Exhibit
10.17


 


 


EXECUTION COPY


 


 


U.S. $350,000,000


 


THREE YEAR CREDIT AGREEMENT


 


Dated as of
December 19, 2003


 


Among


 


SEALED AIR CORPORATION


as
Company


 


SEALED AIR CORPORATION (US)


CRYOVAC, INC.


and


SEALED AIR LUXEMBOURG S.C.A.


as
Borrowers


 


THE INITIAL LENDERS NAMED HEREIN


as
Initial  Lenders


 


BANK OF AMERICA, N.A.


as
Syndication  Agent


 


ABN AMRO BANK N.V.


BNP PARIBAS


And


CREDIT LYONNAIS NEW YORK BRANCH


as
Documentation  Agents


 


CITIBANK, N.A.


as
Agent


 


and


 


CITIGROUP GLOBAL MARKETS INC.


and


BANC OF AMERICA SECURITIES LLC


as
Lead  Arrangers


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 1.01.  Certain Defined Terms

  	
  6

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 1.02.  Computation of Time Periods

  	
  20

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 1.03.  Accounting Terms

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.01.  The Advances and Letters of Credit

  	
  21

  
	
   

  	
   

  	
   

  
	
   

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

  	
  21

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.03.  The Competitive Bid Advances

  	
  23

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.04.  Issuance of and Drawings and Reimbursement
  Under Letters of Credit

  	
  27

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.05.  Fees

  	
  28

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.06.  Termination or Reduction of the
  Commitments

  	
  28

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  2.07.  Repayment of Revolving Credit
  Advances

  	
  29

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.08.  Interest on Revolving Credit Advances and Swing Line Advances

  	
  30

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.09.  Interest Rate Determination

  	
  31

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.10.  Optional Conversion of Revolving Credit
  Advances

  	
  32

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.11.  Prepayments of Revolving Credit Advances
  and Swing Line Advances

  	
  32

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.12.  Increased Costs

  	
  33

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.13.  Illegality

  	
  33

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.14.  Payments and Computations

  	
  34

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.15.  Taxes

  	
  35

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.16.  Sharing of Payments, Etc.

  	
  36

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.17.  Evidence of Debt

  	
  36

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 2.18.  Use of Proceeds

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 3.01.  Conditions Precedent to Effectiveness of
  Sections 2.01 and 2.03

  	
  37

  



 


2

















 


	
   

  	
  SECTION 3.02.  Initial Advance to Each Designated
  Subsidiary

  	
  38

  
	
   

  	
   

  	
   

  
	
   

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

  	
  39

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 3.04.  Conditions Precedent to Each Competitive
  Bid Borrowing

  	
  39

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 3.05.  Determinations Under Section 3.01

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 4.01.  Representations and Warranties of the
  Borrower

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.01.  Affirmative Covenants

  	
  43

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.02.  Negative Covenants

  	
  45

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 5.03.  Financial Covenants

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 6.01.  Events of Default

  	
  49

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 6.02.  Actions in Respect of the Letters of
  Credit upon Default

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 7.01.  Guaranty

  	
  51

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 7.02.  Guaranty Absolute

  	
  52

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 7.03.  Waivers and Acknowledgment

  	
  52

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 7.04.  Subrogation

  	
  53

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 7.05.  Subordination

  	
  53

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 7.06.  Continuing Guaranty; Assignments

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 8.01.  Authorization and Action

  	
  54

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 8.02.  Agent’s Reliance, Etc.

  	
  55

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 8.03.  Citibank and Affiliates

  	
  55

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 8.04.  Lender Credit Decision

  	
  55

  



 


3

















 


	
   

  	
  SECTION 8.05.  Indemnification

  	
  55

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 8.06.  Successor Agent

  	
  56

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 8.07.  Sub-Agent

  	
  56

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 8.08.  Other Agents.

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.01.  Amendments, Etc.

  	
  57

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.02.  Notices, Etc.

  	
  57

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.03.  No Waiver; Remedies

  	
  58

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.04.  Costs and Expenses

  	
  58

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.05.  Right of Set-off

  	
  59

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.06.  Binding Effect

  	
  59

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.07.  Assignments and Participations

  	
  59

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.08.  Confidentiality

  	
  61

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.09.  Designated Subsidiaries

  	
  61

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.10.  Governing Law

  	
  62

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.11.  Execution in Counterparts

  	
  62

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.12.  Judgment

  	
  62

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.13.  Jurisdiction, Etc.

  	
  62

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.14.  Substitution of Currency

  	
  63

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.15.  No Liability of the Issuing Banks

  	
  63

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 9.16.  Waiver of Jury Trial

  	
  64

  



 


4

















 


	
  Schedules

  
	
   

  
	
  Schedule I - List of Applicable Lending
  Offices

  
	
   

  
	
  Schedule 4.01(j) – Material
  Subsidiaries

  
	
   

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

  
	
   

  
	
  Exhibits

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A-1

  	
   

  	
  -

  	
   

  	
  Form of Revolving Credit Note

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A-2

  	
   

  	
  -

  	
   

  	
  Form of Competitive Bid Note

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit B-1

  	
   

  	
  -

  	
   

  	
  Form of Notice of Revolving Credit
  Borrowing

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit B-2

  	
   

  	
  -

  	
   

  	
  Form of Notice of Competitive Bid Borrowing

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit C

  	
   

  	
  -

  	
   

  	
  Form of Assignment and Acceptance

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit D

  	
   

  	
  -

  	
   

  	
  Form of Subsidiary Guaranty

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit E

  	
   

  	
  -

  	
   

  	
  Form of Borrower Designation Agreement

  



5

















 


THREE YEAR CREDIT
AGREEMENT


 


Dated as of
December 19, 2003


 


SEALED AIR CORPORATION, a
Delaware corporation (the “Company”), SEALED AIR CORPORATION (US), a
Delaware corporation (“SAC(US)”), CRYOVAC, INC., a Delaware corporation
(“Cryovac”), and SEALED AIR LUXEMBOURG S.C.A., a Luxembourg corporation
(“Lux SCA”; the Company, SAC(US), Cryovac and Lux SCA are, collectively,
the “Initial Borrowers”), the banks and other financial institutions
(the “Initial Lenders”) and the initial issuing banks (the “Initial
Issuing Banks”) listed on the signature pages hereof, and CITIBANK, N.A. (“Citibank”),
as 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 asset write-downs, restructuring charges and other similar
accounting 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, a Swing Line Advance or a Competitive Bid
Advance.


 


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


 


“Agent’s
Account” means (a) in the case of Advances denominated in Dollars, the
account of the Agent maintained by the Agent at Citibank at its office at 388
Greenwich Street, New York, New York 10013, Account No. 36852248, Attention:  Bank Loan Syndications, (b) in the case
of Advances denominated in any Foreign Currency, the account of the Sub-Agent
designated in writing from time to time by the Agent to the Company and the
Lenders for such purpose and (c) in any such case, such other 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.


 


6

















 


“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 and, in
the case of a Competitive Bid Advance, the office of such Lender notified by
such Lender to the Agent as its Applicable Lending Office with respect to such
Competitive Bid 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

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A-
  or A3 or above

  	
   

  	
  0.000

  	
  %

  	
  0.450

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level
  2

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BBB+
  or Baa1

  	
   

  	
  0.000

  	
  %

  	
  0.625

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level
  3

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BBB
  and Baa2

  	
   

  	
  0.000

  	
  %

  	
  0.725

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level
  4

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BBB
  or Baa2

  	
   

  	
  0.000

  	
  %

  	
  0.850

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level
  5

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BBB-
  and Baa3

  	
   

  	
  0.000

  	
  %

  	
  0.925

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level
  6

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BBB-
  or Baa3

  	
   

  	
  0.000

  	
  %

  	
  1.000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level
  7

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BB+
  or Ba1

  	
   

  	
  0.375

  	
  %

  	
  1.375

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level
  8

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BB
  or Ba2 or lower

  	
   

  	
  0.500

  	
  %

  	
  1.500

  	
  %

  






 


“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

  	
   

  	
   

  	
   

  
	
  A-
  or A3 or above

  	
   

  	
  0.100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Level
  2

  	
   

  	
   

  	
   

  
	
  BBB+
  or Baa1

  	
   

  	
  0.125

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Level
  3

  	
   

  	
   

  	
   

  
	
  BBB
  and Baa2

  	
   

  	
  0.150

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Level
  4

  	
   

  	
   

  	
   

  
	
  BBB
  or Baa2

  	
   

  	
  0.150

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Level
  5

  	
   

  	
   

  	
   

  
	
  BBB-
  and Baa3

  	
   

  	
  0.200

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Level
  6

  	
   

  	
   

  	
   

  
	
  BBB-
  or Baa3

  	
   

  	
  0.250

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Level
  7

  	
   

  	
   

  	
   

  
	
  BB+
  or Ba1

  	
   

  	
  0.375

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Level
  8

  	
   

  	
   

  	
   

  
	
  BB
  or Ba2 or lower

  	
   

  	
  0.500

  	
  %

  






 


7

















 


“Applicable
Utilization Fee” means, as of any date that the sum of the aggregate
principal amount of outstanding Advances plus the aggregate Available Amount of
outstanding Letters of Credit exceed 50% of the aggregate Revolving Credit
Commitments, 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

  Utilization Fee

  	
   

  
	
  Level
  1

  	
   

  	
   

  	
   

  
	
  A-
  or A3 or above

  	
   

  	
  0.075

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Level
  2

  	
   

  	
   

  	
   

  
	
  BBB+
  or Baa1

  	
   

  	
  0.125

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Level
  3

  	
   

  	
   

  	
   

  
	
  BBB
  and Baa2

  	
   

  	
  0.125

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Level
  4

  	
   

  	
   

  	
   

  
	
  BBB
  or Baa2

  	
   

  	
  0.125

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Level
  5

  	
   

  	
   

  	
   

  
	
  BBB-
  and Baa3

  	
   

  	
  0.125

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Level
  6

  	
   

  	
   

  	
   

  
	
  BBB-
  or Baa3

  	
   

  	
  0.125

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Level
  7

  	
   

  	
   

  	
   

  
	
  BB+
  or Ba1

  	
   

  	
  0.250

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Level
  8

  	
   

  	
   

  	
   

  
	
  BB
  or Ba2 or lower

  	
   

  	
  0.500

  	
  %

  






 


“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.


 


“Available Amount” of any Letter of Credit
means, at any time, the maximum amount available to be drawn under such Letter
of Credit at such time (assuming compliance at such time with all conditions to
drawing).


 


“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.


 


“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 higher of:


 


(a)                                  the
rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank’s base rate; and


 


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


 


“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 2.08(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.


 


8

















 


“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, a Swing Line Borrowing or a Competitive Bid
Borrowing.


 


“Business Day”
means a day of the year on which banks are not required or authorized by law to
close in New York City and, if the applicable Business Day relates to any
Eurocurrency Rate Advances or LIBO Rate Advances, on which dealings are carried
on in the London interbank market and banks are open for business in London and
in the country of issue of the currency of such Eurocurrency Rate Advance or
LIBO Rate Advance (or, 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 a Revolving Credit Commitment or a Letter of Credit Commitment.


 


“Committed
Currencies” means lawful currency of Australia, lawful currency of Canada,
Euros, lawful currency of Japan, lawful currency of Norway, lawful currency of
the United Kingdom of Great Britain and Northern Ireland, lawful currency of
Sweden, lawful currency of The Swiss Federation and lawful currency of New
Zealand.


 


“Competitive
Bid Advance” means an advance by a Lender to any Borrower as part of a
Competitive Bid Borrowing resulting from the competitive bidding procedure
described in Section 2.03 and refers to a Fixed Rate Advance or a LIBO
Rate Advance.


 


“Competitive
Bid Borrowing” means a borrowing consisting of simultaneous Competitive Bid
Advances from each of the Lenders whose offer to make one or more Competitive
Bid Advances as part of such borrowing has been accepted under the competitive
bidding procedure described in Section 2.03.


 


“Competitive
Bid Note” means a promissory note of any Borrower payable to the order of
any Lender, in substantially the form of Exhibit A-2 hereto, evidencing
the indebtedness of such Borrower to such Lender resulting from a Competitive
Bid Advance made by such Lender.


 


“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 Obligations)
of the Company and its Subsidiaries determined on a Consolidated basis and (c)
the amount of “Asbestos Settlement Liability” as shown on the Consolidated
balance sheet of the Company and its Subsidiaries.


 


9

















 


“Consolidated Interest Expense” for any period means
total interest expense (including amounts properly attributable to interest
with respect to capital leases in accordance with generally accepted accounting
principles and amortization of debt discount and debt issuance costs) of the
Company and its Subsidiaries on a Consolidated basis for such period.


 


“Consolidated 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 cash of the Company and its Domestic Subsidiaries as reflected
on the unconsolidated balance sheets of the Company and such Subsidiaries to
the extent that the aggregate of such cash exceeds $50,000,000.


 


“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 2.09 or 2.10.


 


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


 


“Designated
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.


 


10

















 


“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 and (i) the pre-tax
charge of $850,100,000 related to the Settlement Agreement that the Company
recorded in the fourth fiscal quarter of 2002; 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 clause (g)
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, each Issuing Bank 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.


 


“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 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 any Foreign Currency on any date means the equivalent in Dollars
of such Foreign Currency determined by using the quoted spot rate at which the
Sub-Agent’s principal office in London offers to exchange Dollars for such
Foreign Currency 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 any Foreign Currency of
Dollars means the equivalent in such Foreign Currency of Dollars determined by
using the quoted spot rate at which the Sub-Agent’s principal office in London
offers to exchange such Foreign Currency 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


 


11

















 


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 Page 248 of the Moneyline
Telerate Service (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 (x) in the case of Revolving
Credit Borrowings, 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 2.09) or (y) in the case of Competitive
Bid Borrowings, to the amount that would be the Reference Banks’ respective
ratable shares of such Borrowing if such Borrowing were to be a 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
2.09).


 


“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.


 


“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 or any Committed Currency
other than Euro, the rate per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum) appearing on Moneyline Telerate Markets Page
3750 (or any successor page) as the London interbank offered rate for deposits
in Dollars or the applicable Committed Currency 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 or the applicable Committed
Currency 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


 


12

















 


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 Moneyline
Telerate Markets Page 3750 (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 2.09.


 


“Eurocurrency
Rate Advance” means a Revolving Credit Advance denominated in Dollars or a
Committed Currency that bears interest as provided in Section 2.08(a)(ii).


 


“Eurocurrency
Rate Reserve Percentage” for any Interest Period for all Eurocurrency Rate
Advances or LIBO 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 or LIBO 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.


 


“Fixed Rate
Advances” has the meaning specified in Section 2.03(a)(i), which
Advances shall be denominated in Dollars or in any Foreign Currency.


 


“Foreign
Currency” means any Committed Currency and any other lawful currency (other
than Dollars) that is freely transferable or convertible into Dollars.


 


“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.


 


“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.


 


13

















 


“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 information memorandum dated November 19, 2003 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 and each LIBO Rate Advance comprising part of
the same Competitive Bid Borrowing, the period commencing on the date of such
Eurocurrency Rate Advance or LIBO Rate Advance or the date of the Conversion of
any 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, with respect to Eurocurrency
Rate Advances, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the period
selected by such Borrower pursuant to the provisions below.  The duration of each such Interest Period
shall be one, two, three or six months, 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, 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 or for LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing shall be of the same
duration;


 


(c)                                  in the case of any such Revolving
Credit Borrowing, 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;


 


14

















 


(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.


 


“Issuing Bank”
means an Initial Issuing Bank or any Eligible Assignee to which a portion of
the Letter of Credit Commitment hereunder has been assigned pursuant to Section
9.07 so long as such Eligible Assignee expressly agrees to 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 an Issuing Bank and notifies
the Agent of its Applicable Lending Office (which information shall be recorded
by the Agent in the Register), for so long as the Initial Issuing Bank or
Eligible Assignee, as the case may be, shall have a Letter of Credit
Commitment.


 


“L/C Cash Deposit Account” means an interest
bearing cash deposit account to be established and maintained by the Agent,
over which the Agent shall have sole dominion and control, upon terms as may be
satisfactory to the Agent.


 


“L/C Related Documents” has the meaning
specified in Section 2.07(c)(i).


 


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


 


“Letter of
Credit” has the meaning specified in Section 2.01(c).


 


“Letter of Credit
Agreement” has the meaning specified in Section 2.04(a).


 


“Letter of Credit
Commitment” means, with respect to each Issuing Bank, the obligation of
such Issuing Bank to issue Letters of Credit denominated in Dollars to any
Borrower in (a) the amount set forth opposite the Issuing Bank’s name on the
signature pages hereto under the caption “Letter of Credit Commitment”, (b) if
such Issuing Bank has become an Issuing Bank hereunder pursuant to an
Assumption Agreement, the amount set forth in such Assumption Agreement, or (c)
if such Issuing Bank has entered into one or more Assignment and Acceptances,
the amount set forth for such Issuing Bank in the Register maintained by the
Agent pursuant to Section 9.07(g) as such Issuing Bank’s “Letter of Credit
Commitment”, in each case as such amount may be reduced prior to such time
pursuant to Section 2.06.


 


“Letter of Credit
Facility” means, at any time, an amount equal to the least of (a) the
aggregate amount of the Issuing Banks’ Letter of Credit Commitments at such
time, (b) $25,000,000 and (c) the aggregate amount of the Revolving Credit
Commitments, as such amount may be reduced at or prior to such time pursuant to
Section 2.06.


 


15

















 


“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.


 


“LIBO Rate”
means, for any Interest Period for all LIBO Rate Advances comprising part of
the same Competitive Bid Borrowing, an interest rate per annum equal to the
rate per annum obtained by dividing (a)(i) in the case of any Competitive Bid
Borrowing denominated in Dollars or any Foreign Currency other than Euros, the
rate per annum (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum) appearing on Moneyline Telerate Markets Page 3750 (or any successor
page) as the London interbank offered rate for deposits in Dollars or the applicable
Foreign Currency 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 or the applicable Foreign Currency 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 the amount that would be the Reference Banks’ respective ratable shares of such
Borrowing if such Borrowing were to be a 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 Competitive Bid Borrowing 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 Moneyline Telerate Markets Page 3750
(or any successor page) is unavailable, the LIBO Rate for any Interest Period
for each LIBO Rate Advance comprising part of the same Competitive Bid
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 2.09.


 


“LIBO Rate
Advances” means a Competitive Bid Advance denominated in Dollars or in any
Foreign Currency and bearing interest based on the LIBO Rate.


 


“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, the other L/C Related Documents and the
Subsidiary Guaranty.


 


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


 


“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,


 


16

















 


(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 of the Company and its Domestic
Subsidiaries as reflected on the unconsolidated 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, (c) amounts
available under a Permitted Receivables Financing and (d) amounts available to
be borrowed under the Dual-Currency Revolving Credit Facility Agreement dated
as of March 12, 2002 among Cryovac Australia Pty Ltd, Sealed Air (New Zealand)
Limited, Citisecurities Limited, Salomon Smith Barney Australia Securities Pty
Limited, Westpac Banking Corporation and the financiers parties thereto.


 


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


 


“Note”
means a Revolving Credit Note or a Competitive Bid Note.


 


“Notice of
Competitive Bid Borrowing” has the meaning specified in
Section 2.03(a).


 


“Notice of
Issuance” has the meaning specified in Section 2.04(a).


 


“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).


 


“Payment Office”
means, for any Foreign Currency, such office of Citibank as shall be from time
to time selected by the Agent and notified by the Agent to the Company and the
Lenders.


 


“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 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.


 


17

















 


“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,
the Applicable Percentage and the Applicable Utilization Fee 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,
the Applicable Percentage and the Applicable Utilization Fee will be set in
accordance with Level 8 under the definition of “Applicable Margin”,
“Applicable Percentage” or “Applicable Utilization Fee”, as the
case may be; (c) if the ratings established by S&P and Moody’s shall
fall within different levels, the Applicable Margin, the Applicable Percentage
and the Applicable Utilization Fee shall be based upon the higher rating unless
the 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 2.06(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 Revolving
Credit Commitment at such time and the denominator of which is the aggregate
Revolving Credit Commitments at such time and (b) such amount.


 


“Reference
Banks” means Citibank, Bank of America, N.A., Credit Lyonnais New York
Branch and ABN AMRO Bank N.V.


 


“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.


 


“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 Dollars
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 Revolving Credit Commitments.


 


18

















 


“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 any Foreign Currency, the Equivalent of $5,000,000 in such
Foreign Currency.


 


“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 any Foreign Currency, the Equivalent of $1,000,000 in such
Foreign Currency.


 


“Revolving
Credit Commitment” means as to any Lender (a) the Dollar 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 Dollar 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 2.06.


 


“Revolving
Credit Note” means a promissory note of any Borrower payable to the order
of any Lender, delivered pursuant to a request made under Section 2.17 in
substantially the form of Exhibit A-1 hereto, evidencing the aggregate
indebtedness of such Borrower to such Lender resulting from the Revolving
Credit Advances made by such Lender to such Borrower.


 


“S&P”
means Standard & Poor’s, a division of The 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.


 


“Sub-Agent”
means Citibank International plc.


 


“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.


 


“Subsidiary
Guaranty” has the meaning specified in Section 3.01(d)(ii).


 


19

















 


“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 Citibank.


 


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


 


“Termination
Date” means the earlier of December 19, 2006 and the date of termination in
whole of the Commitments pursuant to Section 2.06 or 6.01.


 


“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.


 


“Unissued
Letter of Credit Commitment” means, with respect to any Issuing Bank, the
obligation of such Issuing Bank to issue Letters of Credit to any Borrower in
an amount equal to the excess of (a) the amount of its Letter of Credit
Commitment over (b) the aggregate Available Amount of all Letters of Credit
issued by such Issuing Bank.


 


“Unused
Commitment” means, with respect to each Lender at any time, (a) the amount
of such Lender’s Revolving Credit 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 a Committed
Currency on the Equivalent in Dollars 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 (A) the aggregate Available Amount of all the Letters
of Credit outstanding at such time, (B) the aggregate principal amount of all
Competitive Bid Advances outstanding at such time and (C) the aggregate
principal amount of all Swing Line Advances 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 required to be delivered hereunder shall be prepared, in
accordance with generally accepted accounting principles as


 


20

















 


in effect from time to time, applied on a basis
consistent (except for changes concurred with by the Borrower’s independent
public accountants) 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 AND LETTERS OF CREDIT


 


SECTION 2.01. 
The Advances and Letters of Credit.  (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
a Committed Currency by reference to the Equivalent thereof in Dollars
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 Revolving Credit Commitments.  Within the limits of each Lender’s Revolving
Credit Commitment, any Borrower may borrow under this Section 2.01(a), prepay
pursuant to Section 2.11 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 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 $25,000,000 (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 $2,500,000 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 2.11 and
reborrow under this Section 2.01(b).


 


(c)                                  Letters
of Credit.  Each Issuing Bank
agrees, on the terms and conditions hereinafter set forth, to issue letters of
credit (each, a “Letter of Credit”) for the account of the relevant
Borrower from time to time on any Business Day during the period from the
Effective Date until 30 days before the Termination Date (i) in an aggregate
Available Amount for all Letters of Credit issued by all Issuing Banks not to
exceed at any time the Letter of Credit Facility at such time, (ii) in an
amount for each Issuing Bank not to exceed the amount of such Issuing Banks’
Letter of Credit Commitment at such time and (iii) in an amount for each
such Letter of Credit not to exceed an amount equal to the aggregate Unused Commitments
of the Lenders at such time.  Each
Letter of Credit shall be in an amount of $500,000 or more and shall be
denominated in Dollars.  No Letter of
Credit shall have an expiration date (including all rights of the Borrower or
the beneficiary to require renewal) of greater than one year or later than the
Termination Date; provided that any Letter of Credit which provides for
automatic one-year extension(s) of such expiration date shall be deemed to
comply with the foregoing requirement if the Issuing Bank has the unconditional
right to prevent any such automatic extension from taking place.  Within the limits referred to above, the
Borrower may request the issuance of Letters of Credit under this
Section 2.01(c), repay any Advances resulting from drawings thereunder
pursuant to Section 2.04(c) and request the issuance of additional Letters
of Credit under this Section 2.01(c). 
The terms “issue”, “issued”, “issuance” and all similar terms, when
applied to a Letter of Credit, shall include any renewal, extension or
amendment thereof.


 


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


 


21

















 


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) 4:00 P.M.
(London 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 any Committed Currency,
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 (and, in the case of a
Revolving Credit Borrowing consisting of Eurocurrency Rate Advances, simultaneously
to the Sub-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-1 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 11:00 A.M. (London time) on the date of such Revolving
Credit Borrowing, in the case of a Revolving Credit Borrowing consisting of
Eurocurrency Rate Advances denominated in any Committed Currency, make
available for the account of its Applicable Lending Office to the Agent at the
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 1:00 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.


 


22

















 


(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 2.09 or 2.13 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.


 


(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 Committed Currencies. 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.


 


SECTION 2.03. 
The Competitive Bid Advances. 
(a)  Each Lender severally agrees
that any Borrower may make Competitive Bid Borrowings under this
Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below in a principal amount (based in respect of any
Advance denominated in a Foreign Currency on the Equivalent in Dollars at the
time such Competitive Bid Borrowing is requested) not to exceed the aggregate
Unused Commitments on such Business Day.


 


(i)                                     Any
Borrower may request a Competitive Bid Borrowing under this Section 2.03
by delivering to the Agent (and, in the case of a Competitive Bid Borrowing not
consisting of Fixed Rate Advances or LIBO Rate Advances to be denominated in
Dollars, simultaneously to the Sub-Agent), by telecopier or telex, a notice of
a Competitive Bid Borrowing (a “Notice of Competitive Bid Borrowing”),
in substantially the form of Exhibit B-2 hereto, specifying therein the
requested (A) date of such proposed Competitive Bid Borrowing,
(B) aggregate amount of such proposed Competitive Bid Borrowing,


 


23

















 


(C) interest
rate basis and day count convention to be offered by the Lenders,
(D) currency of such proposed Competitive Bid Borrowing, (E) in the
case of a Competitive Bid Borrowing consisting of LIBO Rate Advances, Interest
Period, or in the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances, maturity date for repayment of each Fixed Rate Advance to be made as
part of such Competitive Bid Borrowing (which maturity date may not be earlier
than the date occurring 30 days after the date of such Competitive Bid
Borrowing or later than the Termination Date), (F) interest payment date
or dates relating thereto, (G) location of such Borrower’s account to
which funds are to be advanced and (H) other terms (if any) to be
applicable to such Competitive Bid Borrowing, not later than (w) 10:00
A.M. (New York City time) at least two Business Days prior to the date of the
proposed Competitive Bid Borrowing, if such Borrower shall specify in the
Notice of Competitive Bid Borrowing that the rates of interest to be offered by
the Lenders shall be fixed rates per annum (the Advances comprising any such
Competitive Bid Borrowing being referred to herein as “Fixed Rate Advances”)
and that the Advances comprising such proposed Competitive Bid Borrowing shall
be denominated in Dollars, (x) 10:00 A.M. (New York City time) at least four
Business Days prior to the date of the proposed Competitive Bid Borrowing, if
such Borrower shall specify in the Notice of Competitive Bid Borrowing that the
Advances comprising such Competitive Bid Borrowing shall be LIBO Rate Advances
denominated in Dollars, (y) 10:00 A.M. (London time) at least two Business
Days prior to the date of the proposed Competitive Bid Borrowing, if such
Borrower shall specify in the Notice of Competitive Bid Borrowing that the
Advances comprising such proposed Competitive Bid Borrowing shall be either
Fixed Rate Advances denominated in any Foreign Currency and
(z) 10:00 A.M. (London time) at least four Business Days prior to the
date of the proposed Competitive Bid Borrowing, if such Borrower shall instead
specify in the Notice of Competitive Bid Borrowing that the Advances comprising
such Competitive Bid Borrowing shall be LIBO Rate Advances denominated in any
Foreign Currency.  Each Notice of
Competitive Bid Borrowing shall be irrevocable and binding on such
Borrower.  The Agent or the Sub-Agent,
as the case may be, shall in turn promptly notify each Lender of each request
for a Competitive Bid Borrowing received by it from such Borrower by sending
such Lender a copy of the related Notice of Competitive Bid Borrowing.


 


(ii)                                  Each
Lender may, if, in its sole discretion, it elects to do so, irrevocably offer
to make one or more Competitive Bid Advances to the Borrower proposing the
Competitive Bid Borrowing as part of such proposed Competitive Bid Borrowing at
a rate or rates of interest specified by such Lender in its sole discretion, by
notifying the Agent or the Sub-Agent, as the case may be (which shall give
prompt notice thereof to such Borrower), (A) before 9:30 A.M.
(New York City time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances denominated in Dollars, (B) before 10:00 A.M. (New York City
time) three Business Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of LIBO Rate
Advances, denominated in Dollars, (C) before 12:00 noon (London time) on
the Business Day prior to the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of either Fixed Rate
Advances denominated in any Foreign Currency and (D) before 12:00 noon
(London time) on the third Business Day prior to the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances denominated in any Foreign Currency, of the
minimum amount and maximum amount of each Competitive Bid Advance which such
Lender would be willing to make as part of such proposed Competitive Bid
Borrowing (which amounts or the Equivalent thereof in Dollars, as the case may
be, of such proposed Competitive Bid may, subject to the proviso to the first sentence
of this Section 2.03(a), exceed such Lender’s Commitment, if any), the
rate or rates of interest therefor and such Lender’s Applicable Lending Office
with respect to such Competitive Bid Advance; provided that if the Agent
in its capacity as a Lender shall, in its sole discretion, elect to make any
such offer, it shall notify such Borrower of such offer at least 30 minutes
before the time and on the date on which notice of such election is to be given
to the Agent or to the Sub-Agent, as the case may be, by the other
Lenders.  If any Lender shall elect not
to make such an offer, such Lender shall so notify the Agent before
10:00 A.M. (New York City time) or the Sub-Agent before 12:00 noon
(London time) on the date on which notice of such election is to be given to
the Agent or to the Sub-Agent, as the case may be, by the other Lenders, and
such Lender shall not be obligated to, and shall not, make any Competitive Bid
Advance as part of such Competitive Bid Borrowing; provided that the
failure by any Lender to give such notice shall not cause such Lender to be
obligated to make any Competitive Bid Advance as part of such proposed
Competitive Bid Borrowing.


 


24

















 


(iii)                               The
Borrower proposing the Competitive Bid Borrowing shall, in turn,
(A) before 10:30 A.M. (New York City time) on the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Advances denominated in Dollars, (B) before
11:00 A.M. (New York City time) three Business Days before the date
of such proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances denominated in Dollars,
(C) before 3:00 P.M. (London time) on the Business Day prior to the date
of such proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of either Fixed Rate Advances denominated in any Foreign
Currency and (D) before 3:00 P.M. (London time) on the third Business Day
prior to the date of such Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances denominated in any
Foreign Currency, either:


 


(x)                                   cancel
such Competitive Bid Borrowing by giving the Agent notice to that effect, or


 


(y)                                 accept
one or more of the offers made by any Lender or Lenders pursuant to paragraph
(ii) above, in its sole discretion, by giving notice to the Agent or to the
Sub-Agent, as the case may be, of the amount of each Competitive Bid Advance
(which amount shall be equal to or greater than the minimum amount, and equal
to or less than the maximum amount, notified to such Borrower by the Agent or
the Sub-Agent, as the case may be, on behalf of such Lender for such
Competitive Bid Advance pursuant to paragraph (ii) above) to be made by
each Lender as part of such Competitive Bid Borrowing, and reject any remaining
offers made by Lenders pursuant to paragraph (ii) above by giving the
Agent or the Sub-Agent, as the case may be, notice to that effect.  Such Borrower shall accept the offers made
by any Lender or Lenders to make Competitive Bid Advances in order of the
lowest to the highest rates of interest offered by such Lenders.  If two or more Lenders have offered the same
interest rate, the amount to be borrowed at such interest rate will be
allocated among such Lenders in proportion to the amount that each such Lender
offered at such interest rate.


 


(iv)                              If
the Borrower proposing the Competitive Bid Borrowing notifies the Agent or the
Sub-Agent, as the case may be, that such Competitive Bid Borrowing is cancelled
pursuant to paragraph (iii)(x) above, the Agent or the Sub-Agent, as the
case may be, shall give prompt notice thereof to the Lenders and such
Competitive Bid Borrowing shall not be made.


 


(v)                                 If
the Borrower proposing the Competitive Bid Borrowing accepts one or more of the
offers made by any Lender or Lenders pursuant to paragraph (iii)(y) above,
the Agent or the Sub-Agent, as the case may be, shall in turn promptly notify
(A) each Lender that has made an offer as described in paragraph (ii)
above, of the date and aggregate amount of such Competitive Bid Borrowing and
whether or not any offer or offers made by such Lender pursuant to
paragraph (ii) above have been accepted by such Borrower, (B) each
Lender that is to make a Competitive Bid Advance as part of such Competitive
Bid Borrowing, of the amount of each Competitive Bid Advance to be made by such
Lender as part of such Competitive Bid Borrowing, and (C) each Lender that
is to make a Competitive Bid Advance as part of such Competitive Bid Borrowing,
upon receipt, that the Agent or the Sub-Agent, as the case may be, has received
forms of documents appearing to fulfill the applicable conditions set forth in
Article III.  Each Lender that is to
make a Competitive Bid Advance as part of such Competitive Bid Borrowing shall,
before 12:00 noon (New York City time), in the case of Competitive Bid
Advances to be denominated in Dollars or 11:00 A.M. (London time), in the case
of Competitive Bid Advances to be denominated in any Foreign Currency, on the
date of such Competitive Bid Borrowing specified in the notice received from
the Agent or the Sub-Agent, as the case may be, pursuant to clause (A) of
the preceding sentence or any later time when such Lender shall have received
notice from the Agent or the Sub-Agent, as the case may be pursuant to
clause (C) of the preceding sentence, make available for the account of
its Applicable Lending Office to the Agent (x) in the case of a
Competitive Bid Borrowing denominated in Dollars, at its address referred to in
Section 9.02(a), in same day funds, such Lender’s portion of such
Competitive Bid Borrowing in Dollars and (y) in the case of a Competitive
Bid Borrowing in a Foreign Currency, at the Payment Office for such Foreign
Currency as shall have been notified by the Agent to the Lenders prior thereto,
in same day funds, such Lender’s portion of such Competitive Bid Borrowing in
such Foreign Currency.  Upon fulfillment
of


 


25

















 


the applicable
conditions set forth in Article III and after receipt by the Agent of such
funds, the Agent will make such funds available to such Borrower at the
location specified by such Borrower in its Notice of Competitive Bid Borrowing.  Promptly after each Competitive Bid
Borrowing the Agent will notify each Lender of the amount and tenor of the
Competitive Bid Borrowing.


 


(vi)                              If
the Borrower proposing the Competitive Bid Borrowing notifies the Agent or the
Sub-Agent, as the case may be, that it accepts one or more of the offers made
by any Lender or Lenders pursuant to paragraph (iii)(y) above, such notice
of acceptance shall be irrevocable and binding on such Borrower.  Such Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in the related Notice of
Competitive Bid Borrowing for such Competitive Bid Borrowing the applicable
conditions set forth in Article III, including, without limitation, any
loss (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 Competitive Bid Advance to be made by such Lender as
part of such Competitive Bid Borrowing when such Competitive Bid Advance, as a
result of such failure, is not made on such date.


 


(b)                                 Each
Competitive Bid Borrowing shall be in an aggregate amount of $5,000,000 (or the
Equivalent thereof in any Foreign Currency, determined as of the time of the
applicable Notice of Competitive Bid Borrowing) or an integral multiple of
$1,000,000 (or the Equivalent thereof in any Foreign Currency, determined as of
the time of the applicable Notice of Competitive Bid Borrowing) in excess thereof
and, following the making of each Competitive Bid Borrowing, the Borrowers
shall be in compliance with the limitation set forth in the first sentence of
subsection (a) above.


 


(c)                                  Within
the limits and on the conditions set forth in this Section 2.03, any
Borrower may from time to time borrow under this Section 2.03, repay or
prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03, provided that a Competitive Bid Borrowing shall not
be made within three Business Days of the date of any other Competitive Bid
Borrowing.


 


(d)                                 Each
Borrower shall repay to the Agent for the account of each Lender that has made
a Competitive Bid Advance, on the maturity date of each Competitive Bid Advance
(such maturity date being that specified by such Borrower for repayment of such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and provided in the
Competitive Bid Note evidencing such Competitive Bid Advance), the then unpaid
principal amount of such Competitive Bid Advance.  Such Borrower shall have no right to prepay any principal amount
of any Competitive Bid Advance unless, and then only on the terms, specified by
such Borrower for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above
and set forth in the Competitive Bid Note evidencing such Competitive Bid
Advance.


 


(e)                                  Each
Borrower that has borrowed through a Competitive Bid Borrowing shall pay
interest on the unpaid principal amount of each Competitive Bid Advance from
the date of such Competitive Bid Advance to the date the principal amount of
such Competitive Bid Advance is repaid in full, at the rate of interest for
such Competitive Bid Advance specified by the Lender making such Competitive
Bid Advance in its notice with respect thereto delivered pursuant to
subsection (a)(ii) above, payable on the interest payment date or dates
specified by such Borrower for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above, as provided in the Competitive Bid Note
evidencing such Competitive Bid Advance. 
Upon the occurrence and during the continuance of an Event of Default,
such Borrower shall pay interest on the amount of unpaid principal of and
interest on each Competitive Bid Advance owing to a Lender, payable in arrears
on the date or dates interest is payable thereon, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be paid on
such Competitive Bid Advance under the terms of the Competitive Bid Note
evidencing such Competitive Bid Advance unless otherwise agreed in such
Competitive Bid Note.


 


(f)                                    The
Indebtedness of each Borrower resulting from each Competitive Bid Advance made
to such Borrower as part of a Competitive Bid Borrowing shall be evidenced by a
separate Competitive Bid Note of such Borrower payable to the order of the
Lender making such Competitive Bid Advance.


 


26

















 


SECTION 2.04. 
Issuance of and Drawings and Reimbursement Under Letters of Credit.  (a)  Request
for Issuance.  Each Letter of Credit
shall be issued upon notice, given not later than 11:00 A.M.
(New York City time) on the fifth Business Day prior to the date of the
proposed issuance of such Letter of Credit (or on such shorter notice as the
applicable Issuing Bank may agree), by any Borrower to any Issuing Bank, and
such Issuing Bank shall give the Agent prompt notice thereof by facsimile.  Each such notice of issuance of a Letter of
Credit (a “Notice
of Issuance”) shall be by telephone, confirmed promptly in writing,
or facsimile, specifying therein the requested (A) date of such issuance
(which shall be a Business Day), (B) Available Amount of such Letter of
Credit, (C) expiration date of such Letter of Credit (which shall not be
later than the earlier of the Termination Date or one year after the date of
issuance thereof; provided that any Letter of Credit which provides for automatic
one-year extension(s) of such expiration date shall be deemed to comply with
the foregoing requirement if the Issuing Bank has the unconditional right to
prevent any such automatic extension from taking place and each Issuing Bank
hereby agrees to exercise such right to prevent any such automatic extension
for each Letter of Credit outstanding after the Termination Date),
(D) name and address of the beneficiary of such Letter of Credit and
(E) form of such Letter of Credit, and shall be accompanied by such
customary application and agreement for letter of credit as such Issuing Bank
may specify to the Borrower requesting such issuance for use in connection with
such requested Letter of Credit (a “Letter of Credit Agreement”).  If the requested form of such Letter of
Credit is acceptable to such Issuing Bank in its sole discretion, such Issuing
Bank will, upon fulfillment of the applicable conditions set forth in
Article III, make such Letter of Credit available to the Borrower
requesting such issuance at its office referred to in Section 9.02 or as
otherwise agreed with such Borrower in connection with such issuance.  In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.


 


(b)                                 Participations.  By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, such
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
such Issuing Bank, a participation in such Letter of Credit equal to such
Lender’s Ratable Share of the Available Amount of such Letter of Credit.  Each Borrower hereby agrees to each such
participation.  In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally
agrees to pay to the Agent, for the account of such Issuing Bank, such Lender’s
Ratable Share of each drawing made under a Letter of Credit funded by such
Issuing Bank and not reimbursed by the applicable Borrower on the date made, or
of any reimbursement payment required to be refunded to any Borrower for any
reason.  Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of the Revolving Credit Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.  Each Lender
further acknowledges and agrees that its participation in each Letter of Credit
will be automatically adjusted to reflect such Lender’s Ratable Share of the
Available Amount of such Letter of Credit at each time such Lender’s Revolving
Credit Commitment is amended pursuant to the operation of Section 2.18, an
assignment in accordance with Section 9.07 or otherwise pursuant to this
Agreement.


 


(c)                                  Drawing
and Reimbursement.  The payment by
an Issuing Bank of a draft drawn under any Letter of Credit shall constitute
for all purposes of this Agreement the making by such Issuing Bank of an
Advance, which shall be a Base Rate Advance, in the amount of such draft.  Each Issuing Bank shall give prompt notice
(and such Issuing Bank will use its commercially reasonable efforts to deliver
such notice within one Business Day) of each drawing under any Letter of Credit
issued by it to the Company, the applicable Borrower (if not the Company) and
the Agent.  Upon written demand by such
Issuing Bank, with a copy of such demand to the Agent and the Company, each
Lender shall pay to the Agent such Lender’s Ratable Share of such outstanding
Advance, by making available for the account of its Applicable Lending Office
to the Agent for the account of such Issuing Bank, by deposit to the Agent’s
Account, in same day funds, an amount equal to the portion of the outstanding
principal amount of such Advance to be funded by such Lender.  Each Lender acknowledges and agrees that its
obligation to make Advances pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.  Promptly after receipt
thereof, the Agent shall transfer such funds to such Issuing Bank.  Each Lender agrees to fund its Ratable Share
of an outstanding Advance on (i) the Business Day on


 


27

















 


which demand
therefor is made by such Issuing 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.  If and to the extent that any Lender shall
not have so made the amount of such 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 of demand by any such Issuing Bank
until the date such amount is paid to the Agent, at the Federal Funds Rate for
its account or the account of such Issuing Bank, as applicable.  If such Lender shall pay to the Agent such
amount for the account of any such Issuing Bank on any Business Day, such
amount so paid in respect of principal shall constitute a Revolving Credit
Advance made by such Lender on such Business Day for purposes of this
Agreement, and the outstanding principal amount of the Revolving Credit Advance
made by such Issuing Bank shall be reduced by such amount on such Business Day.


 


(d)                                 Letter
of Credit Reports.  Each Issuing
Bank shall furnish (A) to the Agent (which shall promptly notify the
Lenders) on the first Business Day of each month a written report summarizing
issuance and expiration dates of Letters of Credit during the preceding month
and drawings during such month under all Letters of Credit and (B) to the
Agent (with a copy to the Company) on the first Business Day of each calendar
quarter a written report setting forth the average daily aggregate Available
Amount during the preceding calendar quarter of all Letters of Credit.


 


(e)                                  Failure
to Make Advances.  The failure of
any Lender to make the Advance to be made by it on the date specified in
Section 2.04(c) shall not relieve any other Lender of its obligation hereunder
to make its Advance on such date, but no Lender shall be responsible for the
failure of any other Lender to make the Advance to be made by such other Lender
on such date.


 


SECTION 2.05. 
Fees.  (a)  Facility Fee.  The Company agrees to pay to the Agent for
the account of each Lender a facility fee on the aggregate amount of such
Lender’s Revolving Credit 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, 2003, and on the Termination Date.


 


(b)                                 Letter
of Credit Fees.  (i)  Each Borrower shall pay to the Agent for the
account of each Lender a commission on such Lender’s Ratable Share of the
average daily aggregate Available Amount of all Letters of Credit issued at the
request of such Borrower and outstanding from time to time at a rate per annum
equal to the Applicable Margin for Eurocurrency Rate Advances in effect from
time to time during such calendar quarter, payable in arrears quarterly on the
third Business Day after the last Business Day of each March, June, September
and December, commencing with the quarter ended December 31, 2003, and on and
after the Termination Date payable upon demand; provided that such
commission shall be 2% above the Applicable Margin in effect upon the
occurrence and during the continuation of an Event of Default if the Borrowers
are required to pay default interest pursuant to Section 2.08(b).


 


(ii)                                  Each
Borrower shall pay to each Issuing Bank for its own account such reasonable
fees as may from time to time be agreed in writing between the Company and such
Issuing Bank.


 


(c)                                  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 2.06. 
Termination or Reduction of the Commitments.  (a)  Termination
or Reduction by the Company.  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.


 


(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”):


 


28

















 


(i)                                     either
(A) a court having jurisdiction over the Company issues a ruling in response to
a motion to approve or disapprove the Settlement Agreement that does not
approve the Settlement Agreement (such ruling 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 (B) 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) or by an Issuing Bank or a Lender
pursuant to Section 2.04(c)) and of the Issuing Banks to issue Letters of
Credit to be terminated, whereupon the same shall forthwith terminate, (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 any payable, without presentment, demand, protest or further notice of any
kind, all of which are expressly hereby waived by the Borrowers and (z) make
demand on the Company to pay to the Agent on behalf of the Lenders in same day
funds for deposit in the L/C Cash Deposit Account, an amount equal to the
aggregate Available Amount of all Letters of Credit then outstanding or make
such other reasonable arrangements in respect of outstanding Letters of Credit
as shall be acceptable to the Required Lenders.  Upon the drawing of any Letter of Credit, to the extent funds are
on deposit in the L/C Cash Deposit Account, such funds shall be applied to
reimburse the Issuing Banks to the extent permitted by applicable law, and if so applied, then such
reimbursement shall be deemed a repayment of the corresponding Advance in
respect of such Letter of Credit.  After all such Letters of Credit shall have
expired or been fully drawn upon and all other obligations of the Borrowers
thereunder shall have been paid in full, the balance, if any, in such L/C Cash
Deposit Account shall be promptly returned to the Company.


 


SECTION 2.07. 
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.


 


(c)                                  Letter
of Credit Reimbursements.  The
obligation of any Borrower under this Agreement, any Letter of Credit Agreement
and any other agreement or instrument, in each case, to repay any Revolving
Credit Advance that results from payment of a drawing under a Letter of Credit
shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement, such Letter of Credit Agreement
and such other agreement or instrument under all circumstances, including,
without limitation, the following circumstances (it being understood that any
such payment by a Borrower is without prejudice to, and does not constitute a
waiver of, any rights such Borrower might have or might acquire as a result of
the payment by any Issuing Bank of any draft or the reimbursement by the
Borrower thereof):


 


29

















 


(i)                                     any
lack of validity or enforceability of this Agreement, any Note, any Letter of
Credit Agreement, any Letter of Credit or any other agreement or instrument
relating thereto (all of the foregoing being, collectively, the “L/C Related
Documents”);


 


(ii)                                  any
change in the time, manner or place of payment of any Letter of Credit;


 


(iii)                               the
existence of any claim, set-off, defense or other right that any Borrower may
have at any time against any beneficiary or any transferee of a Letter of
Credit (or any Persons for which any such beneficiary or any such transferee
may be acting), any Issuing Bank, the Agent, any Lender or any other Person,
whether in connection with the transactions contemplated by the L/C Related
Documents or any unrelated transaction;


 


(iv)                              any
statement or any other document presented under a Letter of Credit proving to
be forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect;


 


(v)                                 payment
by any Issuing Bank under a Letter of Credit against presentation of a draft or
certificate that does not comply with the terms of such Letter of Credit;


 


(vi)                              any
exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any guarantee, for all or
any of the obligations of any Borrower in respect of the L/C Related Documents;
or


 


(vii)                           any
other circumstance or happening whatsoever, whether or not similar to any of
the foregoing that might, but for the provisions of this Section, constitute a
legal or equitable discharge of a Borrower’s obligations hereunder.


 


SECTION 2.08. 
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:


 


(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 plus (z) the Applicable Utilization Fee 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 plus (z) the Applicable Utilization Fee 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


 


30

















 


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 2.09. 
Interest Rate Determination. 
(a)  Each Reference Bank agrees
to furnish to the Agent timely information for the purpose of determining each
Eurocurrency Rate and each LIBO 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 2.08(a)(i) or (ii), and the rate, if any, furnished by each
Reference Bank for the purpose of determining the interest rate under
Section 2.08(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 any Committed Currency,
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 such Committed Currency 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 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 a
Committed Currency, 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 a Committed Currency, 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 any Committed
Currency, be exchanged for an Equivalent


 


31

















 


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
Moneyline Telerate Markets Page 3750 is unavailable and fewer than two
Reference Banks furnish timely information to the Agent for determining the
Eurocurrency Rate or LIBO Rate for any Eurocurrency Rate Advances or LIBO Rate
Advances, as the case may be,


 


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


 


(ii)                                  with
respect to Eurocurrency Rate Advances, each such 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 any
Committed Currency, be prepaid by the applicable Borrower or be automatically
exchanged for an Equivalent amount of Dollars and be Converted into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will continue as a
Base Rate Advance), and


 


(iii)                               the
obligation of the Lenders to make Eurocurrency Rate Advances or LIBO 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 2.10. 
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 2.09 and 2.13, 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(b) and
no Conversion of any Revolving Credit Advances shall result in more separate
Revolving Credit Borrowings than permitted under Section 2.02(b).  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.


 


SECTION 2.11. 
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 sum of aggregate principal amount of all
Advances denominated in Dollars plus the aggregate principal amount of all
Letters of Credit denominated in Dollars then outstanding plus (B) the


 


32

















 


Equivalent in Dollars (determined on the third
Business Day prior to such interest payment date) of the sum of the aggregate
principal amount of all Advances denominated in Foreign Currencies plus the
aggregate principal amount of all Letters of Credit denominated in Foreign
Currencies then outstanding exceeds 105% of the aggregate Revolving Credit
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 (or deposit an amount in the L/C Cash Deposit
Account) sufficient to reduce such sum (calculated on the basis of the
Available Amount of Letters of Credit being reduced by the amount in the L/C Cash
Deposit Account) to an amount not to exceed 100% of the aggregate Revolving
Credit 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 2.11(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 2.11(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 or a
LIBO 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 2.11(b) to the Company and
the Lenders.


 


SECTION 2.12. 
Increased Costs.  (a)  If, due to either (i) the introduction
of or any change in or in the interpretation of any law or regulation or
(ii) the compliance with any guideline or request from any central bank or
other governmental authority 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 or LIBO Rate Advances or agreeing to issue or of issuing or
maintaining or participating in Letters of Credit (excluding for purposes of
this Section 2.12 any such increased costs resulting from (i) Taxes or Other
Taxes (as to which Section 2.15 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender 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 or issue or participate
in letters of credit 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 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.


 


SECTION 2.13. 
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 or LIBO Rate Advances in Dollars or any Committed
Currency or to fund or maintain Eurocurrency Rate Advances in Dollars or any
Committed Currency or LIBO Rate Advances in Dollars or any Foreign Currency
hereunder, (a) each Eurocurrency Rate Advance or LIBO Rate Advance, as the
case may be, in the applicable currency will automatically, upon such demand,
Convert into a Base Rate Advance or an Advance that bears interest at the rate
set


 


33

















 


forth in Section 2.08(a)(i), as the case may be, (i)
if such Eurocurrency Rate Advance or LIBO Rate Advance is denominated in
Dollars, be Converted into a Base Rate Advance or an Advance that bears
interest at the rate set forth in Section 2.08(a)(i), as the case may be,
and (ii) if such Eurocurrency Rate Advance or LIBO Rate Advance is
denominated in any Foreign Currency, be exchanged into an Equivalent amount of
Dollars and be Converted into a Base Rate Advance or an Advance that bears
interest at the rate set forth in Section 2.08(a)(i), as the case may be,
and (b) the obligation of the Lenders to make Eurocurrency Rate Advances
or LIBO 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 2.14. 
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 a Foreign Currency),
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 U.S. Dollars
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 a Foreign Currency, irrespective of any right of
counterclaim or set-off, not later than 11:00 A.M. (at the Payment Office
for such Foreign Currency) on the day when due in such Foreign Currency to the
Agent, by deposit of such funds to 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, fees or commissions ratably (other than amounts payable
pursuant to Section 2.03, 2.06(b)(ii), 2.12, 2.15 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
and Letter of Credit commissions shall be made by the Agent on the basis of a
year of 360 days and computations in respect of Competitive Bid Advances shall
be made by the Agent or the Sub-Agent, as the case may be, as specified in the
applicable Notice of Competitive Bid Borrowing (or, in each case of Advances
denominated in Foreign Currencies where market practice differs, in accordance
with market practice), 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, fees or commissions are payable.  Each determination by the Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.


 


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


 


(e)                                  Unless
the 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


 


34

















 


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 Foreign
Currencies.


 


(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
2.14, the Agent shall be entitled to convert or exchange such funds into
Dollars or into a Foreign Currency or from Dollars to a Foreign Currency or
from a Foreign Currency 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 2.14; 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 2.14(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 2.14(f).


 


SECTION 2.15. 
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 2.14
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 2.15)
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 by any jurisdiction on amounts payable
under this Section 2.15) 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


 


35

















 


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 2.15(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 2.15(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 2.16. 
Sharing of Payments, Etc. 
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 2.12, 2.15 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 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 2.16 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of such
Borrower in the amount of such participation.


 


SECTION 2.17. 
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


 


36

















 


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 Revolving Credit 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 Revolving Credit Note payable to the order
of such Lender in a principal amount up to the Revolving Credit 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 2.18. 
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.


 


ARTICLE III


 


CONDITIONS TO
EFFECTIVENESS AND LENDING


 


SECTION 3.01. 
Conditions Precedent to Effectiveness of Sections 2.01 and 2.03.  Sections 2.01 and 2.03 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.


 


(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:


 


37

















 


(i)                                     The
Revolving Credit Notes to the order of the Lenders to the extent requested by
any Lender pursuant to Section 2.17.


 


(ii)                                  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), in
each case as amended, the “Subsidiary Guaranty”), duly executed by each
of the Domestic Subsidiaries listed on Schedule 4.01(j) hereto.


 


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


 


(iv)                              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.


 


(v)                                 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.


 


(vi)                              A
favorable opinion of Skadden, Arps, Slate, Meagher & Flom LLP, Linklaters
Loesch, counsel for the Loan Parties and Lux SCA, respectively, substantially
in the form of Exhibits E-1, E-2 and E-3 hereto, respectively.


 


(vii)                           A
favorable opinion of Shearman & Sterling LLP, counsel for the Agent,
in form and substance satisfactory to the Agent.


 


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 2.17.


 


(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.


 


(f)                                    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 request.


 


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(g)                                 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, Each Swing
Line Borrowing and Each Issuance. 
The obligation of each Lender to make an Advance (other than (x) a
Competitive Bid Advance, (y) a Swing Line Advance made by a Lender pursuant to
Section 2.02(b) and (z) an Advance made by any Issuing Bank or any Lender
pursuant to Section 2.04(c)) and the obligations of each Issuing Bank to issue
a Letter of Credit shall be subject to the conditions precedent that the
Effective Date shall have occurred and on the date of such Borrowing or issuance
(a) the following statements shall be true (and each of the giving of the
applicable Notice of Revolving Credit Borrowing, Notice of Swing Line
Borrowing, Notice of Issuance and the acceptance by the Borrower requesting
such Borrowing of the proceeds of such Borrowing or such Letter of Credit shall
constitute a representation and warranty by such Borrower that on the date of
such Borrowing or issuance such statements are true):


 


(i)                                     the
representations and warranties contained in Section 4.01 are correct on
and as of such date, before and after giving effect to such Borrowing or
issuance 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
issuance 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.


 


SECTION 3.04. 
Conditions Precedent to Each Competitive Bid Borrowing.  The obligation of each Lender that is to
make a Competitive Bid Advance on the occasion of a Competitive Bid Borrowing
to make such Competitive Bid Advance as part of such Competitive Bid Borrowing
is subject to the conditions precedent that (i) the Agent shall have
received the written confirmatory Notice of Competitive Bid Borrowing with
respect thereto, (ii) on or before the date of such Competitive Bid
Borrowing, but prior to such Competitive Bid Borrowing, the Agent shall have
received a Competitive Bid Note payable to the order of such Lender for each of
the one or more Competitive Bid Advances to be made by such Lender as part of
such Competitive Bid Borrowing, in a principal amount equal to the principal
amount of the Competitive Bid Advance to be evidenced thereby and otherwise on
such terms as were agreed to for such Competitive Bid Advance in accordance
with Section 2.03, and (iii) on the date of such Competitive Bid Borrowing
the following statements shall be true (and each of the giving of the
applicable Notice of Competitive Bid Borrowing and the acceptance by the
Borrower requesting such Competitive Bid Borrowing of the proceeds of such
Competitive Bid Borrowing shall constitute a representation and warranty by
such Borrower that on the date of such Competitive Bid Borrowing such
statements are true):


 


(a)                                  the
representations and warranties contained in Section 4.01 are correct on
and as of the date of such Competitive Bid Borrowing, before and after giving
effect to such Competitive Bid Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, 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 Competitive Bid
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.


 


SECTION 3.05. 
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


 


39

















 


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 has the corporate or
comparable power and authority to execute, deliver and perform the terms and
provisions of 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
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 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 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, 2002 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


 


40

















 


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, 2003, and the related
Consolidated statements of income or operations, and cash flows for the nine
months ended on September 30, 2003 (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, 2002 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 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 or Letter
of Credit 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 $25,000,000; 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 $25,000,000, 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),


 


41

















 


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 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)                               Public Utility Holding Company Act. 
Neither the Company nor any of its Subsidiaries is a “holding company,”
or a “subsidiary company” of a “holding company,” or an “affiliate” of a
“holding company” or of a “subsidiary company” of a “holding company” within
the meaning of the Public Utility Holding Company Act of 1935, as amended.


 


(n)                                 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.


 


(o)                                 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.


 


(p)                                 Solvency.  On the date hereof, each of SAC(US)
individually, and 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.


 


42

















 


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.


 


(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
independent certified public accountants 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.


 


43

















 


(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
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 $25,000,000 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.


 


44

















 


(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)                                 Additional Subsidiary Guarantors.  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 and
(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, 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)(ii), (iv) and (v) if such
Subsidiary had been subject thereto 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 certificate of incorporation or by-laws.


 


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


 


(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;


 


45

















 


(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;


 


(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 $235,000,000 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);


 


46

















 


(ii)                                  Indebtedness
existing as of September 30, 2003 or incurred pursuant to commitments or
lines of credit in effect as of September 30, 2003 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;


 


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


 


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


 


(vii)                           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 $235,000,000 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), (v) and (vi) 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


 


47

















 


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 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.


 


48

















 


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 ended
during the periods set forth below to be more than ratio set opposite such
period:


 


	
  Period

  	
   

  	
  Leverage
  Ratio

  	
   

  
	
  Until June 30,
  2004

  	
   

  	
  4.50 to 1.0

  	
   

  
	
  June 30, 2004 to
  June 30, 2005

  	
   

  	
  4.25 to 1.0

  	
   

  
	
  On and after
  June 30, 2005

  	
   

  	
  4.00 to 1.0

  	
   

  



 


(c)                                  Liquidity.  Until the Release Date, the Company will not
permit its Minimum Liquidity to less than $250,000,000 and will not permit its
Minimum Liquidity in the form of cash held at the Company and its Domestic
Subsidiaries to be less than $100,000,000.


 


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


 


(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


 


49

















 


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 $25,000,000 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 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 $25,000,000; 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 $25,000,000 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
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;


 


50

















 


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) or by an Issuing Bank or a Lender pursuant to Section 2.04(c))
and of the Issuing Banks to issue Letters of Credit 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) or by an Issuing Bank or a Lender pursuant
to Section 2.04(c)) and of the Issuing Banks to issue Letters of Credit 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.


 


SECTION 6.02. 
Actions in Respect of the Letters of Credit upon Default.  If any Event of Default shall have occurred
and be continuing, the Agent may with the consent, or shall at the request, of
the Required Lenders, irrespective of whether it is taking any of the actions
described in Section 6.01 or otherwise, make demand upon the Company to, and
forthwith upon such demand the Company will, (a) pay to the Agent on behalf of
the Lenders in same day funds at the Agent’s office designated in such demand,
for deposit in the L/C Cash Deposit Account, an amount equal to the aggregate
Available Amount of all Letters of Credit then outstanding or (b) make such
other reasonable arrangements in respect of the outstanding Letters of Credit
as shall be acceptable to the Required Lenders; 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 the Borrowers to pay to the Agent on behalf of the Lenders in
same day funds at the Agent’s office designated in such demand, for deposit in
the L/C Cash Deposit Account, an amount equal to the aggregate Available Amount
of all Letters of Credit then outstanding 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.  If at any time the Agent reasonably
determines that any funds held in the L/C Cash Deposit Account are subject to
any right or interest of any Person other than the Agent and the Lenders or
that the total amount of such funds is less than the aggregate Available Amount
of all Letters of Credit, the Borrowers will, forthwith upon demand by the
Agent, pay to the Agent, as additional funds to be deposited and held in the
L/C Cash Deposit Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the
L/C Cash Deposit Account that are free and clear of any such right and
interest.  Upon the drawing of any
Letter of Credit, to the extent funds are on deposit in the L/C Cash Deposit
Account, such funds shall be applied to reimburse the Issuing Banks to the
extent permitted by applicable law, and if so applied, then such reimbursement
shall be deemed a repayment of the corresponding Advance in respect of such
Letter of Credit.  After all such
Letters of Credit shall have expired or been fully drawn upon and all other
obligations of the Borrowers hereunder and under the Notes shall have been paid
in full, the balance, if any, in such L/C Cash Deposit Account shall be
promptly returned to the Company.


 


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


 


51

















 


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
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


 


52

















 


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.


 


(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:


 


53

















 


(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.


 


(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 Issuing 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


 


54

















 


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 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. 
Citibank and Affiliates. 
With respect to its Commitments, the Advances made by it and the Note
issued to it, Citibank 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 Citibank in its individual capacity.  Citibank 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 Citibank 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


 


55

















 


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)                                 Each
Lender severally agrees to indemnify the Issuing Banks (to the extent not
promptly reimbursed by the Company) 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 any such Issuing Bank in
any way relating to or arising out of this Agreement or any action taken or
omitted by such Issuing Bank hereunder or in connection herewith; provided, however, that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from such Issuing
Bank’s gross negligence or willful misconduct. 
Without limitation of the foregoing, each Lender agrees to reimburse any
such Issuing Bank promptly upon demand for its Ratable Share (determined at the
time indemnification is sought hereunder) of any costs and expenses (including,
without limitation, fees and expenses of counsel) payable by the Company under
Section 9.04, to the extent that such Issuing Bank is not promptly reimbursed
for such costs and expenses by the Company. 
In the case of any investigation, litigation or proceeding to which this
Section 8.05(b) applies, such indemnity shall be effective whether any such
investigation, litigation or proceeding is brought by an Issuing Bank, any
Lender or a third party.


 


(c)                                  The
failure of any Lender to reimburse the Agent or any Issuing Bank 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 or any Issuing Bank for its Ratable
Share of such amount, but no Lender shall be responsible for the failure of any
other Lender to reimburse the Agent or any Issuing Bank 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. 
Each of the Agent and each Issuing Bank 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. 
Sub-Agent.  The Sub-Agent
has been designated under this Agreement to carry out duties of the Agent.  The Sub-Agent shall be subject to each of the
obligations in this Agreement to be performed by the Sub-Agent, and each of the
Borrowers and the Lenders agrees that the Sub-Agent shall be entitled to
exercise each of the rights and shall be entitled to each of the benefits of
the Agent under this Agreement as relate to the performance of its obligations
hereunder.


 


SECTION 8.08. 
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


 


56

















 


MISCELLANEOUS


 


SECTION 9.01.  Amendments, Etc.  No
amendment or waiver of any provision of this Agreement or any other Loan
Document (other than the Competitive Bid Notes), 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 Revolving Credit 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 2.06(a) that
the reductions of Commitments be applied ratably or (g) 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, (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 capacities as such under this
Agreement and (z) no amendment, waiver or consent shall, unless in writing and
signed by the Issuing Banks in addition to the Lenders required above to take
such action, adversely affect the rights or obligations of the Issuing Banks in
their capacities 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 Park 80 East,
Saddle Brook, New Jersey 07663, 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 Two Penns Way, New Castle, Delaware 19720, Attention: Bank Loan
Syndications Department; 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 Citibank 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 oploanswebadmin@citigroup.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, “e-Disclosure”,
the Agent’s internet delivery system that is part of Fixed Income Direct,
Global Fixed Income’s primary web portal, 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-


 


57

















 


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 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 or
LIBO 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 2.09, 2.11 or 2.13,
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


 


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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 2.09, 2.11 or 2.13,
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 Committed
Currency purchased by any Lender in the case of a Conversion or exchange of
Advances in the case of Section 2.09 or 2.13 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 2.12, 2.14(f), 2.15 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.


 


SECTION 9.06. 
Binding Effect.  This
Agreement shall become effective (other than Sections 2.01 and 2.03, 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 2.12 or 2.15) 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 Revolving Credit Commitment, its
Unissued Letter of Credit Commitment, the Revolving Credit Advances owing to
it, its participations in Letters of Credit and the Revolving Credit 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 (other than any right to make Competitive
Bid Advances, Competitive Bid Advances owing to it and Competitive Bid Notes),
(ii) except in the case of an assignment to a Person that, immediately
prior to such assignment, was a Lender or an assignment of all of a Lender’s
rights and obligations under this Agreement, the amount of (x) the Revolving
Credit 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 and (y) the Unissued Letter
of Credit Commitment of the assigning Lender being assigned pursuant to each
such assignment (determined on the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $1,000,000 or an
integral thereof unless, in each case, the applicable Borrower 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


 


59

















 


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 Revolving Credit 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 2.12, 2.15 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, 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
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
Revolving Credit 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


 


60

















 


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’
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.  Notwithstanding anything herein to the
contrary, the Company, the Agent and the Lenders may disclose to any and all
Persons, without limitation of any kind, the U.S. tax treatment and tax
structure of the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to the Company,
the Agent or any Lender relating to such U.S. tax treatment and tax structure.


 


SECTION 9.09. 
Designated Subsidiaries. 
(a)  Designation.  The Company may 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


 


61

















 


“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. 
The Agent shall promptly notify each Lender of each such designation by
the Company and the identity of the respective Subsidiary.


 


(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 Competitive Bid Borrowing, Notice of
Revolving Credit Borrowing, Notice of Issuance or Letter of Credit in respect
of such Designated Subsidiary is outstanding, such Subsidiary’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 or issue any Letter of Credit 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.


 


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 Citibank’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 a Foreign Currency 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 such Foreign Currency with Dollars at Citibank’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


 


62

















 


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 or any Designated Subsidiary 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 and each Designated Subsidiary 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
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. 
Substitution of Currency. 
If a change in any Foreign Currency occurs pursuant to any applicable
law, rule or regulation of any governmental, monetary or multi-national
authority, this Agreement (including, without limitation, the definitions of
Eurocurrency Rate and LIBO Rate) will be amended to the extent determined by
the Agent (acting reasonably and in consultation with the Company) to be
necessary to reflect the change in currency and to put the Lenders and the
Borrowers in the same position, so far as possible, that they would have been
in if no change in such Foreign Currency had occurred.


 


SECTION 9.15. 
No Liability of the Issuing Banks.  None of the Agent, the Lenders nor any Issuing Bank, nor any of
their Affiliates, or the respective directors, officers, employees, agents and
advisors of such Person or such Affiliate, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder,
or any error, omission, interruption, loss or delay in transmission or delivery
of any draft, notice or other communication under or relating to any Letter of
Credit (including any document required to make a drawing thereunder), any
error in interpretation of technical terms or any consequence arising from
causes beyond the control of the applicable Issuing Bank; provided that
the foregoing shall not be construed to excuse any Issuing Bank from liability
to the applicable Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Borrowers to the extent permitted by applicable law) suffered by such Borrower
that are caused by such Issuing Bank’s failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof or any failure to honor a Letter of Credit
where such Issuing Bank is, under applicable law, required to honor it.  The
parties hereto expressly agree that, as long as the Issuing Bank has not acted with gross negligence or
willful misconduct, such Issuing Bank shall be deemed to have exercised care in
each such determination.  In furtherance
of the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, an Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation or refuse to accept and make
payment upon such documents if such documents are not in strict compliance with
the terms of such Letter of Credit.


 


SECTION 9.16. 
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.


 


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SECTION 9.17.  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:
  VP & CFO

  
	
   

  	
   

  
	
   

  	
  SEALED AIR CORPORATION
  (US)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ David H. Kelsey

  	
   

  
	
   

  	
   Name:
  David H. Kelsey

  
	
   

  	
   Title:
  VP & CFO

  
	
   

  	
   

  
	
   

  	
  CRYOVAC, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ David H. Kelsey

  	
   

  
	
   

  	
   Name:
  David H. Kelsey

  
	
   

  	
   Title:
  VP & CFO

  
	
   

  	
   

  
	
   

  	
  SEALED AIR LUXEMBOURG
  S.C.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ H. Katherine White

  	
   

  
	
   

  	
   Name:
  H. Katherine White

  
	
   

  	
   Title:
  Managing Director

  
	
   

  	
   

  
	
   

  	
  CITIBANK,
  N.A.,

  as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Hugo Arias

  	
   

  
	
   

  	
   Name:
  Hugo Arias

  
	
   

  	
   Title:
  VP

  



 


64

















 


	
  Letter of Credit
  Commitment

  	
   

  
	
   

  	
   

  
	
  $25,000,000

  	
  CITIBANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hugo Arias

  	
   

  
	
   

  	
   Name:
  Hugo Arias

  
	
   

  	
   Title:  VP

  
	
   

  	
   

  
	
  $25,000,000          Total
  of the Letter of Credit Commitments

  
	
   

  	
   

  
	
  Initial Lenders

  
	
   

  	
   

  
	
  Revolving Credit
  Commitment

  	
   

  
	
   

  	
   

  
	
  $35,000,000

  	
  CITIBANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hugo Arias

  	
   

  
	
   

  	
   Name:
  Hugo Arias

  
	
   

  	
   Title:  VP

  
	
   

  	
   

  
	
  Syndication
  Agent

  
	
   

  	
   

  
	
  $35,000,000

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Wendy J.
  Gorman

  	
   

  
	
   

  	
   Name:
  Wendy J. Gorman

  
	
   

  	
   Title:
  Managing Director

  
	
   

  	
   

  
	
  Co-Documentation
  Agents

  
	
   

  	
   

  
	
  $30,000,000

  	
  ABN AMRO BANK N.V.

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Eric
  Oppenheimer

  	
   

  
	
   

  	
   Name:
  Eric Oppenheimer

  
	
   

  	
   Title:
  VP

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Michele R.
  Costello

  	
   

  
	
   

  	
   Name:
  Michele R. Costello

  
	
   

  	
   Title:
  Asst. VP

  
	
   

  	
   

  
	
  $30,000,000

  	
  BNP PARIBAS

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Nanette
  Baudon

  	
   

  
	
   

  	
   Name:
  VP

  
	
   

  	
   Title:

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Simone
  Vinocour McKeever

  	
   

  
	
   

  	
   Name:  Simone Vinocour McKeever

  
	
   

  	
   Title:
  VP

  



 


65

















 


	
  $30,000,000

  	
  CREDIT LYONNAIS NEW
  YORK BRANCH

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ James Gibson

  	
   

  
	
   

  	
   Name:
  James Gibson

  
	
   

  	
   Title:
  Sr. VP

  
	
   

  	
   

  
	
   

  	
  Co-Agents

  
	
   

  	
   

  
	
  $22,000,000

  	
  BANK OF
  TOKYO-MITSUBISHI TRUST COMPANY

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Spencer
  Hughes

  	
   

  
	
   

  	
   Name:
  Spencer Hughes

  
	
   

  	
   Title:
  VP

  
	
   

  	
   

  
	
  $22,000,000

  	
  CREDIT SUISSE FIRST
  BOSTON

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Karl Studer

  	
   

  
	
   

  	
   Name:
  Karl Studer

  
	
   

  	
   Title:
  Director

  
	
   

  	
   

  
	
  $22,000,000

  	
  FLEET NATIONAL BANK

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Marwan
  Isbiah

  	
   

  
	
   

  	
   Name:
  Marwan Isbiah

  
	
   

  	
   Title:
  Director

  
	
   

  	
   

  
	
  $22,000,000

  	
  MORGAN STANLEY BANK

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Jaap L.
  Tonckens

  	
   

  
	
   

  	
   Name:
  Jaap L. Tonckens

  
	
   

  	
   Title:
  VP

  
	
   

  	
   

  
	
  $22,000,000

  	
  SUMITOMO MITSUI BANKING
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Peter R. C.
  Knight

  	
   

  
	
   

  	
   Name:
  Peter R. C. Knight

  
	
   

  	
   Title:
  Joint General Manager

  
	
   

  	
   

  
	
   

  	
  Lenders

  
	
   

  	
   

  
	
  $10,000,000

  	
  ALLIED IRISH BANK

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Jim Denvemy

  	
   

  
	
   

  	
   Name:
  Jim Denvemy

  
	
   

  	
   Title:
  Executive VP

  
	
   

  	
   

  
	
  $10,000,000

  	
  BANCO BILBAO VIZCAYA
  ARGTENTARIA, S.A.

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Jay Devit

  	
   

  
	
   

  	
   Name:
  Jay Devit

  
	
   

  	
   Title:
  VP

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Salustiano
  Machado

  	
   

  
	
   

  	
   Name:
  Salustiano Machado

  
	
   

  	
   Title:
  VP

  
					



 


66

















 


	
  $10,000,000

  	
  JPMORGAN CHASE BANK

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Peter S.
  Predun

  	
   

  
	
   

  	
   Name:
  Peter S. Predun

  
	
   

  	
   Title:
  VP

  
	
   

  	
   

  
	
  $10,000,000

  	
  MIZUHO CORPORATE BANK
  LTD.

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Greg Botshon

  	
   

  
	
   

  	
   Name:
  Greg Botshon

  
	
   

  	
   Title:
  VP

  
	
   

  	
   

  
	
  $10,000,000

  	
  NATIONAL CITY BANK

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Tara M.
  Mandforth

  	
   

  
	
   

  	
   Name:
  Tata M. Mandforth

  
	
   

  	
   Title:
  VP

  
	
   

  	
   

  
	
  $10,000,000

  	
  COOPERATIEVE CENTRALE
  RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK INTERNATIONAL”, NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Michalene
  Donegan

  	
   

  
	
   

  	
   Name:
  Michalene Donegan

  
	
   

  	
   Title:
  VP

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Brett
  Delfino

  	
   

  
	
   

  	
   Name:
  Brett Delfino

  
	
   

  	
   Title:
  Executive Director

  
	
   

  	
   

  
	
  $10,000,000

  	
  SAN PAOLO IMI SPA

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Renato
  Carducci

  	
   

  
	
   

  	
   Name:
  Renato Carducci

  
	
   

  	
   Title:
  General Manager

  
	
   

  	
   

  
	
  $10,000,000

  	
  SUNTRUST BANK

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Frank A. Coe

  	
   

  
	
   

  	
   Name:
  Frank A. Coe

  
	
   

  	
   Title:
  VP

  
	
   

  	
   

  
	
  $350,000,000     Total
  of the Revolving Credit Commitments

  



 


67

















 


SCHEDULE I


SEALED AIR
CORPORATION


THREE YEAR CREDIT
AGREEMENT


APPLICABLE LENDING
OFFICES


 


	
  Name of
  Initial Lender

  	
   

  	
  Domestic Lending Office

  	
   

  	
  Eurocurrency Lending Office

  
	
  ABN AMRO Bank N.V.

  	
   

  	
  208 South LaSalle Street

  Suite 1500
Chicago, IL 60604
Attn: Credit Administration
T: 
  312 992-51521
F: 
  312 992-5157

  	
   

  	
  208 South LaSalle Street

  Suite 1500
Chicago, IL 60604
Attn: Credit Administration
T: 
  312 992-51521
F: 
  312 992-5157

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Allied Irish Bank

  	
   

  	
   

  	
   

  	
   

  
	
  Banco Bilboa Vizcaya Argentaria, S.A.

  	
   

  	
  1345 Avenue of the
  Americas

  45th Floor
New York, NY 10105
Attn: Miguel Lara
T: 
  212 728-1664
F: 
  212 333-2904

  	
   

  	
  1345 Avenue of the
  Americas

  45th Floor
New York, NY 10105
Attn: Miguel Lara
T: 
  212 728-1664
F: 
  212 333-2904

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  1850 Gateway Blvd.

  CA4-906-05-11

  Concord, CA  94520

  Attn:  Curtis Loney

  T:  925 675-8398

  F:  888 969-9252

  	
   

  	
  1850 Gateway Blvd.

  CA4-906-05-11

  Concord, CA  94520

  Attn:  Curtis Loney

  T:  925 675-8398

  F:  888 969-9252

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of Tokyo-Mitsubishi Trust Company

  	
   

  	
  c/o Bank of
  Tokyo-Mitsubishi Trust Company

  1251 Avenue of the Americas
12th Floor
New York, NY 10020
Attn: Rolando Uy
T: 
  201 413-8570
F: 
  201 521-2304

  	
   

  	
  c/o Bank of
  Tokyo-Mitsubishi Trust Company

  1251 Avenue of the Americas

  12th Floor
New York, NY 10020
Attn: Rolando Uy
T: 
  201 413-8570
F: 
  201 521-2304

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BNP Paribas

  	
   

  	
  919 Third Avenue, 3rd Floor

  New York, NY  10022

  Attn:  Daphne Coates

  T:  212 471-6628

  F:  212 471-6695

  	
   

  	
  919 Third Avenue, 3rd Floor

  New York, NY  10022

  Attn:  Daphne Coates

  T:  212 471-6628

  F:  212 471-6695

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Citibank, N.A.

  	
   

  	
  Two Penns Way

  New Castle, DE  19720

  Attn:  Paul Joseph

  T:  302 894-6016

  F:  212 994-0961

  	
   

  	
  Two Penns Way

  New Castle, DE  19720

  Attn:  Paul Joseph

  T:  302 894-6016

  F:  212 994-0961

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Credit Lyonnais New York Branch

  	
   

  	
   

  	
   

  	
   

  
	
  Credit Suisse First Boston

  	
   

  	
   

  	
   

  	
   

  
	
  Fleet National Bank

  	
   

  	
  100 Federal Street

  Mailstop: MA-DE-10010A

  Boston, MA  02110

  Attn:  Rocco Cammarata

  T:  612 434-9725

  F:  612 434-0800

  	
   

  	
  100 Federal Street

  Mailstop: MA-DE-10010A

  Boston, MA  02110

  Attn:  Rocco Cammarata

  T:  612 434-9725

  F:  612 434-0800

  



 

















 


	
  JPMorgan Chase Bank

  	
   

  	
  1111 Fannin Street, 10th Floor

  Houston, TX  77002

  Attn:  Sheila King

  T:  713 750-2242

  F:  713 750-2782

  	
   

  	
  1111 Fannin Street, 10th Floor

  Houston, TX  77002

  Attn:  Sheila King

  T:  713 750-2242

  F:  713 750-2782

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Mizuho Corporate Bank Ltd.

  	
   

  	
  1251 Avenue of the
  Americas

  New York, NY 10020
T: 
  212 282-3000
F: 
  212 282-4250

  	
   

  	
  1251 Avenue of the
  Americas

  New York, NY  10020
T: 
  212 282-3000
F: 
  212 282-4250

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Morgan Stanley Bank

  	
   

  	
  2500 Lake Park Blvd., Suite 300 C

  West Valley City, UT 84120

  Attn:  Larry Benison/Min Jo

  T:  212 537-1439/1381

  F:  212 537-1867/1866

  	
   

  	
  2500 Lake Park Blvd., Suite 300 C

  West Valley City, UT  84120

  Attn:  Larry Benison/Min Jo

  T:  212 537-1439/1381

  F:  212 537-1867/1866

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  National City Bank

  	
   

  	
   

  	
   

  	
   

  
	
  Cooperatieve Centrale Raiffeisen-Boerenleenbank
  B.A., “Rabobank International”, New York Branch

  	
   

  	
  10 Exchange Place

  Jersey City, NJ

  Attn:  Clemencia Stewart

  T:  201 499-5245

  F:  201 499-5326

  	
   

  	
  10 Exchange Place

  Jersey City, NJ

  Attn:  Clemencia Stewart

  T:  201 499-5245

  F:  201 499-5326

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  San Paolo IMI Spa

  	
   

  	
   

  	
   

  	
   

  
	
  Sumitomo Mitsui Banking Corporation

  	
   

  	
  277 Park Avenue

  New York, NY 10172
Attn: Edward McColly
T: 
  212 224-4139
F: 
  212 224-4384

  	
   

  	
  277 Park Avenue

  New York, NY 10172
Attn: Edward McColly
T: 
  212 224-4139
F: 
  212 224-4384

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SunTrust Bank

  	
   

  	
  303 Peachtree Street NE

  Mail Code 1941

  Atlanta, GA  30308

  Attn:  Chantay Spralding

  T:  404 813-5026

  F:  404 575-2730

  	
   

  	
  303 Peachtree Street NE

  Mail Code 1941

  Atlanta, GA  30308

  Attn:  Chantay Spralding

  T:  404 813-5026

  F:  404 575-2730

  



 


2

















 


SCHEDULE 4.01(j)


 


Material
Subsidiaries


 


Domestic Material Subsidiaries/Subsidiary Guarantors:


 


Sealed Air Corporation (US)


Cryovac, Inc.


 


Foreign
Material Subsidiaries:


 


Sealed Air Luxembourg SCA


Sealed Air Holdings B.V.


Ciras CV


Sealed Air Luxembourg (I) Sarl


Sealed Air Luxembourg (Holdings) Sarl


Swiss Finance Branch


Sealed Air Luxembourg (II) Sarl


Sealed Air Spain (Holdings) S.L.


Sealed Air B.V. (Holland)


Sealed Air Australia (Holdings) Pty. Limited


Sealed Air Limited


Sealed Air Funding Corporation


Sealed Air S.A.S. (France)


Sealed Air Management Holding GmbH & Co. KG


Sealed Air Italy Srl


Cryovac Australia Pty. Limited


Sealed Air GmbH


Sealed Air Srl


Sealed Air Netherlands (Holdings) I B.V.


Sealed Air Finance Ireland


Sealed Air (New Zealand)


Sealed Air (Canada) Co./Cie


Sealed Air de Mexico, S.A. DE C.V


 

















 


SCHEDULE 5.02(B)(ii)


EXISTING
SUBSIDIARY INDEBTEDNESS


 


Sealed Air Corporation


Indebtedness of Material Subsidiaries &


Liens securing Indebtedness of Sealed Air
Corporation and Material Subsidiaries


(000’s)


 


	
  DEBTOR

  	
   

  	
  TYPE OF CREDIT

  	
   

  	
  CURRENCY

  UNIT

  	
   

  	
  AVAILABLE

  LINES OF

  CREDIT

  	
   

  	
  TOTAL

  LONG-TERM

  DEBT

  	
   

  	
  SUPPORTED

  BY LIENS?

  	
   

  	
  LOCATION

  OF LIEN

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed Air Corporation (US)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bank
  Loan

  	
   

  	
  USD

  	
   

  	
  —

  	
   

  	
  30

  	
   

  	
  YES

  	
   

  	
  Salem, IL

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cryovac, Inc.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lease

  	
   

  	
  USD

  	
   

  	
  —

  	
   

  	
  28,000

  	
   

  	
  YES

  	
   

  	
  Rogers, AR

  	
   

  	
  (a)

  	
   

  
	
   

  	
   

  	
  Lease

  	
   

  	
  USD

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  YES

  	
   

  	
  St. Joseph, MO

  	
   

  	
  (b)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed Air B.V. (Holland)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Line
  of Credit

  	
   

  	
  EUR

  	
   

  	
  2,723

  	
   

  	
  —

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed Air Limited

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Line of Credit

  	
   

  	
  GBP

  	
   

  	
  9,000

  	
   

  	
  —

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Loan Notes

  	
   

  	
  GBP

  	
   

  	
  —

  	
   

  	
  200

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed Air S.A.S. (France)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lease

  	
   

  	
  EUR

  	
   

  	
  —

  	
   

  	
  1,598

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Overdraft Facilities

  	
   

  	
  EUR

  	
   

  	
  28,000

  	
   

  	
  —

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cryovac Australia Pty. Limited

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Dual Currency Revolving Facility    

  	
   

  	
  AUD

  	
   

  	
  105,116

  	
   

  	
  39,000

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
  (c), (d)

  	
   

  
	
   

  	
   

  	
  Loan

  	
   

  	
  AUD

  	
   

  	
  —

  	
   

  	
  817

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Overdraft Facility

  	
   

  	
  AUD

  	
   

  	
  4,000

  	
   

  	
  —

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


	
  Sealed Air GmbH

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lines
  of Credit

  	
   

  	
  EUR

  	
   

  	
  9,000

  	
   

  	
  —

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed Air Srl

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Overdraft Facilities

  	
   

  	
  EUR

  	
   

  	
  13,105

  	
   

  	
  —

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bank Loans

  	
   

  	
  EUR

  	
   

  	
  —

  	
   

  	
  933

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed Air Finance Ireland

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Overdraft
  Facility

  	
   

  	
   

  	
   

  	
  17,400

  	
   

  	
  —

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed Air (New Zealand)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Dual Currency Revolving Facility     

  	
   

  	
  NZD

  	
   

  	
  80,000

  	
   

  	
  36,000

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
  (c), (d)

  	
   

  
	
   

  	
   

  	
  Overdraft Facilities

  	
   

  	
  NZD

  	
   

  	
  4,548

  	
   

  	
  —

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed Air (Canada) Co./Cie

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Line
  of Credit

  	
   

  	
  CAD

  	
   

  	
  8,000

  	
   

  	
  —

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed Air Packaging, SL

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Line
  of Credit

  	
   

  	
  EUR

  	
   

  	
  2,000

  	
   

  	
  —

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed Air de Mexico, S.A. DE C.V

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lines
  of Credit

  	
   

  	
  MXN

  	
   

  	
  225,000

  	
   

  	
  —

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed Air S.L.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Line
  of Credit

  	
   

  	
  EUR

  	
   

  	
  1,200

  	
   

  	
  —

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cryovac Brasil Ltda

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lines
  of Credit

  	
   

  	
  BRL

  	
   

  	
  84,947

  	
   

  	
  —

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed Air Packaging Srl

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lines of Credit

  	
   

  	
  EUR

  	
   

  	
  7,032

  	
   

  	
  —

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lease

  	
   

  	
  EUR

  	
   

  	
  —

  	
   

  	
  39

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


2

















 


	
  Sealed Air Corporation

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.95% Sr. Notes Due 05/15/09

  	
   

  	
  USD

  	
   

  	
  —

  	
   

  	
  300,000

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
  (c), (e)

  	
   

  
	
   

  	
   

  	
  8.75% Sr. Notes Due 07/01/08

  	
   

  	
  USD

  	
   

  	
  —

  	
   

  	
  300,000

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
  (c), (e)

  	
   

  
	
   

  	
   

  	
  5.375% Sr. Notes Due 04/15/08

  	
   

  	
  USD

  	
   

  	
  —

  	
   

  	
  300,000

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
  (c), (e)

  	
   

  
	
   

  	
   

  	
  5.625% Sr. Notes Due 07/15/13

  	
   

  	
  USD

  	
   

  	
  —

  	
   

  	
  400,000

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
  (c), (e)

  	
   

  
	
   

  	
   

  	
  6.875% Sr. Notes Due 07/15/33

  	
   

  	
  USD

  	
   

  	
  —

  	
   

  	
  450,000

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
  (c), (e)

  	
   

  
	
   

  	
   

  	
  Convertible Sr. Notes 3.00% Due 6/30/33

  	
   

  	
  USD

  	
   

  	
  —

  	
   

  	
  431,250

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
  (c), (e)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sealed Air Finance LLC

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  5.625%
  EURO Notes Due 07/19/06

  	
   

  	
  EUR

  	
   

  	
  —

  	
   

  	
  200,000

  	
   

  	
  NO

  	
   

  	
   

  	
   

  	
  (c)

  	
   

  



 












(a)  This equipment lease
agreement was finalized in November 2003 for amounts up to $28 million; to date
no amounts are outstanding.


(b)  Represents an equipment
lease between City of St. Joseph, Missouri and Cryovac, Inc. in the amount of
$13.7 million.


(c)  Upon the effective date of
the Credit Agreement, obligations will be guaranteed by each of the Domestic
Subsidiaries that guarantees obligations under the Credit Agreement, but only
for so long as such subsidiaries are Subsidiary Guarantors under the Credit Agreement.


(d)  Amounts available under the
Dual Currency Revolving Facility total AUD 175 million, of which AUD 39 million
and NZD 36 million were drawn at September 30, 2003.


(e)  Primary obligor is the
Company.


 


3

















 


EXHIBIT A-1 - FORM OF


REVOLVING CREDIT


PROMISSORY NOTE


 


	
  U.S.$                       

  	
   

  	
  Dated:                   ,
  200  

  



 


 


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 U.S.$[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 December 19, 2003 among the Borrower, [Sealed Air
Corporation], the other borrowers parties thereto, the Lender and certain other
lenders parties thereto, and Citibank, N.A. 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 388 Greenwich Street, New York, New York 10013, in same day funds
and (ii) in any Committed Currency are payable in such currency at the
applicable Payment Office 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 388 Greenwich Street, New York, New York 10013.  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 Revolving Credit Notes referred to in, and is entitled to the
benefits of, the Credit Agreement.  The
Credit Agreement, among other things, (i) provides for the making of 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 U.S.
dollar 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 Dollar Equivalent of Revolving Credit Advances denominated in
Committed Currencies 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 A-2 - FORM OF


COMPETITIVE BID


PROMISSORY NOTE


 


	
  U.S.$                       

  	
   

  	
  Dated:                   ,
  200  

  



 


FOR VALUE RECEIVED, the
undersigned, [NAME OF BORROWER],
a                                     corporation
(the “Borrower”), HEREBY PROMISES TO PAY to the order
of                        (the
“Lender”) for the account of its Applicable Lending Office (as defined
in the Three Year Credit Agreement dated as of December 19, 2003 among the
Borrower, [Sealed Air Corporation], the other borrowers parties thereto, the
Lender and certain other lenders parties thereto, and Citibank, N.A., 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)), on                          ,
200  , the principal amount of
[U.S.$                          ]
[for a Competitive Bid Advance in a Foreign Currency, list currency and amount
of such Advance].


 


The Borrower promises to
pay interest on the unpaid principal amount hereof from the date hereof until
such principal amount is paid in full, at the interest rate and payable on the
interest payment date or dates provided below:


 


Interest
Rate:      % per annum (calculated on the basis
of a year of          days
for the actual number of days elapsed).


 


Both principal and
interest are payable in lawful money
of                     to
Citibank, as agent, for the account of the Lender at the office of Citibank,
at                            in
same day funds.


 


This Promissory Note is
one of the Competitive Bid Notes referred to in, and is entitled to the
benefits of, the Credit Agreement.  The
Credit Agreement, among other things, contains provisions for acceleration of
the maturity hereof upon the happening of certain stated events.


 


The Borrower hereby
waives presentment, demand, protest and notice of any kind.  No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of such rights.


 


This Promissory Note
shall be governed by, and construed in accordance with, the laws of the State
of New York.


 


	
   

  	
  [NAME OF BORROWER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
     Title:

  



 

















 


EXHIBIT B-1 - FORM OF NOTICE OF


REVOLVING CREDIT
BORROWING


 


Citibank,
N.A., as Agent

for the Lenders parties

to the Credit Agreement

referred to below

Two Penns Way

New Castle, Delaware 19720


 


[Date]


 


Attention: Bank Loan
Syndications Department


 


 


Ladies and Gentlemen:


 


The undersigned, [Name of
Borrower], refers to the Three Year Credit Agreement, dated as of December 19,
2003 (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 Citibank, N.A., 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                     ,
200  .


 


(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
$                   ][for
a Revolving Credit Borrowing in a Committed Currency, list currency and amount
of Revolving Credit Borrowing].


 


[(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 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; 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 B-2 - FORM OF NOTICE OF


COMPETITIVE BID
BORROWING


 


Citibank,
N.A., as Agent

for the Lenders parties

to the Credit Agreement

referred to below

Two Penns Way

New Castle, Delaware 19720


 


[Date]


 


Attention: Bank Loan
Syndications Department


 


 


Ladies and Gentlemen:


 


The undersigned, [Name of
Borrower], refers to the Three Year Credit Agreement, dated as of December 19,
2003 (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 Citibank, N.A., as Agent for said Lenders,
and hereby gives you notice, irrevocably, pursuant to Section 2.03 of the
Credit Agreement that the undersigned hereby requests a Competitive Bid
Borrowing under the Credit Agreement, and in that connection sets forth the
terms on which such Competitive Bid Borrowing (the “Proposed Competitive Bid
Borrowing”) is requested to be made:


 


	
  (A)

  	
   

  	
  Date of Competitive Bid
  Borrowing

  	
   

  	
                                    

  
	
  (B)

  	
   

  	
  Amount of Competitive
  Bid Borrowing

  	
   

  	
                                    

  
	
  (C)

  	
   

  	
  [Maturity Date]
  [Interest Period]

  	
   

  	
                                    

  
	
  (D)

  	
   

  	
  Interest Rate Basis

  	
   

  	
                                    

  
	
  (E)

  	
   

  	
  Day Count Convention

  	
   

  	
                                    

  
	
  (F)

  	
   

  	
  Interest Payment
  Date(s)

  	
   

  	
                                    

  
	
  (G)

  	
   

  	
  Currency

  	
   

  	
                                    

  
	
  (H)

  	
   

  	
  Borrower’s Account
  Location

  	
   

  	
                                    

  
	
  (I)

  	
   

  	
                                    

  	
   

  	
                                    

  



 


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


 


(a)                                  the
representations and warranties contained in Section 4.01 are correct,
before and after giving effect to the Proposed Competitive Bid Borrowing and to
the application of the proceeds therefrom, as though made on and as of such
date;


 


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


 


(c)                                  no
event has occurred and no circumstance exists as a result of which the
information concerning the undersigned that has been provided to the Agent and
each Lender by the undersigned in connection with the Credit Agreement would
include an untrue statement of a material fact or omit to state any material
fact or any fact necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not misleading; and


 

















 


(d)                                 the
aggregate amount of the Proposed Competitive Bid Borrowing and all other
Borrowings to be made on the same day under the Credit Agreement is within the
aggregate amount of the unused Commitments of the Lenders.


 


The undersigned hereby
confirms that the Proposed Competitive Bid Borrowing is to be made available to
it in accordance with Section 2.03(a)(v) of the Credit Agreement.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [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 December 19, 2003 (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 Citibank, N.A., 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 (other
than in respect of Competitive Bid Advances and Competitive Bid Notes) equal to
the percentage interest specified on Schedule 1 hereto of all outstanding
rights and obligations under the Credit Agreement (other than in respect of
Competitive Bid Advances and Competitive Bid Notes) together with
participations in Letters of Credit held by the Assignor on the date hereof.  After giving effect to such sale and
assignment, the Assignee’s Commitment(s) 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 Revolving Credit Note[, if any,] held by
the Assignor [and requests that the Agent exchange such Revolving Credit Note
for a new Revolving Credit Note payable to the order of [the Assignee in an
amount equal to the Commitment assumed by the Assignee pursuant hereto or new
Revolving Credit 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 2.15 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 and be
released from its obligations under the Credit Agreement (other than its
obligations under Section 9.08 thereof).


 


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 Revolving
Credit 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 Revolving Credit 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 Revolving
  Credit Commitment:

  	
   

  	
  $            

  
	
   

  	
   

  	
   

  
	
  Assignee’s Letter of
  Credit Commitment:

  	
   

  	
  $            

  
	
   

  	
   

  	
   

  
	
  Aggregate outstanding
  principal amount of Revolving Credit Advances assigned:

  	
   

  	
  $            

  
	
   

  	
   

  	
   

  
	
  Principal amount of
  Revolving Credit Note payable to Assignee:

  	
   

  	
  $            

  
	
   

  	
   

  	
   

  
	
  Principal amount of
  Revolving Credit Note payable to Assignor:

  	
   

  	
  $            

  
	
   

  	
   

  	
   

  
	
  Effective
  Date*:                     ,
  200  

  



 


 


	
   

  	
  [NAME OF ASSIGNOR], as
  Assignor

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  	
   , 200

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNEE], as
  Assignee

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  	
   , 200

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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

  	
   

  	
  , 200

  	
   

  	
   

  	
   

  
	
   

  
	
  CITIBANK, N.A., as
  Agent

  
	
   

  
	
  By

  	
   

  	
   

  
	
  Title:

  
	
   

  
	
   

  
	
  [Approved this

  	
   

  	
   day

  
	
  of

  	
   

  	
  , 200

  	
   

  	
   

  
	
   

  
	
  SEALED AIR CORPORATION

  
	
   

  
	
  By

  	
   

  	
  ]*

  
	
  Title:

  
	
   

  
	
   

  
	
  [Approved this

  	
   

  	
   day

  
	
  of

  	
   

  	
  , 200

  	
   

  	
   

  
	
   

  
	
  [NAME OF ISSUING BANK]

  
	
   

  
	
  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”.


 


*                                         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


 


Dated as of December __,
2003


 


From


 


THE GUARANTORS NAMED
HEREIN


 


and


 


THE ADDITIONAL GUARANTORS
REFERRED TO HEREIN


 


as Guarantors


 


in favor of


 


THE GUARANTEED PARTIES
REFERRED TO HEREIN


 


 


 


 


 


 


 


 


 

















 


TABLE
OF  CONTENTS


	
  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.

  	
  5

  
	
  Section
  6.   Representations and Warranties

  	
  8

  
	
  Section
  7.   Covenants

  	
  8

  
	
  Section 8.   Amendments, Guaranty Supplements,
  Etc.

  	
  8

  
	
  Section 9.   Notices, Etc.

  	
  9

  
	
  Section 10.   No Waiver; Remedies

  	
  9

  
	
  Section 11.   Right of Set-off

  	
  10

  
	
  Section 12.   Indemnification

  	
  10

  
	
  Section 13.   Subordination

  	
  11

  
	
  Section 14.   Continuing Guaranty;
  Assignments under the Credit Agreement

  	
  12

  
	
  Section 15.   Execution in
  Counterparts

  	
  12

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

  	
  12

  



 


Exhibit A - Guaranty Supplement


 

















 


SUBSIDIARY GUARANTY


 


SUBSIDIARY GUARANTY dated as of December __, 2003 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 December __, 2003 (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 Citibank, N.A., 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.  It is a condition precedent to the making of Advances and the
issuance of Letters of Credit 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 order to induce the Lenders to make Advances and to issue Letters of Credit
under the Credit Agreement from time to time, each Guarantor, jointly and
severally with each other Guarantor, hereby agrees as follows:


 


Section 1.  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.


 


(b)           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.


 


(c)           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.


 


Section 2.  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:


 


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


 


(b)           any change in the
time, manner or place of payment of, or in any other term of, all or any of the
Guaranteed Obligations or any other obligations of any other Loan Party under
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;


 


(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
collateral for all or any of the Guaranteed Obligations or any other
obligations of any


 


2

















 


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


 


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


 


(f)            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);


 


(g)           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


 


(h)           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.


 


Section 3.  Waivers and Acknowledgments.  (a)  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.


 


(b)           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.


 


(c)           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

















 


(d)           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.


 


(e)           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.


 


Section
4.  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, all Letters of Credit shall have expired or been terminated 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 latest of (a) the
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty, (b) the Termination Date and (c) the
latest date of expiration or termination of all Letters of Credit, 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, (iii) the Termination
Date shall have occurred and (iv) all Letters of Credit shall have expired
or been terminated, 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.


 


Section 5.  Payments Free and Clear
of Taxes, Etc..  (a)  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


 


4

















 


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 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.


 


(b)           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.


 


(c)           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.


 


(d)           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.


 


Section 6.  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:


 


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


 


(b)           Such Guarantor has,
independently and without reliance upon 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.


 


Section
7.  Covenants.  Each Guarantor
covenants and agrees that, so long as any part of the Guaranteed Obligations
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
shall have any Commitment, such Guarantor will perform and observe, and cause


 


5

















 


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.


 


Section 8.  Amendments,
Guaranty Supplements, Etc.  (a) 
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, (y) the aggregate unpaid principal amount of
the Advances or (z) the aggregate Available Amount of outstanding Letters of
Credit that, in each case, shall be required for the Guaranteed Parties or any
of them to take any action hereunder. 
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.


 


(b)           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.


 


Section 9.  Notices,
Etc.  All notices and other communications provided for hereunder
shall be in writing (including telegraphic, telecopy or telex communication)
and mailed, telegraphed, telecopied, telexed or delivered to it, if to any
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.


 


Section 10.  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


 


6

















 


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.


 


Section 11.  Right
of Set-off.  Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or
the granting of the consent specified by Section 6.01 of the Credit
Agreement to authorize the 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.


 


Section 12.  Indemnification.  (a)  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.


 


(b)           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 the Letters of Credit or any of
the transactions contemplated by the Loan Documents.


 


(c)           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.


 


7

















 


Section 13.  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:


 


(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 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.


 


(b)           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.


 


(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 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.


 


(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
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).


 


Section 14.  Continuing
Guaranty; Assignments under the Credit Agreement.  This Guaranty
is a continuing guaranty and shall (a) remain in full force and effect
until the latest of (i) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (ii) the
Termination Date and (iii) the latest date of expiration or termination


 


8

















 


of all Letters of Credit, (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 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.


 


Section 15.  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.


 


Section 16.  Governing
Law; Jurisdiction; Waiver of Jury Trial, Etc.  (a)  This Guaranty shall
be governed by, and construed in accordance with, the laws of the State of
New York.


 


(b)           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.


 


(c)           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.


 


(d)           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


 


9

















 


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.


 


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.

  



 


10

















 


Exhibit
A


To The


Subsidiary
Guaranty


 


FORM OF SUBSIDIARY GUARANTY SUPPLEMENT


_________ __, 200_


CITIBANK, N.A., as Agent

[Address of Agent]


Attention: 
_________


Credit Agreement
dated as of December __, 2003 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 Citibank, N.A., 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


BORROWER
DESIGNATION AGREEMENT


 


 


[DATE]


 


To
each of the Lenders

parties to the Credit Agreement

(as defined below) and to Citibank, N.A.

as Administrative Agent for such Lenders


 


Ladies and Gentlemen:


 


Reference is made to the
Three Year Credit Agreement dated as of December 19, 2003 among Sealed Air
Corporation (the “Company”), certain other Borrowers (as defined in the
Credit Agreement), the Lenders (as defined in the Credit Agreement) and
Citibank, N.A., 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