Exhibit 10.1


 


EXECUTION COPY


 


€150,000,000


 


THREE YEAR CREDIT AGREEMENT


 


Dated as of November 19,
2009


 


Among


 


SEALED AIR CORPORATION


as  Company


 


SEALED AIR LUXEMBOURG S.C.A.


SEALED AIR B.V.


and


SEALED AIR PACKAGING, SOCIEDAD LIMITADA UNIPERSONAL


as  Borrowers


 


THE INITIAL LENDERS NAMED HEREIN


as  Initial  Lenders


 


BNP PARIBAS,


as  Administrative  Agent


 


THE ROYAL BANK OF SCOTLAND PLC


as  Syndication  Agent


 


CITIBANK, N.A.


BANK OF AMERICA, N.A.


and


CALYON


as  Documentation  Agents


 


and


 


BNP PARIBAS SECURITIES CORP.


and


RBS SECURITIES INC.


as  Lead  Arrangers


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.
  Certain Defined Terms

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 1.02.
  Computation of Time Periods

  	
   

  	
  13

  
	
   

  	
   

  	
   

  
	
  SECTION 1.03.
  Accounting Terms

  	
   

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.
  The Advances

  	
   

  	
  14

  
	
   

  	
   

  	
   

  
	
  SECTION 2.02.
  Making the Revolving Credit Advances and Swing Line Advances

  	
   

  	
  14

  
	
   

  	
   

  	
   

  
	
  SECTION 2.03.
  Fees

  	
   

  	
  16

  
	
   

  	
   

  	
   

  
	
  SECTION 2.04.
  Termination or Reduction of the Commitments

  	
   

  	
  16

  
	
   

  	
   

  	
   

  
	
  SECTION 2.05.
  Repayment of Revolving Credit Advances

  	
   

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 2.06.
  Interest on Revolving Credit Advances and Swing Line Advances

  	
   

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 2.07.
  Interest Rate Determination

  	
   

  	
  18

  
	
   

  	
   

  	
   

  
	
  SECTION 2.08.
  Optional Conversion of Revolving Credit Advances

  	
   

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 2.09.
  Prepayments of Revolving Credit Advances and Swing Line Advances

  	
   

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 2.10.
  Increased Costs

  	
   

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 2.11.
  Illegality

  	
   

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 2.12.
  Payments and Computations

  	
   

  	
  21

  
	
   

  	
   

  	
   

  
	
  SECTION 2.13.
  Taxes

  	
   

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 2.14.
  Sharing of Payments, Etc.

  	
   

  	
  23

  
	
   

  	
   

  	
   

  
	
  SECTION 2.15.
  Evidence of Debt

  	
   

  	
  24

  
	
   

  	
   

  	
   

  
	
  SECTION 2.16.
  Use of Proceeds

  	
   

  	
  24

  
	
   

  	
   

  	
   

  
	
  SECTION 2.17.
  Defaulting Lenders

  	
   

  	
  24

  



 

















 


	
  ARTICLE III

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.
  Conditions Precedent to Effectiveness of Section 2.01

  	
   

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 3.02.
  Initial Advance to Each Designated Subsidiary

  	
   

  	
  26

  
	
   

  	
   

  	
   

  
	
  SECTION 3.03.
  Conditions Precedent to Each Revolving Credit Borrowing, and Swing Line
  Borrowing.

  	
   

  	
  26

  
	
   

  	
   

  	
   

  
	
  SECTION 3.04.
  Determinations Under Section 3.01

  	
   

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.
  Representations and Warranties of the Borrower

  	
   

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.
  Affirmative Covenants

  	
   

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 5.02.
  Negative Covenants

  	
   

  	
  32

  
	
   

  	
   

  	
   

  
	
  SECTION 5.03.
  Financial Covenants

  	
   

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.
  Events of Default

  	
   

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.
  Guaranty

  	
   

  	
  38

  
	
   

  	
   

  	
   

  
	
  SECTION 7.02.
  Guaranty Absolute

  	
   

  	
  38

  
	
   

  	
   

  	
   

  
	
  SECTION 7.03.
  Waivers and  Acknowledgments

  	
   

  	
  39

  
	
   

  	
   

  	
   

  
	
  SECTION 7.04.
  Subrogation

  	
   

  	
  40

  
	
   

  	
   

  	
   

  
	
  SECTION 7.05.
  Subordination

  	
   

  	
  40

  
	
   

  	
   

  	
   

  
	
  SECTION 7.06.
  Continuing  Guaranty; Assignments

  	
   

  	
  41

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.01.
  Authorization and Action

  	
   

  	
  41

  
	
   

  	
   

  	
   

  
	
  SECTION 8.02.
  Agent’s Reliance, Etc.

  	
   

  	
  41

  
	
   

  	
   

  	
   

  
	
  SECTION 8.03.
  BNPP and Affiliates

  	
   

  	
  42

  



 


ii

















 


	
  SECTION 8.04.
  Lender Credit Decision

  	
   

  	
  42

  
	
   

  	
   

  	
   

  
	
  SECTION 8.05.
  Indemnification

  	
   

  	
  42

  
	
   

  	
   

  	
   

  
	
  SECTION 8.06.
  Successor Agent

  	
   

  	
  43

  
	
   

  	
   

  	
   

  
	
  SECTION 8.07.
  Other Agents.

  	
   

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01.
  Amendments, Etc.

  	
   

  	
  43

  
	
   

  	
   

  	
   

  
	
  SECTION 9.02.
  Notices, Etc.

  	
   

  	
  43

  
	
   

  	
   

  	
   

  
	
  SECTION 9.03.
  No Waiver; Remedies

  	
   

  	
  44

  
	
   

  	
   

  	
   

  
	
  SECTION 9.04.
  Costs and Expenses

  	
   

  	
  44

  
	
   

  	
   

  	
   

  
	
  SECTION 9.05.
  Right of Set-off

  	
   

  	
  45

  
	
   

  	
   

  	
   

  
	
  SECTION 9.06.
  Binding Effect

  	
   

  	
  46

  
	
   

  	
   

  	
   

  
	
  SECTION 9.07.
  Assignments and Participations

  	
   

  	
  46

  
	
   

  	
   

  	
   

  
	
  SECTION 9.08.
  Confidentiality

  	
   

  	
  47

  
	
   

  	
   

  	
   

  
	
  SECTION 9.09.
  Designated Subsidiaries

  	
   

  	
  48

  
	
   

  	
   

  	
   

  
	
  SECTION 9.10.
  Governing Law

  	
   

  	
  48

  
	
   

  	
   

  	
   

  
	
  SECTION 9.11.
  Execution in Counterparts

  	
   

  	
  49

  
	
   

  	
   

  	
   

  
	
  SECTION 9.12.
  Judgment

  	
   

  	
  49

  
	
   

  	
   

  	
   

  
	
  SECTION 9.13.
  Jurisdiction, Etc.

  	
   

  	
  49

  
	
   

  	
   

  	
   

  
	
  SECTION 9.14.
  Patriot Act

  	
   

  	
  50

  
	
   

  	
   

  	
   

  
	
  SECTION 9.15.
  Waiver of Jury Trial

  	
   

  	
  51

  
	
   

  	
   

  	
   

  
	
  Schedules

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule I - List of
  Applicable Lending Offices

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 4.01(j) —
  Material Subsidiaries

  	
   

  	
   

  



 


iii

















 


	
  Schedule
  5.02(b)(ii) - Existing Subsidiary Indebtedness

  	
   

  	
   

  



 


	
  Exhibits

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  -

  	
   

  	
  Form of Note

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit B

  	
   

  	
  -

  	
   

  	
  Form of Notice of
  Revolving Credit Borrowing

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit C

  	
   

  	
  -

  	
   

  	
  Form of Assignment
  and Acceptance

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit D

  	
   

  	
  -

  	
   

  	
  Form of Subsidiary
  Guaranty

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit E

  	
   

  	
  -

  	
   

  	
  Form of Opinion of
  Counsel for the Loan Parties

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit F

  	
   

  	
  -

  	
   

  	
  Form of Borrower
  Designation Agreement

  



 


iv
















 


THREE YEAR CREDIT
AGREEMENT


 


Dated as of November 19,
2009


 


SEALED AIR CORPORATION, a
Delaware corporation (the “Company”), SEALED AIR LUXEMBOURG S.C.A., a
Luxembourg corporation (“Lux SCA”), SEALED AIR B.V., a Dutch corporation
(“SA BV”) and Sealed Air Packaging,
Sociedad Limitada Unipersonal, a
Spanish corporation (“SA Pkg SL”; the Company, Lux SCA, SA BV and SA Pkg
SL are, collectively, the “Initial Borrowers”), the banks and other
financial institutions (the “Initial Lenders”) listed on the signature pages hereof,
and BNP PARIBAS (“BNPP”), as administrative agent (the “Agent”)
for the Lenders (as hereinafter defined), agree as follows:


 


ARTICLE I


 


DEFINITIONS AND
ACCOUNTING TERMS


 


SECTION 1.01.  Certain Defined Terms.  As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):


 


“Accounting
Charges” means tangible asset write-downs and restructuring charges,
whether or not such charges require a cash payment at any time.


 


“Acquired
Entities” means any Person that becomes a Subsidiary as a result of an
Acquisition.


 


“Acquisition”
means (i) an investment by the Company or any of its Subsidiaries in any
Person (other than the Company or any of its Subsidiaries) pursuant to which
such Person shall become a Subsidiary or shall be merged into or consolidated
with the Company or any of its Subsidiaries or (ii) an acquisition by the
Company or any of its Subsidiaries of the property and assets of any Person
(other than the Company or any of its Subsidiaries) that constitutes
substantially all of the assets of such Person or any division or line or
business of such Person.


 


“Advance”
means a Revolving Credit Advance or a Swing Line Advance.


 


“Affected
Lender” means any Lender that (a) is a Defaulting Lender, (b) has
otherwise failed to pay to the Agent or any other Lender any other amount
required to be paid by it hereunder within three Business Days of the date when
due, unless such failure has been cured or is the subject of a good faith
dispute and such Lender has promptly notified the Company of the nature thereof
in reasonable detail, (c) has (or whose parent company has) become the
subject of a bankruptcy or insolvency proceeding or (d) has had a receiver
or conservator appointed with respect to such Lender (or any parent company of
such Lender) at the direction or request of any regulatory agency or authority
(or similar regulatory action has been taken with respect to such Lender).  No Lender shall be an Affected Lender solely
by virtue of the ownership or acquisition by a governmental authority or
instrumentality thereof of any equity interest in such Lender or parent company
thereof or the exercise of control over such Lender or parent company thereof
by a governmental authority or instrumentality thereof.


 


“Affiliate”
means, as to any Person, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such Person or is a
director or officer of such Person.  For
purposes of this definition, the term “control” (including the terms “controlling”,
“controlled by” and “under common control with”) of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the Voting
Stock of such Person or to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock, by
contract or otherwise.


 

















 


“Agent’s
Account” means such account of the Agent as is designated in writing from
time to time by the Agent to the Company and the Lenders for such purpose.


 


“Applicable
Lending Office” means, with respect to each Lender, such Lender’s Domestic
Lending Office in the case of a Base Rate Advance and such Lender’s
Eurocurrency Lending Office in the case of a Eurocurrency Rate Advance.


 


“Applicable
Margin” means as of any date, a percentage per annum determined by
reference to the Public Debt Rating in effect on such date as set forth below:


 


	
  Public
  Debt Rating

  S&P/Moody’s

  	
   

  	
  Applicable Margin for

  Base Rate Advances

  	
   

  	
  Applicable Margin for

  Eurocurrency Rate Advances

  	
   

  
	
  Level
  1

  BBB+
  and Baa1 or above

  	
   

  	
  1.250

  	
  %

  	
  2.250

  	
  %

  
	
  Level
  2

  BBB
  and Baa2

  	
   

  	
  1.750

  	
  %

  	
  2.750

  	
  %

  
	
  Level
  3

  BBB-
  and Baa3

  	
   

  	
  2.250

  	
  %

  	
  3.250

  	
  %

  
	
  Level
  4

  BB+
  and Ba1

  	
   

  	
  2.750

  	
  %

  	
  3.750

  	
  %

  
	
  Level
  5

  BB and
  Ba2

  	
   

  	
  3.250

  	
  %

  	
  4.250

  	
  %

  
	
  Level
  6

  BB-
  or Ba3 or lower

  	
   

  	
  3.750

  	
  %

  	
  4.750

  	
  %

  



 


“Applicable
Percentage” means, as of any date, a percentage per annum determined by
reference to the Public Debt Rating in effect on such date as set forth below:


 


	
  Public
  Debt Rating

  S&P/Moody’s

  	
   

  	
  Applicable

  Percentage

  	
   

  
	
  Level
  1

  BBB+
  and Baa1 or above

  	
   

  	
  0.375

  	
  %

  
	
  Level
  2

  BBB
  and Baa2

  	
   

  	
  0.500

  	
  %

  
	
  Level
  3

  BBB-
  and Baa3

  	
   

  	
  0.625

  	
  %

  
	
  Level
  4

  BB+
  and Ba1

  	
   

  	
  0.750

  	
  %

  
	
  Level
  5

  BB
  and Ba2

  	
   

  	
  0.875

  	
  %

  
	
  Level
  6

  BB-
  or Ba3 or lower

  	
   

  	
  1.000

  	
  %

  



 


“Assignment and
Acceptance” means an assignment and acceptance entered into by a Lender and
an Eligible Assignee, and accepted by the Agent, in substantially the form of Exhibit C
hereto.


 


“Bankruptcy
Code” has the meaning specified in Section 6.01(e).


 


“Bankruptcy Law”
means the Bankruptcy Code, or any similar foreign, federal or state law for the
relief of debtors.


 


2

















 


“Base Rate”
means a fluctuating interest rate per annum in effect from time to time, which
rate per annum shall at all times be equal to the highest of:


 


(a)           the rate of interest announced
publicly by BNPP in New York, New York, from time to time, as its
prime rate;


 


(b)           1⁄2 of one percent per annum above the
Federal Funds Rate; and


 


(c)           the rate equal to the Eurodollar Rate
for an Interest Period of one month for each day that a Base Rate Advance is
outstanding (and in respect of any day that is not a Business Day, the
Eurodollar Rate as in effect on the immediately preceding Business Day) plus
1.00%.


 


“Base Rate
Advance” means a Revolving Credit Advance or a Swing Line Advance, in each
case denominated in Dollars, that bears interest as provided in Section 2.06(a)(i).


 


“Borrower
Designation Agreement” means, with respect to any Designated Subsidiary, an
agreement in the form of Exhibit F hereto signed by such Designated
Subsidiary and the Company.


 


“Borrowers”
means, collectively, each Initial Borrower and each Designated Subsidiary that
shall become a party to this Agreement pursuant to Section 9.09.


 


“Borrowing”
means a Revolving Credit Borrowing or a Swing Line Borrowing.


 


“Business Day”
means a day of the year on which banks are not required or authorized by law to
close in New York City and, if the applicable Business Day relates to any
Eurocurrency Rate Advances, on which dealings are carried on in the London
interbank market and banks are open for business in London and, in the case of
an Advance denominated in Euro, on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer (TARGET) System is open.


 


“Capital Lease”
means any lease of property which, in accordance with generally accepted
accounting principles, would be required to be capitalized on the balance sheet
of the lessee.


 


“Change of
Control” means the occurrence of either of the following:  (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 stock 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.


 


“Commitment”
means as to any Lender (a) the Euro amount set forth opposite such Lender’s
name on the signature pages hereof, or (b) if such Lender has entered
into any Assignment and Acceptance, the Euro amount set forth for such Lender
in the Register maintained by the Agent pursuant to Section 9.07(d), as
such amount may be reduced pursuant to Section 2.04.


 


“Confidential
Information” has the meaning specified in Section 9.08.


 


“Consolidated”
refers to the consolidation of accounts in accordance with GAAP.


 


“Consolidated
Assets” means, at any date, the total assets of the Company and its
Subsidiaries as at such date determined on a Consolidated basis in accordance
with GAAP.


 


“Consolidated Debt”
means, at any time, the sum of (a) all amounts invested by a purchaser
(and not repaid) under a Permitted Receivables Financing, (b) all
Indebtedness (other than Contingent 


 


3

















 


Obligations) of the Company
and its Subsidiaries determined on a Consolidated basis and (c) the amount
corresponding to the principal portion of “Settlement agreement and related
accrued interest” as shown on the Consolidated balance sheet of the Company and
its Subsidiaries.


 


“Consolidated
Interest Expense” for any period means total interest expense (including
amounts properly attributable to interest with respect to capital leases in
accordance with GAAP, amortization of debt discount and debt issuance costs and
other amounts recorded as interest expense in accordance with GAAP) and losses
on the sale of the undivided ownership interests in certain accounts receivable
and program fees incurred, paid or payable under a Permitted Receivables
Financing, in each case, of the Company and its Subsidiaries on a Consolidated
basis for such period.


 


“Consolidated
Liabilities” means, at any date, the sum of all liabilities of the Company
and its Subsidiaries as at such date determined on a Consolidated basis in
accordance with GAAP.


 


“Consolidated
Net Debt” means, at any time, Consolidated Debt less unrestricted
cash, cash equivalents and short-term investments of the Company and its
Domestic Subsidiaries as reflected on the Consolidated balance sheets of the
Company and such Subsidiaries to the extent that the aggregate of such cash,
cash equivalents and short-term investments exceeds $25,000,000.


 


“Consolidated
Stockholders’ Equity” means, at any date, the remainder of (a) Consolidated
Assets as at such date, minus (b) Consolidated Liabilities as at such
date.


 


“Contingent
Obligation” means, as to any Person, any obligation of such Person
guaranteeing any Indebtedness (“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 amount such Person guarantees but in any
event not more than 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.


 


“Continuing
Directors” means the directors of the Company on the Effective Date and
each other director, if such director’s nomination for election to the Board of
Directors of the Company is recommended by a majority of the then Continuing
Directors.


 


“Convert”, “Conversion”
and “Converted” each refers to a conversion of Revolving Credit Advances
of one Type into Revolving Credit Advances of the other Type pursuant to Section 2.07
or 2.08.


 


“Default”
means any Event of Default or any event that would constitute an Event of
Default but for the requirement that notice be given or time elapse or both.


 


“Default Excess”
means, with respect to any Defaulting Lender, the excess, if any, of such
Defaulting Lender’s ratable portion of the aggregate outstanding principal
amount of the Advances of all Lenders (calculated as if all Defaulting Lenders
had funded all of their respective Defaulted Advances) over the aggregate
outstanding principal amount of all Advances of such Defaulting Lender.


 


4

















 


“Default Period”
means, with respect to any Defaulting Lender, the period commencing on the date
of the applicable Funding Default and ending on the earlier of the following
dates: (a) the date on which (i) the Default Excess with respect to
such Defaulting Lender has been reduced to zero (whether by the funding of any
Defaulted Advance by such Defaulting Lender or by the non-pro-rata application
of any prepayment pursuant to Section 2.17) and (ii) such Defaulting
Lender shall have delivered to the Company and the Agent a written
reaffirmation of its intention to honor its obligations hereunder with respect
to its Commitment; and (b) the date on which the Borrowers, the Agent and
the Required Lenders waive all Funding Defaults of such Defaulting Lender in
writing.


 


“Defaulted
Advance” has the meaning specified in Section 2.17.


 


“Defaulting
Lender” has the meaning specified in Section 2.17.


 


“Designated
Subsidiary” means any direct or indirect wholly-owned Subsidiary of the
Company designated for borrowing privileges under this Agreement pursuant to Section 9.09.


 


“Dollars”
and the “$” sign each means lawful currency of the United States of
America.


 


“Domestic
Lending Office” means, with respect to any Lender, the office of such
Lender specified as its “Domestic Lending Office” opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender, or such other office of such Lender as such Lender may from
time to time specify to the Company and the Agent.


 


“Domestic
Subsidiary” means any Subsidiary of the Company other than a Foreign
Subsidiary.


 


“EBITDA”
for any period means the Consolidated net income (or loss) of the Company and
its Subsidiaries for such period, adjusted by adding thereto (or subtracting in
the case of a gain) the following amounts to the extent deducted or included,
as applicable, and without duplication, when calculating Consolidated net
income (a) Consolidated Interest Expense, (b) income taxes, (c) any
extraordinary gains or losses, (d) gains or losses from sales of assets
(other than from sales of inventory in the ordinary course of business), (e) all
amortization of goodwill and other intangibles, (f) depreciation, (g) all
non-cash contributions or accruals to or with respect to deferred profit
sharing or compensation plans, (h) any non-cash gains (or losses)
resulting from the cumulative effect of changes in accounting principles, (i) non-cash
losses (or gains) that have not become cash charges resulting from accounting
adjustments to auction rate securities in an amount not to exceed $44,700,000
in aggregate, (j) non-cash charges resulting from accounting adjustments
to goodwill, (k) restructuring charges that neither the Company nor its
Subsidiaries has paid in cash, and (l) cash restructuring charges incurred
beginning in 2008 in an aggregate amount of $75,000,000; provided that
there shall be included in such determination for such period all such amounts
attributable to any Acquired Entity acquired during such period pursuant to an
Acquisition to the extent not subsequently sold or otherwise disposed of during
such period for the portion of such period prior to such Acquisition; provided  further that any amounts added to
Consolidated net income pursuant to clauses (g), (i) or (k) above
for any period shall be deducted from Consolidated net income for the period,
if ever, in which such amounts are paid in cash by the Company or any of its
Subsidiaries.


 


“Effective Date”
has the meaning specified in Section 3.01.


 


“Eligible
Assignee” means (i) a Lender; (ii) an Affiliate of a Lender; and (iii) any
other Person approved by the Agent and, unless an Event of Default has occurred
and is continuing at the time any assignment is effected in accordance with Section 9.07,
the Company, such approvals not to be unreasonably withheld or delayed; provided,
however, that neither the Company nor an Affiliate of the Company shall
qualify as an Eligible Assignee.


 


“EMU” means the
Economic and Monetary Union as contemplated by the Treaty on European Union.


 


5

















 


“Environmental
Claims” means any and all administrative, regulatory or judicial actions,
suits, 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 limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b) any
and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting
from Hazardous Materials or arising from alleged injury or threat of injury to
the environment.


 


“Environmental
Law” means any foreign, 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 or Hazardous Materials.


 


“Equivalent”
in Dollars of Euros on any date means the equivalent in Dollars of Euros
determined by using the quoted spot rate at which the Agent’s principal office
in London offers to exchange Dollars for Euros in London prior to 4:00 P.M.
(London time) (unless otherwise indicated by the terms of this Agreement) on
such date as is required pursuant to the terms of this Agreement, and the “Equivalent”
in Euros of Dollars means the equivalent in Euros of Dollars determined by
using the quoted spot rate at which the Agent’s principal office in London
offers to exchange Euros for Dollars in London prior to 4:00 P.M. (London
time) (unless otherwise indicated by the terms of this Agreement) on such date
as is required pursuant to the terms of this Agreement.


 


“ERISA”
means 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”
means any 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) or the Internal
Revenue Code or (ii) as a result of the Company or any of its Subsidiaries
being or having been a general partner of such person.


 


“EURIBO Rate”
means the rate appearing on Reuters EURIBOR01 Page (or on any successor or
substitute page of such Service, or any successor to or substitute for
such Service, providing rate quotations comparable to those currently provided
on such page of such Service, as determined by the Agent from time to time
for purposes of providing quotations of interest rates applicable to deposits
in Euro by reference to the Banking Federation of the European Union Settlement
Rates for deposits in Euro) at approximately 10:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the rate
for deposits in Euro with a maturity comparable to such Interest Period or, if
for any reason such rate is not available, the average (rounded upward to
the nearest whole multiple of 1/16 of 1% per annum, if such average is not such
a multiple) of the respective rates per annum at which deposits in Euros are
offered by the principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Interest Period in
an amount substantially equal to such Reference Bank’s Eurocurrency Rate
Advance comprising part of such Revolving Credit Borrowing to be outstanding
during such Interest Period and for a period equal to such Interest Period
(subject, however, to the provisions of Section 2.07).


 


“Euro” means the
lawful currency of the European Union as constituted by the Treaty of Rome
which established the European Community, as such treaty may be amended from
time to time and as referred to in the EMU legislation.


 


6

















 


“Eurocurrency
Lending Office” means, with respect to any Lender, the office of such
Lender specified as its “Eurocurrency Lending Office” opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Company and the Agent.


 


“Eurocurrency
Liabilities” has the meaning assigned to that term in Regulation D of
the Board of Governors of the Federal Reserve System, as in effect from time to
time.


 


“Eurocurrency
Rate” means, for any Interest Period for each Eurocurrency Rate Advance
comprising part of the same Revolving Credit Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a)(i) in the case
of any Revolving Credit Advance denominated in Dollars, the rate per annum
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum)
appearing on the Reuters LIBOR01 Page (or any successor page) as the
London interbank offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period or, if for any reason such rate
is not available, the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a multiple) of
the rate per annum at which deposits in Dollars is offered by the principal
office of each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially equal
to such Reference Bank’s Eurocurrency Rate Advance comprising part of such
Revolving Credit Borrowing to be outstanding during such Interest Period and
for a period equal to such Interest Period or, (ii) in the case of any
Revolving Credit Advance denominated in Euros, the EURIBO Rate by (b) a
percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage for
such Interest Period.  If the Reuters
LIBOR01 Page (or any successor page) is unavailable, the Eurocurrency Rate
for any Interest Period for each Eurocurrency Rate Advance comprising part of
the same Revolving Credit Borrowing shall be determined by the Agent on the
basis of applicable rates furnished to and received by the Agent from the
Reference Banks two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.07.


 


“Eurocurrency
Rate Advance” means a Revolving Credit Advance denominated in Dollars or
Euros that bears interest as provided in Section 2.06(a)(ii).


 


“Eurocurrency
Rate Reserve Percentage” for any Interest Period for all Eurocurrency Rate
Advances comprising part of the same Borrowing means the reserve percentage
applicable two Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or
other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting
of or including Eurocurrency Liabilities (or with respect to any other category
of liabilities that includes deposits by reference to which the interest rate
on Eurocurrency Rate Advances is determined) having a term equal to such
Interest Period.


 


“Events of
Default” has the meaning specified in Section 6.01.


 


“Federal Funds
Rate” means, for any period, a fluctuating interest rate per annum equal
for each day during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that is
a Business Day, the average of the quotations for such day on such transactions
received by the Agent from three Federal funds brokers of recognized standing
selected by it.


 


7

















 


“Foreign
Subsidiary” means (i) each Subsidiary of the Company not incorporated
under the laws of the United States or of any State thereof and (ii) any
other Subsidiary of the Company substantially all of the operations of which
remain outside the United States.


 


“Funding
Default” has the meaning specified in Section 2.17


 


“GAAP” has
the meaning specified in Section 1.03.


 


“Guaranteed
Obligations” has the meaning specified in Section 7.01.


 


“Hazardous
Materials” means (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,” “restricted hazardous materials,” “extremely hazardous wastes,” “restrictive
hazardous wastes,” “toxic substances,” “toxic pollutants,” “contaminants” or “pollutants,”
or words of similar meaning and regulatory effect under any applicable
Environmental Law.


 


“Indebtedness”
of any Person means, at any date, without duplication, (i) all obligations
of such Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments, (iii) all
obligations of such Person to pay the deferred purchase price of property or services
(except trade accounts payable and accrued expenses arising in the ordinary
course of business) to the extent such amounts would in accordance with GAAP be
recorded as debt on a balance sheet of such Person, (iv) all obligations
of such Person as lessee which are capitalized in accordance with GAAP, (v) all
non-contingent obligations of such Person to reimburse any bank or other Person
in respect of amounts paid under a letter of credit (other than letters of
credit which secure obligations in respect of trade payables or other letters
of credit not securing Indebtedness, unless such reimbursement obligation
remains unsatisfied for more than 3 Business Days), (vi) all Indebtedness
secured by a Lien on any asset of such Person, whether or not such Indebtedness
is otherwise an obligation of such Person, and (vii) all Contingent
Obligations of such Person minus the portion of such Contingent
Obligation which is secured by a letter of credit naming such Person as
beneficiary issued by a bank which, at the time of the issuance (or any renewal
or extension) of such letter of credit has a long term senior unsecured
indebtedness rating of at least A by S&P or A2 by Moody’s.


 


“Information
Memorandum” means the projections and management presentation posted on IntraLinks
on October 19, 2009 used by the Agent in connection with the syndication
of the Commitments.


 


“Interest
Coverage Ratio” for any period means the ratio of EBITDA to the sum of (i) Consolidated
Interest Expense for such period and (ii) the aggregate principal amount
of dividends paid or accrued on the Company’s preferred stock during such
period.


 


“Interest
Period” means, for each Eurocurrency Rate Advance comprising part of the
same Revolving Credit Borrowing, the period commencing on the date of such
Eurocurrency Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurocurrency Rate Advance and ending on the last day of the
period selected by the Borrower requesting such Borrowing pursuant to the
provisions below and, thereafter, each subsequent period commencing on the last
day of the immediately preceding Interest Period and ending on the last day of
the period selected by such Borrower pursuant to the provisions below.  The duration of each such Interest Period
shall be one, two, three or six months, and subject to clause (c) of this
definition, nine or twelve months, as the Borrower requesting the Borrowing
may, upon notice received by the Agent not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the first day of
such Interest Period in the case of Eurocurrency Rate Advances denominated in
Dollars and not later than 3:00 P.M. (New York City time) on the fourth
Business Day 


 


8

















 


prior to the first day of
such Interest Period in the case of Eurocurrency rate advances denominated in
Euro, select; provided, however, that:


 


(a)           such Borrower may
not select any Interest Period that ends after the Termination Date;


 


(b)           Interest Periods
commencing on the same date for Eurocurrency Rate Advances comprising part of
the same Revolving Credit Borrowing shall be of the same duration;


 


(c)           such Borrower shall
not be entitled to select an Interest Period having duration of nine or twelve
months unless, by 2:00 P.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, each Lender notifies the Agent
that such Lender will be providing funding for such Revolving Credit Borrowing
with such Interest Period (the failure of any Lender to so respond by such time
being deemed for all purposes of this Agreement as an objection by such Lender
to the requested duration of such Interest Period); provided that, if
any  or all of the Lenders object to the
requested duration of such Interest Period, the duration of the Interest Period
for such Revolving Credit Borrowing shall be one, two, three or six months, as
specified by such Borrower requesting such Revolving Credit Borrowing in the
applicable Notice of Revolving Credit Borrowing as the desired alternative to
an Interest Period of nine or twelve months;


 


(d)           whenever the last
day of any Interest Period would otherwise occur on a day other than a Business
Day, the last day of such Interest Period shall be extended to occur on the
next succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and


 


(e)           whenever the first
day of any Interest Period occurs on a day of an initial calendar month for
which there is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period shall end on the
last Business Day of such succeeding calendar month.


 


“Internal
Revenue Code” means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and rulings issued thereunder.  Section references to the Internal
Revenue Code are to the Internal Revenue Code as in effect at the date of this
Agreement, and to any subsequent provisions of the Internal Revenue Code
amendatory thereof, supplemental thereto or substituted therefor.


 


“Lenders”
means the Initial Lenders, the Swing Line Bank and each Person that shall
become a party hereto pursuant to Section 9.07.


 


“Leverage Ratio”
means (a) at any time prior to the Release Date, the ratio of Consolidated
Net Debt at such time to EBITDA for the Test Period last ended and (b) on
and after the Release Date, the ratio of Consolidated Debt at such time to
EBITDA for the Test Period then ended.


 


“Lien”
means any mortgage, pledge, hypothecation, encumbrance, lien (statutory or
other) or other security interest of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement and
any Capital Lease).


 


“Loan Document”
means this Agreement, the Notes and the Subsidiary Guaranty, if any.


 


“Loan Parties”
means each Borrower and each Subsidiary Guarantor.


 


9

















 


“Margin Stock”
has the meaning provided in Regulation U of the Board of Governors of the
Federal Reserve System.


 


“Material
Acquisition” means an Acquisition in which the aggregate purchase price
paid in cash or property (other than property consisting of equity shares or
interests or other equivalents of corporate stock of, or partnership or other
ownership interests in, the Company), equals or exceeds 10% of the sum
(calculated without giving effect to such Acquisition) of (i) Consolidated
Debt (determined as at the end of the most recently ended fiscal quarter of the
Company), plus (ii) Consolidated Stockholders’ Equity (determined
as at the end of the then most recently ended fiscal quarter of the Company), plus
(iii) any increase thereof attributable to any equity offerings or
issuances of capital stock occurring subsequent to the end of such fiscal
quarter and before any such purchase or acquisition.


 


“Material
Adverse Effect” means a material adverse effect on (a) the business,
condition (financial or otherwise), results of operations or prospects of the
Company and its Subsidiaries taken as a whole, (b) the rights and remedies
of the Agent or any Lender under this Agreement or any Note or (c) the
ability of the Company to perform its obligations under this Agreement or any
Note.


 


“Material
Subsidiary” means any Borrower and any other Subsidiary of the Company
that, directly or indirectly through a Subsidiary, either (a) owns assets
with a book value in excess of 2% of the book value of the Consolidated Assets
measured as of the last day of the most recently completed fiscal quarter for
which financial statements have been delivered pursuant to Section 5.01(a)(i) or
(ii) or (b) generated annual revenues in excess of 2% of the revenues
of the company and its Subsidiaries, taken as a whole, for the most recently
completed four fiscal quarter period for which financial statements have been
delivered pursuant to Section 5.01(a)(i) or (ii) (determined in
each case, if a Material Acquisition occurs, on a pro  forma basis
assuming such Material Acquisition had been consummated on the first day of the
most recently ended four fiscal quarter period).


 


“Minimum
Liquidity” means the sum of (a) cash, cash equivalents and short-term
investments of the Company and its Domestic Subsidiaries as reflected on the
consolidated balance sheets of the Company and such Subsidiaries, (b) amounts
available to be borrowed under committed lines of credit by the Company and its
Domestic Subsidiaries and (c) amounts available under a Permitted
Receivables Financing.


 


“Moody’s”
means Moody’s Investors Service, Inc.


 


“Non-Defaulting
Lender” has the meaning specified in Section 2.17(b)(i).


 


“Note”
means a promissory note of any Borrower payable to the order of any Lender,
delivered pursuant to a request made under Section 2.15 in substantially
the form of Exhibit A hereto, evidencing the aggregate indebtedness of
such Borrower to such Lender resulting from the Advances made by such Lender to
such Borrower.


 


“Notice of
Revolving Credit Borrowing” has the meaning specified in Section 2.02(a).


 


“Notice of
Swing Line Borrowing” has the meaning specified in Section 2.02(b).


 


“PBGC”
means the Pension Benefit Guaranty Corporation established pursuant to Section 4002
of ERISA or any successor thereto.


 


“Permitted
Encumbrances” means, as of any particular time, (i) such easements,
leases, subleases, 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 


 


10

















 


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
Receivables Financing”  shall
have the meaning provided in Section 5.02(e)(ii).


 


“Person”
means an individual, partnership, corporation (including a business trust),
joint stock company, trust, unincorporated association, joint venture, limited
liability company or other entity, or a government or any political subdivision
or agency thereof.


 


“Plan”
means any multiemployer or single-employer plan subject to Title IV 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.


 


“Post-Petition
Interest” has the meaning specified in Section 7.05.


 


“Public Debt
Rating” means, as of any date, the rating that has been most recently
announced by either S&P or Moody’s, as the case may be, for any class of
non-credit enhanced long-term senior unsecured debt issued by the Company or,
if any such rating agency shall have issued more than one such rating, the
lowest such rating issued by such rating agency.  For purposes of the foregoing, (a) if
only one of S&P and Moody’s shall have in effect a Public Debt Rating, the
Applicable Margin and the Applicable Percentage shall be determined by
reference to the available rating; (b) if neither S&P nor Moody’s
shall have in effect a Public Debt Rating, the Applicable Margin and the
Applicable Percentage will be set in accordance with Level 6 under the
definition of “Applicable Margin” or “Applicable Percentage”, as
the case may be; (c) if the ratings established by S&P and Moody’s
shall fall within different levels, the Applicable Margin and the Applicable
Percentage shall be based upon the higher rating unless such ratings differ by
two or more levels, in which case the applicable level will be deemed to be one
level above the lower of such levels; (d) if any rating established by
S&P or Moody’s shall be changed, such change shall be effective as of the
date on which such change is first announced publicly by the rating agency
making such change; and (e) if S&P or Moody’s shall change its system
of classification after the date hereof, each reference to the Public Debt
Rating announced by S&P or Moody’s, as the case may be, shall refer to the
then equivalent rating by S&P or Moody’s, as the case may be.


 


“Put Event”
has the meaning specified in Section 2.04(b).


 


“Ratable Share”
of any amount means, with respect to any Lender at any time, the product of (a) a
fraction the numerator of which is the amount of such Lender’s Commitment at
such time and the denominator of which is the aggregate Commitments at such
time and (b) such amount.


 


“Reference
Banks” means BNPP, The Royal Bank of Scotland plc, Citibank, N.A., Bank of
America, N.A. and Calyon New York Branch.


 


“Register”
has the meaning specified in Section 9.07(d).


 


“Release Date”
means the earlier of (a) the funding of the Settlement Agreement (after
the approval and implementation thereof in the plan of reorganization of W.R.
Grace & Co.) and the release of the Company from liability with
respect to all current and future asbestos-related claims pursuant to the
Settlement Agreement and (b) the Company being otherwise fully released
from its liability with respect to such asbestos-related claims (due to changes
in federal legislation and rendering of payment, or otherwise).


 


“Reportable
Event” means an event described in Section 4043(b) and (c) of
ERISA with respect to a Plan as to which the 30-day notice requirement has not
been waived by the PBGC.


 


11
















 


“Required
Lenders” means at any time Lenders owed at least a majority in interest of
the then aggregate unpaid principal amount (based on the Equivalent in Euro at
such time) of the Revolving Credit Advances owing to Lenders, or, if no such
principal amount is then outstanding, Lenders having at least a majority in
interest of the Commitments; provided that the Commitment of, and the
Advances held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.


 


“Revolving
Credit Advance” means an advance by a Lender to any Borrower as part of a
Revolving Credit Borrowing and refers to a Base Rate Advance or a Eurocurrency
Rate Advance (each of which shall be a “Type” of Revolving Credit
Advance).


 


“Revolving
Credit Borrowing” means a borrowing consisting of simultaneous Revolving
Credit Advances of the same Type made by each of the Lenders pursuant to Section 2.01(a).


 


“Revolving
Credit Borrowing Minimum” means, in respect of Revolving Credit Advances denominated
in Dollars, $5,000,000, and in respect of Revolving Credit Advances denominated
in Euros, €5,000,000.


 


“Revolving
Credit Borrowing Multiple” means, in respect of Revolving Credit Advances
denominated in Dollars, $1,000,000, and in respect of Revolving Credit Advances
denominated in Euros, €1,000,000.


 


“SAC(US)”
means Sealed Air Corporation (US), a Delaware corporation.


 


“S&P”
means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.


 


“Senior
Financial Officer” means the President, the Chief Executive Officer, the
Chief Operating Officer, the Chief Financial Officer and the Treasurer of the
Company.


 


“Settlement
Agreement” means the Settlement Agreement and Release, dated November 10,
2003, among the Company, the Official Committee of Asbestos Personal Injury
Claimants, the Official Committee of Asbestos Property Damage Claimants and
Cryovac, as may be amended, supplemented or modified from time to time in
accordance with Section 5.02(h) hereof.


 


“Subordinated
Obligations” has the meaning specified in Section 7.05.


 


“Subsidiary”
of any Person means any corporation, partnership, joint venture, limited
liability company, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect a
majority of the Board of Directors of such corporation (irrespective of whether
at the time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such limited liability company,
partnership or joint venture or (c) the beneficial interest in such trust
or estate is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or
more of such Person’s other Subsidiaries.


 


“Subsidiary
Guarantor” means each Material Subsidiary that is also a Domestic
Subsidiary and that is a party to the Subsidiary Guaranty, if any.


 


“Subsidiary
Guaranty” means a guaranty in substantially the form of Exhibit D
hereto (together with each other guaranty or guaranty supplement delivered
pursuant to Section 5.01(h)), which shall be duly executed by each of the
Domestic Subsidiaries listed on Schedule 4.01(j), if required pursuant to Section 5.01(h).


 


12

















 


“Subsidiary
Guaranty Period” means any period from the date that the Public Debt
Ratings are BB+ or lower by S&P and Ba1 or lower by Moody’s until earlier
of (a) the Subsidiary Guaranty Release Date and (b) the later of (i) the
repayment in full of all Advances and (ii) the Termination Date.


 


“Subsidiary
Guaranty Release Date” means the first date on which the Public Debt Rating
is BBB or better from S&P and Baa2 or better from Moody’s.


 


“Swing Line
Advance” means an advance made by the Swing Line Bank pursuant to Section 2.01(b) or
any other Lender by purchase from the Swing Line Bank pursuant to Section 2.02(b).


 


“Swing Line
Advance Maturity Date” has the meaning specified in Section 2.02(b).


 


“Swing Line
Bank” means BNPP.


 


“Swing Line
Borrowing” means a Borrowing consisting of a Swing Line Advance made by the
Swing Line Bank.


 


“Termination
Date” means the earlier of (a) July 26, 2012, (b) the date
of termination in whole of the Commitments pursuant to Section 2.04 or
6.01 or (c) as to any Lender who becomes a Defaulting Lender, the date of
termination of such Defaulting Lender’s Commitments pursuant to Section 2.04.


 


“Test Period”
means the four consecutive fiscal quarters of the Company then last ended, in
each case taken as one accounting period.


 


“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.


 


“Unused
Commitment” means, with respect to each Lender at any time, (a) the
amount of such Lender’s Commitment at such time minus (b) the sum
of (i) the aggregate principal amount of all Revolving Credit Advances
(based in respect of any Revolving Credit Advances denominated in Dollars on
the Equivalent in Euros at such time) made by such Lender (in its capacity as a
Lender) and outstanding at such time, plus (ii) such Lender’s
Ratable Share of the aggregate principal amount of all Swing Line Advances
(based on the Equivalent in Euros at such time) outstanding at such time.


 


“Voting Stock”
means capital stock issued by a corporation, or equivalent interests in any
other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even if the right so to vote has
been suspended by the happening of such a contingency.


 


“Wholly-Owned
Subsidiary” means, as to any Person, (i) 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 (ii) 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.


 


SECTION 1.02.  Computation of Time Periods.  In this Agreement in the computation of
periods of time from a specified date to a later specified date, the word “from”  means “from and including” and the words “to”
and “until” each mean “to but excluding”.


 


SECTION 1.03.  Accounting Terms.  Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements


 


13

















 


required to be delivered
hereunder shall be prepared, in accordance with generally accepted accounting
principles as in effect from time to time, applied on a basis consistent
(except for changes concurred with by the Borrower’s independent registered
public accounting firm) with the most recent audited Consolidated financial
statements of the Borrower delivered to the Agent (“GAAP”), provided
that, if the Borrower notifies the Agent that the Borrower wishes to amend any
covenant in Article V to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Agent notifies the Borrower that the
Required Lenders wish to amend Article V for such purpose), then the
Borrower’s compliance with such covenant shall be applied on the basis of GAAP
in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.


 


ARTICLE II


 


AMOUNTS AND TERMS
OF THE ADVANCES


 


SECTION 2.01.  The Advances .  (a)  Revolving Credit Advances.  Each Lender severally agrees, on the terms
and conditions hereinafter set forth, to make Revolving Credit Advances to any
Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an aggregate amount (based in
respect of any Revolving Credit Advances to be denominated in Dollars by
reference to the Equivalent thereof in Euros determined on the date of delivery
of the applicable Notice of Revolving Credit Borrowing) not to exceed such
Lender’s Unused Commitment.  Each
Revolving Credit Borrowing shall be in an amount not less than the Revolving
Credit Borrowing Minimum or the Revolving Credit Borrowing Multiple in excess
thereof and shall consist of Revolving Credit Advances of the same Type and in
the same currency made on the same day by the Lenders ratably according to
their respective Commitments.  Within the
limits of each Lender’s Commitment, any Borrower may borrow under this Section 2.01(a),
prepay pursuant to Section 2.09 and reborrow under this Section 2.01(a).


 


(b)           The Swing Line Advances.  The Swing Line Bank agrees, on the terms and
conditions hereinafter set forth, to make Swing Line Advances denominated in
Dollars to any Borrower from time to time on any Business Day during the period
from the date hereof until the Termination Date (i) in an aggregate amount
not to exceed at any time outstanding the Equivalent of €10,000,000 (the “Swing
Line Facility”) and (ii) in an amount for each such Advance not to
exceed the Unused Commitments of the Lenders immediately prior to the making of
such Advance  The Swing Line Bank agrees
to make one or more Swing Line Advances on any Business Day.  No Swing Line Advance shall be used for the
purpose of funding the payment of principal of any other Swing Line
Advance.  Each Swing Line Borrowing shall
be in an amount of $1,000,000 or an integral multiple of $500,000 in excess
thereof and shall consist of a Base Rate Advance made by the Swing Line
Bank.  Within the limits of the Swing
Line Facility and within the limits referred to in clause (ii) above, any
Borrower may borrow under this 2.01(b), prepay pursuant to Section 2.09
and reborrow under this Section 2.01(b).


 


SECTION 2.02.  Making the Revolving Credit Advances and
Swing Line Advances.  (a)  Each
Revolving Credit Borrowing shall be made on notice, given not later than (x) 11:00 A.M.
(New York City time) on the third Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in Dollars, (y) 3:00 P.M.
(New York City time) on the fourth Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in Euros, or (z) 11:00 A.M.
(New York City time) on the date of the proposed Revolving Credit Borrowing in
the case of a Revolving Credit Borrowing consisting of Base Rate Advances, by
the applicable Borrower to the Agent, which shall give to each Lender prompt
notice thereof by telecopier or telex. 
Each such notice of a Revolving Credit Borrowing (a “Notice of
Revolving Credit Borrowing”) shall be by telephone, confirmed promptly in
writing, or telecopier or telex in substantially the form of Exhibit B
hereto, specifying therein the requested (i) date of such Revolving Credit
Borrowing, (ii) Type of Advances comprising such Revolving Credit
Borrowing, (iii) aggregate amount of such Revolving Credit Borrowing, and (iv) in
the case of a Revolving Credit Borrowing consisting of Eurocurrency Rate
Advances, initial Interest Period and currency for each such Revolving Credit
Advance.  Each Lender shall, before 1:00 P.M.
(New York City time) on the date of such Revolving Credit Borrowing, in
the case of a Revolving Credit Borrowing consisting of Advances denominated in
Dollars, and before 9:00 A.M. (New York City time) on the date of such
Revolving Credit Borrowing, in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in Euros, make available
for the account of its Applicable Lending Office to the Agent at the


 


14

















 


applicable Agent’s
Account, in same day funds, such Lender’s ratable portion of such Revolving
Credit Borrowing.  After the Agent’s
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Agent will make such funds available to the
Borrower requesting the applicable Borrowing at the address and in the account
of such Borrower specified in the applicable Notice of Revolving Credit
Borrowing.


 


(b)           Each Swing Line Borrowing shall be
made on notice, given not later than 1:00 P.M. (New York City time) on the
date of the proposed Swing Line Borrowing by the Borrower to the Swing Line
Bank and the Agent, of which the Agent shall give prompt notice to the
Lenders.  Each such notice of a Swing Line
Borrowing (a “Notice of Swing Line Borrowing”) shall be by telephone,
confirmed promptly in writing, or telecopier or telex, specifying therein the
requested (i) date of such Borrowing, (ii) amount of such Borrowing
and (iii) maturity of such Borrowing (which maturity shall be no later
than the earlier of (A) the tenth Business Day after the requested date of
such Borrowing and (B) the Termination Date (the “Swing Line Advance
Maturity Date”)).  The Swing Line
Bank shall, before 2:00 P.M. (New York City time) on the date of such
Swing Line Borrowing, make such Swing Line Borrowing available to the Agent at
the Agent’s Account, in same day funds. 
After the Agent’s receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Agent will make such
funds available to the applicable Borrower at the address and in the account of
such Borrower specified in the applicable Notice of Swing Line Borrowing.  Upon written demand by the Swing Line Bank,
with a copy of such demand to the Agent, each other Lender will purchase from
the Swing Line Bank, and the Swing Line Bank shall sell and assign to each such
other Lender, such other Lender’s Ratable Share of such outstanding Swing Line
Advance, by making available for the account of its Applicable Lending Office
to the Agent for the account of the Swing Line Bank, by deposit to the Agent’s
Account, in same day funds, an amount equal to its Ratable Share of such Swing
Line Advance.  Each Borrower hereby
agrees to each such sale and assignment. 
Each Lender agrees to purchase its Ratable Share of an outstanding Swing
Line Advance on (i) the Business Day on which demand therefor is made by
the Swing Line Bank, provided that notice of such demand is given not
later than 11:00 A.M. (New York City time) on such Business Day or (ii) the
first Business Day next succeeding such demand if notice of such demand is
given after such time.  Upon any such
assignment by the Swing Line Bank to any other Lender of a portion of a Swing
Line Advance, the Swing Line Bank represents and warrants to such other Lender
that the Swing Line Bank is the legal and beneficial owner of such interest
being assigned by it, but makes no other representation or warranty and assumes
no responsibility with respect to such Swing Line Advance, this Agreement, the
Notes or the Borrowers.  If and to the
extent that any Lender shall not have so made its Ratable Share of such Swing
Line Advance available to the Agent, such Lender agrees to pay to the Agent
forthwith on demand such amount together with interest thereon, for each day
from the date such Lender is required to have made such amount available to the
Agent until the date such amount is paid to the Agent, at the Federal Funds
Rate.  If such Lender shall pay to the
Agent such amount for the account of the Swing Line Bank on any Business Day,
such amount so paid in respect of principal shall constitute a Swing Line
Advance made by such Lender on such Business Day for purposes of this
Agreement, and the outstanding principal amount of the Swing Line Advance made
by the Swing Line Bank shall be reduced by such amount on such Business Day.


 


(c)           Anything in subsection (a) above
to the contrary notwithstanding, (i) no Borrower may select Eurocurrency
Rate Advances for any Revolving Credit Borrowing if the aggregate amount of
such Revolving Credit Borrowing is less than the Revolving Credit Borrowing
Minimum or if the obligation of the Lenders to make Eurocurrency Rate Advances
shall then be suspended pursuant to Section 2.07 or 2.11 and (ii) the
Eurocurrency Rate Advances may not be outstanding as part of more than ten
separate Revolving Credit Borrowings.


 


(d)           Each Notice of Revolving Credit
Borrowing and Notice of Swing Line Borrowing of any Borrower shall be
irrevocable and binding on such Borrower. 
In the case of any Revolving Credit Borrowing that the related Notice of
Revolving Credit Borrowing specifies is to be comprised of Eurocurrency Rate
Advances, the Borrower requesting such Revolving Credit Borrowing shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of Revolving Credit Borrowing for such Revolving Credit Borrowing the
applicable conditions set forth in Article III, including, without
limitation, any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund the Revolving Credit Advance to be made
by such Lender as part of such Revolving Credit Borrowing when such Revolving
Credit Advance, as a result of such failure, is not made on such date.


 


15

















 


(e)           Unless the Agent shall have received
notice from a Lender prior to the time of any Revolving Credit Borrowing that
such Lender will not make available to the Agent such Lender’s ratable portion
of such Revolving Credit Borrowing, the Agent may assume that such Lender has
made such portion available to the Agent on the date of such Revolving Credit
Borrowing in accordance with subsection (a) of this Section 2.02
and the Agent may, in reliance upon such assumption, make available to the
Borrower requesting such Revolving Credit Borrowing on such date a
corresponding amount.  If and to the
extent that such Lender shall not have so made such ratable portion available
to the Agent, such Lender agrees to repay to the Agent forthwith on demand such
corresponding amount.  If such Lender
does not pay such corresponding amount forthwith upon the Agent’s demand
therefor, the Agent shall promptly notify the applicable Borrower and such
Borrower shall immediately pay such corresponding amount to the Agent.  The Agent shall also be entitled to receive
from such Lender or such Borrower, as the case may be, interest on such
corresponding amount, for each day from the date such amount is made available
to such Borrower until the date such amount is repaid to the Agent, at (i) in
the case of such Borrower, the higher of (A) the interest rate applicable
at the time to Revolving Credit Advances comprising such Revolving Credit
Borrowing and (B) the cost of funds incurred by the Agent in respect of
such amount and (ii) in the case of such Lender, (A) the Federal
Funds Rate in the case of Advances denominated in Dollars or (B) the cost
of funds incurred by the Agent in respect of such amount in the case of
Advances denominated in Euros. If such Lender shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Lender’s
Revolving Credit Advance as part of such Revolving Credit Borrowing for
purposes of this Agreement.


 


(f)            The failure of any Lender to make
the Revolving Credit Advance to be made by it as part of any Revolving Credit
Borrowing or to make the Swing Line Advance to be made by it as part of any
Swing Line Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing or to
prejudice any rights which any Borrower may have against any Lenders as a
result of any default by such Lender hereunder. 
No Lender shall be responsible for the failure of any other Lender to
make the Advance to be made by such other Lender on the date of any Borrowing.


 


(g)           Each Lender at its
option may make any Advances by causing any domestic or foreign branch or
Affiliate of such Lender to make such Advances; provided that any exercise of
such option shall not affect the obligation of the applicable Borrower to repay
such Advances in accordance with the terms of this Agreement.


 


SECTION 2.03.  Fees. 
(a)  Commitment Fee. 
The Company agrees to pay to the Agent for the account of each Lender
(other than a Defaulting Lender for such time as such Lender is a Defaulting
Lender), a commitment fee on the aggregate amount of such Lender’s Unused
Commitment from the date hereof in the case of each Initial Lender and from the
effective date specified in the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other Lender until the Termination Date at
a rate per annum equal to the Applicable Percentage in effect from time to
time, payable in arrears quarterly on the last Business Day of each March,
June, September and December, commencing December 31, 2009, and on
the Termination Date; provided, that for purposes of calculating each
Lender’s commitment fee, clause (ii) of the definition of “Unused
Commitment” shall be disregarded.


 


(b)           Agent’s Fees.  The Company shall pay to the Agent for its
own account such fees as may from time to time be agreed between the Company
and the Agent.


 


SECTION 2.04.  Termination or Reduction of the
Commitments.  (a)  Termination
or Reduction by the Company.  (i) 
Ratable Reduction.  The Company
shall have the right, upon at least three Business Days’ notice to the Agent,
to terminate in whole or permanently reduce ratably in part the respective
Unused Commitments of the Lenders, provided that each partial reduction
shall be in the aggregate amount of €10,000,000 or an integral multiple of
€1,000,000 in excess thereof.


 


(ii)  Non-Ratable
Reduction.  The Company shall have
the right, at any time, upon at least three Business Days’ notice to an
Affected Lender (with a copy to the Agent), to terminate in whole such Lender’s
Commitment.  Such termination shall be
effective, (x) with respect to such Lender’s Unused Commitment, on the
date set forth in such notice, provided, however, that such date
shall be no earlier than three Business Days after receipt of such notice and (y) with
respect to each Advance outstanding to such Lender, in the case of Base Rate
Advances, on the date set forth in such notice and, in the case of Eurocurrency
Rate Advances, on the last day of the then current Interest Period relating to
such Advance.  Upon termination of a Lender’s
Commitment under this 


 


16

















 


Section 2.04(a)(ii),
the Company will pay or cause to be paid all principal of, and interest accrued
to the date of such payment on, Advances owing to such Lender and pay any
accrued commitment fees payable to such Lender pursuant to the provisions of Section 2.03,
and all other amounts payable to such Lender hereunder (including, but not
limited to, any increased costs or other amounts owing under Section 2.10
and any indemnification for Taxes under Section 2.13); and upon such
payments, the obligations of such Lender hereunder shall, by the provisions
hereof, be released and discharged; provided, however, that (i) such
Lender’s rights under Sections 2.10, 2.13 and 9.04, and its obligations under Section 8.05
shall survive such release and discharge as to matters occurring prior to such
date; (ii) no claim that the Company may have against such Lender arising
out of such Lender’s default hereunder shall be released or impaired in any
way; and (iii) if pursuant to this Section 2.04(a)(ii), the Borrowers
shall pay to a Defaulting Lender any principal of, or interest accrued on, the
Advances owing to such Defaulting Lender, then the Company shall either (x) confirm
to the Agent that the conditions set forth in Section 3.03(a) are met
on and as of such date of payment or (y) pay or cause to be paid a ratable
payment of principal and interest to all Lenders that are not Defaulting
Lenders.  The aggregate amount of the
Commitments of the Lenders once reduced pursuant to this Section 2.04(a)(ii) may
not be reinstated.


 


(b)           Termination by the Lenders.  If any of the following events shall occur
and shall continue without cure for a period for 60 days (each, a “Put Event”):


 


(i)            the revocation, vacation or
modification of a ruling by any court approving the Settlement Agreement (such
revocation, vacation or modification being then non-appealable, other than for
the reason of being an interlocutory ruling; not appealed from within the time permitted
by law; or all available appeals or other means of review having been
exhausted); or


 


(ii)           the occurrence of any event that
results in a material increase of the Company’s asbestos-related liability in
excess of the amounts provided for in the Settlement Agreement or a material
reduction of the protection afforded to the Company by the Settlement
Agreement; or


 


(iii)          (A) before the effective date of
the final plan of reorganization of W.R. Grace & Co., the stay of
non-bankruptcy proceedings against the Company ceases to be in effect; (B) before
the effective date of the final plan of reorganization of W.R. Grace &
Co., a court schedules a trial of the issues raised in the adversary proceeding
currently pending against the Company that are the subject matter of the
Settlement Agreement; or (C) after the effective date of the final plan of
reorganization of W.R. Grace & Co., the injunction granted under §524(g) of
the Bankruptcy Code ceases to be in effect;


 


then, the Required Lenders may, by notice to
the Company and the Agent (x) declare that the obligation of each Lender
to make Advances (other than Advances to be made by a Lender pursuant to Section 2.02(b))
to be terminated, whereupon the same shall forthwith terminate and (y) declare
that the Advances, all interest thereon and all other amounts payable under
this Agreement shall be forthwith due and payable, whereupon the Advances, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind,
all of which are expressly hereby waived by the Borrowers.


 


SECTION 2.05.  Repayment of Advances.  (a)  Revolving Credit Advances.  Each Borrower shall repay to the Agent for
the ratable account of the Lenders on the Termination Date the aggregate
principal amount of the Revolving Credit Advances made to it and then
outstanding.


 


(b)           Swing Line Advances.  Each Borrower shall repay to the Agent for
the account of (i) the Swing Line Bank and (ii) each other Lender
which has made a Swing Line Advance by purchase from the Swing Line Bank
pursuant to Section 2.02(b) the outstanding principal amount of each
Swing Line Advance made by each of them on the Swing Line Advance Maturity Date
specified in the applicable Notice of Swing Line Borrowing.


 


SECTION 2.06.  Interest on Revolving Credit Advances and
Swing Line Advances.  (a)  Scheduled
Interest.  Each Borrower shall pay
interest on the unpaid principal amount of each Revolving Credit Advance and
each Swing Line Advance owing to each Lender from the date of such Advance
until such principal amount shall be paid in full, at the following rates per
annum:


 


17

















 


(i)            Base Rate Advances.  During such periods as such Revolving Credit
Advance is a Base Rate Advance and for each Swing Line Advance, a rate per
annum equal at all times to the sum of (x) the Base Rate in effect from
time to time plus (y) the Applicable Margin in effect from time to
time, payable in arrears (A) in the case of a Base Rate Advance that is
not a Swing Line Advance, quarterly on the last Business Day of each March,
June, September and December during such periods and on the date such
Base Rate Advance shall be Converted or paid in full or (B) in the case of
a Base Rate Advance that is a Swing Line Advance, on the date such Swing Line
Advance shall be paid in full.


 


(ii)           Eurocurrency Rate Advances.  During such periods as such Revolving Credit
Advance is a Eurocurrency Rate Advance, a rate per annum equal at all times during
each Interest Period for such Revolving Credit Advance to the sum of (x) the
Eurocurrency Rate for such Interest Period for such Revolving Credit Advance plus
(y) the Applicable Margin in effect from time to time, payable in arrears
on the last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest Period
and on the date such Eurocurrency Rate Advance shall be Converted or paid in
full.


 


(b)           Default Interest.  Upon the occurrence and during the continuance of an
Event of Default, the Agent may, and upon the request of the Required Lenders
shall, require each Borrower to pay interest (“Default Interest”) on (i) the
unpaid principal amount of each Revolving Credit Advance and each Swing Line
Advance owing to each Lender, payable in arrears on the dates referred to in
clause (a)(i) or (a)(ii) above, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on such
Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to
the fullest extent permitted by law, the amount of any interest, fee or other
amount payable hereunder that is not paid when due, from the date such amount
shall be due until such amount shall be paid in full, payable in arrears on the
date such amount shall be paid in full and on demand, at a rate per annum equal
at all times to 2% per annum above the rate per annum required to be paid on
Base Rate Advances pursuant to clause (a)(i) above; provided, however,
that following acceleration of the Advances pursuant to Section 6.01,
Default Interest shall accrue and be payable hereunder whether or not
previously required by the Agent.


 


SECTION 2.07.  Interest Rate Determination.  (a)  Each Reference Bank agrees to
furnish to the Agent timely information for the purpose of determining each
Eurocurrency Rate.  If any one or more of
the Reference Banks shall not furnish such timely information to the Agent for
the purpose of determining any such interest rate, the Agent shall determine
such interest rate on the basis of timely information furnished by the
remaining Reference Banks.  The Agent
shall give prompt notice to the Company and the Lenders of the applicable
interest rate determined by the Agent for purposes of Section 2.06(a)(i) or
(ii), and the rate, if any, furnished by each Reference Bank for the purpose of
determining the interest rate under Section 2.06(a)(ii).


 


(b)           If, with respect to any Eurocurrency
Rate Advances, the Required Lenders notify the Agent that (i) they are
unable to obtain matching deposits in the applicable currency in the London
inter-bank market at or about 11:00 A.M. (London time) on the second
Business Day before the making of a Borrowing in sufficient amounts to fund
their respective Revolving Credit Advances as a part of such Borrowing during
its Interest Period or (ii) the Eurocurrency Rate for any Interest Period
for such Advances will not adequately reflect the cost to such Required Lenders
of making, funding or maintaining their respective Eurocurrency Rate Advances
in the applicable currency for such Interest Period, the Agent shall forthwith
so notify each Borrower and the Lenders, whereupon (A) the Borrower of
such Eurocurrency Rate Advances in such currency will, on the last day of the
then existing Interest Period therefor, (1) if such Eurocurrency Rate
Advances are denominated in Dollars, either (x) prepay such Advances or (y) Convert
such Advances into Base Rate Advances and (2) if such Eurocurrency Rate
Advances are denominated in Euros, either (x) prepay such Advances or (y) exchange
such Advances into an Equivalent amount of Dollars and Convert such Advances
into Base Rate Advances and (B) the obligation of the Lenders to make, or
to Convert Revolving Credit Advances into, Eurocurrency Rate Advances in such
currency shall be suspended until the Agent shall notify each Borrower and the
Lenders that the circumstances causing such suspension no longer exist; provided
that, if the circumstances set forth in clause (ii) above are applicable,
the applicable Borrower may elect, by notice to the Agent and the Lenders, to
continue such Advances in Euros for Interest Periods of not longer than one
month, which Advances shall thereafter bear interest at a rate per annum equal
to the Applicable Margin plus, for each Lender, the cost to such Lender
(expressed as a rate per annum) of funding its Eurocurrency Rate Advances by
whatever means it reasonably determines to be appropriate.  Each 


 


18

















 


Lender shall certify its
cost of funds for each Interest Period to the Agent and the Company as soon as
practicable (but in any event not later than ten Business Days after the first
day of such Interest Period).


 


(c)           If any Borrower shall fail to select
the duration of any Interest Period for any Eurocurrency Rate Advances in
accordance with the provisions contained in the definition of “Interest Period”
in Section 1.01, the Agent will forthwith so notify such Borrower and the
Lenders and such Advances will automatically, on the last day of the then
existing Interest Period therefor, (i) if such Eurocurrency Rate Advances
are denominated in Dollars, Convert into Base Rate Advances and (ii) if such
Eurocurrency Rate Advances are denominated in Euros, be exchanged for an
Equivalent amount of Dollars and Convert into Base Rate Advances.


 


(d)           On the date on which the aggregate
unpaid principal amount of Eurocurrency Rate Advances comprising any Borrowing
shall be reduced, by payment or prepayment or otherwise, to less than the
Revolving Credit Borrowing Minimum, such Advances shall automatically (i) if
such Eurocurrency Rate Advances are denominated in Dollars, Convert into Base
Rate Advances and (ii) if such Eurocurrency Rate Advances are denominated
in Euros, be exchanged for an Equivalent amount of Dollars and Convert into
Base Rate Advances.


 


(e)           Upon the occurrence and during the
continuance of any Event of Default, (i) each Eurocurrency Rate Advance
will automatically, on the last day of the then existing Interest Period
therefor, (A) if such Eurocurrency Rate Advances are denominated in
Dollars, be Converted into Base Rate Advances and (B) if such Eurocurrency
Rate Advances are denominated in Euros, be exchanged for an Equivalent amount
of Dollars and be Converted into Base Rate Advances and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurocurrency
Rate Advances shall be suspended.


 


(f)            If Reuters LIBOR01 Page or
Reuters EURIBOR01 Page is unavailable and fewer than two Reference Banks
furnish timely information to the Agent for determining the Eurocurrency Rate
for any Eurocurrency Rate Advances,


 


(i)            the Agent shall forthwith notify the
relevant Borrower and the Lenders that the interest rate cannot be determined
for such Eurocurrency Rate Advances,


 


(ii)           each such Eurocurrency Rate Advance
will automatically, on the last day of the then existing Interest Period
therefor, (A) if such Eurocurrency Rate Advance is denominated in Dollars,
Convert into a Base Rate Advance and (B) if such Eurocurrency Rate Advance
is denominated in Euros, be prepaid by the applicable Borrower or be
automatically exchanged for an Equivalent amount of Dollars and be Converted
into a Base Rate Advance, and


 


(iii)          the obligation of the Lenders to make
Eurocurrency Rate Advances or to Convert Revolving Credit Advances into
Eurocurrency Rate Advances shall be suspended until the Agent shall notify the
Borrowers and the Lenders that the circumstances causing such suspension no
longer exist.


 


SECTION 2.08.  Optional Conversion of Revolving Credit
Advances.  Each Borrower may on any
Business Day, upon notice given to the Agent not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the date of the
proposed Conversion and subject to the provisions of Sections 2.07 and
2.11, Convert all Revolving Credit Advances denominated in Dollars of one Type
comprising the same Borrowing into Revolving Credit Advances denominated in Dollars
of the other Type; provided, however, that any Conversion of
Eurocurrency Rate Advances into Base Rate Advances shall be made only on the
last day of an Interest Period for such Eurocurrency Rate Advances, any
Conversion of Base Rate Advances into Eurocurrency Rate Advances shall be in an
amount not less than the minimum amount specified in Section 2.02(c) and
no Conversion of any Revolving Credit Advances shall result in more separate
Revolving Credit Borrowings than permitted under Section 2.02(c).  Each such notice of a Conversion shall,
within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Dollar denominated Revolving Credit Advances to be
Converted, and (iii) if such Conversion is into Eurocurrency Rate
Advances, the duration of the initial Interest Period for each such
Advance.  Each notice of Conversion shall
be irrevocable and binding on the Borrower requesting such Conversion.


 


19

















 


SECTION 2.09.  Prepayments of Revolving Credit Advances
and Swing Line Advances.  (a) Optional.  Each Borrower may, upon notice at least two
Business Days’ prior to the date of such prepayment, in the case of
Eurocurrency Rate Advances, and not later than 11:00 A.M. (New York City
time) on the date of such prepayment, in the case of Base Rate Advances, to the
Agent stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given such Borrower shall, prepay the
outstanding principal amount of the Revolving Credit Advances comprising part
of the same Revolving Credit Borrowing or Swing Line Advances comprising part
of the same Swing Line Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount
prepaid; provided, however, that (i) each partial prepayment
shall be in an aggregate principal amount of (x) not less than the
Revolving Credit Borrowing Minimum or a Revolving Credit Borrowing Multiple in
excess thereof in the case of Revolving Credit Advances or (y) not less
than $500,000 or an integral multiple thereof in the case of Swing Line
Advances and (ii) in the event of any such prepayment of a Eurocurrency
Rate Advance, the Borrower making such prepayment shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 9.04(c).


 


(b)           Mandatory.  (i)  If, on any date, the Agent notifies
the Company that, on any interest payment date, the sum of (A) the
aggregate principal amount of all Advances denominated in Euros then outstanding
plus (B) the Equivalent in Euros (determined on the third Business Day
prior to such interest payment date) of the aggregate principal amount of all
Advances denominated in Dollars then outstanding exceeds 105% of the aggregate
Commitments of the Lenders on such date, the Company and each other Borrower
shall, as soon as practicable and in any event within two Business Days after
receipt of such notice, subject to the proviso to this sentence set forth
below, prepay the outstanding principal amount of any Advances owing by the
Borrowers in an aggregate amount sufficient to reduce such sum to an amount not
to exceed 100% of the aggregate Commitments of the Lenders on such date
together with any interest accrued to the date of such prepayment on the aggregate
principal amount of Advances prepaid. 
The Agent shall give prompt notice of any prepayment required under this
Section 2.09(b) to the Company and the Lenders, and shall provide
prompt notice to the Company of any such notice of required prepayment received
by it from any Lender.


 


(ii)           Each prepayment made pursuant to this
Section 2.09(b) shall be made together with any interest accrued to
the date of such prepayment on the principal amounts prepaid and, in the case
of any prepayment of a Eurocurrency Rate Advance on a date other than the last
day of an Interest Period or at its maturity, any additional amounts which the
applicable Borrower shall be obligated to reimburse to the Lenders in respect
thereof pursuant to Section 9.04(c). 
The Agent shall give prompt notice of any prepayment required under this
Section 2.09(b) to the Company and the Lenders.


 


SECTION 2.10.  Increased Costs.  (a)  If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority including, without limitation, any
agency of the European Union or similar monetary or multinational authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender of agreeing to make or making, funding or maintaining
Eurocurrency Rate Advances (excluding for purposes of this Section 2.10
any such increased costs resulting from (i) Taxes or Other Taxes (as to
which Section 2.13 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Company shall from time to time, upon demand by such Lender
(with a copy of such demand to the Agent), pay to the Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost.  A certificate as to the
amount of such increased cost, submitted to the Company and the Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest
error.


 


(b)           If any Lender determines that compliance
with any law or regulation or any guideline or request from any central bank or
other governmental authority (whether or not having the force of law) affects
or would affect the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender and that the amount of
such capital is increased by or based upon the existence of such Lender’s
commitment to lend hereunder and other commitments of this type, then, upon
demand by such Lender (with a copy of such demand to the Agent), the Company
shall pay to the Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation in the light of such circumstances, to the extent
that such Lender reasonably determines such increase in 


 


20

















 


capital to be allocable
to the existence of such Lender’s commitment to lend hereunder.  A certificate as to such amounts submitted to
the Company and the Agent by such Lender shall be conclusive and binding for
all purposes, absent manifest error.


 


(c)           Failure or delay on the part of any
Lender to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender’s right to demand such compensation; provided
that the Company shall not be required to compensate such Lender pursuant to
this Section for any increased costs or reductions incurred more than 180
days prior to the date that such Lender notifies the Company of the change in
law or circumstance giving rise to such increased costs or reductions and of
such Lender’s intention to claim compensation therefor; provided  further
that, if the change in law or circumstance giving rise to such increased costs
or reductions is retroactive, then the 180-day period referred to above shall
be extended to include the period of retroactive effect thereof.


 


SECTION 2.11.  Illegality.  Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurocurrency Lending Office to perform its obligations
hereunder to make Eurocurrency Rate Advances in Dollars or Euros or to fund or
maintain Eurocurrency Rate Advances in Dollars or Euros hereunder, (a) each
Eurocurrency Rate Advance in the applicable currency will automatically, upon
such demand (i) if such Eurocurrency Rate Advance is denominated in
Dollars, be Converted into a Base Rate Advance and (ii) if such
Eurocurrency Rate Advance is denominated in Euros, be exchanged into an
Equivalent amount of Dollars and be Converted into a Base Rate Advance, and (b) the
obligation of the Lenders to make Eurocurrency Rate Advances in such currency
or to Convert Revolving Credit Advances into Eurocurrency Rate Advances in such
currency shall be suspended until the Agent shall notify the Company and the
Lenders that the circumstances causing such suspension no longer exist.


 


SECTION 2.12.  Payments and Computations.  (a)  Each Borrower shall make each
payment hereunder (except with respect to principal of, interest on, and other
amounts relating to, Advances denominated in Dollars and the processing fee, if
any, payable in accordance with Section 9.07(a)), irrespective of any
right of counterclaim or set-off, not later than 11:00 A.M. (New York
City time) on the day when due in Euros to the Agent at the applicable Agent’s
Account in same day funds.  Each Borrower
shall make each payment hereunder with respect to principal of, interest on,
and other amounts relating to, Advances denominated in Dollars, irrespective of
any right of counterclaim or set-off, not later than 11:00 A.M.
(New York City time) on the day when due in Dollars to the Agent at the
applicable Agent’s Account in same day funds. 
The Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or fees ratably (other than
amounts payable pursuant to Section 2.04(b)(ii), 2.10, 2.13 or 9.04(c)) to
the Lenders for the account of their respective Applicable Lending Offices, and
like funds relating to the payment of any other amount payable to any Lender to
such Lender for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement.  Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register
pursuant to Section 9.07(c), from and after the effective date specified
in such Assignment and Acceptance, the Agent shall make all payments hereunder
and under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.


 


(b)           Each Borrower hereby authorizes each
Lender, if and to the extent payment owed to such Lender is not made when due
hereunder or under the Note held by such Lender, to charge from time to time
against any or all of such Borrower’s accounts with such Lender any amount so
due.


 


(c)           All computations of interest based on
the Base Rate shall be made by the Agent on the basis of a year of 365 or 366
days, as the case may be, all computations of interest based on the
Eurocurrency Rate or the Federal Funds Rate and of fees shall be made by the
Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest or fees are payable.  Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.


 


21
















 


(d)           Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest or
fee, as the case may be; provided, however, that, if such
extension would cause payment of interest on or principal of Eurocurrency Rate
Advances to be made in the next following calendar month, such payment shall be
made on the next preceding Business Day.


 


(e)           Unless the Agent shall have received notice from any
Borrower prior to the date on which any payment is due to the Lenders hereunder
that such Borrower will not make such payment in full, the Agent may assume
that such Borrower has made such payment in full to the Agent on such date and
the Agent may, in reliance upon such assumption, cause to be distributed to
each Lender on such due date an amount equal to the amount then due such
Lender.  If and to the extent such Borrower
shall not have so made such payment in full to the Agent, each Lender shall
repay to the Agent forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Agent, at (i) the Federal Funds Rate in the case of Advances denominated
in Dollars or (ii) the cost of funds incurred by the Agent in respect of
such amount in the case of Advances denominated in Euros.


 


(f)            To the extent that the Agent receives funds for
application to the amounts owing by any Borrower under or in respect of this
Agreement or any Note in currencies other than the currency or currencies
required to enable the Agent to distribute funds to the Lenders in accordance
with the terms of this Section 2.12, the Agent shall be entitled to
convert or exchange such funds into Dollars or into Euros or from Dollars to
Euros or from Euros to Dollars, as the case may be, to the extent necessary to
enable the Agent to distribute such funds in accordance with the terms of this Section 2.12;
provided that each Borrower and each of the Lenders hereby agree that
the Agent shall not be liable or responsible for any loss, cost or expense
suffered by such Borrower or such Lender as a result of any conversion or
exchange of currencies affected pursuant to this Section 2.12(f) or
as a result of the failure of the Agent to effect any such conversion or
exchange; and provided  further that each Borrower agrees to indemnify
the Agent and each Lender, and hold the Agent and each Lender harmless, for any
and all losses, costs and expenses incurred by the Agent or any Lender for any
conversion or exchange of currencies (or the failure to convert or exchange any
currencies) in accordance with this Section 2.12(f).


 


SECTION 2.13.  Taxes. 
(a)  Any and all payments by any Borrower to or for the account of
any Lender or the Agent hereunder or under the Notes or any other documents to
be delivered hereunder shall be made, in accordance with Section 2.12 or
the applicable provisions of such other documents, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto, excluding,
in the case of each Lender and the Agent, taxes imposed on its overall net
income, and franchise taxes imposed on it in lieu of net income taxes, by the
jurisdiction under the laws of which such Lender or the Agent (as the case may
be) is organized or any political subdivision thereof and, in the case of each
Lender, taxes imposed on its overall net income, and franchise taxes imposed on
it in lieu of net income taxes, by the jurisdiction of such Lender’s Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being hereinafter referred to
as “Taxes”).  If any Borrower
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Note or any other documents to be delivered
hereunder to any Lender or the Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section 2.13)
such Lender or the Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such
Borrower shall make such deductions and (iii) such Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.


 


(b)           In addition, each Borrower shall pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder or under
the Notes, any other documents to be delivered hereunder or from the execution,
delivery or registration of, performing under, or otherwise with respect to,
this Agreement or the Notes or any other documents to be delivered hereunder
(hereinafter referred to as “Other Taxes”).


 


(c)           Each Borrower shall indemnify each Lender and the
Agent for and hold it harmless against the full amount of Taxes or Other Taxes
(including, without limitation, taxes of any kind imposed or asserted


 


22

















 


by any jurisdiction on
amounts payable under this Section 2.13) imposed on or paid by such Lender
or the Agent (as the case may be) and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto.  This indemnification shall be made within 30
days from the date such Lender or the Agent (as the case may be) makes written
demand therefor.


 


(d)           Within 30 days after the date of any payment of Taxes,
each Borrower shall furnish to the Agent, at its address referred to in Section 9.02,
the original or a certified copy of a receipt evidencing such payment to the
extent such a receipt is issued therefor, or other written proof of payment
thereof that is reasonably satisfactory to the Agent.  In the case of any payment hereunder or under
the Notes or any other documents to be delivered hereunder by or on behalf of
any Borrower through an account or branch outside the United States or by or on
behalf of any Borrower by a payor that is not a United States person, if such
Borrower determines that no Taxes are payable in respect thereof, such Borrower
shall furnish, or shall cause such payor to furnish, to the Agent, at such
address, an opinion of counsel acceptable to the Agent stating that such
payment is exempt from Taxes.  For
purposes of this subsection (d) and subsection (e), the terms “United
States” and “United States person” shall have the meanings specified
in Section 7701 of the Internal Revenue Code.


 


(e)           Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender and on the date
of the Assignment and Acceptance pursuant to which it becomes a Lender in the
case of each other Lender, and from time to time thereafter as reasonably
requested in writing by any Borrower (but only so long as such Lender remains
lawfully able to do so), shall provide each of the Agent and such Borrower with
two original Internal Revenue Service Forms W-8BEN or W-8ECI, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Lender is exempt from or entitled to a reduced
rate of United States withholding tax on payments pursuant to this Agreement or
the Notes.  If the form provided by a
Lender at the time such Lender first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender provides the appropriate forms certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such form; provided, however,
that, if at the date of the Assignment and Acceptance pursuant to which a
Lender assignee becomes a party to this Agreement, the Lender assignor was
entitled to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender assignee
on such date.  If any form or document
referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service Form W-8BEN
or W-8ECI, that the Lender reasonably considers to be confidential, the Lender
shall give notice thereof to the Company and shall not be obligated to include
in such form or document such confidential information.


 


(f)            For any period with respect to which a Lender has
failed to provide the applicable Borrower with the appropriate form,
certificate or other document described in Section 2.13(e) (other
than if such failure is due to a change in law, or in the interpretation
or application thereof, occurring subsequent to the date on which a form,
certificate or other document originally was required to be provided, or if
such form, certificate or other document otherwise is not required under
subsection (e) above), such Lender shall not be entitled to
indemnification under Section 2.13(a) or (c) with respect to
Taxes imposed by the United States by reason of such failure; provided, however,
that should a Lender become subject to Taxes because of its failure to deliver
a form, certificate or other document required hereunder, each Borrower shall
take such steps as the Lender shall reasonably request to assist the Lender to
recover such Taxes.


 


SECTION 2.14.  Sharing of Payments, Etc.  Subject to Section 2.17 in the case of a
Defaulting Lender, if any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) on
account of the Revolving Credit Advances or Swing Line Advances owing to it
(other than pursuant to Section 2.10, 2.13 or 9.04(c)) in excess of its
Ratable Share of payments on account of the Revolving Credit Advances and Swing
Line Advances obtained by all the Lenders, such Lender shall forthwith purchase
from the other Lenders such participations in the Revolving Credit Advances or
Swing Line Advances owing to them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, such 


 


23

















 


purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender’s ratable share (according to the proportion of (i) the amount
of such Lender’s required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered.  Each Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.14
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of such Borrower in the amount of such
participation.


 


SECTION 2.15.  Evidence of Debt.  (a)  Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Revolving
Credit Advance and each Swing Line Advance owing to such Lender from time to
time, including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder in respect of Revolving Credit Advances and
Swing Line Advances.  Each Borrower
agrees that upon notice by any Lender to such Borrower (with a copy of such
notice to the Agent) to the effect that a Note is required or appropriate in
order for such Lender to evidence (whether for purposes of pledge, enforcement
or otherwise) the Revolving Credit Advances and Swing Line Advances owing to,
or to be made by, such Lender, such Borrower shall promptly execute and deliver
to such Lender a Note payable to the order of such Lender in a principal amount
up to the Commitment of such Lender.


 


(b)           The Register maintained by the Agent pursuant to Section 9.07(d) shall
include a control account, and a subsidiary account for each Lender, in which
accounts (taken together) shall be recorded (i) the date and amount of
each Borrowing made hereunder, the Type of Advances comprising such Borrowing
and, if appropriate, the Interest Period applicable thereto, (ii) the
terms of each Assignment and Acceptance delivered to and accepted by it, (iii) the
amount of any principal or interest due and payable or to become due and
payable from each Borrower to each Lender hereunder and (iv) the amount of
any sum received by the Agent from such Borrower hereunder and each Lender’s
share thereof.


 


(c)           Entries made in good faith by the Agent in the
Register pursuant to subsection (b) above, and by each Lender in its
account or accounts pursuant to subsection (a) above, shall be prima
facie evidence of the amount of principal and interest due and payable
or to become due and payable from each Borrower to, in the case of the
Register, each Lender and, in the case of such account or accounts, such
Lender, under this Agreement, absent manifest error; provided, however,
that the failure of the Agent or such Lender to make an entry, or any finding
that an entry is incorrect, in the Register or such account or accounts shall
not limit or otherwise affect the obligations of any Borrower under this
Agreement.


 


SECTION 2.16.  Use of Proceeds.  The proceeds of the Advances shall be
available (and the Company agrees that it shall use such proceeds) solely for
the working capital and general corporate purposes of the Company and its
Subsidiaries, including, but not limited to, the payment of cash amounts
required to be paid pursuant to the Settlement Agreement.


 


SECTION 2.17.  Defaulting Lenders.  (a)  Anything contained herein to the
contrary notwithstanding, in the event that any Lender defaults (a “Defaulting
Lender”) in its obligation to fund (a “Funding Default”) any Advance
or its portion of any unreimbursed payment under Section 2.02(b) (in
each case, a “Defaulted Advance”) within three Business Days of the date
required to be funded, then (a) to the extent permitted by applicable law,
until such time as the Default Excess with respect to such Defaulting Lender
shall have been reduced to zero, (i) any voluntary prepayment of the
Advances shall, if the applicable Borrower so directs at the time of making
such voluntary prepayment, be applied to the Advances of other Lenders as if
such Defaulting Lender had no Advances outstanding, and (ii) any mandatory
prepayment of the Advances shall, if the applicable Borrower so directs at the
time of making such mandatory prepayment, be applied to the Advances of other
Lenders (but not to the Advances of such Defaulting Lender) as if such Defaulting
Lender had funded all Defaulted Advances of such Defaulting Lender; and (b) the
aggregate Unused Commitments as at any date of determination shall be
calculated as if such Defaulting Lender had funded all Defaulted Advances of
such Defaulting Lender.


 


(b)           If any Swing Line Advances are outstanding at the time
a Lender becomes an Affected Lender, then:


 


24

















 


(i)            all or any part of the Swing Line Advances shall be
reallocated among the Lenders that are not Affected Lenders (“Non-Defaulting
Lenders”) in accordance with their respective Ratable Shares (disregarding
any Affected Lender’s Commitment) but only to the extent that, with respect to
any Non-Defaulting Lender, (x) the sum of (A) the aggregate principal
amount of all Advances made by such Non-Defaulting Lender (in its capacity as a
Lender) and outstanding at such time, plus (B) such Non-Defaulting Lender’s
Ratable Share (before giving effect to the reallocation contemplated herein) of
the Swing Line Advances, plus (C) such Non-Defaulting Lender’s Ratable
Share of such Affected Lender’s Ratable Share of the Swing Line Advances, does
not exceed such Non-Defaulting Lenders’ Commitment and (y) the conditions
set forth in Section 3.03(a) are satisfied at such time; or


 


(ii)           if the reallocation described in clause (i) above
cannot, or can only partially, be effected, the Borrowers shall within one
Business Day following notice by the Agent, cash collateralize such Affected
Lender’s Ratable Share of the Swing Line Advances (after giving effect to any
partial reallocation pursuant to clause (i) above) by paying cash
collateral to the Swing Line Bank for so long as such Swing Line Advances are
outstanding.


 


(c)           So long as any Lender is an Affected Lender, the Swing
Line Bank shall not be required to make any Swing Line Advance, unless it is
satisfied that the related exposure will be 100% covered by the Commitments of
the Non-Defaulting Lenders and/or cash collateral will be provided by the
Borrowers in accordance with Section 2.17(b), and participating interests
in any such Swing Line Advances shall be allocated among Non-Defaulting Lenders
in a manner consistent with Section 2.17(b)(i) (and Affected Lenders
shall not participate therein).


 


(d)           No Commitment of any Lender shall be increased or
otherwise affected, and, except as otherwise expressly provided in this Section 2.17,
performance by the Loan Parties of their obligations shall not be excused or
otherwise modified as a result of any Funding Default or the operation of this Section 2.17.  The rights and remedies against a Defaulting
Lender under this Section 2.17 are in addition to other rights and
remedies which the Loan Parties, the Agent or any Lender may have against such
Defaulting Lender with respect to any Funding Default.


 


ARTICLE III


 


CONDITIONS TO
EFFECTIVENESS AND LENDING


 


SECTION 3.01.  Conditions Precedent to Effectiveness of Section 2.01.  Section 2.01 of this Agreement shall
become effective on and as of the first date (the “Effective Date”) on
which the following conditions precedent have been satisfied:


 


(a)           The Company shall have notified each Lender and the
Agent in writing as to the proposed Effective Date.


 


(b)           The Company shall have paid all accrued fees and
expenses of the Agent and the Lenders (including the accrued fees and expenses
of counsel to the Agent).


 


(c)           On the Effective Date, the following statements shall
be true and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Company, dated the
Effective Date, stating that:


 


(i)            The representations and warranties
contained in Section 4.01 are correct on and as of the Effective Date, and


 


(ii)           No event has occurred and is continuing
that constitutes a Default or that constitutes or would, with the passage of
time, constitute a Put Event.


 


25

















 


(d)           The Agent shall have received on or before the
Effective Date the following, each dated such day (other than the Settlement
Agreement), in form and substance satisfactory to the Agent:


 


(i)            The Notes to the order of the Lenders to
the extent requested by any Lender pursuant to Section 2.15.


 


(ii)           Certified copies of the Settlement
Agreement, in form and substance satisfactory to the Lenders, duly executed by
each of the parties thereto.


 


(iii)          Certified copies of the resolutions of
the Board of Directors of each Loan Party approving the other Loan Documents to
which it is a party, and of all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to the Loan Documents
to which it is a party.


 


(iv)          A certificate of the Secretary or an
Assistant Secretary of each Loan Party certifying the names and true signatures
of the officers of such Loan Party authorized to sign the Loan Documents to
which it is a party and the other documents to be delivered hereunder.


 


(v)           A favorable opinion of Skadden, Arps,
Slate, Meagher & Flom LLP, counsel for the Loan Parties, Kleyr Grasso
Associes, counsel for Lux SCA, Stibbe, counsel for SA BV, and Landwell
PricewaterhouseCoopers Juridico y Fiscal, counsel for SA Pkg SL, substantially
in the form of Exhibits E-1 or E-2 hereto,.


 


SECTION 3.02.  Initial Advance to Each Designated
Subsidiary.  The obligation of each
Lender to make an initial Advance to each Designated Subsidiary is subject to
the receipt by the Agent on or before the date of such initial Advance of each
of the following, in form and substance reasonably satisfactory to the Agent
and dated such date, and (except for the Notes) in sufficient copies for each
Lender:


 


(a)           The Notes of such Designated Subsidiary to the order
of the Lenders to the extent requested by any Lender pursuant to Section 2.15.


 


(b)           Certified copies of the resolutions of the Board of Directors
of such Designated Subsidiary (with a certified English translation if the
original thereof is not in English) approving this Agreement and the other Loan
Documents to be delivered by it, and of all documents evidencing other
necessary corporate action and governmental approvals, if any, with respect to
this Agreement and the other Loan Documents to be delivered by it.


 


(c)           A certificate of a proper officer of such Designated
Subsidiary certifying the names and true signatures of the officers of such
Designated Subsidiary authorized to sign its Borrower Designation Agreement,
the other Loan Documents to be delivered by it and the other documents to be
delivered by it hereunder.


 


(d)           A Borrower Designation Agreement duly executed by such
Designated Subsidiary and the Company.


 


(e)           Favorable opinions of counsel (which may be in-house
counsel) to such Designated Subsidiary substantially in the form of Exhibit E
hereto and as to such other matters as any Lender through the Agent may
reasonably request.


 


(f)            Such other approvals, opinions or documents as any
Lender, through the Agent may reasonably request.


 


SECTION 3.03.  Conditions Precedent to Each Revolving
Credit Borrowing and Swing Line Borrowing. 
The obligation of each Lender to make an Advance (other than a Swing
Line Advance made by a


 


26

















 


Lender pursuant to Section 2.02(b))
shall be subject to the conditions precedent that the Effective Date shall have
occurred and on the date of such Borrowing (a) the following statements
shall be true (and each of the giving of the applicable Notice of Revolving
Credit Borrowing or Notice of Swing Line Borrowing and the acceptance by the
Borrower requesting such Borrowing of the proceeds of such Borrowing shall constitute
a representation and warranty by such Borrower that on the date of such
Borrowing such statements are true):


 


(i)            the representations and warranties contained in Section 4.01
(except the representation set forth in the last sentence of subsection (e) thereof)
are correct on and as of such date, before and after giving effect to such
Borrowing and to the application of the proceeds therefrom, as though made on
and as of such date, except to the extent such representations and warranties
expressly relate to any earlier date, in which case such representations and
warranties shall be true and correct as of such earlier date, and additionally,
if such Borrowing shall have been requested by a Designated Subsidiary, the
representations and warranties of such Designated Subsidiary contained in its
Borrower Designation Agreement are correct on and as of the date of such
Borrowing, before and after giving effect to such Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date,
except to the extent such representations and warranties expressly relate to
any earlier date, in which case such representations and warranties shall be
true and correct as of such earlier date, and


 


(ii)           no event has occurred and is continuing, or would
result from such Borrowing or from the application of the proceeds therefrom,
that constitutes a Default or that constitutes or would, with the passage of
time, constitute a Put Event;


 


and (b) the Agent
shall have received such other approvals, opinions or documents as any Lender
through the Agent may reasonably request; provided in the event a
Funding Default exists, the Swing Line Bank shall not be required to make any
Swing Line Advance unless the Swing Line Bank has entered into arrangements satisfactory
to it and the Borrower to eliminate the Swing Line Bank’s risk with respect to
the participation of the Defaulting Lender in Swing Line Advances, including by
cash collateralizing such Defaulting Lender’s Ratable Share of the Swing Line
Advances in accordance with Section 2.17(b).


 


SECTION 3.04.  Determinations Under Section 3.01.  For purposes of determining compliance with
the conditions specified in Section 3.01, each Lender shall be deemed to
have consented to, approved or accepted or to be satisfied with each document
or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to the Lenders unless an officer of the Agent
responsible for the transactions contemplated by this Agreement shall have
received notice from such Lender prior to the date that the Company, by notice
to the Lenders, designates as the proposed Effective Date, specifying its
objection thereto.  The Agent shall
promptly notify the Lenders of the occurrence of the Effective Date.


 


ARTICLE IV


 


REPRESENTATIONS
AND WARRANTIES


 


SECTION 4.01.  Representations and Warranties of the
Borrowers.  Each Borrower represents
and warrants as follows:


 


(a)           Status.  Each of the
Company and its Material Subsidiaries (i) is duly organized, validly
existing and, if applicable, in good standing, under the laws of the
jurisdiction of its incorporation or organization, (ii) has the corporate
or comparable 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, if applicable,
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 would not reasonably be expected to have a
Material Adverse Effect.


 


(b)           Power and Authority.  Each Borrower
and each Subsidiary Guarantor, if any, has the corporate or comparable power
and authority to execute, deliver and perform the terms and provisions of


 


27

















 


each of the Loan
Documents to which it is a party and has taken all necessary corporate or
comparable action to authorize the execution, delivery and performance by it of
each of such Loan Documents.  Each
Borrower and each Subsidiary Guarantor, if any, has duly executed and delivered
each of the Loan Documents to which it is a party, and each of such Loan
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).


 


(c)           No Violation.  Neither the
execution, delivery or performance by any Borrower or any Subsidiary Guarantor,
if applicable, of the Loan Documents to which it is a party, nor compliance by
it with the terms and provisions thereof, (i) contravenes any provision of
any law, statute, rule or regulation or any material order, writ,
injunction or decree of any court or governmental instrumentality, (ii) conflicts
or is inconsistent with or results in any breach of any of the terms,
covenants, conditions or provisions of, or constitutes a default under, or
results 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 Material Subsidiaries pursuant to the terms of any material 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 Material
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) violates any provision of the
certificate of incorporation or by-laws (or the equivalent documents) of the
Company or any of its Material Subsidiaries.


 


(d)           Governmental Approvals.  No order,
consent, approval, license, authorization or validation of, or filing,
recording or registration with (except as have been obtained or made and which
remain in full force and effect), or exemption by, any governmental or public
body or authority, or any subdivision thereof, is required to be obtained by
the Company, any Borrower or any Subsidiary Guarantor, if applicable, to
authorize, or is required for, (i) the execution, delivery and performance
of any Loan Document or (ii) the legality, validity, binding effect or
enforceability of any Loan Document.


 


(e)           Financial Statements; Financial Condition. 
The audited Consolidated balance sheet of the Company and its
Subsidiaries for the fiscal year ended December 31, 2008 and the related
Consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal year of the Company and its Subsidiaries (i) were
prepared in accordance with generally accepted accounting principles consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (ii) fairly present in all material respects the
financial condition of the Company and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby in accordance
with generally accepted accounting principles consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein.  The unaudited Consolidated financial
statements of the Company and its Subsidiaries dated September 30, 2009,
and the related Consolidated statements of income or operations, and cash flows
for the nine months ended on September 30, 2009 (i) were prepared in
accordance with generally accepted accounting principles consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein, and subject to normal year-end audit adjustments and to the fact that
such financial statements may be abbreviated and may omit footnotes or contain
incomplete footnotes; and (ii) fairly present in all material respects the
financial condition of the Company and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby.  Since December 31, 2008 there has been
no change in the business, results of operations or financial condition of the
Company and its Subsidiaries, taken as a whole, that would reasonably be
expected to have a Material Adverse Effect.


 


(f)            Litigation.  Except as
disclosed in the Company’s filings with the Securities and Exchange Commission
prior to the date hereof, there are no actions, suits or proceedings pending
or, to the knowledge of any Borrower, threatened against the Company or any
Material Subsidiary in which there is a reasonable possibility of an adverse
decision (i) which in any manner draws into question the validity or


 


28

















 


enforceability of
any Loan Document or (ii) that would reasonably be expected to have a
Material Adverse Effect.


 


(g)           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 Lender (including, without limitation, all information
relating to the Company and its Subsidiaries contained in the Loan Documents
but excluding any forecasts and projections of financial information and
results submitted to any Lender) for purposes of or in connection with this
Agreement, or any transaction contemplated herein, is to the knowledge of the
Company 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.


 


(h)           Use of Proceeds; Margin Regulations.  (i)  All
proceeds of Advances shall be used by the respective Borrowers for the working
capital and general corporate purposes of the Company and its Subsidiaries,
including , but not limited to, the payment of cash amounts required to be paid
pursuant to the Settlement Agreement.


 


(ii)           No part of the proceeds of any Advance
will be used by any Borrower or any Subsidiary thereof to purchase or carry any
Margin Stock (other than repurchases by the Company of its own stock) or to
extend credit to others for the purpose of purchasing or carrying any Margin
Stock.  Neither the making of any Advance
nor the use of the proceeds thereof will violate or be inconsistent with the
provisions of Regulations T, U or X of the Board of Governors of the
Federal Reserve System.


 


(i)            Compliance with ERISA.  Each Plan is
in substantial compliance with the material provisions of ERISA and the
Internal Revenue Code; no Reportable Event has occurred with respect to a Plan
which would reasonably be expected to result in a liability in excess of
$30,000,000; 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 $30,000,000,
and no Plan has an accumulated or waived funding deficiency or has applied for
an extension of any amortization period within the meaning of Section 412
of the Internal Revenue 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 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), or 4971 of the
Internal Revenue Code; 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; and no lien imposed under the Internal Revenue 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.  All representations made in this Section 4.01(i) 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.


 


(j)            Subsidiaries. 
Schedule 4.01(j) correctly sets forth, as of the Effective
Date, each Material Subsidiary of the Company.


 


(k)           Environmental Matters.  (i)  Each
of the Company and its Subsidiaries is, to the knowledge of the Senior
Financial Officers, after due inquiry, in compliance with all applicable
Environmental Laws and the requirements of any permits issued under such
Environmental Laws, except for any such noncompliance or failures which would
not reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.


 


(ii)           Neither the Company nor any Subsidiary
has received notice to the effect that its operations are not in compliance
with any of the requirements of any Environmental Law or are the subject of any
governmental investigation evaluating whether any remedial action is needed to


 


29

















 


respond to release
of any toxic or hazardous waste or substance into the environment, except for
notices that relate to noncompliance or remedial action which would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.


 


(l)            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.


 


(m)          Patents, Licenses, Franchises and Formulas. 
Each of the Company and 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,
would reasonably be expected to result in a Material Adverse Effect.


 


(n)           Labor Relations.  Neither the
Company nor any of its Subsidiaries is engaged in any unfair labor practice
that would reasonably be expected to have a Material Adverse Effect.


 


(o)           Solvency.  On the date
hereof, the Company and its Subsidiaries, taken as a whole, are Solvent.  “Solvent” means, with respect to any
Person on a particular date, that on such date (i) the fair market value
of the assets of such Person is greater than the total amount of liabilities,
including, without limitation, Contingent Obligations, of such Person, (ii) it
is then able and expects to be able to pay its debts (including, without
limitation, Contingent Obligations and other commitments) as they mature, (iii) such
Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay such debts and liabilities as
they mature and (iv) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person’s property would constitute an unreasonably small capital.  The amount of Contingent Obligations at any
time shall be computed as the amount that, in the light of all the facts and
circumstances known to the Company at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.


 


ARTICLE V


 


COVENANTS OF THE
COMPANY


 


SECTION 5.01.  Affirmative Covenants.  So long as any Advance shall remain outstanding or any
Lender shall have any Commitment hereunder:


 


(a)           Information Covenants.  The Company
will furnish to the Agent (in sufficient quantity for each Lender):


 


(i)            Quarterly Financial Statements. 
Within 60 days after the close of each 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 for such
quarterly accounting period and for the elapsed portion of the fiscal year
ended with the last day of such quarterly accounting period and the related
Consolidated statement of cash flows for the elapsed portion of the fiscal year
ended with the last day of such quarterly accounting period, accompanied by a
copy of the certification by the chief executive officer or the chief financial
officer of the Company delivered to the Securities and Exchange Commission in connection
with any report filed by the Company on a Form 10-Q (or any successor
form), subject to normal year-end audit adjustments and to the fact that such
financial statements may be abbreviated and may omit footnotes or contain
incomplete footnotes.


 


30
















 


(ii)           Annual Financial Statements. 
Within 120 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 reported on by an
independent registered public accounting firm of recognized national standing.


 


(iii)          Officer’s Certificates. 
At the time of the delivery of the financial statements provided for in
5.01(a)(i) and (ii), a certificate of the chief financial officer of the
Company to the effect that to the best of such officer’s knowledge, no Default
has occurred and is continuing, or if the chief financial officer is unable to
make such certification, 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 5.03, at the end of such fiscal quarter or
year, as the case may be.


 


(iv)          Notice of Default, Put Event or
Litigation.  Promptly, and in any event within five
Business Days after a Senior Financial Officer obtains actual knowledge
thereof, notice of (A) the occurrence of any event which constitutes a
Default or that constitutes or would, with the passage of time, constitute a
Put Event or (B) a development or event which would reasonably be expected
to have a Material Adverse Effect.


 


(v)           Other Reports and Filings. 
Within ten Business Days after the same are filed, copies of all reports
on Forms 10-K, 10-Q, and 8-K and any amendments thereto, or successor forms,
which the Company may file with the Securities and Exchange Commission or any
governmental agencies substituted therefor.


 


(vi)          Accounting Charges. 
Until the Release Date, at the time of the delivery of the financial
statements provided for in 5.01(a)(i) and (ii), a certificate of the chief
financial officer of the Company itemizing Accounting Charges, if any, of
$30,000,000 or more with respect to SAC(US) made or taken after the Effective
Date.


 


(vii)         Other Information. 
From time to time, such other information or documents (financial or
otherwise) as any Lender may reasonably request.


 


(b)           Books, Records and Inspections. 
The Company will, and will cause each of its Subsidiaries to, permit
officers and designated representatives of the Agent or the Required Lenders,
at their own expense, upon five Business Days’ notice, to visit and inspect
(subject to reasonable safety and confidentiality requirements) 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 during normal business hours and intervals and to such reasonable extent
as the Agent or the Required Lenders may request; provided  that such Lender shall have given the
Company’s Chief Financial Officer or Treasurer a reasonable opportunity to
participate therein in person or through a designated representative.


 


(c)           Maintenance of Insurance. 
The Company will, and will cause each of its Material Subsidiaries to
maintain with financially sound and reputable insurance companies (which may
include captive insurers) insurance as is reasonable for the business
activities of the Company and its Subsidiaries.


 


(d)           Corporate Franchises.  The Company
will, and will cause each of its Material Subsidiaries to, do or cause to be
done, all things necessary to preserve and keep in full force and effect its
existence and corporate or comparable franchises necessary or desirable in the
normal conduct of its business; provided, however, that nothing in this subsection (d) shall
prevent (i) any merger or consolidation between or among the Subsidiaries
of the Company, in each case in accordance with


 


31

















 


Section 5.02(d),
or (ii) the dissolution or liquidation of any Subsidiary of the Company or
the withdrawal by the Company or any of its Subsidiaries of its qualification
to do business as a foreign corporation in any jurisdiction, if the Company
determines that there is a valid business purpose for doing so.


 


(e)           Compliance with Statutes, etc. 
The Company will, and will cause each of its Subsidiaries to, comply in
all material respects 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 where the necessity of compliance
therewith is being contested in good faith.


 


(f)            ERISA.  As soon as
possible and, in any event, within 10 days after a Senior Financial Officer of
the Company knows of the occurrence of any of the following, the Company will
deliver to each of the Lenders 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 or a Subsidiary 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 which would reasonably be expected to result in
a Material Adverse Effect has occurred; that a Plan has been or is expected to
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 Internal Revenue 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 $30,000,000 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 is expected to incur
any material liability (including any indirect, contingent or secondary
liability) to or on account of the termination of or withdrawal from a Plan
under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29) or 4971 of the Internal Revenue
Code.


 


(g)           Performance of Obligations. 
The Company will, and will cause each of its Material Subsidiaries to,
perform all of its material monetary obligations, including tax liabilities,
under the terms of each mortgage, indenture, security agreement and other
material agreement by which it is bound, except where the same is being
contested in good faith.


 


(h)           Subsidiary Guarantors.  During the
Subsidiary Guaranty Period and until the Subsidiary Guaranty Release Date, the
Company shall (i) within 30 days after the delivery of the financial
statements required to be delivered pursuant to Section 5.01(a)(i) or
(ii) cause each Domestic Subsidiary which, directly, or indirectly, is, at
the date of such financial statements, a Material Subsidiary and not already a
Subsidiary Guarantor, to become a Subsidiary Guarantor hereunder, (ii) immediately
upon consummation of an Acquisition cause any Acquired Entity which, directly
or indirectly, is both a Domestic Subsidiary and a Material Subsidiary, to
become a Subsidiary Guarantor hereunder, and (iii) immediately upon the
onset of the Subsidiary Guaranty Period, cause each Subsidiary that is both a
Domestic Subsidiary and a Material Subsidiary to become a Subsidiary Guarantor
hereunder, in each case by executing a Subsidiary Guaranty and delivering to
the Agent the documents that would have been required by Section 3.01(d)(iii) and
(iv) if such Subsidiary had entered into a Subsidiary Guaranty on the
Effective Date; provided that Sealed Air Funding Corporation shall not
be required to become a Subsidiary Guarantor for as long as such action is, or
is required to be, restricted by its organizational documents or documents
entered into in connection with a Permitted Receivables Financing.


 


SECTION 5.02.  Negative Covenants.  So long as any Advance shall remain
outstanding or any Lender shall have any Commitment hereunder:


 


32

















 


(a)           Liens.  The Company
will not, and will not permit any of its Material Subsidiaries to, create,
assume or suffer to exist any Lien on any asset now owned or hereafter acquired
by it, except:


 


(i)            Liens existing on the date hereof
securing Indebtedness outstanding on the date hereof or incurred pursuant to Section 5.02(b)(ii),
in any case identified on Schedule 5.02(b)(ii);


 


(ii)           Liens on any asset securing Indebtedness
incurred or assumed after the date hereof for the purpose of financing all or
any part of the cost of purchasing or constructing such asset (including any
Capital Lease); provided that such Lien attaches to such asset
concurrently with or within 180 days after the purchase or completion of
construction thereof;


 


(iii)          any Lien on any asset of any Person
existing at the time such Person becomes a Subsidiary of the Company and not
created in contemplation of such event;


 


(iv)          any Lien on any asset of any Person
existing at the time such Person is merged or consolidated with or into the
Company or any of its Subsidiaries and not created in contemplation of such
event;


 


(v)           any Lien on any asset existing prior to
the acquisition thereof by the Company or any of its Subsidiaries and not
created in contemplation of such acquisition;


 


(vi)          any Lien arising out of the renewal,
replacement or refunding of any Indebtedness secured by any Lien permitted by
any of the foregoing clauses of this Section, provided that such
Indebtedness is not increased other than by an amount equal to any reasonable
financing fees and is not secured by any additional assets;


 


(vii)         Liens created pursuant to any industrial
revenue bond or similar conduit financing to secure the related Indebtedness,
so long as such Lien is limited to the assets of the related project;


 


(viii)        Liens securing any obligations of any
Subsidiary of the Company to a Borrower or a Subsidiary Guarantor;


 


(ix)           Liens on accounts receivable that are the
subject of a Permitted Receivables Financing (and any related property that
would ordinarily be subjected to a lien in connection therewith, such as
proceeds and records);


 


(x)            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;


 


(xi)           Liens 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
mechanic’s 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;


 


(xii)          Permitted Encumbrances;


 


33

















 


(xiii)         utility deposits and pledges or deposits
in connection with worker’s compensation, unemployment insurance and other
social security legislation, or to secure the performance of tenders, statutory
obligations, surety, customs and appeal bonds, bids, leases, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);


 


(xiv)        landlord’s liens under leases to which
the Company or any of its Subsidiaries is a party;


 


(xv)         Liens arising from precautionary UCC
financing statement filings regarding operating leases; and


 


(xvi)        Liens not otherwise permitted by the
foregoing clauses of this Section securing Indebtedness in an aggregate
principal amount outstanding at any time not exceeding the greater of $275,000,000
and 10% of Consolidated Stockholders’ Equity as at the last day of the most
recently ended fiscal quarter of the Company;


 


provided, that until the Release Date, the
Company will not permit SAC(US) to create, assume or suffer to exist any Lien
on any asset now owned or hereafter acquired by it, except as described in
clauses (i), (ii), (iv), (vi), (vii), (ix), (x), (xi), (xii), (xiii), (xiv) and
(xv) above to the extent such Liens secured Indebtedness or other obligations
of SAC(US) and provided, further, that (x) the aggregate
amount of Indebtedness secured by Liens on assets of SAC(US) pursuant to clause
(ii) above shall not exceed $50,000,000 and (y) the aggregate amount
of Indebtedness secured by Liens on assets of SAC(US) pursuant to clause (vii) above
shall not exceed $10,000,000.


 


(b)           Subsidiary Indebtedness.  The Company
will not permit any of its Material Subsidiaries to create, incur, assume or
suffer to exist any Indebtedness, except:


 


(i)            Indebtedness incurred pursuant to this
Agreement or the Subsidiary Guaranty (or any guarantee that such Material
Subsidiary may be required to issue to any other creditor of the Company
concurrently with and as a result of the issuance of the Subsidiary Guaranty,
if any);


 


(ii)           Indebtedness existing as of September 30,
2009 or incurred pursuant to commitments or lines of credit in effect as of September 30,
2009 in any case identified on Schedule 5.02(b)(ii), or any renewal,
replacement or refunding thereof so long as such renewals, replacements or
refundings do not increase the amount of such Indebtedness or such commitments
or lines of credit in the aggregate;


 


(iii)          Indebtedness of any Person existing at
the time such Person becomes a Subsidiary of the Company or is merged or
consolidated into the Company or any of its Subsidiaries and not created in
contemplation of such event, provided that on a pro forma basis
(assuming that such event had been consummated on the first day of the most
recently ended period of four fiscal quarters for which financial statements
have been or are required to have been delivered pursuant to Section 5.01(a)),
the Company would have been in compliance with Section 5.03 as of the last
day of such period, and any renewal, replacement or refunding thereof so long
as such renewal, replacement or refunding does not increase the amount of such
Indebtedness;


 


(iv)          Indebtedness of a Subsidiary Guarantor;


 


(v)           Indebtedness owed to the Company or a
Subsidiary of the Company;


 


(vi)          Indebtedness secured by Liens permitted
pursuant to Section 5.02(a)(ii);


 


(vii)         Indebtedness arising under a Permitted
Receivables Financing; and


 


34

















 


(viii)        Indebtedness not otherwise permitted by
the foregoing clauses of this Section 5.02(b) in an aggregate principal
amount at any time outstanding not exceeding the greater of $275,000,000 and
10% of Consolidated Stockholders’ Equity as at the last day of the most
recently ended fiscal quarter of the Company.


 


provided, that until the Release Date, the Company will not
permit SAC(US) to create, assume or suffer to exist any Indebtedness, except as
described in clauses (i), (ii), (vi) and (vii) above.


 


(c)           Limitations on Acquisitions. 
The Company will not, and will not permit any of its Subsidiaries, to
make any Material Acquisition unless (i) no Event of Default exists or
would exist after giving effect to such Material Acquisition and (ii) concurrently
with or before consummation of such Material Acquisition, the Company delivers
to the Agent a certificate of the Chief Financial Officer of the Company,
certifying that (A) immediately upon and following the consummation of
such Material Acquisition, the Company will be in compliance with
Sections 5.02(a) and (b) and (B) on a pro forma basis
(assuming such Material Acquisition had been consummated on the first day of
the most recently ended period of four fiscal quarters for which financial
statements have been or are required to have been delivered pursuant to Section 5.01(a)),
the Company would have been in compliance with Section 5.03 as of the last
day of such period.


 


(d)           Mergers and Consolidations. 
The Company will not, and will not permit any Material Subsidiary to, be
a party to any merger or consolidation, provided that (other than as may
relate to SAC(US) prior to the Release Date):


 


(i)            any Subsidiary may consolidate with or
merge into the Company or another Subsidiary if in any such merger or
consolidation involving the Company, the Company shall be the surviving or
continuing corporation; and


 


(ii)           any Person may consolidate with or merge
into the Company or any Subsidiary if (A) in any such merger or
consolidation involving the Company, the Company is the surviving or continuing
corporation, (B) in any such merger or consolidation involving a
Subsidiary the corporation resulting from such merger or consolidation shall be
a Subsidiary; and (C) at the time of such merger or consolidation and
after giving effect thereto, (i) if such transaction constitutes a
Material Acquisition, the Company or such Subsidiary has complied with Section 5.02(c) and
(ii) in any event, no Event of Default shall have occurred and be
continuing or would result after giving effect to such transaction.


 


(e)           Asset Sales.  (i) Other
than as may be permitted by clause (ii) below, the Company will not, and
will not permit any Material Subsidiary to, sell, lease, transfer or otherwise
dispose of (by merger or otherwise to a Person who is not a Wholly-Owned
Subsidiary) all or any part of its property if such transaction involves a
substantial portion of the business of the Company and its Subsidiaries, taken
as a whole, provided that, until the Release Date, the Company shall not
(x) sell, lease, transfer or otherwise dispose of any ownership interests
in SAC(US) or (y) permit SAC(US) to sell, lease, transfer or otherwise
dispose of any assets other than inventory in the ordinary course of business
and sales or trade-ins of used equipment for fair value in the ordinary course
of business for like assets or cash.  As
used in this paragraph, a sale, lease, transfer or other disposition of any
property of the Company or a Subsidiary shall be deemed to be a substantial
portion of the business of the Company and its Subsidiaries, taken as a whole,
if the property proposed to be disposed of, together with all other property
previously sold, leased, transferred or disposed of (other than in the ordinary
course of business and other than as part of a Permitted Receivables Financing)
during the current fiscal year of the Company would exceed 10% of the Consolidated
Assets as of the end of the immediately preceding fiscal year.


 


(ii)           The Company will not, and will not permit
any Material Subsidiary to, sell, pledge or otherwise transfer any accounts
receivable as a method of financing unless, after giving


 


35

















 


effect thereto the
sum of (A) the aggregate uncollected balances of accounts receivable so
transferred (“Transferred Receivables”) plus (y) the
aggregate amount of collections on Transferred Receivables theretofore received
by the seller but not yet remitted to the purchaser, in each case at the date
of determination, would not exceed $300,000,000 (a “Permitted Receivables
Financing”).


 


(f)            Business.  The Company
will not, and will not permit any of its Material Subsidiaries to, engage in
any business other than the businesses in which the Company and its
Subsidiaries, taken as a whole, are engaged on the Effective Date, plus
extensions and expansions thereof, and businesses and activities incidental or related
thereto.


 


(g)           Limitation on Asset Transfers to Foreign Subsidiaries. 
Neither the Company nor any Domestic Subsidiary, will convey, sell,
lease, assign, transfer or otherwise dispose of (collectively, a “transfer”)
any of its property, business or assets (including, without limitation
leasehold interests), whether now owned or hereafter acquired, to any Foreign
Subsidiary, except (other than as may relate to SAC(US) prior to the
Release Date) such transfers which, individually or in the aggregate, would not
reasonably be expected to materially and adversely affect the business, results
of operations or financial condition of the Company and its Subsidiaries taken
as a whole.


 


(h)           Amendment of Settlement Agreement. 
Without the prior consent of the Agent acting at the direction of the
Required Lenders, the Company will not (i) cancel or terminate the
Settlement Agreement, or consent to or accept any cancellation or termination
thereof, or (ii) amend or otherwise modify the Settlement Agreement or
give any consent, waiver or approval thereunder, waive any default under or
breach of the Settlement Agreement, agree in any manner to any other amendment,
modification or change of any term or condition of the Settlement Agreement or
take any other action in connection with the Settlement Agreement, in each case
under this clause (ii), to the extent that such amendment, modification,
consent, waiver, approval or action could reasonably be expected to increase
the asbestos-related liability of the Company and its Subsidiaries in excess of
the amounts provided for in the Settlement Agreement or materially reduce the
protection against asbestos-related liabilities afforded to the Company and its
Subsidiaries by the Settlement Agreement.


 


SECTION 5.03.  Financial Covenants.  So long as any Advance shall remain
outstanding or any Lender shall have any Commitment hereunder:


 


(a)           Interest Coverage Ratio.  The Company
will not permit the Interest Coverage Ratio for any Test Period to be less than
3.0 to 1.0.


 


(b)           Leverage Ratio.  The Company
will not permit the Leverage Ratio for any Test Period to be more than 4.00 to
1.0.


 


(c)           Liquidity.  Until the
Release Date, the Company will not permit its Minimum Liquidity to be less than
$250,000,000.


 


ARTICLE VI


 


EVENTS OF DEFAULT


 


SECTION 6.01.  Events of Default.  If any of the following events (“Events of
Default”) shall occur and be continuing:


 


(a)           Payments.  Any Borrower
shall (i) default in the payment when due of any payment of principal of
its Advances or Notes or (ii) default, and such default shall continue
unremedied for at least two Business Days, of any payment of interest on its
Advances or Notes, of any fees or other amounts owing by it hereunder or
thereunder; or


 


36

















 


(b)           Representations, etc.  Any
representation, warranty or statement made by any Borrower herein or in any
other Loan Document or in any certificate delivered pursuant hereto or thereto
shall prove to have been, when made, untrue in any material respect; or


 


(c)           Covenants.  Any Borrower
shall (i) default in the due performance or observance by it of any term,
covenant or agreement contained in Sections 5.01(a)(iv), 5.01(h), 5.02
(other than subsections (f) or (g) thereof) or 5.03 or (ii) default
in the due performance or observance by it of any term, covenant or agreement
(other than those referred to in Sections 6.01(a) or (b) and
clause (i) of this Section 6.01(c) but including
Sections 5.02(f) and (g)) contained in this Agreement and such
default described in this clause (ii) shall continue unremedied for a
period of 30 days after written notice to the Company by the Agent or the
Required Lenders; or


 


(d)           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 or by reason of optional prepayment or
tender by the issuer at its discretion, prior to the stated maturity thereof; provided
that it shall not constitute an Event of Default pursuant to this clause (d) unless
the aggregate amount of all Indebtedness referred to in clauses (i) and
(ii) above exceeds $30,000,000 at any one time; or


 


(e)           Bankruptcy, etc.  The Company or
any of its Material 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 Material
Subsidiaries, and the petition 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 Material Subsidiaries, or the Company or any of its
Material 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 Material Subsidiaries, or there is
commenced against the Company or any of its Material Subsidiaries any such
proceeding which remains undismissed for a period of 60 days, or the
Company or any of its Material 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 Material 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 Material Subsidiaries makes a
general assignment for the benefit of creditors; or any corporate action is
taken by the Company or any of its Material Subsidiaries for the purpose of
effecting any of the foregoing; or


 


(f)            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 Internal
Revenue 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 (other
than 4041(b)), any Plan shall have an Unfunded Current Liability, a material
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 515,
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29),
or 4971 of the Internal Revenue Code; and (b) there shall result from any


 


37

















 


such event or
events the imposition of a lien, the granting of a security interest, or a
liability, involving in any case in excess of $30,000,000; or


 


(g)           Judgments.  One or more
judgments or decrees shall be entered against the Company or any of its
Material Subsidiaries involving in the aggregate for the Company and its
Material Subsidiaries a liability (not paid or fully covered by insurance) of
$30,000,000 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


 


(h)           Guaranty.  Article VII
hereof, the Subsidiary Guaranty, if any, or any provision thereof shall cease
to be in full force or effect, or the Company or any Subsidiary Guarantor or
any Person acting by or on behalf of the Company or any Subsidiary Guarantor
shall deny or disaffirm such Subsidiary Guarantor’s obligations under Article VII hereof or the
Subsidiary Guaranty, as the case may be; or


 


(i)            Change of Control.  A Change of
Control shall occur; or


 


(j)            Accounting Charges.  Accounting
Charges of $50,000,000 or more with respect to SAC(US) shall be made or taken
after the Effective Date and prior to the Release Date;


 


then, and in any such
event, the Agent (i) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrowers, declare the obligation of each
Lender to make Advances (other than Advances to be made by a Lender pursuant to
Section 2.02(b)) to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrowers, declare the Advances, all
interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Advances, all such interest and all
such amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrowers; provided, however, that
in the event of an actual or deemed entry of an order for relief with respect
to any Borrower under the Federal Bankruptcy Code, (A) the obligation of
each Lender to make Advances (other than Advances to be made by a Lender
pursuant to Section 2.02(b)) shall automatically be terminated and (B) the
Advances, all such interest and all such amounts shall automatically become and
be due and payable, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by the Borrowers.


 


ARTICLE VII


 


GUARANTY


 


SECTION 7.01  Guaranty.  (a)  The Company hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all obligations of each other Borrower
now or hereafter existing under or in respect of this Agreement or any Notes
(including, without limitation, any extensions, modifications, substitutions,
amendments or renewals of any or all of the foregoing obligations), whether
direct or indirect, absolute or contingent, and whether for principal,
interest, premiums, fees, indemnities, contract causes of action, costs,
expenses or otherwise (such obligations being the “Guaranteed Obligations”),
and agrees to pay any and all expenses (including, without limitation, fees and
expenses of counsel) incurred by the Agent or any Lender in enforcing any
rights under this Guaranty.  Without
limiting the generality of the foregoing, the Company’s liability shall extend
to all amounts that constitute part of the Guaranteed Obligations and would be
owed by any other Borrower to the Agent or any Lender under or in respect of
this Agreement or any Notes but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such other Borrower.


 


SECTION 7.02.  Guaranty Absolute.  The Company guarantees payment of the
Guaranteed Obligations strictly in accordance with the terms of this Agreement
and any Notes, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or any Lender with respect thereto. 
The obligations of the Company under or in respect of this Guaranty are
independent of the Guaranteed Obligations or any other obligations of any other
Borrower under or in respect of this Agreement


 


38

















 


and any Notes, and a
separate action or actions may be brought and prosecuted against the Company to
enforce this Guaranty, irrespective of whether any action is brought against
any other Borrower or whether any other Borrower is joined in any such action
or actions.  The liability of the Company
under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and the Company hereby irrevocably waives any defenses it may
now have or hereafter acquire in any way relating to, any or all of the
following:


 


(a)           any lack of validity or enforceability of this
Agreement, the Notes or any agreement or instrument relating thereto;


 


(b)           any change in the time, manner or place of payment of,
or in any other term of, all or any of the Guaranteed Obligations or any other
obligations of any other Borrower under or in respect of this Agreement and any
Notes, or any other amendment or waiver of or any consent to departure from
this Agreement or any Note, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit to any
Borrower or any of its Subsidiaries or otherwise;


 


(c)           any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of, or consent to
departure from, any other guaranty, for all or any of the Guaranteed
Obligations;


 


(d)           any manner of application of any collateral, or
proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any other collateral for all or any of the
Guaranteed Obligations or any other obligations of any Borrower under this
Agreement and any Notes or any other assets of any Borrower or any of its
Subsidiaries;


 


(e)           any change, restructuring or termination of the
corporate structure or existence of any Borrower or any of its Subsidiaries;


 


(f)            any failure of the Agent or any Lender to disclose to
the Company any information relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other
Borrower now or hereafter known to the Agent or such Lender (the Company
waiving any duty on the part of the Agent and the Lenders to disclose such
information);


 


(g)           the failure of any other Person to execute or deliver
this any other guaranty or agreement or the release or reduction of liability
of any other guarantor or surety with respect to the Guaranteed Obligations; or


 


(h)           any other circumstance (including, without limitation,
any statute of limitations) or any existence of or reliance on any
representation by the Agent or any Lender that might otherwise constitute a
defense available to, or a discharge of, any Borrower or any other guarantor or
surety.


 


This Guaranty shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise
be returned by the Agent or any Lender or any other Person upon the insolvency,
bankruptcy or reorganization of any other Borrower or otherwise, all as though
such payment had not been made.


 


SECTION 7.03.  Waivers and Acknowledgments.  The Company hereby unconditionally and
irrevocably waives promptness, diligence, notice of acceptance, presentment,
demand for performance, notice of nonperformance, default, acceleration,
protest or dishonor and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that the Agent or any Lender
protect, secure, perfect or insure any Lien or any property subject thereto or
exhaust any right or take any action against any Borrower or any other Person
or any collateral.


 


(b)           The Company hereby unconditionally and irrevocably
waives any right to revoke this Guaranty and acknowledges that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether
existing now or in the future.


 


39

















 


(c)           The Company hereby unconditionally and irrevocably
waives (i) any defense arising by reason of any claim or defense based
upon an election of remedies by the Agent or any Lender that in any manner
impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of the
Company or other rights of the Company to proceed against any of the other
Borrower, any other guarantor or any other Person or any collateral and (ii) any
defense based on any right of set-off or counterclaim against or in respect of
the obligations of the Company hereunder.


 


(d)           The Company hereby unconditionally and irrevocably
waives any duty on the part of the Agent or any Lender to disclose to the Company
any matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other
Borrower or any of its Subsidiaries now or hereafter known by the Agent or such
Lender.


 


(e)           The Company acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by this Agreement and any Notes and that the waivers set forth in Section 7.02
and this Section 7.03 are knowingly made in contemplation of such
benefits.


 


SECTION 7.04.  Subrogation.  The Company hereby unconditionally and
irrevocably agrees until the later of the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty and
the Termination Date not to exercise any rights that it may now have or
hereafter acquire against any other Borrower or any other insider guarantor
that arise from the existence, payment, performance or enforcement of the
Company’s obligations under or in respect of this Guaranty, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification and any right to participate in any claim or remedy of the
Agent or any Lender against any Borrower or any other insider guarantor or any
collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the right
to take or receive from any Borrower or any other insider guarantor, directly
or indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash and the Commitments shall have
expired or been terminated.  If any
amount shall be paid to the Company in violation of the immediately preceding
sentence at any time prior to the later of (a) the payment in full in cash
of the Guaranteed Obligations and all other amounts payable under this Guaranty
and (b) the Termination Date, such amount shall be received and held in
trust for the benefit of the Agent and the Lenders, shall be segregated from
other property and funds of the Company and shall forthwith be paid or
delivered to the Agent in the same form as so received (with any necessary
endorsement or assignment) to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Guaranty, whether matured
or unmatured, in accordance with the terms of this Agreement and any Notes, or
to be held as collateral for any Guaranteed Obligations or other amounts
payable under this Guaranty thereafter arising. 
If (i) the Company shall make payment to the Agent or any Lender of
all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash and (iii) the Termination Date shall have occurred,
the Agent and the Lenders will, at the Company’s request and expense, execute
and deliver to the Company appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation
to the Company of an interest in the Guaranteed Obligations resulting from such
payment made by the Company pursuant to this Guaranty.


 


SECTION 7.05.  Subordination.  The Company hereby subordinates any and all
debts, liabilities and other obligations owed to the Company by each other
Borrower (the “Subordinated Obligations”) to the Guaranteed Obligations
to the extent and in the manner hereinafter set forth in this Section 7.05:


 


(a)           Prohibited Payments, Etc. 
Except during the continuance of a Default (including the commencement
and continuation of any proceeding under any Bankruptcy Law relating to any
other Borrower), the Company may receive regularly scheduled payments from any
other Borrower on account of the Subordinated Obligations.  After the occurrence and during the
continuance of any Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Borrower), however,
unless the Required Lenders otherwise agree, the Company shall not demand,
accept or take any action to collect any payment on account of the Subordinated
Obligations.


 


40
















 


(b)                                 Prior Payment of Guaranteed Obligations. 
In any proceeding under any Bankruptcy Law relating to any other
Borrower, the Company agrees that the Agent and the Lenders shall be entitled
to receive payment in full in cash of all Guaranteed Obligations (including all
interest and expenses accruing after the commencement of a proceeding under any
Bankruptcy Law, whether or not constituting an allowed claim in such proceeding
(“Post Petition Interest”)) before the Company receives payment of any
Subordinated Obligations.


 


(c)                                  Turn-Over.  After the
occurrence and during the continuance of any Default (including the
commencement and continuation of any proceeding under any Bankruptcy Law
relating to any other Borrower), the Company shall, if the Agent so requests,
collect, enforce and receive payments on account of the Subordinated
Obligations as trustee for the Agent and the Lenders and deliver such payments
to the Agent on account of the Guaranteed Obligations (including all Post
Petition Interest), together with any necessary endorsements or other
instruments of transfer, but without reducing or affecting in any manner the
liability of the Company under the other provisions of this Guaranty.


 


(d)                                 Agent Authorization. 
After the occurrence and during the continuance of any Default
(including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Borrower), the Agent is authorized and
empowered (but without any obligation to so do), in its discretion, (i) in
the name of the Company, to collect and enforce, and to submit claims in
respect of, Subordinated Obligations and to apply any amounts received thereon
to the Guaranteed Obligations (including any and all Post Petition Interest),
and (ii) to require the Company (A) to collect and enforce, and to
submit claims in respect of, Subordinated Obligations and (B) to pay any
amounts received on such obligations to the Agent for application to the
Guaranteed Obligations (including any and all Post Petition Interest).


 


SECTION 7.06.  Continuing Guaranty; Assignments.  This Guaranty is a continuing guaranty and
shall (a) remain in full force and effect until the later of (i) the
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty and (ii) the Termination Date, (b) be
binding upon the Company, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Agent and the Lenders and their
successors, transferees and assigns. 
Without limiting the generality of clause (c) of the
immediately preceding sentence, the Agent or any Lender may assign or otherwise
transfer all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or any portion of its Commitments, the Advances
owing to it and any Note or Notes held by it) to any other Person, and such
other Person shall thereupon become vested with all the benefits in respect
thereof granted to the Agent or such Lender herein or otherwise, in each case
as and to the extent provided in Section 9.07.  The Company shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Agent and the Lenders.


 


ARTICLE VIII


 


THE AGENT


 


SECTION 8.01.  Authorization and Action.  Each Lender (in its capacities as a Lender
and Swing Line Bank, as applicable) hereby appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto.  As to any matters not expressly
provided for by this Agreement (including, without limitation, enforcement or
collection of the Notes), the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lenders and all holders of Notes; provided, however,
that the Agent shall not be required to take any action that exposes the Agent
to personal liability or that is contrary to this Agreement or applicable
law.  The Agent agrees to give to each
Lender prompt notice of each notice given to it by the Borrowers pursuant to
the terms of this Agreement.


 


SECTION 8.02.  Agent’s Reliance, Etc.  Neither the Agent nor any of its directors,
officers, agents or employees shall be liable for any action taken or omitted
to be taken by it or them under or in connection with this


 


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Agreement, except for its
or their own gross negligence or willful misconduct.  Without limitation of the generality of the
foregoing, the Agent: (i) may treat the Lender that made any Advance as
the holder of the Debt resulting therefrom until the Agent receives and accepts
an Assignment and Acceptance entered into by such Lender, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 9.07; (ii) may
consult with legal counsel (including counsel for the Company), independent
public accountants and other experts selected by it and shall not be liable for
any action reasonably taken or omitted to be taken in good faith by it in
accordance with the reasonable advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have
any duty to ascertain or to inquire as to the performance, observance or
satisfaction of any of the terms, covenants or conditions of this Agreement on
the part of any Borrower or the existence at any time of any Default or to
inspect the property (including the books and records) of any Borrower; (v) shall
not be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in
respect of this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or parties.


 


SECTION 8.03.  BNPP and Affiliates .  With respect to its Commitments, the Advances
made by it and the Note issued to it, BNPP shall have the same rights and
powers under this Agreement as any other Lender and may exercise the same as
though it were not the Agent; and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated, include BNPP in its individual capacity.  BNPP and its Affiliates may accept deposits
from, lend money to, act as trustee under indentures of, accept investment
banking engagements from and generally engage in any kind of business with, the
Company, any of its Subsidiaries and any Person who may do business with or own
securities of the Company or any such Subsidiary, all as if BNPP were not the
Agent and without any duty to account therefor to the Lenders.  The Agent shall have no duty to disclose any
information obtained or received by it or any of its Affiliates relating to the
Company or any of its Subsidiaries to the extent such information was obtained
or received in any capacity other than as Agent.


 


SECTION 8.04.  Lender Credit Decision.  Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. 
Each Lender also acknowledges that it will, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.


 


SECTION 8.05.  Indemnification.  (a)  Each Lender severally agrees to
indemnify the Agent (to the extent not reimbursed by a Borrower), from and
against such Lender’s Ratable Share (determined at the time indemnification is
sought hereunder) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by the Agent under this Agreement (collectively,
the “Indemnified Costs”), provided that no Lender shall be liable
for any portion of the Indemnified Costs resulting from the Agent’s gross
negligence or willful misconduct. 
Without limitation of the foregoing, each Lender agrees to reimburse the
Agent promptly upon demand for its Ratable Share (determined at the time
indemnification is sought hereunder) of any out-of-pocket expenses (including
counsel fees) incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, to the
extent that the Agent is not reimbursed for such expenses by a Borrower.  In the case of any investigation, litigation
or proceeding giving rise to any Indemnified Costs, this Section 8.05
applies whether any such investigation, litigation or proceeding is brought by
the Agent, any Lender or a third party.


 


(b)                                 The failure of any Lender to reimburse
the Agent promptly upon demand for its Ratable Share of any amount required to
be paid by the Lenders to the Agent as provided herein shall not relieve any
other Lender of its obligation hereunder to reimburse the Agent for its Ratable
Share of such amount, but no Lender shall


 


42

















 


be responsible for the
failure of any other Lender to reimburse the Agent for such other Lender’s
Ratable Share of such amount.  Without
prejudice to the survival of any other agreement of any Lender hereunder, the
agreement and obligations of each Lender contained in this Section 8.05
shall survive the payment in full of principal, interest and all other amounts
payable hereunder and under the Notes. 
The Agent agrees to return to the Lenders their respective Ratable
Shares of any amounts paid under this Section 8.05 that are subsequently
reimbursed by the Company or any Borrower.


 


SECTION 8.06.  Successor Agent.  The Agent may resign at any time by giving
written notice thereof to the Lenders and the Company and may be removed at any
time with or without cause by the Required Lenders.  Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Agent.  If no successor Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent’s giving of notice of resignation or
the Required Lenders’ removal of the retiring Agent, then the retiring Agent
may, on behalf of the Lenders, appoint a successor Agent, which shall be a
commercial bank organized under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$500,000,000.  Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement.  After any retiring Agent’s resignation or
removal hereunder as Agent, the provisions of this Article VIII shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement.


 


SECTION 8.07.  Other Agents.  Each Lender hereby acknowledges that neither
the syndication agent, the documentation agents nor any other Lender designated
as any “Agent” on the signature pages hereof has any liability hereunder
other than in its capacity as a Lender.


 


ARTICLE IX


 


MISCELLANEOUS


 


SECTION 9.01.  Amendments, Etc.  No amendment or waiver of any provision of this
Agreement or any other Loan Document, nor consent to any departure by any Loan
Party therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or
consent shall, unless in writing and signed by each Lender affected thereby, do
any of the following: (a) waive any of the conditions specified in Section 3.01,
(b) increase the Commitments of such Lender, (c) reduce the principal
of, or interest on, the Revolving Credit Advances, the Swing Line Advances or
any fees or other amounts payable hereunder, (d) postpone any date fixed
for any payment of principal of, or interest on, the Revolving Credit Advances
or Swing Line Advances or any fees or other amounts payable hereunder, (e) change
the percentage of the Commitments or of the aggregate unpaid principal amount
of the Revolving Credit Advances, or the number of Lenders, that shall be
required for the Lenders or any of them to take any action hereunder, (f) waive
the requirement of Section 2.04(a)(i) that the reductions of
Commitments be applied ratably, (g) other than pursuant to the terms of
the Subsidiary Guaranty, if any, release the Subsidiary Guarantors (or
otherwise limit such Subsidiary Guarantors’ liability with respect to the
obligations owing to the Agent and the Lenders under the Subsidiary Guaranties)
if such release or limitation is in respect of a material portion of the value
of the Subsidiary Guaranties to the Agent and the Lenders, (h) release the
Company (or otherwise limit the Company’s liability with respect to the
obligations of the Subsidiary Borrowers) from its guaranty set forth in Article VII
hereof or (i) amend this Section 9.01; and provided  further
that (x) no amendment, waiver or consent shall, unless in writing and
signed by the Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Agent under this Agreement or any
Note and (y) no amendment, waiver or consent shall, unless in writing and
signed by the Swing Line Bank in addition to the Lenders required above to take
such action, adversely affect the rights or obligations of the Swing Line Bank
in its capacity as such under this Agreement.


 


SECTION 9.02.  Notices, Etc.  (a)  All notices and other communications
provided for hereunder shall be either (x) in writing (including
telecopier, telegraphic or telex communication) and mailed, telecopied,
telegraphed, telexed or delivered or (y) as and to the extent set forth in
Section 9.02(b) and in the proviso to this Section 9.02(a), if
to any Borrower, at the Company’s address at 200 Riverfront Boulevard, Elmwood
Park, New


 


43

















 


Jersey 07407, Attention: Treasurer,
with a copy to Attention: General Counsel; if to any Initial Lender, at its
Domestic Lending Office specified opposite its name on Schedule I hereto;
if to any other Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender; and if to the
Agent, at its address at 787 Seventh Avenue, 27th Floor, New York, New York 10019,
Attention: Rick Pace; or, as to the Company or the Agent, at such other address
as shall be designated by such party in a written notice to the other parties
and, as to each other party, at such other address as shall be designated by
such party in a written notice to the Company and the Agent, provided
that materials required to be delivered pursuant to Section 5.01(a)(i), (ii) or
(v) shall be delivered to the Agent as specified in Section 9.02(b) or
as otherwise specified to the Company by the Agent.  All such notices and communications shall,
when mailed, telecopied, telegraphed or e-mailed, be effective when deposited
in the mails, telecopied, delivered to the telegraph company or confirmed by
e-mail, respectively, except that notices and communications to the Agent
pursuant to Article II, III or VIII shall not be effective until
received by the Agent.  Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.


 


(b)                                 So long as BNPP or any of its Affiliates
is the Agent, materials required to be delivered pursuant to Section 5.01(a)(i),
(ii) and (v) shall be delivered to the Agent in an electronic medium
in a format acceptable to the Agent and the Lenders by e-mail at
rick.pace@us.bnpparibas.com.  The Company
agrees that the Agent may make such materials, as well as any other written
information, documents, instruments and other material relating to the Company,
any of its Subsidiaries or any other materials or matters relating to this Agreement,
the Notes or any of the transactions contemplated hereby (collectively, the “Communications”)
available to the Lenders by posting such notices on Intralinks or a
substantially similar electronic system (the “Platform”).  The Company acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided “as is” and “as available” and
(iii) neither the Agent nor any of its Affiliates warrants the accuracy,
adequacy or completeness of the Communications or the Platform and each
expressly disclaims liability for errors or omissions in the Communications or
the Platform.  No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by the
Agent or any of its Affiliates in connection with the Platform.


 


(c)                                  Each Lender agrees that notice to it (as
provided in the next sentence) (a “Notice”) specifying that any
Communications have been posted to the Platform shall constitute effective
delivery of such information, documents or other materials to such Lender for
purposes of this Agreement; provided that if requested by any Lender the
Agent shall deliver a copy of the Communications to such Lender by email or
telecopier.  Each Lender agrees (i) to
notify the Agent in writing of such Lender’s e-mail address to which a Notice
may be sent by electronic transmission (including by electronic communication)
on or before the date such Lender becomes a party to this Agreement (and from
time to time thereafter to ensure that the Agent has on record an effective
e-mail address for such Lender) and (ii) that any Notice may be sent to
such e-mail address.


 


SECTION 9.03.  No Waiver; Remedies.  No failure on the part of any Lender or the
Agent to exercise, and no delay in exercising, any right hereunder or under any
Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or
the exercise of any other right.  The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.


 


SECTION 9.04.  Costs and Expenses.  (a)  The Company agrees to pay on demand
all reasonable costs and expenses of the Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all reasonable due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and audit
expenses and (B) the reasonable fees and expenses of counsel for the Agent
with respect thereto and with respect to advising the Agent as to its rights
and responsibilities under this Agreement. 
The Company further agrees to pay on demand all costs and expenses of
the Agent and the Lenders, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and


 


44

















 


expenses of counsel for
the Agent and each Lender in connection with the enforcement of rights under
this Section 9.04(a).


 


(b)                                 The Company agrees to indemnify and hold
harmless the Agent and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an “Indemnified
Party”) from and against any and all claims, liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements (including, without limitation, reasonable fees and expenses of
counsel) incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or by reason of (including,
without limitation, in connection with any investigation, litigation or
proceeding or preparation of a defense in connection therewith) (i) the
Notes, this Agreement, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Advances or (ii) the actual
or alleged presence of Hazardous Materials on any property of any Borrower or
any of its Subsidiaries or any Environmental Claims relating in any way to any
Borrower or any of its Subsidiaries, except to the extent such claim, damage,
loss, liability or expense is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Indemnified Party’s
gross negligence or willful misconduct. 
In the case of an investigation, litigation or other proceeding to which
the indemnity in this Section 9.04(b) applies, such indemnity shall
be effective whether or not such investigation, litigation or proceeding is
brought by a Borrower, its directors, equityholders or creditors or an
Indemnified Party or any other Person, whether or not any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated hereby
are consummated.  Each Borrower also
agrees not to assert any claim for special, indirect, consequential or punitive
damages against the Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys and agents, on any theory
of liability, arising out of or otherwise relating to the Notes, this
Agreement, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Advances.


 


(c)                                  If any payment of principal of, or Conversion
of, any Eurocurrency Rate Advance is made by any Borrower to or for the account
of a Lender (i) other than on the last day of the Interest Period for such
Advance, as a result of a payment or Conversion pursuant to Section 2.07,
2.09 or 2.11, acceleration of the maturity of the Notes pursuant to Section 6.01
or for any other reason, or by an Eligible Assignee to a Lender other than on
the last day of the Interest Period for such Advance upon an assignment of
rights and obligations under this Agreement pursuant to Section 9.07 as a
result of a demand by a Borrower pursuant to Section 9.07(a) or (ii) as
a result of a payment or Conversion pursuant to Section 2.07, 2.09 or
2.11, such Borrower shall, upon demand by such Lender (with a copy of such
demand to the Agent), pay to the Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.  If the amount of
the Euros purchased by any Lender in the case of a Conversion or exchange of
Advances in the case of Section 2.07 or 2.11 exceeds the sum required to
satisfy such Lender’s liability in respect of such Advances, such Lender agrees
to remit to the Company such excess.


 


(d)                                 Without prejudice to the survival of any
other agreement of the Borrowers hereunder, the agreements and obligations of
the Borrowers contained in Sections 2.10, 2.12(f), 2.13, 9.04 and 9.12(c) shall
survive the payment in full of principal, interest and all other amounts payable
hereunder and under the Notes.


 


SECTION 9.05.  Right of Set-off.  Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent
to declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender or
such Affiliate to or for the credit or the account of any Borrower against any
and all of the obligations of such Borrower now or hereafter existing under
this Agreement and the Note held by such Lender, whether or not such Lender
shall have made any demand under this Agreement or such Note and although such
obligations may be unmatured.  Each
Lender agrees promptly to notify the applicable Borrower after any such set-off
and application, provided that the failure to give such notice shall not
affect the validity of such set-off and application.  The rights of each Lender and its Affiliates
under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.


 


45

















 


SECTION 9.06.  Binding Effect.  This Agreement shall become effective (other
than Section 2.01, which shall only become effective upon satisfaction of
the conditions precedent set forth in Section 3.01) when it shall have
been executed by the Company and the Agent and when the Agent shall have been
notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of each Borrower, the
Agent and each Lender and their respective successors and assigns, except that
no Borrower shall have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders.


 


SECTION 9.07.  Assignments and Participations.  (a)  Each Lender may and, if demanded by
a Borrower (following a demand by such Lender pursuant to Section 2.10 or
2.13 or if such Lender is an Affected Lender) upon at least five Business Days’
notice to such Lender and the Agent, will assign to one or more Persons all or
a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Revolving Credit
Advances owing to it and the Note or Notes held by it); provided, however,
that (i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement, (ii) except
in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender’s rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than €5,000,000 or an integral multiple of €1,000,000 in
excess thereof unless Lux SCA and the Agent otherwise agree, (iii) each
such assignment shall be to an Eligible Assignee, (iv) each such
assignment made as a result of a demand by a Borrower pursuant to this Section 9.07(a) shall
be arranged by such Borrower after consultation with the Agent and shall be
either an assignment of all of the rights and obligations of the assigning
Lender under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to
make any such assignment as a result of a demand by a Borrower pursuant to this
Section 9.07(a) unless and until such Lender shall have received one
or more payments from either such Borrower or one or more Eligible Assignees in
an aggregate amount at least equal to the aggregate outstanding principal
amount of the Advances owing to such Lender, together with accrued interest
thereon to the date of payment of such principal amount and all other amounts
payable to such Lender under this Agreement, and (vi) the parties to each
such assignment (other than the Borrower) shall execute and deliver to the
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note subject to such assignment and a processing
and recordation fee of $3,500 payable by the parties to each such assignment, provided,
however, that in the case of each assignment made as a result of a
demand by a Borrower, such recordation fee shall be payable by such Borrower
except that no such recordation fee shall be payable in the case of an
assignment made at the request of a Borrower to an Eligible Assignee that is an
existing Lender.  Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (x) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned
by it pursuant to such Assignment and Acceptance, relinquish its rights (other
than its rights under Sections 2.10, 2.13 and 9.04 to the extent any claim
thereunder relates to an event arising prior to such assignment) and be
released from its obligations under this Agreement other than its obligations
under Section 9.08 and, to the extent any claim thereunder relates to an
event arising prior to such assignment, Section 8.05 (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).


 


(b)                                 By executing and delivering an Assignment
and Acceptance, the Lender assignor thereunder and the assignee thereunder
confirm to and agree with each other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, this
Agreement or any other instrument or document furnished pursuant hereto; (ii) such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrowers or the
performance or observance by the Borrowers of any of their obligations under
this Agreement or any other instrument or document furnished pursuant hereto; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01 and such
other


 


46

















 


documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee confirms that it
is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
and discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender.


 


(c)                                  Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an assignee representing that it
is an Eligible Assignee, together with any Note or Notes subject to such
assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to each other
Borrower.


 


(d)                                 The Agent shall maintain at its address
referred to in Section 9.02 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the “Register”).  The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement.  The Register shall be
available for inspection by the Borrowers or any Lender at any reasonable time
and from time to time upon reasonable prior notice.


 


(e)                                  Each Lender may sell participations to
one or more banks or other entities (other than the Borrowers or any of its
Affiliates) in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Revolving Credit Advances owing to it and any Note or Notes held by it); provided,
however, that (i) such Lender’s obligations under this Agreement
(including, without limitation, its Commitment(s) to the Borrowers
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrowers, the Agent and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement and (v) no
participant under any such participation shall have any right to approve any
amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by the Borrowers therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest
on, the Notes or any fees or other amounts payable hereunder, in each case to
the extent subject to such participation, or postpone any date fixed for any
payment of principal of, or interest on, the Revolving Credit Advances or any
fees or other amounts payable hereunder, in each case to the extent subject to such
participation.


 


(f)                                    Any Lender may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 9.07, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Company or any
Borrower furnished to such Lender by or on behalf of the Company or such
Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information relating to the Company or any
Borrower received by it from such Lender.


 


(g)                                 Notwithstanding any other provision set
forth in this Agreement, any Lender may at any time create a security interest
in all or any portion of its rights under this Agreement (including, without
limitation, the Advances owing to it and any Note or Notes held by it) in favor
of any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System.


 


SECTION 9.08.  Confidentiality.  Neither the Agent nor any Lender may disclose
to any Person any confidential, proprietary or non-public information of the
Company furnished to the Agent or the Lenders by the Company (such information
being referred to collectively herein as the “Confidential Information”),
except that each of the Agent and each of the Lenders may disclose Confidential
Information (i) to its and its affiliates’


 


47

















 


employees, officers,
directors, agents and advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Confidential Information and instructed to keep such Confidential Information
confidential on substantially the same terms as provided herein), (ii) to
the extent requested by any regulatory authority, (iii) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (iv) to any other party to this Agreement, (v) in connection
with the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder, (vi) subject
to an agreement containing provisions substantially the same as those of this Section 9.08,
to any assignee or participant or prospective assignee or participant, (vii) to
the extent such Confidential Information (A) is or becomes generally
available to the public on a non-confidential basis other than as a result of a
breach of this Section 9.08 by the Agent or such Lender, or (B) is or
becomes available to the Agent or such Lender on a nonconfidential basis from a
source other than the Company, (viii) to such Lender’s direct or indirect
contractual counterparties in swap, securitization or derivative transactions
or to legal counsel, accountants and other professional advisors to such
counterparties, in each case, on a confidential basis and (ix) with the
consent of the Company.


 


SECTION 9.09.  Designated Subsidiaries.  (a)  Designation.  (i) The Company may, upon five Business
Days prior notice, at any time, and from time to time, by delivery to the Agent
of a Borrower Designation Agreement duly executed by the Company and the
respective Subsidiary and substantially in the form of Exhibit F hereto,
designate such Subsidiary as a “Designated Subsidiary” for purposes of this
Agreement and such Subsidiary shall thereupon become a “Designated Subsidiary”
for purposes of this Agreement and, as such, shall have all of the rights and
obligations of a Borrower hereunder; provided that if such Subsidiary is
organized under the laws of a jurisdiction other than that of the United States
or a political subdivision thereof, the Company shall give 15 days prior notice
to the Agent.  The Agent shall promptly
notify each Lender of each such designation by the Company and the identity of
the respective Subsidiary.  Following the
giving of any notice pursuant to this Section 9.09, if the designation of
such Designated Subsidiary obligates the Agent or any Lender to comply with “know
your customer” or similar identification procedures in circumstances where the
necessary information is not already available to it, the Company shall,
promptly upon the request of the Agent or any Lender, supply such documentation
and other evidence as is reasonably requested by the Agent or any Lender in
order for the Agent or such Lender to carry out and be satisfied it has
complied with the results of all necessary “know your customer” or other
similar checks under all applicable laws and regulations.(ii) As soon as
practicable and in any event within five Business Days after notice of the
designation under Section 9.09(a)(i) of a Designated Subsidiary that
is organized under the laws of a jurisdiction other than of the United States or
a political subdivision thereof, any Lender that may not legally lend to, or
whose internal policies, consistently applied, preclude lending to, such
Designated Subsidiary (a “Protesting Lender”) shall so notify the
Company and the Agent in writing.  With
respect to each Protesting Lender, the Company shall, effective on or before
the date that such Designated Subsidiary shall have the right to borrow
hereunder, either (A) (i) replace such Protesting Lender in
accordance with Section 9.07 or (ii) notify the Agent and such Protesting
Lender that the Commitments of such Protesting Lender shall be terminated; provided
that (x) the Company shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be withheld, and (y) such
Protesting Lender shall have received payment of an amount equal to the
aggregate outstanding principal amount of its Advances, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the relevant Borrower (in the case of all other amounts), or (B) cancel
its request to designate such Subsidiary as a “Designated Subsidiary”
hereunder.


 


(b)                                 Termination. 
Upon the payment and performance in full of all of the indebtedness,
liabilities and obligations under this Agreement of any Designated Subsidiary
or any other Borrower (other than the Company) then, so long as at the time no
Notice of Revolving Credit Borrowing in respect of such Designated Subsidiary
or Borrower is outstanding, such Person’s status as a “Designated Subsidiary”
or a “Borrower” shall terminate upon notice to such effect from the Agent to
the Lenders (which notice the Agent shall give promptly, and only upon its
receipt of a request therefor from the Company).  Thereafter, the Lenders shall be under no
further obligation to make any Advance hereunder to such Designated Subsidiary
or such Borrower.


 


SECTION 9.10.  Governing Law.  This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of
New York.


 


48

















 


SECTION 9.11.  Execution in Counterparts.  This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Agreement.


 


SECTION 9.12.  Judgment.  (a)  If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in Dollars
into another currency, the parties hereto agree, to the fullest extent that
they may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures the Agent could purchase
Dollars with such other currency at BNPP’s principal office in London at 11:00 A.M.
(London time) on the Business Day preceding that on which final judgment is
given.


 


(b)                                 If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due hereunder in Euros into
Dollars, the parties agree to the fullest extent that they may effectively do
so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures the Agent could purchase Euros with Dollars at BNPP’s
principal office in London at 11:00 A.M. (London time) on the Business Day
preceding that on which final judgment is given.


 


(c)                                  The obligation of the Borrowers in
respect of any sum due from it in any currency (the “Primary Currency”)
to any Lender or the Agent hereunder shall, notwithstanding any judgment in any
other currency, be discharged only to the extent that on the Business Day
following receipt by such Lender or the Agent (as the case may be), of any sum
adjudged to be so due in such other currency, such Lender or the Agent (as the
case may be) may in accordance with normal banking procedures purchase the
applicable Primary Currency with such other currency; if the amount of the
applicable Primary Currency so purchased is less than such sum due to such
Lender or the Agent (as the case may be) in the applicable Primary Currency,
each Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Agent (as the case may be) against
such loss, and if the amount of the applicable Primary Currency so purchased
exceeds such sum due to any Lender or the Agent (as the case may be) in the
applicable Primary Currency, such Lender or the Agent (as the case may be)
agrees to remit to the applicable Borrower such excess.


 


SECTION 9.13.  Jurisdiction, Etc.  (a)  Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or the Notes, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent
permitted by law, in such federal court. 
Each Borrower hereby agrees that service of process in any such action
or proceeding brought in the any such New York State court or in such federal
court may be made upon the Company at its offices specified in Section 9.02(a) and
each Borrower hereby irrevocably appoints the Company its authorized agent to
accept such service of process, and agrees that the failure of the Company to
give any notice of any such service shall not impair or affect the validity of
such service or of any judgment rendered in any action or proceeding based
thereon.  Each Borrower hereby further
irrevocably consents to the service of process in any action or proceeding in
such courts by the mailing thereof by any parties hereto by registered or
certified mail, postage prepaid, to such Borrower at its address specified
pursuant to Section 9.02(a).  Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.  Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.  To the extent that any Borrower has or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, each Borrower hereby irrevocably waives such immunity in
respect of its obligations under this Agreement.


 


(b)                                 Each of the parties hereto irrevocably
and unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement or any other Loan Document in any New York


 


49

















 


State or federal
court.  Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.


 


SECTION 9.14.  Patriot Act.  Each Lender and the Agent (for itself and not
on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the
requirements of the USA Patriot Act (Title III of Pub.L. 107-56 (signed into
law October 26, 2001)) (the “Patriot Act”), it is required to
obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of such Loan Party and other
information that will allow such Lender or the Agent, as applicable, to
identify such Loan Party in accordance with the Patriot Act.  The Company and each other Borrower shall,
and shall cause each of their Subsidiaries to, provide, to the extent
commercially reasonable, such information and take such actions as are
reasonably requested by the Agent or any Lender in order to assist the Agent
and such Lender in maintaining compliance with the Patriot Act.


 


50
















 


SECTION 9.15. 
Waiver of Jury Trial.  Each
of the Borrowers, the Agent and the Lenders hereby irrevocably waives all right
to trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or
the Notes or the actions of the Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.


 


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.


 


	
   

  	
  SEALED AIR CORPORATION

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ David H. Kelsey

  
	
   

  	
   

  	
  Name: David H. Kelsey

  
	
   

  	
   

  	
  Title: Senior Vice
  President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  SEALED AIR LUXEMBOURG
  S.C.A.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Tod S. Christie

  
	
   

  	
   

  	
  Name: Tod S. Christie

  
	
   

  	
   

  	
  Title: Member of the
  Commission

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Aidan Foley

  
	
   

  	
   

  	
  Name: Aidan Foley

  
	
   

  	
   

  	
  Title: Member of the
  Commission

  
	
   

  	
   

  
	
   

  	
  SEALED AIR B.V.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ David H. Kelsey

  
	
   

  	
   

  	
  Name: David H. Kelsey

  
	
   

  	
   

  	
  Title: Authorized Signatory

  
	
   

  	
   

  
	
   

  	
  SEALED AIR PACKAGING,
  SOCIEDAD LIMITADA UNIPERSONAL

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ David H. Kelsey

  
	
   

  	
   

  	
  Name: David H. Kelsey

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
  BNP PARIBAS,

  
	
   

  	
   

  	
  as Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ John D. Emery

  
	
   

  	
   

  	
  Name: John D. Emery

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ John Treadwell, Jr.

  
	
   

  	
   

  	
  Name: John
  Treadwell, Jr.

  
	
   

  	
   

  	
  Title: Vice President

  



 


51

















 


	
   

  	
        Initial
  Lenders

  
	
   

  	
   

  
	
  Commitment

  	
   

  
	
   

  	
   

  
	
   

  	
  Administrative
  Agent

  
	
   

  	
   

  
	
  €17,500,000

  	
   

  	
  BNP PARIBAS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John D.
  Emery

  
	
   

  	
   

  	
   

  	
  Name:  John D. Emery

  
	
   

  	
   

  	
   

  	
  Title:  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ John
  Treadwell, Jr.

  
	
   

  	
   

  	
   

  	
  Name:  John Treadwell, Jr.

  
	
   

  	
   

  	
   

  	
  Title:  Vice President

  
	
   

  	
   

  
	
   

  	
     Syndication
  Agent

  
	
   

  	
   

  
	
  €17,500,000

  	
   

  	
  THE ROYAL BANK
  OF SCOTLAND PLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ L. Peter
  Yetman

  
	
   

  	
   

  	
   

  	
  Name:  L. Peter Yetman

  
	
   

  	
   

  	
   

  	
  Title:  SVP

  
	
   

  	
   

  
	
   

  	
  Documentation
  Agents

  
	
   

  	
   

  
	
  €15,000,000

  	
   

  	
  CITIBANK, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ George E.
  Van

  
	
   

  	
   

  	
   

  	
  Name:  George E. Van

  
	
   

  	
   

  	
   

  	
  Title:  Managing Director

  
	
   

  	
   

  	
   

  
	
  €15,000,000

  	
   

  	
  BANK OF AMERICA,
  N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jeff
  Hallmark

  
	
   

  	
   

  	
   

  	
  Name:  Jeff Hallmark

  
	
   

  	
   

  	
   

  	
  Title:  Senior Vice President

  
	
   

  	
   

  	
   

  
	
  €15,000,000

  	
   

  	
  CALYON NEW YORK
  BRANCH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Rod Hurst

  
	
   

  	
   

  	
   

  	
  Name:  Rod Hurst

  
	
   

  	
   

  	
   

  	
  Title:  Managing Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Yuri
  Muzichenko

  
	
   

  	
   

  	
   

  	
  Name:  Yuri Muzichenko

  
	
   

  	
   

  	
   

  	
  Title:  Director

  



 


52

















 


	
   

  	
  Participants

  
	
   

  	
   

  
	
  €12,000,000

  	
   

  	
  BARCLAYS BANK
  PLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Nicholas A.
  Bell

  
	
   

  	
   

  	
   

  	
  Name:  Nicholas A. Bell

  
	
   

  	
   

  	
   

  	
  Title:  Director

  
	
   

  	
   

  	
   

  
	
  €12,000,000

  	
   

  	
  MORGAN STANLEY BANK
  INTERNATIONAL LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Mathias
  Blumschein

  
	
   

  	
   

  	
   

  	
  Name:  Mathias Blumschein

  
	
   

  	
   

  	
   

  	
  Title:  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
  €12,000,000

  	
   

  	
  HSBC BANK USA,
  N.A.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert H.
  Rogers

  
	
   

  	
   

  	
   

  	
  Name:  Robert H. Rogers

  
	
   

  	
   

  	
   

  	
  Title:  Senior
  Relationship Manager

  
	
   

  	
   

  	
   

  	
   

  
	
  €12,000,000

  	
   

  	
  CREDIT SUISSE
  AG, CAYMAN ISLANDS BRANCH

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Karl Studer

  
	
   

  	
   

  	
   

  	
  Name:  Karl Studer

  
	
   

  	
   

  	
   

  	
  Title:  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jay Chall

  
	
   

  	
   

  	
   

  	
  Name:  Jay Chall

  
	
   

  	
   

  	
   

  	
  Title:  Director

  
	
   

  	
   

  	
   

  	
   

  
	
  €12,000,000

  	
   

  	
  MIZUHO CORPORATE
  BANK, LTD.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert
  Gallagher

  
	
   

  	
   

  	
   

  	
  Name:  Robert Gallagher

  
	
   

  	
   

  	
   

  	
  Title:  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
  €10,000,000

  	
   

  	
  INTESA SANPAOLO
  S.P.A.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Luca Sacchi

  
	
   

  	
   

  	
   

  	
  Name:  Luca Sacchi

  
	
   

  	
   

  	
   

  	
  Title:  VP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Frank Maffei

  
	
   

  	
   

  	
   

  	
  Name:  Frank Maffei

  
	
   

  	
   

  	
   

  	
  Title:  VP, Deputy Credit Manager

  
	
   

  	
   

  	
   

  	
   

  
	
  €150,000,000
     Total of the Commitments

  	
   

  	
   

  



 


53
















 


SCHEDULE I


SEALED AIR CORPORATION


THREE YEAR CREDIT AGREEMENT


APPLICABLE LENDING OFFICES


 


	
  Name of Initial Lender

  	
   

  	
  Domestic
  Lending Office

  	
   

  	
  Eurocurrency
  Lending Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BNP Paribas

  	
   

  	
  BNP Paribas RCC INC

  Newport Tower

  525 Washington Blvd

  Jersey City, NJ 07310

  Attn: Yusef Zia

  T: 201-850-6758

  F: 201-850-4020

  	
   

  	
  BNP Paribas RCC INC

  Newport Tower

  525 Washington Blvd

  Jersey City, NJ 07310

  Attn: Yusef Zia

  T: 201-850-6758

  F: 201-850-4020

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Royal Bank of
  Scotland plc

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Citibank, N.A.

  	
   

  	
  1615 Brett Road/OPS III

  New Castle, DE 19720

  Attn: Kelly Rodgers

  T: 402-894-6028

  F: 212-994-0847

  	
   

  	
  1615 Brett Road/OPS III

  New Castle, DE 19720

  Attn: Kelly Rodgers

  T: 402-894-6028

  F: 212-994-0847

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Calyon New York Branch

  	
   

  	
  1301 Avenue of the
  Americas

  New York, NY 10019

  Attn: Tony Mau

  T: 732-590-7635

  F: 917-849-5439

  	
   

  	
  1301 Avenue of the
  Americas

  New York, NY 10019

  Attn: Tony Mau

  T: 732-590-7635

  F: 917-849-5439

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Barclays Bank PLC

  	
   

  	
  745 7th Avenue

  New York, NY 10019

  Attn: Saidah Rudolpho

  T: 201-499-4318

  F: 212-412-7401

  	
   

  	
  745 7th Avenue

  New York, NY 10019

  Attn: Saidah Rudolpho

  T: 201-499-4318

  F: 212-412-7401

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Morgan Stanley
  International Bank Limited

  	
   

  	
  25 Cabot Square

  Canary Wharf

  London E14 4QA England

  Attn: Dmitriy Barskiy

  T: 443-627-4355

  F: 718-233-0967

  	
   

  	
  25 Cabot Square

  Canary Wharf

  London E14 4QA England

  Attn: Dmitriy Barskiy

  T: 443-627-4355

  F: 718-233-0967

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HSBC Bank USA, N.A.

  	
   

  	
  1 HSBC Center 26th Floor

  Buffalo, NY 14203

  Attn: Daniel P.G. Patric

  T: 716-841-6216

  F: 917-229-0973

  	
   

  	
  1 HSBC Center 26th Floor

  Buffalo, NY 14203

  Attn: Daniel P.G. Patric

  T: 716-841-6216

  F: 917-229-0973

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Credit Suisse AG,
  Cayman Islands Branch

  	
   

  	
  Eleven Madison Avenue

  New York, NY 10010

  Attn: Karl Struder

  T: 212-325-9163

  F: 212-743-1894

  	
   

  	
  Eleven Madison Avenue

  New York, NY 10010

  Attn: Karl Struder

  T: 212-325-9163

  F: 212-743-1894

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Mizuho Corporate Bank,
  Ltd.

  	
   

  	
  1800 Plaza Ten

  Harborside Financial Ctr.

  Jersey City, NJ 07311

  Attn: Hemangini Divatia

  T: 201-626-9142

  F: 201-626-9941

  	
   

  	
  1800 Plaza Ten

  Harborside Financial Ctr.

  Jersey City, NJ 07311

  Attn: Hemangini Divatia

  T: 201-626-9142

  F: 201-626-9941

  



 

















 


	
  Intesa Sanpaolo S.p.A.

  	
   

  	
  1 William Street

  New York NY 10004

  Attn: Alex Papace

  T: 212-607-3531

  F: 212-607-3897

  	
   

  	
  1 William Street

  New York NY 10004

  Attn: Alex Papace

  T: 212-607-3531

  F: 212-607-3897

  



 


2

















 


SCHEDULE 4.01(j)


 


Material Subsidiaries


 


Domestic Material
Subsidiaries:


 


Sealed Air Corporation
(US)


 


Cryovac, Inc


 


Sealed Air Funding
Corporation


 


Foreign Material
Subsidiaries:


 


	
  Legal
  Name

  	
   

  	
  Country of

  Incorporation

  
	
  Ciras C.V.

  	
   

  	
  Netherlands

  
	
  Cryovac Australia Pty.
  Ltd.

  	
   

  	
  Australia

  
	
  Cryovac Brasil Ltda.

  	
   

  	
  Brazil

  
	
  Cryovac International
  Holdings Corporation

  	
   

  	
  USA (DE)

  
	
  Sealed Air (Canada)
  Co./CIE

  	
   

  	
  Canada

  
	
  Sealed Air (Canada)
  Holdings B.V.

  	
   

  	
  Netherlands

  
	
  Sealed Air (New
  Zealand)

  	
   

  	
  New Zealand

  
	
  Sealed Air Australia
  (Holdings) Pty. Limited

  	
   

  	
  Australia

  
	
  Sealed Air B.V.

  	
   

  	
  Netherlands

  
	
  Sealed Air de Mexico S.
  de R. L. de C.V.

  	
   

  	
  Mexico

  
	
  Sealed Air Finance II,
  LLC (Sucursal Mexico)

  	
   

  	
  USA (DE)

  
	
  Sealed Air Finance
  Ireland

  	
   

  	
  Ireland

  
	
  Sealed Air Finance LLC

  	
   

  	
  USA (DE)

  
	
  Sealed Air GmbH

  	
   

  	
  Germany

  
	
  Sealed Air Holdings
  (New Zealand) I, LLC

  	
   

  	
  USA (DE)

  
	
  Sealed Air Limited

  	
   

  	
  Ireland

  
	
  Sealed Air Limited

  	
   

  	
  UK

  
	
  Sealed Air Luxembourg
  (I) S.a.r.l.

  	
   

  	
  Luxembourg

  
	
  Sealed Air Luxembourg
  (II) S.a.r.l.

  	
   

  	
  Luxembourg

  
	
  Sealed Air Luxembourg
  S.a.r.l.

  	
   

  	
  Luxembourg

  
	
  Sealed Air Luxembourg
  S.C.A.

  	
   

  	
  Luxembourg

  
	
  Sealed Air Netherlands
  (Holdings) B.V.

  	
   

  	
  Netherlands

  
	
  Sealed Air Netherlands
  (Holdings) I B.V.

  	
   

  	
  Netherlands

  
	
  Sealed Air Netherlands
  (Holdings) II B.V.

  	
   

  	
  Germany

  
	
  Sealed Air Netherlands
  (Holdings) II B.V. — Deutsche Zweigniederlassung

  	
   

  	
  Germany

  
	
  Sealed Air Packaging
  S.L.

  	
   

  	
  Spain

  
	
  Sealed Air S.A.S.

  	
   

  	
  France

  
	
  Sealed Air S.L.

  	
   

  	
  Spain

  
	
  Sealed Air S.R.L.

  	
   

  	
  Italy

  
	
  Sealed Air Spain
  (Holdings) II S.L.

  	
   

  	
  Spain

  
	
  Sealed Air Spain
  (Holdings) S.L.

  	
   

  	
  Spain

  



 


3
















SCHEDULE
5.02(b)(ii)


 


EXISTING LIENS AND
MATERIAL SUBSIDIARY INDEBTEDNESS


 


Sealed Air
Corporation


Indebtedness of
Material Subsidiaries & Liens securing


Indebtedness of
Sealed Air Corporation and Material Subsidiaries


(000’s)


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  AVAILABLE

  	
   

  	
  TOTAL

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  CURRENCY

  	
   

  	
  LINES OF

  	
   

  	
  LONG-TERM

  	
   

  	
  SUPPORTED

  	
   

  	
  LOCATION

  	
   

  
	
  DEBTOR

  	
   

  	
  TYPE OF
  CREDIT

  	
   

  	
  UNIT

  	
   

  	
  CREDIT

  	
   

  	
  DEBT

  	
   

  	
  BY
  LIENS?

  	
   

  	
  OF LIEN

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed Air Corporation,
  Sealed Air Corporation (US), Cryovac, Inc. and/or Sealed Air Luxembourg
  S.C.A.

  	
   

  	
  Revolving Credit
  Facility

  	
   

  	
  USD

  	
   

  	
  500,000

  	
   

  	
  —

  	
   

  	
  No

  	
   

  	
   

  	
  (a)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cryovac, Inc.

  	
   

  	
  Lease

  	
   

  	
  USD

  	
   

  	
  —

  	
   

  	
  9,936

  	
   

  	
  Yes

  	
   

  	
  Rogers, AR

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed Air Netherlands (Holdings)
  II B.V. — Deutsche Zweigniederlassung

  	
   

  	
  Lines of Credit

  	
   

  	
  EUR

  	
   

  	
  800

  	
   

  	
  —

  	
   

  	
  No

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed
  Air B.V.

  	
   

  	
  Line of Credit

  	
   

  	
  EUR

  	
   

  	
  1,000

  	
   

  	
  —

  	
   

  	
  No

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed
  Air Limited (UK entity)

  	
   

  	
  Line of Credit

  	
   

  	
  GBP

  	
   

  	
  200

  	
   

  	
  —

  	
   

  	
  No

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lease

  	
   

  	
  GBP

  	
   

  	
   

  	
   

  	
  26

  	
   

  	
  Yes

  	
   

  	
  England

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed
  Air S.A.S.

  	
   

  	
  Lease

  	
   

  	
  EUR

  	
   

  	
  —

  	
   

  	
  744

  	
   

  	
  Yes

  	
   

  	
  France

  	
   

  
	
   

  	
   

  	
  Lines of Credit

  	
   

  	
  EUR

  	
   

  	
  6,500

  	
   

  	
  —

  	
   

  	
  No

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed
  Air GmbH

  	
   

  	
  Lines of Credit

  	
   

  	
  EUR

  	
   

  	
  2,100

  	
   

  	
  —

  	
   

  	
  No

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed
  Air S.R.L.

  	
   

  	
  Line of Credit

  	
   

  	
  EUR

  	
   

  	
  6,700

  	
   

  	
  —

  	
   

  	
  No

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lease

  	
   

  	
  EUR

  	
   

  	
  —

  	
   

  	
  195

  	
   

  	
  Yes

  	
   

  	
  Italy

  	
   

  



 

















 


	
  Sealed
  Air Luxembourg S.C.A.

  	
   

  	
  Line of Credit

  	
   

  	
  USD

  	
   

  	
  40,000

  	
   

  	
  —

  	
   

  	
  No

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cryovac Australia
  Pty.Ltd. & Sealed Air (New Zealand)

  	
   

  	
  Dual-Currency Revolving
  Credit Facility

  	
   

  	
  AUD

  	
   

  	
  170,000

  	
   

  	
  —

  	
   

  	
  No

  	
   

  	
   

  	
  (b), (c)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cryovac
  Australia Pty. Ltd.

  	
   

  	
  Line of Credit

  	
   

  	
  AUD

  	
   

  	
  5,500

  	
   

  	
  —

  	
   

  	
  No

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed
  Air (New Zealand)

  	
   

  	
  Lines of Credit

  	
   

  	
  NZD

  	
   

  	
  8,583

  	
   

  	
  —

  	
   

  	
  No

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cryovac
  Brasil Ltda.

  	
   

  	
  Lines of Credit

  	
   

  	
  BRL

  	
   

  	
  56,000

  	
   

  	
  —

  	
   

  	
  No

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed
  Air Corporation

  	
   

  	
  5.625% Senior Notes due
  July 2013

  	
   

  	
  USD

  	
   

  	
  —

  	
   

  	
  400,000

  	
   

  	
  No

  	
   

  	
   

  	
  b), (d)

  
	
   

  	
   

  	
  12% Senior Notes due
  February 2014

  	
   

  	
  USD

  	
   

  	
   

  	
   

  	
  300,000

  	
   

  	
  No

  	
   

  	
   

  	
  (b), (d)

  
	
   

  	
   

  	
  7.875% Senior Notes due
  June 2017

  	
   

  	
  USD

  	
   

  	
   

  	
   

  	
  400,000

  	
   

  	
  No

  	
   

  	
   

  	
  (b), (d)

  
	
   

  	
   

  	
  6.875% Senior Notes due
  July 2033

  	
   

  	
  USD

  	
   

  	
  —

  	
   

  	
  450,000

  	
   

  	
  No

  	
   

  	
   

  	
  (b), (d)

  



 






(a) 
Obligations may be required to be guaranteed by Domestic Subsidiaries under
provisions that are substantially the same as those in this Agreement.  No such guarantees were required as of September 30,
2009.


(b) 
Obligations may be required to be guaranteed by each of the Domestic
Subsidiaries that guarantees obligations under this Agreement, but only for so
long as such subsidiaries are Subsidiary Guarantors under this Agreement.  No such guarantees were required as of September 30,
2009.


(c)  Amounts
available under the Dual-Currency Revolving Credit Facility Agreement dated as
of March 12, 2002, amended and restated as of March 11, 2005  among Cryovac Australia Pty Ltd, Sealed
Air (New Zealand), Citisecurities Limited, Salomon Smith Barney Australia
Securities Pty Limited, Westpac Banking Corporation and the financiers parties
thereto.  Total facility amount is 170
million Australian dollars.


(d)  Primary
obligor is the Company.


 


2
















 


EXHIBIT A - FORM OF


PROMISSORY NOTE


 


	
  €
                             

  	
   

  	
  Dated:
                                ,
  20

  



 


FOR VALUE RECEIVED, the
undersigned, [NAME OF BORROWER], a
                                                  
corporation (the “Borrower”), HEREBY PROMISES TO PAY to the order of
                                                  
(the “Lender”) for the account of its Applicable Lending Office on the
Termination Date (each as defined in the Credit Agreement referred to below)
the principal sum of €[amount of the Lender’s Commitment in figures] or, if
less, the aggregate principal amount of the Revolving Credit Advances and Swing
Line Advances made by the Lender to the Borrower pursuant to the Three Year
Credit Agreement dated as of November 19, 2009 among the Borrower, [Sealed
Air Corporation], the other borrowers parties thereto, the Lender and certain
other lenders parties thereto, and BNP PARIBAS, as Agent for the Lender and
such other lenders (as amended or modified from time to time, the “Credit
Agreement”; the terms defined therein being used herein as therein defined)
outstanding on the Termination Date.


 


The Borrower promises to
pay interest on the unpaid principal amount of each Revolving Credit Advance
and Swing Line Advance from the date of such Advance until such principal
amount is paid in full, at such interest rates, and payable at such times, as
are specified in the Credit Agreement.


 


Both principal and
interest in respect of each Revolving Credit Advance (i) in Dollars are
payable in lawful money of the United States of America to the Agent at its
account maintained at 787 Seventh Avenue, 27th Floor, New York, New York 10019,
in same day funds and (ii) in Euros are payable in such currency to the
Agent at its account maintained at 787 Seventh Avenue, 27th Floor, New York,
New York 10019, in same day funds.  Both
principal and interest of each Swing Line Advance are payable in lawful money
of the United States of America to the Agent at its account maintained at
Seventh Avenue, 27th Floor, New York, New York 10019.  Each Revolving Credit Advance and each Swing
Line Advance owing to the Lender by the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note.


 


This Promissory Note is
one of the Notes referred to in, and is entitled to the benefits of, the Credit
Agreement.  The Credit Agreement, among
other things, (i) provides for the making of Revolving Credit Advances and
Swing Line Advances by the Lender to the Borrower from time to time in an
aggregate amount not to exceed at any time outstanding the Euro amount first
above mentioned, the indebtedness of the Borrower resulting from each such
Revolving Credit Advance and each such Swing Line Advance being evidenced by
this Promissory Note, (ii) contains provisions for determining the Euro
Equivalent of Revolving Credit Advances denominated in Dollars and (iii) contains
provisions for acceleration of the maturity hereof upon the happening of
certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.


 


	
   

  	
  [NAME OF BORROWER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Title:

  



 

















 


ADVANCES AND
PAYMENTS OF PRINCIPAL


 


	
  Date

  	
   

  	
  Amount of

  Advance

  	
   

  	
  Amount of

  Principal Paid

  or Prepaid

  	
   

  	
  Unpaid Principal

  Balance

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


2

















 


EXHIBIT B - FORM OF NOTICE OF


REVOLVING CREDIT BORROWING


 


BNP PARIBAS, as Agent


for the Lenders parties


to the Credit Agreement


referred to below


[address]


 


[Date]


 


Attention: Bank Loan
Syndications Department


 


Ladies and Gentlemen:


 


The undersigned, [Name of
Borrower], refers to the Three Year Credit Agreement, dated as of November 19,
2009 (as amended or modified from time to time, the “Credit Agreement”,
the terms defined therein being used herein as therein defined), among the
undersigned, [Sealed Air Corporation], certain other borrowers parties thereto,
certain Lenders parties thereto and BNP PARIBAS, as Agent for said Lenders, and
hereby gives you notice, irrevocably, pursuant to Section 2.02 of the
Credit Agreement that the undersigned hereby requests a Revolving Credit
Borrowing under the Credit Agreement, and in that connection sets forth below
the information relating to such Revolving Credit Borrowing (the “Proposed
Revolving Credit Borrowing”) as required by Section 2.02(a) of
the Credit Agreement:


 


(i)                                     The Business Day of the Proposed
Revolving Credit Borrowing is
                              ,
20    .


 


(ii)                                  The Type of Advances comprising the
Proposed Revolving Credit Borrowing is [Base Rate Advances] [Eurocurrency Rate
Advances].


 


(iii)                               The aggregate amount of the Proposed
Revolving Credit Borrowing is
[€                    ]
[$                    ].


 


[(iv)                          The initial Interest Period for each
Eurocurrency Rate Advance made as part of the Proposed Revolving Credit
Borrowing is            month[s].]


 


The undersigned hereby
certifies that the following statements are true on the date hereof, and will
be true on the date of the Proposed Revolving Credit Borrowing:


 


(A)                              the representations and warranties
contained in Section 4.01 of the Credit Agreement (except the
representation set forth in the last sentence of subsection (e) thereof)
are correct, before and after giving effect to the Proposed Revolving Credit
Borrowing and to the application of the proceeds therefrom, as though made on
and as of such date, except to the extent such representations and warranties
expressly relate to any earlier date, in which case such representations and
warranties shall be true and correct as of such earlier date; and


 

















 


(B)                                no event has occurred and is continuing,
or would result from such Proposed Revolving Credit Borrowing or from the
application of the proceeds therefrom, that constitutes a Default or that
constitutes or would, with the passage of time, constitute a Put Event.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [NAME OF BORROWER]

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Title:

  



 


2

















 


EXHIBIT C - FORM OF


ASSIGNMENT AND ACCEPTANCE


 


Reference is made to the
Three Year Credit Agreement dated as of November 19, 2009 (as amended or
modified from time to time, the “Credit Agreement”) among Sealed Air
Corporation, a Delaware corporation (the “Company”), certain other
Borrowers (as defined in the Credit Agreement), the Lenders (as defined in the
Credit Agreement) and BNP PARIBAS, as agent for the Lenders (the “Agent”).  Terms defined in the Credit Agreement are
used herein with the same meaning.


 


The “Assignor” and the “Assignee”
referred to on Schedule 1 hereto agree as follows:


 


1.                                       The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor’s rights and obligations under the Credit
Agreement as of the date hereof equal to the percentage interest specified on
Schedule 1 hereto of all outstanding rights and obligations under the Credit
Agreement held by the Assignor on the date hereof.  After giving effect to such sale and
assignment, the Assignee’s Commitment and the amount of the Revolving Credit
Advances owing to the Assignee will be as set forth on Schedule 1 hereto.


 


2.                                       The Assignor (i) represents and
warrants that it is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and clear of any
adverse claim; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrowers or the performance or observance by the
Borrowers of any of their obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iv) attaches the
Note[, if any,] held by the Assignor [and requests that the Agent exchange such
Note for a new Note payable to the order of [the Assignee in an amount equal to
the Commitment assumed by the Assignee pursuant hereto or new Notes payable to
the order of the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto and] the Assignor in an amount equal to the Commitment
retained by the Assignor under the Credit Agreement[, respectively,] as
specified on Schedule 1 hereto].


 


3.                                       The Assignee (i) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 4.01 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the Assignor
or any other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iii) confirms
that it is an Eligible Assignee; (iv) appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement as are delegated to the Agent by the
terms thereof, together with such powers and discretion as are reasonably
incidental thereto; (v) agrees that it will perform in accordance with
their terms all of the obligations that by the terms of the Credit Agreement
are required to be performed by it as a Lender; and (vi) attaches any U.S.
Internal Revenue Service forms required under Section 2.13 of the Credit
Agreement.


 


4.                                       Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for acceptance and
recording by the Agent.  The effective
date for this Assignment and Acceptance (the “Effective Date”) shall be
the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.


 


5.                                       Upon such acceptance and recording by the
Agent, as of the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,


 

















 


have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights (other
than its rights under Sections 2.10, 2.13 and 9.04 of the Credit Agreement to
the extent any claim thereunder relates to an event arising prior to such
assignment) and be released from its obligations under the Credit Agreement
other than its obligations under Sections 8.05 of the Credit Agreement to the
extent any claim thereunder relates to an event arising prior to such assignment
and Section 9.08 of the Credit Agreement).


 


6.                                       Upon such acceptance and recording by the
Agent, from and after the Effective Date, the Agent shall make all payments
under the Credit Agreement and the Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest and
facility fees with respect thereto) to the Assignee.  The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement and the Notes
for periods prior to the Effective Date directly between themselves.


 


7.                                       This Assignment and Acceptance shall be
governed by, and construed in accordance with, the laws of the State of
New York.


 


8.                                       This Assignment and Acceptance may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.  Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.


 


IN WITNESS WHEREOF, the
Assignor and the Assignee have caused Schedule 1 to this Assignment and
Acceptance to be executed by their officers thereunto duly authorized as of the
date specified thereon.


 


2

















 


Schedule 1


to


Assignment and
Acceptance


 


	
  Percentage
  interest assigned: 

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Assignee’s
  Commitment:

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Aggregate
  outstanding principal amount of Revolving Credit Advances assigned:

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Principal
  amount of Note payable to Assignee:

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Principal
  amount of Note payable to Assignor:

  	
   

  	
  $

  	
   

  



 


Effective Date*:             
, 20   


 


 


	
   

  	
  [NAME OF ASSIGNOR], as
  Assignor

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Dated:
                                ,
  20  

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNEE], as
  Assignee

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Dated:
                                ,
  20  

  
	
   

  	
   

  
	
   

  	
  Domestic Lending
  Office:

  
	
   

  	
  [Address]

  
	
   

  	
   

  
	
   

  	
  Eurocurrency Lending
  Office:

  
	
   

  	
  [Address]

  



 






*                                         This date should be no earlier than five
Business Days after the delivery of this Assignment and Acceptance to the
Agent.


 


3

















 


	
  Accepted [and
  Approved]** this

  	
   

  
	
               day
  of
                                ,
  20

  	
   

  
	
   

  	
   

  
	
  BNP PARIBAS, as Agent

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [Approved this
                      
  day

  	
   

  
	
  of
                                ,
  20

  	
   

  
	
   

  	
   

  
	
  SEALED AIR CORPORATION

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
  ]*

  
	
   

  	
  Title:

  	
   

  



 






**                                  Required if the Assignee is an Eligible
Assignee solely by reason of clause (iii) of the definition of “Eligible
Assignee”.


 


*                                         Required if the Assignee is an Eligible
Assignee solely by reason of clause (iii) of the definition of “Eligible
Assignee”.


 


4
















 


EXHIBIT D - FORM OF


SUBSIDIARY GUARANTY


 


SUBSIDIARY GUARANTY


 


Dated as of
                    ,
2009


 


From


 


THE GUARANTORS
NAMED HEREIN


 


and


 


THE ADDITIONAL
GUARANTORS REFERRED TO HEREIN


 


as Guarantors


 


in favor of


 


THE GUARANTEED
PARTIES REFERRED TO HEREIN


 

















 


T  A  B
L  E  O  F  C  O  N  T  E  N
T  S


 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 1.  
  Guaranty; Limitation of Liability

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 2.  
  Guaranty Absolute

  	
   

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 3.  
  Waivers and Acknowledgments

  	
   

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 4.  
  Subrogation

  	
   

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 5.  
  Payments Free and Clear of Taxes, Etc.

  	
   

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 6.  
  Representations and Warranties

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  Section 7.  
  Covenants

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  Section 8.  
  Amendments, Guaranty Supplements, Etc.

  	
   

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 9.  
  Notices, Etc.

  	
   

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 10.  
  No Waiver; Remedies

  	
   

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 11.  
  Right of Set-off

  	
   

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 12.  
  Indemnification

  	
   

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 13.  
  Subordination

  	
   

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 14.  
  Continuing Guaranty; Assignments under the Credit Agreement

  	
   

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 15.  
  Execution in Counterparts

  	
   

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 16.  
  Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.

  	
   

  	
  9

  
	
   

  	
   

  	
   

  
	
  Exhibit A -
  Guaranty Supplement

  	
   

  	
   

  



 

















 


SUBSIDIARY GUARANTY


 


SUBSIDIARY GUARANTY dated
as of
                    ,
20     made by the Persons listed on the signature pages hereof
under the caption “Subsidiary Guarantors” and the Additional Guarantors (as
defined in Section 8(b)) (such Persons so listed and the Additional
Guarantors being, collectively, the “Guarantors” and, individually, each
a “Guarantor”) in favor of the Agent and the Lenders (as defined in the
Credit Agreement referred to below).


 


PRELIMINARY
STATEMENT.  Sealed Air Corporation, a
Delaware corporation (the “Company”), and certain other Borrowers (as
defined in the Credit Agreement referred to below) are parties to a Credit Agreement
dated as of November     , 2009 (as amended, amended
and restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”; the capitalized terms defined therein and not otherwise defined
herein being used herein as therein defined) with certain Lenders party
thereto, and BNP Paribas, as Agent for such Lenders (the Agent and the Lenders
are, collectively, the “Guaranteed Parties”).  Each Guarantor may receive, directly or
indirectly, a portion of the proceeds of the Advances under the Credit
Agreement and will derive substantial direct and indirect benefits from the
transactions contemplated by the Credit Agreement.  The Subsidiary Guaranty Period is in effect,
and it is therefore a condition precedent to the continued making of Advances
by the Lenders under the Credit Agreement from time to time that each Guarantor
shall have executed and delivered this Guaranty.


 


NOW, THEREFORE, in
consideration of the premises and in accordance with Section 5.01(h) of
the Credit Agreement, each Guarantor, jointly and severally with each other
Guarantor, hereby agrees as follows:


 


Guaranty;
Limitation of Liability.  a)  Each Guarantor hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all obligations of each other Loan Party
now or hereafter existing under or in respect of the Loan Documents (including,
without limitation, any extensions, modifications, substitutions, amendments or
renewals of any or all of the foregoing obligations), whether direct or
indirect, absolute or contingent, and whether for principal, interest,
premiums, fees, indemnities, contract causes of action, costs, expenses or
otherwise (such obligations being the “Guaranteed Obligations”), and
agrees to pay any and all expenses (including, without limitation, fees and
expenses of counsel) incurred by the Agent or any other Guaranteed Party in
enforcing any rights under this Guaranty or any other Loan Document.  Without limiting the generality of the
foregoing, each Guarantor’s liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Loan Party to any Guaranteed Party under or in respect of the Loan Documents
but for the fact that they are unenforceable or not allowable due to the
existence of a bankruptcy, reorganization or similar proceeding involving such
other Loan Party.


 


Each
Guarantor, and by its acceptance of this Guaranty, the Agent and each other
Guaranteed Party, hereby confirms that it is the intention of all such Persons
that this Guaranty and the obligations of each Guarantor hereunder not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law
(as hereinafter defined), the Uniform Fraudulent


 

















 


Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the
extent applicable to this Guaranty and the obligations of each Guarantor
hereunder.  To effectuate the foregoing
intention, the Agent, the other Guaranteed Parties and the Guarantors hereby
irrevocably agree that the obligations of each Guarantor under this Guaranty at
any time shall be limited to the maximum amount as will result in the obligations
of such Guarantor under this Guaranty not constituting a fraudulent transfer or
conveyance.  For purposes hereof, “Bankruptcy
Law” means any proceeding of the type referred to in Section 6.01(e) of
the Credit Agreement or Title 11, U.S. Code, or any similar foreign, federal or
state law for the relief of debtors.


 


Each
Guarantor hereby unconditionally and irrevocably agrees that in the event any
payment shall be required to be made to any Guaranteed Party under this
Guaranty or any other guaranty, such Guarantor will contribute, to the maximum
extent permitted by law, such amounts to each other Guarantor and each other
guarantor so as to maximize the aggregate amount paid to the Guaranteed Parties
under or in respect of the Loan Documents.


 


Guaranty
Absolute.  Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Guaranteed Party with respect thereto. 
The obligations of each Guarantor under or in respect of this Guaranty
are independent of the Guaranteed Obligations or any other obligations of any
other Loan Party under or in respect of the Loan Documents, and a separate
action or actions may be brought and prosecuted against each Guarantor to
enforce this Guaranty, irrespective of whether any action is brought against
the Company or any other Loan Party or whether the Company or any other Loan
Party is joined in any such action or actions. 
The liability of each Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives any defenses it may now have or hereafter acquire in
any way relating to, any or all of the following:


 


any
lack of validity or enforceability of any Loan Document or any agreement or
instrument relating thereto;


 


any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Guaranteed Obligations or any other obligations of any other Loan
Party under or in respect of the Loan Documents, or any other amendment or
waiver of or any consent to departure from any Loan Document, including,
without limitation, any increase in the Guaranteed Obligations resulting from
the extension of additional credit to any Loan Party or any of its Subsidiaries
or otherwise;


 


any
taking, exchange, release or non-perfection of any collateral, or any taking,
release or amendment or waiver of, or consent to departure from, any other
guaranty, for all or any of the Guaranteed Obligations;


 


any
manner of application of any collateral, or proceeds thereof, to all or any of
the Guaranteed Obligations, or any manner of sale or other disposition of any
collateral for all or any of the Guaranteed Obligations or any other
obligations of any Loan Party


 


2

















 


under
the Loan Documents or any other assets of any Loan Party or any of its
Subsidiaries;


 


any
change, restructuring or termination of the corporate structure or existence of
any Loan Party or any of its Subsidiaries;


 


any
failure of any Guaranteed Party to disclose to any Loan Party any information
relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Loan Party now or hereafter
known to such Guaranteed Party (each Guarantor waiving any duty on the part of
the Guaranteed Parties to disclose such information);


 


the
failure of any other Person to execute or deliver this Guaranty, any Guaranty
Supplement (as hereinafter defined) or any other guaranty or agreement or the
release or reduction of liability of any Guarantor or other guarantor or surety
with respect to the Guaranteed Obligations; or


 


any
other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by any Guaranteed Party
that might otherwise constitute a defense available to, or a discharge of, any
Loan Party or any other guarantor or surety.


 


This Guaranty shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise
be returned by any Guaranteed Party or any other Person upon the insolvency,
bankruptcy or reorganization of the Company or any other Loan Party or
otherwise, all as though such payment had not been made.


 


Waivers
and Acknowledgments.  b) 
Each Guarantor hereby unconditionally and irrevocably waives promptness,
diligence, notice of acceptance, presentment, demand for performance, notice of
nonperformance, default, acceleration, protest or dishonor and any other notice
with respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that any Guaranteed Party protect, secure, perfect or insure any
Lien or any property subject thereto or exhaust any right or take any action
against any Loan Party or any other Person or any collateral.


 


Each
Guarantor hereby unconditionally and irrevocably waives any right to revoke
this Guaranty and acknowledges that this Guaranty is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in the future.


 


Each
Guarantor hereby unconditionally and irrevocably waives (i) any defense
arising by reason of any claim or defense based upon an election of remedies by
any Guaranteed Party that in any manner impairs, reduces, releases or otherwise
adversely affects the subrogation, reimbursement, exoneration, contribution or
indemnification rights of such Guarantor or other rights of such Guarantor to
proceed against any of the other Loan Parties, any other guarantor or any other
Person or any collateral and (ii) any defense based on any right of
set-off or counterclaim against or in respect of the obligations of such
Guarantor hereunder.


 


3

















 


Each
Guarantor hereby unconditionally and irrevocably waives any duty on the part of
any Guaranteed Party to disclose to such Guarantor any matter, fact or thing
relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Loan Party or any of its
Subsidiaries now or hereafter known by such Guaranteed Party.


 


Each
Guarantor acknowledges that it will receive substantial direct and indirect
benefits from the financing arrangements contemplated by the Loan Documents and
that the waivers set forth in Section 2 and this Section 3 are
knowingly made in contemplation of such benefits.


 


Subrogation. 
Each Guarantor hereby unconditionally and irrevocably agrees not to
exercise any rights that it may now have or hereafter acquire against the
Company, any other Loan Party or any other insider guarantor that arise from
the existence, payment, performance or enforcement of such Guarantor’s
obligations under or in respect of this Guaranty or any other Loan Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in
any claim or remedy of any Guaranteed Party against the Company, any other Loan
Party or any other insider guarantor or any collateral, whether or not such
claim, remedy or right arises in equity or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Company, any other Loan Party or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash and the Commitments shall have
expired or been terminated.  If any
amount shall be paid to any Guarantor in violation of the immediately preceding
sentence at any time prior to the later of (a) the payment in full in cash
of the Guaranteed Obligations and all other amounts payable under this Guaranty
and (b) the Termination Date, such amount shall be received and held in
trust for the benefit of the Guaranteed Parties, shall be segregated from other
property and funds of such Guarantor and shall forthwith be paid or delivered
to the Agent in the same form as so received (with any necessary endorsement or
assignment) to be credited and applied to the Guaranteed Obligations and all
other amounts payable under this Guaranty, whether matured or unmatured, in
accordance with the terms of the Loan Documents, or to be held as collateral
for any Guaranteed Obligations or other amounts payable under this Guaranty
thereafter arising.  If (i) any
Guarantor shall make payment to any Guaranteed Party of all or any part of the
Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all
other amounts payable under this Guaranty shall have been paid in full in cash
and (iii) the Termination Date shall have occurred, the Guaranteed Parties
will, at such Guarantor’s request and expense, execute and deliver to such
Guarantor appropriate documents, without recourse and without representation or
warranty, necessary to evidence the transfer by subrogation to such Guarantor
of an interest in the Guaranteed Obligations resulting from such payment made
by such Guarantor pursuant to this Guaranty.


 


Payments
Free and Clear of Taxes, Etc..  c)  Any and all payments made by any Guarantor
under or in respect of this Guaranty or any other Loan Document shall be made,
in accordance with Section 2.14 of the Credit Agreement, free and clear of
and without deduction for any and all present or future Taxes.  If any Guarantor shall be required by law to
deduct any Taxes from or in respect of any sum payable under or in respect of
this Guaranty or


 


4

















 


any other Loan Document
to any Guaranteed Party, (i) the sum payable by such Guarantor shall be
increased as may be necessary so that after such Guarantor and the Agent have
made all required deductions (including deductions applicable to additional
sums payable under this Section 5), such Guaranteed Party receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) such Guarantor shall make all such deductions and (iii) such
Guarantor shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.


 


In
addition, each Guarantor agrees to pay any present or future Other Taxes that
arise from any payment made by or on behalf of such Guarantor under or in
respect of this Guaranty or any other Loan Document or from the execution,
delivery or registration of, performance under, or otherwise with respect to,
this Guaranty and the other Loan Documents.


 


Each
Guarantor will indemnify each Guaranteed Party for and hold it harmless against
the full amount of Taxes and Other Taxes, and for the full amount of taxes of
any kind imposed by any jurisdiction on amounts payable under this Section 5,
imposed on or paid by such Guaranteed Party and any liability (including
penalties, additions to tax, interest and expenses) arising therefrom or with
respect thereto.  This indemnification
shall be made within 30 days from the date such Guaranteed Party makes written
demand therefor.


 


The
obligations of each Guarantor under this Section are subject in all respects
to the limitations, qualifications and satisfaction of conditions set forth in Section 2.15
of the Credit Agreement.  Without
limitation of the foregoing, the Lenders are subject to the obligations set
forth in Section 2.15 of the Credit Agreement to the same extent as if set
forth herein.


 


Representations and Warranties. 
Each Guarantor hereby makes each representation and warranty made in the
Loan Documents by the Company with respect to such Guarantor and each Guarantor
hereby further represents and warrants as follows:


 


There
are no conditions precedent to the effectiveness of this Guaranty that have not
been satisfied or waived.


 


Such
Guarantor has, independently and without reliance upon any Guaranteed Party and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Guaranty and each other
Loan Document to which it is or is to be a party, and such Guarantor has
established adequate means of obtaining from each other Loan Party on a
continuing basis information pertaining to, and is now and on a continuing
basis will be completely familiar with, the business, condition (financial or
otherwise), operations, performance, properties and prospects of such other
Loan Party.


 


Covenants. 
Each Guarantor covenants and agrees that, so long as any part of the
Guaranteed Obligations shall remain unpaid or any Lender shall have any
Commitment, such Guarantor will perform and observe, and cause each of its
Subsidiaries to perform and observe, all of the terms, covenants and agreements
set forth in the Loan Documents on its or their part to be performed or
observed or that the Company has agreed to cause such Guarantor or such
Subsidiaries to perform or observe.


 


5

















 


Amendments,
Guaranty Supplements, Etc.  d)  No amendment or waiver of any provision of
this Guaranty and no consent to any departure by any Guarantor therefrom shall
in any event be effective unless the same shall be in writing and signed by the
Agent and the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all of the Guaranteed Parties, (a) reduce
or limit the obligations of any Guarantor hereunder, release any Guarantor
hereunder or otherwise limit any Guarantor’s liability with respect to the
obligations owing to the Guaranteed Parties under or in respect of the Loan
Documents except as provided in the next succeeding sentence, (b) postpone
any date fixed for payment hereunder or (c) change the number of
Guaranteed Parties or the percentage of (x) the Commitments or (y) the
aggregate unpaid principal amount of the Advances that, in each case, shall be
required for the Guaranteed Parties or any of them to take any action
hereunder.  Upon the occurrence of the
Subsidiary Guaranty Release Date, this Guaranty shall terminate and be of no
further force and effect and, prior to the Subsidiary Guaranty Release Date,
upon the sale of a Guarantor to the extent permitted in accordance with the
terms of the Loan Documents, such Guarantor shall be automatically released
from this Guaranty.


 


Upon
the execution and delivery by any Person of a guaranty supplement in
substantially the form of Exhibit A hereto (each, a “Guaranty
Supplement”), (i) such Person shall be referred to as an “Additional
Guarantor” and shall become and be a Guarantor hereunder, and each reference
in this Guaranty to a “Guarantor” shall also mean and be a reference to such
Additional Guarantor, and each reference in any other Loan Document to a “Subsidiary
Guarantor” shall also mean and be a reference to such Additional Guarantor, and
(ii) each reference herein to “this Guaranty”, “hereunder”, “hereof” or
words of like import referring to this Guaranty, and each reference in any
other Loan Document to the “Subsidiary Guaranty”, “thereunder”, “thereof” or
words of like import referring to this Guaranty, shall mean and be a reference
to this Guaranty as supplemented by such Guaranty Supplement.


 


Notices,
Etc.  All notices and other communications provided
for hereunder shall be in writing (including telegraphic, telecopy or telex
communication) and mailed, telegraphed, telecopied, telexed or delivered to it,
if to any Guarantor, addressed to it in care of the Company at the Company’s
address specified in Section 9.02 of the Credit Agreement, if to the Agent
or any Lender, at its address specified in Section 9.02 of the Credit
Agreement, or, as to any party, at such other address as shall be designated by
such party in a written notice to each other party.  All such notices and other communications
shall, when mailed, telegraphed, telecopied or telexed, be effective when
deposited in the mails, delivered to the telegraph company, transmitted by
telecopier or confirmed by telex answerback, respectively.  Delivery by telecopier of an executed
counterpart of a signature page to any amendment or waiver of any
provision of this Guaranty or of any Guaranty Supplement to be executed and
delivered hereunder shall be effective as delivery of an original executed
counterpart thereof.


 


No
Waiver; Remedies.  No failure on the part of any Guaranteed
Party to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right.  The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.


 


6

















 


Right
of Set-off.  Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or
the granting of the consent specified by Section 6.01 of the Credit
Agreement to authorize the Agent to declare the Advances due and payable
pursuant to the provisions of said Section 6.01, the Agent and each Lender
and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by the Agent, such
Lender or such Affiliate to or for the credit or the account of any Guarantor
against any and all of the obligations of such Guarantor now or hereafter
existing under the Loan Documents, irrespective of whether the Agent or such
Lender shall have made any demand under this Guaranty or any other Loan
Document and although such obligations may be unmatured.  The Agent and each Lender agrees promptly to
notify such Guarantor after any such set-off and application; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application.  The rights of
the Agent and each Lender and their respective Affiliates under this Section are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) that the Agent, such Lender and their respective Affiliates
may have.


 


Indemnification. 
e)  Without limitation on any
other obligations of any Guarantor or remedies of the Guaranteed Parties under
this Guaranty, each Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless each Guaranteed Party and each of
their Affiliates and their respective officers, directors, employees, agents
and advisors (each, an “Indemnified Party”) from and against, and shall
pay on demand, any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party in connection
with or as a result of any failure of any Guaranteed Obligations to be the
legal, valid and binding obligations of any Loan Party enforceable against such
Loan Party in accordance with their terms.


 


Each
Guarantor hereby also agrees that none of the Indemnified Parties shall have
any liability (whether direct or indirect, in contract, tort or otherwise) to
any of the Guarantors or any of their respective Affiliates or any of their
respective officers, directors, employees, agents and advisors, and each
Guarantor hereby agrees not to assert any claim against any Indemnified Party
on any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Facilities, the actual or
proposed use of the proceeds of the Advances or any of the transactions
contemplated by the Loan Documents.


 


Without
prejudice to the survival of any of the other agreements of any Guarantor under
this Guaranty or any of the other Loan Documents, the agreements and obligations
of each Guarantor contained in Section 1(a) (with respect to
enforcement expenses), the last sentence of Section 2, Section 5 and
this Section 12 shall survive the payment in full of the Guaranteed
Obligations and all of the other amounts payable under this Guaranty.


 


Subordination. 
Each Guarantor hereby subordinates any and all debts, liabilities and
other obligations owed to such Guarantor by each other Loan Party (the “Subordinated
Obligations”) to the Guaranteed Obligations to the extent and in the manner
hereinafter set forth in this Section 13:


 


7

















 


Prohibited
Payments, Etc.  Except during the continuance of a Default
(including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), each Guarantor may receive
regularly scheduled payments from any other Loan Party on account of the
Subordinated Obligations.  After the
occurrence and during the continuance of any Default (including the
commencement and continuation of any proceeding under any Bankruptcy Law
relating to any other Loan Party), however, unless the Agent otherwise agrees,
no Guarantor shall demand, accept or take any action to collect any payment on
account of the Subordinated Obligations.


 


Prior
Payment of Guaranteed Obligations.  In any proceeding under any Bankruptcy Law
relating to any other Loan Party, each Guarantor agrees that the Guaranteed
Parties shall be entitled to receive payment in full in cash of all Guaranteed
Obligations (including all interest and expenses accruing after the
commencement of a proceeding under any Bankruptcy Law, whether or not
constituting an allowed claim in such proceeding (“Post Petition Interest”))
before such Guarantor receives payment of any Subordinated Obligations.


 


Turn-Over.  After the
occurrence and during the continuance of any Default (including the
commencement and continuation of any proceeding under any Bankruptcy Law
relating to any other Loan Party), each Guarantor shall, if the Agent so requests,
collect, enforce and receive payments on account of the Subordinated
Obligations as trustee for the Guaranteed Parties and deliver such payments to
the Agent on account of the Guaranteed Obligations (including all Post Petition
Interest), together with any necessary endorsements or other instruments of
transfer, but without reducing or affecting in any manner the liability of such
Guarantor under the other provisions of this Guaranty.


 


Agent
Authorization.  After the occurrence and during the continuance
of any Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to any other Loan Party), the Agent is
authorized and empowered (but without any obligation to so do), in its
discretion, (i) in the name of each Guarantor, to collect and enforce, and
to submit claims in respect of, Subordinated Obligations and to apply any
amounts received thereon to the Guaranteed Obligations (including any and all
Post Petition Interest), and (ii) to require each Guarantor (A) to
collect and enforce, and to submit claims in respect of, Subordinated
Obligations and (B) to pay any amounts received on such obligations to the
Agent for application to the Guaranteed Obligations (including any and all Post
Petition Interest).


 


Continuing
Guaranty; Assignments under the Credit Agreement.  This Guaranty
is a continuing guaranty and shall (a) remain in full force and effect
until the later of (i) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty and (ii) the
Termination Date, (b) be binding upon the Guarantor, its successors and
assigns and (c) inure to the benefit of and be enforceable by the
Guaranteed Parties and their successors, transferees and assigns.  Without limiting the generality of
clause (c) of the immediately preceding sentence, any Guaranteed
Party may assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement (including, without limitation, all or
any portion of its Commitments, the Advances owing to it and the Note or


 


8

















 


Notes held by it) to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Guaranteed Party herein or
otherwise, in each case as and to the extent provided in Section 9.07 of
the Credit Agreement.  No Guarantor shall
have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Guaranteed Parties.


 


Execution
in Counterparts.  This Guaranty and each amendment, waiver and
consent with respect hereto may be executed in any number of counterparts and
by different parties thereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. 
Delivery of an executed counterpart of a signature page to this
Guaranty by telecopier shall be effective as delivery of an original executed
counterpart of this Guaranty.


 


Governing
Law; Jurisdiction; Waiver of Jury Trial, Etc.  f)  This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of New York.


 


Each
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Guaranty or any of the other Loan Documents to which
it is or is to be a party, or for recognition or enforcement of any judgment,
and each Guarantor hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in any such New York State court or, to the extent permitted by law, in such
federal court.  Each Guarantor agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.  Nothing in this
Guaranty or any other Loan Document shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Guaranty or
any other Loan Document in the courts of any jurisdiction.


 


Each
Guarantor irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter have
to the laying of venue of any suit, action or proceeding arising out of or
relating to this Guaranty or any of the other Loan Documents to which it is or
is to be a party in any New York State or federal court.  Each Guarantor hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such suit, action or proceeding in any such court.


 


Each
Guarantor hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to any of the Loan Documents, the Advances or the
actions of any Guaranteed Party in the negotiation, administration, performance
or enforcement thereof.


 


[Remainder of Page Left
Blank]


 


9
















 


IN WITNESS WHEREOF, each
Guarantor has caused this Guaranty to be duly executed and delivered by its
officer thereunto duly authorized as of the date first above written.


 


	
   

  	
  [NAME OF GUARANTOR]

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF
  GUARANTOR]

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Etc.

  



 

















 


Exhibit A

To The

Subsidiary Guaranty


 


FORM OF SUBSIDIARY GUARANTY SUPPLEMENT


 


                 ,
200   


 


BNP Paribas, as Agent

[Address of Agent]


 


Attention:


 


Credit Agreement
dated as of November     , 2009 among
  Sealed Air Corporation, a Delaware
corporation (the “Company”), the other Borrowers
  party to the Credit Agreement, the
Lenders

party to the Credit Agreement, and BNP Paribas, as Agent


 


Ladies and Gentlemen:


 


Reference is made to the
above-captioned Credit Agreement and to the Subsidiary Guaranty referred to
therein (such Subsidiary Guaranty, as in effect on the date hereof and as it
may hereafter be amended, supplemented or otherwise modified from time to time,
together with this Guaranty Supplement, being the “Subsidiary Guaranty”).  The capitalized terms defined in the
Subsidiary Guaranty or in the Credit Agreement and not otherwise defined herein
are used herein as therein defined.


 


Section 1.  Guaranty; Limitation of Liability.  (a)  The undersigned hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all obligations of each other Loan Party
now or hereafter existing under or in respect of the Loan Documents (including,
without limitation, any extensions, modifications, substitutions, amendments or
renewals of any or all of the foregoing obligations), whether direct or
indirect, absolute or contingent, and whether for principal, interest, premium,
fees, indemnities, contract causes of action, costs, expenses or otherwise
(such obligations being the “Guaranteed Obligations”), and agrees to pay
any and all expenses (including, without limitation, fees and expenses of counsel)
incurred by the Agent or any other Guaranteed Party in enforcing any rights
under this Guaranty Supplement, the Subsidiary Guaranty or any other Loan
Document.  Without limiting the
generality of the foregoing, the undersigned’s liability shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by
any other Loan Party to any Guaranteed Party under or in respect of the Loan
Documents but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
such other Loan Party.


 

















 


(b)                                 The undersigned, and by its acceptance of
this Guaranty Supplement, the Agent and each other Guaranteed Party, hereby
confirms that it is the intention of all such Persons that this Guaranty
Supplement, the Subsidiary Guaranty and the obligations of the undersigned
hereunder and thereunder not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the
extent applicable to this Guaranty Supplement, the Subsidiary Guaranty and the
obligations of the undersigned hereunder and thereunder.  To effectuate the foregoing intention, the
Agent, the other Guaranteed Parties and the undersigned hereby irrevocably
agree that the obligations of the undersigned under this Guaranty Supplement
and the Subsidiary Guaranty at any time shall be limited to the maximum amount
as will result in the obligations of the undersigned under this Guaranty
Supplement and the Subsidiary Guaranty not constituting a fraudulent transfer
or conveyance.


 


(c)                                  The undersigned hereby unconditionally
and irrevocably agrees that in the event any payment shall be required to be
made to any Guaranteed Party under this Guaranty Supplement, the Subsidiary
Guaranty or any other guaranty, the undersigned will contribute, to the maximum
extent permitted by applicable law, such amounts to each other Guarantor and each
other guarantor so as to maximize the aggregate amount paid to the Guaranteed
Parties under or in respect of the Loan Documents.


 


Section 2.  Obligations Under the Guaranty.  The undersigned hereby agrees, as of the date
first above written, to be bound as a Guarantor by all of the terms and
conditions of the Subsidiary Guaranty to the same extent as each of the other
Guarantors thereunder.  The undersigned
further agrees, as of the date first above written, that each reference in the
Subsidiary Guaranty to an “Additional Guarantor” or a “Guarantor”
shall also mean and be a reference to the undersigned, and each reference in
any other Loan Document to a “Subsidiary Guarantor” or a “Loan Party”
shall also mean and be a reference to the undersigned.


 


Section 3.  Representations and Warranties.  The undersigned hereby makes each
representation and warranty set forth in Section 6 of the Subsidiary
Guaranty to the same extent as each other Guarantor.


 


Section 4.  Delivery by Telecopier.  Delivery of an executed counterpart of a
signature page to this Guaranty Supplement by telecopier shall be
effective as delivery of an original executed counterpart of this Guaranty
Supplement.


 


Section 5.  Governing Law; Jurisdiction; Waiver of
Jury Trial, Etc.  (a)  This
Guaranty Supplement shall be governed by, and construed in accordance with, the
laws of the State of New York.


 


(b)                                 The undersigned hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or any federal court of the
United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this Guaranty Supplement, the Subsidiary Guaranty or any of the other Loan
Documents to which it is or is to be a party, or for recognition or enforcement
of any judgment, and the undersigned hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard


 


2

















 


and determined in any
such New York State court or, to the extent permitted by law, in such federal
court.  The undersigned agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this
Guaranty Supplement or the Subsidiary Guaranty or any other Loan Document shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Guaranty Supplement, the Subsidiary Guaranty or any
of the other Loan Documents to which it is or is to be a party in the courts of
any other jurisdiction.


 


(c)                                  The undersigned irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Guaranty
Supplement, the Subsidiary Guaranty or any of the other Loan Documents to which
it is or is to be a party in any New York State or federal court.  The undersigned hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such suit, action or proceeding in any such court.


 


(d)                                 The undersigned hereby irrevocably waives
all right to trial by jury in any action, proceeding or counterclaim (whether
based on contract, tort or otherwise) arising out of or relating to any of the
Loan Documents, the Advances or the actions of any Guaranteed Party in the
negotiation, administration, performance or enforcement thereof.


 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF ADDITIONAL
  GUARANTOR]

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Title:

  



 


3

















 


EXHIBIT E - FORM OF


OPINION OF COUNSEL


FOR THE BORROWER


 


[To come]


 

















 


EXHIBIT F - FORM OF


BORROWER DESIGNATION AGREEMENT


 


[DATE]


 


To each of the Lenders


parties to the Credit
Agreement


(as defined below) and to
Citicorp USA, Inc.


as Administrative Agent
for such Lenders


 


Ladies and Gentlemen:


 


Reference is made to the
Three Year Credit Agreement dated as of November 19, 2009 among Sealed Air
Corporation (the “Company”), certain other Borrowers (as defined in the
Credit Agreement), the Lenders (as defined in the Credit Agreement) and BNP
Paribas, as agent for the Lenders (the “Credit Agreement”).  Terms used herein and defined in the Credit
Agreement shall have the respective meanings ascribed to such terms in the
Credit Agreement.


 


Please be advised that
the Company hereby designates its undersigned Subsidiary,
                        
(“Designated Subsidiary”), as a “Designated Subsidiary” under and for
all purposes of the Credit Agreement.


 


The Designated
Subsidiary, in consideration of each Lender’s agreement to extend credit to it
under and on the terms and conditions set forth in the Credit Agreement, does
hereby assume each of the obligations imposed upon a “Designated Subsidiary”
and a “Borrower” under the Credit Agreement and agrees to be bound by the terms
and conditions of the Credit Agreement. 
In furtherance of the foregoing, the Designated Subsidiary hereby
represents and warrants to each Lender as follows:


 


(a)                                  The Designated Subsidiary is a
corporation duly organized, validly existing and in good standing under the
laws of
                                            .


 


(b)                                 The execution, delivery and performance
by the Designated Subsidiary of this Borrower Designation Agreement, the Credit
Agreement and the Notes to be delivered by it are within the Designated
Subsidiary’s corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (i) the Designated Subsidiary’s
charter or by-laws or (ii) any law, rule or regulation applicable to
the Designated Subsidiary or (iii) any material contractual or legal
restriction binding on the Designated Subsidiary.  This Borrower Designation Agreement and the
Notes delivered by it have been duly executed and delivered on behalf of the
Designated Subsidiary.


 


(c)                                  No authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance by
the Designated Subsidiary of this Borrower Designation Agreement, the Credit
Agreement or the Notes to be delivered by it.


 


(d)                                 This Borrower Designation Agreement is,
and the Notes to be delivered by the Designated Subsidiary when delivered will
be, legal, valid and binding obligations of the Designated Subsidiary
enforceable against the Designated Subsidiary in accordance with their
respective terms.


 


(e)                                  There is no pending or, to the knowledge
of the Designated Subsidiary, threatened action or proceeding affecting the
Designated Subsidiary or any of its Subsidiaries before any court, governmental
agency or arbitrator which purports to affect the legality, validity or
enforceability of this Borrower Designation Agreement, the Credit Agreement or
any Note of the Designated Subsidiary.


 

















 


This
Borrower Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  SEALED AIR CORPORATION

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  [THE DESIGNATED
  SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


2