<PAGE>
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 September 30, 1996
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 42,475,746 shares of the registrant's common stock,
par value $0.01 per share, outstanding as of October 31, 1996.
<\PAGE>
<PAGE>
PART I
FINANCIAL INFORMATION
<TABLE>
SEALED AIR CORPORATION AND SUBSIDIARIES
Consolidated Statements of Earnings
For the Three Months and Nine Months Ended September 30, 1996 and 1995
(In thousands of dollars except per share data)
(Unaudited)
<CAPTION>
For the For the
Three Months Ended Nine Months Ended
September 30 September 30
1996 1995 1996 1995
<S> <C> <C> <C> <C>
Net sales $196,532 $178,536 $575,578 $533,977
Cost of sales 123,406 116,104 361,050 347,584
Gross profit 73,126 62,432 214,528 186,393
Marketing, administrative
and development expenses 40,929 35,561 119,921 107,742
Operating profit 32,197 26,871 94,607 78,651
Other income (expense):
Interest income 334 59 964 589
Interest expense (3,314) (4,445) (10,653) (14,735)
Other, net (879) (266) (1,269) (2,293)
Other income (expense), net (3,859) (4,652) (10,958) (16,439)
Earnings before income taxes 28,338 22,219 83,649 62,212
Income taxes 11,197 8,777 33,045 24,574
Net earnings $ 17,141 $ 13,442 $ 50,604 $ 37,638
Net earnings per common share $ 0.40 $ .32 $ 1.19 $ .90
Weighted average number of
shares outstanding (000) 42,473 42,156 42,445 42,003
See accompanying notes to consolidated financial statements.
</TABLE>
2
<\PAGE>
<PAGE>
<TABLE>
SEALED AIR CORPORATION
Consolidated Balance Sheets
September 30, 1996 and December 31, 1995
(In thousands of dollars except share data)
(Unaudited)
<CAPTION>
September 30, December 31,
1996 1995
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 7,470 $ 7,661
Accounts receivable, less allowance
for doubtful accounts of $6,528 in
1996 and $5,261 in 1995 125,962 116,446
Other receivables 6,659 6,170
Inventories 60,609 54,500
Prepaid expenses 3,129 2,470
Deferred taxes 8,787 8,912
Total current assets 212,616 196,159
Property and equipment:
Land and buildings 79,551 77,603
Machinery and equipment 191,461 177,832
Leasehold improvements 6,952 6,766
Furniture and fixtures 11,722 11,956
Construction in progress 13,740 10,711
303,426 284,868
Less accumulated depreciation and
amortization 129,959 115,012
Property and equipment, net 173,467 169,856
Patents, patent applications and rights,
less accumulated amortization of
$14,990 in 1996 and $13,619 in 1995 13,792 12,107
Excess of cost over fair value of net assets
acquired, less accumulated amortization
of $11,578 in 1996 and $7,607 in 1995 41,946 41,932
Other assets 42,399 23,491
$484,220 $443,545
See accompanying notes to consolidated financial statements.
</TABLE>
3
<\PAGE>
<PAGE>
<TABLE>
SEALED AIR CORPORATION
Consolidated Balance Sheets
September 30, 1996 and December 31, 1995 (Continued)
(In thousands of dollars except share data)
(Unaudited)
<CAPTION>
September 30, December 31,
1996 1995
<S> <C> <C>
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Notes payable and current
installments of long-term debt $ 26,310 $ 36,840
Accounts payable 45,780 44,460
Accrued interest 1,085 1,560
Other accrued liabilities 65,351 55,624
Income taxes payable 12,794 15,730
Total current liabilities 151,320 154,214
Long-term debt, less current
installments 128,781 149,808
Deferred income taxes 23,750 21,875
Other non-current liabilities 14,989 11,310
Total liabilities 318,840 337,207
Shareholders' equity:
Common stock, $.01 par value. Authorized
60,000,000 shares in 1996 and 1995, issued
42,686,254 shares in 1996 and 42,506,573
shares in 1995 427 425
Additional paid-in capital 164,326 158,400
Retained earnings (deficit) (2,704) (53,308)
Accumulated translation adjustment 8,537 7,279
170,586 112,796
Less deferred compensation and cost ($227
in 1996 and $246 in 1995) of 225,758 shares
in 1996 and 224,758 shares in 1995 of common
stock held as treasury stock 5,206 6,458
Shareholders' equity 165,380 106,338
$484,220 $443,545
See accompanying notes to consolidated financial statements.
</TABLE>
4
<\PAGE>
<PAGE>
<TABLE>
SEALED AIR CORPORATION AND SUBSIDIARIES
Consolidated Statements (abbreviated) of Cash Flows
For the Nine Months Ended September 30, 1996 and 1995
(In thousands of dollars)
(Unaudited)
<CAPTION>
1996 1995
<S> <C> <C>
Cash Flows From Operating Activities:
Net earnings $ 50,604 $ 37,638
Adjustments to net earnings to reconcile to net
cash provided by operating activities:
Depreciation and amortization 29,427 25,648
Deferred credits - income taxes and other (3,880) (3,605)
Net losses on disposals of fixed assets 47 246
Other, net (2,144) (1,435)
Cash provided (used) by changes in:
Receivables (7,957) (18,562)
Inventories (2,214) (6,058)
Prepaid expenses (390) (880)
Accounts payable (41) (6,900)
Accrued interest (475) 518
Other accrued liabilities 13,493 5,676
Income taxes payable (3,134) 3,891
Net cash provided by operating activities 73,336 36,177
Cash Flows From Investing Activities:
Capital expenditures for property and equipment (11,816) (13,652)
Proceeds from sales of property and equipment 1,009 371
Net cash utilized in purchase of subsidiaries (30,032) (24,157)
Net cash used in investing activities (40,839) (37,438)
Cash Flows From Financing Activities:
Proceeds from long-term debt 99,086 64,924
Payments of long-term debt (132,080) (78,520)
Net proceeds on notes payable 315 11,141
Net cash used by financing activities (32,679) (2,455)
Effect of exchange rate changes on cash and cash
equivalents (9) 191
Cash and Cash Equivalents:
Increase (decrease) during the period (191) (3,525)
Balance, beginning of period 7,661 11,153
Balance, end of period $ 7,470 $ 7,628
Supplemental Disclosures of Cash Flow Information
Cash paid during the period for:
Interest $ 10,737 $ 13,997
Income taxes $ 35,981 $ 21,323
See accompanying notes to consolidated financial statements.
</TABLE>
5
<\PAGE>
<PAGE>
SEALED AIR CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements
September 30, 1996 and 1995
(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 of normal recurring accruals) necessary
for a fair presentation of the results of operations for the
period ended September 30, 1996 have been made.
Where appropriate, financial statement amounts for prior periods
have been reclassified to conform with their 1996 presentation.
(2) Income Taxes
An explanation of the differences 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 nine months
ended September 30, 1996 and 1995 follows:
1996 1995
Statutory U.S. federal income tax rate 35.0% 35.0%
Provision for foreign withholding taxes and
additional U.S. taxes on the accumulated
earnings of foreign subsidiaries (0.2) 1.4
Tax effect of U.S. expenses not subject to
tax benefit 0.2 1.0
State income taxes, net of U.S. federal
income tax benefit 4.2 4.1
Taxes on foreign earnings at other than the
statutory U.S. federal income tax rate 1.0 (0.7)
Other miscellaneous items (0.7) (1.3)
Effective income tax rate 39.5% 39.5%
(3) Acquisitions
On June 28, 1996, the Company acquired the Australian and New
Zealand protective packaging business of Southcorp Holdings
Limited for cash. This acquisition was accounted for as a
purchase and was not material to the Company's consolidated
financial statements.
6
<\PAGE>
<PAGE>
SEALED AIR CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements
September 30, 1996 and 1995
(Unaudited)
(3) Acquisitions (con't.)
In July 1996, the Company acquired the air cellular business of
BP Chemicals Plastec GmbH, a German manufacturer of air cellular
products. In August 1996, the Company acquired the remaining 50%
of the outstanding capital stock of Cascades Sealed Air Inc., a
Canadian manufacturer of polyethylene foam products, and acquired
the remaining 78% of the outstanding capital stock of Norlepak
Oy, a distributor of packaging materials in Finland. These
transactions, each of which was effected for cash and accounted
for as a purchase, were not material to the Company's
consolidated financial statements.
7
<\PAGE>
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
Results of Operations
Net sales increased 10% in the third quarter and 8% in the first
nine months of 1996 compared to the third quarter and first nine
months of 1995. The increase in net sales was due primarily to
increased unit volume in certain of the Company's major classes
of products, higher average selling prices and, to a lesser
extent in the nine-month period, the additional net sales of
products arising from recent foreign acquisitions that are
discussed below.
Net sales from domestic operations increased 9% in the third
quarter and 7% in the first nine months of 1996 while net sales
from foreign operations increased 12% in the third quarter and 8%
in the first nine months of 1996 compared to the 1995 periods.
Net sales from foreign operations in the third quarter benefited
from the acquisitions discussed below.
Net sales of engineered products, primarily Instapak(R) products
and thick polyethylene foams, increased 11% in the third quarter
and 13% in the first nine months of 1996 primarily due to
increased unit volume and, to a lesser extent, higher average
selling prices for certain products.
Net sales of surface protection and other cushioning products,
primarily air cellular products, other polyethylene foam products
and protective and durable mailers and bags, increased 15% in the
third quarter and 9% in the first nine months compared to the
1995 periods. For the third quarter of 1996, in addition to
increased unit volume, this increase in net sales reflected
additional net sales from the Australasian protective packaging
business of Southcorp Holdings Limited (the "Southcorp
Acquisition") that was completed at the end of June and from
8
<\PAGE>
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
other small foreign acquisitions that were completed in the third
quarter of 1996.
Net sales of food packaging products decreased 5% in the third
quarter but increased 2% in the first nine months compared with
the 1995 periods. In the third quarter, this decrease primarily
reflected the effects of a small joint venture in Australia that
is now handling the marketing of certain food packaging products
in that country and of lower unit volume in certain products.
The sales of such joint venture are not consolidated with the
sales of the Company. Net sales of Dri-Loc(R) products increased
modestly in the first nine months of 1996. However, the effect of
such increase was offset in the third quarter by decreases in net
sales of other food packaging products due to the reasons
discussed above.
Net sales of other products increased to $7,992,000 from
$7,743,000 in the third quarter of 1995 primarily due to
increased volume of the Company's mill tonnage paper products.
However, net sales of other products decreased to $21,960,000
from $26,874,000 in the first nine months of 1995. Although unit
volume of the Company's mill tonnage paper products increased in
the third quarter, this increase only partially offset the
decrease in net sales in the first nine months of 1996 as
compared to the 1995 period.
Cost of sales increased 6% in the third quarter and 4% in the
first nine months of 1996 primarily reflecting the Company's
higher level of net sales partially offset by the effect of
certain lower raw material costs.
9
<\PAGE>
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
Gross profit increased 17% in the third quarter and 15% in the
first nine months of 1996 reflecting the Company's higher level
of net sales and the proportionately lower increase in cost of
sales discussed above. As a result, as a percent of net sales,
gross profit increased to 37% in the third quarter and first nine
months of 1996 compared to 35% in the 1995 periods.
Marketing, administrative and development expenses increased 15%
in the third quarter and 11% in the first nine months of 1996,
and increased modestly as a percentage of net sales in each
period, primarily reflecting the higher level of net sales as
well as the Company's continued global expansion efforts,
including costs associated with the acquisitions mentioned above.
Operating profit increased 20% in the third quarter and first
nine months of 1996 primarily reflecting the Company's higher net
sales and the changes in costs and expenses discussed above.
Interest expense, which is the principal component of other
income (expense), net, decreased to $3,314,000 in the third
quarter and to $10,653,000 in the first nine months of 1996
compared to $4,445,000 and $14,735,000 in the third quarter and
first nine months of 1995, respectively, primarily reflecting a
decrease in the Company's average outstanding indebtedness and,
to a lesser extent, lower effective interest rates during the
1996 periods.
The Company's effective income tax rate was 39.5% in the third
quarter and first nine months of 1996 and 1995.
10
<\PAGE>
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
Net earnings increased 28% to $17,141,000, or $0.40 per share,
for the third quarter and 34% to $50,604,000, or $1.19 per share,
for the first nine months of 1996 compared with net earnings of
$13,442,000, or $0.32 per share, and $37,638,000, or $0.90 per
share, for the third quarter and first nine months of 1995
primarily reflecting the Company's higher level of operating
profit and lower interest expense.
Liquidity and Capital Resources
The Company's principal sources of liquidity are cash flows from
operations and amounts available under the Company's existing
lines of credit. The Company has met, and currently expects that
it will continue to meet, substantially all of its working
capital and capital expenditure requirements as well as its debt
servicing requirements with funds provided by operations and
borrowings made either under its available lines of credit or
otherwise.
Net cash provided by operating activities amounted to $73,336,000
in the first nine months of 1996 compared with $36,177,000 for
the 1995 period. The increase in net cash provided by operating
activities in 1996 was primarily due to increased net earnings
and a lower net amount of cash used by changes in certain working
capital items. The changes in receivables, inventories and
accounts payable reflect the Company's higher level of operations
as well as a higher level of efficiency in working capital
utilization. The change in accrued liabilities reflects
increased operations as well as the Company's global expansion
efforts including costs associated with the acquisitions
mentioned above. The lower amount of cash provided by operations
in 1995 included the effect on operating cash flows of
integrating into the Company the activities of Trigon Industries
11
<\PAGE>
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
Limited, which was acquired in early 1995 (the "Trigon
Acquisition"), and other businesses acquired during 1994.
Net cash used in investing activities of $40,839,000 and
$37,438,000 for the first nine months of 1996 and 1995,
respectively, primarily included, in the 1996 period, net cash
used in connection with the Southcorp Acquisition and other small
acquisitions and, in the 1995 period, the Trigon Acquisition.
Cash used for capital expenditures amounted to $11,816,000 in the
first nine months of 1996 compared with $13,652,000 in the 1995
period.
Net cash used in financing activities amounted to $32,679,000 in
the first nine months of 1996 compared with $2,455,000 in the
first nine months of 1995. Net repayments of long-term debt in
the 1996 period more than offset borrowings incurred in such
period. Borrowings incurred in connection with the Trigon
Acquisition in 1995 and working capital borrowings offset
substantially all of the net repayments of long-term debt in the
1995 period.
At September 30, 1996, the Company's working capital amounted to
$61,296,000, or 13% of total assets, compared with $41,945,000,
or 9% of total assets, at December 31, 1995. This increase in
working capital was due primarily to increases in accounts
receivable and inventory and a decrease in notes payable and
current installments of long-term debt, partially offset by an
increase in other accrued liabilities. Accounts receivable and
inventory increased during the first nine months of 1996 due
primarily to the higher level of operations. Notes payable and
current installments of long-term debt decreased primarily due to
repayments made during the first nine months of 1996. Accrued
12
<\PAGE>
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
liabilities increased primarily due to the increased level of
operations as well as the Company's continued global expansion
efforts as discussed above.
The Company's ratio of current assets to current liabilities
(current ratio) was 1.4 at September 30, 1996 and 1.3 at December
31, 1995. The Company's ratio of current assets less inventory
to current liabilities (quick ratio) was 1.0 at September 30,
1996 and 0.9 at December 31, 1995.
Long-term debt, less current installments, decreased to
$128,781,000 at September 30, 1996 from $149,808,000 at December
31, 1995 reflecting repayments of indebtedness that were
partially offset by additional long-term indebtedness incurred in
connection with the Southcorp Acquisition and other small
acquisitions. Notes payable and current installments of long-
term debt decreased to $26,310,000 at September 30, 1996 from
$36,840,000 at December 31, 1995 primarily due to net repayments
made in the first nine months of 1996. At September 30, 1996,
the Company's available lines of credit amounted to approximately
$256,423,000 of which approximately $156,819,000 were unused.
Such lines of credit permit the Company and certain of its
subsidiaries to borrow for working capital and other corporate
purposes.
In August 1996, the Company's 1994 credit agreement with Bankers
Trust Company, as agent for a syndicate of banks, was amended and
restated. Such credit agreement, as amended and restated (the
"1996 Credit Agreement"), provides for an unsecured $200 million
revolving credit facility that expires on June 30, 2001.
13
<\PAGE>
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
The Company's obligations under the 1996 Credit Agreement and
certain other loans and other lines of credit bear interest at
floating rates. The Company has entered into certain interest
rate swap and collar agreements that have the effect of fixing or
limiting changes in the interest rates on a portion of the
Company's floating-rate debt.
The 1996 Credit Agreement provides for changes in interest rate
margins based on certain financial criteria and imposes certain
limitations on the operations of the Company and its subsidiaries
that include restrictions on the incurrence of additional
indebtedness, the creation of liens, the making of investments,
dispositions of property or assets, certain transactions with
affiliates, and the payment by the Company of cash dividends to
its stockholders as well as financial covenants relating to
interest coverage and debt leverage. The Company was in
compliance with these requirements as of September 30, 1996.
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 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 shareholders' equity increased to $165,380,000 at
September 30, 1996 from $106,338,000 at December 31, 1995
14
<\PAGE>
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
primarily as a result of the Company's net earnings for the first
nine months of 1996 and the value of shares of common stock
issued during the first nine months of 1996 for non-cash
compensation.
15
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<PAGE>
PART II
OTHER INFORMATION
Item 2. Changes in Securities.
On August 22, 1996, the Company and certain of its
subsidiaries entered into an amendment and restatement of the
Credit Agreement dated as of June 8, 1994 with Bankers Trust
Company, as agent for a syndicate of banks (such Credit
Agreement, as amended and restated, being referred to herein as
the "1996 Credit Agreement"), providing for a five-year $200
million unsecured revolving credit facility. The Company may
increase the aggregate principal amount that may be drawn under
such Agreement to $250,000,000, upon terms and conditions
provided for in the 1996 Credit Agreement. The following summary
of certain provisions in the 1996 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 1996 Credit
Agreement, a copy of which is filed as an exhibit to this
Quarterly Report on Form 10-Q.
Under the 1996 Credit Agreement, the Company has agreed
to maintain (i) an Interest Coverage Ratio (as defined in the
1996 Credit Agreement) of not less than 3.5:1 and (ii) a Leverage
Ratio (as defined in the 1996 Credit Agreement) of not more than 3.0:1.
Under the 1996 Credit Agreement, the Company has also
agreed, among other things, to certain limitations upon the
Company or any subsidiary (i) incurring liens, (ii) paying
dividends, making distributions or repurchasing capital stock,
(iii) engaging in transactions with affiliates other than on
arm's length terms, (iv) making loans, advances, guarantees or
investments, or (v) effecting mergers, consolidation,
acquisitions, or sales of assets. The Company has also agreed to
certain limitations upon its subsidiaries incurring, assuming or
guaranteeing indebtedness or engaging in certain sale-leaseback
transactions.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
Exhibit Number Description
3.1 Amendments to By-Laws of the Company adopted on
November 5, 1996.
3.2 By-Laws of the Company as currently in effect.
16
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<PAGE>
Exhibit Number Description
4 Amended and Restated Credit Agreement among the
Company, certain of its subsidiaries, Bankers Trust
Company, as agent, and various financial
institutions, dated as of June 8, 1994 and amended
and restated as of August 22, 1996.
27 Financial Data Schedule.
(b) Reports on Form 8-K
The Company did not file any reports on Form 8-K
during the fiscal quarter ended September 30, 1996.
17
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<PAGE>
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: November 13, 1996 By s/Jeffrey S. Warren
Jeffrey S. Warren
Controller
(Authorized Officer and
Chief Accounting Officer)
18
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<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
The schedule contains summary information extracted from the consolidated
statements of earnings for the nine months ended September 30, 1996 and the
consolidated balance sheet at September 30, 1996 and is qualified in its
entirety by reference to such financial statements.
</LEGEND>
<CIK> 0000088204
<NAME> SEALED AIR CORPORATION
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> SEP-30-1996
<CASH> 7,470,000
<SECURITIES> 0
<RECEIVABLES> 132,490,000
<ALLOWANCES> 6,528,000
<INVENTORY> 60,609,000
<CURRENT-ASSETS> 212,616,000
<PP&E> 303,426,000
<DEPRECIATION> 129,959,000
<TOTAL-ASSETS> 484,220,000
<CURRENT-LIABILITIES> 151,320,000
<BONDS> 0
<COMMON> 427,000
0
0
<OTHER-SE> 164,953,000
<TOTAL-LIABILITY-AND-EQUITY> 484,220,000
<SALES> 575,578,000
<TOTAL-REVENUES> 575,578,000
<CGS> 361,050,000
<TOTAL-COSTS> 361,050,000
<OTHER-EXPENSES> 119,921,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 10,653,000
<INCOME-PRETAX> 83,649,000
<INCOME-TAX> 33,045,000
<INCOME-CONTINUING> 50,604,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 50,604,000
<EPS-PRIMARY> 1.19
<EPS-DILUTED> 0
</TABLE>
EXHIBIT 3.1
Marked to show amendments adopted November 5, 1996.
Additions are capitalized and deletions are in brackets.
BY LAWS
OF
SEALED AIR CORPORATION
(as amended through [December 16, 1993)] NOVEMBER 5, 1996)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office
of the Corporation shall be in Wilmington, Delaware.
Section 2. Other Offices. The Corporation may also
have offices at such other places within and without the State of
Delaware as the board of directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place. Meetings of the stockholders shall
be held at such place either within or without the State of
Delaware as shall be designated from time to time by the board of
directors.
Section 2. Annual Meetings. Annual meetings of
stockholders shall, unless otherwise provided by the board of
directors, be held on the third Friday in May each year if not a
legal holiday, and if a legal holiday, then on the next full
business day following, at 11:00 A.M., at which the stockholders
shall elect a board of directors, vote upon the ratification of
the selection of the independent auditors selected for the
Corporation for the then current fiscal year of the Corporation,
and transact such other business as may properly be brought
before the meeting.
Section 3. Notice of Annual Meetings. Written notice
of the annual meeting, stating the place, date and hour thereof,
shall be given to each stockholder entitled to vote thereat not
less than ten nor more than sixty days before the date of the
meeting.
Section 4. List of Stockholders. The officer who has
charge of the stock ledger of the Corporation shall prepare and
make or cause to be prepared and made, at least ten days before
every meeting of stockholders, a complete list of the
stockholders entitled to vote at said meeting, arranged in
alphabetical order with the address of and the number of voting
shares registered in the name of each. Such list shall be open
for ten days prior to the meeting to the examination of any
stockholders, for any purpose germane to the meeting, during
ordinary business hours, either at a place within the city where
the meeting is to be held, which place shall be specified in the
notice of meeting, or, if not so specified, at the place where
the meeting is to be held, and shall be produced and kept at the
time and place of said meeting during the whole time thereof, and
may be inspected by any stockholder who is present.
Section 5. Special Meetings. Special meetings of the
stockholders may be called by the [president] CHAIRMAN OF THE
BOARD, BY THE CHIEF EXECUTIVE OFFICER, by resolution of the board
of directors, or at the request in writing of stockholders owning
a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote. Any
such resolution or request shall state the purpose or purposes of
the proposed meeting.
Section 6. Notice of Special Meetings. Written notice
of a special meeting of stockholders, stating the place, date,
hour and purpose thereof, shall be given by the secretary to each
stockholder entitled to vote thereat, not less than ten nor more
than sixty days before the date fixed for the meeting.
Section 7. Business Transacted. Business transacted
at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
Section 8. Quorum. The holders of a majority of the
stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute a
quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not
be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting
from time to time, without notice other than announcement at the
meeting, so long as the adjournment is not for more than thirty
days and a new record date is not fixed for the adjourned
meeting, until a quorum shall be present or represented. If a
quorum shall be present or represented at such adjourned meeting,
any business may be transacted which might have been transacted
at the original meeting.
Section 9. Vote Required. When a quorum is present at
any meeting, the vote of the holders of a majority of the stock
having voting power present in person or represented by proxy
shall decide any question brought before such meeting, unless the
question is one upon which by express provision of the statutes
or of the certificate of incorporation a different vote is
required, in which case such express provision shall govern and
control the decision of such question.
Section 10. Proxies, Etc. Each stockholder shall at
every meeting of the stockholders be entitled to one vote in
person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be
voted on after three years from its date, unless the proxy
provides for a longer period. No proxy or power of attorney to
vote shall be used to vote at a meeting of the stockholders
unless it shall have been filed with the secretary of the meeting
when required by the inspectors of election.
Section 11. Inspectors of Election. In advance of any
meeting of the stockholders, the board of directors or the
presiding officer of such meeting shall appoint two or more
inspectors of election to act at such meeting or at any
adjournments thereof and make a written report thereof. One or
more persons may also be designated by the board of directors or
such presiding officer as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able
to act at a meeting of stockholders, the presiding officer of
such meeting shall appoint one or more inspectors to act at such
meeting. No director or nominee for the office of director at
such meeting shall be appointed an inspector of election. Each
inspector, before entering on the discharge of his duties, shall
first take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according
to the best of his ability. The inspectors of election shall, in
accordance with the requirements of the Delaware General
Corporation Law, (i) ascertain the number of shares outstanding
and the voting power of each, (ii) determine the shares
represented at the meeting and the validity of proxies and
ballots, (iii) count all votes and ballots, (iv) determine and
retain for a reasonable period and file with the secretary of the
meeting a record of the disposition of any challenges made to any
determination by the inspectors, and (v) make and file with the
secretary of the meeting a certificate of their determination of
the number of shares represented at the meeting and their count
of all votes and ballots. The inspectors may appoint or retain
other persons or entities to assist the inspectors in the
performance of the duties of the inspectors.
Section 12. Action by Consent. Whenever the vote of
stockholders at a meeting thereof is required or permitted to be
taken for or in connection with any corporate action by any
provision of the statutes, the meeting and vote of stockholders
may be dispensed with if all of the stockholders who would have
been entitled to vote, or less than all but not less than the
holders of a majority of the stock entitled to vote upon the
action if such meeting were held shall consent in writing to such
corporate action being taken; provided that the written consent
shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted; and provided
further that prompt notice shall be given to all stockholders of
the taking of corporate action without a meeting and by less than
unanimous written consent.
ARTICLE III
DIRECTORS
Section 1. Number. The number of directors which
shall constitute the whole board of directors shall be fixed from
time to time by resolution of the board of directors, but no
decrease in the number of directors effected by any such
resolution shall change the term of any director in office at the
time that any such resolution is adopted. The directors shall
be elected at the annual meeting of stockholders, except as
provided in Section 2 of this Article, and each director shall
hold office until his successor is elected and qualified or until
his earlier resignation or removal. Directors need not be
stockholders.
Section 2. Vacancies. Vacancies and newly created
directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors
then in office, though less than a quorum, or by a sole remaining
director, and each of the directors so chosen shall hold office
until the next annual election and until his successor is elected
and qualified or until his earlier resignation or removal.
Section 3. Authority. The business of the Corporation
shall be managed by or under the direction of its board of
directors, which shall exercise all such powers of the
Corporation and do all such lawful acts and things as are not by
statute, by the certificate of incorporation or by these by-laws
directed or required to be exercised or done by the stockholders
or are not by these by-laws or by resolution of the board of
directors or a committee thereof, in either case not inconsistent
with the statutes, the certificate of incorporation or these by-
laws, authorized or directed to be done by the officers of the
Corporation.
Section 4. Place of Meeting. The board of directors
of the Corporation or any committee thereof may hold meetings,
both regular and special, either within or without the State of
Delaware.
Section 5. Annual Meeting. The first meeting of each
newly elected board of directors shall be held immediately
following the adjournment of the ANNUAL meeting of stockholders.
No notice of such meeting shall be necessary to the directors in
order legally to constitute the meeting, provided a quorum be
present. In the event such meeting is not so held, the meeting
may be held at such time and place as shall be specified in a
notice given as hereinafter provided for special meetings of the
board of directors.
Section 6. Regular Meetings. Regular meetings of the
board of directors may be held without notice at such time and at
such place as shall from time to time be determined by the board
of directors.
Section 7. Special Meetings. Special meetings of the
board of directors may be called by the CHAIRMAN OF THE BOARD,
THE CHIEF EXECUTIVE OFFICER OR THE president and shall be called
by the PRESIDENT OR THE secretary [upon the instructions of the
president or] on the written request of at least two directors.
Notice of special meetings of the board of directors shall be
given to each director at least three calendar days before the
meeting if by mail or at least the calendar day before the
meeting if given in person or by telephone, telegraph, telex or
similar means of electronic transmission. The notice need not
specify the business to be transacted.
Section 8. Emergency Meetings. In the event of an
emergency which in the judgment of the CHAIRMAN OF THE BOARD, THE
CHIEF EXECUTIVE OFFICER OR THE president requires immediate
action, a special meeting may be convened without notice,
consisting of those directors who are immediately available in
person or by telephone and can be joined in the meeting in person
or by conference telephone. The actions taken at such a meeting
shall be valid if at least a quorum of the directors participates
either personally or by conference telephone.
Section 9. Quorum; Vote Required. At meetings of the
board of directors, a majority of the directors at the time in
office shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting
at which there is a quorum shall be the act of the board of
directors. If a quorum shall not be present at any meeting of
the board of directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
SECTION 10. ORGANIZATION. THE BOARD OF DIRECTORS MAY
ELECT ONE OF ITS MEMBERS TO BE CHAIRMAN OF THE BOARD AND MAY FILL
ANY VACANCY IN THE POSITION OF CHAIRMAN OF THE BOARD AT SUCH TIME
AND IN SUCH MANNER AS THE BOARD OF DIRECTORS SHALL DETERMINE.
THE CHAIRMAN OF THE BOARD MAY BUT NEED NOT BE AN OFFICER OF OR
EMPLOYED IN AN EXECUTIVE OR OTHER CAPACITY BY THE CORPORATION.
THE CHAIRMAN OF THE BOARD SHALL PRESIDE AT MEETINGS OF THE BOARD
OF DIRECTORS AND LEAD THE BOARD IN FULFILLING ITS
RESPONSIBILITIES AS DEFINED IN SECTION 3 OF THIS ARTICLE. IN THE
ABSENCE OF THE CHAIRMAN OF THE BOARD OR IF THERE SHOULD BE NO
CHAIRMAN OF THE BOARD, THE CHIEF EXECUTIVE OFFICER SHALL PRESIDE
AT MEETINGS OF THE BOARD.
Section [10] 11. Committees. The board of directors may,
by resolution adopted by a majority of the whole board, designate
one or more committees, each committee to consist of two or more
of the directors of the Corporation, which, to the extent
provided in the resolution, shall have any exercise the powers of
the board of directors in the management of the business and
affairs of the Corporation, including the power and authority to
declare a dividend, to authorize the issuance of stock, and to
adopt a Certificate of Ownership and Merger pursuant to Section
253 of the Delaware General Corporation Law, and may authorize
the seal of the Corporation to be affixed to all papers which may
require it; provided that no such committee shall have the power
or authority to amend the certificate of incorporation, adopt an
agreement of merger or consolidation, recommend to the
stockholders the sale, lease or exchange of all or substantially
all of the Corporation's property and assets, recommend to the
stockholders a dissolution of the Corporation or a revocation of
a dissolution, or amend the by-laws of the Corporation. Such
committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board
of directors. Unless the board of directors designates one or
more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the
committee, the members of any such committee present at any
meeting and not disqualified from voting may, whether or not they
constitute a quorum, unanimously appoint another member of the
board of directors to act at the meeting in the place of any
absent or disqualified member of such committee. At meetings of
any such committee, a majority of the members or alternate
members of such committee shall constitute a quorum for the
transaction of business, and the act of a majority of members or
alternate members present at any meeting at which there is a
quorum shall be the act of the committee.
Section [11] 12. Minutes of Committee Meetings. The
committees shall keep regular minutes of their proceedings and,
when requested to do so by the board, shall report the same to
the board of directors.
Section [12] 13. Action by Written Consent. Any
action required or permitted to be taken at any meeting of the
board of directors or of any committee thereof may be taken
without a meeting if a written consent thereto is signed by all
members of the board or of such committee, as the case may be,
and such written consent is filed with the minutes of proceedings
of the board or committee.
Section [13] 14. Participation by Conference
Telephone. The members of the board of directors or any
committee thereof may participate in a meeting of such board or
committee by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other and such
participation shall constitute presence in person at such
meeting.
Section [14] 15. Compensation of Directors. The
directors may be paid their expenses of attendance at each
meeting of the board of directors or of any special or standing
committee thereof. The board of directors may establish by
resolution from time to time the fees to be paid to each director
who is not an officer or employee of the Corporation or any of
its subsidiaries for serving as a director of the Corporation,
for serving on any special or standing committee of the board of
directors, and for attending meetings of the board of directors
or of any special or standing committee thereof. No such payment
shall preclude any such director from serving the Corporation in
any other capacity and receiving compensation therefor.
ARTICLE IV
NOTICES
Section 1. Giving of Notice. Notices to directors and
stockholders mailed to them at their addresses appearing on the
books of the Corporation shall be deemed to be given at the time
when deposited in the United States mail.
Section 2. Waiver of Notice. Whenever any notice is
required to be given under the provisions of the statutes or of
the certificate of incorporation or of these by-laws, a waiver
thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a person at
a meeting shall constitute a waiver of notice of such meeting
except when the person attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or
convened.
ARTICLE V
OFFICERS
Section 1. Selection of Officers. The officers of the
Corporation shall be chosen by the board of directors at its
first meeting after each annual meeting of stockholders and shall
be a [president] CHIEF EXECUTIVE OFFICER, who shall be a
director, A PRESIDENT, one or more vice presidents [, a general
counsel] and a secretary. Any number of offices may be held by
the same person.
Section 2. Other Officers. The board of directors
may appoint such other officers, assistant officers and agents as
it desires who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be
determined from time to time by the board.
Section 3. Term of Office, Etc. The officers of the
Corporation shall hold office at the pleasure of the board of
directors. Each officer shall hold his office until his
successor is elected and qualified or until his earlier
resignation or removal. Any officer may resign at any time upon
written notice to the Corporation. Any officer elected or
appointed by the board of directors may be removed at any time by
the board of directors. Any vacancy occurring in any office of
the Corporation by death, resignation, removal or otherwise shall
be filled by the board of directors.
Section 4. [President. The president shall be the]
CHIEF EXECUTIVE OFFICER. THE chief executive officer of the
Corporation [,] shall preside at all meetings of the stockholders
[and the board of directors], shall have the responsibility for
the general and active management and control of the affairs and
business of the Corporation, shall perform all duties and have
all powers which are commonly incident to the office of chief
executive or which are delegated to him by the board of
directors, and shall see that all orders and resolutions of the
board of directors are carried into effect. The [president]
CHIEF EXECUTIVE OFFICER shall have the authority to sign all
CERTIFICATES OF STOCK, BONDS, DEEDS, contracts and other
instruments of the Corporation that are authorized and shall have
general supervision and direction of all of the other officers
and agents of the Corporation.
SECTION 5. PRESIDENT. THE PRESIDENT, WHO MAY ALSO BE
THE CHIEF EXECUTIVE OFFICER OF THE CORPORATION, SHALL PERFORM ALL
DUTIES AND HAVE ALL POWERS WHICH ARE COMMONLY INCIDENT TO THE
OFFICE OF PRESIDENT OR WHICH ARE DELEGATED TO HIM BY THE BOARD OF
DIRECTORS, AND SHALL SEE THAT ALL ORDERS AND RESOLUTIONS OF THE
BOARD OF DIRECTORS ARE CARRIED INTO EFFECT. IN THE ABSENCE OR
DISABILITY OF THE CHIEF EXECUTIVE OFFICER, THE PRESIDENT SHALL
EXERCISE PERFORM THE DUTIES AND EXERCISE THE POWERS OF THE CHIEF
EXECUTIVE OFFICER. THE PRESIDENT SHALL HAVE THE AUTHORITY TO
SIGN ALL CERTIFICATES OF STOCK, BONDS, DEEDS, CONTRACTS AND OTHER
INSTRUMENTS OF THE CORPORATION THAT ARE AUTHORIZED.
Section [5] 6. Vice Presidents. The vice presidents
shall act under the direction of the [president] CHIEF EXECUTIVE
OFFICER and in the absence or disability of BOTH THE CHIEF
EXECUTIVE OFFICER AND the president shall perform the duties and
exercise the powers of the [president] CHIEF EXECUTIVE OFFICER.
They shall perform such other duties and have such other powers
as the [president] CHIEF EXECUTIVE OFFICER or the board of
directors may from time to time prescribe. The board of
directors may designate one or more executive or senior vice
presidents or may otherwise specify the order of seniority of the
vice presidents, and in that event the duties and powers of the
[president] CHIEF EXECUTIVE OFFICER shall descend to the vice
presidents in such specified order of seniority.
[Section 6. Vice President-Finance. One of the vice
presidents shall be designated as the vice president-finance. The
vice president-finance of the Corporation shall be, and shall
have the usual powers of, the chief financial officer and the
chief accounting officer of the Corporation. Subject to the
direction of the president and not in limitation of his powers as
chief financial officer and chief accounting officer, the vice
president-finance shall have the custody of corporate funds and
securities, shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation, shall
deposit all moneys and other valuable effects in the name and to
the credit of the Corporation is such depositories as may be
designated under authority of the board of directors, shall
maintain adequate records of all assets, liabilities and
transactions of the Corporation and see that adequate audits
thereof are currently and regularly made. He shall disburse the
funds of the Corporation as may be ordered under authority of the
president or the board of directors, taking proper vouchers for
such disbursements, and shall render to the president and the
board of directors at its regular meetings, or when the president
or the board of directors so requires, an account of the
financial condition of the Corporation and an account of all his
transactions as vice president-finance of the Corporation. He
shall also supervise the accounts of any company which the
Corporation controls by stock ownership or otherwise. He shall
have all of the powers of a treasurer of a corporation and shall
be the officer designated to sign any instrument for which the
signature of a treasurer of a corporation is needed by reason of
any requirement of statute, by-law or otherwise. ]
Section 7. Secretary. The secretary shall act under
the direction of the [president] CHIEF EXECUTIVE OFFICER.
Subject to the direction of the [president] CHIEF EXECUTIVE
OFFICER, he shall attend all meetings of the board of directors
and all meetings of the stockholders and record the proceedings
in a book to be kept for that purpose, and he shall perform like
duties for the standing committees of the board of directors when
requested to do so. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the
board of directors, shall have charge of the original stock
books, stock transfer books and stock ledgers of the Corporation,
and shall perform such other duties as may be prescribed by the
[president] CHIEF EXECUTIVE OFFICER or the board of directors.
He shall have custody of the seal of the Corporation and cause it
to be affixed to any instrument requiring it, and when so
affixed, it may be attested by his signature. The board of
directors may give general authority to any other officer to
affix the seal of the Corporation and to attest the affixing by
his signature.
Section 8. Assistant Secretaries. The assistant
secretaries in order of their seniority, unless otherwise
determined by the [president] CHIEF EXECUTIVE OFFICER or the
board of directors, shall, in the absence or disability of the
secretary, perform the duties and exercise the powers of the
secretary. They shall perform such other duties and have such
other powers as the [president] CHIEF EXECUTIVE OFFICER or the
board of directors may from time to time prescribe.
[Section 9. General Counsel. The general counsel of the
Corporation shall act under the direction of the president of the
Corporation, shall be the chief legal officer of the Corporation,
shall have all the usual duties and responsibilities of the
general counsel of a corporation, shall supervise and have
general responsibility for the legal affairs of the Corporation,
and shall render to the board of directors at its regular
meetings, or when the board of directors or the president so
requires, reports of matters affecting the legal affairs of the
Corporation.]
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Issuance. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by,
or in the name of the Corporation by, THE CHAIRMAN OF THE BOARD
(OR THE VICE CHAIRMAN OF THE BOARD, IF ANY), the president or a
vice president and the treasurer or an assistant treasurer or the
secretary or an assistant secretary of the Corporation,
certifying the number of shares owned by him in the Corporation.
Section 2. Facsimile Signatures. If a certificate is
countersigned (a) by a transfer agent other than the Corporation
or its employee, or (b) by a registrar other than the Corporation
or its employee, the signatures of the officers of the
Corporation may be facsimiles. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall cease to be such
officer, transfer agent or registrar before such certificate is
issued, it may be issued with the same effect as if he were such
officer, transfer agent or registrar at the date of issue. The
seal of the Corporation or a facsimile thereof may, but need not,
be affixed to certificates of stock.
Section 3. Lost Certificates, Etc. The board of
directors may establish procedures for the issuance of a new
certificate of stock in place of any certificate theretofore
issued by the Corporation alleged to have been lost, stolen or
destroyed and may in connection therewith require, among other
things, the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed
and the giving by such person to the Corporation of a bond in
such sum as may be specified pursuant to such procedures as
indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfer. Upon surrender to the
Corporation or the transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it
shall be the duty of the Corporation, if it shall be satisfied
that all provisions of the certificate of incorporation, of the
by-laws and of the law regarding the transfer of shares have been
duly complied with, to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 5. Registered Stockholders. The Corporation
shall be entitled to recognize the person registered on its books
as the owner of shares to be the exclusive owner for all purposes
including voting and dividends, and the Corporation shall not be
bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
Section 6. Record Date. In order that the Corporation
may determine the stockholders entitled to notice of or to vote
at any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the board of
directors may fix, in advance, a record date, which shall not be
more than sixty or less than ten days before the date of such
meeting, and not more than sixty days prior to any other action.
A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the board of
directors may fix a new record date for the adjourned meeting.
ARTICLE VII
MISCELLANEOUS
Section 1. Declaration of Dividends. Dividends upon
the shares of the capital stock of the Corporation may be
declared and paid by the board of directors from the funds
legally available therefor. Dividends may be paid in cash, in
property, or in shares of the capital stock of the corporation.
Section 2. Reserves. The directors of the Corporation
may set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for such purposes
as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such
reserve.
Section 3. Fiscal Year. The fiscal year of the
Corporation shall be fixed by resolution of the board of
directors.
Section 4. Corporate Seal. The corporate seal shall
have inscribed thereon the name of the Corporation, the year of
its organization and the words "Corporate Seal, Delaware". The
seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any other manner reproduced.
ARTICLE VIII
INDEMNIFICATION
Section 1. In General. Any person who was or is a
party or is threatened to be made a party to or is involved in
any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or
a person of whom is the legal representative, is or was a
director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation or for its benefit
as a director, officer, employee or agent of another corporation,
or as its representative in a partnership, joint venture, trust
or other enterprise, shall be indemnified and held harmless to
the fullest extent legally permissible under and pursuant to any
procedure specified in or pursuant to the General Corporation Law
of the State of Delaware, as amended from time to time, from and
against any and all expenses, liabilities and losses (including
without limitation attorney's fees, judgments, fines and amounts
paid or to be paid in settlement) actually and reasonably
incurred or suffered by him in connection therewith. Such right
of indemnification shall be a contract right which may be
enforced in any manner desired by such person. Such right of
indemnification shall not be exclusive of any other right which
such directors, officers, employees, agents or representatives
may have or hereafter acquire and, without limiting the
generality of the foregoing, they shall be entitled to their
respective rights of indemnification under any by-law, agreement,
vote of stockholders or the board of directors, provision of law
or otherwise, as well as their rights under this Article.
Section 2. Insurance. The board of directors may
cause the Corporation to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of
another corporation or as its representative in a partnership,
joint venture, trust or other enterprise against any liability
asserted against such person and incurred in any such capacity,
or arising out of such status, whether or not the Corporation
would have the power to indemnify such person against such
liability.
Section 3. Additional Indemnification. The board of
directors may from time to time adopt further by-laws with
respect to indemnification and may amend these by-laws and such
by-laws to provide at all times the fullest indemnification
permitted by the General Corporation Law of the State of
Delaware, as amended from time to time.
ARTICLE IX
AMENDMENTS
Section 1. By the Stockholders. The by-laws may be
amended by a majority vote of all the stock issued and
outstanding and entitled to vote at any annual or special meeting
of the stockholders, provided that notice of intention to amend
shall have been contained in the notice of the meeting.
Section 2. By the Board of Directors. The board of
directors by a majority vote of the whole board at any meeting
may amend these by-laws, including by-laws adopted by the
stockholders, but the stockholders may from time to time specify
particular provisions of the by-laws which shall not be amended
by the board of directors.
EXHIBIT 3.2
BY LAWS
OF
SEALED AIR CORPORATION
(as amended through November 5, 1996)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office
of the Corporation shall be in Wilmington, Delaware.
Section 2. Other Offices. The Corporation may also
have offices at such other places within and without the State of
Delaware as the board of directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place. Meetings of the stockholders shall
be held at such place either within or without the State of
Delaware as shall be designated from time to time by the board of
directors.
Section 2. Annual Meetings. Annual meetings of
stockholders shall, unless otherwise provided by the board of
directors, be held on the third Friday in May each year if not a
legal holiday, and if a legal holiday, then on the next full
business day following, at 11:00 A.M., at which the stockholders
shall elect a board of directors, vote upon the ratification of
the selection of the independent auditors selected for the
Corporation for the then current fiscal year of the Corporation,
and transact such other business as may properly be brought
before the meeting.
Section 3. Notice of Annual Meetings. Written notice
of the annual meeting, stating the place, date and hour thereof,
shall be given to each stockholder entitled to vote thereat not
less than ten nor more than sixty days before the date of the
meeting.
Section 4. List of Stockholders. The officer who has
charge of the stock ledger of the Corporation shall prepare and
make or cause to be prepared and made, at least ten days before
every meeting of stockholders, a complete list of the
stockholders entitled to vote at said meeting, arranged in
alphabetical order with the address of and the number of voting
shares registered in the name of each. Such list shall be open
for ten days prior to the meeting to the examination of any
stockholders, for any purpose germane to the meeting, during
ordinary business hours, either at a place within the city where
the meeting is to be held, which place shall be specified in the
notice of meeting, or, if not so specified, at the place where
the meeting is to be held, and shall be produced and kept at the
time and place of said meeting during the whole time thereof, and
may be inspected by any stockholder who is present.
Section 5. Special Meetings. Special meetings of the
stockholders may be called by the chairman of the board, by the
chief executive officer, by resolution of the board of directors,
or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the Corporation issued and
outstanding and entitled to vote. Any such resolution or request
shall state the purpose or purposes of the proposed meeting.
Section 6. Notice of Special Meetings. Written notice
of a special meeting of stockholders, stating the place, date,
hour and purpose thereof, shall be given by the secretary to each
stockholder entitled to vote thereat, not less than ten nor more
than sixty days before the date fixed for the meeting.
Section 7. Business Transacted. Business transacted
at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
Section 8. Quorum. The holders of a majority of the
stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute a
quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not
be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting
from time to time, without notice other than announcement at the
meeting, so long as the adjournment is not for more than thirty
days and a new record date is not fixed for the adjourned
meeting, until a quorum shall be present or represented. If a
quorum shall be present or represented at such adjourned meeting,
any business may be transacted which might have been transacted
at the original meeting.
Section 9. Vote Required. When a quorum is present at
any meeting, the vote of the holders of a majority of the stock
having voting power present in person or represented by proxy
shall decide any question brought before such meeting, unless the
question is one upon which by express provision of the statutes
or of the certificate of incorporation a different vote is
required, in which case such express provision shall govern and
control the decision of such question.
Section 10. Proxies, Etc. Each stockholder shall at
every meeting of the stockholders be entitled to one vote in
person or by proxy for each share of the capital stock having
voting power held by such stockholder, but no proxy shall be
voted on after three years from its date, unless the proxy
provides for a longer period. No proxy or power of attorney to
vote shall be used to vote at a meeting of the stockholders
unless it shall have been filed with the secretary of the meeting
when required by the inspectors of election.
Section 11. Inspectors of Election. In advance of any
meeting of the stockholders, the board of directors or the
presiding officer of such meeting shall appoint two or more
inspectors of election to act at such meeting or at any
adjournments thereof and make a written report thereof. One or
more persons may also be designated by the board of directors or
such presiding officer as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able
to act at a meeting of stockholders, the presiding officer of
such meeting shall appoint one or more inspectors to act at such
meeting. No director or nominee for the office of director at
such meeting shall be appointed an inspector of election. Each
inspector, before entering on the discharge of his duties, shall
first take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according
to the best of his ability. The inspectors of election shall, in
accordance with the requirements of the Delaware General
Corporation Law, (i) ascertain the number of shares outstanding
and the voting power of each, (ii) determine the shares
represented at the meeting and the validity of proxies and
ballots, (iii) count all votes and ballots, (iv) determine and
retain for a reasonable period and file with the secretary of the
meeting a record of the disposition of any challenges made to any
determination by the inspectors, and (v) make and file with the
secretary of the meeting a certificate of their determination of
the number of shares represented at the meeting and their count
of all votes and ballots. The inspectors may appoint or retain
other persons or entities to assist the inspectors in the
performance of the duties of the inspectors.
Section 12. Action by Consent. Whenever the vote of
stockholders at a meeting thereof is required or permitted to be
taken for or in connection with any corporate action by any
provision of the statutes, the meeting and vote of stockholders
may be dispensed with if all of the stockholders who would have
been entitled to vote, or less than all but not less than the
holders of a majority of the stock entitled to vote upon the
action if such meeting were held shall consent in writing to such
corporate action being taken; provided that the written consent
shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted; and provided
further that prompt notice shall be given to all stockholders of
the taking of corporate action without a meeting and by less than
unanimous written consent.
ARTICLE III
DIRECTORS
Section 1. Number. The number of directors which
shall constitute the whole board of directors shall be fixed from
time to time by resolution of the board of directors, but no
decrease in the number of directors effected by any such
resolution shall change the term of any director in office at the
time that any such resolution is adopted. The directors shall
be elected at the annual meeting of stockholders, except as
provided in Section 2 of this Article, and each director shall
hold office until his successor is elected and qualified or until
his earlier resignation or removal. Directors need not be
stockholders.
Section 2. Vacancies. Vacancies and newly created
directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors
then in office, though less than a quorum, or by a sole remaining
director, and each of the directors so chosen shall hold office
until the next annual election and until his successor is elected
and qualified or until his earlier resignation or removal.
Section 3. Authority. The business of the Corporation
shall be managed by or under the direction of its board of
directors, which shall exercise all such powers of the
Corporation and do all such lawful acts and things as are not by
statute, by the certificate of incorporation or by these by-laws
directed or required to be exercised or done by the stockholders
or are not by these by-laws or by resolution of the board of
directors or a committee thereof, in either case not inconsistent
with the statutes, the certificate of incorporation or these by-
laws, authorized or directed to be done by the officers of the
Corporation.
Section 4. Place of Meeting. The board of directors
of the Corporation or any committee thereof may hold meetings,
both regular and special, either within or without the State of
Delaware.
Section 5. Annual Meeting. The first meeting of each
newly elected board of directors shall be held immediately
following the adjournment of the annual meeting of stockholders.
No notice of such meeting shall be necessary to the directors in
order legally to constitute the meeting, provided a quorum be
present. In the event such meeting is not so held, the meeting
may be held at such time and place as shall be specified in a
notice given as hereinafter provided for special meetings of the
board of directors.
Section 6. Regular Meetings. Regular meetings of the
board of directors may be held without notice at such time and at
such place as shall from time to time be determined by the board
of directors.
Section 7. Special Meetings. Special meetings of the
board of directors may be called by the chairman of the board,
the chief executive officer or the president and shall be called
by the president or the secretary on the written request of at
least two directors. Notice of special meetings of the board of
directors shall be given to each director at least three calendar
days before the meeting if by mail or at least the calendar day
before the meeting if given in person or by telephone, telegraph,
telex or similar means of electronic transmission. The notice
need not specify the business to be transacted.
Section 8. Emergency Meetings. In the event of an
emergency which in the judgment of the chairman of the board, the
chief executive officer or the president requires immediate
action, a special meeting may be convened without notice,
consisting of those directors who are immediately available in
person or by telephone and can be joined in the meeting in person
or by conference telephone. The actions taken at such a meeting
shall be valid if at least a quorum of the directors participates
either personally or by conference telephone.
Section 9. Quorum; Vote Required. At meetings of the
board of directors, a majority of the directors at the time in
office shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting
at which there is a quorum shall be the act of the board of
directors. If a quorum shall not be present at any meeting of
the board of directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 10. Organization. The board of directors may
elect one of its members to be chairman of the board and may fill
any vacancy in the position of chairman of the board at such time
and in such manner as the board of directors shall determine.
The chairman of the board may but need not be an officer of or
employed in an executive or other capacity by the Corporation.
The chairman of the board shall preside at meetings of the board
of directors and lead the board in fulfilling its
responsibilities as defined in Section 3 of this Article. In the
absence of the chairman of the board or if there should be no
chairman of the board, the chief executive officer shall preside
at meetings of the board.
Section 11. Committees. The board of directors may,
by resolution adopted by a majority of the whole board, designate
one or more committees, each committee to consist of two or more
of the directors of the Corporation, which, to the extent
provided in the resolution, shall have any exercise the powers of
the board of directors in the management of the business and
affairs of the Corporation, including the power and authority to
declare a dividend, to authorize the issuance of stock, and to
adopt a Certificate of Ownership and Merger pursuant to Section
253 of the Delaware General Corporation Law, and may authorize
the seal of the Corporation to be affixed to all papers which may
require it; provided that no such committee shall have the power
or authority to amend the certificate of incorporation, adopt an
agreement of merger or consolidation, recommend to the
stockholders the sale, lease or exchange of all or substantially
all of the Corporation's property and assets, recommend to the
stockholders a dissolution of the Corporation or a revocation of
a dissolution, or amend the by-laws of the Corporation. Such
committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board
of directors. Unless the board of directors designates one or
more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the
committee, the members of any such committee present at any
meeting and not disqualified from voting may, whether or not they
constitute a quorum, unanimously appoint another member of the
board of directors to act at the meeting in the place of any
absent or disqualified member of such committee. At meetings of
any such committee, a majority of the members or alternate
members of such committee shall constitute a quorum for the
transaction of business, and the act of a majority of members or
alternate members present at any meeting at which there is a
quorum shall be the act of the committee.
Section 12. Minutes of Committee Meetings. The
committees shall keep regular minutes of their proceedings and,
when requested to do so by the board, shall report the same to
the board of directors.
Section 13. Action by Written Consent. Any action
required or permitted to be taken at any meeting of the board of
directors or of any committee thereof may be taken without a
meeting if a written consent thereto is signed by all members of
the board or of such committee, as the case may be, and such
written consent is filed with the minutes of proceedings of the
board or committee.
Section 14. Participation by Conference Telephone.
The members of the board of directors or any committee thereof
may participate in a meeting of such board or committee by means
of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear
each other and such participation shall constitute presence in
person at such meeting.
Section 15. Compensation of Directors. The directors
may be paid their expenses of attendance at each meeting of the
board of directors or of any special or standing committee
thereof. The board of directors may establish by resolution from
time to time the fees to be paid to each director who is not an
officer or employee of the Corporation or any of its subsidiaries
for serving as a director of the Corporation, for serving on any
special or standing committee of the board of directors, and for
attending meetings of the board of directors or of any special or
standing committee thereof. No such payment shall preclude any
such director from serving the Corporation in any other capacity
and receiving compensation therefor.
ARTICLE IV
NOTICES
Section 1. Giving of Notice. Notices to directors and
stockholders mailed to them at their addresses appearing on the
books of the Corporation shall be deemed to be given at the time
when deposited in the United States mail.
Section 2. Waiver of Notice. Whenever any notice is
required to be given under the provisions of the statutes or of
the certificate of incorporation or of these by-laws, a waiver
thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a person at
a meeting shall constitute a waiver of notice of such meeting
except when the person attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or
convened.
ARTICLE V
OFFICERS
Section 1. Selection of Officers. The officers of the
Corporation shall be chosen by the board of directors at its
first meeting after each annual meeting of stockholders and shall
be a chief executive officer, who shall be a director, a
president, one or more vice presidents and a secretary. Any
number of offices may be held by the same person.
Section 2. Other Officers. The board of directors
may appoint such other officers, assistant officers and agents as
it desires who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be
determined from time to time by the board.
Section 3. Term of Office, Etc. The officers of the
Corporation shall hold office at the pleasure of the board of
directors. Each officer shall hold his office until his
successor is elected and qualified or until his earlier
resignation or removal. Any officer may resign at any time upon
written notice to the Corporation. Any officer elected or
appointed by the board of directors may be removed at any time by
the board of directors. Any vacancy occurring in any office of
the Corporation by death, resignation, removal or otherwise shall
be filled by the board of directors.
Section 4. Chief Executive Officer. The chief
executive officer of the Corporation shall preside at all
meetings of the stockholders, shall have the responsibility for
the general and active management and control of the affairs and
business of the Corporation, shall perform all duties and have
all powers which are commonly incident to the office of chief
executive or which are delegated to him by the board of
directors, and shall see that all orders and resolutions of the
board of directors are carried into effect. The chief executive
officer shall have the authority to sign all certificates of
stock, bonds, deeds, contracts and other instruments of the
Corporation that are authorized and shall have general
supervision and direction of all of the other officers and agents
of the Corporation.
Section 5. President. The president, who may also be
the chief executive officer of the Corporation, shall perform all
duties and have all powers which are commonly incident to the
office of president or which are delegated to him by the board of
directors, and shall see that all orders and resolutions of the
board of directors are carried into effect. In the absence or
disability of the chief executive officer, the president shall
exercise perform the duties and exercise the powers of the chief
executive officer. The president shall have the authority to
sign all certificates of stock, bonds, deeds, contracts and other
instruments of the Corporation that are authorized.
Section 6. Vice Presidents. The vice presidents shall
act under the direction of the chief executive officer and in the
absence or disability of both the chief executive officer and the
president shall perform the duties and exercise the powers of the
chief executive officer. They shall perform such other duties
and have such other powers as the chief executive officer or the
board of directors may from time to time prescribe. The board of
directors may designate one or more executive or senior vice
presidents or may otherwise specify the order of seniority of the
vice presidents, and in that event the duties and powers of the
chief executive officer shall descend to the vice presidents in
such specified order of seniority.
Section 7. Secretary. The secretary shall act under
the direction of the chief executive officer. Subject to the
direction of the chief executive officer, he shall attend all
meetings of the board of directors and all meetings of the
stockholders and record the proceedings in a book to be kept for
that purpose, and he shall perform like duties for the standing
committees of the board of directors when requested to do so. He
shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the board of directors,
shall have charge of the original stock books, stock transfer
books and stock ledgers of the Corporation, and shall perform
such other duties as may be prescribed by the chief executive
officer or the board of directors. He shall have custody of the
seal of the Corporation and cause it to be affixed to any
instrument requiring it, and when so affixed, it may be attested
by his signature. The board of directors may give general
authority to any other officer to affix the seal of the
Corporation and to attest the affixing by his signature.
Section 8. Assistant Secretaries. The assistant
secretaries in order of their seniority, unless otherwise
determined by the chief executive officer or the board of
directors, shall, in the absence or disability of the secretary,
perform the duties and exercise the powers of the secretary.
They shall perform such other duties and have such other powers
as the chief executive officer or the board of directors may from
time to time prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Issuance. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by,
or in the name of the Corporation by, the chairman of the board
(or the vice chairman of the board, if any), the president or a
vice president and the treasurer or an assistant treasurer or the
secretary or an assistant secretary of the Corporation,
certifying the number of shares owned by him in the Corporation.
Section 2. Facsimile Signatures. If a certificate is
countersigned (a) by a transfer agent other than the Corporation
or its employee, or (b) by a registrar other than the Corporation
or its employee, the signatures of the officers of the
Corporation may be facsimiles. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall cease to be such
officer, transfer agent or registrar before such certificate is
issued, it may be issued with the same effect as if he were such
officer, transfer agent or registrar at the date of issue. The
seal of the Corporation or a facsimile thereof may, but need not,
be affixed to certificates of stock.
Section 3. Lost Certificates, Etc. The board of
directors may establish procedures for the issuance of a new
certificate of stock in place of any certificate theretofore
issued by the Corporation alleged to have been lost, stolen or
destroyed and may in connection therewith require, among other
things, the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed
and the giving by such person to the Corporation of a bond in
such sum as may be specified pursuant to such procedures as
indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfer. Upon surrender to the
Corporation or the transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it
shall be the duty of the Corporation, if it shall be satisfied
that all provisions of the certificate of incorporation, of the
by-laws and of the law regarding the transfer of shares have been
duly complied with, to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 5. Registered Stockholders. The Corporation
shall be entitled to recognize the person registered on its books
as the owner of shares to be the exclusive owner for all purposes
including voting and dividends, and the Corporation shall not be
bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
Section 6. Record Date. In order that the Corporation
may determine the stockholders entitled to notice of or to vote
at any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the board of
directors may fix, in advance, a record date, which shall not be
more than sixty or less than ten days before the date of such
meeting, and not more than sixty days prior to any other action.
A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the board of
directors may fix a new record date for the adjourned meeting.
ARTICLE VII
MISCELLANEOUS
Section 1. Declaration of Dividends. Dividends upon
the shares of the capital stock of the Corporation may be
declared and paid by the board of directors from the funds
legally available therefor. Dividends may be paid in cash, in
property, or in shares of the capital stock of the corporation.
Section 2. Reserves. The directors of the Corporation
may set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for such purposes
as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such
reserve.
Section 3. Fiscal Year. The fiscal year of the
Corporation shall be fixed by resolution of the board of
directors.
Section 4. Corporate Seal. The corporate seal shall
have inscribed thereon the name of the Corporation, the year of
its organization and the words "Corporate Seal, Delaware". The
seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any other manner reproduced.
ARTICLE VIII
INDEMNIFICATION
Section 1. In General. Any person who was or is a
party or is threatened to be made a party to or is involved in
any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or
a person of whom is the legal representative, is or was a
director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation or for its benefit
as a director, officer, employee or agent of another corporation,
or as its representative in a partnership, joint venture, trust
or other enterprise, shall be indemnified and held harmless to
the fullest extent legally permissible under and pursuant to any
procedure specified in or pursuant to the General Corporation Law
of the State of Delaware, as amended from time to time, from and
against any and all expenses, liabilities and losses (including
without limitation attorney's fees, judgments, fines and amounts
paid or to be paid in settlement) actually and reasonably
incurred or suffered by him in connection therewith. Such right
of indemnification shall be a contract right which may be
enforced in any manner desired by such person. Such right of
indemnification shall not be exclusive of any other right which
such directors, officers, employees, agents or representatives
may have or hereafter acquire and, without limiting the
generality of the foregoing, they shall be entitled to their
respective rights of indemnification under any by-law, agreement,
vote of stockholders or the board of directors, provision of law
or otherwise, as well as their rights under this Article.
Section 2. Insurance. The board of directors may
cause the Corporation to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of
another corporation or as its representative in a partnership,
joint venture, trust or other enterprise against any liability
asserted against such person and incurred in any such capacity,
or arising out of such status, whether or not the Corporation
would have the power to indemnify such person against such
liability.
Section 3. Additional Indemnification. The board of
directors may from time to time adopt further by-laws with
respect to indemnification and may amend these by-laws and such
by-laws to provide at all times the fullest indemnification
permitted by the General Corporation Law of the State of
Delaware, as amended from time to time.
ARTICLE IX
AMENDMENTS
Section 1. By the Stockholders. The by-laws may be
amended by a majority vote of all the stock issued and
outstanding and entitled to vote at any annual or special meeting
of the stockholders, provided that notice of intention to amend
shall have been contained in the notice of the meeting.
Section 2. By the Board of Directors. The board of
directors by a majority vote of the whole board at any meeting
may amend these by-laws, including by-laws adopted by the
stockholders, but the stockholders may from time to time specify
particular provisions of the by-laws which shall not be amended
by the board of directors.
EXHIBIT 4
[Conformed Copy]
AMENDED AND RESTATED
CREDIT AGREEMENT
among
SEALED AIR CORPORATION,
CERTAIN OF ITS SUBSIDIARIES,
VARIOUS BANKS,
ABN AMRO BANK N.V. NEW YORK BRANCH,
CREDIT LYONNAIS, NEW YORK BRANCH,
NATIONSBANK, N.A.
AND
SUMMIT BANK,
as Co-Agents,
and
BANKERS TRUST COMPANY,
as Agent
__________________________________
Dated as of June 8, 1994
and Amended and Restated
as of August 22, 1996
__________________________________
TABLE OF CONTENTS
Page
Section 1. Amount and Terms of Credit . . . . . . . . . . . . . . . . . 1
1.01 The Commitments . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Minimum Amount of Each Borrowing. . . . . . . . . . . . . . . 3
1.03 Notice of Borrowing . . . . . . . . . . . . . . . . . . . . . 4
1.04 Disbursement of Funds . . . . . . . . . . . . . . . . . . . . 5
1.05 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.06 Conversions . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.07 Pro Rata Borrowings . . . . . . . . . . . . . . . . . . . . . 7
1.08 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.09 Interest Periods. . . . . . . . . . . . . . . . . . . . . . . 8
1.10 Increased Costs, Illegality, etc. . . . . . . . . . . . . . . 9
1.11 Compensation. . . . . . . . . . . . . . . . . . . . . . . . . 11
1.12 Change of Lending Office. . . . . . . . . . . . . . . . . . . 12
1.13 Replacement of Banks. . . . . . . . . . . . . . . . . . . . . 12
Section 2. Letters of Credit. . . . . . . . . . . . . . . . . . . . . . 13
2.01 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . 13
2.02 Minimum Stated Amount . . . . . . . . . . . . . . . . . . . . 14
2.03 Letter of Credit Requests . . . . . . . . . . . . . . . . . . 14
2.04 Letter of Credit Participations . . . . . . . . . . . . . . . 15
2.05 Agreement to Repay Letter of Credit Drawings. . . . . . . . . 17
2.06 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3. Commitment Commission; Fees; Reductions of
Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.01 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.02 Voluntary Reduction of Commitments. . . . . . . . . . . . . . 19
3.03 Mandatory Reduction of Commitments. . . . . . . . . . . . . . 20
Section 4. Prepayments; Payments. . . . . . . . . . . . . . . . . . . . 20
4.01 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . 20
4.02 Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . 21
4.03 Method and Place of Payment . . . . . . . . . . . . . . . . . 22
4.04 Net Payments. . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5. Conditions Precedent . . . . . . . . . . . . . . . . . . . . 25
5.01 Conditions to Restatement Effective Date and
Credit Events on the Restatement Effective Date. . . . . . . . 25
5.02 Conditions to All Credit Events . . . . . . . . . . . . . . . 27
5.03 Subsidiary Borrowers, etc.. . . . . . . . . . . . . . . . . . 28
Section 6. Representations, Warranties and Agreements . . . . . . . . . 28
6.01 Corporate Status. . . . . . . . . . . . . . . . . . . . . . . 29
6.02 Corporate Power and Authority . . . . . . . . . . . . . . . . 29
6.03 No Violation. . . . . . . . . . . . . . . . . . . . . . . . . 29
6.04 Governmental Approvals. . . . . . . . . . . . . . . . . . . . 30
6.05 Financial Statements; Financial Condition;
Undisclosed Liabilities, etc.. . . . . . . . . . . . . . . . . 30
6.06 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.07 True and Complete Disclosure. . . . . . . . . . . . . . . . . 31
6.08 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . 31
6.09 Tax Returns and Payments. . . . . . . . . . . . . . . . . . . 32
6.10 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . 32
6.11 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . 33
6.12 Compliance with Statutes, etc.. . . . . . . . . . . . . . . . 33
6.13 Environmental Matters.. . . . . . . . . . . . . . . . . . . . 33
6.14 Investment Company Act. . . . . . . . . . . . . . . . . . . . 34
6.15 Public Utility Holding Company Act. . . . . . . . . . . . . . 34
6.16 Patents, Licenses, Franchises and Formulas. . . . . . . . . . 34
6.17 Properties. . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.18 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . 34
6.19 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 7. Affirmative Covenants. . . . . . . . . . . . . . . . . . . . 35
7.01 Information Covenants . . . . . . . . . . . . . . . . . . . . 35
7.02 Books, Records and Inspections. . . . . . . . . . . . . . . . 38
7.03 Maintenance of Property, Insurance. . . . . . . . . . . . . . 38
7.04 Corporate Franchises. . . . . . . . . . . . . . . . . . . . . 38
7.05 Compliance with Statutes, etc.. . . . . . . . . . . . . . . . 38
7.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.07 Performance of Obligations. . . . . . . . . . . . . . . . . . 40
7.08 Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . . 40
Section 8. Negative Covenants . . . . . . . . . . . . . . . . . . . . . 40
8.01 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.02 Consolidation, Merger, Sale of Assets, etc. . . . . . . . . . 43
8.03 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . 44
8.04 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . 44
8.05 Advances, Investments and Loans . . . . . . . . . . . . . . . 46
8.06 Transactions with Affiliates. . . . . . . . . . . . . . . . . 47
8.07 Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . 48
8.08 Leverage Ratio. . . . . . . . . . . . . . . . . . . . . . . . 48
8.09 Limitation on Modifications of Certificate of
Incorporation and By-Laws and Certain Other
Agreements; etc. . . . . . . . . . . . . . . . . . . . . . . . 48
8.10 Limitation on Restrictions on Subsidiary Divi-
dends and Other Distributions. . . . . . . . . . . . . . . . . 48
8.11 Limitation on Issuances of Capital Stock by
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 48
8.12 Business. . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 9. Events of Default. . . . . . . . . . . . . . . . . . . . . . 49
9.01 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.02 Representations, etc. . . . . . . . . . . . . . . . . . . . . 49
9.03 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.04 Default Under Other Agreements. . . . . . . . . . . . . . . . 49
9.05 Bankruptcy, etc.. . . . . . . . . . . . . . . . . . . . . . . 50
9.06 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
9.07 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.08 Company Guaranty. . . . . . . . . . . . . . . . . . . . . . . 51
9.09 Change in Control . . . . . . . . . . . . . . . . . . . . . . 51
Section 10. Definitions and Accounting Terms. . . . . . . . . . . . . . 52
10.01 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . 52
10.02 Principles of Construction . . . . . . . . . . . . . . . . . 72
Section 11. The Agent . . . . . . . . . . . . . . . . . . . . . . . . . 72
11.01 Appointment. . . . . . . . . . . . . . . . . . . . . . . . . 72
11.02 Nature of Duties . . . . . . . . . . . . . . . . . . . . . . 73
11.03 Lack of Reliance on the Agent. . . . . . . . . . . . . . . . 73
11.04 Certain Rights of the Agent. . . . . . . . . . . . . . . . . 73
11.05 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . 74
11.06 Indemnification. . . . . . . . . . . . . . . . . . . . . . . 74
11.07 The Agent in its Individual Capacity . . . . . . . . . . . . 74
11.08 Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . 74
11.09 Resignation by the Agent . . . . . . . . . . . . . . . . . . 75
Section 12. Company Guaranty. . . . . . . . . . . . . . . . . . . . . . 75
12.01 The Guaranty . . . . . . . . . . . . . . . . . . . . . . . . 75
12.02 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . 76
12.03 Nature of Liability. . . . . . . . . . . . . . . . . . . . . 76
12.04 Independent Obligation . . . . . . . . . . . . . . . . . . . 76
12.05 Authorization. . . . . . . . . . . . . . . . . . . . . . . . 76
12.06 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . 77
12.07 Subordination. . . . . . . . . . . . . . . . . . . . . . . . 77
12.08 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
12.09 Nature of Liability. . . . . . . . . . . . . . . . . . . . . 79
12.10 Judgments Binding. . . . . . . . . . . . . . . . . . . . . . 79
Section 13. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 79
13.01 Payment of Expenses, etc.. . . . . . . . . . . . . . . . . . 79
13.02 Right of Setoff. . . . . . . . . . . . . . . . . . . . . . . 80
13.03 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . 81
13.04 Benefit of Agreement; etc. . . . . . . . . . . . . . . . . . 81
13.05 No Waiver; Remedies Cumulative . . . . . . . . . . . . . . . 83
13.06 Payments Pro Rata. . . . . . . . . . . . . . . . . . . . . . 84
13.07 Calculations; Computations . . . . . . . . . . . . . . . . . 84
13.08 Governing Law; Submission to Jurisdiction;
Venue; Waiver Of Jury Trial. . . . . . . . . . . . . . . . . . 85
13.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 87
13.10 Effectiveness. . . . . . . . . . . . . . . . . . . . . . . . 87
13.11 Headings Descriptive . . . . . . . . . . . . . . . . . . . . 87
13.12 Amendment or Waiver; etc.. . . . . . . . . . . . . . . . . . 87
13.13 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . 88
13.14 Domicile of Loans. . . . . . . . . . . . . . . . . . . . . . 89
13.15 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . 89
13.16 Register . . . . . . . . . . . . . . . . . . . . . . . . . . 89
13.17 Judgment Currency. . . . . . . . . . . . . . . . . . . . . . 90
13.18 Return of Notes. . . . . . . . . . . . . . . . . . . . . . . 91
SCHEDULE I Commitments
SCHEDULE II Existing Letters of Credit
SCHEDULE III Existing Indebtedness
SCHEDULE IV Subsidiaries
SCHEDULE V Existing Liens
SCHEDULE VI Bank Addresses
EXHIBIT A Notice of Borrowing
EXHIBIT B-1 Revolving Note
EXHIBIT B-2 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 Assignment and Assumption Agreement
EXHIBIT H Election to Become a Subsidiary Borrower
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
June 8, 1994, and amended and restated as of August 22, 1996,
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, the Company, the Subsidiary Borrowers
party thereto, the Banks party thereto, and the Agent are parties
to a Credit Agreement, dated as of June 8, 1994 (as amended,
modified or supplemented prior to the date hereof, the "Original
Credit Agreement"); and
WHEREAS, subject to and upon the terms and condi-
tions set forth herein, the parties hereto desire to amend and
restate the Original Credit Agreement in the form of this
Agreement, provided that if the Restatement Effective Date has
not occurred on or prior to September 15, 1996, then it shall not
thereafter occur (unless the Agent and the Required Banks agree
in writing to an extension of such date), and this Agreement
shall cease to be of any further force or effect (except with
respect to the indemnification provisions set forth herein which
by their terms survive any such termination of this Agreement)
and the Original Credit Agreement shall continue to be effective,
as the same may have been, or may thereafter be, amended,
modified or supplemented from time to time;
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 severally agrees to make, at any time
and from time to time on or after the Restatement Effective Date
and prior to the Final Maturity Date, a Loan or 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 or
Eurodollar Rate Loans, provided that all Revolving Loans made as
part of the same Borrowing shall, unless otherwise specifically
provided herein, be of the same Type, (ii) may be repaid and
reborrowed in accordance 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 Percentage and (y) the sum of (I) 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 and (II) 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, equals the 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 (I) the aggre-
gate 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 and (II) 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, equals the Total Commitment at such
time and (v) shall not exceed for any Subsidiary Borrower at any
time outstanding that aggregate principal amount which equals
such Subsidiary Borrower's Sub-Limit at such time.
(b) 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 Restatement
Effective Date and prior to the Swingline Expiry Date, a loan or
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 accordance 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
(I) the aggregate principal amount of all Revolving Loans then
outstanding and (II) the aggregate amount of all Letter of Credit
Outstandings at such time, equals the Total Commitment 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 Percentage of the outstanding Swingline Loans.
(c) 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 Borrowing") shall be made on
the immediately succeeding Business Day by all Banks (without
giving effect to any reductions thereto pursuant to the last
paragraph of Section 9) pro rata based on each such Bank's
Percentage (determined before giving effect to any termination of
the Commitments pursuant to the last paragraph of Section 9), and
the proceeds thereof shall be applied directly to BTCo to repay
BTCo for such outstanding Swingline Loans. Each 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
Commitment at such time. In the event that any Mandatory Bor-
rowing 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 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 the Banks to share in such Swingline Loans
ratably based upon their respective Percentages (determined
before giving effect to any termination of the 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 participation, shall be payable to the participant from
and after such date and (y) at the time any purchase of
participations pursuant 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
including 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.
(d) More than one Borrowing may occur on the same
date, but at no time shall there be outstanding more than fifteen
Borrowings of Eurodollar Rate Loans.
1.02 Minimum Amount of Each Borrowing. (a) The
aggregate principal amount of each Borrowing 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(c).
(b) The aggregate principal amount of each Borrowing
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 Borrower
desires to incur Revolving Loans hereunder (excluding Revolving
Loans incurred pursuant to a Mandatory Borrowing), such Borrower
shall give the Agent at its Notice Office at least (x) three
Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) of each Eurodollar Rate Loan to be
made hereunder and (y) one Business Day's prior written notice
(or telephonic notice promptly confirmed in writing) 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 (or written confirmation of any telephonic
notice) (each a "Notice of Borrowing"), except as otherwise
expressly provided in Section 1.10, shall be irrevocable and
shall be given by the respective Borrower in the form of Exhibit
A, appropriately completed to specify (i) the date of such
Borrowing (which shall be a Business Day), (ii) the aggregate
principal amount of the Revolving Loans to be made pursuant to
such Borrowing, (iii) whether the Revolving Loans to be made pur-
suant to such Borrowing are to be initially maintained as Base
Rate Loans or Eurodollar Rate Loans and (iv) in the case of
Eurodollar Rate Loans, the initial Interest Period to be
applicable thereto. The Agent shall promptly give each Bank
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
Borrowing.
(b) (i) Whenever the Company desires to incur
Swingline Loans hereunder, the Company 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 any
Borrower to confirm in writing any telephonic notice of any
Borrowing of Revolving Loans or Swingline Loans, the Agent or
BTCo, as the case may be, may act without liability upon the
basis of telephonic notice of such Borrowing, believed by the
Agent or BTCo, as the case may be, in good faith to be from the
President, the Chief Executive Officer, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer or an
Assistant Treasurer of the respective Borrower (or from any other
officer of such Borrower designated in writing from time to time
by the President, the Chief Executive Officer, the Chief
Operating Officer or the Chief Financial Officer of the Company
as a person entitled to give telephonic notices hereunder), prior
to receipt of written confirmation. In each such case, the
respective Borrower hereby waives the right to dispute the
Agent's or BTCo's record of the terms of any such telephonic
notice of such Borrowing of Revolving Loans or Swingline Loans,
as the case may be.
(iii) Mandatory Borrowings shall be made upon the notice
specified in Section 1.01(c), with the Company irrevocably
agreeing, by its incurrence of any Swingline Loan, to the making
of Mandatory Borrowings as set forth in Section 1.01(c).
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(c)), each
Bank 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 assumption, make available to the respective
Borrower a corresponding 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 determined in accordance with Section
1.08. Nothing in this Section 1.04 shall be deemed to relieve
any Bank from its obligation to fulfill its Commitment 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 Revolving Loans, by a
promissory note duly executed and delivered to such Bank by such
Borrower in the form of Exhibit B-1 with blanks appropriately
completed in conformity herewith (each, a "Revolving Note" and,
collectively, the "Revolving Notes") and (ii) if Swingline Loans,
by a promissory note duly executed and delivered by the Company
to BTCo substantially in the form of Exhibit B-2 with blanks
appropriately completed in conformity herewith (the "Swingline
Note").
(b) 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 Restatement
Effective Date, (iii) be in a stated principal amount equal to
the 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 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 Swingline Note issued to BTCo shall (i) be
executed by the Company, (ii) be payable to BTCo or its regis-
tered assigns and be dated the Restatement 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.
(d) Each Bank will note on its internal records the
amount of each Loan made by it and each payment and conversion in
respect thereof and will prior to any transfer of any of its
Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure 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 all or a portion equal to at least
$2,000,000 (and, if greater, in an integral multiple of
$500,000), of the outstanding principal amount of Revolving Loans
made to such Borrower pursuant to one or more Borrowings of one
or more Types of Revolving Loans into a Borrowing of another Type
of Revolving Loan, provided that (i) except as otherwise provided
in Section 1.10(b), Eurodollar Rate Loans may be converted into
Base Rate Loans only on the last day of an Interest Period appli-
cable thereto and no such partial conversion of Eurodollar Rate
Loans shall reduce the outstanding principal amount of Eurodollar
Rate Loans made pursuant to any single Borrowing to less than
$2,000,000, (ii) Base Rate Loans may only be converted into
Eurodollar Rate Loans if no Default or Event of Default is in
existence on the date of the conversion and (iii) no conversion
pursuant to this Section 1.06 shall result in a greater number of
Borrowings than is permitted under Section 1.01(d). 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) prior written notice (or
telephone notice promptly confirmed in writing) (each a "Notice
of Conversion") specifying the Revolving Loans to be so
converted, the Borrowing(s) pursuant to which such Revolving
Loans were made, the date of such conversion (which shall be a
Business Day) and, if to be converted into Eurodollar 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 Revolving Loans.
1.07 Pro Rata Borrowings. All Borrowings of Revolving
Loans under this Agreement shall be incurred from the Banks pro
rata on the basis of their then respective Commitments. It is
understood that no Bank shall be responsible for any default by
any other Bank of its obligation to make Revolving Loans
hereunder and that each Bank shall be obligated to make the
Revolving Loans provided to be made by it hereunder regardless of
the failure of any other Bank to make its Revolving 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 proceeds
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 Eurodollar Rate Loan pursuant to Section 1.06 at a rate
per annum which shall be equal to the Base Rate in effect from
time to time.
(b) Each Borrower agrees to pay interest in respect 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 Eurodollar Rate
Loan and (ii) the conversion of such Eurodollar Rate Loan into a
Base Rate Loan 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) 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 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(c) shall be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be
payable (i) in respect of each Base Rate Loan, quarterly in
arrears on the last Business Day of each March, June, September
and December, (ii) in respect of each Eurodollar 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, and (iii) 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
maturity, on demand.
(e) Upon each Interest Determination Date, the Agent
shall determine the interest rate for the Eurodollar Rate Loans
for the Interest Period to be applicable to such Eurodollar 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 any Borrower gives
any Notice of Borrowing or Notice of Conversion in respect of the
making of, or conversion into, any Eurodollar 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 Eurodollar Rate Loan (in the case of
subsequent Interest Periods), the respective Borrower shall have
the right to elect, by giving the Agent written notice (or
telephonic notice promptly confirmed in writing) thereof, the
interest period (each an "Interest Period") applicable to such
Borrowing, which Interest Period shall, at the option of such
Borrower, be a one, two, three or six-month period, provided
that:
(i) all Eurodollar Rate Loans comprising a Borrowing
shall at all times have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of
Eurodollar Rate Loans shall commence on the date of such
Borrowing (including the date of any conversion from a
Borrowing of Base Rate Loans) 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 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 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; and
(vi) no Interest Period shall be selected which extends
beyond the Final Maturity Date.
If upon the expiration of any Interest Period, the re-
spective 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. Notwithstanding anything to the contrary contained in
this Agreement, each of the Interest Periods applicable to a
Borrowing of Revolving Loans that were incurred under (and as
defined in) the Original Credit Agreement and which remain
outstanding on the Restatement Effective Date shall continue to
be applicable thereto on and after the Restatement Effective Date
and until the end of such Interest Periods.
1.10 Increased Costs, Illegality, etc. (a) In the
event that any Bank shall have determined (which determination
shall, absent manifest error, be final and conclusive 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 Restatement Effective Date
affecting the interbank Eurodollar market, adequate and fair
means do not exist for ascertaining the applicable interest
rate on the basis provided for in the definition of
Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased
costs or reductions in the amounts received or receivable
hereunder with respect to any Eurodollar Rate Loan because
of (x) any change since the Restatement Effective Date in
any applicable law or governmental rule, regulation,
guideline, order or request (whether or not having the force
of law) or in the interpretation or administration 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 Eurodollar Rate or (B) a change in the
basis of taxation of payments to any Bank of the principal
of or interest on such Eurodollar Rate Loan or any other
amounts payable hereunder (except for changes in the rate of
tax on, or determined by reference 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 principal 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 Eurodollar 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
Eurodollar Rate Loan has become (x) unlawful by compliance
by such Bank with any law, governmental rule, regulation,
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 impracticable as a
result of a contingency occurring after the Restatement
Effective Date which materially and adversely affects the
interbank Eurodollar market;
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, Eurodollar Rate Loans 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 Eurodollar 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 Eurodollar 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
Eurodollar Rate Loan affected pursuant to Section 1.10(a)(iii)
shall) either (x) if the affected Eurodollar Rate Loan is then
being made initially or pursuant to a conversion, 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 Eurodollar
Rate Loan is then outstanding, upon at least three Business Days'
written notice to the Agent, require the affected Bank to convert
such Eurodollar Rate Loan into a Base Rate Loan, 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 Restatement Effective Date in any applicable law or
governmental rule, regulation, guideline, order, directive or
request (whether or not having the force of law) concerning capi-
tal 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 Commitment 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' obligations to pay additional amounts
pursuant to this Section 1.10(c). To the extent the notice
required by the immediately preceding sentence is given by any
Bank more than 120 days after the occurrence of the event giving
rise to the additional 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, without
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 Eurodollar 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 conversion from or into,
Eurodollar 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 repayment (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 Eurodollar 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 Eurodollar Rate Loans is not made on
any date specified 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 operation of
Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 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 Sections 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 Section
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 to such Borrower by the other Banks or (ii) as
and to the extent 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 pur-
suant 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 Commitment
and all outstanding Revolving Loans 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, and (B) 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 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 obligations 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 Revolving Note or Revolving 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 Restatement 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 Indebt-
edness. Schedule II contains a description of all letters of
credit issued by BTCo pursuant to the Original Credit Agreement
which are to remain outstanding on and after the Restatement
Effective Date. Each such letter of credit, including any
extension thereof issued by BTCo (each an "Existing Letter of
Credit") shall constitute a "Letter of Credit" for all purposes
of this Agreement and shall be deemed issued for purposes of
Sections 2.04(a), 3.01(b) and 3.01(c) on the Restatement
Effective Date.
(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 Restatement 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 per-
mitted 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 governmental
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 Restatement Effective Date, or any
unreimbursed loss, cost or expense which was not applicable,
in effect or known to BTCo as of the Restatement Effective
Date 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 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) $40,000,000 or (y) when added to the sum of the aggregate
principal amount of all Swingline Loans and Revolving Loans then
outstanding, an amount equal to the Total Commitment at such time
and (ii) each Letter of Credit shall by its terms terminate on or
before the fifth Business Day prior to the Final Maturity Date.
2.02 Minimum Stated Amount. The initial 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 accordance 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 or any amendment thereto, BTCo shall
promptly notify each Bank of such issuance or amendment, which
notice shall be accompanied by a copy of the Letter of Credit
actually issued or the amendment actually made.
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 other Bank
(each such Bank, in its capacity under this Section 2.04, a
"Participant"), 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 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 Commitments of the Banks pur-
suant 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 Percentages of
the assignor and assignee Bank or of all Banks, 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 miscon-
duct, 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 reimbursed 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
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 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 Percentage 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 Percentage of any payment under any
Letter of Credit shall not relieve any other Participant of its
obligation hereunder to make available to BTCo its 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 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 Percentage thereof, in
Dollars and in same day funds, an amount equal to such
Participant's share (based upon the proportionate aggregate
amount originally funded by such Participant to the aggregate
amount funded by all Participants) of the principal amount of
such reimbursement obligation and interest thereon accruing after
the purchase of the respective participations.
(e) 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 circumstances,
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 con-
nection 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 inaccurate 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 disbursed by BTCo, to the
extent not reimbursed prior to 12:00 Noon (New York time) on the
date of such payment or disbursement, 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; 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 2% and with such interest to 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 Participant), or any nonapplication or misappli-
cation 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
Restatement Effective Date, 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 Participant 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 conditions 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
issuing, 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 a commitment commission (the
"Commitment Commission") for the period from the Restatement
Effective Date to and including the Final Maturity Date (or such
earlier date as the Total Commitment shall have been terminated)
computed at a rate for each day equal to 1/4 of 1% per annum on
the daily average Unutilized Commitment of such Bank, provided,
that, so long as (x) no Default or Event of Default exists and
(y) the Applicable Margin is .50% or less, the foregoing
percentage shall be reduced to 1/8 of 1%. Accrued Commitment
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 Commitment is terminated).
(b) The Company agrees to pay to the Agent for pro
rata distribution to each Bank (based upon such Bank's
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 as in effect from
time to time on the daily Stated Amount of such Letter of Credit.
Accrued Letter of Credit 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 Commitment upon which no Letters of
Credit remain outstanding.
(c) 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 1/8 of 1% per annum on the daily 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 termination 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 Commitment upon which no Letters of
Credit remain outstanding.
(d) 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.
(e) 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 Commitment, in whole or in part, in integral multiples
of $1,000,000 in the case of partial reductions to the Total
Unutilized Commitment, provided that each such reduction shall
apply proportionately to permanently reduce the Commitment of
each Bank.
(b) As and to the extent 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 Commitment of
such Bank so long as all Revolving 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 pursuant to Section 4.01(b) (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. The Total
Commitment (and the Commitment of each Bank) shall terminate in
its entirety on the Final Maturity Date.
Section 4. Prepayments; Payments.
4.01 Voluntary Prepayments. (a) 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 Eurodollar Rate Loans, whether 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
Eurodollar Rate Loans, the specific Borrowing or Borrowings pur-
suant to which made, which notice the Agent shall promptly
transmit to each of the Banks; (ii) each prepayment shall be in
an aggregate principal amount of at least $500,000 (or $250,000
in the case of Swingline Loans), provided that if any partial
prepayment of Eurodollar Rate Loans made pursuant to any
Borrowing shall reduce the outstanding Eurodollar Rate Loans made
pursuant to such Borrowing to an amount less than $2,000,000,
then such Borrowing may not be continued as a Borrowing of
Eurodollar Rate Loans and any election of an Interest Period with
respect thereto given by the respective Borrower shall have no
force or effect; and (iii) each prepayment in respect of any
Revolving Loans made pursuant to a specific Borrowing shall be
applied pro rata among such Revolving Loans.
(b) As and to the extent 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 Revolving 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) the Commit-
ment of such Bank is terminated concurrently with such repayment
pursuant to Section 3.02(b) (at which time Schedule I shall be
deemed modified to reflect the changed Commitments) and (B) the
consents required by Section 13.12(b) in connection with the
repayment pursuant to this Section 4.01(b) have been obtained.
4.02 Mandatory Prepayments. (a) If on any date the
sum of (I) the aggregate outstanding principal amount of
Revolving Loans and Swingline Loans and (II) the aggregate amount
of Letter of Credit Outstandings exceeds the Total 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 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 Equivalents to be held as security for
the obligations of the Company hereunder in a cash collateral
account established by the Agent.
(b) With respect to each repayment of Revolving Loans
required by Section 4.02(a), the respective Borrower may
designate the Types of Revolving Loans which are to be repaid
and, in the case of Eurodollar Rate Loans, the specific Borrowing
or Borrowings pursuant to which made, provided that: (i)
repayments of Eurodollar 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 Eurodollar Rate Loans with
Interest Periods ending on such date of required repayment and
all Base Rate Loans have been paid in full; (ii) if any repayment
of Eurodollar Rate Loans made pursuant to a single Borrowing
shall reduce the outstanding Eurodollar Rate Loans made pursuant
to such Borrowing to an amount less than $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 Revolving Loans made pursuant to
a specific Borrowing shall be applied pro rata among such
Revolving 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.
(c) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, (i) all then outstanding 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 otherwise
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 writ-
ten 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 jurisdiction 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
Restatement 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
Restatement 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, in which
case such Bank shall not be required 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 contained 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 Restatement Effective Date
in any applicable law, treaty, governmental rule, regulation,
guideline 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
Restatement 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 (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 Restatement Effective Date and
Credit Events on the Restatement Effective Date. The occurrence
of the Restatement 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 Restatement
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 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 Restatement Effective
Date, the Agent shall have received an opinion, addressed to
the Agent and each of the Banks and dated the Restatement
Effective Date, 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.
(c) Corporate Documents; Proceedings; Officers'
Certificates. (i) On the Restatement Effective Date, the
Agent shall have received from each Borrower a certificate,
dated the Restatement Effective Date, signed by the
President or any Vice President of such Borrower (or in the
case of a Subsidiary Borrower, an appropriate officer or
attorney-in-fact of such Subsidiary Borrower), and attested
to by the Secretary or any Assistant Secretary of such
Borrower (or in the case of a Subsidiary Borrower, an
appropriate officer or attorney-in-fact of such Subsidiary
Borrower), substantially in the form of Exhibit F with
appropriate insertions, together with copies of the certi-
ficate 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 substance 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 therewith, such documents and
papers where appropriate to be certified by proper corporate
or governmental authorities.
(iii) On the Restatement Effective Date, the Agent
shall have received a certificate from the President or any
Vice President of the Company dated the Restatement
Effective Date stating that all of the applicable conditions
set forth in Sections 5.01(d)(ii) and (e) and Section
5.02(a) have been satisfied as of such date.
(d) Adverse Change, etc. (i) On or prior to the
Restatement 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 Restatement 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 hearing 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.
(e) Litigation. On the Restatement 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, 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.
(f) Fees, etc. On the Restatement 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.
(g) Payments Under the Original Credit Agreement. On
or prior to the Restatement Effective Date, (i) all Original
Term Loans outstanding on such date shall have been (or
concurrently with the incurrence of any Revolving Loans on
the Restatement Effective Date shall be) repaid in full and
(ii) all accrued interest (other than accrued interest on
any Borrowing of Revolving Loans that were incurred under
(and as defined in) the Original Credit Agreement and which
are subject to an Interest Period referred to in the final
sentence of Section 1.09, with such interest to be paid as
set forth in the appropriate clause of Section 1.08), fees
and costs and expenses owing pursuant to the Original Credit
Agreement to the Agent and/or the Banks thereunder shall
have been (or concurrently with the incurrence of any
Revolving Loans on the Restatement Effective Date shall be)
repaid in full, whether or not such amounts would otherwise
be due on such date thereunder.
5.02 Conditions to All Credit Events. The occurrence
of the Restatement Effective Date pursuant to Section 13.10, and
the obligation of each Bank to make Loans (including Loans made
on the Restatement Effective Date, but excluding Mandatory
Borrowings made thereafter, which shall be made as provided in
Section 1.01(c)), 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 con-
tained herein and in the other Credit Documents shall be
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 (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).
(b) Notice of Borrowing; Letter of Credit Request.
(i) Prior to the making of each Revolving Loan, 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.
The occurrence of the Restatement 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 documents and
papers referred to in this Section 5, unless otherwise 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 the
Company desires that an additional Wholly-Owned Subsidiary of the
Company become a Subsidiary Borrower hereunder, such Subsidiary
Borrower shall satisfy the following conditions at the time it
becomes a Subsidiary Borrower:
(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; and
(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 Restatement Effective Date had
not been heretofore delivered, such items shall have been
delivered to, and shall be satisfactory to, the Agent.
Section 6. Representations, Warranties and Agreements.
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 agreements, in each case after
giving effect to the Restatement 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 the Restatement Effective Date
and the occurrence of each Credit Event on or after the
Restatement 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 Restatement 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 ownership, 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, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Company or
of the Company and its Subsidiaries 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 Documents to which
it is a party and has taken all necessary corporate action to
authorize the execution, delivery and performance by it of each
of such Credit Documents. Each Borrower 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 extent 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
enforcement is sought in equity or at law).
6.03 No Violation. Neither the execution, delivery 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, injunction 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 provisions 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 (or the equivalent charter documents) of the Company or any
of its Subsidiaries.
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 Restatement Effective Date and which
remain in full force and effect), or exemption by, any govern-
mental 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 statements
of financial condition of the Company and its Subsidiaries at
December 31, 1995 and June 30, 1996, and the related 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 financial 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, 1995, 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
Restatement 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 Restatement 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 Restatement Effective Date, such manage-
ment believed that the Projections were reasonable and attain-
able, 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 Restatement 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 Borrower,
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 (financial 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 contemporaneously
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 projections
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 information 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 Loans shall be used by the respective Borrowers (i)
to repay amounts owing under the Original Credit Agreement as
required by Section 5.01(g) and (ii) for the working capital and
general corporate purposes (including acquisitions) of the
Company and its Subsidiaries.
(b) 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 Regulations G, T, U or X of
the Board of Governors of the Federal Reserve System.
6.09 Tax Returns and Payments. Each of the Company
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") required to be filed by or with
respect to the income, properties or operations of the Company
and/or any of its Subsidiaries. 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 delinquent,
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 Section 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 regarding any taxes relating to the
Company or any of its Subsidiaries.
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 insolvent
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 de-
ficiency 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 administer,
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 IV correctly sets forth,
as of the Restatement 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 Subsidi-
aries 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, liabilities,
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 Environmental 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,
circumstances, 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 transfer-
ability 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 stor-
age 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 company," 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 expected to result in 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.
6.17 Properties. Each of the Company and each of its
Subsidiaries has good and marketable title to all properties
owned by them, including all property reflected in the March 31,
1996 consolidated balance sheet of the Company and its Subsidi-
aries 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 Restatement 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, liabilities,
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 pending 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 repre-
sentation 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
individually 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 (financial
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 Restatement Effective Date and which is to
remain outstanding after giving effect thereto (excluding the
Loans and the Letters of Credit, 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.
Section 7. Affirmative Covenants. Each Borrower cove-
nants and agrees that on and after the Restatement 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) 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.
(b) Annual Financial Statements. Within 90 days after
the close of each fiscal year of the Company, the
consolidated balance sheet 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.
(c) 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 Company 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.
(d) Officer's Certificates. At the time of the
delivery of the financial statements provided for in Section
7.01(a) and (b), 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 certifications 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 required to establish whether the
Company was in compliance with the provisions of Section
8.03(iv), Sections 8.04(vii) and (x), and Sections 8.07 and
8.08, at the end of such fiscal quarter or year, as the case
may be.
(e) Notice of Default or Litigation. Promptly, and in
any event within five Business Days (or three Business Days
with respect to an event described in clause (i) below)
after an officer of the Company obtains actual 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 proceeding pending (x) against
the Company or any of its Subsidiaries which could
reasonably be 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 or of any Subsidiary Borrower or (y) with respect to
any Credit Document.
(f) Management Letters. Promptly after the Company's
receipt thereof, a copy of any "management letter" received
from its certified public accountants and the management's
responses thereto.
(g) 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 comparable 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)
$20,000,000, provided that, notwithstanding the foregoing,
neither the Company nor any of its Subsidiaries shall be
required to deliver (i) registration statements on Form S-8
or (ii) registration statements on Form S-3 filed solely for
the purpose of reselling common stock of the Company the
aggregate value of which at the time such Form S-3
registration statement becomes effective does not exceed
$5,000,000.
(h) 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 environ-
mental 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 (finan-
cial 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 Subsidiaries 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 presence of any
Hazardous Material on any Real Property owned or
operated by the Company or any of its Subsidiaries as
required by any Environmental Law or any governmental
or other administrative agency.
All such notices shall describe in reasonable detail the
nature of the claim, investigation, condition, occurrence or
removal or remedial action and the Company's or such
Subsidiary's response thereto.
(i) 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 prin-
ciples 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 properties of the Company
or such Subsidiary, and to examine the books of account of the
Company or such Subsidiary and discuss 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 and (ii) maintain with financially 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.
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 business
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, liabilities, 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 proposes to take, together with any
notices required or proposed to be given to or filed with or by
the Company, the Subsidiary, 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 installment 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 Sec-
tion 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.
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, indenture, security
agreement and other agreement by which it is bound, except such
non-performances as could not, individually or in the aggregate,
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.
7.08 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 prop-
erties 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.
Section 8. Negative Covenants. Each Borrower coven-
ants and agrees that on and after the Restatement 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 subject to an understanding or
agreement, contingent or otherwise, 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, governmental
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 Restatement Effective
Date which are listed, and the property subject thereto
described, in Schedule V, plus any renewals, extensions,
refinancings 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, exten-
sion, 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 upon (i) any property or assets acquired
(whether by purchase, merger or otherwise) after the
Restatement 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 (w) such Lien shall be limited to the property or
assets so acquired or the improvements so made, (x) 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, (y) 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 and (z) the aggregate principal amount of
Indebtedness secured by Liens permitted under this clause
(vi), when added to the aggregate principal amount of
Indebtedness secured by Liens permitted pursuant to clause
(vii) below, does not exceed $65,000,000 at any time
outstanding;
(vii) Liens arising under capitalized leases to the
extent permitted by this Agreement, provided that (x) such
Liens only serve to secure the payment of Indebtedness
arising under such capitalized leases, (y) the Lien
encumbering the asset giving rise to the capitalized lease
does not encumber any other asset of the Company or any of
its Subsidiaries and (z) the aggregate principal amount of
Indebtedness secured by Liens under this clause (vii), when
added to the aggregate principal amount of Indebtedness
secured by Liens permitted pursuant to clause (vi) above,
does not exceed $65,000,000 at any time outstanding;
(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 subject of
the Permitted Receivables Financings shall at no time exceed
$40,000,000 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);
(xi) additional 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 anticipation or contemplation of such
acquisition and (y) all such Liens do not secure
Indebtedness in an aggregate principal amount greater than
$25,000,000 at any time outstanding; and
(xii) additional Liens on assets of the Company or any
of its Subsidiaries so long as such Liens (i) only attach to
those assets that comprise the non-United States operations
of the Company or such Subsidiary and (ii) the aggregate
principal amount of all Indebtedness and other obligations
secured by such Liens does not exceed $20,000,000 at any
time outstanding.
8.02 Consolidation, Merger, Sale of Assets, etc. The
Company will not, and will not permit any of its Subsidiaries 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 transactions) any part of the property or
assets (other than purchases 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 (other than Capital
Expenditures constituting Permitted Acquisitions which are
governed by clause (vii) below) shall be permitted;
(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 connec-
tion with their business activities in Japan, sell
promissory notes issued to them in payment of trade payables
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 Permitted
Receivables Financings;
(vi) investments may be made to the extent permitted 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 Subsidiary of the Company may be merged or
consolidated with or into the Company or any other
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 (i) the Company, the Company is the
surviving corporation of such merger or consolidation, (ii)
a Wholly-Owned Subsidiary of the Company, the Wholly-Owned
Subsidiary is the surviving corporation of such merger or
consolidation and (iii) a Subsidiary Borrower, the
Subsidiary Borrower is the surviving corporation of such
merger or consolidation;
(xi) in addition to the sales and other dispositions
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 do not exceed $25,000,000 in any
fiscal year of the Company; and
(xii) with the prior written consent of the Required
Banks, any other assets may be sold or transferred.
8.03 Dividends. The Company will not authorize,
declare, pay or make, or permit any of its Subsidiaries to
authorize, declare, pay or make, any Dividends, except that (i)
any Subsidiary of the Company may pay Dividends to the Company or
any Wholly-Owned Subsidiary of the Company, (ii) any non-Wholly-
Owned Subsidiary of the Company may pay Dividends 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
Dividends made pursuant to this clause (iii) shall not exceed
$1,000,000 in any fiscal year of the Company and (iv) so long as
no Default or Event of Default then exists or would result
therefrom, the Company may pay additional Dividends (including by
repurchasing shares of its own capital stock) so long as the
aggregate amount of such Dividends paid and/or made on or after
the Restatement Effective Date pursuant to this clause (iv) does
not exceed an amount equal to the sum of (1) $75,000,000 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).
8.04 Indebtedness. The Company 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 Agreement
and the other Credit Documents;
(ii) 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 plus any unutilized commitment
under any such Existing Indebtedness at such time (it being
understood that in no event shall any such refinancing,
extension, refunding or renewal exceed the aggregate amount
(including unutilized commitments) of the credit facility
for the respective issue of Existing Indebtedness as in
effect on the Restatement Effective Date);
(iii) accrued expenses incurred in the ordinary course
of business;
(iv) Indebtedness secured by Liens to the extent
permitted pursuant to Section 8.01(vi) and Indebtedness
arising under capitalized leases to the extent permitted
pursuant to Section 8.01(vii);
(v) Indebtedness under Interest Rate Protection
Agreements relating to Indebtedness otherwise permitted
under this Section 8.04;
(vi) Indebtedness under Other Hedging Agreements (x)
providing protection against fluctuations in currency or
commodity prices in connection with (A) any of the Company's
Subsidiaries' operations or (B) the purchase or sale of
goods or services, in each case so long as management of
such Subsidiary has determined that the entering into of
such Other Hedging Agreements are bona fide hedging
activities;
(vii) Indebtedness of Foreign Subsidiaries arising in
connection with Permitted Receivables Financings so long as
the aggregate principal amount of such Indebtedness shall
not exceed $40,000,000 at any time outstanding;
(viii) intercompany Indebtedness among the Company and
its Subsidiaries to the extent permitted by Section
8.05(iv);
(ix) Indebtedness consisting of, without duplication,
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 $10,000,000; and
(x) additional Indebtedness not otherwise permitted
under this Section 8.04 so long as the aggregate principal
amount thereof does not exceed $60,000,000 at any time
outstanding, which Indebtedness may, to the extent permitted
by Sections 8.01(xi) and (xii), 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 capital
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 dischargeable 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 business, 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 $10,000,000 (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;
(vii) the Company and its Subsidiaries may enter into
Interest Rate Protection Agreements with respect to
Indebtedness otherwise permitted to be incurred by the
Company or its Subsidiaries, as the case may be, by this
Agreement;
(viii) (x) Subsidiaries of the Company may enter into
Other Hedging Agreements to the extent permitted by Section
8.04(vi), (y) the Company may enter into Other Hedging
Agreements with respect to its operations on the same basis
as its Subsidiaries are permitted to enter into such
agreements pursuant to Section 8.04(vi) and (z) the Company
may enter into additional Other Hedging Agreements to
provide market value protection for issuances by the Company
of its common stock or repurchases by the Company of its
common stock to the extent permitted by Section 8.03 (iv) so
long as in either case management of the Company has
determined that the entering into of such Other Hedging
Agreements are bona fide hedging activities; and
(ix) in addition to investments permitted by clauses
(i) through (viii) 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 $50,000,000 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 Restatement
Effective Date and as otherwise permitted pursuant to Section
8.02.
8.07 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.
8.08 Leverage Ratio The Company will not permit the
Leverage Ratio at any time to be more than 3.00:1.00.
8.09 Limitation on Modifications of Certificate of
Incorporation and By-Laws and Certain Other Agreements; etc. The
Company will not, and will not permit any of its Subsidiaries to,
amend, modify or change its certificate of incorporation or by-
laws (including, without limitation, by the filing or
modification of any certificate of designation) (or any
equivalent charter documents), 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 such changes
and such new agreements which in each case are not reasonably
likely to adversely affect the Banks).
8.10 Limitation on Restrictions on Subsidiary Divi-
dends 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) restrictions on the transfer of any
asset subject to a Lien permitted under Sections 8.01 (vi),
(vii), (x), (xi) and (xii), (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 Indebtedness permitted under
Section 8.04 to pay Dividends to the extent that such
restrictions (x) are only set forth in the documentation
governing the Indebtedness incurred by such Subsidiary and (y)
only prohibit such Subsidiary from paying Dividends in the event
that its net worth has fallen below such Subsidiary's net worth
at the time of the incurrence of the respective Indebtedness.
8.11 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 purchase, 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.
8.12 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 Restatement 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(e)(i) (if constituting
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 $10,000,000 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 proceeding under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or
hereafter 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 Subsidiaries 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 $10,000,000
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 obligations 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 following 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 Commitment
of each Bank shall forthwith terminate immediately and any
Commitment Commission and other 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 publication 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 reserves),
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, it being understood that the Applicable Margin
shall be based on the Applicable Rating Period designated as a
"Category B 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 Restatement
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:
Applicable Rating
Period Rate
Category A Period .375%
Category B Period .500%
Category C Period .625%
Category D Period .875%
Category E Period 1.000%
Notwithstanding anything to the contrary contained
above in this definition, at any time that a Default or an Event
of Default exists, the Applicable Margin shall be 1.000%.
"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 as of
the last day of the Test
Period then last ended as
determined from the most
recent financial statements
delivered pursuant to Section
7.01(a) or (b) 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 as of the last
day of the Test Period then
last ended as determined from
the most recent financial
statements delivered pursuant
to Section 7.01(a) or (b) 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 as of the last day of
the Test Period then last
ended as determined from the
most recent financial state-
ments delivered pursuant to
Section 7.01(a) or (b) 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 as of the last day of
the Test Period then last
ended as determined from the
most recent financial state-
ments delivered pursuant to
Section 7.01(a) or (b) 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 as of
the last day of the Test
Period then last ended as
determined from the most
recent financial statements
delivered pursuant to Section
7.01(a) or (b) 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, then the Applicable Rating
Period shall be based on the Leverage Ratio as of the last day of
the Test Period then last ended as determined from the most
recent financial statements delivered pursuant to Section 7.01(a)
or (b).
"Assignment and Assumption Agreement" shall mean the
Assignment and Assumption Agreement substantially in the form of
Exhibit G (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(a) or 1.01(c) 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 (i) any Revolving Loan
designated as such by the respective Borrower at the time of the
incurrence thereof or conversion thereto and (ii) all Swingline
Loans.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrowing" shall mean (i) the borrowing by a Borrower
of one Type of Revolving Loan from all the Banks on a given date
(or resulting from a conversion or conversions on such date) hav-
ing in the case of Eurodollar Rate Loans the same Interest
Period, provided that Base Rate Loans incurred pursuant to
Section 1.10(b) shall be considered part of the related Borrowing
of Eurodollar Rate Loans and (ii) the borrowing by the Company of
Swingline Loans from BTCo on a given date.
"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.
"Capital Expenditures" shall mean any expenditure for
fixed or capital assets (including, without limitation,
expenditures for maintenance and repairs which are capitalized in
accordance with generally accepted accounting principles and
capitalized lease obligations).
"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 cur-
rency 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.
"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" shall mean, for each Bank, the amount set
forth opposite such Bank's name in Schedule I directly below the
column entitled "Commitment," as same may be (x) reduced from
time to time pursuant to Sections 3.02, 3.03 and/or 9,
(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) or (z)
increased from time to time pursuant to Section 13.04(c).
"Commitment Commission" shall have the meaning provided
in Section 3.01(a).
"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.
"Consolidated Net Income" shall mean, for any period,
the consolidated net income (or loss) of the Company and its
Subsidiaries for such period; provided that when computing EBITDA
for the purpose of determining the Leverage Ratio for any period,
there shall be included in such determination for such period the
net income (or loss) of any Acquired Entity acquired during such
period pursuant to a Permitted Acquisition to the extent not
subsequently sold or otherwise disposed of during such period for
the portion of such period prior to such acquisition.
"Contingent Obligation" shall mean, as to any Person,
any obligation of such Person guaranteeing any Indebtedness,
leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, 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 include
endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent
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 anticipated liability in
respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
"Contingent Stock Plan" shall mean the Contingent Stock
Plan of the Company, as adopted in 1976 and as amended from time
to time.
"Continuing Directors" shall mean the directors of the
Company on the Restatement 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 Letter of Credit.
"Credit Event" shall mean (i) the occurrence of the
Restatement Effective Date and (ii) the making of any Loan or the
issuance of any Letter of Credit.
"Credit Rating" shall mean the Moody's Credit Rating or
the S&P Credit Rating.
"Creditors" shall mean and include the Agent, each Bank
and each Other Creditor.
"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, 1996 and ending on the last day of the then most
recently ended fiscal quarter of the Company.
"Default" shall mean any event, act or condition which
with notice or lapse of time, or both, would constitute an Event
of Default.
"Dividend" 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 consideration, any shares of any class of its
capital stock outstanding on or after the Restatement 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 Restatement Effective Date (or any
options or warrants issued by such Person with respect to its
capital stock). Without limiting the foregoing, "Dividends "
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.
"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 Section
2.05(b).
"EBIT" shall mean, for any period, the Consolidated Net
Income of the Company and its Subsidiaries, before interest
expense and provision for income taxes and without giving effect
to any extraordinary gains or losses and gains or losses from
sales of assets (other than from sales of inventory in the
ordinary course of business).
"EBITDA" for any period shall mean EBIT, adjusted by
adding thereto the amount of (a) all amortization of goodwill and
other intangibles, (b) depreciation, (c) all non-cash
contributions or accruals to or with respect to deferred profit
sharing plans and (d) all non-cash contributions and accruals to
and/or with respect to deferred compensation plans.
"Election to Become a Subsidiary Borrower" shall mean
an Election to Become a Subsidiary Borrower in the form of
Exhibit H, 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).
"Environmental Claims" shall mean any and all adminis-
trative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of non-compliance 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 limit-
ation, (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 Environ-
mental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compen-
sation 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 administrative 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 quotation
to first-class banks in the New York interbank Eurodollar 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 thereafter 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 (in-
cluding, without limitation, any marginal, emergency, supple-
mental, 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
Regulation D (or any successor category of liabilities under
Regulation D).
"Eurodollar Rate Loan" shall mean any Revolving Loan
designated 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 Indebtedness" shall have the meaning provided
in Section 6.19.
"Existing Letter of Credit" shall have the meaning
provided in Section 2.01(a).
"Facing Fee" shall have the meaning provided in Section
3.01(c).
"Fair Market Value" shall mean, when determining the
fair market value of any common stock or other equity security of
the Company, the value thereof based on the publicly quoted
prices of the Company's common stock or other equity security 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 or other equity security is publicly traded on the NYSE or
if any such common stock or other equity security 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, 2001.
"Foreign Subsidiary" shall mean (i) each Subsidiary of
the Company not incorporated under the laws of the United States
or of any State thereof, (ii) Sealed Air Japan (so long as
substantially all of the operations of Sealed Air Japan remain
outside the United States) and (iii) any other Subsidiary of the
Company substantially all of the operations of which remain
outside the United States.
"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 lia-
bilities (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 petrochemical
or petroleum products, radioactive materials, asbestos in any
form that is or could become friable, urea formaldehyde 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 materials," "re-
stricted hazardous materials," "extremely hazardous wastes,"
"restrictive hazardous wastes," "toxic substances," "toxic pol-
lutants," "contaminants" or "pollutants," or words of similar
meaning and regulatory effect under any applicable Environmental
Law.
"Indebtedness" shall mean, as to any Person, without
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, 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.
"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,
interest rate futures agreement or other similar agreement or
arrangement.
"L/C Supportable Indebtedness" shall mean (i) obliga-
tions 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 and (ii) 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 provided
in Section 3.01(b).
"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 pro-
vided 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, hypothecation,
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 Revolving Loan or Swingline Loan.
"Mandatory Borrowings" shall have the meaning provided
in Section 1.01(c).
"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 $20,000,000.
"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 any outstanding long-term unsecured senior
subordinated debt securities of the Company, 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 such outstanding
long-term unsecured senior subordinated debt securities (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 such outstanding long-term
unsecured senior subordinated debt securities in which case such
implied rating shall be as so designated by Moody's) (it being
understood, however, in the event that more than one issue of
outstanding long-term unsecured senior subordinated debt
securities of the Company has been assigned a rating by Moody's,
the Moody's Credit Rating shall be based on that issue that has
been assigned the lowest rating), 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) no outstanding long-term
unsecured senior subordinated debt securities are rated by
Moody's (whether because the same are not then outstanding or
otherwise), there shall be no Moody's Credit Rating.
"Non-U.K. Bank" shall have the meaning provided in
Section 4.04(c).
"Note" shall mean and include each Revolving Note and
the Swingline Note.
"Notice of Borrowing" shall have the meaning provided
in Section 1.03(a).
"Notice of Conversion" shall have the meaning provided
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.
"Original Credit Agreement" shall have the meaning
provided in the first recital to this Agreement.
"Original Term Loans" shall mean the "Term Loans"
under, and as defined in, the Original Credit Agreement.
"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.
"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 Corpo-
ration established pursuant to Section 4002 of ERISA or any
successor thereto.
"Percentage" of any Bank at any time shall mean a
fraction (expressed as a percentage) the numerator of which is
the Commitment of such Bank at such time and the denominator of
which is the Total Commitment at such time; provided, that if the
Percentage of any Bank is to be determined after the Total
Commitment has been terminated, then the Percentages of the Banks
shall be determined immediately prior (and without giving effect)
to such termination.
"Permitted Acquisitions" shall mean any acquisitions 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 or other equity
securities of the Company which are permitted to be issued by
this Agreement and/or Indebtedness issued, incurred or assumed by
the Company or such Subsidiary to the extent permitted under this
Agreement, (ii) to the extent that such acquisition is of the
capital stock or other equity interest of such Person, such
acquisition must result in the ownership by the Company or such
Subsidiary of at least 80% of such capital stock or other equity
interest, (iii) no Event of Default then exists (both before and
immediately 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 8.12, (v) any Liens or
Indebtedness assumed in connection with any such acquisition are
otherwise permitted under Sections 8.01 and 8.04, as the case may
be, and (vi) if the aggregate consideration paid in respect of
any such acquisition exceeds $50,000,000 (including in such
calculation, the amount of cash, the Fair Market Value of any
common stock or other equity securities 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 15 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 the Test Period
then most recently ended prior to the date of the consummation of
such acquisition is at least 3.50:1.00 and (2) the Leverage Ratio
for the Test Period 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 such Test
Period.
"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 actually 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 Sec-
tion 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.
"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, pumping,
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 whose Commitments (or
after the termination thereof, outstanding Revolving Loans and
Percentage of outstanding Swingline Loans and Letter of Credit
Outstandings) represent an amount greater than 50% of the Total
Commitment (or after the termination thereof, the sum of the then
total outstanding Revolving Loans and the aggregate Percentages
of the total outstanding Swingline Loans and Letter of Credit
Outstandings at such time).
"Restatement Effective Date" shall have the meaning
provided in Section 13.10.
"Returns" shall have the meaning provided in Section
6.09.
"Revolving Loan" shall have the meaning provided in
Section 1.01(a).
"Revolving Note" shall have the meaning provided in
Section 1.05(a).
"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 Finance B.V." shall mean Sealed Air Finance
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 Japan" shall mean Sealed Air Japan,
Limited, a Nevada corporation.
"Sealed Air Limited" shall mean Sealed Air Limited, an
English corporation and a Wholly-Owned Subsidiary of the Company,
with its registered office at Telford Way, Kettering, Northants,
England.
"Sealed Air (NZ)" shall mean Sealed Air (NZ) Limited, a
corporation organized and existing under the laws of New Zealand
and a Wholly-Owned Subsidiary of the Company, with its registered
office at c/o Trigon Packaging Systems (NZ) Limited, Avalon Drive
and Foreman Road, Private Bag, Hamilton, New Zealand.
"Sealed Air S.A." shall mean Sealed Air S.A., a French
corporation and a Wholly-Owned Subsidiary of the Company, with
its registered office located at Z.I. des Bethunes, 95310 Saint-
Ouen-L'Aumone, Cergy Pointoise, France.
"SEC" shall have the meaning provided in Section
7.01(g).
"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 Services, a
division of McGraw Hill, Inc.
"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 (i) 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
any outstanding long-term unsecured senior subordinated debt
securities of the Company, 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 such outstanding long-term unsecured
senior subordinated debt securities (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 such outstanding long-term unsecured senior subordinated debt
securities in which case such implied rating shall be as so
designated by S&P) (it being understood, however, in the event
that more than one issue of outstanding long-term unsecured
senior subordinated debt securities of the Company has been
assigned a rating by S&P, the S&P Credit Rating shall be based on
that issue that has been assigned the lowest rating), and,
provided further, that in the event that (x) no senior unsecured
outstanding long-term debt of the Company is rated by S&P and (y)
no long-term unsecured senior subordinated debt securities are
rated by S&P (whether because the same are not then outstanding
or otherwise), there shall be no S&P Credit Rating.
"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 each of
Sealed Air B.V., Sealed Air Finance B.V., Sealed Air Limited and
Sealed Air NZ, $50,000,000, and (ii) with respect to each other
Wholly-Owned Foreign Subsidiary that becomes a Subsidiary
Borrower after the Restatement 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.
"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 (irrespective 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 Finance B.V., Sealed Air Limited, Sealed Air
(NZ) 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(b).
"Swingline Note" shall have the meaning provided in
Section 1.05(a).
"Taxes" shall have the meaning provided in Section
4.04(a).
"Test Period" shall mean the four consecutive fiscal
quarters of the Company then last ended, in each case taken as
one accounting period.
"Total Commitment" shall mean, at any time, the sum of
the Commitments of each of the Banks.
"Total Unutilized Commitment" shall mean, at any time,
an amount equal to the remainder of (x) the then Total 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.
"Type" shall mean any type of Revolving Loan determined
with respect to the interest option applicable thereto, i.e., a
Base Rate Loan or a Eurodollar 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 Commitment" of any Bank at any time shall
mean the Commitment of such Bank at such time less the sum of (i)
the aggregate principal amount of Revolving Loans made by such
Bank and then outstanding and (ii) such Bank's 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 references
to sections, schedules and exhibits are to sections, schedules
and exhibits in or to this Agreement unless otherwise specified.
(b) All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted
accounting principles in the United States in conformity 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 Docu-
ment, 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. Independently
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 investigation 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 con-
nection herewith and (ii) its own appraisal of the credit-
worthiness of the Company and its Subsidiaries and, except as ex-
pressly provided in this Agreement, 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 docu-
ment, certificate or other writing delivered in connection here-
with or for the execution, effectiveness, genuineness, 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 condi-
tion 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 taking such action unless
and until the Agent shall have received 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 refraining 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 as Agent 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, expenses or disbursements resulting from the
Agent's gross negligence 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 ser-
vices 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 Required
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 Required
Banks appoint a successor Agent as provided above.
(d) If no successor Agent has been appointed pursuant
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
Required 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 acceler-
ation 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 uncondi-
tionally 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 liability 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 Bor-
rower, or (e) any payment made to the Agent or the Creditors on
the indebtedness which the Agent or such Creditors repay any
Subsidiary Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief
proceeding, 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
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, renew,
increase, accelerate or alter, any of the Guaranteed
Obligations (including any increase or decrease in the rate
of interest thereon), any security therefor, or any lia-
bility 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 endorsers,
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 subordinate
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 Creditors;
(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 otherwise
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 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 hereunder.
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
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 negotiable 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. Without limiting the generality
of the foregoing, the Company hereby agrees with the Creditors
that it will not exercise any right of subrogation which it may
at any time otherwise have as a result of this Guaranty (whether
contractual, under Section 5.09 of the Bankruptcy Code or
otherwise) until all Guaranteed Obligations have been irrevocably
paid in full in cash.
12.08 Waiver. (a) The Company waives any right (ex-
cept as shall be required by applicable law and cannot be waived)
to require 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 any other
Creditor's 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 Creditors may, at their elec-
tion, foreclose on any security held by the Agent or any other
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 any other
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 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 Company Guaranty, and
notices of the existence, creation or incurring of new or
additional Guaranteed Obligations. The Company assumes all re-
sponsibility 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 Creditors shall have no duty to advise the Company of
information known to them regarding such circumstances or risks.
12.09 Nature of Liability. It is the desire and
intent of the Company and the Creditors that this Company
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
Company 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 permissible 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 contem-
plated 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 harmless against any and all
liabilities, obligations (including removal or remedial actions),
losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses and disbursements (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 presentment, 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 provided
herein, all notices and other communications provided for
hereunder shall be in writing (including telegraphic, telex,
telecopier or cable communication) and mailed, telegraphed,
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, telegraphed,
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; etc. (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
participant 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 participating, 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 consti-
tute a change in the terms of such participation, and that an in-
crease 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 partici-
pant'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 Commitment (and related outstanding Obligations
hereunder) 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 Commitments
(and related outstanding Obligations) 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 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, (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, 1.11 or 2.06 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) The Company shall have the right at any time and
from time to time on and after the Restatement Effective Date to
request one or more Banks to increase their respective
Commitments, it being understood and agreed, however, that (i) no
Bank shall be obligated to increase its Commitment as a result of
any request by the Company, (ii) any Bank may so increase its
Commitment without the consent of any other Bank or the Agent,
(iii) any increase in the Total Commitment pursuant to this
Section 13.04(c) shall be in a minimum amount of at least
$5,000,000 and in integral multiples of $1,000,000 in excess
thereof, (iv) the Total Commitment may not be increased by more
than $50,000,000 pursuant to this Section 13.04(c) and (v) any
increase in the Commitment of any Bank pursuant to this Section
13.04(c) shall be done in coordination with the Agent. At the
time of any increase in the Total Commitment pursuant to this
Section 13.04(c), (i) the Borrowers shall, in coordination with
the Agent, repay outstanding Revolving Loans of certain Banks
and, if necessary, incur additional Revolving Loans from other
Banks, in each case so that the Banks participate in each
Borrowing of Revolving Loans pro rata on the basis of their
Commitments (after giving effect to any such increase in the
Total Commitment pursuant to this Section 13.04(c)) and with the
Borrowers being jointly and severally obligated to pay to the
respective Banks the costs of the type referred to in Section
1.11 in connection with any such repayment and/or borrowing, (ii)
Schedule I shall be deemed modified to reflect the revised
Commitments of the affected Banks, and (iii) upon surrender of
the old Notes by those Banks that have increased their
Commitments pursuant to this Section 13.04(c), new Notes will be
issued, at the Borrowers' expense, to such Banks to be in
conformity with the requirements of Section 1.05 (with
appropriate modifications) to the extent needed to reflect the
revised Revolving Loan Commitments.
(d) 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 hereunder 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 dis-
tribute 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 Percentages, 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 principal
of, or interest on, the Loans, Unpaid Drawings, Commitment Com-
mission 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 with-
out recourse or warranty from the other Banks an interest in the
Obligations of the respective Borrower 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 financial
statements to be furnished to the Banks pursuant hereto shall be
made and prepared in accordance with generally accepted
accounting principles in the United States consistently applied
throughout the periods involved (except as set forth in the notes
thereto or as otherwise disclosed in writing by the Company to
the Banks); provided that, except as otherwise specifically
provided herein, all computations determining compliance with
Sections 8.07 and 8.08, 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, Commitment
Commission and other 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, Commitment Commission or other Fees are
payable.
(c) For purposes of determining compliance with the
dollar amounts set forth in Section 8 and determining the
Applicable Margin (to the extent based on the Leverage Ratio),
the dollar equivalent of any Indebtedness or other obligation
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 quarter 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 quarter, and with such dollar equivalent to
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 of
such dollar equivalent, 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.
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 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 07663 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 satisfactory
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 irrevocably
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 transactions
contemplated hereby or thereby.
13.09 Counterparts. This Agreement may be executed 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 "Restatement 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 Restatement
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
Restatement 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 Restatement 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 Restatement Effective Date.
13.11 Headings Descriptive. The headings of the
several sections and subsections of this Agreement are inserted
for convenience only and shall not in any way affect the meaning
or construction of any provision of this Agreement.
13.12 Amendment or Waiver; etc. (a) Except to the
extent specifically provided in Section 13.04(c), 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 Commitments are included on the Restatement
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 a 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 proposed change, waiver, discharge or termination or (B)
terminate such non-consenting Bank's Commitment and repay in full
such non-consenting Bank's outstanding Revolving Loans in
accordance with Sections 3.02(b) and 4.01(b), provided that,
unless the Commitment that is terminated, and Revolving Loans
that are repaid, pursuant to preceding clause (B) are immediately
replaced in full at such time through the addition of new Banks
or the increase of the Commitments of existing Banks (who in each
case must specifically consent thereto), then in the case of any
action pursuant to preceding clause (B) the Required Banks
(determined before giving effect to the proposed action) must
specifically consent thereto, provided further, that in any event
the Company shall not have the right to replace a Bank, terminate
its Commitment or repay its Revolving 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 anything
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 provisions
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 organ-
izations (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, regulation 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 Revolving Loan Commitments or any interest therein by
such Bank, provided, that such prospective transferee agrees to
abide by the provisions 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 Commitment of such Bank and the rights to the principal of,
and interest on, any Loan made pursuant to such Commitment shall
not be effective until such transfer is recorded on the Register
maintained by the Agent with respect to ownership of such
Commitment and Loans and prior to such recordation all amounts
owing to the transferor with respect to such Commitment 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.
13.17 Judgment Currency. (a) The Borrowers'
obligations hereunder and under the other Credit Documents to
make payments in Dollars (the "Obligation Currency") shall not be
discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than
the Obligation Currency, except to the extent that such tender or
recovery results in the effective receipt by the Agent or the
respective Bank of the full amount of the Obligation Currency
expressed to be payable to the Agent or such Bank under this
Agreement or the other Credit Documents. If for the purpose of
obtaining or enforcing judgment against any Borrower in any court
or in any jurisdiction, it becomes necessary to convert into or
from any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "Judgment
Currency") an amount due in the Obligation Currency, the
conversion shall be made, at the rate of exchange (as quoted by
the Agent or if the Agent does not quote a rate of exchange on
such currency, by a known dealer in such currency designated by
the Agent) determined, in each case, as of the day immediately
preceding the day on which the judgment is given (such Business
Day being hereinafter referred to as the "Judgment Currency
Conversion Date").
(b) If there is a change in the rate of exchange
prevailing between the Judgment Currency Conversion Date and the
date of actual payment of the amount due, the Borrowers covenant
and agree to pay, or cause to be paid, such additional amounts,
if any (but in any event not a lesser amount) as may be necessary
to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of
payment, will produce the amount of the Obligation Currency which
could have been purchased with the amount of Judgment Currency
stipulated in the judgment or judicial award at the rate or
exchange prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining any rate of exchange
for this Section 13.17, such amounts shall include any premium
and costs payable in connection with the purchase of the
Obligation Currency.
13.18 Return of Notes. As of the Restatement
Effective Date, each promissory note issued by the Company and
the Subsidiary Borrowers to the respective Banks pursuant to the
Original Credit Agreement shall be of no force or effect and
shall be supercseded in all respects by the Notes delivered to
the Banks pursuant to this Agreement. In addition, each Bank
that is party to the Original Credit Agreement agrees to use its
reasonable efforts to return to the Company the promissory notes
issued to such Bank pursuant to the Original Credit Agreement.
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:
Park 80 East SEALED AIR CORPORATION
Saddle Brook, New Jersey 07663
Attention: Robert M. Grace, Jr., Esq.
Telephone: (201) 791-7600
Telecopy: (201) 703-4205 By /s/ Warren H. McCandless
Title: Senior Vice President
- Finance
c/o Sealed Air Corporation SEALED AIR B.V.
Park 80 East
Saddle Brook, New Jersey 07663
Attention: Robert M. Grace, Jr., Esq.
Telephone: (201) 791-7600
Telecopy: (201) 703-4205
By /s/ William V. Hickey
Title: Managing Director
c/o Sealed Air Corporation SEALED AIR FINANCE B.V.
Park 80 East
Saddle Brook, New Jersey 07663
Attention: Robert M. Grace, Jr., Esq.
Telephone: (201) 791-7600
Telecopy: (201) 703-4205 By /s/ William V. Hickey
Title: Director
c/o Sealed Air Corporation SEALED AIR (NZ) LIMITED
Park 80 East
Saddle Brook, New Jersey 07663
Attention: Robert M. Grace, Jr., Esq.
Telephone: (201) 791-7600
Telecopy: (201) 703-4205 By /s/ William V. Hickey
Title: Director
c/o Sealed Air Corporation SEALED AIR LIMITED
Park 80 East
Saddle Brook, New Jersey 07663
Attention: Robert M. Grace, Jr., Esq.
Telephone: (201) 791-7600
Telecopy: (201) 703-4205 By /s/ William V. Hickey
Title: Attorney-in-Fact
BANKERS TRUST COMPANY,
Individually and as Agent
By /s/ Dana Klein
Title: Vice President
ABN AMRO BANK N.V.
NEW YORK BRANCH,
Individually and as Co-Agent
By /s/ George M. Dugan
Title: Vice President
By /s/ David W. Stack
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ Frank O. Monfalcone
Title: Vice President
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By /s/ Frederick K. Kammler
Title: Vice President
By /s/ William C. Maier
Title: VP-Group Manager
COMPAGNIE FINANCIERE DE CIC ET
DE L'UNION EUROPEENNE
By /s/ Sean Mounier
Title: First Vice President
By /s/ Marcus Edward
Title: Vice President
CORESTATES BANK, N.A.
By /s/ John M. Fessick
Title: Vice President
CREDIT LYONNAIS,
NEW YORK BRANCH,
Individually and as Co-Agent
By /s/ John C. Oberle
Title: Vice President
THE FIRST NATIONAL BANK OF
BOSTON
By /s/ Jack Harcourt
Title: Authorized Officer
FLEET NATIONAL BANK
By /s/ Dorothy E. Bambach
Title: Senior Vice President
MIDLAND BANK PLC, NEW YORK
BRANCH
By /s/ Rochelle Forster
Title: Authorized Signatory
NATIONSBANK, N.A.,
Individually and as Co-Agent
By /s/ Scott Jackson
Title: Vice President
THE NORTHERN TRUST COMPANY
By /s/ Eric Strickland
Title: Vice President
TORONTO DOMINION (NEW YORK), INC.
By /s/ Debbie A. Greene
Title: Vice President
SUMMITT BANK,
Individually and as Co-Agent
By /s/ Lawrence F. Zema
Title: Vice President & Regional
Manager
