) to require the Agent or the Creditors to (i) proceed
against any Subsidiary Borrower or any other party, (ii)
proceed against or exhaust any security held from any
Subsidiary Borrower or any other party or (iii) pursue any
other remedy in the Agent's or the Creditors' power
whatsoever. The Company waives any defense based on or
arising out of any defense of any Subsidiary Borrower or any
other party, other than payment in full of the Guaranteed
Obligations, based on or arising out of the disability of any
Subsidiary Borrower, any other guarantor or any other party,
or the unenforceability of the Guaranteed Obligations or any
part thereof from any cause, or the cessation from any cause
of the liability of any Subsidiary Borrower other than
payment in full of the Guaranteed Obligations. The Agent and
the Creditors may, at their election, foreclose on any
security held by the Agent or the Creditors by one or more
judicial or nonjudicial sales, whether or not every aspect of
any such sale is commercially reasonable (to the extent such
sale is permitted by applicable law), or exercise any other
right or remedy the Agent and the Creditors may have against
any Subsidiary Borrower or any other party, or any security,
without affecting or impairing in any way the liability of
the Company hereunder except to the extent the Guaranteed
Obligations have been paid. The Company waives any defense
arising out of any such election by the Agent and the
Creditors, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other
right or remedy of the Company against any Subsidiary
Borrower or any other party or any security.
(b) The Company waives all presentments, demands
for performance, protests and notices, including without
limitation notices of nonperformance, notices of protest,
notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or
additional Guaranteed Obligations. The Company assumes all
responsibility for being and keeping itself informed of each
Subsidiary Borrower's financial condition and assets, and of
all other circumstances bearing upon the risk of nonpayment
of the Guaranteed Obligations and the nature, scope and
extent of the risks which the Company assumes and incurs
hereunder, and agrees that the Agent and the Creditors shall
have no duty to advise the Company of information known to
them regarding such circumstances or risks.
(c) Except as otherwise provided in clause (d) be-
low, the Company hereby waives all rights of subrogation
which it may at any time otherwise have as a result of this
Guaranty (whether contractual, under Section 509 of the Bank-
ruptcy Code, or otherwise) to the claims of the Creditors
against the Subsidiary Borrowers, or any other guarantor of
the Guaranteed Obligations of the Subsidiary Borrowers to the
Creditors (collectively, the "Other Parties") and all con-
tractual, statutory or common law rights of reimbursement,
contribution or indemnity from any Other Party which it may
at any time otherwise have as a result of this Guaranty. The
Company hereby further waives any right to enforce any other
remedy which the Creditors now have or may hereafter have
against any Other Party, any endorser or any other guarantor
of all or any part of such Guaranteed Obligations of the
Subsidiary Borrowers to the Creditors and any benefit of, and
any right to participate in, any security or collateral given
to or for the benefit of the Creditors to secure payment of
such Guaranteed Obligations of the Subsidiary Borrowers to
the Creditors.
(d) Notwithstanding the provisions of the preced-
ing clause (c), (A) the Company shall, subject to Section
12.07, have and be entitled to (i) all rights of subrogation
otherwise provided by law in respect of any payment it may
make or be obligated to make under this Guaranty with respect
to any Other Party and (ii) all claims (as defined in the
Bankruptcy Code) it would have against such Other Party in
the absence of the preceding clause (c), and to assert and
enforce same, and (B) the provisions of clause (c) above
shall be of no further force and effect with respect to such
Other Party, in each case on and after, but at no time prior
to, the earlier of (I) the date (the "Subrogation Trigger
Date") which is one year and one day after the date on which
all the Guaranteed Obligations of the such Subsidiary
Borrower owing to the Creditors have been paid in full if and
only if (i) no Default or Event of Default of the type
described in Section 9.05 with respect to the respective
Other Party has existed at any time on and after the date of
this Agreement to and including the Subrogation Trigger Date
and (ii) the existence of the Company's rights under this
clause (d) would not make the Company a creditor (as defined
in the Bankruptcy Code) of the respective Other Party in any
insolvency, bankruptcy, reorganization or similar proceeding
commenced on or prior to the Subrogation Trigger Date or (II)
the effective date of any amendment to Title 11 of the United
States Code or of any decision of the United States Supreme
Court that in the sole opinion of the Agent provides, in
effect, that the status of the Company as an insider creditor
of the respective Other Party will not cause transfers of an
interest of such Other Party in property (including payments
or grants of security interests by such Other Party) to any
Bank to be subject to avoidance as a preference for a longer
period of time than if such Guaranteed Obligations of such
Other Party had not been guaranteed or otherwise secured by
such Guarantor or its assets.
12.09 Nature of Liability. It is the desire and
intent of the Company and the Creditors that this Guaranty
shall be enforced against the Company to the fullest extent
permissible under the laws and public policies applied in
each jurisdiction in which enforcement is sought. If,
however, and to the extent that, the obligations of the
Company under this Guaranty shall be adjudicated to be
invalid or unenforceable for any reason (including, without
limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers), then the
amount of the Guaranteed Obligations of the Company shall be
deemed to be reduced and the Company shall pay the maximum
amount of the Guaranteed Obligations which would be permiss-
ible under applicable law.
12.10 Judgments Binding. If claim is ever made
upon any Creditor or any subsequent holder of a Note of any
Subsidiary Borrower for repayment or recovery of any amount
or amounts received in payment or on account of any of the
Guaranteed Obligations and any of the aforesaid payees repays
all or part of said amount by reason of (a) any judgment,
decree or order of any court or administrative body having
jurisdiction over such payee or any of its property, or (b)
any settlement or compromise of any such claim effected by
such payee with any such claimant, then and in such event the
Company agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon the Company,
notwithstanding any revocation hereof or the cancellation of
any Note or other instrument evidencing any liability of any
Subsidiary Borrower, and the Company shall be and remain
liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had
never originally been received by any such payee.
Section 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Borrowers
jointly and severally shall: (i) whether or not the
transactions contemplated herein are consummated, pay all
reasonable out-of-pocket costs and expenses of the Agent
(including, without limitation, the reasonable fees and
disbursements of White & Case) in connection with the
preparation, execution and delivery of this Agreement and the
other Credit Documents and the documents and instruments
referred to herein and therein and any amendment, waiver or
consent relating hereto or thereto, of the Agent in
connection with its syndication efforts with respect to this
Agreement and of the Agent and, following an Event of
Default, each of the Banks in connection with the enforcement
of this Agreement and the other Credit Documents and the
documents and instruments referred to herein and therein
(including, without limitation, the reasonable fees and
disbursements of counsel for the Agent and, following an
Event of Default, for each of the Banks); (ii) pay and hold
each of the Banks harmless from and against any and all
present and future stamp, excise and other similar taxes with
respect to the foregoing matters and save each of the Banks
harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other
than to the extent attributable to such Bank) to pay such
taxes; and (iii) indemnify the Agent and each Bank, and each
of their respective officers, directors, employees,
representatives and agents from and hold each of them harm-
less against any and all liabilities, obligations (including
removal or remedial actions), losses, damages, penalties,
claims, actions, judgments, suits, costs, expenses and dis-
bursements (including reasonable attorneys' and consultants'
fees and disbursements) incurred by, imposed on or assessed
against any of them as a result of, or arising out of, or in
any way related to, or by reason of, (a) any investigation,
litigation or other proceeding (whether or not the Agent or
any Bank is a party thereto) related to the entering into
and/or performance of this Agreement or any other Credit
Document or the use of any Letter of Credit or the proceeds
of any Loans hereunder or the consummation of any
transactions contemplated herein or in any other Credit
Document or the exercise of any of their rights or remedies
provided herein or in the other Credit Documents, or (b) the
actual or alleged presence of Hazardous Materials in the air,
surface water or groundwater or on the surface or subsurface
of any Real Property owned or at any time operated by the
Company or any of its Subsidiaries, the generation, storage,
transportation, handling or disposal of Hazardous Materials
at any location, whether or not owned or operated by the
Company or any of its Subsidiaries, the non-compliance of any
Real Property with foreign, federal, state and local laws,
regulations, and ordinances (including applicable permits
thereunder) applicable to any Real Property, or any
Environmental Claim asserted against the Company, any of its
Subsidiaries or any Real Property owned or at any time
operated by the Company or any of its Subsidiaries,
including, in each case, without limitation, the reasonable
fees and disbursements of counsel and other consultants
incurred in connection with any such investigation,
litigation or other proceeding (but excluding any losses,
liabilities, claims, damages or expenses to the extent
incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified). To the extent
that the undertaking to indemnify, pay or hold harmless the
Agent or any Bank set forth in the preceding sentence may be
unenforceable because it is violative of any law or public
policy, the Borrowers shall make the maximum contribution to
the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law.
13.02 Right of Setoff. In addition to any rights
now or hereafter granted under applicable law or otherwise,
and not by way of limitation of any such rights, upon the
occurrence of an Event of Default, each Bank is hereby
authorized at any time or from time to time, without pre-
sentment, demand, protest or other notice of any kind to the
Company or any Subsidiary Borrower or to any other Person,
any such notice being hereby expressly waived, to set off and
to appropriate and apply any and all deposits (general or
special) and any other Indebtedness at any time held or owing
by such Bank (including, without limitation, by branches and
agencies of such Bank wherever located) to or for the credit
or the account of the Company or any Subsidiary Borrower
against and on account of the Obligations and liabilities of
the Company or any Subsidiary Borrower to such Bank under
this Agreement or under any of the other Credit Documents,
including, without limitation, all interests in Obligations
purchased by such Bank pursuant to Section 13.06(b), and all
other claims of any nature or description arising out of or
connected with this Agreement or any other Credit Document,
irrespective of whether or not such Bank shall have made any
demand hereunder and although said Obligations, liabilities
or claims, or any of them, shall be contingent or unmatured.
13.03 Notices. Except as otherwise expressly pro-
vided herein, all notices and other communications provided
for hereunder shall be in writing (including telegraphic,
telex, telecopier or cable communication) and mailed, tele-
graphed, telexed, telecopied, cabled or delivered: if to the
Company, at the Company's address specified opposite its
signature below; if to any Subsidiary Borrower, at such
Subsidiary Borrower's address specified opposite its
signature below or as provided in the respective Election to
Become a Subsidiary Borrower; if to any Bank, at its address
specified opposite its name on Schedule VI; and if to the
Agent, at its Notice Office; or, as to any Borrower or the
Agent, at such other address as shall be designated by such
party in a written notice to the other parties hereto and, as
to each Bank, at such other address as shall be designated by
such Bank in a written notice to the Company and the Agent.
All such notices and communications shall, when mailed, tele-
graphed, telexed, telecopied, or cabled or sent by overnight
courier, be effective when deposited in the mails, delivered
to the telegraph company, cable company or overnight courier,
as the case may be, or sent by telex or telecopier, except
that notices and communications to the Agent shall not be
effective until received by the Agent.
13.04 Benefit of Agreement. (a) This Agreement
shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the
parties hereto; provided, however, no Borrower may assign or
transfer any of its rights, obligations or interest hereunder
or under any other Credit Document without the prior written
consent of the Banks and, provided further, that, although
any Bank may transfer, assign or grant participations in its
rights hereunder, such Bank shall remain a "Bank" for all
purposes hereunder (and may not transfer or assign all or any
portion of its Commitments hereunder except as provided in
Section 13.04(b)) and the transferee, assignee or
participant, as the case may be, shall not constitute a
"Bank" hereunder and, provided further, that no Bank shall
transfer or grant any participation under which the partici-
pant shall have rights to approve any amendment to or waiver
of this Agreement or any other Credit Document except to the
extent such amendment or waiver would (i) extend the final
scheduled maturity of any Loan, Note or Letter of Credit
(unless such Letter of Credit is not extended beyond the
Final Maturity Date) in which such participant is partici-
pating, or reduce the rate or extend the time of payment of
interest or Fees thereon (except in connection with a waiver
of applicability of any post-default increase in interest
rates) or reduce the principal amount thereof, or increase
the amount of the participant's participation over the amount
thereof then in effect (it being understood that a waiver of
any Default or Event of Default or of a mandatory reduction
in the Total Commitment shall not constitute a change in the
terms of such participation, and that an increase in any
Commitment or Loan shall be permitted without the consent of
any participant if the participant's participation is not
increased as a result thereof) or (ii) consent to the assign-
ment or transfer by any Borrower of any of its rights and
obligations under this Agreement. In the case of any such
participation, the participant shall not have any rights
under this Agreement or any of the other Credit Documents
(the participant's rights against such Bank in respect of
such participation to be those set forth in the agreement
executed by such Bank in favor of the participant relating
thereto) and all amounts payable by the Borrowers hereunder
shall be determined as if such Bank had not sold such
participation.
(b) Notwithstanding the foregoing, any Bank (or
any Bank together with one or more other Banks) may (x)
assign all or a portion of its Revolving Loan Commitment (and
related outstanding Obligations hereunder) and/or its out-
standing Term Loans (or, if prior to the Term Loan Borrowing
Date, Term Loan Commitment) to its parent company and/or any
affiliate of such Bank which is at least 50% owned by such
Bank or its parent company or to one or more Banks or (y)
assign all, or if less than all, a portion equal to at least
$5,000,000 in the aggregate for the assigning Bank or
assigning Banks, of such Revolving Loan Commitments (and
related outstanding Obligations) and outstanding principal
amount of Term Loans (or, if prior to the Term Loan Borrowing
Date, Term Loan Commitment) hereunder to one or more Eligible
Transferees, each of which assignees shall become a party to
this Agreement as a Bank by execution of an Assignment and
Assumption Agreement, provided that (i) at such time Schedule
I shall be deemed modified to reflect the Commitments (and/or
outstanding Term Loans, as the case may be) of such new Bank
and of the existing Banks, (ii) upon surrender of the old
Notes, new Notes will be issued, at the Borrowers' expense,
to such new Bank and to the assigning Bank, such new Notes to
be in conformity with the requirements of Section 1.05 (with
appropriate modifications) to the extent needed to reflect
the revised Commitments (and/or outstanding Term Loans, as
the case may be), (iii) the consent of the Agent and the
Company shall be required in connection with any such
assignment pursuant to clause (y) above (which consent shall
not be unreasonably withheld) and (iv) the Agent shall
receive at the time of each such assignment, from the
assigning or assignee Bank, the payment of a non-refundable
assignment fee of $3,500 and, provided further, that such
transfer or assignment will not be effective until recorded
by the Agent on the Register pursuant to Section 13.16. To
the extent of any assignment pursuant to this Section
13.04(b), the assigning Bank shall be relieved of its
obligations hereunder with respect to its assigned
Commitments. At the time of each assignment pursuant to this
Section 13.04(b) to a Person which is not already a Bank
hereunder and which is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for
Federal income tax purposes, the respective assignee Bank
shall provide to the Company and the Agent the appropriate
Internal Revenue Service Forms (and, if applicable a Section
4.04(b)(ii) Certificate) described in Section 4.04(b). To
the extent that an assignment of all or any portion of a
Bank's Commitments and related outstanding Obligations
pursuant to Section 1.13 or this Section 13.04(b) would, at
the time of such assignment, result in increased costs under
Section 1.10 or 1.11 from those being charged by the
respective assigning Bank prior to such assignment, then the
Company shall not be obligated to pay such increased costs
(although the Company shall be obligated to pay any other
increased costs of the type described above resulting from
changes after the date of the respective assignment).
(c) Nothing in this Agreement shall prevent or
prohibit any Bank from pledging its Loans and Notes hereunder
to a Federal Reserve Bank in support of borrowings made by
such Bank from such Federal Reserve Bank.
13.05 No Waiver; Remedies Cumulative. No failure
or delay on the part of the Agent or any Bank or any holder
of any Note in exercising any right, power or privilege here-
under or under any other Credit Document and no course of
dealing between any Borrower and the Agent or any Bank or the
holder of any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or
thereunder. The rights, powers and remedies herein or in any
other Credit Document expressly provided are cumulative and
not exclusive of any rights, powers or remedies which the
Agent or any Bank or the holder of any Note would otherwise
have. No notice to or demand on any Borrower in any case
shall entitle any Borrower to any other or further notice or
demand in similar or other circumstances or constitute a
waiver of the rights of the Agent or any Bank or the holder
of any Note to any other or further action in any
circumstances without notice or demand.
13.06 Payments Pro Rata. (a) Except as otherwise
provided in this Agreement, the Agent agrees that promptly
after its receipt of each payment from or on behalf of the
respective Borrower in respect of any Obligations hereunder,
it shall distribute such payment to the Banks (other than any
Bank that has consented in writing to waive its pro rata
share of any such payment) pro rata based upon their
respective shares, if any, of the Obligations with respect to
which such payment was received.
(b) Each of the Banks agrees that, if it should
receive any amount hereunder (whether by voluntary payment,
by realization upon security, by the exercise of the right of
setoff or banker's lien, by counterclaim or cross action, by
the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the prin-
cipal of, or interest on, the Loans, Unpaid Drawings, Commit-
ment Commission or Letter of Credit Fees, of a sum which with
respect to the related sum or sums received by other Banks is
in a greater proportion than the total of such Obligation
then owed and due to such Bank bears to the total of such
Obligation then owed and due to all of the Banks immediately
prior to such receipt, then such Bank receiving such excess
payment shall purchase for cash without recourse or warranty
from the other Banks an interest in the Obligations of the
respective Party to such Banks in such amount as shall result
in a proportional participation by all the Banks in such
amount; provided that if all or any portion of such excess
amount is thereafter recovered from such Bank, such purchase
shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest.
13.07 Calculations; Computations. (a) The finan-
cial statements to be furnished to the Banks pursuant hereto
shall be made and prepared in accordance with generally ac-
cepted accounting principles in the United States consist-
ently applied throughout the periods involved (except as set
forth in the notes thereto or as otherwise disclosed in writ-
ing by the Company to the Banks); provided that, except as
otherwise specifically provided herein, all computations
determining compliance with Sections 8.07 through 8.09,
inclusive, shall utilize accounting principles and policies
in conformity with those used to prepare the historical
financial statements delivered to the Banks pursuant to
Section 6.05(a).
(b) All computations of interest, Term Loan
Commitment Commission, Revolving Loan Commitment Commission,
and Fees hereunder shall be made on the basis of a year of
360 days for the actual number of days (including the first
day but excluding the last day) occurring in the period for
which such interest, Term Loan Commitment Commission,
Revolving Loan Commitment Commission or Fees are payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION;
VENUE; WAIVER OF JURY TRIAL. (a) THIS AGREEMENT AND THE
OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER 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 AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH BORROWER HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. EACH BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY
CLAIM THAT ANY SUCH COURTS LACK JURISDICTION OVER SUCH
BORROWER, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS,
THAT ANY SUCH COURT LACKS JURISDICTION OVER SUCH BORROWER.
EACH SUBSIDIARY BORROWER HEREBY IRREVOCABLY DESIGNATES,
APPOINTS AND EMPOWERS THE COMPANY, WITH OFFICES ON THE DATE
HEREOF AT PARK 80 EAST, SADDLE BROOK, NEW JERSEY 07662 AS ITS
DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND
ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS
PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS,
NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION
OR PROCEEDING. IF FOR ANY REASON THE COMPANY SHALL CEASE TO
BE AVAILABLE TO ACT AS SUCH, EACH SUBSIDIARY BORROWER AGREES
TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK
CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SAT-
ISFACTORY TO THE AGENT UNDER THIS AGREEMENT. EACH BORROWER
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO ANY BORROWER AT ITS
ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE
TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH
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 CREDIT DOCUMENT THAT SERVICE OF
PROCESS WAS IN ANY WAY INVALID OR EFFECTIVE. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE AGENT UNDER THIS AGREEMENT, ANY
BANK OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST ANY BORROWER IN ANY OTHER
JURISDICTION.
(b) EACH 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 AGREEMENT OR ANY OTHER
CREDIT 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) THE COMPANY HEREBY AGREES WITH EACH SUBSIDIARY
BORROWER, THE AGENT AND EACH BANK THAT THE COMPANY IRREVOC-
ABLY ACCEPTS SUCH APPOINTMENT AS AGENT AS SET FORTH IN CLAUSE
(a) OF THIS SECTION 13.08 AND AGREES THAT THE COMPANY (i)
SHALL INFORM THE AGENT PROMPTLY IN WRITING OF ANY CHANGE OF
ITS ADDRESS, (ii) SHALL NOTIFY THE AGENT OF ANY TERMINATION
OF ANY OF THE AGENCY RELATIONSHIPS CREATED BY CLAUSE (a) OF
THIS SECTION 13.08, (iii) SHALL PERFORM ITS OBLIGATIONS AS
SUCH AGENT IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE (a) OF
THIS SECTION 13.08 AND (iv) SHALL FORWARD PROMPTLY TO EACH
SUBSIDIARY BORROWER ANY LEGAL PROCESS RECEIVED BY THE COMPANY
IN ITS CAPACITY AS PROCESS AGENT. AS PROCESS AGENT, THE
COMPANY AGREES TO DISCHARGE THE ABOVE-MENTIONED OBLIGATIONS
AND WILL NOT REFUSE FULFILLMENT OF SUCH OBLIGATIONS UNDER
CLAUSE (a) OF THIS SECTION 13.08. IN ADDITION, THE COMPANY
AGREES THAT IT SHALL MAINTAIN ITS QUALIFICATION TO DO
BUSINESS IN THE STATE OF NEW YORK AND SHALL AT ALL TIMES HAVE
A REGISTERED AGENT IN NEW YORK TO RECEIVE SERVICE OF PROCESS.
(d) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING
TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSAC-
TIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be exe-
cuted in any number of counterparts and by the different
parties hereto on separate counterparts, each of which when
so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
A set of counterparts executed by all the parties hereto
shall be lodged with the Borrowers and the Agent.
13.10 Effectiveness. This Agreement shall become
effective on the date (the "Effective Date") on which (i)
each Borrower and each of the Banks shall have signed a
counterpart hereof (whether the same or different
counterparts) and shall have delivered the same to the Agent
at its Notice Office or, in the case of the Banks, shall have
given to the Agent telephonic (confirmed in writing), written
or telex notice (actually received) at such office that the
same has been signed and mailed to it and (ii) all conditions
contained in Sections 5.01 and 5.02(a) are met to the
satisfaction of the Agent and the Required Banks (determined
after giving effect to the Effective Date). Unless the Agent
has received actual notice from any Bank that the condition
described in clause (ii) of the preceding sentence has not
been met to its satisfaction, upon the satisfaction of the
conditions described in clause (i) of the immediately
preceding sentence and upon the Agent's good faith
determination that the conditions described in clause (ii) of
the immediately preceding sentence have been met, then the
Effective Date shall be deemed to have occurred, regardless
of any subsequent determination that one or more of the
conditions thereto had not been met (although the occurrence
of the Effective Date shall not release any Borrower from any
liability or prevent the existence of an Event of Default
based upon failure to satisfy one or more of the applicable
conditions contained in Sections 5.01 and 5.02(a)). The
Agent will give each Borrower and each Bank prompt written
notice of the occurrence of the Effective Date.
13.11 Headings Descriptive. The headings of the
several sections and subsections of this Agreement are in-
serted for convenience only and shall not in any way affect
the meaning or construction of any provision of this Agree-
ment.
13.12 Amendment or Waiver; etc. (a) Neither this
Agreement nor any other Credit Document nor any terms hereof
or thereof may be changed, waived, discharged or terminated
unless such change, waiver, discharge or termination is in
writing signed by the Borrowers and the Required Banks,
provided that no such change, waiver, discharge or
termination shall, without the consent of each Bank (with
Obligations being directly affected in the case of following
clause (i)), (i) extend the final scheduled maturity of any
Loan or Note or extend the stated maturity of any Letter of
Credit beyond the Final Maturity Date, or reduce the rate or
extend the time of payment of interest or Fees thereon, or
reduce the principal amount thereof (except to the extent
repaid in cash), (ii) amend, modify or waive any provision of
this Section 13.12, (iii) reduce the percentage specified in
the definition of Required Banks (it being understood that,
with the consent of the Required Banks, additional extensions
of credit pursuant to this Agreement may be included in the
determination of the Required Banks on substantially the same
basis as the extensions of Term Loans and Revolving Loan
Commitments are included on the Effective Date), (iv) release
the Company from its obligations under the Company Guaranty
or (v) consent to the assignment or transfer by any Borrower
of any of its rights and obligations under this Agreement;
provided further, that no such change, waiver, discharge or
termination shall (x) increase the Commitments of any Bank
over the amount thereof then in effect without the consent of
such Bank (it being understood that waivers or modifications
of conditions precedent, covenants, Defaults or Events of
Default or of a mandatory reduction in the Total Commitment
shall not constitute an increase of the Commitment of any
Bank, and that an increase in the available portion of any
Commitment of any Bank shall not constitute an increase in
the Commitment of such Bank), (y) without the consent of
BTCo, amend, modify or waive any provision of Section 2 or
alter its rights or obligations with respect to Letters of
Credit or Swingline Loans or (z) without the consent of the
Agent, amend, modify or waive any provision of Section 11 as
same applies to the Agent or any other provision as same
relates to the rights or obligations of the Agent.
(b) If, in connection with any proposed change,
waiver, discharge or termination with respect to any of the
provisions of this Agreement as contemplated by clauses (i)
through (v), inclusive, of the first proviso to Section
13.12(a), the consent of the Required Banks is obtained but
the consent of one or more of such other Banks whose consent
is required is not obtained, then the Company shall have the
right, so long as all non-consenting Banks whose individual
consent is required are treated as described in either clause
(A) or (B) below, to either (A) replace each such non-
consenting Bank or Banks with one or more Replacement Banks
pursuant to Section 1.13 so long as at the time of such
replacement, each such Replacement Bank consents to the pro-
posed change, waiver, discharge or termination or (B) termi-
nate such non-consenting Bank's Revolving Loan Commitment and
Term Loan Commitment (if not theretofore terminated) in
accordance with Sections 3.02(b) and/or 4.01(iv), provided
that, unless the Commitments are terminated, and Loans re-
paid, pursuant to preceding clause (B) are immediately re-
placed in full at such time through the addition of new Banks
or the increase of the Commitments and/or outstanding Loans
of existing Banks (who in each case must specifically consent
thereto), then in the case of any action pursuant to preced-
ing clause (B) the Required Banks (determined before giving
effect to the proposed action) shall specifically consent
thereto, provided further, that in any event the Company
shall not have the right to replace a Bank, terminate any of
its Commitments or repay its Loans solely as a result of the
exercise of such Bank's rights (and the withholding of any
required consent by such Bank) pursuant to the second proviso
to Section 13.12(a).
13.13 Survival. All indemnities set forth herein
including, without limitation, in Sections 1.10, 1.11, 2.06,
4.04, 13.01 and 13.06 shall survive the execution, delivery
and termination of this Agreement and the Notes and the
making and repayment of the Loans.
13.14 Domicile of Loans. Each Bank may transfer
and carry its Loans at, to or for the account of any office,
Subsidiary or Affiliate of such Bank. Notwithstanding any-
thing to the contrary contained herein, to the extent that a
transfer of Loans pursuant to this Section 13.14 would, at
the time of such transfer, result in increased costs under
Section 1.10, 1.11, 2.06 or 4.04 from those being charged by
the respective Bank prior to such transfer, then the
Borrowers shall not be obligated to pay such increased costs
(although the Borrowers shall be obligated to pay any other
increased costs of the type described above resulting from
changes after the date of the respective transfer).
13.15 Confidentiality. (a) Subject to the provi-
sions of clause (b) of this Section 13.15, each Bank agrees
that it will use its best efforts not to disclose without the
prior consent of the Company (other than to its employees,
auditors, advisors or counsel or to another Bank if the Bank
or such Bank's holding or parent company in its sole
discretion determines that any such party should have access
to such information, provided such Persons shall be subject
to the provisions of this Section 13.15 to the same extent as
such Bank) any information with respect to the Company or any
of its Subsidiaries which is now or in the future furnished
pursuant to this Agreement or any other Credit Document and
which is designated by the Company to the Banks in writing as
confidential, provided that any Bank may disclose any such
information (a) as has become generally available to the
public, (b) as may be required or appropriate in any report,
statement or testimony submitted to any municipal, state or
Federal regulatory body having or claiming to have
jurisdiction over such Bank or to the Federal Reserve Board
or the Federal Deposit Insurance Corporation or similar
organizations (whether in the United States or elsewhere) or
their successors, (c) as may be required or appropriate in
respect to any summons or subpoena or in connection with any
litigation, (d) in order to comply with any law, order, regu-
lation or ruling applicable to such Bank, (e) to the Agent
and (f) to any prospective or actual transferee or
participant in connection with any contemplated transfer or
participation of any of the Notes or Commitments or any in-
terest therein by such Bank, provided, that such prospective
transferee executes an agreement with such Bank containing
provisions substantially the same as to those contained in
this Section.
(b) Each Borrower hereby acknowledges and agrees
that each Bank may share with any of its affiliates any
information related to the Company or any of its Subsidiaries
(including, without limitation, any nonpublic customer
information regarding the creditworthiness of the Company and
its Subsidiaries, provided such Persons shall be subject to
the provisions of this Section 13.15 to the same extent as
such Bank).
13.16 Register. Each Borrower hereby designates
the Agent to serve as such Borrower's agent, solely for
purposes of this Section 13.16, to maintain a register (the
"Register") on which it will record the Commitments from time
to time of each of the Banks, the Loans made by each of the
Banks and each repayment in respect of the principal amount
of the Loans of each Bank. Failure to make any such
recordation, or any error in such recordation shall not
affect such Borrower's obligations in respect of such Loans.
With respect to any Bank, the transfer of the Commitments of
such Bank and the rights to the principal of, and interest
on, any Loan made pursuant to such Commitments shall not be
effective until such transfer is recorded on the Register
maintained by the Agent with respect to ownership of such
Commitments and Loans and prior to such recordation all
amounts owing to the transferor with respect to such Commit-
ments and Loans shall remain owing to the transferor. The
registration of assignment or transfer of all or part of any
Commitments and Loans shall be recorded by the Agent on the
Register only upon the acceptance by the Agent of a properly
executed and delivered Assignment and Assumption Agreement
pursuant to Section 13.04(b). Coincident with the delivery
of such an Assignment and Assumption Agreement to the Agent
for acceptance and registration of assignment or transfer of
all or part of a Loan, or as soon thereafter as practicable,
the assigning or transferor Bank shall surrender the Note
evidencing such Loan, and thereupon one or more new Notes in
the same aggregate principal amount shall be issued to the
assigning or transferor Bank and/or the new Bank. The
Borrowers jointly and severally agree to indemnify the Agent
from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on,
asserted against or incurred by the Agent in performing its
duties under this Section 13.16.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
their duly authorized officers to execute and deliver this
Agreement as of the date first above written.
Address: SEALED AIR CORPORATION
Park 80 East
Saddle Brook, New Jersey 07662
Attention: Robert M. Grace, Jr., Esq.
Telephone: (201) 791-7600
Telecopy: (201) 703-4205 By
Title: Senior Vice
President-Finance
c/o Sealed Air Corporation SEALED AIR B.V.
Park 80 East
Saddle Brook, New Jersey 07662
Attention: Robert M. Grace, Jr., Esq.
Telephone: (201) 791-7600
Telecopy: (201) 703-4205
By
Title: Managing Director
c/o Sealed Air Corporation SIGNED AS A DEED BY:
Park 80 East
Saddle Brook, New Jersey 07662 SEALED AIR LIMITED
Attention: Robert M. Grace, Jr., Esq.
Telephone: (201) 791-7600
Telecopy: (201) 703-4205
By
Title: Attorney-in-Fact
BANKERS TRUST COMPANY,
Individually and as
Agent
By
Title:
ABN AMRO BANK N.V.
NEW YORK BRANCH
By
Title:
By
Title:
THE BANK OF NOVA SCOTIA
By
Title:
BANQUE FRANCAISE DU
COMMERCE EXTERIEUR
By
Title:
By
Title:
COMPAGNIE FINANCIERE DE
CIC ET DE L'UNION
EUROPEENE
By
Title:
By
Title:
CORESTATES BANK, N.A.
By
Title:
CREDIT LYONNAIS,
NEW YORK BRANCH
By
Title:
THE FIRST NATIONAL BANK
OF BOSTON
By
Title:
FLEET BANK N.A.
By
Title:
NATIONSBANK OF NORTH
CAROLINA, N.A.
By
Title:
THE NORTHERN TRUST
COMPANY
By
Title:
TORONTO DOMINION
(NEW YORK), INC.
By
Title:
UNITED JERSEY BANK
By
Title:
<PAGE>
SCHEDULE I
COMMITMENTS
Term Loan Revolving Loan
Commitment Commitment
Bankers Trust Company $100,000,000 $22,000,000
ABN AMRO Bank N.V.
New York Branch 0 21,000,000
Credit Lyonnais, New
York Branch 0 21,000,000
NationsBank of North
Carolina, N.A. 0 21,000,000
United Jersey Bank 0 21,000,000
Compagnie Financiere
de CIC et de L'Union
Europeenne 0 15,000,000
Toronto Dominion (New
York), Inc. 0 15,000,000
Banque Francaise du
Commerce Exterieur 0 8,000,000
Corestates Bank, N.A. 0 8,000,000
The Northern Trust
Company 0 8,000,000
The First National
Bank of Boston 0 5,000,000
The Bank of Nova
Scotia 0 5,000,000
Fleet Bank N.A. 0 5,000,000
$100,000,000 $175,000,000
<PAGE>
SCHEDULE II
SUBSIDIARIES
See attached.<PAGE>
SCHEDULE III
EXISTING INDEBTEDNESS
See attached.<PAGE>
SCHEDULE IV
EXISTING LIENS
See attached.<PAGE>
SCHEDULE V
BANK ADDRESSES
BANKERS TRUST COMPANY
130 Liberty Street
30th Floor
New York, New York 10006
Tel: (212) 250-9590
Fax: (212) 250-7218
Attn: Mr. Robert Megan
ABN AMRO BANK N.V., NEW YORK BRANCH
500 Park Avenue
New York, New York 10022
Tel: (212) 446-4238
Fax: (212) 759-4792
Attn: Ms. Olga L. Zoutendijk
BANQUE FRANCAISE du COMMERCE EXTERIEUR
645 Fifth Avenue- 20th Floor
New York, New York 10022
Tel: (212) 872-5194
Fax: (212) 872-5045
Attn: Mr. David S. Kopp
COMPAGNIE FINANCIERE de CIC et de L'UNION EUROPEENNE
520 Madison Avenue- 37th Floor
New York, New York 10022
Tel: (212) 715-4422
Fax: (212) 715-4535
Attn: Mr. Alain Merle d'Aubigne
CREDIT LYONNAIS, NEW YORK BRANCH
1301 Avenue of the Americas- 18th Floor
New York, New York 10019
Tel: (212) 261-7344
Fax: (212) 459-3179
Attn: Mr. John Oberle
<PAGE>
SCHEDULE V
Page 2
NATIONSBANK of NORTH CAROLINA, N.A.
767 Fifth Avenue- 5th Floor
New York, New York 10153-0083
Tel: (212) 644-4447
Fax: (212) 751-6909
Attn: Mr. Scott Jackson
UNITED JERSEY BANK
25 East Salem Street
Hackensack, New Jersey 07602
Tel: (201) 646-6283
Fax: (201) 343-6723
Attn: Mr. Lawrence F. Zema
CORESTATES BANK, N.A.
Northeast Corporate
FC 1-8-12-3
PO Box 7618
Philadelphia, Pennsylvania 19101-7618
Tel: (215) 973-7667
Fax: (215) 973-7820
Attn: Mr. Thomas J. McDonnell
TORONTO DOMINION (NEW YORK), INC.
31 West 52nd Street
New York, New York 10019-6101
Tel: (212) 468-0585
Fax: (212) 262-1926
Attn: Mr. Robert G. Harris
THE NORTHERN TRUST COMPANY
50 South LaSalle Street- B-2
Chicago, Illinois 60675
Tel: (312) 444-3541
Fax: (312) 444-3508
Attn: Mr. Michael Bryan
<PAGE>
SCHEDULE V
Page 3
THE BANK OF NOVA SCOTIA
One Liberty Plaza
New York, New York 10006
Tel: (212) 225-5061
Fax: (212) 225-5090,1
Attn: Mr. Todd Meller
THE FIRST NATIONAL BANK OF BOSTON
U.S. Multinational Division
100 Federal Street
Boston, Massachusetts 02106-2016
Tel: (617) 434-3904
Fax: (617) 434-0601
Attn: Ms. Paula Zaiken
FLEET BANK N.A.
263 Tresser Boulevard
Stamford, Connecticut 06901
Tel: (203) 351-1605
Fax: (203) 351-1511
Attn: Ms. Dorothy Bambach
