Exhibit 4.1
EXECUTION COPY
SEALED AIR CORPORATION,
as Issuer,
THE GUARANTORS NAMED HEREIN
AND
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of October 3, 2011
8.125% Senior Notes due 2019
8.375% Senior Notes due 2021
TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
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Section 1.1. Definitions
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2
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Section 1.2. Other Definitions
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32
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Section 1.3. Incorporation by Reference of TIA
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33
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Section 1.4. Rules of Construction
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33
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ARTICLE 2
THE NOTES
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Section 2.1. The Notes
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34
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Section 2.2. Execution and Authentication
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35
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Section 2.3. Registrar, Transfer Agent and Paying Agent
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36
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Section 2.4. Paying Agent to Hold Money in Trust
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37
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Section 2.5. Holder Lists
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37
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Section 2.6. Transfer and Exchange
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37
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Section 2.7. Replacement Notes
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40
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Section 2.8. Outstanding Notes
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40
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Section 2.9. Notes Held by Company
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41
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Section 2.10. Certificated Notes
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41
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Section 2.11. Cancellation
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42
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Section 2.12. Defaulted Interest
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42
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Section 2.13. Computation of Interest
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43
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Section 2.14. CUSIP and ISIN Numbers
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43
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Section 2.15. Issuance of Additional Notes
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43
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Section 2.16. Open Market Purchases
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43
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ARTICLE 3
REDEMPTION; OFFERS TO PURCHASE
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Section 3.1. Right of Redemption
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45
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Section 3.2. Notices to Trustee
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45
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Section 3.3. Selection of Notes to be Redeemed
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45
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Section 3.4. Notice of Redemption
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45
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Section 3.5. Deposit of Redemption Price
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47
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Section 3.6. Payment of Notes Called for Redemption
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47
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Section 3.7. Notes Redeemed in Part
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47
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Section 3.8. Mandatory Redemption
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48
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ARTICLE 4
COVENANTS
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Section 4.1. Payment of Notes
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49
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Section 4.2. Corporate Existence
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49
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Section 4.3. [Reserved]
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49
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i
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Section 4.4. [Reserved]
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49
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Section 4.5. Statement as to Compliance
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49
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Section 4.6. Change of Control
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49
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Section 4.7. Limitation on Asset Sales
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50
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Section 4.8. Suspension of Covenants When Notes Rated Investment Grade
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52
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Section 4.9. Limitation on Restricted Payments
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53
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Section 4.10. Limitation on Indebtedness
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57
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Section 4.11. Limitation on Liens
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60
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Section 4.12. Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries
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61
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Section 4.13. Limitation on Transactions with Affiliates
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63
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Section 4.14. Designation of Unrestricted and Restricted Subsidiaries
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64
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Section 4.15. Reports to Holders
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66
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Section 4.16. Payment of Taxes and Other Claims
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67
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Section 4.17. Future Note Guarantees
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67
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Section 4.18. Payments for Consent
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67
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ARTICLE 5
CONSOLIDATION, MERGER OR SALE OF ASSETS
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Section 5.1. Consolidation, Merger or Sale of Assets
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68
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Section 5.2. Successor Substituted
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69
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ARTICLE 6
DEFAULTS AND REMEDIES
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Section 6.1. Events of Default
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70
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Section 6.2. Acceleration
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72
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Section 6.3. Other Remedies
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72
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Section 6.4. Waiver of Past Defaults
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73
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Section 6.5. Control by Majority
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73
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Section 6.6. Limitation on Suits
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73
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Section 6.7. Unconditional Right of Holders To Receive Payment
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74
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Section 6.8. Collection Suit by Trustee
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74
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Section 6.9. Trustee May File Proofs of Claim
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74
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Section 6.10. Application of Money Collected
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75
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Section 6.11. Undertaking for Costs
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75
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Section 6.12. Restoration of Rights and Remedies
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75
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Section 6.13. Rights and Remedies Cumulative
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75
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Section 6.14. Delay or Omission not Waiver
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76
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Section 6.15. Record Date
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76
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Section 6.16. Waiver of Stay or Extension Laws
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76
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ARTICLE 7
TRUSTEE
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Section 7.1. Duties of Trustee
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77
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ii
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Section 7.2. Certain Rights of Trustee
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78
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Section 7.3. Individual Rights of Trustee
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79
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Section 7.4. Trustees Disclaimer
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79
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Section 7.5. Reports by Trustee to Holders
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79
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Section 7.6. Compensation and Indemnity
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80
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Section 7.7. Replacement of Trustee
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80
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Section 7.8. Successor Trustee by Merger
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81
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Section 7.9. Eligibility; Disqualification
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82
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Section 7.10. Preferential Collection of Claims Against Company
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82
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Section 7.11. Appointment of Co-Trustee
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82
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ARTICLE 8
DEFEASANCE; SATISFACTION AND DISCHARGE
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Section 8.1. Companys Option to Effect Legal Defeasance or Covenant Defeasance
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84
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Section 8.2. Legal Defeasance
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84
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Section 8.3. Covenant Defeasance
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84
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Section 8.4. Conditions to Defeasance
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85
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Section 8.5. Satisfaction and Discharge of Indenture
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86
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Section 8.6. [Reserved]
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87
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Section 8.7. Acknowledgment of Discharge by Trustee
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87
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Section 8.8. Application of Trust Money
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87
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Section 8.9. Repayment to Company
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87
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Section 8.10. Indemnity for Government Securities
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87
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Section 8.11. Reinstatement
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88
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ARTICLE 9
AMENDMENTS AND WAIVERS
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Section 9.1. Without Consent of Holders
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89
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Section 9.2. With Consent of Holders
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89
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Section 9.3. Effect of Supplemental Indentures
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91
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Section 9.4. Notation on or Exchange of Notes
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91
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Section 9.5. Notice of Amendment or Waiver
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91
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Section 9.6. Execution of Amendments, Supplements or Waivers
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91
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Section 9.7. Payments for Consent
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91
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ARTICLE 10
GUARANTEE
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Section 10.1. Note Guarantees
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92
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Section 10.2. Subrogation
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93
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Section 10.3. Limitation of Note Guarantees
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93
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Section 10.4. Notation Not Required
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93
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Section 10.5. Release of the Note Guarantees
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93
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Section 10.6. Successors and Assigns
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94
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iii
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Section 10.7. No Waiver
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94
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ARTICLE 11
HOLDERS MEETINGS
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Section 11.1. Purposes of Meetings
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95
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Section 11.2. Place of Meetings
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95
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Section 11.3. Call and Notice of Meetings
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95
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Section 11.4. Voting at Meetings
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95
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Section 11.5. Voting Rights, Conduct and Adjournment
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95
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Section 11.6. Revocation of Consent by Holders at Meetings
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96
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Section 11.7. Acts of Holders
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96
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ARTICLE 12
MISCELLANEOUS
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Section 12.1. Trust Indenture Act Controls
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98
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Section 12.2. Notices
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98
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Section 12.3. Communication by Holders with Other Holders
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99
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Section 12.4. Certificate and Opinion as to Conditions Precedent
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100
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Section 12.5. Statements Required in Certificate or Opinion
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100
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Section 12.6. Rules by Trustee, Paying Agent and Registrar
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100
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Section 12.7. Legal Holidays
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100
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Section 12.8. Governing Law
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100
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Section 12.9. Jurisdiction
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100
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Section 12.10. Waiver of Jury Trial
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101
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Section 12.11. No Recourse Against Others
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101
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Section 12.12. Successors
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101
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Section 12.13. Electronic Means
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101
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Section 12.14. Multiple Originals
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101
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Section 12.15. Table of Contents and Headings
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101
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Section 12.16. Severability
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102
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Exhibits
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Exhibit A-1
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Form of 2019 Notes
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Exhibit A-2
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Form of 2021 Notes
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Exhibit B-1
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2019 Note Form of Transfer Certificate for Transfer from Restricted Global Note to Regulation S Global Note
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Exhibit B-2
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2021 Note Form of Transfer Certificate for Transfer from Restricted Global Note to Regulation S Global Note
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Exhibit C-1
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2019 Note Form of Transfer Certificate for Transfer from Regulation S Global Note to Restricted Global Note
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Exhibit C-2
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2021 Note Form of Transfer Certificate for Transfer from Regulation S Global Note to Restricted Global Note
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iv
INDENTURE dated as of October 3, 2011 among Sealed Air Corporation, a Delaware corporation
(the
Company
), the Guarantors (as defined herein), and HSBC Bank USA, National
Association, a national banking association organized and existing under the laws of the United
States, as trustee (the
Trustee
).
RECITALS OF THE ISSUER AND THE GUARANTORS
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance of (i) $750,000,000 in aggregate principal amount of a series of its 8.125% Senior
Notes due 2019 issued on the date hereof (the
Original 2019 Notes
), (ii) $750,000,000 in
aggregate principal amount of a series of its 8.375% Senior Notes due 2021 issued on the date
hereof (the
Original 2021 Notes
and, together with the Original 2019 Notes, the
Original Notes
), (iii) any additional 8.125% Senior Notes due 2019 of the Company (the
Additional 2019 Notes
, and together with the Original 2019 Notes, the
2019
Notes
) that may be issued from time to time on any date subsequent to the Issue Date and (iv)
any additional 8.375% Senior Notes due 2021 of the Company (the
Additional 2021 Notes
,
and together with the Original 2021 Notes, the
2021 Notes
) that may be issued from time
to time on any date subsequent to the Issue Date. The 2019 Notes and the 2021 Notes (together, the
Notes
) are each referred to herein as a series.
Each Guarantor has duly authorized the execution and delivery of this Indenture to provide for
the issuance of its Note Guarantee (as defined herein).
For and in consideration of the premises and the purchase of the Notes by the Holders thereof,
it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders, as
follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1.
Definitions
.
Acquisition
means acquisition by the Company all of the Equity Interests of Diversey
pursuant to the Acquisition Agreement.
Acquisition Agreement
means the Agreement and Plan of Merger, dated as of May 31, 2011, by
and among the Company, Diversey and Solution Acquisition Corp., a Delaware corporation, as the same
may be amended prior to the Issue Date.
Affiliate
of any specified Person means (1) any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person
or (2) any executive officer or director of such specified Person. For purposes of this definition,
control, as used with respect to any Person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise. For purposes of this
definition, the terms controlling, controlled by and under common control with shall have
correlative meanings.
Applicable Premium
means, with respect to a Note at any Redemption Date, the greater of (i)
1.0% of the principal amount of such Note and (ii) the excess, if any, of (A) the present value at
such date of redemption of (1) the Redemption Price of such Note at September 15, 2015, in the case
of the 2019 Notes, or September 15, 2016, in the case of the 2021 Notes (such Redemption Prices
being set forth in the table appearing in paragraph 5(c) of the applicable Note) plus (2) all
remaining required interest payments due on such Note through September 15, 2015, in the case of
the 2019 Notes, or through September 15, 2016, in the case of the 2021 Notes (excluding accrued but
unpaid interest to the date of redemption), computed using a discount rate equal to the Treasury
Rate plus 50 basis points, over (B) the principal amount of such Note. Calculation of the
Applicable Premium shall be made by the Company or on behalf of the Company by such Person as the
Company shall designate;
provided
that such calculation or the correctness thereof shall
not be a duty or obligation of the Trustee.
Asset Sale
means:
(1) the sale, lease, conveyance or other disposition (each, a
Transfer
) of
any assets by the Company or any Restricted Subsidiary; and
(2) the issuance of Equity Interests by any Restricted Subsidiary or the Transfer by
the Company or any Restricted Subsidiary of Equity Interests in any of its Subsidiaries
(other than directors qualifying shares and shares issued to foreign nationals to the
extent required by applicable law).
Notwithstanding the preceding, the following items shall be deemed not to be Asset Sales:
2
(1) any single transaction or series of related transactions that involves assets or
Equity Interests having a Fair Market Value of less than $25.0 million;
(2) a Transfer of assets that is governed by the provisions of Section 4.6 and/or the
provisions of Section 5.1;
(3) a Transfer of assets or Equity Interests between or among the Company and the
Restricted Subsidiaries;
(4) an issuance of Equity Interests by a Restricted Subsidiary to the Company or to
another Restricted Subsidiary;
(5) a Transfer of any assets in the ordinary course of business;
(6) a Transfer of Cash Equivalents and the conversion of cash into Cash Equivalents and
Cash Equivalents into cash;
(7) a Transfer of accounts receivable in connection with the compromise, settlement or
collection thereof in the ordinary course of business or in bankruptcy or similar
proceedings;
(8) a Transfer that constitutes a Restricted Payment that is permitted by Section 4.9
or a Permitted Investment;
(9) a Transfer of obsolete, worn out, damaged, surplus or otherwise no longer used or
useful machinery, parts, equipment or other assets no longer used or useful in the conduct
of the business of the Company or any of its Restricted Subsidiaries in the ordinary course
of business;
(10) the creation of a Lien not prohibited by this Indenture (but not the sale of
property subject to a Lien);
(11) a Transfer of any Unrestricted Subsidiary;
(12) Leases, subleases, licenses or sublicenses of assets or properties in the ordinary
course of business and which do not materially interfere with the business of the Company
and its Restricted Subsidiaries;
(13) a grant of a license to use the Companys or any Restricted Subsidiarys patents,
trade secrets, know-how or other intellectual property to the extent that such license does
not limit the licensors use of the patent, trade secret, know-how or other intellectual
property;
(14) a Transfer of intellectual property rights which, are not material to the conduct
of the business of the Company and its Restricted Subsidiaries, the expiration or
abandonment of intellectual property rights and other transfers of intellectual property
rights and copyrighted material in the ordinary course of business or that are otherwise
3
not material to the conduct of the business of the Company and its Restricted
Subsidiaries;
(15) foreclosures on assets;
(16) any termination of Hedging Obligations;
(17) the disposition of assets through a Sale and Leaseback Transaction within 180 days
of the acquisition thereof;
(18) a Transfer of assets subject to Events of Loss; and
(19) sales of any receivables and related assets pursuant to any receivables financing
permitted under Section 4.10(b)(1).
Attributable Debt
in respect of a Sale and Leaseback Transaction means, at the time of
determination, the present value of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such Sale and Leaseback Transaction, including any period
for which such lease has been extended or may, at the option of the lessor, be extended. Such
present value shall be calculated using a discount rate equal to the rate of interest implicit in
such transaction, determined in accordance with GAAP.
Bankruptcy Law
means any law relating to bankruptcy, insolvency, receivership, winding-up,
liquidation, reorganization or relief of debtors or any amendment to, succession to or change in
any such law, including, without limitation, the United States Bankruptcy Code, 11 United States
Code §§ 101
et seq
.
Beneficial Owner
has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular person
(as that term is used in Section 13(d)(3) of the Exchange Act), such person shall be deemed to
have beneficial ownership of all securities that such person has the right to acquire by
conversion or exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms Beneficially Owns and
Beneficially Owned shall have a corresponding meaning.
Board of Directors
means:
(1) with respect to a corporation, the board of directors of the corporation or a duly
authorized committee thereof;
(2) with respect to a partnership, the Board of Directors of the general partner of the
partnership;
(3) with respect to a limited liability company, the managing member or members or any
controlling committee of managing members thereof; and
(4) with respect to any other Person, the board or committee of such Person serving a
similar function.
4
Board Resolution
means a resolution duly adopted by the Board of Directors of the Company.
Business Day
means any day other than a Legal Holiday.
Capital Lease Obligation
means an obligation that is required to be classified and accounted
for as a capital lease for financial reporting purposes in accordance with GAAP; and the amount of
Indebtedness represented thereby at any time shall be the amount of the liability in respect
thereof that would at that time be required to be capitalized on a balance sheet (excluding the
footnotes thereto) in accordance with GAAP;
provided
, for the avoidance of doubt, that any
obligations of the Company and its Restricted Subsidiaries either existing on the date of this
Indenture or created prior to the recharacterization described below (i) that were not included on
the consolidated balance sheet of the Company as capital lease obligations and (ii) that are
subsequently recharacterized as capital lease obligations due to a change in accounting treatment
or otherwise, shall for all purposes of this Indenture not be treated as Capital Lease Obligations
or Indebtedness.
Capital Stock
of any Person means any and all shares, interests (including general or
limited partnership interests, limited liability company or membership interests or limited
liability partnership interests), participations or other equivalents of or interests in (however
designated) equity of such Person, including any Preferred Stock.
Cash Equivalents
means
(1) United States dollars, euro and such local currencies held by the Company or any
Restricted Subsidiary from time to time in the ordinary course of business;
(2) direct obligations of, or obligations unconditionally guaranteed by, the United
States of America or any agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof) or an EU Member State
whose sole lawful currency on the Issue Date is the euro (provided that the full faith and
credit of such EU Member State is pledged in support thereof), having maturities of not more
than one year from the date of acquisition, unless such securities are deposited to defease
any Indebtedness;
(3) U.S. Dollar- or euro-denominated time deposits, certificates of deposit, bankers
acceptances and overnight deposits of any commercial bank organized under the laws of the
United States of America or any state thereof or an EU Member State having combined capital
and surplus of not less than $500,000,000 or 500,000,000, whose short-term commercial paper
rating from S&P is at least A-1 or from Moodys is at least P-1 (each an
Approved
Bank
) and having maturities of not more than one year from the date of acquisition;
(4) commercial paper issued by, or guaranteed by, an Approved Bank or by the parent
company of an Approved Bank, or issued by, or guaranteed by, any company with a short-term
debt rating of at least A-1 by S&P and P-1 by Moodys, in each case maturing not more than
one year from the date of acquisition;
5
(5) repurchase agreements with a term of less than one year for underlying securities
of the types described in clauses (3) and (4) entered into with an Approved Bank;
(6) any money market fund that meets the requirements of Rule 2a-7(c)(2), (3) and (4)
promulgated under the Investment Company Act of 1940, as amended;
(7) any other fund or funds making at least 95% of their Investments in Investments of
the kinds described in clauses (1) through (6) above;
(8) readily marketable direct obligations of any state of the United States or
political subdivision or taxing authority of any such state, having one of the two highest
rating categories obtainable from either Moodys or S&P and maturing not more than one year
from the date of acquisition; and
(9) in the case of any Foreign Subsidiary, investments denominated in the currency of
the jurisdiction in which such Foreign Subsidiary is organized or has its principal place of
business which are similar to the items specified in clauses (1) through (8) of this
definition.
Cash on Hand
means, as of any date of determination, the amount of cash and Cash Equivalents
of the Company and its Restricted Subsidiaries as set forth on the balance sheet of the Company as
of such day (it being understood that such amount shall exclude in any event any cash and Cash
Equivalents identified on such balance sheet as restricted (other than cash or Cash Equivalents
which are subject to a perfected security interest under the Credit Agreement) or otherwise subject
to any Lien in favor of any other Person (other than (i) security interests under the Credit
Agreement, (ii) customary Liens imposed by the applicable deposit bank in the ordinary course of
business and (iii) any non-consensual Liens permitted under the Credit Agreement or this
Indenture)).
Cash Management Obligations
means as applied to any Person, any direct or indirect
liability, contingent or otherwise, of such Person in respect of cash management services
(including treasury, depository, overdraft (daylight and temporary), credit or debit card,
electronic funds transfer and other cash management arrangements) provided by the agent or any
lender under the Credit Agreement or any affiliate thereof at the time such Cash Management
Obligations are entered into, including obligations for the payment of fees, interest, charges,
expenses, attorneys fees and disbursements in connection therewith to the extent provided for in
the documents evidencing such cash management services.
Change of Control
means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Company and the Restricted
Subsidiaries, taken as a whole, to any person (as that term is used in Section 13(d)(3) of
the Exchange Act);
6
(2) the adoption of a plan relating to the liquidation or dissolution of the Company;
(3) the Company becomes aware (by way of a report or other filing pursuant to Section
13(d) of the Exchange Act, proxy, vote, written notice or otherwise) that any person or
group (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) has become
the Beneficial Owner, directly or indirectly, of 50% or more of the voting power of the
Voting Stock of the Company; or
(4) the Company consolidates with, or merges with or into, any Person, or any Person
consolidates with, or merges with or into the Company, in any such event pursuant to a
transaction in which any of the outstanding Voting Stock of the Company is converted into or
exchanged for cash, securities or other property, other than any such transaction where (A)
the Voting Stock of the Company outstanding immediately prior to such transaction is
converted into or exchanged for Voting Stock (other than Disqualified Stock) of the
surviving or transferee Person constituting a majority of the voting power of the
outstanding shares of such Voting Stock of such surviving or transferee Person (immediately
after giving effect to such issuance) and (B) immediately after such transaction, no
person or group (as such terms are used in Section 13(d) and 14(d) of the Exchange Act),
becomes, directly or indirectly, the Beneficial Owner of 50% or more of the voting power of
the Voting Stock of the surviving or transferee Person.
Clearstream
means Clearstream Banking, société anonyme.
Commission
means the United States Securities and Exchange Commission.
Common Stock
means, with respect to any Person, any Capital Stock (other than Preferred
Stock) of such Person, whether outstanding on the Issue Date or issued thereafter.
Company
means the party named as such in this Indenture until a successor replaces it and,
thereafter, means the successor.
Company Order
means a written order signed in the name of the Company by any Person
authorized by a resolution of the Board of Directors of the Company.
Consolidated Adjusted EBITDA
means, for any period, the Consolidated Net Income of the
Company for such period
plus
:
(1) provision for taxes based on income or profits of the Company and the Restricted
Subsidiaries for such period, to the extent that such provision for taxes was deducted in
computing such Consolidated Net Income;
plus
(2) Fixed Charges of the Company and the Restricted Subsidiaries for such period, to
the extent that any such Fixed Charges were deducted in computing such Consolidated Net
Income;
plus
(3) depreciation, amortization (including amortization of intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period) and
7
other non-cash expenses (excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any future period or amortization
of a prepaid cash expense that was paid in a prior period) of the Company and the Restricted
Subsidiaries for such period to the extent that such depreciation, amortization and other
noncash expenses were deducted in computing such Consolidated Net Income;
plus
(4) non-cash contributions or accruals to or with respect to pension plans, deferred
profit sharing or compensation plans;
plus
(5) restructuring charges that are not paid in cash;
plus
(6) cash restructuring and integration charges in connection with the Transactions
incurred (but not necessarily paid) within 24 months of the Issue Date (provided, that in no
event shall the amount added in any period under this clause (6) exceed an amount that is
equal to 10.0% of the Companys Consolidated Adjusted EBITDA for such period, calculated,
solely for this purpose, without adding any amount under this clause (6));
plus
(7) the aggregate amount of any premium, make-whole or penalty payments actually paid
in cash by the Company and the Restricted Subsidiaries during such period that are required
to be made in connection with any repurchase, redemption, defeasance, discharge or other
prepayment of Existing Sealed Air Notes;
plus
(8) the aggregate amount of any premium, make-whole or penalty payments actually paid
in cash by the Company and the Restricted Subsidiaries during such period that are required
to be made in connection with any repurchase, redemption, defeasance, discharge or other
prepayment of Existing Diversey Notes;
plus
(9) commissions, fees and expenses paid in cash in connection with the repayment of any
Indebtedness, any Asset Sale, any Indebtedness Incurrence, the Transactions or any equity
issuance;
plus
(10) restructuring charges paid in cash in an amount not to exceed $10.0 million;
plus
(11) any costs, expenses or charges in connection with the EPC Transactions;
minus
(12) non-cash items increasing such Consolidated Net Income for such period, other than
(i) the accrual of revenue in the ordinary course of business and (ii) any items which
represent the reversal of an accrual of, or reserve for, anticipated cash charges that
reduced Consolidated Adjusted EBITDA in any prior period,
in each case, on a consolidated basis and determined in accordance with GAAP.
Consolidated Debt
means, at any time, (a) all Indebtedness (other than Guarantees and
Hedging Obligations) of the Company and its Restricted Subsidiaries determined on a
8
consolidated basis plus (b) principal and accrued interest associated with the W.R. Grace
Liability.
Consolidated Net Debt
means, at any time, Consolidated Debt less Cash on Hand.
Consolidated Net Income
means, for any period, the aggregate of the net income (loss) of the
Company and the Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP;
provided
that:
(1) the net income (loss) of any Person that is not a Restricted Subsidiary or that is
accounted for by the equity method of accounting shall be included only to the extent of the
amount of dividends or distributions paid in cash to the Company or a Restricted Subsidiary
(subject, in the case of dividends or distributions paid to a Restricted Subsidiary, to the
limitations contained in clause (2) below);
(2) solely for the purpose of determining the amount available for Restricted Payments
under subclause (i) of the second subclause (3) of clause (a) of Section 4.9, the net income
(but not the net loss) of any Restricted Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted Subsidiary
of that net income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly, by operation
of the terms of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Restricted Subsidiary or its
equityholders, unless any such restriction has been legally waived;
provided
that
Consolidated Net Income shall be increased by the amount of dividends or distributions that
are paid in cash by such Restricted Subsidiary to the Company or another Restricted
Subsidiary in respect of such period;
(3) any gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with: (a) any sale of assets outside the ordinary course of
business of the Company; or (b) the disposition of any securities by the Company or a
Restricted Subsidiary or the extinguishment of any Indebtedness of the Company or any
Restricted Subsidiary, shall be excluded;
(4) any extraordinary gain or loss, together with any related provision for taxes on
such extraordinary gain or loss, shall be excluded;
(5) any non-cash compensation expense realized for grants of performance shares, stock
options or other rights to officers, directors and employees of the Company and any
Restricted Subsidiary shall be excluded;
provided
that such shares, options or other
rights can be redeemed at the option of the holder only for Capital Stock (other than
Disqualified Stock of the Company);
(6) non-cash charges resulting from the impairment of goodwill or other intangible
assets shall be excluded; and
(7) the cumulative effect of a change in accounting principles shall be excluded.
9
Consolidated Total Assets
means, as of any date of determination, the total assets of the
Company and its Restricted Subsidiaries at such date determined on a consolidated basis, as shown
on the most recent internal balance sheet of the Company prepared in accordance with GAAP.
Corporate Trust Office
means a corporate trust office of the Trustee, at which at any
particular time its corporate trust business shall be administered, which office at the date of
execution of this Indenture is located at 452 Fifth Avenue, New York, New York 10018, or such other
address as the Trustee may designate from time to time by notice to the Holders and the Company, or
the principal corporate trust office of any successor Trustee (or such other address as such
successor Trustee may designate from time to time by notice to the Holders and the Company).
Credit Agreement
means that certain Credit Agreement, dated as of the Issue Date, by and
among the Company, the other borrowers named therein, the initial lenders named therein, the
initial issuing banks named therein, Citibank, N.A., as Agent, and Citigroup Global Markets Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, BNP Paribas Securities Corp. and RBS Securities
Inc., as Joint Lead Arrangers and Joint Bookrunning Managers, providing for up to $2.3 billion (or
the U.S. Dollar Equivalent thereof) in term loan borrowings and $700 million (or the U.S. Dollar
Equivalent thereof) of revolving credit borrowings, including any related notes, Guarantees,
collateral documents, instruments and agreements executed in connection therewith, and in each case
as amended, restated, modified, renewed, refunded, replaced (whether upon or after termination) or
refinanced from time to time (and whether or not with the same or any other borrower, issuer,
agent, lender or group of lenders), including any such refunding, replacement or refinancing
thereof that increases the amount to be borrowed thereunder or alters the maturity thereof
(
provided
that such increase in borrowings is permitted under Section 4.10).
Credit Facilities
means, one or more debt facilities (including, without limitation, the
Credit Agreement), commercial paper facilities or indentures, in each case with banks or other
institutional lenders or a trustee, providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to such lenders or to special purpose entities
formed to borrow from such lenders against such receivables), letters of credit or issuances of
notes or other instruments or agreements evidencing long-term Indebtedness (including any Specified
Structured Finance Transaction), in each case, as amended, restated, modified, renewed, refunded,
replaced (whether upon or after termination) or refinanced in whole or in part from time to time
(and whether or not with the same or any other borrower, issuer, agent, lender or group of
lenders), including any such refunding, replacement or refinancing thereof that increases the
amount to be borrowed thereunder or alters the maturity thereof (
provided
that such
increase in borrowings is permitted under Section 4.10).
Custodian
means any receiver, trustee, assignee, liquidator, custodian, administrator or
similar official under any Bankruptcy Law.
Default
means any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.
10
Depositary
means DTC until a successor Depositary, if any, shall have become such pursuant
to this Indenture, and thereafter Depositary shall mean or include each Person who is then a
Depositary hereunder.
Designated Non-cash Consideration
means the fair market value of non-cash consideration
received by the Company or a Restricted Subsidiary in connection with an Asset Sale that is so
designated as Designated Non-cash Consideration pursuant to an Officers Certificate, less the
amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection
on such Designated Non-cash Consideration.
Disinterested Member
means, with respect to any transaction or series of related
transactions, a member of the Companys Board of Directors who does not have any material direct or
indirect financial interest in or with respect to such transaction or series of related
transactions and is not an Affiliate, or an officer, director, member of a supervisory, executive
or management board or employee of any Person (other than the Company or a Restricted Subsidiary)
who has any direct or indirect financial interest in or with respect to such transaction or series
of related transactions.
Disqualified Stock
means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case, at the option
of the holder) or by contract or otherwise, is, or upon the happening of any event or passage of
time would be, required to be redeemed on or prior to the date that is 91 days after the date on
which the Notes mature, or is redeemable at the option of the holder thereof, or is convertible
into or exchangeable for debt securities at the option of the holder in any such case on or prior
to such date;
provided
,
however
, that if such Capital Stock is issued to any plan
for the benefit of employees of the Company or its Subsidiaries or by any such plan to employees,
such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be
repurchased by the Company or its Subsidiaries in order to satisfy applicable statutory or
regulatory obligations. Notwithstanding the preceding sentence, any Capital Stock that would
constitute Disqualified Stock solely because the holders thereof have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset
sale shall not constitute Disqualified Stock if (i) the asset sale or change of control
provisions applicable to such Capital Stock are no more favorable to the holders of such Capital
Stock than the provisions contained in Section 4.6 and Section 4.7 and (ii) such Capital Stock
specifically provides that such Person shall not repurchase or redeem any such stock pursuant to
such provision prior to the Companys repurchase of such Notes as are required to be repurchased
pursuant to Section 4.6 and Section 4.7. The term Disqualified Stock shall also include any
options, warrants or other rights that are convertible into Disqualified Stock or that are
redeemable at the option of the holder, or required to be redeemed, prior to the date that is 91
days after the date on which the Notes mature.
Diversey
means Diversey Holdings, Inc., a Delaware corporation.
Domestic Subsidiary
means any Restricted Subsidiary other than a Foreign Subsidiary.
DTC
means The Depository Trust Company.
11
EPC Transactions
means the transactions related to the reorganization of the Companys
European operations to function under a centralized management and value chain model.
Equity Interests
means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).
Equity Offering
means any public sale or private placement of Capital Stock (other than
Disqualified Stock) of the Company to any Person (other than any Subsidiary thereof) other than
pursuant to a registration statement on Form S-8 or otherwise relating to equity securities
issuable under any employee benefit plan of the Company.
EU Member State
means a member state of the European Union.
Euroclear
means Euroclear S.A./N.V., as operator of the Euroclear system.
euro
,
EUR
or
means the single currency of the Participating Member States.
Event of Loss
means, with respect to any property, any of the following:
(1) any loss, destruction or damage of such property;
(2) any pending institution of any proceedings for the condemnation or seizure of such
property or for the exercise of any right of eminent domain; or
(3) any actual condemnation, seizure or taking, by exercise of the power of eminent
domain or otherwise, of such property, or confiscation of such property or the requisition
of the use of such property.
Exchange Act
means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
Existing Diversey Notes
means, collectively, the 10.50% Senior Notes due 2020 issued by
Diversey on November 24, 2009 and the 8.25% Senior Notes due 2019 issued by Diversey, Inc. on
November 24, 2009.
Existing Indebtedness
means the aggregate amount of Indebtedness of the Company and the
Restricted Subsidiaries (other than Indebtedness under the Credit Agreement, the Notes and the
related Note Guarantees) in existence on the Issue Date after giving effect to the Transactions
until such amounts are repaid.
Existing Sealed Air Notes
means, collectively, the 5.625% Senior Notes due 2013, the 12%
Senior Notes due 2014, the 7.875% Senior Notes due 2017 and the 6.875% Senior Notes due 2033, in
each case, issued by the Company.
Fair Market Value
means the price that would be paid in an arms-length transaction between
an informed and willing seller under no compulsion to sell and an informed and willing
12
buyer under no compulsion to buy, as determined in good faith by the principal financial
officer of the Company, whose determination shall be conclusive.
Fixed Charge Coverage Ratio
means, for any period, the ratio of the Consolidated Adjusted
EBITDA of the Company for such period to the Fixed Charges of the Company for such period.
For purposes of calculating the Fixed Charge Coverage Ratio:
(1) in the event that the Company or any Restricted Subsidiary Incurs, repays,
repurchases or redeems any Indebtedness subsequent to the commencement of the period for
which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on
which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the
Calculation Date
), then the Fixed Charge Coverage Ratio shall be calculated giving
pro forma
effect to such Incurrence, repayment, repurchase or redemption of Indebtedness and
the use of the proceeds therefrom as if the same had occurred at the beginning of such
period;
(2) acquisitions and dispositions of business entities or property and assets
constituting a division or line of business of any Person that have been made by the Company
or any Restricted Subsidiary (or by any Person that has subsequently become a Restricted
Subsidiary or has subsequently merged or consolidated with or into the Company or any
Restricted Subsidiary), including through mergers or consolidations, and the designation or
redesignation of an Unrestricted Subsidiary, in each case, during the four-quarter reference
period or subsequent to such reference period and on or prior to the Calculation Date shall
be given
pro forma
effect as if they had occurred on the first day of the four-quarter
reference period and Consolidated Adjusted EBITDA for such reference period shall be
calculated on a
pro forma
basis;
(3) the Consolidated Adjusted EBITDA attributable to discontinued operations, as
determined in accordance with GAAP, shall be excluded;
(4) the Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, shall be excluded, but only to the extent that the obligations giving
rise to such Fixed Charges will not be obligations of the Company or any Restricted
Subsidiary following the Calculation Date;
(5) whenever
pro forma
effect is to be given to any transaction, the amount of
Consolidated Adjusted EBITDA relating thereto and the amount of Fixed Charges associated
with any Indebtedness Incurred in connection therewith, unless otherwise specified, the
pro
forma
calculations shall be made in good faith by a responsible financial or accounting
officer of the Company (and may include, for the avoidance of doubt, cost savings and
operating expense reductions resulting from such transaction that is being given
pro forma
effect that have been or are expected to be realized within 12 months after the date of such
acquisition, disposition, merger or consolidation);
(6) Fixed Charges attributable to interest on any Indebtedness (whether existing or
being Incurred) computed on a
pro forma
basis and bearing a floating interest
13
rate shall be computed as if the rate in effect on the Calculation Date (taking into
account any interest rate option, swap, cap or similar agreement applicable to such
Indebtedness if such agreement has a remaining term as at the Calculation Date in excess of
12 months or, if shorter, at least equal to the remaining term of such Indebtedness) had
been the applicable rate for the entire period;
(7) Fixed Charges attributable to interest on any Indebtedness incurred under a
revolving credit facility computed on a
pro forma
basis shall be calculated based on the
average daily balance of such Indebtedness for the four fiscal quarters subject to the
pro
forma
calculation; and
(8) Fixed Charges attributable to interest on any Indebtedness that may optionally be
determined at an interest rate based upon a factor of a prime or similar rate or other rate
shall be computed based upon the rate actually chosen on the Calculation Date by the
Company.
Fixed Charges
means, for any period, the sum, without duplication, of:
(1) the consolidated interest expense of the Company and the Restricted Subsidiaries
for such period, whether paid or accrued, including, without limitation, amortization of
original issue discount, non-cash interest payments (but excluding any non-cash interest
payments attributable to the movement in the mark-to-market valuation of Hedging Obligations
or other derivative instruments pursuant to GAAP), the interest component of any deferred
payment obligations, the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers acceptance
financings, and net of the effect of all payments made or received pursuant to interest rate
Hedging Obligations with respect to Indebtedness, and excluding (a) amortization of deferred
financing fees and debt issuance costs and (b) any non-cash interest expense imputed on any
convertible debt securities in accordance with FASB APB 14-1;
plus
(2) the consolidated interest expense of the Company and the Restricted Subsidiaries
that was capitalized during such period;
plus
(3) any interest expense on Indebtedness of another Person that is Guaranteed by the
Company or one of the Restricted Subsidiaries or secured by a Lien on assets of the Company
or a Restricted Subsidiary, but only to the extent such interest is actually paid by the
Company or any Restricted Subsidiary;
plus
(4) the product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of Disqualified Stock of the Company or a Restricted Subsidiary or
Preferred Stock of a Restricted Subsidiary, other than dividends on Equity Interests payable
solely in Equity Interests (other than Disqualified Stock) of the Company or to the Company
or a Restricted Subsidiary, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state and local
statutory tax rate of the issuer of such Disqualified or
14
Preferred Stock, expressed as a decimal, in each case, determined on a consolidated
basis and in accordance with GAAP.
Foreign Subsidiary
means, with respect to any Person, any Restricted Subsidiary of such
Person that is not organized or existing under the laws of the United States, any state thereof or
the District of Columbia and any Restricted Subsidiary of such Foreign Subsidiary.
French Structured Finance Transaction
means a structured finance transaction among Sealed
Air (Luxembourg), Sealed Air (France) and one or more financial institutions pursuant to which
Sealed Air (France) issues debt securities (the
French Notes
) to such financial
institutions that are guaranteed and secured by the Company or Sealed Air (Luxembourg) or another
Restricted Subsidiary of the Company and that may include certain equity features, with the
principal amount of the French Notes being payable at their maturity in cash and/or Equity
Interests issued by Sealed Air (France) and pursuant to the transaction, the Company or Sealed Air
(Luxembourg) or another Restricted Subsidiary may acquire the right to receive the principal
repayment of the French Notes.
GAAP
means generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants, the opinions and pronouncements of the Public Company Accounting
Oversight Board and in the statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as have been approved by a significant
segment of the accounting profession, which are in effect on the date of this Indenture.
Government Securities
means securities that are direct obligations of the United States of
America (including any agency or instrumentality thereof) for the timely payment of which its full
faith and credit is pledged.
Guarantee
means, as to any Person, a guarantee, other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or indirect, in any manner,
including, without limitation, by way of a pledge of assets or through letters of credit or
reimbursement agreements in respect thereof, of all or any part of any Indebtedness of another
Person, but excluding endorsements for collection or deposit in the ordinary course of business.
Guarantors
means:
(1) the Initial Guarantors; and
(2) any other subsidiary that executes a Note Guarantee in accordance with the
provisions of this Indenture;
and their respective successors and assigns until released from their obligations under their
Note Guarantees and this Indenture in accordance with the terms hereof.
Hedging Obligations
means, with respect to any specified Person, the obligations of such
Person under:
15
(1) any interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement or other similar agreement or arrangement;
(2) any commodity forward contract, commodity swap agreement, commodity option
agreement or other similar agreement or arrangement; or
(3) any foreign exchange contract, currency swap agreement, futures contract, option
agreement or other similar agreement or arrangement.
Holder
means a Person in whose name a Note is registered.
Incur
means, with respect to any Indebtedness, to incur, create, issue, assume, Guarantee or
otherwise become directly or indirectly liable for or with respect to, or become responsible for,
the payment of, contingently or otherwise, such Indebtedness (and Incurrence and Incurred shall
have meanings correlative to the foregoing);
provided
that (1) any Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary shall be deemed to be Incurred by
such Person at the time it becomes a Restricted Subsidiary and (2) neither the accrual of interest
nor the accretion of original issue discount nor the payment of interest in the form of additional
Indebtedness with the same terms or the payment of dividends on Disqualified Stock or Preferred
Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock
(to the extent provided for when the Indebtedness or Disqualified Stock or Preferred Stock on which
such interest or dividend is paid was originally issued) shall be considered an Incurrence of
Indebtedness.
Indebtedness
means, with respect to any specified Person, whether or not contingent:
(1) all obligations of such Person for borrowed money;
(2) all obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(3) all obligations of such Person to pay the deferred purchase price of property or
services (except (A) trade accounts payable and accrued expenses arising in the ordinary
course of business, (B) any earnout obligation until such obligation shall have become a
liability on the balance sheet of such Person in accordance with GAAP, and (C) obligations
of a 60-day or less duration, and which are not overdue, resulting from take-or-pay
contracts entered into 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;
(4) all Capital Lease Obligations and Attributable Debt;
(5) 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 three
Business Days);
16
(6) all Indebtedness secured by a Lien on any asset of such Person, whether or not such
Indebtedness is otherwise an obligation of such Person;
provided
,
however
,
that the amount of Indebtedness of such Person pursuant to this clause (6) shall be the
lesser of (A) the Fair Market Value of such asset at such time of determination and (B) the
amount of Indebtedness of such other Person so secured;
(7) net obligations of such Person under Hedging Obligations (the amount of any such
obligations to be equal at any time to the termination value of such agreement or
arrangement giving rise to such obligation that would be payable by such Person at such
time); and
(8) to the extent not otherwise included, the Guarantee by the specified Person of any
Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be the outstanding balance at
such date of all unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving rise to the
obligation. The amount of any Indebtedness described in clauses (1) and (2) above shall be:
(1) the accreted value thereof, in the case of any Indebtedness issued with original
issue discount; and
(2) the principal amount thereof, in the case of any other Indebtedness.
For purposes of determining any particular amount of Indebtedness, (x) Guarantees, Liens or
obligations with respect to letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included, and (y) any Liens granted pursuant
to the equal and ratable provisions of Section 4.11 shall not be treated as Indebtedness.
Indenture
means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the TIA that are expressly incorporated into this
instrument, and any such supplemental indenture, respectively.
Initial Guarantors
means all of the wholly owned Domestic Subsidiaries of the Company that
are guarantors under the Credit Agreement on the Issue Date, namely CPI Packaging, Inc., Cryovac,
Inc., Cryovac International Holdings Inc., Cryovac Leasing Corporation, Poly Packaging Systems,
Inc., Polypride, Inc., Reflectix, Inc., Sealed Air Corporation (US), Sealed Air Solutions Holdings,
Inc., Sealed Air LLC, Sealed Air Finance LLC, Sealed Air Nevada Holdings Limited (fka Sealed Air
Japan Limited), Shanklin Corporation, Diversey Holdings, Inc., Diversey, Inc., Auto-C, LLC, JDI CEE
Holdings, Inc., JDI Holdings, Inc., Diversey Puerto Rico, Inc., Diversey Shareholdings, Inc.,
Professional Shareholdings, Inc., The Butcher Company, JWP Investments, Inc. and JD Polymer, LLC.
17
Initial Purchasers
means BNP Paribas Securities Corp., Citigroup Global Markets Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. LLC, RBS Securities Inc.,
Credit Agricole Securities (USA) Inc., and Rabo Securities USA, Inc.
Interest Payment Date
means the Stated Maturity of an installment of interest on the Notes.
Investment Grade
means
(1) with respect to Moodys, a rating of Baa3 (or its equivalent under any successor
rating category of Moodys) or better;
(2) with respect to S&P, a rating of BBB- (or its equivalent under any successor rating
category of S&P) or better; and
(3) if any Rating Agency ceases to exist or ceases to rate the Notes for reasons
outside of the control of the Company, the equivalent investment grade credit rating from
any other nationally recognized statistical rating organization within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company as a replacement agency.
Investments
in any Person means all direct or indirect investments in such Person in the
form of loans or other extensions of credit (including Guarantees), advances, capital contributions
(by means of any transfer of cash or other property to others or any payment for property or
services for the account or use of others), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities issued by such Person, together with all items
that are or would be classified as investments on a balance sheet prepared in accordance with GAAP.
Issue Date
means October 3, 2011.
Japanese Structured Finance Transaction
means a structured finance transaction among the
Company, Sealed Air (Japan) and one or more financial institutions pursuant to which Sealed Air
(Japan) issues debt securities (the
Japanese Notes
) to such financial institutions that
may be guaranteed and secured by the Company or a Restricted Subsidiary of the Company and that may
include certain equity features, with the principal amount of the Japanese Notes being payable at
their maturity in cash and/or Equity Interests issued by Sealed Air (Japan) and pursuant to the
transaction, the Company or a Restricted Subsidiary of the Company may acquire the right to receive
the principal repayment of the Japanese Notes.
Leases
means leases and subleases (excluding Capital Lease Obligations) and licenses to use
property.
Legal Holiday
means a Saturday, a Sunday or a day on which banking institutions in The City
of New York or at a place of payment are authorized or required by law, regulation or executive
order to remain closed.
18
Lien
means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other agreement to sell or give a security interest
in and any filing of or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction.
Moodys
means Moodys Investors Service, Inc. and any successor to its rating agency
business.
Net Available Proceeds
means the aggregate proceeds, including payments in respect of
deferred payment obligations (to the extent corresponding to the principal, but not the interest
component, thereof), received in cash and Cash Equivalents by the Company or any Restricted
Subsidiary in respect of any Asset Sale (including, without limitation, any cash and Cash
Equivalents received upon the sale or other disposition of any non-cash consideration received in
any Asset Sale), net of (1) the direct costs relating to such Asset Sale, including, without
limitation, legal, accounting, investment banking and brokerage fees, and sales commissions, and
any relocation expenses incurred as a result thereof, (2) taxes paid or payable as a result
thereof, in each case, after taking into account any available tax credits or deductions and any
tax sharing arrangements, (3) in the case of any Asset Sale by a Restricted Subsidiary, payments to
holders of Equity Interests in such Restricted Subsidiary in such capacity (other than such Equity
Interests held by the Company or any Restricted Subsidiary) to the extent that such payment is
required to permit the distribution of such proceeds in respect of the Equity Interests in such
Restricted Subsidiary held by the Company or any Restricted Subsidiary and (4) appropriate amounts
to be provided by the Company or the Restricted Subsidiaries as a reserve against liabilities
associated with such Asset Sale, including, without limitation, pension and other post-employment
benefit liabilities, liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as determined in accordance with
GAAP.
Net Total Leverage Ratio
means, as of any date of determination, the ratio of (x)
Consolidated Net Debt as of such date to (y) Consolidated Adjusted EBITDA for the Test Period most
recently ended, in the case of each of clause (x) and (y), calculated on a
pro forma
basis in a
manner consistent with the adjustments set forth in the definition of Fixed Charge Coverage Ratio
set forth in this Section 1.1.
Non-Recourse Debt
means Indebtedness as to which (i) neither the Company nor any Restricted
Subsidiary provides any Guarantee and as to which the lenders will not have any recourse to the
stock or assets of the Company or any Restricted Subsidiary and (ii) no default thereunder would,
as such, constitute a default under any other Indebtedness of the Company or any Restricted
Subsidiary.
Note Guarantee
means a Guarantee of the Notes of any series pursuant to this Indenture.
19
Obligations
with respect to any Indebtedness means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under the documentation
governing such Indebtedness.
Offering Memorandum
means the offering memorandum, dated September 16, 2011, prepared by the
Company, related to the offering of the Notes.
Offer to Purchase
means an offer to purchase Notes by the Company from the Holders commenced
by mailing a notice (or otherwise distributing notice in accordance with the provisions of DTC) to
the Trustee and each Holder stating:
(1) the provision of this Indenture pursuant to which the offer is being made and that
all Notes validly tendered will be accepted for payment on a pro rata basis, by lot or by
such other method as the Trustee deems fair and appropriate or otherwise in accordance with
the procedures of DTC;
(2) the purchase price and the expected date of purchase, which shall be a Business Day
no earlier than 30 days nor later than 60 days from the date such notice is mailed (the
Payment Date
);
(3) that any Note not tendered will continue to accrue interest pursuant to its terms;
(4) that, unless the Company defaults in the payment of the purchase price, any Note
accepted for payment pursuant to the Offer to Purchase shall cease to accrue interest on and
after the Payment Date;
(5) that Holders electing to have a Note purchased pursuant to the Offer to Purchase
will be required to surrender the Note, together with the form entitled Option of the
Holder to Elect Purchase on the reverse side of the Note completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the Business Day
immediately preceding the Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the third Business Day immediately
preceding the Payment Date, a facsimile transmission, letter or other written notice setting
forth the name of such Holder, the principal amount of Notes delivered for purchase and a
statement that such Holder is withdrawing his election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered;
provided
that each Note purchased and each new Note issued shall be in a principal
amount of $2,000 or an integral multiple of $1,000 in excess thereof; and
(8) such other instructions, as determined by the Company, consistent with this
Indenture, that the Holders must follow.
20
On the Payment Date, the Company shall (a) accept for payment on a pro rata basis, by lot or
by such other method as the Trustee deems fair and appropriate or otherwise in accordance with the
procedures of DTC, Notes or portions thereof (and, in the case of an Offer to Purchase made
pursuant to Section 4.7, any other Pari Passu Debt included in such Offer to Purchase) tendered
pursuant to an Offer to Purchase; (b) deposit with the Paying Agent money sufficient to pay the
purchase price of all Notes or portions thereof so accepted; and (c) deliver, or cause to be
delivered, to the Trustee all Notes or portions thereof so accepted together with an Officers
Certificate specifying the Notes or portions thereof accepted for payment by the Company. The
Paying Agent shall promptly mail or send by wire transfer to the Holders of Notes so accepted
payment in an amount equal to the purchase price, and the Trustee shall promptly authenticate and
deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note
surrendered;
provided
that each Note purchased and each new Note issued shall be in a
principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company shall
publicly announce the results of an Offer to Purchase as soon as practicable after the Payment
Date. The Trustee shall act as the Paying Agent for an Offer to Purchase.
The Company shall comply with Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder, to the extent such laws and regulations are applicable, in the event
that the Company is required to repurchase Notes pursuant to an Offer to Purchase. To the extent
that the provisions of any securities laws or regulations conflict with the provisions of this
Indenture relating to an Offer to Purchase, the Company shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations under such provisions
of this Indenture by virtue of such conflict.
Officer
means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary or any Vice President of such Person.
Officers Certificate
means a certificate signed on behalf of the Company or a Guarantor by
an Officer of the Company or such Guarantor, who must be the principal executive officer, the
principal financial officer, the treasurer or the principal accounting officer or any other
executive officer of the Company or such Guarantor, that meets the requirements of this Indenture.
Opinion of Counsel
means an opinion from legal counsel who is reasonably acceptable to the
Trustee (who may be counsel to or an employee of the Company) that meets the requirements of this
Indenture.
Pari Passu Debt
means (a) any Indebtedness of the Company that ranks equally in right of
payment with the Notes or (b) any Indebtedness of a Guarantor that ranks equally in right of
payment with such Guarantors Note Guarantee.
Participating Member State
means any member state of the European Communities that adopts or
has adopted the euro as its lawful currency in accordance with legislation of the European
Community relating to Economic and Monetary Union.
21
Permitted Business
means any businesses conducted or proposed to be conducted (as described
in the Offering Memorandum) by the Company and its Restricted Subsidiaries on the Issue Date and
any other activities that are similar, ancillary or reasonably related to, or a reasonable
extension, expansion or development of, such businesses or ancillary thereto.
Permitted Investments
means:
(1) any Investment in the Company or in a Restricted Subsidiary;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary in a Person, if as a
result of such Investment:
(a) such Person becomes a Restricted Subsidiary; or
(b) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys all or substantially all of its assets to, or is liquidated
into, the Company or a Restricted Subsidiary;
(4) an Investment existing on the Issue Date, and any Investment that replaces,
refinances or refunds an existing Investment; provided that the new Investment does not
increase the amount of the Investment so replaced, refinanced or refunded except by an
amount equal to any premium or other reasonable amount paid in respect of the underlying
obligations and fees and expenses incurred in connection with such replacement, renewal or
extension;
(5) any Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.7;
(6) Hedging Obligations entered into for the purpose of fixing, limiting, managing,
hedging or swapping interest rate, commodity price or foreign currency exchange rate risk
(or to reverse or amend any such agreements previously made for such purposes), and not for
speculative purposes;
(7) (i) stock, obligations or securities received in satisfaction of judgments,
foreclosure of Liens or settlement of Indebtedness and (ii) any Investments received in
compromise of obligations of any trade creditor, supplier or customer that were incurred in
the ordinary course of business, including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of any such Person;
(8) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant to trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order to prevent
or limit loss;
22
(9) Investments consisting of extensions of credit or endorsements for collection or
deposit in the ordinary course of business;
(10) Guarantees of Leases and of other obligations not constituting Indebtedness of the
Company and its Restricted Subsidiaries entered into in the ordinary course of business;
(11) commission, payroll, travel, entertainment and similar advances to officers,
directors and employees of the Company or any Restricted Subsidiary in the ordinary course
of business;
(12) Investments in financial institutions that serve as counterparties for the
Specified Structured Finance Transactions to the extent they represent indirect Investments
in the corresponding Indebtedness of the Company or any Restricted Subsidiary Incurred
pursuant to Section 4.10(b)(1);
(13) any Investment by the Company or a Restricted Subsidiary of the Company in a
Subsidiary in connection with any receivables financing permitted pursuant to Section
4.10(b)(1) that, in the good faith determination of the Company, is necessary or advisable
to effect such receivables financing;
(14) loans and advances to employees and any guarantees thereof made in the ordinary
course of business, but in any event not in excess of $10.0 million in the aggregate at any
one time outstanding;
(15) Investments the payment for which consists of Equity Interests (exclusive of
Disqualified Stock) of the Company; and
(16) additional Investments having an aggregate Fair Market Value (measured on the date
each such Investment was made and without giving effect to subsequent changes in value),
when taken together with all other Investments made pursuant to this clause (16) that are at
that time outstanding, not to exceed an amount equal to the greater of $250.0 million and
2.1% of Consolidated Total Assets.
Permitted Liens
means:
(1) Liens on the assets of the Company and any Restricted Subsidiary securing
Indebtedness Incurred under Section 4.10(b)(1);
(2) Liens in favor of the Company or any Restricted Subsidiary that is a Guarantor;
(3) Liens on the assets of any Restricted Subsidiary that is not a Guarantor to secure
Indebtedness Incurred by such Restricted Subsidiary or another Restricted Subsidiary that is
not a Guarantor;
23
(4) Liens on property of a Person existing at the time such Person is merged with or
into or consolidated with the Company or any Restricted Subsidiary;
provided
that
such Liens were not incurred in contemplation of such merger or consolidation;
(5) Liens securing the Notes and the Note Guarantees;
(6) Liens on property existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary of the Company,
provided
that such Liens were not incurred in
contemplation of such acquisition and do not extend to any property other than the property
so acquired by the Company or the Restricted Subsidiary;
(7) Liens existing on the Issue Date (other than any Liens securing Indebtedness
Incurred under Section 4.10(b)(1) or Cash Management Obligations);
(8) Liens securing Permitted Refinancing Indebtedness;
provided
that such Liens
do not extend to any property or assets other than the property or assets that secure the
Indebtedness being refinanced;
(9) Liens on property or assets securing Indebtedness used to defease or to satisfy and
discharge the Notes;
provided
that (a) the Incurrence of such Indebtedness was not
prohibited by this Indenture and (b) such defeasance or satisfaction and discharge is not
prohibited by this Indenture;
(10) 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 that were not incurred with 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 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;
(11) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
Section 4.10(b)(4);
provided
that any such Lien (i) covers only the assets acquired,
constructed or improved with such Indebtedness and (ii) is created within 180 days of such
acquisition, construction or improvement;
(12) Liens securing Hedging Obligations of the Company or any Restricted Subsidiary (a)
that are Incurred for the purpose of fixing, limiting, managing, hedging or swapping
interest rate, commodity price or foreign currency exchange rate risk (or to reverse or
amend any such agreements previously made for such purposes), and not for speculative
purposes, or (b) securing letters of credit that support such Hedging Obligations;
(13) (i) pledges or deposits by any Person under workers compensation laws,
unemployment insurance laws or other social security legislation, and deposits securing
liability to insurance carriers under related insurance or self insurance arrangements, (ii)
Liens incurred in the ordinary course of business securing insurance premiums or
24
reimbursement obligations under insurance policies related to the items specified in
the foregoing clause (i), or (iii) obligations in respect of letters of credit or bank
guarantees that have been posted by such Person to support the payment of the items set
forth in clauses (i) and (ii) of this clause (13);
(14) (i) deposits to secure the performance of bids, tenders, contracts (other than for
borrowed money) or Leases to which any Person is a party, (ii) deposits to secure public or
statutory obligations of such Person, surety and appeal bonds, performance bonds and other
obligations of a like nature, (iii) deposits as security for contested taxes or import
duties or for the payment of rent, and (iv) obligations in respect of letters of credit or
bank guarantees that have been posted by such Person to support the payment of items set
forth in clauses (i) and (ii) of this clause (14);
(15) Liens consisting of pledges or deposits of cash or securities made by any Person
as a condition to obtaining or maintaining any licenses issued to it by, or to satisfy other
similar requirements of, any applicable government or any agency or political subdivision
thereof;
(16) Liens imposed by law, such as (i) carriers, warehousemens and mechanics,
materialmens, landlords, or repairmens Liens, or (ii) other like Liens arising in the
ordinary course of business securing obligations which are not overdue by more than 60 days
or which if more than 60 days overdue, the period of grace, if any, related thereto has not
expired or which are being contested in good faith by appropriate proceedings;
provided
that a reserve or other appropriate provision shall have been made therefor
as appropriate in accordance with GAAP;
(17) Liens arising out of judgments or awards not constituting an Event of Default;
(18) Liens for property taxes not yet due and payable or which are being contested in
good faith and by appropriate proceedings (and as to which all foreclosures and other
enforcement proceedings shall have been fully bonded or otherwise effectively stayed);
(19) survey exceptions, encumbrances, easements or reservations of, or rights of others
for rights of way, sewers, electric lines, telegraph and telephone lines and other similar
purposes, or other restrictions or encumbrances as to the use of real properties or Liens
incidental to the conduct of the business of any Person or to the ownership of its
properties which were not incurred in connection with and do not secure Indebtedness and do
not in the aggregate materially impair the use of such real property for the purpose for
which it is held or materially interfere with the ordinary operation of the business of such
Person;
(20) any zoning, building or similar laws, ordinances or rights reserved to or vested
in any government or any agency or political subdivision thereof, which are not violated by
existing improvements or the present use of real property;
25
(21) Liens for taxes, assessments, charges or other governmental levies not overdue by
more than 60 days or which if more than 60 days overdue, the period of grace, if any,
related thereto has not expired or which are being contested in good faith by appropriate
proceedings;
provided
that a reserve or other appropriate provision shall have been
made therefor as appropriate in accordance with GAAP;
(22) Liens arising in the ordinary course of business by virtue of any contractual,
statutory or common law provision relating to bankers Liens, rights of set off or similar
rights and remedies covering deposit or securities accounts (including funds or other assets
credited thereto and pooling and netting arrangements) or other funds maintained with a
depository institution or securities intermediary;
(23) restrictions on transfers of securities imposed by applicable securities laws;
(24) (i) any interest or title of a lessor, licensor or sublessor under any Lease,
license or sublease entered into by any Person in the ordinary course of its business and
covering only the assets so leased, licensed or subleased that do not materially detract
from the value of such assets or interfere with the ordinary conduct of the business
conducted and proposed to be conducted regarding such asset and (ii) the rights reserved or
vested in any other Person by the terms of any Lease, license, franchise, grant or permit
held by such Person or by a statutory provision to terminate any such Lease, license,
franchise, grant or permit or to require periodic payments as a condition to the continuance
thereof;
(25) assignments of insurance or condemnation proceeds provided to landlords (or their
mortgagees) pursuant to the terms of any Lease and Liens or rights reserved in any Lease for
rent or for compliance with the terms of such Lease;
(26) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by any Person in the ordinary course of business
not prohibited by this Indenture;
(27) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods in the ordinary
course of business;
(28) ground leases or subleases, licenses or sublicenses in respect of real property on
which facilities owned or leased by the Company or any of its Restricted Subsidiaries are
located;
(29) any interest or title of a lessor, sublessor, licensor or sublicensor or secured
by a lessors, sublessors, licensors or sublicensors interest under any lease, sublease,
license or sublicense permitted by this Indenture;
(30) Liens arising from precautionary UCC financing statement filings (or similar
filings under applicable law) regarding Leases or consignments;
26
(31) Liens on goods or inventory the purchase, shipment or storage price of which is
financed by a documentary letter of credit or bankers acceptance issued or created for the
account of the Company or any of its Restricted Subsidiaries;
(32) Liens arising from security interest filings which no longer secure any
Indebtedness; and
(33) other Liens securing obligations in an aggregate principal amount not to exceed
the greater of $325.0 million and 2.8% of Consolidated Total Assets at any one time
outstanding.
Permitted Refinancing Indebtedness
means any Indebtedness, Disqualified Stock or Preferred
Stock of the Company or any Restricted Subsidiary issued in exchange for, or the net cash proceeds
of which are used to extend, refinance, renew, replace, defease, discharge or refund any
Indebtedness, Disqualified Stock or Preferred Stock of the Company or any Restricted Subsidiary
(other than Indebtedness owed to the Company or to any Subsidiary of the Company);
provided
that:
(1) the amount of such Permitted Refinancing Indebtedness does not exceed the amount of
the Indebtedness, Disqualified Stock or Preferred Stock so extended, refinanced, renewed,
replaced, defeased, discharged or refunded (plus all accrued and unpaid interest thereon and
the amount of any reasonably determined premium (including tender premiums) necessary to
accomplish such refinancing and such reasonable fees, costs and expenses incurred in
connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness, Disqualified Stock or Preferred
Stock being extended, refinanced, renewed, replaced, defeased, discharged or refunded;
(3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes or the Note Guarantees, such
Permitted Refinancing Indebtedness is subordinated in right of payment to the Notes or the
Note Guarantees, as applicable, on terms at least as favorable, taken as a whole, to the
Holders of Notes as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased, discharged or refunded;
(4) if Disqualified Stock is being extended, refinanced, renewed, replaced, defeased or
refunded, it shall be extended, refinanced, renewed, replaced, defeased or refunded with
Disqualified Stock, and if Preferred Stock is being extended, refinanced, renewed, replaced,
defeased or refunded, it shall be extended, refinanced, renewed, replaced, defeased or
refunded with Preferred Stock; and
(5) if the obligor on the Indebtedness, Disqualified Stock or Preferred Stock being
extended, refinanced, renewed, replaced, defeased, discharged or refunded is the
27
Company or a Guarantor, the Permitted Refinancing Indebtedness may only be Incurred by
the Company or a Guarantor.
Person
means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company, government or
any agency or political subdivision thereof or other entity.
Preferred Stock
means, with respect to any Person, any Capital Stock of such Person that has
preferential rights to any other Capital Stock of such Person with respect to dividends or
redemptions upon liquidation.
QIB
means a Qualified Institutional Buyer as defined under Rule 144A.
Rating Agency
means each of Moodys and S&P and, if any of Moodys or S&P ceases to exist or
ceases to rate the Notes for reasons outside of the control of the Company, any other nationally
recognized statistical rating organization within the meaning of Rule 15c3-1(c)(2)(vi)(F) under
the Exchange Act selected by the Company as a replacement agency.
Record Date
for the interest payable on any Interest Payment Date means the March 1 or
September 1 (whether or not a Business Day), as the case may be, next preceding such Interest
Payment Date.
Redemption Date
, when used with respect to any Note to be redeemed, in whole or in part,
means the date fixed for such redemption by or pursuant to this Indenture.
Redemption Price
, when used with respect to any Note to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.
Regulation S
means Regulation S under the Securities Act (including any successor regulation
thereto), as it may be amended from time to time.
Replacement Assets
means (1) assets that are not classified as current assets under GAAP and
that are used or useful in a Permitted Business, (2) substantially all the assets of a Permitted
Business, or (3) a majority of the Voting Stock of any Person engaged in a Permitted Business that
will become on the date of acquisition thereof a Restricted Subsidiary.
Restricted Period
means the 40-day distribution compliance period as defined in Regulation
S.
Restricted Subsidiary
means any Subsidiary of the Company that is not an Unrestricted
Subsidiary.
Rule 144
means Rule 144 under the Securities Act (including any successor regulation
thereto), as it may be amended from time to time.
Rule 144A
means Rule 144A under the Securities Act (including any successor regulation
thereto), as it may be amended from time to time.
28
Rule 903
means Rule 903 under the Securities Act (including any successor regulation
thereto), as it may be amended from time to time.
Rule 904
means Rule 904 under the Securities Act (including any successor regulation
thereto), as it may be amended from time to time.
S&P
means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.,
and any successor to its rating agency business.
Sale and Leaseback Transaction
means, with respect to any Person, any transaction involving
any of the assets or properties of such Person whether now owned or hereafter acquired, whereby
such Person sells or otherwise transfers such assets or properties and then or thereafter leases
such assets or properties or any part thereof which such Person intends to use for substantially
the same purpose or purposes as the assets or properties sold or transferred.
Sealed Air (France)
means Sealed Air Holdings S.A.S. or another Subsidiary of the Company
that is incorporated or organized in France.
Sealed Air (Japan)
means Sealed Air Japan K.K., Diversey Co. Ltd. (Japan) or another
Subsidiary of the Company that is incorporated or organized in Japan.
Sealed Air (Luxembourg)
means Sealed Air Luxembourg S.C.A. or another Subsidiary of the
Company that is incorporated or organized in Luxembourg.
Securities Act
means the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
Significant Subsidiary
means any Subsidiary that would constitute a significant subsidiary
within the meaning of Article 1 of Regulation S-X of the Securities Act.
Specified Structured Finance Transactions
means the Japanese Structured Finance Transaction
and the French Structured Finance Transaction.
Stated Maturity
means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which such installment of interest or principal was scheduled
to be paid in the original documentation governing such Indebtedness, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or principal prior to the
date originally scheduled for the payment thereof.
Subsidiary
means, with respect to any Person:
(1) a corporation a majority of whose Voting Stock is at the time owned or controlled,
directly or indirectly, by such Person, one or more Subsidiaries thereof or such Person and
one or more Subsidiaries thereof; and
(2) any other Person (other than a corporation), including, without limitation, a
partnership, limited liability company, business trust or joint venture, in which such
Person, one or more Subsidiaries thereof or such Person and one or more Subsidiaries
29
thereof, directly or indirectly, at the date of determination thereof, has at least
majority ownership interest entitled to vote in the election of directors, managers or
trustees thereof (or other Person performing similar functions).
TIA
means the Trust Indenture Act of 1939 as amended, and the rules and regulations of the
Commission promulgated thereunder.
Test Period
means the four consecutive fiscal quarters of the Company then last ended, in
each case taken as one accounting period.
Transactions
means (i) the Acquisition, (ii) the borrowings under the Credit Agreement to
finance the Acquisition, (iii) the issuance of the Notes, (iv) any repayment, redemption,
defeasance, discharge or other refinancing of Indebtedness of Diversey and its subsidiaries,
including the Existing Diversey Notes, (v) the issuance of the Companys common shares to pay the
equity portion of the consideration for the Acquisition, (vi) any related transaction undertaken or
consummated in connection with clauses (i) through (v), and (vii) the payment of fees, premiums and
expenses in connection with clauses (i) through (vi) of this definition, all as described in the
Offering Memorandum under Use of Proceeds.
Treasury Rate
means the yield to maturity at the time of computation of United States
Treasury securities with a constant maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15 (519) which has become publicly available at least two Business
Days prior to the date fixed for redemption (or, if such Statistical Release is no longer
published, any publicly available source for similar market data)) most nearly equal to the period
from the redemption date to September 15, 2015, in the case of the 2019 Notes, or September 15,
2016, in the case of the 2021 Notes;
provided
,
however
, that if the then remaining
term of the Notes to September 15, 2015, in the case of the 2019 Notes, or September 15, 2016, in
the case of the 2021 Notes, is not equal to the constant maturity of a United States Treasury
security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of
United States Treasury securities for which such yields are given, except that if the then
remaining term of the Notes to September 15, 2015, in the case of the 2019 Notes, or September 15,
2016, in the case of the 2021 Notes, is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one year shall be used.
Trustee
means the party named as such in this Indenture until a successor replaces it in
accordance with the provisions of this Indenture and, thereafter, means the successor serving
hereunder.
Trust Officer
means, when used with respect to the Trustee, any vice president, assistant
vice president, assistant treasurer or trust officer in the corporate trust administration of the
Trustee or any other officer of the Trustee customarily performing functions similar to those
performed by any of the above-designated officers, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject, and, in each case, who shall have direct
responsibility for the administration of this Indenture.
30
U.S. Dollar Equivalent
means with respect to any monetary amount in a currency other than
U.S. dollars, at any time for determination thereof, the amount of U.S. dollars obtained by
converting such foreign currency involved in such computation into U.S. dollars at the spot rate
for the purchase of U.S. dollars with the applicable foreign currency as published in The Wall
Street Journal in the Exchange Rates column under the heading Currency Trading on the date two
Business Days prior to such determination.
Unrestricted Subsidiary
means any Subsidiary of the Company that is designated by the Board
of Directors of the Company as an Unrestricted Subsidiary pursuant to a Board Resolution in
compliance with Section 4.14, and any Subsidiary of such Subsidiary.
U.S. dollars
,
dollars
or
$
means the lawful currency of the United States of America.
Voting Stock
of any Person as of any date means the Capital Stock of such Person that is
ordinarily entitled to vote in the election of the Board of Directors of such Person.
Weighted Average Life to Maturity
means, when applied to any Indebtedness at any date, the
number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the number of
years (calculated to the nearest one-twelfth) that will elapse between such date and the
making of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
Wholly Owned Restricted Subsidiary
means a Restricted Subsidiary all of the outstanding
Capital Stock or other ownership interests of which (other than directors qualifying shares or
Investments by foreign nationals mandated by applicable law) will at the time be owned by the
Company or by one or more Wholly Owned Restricted Subsidiaries.
W.R. Grace Liability
means the obligations of the Company and Cryovac, Inc.
(
Cryovac
) pursuant to that certain Settlement Agreement and Release, dated November 10,
2003, by and among the Company, Cryovac, and the official committees appointed to represent
asbestos personal injury claimants and asbestos property damage claimants in the jointly
administered Chapter 11 cases of W.R. Grace & Co. and its affiliated debtors, Case No. 01-01139
(JKF) (Bankr. D. Del.).
31
Section 1.2.
Other Definitions.
|
|
|
|
|
Term
|
|
Defined in Section
|
2019 Notes
|
|
Recitals
|
2021 Notes
|
|
Recitals
|
Additional Notes
|
|
Recitals
|
Additional 2019 Notes
|
|
Recitals
|
Additional 2021 Notes
|
|
Recitals
|
Affiliate Transaction
|
|
4.13
|
Approved Bank
|
|
1.1 (in the definition of Cash Equivalents)
|
Bankruptcy Significant Subsidiaries
|
|
6.1
|
Calculation Date
|
|
1.1 (in the definition of Fixed Charge Coverage Ratio)
|
Certificated Note Event
|
|
2.10 (a)
|
Covenant Defeasance
|
|
8.3
|
Cryovac
|
|
1.1 (in the definition of W.R. Grace Liability
|
Defaulted Interest
|
|
2.12
|
Event of Default
|
|
6.1(a)
|
Excess Proceeds
|
|
4.7
|
French Notes
|
|
1.1 (in the definition of French Structured Finance Transaction)
|
Global Notes
|
|
2.1(c)
|
Japanese Notes
|
|
1.1 (in the definition of Japanese Structured Finance Transaction)
|
Legal Defeasance
|
|
8.2
|
Notes
|
|
Recitals
|
Original Notes
|
|
Recitals
|
Original 2019 Notes
|
|
Recitals
|
Original 2021 Notes
|
|
Recitals
|
Participants
|
|
2.1(c)
|
Paying Agent
|
|
2.3
|
Payment Date
|
|
1.1 (in the definition of Offer to Purchase)
|
Payment Default
|
|
6.1
|
Permitted Debt
|
|
4.10
|
Registrar
|
|
2.3
|
Regulation S Global Note
|
|
2.1(b)
|
Regulation S Permanent Global Note
|
|
2.1(b)
|
Regulation S Temporary Global Note
|
|
2.1(b)
|
Restricted Global Note
|
|
2.1(b)
|
Restricted Payment
|
|
4.9
|
Reversion Date
|
|
4.8
|
Security Register
|
|
2.3
|
32
|
|
|
|
|
Term
|
|
Defined in Section
|
series
|
|
Recitals
|
Suspension Date
|
|
4.8
|
Suspension Period
|
|
4.8
|
Transfer
|
|
1.1 (in the definition of Asset Sale)
|
Transfer Agent
|
|
2.3
|
Unused Amount
|
|
4.9
|
Section 1.3.
Incorporation by Reference of TIA.
This Indenture has not been qualified under the TIA. Whenever this Indenture expressly
refers to a provision of the TIA, such provision is incorporated by reference in, and made a part
of, this Indenture, but only to the extent it has been expressly referred to herein. The following
TIA terms have the following meanings as used in this Indenture:
indenture securities
means the Notes.
indenture securities holder
means a Holder.
indenture to be qualified
means this Indenture.
indenture trustee
or
institutional trustee
means the Trustee.
obligor
on the
indenture securities
means the Company and the Guarantors.
Section 1.4.
Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned to it in accordance
with GAAP;
(iii) or is not exclusive;
(iv) including or include means including or include without limitation;
(v) words in the singular include the plural and words in the plural include the singular;
(vi) unsecured Indebtedness shall not be deemed to be subordinated or junior to secured
Indebtedness merely by virtue of its nature as unsecured Indebtedness and senior Indebtedness shall
not be deemed to be subordinated or junior to any other senior Indebtedness merely because it has a
junior priority with respect to the same collateral;
(vii) the words herein, hereof and hereunder and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section, clause or other subdivision;
and
33
(viii) for purposes of the covenants and definitions set forth in this Indenture, amounts
stated in U.S. dollars shall be deemed to include both U.S. dollars and U.S. Dollar Equivalents.
ARTICLE 2
THE NOTES
Section 2.1.
The Notes.
(a)
Form and Dating
. The Notes and the Trustees certificate of authentication
shall be substantially in the form of Exhibit A-1 hereto, in the case of the 2019 Notes, and
Exhibit A-2 hereto, in the case of the 2021 Notes, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this Indenture. The Notes may
have notations, legends or endorsements required by law, the rules of any securities exchange or
usage. The Company shall approve the form of the Notes. Each Note shall be dated the date of its
authentication. The terms and provisions contained in the form of the Notes shall constitute and
are hereby expressly made a part of this Indenture. The Notes shall be issued only in fully
registered form without coupons and only in minimum denominations of $2,000 and integral multiples
of $1,000 in excess thereof.
(b)
Global Notes
. Notes offered and sold in reliance on Regulation S shall be issued
initially in the form of a temporary Global Note substantially in the form of Exhibit A-1 hereto,
in the case of the 2019 Notes, and Exhibit A-2 hereto, in the case of the 2021 Notes, with such
applicable legends as are provided in Exhibit A-1 hereto, in the case of the 2019 Notes, and
Exhibit A-2 hereto, in the case of the 2021 Notes, except as otherwise permitted herein (each, a
Regulation S Temporary Global Note
), which shall be deposited on behalf of the purchasers
of the Notes represented thereby with the Trustee, as custodian for the Depositary, and registered
in the name of the Depositary or the nominee of the Depositary for the accounts of designated
agents holding on behalf of Euroclear or Clearstream, duly executed by the Company and
authenticated by the Trustee (or an authenticating agent appointed by the Trustee in accordance
with Section 2.2) as hereinafter provided.
Following (i) the expiration of the Restricted Period and (ii) receipt by the Trustee of
certification in a form reasonably satisfactory to the Trustee that beneficial interests in such
Regulation S Temporary Global Notes are owned either by non-U.S. persons (as defined in Regulation
S) or U.S. persons who purchased such interests in a transaction that did not require registration
under the Securities Act, beneficial interests in each Regulation S Temporary Global Note shall be
exchanged for beneficial interests in a permanent Global Note in the form of Exhibit A-1 hereto, in
the case of the 2019 Notes, and Exhibit A-2 hereto, in the case of the 2021 Notes, with such
applicable legends as are provided in Exhibit A-1 hereto, in the case of the 2019 Notes, and
Exhibit A-2 hereto, in the case of the 2021 Notes, except as otherwise permitted herein (each, a
Regulation S Permanent Global Note
and, together with the Regulation S Temporary Global
Notes, the
Regulation S Global Notes
). Simultaneously with the authentication of the
corresponding Regulation S Permanent Global Note, the Trustee shall cancel the corresponding
Regulation S Temporary Global Note. The aggregate principal amount of a Regulation S Temporary
Global Note and a Regulation S Permanent Global Note may from time to time be increased or
decreased by adjustments made by the Registrar on Schedule A to the applicable Regulation S
Temporary Global Note or the applicable Regulation S Permanent Global Note, as the case may be, and
recorded in the Security Register, as hereinafter provided.
34
The provisions of the The Operating Procedures of the Euroclear System and Terms and
Conditions governing use of Euroclear and the General Terms and Conditions and Customer
Handbook of Clearstream shall be applicable to transfers of beneficial interests in the Regulation
S Global Note that are held by Participants through Euroclear or Clearstream.
Notes offered and sold to QIBs in reliance on Rule 144A shall be issued initially in the form
of one or more Global Notes substantially in the form of Exhibit A-1 hereto, in the case of the
2019 Notes, and Exhibit A-2 hereto, in the case of the 2021 Notes, with such applicable legends as
are provided in Exhibit A-1 hereto, in the case of the 2019 Notes, and Exhibit A-2 hereto, in the
case of the 2021 Notes, except as otherwise permitted herein (each, a
Restricted Global
Note
), which shall be deposited on behalf of the purchasers of the Notes represented thereby
with the Depositary, and registered in the name of the Depositary or its nominee, as the case may
be, duly executed by the Company and authenticated by the Trustee (or an authenticating agent
appointed by the Trustee in accordance with Section 2.2) as hereinafter provided. The aggregate
principal amount of any Restricted Global Note may from time to time be increased or decreased by
adjustments made by the Registrar on Schedule A to such Restricted Global Note and recorded in the
Security Register, as hereinafter provided.
(c)
Book-Entry Provisions
. This Section 2.1(c) shall apply to the Regulation S Global
Notes and the Restricted Global Notes (collectively, the
Global Notes
) deposited with or
on behalf of the Depositary.
Members of, or participants and account holders in DTC, Euroclear and Clearstream
(
Participants
) shall have no rights under this Indenture with respect to any Global Note
held on their behalf by the Depositary, or by the Trustee or any custodian of the Depositary or
under such Global Note, and the Depositary or its nominee may be treated by the Company, the
Guarantors, the Trustee and any agent of the Company, the Guarantors or the Trustee as the sole
owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Guarantors, the Trustee or any agent of the Company, any
Guarantor or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary and its
Participants, the operation of customary practices of such persons governing the exercise of the
rights of an owner of a beneficial interest in any Global Note.
Subject to the provisions of Section 2.10(b), the registered Holder of a Global Note may grant
proxies and otherwise authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action that a Holder is entitled to take under this
Indenture or the Notes.
Except as provided in Section 2.10, owners of a beneficial interest in Global Notes shall not
be entitled to receive physical delivery of certificated Notes.
Section 2.2.
Execution and Authentication.
An authorized Officer of the Company shall sign the Notes for the Company by manual or
facsimile signature.
If an authorized Officer whose signature is on a Note no longer holds that office at the time
the Trustee authenticates the Note, the Note shall be valid nevertheless.
35
A Note shall not be valid or obligatory for any purpose until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The signature shall be
conclusive evidence that the Note has been authenticated under this Indenture.
Pursuant to a Company Order, the Company shall execute and the Trustee shall authenticate (a)
Original Notes for original issue in an aggregate principal amount of $750,000,000, in the case of
the Original 2019 Notes, and $750,000,000, in the case of the Original 2021 Notes, and (b)
Additional Notes subject to compliance at the time of issuance of such Additional Notes with the
provisions of this Indenture. The aggregate principal amount of Notes outstanding shall not exceed
the amount of Notes so executed and authenticated except as provided in Section 2.7.
The Trustee may appoint an authenticating agent reasonably acceptable to the Company to
authenticate the Notes. Unless limited by the terms of such appointment, any such authenticating
agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by any such agent. An authenticating agent
has the same rights as any Registrar, co-Registrar, Transfer Agent or Paying Agent to deal with the
Company or an Affiliate of the Company.
The Trustee shall have the right to decline to authenticate and deliver any Notes under this
Section 2.2 if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken or if the Trustee in good faith shall determine that such action would expose the Trustee
to personal liability to existing Holders.
Section 2.3.
Registrar, Transfer Agent and Paying Agent
. The Company shall maintain an office or agency for the registration of the Notes and of
their transfer or exchange (the
Registrar
), an office or agency where Notes may be
transferred or exchanged (the
Transfer Agent
), an office or agency where the Notes may be
presented for payment (the
Paying Agent
) and an office or agency where notices or demands
to or upon the Company in respect of the Notes may be served.
The Company shall maintain a Transfer Agent and Paying Agent in New York, New York. The
Company may appoint one or more Transfer Agents, one or more co-Registrars and one or more
additional Paying Agents. The Company or any or its Subsidiaries incorporated in the United States
may act as Transfer Agent, Registrar, co-Registrar, Paying Agent and agent for service of notices
and demands in connection with the Notes;
provided
,
however
, that neither the
Company nor any of its Affiliates shall act as Paying Agent for the purposes of Article Eight.
The Company hereby appoints HSBC Bank USA, National Association located at the address set
forth in Section 12.2(a) as Registrar and as Transfer Agent and Paying Agent in New York, New York
and agent for service of notices and demands in connection with the Notes.
Subject to any applicable laws and regulations, the Company shall cause the Registrar to keep
a register (the
Security Register
) at its corporate trust office in which, subject to
such reasonable regulations it may prescribe, the Company shall provide for the registration of
ownership, exchange, and transfer of the Notes. Such registration in the Security Register shall
be conclusive evidence of the ownership of the Notes. Included in the books and records for the
36
Notes shall be notations as to whether such Notes have been paid, exchanged or transferred,
canceled, lost, stolen, mutilated or destroyed and whether such Notes have been replaced. In the
case of the replacement of any of the Notes, the Registrar shall keep a record of the Note so
replaced and the Note issued in replacement thereof. In the case of the cancellation of any of the
Notes, the Registrar shall keep a record of the Note so canceled and the date on which such Note
was canceled.
The Company shall enter into an appropriate agency agreement with any Paying Agent or
co-Registrar not a party to this Indenture. Any such agreement shall implement the provisions of
this Indenture that relate to such agent. The Company shall notify the Trustee of the name and
address of any such agent. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to
Section 7.6.
Section 2.4.
Paying Agent to Hold Money in Trust
. Not later than 11:00 am (New York, New York time) on each due date of the principal,
premium, if any, and interest on any Notes, the Company shall deposit with the Paying Agent money
in immediately available funds sufficient to pay such principal, premium, if any, and interest so
becoming due on the due date for payment under the Notes. The Company shall require each Paying
Agent other than the Trustee to agree in writing that such Paying Agent shall hold in trust for the
benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of
principal of, premium, if any, and interest on the Notes (whether such money has been paid to it by
the Company or any other obligor on the Notes), and such Paying Agent shall promptly notify the
Trustee of any default by the Company (or any other obligor on the Notes) in making any such
payment. The Company at any time may require a Paying Agent to pay all money held by it to the
Trustee and account for any funds disbursed, and the Trustee may at any time during the continuance
of any payment default, upon written request to a Paying Agent, require such Paying Agent to pay
all money held by it to the Trustee and to account for any funds disbursed. Upon doing so, the
Paying Agent shall have no further liability for the money so paid over to the Trustee. If the
Company or any Affiliate of the Company acts as Paying Agent, it shall, on or before each due date
of any principal, premium, if any, or interest on the Notes, segregate and hold in a separate trust
fund for the benefit of the Holders a sum of money sufficient to pay such principal, premium, if
any, or interest so becoming due until such sum of money shall be paid to such Holders or otherwise
disposed of as provided in this Indenture, and shall promptly notify the Trustee of its action or
failure to act.
Section 2.5.
Holder Lists
. The Registrar shall preserve in as current a form as is reasonably practicable the most
recent list available to it of the names and addresses of Holders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing no later than two Business Days
before each Interest Payment Date, in the case of Global Notes, or the Record Date for each
Interest Payment Date, in the case of certificated Notes, and at such other times as the Trustee
may request in writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders, including the aggregate principal amount of Notes
held by each Holder.
Section 2.6.
Transfer and Exchange
. (a) Where Notes are presented to the Registrar or a co-Registrar with a request to
register a transfer or to exchange them for an equal principal
37
amount of Notes of other denominations, the Registrar shall register the transfer or make the
exchange in accordance with the requirements of this Section 2.6. To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new Notes, of any authorized
denominations and of a like aggregate principal amount, at the Registrars request. No service
charge shall be made for any registration of transfer or exchange of Notes, but the Company may
require payment of a sum sufficient to cover any (i) transfer tax or similar governmental charge
payable in connection with any such registration of transfer or exchange and (ii) agency fee or
similar charge payable in connection with any such registration of transfer or exchange of Notes
(other than any agency fee or similar charge payable upon exchanges pursuant to Sections 2.10, 3.7
or 9.4) or in accordance with an Offer to Purchase pursuant to Sections 4.6 or 4.7, not involving a
transfer.
Upon presentation for exchange or transfer of any Note as permitted by the terms of this
Indenture and by any legend appearing on such Note, such Note shall be exchanged or transferred
upon the Security Register and one or more new Notes shall be authenticated and issued in the name
of the Holder (in the case of exchanges only) or the transferee, as the case may be. No exchange
or transfer of a Note shall be effective under this Indenture unless and until such Note has been
registered in the name of such Person in the Security Register. Furthermore, the exchange or
transfer of any Note shall not be effective under this Indenture unless the request for such
exchange or transfer is made by the Holder or by a duly authorized attorney-in-fact at the office
of the Registrar.
Every Note presented or surrendered for registration of transfer or for exchange shall (if so
required by the Company or the Registrar) be duly endorsed, or be accompanied by a written
instrument or transfer, in form satisfactory to the Company and the Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
All Notes issued upon any registration of transfer or exchange of Notes shall be the valid
obligations of the Company evidencing the same indebtedness, and entitled to the same benefits
under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.
The Company shall not be required (i) to issue, register the transfer of, or exchange any Note
during a period beginning at the opening of 15 days before the day of selection of Notes for
redemption under Section 3.2 and ending upon such selection of Notes, or (ii) to register the
transfer of or exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(b) Notwithstanding any provision to the contrary herein, so long as a Global Note remains
outstanding and is held by or on behalf of the Depositary, transfers of a Global Note, in whole or
in part, or of any beneficial interest therein, shall only be made in accordance with Sections
2.1(c), 2.6(a) and this Section 2.6(b);
provided
,
however
, that a beneficial
interest in a Global Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Global Note in accordance with the transfer restrictions set forth
in the legend on the Note, if any.
38
(i) Except for transfers or exchanges made in accordance with any of clauses (ii), (iii) or
(iv) of this Section 2.6(b), transfers of a Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to nominees of the Depositary or to a successor of the
Depositary or such successors nominee.
(ii)
Restricted Global Note to Regulation S Global Note
. If the owner of a beneficial
interest in a Restricted Global Note of any series at any time wishes to exchange its interest in
such Restricted Global Note for an interest in a Regulation S Global Note of such series, or to
transfer its interest in such Restricted Global Note to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Regulation S Global Note of such series, such
transfer or exchange may be effected only in accordance with this clause (ii) and the rules and
procedures of the Depositary, Euroclear and Clearstream. Upon receipt by the Registrar from the
Transfer Agent of (A) instructions directing the Registrar to credit or cause to be credited an
interest in such Regulation S Global Note in a specified principal amount and to cause to be
debited an interest in a Restricted Global Note of such series in such specified principal amount,
and (B) a certificate in the form of Exhibit B-1, in the case of the 2019 Notes, or Exhibit B-2, in
the case of the 2021 Notes, attached hereto given by the owner of such beneficial interest stating
that the transfer of such interest has been made in compliance with the transfer restrictions
applicable to the Global Notes and (x) pursuant to and in accordance with Regulation S or (y) that
the Note being transferred is being transferred in a transaction permitted by Rule 144, then the
Registrar shall instruct the Depositary to reduce or cause to be reduced the principal amount of
such Restricted Global Note and the Depositary to increase or cause to be increased the principal
amount of such Regulation S Global Note by the aggregate principal amount of the interest in the
Restricted Global Note to be exchanged.
(iii)
Regulation S Global Note to Restricted Global Note
. If the owner of a
beneficial interest in a Regulation S Global Note of any series at any time wishes to transfer such
interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in a
Restricted Global Note of such series, such transfer may be effected only in accordance with this
clause (iii) and the rules and procedures of the Depositary, Euroclear and Clearstream. Upon
receipt by the Registrar from the Transfer Agent of (A) instructions directing the Registrar to
credit or cause to be credited an interest in such Restricted Global Note in a specified principal
amount and to cause to be debited an interest in such Regulation S Global Note in such specified
principal amount, and (B) a certificate in the form of Exhibit C-1, in the case of the 2019 Notes,
or Exhibit C-2, in the case of the 2021 Notes, attached hereto given by the owner of such
beneficial interest stating that the transfer of such interest has been made in compliance with the
transfer restrictions applicable to the Global Notes and stating that (x) the Person transferring
such interest reasonably believes that the Person acquiring such interest is a QIB and is obtaining
such interest in a transaction meeting the requirements of Rule 144A and any applicable securities
laws of any state of the United States or (y) that the Person transferring such interest is relying
on an exemption other than Rule 144A from the registration requirements of the Securities Act and,
in such circumstances, such Opinion of Counsel as the Company or the Trustee may reasonably request
to ensure that the requested transfer or exchange is being made pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the Securities Act, then the
Registrar shall instruct the Depositary to reduce or cause to be reduced the principal amount of
such Regulation S Global Note and to increase or cause to be
39
increased the principal amount of such Restricted Global Note by the aggregate principal
amount of the interest in such Regulation S Global Note to be exchanged or transferred.
(iv)
Global Notes to certificated Notes
. In the event that a Global Note is exchanged
for Notes in certificated, registered form pursuant to Section 2.10, such Notes may be exchanged
only in accordance with such procedures as are substantially consistent with the provisions of
clauses (ii) and (iii) above (including the certification requirements intended to ensure that such
transfers comply with Rule 144A or Regulation S under the Securities Act, as the case may be) and
such other procedures as may from time to time be adopted by the Company and the Trustee. A
beneficial interest in a Regulation S Temporary Global Note may not be exchanged for a Note in
certificated form or transferred to a Person who takes delivery thereof in the form of a Note in
certificated form prior to (A) the expiration of the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) of the Securities Act,
except in the case of a transfer pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 903 or Rule 904.
(c) If Notes are issued upon the transfer, exchange or replacement of Notes bearing the
restricted Notes legends set forth in Exhibit A-1 hereto, in the case of the 2019 Notes, or Exhibit
A-2 hereto, in the case of the 2021 Notes, the Notes so issued shall bear the restricted Notes
legends, and a request to remove such restricted Notes legends from Notes shall not be honored
unless there is delivered to the Company such satisfactory evidence, which may include an Opinion
of Counsel licensed to practice law in the State of New York, as may be reasonably required by the
Company, that neither the legend nor the restrictions on transfer set forth therein are required to
ensure that transfers thereof comply with the provisions of Rule 144A or Rule 144 under the
Securities Act. Upon provision of such satisfactory evidence, the Trustee, at the direction of the
Company, shall authenticate and deliver Notes that do not bear the legend.
(d) The Trustee shall have no responsibility for any actions taken or not taken by the
Depositary, Euroclear and Clearstream, as the case may be.
Section 2.7.
Replacement Notes.
If a mutilated certificated Note is surrendered to the Registrar or if the Holder claims that
the Note has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Note in such form as the Note mutilated, lost, destroyed or
wrongfully taken if the Holder satisfies any evidentiary or other reasonable requirements of the
Trustee or the Company. If required by the Trustee or the Company, such Holder shall furnish an
indemnity bond sufficient in the judgment of the Company and the Trustee to protect the Company,
the Trustee, the Paying Agent, the Transfer Agent, the Registrar and any co-Registrar, and any
authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company
and the Trustee may charge the Holder for their expenses in replacing a Note.
Every replacement Note shall be an additional obligation of the Company.
Section 2.8.
Outstanding Notes
. Notes outstanding at any time are all Notes authenticated by the Trustee except for those
cancelled by it, those delivered to it for cancellation and those described in this Section 2.8 as
not outstanding. A Note does not cease to be outstanding because the Company or an Affiliate of
the Company holds the Note.
40
If a Note is replaced pursuant to Section 2.7, it ceases to be outstanding unless the Trustee
and the Company receive proof satisfactory to them that the Note which has been replaced is held by
a bona fide purchaser.
Except if the Company or an Affiliate thereof is acting as Paying Agent, if the Paying Agent
segregates and holds in trust, in accordance with this Indenture, on a Redemption Date or maturity
date money sufficient to pay all principal, premium, if any, and interest payable on that date with
respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may be, and the
Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the
terms of this Indenture, then on and after that date such Notes (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
Section 2.9.
Notes Held by Company
. In determining whether the Holders of the required principal amount of Notes have concurred
in any direction or consent or any amendment, modification or other change to this Indenture, Notes
owned by the Company or by an Affiliate of the Company shall be disregarded and treated as if they
were not outstanding, except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent or any amendment, modification or
other change to this Indenture, only Notes which a Trust Officer of the Trustee actually knows are
so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not
be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgees right so
to act with respect to the Notes and that the pledgee is not the Company or an Affiliate of the
Company.
Section 2.10.
Certificated Notes
. (a) A Global Note deposited with the Depositary, as the case may be, or other custodian
for the Depositary pursuant to Section 2.1 shall be transferred to the beneficial owners thereof in
the form of certificated Notes only if such transfer complies with Section 2.6 and one of the
following events has occurred (each, a
Certificated Note Event
): (i) the Depositary
notifies the Company that it is unwilling or unable to continue as the Depositary for such Global
Note, or if at any time the Depositary ceases to be a clearing agency registered under the
Exchange Act and a successor depositary is not appointed by the Company within 120 days of such
notice, or (ii) if the owner of a beneficial interest in a Note requests such a transfer in writing
delivered through the Depositary following an Event of Default under this Indenture and enforcement
action is being taken in respect thereof under this Indenture. Notice of any such transfer shall
be given by the Company in accordance with the provisions of Section 12.2(a).
(b) Any Global Note that is transferable to the beneficial owners thereof in the form of
certificated Notes pursuant to this Section 2.10 shall be surrendered by the Depositary to the
Transfer Agent, to be so transferred, in whole or from time to time in part, without charge, and
the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global Note,
an equal aggregate principal amount of Notes of authorized denominations in the form of
certificated Notes. Any portion of a Global Note transferred or exchanged pursuant to this Section
2.10 shall be executed, authenticated and delivered only in registered form in authorized
denominations and registered in such names as the Depositary shall direct. Subject to the
foregoing, a Global Note is not exchangeable except for a Global Note of like denomination to be
registered in the name of the Depositary or its nominee. In the event that a Global Note becomes
exchangeable for certificated Notes, payment of principal, premium, if any, and interest
41
on the certificated Notes shall be payable, and the transfer of the certificated Notes shall
be registrable, at the office or agency of the Company maintained for such purposes in accordance
with Section 2.3. Such certificated Notes shall bear the applicable legends set forth in Exhibit A
hereto.
(c) In the event of the occurrence of any of the events specified in Section 2.10(a), the
Company shall promptly make available to the Trustee a reasonable supply of certificated Notes in
definitive, fully registered form without interest coupons.
(d) In the event that certificated Notes are not issued to each owner of beneficial interests
in Global Notes in accordance with subsection (a) above promptly after a Certificated Note Event,
the Company explicitly acknowledges, with respect to the right of any Holder to pursue a remedy
pursuant to Section 6.6 or 6.7 hereof, the right of any beneficial owner in any Global Note to
pursue such remedy with respect to the portion of the Global Note that represents such beneficial
owners Notes as if such certificated Notes had been issued.
Section 2.11.
Cancellation
. The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar
and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee, in accordance with its customary procedures, and no
one else shall cancel (subject to the record retention requirements of the Exchange Act and the
Trustees retention policy) all Notes surrendered for registration of transfer, exchange, payment
or cancellation and destroy such cancelled Notes in its customary manner. Certification of the
destruction of cancelled Notes shall be delivered to the Company. Except as otherwise provided in
this Indenture the Company may not issue new Notes to replace Notes it has redeemed, paid or
delivered to the Trustee for cancellation.
Section 2.12.
Defaulted Interest
. Any interest on any Note that is payable, but is not punctually paid or duly provided for,
on the dates and in the manner provided in the Notes and this Indenture (all such interest herein
called
Defaulted Interest
) shall forthwith cease to be payable to the Holder on the
relevant Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Notes are registered at the close of business on a special record date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the
date of the proposed payment, and at the same time the Company may deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest; or shall make arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided. In addition, the Company
shall fix a special record date for the payment of such Defaulted Interest, such date to be not
more than 15 days and not less than 10 days prior to the proposed payment date and not less than 15
days after the receipt by the Trustee of the notice of the proposed payment date. The Company
shall promptly but, in any event, not less than 15 days
42
prior to the special record date, notify the Trustee of such special record date and, in the
name and at the expense of the Company, the Trustee shall cause notice of the proposed payment date
of such Defaulted Interest and the special record date therefor to be mailed first-class, postage
prepaid to each Holder as such Holders address appears in the Security Register, not less than 10
days prior to such special record date. Notice of the proposed payment date of such Defaulted
Interest and the special record date therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names the Notes are registered at the close of business on such
special record date and shall no longer be payable pursuant to clause (b) below.
(b) The Company may make payment of any Defaulted Interest on the Notes in any other lawful
manner not inconsistent with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment date pursuant to this clause, such manner of payment
shall be deemed reasonably practicable.
Subject to the foregoing provisions of this Section 2.12, each Note delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall
carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other
Note.
Section 2.13.
Computation of Interest
. Interest on the Notes shall be computed on the basis of a 360-day year comprising twelve
30-day months.
Section 2.14.
CUSIP and ISIN Numbers
. The Company in issuing the Notes may use CUSIP, and ISIN numbers (if then generally in
use), and, if so, the Trustee shall use CUSIP and ISIN numbers, as appropriate, in notices of
redemption as a convenience to Holders;
provided
,
however
, that any such notice may
state that no representation is made as to the correctness of such numbers or codes either as
printed on the Notes or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Notes, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company shall promptly notify the
Trustee of any change in the CUSIP or ISIN numbers.
Section 2.15.
Issuance of Additional Notes
. The Company may, subject to Section 4.10 of this Indenture, issue an unlimited amount of
Additional Notes of any series from time to time under this Indenture in accordance with the
procedures of Section 2.2;
provided
that if any Additional Notes of any series are not
fungible with the Notes of such series for U.S. federal income tax purposes, such Additional Notes
shall be issued as a separate series under this Indenture and shall have a separate CUSIP number or
common code and ISIN as applicable, from the relevant series of Notes. Each series of Original
Notes issued on the date of this Indenture and any Additional Notes of such series subsequently
issued shall be treated as a single class for all purposes under this Indenture, including with
respect to waivers, amendments, redemptions and Offers to Purchase.
Section 2.16.
Open Market Purchases
. The Company and its Restricted Subsidiaries may at any time and from time to time purchase Notes
in the open market or otherwise.
43
ARTICLE 3
REDEMPTION; OFFERS TO PURCHASE
Section 3.1.
Right of Redemption
. The Company may redeem all or any portion of the Notes of any series upon the terms and at
the Redemption Prices set forth in the Notes of such series. Any redemption or notice may, at the
Companys discretion, be subject to the satisfaction of one or more conditions precedent, including
the occurrence of a Change of Control or the completion of an Equity Offering. Any redemption
pursuant to this Section 3.1 shall be made pursuant to the provisions of this Article Three.
Section 3.2.
Notices to Trustee
. If the Company elects to redeem Notes of any series pursuant to Section 3.1, it shall
notify the Trustee in writing of the Redemption Date, the principal amount of Notes of such series
to be redeemed and the paragraph of the Notes of such series pursuant to which the redemption will
occur.
The Company shall give each notice to the Trustee provided for in this Section 3.2 at least
two Business Days before the date notice is mailed to the Holders pursuant to Section 3.4 unless
the Trustee consents to a shorter period or waives such notice requirement. Such notice shall be
accompanied by an Officers Certificate from the Company to the effect that such redemption will
comply with the conditions herein.
Section 3.3.
Selection of Notes to be Redeemed
. If less than all of the Notes of any series are to be redeemed at any time, the Trustee
shall select Notes of such series for redemption as follows:
(1) in compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed;
(2) if the Notes are not so listed, on a
pro rata
basis, by lot or by such other method
as the Trustee deems fair and appropriate; or
(3) otherwise in accordance with the procedures of DTC;
provided
,
however
, that no such partial redemption shall reduce the portion of the
principal amount of a Note not redeemed to less than $2,000.
The Trustee shall make the selection from the Notes of such series outstanding and not
previously called for redemption. The Trustee may select for redemption portions equal to $1,000
in principal amount or any integral multiple of $1,000 in excess thereof;
provided
,
however
, that no such redemption shall reduce the portion of the principal amount of a Note
not redeemed to less than $2,000. Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption. The Trustee shall notify the
Company and the Registrar promptly in writing of the Notes or portions of Notes to be called for
redemption.
Section 3.4.
Notice of Redemption
. (a) At least 30 days but not more than 60 days before a Redemption Date of Notes, the
Company shall (i) mail a notice of redemption by first-class mail to each Holder whose Notes are to
be redeemed at its registered address contained in
45
the Security Register or (ii) otherwise give notice of redemption to each Holder in accordance
with the procedures of DTC. The Company shall comply with the provisions of Section 12.2(b).
(b) The notice shall identify the Notes to be redeemed (including CUSIP and ISIN numbers) and
shall state:
(i) the Redemption Date or expected Redemption Date, as the case may be;
(ii) the Redemption Price (or the formula by which the Redemption Price will be determined in
accordance with this Indenture) and the amount of accrued and unpaid interest, if any, to be paid
or expected to be paid;
provided
that if the notice does not include the actual Redemption
Price, the actual Redemption Price shall be set forth in an Officers Certificate delivered to the
Trustee no later than two Business Days prior to the Redemption Date or expected Redemption Date,
as applicable;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered to the Paying Agent to collect the
Redemption Price plus accrued and unpaid interest, if any;
(v) that, if any Note is being redeemed in part, the portion of the principal amount (equal to
$1,000 in principal amount or any integral multiple of $1,000 in excess thereof) of such Note to be
redeemed (
provided
that no such partial redemption shall reduce the portion of the
principal amount of a Note not redeemed to less than $2,000) and that, on and after the Redemption
Date, upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed
portion thereof will be reissued;
(vi) that, if any Note contains a CUSIP or ISIN number, no representation is being made as to
the correctness of such CUSIP or ISIN number either as printed on the Notes or as contained in the
notice of redemption and that reliance may be placed only on the other identification numbers
printed on the Notes;
(vii) that, unless the Company defaults in making such redemption payment, interest on the
Notes (or portion thereof) called for redemption shall cease to accrue on and after the Redemption
Date; and
(viii) the paragraph of the Notes pursuant to which the Notes called for redemption are being
redeemed.
In addition, if such redemption, purchase or notice is subject to satisfaction of one or more
conditions precedent, as permitted by Section 3.1, such notice shall describe each such condition,
and if applicable, shall state that, in the Companys discretion, the Redemption Date may be
delayed until such time as any or all such conditions shall be satisfied, or such redemption or
purchase may not occur and such notice may be rescinded in the event that any or all such
conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date as so
delayed.
46
At the Companys written request, the Trustee shall give a notice of redemption in the
Companys name and at the Companys expense. In such event, the Company shall provide the Trustee
with the notice and the other information required by this Section 3.4.
Section 3.5.
Deposit of Redemption Price
. On or prior to any Redemption Date, the Company shall deposit or cause to be deposited with
the Paying Agent (or, if the Company or a Subsidiary is the Paying Agent, shall segregate and hold
in trust) a sum in same day funds sufficient to pay the Redemption Price of and accrued and unpaid
interest on all Notes to be redeemed on that date other than Notes or portions of Notes called for
redemption that have previously been delivered by the Company to the Trustee for cancellation. The
Paying Agent shall return to the Company any money so deposited that is not required for that
purpose.
Section 3.6.
Payment of Notes Called for Redemption
. If notice of redemption has been given in the manner provided herein, the Notes or portion
of Notes specified in such notice to be redeemed shall become due and payable on the Redemption
Date (unless the Company delays such Redemption Date or rescinds such notice of redemption, in each
case pursuant to a condition precedent specified in such notice of redemption) at the Redemption
Price stated therein, together with accrued and unpaid interest to such Redemption Date, and on and
after such date (unless the Company shall default in the payment of such Notes at the Redemption
Price and accrued and unpaid interest to the Redemption Date, in which case the principal, until
paid, shall bear interest from the Redemption Date at the rate prescribed in the Notes), such Notes
shall cease to accrue interest. Upon surrender of any Note for redemption in accordance with a
notice of redemption, such Note shall be paid and redeemed by the Company at the Redemption Price,
together with accrued and unpaid interest, if any, to the Redemption Date;
provided
,
however
, that installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders registered as such at the close of business on the
relevant Record Date.
Notice of redemption shall be deemed to be given when mailed or electronically transmitted,
whether or not the Holder receives the notice. In any event, failure to give such notice, or any
defect therein, shall not affect the validity of the proceedings for the redemption of Notes held
by Holders to whom such notice was properly given.
Section 3.7.
Notes Redeemed in Part
. (a) Upon surrender of a Global Note that is redeemed in part, the Paying Agent shall
forward such Global Note to the Trustee who shall make a notation on the Security Register to
reduce the principal amount of such Global Note to an amount equal to the unredeemed portion of the
Global Note surrendered;
provided
,
however
, that each such Global Note shall be in
a principal amount at Stated Maturity of $2,000 or an integral multiple of $1,000 in excess
thereof.
(b) Upon surrender and cancellation of a certificated Note that is redeemed in part, the
Company shall execute and the Trustee shall authenticate for the Holder (at the Companys expense)
a new Note equal in principal amount to the unredeemed portion of the Note surrendered and
canceled;
provided
,
however
, that each such certificated Note shall be in a
principal amount at Stated Maturity of $2,000 or an integral multiple of $1,000 in excess thereof.
47
Section 3.8.
Mandatory Redemption
. The Company shall not be required to make any mandatory redemption or sinking fund payments with
respect to the Notes.
48
ARTICLE 4
COVENANTS
Section 4.1.
Payment of Notes
. The Company covenants and agrees for the benefit of the Holders that it shall duly and
punctually pay the principal of, premium, if any, and interest on the Notes on the dates and in the
manner provided in the Notes and in this Indenture. Principal, premium, if any, and interest shall
be considered paid on the date due if on such date the Trustee or the Paying Agent (other than the
Company or any of its Affiliates) holds, in accordance with this Indenture, money sufficient to pay
all principal, premium, if any, and interest then due. If the Company or any of its Subsidiaries
acts as Paying Agent, principal, premium, if any, and interest shall be considered paid on the due
date if the entity acting as Paying Agent complies with Section 2.4.
The Company shall pay interest on overdue principal at the rate specified therefor in the
Notes. The Company shall pay interest on overdue installments of interest at the same rate to the
extent lawful.
Section 4.2.
Corporate Existence
. Subject to Article Five, the Company and each Restricted Subsidiary shall do or cause to be
done all things necessary to preserve and keep in full force and effect their corporate,
partnership, limited liability company or other existence and the rights (charter and statutory),
licenses and franchises of the Company and each Restricted Subsidiary;
provided
,
however
, that the Company shall not be required to preserve any such right, license or
franchise if the Board of Directors of the Company shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the Company and the Restricted Subsidiaries
as a whole and that the loss thereof is not disadvantageous in any material respect to the Holders.
Section 4.3.
[Reserved]
.
Section 4.4.
[Reserved]
.
Section 4.5.
Statement as to Compliance
. The Company shall deliver to the Trustee annually within 120 days after the end of each
fiscal year an Officers Certificate regarding compliance with this Indenture. Within 30 days of
becoming aware of any Default or Event of Default, the Company shall deliver to the Trustee an
Officers Certificate specifying such Default or Event of Default.
Section 4.6.
Change of Control
. (a) Unless the Company has previously or concurrently mailed or otherwise given a
redemption notice with respect to all the outstanding Notes pursuant to Section 3.1, the Company
must commence, within 30 days of the occurrence of a Change of Control, and consummate, by the
Payment Date, an Offer to Purchase for all Notes then outstanding, at a purchase price in cash
equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid
interest thereon, to the date of repurchase, subject to the rights of Holders of Notes on the
relevant Record Date to receive interest due on the relevant Interest Payment Date.
(b) The Company shall not be required to make an Offer to Purchase upon a Change of Control if
a third party makes the Offer to Purchase in the manner, at the times and otherwise
49
in compliance with the requirements set forth in this Indenture applicable to an Offer to
Purchase made by the Company and purchases all Notes validly tendered and not withdrawn under such
Offer to Purchase. Notwithstanding anything to the contrary herein, an Offer to Purchase may be
made in advance of a Change of Control and conditional upon such Change of Control if a definitive
agreement is in place with respect to the event constituting the Change of Control at the time of
making the Offer to Purchase.
(c) The Company shall comply with Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder, to the extent such laws and regulations are applicable, in the
event that the Company is required to repurchase Notes pursuant to an Offer to Purchase. To the
extent that the provisions of any securities laws or regulations conflict with the provisions of
this Indenture relating to an Offer to Purchase, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its obligations under such
provisions of this Indenture by virtue of such conflict.
Section 4.7.
Limitation on Asset Sales
. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, consummate an
Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the Fair Market Value of the
assets or Equity Interests issued or sold or otherwise disposed of; and
(2) at least 75% of the consideration therefor received by the Company or such
Restricted Subsidiary is in the form of:
(i) cash or Cash Equivalents (including any Cash Equivalents received from the
conversion within 180 days of such Asset Sale of any securities, notes or other
obligations received in consideration of such Asset Sale);
(ii) Replacement Assets;
(iii) any liabilities of the Company or any Restricted Subsidiary as shown on
the Companys or such Restricted Subsidiarys most recent balance sheet (other than
contingent liabilities, Indebtedness that is by its terms subordinated in right of
payment to the Notes or any Note Guarantee and liabilities to the extent owed to the
Company or any Affiliate of the Company) that are assumed by the transferee of any
such assets or Equity Interests and for which the Company and all of the Restricted
Subsidiaries have been validly released by all creditors in writing;
(iv) any Designated Non-cash Consideration received by the Company or such
Restricted Subsidiary in such Asset Sale having an aggregate fair market value,
taken together with all other Designated Non-cash Consideration received pursuant to
this clause (iv) that is at that time outstanding, not to exceed 3.0% of
Consolidated Total Assets at the time of the receipt of such Designated Non-cash
Consideration, with the fair market value of each item of Designated Non-cash
Consideration being measured at the time received and without giving effect to
subsequent changes in value; or
50
(v) any combination of the consideration specified in subclauses (i) to (iv)
above.
(b) Within 365 days after the receipt of any Net Available Proceeds from an Asset Sale, the
Company or a Restricted Subsidiary, as the case may be, may apply an amount equal to such Net
Available Proceeds at its option:
(1) to repay (A) Indebtedness secured by such assets or other assets, (B) Indebtedness
under the Credit Agreement and, if the Indebtedness repaid is revolving credit Indebtedness,
to correspondingly reduce commitments with respect thereto, (C) Indebtedness constituting
Pari Passu Indebtedness, in which case the Company shall equally and ratably reduce
Obligations under the Notes and any other Pari Passu Debt on a pro rata basis,
provided
that all reductions of or offers to reduce Obligations under the Notes
shall be made as provided under paragraph 5 of the Notes of each series or through open
market purchases (to the extent such purchases are at or above 100% of the principal amount
thereof) or by making an offer (in accordance with the provisions set forth below for an
Offer to Purchase) to all Holders of Notes to purchase their Notes at 100% of the principal
amount thereof plus accrued and unpaid interest to the date of purchase, or (D) Indebtedness
of a Restricted Subsidiary that is not a Guarantor (other than Indebtedness owed to the
Company or another Restricted Subsidiary);
(2) to purchase Replacement Assets;
(3) to make capital expenditures that are made or useful to be made in a Permitted
Business;
(4) to make an Offer to Purchase as described below; or
(5) any combination of the foregoing;
provided
that if during such 365-day period the Company or such Restricted Subsidiary
enters into a definitive binding agreement committing it to apply such Net Available Proceeds in
accordance with the requirements of subclause (2) or (3) of this clause (b) after such 365-day
period, such 365-day period shall be extended with respect to the amount of Net Available Proceeds
so committed for a period not to exceed 180 days until such Net Available Proceeds are required to
be applied in accordance with such agreement (or, if earlier, until termination of such agreement).
(c) The amount of such Net Available Proceeds required to be applied as set forth in clause
(b) of this Section 4.7 and not applied as so required shall constitute Excess Proceeds. If, as
of the first day of any calendar month, the aggregate amount of Excess Proceeds totals at least
$75.0 million, the Company must make, not later than the fifteenth Business Day of such month, an
Offer to Purchase to all Holders of Notes and, if required by the terms of any Pari Passu Debt, all
holders of such Pari Passu Debt, to purchase the maximum principal amount of Notes and such other
Pari Passu Debt that may be purchased out of the Excess Proceeds. The offer price in any such Offer
to Purchase shall be equal to 100% of the principal amount of the Notes and such other Pari Passu
Debt plus accrued and unpaid interest to the date of purchase (or, in respect of such Pari Passu
Debt, such lesser price as may be provided by the terms of such
51
Pari Passu Debt), subject to the rights of Holders of Notes on the relevant Record Date to
receive interest on the relevant Interest Payment Date, and shall be payable in cash. To the extent
that any Excess Proceeds remain after consummation of an Offer to Purchase pursuant to this Section
4.7, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this
Indenture, and those Excess Proceeds shall no longer constitute Excess Proceeds.
(d) Pending the final application of the Net Available Proceeds pursuant to this Section 4.7,
the holder of such Net Available Proceeds may apply such Net Available Proceeds to temporarily
reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net
Available Proceeds in any manner not prohibited by this Indenture.
(e) The Company shall comply with Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder, to the extent such laws and regulations are applicable, in the
event that the Company is required to repurchase Notes pursuant to an Offer to Purchase. To the
extent that the provisions of any securities laws or regulations conflict with the provisions of
this Indenture relating to an Offer to Purchase, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its obligations under such
provisions of this Indenture by virtue of such conflict.
Section 4.8.
Suspension of Covenants When Notes Rated Investment Grade
. (a) If on any date following the Issue Date (such date, a
Suspension Date
):
(1) the Notes are rated Investment Grade by both of the Rating Agencies; and
(2) no Default or Event of Default shall have occurred and be continuing (other than
with respect to the Sections specifically listed in subclauses (i) to (vii) below),
then, beginning on that day and subject to the provisions of clause (b) below, the Sections
and portions thereof specifically listed in subclauses (i) to (vii) below shall be suspended:
(i) Section 4.7;
(ii) Section 4.9;
(iii) Section 4.10;
(iv) Section 4.12;
(v) Section 4.13;
(vi) Section 4.14; and
(vii) subclause (1) of clauses (a) and (b) of Section 5.1 (to the extent that a Default
or an Event of Default exists by reason of one or more of the Sections specifically listed
in this clause (a)) and subclause (3) of clause (a) of Section 5.1.
(b) Notwithstanding clause (a) above, if the rating assigned by any of the Rating Agencies
should subsequently decline to below Investment Grade, the Sections and portions
52
thereof listed in subclauses (i) to (vii) of clause (a) above shall be reinstated with respect
to future events as of and from the date of such rating decline (the
Reversion Date
). The
period of time between the Suspension Date and the Reversion Date is the
Suspension
Period
. Any actions taken, or omitted to be taken, during the Suspension Period that would
have been prohibited had the Sections and portions thereof listed in subclauses (i) to (vii) of
clause (a) above been in effect during the Suspension Period shall not form the basis for a Default
or an Event of Default;
provided
that (1) with respect to Restricted Payments made on or
after any Reversion Date, the amount of Restricted Payments made shall be calculated as though
Section 4.9 had been in effect prior to and throughout the Suspension Period, and accordingly all
Restricted Payments made during the Suspension Period shall be allocated to clause (a) or one of
the subclauses of clause (b) of Section 4.9 to the extent available, and any remaining balance
shall be debited against the amount pursuant to the second subclause (3) of such clause (a) (except
that no Default or Event of Default shall be deemed to have occurred solely by reason of a
Restricted Payment made while Section 4.9 was suspended), and (2) on the Reversion Date, all
Indebtedness incurred during the Suspension Period shall be deemed to have been incurred or issued
pursuant to clause (a) or one or more of the subclauses of clause (b) of Section 4.10, and to the
extent such Indebtedness would not be so permitted to be Incurred pursuant to Section 4.10, such
Indebtedness shall be deemed to have been outstanding on the Issue Date, so that it is classified
as permitted under Section 4.10(b)(2).
(c) For purposes of Section 4.7, on the Reversion Date, the unutilized Excess Proceeds amount
shall be reset to zero.
(d) During any period that the Sections and portions thereof listed in subclauses (i) to (vii)
of clause (a) above have been suspended, the Companys Board of Directors shall not designate any
of its Subsidiaries as Unrestricted Subsidiaries pursuant to Section 4.14 or the definition of
Unrestricted Subsidiary set forth in Section 1.1. The Company shall provide written notice to the
Trustee of the occurrence of any Suspension Date or Reversion Date.
Section 4.9.
Limitation on Restricted Payments
. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, take any of the following actions (each, a
Restricted Payment
):
(1) declare or pay any dividend or make any other payment or distribution on account of
any of the Companys or any Restricted Subsidiarys Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation involving the Company
or any Restricted Subsidiary) or to the direct or indirect holders of the Companys or any
Restricted Subsidiarys Equity Interests in their capacity as such other than:
(i) dividends, payments or distributions in Equity Interests (other than
Disqualified Stock) of the Company;
(ii) dividends, payments or distributions by a Restricted Subsidiary so long
as, in the case of any dividend, payment or distribution payable on account of any
Equity Interests issued by a Restricted Subsidiary other than a Wholly Owned
Restricted Subsidiary, the Company or a Restricted Subsidiary receives at
53
least its pro rata share of such dividend, payment or distribution in
accordance with its Equity Interests in such Equity Interests; or
(iii) dividends, payments or distributions payable to the Company or a
Restricted Subsidiary;
(2) purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the Company or any
Restricted Subsidiary) any Equity Interests of the Company held by any Person (other than by
a Restricted Subsidiary);
(3) call for redemption or make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value, prior to the Stated Maturity thereof, any
Indebtedness that is contractually subordinated in right of payment to the Notes or any Note
Guarantee except (A) in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date of such payment,
purchase or other acquisition or (B) intercompany Indebtedness permitted to be incurred
pursuant to Section 4.10(b)(6); or
(4) make any Investment (other than a Permitted Investment) in any Person,
unless, at the time of and after giving
pro forma
effect to such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be continuing or would occur
as a consequence thereof; and
(2) the Company could Incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in clause (a) of Section 4.10; and
(3) such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and the Restricted Subsidiaries after the Issue Date (excluding
Restricted Payments permitted by subclauses (1), (2), (3), (4), (5), (6) and (7) of clause
(b) of this Section 4.9), is less than the sum, without duplication, of:
(i) 50% of the Consolidated Net Income on a cumulative basis during the period
(taken as one accounting period) beginning on the first day of the first fiscal
quarter during which the Issue Date occurs and ending on the last day of the
Companys last fiscal quarter ending prior to the date of such proposed Restricted
Payment for which internal financial statements are available (or, if such
Consolidated Net Income for such period is a deficit, less 100% of such deficit),
plus
(ii) 100% of the aggregate net cash proceeds received by the Company since the
Issue Date as a contribution to its common equity capital or from the issue or sale
of Equity Interests (other than Disqualified Stock) of the Company and the amount of
reduction of Indebtedness of the Company or its Restricted Subsidiaries that has
been converted into or exchanged for such Equity Interests
54
(other than Equity Interests sold to, or Indebtedness held by, a Subsidiary of
the Company),
plus
(iii) with respect to Investments (other than Permitted Investments) made by
the Company and the Restricted Subsidiaries after the Issue Date, an amount equal to
the net reduction in such Investments in any Person (except, in each case, to the
extent any such amount is included in the calculation of Consolidated Net Income),
resulting from (A) repayment to the Company or any Restricted Subsidiary of loans or
advances, (B) repurchases and redemptions of such Investments from the Company or
its Restricted Subsidiaries, (C) the receipt of net cash proceeds from the sale or
other transfer of any such Investment, (D) the release of any Guarantee (except to
the extent any amounts are paid under such Guarantee) or (E) redesignations of
Unrestricted Subsidiaries as Restricted Subsidiaries.
(b) The preceding provisions shall not prohibit, so long as, in the case of subclauses (7),
(8), (9), (10) and (11) below, no Default has occurred and is continuing or would be caused
thereby:
(1) the payment of any dividend within 60 days after the date of declaration thereof,
if at said date of declaration such payment would have complied with the provisions of this
Indenture, and the redemption of any Indebtedness that is subordinated in right of payment
to the Notes or any Note Guarantees within 60 days after the date on which notice of such
redemption was given, if at said date of the giving of such notice, such redemption would
have complied with the provisions of this Indenture;
(2) any Restricted Payment constituting part of the Transactions;
(3) any Restricted Payment in exchange for, or out of the net cash proceeds of a
substantially concurrent contribution to the common equity of the Company or a substantially
concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests (other than
Disqualified Stock) of the Company;
provided
that the amount of any such net cash
proceeds that are utilized for such Restricted Payment shall be excluded from clause
(a)(3)(ii) of this Section 4.9;
(4) the redemption, repurchase, defeasance or other acquisition or retirement for value
of Indebtedness that is subordinated in right of payment to the Notes or the Note Guarantees
in exchange for, or with the net cash proceeds from a substantially concurrent Incurrence
(other than to a Subsidiary of the Company) of, Permitted Refinancing Indebtedness;
(5) repurchases of Equity Interests in a cashless transaction deemed to occur upon
exercise or vesting of restricted stock, stock options or warrants;
(6) the payment of cash in lieu of fractional Equity Interests pursuant to the exchange
or conversion of any exchangeable or convertible securities;
55
(7) the repurchase, retirement or other acquisition or retirement for value of Equity
Interests of the Company or any direct or indirect parent company of the Company held by any
future, present or former employee, director, manager or consultant of the Company, any of
its Subsidiaries or any direct or indirect parent company of the Company pursuant to any
management equity plan or stock option plan or any other management or employee benefit plan
or agreement, or any stock subscription or shareholder agreement (including, for the
avoidance of doubt, any principal and interest payable on any notes issued by the Company or
any direct or indirect parent company of the Company in connection with such repurchase,
retirement or other acquisition), including any Equity Interests rolled over by management
of the Company or any direct or indirect parent company of the Company in connection with
the Transactions;
provided
that the aggregate Restricted Payments made under this
subclause (7) do not exceed in any calendar year $12.5 million (with unused amounts in any
calendar year being carried over to succeeding calendar years subject to a maximum (without
giving effect to the following proviso) of $20.0 million in any calendar year);
provided
further
that such amount in any calendar year may be increased by
an amount not to exceed: (A) the cash proceeds from the sale of Equity Interests of the
Company and, to the extent contributed to the Company, the cash proceeds from the sale of
Equity Interests of any direct or indirect parent company of the Company, in each case to
any future, present or former employees, directors, managers or consultants of the Company,
any of its Subsidiaries or any direct or indirect parent company of the Company that occurs
after the Issue Date,
plus
(B) the cash proceeds of key man life insurance policies received
by the Company and the Restricted Subsidiaries after the Issue Date,
less
(C) the amount of
any Restricted Payments previously made pursuant to subclauses (A) and (B) of this subclause
(7); and
provided
further
that cancellation of Indebtedness owing to the
Company or any Restricted Subsidiary from any future, present or former employees,
directors, managers or consultants of the Company, any direct or indirect parent company of
the Company or any Restricted Subsidiary in connection with a repurchase of Equity Interests
of the Company or any direct or indirect parent company of the Company shall not be deemed
to constitute a Restricted Payment under this Section 4.9 or any other provision of this
Indenture;
(8) any Restricted Payments in an aggregate amount not to exceed, together with any
Restricted Payments made in the applicable fiscal year under the second subclause (3) of
clause (a) above, (A) for the fiscal year ending December 31, 2011, $45.0 million, (B)
$145.0 million for the fiscal year ending December 31, 2012, (C) the greater of $175.0
million and 1.5% of Consolidated Total Assets for the fiscal year ending December 31, 2013,
(D) the greater of $180.0 million and 1.5% of Consolidated Total Assets for the fiscal year
ending December 31, 2014, (E) the greater of $190.0 million and 1.6% of Consolidated Total
Assets for the fiscal year ending December 31, 2015, and (F) the greater of $215.0 million
and 1.8% of Consolidated Total Assets for the fiscal year ending December 31, 2016 and each
fiscal year thereafter;
provided
,
however
, that if the amount of Restricted
Payments is less than the amount permitted under this subclause (8) in the applicable fiscal
year (any such amount, the
Unused Amount
), the Unused Amount may be carried
forward for such payments permitted hereunder in the immediately succeeding two fiscal
years; and
provided
,
further
, to the extent any such
56
Unused Amount is carried forward to subsequent years, it shall be deemed used in the
applicable subsequent fiscal year before the amount provided above for such fiscal year;
(9) any Restricted Payment in cash;
provided
that, at the time such Restricted
Payment is made and after giving
pro forma
effect thereto, the Net Total Leverage Ratio
would be no greater than 2.50 to 1.00;
(10) the declaration and payment of dividends to holders of any class or series of
Disqualified Stock of the Company or any Restricted Subsidiary, or Preferred Stock of a
Restricted Subsidiary, in each case issued in accordance with Section 4.10 and
provided
that such dividends constitute Fixed Charges; and
(11) other Restricted Payments in an aggregate amount not to exceed $50.0 million since
the Issue Date.
The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the
date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued
to or by the Company or such Subsidiary, as the case may be, pursuant to the Restricted Payment.
Section 4.10.
Limitation on Indebtedness
. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, Incur any
Indebtedness, and the Company shall not issue any Disqualified Stock and shall not permit any
Restricted Subsidiary to issue any Disqualified Stock or Preferred Stock;
provided
,
however
, that the Company may Incur Indebtedness or issue Disqualified Stock, and any
Restricted Subsidiary may Incur Indebtedness, issue Disqualified Stock or Preferred Stock if, after
giving effect to the Incurrence of such Indebtedness or the issuance of such Disqualified Stock or
Preferred Stock and the receipt and application of the proceeds therefrom, the Fixed Charge
Coverage Ratio for the Companys most recently ended four fiscal quarters for which internal
financial statements are available immediately preceding the date on which such additional
Indebtedness is Incurred or such Disqualified Stock or Preferred Stock is issued would have been at
least 2.00 to 1.00;
provided
,
further
, that the aggregate amount of Indebtedness
Incurred, and Disqualified Stock or Preferred Stock issued, pursuant to this clause by Restricted
Subsidiaries that are not Guarantors shall not exceed, together with any Indebtedness Incurred, and
Disqualified Stock or Preferred Stock issued, pursuant to clause (b)(13) of this Section 4.10 by
Restricted Subsidiaries that are not Guarantors, $350.0 million outstanding at any one time.
(b) Clause (a) of this Section 4.10 shall not prohibit the Incurrence of any of the following
items of Indebtedness (collectively,
Permitted Debt
):
(1) Indebtedness of the Company or any Restricted Subsidiary under Credit Facilities in
an aggregate amount at any one time outstanding pursuant to this subclause (1) not to exceed
$3,730.0 million, less the aggregate amount of all proceeds from Asset Sales applied by the
Company or any Restricted Subsidiary to permanently repay any such Indebtedness pursuant to
Section 4.7;
(2) Existing Indebtedness;
57
(3) Indebtedness of the Company and the Guarantors represented by the Notes (other than
Additional Notes) and the related Note Guarantees;
(4) Indebtedness of the Company or any Restricted Subsidiary represented by Capital
Lease Obligations, mortgage financings or purchase money obligations, in each case, Incurred
for the purpose of financing all or any part of the purchase price or cost of construction
or improvement of property, plant or equipment used in the business of the Company or such
Restricted Subsidiary (including any reasonably related fees or expenses Incurred in
connection with such acquisition, construction or improvement), in an aggregate amount,
including all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace
any Indebtedness Incurred pursuant to this subclause (4), not to exceed $125.0 million at
any time outstanding;
(5) Permitted Refinancing Indebtedness of the Company or any Restricted Subsidiary
Incurred in exchange for, or the net cash proceeds of which are used to refund, refinance or
replace Indebtedness, Disqualified Stock or Preferred Stock that was permitted by this
Indenture to be Incurred under clause (a) of this Section 4.10 or subclauses (2), (3), (4),
(5), (13) or (14) of this clause (b);
(6) Indebtedness of the Company or any Restricted Subsidiary owing to and held by the
Company or any Restricted Subsidiary;
provided
,
however
, that:
(i) if the Company or any Guarantor is the obligor on such Indebtedness, such
Indebtedness must be unsecured and expressly subordinated in right of payment to the
prior payment in full in cash of all Obligations with respect to the Notes, in the
case of the Company, or the Note Guarantee, in the case of a Guarantor; and
(ii) any event that results in any such Indebtedness being held by a Person
other than the Company or a Restricted Subsidiary (except for any pledge of such
Indebtedness constituting a Permitted Lien until the pledgee commences actions to
forclose on such Indebtedness) shall be deemed to constitute an Incurrence of such
Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that
was not permitted by this subclause (6);
(7) Indebtedness of the Company or any Restricted Subsidiary under Hedging Obligations
that are Incurred for the purpose of fixing, limiting, managing, hedging or swapping
interest rate, commodity price or foreign currency exchange rate risk (or to reverse or
amend any such agreements previously made for such purposes), and not for speculative
purposes;
(8) Indebtedness of the Company or any Restricted Subsidiary arising from agreements
providing for indemnification, adjustment of purchase price or similar obligations, or
Guarantees or letters of credit, surety bonds or performance bonds securing any obligations
of the Company or any Restricted Subsidiary pursuant to such agreements, in any case
Incurred in connection with the disposition of any business, assets or Capital Stock of a
Restricted Subsidiary (other than Guarantees of Indebtedness
58
Incurred by any Person acquiring all or any portion of such business, assets or Capital
Stock of a Restricted Subsidiary for the purpose of financing such acquisition), so long as
the amount does not exceed the gross proceeds actually received by the Company or any
Restricted Subsidiary in connection with such disposition;
(9) Indebtedness of the Company or any Restricted Subsidiary arising from the honoring
by a bank or other financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business,
provided
,
however
, that such Indebtedness is extinguished within five Business Days of its
Incurrence;
(10) Indebtedness of the Company or any Restricted Subsidiary constituting
reimbursement obligations with respect to letters of credit issued in the ordinary course of
business, including letters of credit in respect of workers compensation claims, health,
disability or other employee benefits or property, casualty or liability insurance or
self-insurance or other Indebtedness with respect to reimbursement obligations regarding
workers compensation claims;
provided
that, upon the drawing of such letters of
credit or the Incurrence of such Indebtedness, such obligations are reimbursed within 30
days following such drawing or Incurrence;
(11) Indebtedness in connection with the issuance of one or more performance bonds
securing obligations of the type set forth in clauses (13) and (14) of the definition of
Permitted Liens in Section 1.1;
(12) Indebtedness of the Company or any Restricted Subsidiary to the extent the net
cash proceeds thereof are promptly deposited to defease or to satisfy and discharge the
Notes pursuant to Sections 8.1 to 8.4 or Section 8.5;
(13) additional Indebtedness, Disqualified Stock or Preferred Stock of the Company or
any Restricted Subsidiary in an aggregate amount at any one time outstanding, including all
Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness
Incurred pursuant to this subclause (13), not to exceed an amount equal to the greater of
$500.0 million and 4.3% of Consolidated Total Assets;
provided
that the aggregate
amount of Indebtedness Incurred, and Disqualified Stock or Preferred Stock issued, pursuant
to this subclause (13) by Restricted Subsidiaries that are not Guarantors shall not exceed,
together with any Indebtedness Incurred, and Disqualified Stock or Preferred Stock issued,
pursuant to clause (a) of this Section 4.10 by Restricted Subsidiaries that are not
Guarantors, $350.0 million outstanding at any one time;
(14) Indebtedness, Disqualified Stock or Preferred Stock of any Person that is acquired
by or merged into the Company or any Restricted Subsidiary in accordance with the terms of
this Indenture;
provided
that such Indebtedness, Disqualified Stock or Preferred
Stock was not Incurred or issued, as applicable, in connection with, or in contemplation of,
such acquisition or merger;
provided
, further, that, in each case, after giving
effect to such acquisition or merger, either: (a) the Company would be permitted to Incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
59
Ratio test set forth in clause (a) of this Section 4.10, or (b) the Fixed Charge
Coverage Ratio is equal to or greater than immediately prior to such acquisition or merger;
(15) Cash Management Obligations; and
(16) Indebtedness of the Company or any Restricted Subsidiary pursuant to letters of
credit in an amount not to exceed $40.0 million outstanding at any one time.
(c) For purposes of determining compliance with this Section 4.10, in the event that any
proposed Indebtedness meets the criteria of more than one of the categories of Permitted
Indebtedness described in subclauses (1) through (16) of clause (b) above, or is entitled to be
Incurred pursuant to clause (a) of this Section 4.10, the Company shall be permitted to classify,
and may later reclassify, such item of Indebtedness or a part thereof in any manner that complies
with this Section 4.10. Notwithstanding the foregoing, Indebtedness under the Credit Agreement
outstanding on the Issue Date shall be deemed to have been Incurred on such date in reliance on the
exception provided by subclause (1) of clause (b) above. Accrual of interest, the accretion of
accreted value and the payment of interest in the form of additional Indebtedness shall not be
deemed to be an Incurrence of Indebtedness for purposes of this Section 4.10.
(d) For purposes of determining compliance with any U.S. dollar restriction on the incurrence
of Indebtedness where the Indebtedness incurred is denominated in a different currency, the amount
of such Indebtedness shall be the U.S. Dollar Equivalent determined on the date of the incurrence
of such Indebtedness;
provided
that if such Indebtedness is incurred to refinance other
Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable
U.S. dollar denominated restriction to be exceeded if calculated at the relevant currency exchange
rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be
deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness
does not exceed the principal amount of such Indebtedness being refinanced. The maximum amount of
Indebtedness that the Company and its Restricted Subsidiaries may incur pursuant to this Section
4.10 shall not be deemed to be exceeded, with respect to any outstanding Indebtedness, solely as a
result of fluctuations in the exchange rate of currencies.
(e) The principal amount of any Indebtedness incurred to refinance other Indebtedness, if
incurred in a different currency from the Indebtedness being refinanced, shall be calculated based
on the currency exchange rate applicable to the currencies in which such respective Indebtedness is
denominated that is in effect on the date of such refinancing.
Section 4.11.
Limitation on Liens
. The Company shall not, and shall not permit any Restricted Subsidiary to, create, incur,
assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other than
Permitted Liens) upon any of their property or assets, now owned or hereafter acquired, which Lien
is securing Indebtedness, unless all payments due under this Indenture and the Notes or Note
Guarantees are secured by a Lien on such property or assets on an equal and ratable basis with the
obligations so secured (or, in the case of Indebtedness subordinated to the Notes or the related
Note Guarantees, senior in priority thereto, with the same relative priority as the Notes will have
with respect to such subordinated Indebtedness) until such time as such obligations are no longer
secured by a Lien.
60
Section 4.12.
Limitation on Dividends and Other Payment Restrictions Affecting Restricted
Subsidiaries
. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, create or permit to exist or become effective any consensual encumbrance or restriction
on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock (or with respect
to any other interest or participation in, or measured by, its profits) to the Company or
any Restricted Subsidiary (it being understood that the priority of any Preferred Stock in
receiving dividends or liquidating distributions prior to dividends or liquidating
distributions being paid on Common Stock shall not be deemed a restriction on the ability to
make distributions on Capital Stock);
(2) pay any Indebtedness or other obligations owed to the Company or any Restricted
Subsidiary;
(3) make loans or advances to the Company or any Restricted Subsidiary (it being
understood that the subordination of loans or advances made to the Company or any Restricted
Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall
not be deemed a restriction on the ability to make loans or advances); or
(4) transfer any of its properties or assets to the Company or any Restricted
Subsidiary.
(b) The restrictions in clause (a) of this Section 4.12 shall not apply to encumbrances or
restrictions:
(1) existing under, by reason of or with respect to the Credit Agreement as in effect
on the Issue Date, Existing Indebtedness or any other agreements in effect on the Issue Date
and any amendments, modifications, restatements, renewals, extensions, supplements,
refundings, replacements or refinancings thereof, provided that the encumbrances and
restrictions in any such amendments, modifications, restatements, renewals, extensions,
supplements, refundings, replacements or refinancings, taken as a whole, are not materially
more restrictive than those contained in the Credit Agreement, Existing Indebtedness or such
other agreements, as the case may be, as in effect on the Issue Date;
(2) set forth in this Indenture, the Notes and the Note Guarantees and any amendments,
modifications, restatements, renewals, extensions, supplements, refundings, replacements or
refinancings thereof,
provided
that the encumbrances and restrictions in any such
amendments, modifications, restatements, renewals, extensions, supplements, refundings,
replacements or refinancings, taken as a whole, are not materially more restrictive than
those contained in this Indenture, the Notes or the Note Guarantees, as the case may be, as
in effect on the Issue Date;
(3) existing under or by reason of applicable law, rule, regulation or order;
61
(4) with respect to any Person or the property or assets of a Person acquired
(including by way of merger or consolidation) by the Company or any Restricted Subsidiary
existing at the time of such acquisition and not incurred in connection with or in
contemplation of such acquisition, which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or the property or
assets of the Person, so acquired, and any amendments, modifications, restatements,
renewals, extensions, supplements, refundings, replacements or refinancings thereof,
provided
that the encumbrances and restrictions in any such amendments,
modifications, restatements, renewals, extensions, supplements, refundings, replacements or
refinancings, taken as a whole, are not materially more restrictive than those in effect on
the date of the acquisition;
(5) under secured Indebtedness that limit the right of the debtor to dispose of the
assets securing such Indebtedness that is otherwise permitted to be incurred pursuant to
Sections 4.10 and 4.11;
(6) that restrict in a customary manner the subletting, assignment or transfer of any
property or asset, including intellectual property, that is a lease, license, conveyance or
contract or similar property or asset;
(7) existing by virtue of any transfer of, agreement to transfer, option or right with
respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary
not otherwise prohibited by this Indenture;
(8) arising or agreed to in the ordinary course of business, not relating to any
Indebtedness, and that do not, individually or in the aggregate, detract from the value of
property or assets of the Company or any Restricted Subsidiary in any manner material to the
Company or any Restricted Subsidiary;
(9) existing under, by reason of or with respect to any agreement for the sale or other
disposition of all or substantially all of the Capital Stock of, or property and assets of,
a Restricted Subsidiary that restrict distributions or transfer by that Restricted
Subsidiary pending such sale or other disposition;
(10) on cash or other deposits or net worth, which encumbrances or restrictions are
imposed by customers or suppliers or required by insurance, surety or bonding companies, in
each case, under contracts entered into in the ordinary course of business;
(11) arising from customary provisions in joint venture agreements and other similar
agreements relating solely to joint ventures;
(12) purchase money obligations for property acquired and Capital Lease Obligations
that impose restrictions of the nature discussed in subclause (4) of clause (a) of this
Section 4.12 on the property so acquired;
(13) arising or existing by reason of applicable law or any applicable rule, regulation
or order;
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(14) restrictions created in connection with any receivables financing permitted
pursuant to Section 4.10(b)(1) that, in the good faith determination of the Board of
Directors of the Company, are necessary or advisable to effect such receivables financing;
and
(15) existing pursuant to provisions in instruments governing other Indebtedness
permitted to be Incurred after the Issue Date;
provided
that (i) such provisions are
customary for instruments of such type and (ii) the Company determines in good faith that
such restrictions will not materially adversely impact the ability of the Company to make
required principal and interest payments on the Notes.
Section 4.13.
Limitation on Transactions with Affiliates
. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into, make, amend, renew
or extend any transaction, contract, agreement, understanding, loan, advance or Guarantee with, or
for the benefit of, any of their Affiliates (each, an
Affiliate Transaction
) involving
aggregate payments or consideration in excess of $50.0 million, unless:
(1) such Affiliate Transaction is on terms that are not materially less favorable to
the Company or the relevant Restricted Subsidiary than those that would have been obtained
in a comparable arms-length transaction by the Company or such Restricted Subsidiary with a
Person that is not an Affiliate of the Company or any Restricted Subsidiary; and
(2) the Company delivers to the Trustee, with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate payments or consideration in
excess of $75.0 million, a Board Resolution set forth in an Officers Certificate certifying
that such Affiliate Transaction or series of related Affiliate Transactions complies with
this Section 4.13 and that such Affiliate Transaction or series of related Affiliate
Transactions has been approved by a majority of the Disinterested Members, if any.
(b) The following items shall not be deemed to be Affiliate Transactions and, therefore, shall
not be subject to the provisions of clause (a) of this Section 4.13:
(1) transactions between or among the Company and/or its Restricted Subsidiaries;
(2) Restricted Payments that are permitted by Section 4.9 and the definition of
Permitted Investments set forth in Section 1.1;
(3) any issuance or sale of Equity Interests (other than Disqualified Stock) of the
Company;
(4) transactions pursuant to agreements or arrangements in effect on the Issue Date and
described in the Offering Memorandum, or any amendment, modification, or supplement thereto
or replacement thereof, as long as such agreement or arrangement, as
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so amended, modified, supplemented or replaced, taken as a whole, is not materially
more disadvantageous to the Company and the Restricted Subsidiaries than the agreement or
arrangement in existence on the Issue Date;
(5) overhead costs and other ordinary course allocations of costs and services on a
reasonable basis;
(6) allocations of tax liabilities and other tax related items among the Company and
its Affiliates based principally upon the financial income, taxable income, credits and
other amounts directly related to the respective parties, to the extent that the share of
such liabilities and other items allocable to the Company and its Restricted Subsidiaries
shall not exceed the amount that such Persons would have been responsible for as a direct
taxpayer;
(7) payment of reasonable and customary fees to, and reasonable and customary
indemnification arrangements and similar payments on behalf of, directors of the Company or
any Subsidiary thereof;
(8) any employment, consulting, service or termination agreement, or reasonable and
customary indemnification arrangements, entered into by the Company or any Restricted
Subsidiary with officers and employees of the Company or any Subsidiary thereof and the
payment of compensation to officers and employees of the Company or any Subsidiary thereof
(including amounts paid pursuant to employee benefit plans, employee stock option or similar
plans);
(9) any transaction with respect to which the Company or any of its Restricted
Subsidiaries, as the case may be, delivers to the Trustee an opinion issued by an
independent accounting, appraisal or investment banking firm of national standing stating
that such transaction or series of related transactions is fair to the Company or such
Restricted Subsidiary from a financial point of view;
(10) transactions with customers, clients, suppliers, or purchasers or sellers of goods
or services, in each case in the ordinary course of business and otherwise in compliance
with the terms of this Indenture which are fair to the Company and its Restricted
Subsidiaries, in the reasonable determination of senior management of the Company, or are on
terms at least as favorable as might reasonably have been obtained at such time from an
unaffiliated party; and
(11) any transaction that is effected as part of a receivables financing permitted
pursuant to Section 4.10(b)(1) which is fair to the Company and its Restricted Subsidiaries,
in the reasonable determination of senior management of the Company.
Section 4.14.
Designation of Unrestricted and Restricted Subsidiaries
. (a) The Board of Directors of the Company may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary;
provided
that:
(1) such Subsidiary has no Indebtedness other than Non-Recourse Debt;
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(2) the aggregate Fair Market Value of all outstanding Investments owned by the Company
and the Restricted Subsidiaries in the Subsidiary being so designated (including any
Guarantee by the Company or any Restricted Subsidiary of any Indebtedness of such
Subsidiary) shall be deemed to be an Investment made as of the time of such designation and
that such Investment would be permitted under Section 4.9;
(3) such Subsidiary does not hold any Capital Stock or Indebtedness of, or own or hold
any Lien on any property or assets of, or have any Investment in, the Company or any
Restricted Subsidiary;
(4) the Subsidiary being so designated:
(i) is not party to any agreement, contract, arrangement or understanding with
the Company or any Restricted Subsidiary unless the terms of any such agreement,
contract, arrangement will be permitted under Section 4.13;
(ii) is a Person with respect to which neither the Company nor any Restricted
Subsidiary has any direct or indirect obligation (A) to subscribe for additional
Equity Interests or (B) to maintain or preserve such Persons financial condition or
to cause such Person to achieve any specified levels of operating results; and
(iii) has not Guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any Restricted Subsidiary, except to
the extent such Guarantee or credit support would be released upon such designation;
and
(5) no Default or Event of Default would be in existence following such designation.
(b) The Board of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary;
provided
that:
(1) such designation shall be deemed to be an Incurrence of Indebtedness by a
Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary and
such designation shall only be permitted if such Indebtedness is permitted under Section
4.10;
(2) all Liens upon property or assets of such Unrestricted Subsidiary existing at the
time of such designation would be permitted under Section 4.11; and
(3) no Default or Event of Default would be in existence following such designation.
(c) Any designation shall be evidenced to the Trustee by filing with the Trustee the Board
Resolution giving effect to such designation and an Officers Certificate certifying that such
designation complied with the conditions of this Section 4.14 (as applicable) and was permitted by
this Indenture.
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(d) As of the Issue Date, all of the Companys Subsidiaries shall be Restricted Subsidiaries.
Section 4.15.
Reports to Holders
. (a) Notwithstanding that the Company may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, if not filed electronically with the Commission through
the Commissions Electronic Data Gathering, Analysis, and Retrieval System (or any successor
system), the Company shall furnish to the Trustee and, upon request, to Holders of Notes,
beneficial owners of the Notes and prospective investors that certify to the reasonable
satisfaction of the Company that they are qualified institutional buyers (within the meaning of
Rule 144A under the Securities Act) or otherwise eligible to hold the Notes copies of all of the
information and reports referred to in subclauses (1) and (2) below within the time periods
specified in the Commissions rules and regulations:
(1) all quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were
required to file such Forms, including a Managements Discussion and Analysis of Financial
Condition and Results of Operations and, with respect to the annual information only, a
report on the annual financial statements by the Companys certified independent
accountants; and
(2) all current reports that would be required to be filed with the Commission on Form
8-K if the Company were required to file such reports, in each case in a manner that
complies in all material respects with the requirements specified with respect to such
information and reports in such forms;
provided
that (A) the information or reports
referenced in subclauses (1) and (2) above shall not be required to contain the separate
financial information with respect to any subsidiary of the Company contemplated by Rule
3-10 or Rule 3-16 of Regulation S-X promulgated under the Exchange Act and (B) nothing
contained in this Indenture shall otherwise require the Company to comply with the
provisions of the Sarbanes-Oxley Act of 2002 at any time when it would not otherwise be
subject to such statute.
(b) In lieu of furnishing the information or reports specified in subclauses (1) and (2) of
clause (a) above to the Trustee or, upon request, to Holders of Notes, beneficial owners of the
Notes and prospective investors that certify to the reasonable satisfaction of the Company that
they are qualified institutional buyers (within the meaning of Rule 144A under the Securities
Act) or otherwise eligible to hold the Notes (if such information and reports are not filed
electronically with the Commission through the Commissions Electronic Data Gathering, Analysis,
and Retrieval System (or any successor system)), the Company may post copies of such information or
reports on a non-public website to which access is given to the Trustee, Holders of Notes, any
beneficial owner of the Notes and prospective investors that certify to the reasonable satisfaction
of the Company that they are qualified institutional buyers (within the meaning of Rule 144A
under the Securities Act) or otherwise eligible to hold the Notes.
(c) If the Company has designated as Unrestricted Subsidiaries any of its Subsidiaries that is
a Significant Subsidiary or that, when taken together with all other Unrestricted Subsidiaries,
would be a Significant Subsidiary, then the quarterly and annual financial information required by
this Section 4.15 shall include a reasonably detailed presentation, either
66
on the face of the financial statements or in the footnotes thereto, and in Managements
Discussion and Analysis of Financial Condition and Results of Operations, of the financial
condition and results of operations of the Company and the Restricted Subsidiaries separate from
the financial condition and results of operations of the Unrestricted Subsidiaries.
(d) Notwithstanding clauses (a) to (c) of this Section 4.15, if any direct or indirect parent
of the Company becomes a Guarantor (there being no obligation of any such parent to do so), the
reports, information and other documents required to be filed and provided as described above may
be those of such parent, rather than those of the Company.
(e) For so long as any Notes remain outstanding, the Company shall furnish to the Holders of
Notes, beneficial owners of Notes and to prospective investors that certify to the reasonable
satisfaction of the Company that they are qualified institutional buyers (within the meaning of
Rule 144A under the Securities Act), upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.16.
Payment of Taxes and Other Claims
. The Company shall pay or discharge and shall cause each of its Restricted Subsidiaries to
pay or discharge, or cause to be paid or discharged, before the same shall become delinquent (a)
all material taxes, assessments and governmental charges levied or imposed upon (i) the Company or
any such Restricted Subsidiary, (ii) the income or profits of any such Restricted Subsidiary which
is a corporation or (iii) the property of the Company or any such Restricted Subsidiary and (b) all
material lawful claims for labor, materials and supplies that, if unpaid, might by law become a
lien upon the property of the Company or any such Restricted Subsidiary;
provided
,
however
, that the Company shall not be required to pay or discharge, or cause to be paid or
discharged, any such tax, assessment, charge or claim the amount, applicability or validity of
which is being contested in good faith by appropriate proceedings and for which adequate reserves
have been established or where the failure to effect such payment or discharge is not adverse in
any material respect to the Holders of the Notes.
Section 4.17.
Future Note Guarantees
. The Company shall not permit any Domestic Subsidiary to Guarantee any obligations under the
Credit Agreement unless such Domestic Subsidiary (a) is a Guarantor or (b) becomes a Guarantor by
executing a supplemental Indenture and delivering an Opinion of Counsel to the Trustee within 30
days of the date on which such Domestic Subsidiary became a guarantor under the Credit Agreement.
Section 4.18.
Payments for Consent
. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes
for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of
this Indenture or the Notes unless such consideration is offered to be paid to all Holders and is
paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set forth
in the solicitation documents relating to such consent, waiver or agreement.
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ARTICLE 5
CONSOLIDATION, MERGER OR SALE OF ASSETS
Section 5.1.
Consolidation, Merger or Sale of Assets
. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into
another Person (whether or not the Company is the surviving Person), or (2) sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of the properties and assets of the
Company and the Restricted Subsidiaries, taken as a whole, in one or more related transactions, to
another Person, unless:
(1) immediately after giving effect to such transaction, no Default or Event of Default
exists;
(2) either:
(i) the Company is the surviving Person; or
(ii) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition will have been made (A) is a Person organized or
existing under the laws of the United States, any state thereof or the District of
Columbia,
provided
that in the case where such Person is not a corporation,
a co-obligor of the Notes is a corporation and (B) assumes all the obligations of
the Company under the Notes and this Indenture pursuant to a supplemental indenture
reasonably satisfactory to the Trustee;
(3) immediately after giving effect to such transaction on a
pro forma
basis:
(i) the Company or the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, assignment, transfer,
lease, conveyance or other disposition will have been made, will be permitted to
Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 4.10(a); or
(ii) the Fixed Charge Coverage Ratio for the Company or the Person formed by or
surviving any such consolidation or merger (if other than the Company), as
applicable, and its Restricted Subsidiaries would be equal to or greater than such
ratio for the Company and its Restricted Subsidiaries immediately prior to such
transaction;
(4) each Guarantor, unless such Guarantor is the Person with which the Company has
entered into a transaction under this Section 5.1, shall have confirmed to the Trustee in
writing that its Note Guarantee will apply to the obligations of the Company or the
surviving Person in accordance with the Notes and this Indenture; and
(5) the Company delivers to the Trustee an Officers Certificate (attaching the
arithmetic computation to demonstrate compliance with subclause (3) above) and Opinion of
Counsel, in each case stating that such transaction and such agreement
68
comply with this Section 5.1 and that all conditions precedent provided for in this
Indenture relating to such transaction have been complied with;
provided
,
however
, that subclause (3) above shall not apply (i) if the sole
purpose of such transaction is to change the state of incorporation or organization of the Company;
or (ii) to any consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition of assets between or among the Company and any Restricted Subsidiary.
(b) A Guarantor shall not, directly or indirectly: (1) consolidate or merge with or into
another Person (whether or not such Guarantor is the surviving Person), or (2) sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of the properties and
assets of the Guarantor, in one or more related transactions, to another Person, other than the
Company or another Guarantor, unless:
(1) immediately after giving effect to that transaction, no Default or Event of Default
exists; and
(2) either:
(i) (A) the Guarantor is the surviving corporation, or (B) the Person formed by
or surviving any such consolidation or merger (if other than the Guarantor) or to
which such sale, assignment, transfer, lease, conveyance or other disposition which
has been made (x) is organized or existing under the laws of the United States, any
state thereof or the District of Columbia and (y) assumes all the obligations of
that Guarantor under this Indenture, including its Note Guarantee, pursuant to a
supplemental indenture satisfactory to the Trustee; or
(ii) such sale, assignment, transfer, conveyance or other disposition or
consolidation or merger complies with Section 4.7.
Section 5.2.
Successor Substituted
. Upon any consolidation, merger, sale, assignment, transfer, conveyance or other disposition
(other than a lease) in accordance with Section 5.1, the successor Person formed by such
consolidation or into or with which the Company is merged or to which such sale, assignment,
transfer, conveyance or other disposition is made shall succeed to, and be substituted for (so that
from and after the date of such consolidation, merger, sale, assignment, conveyance or other
disposition, the provisions of this Indenture referring to the Company shall refer instead to the
successor Person and not to the Company), and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been named as the Company
in this Indenture.
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.1.
Events of Default
. (a) Each of the following is an
Event of Default
with respect to any series of
Notes (whatever the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental body):
(1) default for 30 days in the payment when due of interest on the Notes of such
series;
(2) default in payment when due (whether at maturity, upon acceleration, redemption or
otherwise) of the principal of, or premium, if any, on the Notes of such series;
(3) failure by the Company or any Guarantor to comply with the provisions of Section
5.1 or Section 5.2;
(4) failure by the Company or any Restricted Subsidiary for 30 days (or, in the case of
Section 4.15, 90 days) after written notice by the Trustee or Holders representing 25% or
more of the aggregate principal amount of the Notes of such series to make or consummate an
Offer to Purchase in accordance with the provisions of Sections 4.6 or 4.7 or to comply with
any of its obligations under Sections 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.17 and
4.18 of this Indenture;
(5) failure by the Company or any Restricted Subsidiary for 60 days after written
notice by the Trustee or Holders representing 25% or more of the aggregate principal amount
of the Notes of such series to comply with any of the other covenants and agreements in this
Indenture;
(6) default under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness by the Company or any
Restricted Subsidiary (or the payment of which is Guaranteed by the Company or any
Restricted Subsidiary) other than Indebtedness owned to the Company or any Restricted
Subsidiary, whether such Indebtedness or Guarantee now exists, or is created after the Issue
Date, if that default:
(i) is caused by a failure to make any payment when due at the final maturity
of such Indebtedness (a
Payment Default
); or
(ii) results in the acceleration of such Indebtedness prior to its Stated
Maturity, and, in each case, the amount of any such Indebtedness, together with the
amount of any other such Indebtedness that is then subject to a Payment Default or
the maturity of which has been so accelerated, aggregates $75.0 million or more;
70
(7) failure by the Company or any Restricted Subsidiary to pay final, non-appealable
judgments aggregating in excess of $75.0 million (net of amounts which are covered by
insurance as to which liability has not been denied), which judgments are not paid,
discharged or stayed for a period of 60 days following such judgment becoming final and
non-appealable;
provided
that, for the avoidance of doubt, any settlement related to
the W.R. Grace Liability shall not be deemed to be a final, non-appealable judgment for the
purpose of this subclause (7);
(8) any Note Guarantee of any Significant Subsidiary is held in any final,
non-appealable judgment to be unenforceable or invalid or ceases for any reason to be in
full force and effect or any Guarantor that is a Significant Subsidiary, or any Person
acting on behalf of such Guarantor, denies or disaffirms its obligations under its Note
Guarantee in writing, except in accordance with the terms of such Note Guarantee or in
connection with the release of such Note Guarantee in accordance with this Indenture; and
(9) (i) the entry by a court of competent jurisdiction of (A) a decree or order for
relief in respect of the Company or any Restricted Subsidiary that is a Significant
Subsidiary of the Company (or any Restricted Subsidiaries that together would
constitute a Significant Subsidiary of the Company) (any such Restricted Subsidiary
or Restricted Subsidiaries together, a
Bankruptcy Significant Subsidiary
)
in an involuntary case or proceeding under any applicable Bankruptcy Law or (B) a
decree or order adjudging the Company or any Bankruptcy Significant Subsidiary
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Bankruptcy Significant Subsidiary
under any applicable law, or appointing a Custodian of the Company or any Bankruptcy
Significant Subsidiary or of any substantial part of their respective properties or
ordering the winding up or liquidation of their affairs, and any such decree, order
or appointment pursuant to any Bankruptcy Law for relief shall continue to be in
effect, or any such other decree, appointment or order shall be unstayed and in
effect, for a period of 60 consecutive days; or
(ii) (A) the Company or any Bankruptcy Significant Subsidiary (x) commences a
voluntary case or proceeding under any applicable Bankruptcy Law or any other case
or proceeding to be adjudicated bankrupt or insolvent or (y) consents to the filing
of a petition, application, answer or consent seeking reorganization or relief under
any applicable Bankruptcy Law, (B) the Company or any Bankruptcy Significant
Subsidiary consents to the entry of a decree or order for relief in respect of the
Company or such Bankruptcy Significant Subsidiary in an involuntary case or
proceeding under any applicable Bankruptcy Law or to the commencement of any
bankruptcy or insolvency case or proceeding against it or, (C) the Company or any
Bankruptcy Significant Subsidiary (x) consents to the appointment of, or taking
possession by, a Custodian of the Company or such Bankruptcy Significant Subsidiary
or of any substantial part of their respective properties, (y) makes a general
assignment for the benefit of its creditors or (z) generally is not paying its debts
as they become due.
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(b) In the event of any Event of Default specified in clause (a)(6) of this Section 6.1, such
Event of Default and all consequences thereof (excluding any resulting payment default, other than
as a result of acceleration of the Notes) shall be annulled, waived and rescinded, automatically
and without any action by the Trustee or the Holders of Notes, if within 20 days after such Event
of Default arose:
(1) the Indebtedness or guarantee that is the basis for such Event of Default has been
discharged; or
(2) holders thereof have rescinded or waived the acceleration, notice or action (as the
case may be) giving rise to such Event of Default; or
(3) the default that is the basis for such Event of Default has been cured.
(c) If a Default or an Event of Default occurs and is continuing and is known to the Trustee,
the Trustee shall mail to each Holder notice of the Default or Event of Default by registered or
certified mail or facsimile or electronic transmission within five Business Days after it has
obtained knowledge of such Default or Event of Default. The Trustee may withhold from Holders of
the Notes notice of any Default or Event of Default (except a Default or Event of Default relating
to the payment of principal or interest) if it determines that withholding notice is in their
interest. The Trustee shall not be deemed to have knowledge of a Default unless a Trust Officer
has actual knowledge of such Default or written notice of such Default has been received by the
Trustee at its Corporate Trust Office in New York, New York. Delivery of reports to the Trustee
pursuant to Section 4.15 shall not constitute knowledge of, or notice to, the Trustee of the
information contained therein.
Section 6.2.
Acceleration
. (a) If an Event of Default with respect to the Notes of any series (other than an Event of
Default specified in Section 6.1(a)(9) above) occurs and is continuing, then and in every such case
the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes of
such series by written notice to the Company specifying the Event of Default (and to the Trustee if
such notice is given by the Holders) may and the Trustee, upon the written request of such Holders
shall, declare the principal amount of all of the outstanding Notes of such series to be due and
payable immediately, and upon any such declaration such principal amount in respect of the Notes of
such series shall become immediately due and payable.
(b) If an Event of Default specified in Section 6.1(a)(9) above occurs and is continuing, then
the principal amount of all of the outstanding Notes shall
ipso facto
become and be immediately due
and payable without any declaration or other act on the part of the Trustee or any Holder.
Section 6.3.
Other Remedies
. If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
72
All rights of action and claims under this Indenture or the Notes may be prosecuted and
enforced by the Trustee without the possession of any of the Notes or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders in respect of which
such judgment has been recovered.
Section 6.4.
Waiver of Past Defaults
. The Holders of a majority in aggregate principal amount of each series of Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes of such
series waive any existing Default or Event of Default and its consequences under this Indenture
with respect to such series of Notes except a continuing Default or Event of Default in the payment
of premium, interest on, or the principal of, such series of Notes.
Section 6.5.
Control by Majority
. (a) Subject to certain limitations, Holders of a majority in principal amount of the then
outstanding Notes of any series may direct the Trustee in its exercise of any trust or power with
respect to such series.
(b) The Holders of a majority in principal amount of each series of then outstanding Notes
shall have the right to direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee with respect to such series;
provided
that
the Trustee may refuse to follow any direction (i) that conflicts with law or this Indenture, (ii)
that may involve the Trustee in personal liability, or (iii) that the Trustee determines in good
faith may be unduly prejudicial to the rights of Holders of Notes of such series not joining in the
giving of such direction. The Trustee may take any other action it deems proper that is not
inconsistent with any such direction received from Holders of Notes.
Section 6.6.
Limitation on Suits
. A Holder may not pursue any remedy with respect to this Indenture or any series of Notes unless:
(1) the Holder gives the Trustee written notice of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of outstanding Notes of
such series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer the Trustee indemnity reasonably satisfactory to the
Trustee against any costs, liability or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and
(5) during such 60-day period, the Holders of a majority in aggregate principal amount
of the outstanding Notes of such series do not give the Trustee a direction that is
inconsistent with the request.
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The limitations set forth in clauses (1) to (5) above do not apply to the right of any Holder
of a Note to receive payment of the principal of, premium, if any, or interest on, such Note or to
bring suit for the enforcement of any such payment, on or after the due date expressed in the
Notes, which right shall not be impaired or affected without the consent of the Holder.
A Holder may not use this Indenture to prejudice the rights of any other Holder or to obtain a
preference or priority over another Holder. Holders of the Notes may not enforce this Indenture or
the Notes except as provided in this Indenture.
Section 6.7.
Unconditional Right of Holders To Receive Payment
. Notwithstanding any other provision of this Indenture, the right of any Holder to receive
payment of principal of, premium, if any, and interest, if any, on the Notes held by such Holder,
on or after the respective due dates expressed in the Notes, or to bring suit for the enforcement
of any such payment on or after such respective dates, shall not be impaired or affected without
the consent of such Holder.
Section 6.8.
Collection Suit by Trustee
. If an Event of Default specified in Section 6.1(a)(1) or (2) occurs, the Company shall, upon
demand of the Trustee, pay to the Trustee for the benefit of the Holders of such Notes, the whole
amount then due and payable on such Notes for principal (and premium, if any), and interest, and
interest on any overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installment of interest, at the rate borne
by the Notes, and, in addition thereto, such further amount as shall be sufficient to cover the
amounts provided for in Section 7.6 and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name as trustee of an express trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce
the same against the Company or any other obligor upon the Notes and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of the Company or any other
obligor upon the Notes, wherever situated.
Section 6.9.
Trustee May File Proofs of Claim
. The Trustee may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.6) and the Holders allowed in any judicial
proceedings relative to the Company or any Guarantor, their creditors or their property and, unless
prohibited by law or applicable regulations, may vote on behalf of the Holders at their direction
in any election of a trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to
the Trustee and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other
amounts due the Trustee under Section 7.6. The Trustee shall be entitled and empowered to
participate as a member of any official committee of creditors appointed in any such matter.
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Nothing herein contained shall be deemed to empower the Trustee to authorize or consent to, or
accept or adopt on behalf of any Holder, any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.10.
Application of Money Collected
. If the Trustee collects any money or property pursuant to this Article Six, it shall pay
out the money or property in the following order:
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FIRST:
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to the Trustee (including any predecessor Trustee) for amounts due under Section 7.6;
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SECOND:
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to Holders for amounts due and unpaid on the Notes for principal of, premium, if
any, and interest, if any, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium, if any,
and interest, if any, respectively; and
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THIRD:
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to the Company, any Guarantor or any other obligors of the Notes, as their interests
may appear, or as a court of competent jurisdiction may direct.
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The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.10.
Section 6.11.
Undertaking for Costs
. A court may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, the filing by any party litigant in the suit of an undertaking to pay the costs of
such suit, and such court may in its discretion assess reasonable costs, including reasonable
attorneys fees, against any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by Holders of more than 10% in aggregate principal amount of the
outstanding Notes of a series or to any suit by any Holder pursuant to Section 6.7.
Section 6.12.
Restoration of Rights and Remedies
. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Guarantors, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
Section 6.13.
Rights and Remedies Cumulative
. Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in Section 2.7, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The
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assertion of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 6.14.
Delay or Omission not Waiver
. No delay or omission of the Trustee or of any Holder of any Note to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article Six or by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.15.
Record Date
. The Company may set a record date for purposes of determining the identity of Holders
entitled to vote or to consent to any action by vote or consent authorized or permitted by Sections
6.4, 6.5, 9.2 and 11.4. Unless this Indenture provides otherwise, if not previously set by the
Company, such record date shall be the later of ten days prior to the first solicitation of such
consent or the date of the most recent list of Holders furnished to the Trustee pursuant to Section
2.5 prior to such solicitation.
Section 6.16.
Waiver of Stay or Extension Laws
. The Company covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that
it shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law had been enacted.
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ARTICLE 7
TRUSTEE
Section 7.1.
Duties of Trustee.
(a) If an Event of Default has occurred and is continuing of which a Trust Officer of the
Trustee has actual knowledge, the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care in its exercise as a prudent man would exercise
in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default of which a Trust Officer of the
Trustee has actual knowledge: (i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no others and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and (ii) in the absence of bad
faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. In the case of any such certificates
or opinions which by any provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine same to determine whether they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or
other facts stated therein).
(c) The Trustee shall not be relieved from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this Section 7.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Trust
Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in
good faith in accordance with a direction received by it pursuant to Section 6.2 or 6.5.
(d) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company or any Guarantor. Money held in trust by the Trustee
need not be segregated from other funds except to the extent required by law.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(f) Every provision of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this Section 7.1.
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Section 7.2.
Certain Rights of Trustee
. (a) Subject to Section 7.1:
(i) the Trustee may rely, and shall be protected in acting or refraining from acting, upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper person;
(ii) before the Trustee acts or refrains from acting (except in connection with the original
issuance of the Notes on the date hereof), it may require an Officers Certificate or an Opinion of
Counsel, or both, which shall conform to Section 12.5. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and shall not be responsible for
the misconduct or negligence of any attorney or agent appointed with due care by it hereunder;
(iv) the Trustee shall be under no obligation to exercise any of the rights or powers vested
in it by this Indenture at the request or direction of any of the Holders, unless such Holders
shall have offered to the Trustee security and indemnity reasonably satisfactory to it against any
loss, liability or expense that might be incurred by it in compliance with such request or
direction;
(v) the Trustee shall not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within its rights or powers, provided that the Trustees
conduct does not constitute negligence or bad faith;
(vi) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers Certificate;
(vii) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records and premises of the
Company personally or by agent or attorney;
(viii) the Trustee may consult with counsel of its own selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance
with the advice or opinion of such counsel;
(ix) the rights, privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be enforceable by, the
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Trustee in each of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder;
(x) the Trustee shall not be required to give any note, bond or surety in respect of the
execution of the trusts and powers under this Indenture;
(xi) in no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its reasonable control, including, without limitation, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunction of utilities, third-party communications or computer (software and hardware)
services; it being understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices to prevent any failure or delay in the performance of its obligations and
to resume performance as soon as practicable under the circumstances; and
(xii) in no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.
(b) The Trustee may request that the Company deliver an Officers Certificate setting forth
the names of the individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers Certificate may be signed by any person
authorized to sign an Officers Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
Section 7.3.
Individual Rights of Trustee
. The Trustee, any Paying Agent, any Registrar or any other agent of the Company or of the
Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and,
subject to Sections 7.9 and 7.10, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Registrar or such other agent.
Section 7.4.
Trustees Disclaimer
. The recitals contained herein and in the Notes, except for the Trustees certificates of
authentication, shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Notes and perform its
obligations hereunder. The Trustee shall not be accountable for the use or application by the
Company of Notes or the proceeds thereof.
Section 7.5.
Reports by Trustee to Holders
. Within 60 days after April 1 of each year commencing with April 1, 2012, the Trustee shall
transmit to the Holders, in the manner and to the extent provided in TIA Section 313(c), a brief
report dated as of such date, if, and to the extent, required by TIA Section 313(a)(1), (2), (3),
(4), (5), (7) and (8), as if this Indenture were qualified under the TIA. The Trustee also shall
comply with TIA Section 313(b)(2), as if this Indenture were qualified under the TIA.
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The Company shall promptly notify the Trustee whenever the Notes become listed on any
securities exchange and of any delisting thereof and the Trustee shall comply with TIA Section
313(d).
Section 7.6.
Compensation and Indemnity
. The Company, failing which each Guarantor, shall pay to the Trustee such compensation as
shall be agreed in writing for its services hereunder. The Trustees compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company, failing which
each Guarantor, shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and out-of-pocket expenses of
the Trustees agents and counsel.
The Company, failing which the Guarantors, shall indemnify the Trustee against any and all
loss, liability or expense (including attorneys fees and expenses) incurred by it without willful
misconduct, negligence or bad faith on its part arising out of or in connection with the
administration of this trust and the performance of its duties hereunder (including the costs and
expenses of defending itself against any claim, whether asserted by the Company, the Guarantors,
any Holder or any other Person and the costs and expenses of enforcing this Indenture against the
Company or any Guarantor (including this Section 7.6)). The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company or the Guarantors of their respective obligations hereunder.
The Company shall defend the claim and the Trustee shall cooperate in such defense. The Trustee
may have separate counsel and the Company shall pay the fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which consent may not be
unreasonably withheld. The Company shall not reimburse any expense or indemnify against any loss,
liability or expense incurred by the Trustee through the Trustees own willful misconduct,
negligence or bad faith.
To secure the Companys payment obligations in this Section 7.6, the Trustee shall have a lien
prior to the Notes on all money or property held or collected by the Trustee, in its capacity as
Trustee, except money or property held in trust to pay principal of, premium, if any, and interest
on particular Notes.
When the Trustee incurs expenses after the occurrence of a Default specified in Section
6.1(a)(9) with respect to the Company, any Guarantor, or any Restricted Subsidiary, the expenses
are intended to constitute expenses of administration under Bankruptcy Law.
The Companys obligations under Section 7.6 and any claim arising hereunder shall survive the
resignation or removal of any Trustee, the satisfaction and discharge of the Companys obligations
pursuant to Article Eight and any rejection or termination under any Bankruptcy Law, and the
termination of this Indenture.
Section 7.7.
Replacement of Trustee
. A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustees acceptance of appointment as provided in Section 7.7.
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The Trustee may resign at any time by so notifying the Company. The Holders of a majority in
outstanding principal amount of the outstanding Notes may remove the Trustee by so notifying the
Trustee and the Company. The Company shall remove the Trustee if:
(a) the Trustee fails to comply with Section 7.9;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Trustee or its property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of the outstanding
Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If the successor Trustee does not deliver its written acceptance required by the next succeeding
paragraph of Section 7.7 within 30 days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of a majority in principal amount of the outstanding
Notes may, at the expense of the Company, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of at least 25% in outstanding
principal amount of the Notes may petition any court of competent jurisdiction for the appointment
of a successor Trustee at the expense of the Company.
If the Trustee fails to comply with Section 7.9, any Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to Section 7.7, the Companys and the
Guarantors obligations under Section 7.6 shall continue for the benefit of the retiring Trustee.
Section 7.8.
Successor Trustee by Merger
. Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article Seven, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Notes shall have been
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authenticated, but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such authentication and
deliver the Notes so authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes. In case at that time any of the Notes shall not have been authenticated,
any successor Trustee may authenticate such Notes either in the name of any predecessor hereunder
or in the name of the successor Trustee. In all such cases such certificates shall have the full
force and effect which this Indenture provides for the certificate of authentication of the Trustee
shall have;
provided
,
however
, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section 7.9.
Eligibility; Disqualification
. The Trustee shall at all times satisfy the requirements of TIA Section 310(a)(1) and (5).
The Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall be deemed to be subject to TIA
Section 310(b). If the Trustee has or shall acquire a conflicting interest within the meaning of
the TIA, the Trustee must either eliminate such interest within 90 days or resign, to the extent
and in the manner provided by, and subject to the provisions of, the TIA and this Indenture.
Section 7.10.
Preferential Collection of Claims Against Company
. The Trustee shall be deemed to be subject to TIA Section 311(a) on the same basis as if
this Indenture were qualified under the TIA, excluding any creditor relationship listed in TIA
Section 311(b). A Trustee who has resigned or been removed shall be deemed to be subject to TIA
Section 311(a) to the extent indicated therein.
Section 7.11.
Appointment of Co-Trustee
. (a) It is the purpose of this Indenture that there shall be no violation of any law of any
jurisdiction denying or restricting the right of banking corporations or associations to transact
business as trustee in such jurisdiction. It is recognized that in case of litigation under this
Indenture, and in particular in case of the enforcement thereof on default, or in the case the
Trustee deems that by reason of any present or future law of any jurisdiction it may not exercise
any of the powers, rights or remedies herein granted to the Trustee or hold title to the
properties, in trust, as herein granted or take any action which may be desirable or necessary in
connection therewith, it may be necessary that the Trustee appoint an individual or institution as
a separate or co-trustee. The following provisions of Section 7.11 are adopted to these ends.
(b) In the event that the Trustee appoints an additional individual or institution as a
separate or co-trustee, each and every remedy, power, right, claim, demand, cause of action,
immunity, estate, title, interest and lien expressed or intended by this Indenture to be exercised
by or vested in or conveyed to the Trustee with respect thereto shall be exercisable by and vest in
such separate or co-trustee but only to the extent necessary to enable such separate or co-trustee
to exercise such powers, rights and remedies, and only to the extent that the Trustee by the laws
of any jurisdiction is incapable of exercising such powers, rights and remedies, and every covenant
and obligation necessary to the exercise thereof by such separate or co-trustee shall run to and be
enforceable by either of them.
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(c) Should any instrument in writing from the Company be required by the separate or
co-trustee so appointed by the Trustee for more fully and certainly vesting in and confirming to
him or it such properties, rights, powers, trusts, duties and obligations, any and all such
instruments in writing shall, on request, be executed, acknowledged and delivered by the Company;
provided
,
however
, that if an Event of Default shall have occurred and be
continuing, if the Company does not execute any such instrument within 15 days after request
therefor, the Trustee shall be empowered as an attorney-in-fact for the Company to execute any such
instrument in the Companys name and stead. In case any separate or co-trustee or a successor to
either shall die, become incapable or acting, resign or be removed, all the estates, properties,
rights, powers, trusts, duties and obligations of such separate or co-trustee, so far as permitted
by law, shall vest in and be exercised by the Trustee until the appointment of a new trustee or
successor to such separate or co-trustee.
(d) To the extent permitted by law, no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder.
(e) Any notice, request or other writing given to the Trustee shall be deemed to have been
given to each of the then separate trustees and co-trustees, as effectively as if given to each of
them. Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture
and the conditions of this Article Seven.
(f) Any separate trustee or co-trustee may at any time appoint the Trustee as its agent or
attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any
lawful act under or in respect of this Indenture on its behalf and in its name.
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ARTICLE 8
DEFEASANCE; SATISFACTION AND DISCHARGE
Section 8.1.
Companys Option to Effect Legal Defeasance or Covenant Defeasance
. The Company may, at its option and at any time, with respect to the Notes of any series,
elect to have either Section 8.2 or Section 8.3 be applied to all outstanding Notes of such series
upon compliance with the conditions set forth below in this Article Eight.
Section 8.2.
Legal Defeasance
. Upon the Companys exercise under Section 8.1 of the option applicable to Section 8.2, the
Company and the Guarantors shall be deemed to have been discharged from their respective
obligations with respect to the outstanding Notes of any series and the Note Guarantees for such
series on the date the applicable conditions set forth in Section 8.4 are satisfied (hereinafter,
Legal Defeasance
). For this purpose, such Legal Defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by the Notes of such
series and to have satisfied all its other obligations under the Notes of such series and this
Indenture (and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of outstanding Notes of such series to receive
payments in respect of the principal of, or interest or premium, if any, on such Notes when such
payments are due from the trust fund described in Section 8.8 and as more fully set forth in such
Section; (ii) the Companys obligations with respect to the Notes of such series concerning issuing
temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the
maintenance of an office or agency for payment and money for security payments held in trust; (iii)
the rights, powers, trusts, duties and immunities of the Trustee, and the Companys and the
Guarantors obligations in connection therewith; and (iv) the provisions of this Indenture relating
to Legal Defeasance. Subject to compliance with this Article Eight, the Company may exercise its
option under Section 8.2 notwithstanding the prior exercise of its option under Section 8.3 below
with respect to the Notes.
Section 8.3.
Covenant Defeasance
. Upon the Companys exercise under Section 8.1 of the option applicable to Section 8.3, the
Company and the Guarantors shall be released from their respective obligations under any covenant
contained in Sections 4.5 through 4.15, Section 4.17, and Section 5.1(a)(3) with respect to the
Notes on and after the date the applicable conditions set forth in Section 8.4 are satisfied
(hereinafter,
Covenant Defeasance
), and the Notes shall thereafter be deemed not
outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders
(and the consequences of any thereof) in connection with such covenants, but shall continue to be
deemed outstanding for all other purposes hereunder (it being understood that such Notes shall
not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance
means that the Company may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default, but, except as specified above, the remainder of
this Indenture and such Notes shall be unaffected thereby. In addition, upon the Companys
exercise under Section 8.1 hereof of the option applicable to this Section 8.3, subject to the
satisfaction of the conditions set forth in
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Section 8.4 hereof, Sections 6.1(a)(3), 6.1(a)(4), 6.1(a)(5), 6.1(a)(6) and 6.1(a)(7) shall
not constitute Events of Default.
Section 8.4.
Conditions to Defeasance
. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to any
series of Notes:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of such series of Notes, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient, to pay the
principal of, or interest and premium, if any, on the outstanding Notes of such series on
the Stated Maturity or on the applicable Redemption Date, as the case may be, and the
Company must specify whether such Notes are being defeased to maturity or to a particular
Redemption Date;
(2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to
customary exceptions and exclusions, (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (ii) since the Issue Date, there has
been a change in the applicable federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding
Notes of such series will not recognize income, gain or loss for federal income tax purposes
as a result of such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee
an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to
customary exceptions and exclusions, the Holders of the outstanding Notes of such series
will not recognize income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Covenant Defeasance
had not occurred;
(4) no Default or Event of Default will have occurred and be continuing on the date of
such deposit (other than resulting from the borrowing of funds to be applied to make such
deposit and any similar and concurrent deposit relating to other Indebtedness and, in each
case, the granting of Liens in connection therewith);
(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture) to which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound;
(6) the Company must deliver to the Trustee an Officers Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders over the other
creditors of the Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others;
85
(7) if the Notes of such series are to be redeemed prior to their Stated Maturity, the
Company must deliver to the Trustee irrevocable instructions to redeem all of the Notes of
such series on the specified Redemption Date under arrangements satisfactory to the Trustee
for the giving of notice of such redemption by the Trustee in the name and at the expense of
the Company; and
(8) the Company must deliver to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Section 8.5.
Satisfaction and Discharge of Indenture
. This Indenture shall be discharged and shall cease to be of further effect as to all Notes
of any series issued hereunder, when:
(1) either:
(i) all Notes of such series that have been authenticated hereunder
(except lost, stolen or destroyed Notes that have been replaced or paid and
Notes for whose payment money has theretofore been deposited in trust and
thereafter repaid to the Company) have been delivered to the Trustee for
cancellation; or
(ii) all Notes of such series issued hereunder that have not been
delivered to the Trustee for cancellation (x) have become due and payable
(by reason of the mailing of a notice of redemption or otherwise), (y) will
become due and payable at Stated Maturity within one year, or (z) are to be
called for redemption within one year under arrangements satisfactory to the
Trustee, and in each such case the Company has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust solely for
the benefit of the Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient,
without consideration of any reinvestment of interest, to pay and discharge
the entire indebtedness on the Notes not delivered to the Trustee for
cancellation for principal, premium, if any, and accrued interest to the
Stated Maturity or Redemption Date, as the case may be;
(2) no Default or Event of Default (other than resulting from the borrowing of funds to
be applied to make such deposit and any similar and concurrent deposit relating to other
Indebtedness and, in each case, the granting of Liens in connection therewith) will have
occurred and be continuing on the date of such deposit or will occur as a result of such
deposit, and such deposit will not result in a breach or violation of, or constitute a
default under, any material agreement or instrument (other than this Indenture) to which the
Company or any Guarantor is a party or by which the Company or any Guarantor is bound (other
than resulting from the borrowing of funds to be applied to make such deposit and any
similar and concurrent deposit relating to other Indebtedness and, in each case, the
granting of Liens in connection therewith);
86
(3) the Company or any Guarantor has paid or caused to be paid all sums payable by it
with respect to such series of Notes under this Indenture; and
(4) the Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes of such series issued
hereunder at Stated Maturity or the Redemption Date, as the case may be.
In addition, the Company must deliver an Officers Certificate and an Opinion of Counsel to
the Trustee stating that all conditions precedent to satisfaction and discharge have been
satisfied.
Section 8.6.
[Reserved].
Section 8.7.
Acknowledgment of Discharge by Trustee
. Subject to Section 8.9, after the conditions of Sections 8.2 or 8.3 have been satisfied,
the Trustee upon written request shall acknowledge in writing the discharge of all of the Companys
obligations under this Indenture except for those surviving obligations specified in this Article
Eight.
Section 8.8.
Application of Trust Money
. Subject to Section 8.9, the Trustee shall hold in trust cash in U.S. dollars or Government
Securities deposited with it pursuant to this Article Eight. It shall apply the deposited cash or
Government Securities through the Paying Agent and in accordance with this Indenture to the payment
of principal of, premium, if any, and interest on the Notes; but such money need not be segregated
from other funds except to the extent required by law.
Section 8.9.
Repayment to Company
. Subject to Section 7.6, the Trustee and the Paying Agent shall promptly pay to the Company
upon request set forth in an Officers Certificate any excess money held by them at any time and
thereupon shall be relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for the payment of
principal, premium, if any, or interest that remains unclaimed for two years;
provided
that
the Trustee or Paying Agent before being required to make any payment may cause to be published (a)
in the
The Wall Street Journal
or another leading newspaper in New York, New York and (b) through
the newswire service of Bloomberg or, if Bloomberg does not then operate, any similar agency or
mail to each Holder entitled to such money at such Holders address (as set forth in the Security
Register) notice that such money remains unclaimed and that after a date specified therein (which
shall be at least 30 days from the date of such publication or mailing) any unclaimed balance of
such money then remaining shall be repaid to the Company. After payment to the Company, Holders
entitled to such money must look to the Company for payment as general creditors unless an
applicable law designates another Person, and all liability of the Trustee and such Paying Agent
with respect to such money shall cease.
Section 8.10.
Indemnity for Government Securities
. The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited Government Securities or the principal, premium, if any,
and interest, if any, received on such Government Securities.
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Section 8.11.
Reinstatement
. If the Trustee or Paying Agent is unable to apply cash in U.S. dollars or Government
Securities in accordance with this Article Eight by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Companys and the Guarantors obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant
to this Article Eight until such time as the Trustee or any such Paying Agent is permitted to apply
all such cash or Government Securities in accordance with this Article Eight;
provided
,
however
, that, if the Company has made any payment of principal of, premium, if any, and
interest, if any, on any Notes because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Notes to receive such payment from the cash in
U.S. dollars or Government Securities held by the Trustee or Paying Agent.
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ARTICLE 9
AMENDMENTS AND WAIVERS
Section 9.1.
Without Consent of Holders
. Notwithstanding Section 9.2, the Company, the Guarantors and the Trustee may amend or
supplement this Indenture or the Notes of any series without the consent of any Holder of Notes:
(a) to cure any ambiguity, omission, mistake, defect or inconsistency;
(b) to provide for uncertificated Notes of such series in addition to or in place of
certificated Notes of such series;
(c) to provide for the assumption of the Companys or any Guarantors obligations to Holders
of Notes of such series in accordance with this Indenture in the case of a merger or consolidation
or sale, assignment, transfer, conveyance or disposal of all or substantially all of the Companys
or such Guarantors assets;
(d) to make any change that would provide any additional rights or benefits to the Holders of
Notes of such series, to surrender any right or power conferred upon the Company or any Guarantor,
or to make any change that does not materially adversely affect the legal rights under this
Indenture of any such Holder;
(e) to comply with requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the TIA;
(f) to add a Guarantor under this Indenture or to release a Guarantor from its Note Guarantee
in accordance with the provisions of this Indenture;
(g) to evidence and provide for the acceptance of appointment by a successor Trustee;
(h) to provide for the issuance of Additional Notes in accordance with this Indenture;
(i) to conform this Indenture, the Note Guarantees or the Notes of such series to any
provision of the Description of Notes section of the Offering Memorandum to the extent such
provision is intended to be a verbatim recitation thereof; or
(j) to grant any Lien in favor of the Trustee for the benefit of the Holders of the Notes.
Section 9.2.
With Consent of Holders
. (a) Except as provided in Section 9.2(b) below and without prejudice to Section 9.1, this
Indenture, any Note Guarantee or the Notes of any series may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then outstanding Notes of
each series affected by the proposed amendment or supplement (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes of
such series), and any existing Default or Event of Default or compliance with any provision of this
Indenture, any Note Guarantee or the Notes of any series may be waived with respect to such series
with the consent of the Holders of a majority in principal amount of the then outstanding Notes of
such
89
series (including, without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, Notes of such series).
(b) Without the consent of each Holder of each series affected, an amendment or waiver may not
(with respect to any Notes of the same series held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;
(2) change the Stated Maturity of the principal of, or any installment of interest on,
any Note;
(3) reduce the principal amount of, or premium, if any, or interest on, any Note;
(4) change the optional redemption dates or optional redemption prices of the Notes
from those stated in paragraph 5 of the applicable Note in any manner adverse to the Holders
of the Notes;
(5) waive a Default or Event of Default in the payment of principal of, or interest, or
premium, if any, on, the Notes (except, upon a rescission of acceleration of the Notes of
any series by the Holders of at least a majority in aggregate principal amount of the Notes
of such series then outstanding, a waiver of the payment default that resulted from such
acceleration) or in respect of any other covenant or provision that cannot be amended or
modified without the consent of all Holders;
(6) make any Note payable in money other than U.S. dollars;
(7) release any Guarantor that is a Significant Subsidiary from any of its obligations
under its Note Guarantee or this Indenture, except in accordance with the terms of this
Indenture;
(8) impair the right to institute suit for the enforcement of any payment on or with
respect to the Notes or the Note Guarantees;
(9) amend, change or modify the obligation of the Company to make and consummate an
Offer to Purchase with respect to any Asset Sale in accordance with Section 4.7 after the
obligation to make such Offer to Purchase has arisen, or the obligation of the Company to
make and consummate an Offer to Purchase in the event of a Change of Control in accordance
with Section 4.6 after such Change of Control has occurred, including, in each case,
amending, changing or modifying any definition relating thereto; or
(10) make any change to this Section 9.2(b).
(c) The consent of Holders of the Notes is not necessary under this Indenture to approve a
particular form of any proposed amendment. It is sufficient if such consent approves the substance
of the proposed amendment.
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Section 9.3.
Effect of Supplemental Indentures
. Upon the execution of any supplemental indenture under this Article Nine, this Indenture
shall be modified in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Notes theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
Section 9.4.
Notation on or Exchange of Notes
. If an amendment, modification or supplement changes the terms of a Note, the Company or
Trustee may require the Holder to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Note and on any Note subsequently authenticated regarding the changed terms and
return it to the Holder. Alternatively, if the Company so determines, the Company in exchange for
the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms.
Failure to make the appropriate notation or to issue a new Note shall not affect the validity of
such amendment, modification or supplement.
Section 9.5.
Notice of Amendment or Waiver
. Promptly after the execution by the Company and the Trustee of any supplemental indenture
or waiver pursuant to the provisions of Section 9.2, the Company shall give notice thereof to the
Holders of each outstanding Note affected, in the manner provided for in Section 12.2(b) or (c),
setting forth in general terms the substance of such supplemental indenture or waiver. Any failure
by the Company to mail such notice, or any mistake or defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
Section 9.6.
Execution of Amendments, Supplements or Waivers
. In executing, or accepting the additional trusts created by, any amendment, supplement or
waiver permitted by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be provided with, and shall be fully protected in relying upon, an
Officers Certificate and Opinion of Counsel stating that the execution of such amendment,
supplement or waiver is authorized and permitted by this Indenture and that such amendment,
supplement or waiver is the legal, valid and binding obligation of the Company and any Guarantor
party thereto, enforceable against them in accordance with its terms, subject to customary
qualifications, and complies with the provisions hereof. The Trustee may, but shall not be
obligated to, enter into any such amendment, supplement or waiver which affects the Trustees own
rights, duties or immunities under this Indenture or otherwise.
Section 9.7.
Payments for Consent
. The Company shall comply with the provisions of Section 4.18 hereof.
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ARTICLE 10
GUARANTEE
Section 10.1.
Note Guarantees
. (a) Pursuant to the Note Guarantees, the Guarantors hereby fully and unconditionally
Guarantee, on an unsecured, senior, joint and several basis, to each Holder and to the Trustee and
its successors and assign on behalf of each Holder, the due and punctual full payment of principal
of, premium, if any, and interest on, and all other monetary obligations of the Company under this
Indenture and the Notes (including obligations to the Trustee) with respect to each Note
authenticated and delivered by the Trustee or its agent pursuant to and in accordance with this
Indenture, in accordance with the terms of this Indenture. The Guarantors further agree that the
Note Guarantees may be extended or renewed, in whole or in part, without notice or further assent
from the Guarantors and that the Guarantors shall remain bound under this Article Ten
notwithstanding any extension or renewal of any Note Guarantee. All payments under such Note
Guarantee shall be made in U.S. dollars.
(b) The Guarantors hereby agree that their obligations hereunder shall be as if they were
principal debtor and not merely surety, unaffected by, and irrespective of, any validity,
irregularity or unenforceability of any Note or this Indenture, any failure to enforce the
provisions of any Note or this Indenture, any waiver, modification or indulgence granted to the
Company with respect thereto by the Holders or the Trustee, or any other circumstance which may
otherwise constitute a legal or equitable discharge of a surety or guarantor (except payment in
full);
provided
,
however
, that, notwithstanding the foregoing, no such waiver,
modification, indulgence or circumstance shall without the written consent of the Guarantors
increase the principal amount of a Note or the interest rate thereon or change the currency of
payment with respect to any Note, or alter the Stated Maturity thereof. The Guarantors hereby
waive diligence, presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Company, any right to require that the Trustee pursue or exhaust its
legal or equitable remedies against the Company prior to exercising its rights under the Note
Guarantee (including, for the avoidance of doubt, any right which the Guarantors may have to
require the seizure and sale of the assets of the Company to satisfy the outstanding principal of,
interest on or any other amount payable under each Note prior to recourse against the Guarantors or
their assets), protest or notice with respect to any Note or the Indebtedness evidenced thereby and
all demands whatsoever, and covenant that the Note Guarantee shall not be discharged with respect
to any Note except by payment in full of the principal thereof and interest thereon or as otherwise
provided in this Indenture, including Sections 10.3 and 10.5. If at any time any payment of
principal of, premium, if any, or interest, if any, on such Note is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of the Company or otherwise,
the Guarantors obligations hereunder with respect to such payment shall be reinstated as of the
date of such rescission, restoration or returns as though such payment had become due but had not
been made at such times.
(c) The Guarantors also agree to pay any and all costs and expenses (including reasonable
attorneys fees) incurred by the Trustee or any Holder in enforcing any rights under Section 10.1.
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Section 10.2.
Subrogation
. (a) Subject to clause (b) below, the Guarantors shall be subrogated to all rights of the
Holders against the Company in respect of any amounts paid to such Holders by the Guarantors
pursuant to the provisions of their Note Guarantee.
(b) The Guarantors agree that they shall not be entitled to any right of subrogation in
relation to the Holders in respect of any Note Guarantee guaranteed hereby until payment in full of
all Note Guarantees. The Guarantors further agree that, as between them, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the Note Guarantees guaranteed
hereby may be accelerated as provided in Section 6.2 for the purposes of their Note Guarantee
herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the Note Guarantees guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Section 6.2, such Note Guarantees (whether or not
due and payable) shall forthwith become due and payable by the Guarantors for the purposes of this
Section 10.2, subject to Section 10.1(c) above.
Section 10.3.
Limitation of Note Guarantees
. Each Note Guarantee is limited to an amount not to exceed the maximum amount that can be
guaranteed by each Guarantor by law or without resulting in its obligations under its Note
Guarantee being voidable or unenforceable under applicable laws relating to fraudulent transfer, or
under similar laws affecting the rights of creditors generally.
Section 10.4.
Notation Not Required
. Neither the Company nor any Guarantor shall be required to make a notation on the Notes to
reflect any Note Guarantee or any release, termination or discharge thereof.
Section 10.5.
Release of the Note Guarantees
. A Note Guarantee of a Guarantor shall be automatically and unconditionally released (and
thereupon shall terminate and be discharged and be of no further force and effect):
(1) in connection with any sale, transfer or other disposition (including by merger or
otherwise) of Capital Stock of the Guarantor after which such Guarantor is no longer a
Restricted Subsidiary of the Company, if such sale, transfer or other disposition complies
with the applicable provisions of this Indenture;
(2) if the Company properly designates the Guarantor as an Unrestricted Subsidiary
under this Indenture;
(3) upon the release of such Guarantors guarantee under the Credit Agreement;
(4) upon a Legal Defeasance or satisfaction and discharge of this Indenture that
complies with Sections 8.1, 8.2 and 8.4 or Section 8.5, as applicable; or
(5) upon payment in full of the aggregate principal amount of all Notes of the
applicable series then outstanding and all other obligations under this Indenture and the
Notes of the applicable series then due and owing.
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Upon any occurrence giving rise to a release of a Note Guarantee as specified above, the
Trustee shall execute any documents reasonably required in order to evidence or effect such
release, discharge and termination in respect of such Note Guarantee. Neither the Company nor any
Guarantor shall be required to make a notation on the Notes to reflect any Note Guarantee or any
such release, termination or discharge.
Section 10.6.
Successors and Assigns
. This Article Ten shall be binding upon the Guarantors and each of their successors and
assigns and shall inure to the benefit of the successors and assigns of the Trustee and the Holders
and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights
and privileges conferred upon that party in this Indenture and in the Notes shall automatically
extend to and be vested in such transferee or assigns, all subject to the terms and conditions of
this Indenture.
Section 10.7.
No Waiver
. Neither a failure nor a delay on the part of either the Trustee or the Holders in
exercising any right, power or privilege under this Article Ten shall operate as a waiver thereof,
nor shall a single or partial exercise thereof preclude any other or further exercise of any right,
power or privilege. No notice to or demand on any Guarantor in any case shall entitle such
Guarantor to any other or further notice or demand in the same, similar or other circumstance.
94
ARTICLE 11
HOLDERS MEETINGS
Section 11.1.
Purposes of Meetings
. A meeting of the Holders may be called at any time pursuant to this Article Eleven for any
of the following purposes:
(a) to give any notice to the Company or any Guarantor or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any Default hereunder and its
consequences, or to take any other action authorized to be taken by Holders pursuant to Article
Nine;
(b) to remove the Trustee and appoint a successor trustee pursuant to Article Seven; or
(c) to consent to the execution of an indenture supplement pursuant to Section 9.2.
Section 11.2.
Place of Meetings
. Meetings of Holders may be held at such place or places as the Trustee or, in case of its
failure to act, the Company, any Guarantor or the Holders calling the meeting, shall from time to
time determine.
Section 11.3.
Call and Notice of Meetings
. (a) The Trustee may at any time (upon not less than 21 days notice) call a meeting of
Holders to be held at such time and at such place in New York, New York or in such other city as
determined by the Trustee pursuant to Section 11.2. Notice of every meeting of Holders, setting
forth the time and the place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be mailed to each Holder and published in the manner contemplated by Section
12.2(b).
(b) In case at any time the Company, pursuant to a resolution of the Board of Directors, or
the Holders of at least 10% in aggregate principal amount of the Notes then outstanding, shall have
requested the Trustee to call a meeting of the Holders, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have
made the first giving of the notice of such meeting within 20 days after receipt of such request,
then the Company or the Holders of Notes in the amount above specified may determine the time (not
less than 21 days after notice is given) and the place in New York, New York or in such other city
as determined by the Company or the Holders pursuant to Section 11.2 for such meeting and may call
such meeting to take any action authorized in Section 11.1 by giving notice thereof as provided in
Section 11.1(a).
Section 11.4.
Voting at Meetings
. To be entitled to vote at any meeting of Holders, a Person shall be (i) a Holder at the
relevant record date set in accordance with Section 6.15 or (ii) a Person appointed by an
instrument in writing as proxy for a Holder or Holders by such Holder or Holders. The only Persons
who shall be entitled to be present or to speak at any meeting of Holders shall be the Person so
entitled to vote at such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and any Guarantor and their counsel.
Section 11.5.
Voting Rights, Conduct and Adjournment
. (a) Notwithstanding any other provisions of this Indenture, the Trustee may make such
reasonable regulations as it may
95
deem advisable for any meeting of Holders in regard to proof of the holding of Notes and of
the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of Notes shall be proved in
the manner specified in Section 2.3 and the appointment of any proxy shall be proved in such manner
as is deemed appropriate by the Trustee or by having the signature of the Person executing the
proxy witnessed or guaranteed by any bank, banker or trust company customarily authorized to
certify to the holding of a Note such as a Global Note.
(b) At any meeting of Holders, the presence of Persons holding or representing Notes in an
aggregate principal amount at Stated Maturity sufficient under the appropriate provision of this
Indenture to take action upon the business for the transaction of which such meeting was called
shall constitute a quorum. Subject to any required aggregate principal amount at Stated Maturity
of Notes required for the taking of any action pursuant to Article Nine, in no event shall less
than a majority of the votes given by Persons holding or representing Notes at any meeting of
Holders be sufficient to approve an action. Any meeting of Holders duly called pursuant to Section
11.3 may be adjourned from time to time by vote of the Holders (or proxies for the Holders) of a
majority of the Notes represented at the meeting and entitled to vote, whether or not a quorum
shall be present; and the meeting may be held as so adjourned without further notice. No action at
a meeting of Holders shall be effective unless approved by Persons holding or representing Notes in
the aggregate principal amount at Stated Maturity required by the provision of this Indenture
pursuant to which such action is being taken.
(c) At any meeting of Holders, each Holder or proxy shall be entitled to one vote for each
$1,000 aggregate principal amount at Stated Maturity of outstanding Notes held or represented.
Section 11.6.
Revocation of Consent by Holders at Meetings
. At any time prior to (but not after) the evidencing to the Trustee of the taking of any
action at a meeting of Holders by the Holders of the percentage in aggregate principal amount of
the Notes specified in this Indenture in connection with such action, any Holder of a Note the
serial number of which is included in the Notes the Holders of which have consented to such action
may, by filing written notice with the Trustee at its principal Corporate Trust Office and upon
proof of holding as provided herein, revoke such consent so far as concerns such Note. Except as
aforesaid, any such consent given by the Holder of any Note shall be conclusive and binding upon
such Holder and upon all future Holders and owners of such Note and of any Note issued in exchange
therefor, in lieu thereof or upon transfer thereof, irrespective of whether or not any notation in
regard thereto is made upon such Note. Any action taken by the Holders of the percentage in
aggregate principal amount of the Notes specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Guarantors, the Trustee and the Holders.
Section 11.6 shall not apply to revocations of consents to amendments, supplements or waivers,
which shall be governed by the provisions of Section 9.3.
Section 11.7.
Acts of Holders
. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor
96
signed by such Holders in person or by agents duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Proof of execution of any such instrument or of a writing appointed any such agent shall
be sufficient for any purposed of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Persons executing the same, may also be
provide in any other manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Notes held by any Person, and the date of
holding the same, shall be proved by the Security Register.
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ARTICLE 12
MISCELLANEOUS
Section 12.1.
Trust Indenture Act Controls
. If and to the extent that any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by the TIA expressly incorporated herein in accordance with Section 1.3
hereof, such imposed duties or incorporated provision shall control.
Section 12.2.
Notices
. (a) Any notice or communication shall be in writing and delivered in person or mailed by
first class mail or sent by facsimile transmission addressed as follows:
if to the Company or the Guarantors:
Sealed Air Corporation
200 Riverfront Boulevard
Elmwood Park, New Jersey 07407
Attention: Legal Department
Telephone: (201) 791-7600
Facsimile: (201) 703-4231
With a copy to:
Risë B. Norman, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017-3954
Telephone: (212) 455-3080
Facsimile: (212) 455-2502
if to the Trustee:
HSBC Bank USA, National Association
452 Fifth Avenue
Corporate Trust
New York, New York 10018
Attention: Gloria Alli
Telephone: (212) 525-1404
Facsimile: (212) 525-1300
Email: gloria.alli@us.hsbc.com
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With a copy to:
Jeffrey H. Elkin, Esq.
Winston & Strawn LLP
200 Park Avenue
New York, NY 10166
Telephone: (212) 294-6711
Facsimile: (212) 294-4700
The Company, the Guarantors or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications. All communications delivered to the
Trustee shall be deemed effective when received.
(b) Notices to the Holders regarding the Notes shall be mailed to each Holder by first-class
mail, delivered in person or by overnight air courier guaranteeing next-day delivery at such
Holders respective address as it appears in the Security Register.
Notices given by first-class mail shall be deemed given five calendar days after mailing and
notices given by publication shall be deemed given on the first date on which publication is made.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
(c) If and so long as the Notes are represented by Global Notes, notice to Holders, in lieu of
being given in accordance with Section 12.2(b) above, may also be given by delivery of the relevant
notice to DTC for communication to entitled account holdings in substitution for the
previously-mentioned publication.
(d) Where this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
Section 12.3.
Communication by Holders with Other Holders
. Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture, the Notes or the Note Guarantees as if this Indenture were
subject to such Section 312(b) (except for the provisions of such Section 312(b) pertaining to
filings with, and hearings before, the Commission). The Company, any Guarantor, the Trustee, the
Registrar and anyone else shall be deemed to have the protection of TIA Section 312(c).
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Section 12.4.
Certificate and Opinion as to Conditions Precedent
. Upon any request or application by the Company or any Guarantor to the Trustee to take or
refrain from taking any action under this Indenture (except in connection with the original
issuance of the Notes on the date hereof), the Company or any Guarantor, as the case may be, shall
furnish upon request to the Trustee:
(a) an Officers Certificate in form reasonably satisfactory to the Trustee stating that, in
the opinion of the signer, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form reasonably satisfactory to the Trustee stating that, in the
opinion of such counsel, all such conditions precedent have been complied with.
Section 12.5.
Statements Required in Certificate or Opinion
. Every certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(a) a statement that the individual signing such certificate or opinion has read such covenant
or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.
Section 12.6.
Rules by Trustee, Paying Agent and Registrar
. The Trustee may make reasonable rules for action by or at a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
Section 12.7.
Legal Holidays
. If an Interest Payment Date or other payment date is a Legal Holiday, payment shall be made
on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening
period. If a Record Date is a Legal Holiday, the Record Date shall not be affected.
Section 12.8.
Governing Law
. THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 12.9.
Jurisdiction
. The Company and the Guarantors agree that any suit, action or proceeding against the
Company or the Guarantors brought by any Holder or the Trustee arising out of or based upon this
Indenture, the Note Guarantees or the Notes may be instituted in any state or Federal court in the
Borough of Manhattan, New York, New York, and any appellate court from any thereof, and each of
them irrevocably submits to the non-exclusive jurisdiction of
100
such courts in any suit, action or proceeding. The Company and the Guarantors irrevocably
waive, to the fullest extent permitted by law, any objection to any suit, action, or proceeding
that may be brought in connection with this Indenture, the Note Guarantees or the Notes, including
such actions, suits or proceedings relating to securities laws of the United States of America or
any state thereof, in such courts whether on the grounds of venue, residence or domicile or on the
ground that any such suit, action or proceeding has been brought in an inconvenient forum. The
Company and the Guarantors agree that final judgment in any such suit, action or proceeding brought
in such court shall be conclusive and binding upon the Company or the Guarantors, as the case may
be, and may be enforced in any court to the jurisdiction of which the Company or the Guarantors, as
the case may be, are subject by a suit upon such judgment;
provided
,
however
, that
service of process is effected upon the Company or the Guarantors, as the case may be, in the
manner provided by this Indenture.
Section 12.10.
Waiver of Jury Trial
. EACH OF THE ISSUER, THE GUARANTORS, AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
Section 12.11.
No Recourse Against Others
. No director, officer, employee, incorporator, stockholder, member, manager or partner of
the Company or any Guarantor, as such, shall have any liability for any obligations of the Company
or the Guarantors under the Notes, this Indenture, the Note Guarantees or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
Section 12.12.
Successors
. All agreements of the Company and any Guarantor in this Indenture and the Notes shall bind
their respective successors. All agreements of the Trustee in this Indenture shall bind its
successors.
Section 12.13.
Electronic Means
. The parties agree that the transaction described herein may be conducted and related
documents may be stored by electronic means. Copies, telecopies, facsimiles, electronic files and
other reproductions of original executed documents shall be deemed to be authentic and valid
counterparts of such original documents for all purposes, including the filing of any claim, action
or suit in the appropriate court of law.
Section 12.14.
Multiple Originals
. The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
Section 12.15.
Table of Contents and Headings
. The table of contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not intended to be considered a part hereof and
shall not modify or restrict any of the terms or provisions hereof.
101
Section 12.16.
Severability
. In case any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
102
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first
written above.
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SEALED AIR CORPORATION,
as the Company
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By:
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/s/ Tod S. Christie
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Name:
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Tod S. Christie
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Title:
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Interim Chief Financial
Officer
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Indenture Company Signature Page
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CPI PACKAGING, INC.,
as Guarantor
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By:
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/s/ H. Katherine White
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Name:
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H. Katherine White
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Title:
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Vice President and Secretary
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CRYOVAC, INC.,
as Guarantor
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By:
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/s/ H. Katherine White
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Name:
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H. Katherine White
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Title:
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Vice President, General Counsel and Secretary
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CRYOVAC INTERNATIONAL
HOLDINGS INC.,
as Guarantor
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By:
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/s/ H. Katherine White
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Name:
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H. Katherine White
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Title:
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Vice President and Secretary
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CRYOVAC LEASING CORPORATION,
as Guarantor
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By:
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/s/ H. Katherine White
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Name:
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H. Katherine White
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Title:
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Vice President and Secretary
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POLY PACKAGING SYSTEMS, INC.,
as Guarantor
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By:
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/s/ H. Katherine White
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Name:
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H. Katherine White
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Title:
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Vice President and Secretary
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Indenture Guarantors Signature Page
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POLYPRIDE, INC.,
as Guarantor
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By:
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/s/ H. Katherine White
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Name:
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H. Katherine White
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Title:
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Vice President and Secretary
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REFLECTIX, INC.,
as Guarantor
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By:
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/s/ H. Katherine White
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Name:
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H. Katherine White
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Title:
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Vice President and Secretary
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SEALED AIR CORPORATION (US),
as Guarantor
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By:
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/s/ H. Katherine White
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Name:
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H. Katherine White
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Title:
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Vice President and Secretary
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SEALED AIR LLC,
as Guarantor
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By:
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/s/ H. Katherine White
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Name:
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H. Katherine White
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Title:
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Vice President and Secretary
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SEALED AIR FINANCE LLC,
as Guarantor
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By:
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/s/ H. Katherine White
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Name:
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H. Katherine White
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Title:
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Vice President and Secretary
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Indenture Guarantors Signature Page
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SEALED AIR SOLUTIONS HOLDINGS, INC.,
as Guarantor
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By:
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/s/ H. Katherine White
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Name:
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H. Katherine White
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Title:
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Vice President, General Counsel and Secretary
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SEALED AIR NEVADA HOLDINGS LIMITED
(FKA SEALED AIR JAPAN LIMITED),
as Guarantor
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By:
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/s/ H. Katherine White
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Name:
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H. Katherine White
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Title:
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Vice President and Secretary
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SHANKLIN CORPORATION,
as Guarantor
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By:
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/s/ H. Katherine White
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Name:
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H. Katherine White
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Title:
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Vice President and Secretary
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Indenture Guarantors Signature Page
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AUTO-C, LLC,
as Guarantor
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By:
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/s/ Scott D. Russell
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Name:
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Diversey, Inc. Member
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Title:
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Scott D. Russell, Executive Vice President Chief Compliance Officer,
General Counsel, Secretary and Interim Global Human Resources Lead
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DIVERSEY, INC.,
as Guarantor
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By:
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/s/ Scott D. Russell
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Name:
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Scott D. Russell
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Title:
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Executive Vice President Chief Compliance Officer, General Counsel,
Secretary and Interim Global Human Resources Lead
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DIVERSEY HOLDINGS, INC.,
as Guarantor
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By:
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/s/ Scott D. Russell
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Name:
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Scott D. Russell
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Title:
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Executive Vice President Chief Compliance Officer, General Counsel,
Secretary and Interim Global Human Resources Lead
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DIVERSEY PUERTO RICO, INC.,
as Guarantor
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By:
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/s/ Scott D. Russell
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Name:
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Scott D. Russell
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Title:
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President
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DIVERSEY SHAREHOLDINGS, INC.,
as Guarantor
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By:
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/s/ Scott D. Russell
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Name:
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Scott D. Russell
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Title:
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President
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Indenture Guarantors Signature Page
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JD POLYMER, LLC,
as Guarantor
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By:
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/s/ David C. Quast
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Name:
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David C. Quast
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Title:
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Secretary
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JDI CEE HOLDINGS, INC.,
as Guarantor
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By:
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/s/ David C. Quast
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Name:
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David C. Quast
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Title:
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Secretary
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JDI HOLDINGS, INC.,
as Guarantor
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By:
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/s/ David C. Quast
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Name:
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David C. Quast
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Title:
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Secretary
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JWP INVESTMENTS, INC.,
as Guarantor
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By:
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/s/ David C. Quast
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Name:
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David C. Quast
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Title:
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Secretary
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PROFESSIONAL SHAREHOLDINGS, INC.,
as Guarantor
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By:
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/s/ David C. Quast
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Name:
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David C. Quast
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Title:
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Secretary
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Indenture Guarantors Signature Page
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THE BUTCHER COMPANY,
as Guarantor
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By:
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/s/ David C. Quast
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Name:
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David C. Quast
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Title:
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Secretary
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Indenture Guarantors Signature Page
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HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
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By:
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/s/ Herawattee Alli
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Name:
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Herawattee Alli
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Title:
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Vice President
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Indenture Trustee Signature Page
EXHIBIT A-1
[FORM OF FACE OF 2019 NOTE]
[Include if Global Note UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NOMINEE AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS GLOBAL NOTE AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO
TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR RESALES AND OTHER TRANSFERS OF THIS GLOBAL
NOTE TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN
PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF
THIS GLOBAL NOTE SHALL BE DEEMED, BY THE ACCEPTANCE HEREOF, TO HAVE AGREED TO ANY SUCH AMENDMENT OR
SUPPLEMENT.]
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE SECURITIES ACT) OR ANY SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER JURISDICTION, AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER: (1) REPRESENTS THAT (A) IT IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT
A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT OFFER, RESELL, PLEDGE OR
OTHERWISE TRANSFER (EACH A TRANSFER) THIS SECURITY EXCEPT: (I) (A) TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (B) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
A-1-1
OF REGULATION S UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (D) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER) OR (E) TO SEALED AIR CORPORATION OR ANY SUBSIDIARY THEREOF;
AND (II) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND
OTHER APPLICABLE JURISDICTIONS; (3) AGREES THAT PRIOR TO ANY TRANSFER (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE (2)(I)(D) ABOVE) IT WILL FURNISH TO THE REGISTRAR AND SEALED AIR CORPORATION
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS ANY OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (4) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY, THE HOLDER MUST COMPLETE THE
APPROPRIATE CERTIFICATES REQUIRED BY THE INDENTURE RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT SUCH CERTIFICATES TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
UPON ANY TRANSFER OF THE SECURITIES THAT IS AFTER (X) THE DATE WHICH IS [IN THE CASE OF RULE 144A
NOTES: ONE YEAR (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT
OR ANY SUCCESSOR PROVISION THEREUNDER)] [IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DATE ON
WHICH SEALED AIR CORPORATION OR ANY AFFILIATE OF SEALED AIR CORPORATION WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED
BY APPLICABLE LAW. AS USED HEREIN, THE TERMS OFFSHORE TRANSACTION, UNITED STATES, AND U.S.
PERSON HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN
VIOLATION OF THE FOREGOING RESTRICTIONS.
BY ITS ACQUISITION OR ACCEPTANCE HEREOF OR ANY INTEREST HEREIN, THE HOLDER HEREOF OR OF SUCH
INTEREST REPRESENTS THAT EITHER (I) NO ASSETS OF ANY EMPLOYEE BENEFIT PLANS THAT ARE SUBJECT TO
TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (ERISA), PLANS,
INDIVIDUAL RETIREMENT ACCOUNTS AND OTHER ARRANGEMENTS THAT ARE SUBJECT TO SECTION 4975 OF THE U.S.
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE) OR PROVISIONS UNDER ANY OTHER FEDERAL,
STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR
THE CODE (COLLECTIVELY, SIMILAR LAWS), AND ENTITIES WHOSE UNDERLYING ASSETS
A-1-2
ARE CONSIDERED TO INCLUDE PLAN ASSETS (AS DEFINED IN DEPARTMENT OF LABOR REGULATION 29
C.F.R. SECTION 2510.3-101, MODIFIED BY SECTION 3(42) OF ERISA) OF ANY SUCH PLAN, ACCOUNT OR
ARRANGEMENT (EACH, A PLAN) OR A NON-U.S., GOVERNMENTAL OR CHURCH PLAN HAVE BEEN USED TO ACQUIRE
THE NOTES OR AN INTEREST THEREIN OR (II) THE PURCHASE AND HOLDING OF SUCH NOTES OR AN INTEREST
THEREIN BY THE PURCHASER DOES NOT CONSTITUTE A NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION 406
OF ERISA OR SECTION 4975 OF THE CODE, OR VIOLATION OF ANY SIMILAR FEDERAL, STATE, LOCAL, NON-U.S.
OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975
OF THE CODE.
A-1-3
SEALED AIR CORPORATION
8.125% SENIOR NOTE DUE 2019
No._____
[If Restricted Global Note CUSIP Number 81211K AQ3; ISIN Number US81211KAQ31]
[If Regulation S Global Note CUSIP Number U81193 AG6; ISIN Number USU81193AG69]
Sealed Air Corporation, a corporation incorporated under the laws of Delaware, for value
received promises to pay to Cede & Co. or registered assigns the principal sum of _______________
AND NO/100 DOLLARS ($ ), [as revised by Schedule A attached hereto,]
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on September 15,
2019.
From October 3, 2011, or from the most recent interest payment date to which interest has been
paid or provided for, cash interest on this Note will accrue at 8.125% per annum, payable
semiannually in arrears on March 15 and September 15 of each year, beginning on March 15, 2012, to
the Person in whose name this Note (or any predecessor Note) is registered at the close of business
on the preceding March 1 or September 1, as the case may be.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK
.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature of an authorized signatory, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof and to the provisions of the Indenture, which provisions shall for all purposes have the
same effect as if set forth at this place.
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1
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Insert in Global Notes only.
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A-1-4
IN WITNESS WHEREOF, Sealed Air Corporation has caused this Note to be signed manually or by
facsimile by its duly authorized signatory.
Dated: _________________
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SEALED AIR CORPORATION
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By:
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Name:
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Title:
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Authorized Signatory
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TRUSTEES CERTIFICATE OF AUTHENTICATION
HSBC Bank USA, National Association,
as Trustee, certifies that this is one of the Notes referred to in the Indenture.
Dated: _________________
A-1-5
[FORM OF REVERSE SIDE OF 2019 NOTE]
8.125% Senior Note Due 2019
1.
Interest
Sealed Air Corporation, a corporation incorporated under the laws of Delaware, (such
corporation, and its successors and assigns under the Indenture hereinafter referred to, being
herein called the
Company
), for value received promises to pay interest on the principal
amount of this Note from October 3, 2011, at the rate per annum shown above. Interest shall be
computed on the basis of a 360-day year comprising twelve 30-day months. The Company shall pay
interest on overdue principal at the interest rate borne by the Notes, and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful.
2.
Method of Payment
The Company shall pay interest on this Note (except defaulted interest) to the persons who are
registered Holders of this Note at the close of business on the Record Date for the next Interest
Payment Date even if this Note is cancelled after the Record Date and on or before the Interest
Payment Date. The Company shall pay principal and interest in U.S. dollars in immediately
available funds that at the time of payment is legal tender for payment of public and private
debts. If a Holder has given wire transfer instructions to the Company at least 10 Business Days
prior to the applicable payment date, the Company shall pay all principal, interest and premium, if
any, on such Holders Notes in accordance with such instructions. All other payments on Notes shall
be made at the office or agency of the Paying Agent and Registrar within the City and State of New
York unless the Company elects to make interest payments by check mailed to the Holders at their
addresses set forth in the applicable register of Holders;
provided
that all payments of
principal, premium, if any, and interest, with respect to the Global Notes registered in the name
of or held by DTC or its nominee shall be made by wire transfer of immediately available funds to
the account specified by DTC.
The amount of payments in respect of interest on each Interest Payment Date shall correspond
to the aggregate principal amount of Notes represented by the Regulation S Global Note and the
Restricted Global Note, as established by the Registrar at the close of business on the relevant
Record Date. Payments of principal shall be made upon surrender of the Regulation S Global Note
and the Restricted Global Note to the Paying Agent.
3.
Paying Agent and Registrar
Initially, HSBC Bank USA, National Association or one of its affiliates shall act as Paying
Agent and Registrar. The Company or any of its Subsidiaries incorporated in the United States may
act as Paying Agent, Registrar or co-Registrar.
4.
Indenture
The Company issued this Note under an indenture dated as of October 3, 2011 (the
Indenture
), among the Company, the Guarantors and HSBC Bank USA, National Association, as
trustee (the
Trustee
). The terms of this Note include those stated in the Indenture and
those
A-1-6
made part of the Indenture by express reference to the TIA. Terms defined in the Indenture
and not defined herein have the meanings ascribed thereto in the Indenture. This Note is subject
to all such terms, and Holders are referred to the Indenture and the TIA for a statement of those
terms. To the extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling.
This Note is a senior obligation of the Company. The Indenture imposes certain limitations on
the Company, the Guarantors and their affiliates, including, without limitation, limitations on the
incurrence of indebtedness and issuance of stock, the payment of dividends and other payment
restrictions affecting the Company and its subsidiaries, the sale of assets, transactions with and
among affiliates of the Company and the Restricted Subsidiaries, change of control and Liens.
5.
Optional Redemption
(a) At any time prior to September 15, 2014, the Company may redeem up to 35% of the aggregate
principal amount of the 2019 Notes issued under the Indenture (including any Additional Notes) at a
Redemption Price of 108.125% of the principal amount thereof, plus accrued and unpaid interest
thereon to the Redemption Date, subject to the rights of Holders of 2019 Notes on the relevant
Record Date to receive interest due on the relevant Interest Payment Date, with the net cash
proceeds of one or more Equity Offerings;
provided
that:
(1) at least 65% of the aggregate principal amount of the 2019 Notes issued under the
Indenture (including any Additional 2019 Notes) remains outstanding immediately after the
occurrence of such redemption; and
(2) the redemption must occur within 120 days of the date of the closing of such Equity
Offering.
(b) At any time prior to September 15, 2015, the Company may redeem all or part of the 2019
Notes at a redemption price equal to the sum of (i) 100% of the principal amount thereof, plus (ii)
the Applicable Premium as of the Redemption Date, plus (iii) accrued and unpaid interest to the
Redemption Date, subject to the rights of Holders of Notes on the relevant Record Date to receive
interest due on the relevant Interest Payment Date.
(c) On or after September 15, 2015, the Company may redeem all or a part of the 2019 Notes at
the Redemption Prices (expressed as percentages of principal amount) set forth below plus accrued
and unpaid interest thereon, to the applicable Redemption Date, subject to the rights of Holders of
2019 Notes on the relevant Record Date to receive interest due on the relevant Interest Payment
Date, if redeemed during the twelve-month period beginning on September 15 of the years indicated
below:
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Year
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Percentage
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2015
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104.063
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%
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2016
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102.031
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%
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2017 and thereafter
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100.000
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%
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A-1-7
6.
Notice of Redemption
At least 30 days but not more than 60 days before a Redemption Date of Notes, the Company
shall (i) mail a notice of redemption by first-class mail to each Holder whose Notes are to be
redeemed at its registered address contained in the Security Register or (ii) otherwise give notice
of redemption to each Holder in accordance with the procedures of DTC. If this Note is in a
denomination larger than $2,000 of principal amount it may be redeemed in part but only in integral
multiples of $1,000;
provided
that no such partial redemption shall reduce the portion of
the principal amount of a Note not redeemed to less than $2,000. In the event of a redemption of
less than all of the Notes, the Notes for redemption shall be chosen by the Trustee in accordance
with the Indenture. If this Note is redeemed subsequent to a Record Date with respect to any
Interest Payment Date specified above, then any accrued and unpaid interest shall be paid to the
Holder at the close of business on such Record Date. If money sufficient to pay the Redemption
Price of and accrued and unpaid interest on all Notes (or portions thereof) to be redeemed on the
Redemption Date is deposited with the applicable Paying Agent on or before the Redemption Date and
certain other conditions are satisfied, interest ceases to accrue on such Notes (or such portions
thereof) called for redemption on or after such date.
7.
Repurchase at the Option of Holders
If a Change of Control (as defined in the Indenture) occurs, unless the Company has previously
or concurrently mailed or otherwise given a redemption notice with respect to all the outstanding
Notes pursuant to Section 3.1 of the Indenture, the Company must commence, within 30 days of the
occurrence of a Change of Control, and consummate, by the Payment Date, an Offer to Purchase for
all Notes then outstanding, at a purchase price in cash equal to 101% of the aggregate principal
amount of the Notes repurchased plus accrued and unpaid interest thereon, to the date of
repurchase, subject to the rights of Holders of Notes on the relevant Record Date to receive
interest due on the relevant Interest Payment Date. The Company shall purchase all Notes tendered
pursuant to the Offer to Purchase and not withdrawn in accordance with the procedures set forth in
such notice. The Offer to Purchase shall state, among other things, the procedures that Holders of
the Notes must follow to accept the Offer to Purchase.
In accordance with the Indenture, if, as of the first day of any calendar month, the aggregate
amount of Excess Proceeds (as defined in the Indenture) totals at least $75.0 million, the Company
must make, not later than the fifteenth Business Day of such month, an Offer to Purchase to all
Holders of Notes and, if required by the terms of any Pari Passu Debt, all holders of such Pari
Passu Debt, to purchase the maximum principal amount of Notes and such other Pari Passu Debt that
may be purchased out of the Excess Proceeds. The offer price in any such Offer to Purchase shall be
equal to 100% of the principal amount of the Notes and such other Pari Passu Debt plus accrued and
unpaid interest to the date of purchase (or, in respect of such Pari Passu Debt, such lesser price
as may be provided by the terms of such Pari Passu Debt), subject to the rights of Holders of Notes
on the relevant Record Date to receive interest on the relevant Interest Payment Date, and shall be
payable in cash.
A-1-8
8.
Denominations
The Notes are in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
The transfer of Notes may be registered, and Notes may be exchanged, as provided in the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by the Indenture.
9.
Mandatory Redemption
The Company shall not be required to make any mandatory redemption or sinking fund payments
with respect to the Notes. The Company may be required to offer to purchase the Notes pursuant to
Sections 4.6 and 4.7 of the Indenture. The Company and its Restricted Subsidiaries may at any time
and from time to time purchase Notes in the open market or otherwise.
10.
Unclaimed Money
All moneys paid by the Company or the Guarantors to the Trustee or a Paying Agent for the
payment of the principal of, or premium, if any, or interest on, any Notes that remain unclaimed
for two years (subject to Section 8.9 of the Indenture) after such principal, premium or interest
has become due and payable may be repaid to the Company or the Guarantors, subject to applicable
law, and the Holder of such Note thereafter may look only to the Company or the Guarantors for
payment thereof.
11.
Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate some or all of its
obligations and the obligations of the Guarantors under the Notes, the Note Guarantees and the
Indenture if the Company irrevocably deposits with the Trustee cash in U.S. dollars, non-callable
Government Securities, or a combination thereof for the payment of principal and interest on the
Notes to redemption or maturity, as the case may be.
12.
Amendment, Supplement and Waiver
Subject to certain exceptions, the Indenture or the Notes of this series may be amended or
supplemented with the consent of the Holders of at least a majority in principal amount of the then
outstanding Notes of this series, and any existing Default or Event of Default and its consequences
under the Indenture and compliance with any provision of the Indenture, any Note Guarantee or the
Notes of this series may be waived with respect to this series of Notes with the consent of the
Holders of a majority in principal amount of the then outstanding Notes of this series.
13.
Defaults and Remedies
The Notes have the Events of Default as set forth in Section 6.1 of the Indenture. If an
Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes of this series may declare all the Notes of this series to be
A-1-9
due and payable immediately by notice in writing to the Company specifying the Event of
Default. Certain events of bankruptcy or insolvency are Events of Default and shall result in the
Notes being due and payable immediately upon the occurrence of such Events of Default.
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may refuse to enforce the Indenture or the Notes unless it receives an indemnity reasonably
satisfactory to it. Subject to certain limitations, Holders of a majority in principal amount of
the then outstanding Notes of this series may direct the Trustee in its exercise of any trust or
power with respect to this series. The Holders of a majority in aggregate principal amount of this
series of Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes of this series waive any existing Default or Event of Default and its consequences under
the Indenture with respect to this series of Notes except a continuing Default or Event of Default
in the payment of premium, interest on, or the principal of, this series of Notes. The above
description of Events of Default and remedies is qualified by reference, and subject in its
entirety, to the more complete description thereof contained in the Indenture.
14.
Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal
with and collect obligations owed to it by the Company, the Guarantors or any of their Affiliates
with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar,
co-Registrar or co-Paying Agent may do the same with like rights.
15.
No Recourse Against Others
No director, officer, employee, incorporator, stockholder, member, manager or partner of the
Company or any Guarantor, as such, shall have any liability for any obligations of the Company or
the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. The waiver and release are part of the consideration
for issuance of the Notes.
16.
Authentication
This Note shall not be valid until an authorized officer of the Trustee (or an authenticating
agent) manually signs the certificate of authentication on the other side of this Note.
17.
Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK
.
The Company shall furnish to any Holder upon written request and without charge to the Holder
a copy of the Indenture. Requests may be made to:
A-1-10
Sealed Air Corporation
200 Riverfront Boulevard
Elmwood Park, New Jersey 07407
Attention: Legal Department
A-1-11
ASSIGNMENT FORM
To assign and transfer this Note, fill in the form below:
(I) or (the Company) assign and transfer this Note to
(Insert assignees social security or tax I.D. no.)
(Print or type assignees name, address and postal code)
and irrevocably appoint ____________________________ agent to transfer this Note on the books of
the Company. The agent may substitute another to act for him.
Your Signature: ____________________
(Sign exactly as your name appears on the other side of this
Note)
Signature Guaranty: ________________________________________________________
(Participant in a recognized signature guaranty medallion program)
Date:_________________________
Certifying Signature:
In connection with any transfer of any Notes evidenced by this certificate occurring prior to
the date that is one year after the later of the date of original issuance of such Notes and the
last date, if any, on which the Notes were owned by the Company or any Affiliate of the Company,
the undersigned confirms that such Notes are being transferred in accordance with the transfer
restrictions set forth in such Notes and:
CHECK ONE BOX BELOW
(1)
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o
to the Company or any Subsidiary thereof; or
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(2)
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o
pursuant to and in compliance with Rule 144A under the U.S. Securities Act of
1933; or
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(3)
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o
pursuant to and in compliance with Regulation S under the U.S. Securities Act
of 1933; or
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(4)
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o
pursuant to another available exemption from the registration requirements of
the U.S. Securities Act of 1933; or
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A-1-12
(5)
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o
pursuant to an effective registration statement under the U.S. Securities Act
of 1933.
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Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes
evidenced by this certificate in the name of any person other than the registered Holder thereof;
provided
,
however
, that if box (2) is checked, by executing this form, the
Transferor is deemed to have certified that such Notes are being transferred to a person it
reasonably believes is a qualified institutional buyer as defined in Rule 144A under the U.S.
Securities Act of 1933 who has received notice that such transfer is being made in reliance on Rule
144A; if box (3) is checked, by executing this form, the Transferor is deemed to have certified
that such transfer is made pursuant to an offer and sale that occurred outside the United States in
compliance with Regulation S under the U.S. Securities Act of 1933; and if box (4) is checked, the
Trustee may require, prior to registering any such transfer of the Notes, such legal opinions,
certifications and other information as the Company reasonably requests to confirm that such
transfer is being made pursuant to an exemption from or in a transaction not subject to, the
registration requirements of the U.S. Securities Act of 1933.
Signature: _______________________
Signature Guaranty:
_____________________
(Participant in a recognized signature guaranty medallion program)
Certifying Signature: __________________ Date:______________________
Signature Guaranty: _________________________
(Participant in a recognized signature guaranty medallion program)]
A-1-13
OPTION OF THE HOLDER TO ELECT PURCHASE
If you want to elect to have this Note or a portion thereof repurchased pursuant to Section
4.6 or 4.7 of the Indenture, check the appropriate box below:
o
Section 4.6
o
Section 4.7
If the purchase is in part, indicate the portion (in denominations of $2,000 or any integral
multiple of $1,000 in excess thereof) to be purchased:
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Your signature:
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(Sign exactly as your name appears on the other side of this Note)
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Date:
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Certifying Signature:
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A-1-14
SCHEDULE A
2
SCHEDULE OF PRINCIPAL AMOUNT
The following decreases/increases in the principal amount of this Security have been made:
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Principal
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Amount
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Date of
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Decrease in
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Increase in
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Following such
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Notation Made
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Decrease/
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Principal
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Principal
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Decrease/
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by or on Behalf
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Increase
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Amount
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Amount
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Increase
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of Registrar
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2
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Insert in Global Notes only.
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A-1-15
EXHIBIT A-2
[FORM OF FACE OF 2021 NOTE]
[Include if Global Note UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NOMINEE AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS GLOBAL NOTE AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO
TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR RESALES AND OTHER TRANSFERS OF THIS GLOBAL
NOTE TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN
PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF
THIS GLOBAL NOTE SHALL BE DEEMED, BY THE ACCEPTANCE HEREOF, TO HAVE AGREED TO ANY SUCH AMENDMENT OR
SUPPLEMENT.]
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE SECURITIES ACT) OR ANY SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER JURISDICTION, AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY PERSONS EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER: (1) REPRESENTS THAT (A) IT IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT
A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT OFFER, RESELL, PLEDGE OR
OTHERWISE TRANSFER (EACH A TRANSFER) THIS SECURITY EXCEPT: (I) (A) TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (B) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
A-2-1
OF REGULATION S UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (D) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER) OR (E) TO SEALED AIR CORPORATION OR ANY SUBSIDIARY THEREOF;
AND (II) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND
OTHER APPLICABLE JURISDICTIONS; (3) AGREES THAT PRIOR TO ANY TRANSFER (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE (2)(I)(D) ABOVE) IT WILL FURNISH TO THE REGISTRAR AND SEALED AIR CORPORATION
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS ANY OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (4) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY, THE HOLDER MUST COMPLETE THE
APPROPRIATE CERTIFICATES REQUIRED BY THE INDENTURE RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT SUCH CERTIFICATES TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
UPON ANY TRANSFER OF THE SECURITIES THAT IS AFTER (X) THE DATE WHICH IS [IN THE CASE OF RULE 144A
NOTES: ONE YEAR (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT
OR ANY SUCCESSOR PROVISION THEREUNDER)] [IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DATE ON
WHICH SEALED AIR CORPORATION OR ANY AFFILIATE OF SEALED AIR CORPORATION WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED
BY APPLICABLE LAW. AS USED HEREIN, THE TERMS OFFSHORE TRANSACTION, UNITED STATES, AND U.S.
PERSON HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN
VIOLATION OF THE FOREGOING RESTRICTIONS.
BY ITS ACQUISITION OR ACCEPTANCE HEREOF OR ANY INTEREST HEREIN, THE HOLDER HEREOF OR OF SUCH
INTEREST REPRESENTS THAT EITHER (I) NO ASSETS OF ANY EMPLOYEE BENEFIT PLANS THAT ARE SUBJECT TO
TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (ERISA), PLANS,
INDIVIDUAL RETIREMENT ACCOUNTS AND OTHER ARRANGEMENTS THAT ARE SUBJECT TO SECTION 4975 OF THE U.S.
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE) OR PROVISIONS UNDER ANY OTHER FEDERAL,
STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR
THE CODE (COLLECTIVELY, SIMILAR LAWS), AND ENTITIES WHOSE UNDERLYING ASSETS
A-2-2
ARE CONSIDERED TO INCLUDE PLAN ASSETS (AS DEFINED IN DEPARTMENT OF LABOR REGULATION 29
C.F.R. SECTION 2510.3-101, MODIFIED BY SECTION 3(42) OF ERISA) OF ANY SUCH PLAN, ACCOUNT OR
ARRANGEMENT (EACH, A PLAN) OR A NON-U.S., GOVERNMENTAL OR CHURCH PLAN HAVE BEEN USED TO ACQUIRE
THE NOTES OR AN INTEREST THEREIN OR (II) THE PURCHASE AND HOLDING OF SUCH NOTES OR AN INTEREST
THEREIN BY THE PURCHASER DOES NOT CONSTITUTE A NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION 406
OF ERISA OR SECTION 4975 OF THE CODE, OR VIOLATION OF ANY SIMILAR FEDERAL, STATE, LOCAL, NON-U.S.
OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975
OF THE CODE.
A-2-3
SEALED AIR CORPORATION
8.375% SENIOR NOTE DUE 2021
No._____
[If Restricted Global Note CUSIP Number 81211K AR1; ISIN Number US81211KAR14]
[If Regulation S Global Note CUSIP Number U81193 AJ0; ISIN Number USU81193AJ09]
Sealed Air Corporation, a corporation incorporated under the laws of Delaware, for value
received promises to pay to Cede & Co. or registered assigns the principal sum of _______________
AND NO/100 DOLLARS ($ ), [as revised by Schedule A attached hereto,]
3
on September 15,
2021.
From October 3, 2011, or from the most recent interest payment date to which interest has been
paid or provided for, cash interest on this Note will accrue at 8.375% per annum, payable
semiannually in arrears on March 15 and September 15 of each year, beginning on March 15, 2012, to
the Person in whose name this Note (or any predecessor Note) is registered at the close of business
on the preceding March 1 or September 1, as the case may be.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK
.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature of an authorized signatory, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof and to the provisions of the Indenture, which provisions shall for all purposes have the
same effect as if set forth at this place.
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3
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Insert in Global Notes only.
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A-2-4
IN WITNESS WHEREOF, Sealed Air Corporation has caused this Note to be signed manually or by
facsimile by its duly authorized signatory.
Dated: _________________
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SEALED AIR CORPORATION
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By:
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Name:
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Title:
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Authorized Signatory
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TRUSTEES CERTIFICATE OF AUTHENTICATION
HSBC
Bank USA, National Association,
as Trustee, certifies that this is one of the Notes referred to in the Indenture.
Dated: _________________
A-2-5
[FORM OF REVERSE SIDE OF 2021 NOTE]
8.375% Senior Note Due 2021
1.
Interest
Sealed Air Corporation, a corporation incorporated under the laws of Delaware, (such
corporation, and its successors and assigns under the Indenture hereinafter referred to, being
herein called the
Company
), for value received promises to pay interest on the principal
amount of this Note from October 3, 2011, at the rate per annum shown above. Interest shall be
computed on the basis of a 360-day year comprising twelve 30-day months. The Company shall pay
interest on overdue principal at the interest rate borne by the Notes, and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful.
2.
Method of Payment
The Company shall pay interest on this Note (except defaulted interest) to the persons who are
registered Holders of this Note at the close of business on the Record Date for the next Interest
Payment Date even if this Note is cancelled after the Record Date and on or before the Interest
Payment Date. The Company shall pay principal and interest in U.S. dollars in immediately
available funds that at the time of payment is legal tender for payment of public and private
debts. If a Holder has given wire transfer instructions to the Company at least 10 Business Days
prior to the applicable payment date, the Company shall pay all principal, interest and premium, if
any, on such Holders Notes in accordance with such instructions. All other payments on Notes shall
be made at the office or agency of the Paying Agent and Registrar within the City and State of New
York unless the Company elects to make interest payments by check mailed to the Holders at their
addresses set forth in the applicable register of Holders;
provided
that all payments of
principal, premium, if any, and interest, with respect to the Global Notes registered in the name
of or held by DTC or its nominee shall be made by wire transfer of immediately available funds to
the account specified by DTC.
The amount of payments in respect of interest on each Interest Payment Date shall correspond
to the aggregate principal amount of Notes represented by the Regulation S Global Note and the
Restricted Global Note, as established by the Registrar at the close of business on the relevant
Record Date. Payments of principal shall be made upon surrender of the Regulation S Global Note
and the Restricted Global Note to the Paying Agent.
3.
Paying Agent and Registrar
Initially, HSBC Bank USA, National Association or one of its affiliates shall act as Paying
Agent and Registrar. The Company or any of its Subsidiaries incorporated in the United States may
act as Paying Agent, Registrar or co-Registrar.
4.
Indenture
The Company issued this Note under an indenture dated as of October 3, 2011 (the
Indenture
), among the Company, the Guarantors and HSBC Bank USA, National Association, as
trustee (the
Trustee
). The terms of this Note include those stated in the Indenture and
those
A-2-6
made part of the Indenture by express reference to the TIA. Terms defined in the Indenture
and not defined herein have the meanings ascribed thereto in the Indenture. This Note is subject
to all such terms, and Holders are referred to the Indenture and the TIA for a statement of those
terms. To the extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling.
This Note is a senior obligation of the Company. The Indenture imposes certain limitations on
the Company, the Guarantors and their affiliates, including, without limitation, limitations on the
incurrence of indebtedness and issuance of stock, the payment of dividends and other payment
restrictions affecting the Company and its subsidiaries, the sale of assets, transactions with and
among affiliates of the Company and the Restricted Subsidiaries, change of control and Liens.
5.
Optional Redemption
(a) At any time prior to September 15, 2014, the Company may redeem up to 35% of the aggregate
principal amount of the 2021 Notes issued under the Indenture (including any Additional Notes) at a
Redemption Price of 108.375% of the principal amount thereof, plus accrued and unpaid interest
thereon to the Redemption Date, subject to the rights of Holders of 2021 Notes on the relevant
Record Date to receive interest due on the relevant Interest Payment Date, with the net cash
proceeds of one or more Equity Offerings;
provided
that:
(1) at least 65% of the aggregate principal amount of the 2021 Notes issued under the
Indenture (including any Additional 2021 Notes) remains outstanding immediately after the
occurrence of such redemption; and
(2) the redemption must occur within 120 days of the date of the closing of such Equity
Offering.
(b) At any time prior to September 15, 2016, the Company may redeem all or part of the 2021
Notes at a redemption price equal to the sum of (i) 100% of the principal amount thereof, plus (ii)
the Applicable Premium as of the Redemption Date, plus (iii) accrued and unpaid interest to the
Redemption Date, subject to the rights of Holders of Notes on the relevant Record Date to receive
interest due on the relevant Interest Payment Date.
(c) On or after September 15, 2016, the Company may redeem all or a part of the 2021 Notes at
the Redemption Prices (expressed as percentages of principal amount) set forth below plus accrued
and unpaid interest thereon, to the applicable Redemption Date, subject to the rights of Holders of
2021 Notes on the relevant Record Date to receive interest due on the relevant Interest Payment
Date, if redeemed during the twelve-month period beginning on September 15 of the years indicated
below:
A-2-7
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Year
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Percentage
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2016
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104.188
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%
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2017
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102.792
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%
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2018
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101.396
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%
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2019 and thereafter
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100.000
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%
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6.
Notice of Redemption
At least 30 days but not more than 60 days before a Redemption Date of Notes, the Company
shall (i) mail a notice of redemption by first-class mail to each Holder whose Notes are to be
redeemed at its registered address contained in the Security Register or (ii) otherwise give notice
of redemption to each Holder in accordance with the procedures of DTC. If this Note is in a
denomination larger than $2,000 of principal amount it may be redeemed in part but only in integral
multiples of $1,000;
provided
that no such partial redemption shall reduce the portion of
the principal amount of a Note not redeemed to less than $2,000. In the event of a redemption of
less than all of the Notes, the Notes for redemption shall be chosen by the Trustee in accordance
with the Indenture. If this Note is redeemed subsequent to a Record Date with respect to any
Interest Payment Date specified above, then any accrued and unpaid interest shall be paid to the
Holder at the close of business on such Record Date. If money sufficient to pay the Redemption
Price of and accrued and unpaid interest on all Notes (or portions thereof) to be redeemed on the
Redemption Date is deposited with the applicable Paying Agent on or before the Redemption Date and
certain other conditions are satisfied, interest ceases to accrue on such Notes (or such portions
thereof) called for redemption on or after such date.
7.
Repurchase at the Option of Holders
If a Change of Control (as defined in the Indenture) occurs, unless the Company has previously
or concurrently mailed or otherwise given a redemption notice with respect to all the outstanding
Notes pursuant to Section 3.1 of the Indenture, the Company must commence, within 30 days of the
occurrence of a Change of Control, and consummate, by the Payment Date, an Offer to Purchase for
all Notes then outstanding, at a purchase price in cash equal to 101% of the aggregate principal
amount of the Notes repurchased plus accrued and unpaid interest thereon, to the date of
repurchase, subject to the rights of Holders of Notes on the relevant Record Date to receive
interest due on the relevant Interest Payment Date. The Company shall purchase all Notes tendered
pursuant to the Offer to Purchase and not withdrawn in accordance with the procedures set forth in
such notice. The Offer to Purchase shall state, among other things, the procedures that Holders of
the Notes must follow to accept the Offer to Purchase.
In accordance with the Indenture, if, as of the first day of any calendar month, the aggregate
amount of Excess Proceeds (as defined in the Indenture) totals at least $75.0 million, the Company
must make, not later than the fifteenth Business Day of such month, an Offer to Purchase to all
Holders of Notes and, if required by the terms of any Pari Passu Debt, all holders of such Pari
Passu Debt, to purchase the maximum principal amount of Notes and such other Pari Passu Debt that
may be purchased out of the Excess Proceeds. The offer price in any such Offer to Purchase shall be
equal to 100% of the principal amount of the Notes and such other
A-2-8
Pari Passu Debt plus accrued and unpaid interest to the date of purchase (or, in respect of
such Pari Passu Debt, such lesser price as may be provided by the terms of such Pari Passu Debt),
subject to the rights of Holders of Notes on the relevant Record Date to receive interest on the
relevant Interest Payment Date, and shall be payable in cash.
8.
Denominations
The Notes are in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
The transfer of Notes may be registered, and Notes may be exchanged, as provided in the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by the Indenture.
9.
Mandatory Redemption
The Company shall not be required to make any mandatory redemption or sinking fund payments
with respect to the Notes. The Company may be required to offer to purchase the Notes pursuant to
Sections 4.6 and 4.7 of the Indenture. The Company and its Restricted Subsidiaries may at any time
and from time to time purchase Notes in the open market or otherwise.
10.
Unclaimed Money
All moneys paid by the Company or the Guarantors to the Trustee or a Paying Agent for the
payment of the principal of, or premium, if any, or interest on, any Notes that remain unclaimed
for two years (subject to Section 8.9 of the Indenture) after such principal, premium or interest
has become due and payable may be repaid to the Company or the Guarantors, subject to applicable
law, and the Holder of such Note thereafter may look only to the Company or the Guarantors for
payment thereof.
11.
Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate some or all of its
obligations and the obligations of the Guarantors under the Notes, the Note Guarantees and the
Indenture if the Company irrevocably deposits with the Trustee cash in U.S. dollars, non-callable
Government Securities, or a combination thereof for the payment of principal and interest on the
Notes to redemption or maturity, as the case may be.
12.
Amendment, Supplement and Waiver
Subject to certain exceptions, the Indenture or the Notes of this series may be amended or
supplemented with the consent of the Holders of at least a majority in principal amount of the then
outstanding Notes of this series, and any existing Default or Event of Default and its consequences
under the Indenture and compliance with any provision of the Indenture, any Note Guarantee or the
Notes of this series may be waived with respect to this series of Notes with the consent of the
Holders of a majority in principal amount of the then outstanding Notes of this series.
A-2-9
13.
Defaults and Remedies
The Notes have the Events of Default as set forth in Section 6.1 of the Indenture. If an
Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes of this series may declare all the Notes of this series to be
due and payable immediately by notice in writing to the Company specifying the Event of Default.
Certain events of bankruptcy or insolvency are Events of Default and shall result in the Notes
being due and payable immediately upon the occurrence of such Events of Default.
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may refuse to enforce the Indenture or the Notes unless it receives an indemnity reasonably
satisfactory to it. Subject to certain limitations, Holders of a majority in principal amount of
the then outstanding Notes of this series may direct the Trustee in its exercise of any trust or
power with respect to this series. The Holders of a majority in aggregate principal amount of this
series of Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes of this series waive any existing Default or Event of Default and its consequences under
the Indenture with respect to this series of Notes except a continuing Default or Event of Default
in the payment of premium, interest on, or the principal of, this series of Notes. The above
description of Events of Default and remedies is qualified by reference, and subject in its
entirety, to the more complete description thereof contained in the Indenture.
14.
Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal
with and collect obligations owed to it by the Company, the Guarantors or any of their Affiliates
with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar,
co-Registrar or co-Paying Agent may do the same with like rights.
15.
No Recourse Against Others
No director, officer, employee, incorporator, stockholder, member, manager or partner of the
Company or any Guarantor, as such, shall have any liability for any obligations of the Company or
the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. The waiver and release are part of the consideration
for issuance of the Notes.
16.
Authentication
This Note shall not be valid until an authorized officer of the Trustee (or an authenticating
agent) manually signs the certificate of authentication on the other side of this Note.
17.
Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK
.
A-2-10
The Company shall furnish to any Holder upon written request and without charge to the Holder
a copy of the Indenture. Requests may be made to:
Sealed Air Corporation
200 Riverfront Boulevard
Elmwood Park, New Jersey 07407
Attention: Legal Department
A-2-11
ASSIGNMENT FORM
To assign and transfer this Note, fill in the form below:
(I) or (the Company) assign and transfer this Note to
__________________________________________________________
(Insert assignees social security or tax I.D. no.)
__________________________________________________________
(Print or type assignees name, address and postal code)
and irrevocably appoint ____________________________ agent to transfer this Note on the books of
the Company. The agent may substitute another to act for him.
Your Signature: ____________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guaranty: ________________________________________________________
(Participant in a recognized signature guaranty medallion program)
Date:__________________________________________________
Certifying Signature:
In connection with any transfer of any Notes evidenced by this certificate occurring prior to
the date that is one year after the later of the date of original issuance of such Notes and the
last date, if any, on which the Notes were owned by the Company or any Affiliate of the Company,
the undersigned confirms that such Notes are being transferred in accordance with the transfer
restrictions set forth in such Notes and:
CHECK ONE BOX BELOW
(1)
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o
to the Company or any Subsidiary thereof; or
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(2)
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o
pursuant to and in compliance with Rule 144A under the U.S. Securities Act of
1933; or
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(3)
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o
pursuant to and in compliance with Regulation S under the U.S. Securities Act
of 1933; or
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(4)
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o
pursuant to another available exemption from the registration requirements of
the U.S. Securities Act of 1933; or
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A-2-12
(5)
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o
pursuant to an effective registration statement under the U.S. Securities Act
of 1933.
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Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes
evidenced by this certificate in the name of any person other than the registered Holder thereof;
provided
,
however
, that if box (2) is checked, by executing this form, the
Transferor is deemed to have certified that such Notes are being transferred to a person it
reasonably believes is a qualified institutional buyer as defined in Rule 144A under the U.S.
Securities Act of 1933 who has received notice that such transfer is being made in reliance on Rule
144A; if box (3) is checked, by executing this form, the Transferor is deemed to have certified
that such transfer is made pursuant to an offer and sale that occurred outside the United States in
compliance with Regulation S under the U.S. Securities Act of 1933; and if box (4) is checked, the
Trustee may require, prior to registering any such transfer of the Notes, such legal opinions,
certifications and other information as the Company reasonably requests to confirm that such
transfer is being made pursuant to an exemption from or in a transaction not subject to, the
registration requirements of the U.S. Securities Act of 1933.
Signature: _______________________
Signature Guaranty:
___________________________________________________
(Participant in a recognized signature guaranty medallion program)
Certifying Signature: __________________ Date:______________________
Signature Guaranty: _________________________
(Participant in a recognized signature guaranty medallion program)]
A-2-13
OPTION OF THE HOLDER TO ELECT PURCHASE
If you want to elect to have this Note or a portion thereof repurchased pursuant to Section
4.6 or 4.7 of the Indenture, check the appropriate box below:
o
Section 4.6
o
Section 4.7
If the purchase is in part, indicate the portion (in denominations of $2,000 or any integral
multiple of $1,000 in excess thereof) to be purchased:
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Your signature:
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(Sign exactly as your name appears on the other side of this Note)
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Date:
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Certifying Signature:
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A-2-14
SCHEDULE A
4
SCHEDULE OF PRINCIPAL AMOUNT
The following decreases/increases in the principal amount of this Security have been made:
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Principal
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Date of
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Decrease in
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Increase in
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Amount
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Notation Made
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Decrease/
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Principal
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Principal
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Following such
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by or on Behalf
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Increase
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Amount
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Amount
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Decrease/Increase
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of Registrar
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4
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Insert in Global Notes only.
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A-2-15
EXHIBIT B-1
2019 NOTE FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RESTRICTED
GLOBAL NOTE TO REGULATION S GLOBAL NOTE *
(Transfers pursuant to Section 2.6(a)(ii) of the Indenture)
HSBC Bank USA, National Association, as Transfer Agent
452 Fifth Avenue
New York, New York 10018
Attn: Corporate Trust
Re: 8.125% Senior Notes Due 2019 (the 2019 Notes)
Reference is hereby made to the Indenture dated as of October 3, 2011 (the
Indenture
) among Sealed Air Corporation, as the Company, the Guarantors named therein and
HSBC Bank USA, National Association, as Trustee. Capitalized terms used but not defined herein
shall have the meanings given them in the Indenture.
This letter relates to $____________ aggregate principal amount of 2019 Notes that are held as
a beneficial interest in the form of the Restricted Global Note (CUSIP No. 81211K AQ3; ISIN No.
US81211KAQ31) with the Depositary in the name of [
name of transferor
] (the
Transferor
).
The Transferor has requested an exchange or transfer of such beneficial interest for an equivalent
beneficial interest in the Regulation S Global Note (CUSIP No. U81193 AG6; ISIN No. USU81193AG69).
In connection with such request, the Transferor does hereby certify that such transfer has
been effected in accordance with the transfer restrictions set forth in the 2019 Notes and:
|
(a)
|
|
with respect to transfers made in reliance on Regulation S (
Regulation
S
) under the United States Securities Act of 1933, as amended (the
U.S.
Securities Act
), does certify that:
|
(i) the offer of the 2019 Notes was not made to a person in the United States;
(ii) either (i) at the time the buy order is originated the transferee is
outside the United States or the Transferor and any person acting on its behalf
reasonably believe that the transferee is outside the United States or; (ii) the
transaction was executed in, on or through the facilities of a designated offshore
securities market described in paragraph (b) of Rule 902 of Regulation S and neither
the Transferor nor any person acting on its behalf knows that the transaction was
pre-arranged with a buyer in the United States;
B-1-1
(iii) no directed selling efforts have been made in the United States by the
Transferor, an affiliate thereof or any person their behalf in contravention of the
requirements of Rule 903 or 904 of Regulation S, as applicable;
(iv) the transaction is not part of a plan or scheme to evade the registration
requirements of the U.S. Securities Act; and
(v) the Transferor is not the Company, a distributor of the 2019 Notes, an
affiliate of the Company or any such distributor (except any officer or director who
is an affiliate solely by virtue of holding such position) or a person acting on
behalf of any of the foregoing.
|
(b)
|
|
with respect to transfers made in reliance on Rule 144 the Transferor certifies
that the 2019 Notes are being transferred in a transaction permitted by Rule 144 under
the U.S. Securities Act.
|
You, the Company, the Guarantors and the Trustee are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation S.
|
|
|
|
|
|
|
|
[Name of Transferor]
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
|
|
|
|
Date:
|
|
|
cc:
|
|
Sealed Air Corporation
200 Riverfront Boulevard
Elmwood Park, New Jersey 07407
|
|
|
|
Attn: Legal Department
|
|
|
|
*
|
|
If the 2019 Note is a Definitive 2019 Note, appropriate changes need to be made to the form
of this transfer certificate.
|
B-1-2
EXHIBIT B-2
2021 NOTE FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RESTRICTED
GLOBAL NOTE TO REGULATION S
GLOBAL NOTE *
(Transfers pursuant to Section 2.6(a)(ii) of the Indenture)
HSBC Bank USA, National Association, as Transfer Agent
452 Fifth Avenue
New York, New York 10018
Attn: Corporate Trust
Re: 8.375% Senior Notes Due 2021 (the 2021 Notes)
Reference is hereby made to the Indenture dated as of October 3, 2011 (the
Indenture
) among Sealed Air Corporation, as the Company, the Guarantors named therein and
HSBC Bank USA, National Association, as Trustee. Capitalized terms used but not defined herein
shall have the meanings given them in the Indenture.
This letter relates to $____________ aggregate principal amount of 2021 Notes that are held as
a beneficial interest in the form of the Restricted Global Note (CUSIP No. 81211K AR1; ISIN No.
US81211KAR14) with the Depositary in the name of [
name of transferor
] (the
Transferor
).
The Transferor has requested an exchange or transfer of such beneficial interest for an equivalent
beneficial interest in the Regulation S Global Note (CUSIP No. U81193 AJ0; ISIN No. USU81193AJ09).
In connection with such request, the Transferor does hereby certify that such transfer has
been effected in accordance with the transfer restrictions set forth in the 2021 Notes and:
|
(a)
|
|
with respect to transfers made in reliance on Regulation S (
Regulation
S
) under the United States Securities Act of 1933, as amended (the
U.S.
Securities Act
), does certify that:
|
(i) the offer of the 2021 Notes was not made to a person in the United States;
(ii) either (i) at the time the buy order is originated the transferee is
outside the United States or the Transferor and any person acting on its behalf
reasonably believe that the transferee is outside the United States or; (ii) the
transaction was executed in, on or through the facilities of a designated offshore
securities market described in paragraph (b) of Rule 902 of Regulation S and neither
the Transferor nor any person acting on its behalf knows that the transaction was
pre-arranged with a buyer in the United States;
B-2-1
(iii) no directed selling efforts have been made in the United States by the
Transferor, an affiliate thereof or any person their behalf in contravention of the
requirements of Rule 903 or 904 of Regulation S, as applicable;
(iv) the transaction is not part of a plan or scheme to evade the registration
requirements of the U.S. Securities Act; and
(v) the Transferor is not the Company, a distributor of the 2021 Notes, an
affiliate of the Company or any such distributor (except any officer or director who
is an affiliate solely by virtue of holding such position) or a person acting on
behalf of any of the foregoing.
|
(b)
|
|
with respect to transfers made in reliance on Rule 144 the Transferor certifies
that the 2021 Notes are being transferred in a transaction permitted by Rule 144 under
the U.S. Securities Act.
|
You, the Company, the Guarantors and the Trustee are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation S.
|
|
|
|
|
|
|
|
[Name of Transferor]
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
Title:
|
|
|
|
|
|
Date:
|
|
|
|
|
cc: Sealed Air Corporation
200 Riverfront Boulevard
Elmwood Park, New Jersey 07407
|
|
|
|
Attn: Legal Department
|
|
|
|
*
|
|
If the 2021 Note is a Definitive 2021 Note, appropriate changes need to be made to the form of
this transfer certificate.
|
B-2-2
EXHIBIT C-1
2019 NOTE FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM REGULATION S
GLOBAL NOTE TO RESTRICTED GLOBAL NOTE
(Transfers pursuant to Section 2.6(a)(iii) of the Indenture)
HSBC Bank USA, National Association, as Transfer Agent
452 Fifth Avenue
New York, New York 10018
Attn: Corporate Trust
Re: 8.125% Senior Notes Due 2019 (the 2019 Notes)
Reference is hereby made to the Indenture dated as of October 3, 2011 (the Indenture) among
Sealed Air Corporation, as the Company, the Guarantors named therein and HSBC Bank USA, National
Association, as Trustee. Capitalized terms used but not defined herein shall have the meanings
given them in the Indenture.
This letter relates to $__________ aggregate principal amount of 2019 Notes that are held in
the form of the Regulation S Global Note with the Depositary (CUSIP No. U81193 AG6; ISIN No.
USU81193AG69) in the name of [
name of transferor
] (the
Transferor
) to effect the transfer
of the 2019 Notes in exchange for an equivalent beneficial interest in the Restricted Global Note
(CUSIP No. 81211K AQ3; ISIN No. US81211KAQ31).
In connection with such request, and in respect of such 2019 Notes the Transferor does hereby
certify that such 2019 Notes are being transferred in accordance with the transfer restrictions set
forth in the 2019 Notes and that:
CHECK ONE BOX BELOW:
|
o
|
|
the Transferor is relying on Rule 144A under the United States Securities Act of
1933, as amended (the
Securities Act
) for exemption from such Acts
registration requirements; it is transferring such 2019 Notes to a person it
reasonably believes is a qualified institutional buyer as defined in Rule 144A
that purchases for its own account, or for the account of a qualified institutional
buyer, and to whom the Transferor has given notice that the transfer is made in
reliance on Rule 144A and the transfer is being made in accordance with any
applicable securities laws of any state of the United States; or
|
|
|
o
|
|
the Transferor is relying on an exemption other than Rule 144A from the registration
requirements of the Securities Act, subject to the Companys and the Trustees right
prior to any such offer, sale or transfer to require the delivery of an
|
C-1-1
|
|
|
Opinion of Counsel, certification and/or other information satisfactory to each of
them.
|
You, the Company, the Guarantors and the Trustee are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
|
|
|
|
|
|
|
|
[Name of Transferor]
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
|
|
Dated:
|
|
|
|
cc: Sealed Air Corporation
200 Riverfront Boulevard
Elmwood Park, New Jersey 07407
|
|
|
|
Attn: Legal Department
|
C-1-2
EXHIBIT C-2
2021 NOTE FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM REGULATION
S GLOBAL NOTE TO RESTRICTED
GLOBAL NOTE
(Transfers pursuant to Section 2.6(a)(iii) of the Indenture)
HSBC Bank USA, National Association, as Transfer Agent
452 Fifth Avenue
New York, New York 10018
Attn: Corporate Trust
Re: 8.375% Senior Notes Due 2021 (the 2021 Notes)
Reference is hereby made to the Indenture dated as of October 3, 2011 (the Indenture) among
Sealed Air Corporation, as the Company, the Guarantors named therein and HSBC Bank USA, National
Association, as Trustee. Capitalized terms used but not defined herein shall have the meanings
given them in the Indenture.
This letter relates to $__________ aggregate principal amount of 2021 Notes that are held in
the form of the Regulation S Global Note with the Depositary (CUSIP No. U81193 AJ0; ISIN No.
USU81193AJ09) in the name of [
name of transferor
] (the
Transferor
) to effect the transfer
of the 2021 Notes in exchange for an equivalent beneficial interest in the Restricted Global Note
(CUSIP No. 81211K AR1; ISIN No. US81211KAR14).
In connection with such request, and in respect of such 2021 Notes the Transferor does hereby
certify that such 2021 Notes are being transferred in accordance with the transfer restrictions set
forth in the 2021 Notes and that:
CHECK ONE BOX BELOW:
|
o
|
|
the Transferor is relying on Rule 144A under the United States Securities Act of
1933, as amended (the
Securities Act
) for exemption from such Acts
registration requirements; it is transferring such 2021 Notes to a person it
reasonably believes is a qualified institutional buyer as defined in Rule 144A
that purchases for its own account, or for the account of a qualified institutional
buyer, and to whom the Transferor has given notice that the transfer is made in
reliance on Rule 144A and the transfer is being made in accordance with any
applicable securities laws of any state of the United States; or
|
|
|
o
|
|
the Transferor is relying on an exemption other than Rule 144A from the registration
requirements of the Securities Act, subject to the Companys and the Trustees right
prior to any such offer, sale or transfer to require the delivery of an
|
C-2-1
|
|
|
Opinion of Counsel, certification and/or other information satisfactory to each of
them.
|
You, the Company, the Guarantors and the Trustee are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
|
|
|
|
|
|
|
|
[Name of Transferor]
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
|
|
Dated:
|
|
|
|
cc: Sealed Air Corporation
200 Riverfront Boulevard
Elmwood Park, New Jersey 07407
|
|
|
|
Attn: Legal Department
|
C-2-2
Exhibit 10.1
Execution Version
SYNDICATED FACILITY AGREEMENT
Dated as of October 3, 2011
Among
SEALED AIR CORPORATION and
THE OTHER BORROWERS NAMED HEREIN,
as
Borrowers
THE INITIAL LENDERS NAMED HEREIN,
as
Initial
Lenders
THE INITIAL ISSUING BANKS NAMED HEREIN,
as
Initial
Issuing Banks
CITIBANK, N.A.,
as
Agent
CITIGROUP GLOBAL MARKETS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
BNP PARIBAS SECURITIES CORP. and
RBS SECURITIES INC.
as
Joint
Lead
Arrangers
and
Joint
Bookrunning
Managers
and
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
RABOBANK NEDERLAND, NEW YORK BRANCH
as
Documentation
Agent
Sealed Air Syndicated Facility Agreement
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
ARTICLE I
|
|
|
|
|
|
DEFINITIONS AND ACCOUNTING TERMS
|
|
|
|
|
SECTION 1.01 Certain Defined Terms
|
|
|
3
|
|
SECTION 1.02 Computation of Time Periods
|
|
|
50
|
|
SECTION 1.03 Accounting Terms
|
|
|
50
|
|
SECTION 1.04 Exchange Rates; Currency Equivalents
|
|
|
50
|
|
SECTION 1.05 Construction
|
|
|
51
|
|
SECTION 1.06 Dutch Terms
|
|
|
51
|
|
SECTION 1.07 Quebec Matters
|
|
|
52
|
|
SECTION 1.08 Code of Banking Practice
|
|
|
52
|
|
|
|
|
|
|
ARTICLE II
|
|
|
|
|
|
|
|
|
|
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
|
|
|
|
|
|
|
|
|
|
SECTION 2.01 The Advances and Letters of Credit
|
|
|
52
|
|
SECTION 2.02 Borrowing Mechanics
|
|
|
56
|
|
SECTION 2.03 Issuance of and Drawings and Reimbursement Under Letters of Credit
|
|
|
59
|
|
SECTION 2.04 Incremental Commitments
|
|
|
62
|
|
SECTION 2.05 Fees
|
|
|
64
|
|
SECTION 2.06 Termination or Reduction of the Commitments
|
|
|
65
|
|
SECTION 2.07 Repayment of Advances
|
|
|
66
|
|
SECTION 2.08 Interest on Advances
|
|
|
74
|
|
SECTION 2.09 Interest Rate Determination
|
|
|
74
|
|
SECTION 2.10 Optional Conversion of Advances
|
|
|
77
|
|
SECTION 2.11 Prepayments of Term Advances, Revolving Credit Advances and Swing Line
Advances
|
|
|
77
|
|
SECTION 2.12 Increased Costs
|
|
|
80
|
|
SECTION 2.13 Illegality
|
|
|
81
|
|
SECTION 2.14 Payments and Computations
|
|
|
82
|
|
SECTION 2.15 Taxes
|
|
|
83
|
|
SECTION 2.16 Sharing of Payments, Etc.
|
|
|
86
|
|
SECTION 2.17 Evidence of Debt
|
|
|
86
|
|
SECTION 2.18 Use of Proceeds
|
|
|
87
|
|
SECTION 2.19 Defaulting Lenders
|
|
|
87
|
|
SECTION 2.20 Replacement of Lenders
|
|
|
90
|
|
SECTION 2.21 Borrower Representative
|
|
|
91
|
|
SECTION 2.22 Public Offer
|
|
|
91
|
|
Sealed Air Credit Agreement
|
|
|
|
|
|
|
Page
|
|
ARTICLE III
|
|
|
|
|
|
|
|
|
|
CONDITIONS TO LENDING
|
|
|
|
|
|
|
|
|
|
SECTION 3.01 Conditions Precedent to the Initial Advances
|
|
|
92
|
|
SECTION 3.02 Conditions to all Advances
|
|
|
95
|
|
SECTION 3.03 Determinations Under Section 3.01
|
|
|
96
|
|
|
|
|
|
|
ARTICLE IV
|
|
|
|
|
|
|
|
|
|
REPRESENTATIONS AND WARRANTIES
|
|
|
|
|
|
|
|
|
|
SECTION 4.01 Representations and Warranties of the Borrowers
|
|
|
96
|
|
|
|
|
|
|
|
|
|
|
|
ARTICLE V
COVENANTS OF THE COMPANY
|
|
|
|
|
SECTION 5.01 Affirmative Covenants
|
|
|
104
|
|
SECTION 5.02 Negative Covenants
|
|
|
113
|
|
SECTION 5.03 Company Net Total Leverage Ratio
|
|
|
127
|
|
ARTICLE VI
|
|
|
|
|
|
EVENTS OF DEFAULT
|
|
|
|
|
SECTION 6.01 Events of Default
|
|
|
128
|
|
SECTION 6.02 Actions in Respect of the Letters of Credit upon Default
|
|
|
132
|
|
ARTICLE VII
|
|
|
|
|
|
GUARANTY
|
|
|
|
|
SECTION 7.01 Guaranty
|
|
|
132
|
|
SECTION 7.02 Guaranty Absolute
|
|
|
133
|
|
SECTION 7.03 Waivers and Acknowledgments
|
|
|
134
|
|
SECTION 7.04 Subrogation
|
|
|
135
|
|
SECTION 7.05 Subordination
|
|
|
135
|
|
SECTION 7.06 Continuing Guaranty; Assignments
|
|
|
136
|
|
ARTICLE VIII
|
|
|
|
|
|
THE AGENT
|
|
|
|
|
SECTION 8.01 Authorization and Action
|
|
|
137
|
|
SECTION 8.02 Agents Reliance, Etc.
|
|
|
137
|
|
SECTION 8.03 CBNA and Affiliates
|
|
|
138
|
|
SECTION 8.04 Lender Credit Decision
|
|
|
138
|
|
Sealed Air Credit Agreement
2
|
|
|
|
|
|
|
Page
|
|
SECTION 8.05 Indemnification
|
|
|
138
|
|
SECTION 8.06 Appointment as Agent and Administrator in Relation to German Collateral
|
|
|
139
|
|
SECTION 8.07 Successor Agent
|
|
|
141
|
|
SECTION 8.08 Other Agents
|
|
|
141
|
|
SECTION 8.09 Delegation of Duties
|
|
|
142
|
|
SECTION 8.10 Appointment for the Province of Québec
|
|
|
142
|
|
ARTICLE IX
|
|
|
|
|
|
MISCELLANEOUS
|
|
|
|
|
SECTION 9.01 Amendments, Etc.
|
|
|
143
|
|
SECTION 9.02 Notices, Etc.
|
|
|
145
|
|
SECTION 9.03 No Waiver; Remedies
|
|
|
146
|
|
SECTION 9.04 Costs and Expenses
|
|
|
146
|
|
SECTION 9.05 Right of Set-off
|
|
|
148
|
|
SECTION 9.06 Binding Effect
|
|
|
148
|
|
SECTION 9.07 Assignments and Participations
|
|
|
149
|
|
SECTION 9.08 Confidentiality
|
|
|
153
|
|
SECTION 9.09 Designated Borrower
|
|
|
153
|
|
SECTION 9.10 Governing Law
|
|
|
154
|
|
SECTION 9.11 Execution in Counterparts
|
|
|
154
|
|
SECTION 9.12 Judgment
|
|
|
155
|
|
SECTION 9.13 Jurisdiction, Etc.
|
|
|
155
|
|
SECTION 9.14 Substitution of Currency
|
|
|
156
|
|
SECTION 9.15 No Liability of the Issuing Banks
|
|
|
156
|
|
SECTION 9.16 Patriot Act
|
|
|
157
|
|
SECTION 9.17 Release of Collateral
|
|
|
157
|
|
SECTION 9.18 Waiver of Jury Trial
|
|
|
159
|
|
SECTION 9.19 Parallel Debt
|
|
|
159
|
|
SECTION 9.20 Intercreditor Agreement
|
|
|
160
|
|
SECTION 9.21 Exceptions to the Application of the Bank Transaction Agreement
|
|
|
160
|
|
SECTION 9.22 Financial Assistance Australian Loan Party
|
|
|
160
|
|
Sealed Air Credit Agreement
3
SCHEDULES
|
|
|
I
|
|
Commitments and Applicable Lending Offices
|
II
|
|
Designated Borrowers
|
III
|
|
Diversey Outstanding Indebtedness
|
IV
|
|
Specified Foreign Restructuring Transactions
|
1.01(i)
|
|
Unrestricted Subsidiaries
|
1.01(ii)
|
|
Subsidiary Guarantors
|
2.01(e)
|
|
Existing Letters of Credit
|
4.01(c)(i)
|
|
Owned Real Property
|
4.01(c)(ii)
|
|
Material Leased Real Property Lessee
|
4.01(l)
|
|
Subsidiaries
|
5.01(h)
|
|
Collateral Jurisdictions and Excluded Collateral Jurisdictions
|
5.01(m)
|
|
Post-Closing Matters
|
5.02(a)
|
|
Liens
|
5.02(b)
|
|
Existing Indebtedness
|
5.02(d)
|
|
Investments
|
5.02(e)
|
|
Dispositions
|
5.02(f)
|
|
Fundamental Changes
|
5.02(k)
|
|
Sales and Leasebacks
|
5.02(l)
|
|
Negative Pledges
|
EXHIBITS
|
|
|
A
|
|
Form of Revolving Credit Note
|
B-1
|
|
Form of Term A Note
|
B-2
|
|
Form of Term B Note
|
C
|
|
Form of Notice of Borrowing
|
D
|
|
Form of Assignment and Acceptance
|
E-1
|
|
Form of US Subsidiary Guaranty
|
E-2
|
|
Form of Foreign Subsidiary Guaranty
|
F
|
|
Form of Loan Certificate
|
G
|
|
Form of Solvency Certificate
|
H-1
|
|
Form of Opinion of Simpson Thacher & Bartlett LLP
|
H-2
|
|
Form of Opinion of Clifford Chance LLP
|
H-3
|
|
Form of Opinion of Special Counsel for certain Restricted Subsidiaries of the Company
|
I
|
|
[Reserved]
|
J
|
|
Form of Borrower Designation Agreement
|
K
|
|
Form of Mortgage
|
L-1
|
|
Form of U.S. Tax Compliance Certificate
|
L-2
|
|
Form of U.S. Tax Compliance Certificate
|
L-3
|
|
Form of U.S. Tax Compliance Certificate
|
L-4
|
|
Form of U.S. Tax Compliance Certificate
|
M
|
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Auction Procedures
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Sealed Air Credit Agreement
4
SYNDICATED FACILITY AGREEMENT
This SYNDICATED FACILITY AGREEMENT, dated as of October 3, 2011 (this
Agreement
),
made by and among SEALED AIR CORPORATION, a Delaware corporation (the
Company
), DIVERSEY
CANADA, INC., an Ontario corporation (the
CDN Borrower
), DIVERSEY CO., LTD., a Japanese
stock company (
kabushiki kaisha
) (the
JPY Borrower
), SEALED AIR B.V., a private limited
liability company (
besloten vennootschap met beperkte aansprakelijkheid
) under Dutch law, having
its statutory seat in Nijmegen, the Netherlands and registered with the trade register of the
Chambers of Commerce in the Netherlands under number 10025224 and DIVERSEY EUROPE B.V., a private
limited liability company (
besloten vennootschap met beperkte aansprakelijkheid
) under Dutch law,
having its statutory seat in Utrecht, the Netherlands and registered with the trade register of the
Chambers of Commerce in the Netherlands under number 30179832 (together, the
Euro
Borrowers
), SEALED AIR CORPORATION (US), a Delaware corporation (the
US Revolver
Borrower
), SEALED AIR LUXEMBOURG S.C.A., a
société en commandite par actions
incorporated and
existing under the laws of Luxembourg, with registered office at 16 avenue Pasteur, L-2310
Luxembourg and registered with the Luxembourg Register of Commerce and Companies under the number B
89671 (the
Lux Revolver Borrower
), CRYOVAC AUSTRALIA PTY LIMITED, ACN 004 207 532, a
company incorporated under the laws of Australia and SEALED AIR AUSTRALIA (HOLDINGS) PTY LTD, ACN
102 261 307, a company incorporated under the laws of Australia (together, the
Australian
Revolver Borrowers
) and certain Subsidiaries of the Company listed on Schedule II (each a
Designated Borrower
and, collectively with the Company, the CDN Borrower, the JPY
Borrower, the Euro Borrowers, the US Revolver Borrower, the Lux Revolver Borrower and the
Australian Revolver Borrowers, the
Borrowers
), the banks, financial institutions and
other investors party hereunder as lenders (the
Initial Lenders
) and the initial issuing
banks (the
Initial Issuing Banks
) listed on the signature pages hereof, and CITIBANK,
N.A. (together with any of its Affiliates acting as Agent hereunder,
CBNA
), as Agent for
the Lenders (as hereinafter defined) and the Issuing Banks (in such capacity, and as agent for the
Secured Parties under the other Loan Documents, the
Agent
), CITIGROUP GLOBAL MARKETS INC.
(
CGMI
), MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED (
MLPFS
), BNP PARIBAS
SECURITIES CORP (
BNPPSC
) and RBS SECURITIES INC. (
RBSSI
) as co-syndication
agents (in such capacity, the
Co-Syndication Agents
), joint lead arrangers (in such
capacity, the
Joint Lead Arrangers
) and joint bookrunning managers (in such capacity, the
Joint Bookrunning Managers
), and COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
RABOBANK NEDERLAND, NEW YORK BRANCH as documentation agent (in such capacity, the
Documentation Agent
).
PRELIMINARY STATEMENTS:
WHEREAS, the Company intends to acquire (the
Acquisition
) all of the Equity
Interests of Diversey Holdings, Inc., a Delaware corporation (
Diversey
), pursuant to an
Agreement and Plan of Merger (the
Merger Agreement
) dated as of May 31, 2011 by and among
the Company, Diversey and Solution Acquisition Corp., a Delaware corporation (
Merger
Sub
);
Sealed Air Credit Agreement
WHEREAS, the Borrowers have requested that concurrently with the consummation of the
Acquisition, (a) the Initial Lenders extend credit to the Company in an aggregate principal amount
of $794,610,042.74, under the Term A Facility (as hereinafter defined), (b) the Initial Lenders
extend credit to the CDN Borrower in an aggregate principal amount of $82,712,000.00, denominated
in CDN (as hereinafter defined), under the CDN Term A Facility (as hereinafter defined), (c) the
Initial Lenders extend credit to the JPY Borrower in an aggregate principal amount of
¥11,454,000,000.00, under the JPY Term A Facility (as hereinafter defined), (d) the Initial Lenders
extend credit to the Euro TLA Borrowers in an aggregate principal amount of 55,778,305.17, under
the Euro Term A Facility (as hereinafter defined) (e) the Initial Lenders extend credit to the
Company in an aggregate principal amount of $790,000,000.00, under the Term B Facility (as
hereinafter defined), (f) the Initial Lenders extend credit to the Euro TLB Borrowers in an
aggregate principal amount of 300,000,000.00, under the Euro Term B Facility (as hereinafter
defined), (g) the Initial Lenders and Initial Issuing Banks make available to the Borrowers from
time to time a US Revolving Credit Facility (as hereinafter defined) up to an aggregate principal
amount of $500,000,000, available in Dollars (as hereinafter defined) and (h) the Initial Lenders
and Initial Issuing Banks make available to the Borrowers from time to time a Multicurrency
Revolving Credit Facility (as hereinafter defined) up to the Equivalent of $200,000,000 available
in the Committed Currencies (as hereinafter defined), for the purposes specified in this Agreement;
WHEREAS, in connection with the Acquisition, the Company intends to issue and sell Dollar
denominated senior unsecured notes on or before the consummation of the Acquisition in an amount up
to $1,500,000,000, in a public offering or in a Rule 144A or other private placement (the
Senior Notes
);
WHEREAS, in connection with the Acquisition, all material existing third party indebtedness
for borrowed money of Diversey and its Subsidiaries, other than the Indebtedness set forth on
Schedule III hereto, will be refinanced, defeased, repaid or satisfied and discharged in accordance
with the requirements of the applicable indentures and the credit facility and all liens other than
liens permitted to remain outstanding under the Loan Documents shall be discharged (the
Diversey Refinancing
);
WHEREAS, in connection with the Acquisition, all indebtedness under the Five Year Credit
Agreement (the
Existing Credit Agreement
), dated as of July 26, 2005 (as amended from
time to time) by and among Sealed Air Corporation, certain of its subsidiaries and CitiCorp USA,
Inc., as Agent, will be refinanced, repaid or satisfied and discharged in accordance with the
requirements thereof (the
Sealed Air Refinancing
and together with the Diversey
Refinancing, the
Refinancing
); and
WHEREAS, the Initial Lenders, the Initial Issuing Banks and the Swing Line Bank are willing to
make available to the Borrowers the Term A Facility, the CDN Term A Facility, the JPY Term A
Facility, the Euro Term A Facility the Term B Facility, the Euro Term B Facility, the US Revolving
Credit Facility, the Multicurrency Revolving Credit Facility, the Swing Line Advances and Letters
of Credit upon the terms and subject to the conditions set forth herein;
Sealed Air Credit Agreement
2
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained
herein, the parties hereto hereby 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):
Acknowledgement Mandate
means a mandate for notarial acknowledgment of debt as
referred to in
Section 5.01(n)
.
Acquisition
has the meaning given to such term in the Preliminary Statements hereto.
Advance
means an extension of credit by a Lender to a Borrower under
Article
II
in the form of a Term A Advance, a CDN Term A Advance, a JPY Term A Advance, a Euro Term A
Advance, a Term B Advance, a Euro Term B Advance, a US Revolving Credit Advance, a Multicurrency
Revolving Credit Advance, a Swing Line Advance, an Incremental Term Advance, an Incremental
Revolving Credit Advance, an Other Term Advance or an Other Revolving Credit 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,
directly or indirectly, of the power 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
has the meaning given to such term in the Preliminary Statements hereto.
Agents Account
means (a) in the case of Advances denominated in Dollars, the
account of the Agent maintained by the Agent at its office at 1615 Brett Road, Building #3, New
Castle, Delaware 19720, Account No. 36852248, Attention: Bank Loan Syndications, (b) in the case
of Advances denominated in any Foreign Currency, the account of the 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.
Agreement
has the meaning specified in the Preamble.
Applicable Lending Office
means, with respect to each Lender, such Lenders Domestic
Lending Office in the case of a Base Rate Advance and such Lenders Eurocurrency Lending Office in
the case of a Eurocurrency Rate Advance.
Sealed Air Credit Agreement
3
Applicable Margin
means, with respect to (a) the Term A Facility, the CDN Term A
Facility, the JPY Term A Facility, the Euro Term A Facility, the US Revolving Credit Facility and
the Multicurrency Revolving Credit Facility from time to time, (i) 2.50% per annum for Eurocurrency
Rate Advances and (ii) 1.50% per annum for Base Rate Advances; (c) the Term B Facility, from time
to time, (i) 4.00% per annum for Eurocurrency Rate Advances and (ii) 3.00% per annum for Base Rate
Advances; and (d) the Euro Term B Facility, from time to time, (i) 4.50% per annum for Eurocurrency
Rate Advances and (ii) 3.50% per annum for Base Rate Advances;
provided
that following the
Initial Financial Statement Delivery Date, the Applicable Margin with respect to the Term A
Facility, the CDN Term A Facility, the JPY Term A Facility, the Euro Term A Facility, the US
Revolving Credit Facility and the Multicurrency Revolving Credit Facility shall be determined by
reference to the table below, based on the Net Total Leverage Ratio set forth in, and determined
based on, the most recent financial statements and Compliance Certificate delivered to the Agent
under
Section 5.01(a)(i)
or
(ii)
, and
Section 5.01(a)(iii)
hereof:
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Applicable
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Applicable Margin
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Applicable
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Margin for
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for Eurocurrency
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Margin for Base
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Eurocurrency
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Rate Term A
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Rate US
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Rate Revolving
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Applicable
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Advances, CDN
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Revolving Credit
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Credit Advances
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Margin for
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Term A Advances,
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Advances and
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and
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Net Total
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Base Rate
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JPY Term A
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Multicurrency
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Multicurrency
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Pricing
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Leverage
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Term A
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Advances and Euro
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Revolving Credit
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Revolving Credit
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Level
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Ratio
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Advances
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Term A Advances
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Advances
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Advances
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1
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Less than or equal
to 2.75:1.00
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1.25
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2.25
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1.25
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%
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2.25
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2
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Greater than
2.75:1.00
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1.50
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%
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2.50
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1.50
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%
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2.50
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Notwithstanding the foregoing, if at any time after the Initial Financial Statement Delivery
Date the Company shall fail to deliver financial statements to the Agent in accordance with
Section
5.01(a)(i)
or
5.01(a)(ii)
, as applicable, then the Applicable Margin shall
thereafter be determined by reference to Pricing Level 2 in the table above until such time as the
Company shall again be in compliance with Sections
5.01(a)(i)
and
5.01(a)(ii)
.
Approved Fund
means any Person (other than a natural person) that is or will be
engaged in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its activities and that is administered or managed
by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
Asset Disposition
means the disposition of any or all of the assets (including,
without limitation, any Equity Interest owned thereby) of any Loan Party, in one transaction or a
series of transactions, whether by sale, lease, transfer or otherwise;
provided
that Asset
Dispositions shall not include any transaction (or series of related transactions), the Net Cash
Proceeds of which do not exceed $10,000,000.
Sealed Air Credit Agreement
4
Assignment and Acceptance
means an assignment and acceptance entered into by a
Lender and an Eligible Assignee, and accepted by the Agent, in substantially the form of Exhibit D
hereto.
Associate
has the meaning given to it in Section 128F(9) of the Australian Tax Act.
AU$
has the meaning specified in the definition of Committed Currencies, below.
Auction
shall have the meaning assigned to such term in
Section 2.11(c)
.
Auction Prepayment
shall have the meaning assigned to such term in Section 2.11(c).
Australian Bill Rate Advance
means an Advance that bears interest at a rate based
upon the Australian Bill Rate pursuant to the applicable Notice of Borrowing.
Australian Bill Rate
means, for any Interest Period, (i) the rate per annum quoted
as the average bid rate on the Reuters monitor system page BBSY (or any page that replaces that
page) at or about 10:30 A.M. (Sydney time) on the first day of such Interest Period for a tenor
equal to (or not more than two Business Days shorter or longer than) such Interest Period; or (ii)
if no average bid rate is published for that tenor in accordance with clause (i) above, the rate
per annum determined by the Agent to be equal to the arithmetic mean (rounded upwards, if
necessary, to four decimal places) of the respective rates (if two or more), as quoted to the Agent
at its request by each applicable Reference Bank for the purchase of bills of exchange accepted by
that Reference Bank which have a tenor equal to (or no more than two Business Days shorter or
longer than) such Interest Period and a principal amount equal to the amount of the relevant
Advance at or about 10:30 A.M. (Sydney time) on such day; or (iii) if the Australian Bill Rate
cannot be determined in accordance with clauses (i) or (ii) above, then the bid rate available to
the Agent at about 10:30 A.M. (Sydney time) on such day as conclusively determined in good faith by
the Agent giving regard to comparable indices then available in the then current market for bank
accepted bills of exchange having a tenor as described above.
Australian Borrower
means any Borrower who is a resident of Australia for the
purposes of the Australian Tax Act, or the Income Tax Assessment Act 1997 (Australia), as the
context requires.
Australian Loan Party
means an Australian Borrower or a Subsidiary Guarantor
incorporated, organized or established under the laws of the Commonwealth of Australia.
Australian Revolver Borrowers
has the meaning specified in the Preamble.
Australian PPSA
means the Personal Property Securities Act 2009 (Cwlth) Australia
(as amended from time to time).
Australian Tax Act
means the Income Tax Assessment Act 1936 (Cwlth).
Sealed Air Credit Agreement
5
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).
Available Basket Amount
means, on any date of determination, an amount equal to (a)
the Cumulative Retained Excess Cash Flow Amount on such date,
minus
(b) the sum of (i) any
amounts used to make investments and advances pursuant to
Section 5.02(d)(xiii)
after the
Closing Date and on or prior to such date, (ii) any amounts used to make Restricted Payments
pursuant to
Sections 5.02(c)(v)
or
(vii)
after the Closing Date and on or prior to
such date and (iii) any amounts used to make Restricted Junior Payments pursuant to
Section
5.02(m)(ii)
after the Closing Date and on or prior to such date.
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 highest of:
(a) the rate of interest announced publicly by CBNA in New York, New York, from time to
time, as CBNAs base rate; and
(b)
1
/
2
of one percent per annum above the Federal Funds Rate; and
(c) the rate equal to the Eurocurrency Rate for an Interest Period of one month for
each day that a Base Rate Advance is outstanding (and in respect of any day that is not a
Business Day, the Eurocurrency Rate as in effect on the immediately preceding Business Day)
plus
1%.
Base Rate Advance
means a Revolving Credit Advance, a Term A Advance, a Term B
Advance, a Swing Line Advance, an Incremental Revolving Credit Advance or an Incremental Term
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 Subsidiary, an agreement
in the form of Exhibit J hereto signed by such Subsidiary and the Company.
Borrowers
has the meaning specified in the Preamble.
Borrowing
means a Revolving Credit Borrowing, a Term A Borrowing, a CDN Term A
Borrowing, a JPY Term A Borrowing, a Euro Term A Borrowing, a Term B Borrowing, a Euro Term B
Borrowing, a Swing Line Borrowing or an Incremental Borrowing, as applicable.
Business Day
means a day of the year on which banks are not required or authorized
by law to close in New York City and, if the applicable Business Day relates to any Eurocurrency
Rate Advances, on which dealings are carried on in the London interbank market and banks are open
for business in London and in the country of issue of the currency of such
Sealed Air Credit Agreement
6
Eurocurrency 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);
provided
that, when
used in connection with an Australian Bill Rate Advance, the term Business Day shall also exclude
any day on which Australian banks are not open for dealings in Australian Dollar deposits in
Melbourne and Sydney, Australia.
Canadian Defined Benefit Plan
means any Canadian Pension Plan that contains a
defined benefit provision as defined in subsection 147.1(1) of the
Income Tax Act
(Canada).
Canadian Pension Event
shall mean (a) the termination in whole or in part of any
Canadian Pension Plan that contains a defined benefit provision, (b) a material change in the
funded status of a Canadian Pension Plan, (c) the merger of a Canadian Pension Plan, of which a
Borrower or a Restricted Subsidiary is the administrator or plan sponsor, with another pension
plan, where either plan contains a defined benefit provision and has at any time been funded by a
trust, (d) a material change in the contribution rates payable by a Borrower to a Canadian Pension
Plan, (e) the receipt by a Borrower of any notice concerning liability arising from the withdrawal
or partial withdrawal of a Borrower or any other party from a Canadian Pension Plan, (f) the
occurrence of an event under the
Income Tax Act
(Canada) that could reasonably be expected to
affect the registered status of any Canadian Pension Plan, (g) the receipt by a Borrower of any
order or notice of intention to issue an order from the applicable pension standards regulator or
Canada Revenue Agency that could reasonably be expected to affect the registered status or cause
the termination (in whole or in part) of any Canadian Pension Plan that contains a defined benefit
provision, (h) the receipt of notice by a Canadian Borrower from the administrator, the funding
agent or any other person of any failure to remit contributions to a Canadian Pension Plan by the
applicable Canadian Borrower, (i) the adoption of any amendment to a Canadian Pension Plan that
would require the provision of security pursuant to applicable law, (j) the issuance of either any
order (including an order to remit delinquent contributions) or charges that may give rise to the
imposition of any material fines or penalties in respect of any Canadian Pension Plan or the
issuance of such material fines or penalties or (k) any other event or condition with respect to a
Canadian Pension Plan that could reasonably be expected to result in (i) a lien, (ii) any
acceleration of any statutory requirements to fund all or a substantial portion of the unfunded
liabilities of such plan, or (iii) any liability of a Borrower or a Restricted Subsidiary in excess
of $75,000,000.
Canadian Pension Plan
means any plan, program or arrangement that is a registered
pension plan as defined in the
Income Tax Act
(Canada) or is subject to the funding requirements
of applicable provincial or federal pension benefits standards legislation in any Canadian
jurisdiction, or any other plan organized and administered to provide pensions (but for greater
certainty not including a registered retirement savings plan, supplemental employee retirement
plan, deferred profit sharing plan or similar plan or arrangement), which is sponsored,
administered, maintained or contributed to by or to which there is or may be an obligation to
contribute by any Borrower or Restricted Subsidiary in respect of any persons employment in Canada
with any Borrower or Restricted Subsidiary, other than government sponsored plans.
Capital Expenditure
means any expenditure or obligation which in accordance with
GAAP is or should be treated as a capital expenditure, including the capital element of any
expenditure or obligation incurred in connection with a finance or Capital Lease.
Sealed Air Credit Agreement
7
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.
Capital Lease Obligations
means, as to any Person, the obligations of such Person to
pay rent or other amounts under a Lease of (or other agreement conveying the right to use) real
and/or personal property, which obligations are required to be classified and accounted for as a
capital lease on a balance sheet of such Person under GAAP and, for purposes of this Agreement,
the amount of such obligations shall be the capitalized amount thereof, determined in accordance
with GAAP;
provided
that obligations that are recharacterized as Capital Lease Obligations
due to a change in GAAP after the Closing Date shall not be treated as Capital Lease Obligations
for any purpose under this Agreement regardless of the time at which such obligation is incurred;
provided
further
that obligations that are Capital Lease Obligations as of the
Closing Date and are recharacterized as not constituting Capital Lease Obligations due to a change
in GAAP after the Closing Date shall be treated as Capital Lease Obligations under this Agreement.
Cash Collateralize
means, in respect of an obligation, provide and pledge (subject
to a first priority perfected security interest) cash collateral in Dollars (or any other currency
reasonably satisfactory to the Agent), at a location and pursuant to documentation in form and
substance reasonably satisfactory to the Agent and the relevant Issuing Bank or Swing Line Bank, as
the case may be (and
Cash Collateralization
shall have a meaning correlative to the
foregoing).
Cash Management Obligations
means, as applied to any Person, any direct or indirect
liability, contingent or otherwise, of such Person in respect of cash management services
(including treasury, depository, overdraft (daylight and temporary), credit or debit card,
electronic funds transfer and other cash management arrangements) provided by the Agent, any Lender
or any Affiliate thereof at the time such Cash Management Obligations are entered into, including
obligations for the payment of fees, interest, charges, expenses, attorneys fees and disbursements
in connection therewith to the extent provided for in the documents evidencing such cash management
services.
Cash Equivalents
means Investments in (a) direct obligations of, or obligations
unconditionally guaranteed by, the United States of America or any agency or instrumentality
thereof (provided that the full faith and credit of the United States of America is pledged in
support thereof), having maturities of less than one year; (b) U.S. Dollar-denominated time
deposits, certificates of deposit and bankers acceptances of any commercial bank organized under
the laws of the United States of America or any state thereof having combined capital and surplus
of not less than $500,000,000, whose short-term commercial paper rating from S&P is at least A-1 or
from Moodys is at least P-1 (each an
Approved Bank
) with maturities of not more than one
year from the date of investment; (c) commercial paper issued by, or guaranteed by, an Approved
Bank or by the parent company of an Approved Bank, or issued by, or
guaranteed by, any company with a short-term debt rating of at least A-1 by S&P and P-1 by
Moodys, in each case maturing within one year from the date of investment; and (d) repurchase
agreements with a term of less than one year for underlying securities of the types described in
clauses (b) and (c) entered into with an Approved Bank; (e) any money market fund that meets
Sealed Air Credit Agreement
8
the
requirements of Rule 2a-7(c)(2), (3) and (4) promulgated under the Investment Company Act of 1940,
as amended; and (f) any other fund or funds making substantially all of their Investments in
Investments of the kinds described in clauses (a) through (d) above.
Cash on Hand
means, on any day, the amount of cash and Cash Equivalents of the
Company and its Restricted Subsidiaries as set forth on the balance sheet of the Company as of such
day (it being understood that such amount shall exclude in any event any cash and Cash Equivalents
identified on such balance sheet as restricted (other than cash or Cash Equivalents which are
subject to a perfected security interest under the Collateral Documents) or otherwise subject to a
security interest in favor of any other Person (other than (i) security interests under the
Collateral Documents, (ii) customary liens imposed by the applicable deposit bank in the ordinary
course of business and (iii) any non-consensual security interests permitted by the Loan
Documents)).
CBNA
has the meaning specified in the preamble to this Agreement.
CDN
has the meaning specified in the definition of Committed Currencies, below.
CDN Borrower
has the meaning specified in the Preamble.
CDN Term A Advance
means an Advance made by any CDN Term A Lender under the CDN Term
A Facility.
CDN Term A Borrowing
means a borrowing consisting of simultaneous CDN Term A
Advances of the same Type and, in the case of Eurocurrency Rate Advances, having the same Interest
Period made by each of the CDN Term A Lenders pursuant to
Section 2.01(a)(ii)
.
CDN Term A Commitment
means, as to each CDN Term A Lender, its obligation to make
CDN Term A Advances to the CDN Borrower pursuant to
Section 2.01(a)(ii)
in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth opposite such CDN
Term A Lenders name on Schedule I under the caption
CDN Term A Commitment
or opposite
such caption in the Assignment and Acceptance pursuant to which such CDN Term A Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time in accordance with
this Agreement.
CDN Term A Facility
means, at any time, (a) on or prior to the Closing Date, the
aggregate amount of the CDN Term A Commitments at such time and (b) thereafter, the aggregate
principal amount of the CDN Term A Advances of all CDN Term A Lenders outstanding at such time.
CDN Term A Lender
means (a) at any time on or prior to the Closing Date, any Lender
that has a CDN Term A Commitment at such time and (b) at any time after the Closing Date, any
Lender that holds CDN Term A Advances at such time.
CDN Term A Note
means a promissory note made by the CDN Borrower in favor of a CDN
Term A Lender evidencing CDN Term A Advances made by such CDN Term A Lender, substantially in the
form of Exhibit B-1.
Sealed Air Credit Agreement
9
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 40% 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.
Closing Date
means October 3, 2011.
Code of Banking Practice
means the Code of Banking Practice published by the
Australian Bankers Association.
Collateral
means all of the
Collateral
and
Mortgaged Property
referred to in the Collateral Documents and all of the other property that is under the terms of
the Collateral Documents, subject to Liens in favor of the Agent for the benefit of the Secured
Parties as security for the Secured Obligations.
Collateral Documents
means, collectively, the Security Agreement, the Intellectual
Property Security Agreements, the Mortgages, each of the mortgages, collateral assignments,
security agreements, share pledge agreements or other similar agreements and each of the other
agreements, instruments or documents that creates or purports to create a Lien in favor of the
Agent for the benefit of the Secured Parties as security for the Secured Obligations.
Commitment
means a Revolving Credit Commitment, a Term Commitment, an Incremental
Term Commitment, an Incremental Revolving Credit Commitment or a Letter of Credit Commitment, as
applicable.
Commitment Letter
means the amended and restated senior secured credit facilities
commitment letter, dated as of June 17, 2011, among the Company, the Lead Arrangers and certain of
their respective Affiliates.
Commitment Fee
has the meaning specified in
Section 2.05
.
Committed Currencies
means (i) lawful currency of Australia (
AU$
)
available to be drawn by the Australian Revolver Borrowers, (ii) Euros available to be drawn by the
Lux Revolver Borrower and (iii) lawful currency of Canada (
CDN
), Dollars and Euros
available to be drawn by the US Revolver Borrower.
Compliance Certificate
has the meaning specified in
Section 5.01(a)(iii)
.
Confidential Information
has the meaning specified in
Section 9.08
.
Consideration
means, in respect of any acquisition by a Loan Party of any Equity
Interest in, or assets of, any Person, the sum of (without duplication): (a) the aggregate
consideration payable by any or all Loan Parties in respect of such acquisition, including (without
limitation) any consideration payable by any Loan Party in respect of such acquisition, any
Indebtedness made available by any Loan Party to or incurred by any Loan Party for the
Sealed Air Credit Agreement
10
account of
such Person in connection with such acquisition, and any Indebtedness incurred or assumed by any
Loan Party in connection with such acquisition; and (b) the aggregate amount of Indebtedness of
such Person and/or its Subsidiaries that is outstanding (whether or not due and payable) as at the
date of such acquisition or, if less, such portion thereof for which a Loan Party is directly
responsible.
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
Restricted Subsidiaries as at such date determined on a Consolidated basis in accordance with GAAP.
Consolidated Debt
means, at any time, (a) all Indebtedness (other than Contingent
Obligations) of the Company and its Restricted Subsidiaries determined on a Consolidated basis plus
(b) principal and accrued interest associated with all W.R. Grace Liability.
Consolidated Interest Expense
for any period means total interest expense (including
amounts properly attributable to interest with respect to Capital Lease Obligations and
amortization of debt discount and debt issuance costs and the W.R. Grace Liability) of the Company
and its Restricted Subsidiaries on a Consolidated basis for such period.
Consolidated Net Debt
means, at any time, Consolidated Debt
less
Cash on
Hand.
Consolidated Net Tangible Assets
means, with respect to the Company, as of any date
of determination, the total assets less the sum of goodwill and other intangible assets, in each
case reflected on the Consolidated balance sheet of such Person and its Restricted Subsidiaries as
of the end of the most recently ended fiscal quarter of such Person for which financial statements
have been delivered to the Agent pursuant to
clause (a)(i)
or
(a)(ii)
, as
applicable, of
Section 5.01
, determined on a Consolidated basis.
Consolidated Total Secured Indebtedness
means, as of any date of determination, the
Consolidated Net Debt which is secured by any Lien on any property or assets of the Company or one
or more of its Restricted Subsidiaries.
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
Sealed Air Credit Agreement
11
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 after giving effect to the
Acquisition and each other director, if such directors 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
.
Covenant Suspension Event
shall have the meaning assigned to such term in Section
5.02.
Corporations Act
means the Corporations Act 2011 (Cwlth) Australia.
Cumulative Retained Excess Cash Flow Amount
means, at any date, an amount, not less
than zero, determined on a cumulative basis, equal to the amount of Excess Cash Flow for the
applicable Excess Cash Flow Period that is not required to be applied in accordance with
Section 2.11(b)(iii)
.
Debt Instruments
means, collectively, the respective notes and debentures
evidencing, and indentures and other agreements governing, any Indebtedness.
Debtor Relief Laws
means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
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.
Defaulting Lender
means at any time, subject to
Section 2.19(c)
, (i) any
Lender that has failed for two or more Business Days to comply with its obligations under this
Agreement to make an Advance (except if such failure is the result of a good faith dispute between
the Lender and the Borrower), make a payment to a Issuing Bank in respect of a Letter of Credit,
make a payment to the Swing Line Bank in respect of a Swing Line Advance or make any other payment
due hereunder (each, a
funding obligation
), (ii) any Lender that has notified
the Agent, the Borrower, the Issuing Banks or the Swing Line Bank in writing, or has stated
publicly, that it does not intend to comply with its funding obligations hereunder or under other
agreements in which it commits to extend credit, (iii) any Lender that has defaulted on its funding
obligations under any other loan agreement or credit agreement (except if such default is the
result of a good faith dispute between such Lender and the borrower thereto), (iv) any Lender
Sealed Air Credit Agreement
12
that
has, for three or more Business Days after written request of the Agent or the Company, failed to
confirm in writing to the Agent and the Company that it will comply with its prospective funding
obligations hereunder or under other agreements in which it commits to extend credit (provided that
such Lender will cease to be a Defaulting Lender pursuant to this clause (iv) upon the Agents and
the Companys receipt of such written confirmation), or (v) any Lender with respect to which a
Lender Insolvency Event has occurred and is continuing with respect to such Lender or its Parent
Company (
provided
, in each case, that neither the reallocation of funding obligations
provided for in
Section 2.19(b)
as a result of a Lenders being a Defaulting Lender nor the
performance by Non-Defaulting Lenders of such reallocated funding obligations will by themselves
cause the relevant Defaulting Lender to become a Non-Defaulting Lender). Any determination by the
Agent that a Lender is a Defaulting Lender under any of clauses (i) through (v) above will be
conclusive and binding absent manifest error, and such Lender will be deemed to be a Defaulting
Lender (subject to Section 2.19(c)) upon notification of such determination by the Agent to the
Company, the Issuing Banks, the Swing Line Bank and the Lenders.
Designated Borrower
means any direct or indirect Wholly-Owned Subsidiary of the
Company designated for borrowing privileges under this Agreement pursuant to
Section 9.09
.
Disposition
or
Dispose
means the sale, transfer, license, sublicense,
lease or other disposition (including any sale and leaseback transaction) of any property by any
Person, including any sale, assignment, transfer or other disposal, with or without recourse, of
any notes or accounts receivable or any rights and claims associated therewith;
provided
that the term Disposition specifically excludes (i) the sale, transfer, license, sublicense, lease
or other disposition of obsolete or worn out property, whether now owned or hereafter acquired, in
the ordinary course of business, (ii) the sale, transfer, license, sublicense, lease or other
disposition of receivables, inventory and other current assets in the ordinary course of business,
and (iii) the sale, transfer, license, sublicense, lease or other disposition of property by any
Restricted Subsidiary to the Company or to another Restricted Subsidiary;
provided
that if
the transferor of such property is a Guarantor, the transferee thereof must either be the Company
or a Guarantor.
Diversey
has the meaning specified in the Preliminary Statements.
Diversey Refinancing
has the meaning specified in the Preliminary Statements.
Diversey Material Adverse Effect
means any event, change, development, effect or
occurrence that has been or would reasonably be expected to be materially adverse to the business,
assets, condition (financial or otherwise) or results of operations of Diversey and the
Dish
Subsidiaries
(as defined in the Merger Agreement) taken as a whole;
provided
, that in
determining whether a Diversey Material Adverse Effect has occurred, there shall be excluded any
effect to the extent resulting from the following, either alone, or in combination: (i) any
event, change, development, effect or occurrence or event generally affecting the businesses
or industries in which Diversey and the Dish Subsidiaries operate (including general pricing
changes), (ii) changes in general economic or business conditions, including changes in the
financial, securities or credit markets, or changes in such conditions in any area in which
Diversey or the Dish Subsidiaries operate, (iii) changes in global or national political conditions
Sealed Air Credit Agreement
13
(including any outbreak or escalation of hostilities, declared or undeclared acts of war or
terrorism), (iv) except with respect to the representations and warranties contained in
Section
3.5
of the Merger Agreement, the negotiation, execution or announcement of the Merger Agreement
(including losses or threatened losses of the relationships of Diversey or the Dish Subsidiaries
with customers, distributors, suppliers, or franchisees) and the transactions contemplated thereby,
(v) any action or omission (A) required or permitted by the Merger Agreement or (B) pursuant to the
written consent of, or any action otherwise taken by, the Company or its Affiliates, (vi) the
failure of Diversey to meet any internal or published projections, forecasts or revenue or earning
predictions for any period (
provided
that the underlying causes of such failure may be
considered in determining whether there is a Diversey Material Adverse Effect), (vii) any change in
the trading prices of Diverseys 10.5% Senior Notes due 2020 and
DIs
(as defined in the
Merger Agreement) 8.25% Senior Notes due 2019 (
provided
that the underlying causes of such
change may be considered in determining whether there is a Diversey Material Adverse Effect),
(viii) (A) changes in accounting requirements or principles or (B) any changes in applicable Laws
(as defined in the Merger Agreement) or interpretations thereof, or (ix) seasonal fluctuations in
the business of Diversey and the Dish Subsidiaries (in each of the foregoing clause (i), (ii),
(iii) and (viii)(B), to the extent such effect does not disproportionately affect Diversey and the
Dish Subsidiaries in relation to others in the same businesses or industries in which Diversey and
the Dish Subsidiaries operate).
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 Loan Party
means any Loan Party organized under the laws of the United
States or any state thereof.
Domestic Subsidiary
means any Subsidiary of the Company other than a Foreign
Subsidiary.
EBITDA
for any period means the Consolidated net income (or loss) of the Company and
its Restricted 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 pension plans, deferred profit sharing or compensation plans, (h)
any non-cash gains or losses resulting from the cumulative effect of changes in accounting
principles, (i) restructuring charges that are not paid in cash, (j) cash restructuring and
integration charges in connection with the Transactions incurred (but not necessarily paid) within
24 months of the Closing Date (
provided
, that in no event shall the amount subtracted in
any period under this clause (j) exceed an amount that is equal to 10.0% of the total Consolidated
Amount of
Sealed Air Credit Agreement
14
EBITDA for such period, calculated, solely for this purpose, without subtracting any
amount under this clause (j)), (k) the aggregate amount of any premium, make-whole or penalty
payments actually paid in cash by the Company and the Restricted Subsidiaries during such period
that are required to be made in connection with any prepayment of Existing Sealed Air Notes in an
amount not to exceed $60,000,000, (l) the aggregate amount of any premium, make-whole or penalty
payments actually paid in cash by the Company and the Restricted Subsidiaries during such period
that are required to be made in connection with any prepayment of Existing Diversey Notes in an
amount not to exceed $225,000,000, (m) commissions, fees and expenses paid in cash in connection
with the repayment of any Indebtedness, any Permitted Acquisition, any Disposition, any Debt
Incurrence, the Transactions or any equity issuance, (n) non cash charges resulting from accounting
adjustments to goodwill or impairment and intangible charges in connection therewith, (o) any
income or loss accounted for by the equity method of accounting (except in the case of income to
the extent of the amount of cash dividends or cash distributions paid to the Company or any of its
Subsidiaries by the entity accounted for by the equity method of accounting), (p) any non-cash
expenses and charges (excluding non-cash charges that are accrued or reserved for cash charges in a
future period), (q) restructuring charges paid in cash in an amount not to exceed $10,000,000 and
(r) any costs, expenses or charges in connection with the EPC Transactions;
provided
that
there shall be included in such determination for such period all such amounts attributable to any
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
Restricted Subsidiaries. Notwithstanding anything herein to the contrary EBITDA for the fiscal
quarters ending as of March 31, 2011 and June 30, 2011 shall be $249,900,000 and $300,900,000
respectively.
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 under
clause (a)
or
(e)
of
Section 6.01
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 any Affiliate of the Company shall qualify as an Eligible Assignee,
except
with respect to purchases of Loans by the Company made in accordance with the terms
of
Section 2.11(c)
of this Agreement.
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,
Sealed Air Credit Agreement
15
compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of
injury to the environment.
Environmental Law
means any foreign, federal, state or local statute, law, rule,
regulation, ordinance, code, policy or rule of common law now or hereafter in effect and in each
case as amended, and any judicial or administrative interpretation thereof, including any judicial
or administrative order, consent, decree or judgment, relating to the environment or Hazardous
Materials.
EPC Transactions
means the transactions related to the reorganization of the
Companys European operations to function under a centralized management and value chain model.
Equity Interests
means, with respect to any Person, any of the shares of capital
stock of (or other ownership or profit interests in) such Person, any of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, any of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and any of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.
Equivalent
means the equivalent in Dollars of such Foreign Currency or of such
Foreign Currency in Dollars, as applicable, as determined by the Agent using the Spot Rate to
exchange Dollars for such Foreign Currency or for such Foreign Currency to Dollars, as applicable,
on such date as is required pursuant to the terms of this Agreement.
ERISA
means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations promulgated and rulings issued thereunder. Section references to
ERISA are to ERISA, as in effect at the date of this Agreement and any subsequent provisions of
ERISA amendatory thereof, supplemental thereto or substituted therefor.
ERISA Affiliate
means any Person that for purposes of Title IV of ERISA is a member
of the controlled group of any Borrower, or under common control with any Borrower, within the
meaning of Section 414 of the Internal Revenue Code.
EURIBO Rate
means the rate appearing on Reuters Page EURIBOR01 (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
Sealed Air Credit Agreement
16
deposits
in Euros are offered by the principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount substantially equal to such Reference Banks
Eurocurrency Rate Advance comprising part of such 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 Monetary 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.
Euro Borrowers
means the Euro TLA Borrowers and/or the Euro TLB Borrowers as the
context requires.
Euro Term A Advance
means an advance made by any Euro Term A Lender under the Euro
Term A Facility.
Euro Term A Borrowing
means a borrowing consisting of simultaneous Euro Term A
Advances of the same Type and, in the case of Eurocurrency Rate Advances, having the same Interest
Period made by each of the Euro Term A Lenders pursuant to
Section 2.01(a)(iv)
.
Euro Term A Commitment
means, as to each Euro Term A Lender, its obligation to make
Euro Term A Advances to the Euro TLA Borrowers pursuant to
Section 2.01(a)
in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth opposite such Euro
Term A Lenders name on Schedule I under the caption
Euro Term A Commitment
.
Euro Term A Facility
means, at any time, (a) on or prior to the Closing Date, the
aggregate amount of the Euro Term A Commitments at such time and (b) thereafter, the aggregate
principal amount of the Euro Term A Advances of all Euro Term A Lenders outstanding at such time.
Euro Term A Lender
means (a) at any time on or prior to the Closing Date, any Lender
that has a Euro Term A Commitment at such time and (b) at any time after the Closing Date, any
Lender that holds Euro Term A Advances at such time.
Euro Term A Note
means a promissory note made by the Euro TLA Borrowers in favor of
a Euro Term A Lender evidencing Euro Term A Advances made by such Euro Term A Lender, substantially
in the form of Exhibit B-1.
Euro Term B Advance
means an advance made by any Euro Term B Lender under the Euro
Term B Facility.
Euro Term B Borrowing
means a borrowing consisting of simultaneous Euro Term B
Advances of the same Type and, in the case of Eurocurrency Rate Advances, having the same Interest
Period made by each of the Euro Term B Lenders pursuant to
Section 2.01(b)
.
Sealed Air Credit Agreement
17
Euro Term B Commitment
means, as to each Euro Term B Lender, its obligation to make
Euro Term B Advances to the Euro TLB Borrowers pursuant to
Section 2.01(b)
in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth opposite such Euro
Term B Lenders name on Schedule I under the caption
Euro Term B Commitment
.
Euro Term B Facility
means, at any time, (a) on or prior to the Closing Date, the
aggregate amount of the Euro Term B Commitments at such time and (b) thereafter, the aggregate
principal amount of the Euro Term B Advances of all Euro Term B Lenders outstanding at such time.
Euro Term B Lender
means (a) at any time on or prior to the Closing Date, any Lender
that has a Euro Term B Commitment at such time and (b) at any time after the Closing Date, any
Lender that holds Euro Term B Advances at such time.
Euro Term B Note
means a promissory note made by the Euro TLB Borrowers in favor of
a Euro Term B Lender evidencing Euro Term B Advances made by such Euro Term B Lender, substantially
in the form of Exhibit B-2.
Euro TLB Borrowers
means Sealed Air B.V., and Diversey Europe B.V.
Euro TLA Borrowers
means Sealed Air B.V. and Diversey Europe B.V.
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 Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a)(i) in the case of any Advance denominated in JPY, Dollars, or another
Committed Currency other than Euros or AU$, the rate per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum) appearing on Reuters Screen LIBOR01 (or any successor page) as
the London interbank offered rate for deposits in JPY, Dollars or another Committed Currency, if
applicable, 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 JPY,
Dollars or the other 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 Banks Eurocurrency Rate
Advance comprising part of such Borrowing to be outstanding during such Interest Period and for a
period equal to such Interest Period or (ii) in the case of any Advance denominated in
Sealed Air Credit Agreement
18
AU$, the
Australian Bill Rate or (iii) in the case of any Advance denominated in Euros, the EURIBO Rate by
(b) a percentage equal to 100%
minus
the Eurocurrency Rate Reserve Percentage for such
Interest Period;
provided
, in the case of the Term B Facility and Euro Term B Facility
only, the Eurocurrency Rate applicable to any Term B Advances or Euro Term B Advances, as
applicable, shall at all times be no less than 1.00% per annum. If the Reuters Page EURIBOR-01 (or
any successor page) is unavailable, the Eurocurrency Rate for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same 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 an Advance denominated in JPY, Dollars or another
Committed Currency that bears interest as provided in
Section 2.08(a)(ii)
in an amount not
less than the Eurocurrency Rate Borrowing Minimum or the Eurocurrency Rate Borrowing Multiple in
excess thereof.
Eurocurrency Rate Borrowing Minimum
means, in respect of Eurocurrency Rate Advances
denominated in Dollars, $1,000,000, and in respect of Eurocurrency Rate Advances
denominated in any Foreign Currency, the Equivalent of $1,000,000 in such Foreign Currency.
Eurocurrency Rate Borrowing Multiple
means, in respect of Eurocurrency Rate Advances denominated in Dollars, $500,000, and in respect of Eurocurrency Rate Advances
denominated in any Foreign Currency, the Equivalent of $500,000 in such Foreign Currency.
Eurocurrency Rate Reserve Percentage
for any Interest Period for all Eurocurrency
Rate Advances comprising part of the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with
respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with
respect to any other category of liabilities that includes deposits by reference to which the
interest rate on Eurocurrency Rate Advances) having a term equal to such Interest Period.
Events of Default
has the meaning specified in
Section 6.01
.
Events of Loss
means, with respect to any property, any of the following: (a) any
loss, destruction or damage of such property; (b) any pending institution of any proceedings for
the condemnation or seizure of such property or for the exercise of any right of eminent domain; or
(c) any actual condemnation, seizure or taking, by exercise of the power of eminent
domain or otherwise, of such property, or confiscation of such property or the requisition of
the use of such property.
Sealed Air Credit Agreement
19
Excess Cash Flow
means, for Excess Cash Flow Period, the sum (without duplication)
of:
(a) the EBITDA for such Excess Cash Flow Period;
(b)
plus
the amount, if any, by which Net Working Capital decreased during such
Excess Cash Flow Period;
(c)
minus
the amount, if any, by which Net Working Capital increased during
such Excess Cash Flow Period;
(d)
minus
the sum of (i) Capital Expenditures paid by Loan Parties (in favor of
persons that are not Loan Parties) in cash during such Excess Cash Flow Period, (ii) the
amount of any non-financed Consideration expended in respect of any acquisition or
investment permitted under
Section 5.02(d)(v)
,
(xi)
or
(xii)
during
such Excess Cash Flow Period;
(e)
minus
the aggregate amount of all principal payments of Indebtedness of the
Loan Parties, except to the extent financed by the issuance or incurrence of Indebtedness
by, or the issuance of capital stock by, or the making of capital contributions to, the
Company or any of the Restricted Subsidiaries or using the proceeds of any Disposition
outside the ordinary course of business, during such Excess Cash Flow Period;
(f)
minus
the amount of Restricted Payments paid by the Company or paid by any
of its Restricted Subsidiaries to any Person other than the Company or any of its Restricted
Subsidiaries, in cash, during such Excess Cash Flow Period, except to the extent that such
Restricted Payments were financed (i) by the issuance or incurrence of Indebtedness by, or
the issuance of capital stock by, or the making of capital contributions to, the Company or
any of its Restricted Subsidiaries or (ii) using the proceeds of any Disposition outside the
ordinary course of business;
(g)
minus
income and other taxes paid in cash during such Excess Cash Flow
Period;
(h)
minus
cash payments in respect of the W.R. Grace Liabilities made during
such Excess Cash Flow Period; and
(i)
minus
Consolidated Interest Expense for such Excess Cash Flow Period.
Excess Cash Flow Period
means each Fiscal Year commencing with the Fiscal Year
ending December 31, 2012.
Excluded Foreign Subsidiary
means (i) any Foreign Subsidiary and (ii) any Domestic
Subsidiary that is directly or indirectly owned by one or more Foreign Subsidiaries.
Existing Credit Agreement
has the meaning specified in the Preliminary Statements.
Sealed Air Credit Agreement
20
Existing Diversey Notes
means, collectively, the 10.5% Senior Notes issued by
Diversey Holdings, Inc on November 24, 2009 and the 8.25% Senior Notes issued by Diversey, Inc. on
November 24, 2009.
Existing Letters of Credit
means each of the irrevocable, standby letters of credit
listed on Schedule 2.01(e) hereto.
Existing Sealed Air Notes
means, collectively, the 5.625% Senior Notes due July
2013, the 12% Senior Notes due February 2014, the 7.875% Senior Notes due June 2017 and the 6.875%
Senior Notes due July 2033, in each case, issued by the Company.
Facility
means the Term A Facility, the CDN Term A Facility, JPY Term A Facility,
the Euro Term A Facility, the Term B Facility, the Euro Term B Facility, the US Revolving Credit
Facility, the Multicurrency Revolving Credit Facility, the Swing Line Facility or an Incremental
Facility, if any, as applicable.
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.
Fee Letter
means the amended and restated senior secured facilities fee letter,
dated June 17, 2011, addressed to the Company from the Agent and the Lead Arrangers, and accepted
by the Company on the date thereof.
Financial Officer
means the chief financial officer, the controller or the treasurer
of the Company.
Fiscal Year
means a fiscal year of the Company ending on December 31.
Foreign Currency
means any Committed Currency, JPY and any other lawful currency (in
each case, 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, any State thereof or the District of Columbia, (ii) each Subsidiary
of the Company substantially all of the operations of which remain outside the United States and
(iii) each other Subsidiary of the Company that has no material assets other than capital stock of
one or more Foreign Subsidiaries that are controlled foreign corporations within the meaning of
Section 957 of the Code.
Foreign Subsidiary Guaranty
has the meaning specified in
Section
3.01(a)(iv)
.
French Notes
has the meaning specified in the definition of French Structured
Finance Transaction.
Sealed Air Credit Agreement
21
French Structured Finance Transaction
means a structured finance transaction among
Sealed Air (Luxembourg), Sealed Air (France) and one or more financial institutions pursuant to
which Sealed Air (France) issues debt securities (the
French Notes
) to such financial
institutions that are guaranteed and secured by the Company or Sealed Air (Luxembourg) or another
Restricted Subsidiary of the Company and that may include certain equity features, with the
principal amount of the French Notes being payable at their maturity in cash and/or Equity
Interests issued by Sealed Air (France) and pursuant to the transaction, the Company or Sealed Air
(Luxembourg) or another Restricted Subsidiary may acquire the right to receive the principal
repayment of the French Notes.
GAAP
has the meaning specified in
Section 1.03
.
German Collateral Document
means any Collateral Document
governed by German law.
German Collateral
means any Collateral governed by German
law.
Governmental Authority
means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).
Group Members
shall mean the Company and each of its direct and indirect Restricted
Subsidiaries.
Guaranteed Obligations
has the meaning specified in
Section 7.01
.
Guarantors
means the Company and the Subsidiary Guarantors.
Guaranty
means the guaranty contained in
Article VII
hereof, the Foreign
Subsidiary Guaranty or the US Subsidiary Guaranty.
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.
Immaterial Subsidiaries
means, all Subsidiaries identified by the Company as such,
provided
that (i) the aggregate value of assets of all such Subsidiaries does not exceed
10.0% of Consolidated Assets of the Company and its Restricted Subsidiaries as of the last day
of the Fiscal Year of the Company most recently ended based on the consolidated balance sheet of
the Company and its Restricted Subsidiaries, (ii) the aggregate EBITDA of all such
Sealed Air Credit Agreement
22
Subsidiaries
does not exceed 10.0% of consolidated EBITDA of the Company and its Restricted Subsidiaries for the
Test Period ending on the last day of the Fiscal Year of the Company most recently ended, based on
the consolidated financial statements of the Company and its Restricted Subsidiaries, (iii) the
aggregate value of assets of any such Subsidiary does not exceed 1.0% of Consolidated Assets of the
Company and its Restricted Subsidiaries as of the last day of the Fiscal Year of the Company most
recently ended based on the consolidated balance sheet of the Company and its Restricted
Subsidiaries and (iv) the EBITDA of any such Subsidiary does not exceed 1.0% of consolidated EBITDA
of the Company and its Restricted Subsidiaries for the Test Period ending on the last day of the
Fiscal Year of the Company most recently ended, based on the consolidated financial statements of
the Company and its Restricted Subsidiaries.
Increased Amount Date
shall have the meaning assigned to such term in
Section
2.04(a)
.
Incremental Amount
shall mean, at any time, the excess, if any, of (a) the
Incremental General Amount
over
(b) the aggregate amount of all Incremental Term
Commitments and Incremental Revolving Credit Commitments established prior to such time pursuant to
Section 2.04
.
Incremental Assumption Agreement
shall mean an Incremental Assumption Agreement in
form and substance reasonably satisfactory to the Agent, among the Borrower requesting such
Incremental Term Commitments or Incremental Revolving Credit Commitments, as the case may be, the
Agent and one or more Incremental Term Lenders and/or Incremental Revolving Credit Lenders.
Incremental Borrowing
means a borrowing consisting of either simultaneous
Incremental Term Advances or Incremental Revolving Credit Advances of the same Type and, in the
case of Eurocurrency Rate Advances, having the same Interest Period.
Incremental General Amount
shall mean $500,000,000;
provided
that the
Incremental General Amount shall be increased to $1,000,000,000 if the Net Total Secured Leverage
Ratio determined as of the end of the fiscal quarter immediately preceding the date of such
increase on a Pro Forma Basis, after giving effect to such Incremental Term Advances or Incremental
Revolving Facility Commitments and the application of the proceeds therefrom on such date (and with
respect to the provision of any Incremental Revolving Facility Commitments, assuming that the
entire aggregate amount of all Incremental Revolving Commitments being provided as part of such
increase has been borrowed), shall not be greater than 2.00:1:00.
Incremental Lender
shall mean an Incremental Term Lender or an Incremental Revolving
Facility Lender, as applicable.
Incremental Revolving Credit Advances
shall mean Revolving Credit Advances made by
one or more Incremental Revolving Facility Lenders to the Borrowers pursuant to
Section 2.01(g)
. Incremental Revolving Credit Advances may be made in the form of
additional Revolving Credit Advances or, to the extent permitted by
Section 2.04
and
provided for in the relevant Incremental Assumption Agreement, as Other Revolving Credit Advances.
Sealed Air Credit Agreement
23
Incremental Revolving Credit Commitment
shall mean the commitment of any Incremental
Revolving Credit Lender, established pursuant to
Section 2.04
, to make Incremental
Revolving Credit Advances to the Borrowers.
Incremental Revolving Facility Lender
shall mean any bank, financial institution or
other investor with an Incremental Revolving Credit Commitment or an outstanding Incremental
Revolving Credit Advance.
Incremental Term Advances
shall mean Term Advances made by one or more Incremental
Term Lenders to the Borrowers pursuant to
Section 2.01(g)
. Incremental Term Advances may
be made in the form of, to the extent permitted by
Section 2.04
and provided for in the
relevant Incremental Assumption Agreement, Other Term Advances.
Incremental Term Commitment
shall mean the commitment of any Incremental Term
Lender, established pursuant to
Section 2.04
, to make Incremental Term Advances to the
Borrowers.
Incremental Term Lender
shall mean any bank, financial institution or other investor
with an Incremental Term Commitment or an outstanding Incremental Term Advance.
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 (A) trade accounts payable and accrued
expenses arising in the ordinary course of business, (B) any earn-out obligation until such
obligation shall have become a liability on the balance sheet of such Person in accordance with
GAAP, and (C) obligations of a 60 day or less duration, and which are not overdue, resulting from
take-or-pay contracts entered into 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
Capital Lease Obligations, (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 in respect of Indebtedness of the types described in the preceding clauses (i) through
(vi)
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 Moodys.
Information Memorandum
means the information memorandum dated July 2011 used by the
Agent in connection with the syndication of the Commitments.
Initial Financial Statement Delivery Date
shall mean the date on which the financial
statements are delivered to the Agent under
Section 5.01(a)(i)
for the first full fiscal
quarter commencing after the Closing Date.
Sealed Air Credit Agreement
24
Initial Issuing Banks
means, collectively, Citibank, N.A., Bank of America, N.A.,
BNP Paribas and The Royal Bank of Scotland plc.
Initial Lenders
has the meaning specified in the Preamble.
Insolvent
means, with respect to any Multiemployer Plan, the condition that such
Plan is insolvent within the meaning of Section 4245 of ERISA.
Insurance and Condemnation Event
means the receipt by the Company or any if its
Restricted Subsidiaries of any cash proceeds payable by reason of condemnation, theft, loss,
physical destruction or damage, taking or similar event (or series of related events) with respect
to any of their respective property or assets.
Insufficiency
means, with respect to any Plan, the amount, if any, of its unfunded
benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
Intellectual Property Security Agreement
means the Trademark Security Agreements (as
defined in the Security Agreement), the Copyright Security Agreements (as defined in the Security
Agreement) and the Patent Security Agreements (as defined in the Security Agreement).
Intercreditor Agreement
means the Intercreditor Agreement, dated as of the date
hereof, made by and among the Agent and the Lenders party thereto and deemed party thereto, as it
may be amended, amended and restated, supplemented or otherwise modified from time to time.
Interest Coverage Ratio
for any period means the ratio of EBITDA to Consolidated
Interest Expense for such period.
Interest Period
means, for each Eurocurrency Rate Advance comprising part of the
same Borrowing, the period commencing on the date of such Eurocurrency Rate Advance or the date of
the Conversion of any Base Rate Advance into such Eurocurrency Rate Advance and ending on the last
day of the period selected by the applicable 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 week, two weeks, 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 fourth
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 date set forth
in
clause (a)(i)
,
clause (b)(i)
, clause (c)(i) or
clause (d)(i)
of
the definition of Termination Date that is applicable to such Eurocurrency Rate Advance;
(b) Interest Periods commencing on the same date for Eurocurrency Rate Advances
comprising part of the same Borrowing shall be of the same duration;
Sealed Air Credit Agreement
25
(c) in the case of any such 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 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
Borrowing shall be one, two, three or six months, as specified by such Borrower requesting
such Borrowing in the applicable Notice of Borrowing as the desired alternative to an
Interest Period of nine or twelve months;
(d) whenever the last day of any Interest Period would otherwise occur on a day other
than a Business Day, the last day of such Interest Period shall be extended to occur on the
next succeeding Business Day,
provided
,
however
, that, if such extension
would cause the last day of such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on the next preceding Business Day;
and
(e) whenever the first day of any Interest Period occurs on a day of an initial
calendar month for which there is no numerically corresponding day in the calendar month
that succeeds such initial calendar month by the number of months equal to the number of
months in such Interest Period, such Interest Period shall end on the last Business Day of
such succeeding calendar month.
Interim Financial Statements
has the meaning specified in
Section 3.01(g)
.
Internal Revenue Code
means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and rulings issued thereunder. Except as otherwise
specified, section references to the Internal Revenue Code are to the Internal Revenue Code as in
effect at the date of this Agreement.
Investment
means, as to any Person, any loan or advance to such Person, any purchase
or other acquisition of any Equity Interest or Indebtedness or the assets comprising a division or
business unit or a substantial part of all of the business of such Person, any capital contribution
to such Person or any other direct or indirect investment in such Person, including, without
limitation, any acquisition by way of a merger or consolidation (or similar transaction) and any
arrangement pursuant to which the investor incurs Indebtedness of the types referred to in
clause (vi)
or
(vii)
of the definition of Indebtedness in respect of such Person.
Issuing Bank
means a US Issuing Bank or a Multicurrency Issuing Bank, as applicable.
Japanese Loan Parties
means each Loan Parties incorporated in Japan.
Japanese Notes
has the meaning specified in the definition of Japanese Structured
Finance Transaction.
Sealed Air Credit Agreement
26
Japanese Structured Finance Transaction
means a structured finance transaction among
the Company, Sealed Air (Japan) and one or more financial institutions pursuant to which Sealed Air
(Japan) issues debt securities (the
Japanese Notes
) to such financial institutions that
may be guaranteed and secured by the Company or a Restricted Subsidiary of the Company and that may
include certain equity features, with the principal amount of the Japanese Notes being payable at
their maturity in cash and/or Equity Interests issued by Sealed Air (Japan) and pursuant to the
transaction, the Company or a Restricted Subsidiary of the Company may acquire the right to receive
the principal repayment of the Japanese Notes.
JPY
means the lawful currency of Japan.
JPY Borrower
has the meaning specified in the Preamble.
JPY Term A Advance
means an advance made by any JPY Term A Lender under the JPY Term
A Facility.
JPY Term A Borrowing
means a borrowing consisting of simultaneous JPY Term A
Advances of the same Type and, in the case of Eurocurrency Rate Advances, having the same Interest
Period made by each of the JPY Term A Lenders pursuant to
Section 2.01(a)(iii)
.
JPY Term A Commitment
means, as to each JPY Term A Lender, its obligation to make
JPY Term A Advances to the JPY Borrower pursuant to
Section 2.01(a)(iii)
in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth opposite such JPY
Term A Lenders name on Schedule I under the caption
JPY Term A Commitment
or opposite
such caption in the Assignment and Acceptance pursuant to which such JPY Term A Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time in accordance with
this Agreement.
JPY Term A Facility
means, at any time, (a) on or prior to the Closing Date, the
aggregate amount of the JPY Term A Commitments at such time and (b) thereafter, the aggregate
principal amount of the JPY Term A Advances of all JPY Term A Lenders outstanding at such time.
JPY Term A Lender
means (a) at any time on or prior to the Closing Date, any Lender
that has a JPY Term A Commitment at such time and (b) at any time after the Closing Date, any
Lender that holds JPY Term A Advances at such time.
JPY Term A Note
means a promissory note made by the JPY Borrower in favor of a JPY
Term A Lender evidencing JPY Term A Advances made by such JPY Term A Lender, substantially in the
form of Exhibit B-1.
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 reasonably satisfactory to the Agent.
L/C Exposure
means, at any time, the sum of (a) the aggregate Available Amount of
all outstanding Letters of Credit at such time (for the avoidance of doubt, less any
Sealed Air Credit Agreement
27
Unpaid
Drawings) plus (b) the aggregate amount of all disbursements under Letters of Credit that have not
yet been reimbursed by or on behalf of the Borrowers at such time (collectively, the
Unpaid
Drawings
). The L/C Exposure of any Revolving Credit Lender at any time shall be its Ratable
Share of the total L/C Exposure at such time, as may be adjusted in accordance with
Section
2.19
.
L/C Related Documents
has the meaning specified in
Section 2.07(g)(i)
.
Law
means, as to any Person, any law, treaty, rule or regulation or determination of
an arbitrator or a court or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or assets or to which such Person or any of its property or
assets is subject.
Lead Arrangers
has the meaning specified in the Commitment Letter.
Leases
means leases and subleases (excluding Capital Lease Obligations) and licenses
to use property.
Lenders
means the Initial Lenders, the Revolving Credit Lenders, the Term Lenders,
the Issuing Banks, the Swing Line Bank and each Person that shall become a party hereto pursuant to
Section 2.04
or
Section 9.07
.
Lender Insolvency Event
means that (i) a Lender or its Parent Company is insolvent,
or is generally unable to pay its debts as they become due, or admits in writing its inability to
pay its debts as they become due, or makes a general assignment for the benefit of its creditors,
or (ii) such Lender or its Parent Company is the subject of a bankruptcy, insolvency,
reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor
or sequestrator or the like has been appointed for such Lender or its Parent Company, or such
Lender or its Parent Company has taken any action in furtherance of or indicating its consent to or
acquiescence in any such proceeding or appointment; provided that a Lender shall not be a
Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that
Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such
ownership interest does not result in or provide such Lender with immunity from the jurisdiction of
courts within the United States or from the enforcement of judgments or writs of attachment on its
assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or
disaffirm any contracts or agreements made with such Lender.
Letter of Credit
means a US Letter of Credit or a Multicurrency Letter of Credit, as
applicable.
Letter of Credit Agreement
has the meaning specified in
Section 2.03(a)
.
Letter of Credit Commitment
means the US Letter of Credit Commitment or the
Multicurrency Letter of Credit Commitment, as applicable.
Letter of Credit Sublimit
means the US Letter of Credit Sublimit or the
Multicurrency Letter of Credit Sublimit, as applicable.
Sealed Air Credit Agreement
28
Lien
means any mortgage, pledge, hypothecation, encumbrance, lien (statutory or
other), hypothec 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);
provided
that in no event shall any operating lease be deemed to be a Lien.
Liquidity Structures
means the Companys and its Subsidiaries current and future
multi-currency notional pool, Euro cash pool and various cash concentration arrangements used to
provide working capital intercompany funding;
provided
that, the sum of (a) the aggregate
outstanding amount of obligations to Domestic Loan Parties from Subsidiaries which are not Domestic
Loan Parties under all Liquidity Structures (net of the aggregate outstanding obligations under all
Liquidity Structures of Domestic Loan Parties to Subsidiaries which are not Domestic Loan Parties)
and (b) the aggregate amount of other Investments by Domestic Loan Parties to Subsidiaries which
are not Domestic Loan Parties (net of the aggregate other Investments to Domestic Loan Parties by
Subsidiaries which are not Domestic Loan Parties), shall not exceed $75,000,000.
Loan Documents
means this Agreement, the Notes, the Collateral Documents, any Letter
of Credit, any incremental amendment agreement, the Acknowledgment Mandate and the Subsidiary
Guarantees.
Loan Parties
means each Borrower and each Subsidiary Guarantor.
Lux Revolver Borrower
has the meaning specified in the Preamble.
Margin Stock
has the meaning provided in Regulation U of the Board of Governors of
the Federal Reserve System.
Material Adverse Effect
means a material adverse effect on (a) the business, assets
or financial condition or results of operations of the Company and its Restricted Subsidiaries
taken as a whole, (b) the rights and remedies of the Agent or any Lender under this Agreement or
any other Loan Document or (c) the ability of any Borrower or the Loan Parties, taken as a whole,
to perform their obligations under this Agreement or any other Loan Document.
Material Owned Real Property
means real property owned, or leased subject to an
industrial development authority arrangement, by any Loan Party having a fair market value
reasonably estimated by the Company to be in excess of $3,000,000.
Material Subsidiary
means any Subsidiary that is not an Immaterial Subsidiary.
Merger Agreement
has the meaning given to such term in the Preliminary Statements
hereto.
Merger Agreement Representations
means the representations made by Diversey in the
Merger Agreement that are material to the interests of the Lenders, but only to the extent that the
Company has the right to terminate its obligations under the Merger Agreement as a result of a
breach of such representations in the Merger Agreement.
Sealed Air Credit Agreement
29
Merger Sub
has the meaning given to such term in the Preliminary Statements hereto.
Moodys
means Moodys Investors Service, Inc.
Mortgage
means the deeds of trust, trust deeds, deeds to secure debt, mortgages,
leasehold mortgages and leasehold deeds of trust in substantially the form of Exhibit K (with such
changes as may be reasonably satisfactory to the Agent and its counsel to account for local law
matters) covering the Mortgaged Property, in each case as amended, restated, supplemented or
otherwise modified from time to time.
Mortgaged Property
means the properties listed on Schedule 1.01(iii), and any
Material Owned Real Property required to be mortgaged pursuant to Section 5.01(h)(E).
Multicurrency Issuing Bank
means an Initial Issuing Bank or any Eligible Assignee to
which a portion of the Multicurrency 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 Multicurrency Letter of Credit
Commitment.
Multicurrency Letter of Credit
has the meaning specified in
Section 2.01(f)
.
Multicurrency Letter of Credit Commitment
means, with respect to each Multicurrency
Issuing Bank, the obligation of such Multicurrency Issuing Bank to issue Letters of Credit for the
account of any Borrower that is a Foreign Subsidiary in (a) the amount set forth opposite such
Multicurrency Issuing Banks name on the signature pages hereto under the caption Multicurrency
Letter of Credit Commitment, or (b) if such Multicurrency Issuing Bank has entered into one or
more Assignment and Acceptances, the amount set forth for such Multicurrency Issuing Bank in the
Register maintained by the Agent pursuant to
Section 9.07(d)
as such Multicurrency Issuing
Banks
Multicurrency Letter of Credit Commitment
, in each case as such amount may be
reduced prior to such time pursuant to
Section 2.06
.
Multicurrency Letter of Credit Sublimit
means, at any time, an amount equal to
$50,000,000, as such amount may be reduced at or prior to such time pursuant
Section 2.06
.
The Multicurrency Letter of Credit Sublimit is part of, and not in addition to, the Multicurrency
Revolving Credit Facility.
Multicurrency Revolving Credit Advance
means an Advance by a Multicurrency Revolving
Lender to any Borrower as part of a Multicurrency Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurocurrency Rate Advance.
Multicurrency Revolving Credit Borrowing
means a borrowing consisting of
simultaneous Multicurrency Revolving Credit Advances of the same Type made by each of the
Multicurrency Revolving Lenders pursuant to
Section 2.01(c)(ii)
.
Sealed Air Credit Agreement
30
Multicurrency Revolving Credit Commitment
means as to any Multicurrency Revolving
Lender, the commitment of such Multicurrency Revolving Lender to make Multicurrency Revolving
Credit Advances and/or to acquire participations in Letters of Credit hereunder, denominated in a
Committed Currency, as such commitment may be (a) reduced from time to time in accordance with the
terms of this Agreement and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to any Assignment and Acceptance. The initial amount of the
Multicurrency Revolving Credit Commitment of each Multicurrency Revolving Lender party hereto on
the date of this Agreement is set forth on Schedule I, and the initial amount of the Multicurrency
Revolving Credit Commitment of each Multicurrency Revolving Lender becoming party hereto after the
date of this Agreement shall be as set forth in the Assignment and Acceptance pursuant to which
such Lender becomes party hereto.
Multicurrency Revolving Credit Facility
means, at any time, the aggregate amount of
the Multicurrency Revolving Lenders Multicurrency Revolving Credit Commitments at such time.
Multicurrency Revolving Exposure
means, with respect to any Multicurrency Revolving
Lender at any time, the sum of the aggregate outstanding principal amount of such Multicurrency
Revolving Lenders Multicurrency Revolving Credit Advances and its L/C Exposure under the
Multicurrency Revolving Credit Facility at such time;
provided
that for such purpose, the
outstanding principal amount of any Multicurrency Revolving Credit Advance shall be deemed to be
equal to the Equivalent in Dollars of such Multicurrency Revolving Credit Advance as at such time.
Multicurrency Revolving Lender
means a Revolving Credit Lender with a Multicurrency
Revolving Credit Commitment or a Multicurrency Revolving Exposure.
Multiemployer Plan
means a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which any Borrower or any ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or accrued an obligation to
make contributions.
Multiple Employer Plan
means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of any Borrower or any ERISA Affiliate
and at least one Person other than the Borrowers and the ERISA Affiliates or (b) was so maintained
and in respect of which any Borrower or any ERISA Affiliate could have liability under Section 4064
or 4069 of ERISA in the event such plan has been or were to be terminated.
Net Cash Proceeds
means, as applicable:
(a) with respect to any Asset Disposition, or any Insurance and Condemnation Event, the
gross cash proceeds received by the Company or any of its Restricted Subsidiaries therefrom
less
the sum of the following, without duplication: (i) selling
expenses incurred in connection with such Asset Disposition (including reasonable
brokers fees and commissions, legal, accounting and other professional and transactional
Sealed Air Credit Agreement
31
fees, transfer and similar taxes and the Companys reasonable good faith estimate of
income taxes paid or payable in connection with such sale), (ii) the principal amount,
premium or penalty, if any, interest and other amounts on any debt secured by a Lien having
priority to the Lien of the Agent on the assets (or a portion thereof) sold in such Asset
Disposition, or subject to such Insurance and Condemnation Event, which debt is repaid with
such proceeds, (iii) reasonable reserves with respect to post-closing adjustments,
indemnities and other contingent liabilities established in connection with such Asset
Disposition (provided that, to the extent and at the time any such amounts are released from
such reserve, such amounts shall constitute Net Cash Proceeds), (iv) the Companys
reasonable good faith estimate of cash payments required to be made within 180 days of such
Asset Disposition or Insurance and Condemnation Event, as applicable, with respect to
retained liabilities directly related to the assets (or a portion thereof) sold or lost in
such Asset Disposition or Insurance and Condemnation Event (provided that, to the extent
that cash proceeds are not used to make payments in respect of such retained liabilities
within 180 days of such Asset Disposition, such cash proceeds shall constitute Net Cash
Proceeds), and (v) the pro rata portion of the gross proceeds attributable to minority
interests and not available for distribution to or for the account of the Company or a
Wholly-Owned Restricted Subsidiary as a result thereof; and
(b) with respect to any issuance of debt for borrowed money, the gross cash
proceeds received by the Company or any of its Subsidiaries therefrom
less
all
legal, underwriting, selling, issuance and other fees and expenses incurred in connection
therewith.
Net Total Leverage Ratio
means, as of any date of determination, the ratio of
Consolidated Net Debt as of such date to Consolidated EBITDA for the Test Period most recently
ended.
Net Total Secured Leverage Ratio
means, as of any date of determination, the ratio
of Consolidated Total Secured Indebtedness as of such date to Consolidated EBITDA for the Test
Period most recently ended.
Net Working Capital
means, at any date, (a) the consolidated current assets of the
Loan Parties as of such date determined in accordance with GAAP (excluding cash and Permitted
Investments and non-cash charges relating to deferred tax assets)
minus
(b) the
consolidated current liabilities of the Loan Parties as of such date determined in accordance with
GAAP.
Non-Consenting Lender
has the meaning specified in
Section 2.20(c)
.
Non-Defaulting Lender
means, at any time, a Lender that is not a Defaulting Lender.
Note
means a Term A Note, a CDN Term A Note, a JPY Term A Note, a Euro Term A Note,
a Term B Note, a Euro Term B Note, a Revolving Credit Note or any promissory note made in favor of
an Incremental Lender evidencing Incremental Term Advances or the
Sealed Air Credit Agreement
32
aggregate indebtedness resulting from the Incremental Revolving Credit Advances made by such
Incremental Lender, as applicable.
Notice of Borrowing
has the meaning specified in
Section 2.02(a)
.
Notice of Issuance
has the meaning specified in
Section 2.03(a)
.
Notice of Swing Line Borrowing
has the meaning specified in
Section 2.02(b)
.
Obligations
means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any
Advance or Letter of Credit, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising and including
interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate
thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
Offshore Associate
means an Associate which (a) is a non-resident of Australia and
does not become a Lender or receive a payment in carrying on a business in Australia at or through
a permanent establishment of the Associate in Australia or (b) which is a resident of Australia and
which becomes a Lender or receives a payment in carrying on a business in a country outside
Australia at or through a permanent establishment of the Associate in that country, which in either
case does not become a Lender and receive payment in the capacity of a clearing house, custodian,
funds manager or responsible entity of a registered scheme.
OID
has the meaning specified in
Section 2.04
.
Optional Release Conditions
has the meaning specified in
Section 9.17(a)
.
Optional Release Date
has the meaning specified in
Section 9.17(a)
.
Other Revolving Credit Advances
has the meaning specified in
Section
2.04(a)
.
Other Tax Return
has the meaning specified in
Section 4.01(h)(i)
.
Other Taxes
has the meaning specified in
Section 2.15(b)
.
Other Term Advances
shall have the meaning assigned to such term in
Section
2.04(a)
.
Owned Property
has the meaning specified in
Section 4.01(c)
.
Parent Company
means, with respect to a Lender, (i) the bank holding company (as
defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning,
beneficially or of record, directly or indirectly, a majority of the shares of such Lender or (ii)
any other Person controlling such Lender.
Sealed Air Credit Agreement
33
Patriot Act
means the USA Patriot Act (Title III of Pub.L. 107-56 (signed into law
October 26, 2001)).
Payment Office
means, for any Foreign Currency, such office of CBNA 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 Acquisition
means any acquisition by the Company or any of its Restricted
Subsidiaries, whether by purchase, merger or otherwise, of assets of, or the Equity Interests of,
or a business line or unit or a division of, any Person;
provided
,
(i) immediately prior to, and after giving effect thereto, no Event of Default shall
have occurred and be continuing or would result therefrom;
(ii) the Company shall be in compliance with the financial covenant set forth in
Section 5.03
on a Pro Forma Basis after giving effect to such acquisition (such Pro
Forma Basis to include, in the Companys discretion, a reasonable estimate of savings
resulting from any such acquisition (i) that have been realized, (ii) for which the steps
necessary for realization have been taken; or (iii) for which the steps necessary for
realization are reasonably expected to be taken with 12 months of the date of such
acquisition, in each case, certified by the Company); and
(iii) the Company, the applicable Loan Parties and each newly-acquired Subsidiary
(other than any newly-acquired Subsidiary designated as an Unrestricted Subsidiary) shall
comply with the collateral and guaranty requirements of
Section 5.01(h)
.
Permitted Liens
means, with respect to any Person:
(a) (i) pledges or deposits by such Person under workers compensation laws,
unemployment insurance laws or other social security legislation, and deposits securing
liability to insurance carriers under related insurance or self-insurance arrangements, (ii)
Liens incurred in the ordinary course of business securing insurance premiums or
reimbursement obligations under insurance policies related to the items specified in the
foregoing clause (i), or (iii) obligations in respect of letters of credit or bank
guarantees that have been posted by such Person to support the payment of the items set
forth in clauses (i) and (ii) of this
clause (a)
;
(b) (i) deposits to secure the performance of bids, tenders, contracts (other than
for borrowed money) or Leases to which such Person is a party, (ii) deposits to secure
public or statutory obligations of such Person, surety and appeal bonds, performance bonds
and other obligations of a like nature, (iii) deposits as security for contested taxes or
import duties or for the payment of rent, and (iv) obligations in respect of letters of
credit or bank guarantees that have been posted by such Person to support the payment of
items set forth in clauses (i) and (ii) of this
clause (b)
;
Sealed Air Credit Agreement
34
(c) Liens consisting of pledges or deposits of cash or securities made by such
Person as a condition to obtaining or maintaining any licenses issued to it by, or to
satisfy other similar requirements of, any applicable Governmental Authority, or to secure
the performance of obligations of any Loan Party pursuant to the requirements of
Environmental Laws to which any assets of such Loan Party are subject;
(d) Liens imposed by law, such as (i) carriers, warehousemens and mechanics
materialmens, landlords, or repairmens Liens, or (ii) other like Liens arising in the
ordinary course of business securing obligations which are not overdue by more than 60 days
or which if more than 60 days overdue, the period of grace, if any, related thereto has not
expired or which are being contested in good faith by appropriate proceedings;
provided
that a reserve or other appropriate provision shall have been made therefor
as appropriate in accordance with GAAP.
(e) Liens arising out of judgments or awards not constituting an Event of Default;
(f) Liens for property taxes not yet due and payable or which are being contested
in good faith and by appropriate proceedings (and as to which all foreclosures and other
enforcement proceedings shall have been fully bonded or otherwise effectively stayed);
(g) survey exceptions, encumbrances, easements or reservations of, or rights of
others for rights of way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or other restrictions or encumbrances as to the use of real properties or
Liens incidental to the conduct of the business of such Person or to the ownership of its
properties which were not incurred in connection with and do not secure Indebtedness and do
not in the aggregate materially impair the use of such real property for the purpose for
which it is held or materially interfere with the ordinary operation of the business of such
Person;
(h) any zoning, building or similar laws, ordinances or rights reserved to or
vested in any Governmental Authority, which are not violated by existing improvements or the
present use of real property;
(i) Liens granted by any Loan Party to a landlord to secure the payment of arrears
of rent in respect of leased properties in the Province of Quebec leased from such landlord,
provided that such Lien is limited to the assets located at or about such leased properties;
(j) Liens for taxes, assessments, charges or other governmental levies not overdue
by more than 60 days or which if more than 60 days overdue, the period of grace, if any,
related thereto has not expired or which are being contested in good faith by appropriate
proceedings;
provided
that a reserve or other appropriate provision shall have been
made therefor as appropriate in accordance with GAAP;
(k) Liens arising in the ordinary course of business by virtue of any contractual,
statutory or common law provision relating to bankers Liens, rights of
Sealed Air Credit Agreement
35
set-off or similar rights and remedies covering deposit or securities accounts (including funds or other
assets credited thereto and pooling and netting arrangements) or other funds maintained with
a depository institution or securities intermediary;
(l) restrictions on transfers of securities imposed by applicable securities laws;
(m) (i) any interest or title of a lessor, licensor or sublessor under any Lease,
license or sublease entered into by such Person in the ordinary course of its business and
covering only the assets so leased, licensed or subleased that do not materially detract
from the value of such assets or interfere with the ordinary conduct of the business
conducted and proposed to be conducted regarding such asset and (ii) the rights reserved or
vested in any other Person by the terms of any Lease, license, franchise, grant or permit
held by such Person or by a statutory provision to terminate any such Lease, license,
franchise, grant or permit or to require periodic payments as a condition to the continuance
thereof;
(n) assignments of insurance or condemnation proceeds provided to landlords (or
their mortgagees) pursuant to the terms of any Lease and Liens or rights reserved in any
Lease for rent or for compliance with the terms of such Lease;
(o) Liens arising from precautionary UCC financing statement filings (or similar
filings under applicable law) regarding Leases entered into by such Person in the ordinary
course of business;
(p) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by such Person in the ordinary course of
business not prohibited by this Agreement;
(q) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods in the ordinary
course of business;
(r) ground leases or subleases, licenses or sublicenses in respect of real property
on which facilities owned or leased by the Company or any of its Restricted Subsidiaries are
located;
(s) any interest or title of a lessor, sublessor, licensor or sublicensor or
secured by a lessors, sublessors, licensors or sublicensors interest under any lease,
sublease, license or sublicense permitted by this Agreement;
(t) Liens on goods or inventory the purchase, shipment or storage price of which is
financed by a documentary letter of credit or bankers acceptance issued or created for the
account of the Company or any of its Restricted Subsidiaries;
(u) Liens arising from security interests in connection with the existing Diversey
credit agreement which no longer secure any Indebtedness;
Sealed Air Credit Agreement
36
(v) any security that is created or provided by (i) a PPS lease (as defined in the
Australian PPSA) in respect of which the relevant Group Member is the lessee or bailee; (ii)
a commercial consignment (as defined in the Australian PPSA) in respect of which the
relevant Group Member is consignee or (iii) a transfer or purchase of an account or chattel
paper (in each case as defined in the Australian PPSA) in respect of which the relevant
Group Member is transferor or vendor,
provided
that, in each case, such security
does not secure payment or performance of an obligation and such lease, commercial
consignment, transfer or purchase is otherwise permitted under the terms of the Loan
Documents;
(w) any Lien arising under the general terms and conditions of banks or Sparkassen
(
Allgemeine Geschäftsbedingungen der Banken oder Sparkassen
) with whom any member of the
Group maintains a banking relationship in the ordinary course of business, and any Lien
arising under customary extended retention of title arrangements (
verlängerter
Eigentumsvorbehalt
) in the ordinary course of business and trading;
(x) any Lien given in order to comply with the requirements of Section 8a of the German
Altersteilzeitgesetz (Act on Partial Retirement) and of Section 7b of the German
Sozialgesetzbuch IV (Social Security Code);
(y) the rights reserved to or vested in Canadian Governmental Authorities by
statutory provisions or by the terms of leases, licenses, franchises, grants or permits,
which affect any land, to terminate the leases, licenses, franchises, grants or permits or
to require annual or other periodic payments as a condition of the continuance thereof; and
(z) Liens or covenants restricting or prohibiting access to or from lands abutting
on controlled access highways or covenants affecting the use to which lands may be put;
provided that such Liens or covenants do not materially and adversely affect the use of the
lands by any Loan Party.
Permitted Receivables Financing
means any customary non-recourse accounts receivable
financing facility (including customary back-to-back intercompany arrangements in respect thereof)
to the extent that (a) the amount thereof does not exceed the amount permitted by
Section
5.02(b)(xi)
, (b) the proceeds of Indebtedness incurred under such facility must be applied to
the prepayment of Term Loans in accordance with
Section 2.11(b)(ii)(C)
and (c) there is no
recourse to any Loan Party (except with respect to customary indemnification obligations under such
financings).
Permitted Refinancing Indebtedness
means any Indebtedness issued in exchange for, or
the net proceeds of which are used to extend, refinance, renew, replace, defease or refund
(collectively, to
Refinance
), the Indebtedness being Refinanced (or previous refinancings
thereof constituting Permitted Refinancing Indebtedness);
provided
, that (a) the principal
amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not
exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced
(plus (i) unpaid accrued interest and premium thereon, (ii) underwriting discounts, fees,
commissions and expenses and (iii) an amount equal to any existing unutilized commitments or
undrawn letters of credit); (b) except with respect to Capital Lease Obligations,
Sealed Air Credit Agreement
37
the weighted average life to maturity of such Permitted Refinancing Indebtedness is greater
than or equal to the weighted average life to maturity of the Indebtedness being Refinanced; (c)
the final maturity of such Permitted Refinancing shall be no earlier than 91 days after the
scheduled Termination Date applicable to the Term B Facility and Euro Term B Facility (as set forth
in
clause (c)
of the definition of Termination Date); (d) if the Indebtedness being
Refinanced is subordinated in right of payment to the Obligations under this Agreement, such
Permitted Refinancing Indebtedness shall be subordinated in right of payment to such Obligations on
terms at least as favorable to the Lenders as those contained in the documentation governing the
Indebtedness being Refinanced; (e) no Permitted Refinancing Indebtedness of the Indebtedness of a
Foreign Subsidiary shall have any obligors who are Domestic Subsidiaries; and (f) if the
Indebtedness being Refinanced is secured by any collateral (whether equally and ratably with, or
junior to, the Secured Parties or otherwise), such Permitted Refinancing Indebtedness may be
secured by such collateral on terms no less favorable to the Secured Parties than those contained
in the documentation governing the Indebtedness being Refinanced.
Person
means an individual, partnership, corporation (including a business trust),
joint stock company, trust, unincorporated organization, association, employee organization (as
defined in Section 3(4) of ERISA), joint venture, limited liability company or other entity, or a
government or any political subdivision or agency thereof.
Plan
means any Single Employer Plan or Multiple Employer Plan.
Pledged Debt
has the meaning given to such term in the Security Agreement.
Post-Petition Interest
has the meaning specified in
Section 7.05
.
Pro Forma Basis
means, with respect to compliance with any test or covenant
hereunder, that all Specified Transactions in connection therewith shall be deemed to have occurred
as of the first day of the applicable period of measurement in such test or covenant
Pro Forma Compliance
means, at any date of determination, that the Company shall be
in pro forma compliance with the covenant set forth in
Section 5.03
as of the date of such
determination (and giving pro forma effect to the event or events giving rise to such
determination).
Protesting Lender
has the meaning specified in
Section 9.09
.
Qualified Preferred Equity Investment
means any preferred Equity Interest of the
Company, so long as the terms of any such Equity Interest (a) do not contain any mandatory put,
redemption, repayment, sinking fund or other similar provisions prior to the date occurring 91 days
after the scheduled Termination Date applicable to the Term B Facility, as set forth in
clause
(c)(i)
of the definition of Termination Date (other than customary provisions in respect of
change of control), (b) do not require the cash payment of dividends or distributions prior to the
date occurring 91 days after the scheduled Termination Date applicable to the Term B Facility and
Euro Term B Facility (as set forth in
clause (c)
of the definition of Termination Date),
and (c) do not contain any financial performance covenants.
Sealed Air Credit Agreement
38
Ratable Share
of any amount means, with respect to any Lender under a Facility at
any time, the product of (a) a fraction, the numerator of which is the amount of such Lenders
Commitment and, if applicable and without duplication, such Lenders Loans, in respect of the
applicable Facility at such time, and the denominator of which is the aggregate Commitments of all
the Lenders under such Facility at such time, and, if applicable and without duplication, Loans
under the applicable Facility at such time, and (b) such aforementioned amount.
Ratings Condition
means that, at the time of determination, the Company has received
and maintains corporate family/corporate credit ratings of at least BBB-
and
at least Baa3
from S&P and Moodys, respectively (in each case, with no negative outlook or negative watch).
Reference Banks
means Citibank, N.A., Bank of America, N.A., J. P. Morgan Chase
Bank, N.A. and BNP Paribas.
Refinancing
has the meaning specified in the Preliminary Statements.
Register
has the meaning specified in
Section 9.07(d)
.
Related Parties
means, with respect to any Person, such Persons Affiliates and the
partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and
representatives of such Person and of such Persons Affiliates.
Replaced Term Loans
has the meaning specified in
Section 9.01
.
Replacement Term Loans
has the meaning specified in
Section 9.01
.
Reorganization
means, with respect to any Multiemployer Plan, the condition that
such Plan is in reorganization within the meaning of Section 4241 of ERISA.
Reportable Event
means (a)(i) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice requirement
with respect to such event has been waived by the PBGC; or (ii) the requirements of Section 4043(b)
of ERISA apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA,
of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of
ERISA is reasonably expected to occur with respect to such Plan within the following 30 days; (b)
the application for a minimum funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (d) the cessation of operations at a facility of any Borrower or any
ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by
any Borrower or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it
was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) conditions for
imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan;
(g) a determination that any Plan is in at risk status (within the meaning of Section 303 of
ERISA); or (h) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section
4042 of ERISA, or the occurrence of any
Sealed Air Credit Agreement
39
event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the
appointment of a trustee to administer, such Plan.
Required Lenders
means, at any time, (a) Lenders having at least a majority (based
on the Equivalent in Dollars at such time) in interest of the sum of (i) the Revolving Credit
Commitments at such date, (ii) the Term Commitments at such date and (iii) the outstanding
principal amount of the Term Advances at such date or (b) if the Revolving Credit Commitment and
the Term Commitment have been terminated or for the purposes of acceleration pursuant to
Section 6
, Lenders having or holding a majority of the outstanding principal amount of the
Advances and L/C Exposure in the aggregate at such date;
provided
that the portion of any
Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.
Responsible Officer
means the chief executive officer, president, chief financial
officer, chief operating officer, executive vice president, controller, treasurer or assistant
treasurer of a Loan Party. Any document delivered hereunder that is signed by a Responsible
Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and such Responsible
Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
Repricing Transaction
shall mean (a) the incurrence by any Borrower or Restricted
Subsidiary of any term loans for the primary purpose of which is, (i) having an effective interest
rate margin or weighted average yield (to be determined by the Agent consistent with generally
accepted financial practice, after giving effect to, among other factors, interest rate margins,
upfront or similar fees or original issue discount shared with all lenders or holders thereof, but
excluding the effect of any arrangement, structuring, syndication or other fees payable in
connection therewith that are not shared with all lenders or holders thereof or any fluctuations in
the Eurocurrency Rate or Base Rate) that is less than the Applicable Margin for, or weighted
average yield (to be determined by the Agent on the same basis) of, the Term B Advances, and (ii)
the proceeds of which are used to repay, in whole or in part, principal of outstanding Term B
Advances and (b) any amendment, waiver or other modification to this Agreement the primary purpose
of which is to reduce the Applicable Margin for Term B Advances (other than, in each case, any such
transaction or amendment or modification accomplished together with the substantially concurrent
refinancing of all Term B Facilities hereunder and other than any amendment to a financial
maintenance covenant herein or in the component definitions thereof that may result in a reduction
in the Applicable Margin for Term B Advances).
Restricted Payment
means any dividend or other distribution (whether in cash,
securities or other property), direct or indirect, with respect to any Equity Interests of the
Company or any Restricted Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such Equity Interest, or on account of
any return of capital to the Companys stockholders, partners or members (or the equivalent Person
thereof), but not on account of Subordinated Indebtedness;
provided
that no such dividend
or distribution shall be considered a Restricted Payment if such dividend or distribution is made
to a Loan Party.
Sealed Air Credit Agreement
40
Restricted Junior Payment
means any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of any Subordinated
Indebtedness.
Restricted Subsidiary
means a Subsidiary of the Company that is not an Unrestricted
Subsidiary.
Revaluation Date
means (a) with respect to any Advance, each of the following: (i)
each date of a Borrowing of a Eurocurrency Rate Advance denominated in a Committed Currency and
(ii) each date of a continuation of a Eurocurrency Rate Advance denominated in Committed Currency
pursuant to
Section 2.09
and (b) with respect to any Letter of Credit, each of the
following: (i) each date of issuance of a Letter of Credit denominated in a Committed Currency,
(ii) each date of an amendment of any such Letter of Credit having the effect of increasing the
amount thereof (solely with respect to the increased amount), (iii) each date of any payment by the
Issuing Bank under any Letter of Credit denominated in a Committed Currency, and (iv) such
additional dates as the Agent shall determine or the applicable Issuing Bank shall require.
Reversion Date
shall have the meaning ascribed to such term in the last paragraph of
Section 5.02
.
Revolving Credit Advance
means a US Revolving Credit Advance, a Multicurrency
Revolving Credit Advance or an Other Revolving Credit Advance, as applicable.
Revolving Credit Borrowing
means a US Revolving Credit Borrowing or a Multicurrency
Revolving Credit Borrowing, as applicable.
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, (a) with respect to each US Revolving Lender, the
US Revolving Credit Commitment of such Lender, (b) with respect to each Multicurrency Revolving
Lender, the Multicurrency Revolving Credit Commitment of such Lender and (c) with respect to each
Incremental Revolving Facility Lender, the Incremental Revolving Credit Commitment of such Lender.
Revolving Credit Facility
means the US Revolving Credit Facility or the
Multicurrency Revolving Credit Facility, as applicable.
Revolving Credit Lender
means a US Revolving Lender or a Multicurrency Revolving
Lender, as applicable.
Sealed Air Credit Agreement
41
Revolving Credit Note
means a promissory note of any Borrower payable to the order
of any Revolving Credit Lender, delivered pursuant to a request made under
Section 2.17
in
substantially the form of Exhibit A hereto, evidencing the aggregate indebtedness of such Borrower
to such revolving Credit Lender resulting from the Revolving Credit Advances made by such Revolving
Credit Lender to such Borrower.
S&P
means Standard & Poors Financial Services LLC, a Wholly-Owned Subsidiary of The
McGraw-Hill Companies, Inc.
Sealed Air (France)
means Sealed Air Holdings S.A.S. or another Subsidiary of the
Company that is incorporated or organized in France.
Sealed Air (Japan)
means Sealed Air Japan K.K., Diversey Co. Ltd. (Japan) or another
Subsidiary of the Company that is incorporated or organized in Japan.
Sealed Air (Luxembourg)
means Sealed Air Luxembourg S.C.A. or another Subsidiary of
the Company that is incorporated or organized in Luxembourg.
Sealed Air Refinancing
has the meaning specified in the Preliminary Statements.
Secured Obligations
means: (a) in the case of any Borrower, the Obligations of such
Borrower, (b) in the case of each other Loan Party, the Obligations of such Loan Party under each
Guaranty and the other Loan Documents to which it is a party, (c) the obligations of the Company or
of any Subsidiary thereof under any Swap Contract entered into in connection herewith with any
Person that was a Lender or any Affiliate at the time it entered into such Swap Contract thereof,
and (d) any Cash Management Obligations of the Company or any Subsidiary thereof.
Secured Parties
means the Lenders, the Swing Line Bank, the Issuing Banks, the Agent
and any other holder of any Secured Obligation, each of which are beneficiaries of and subject to
the distribution of proceeds provisions provided in the Intercreditor Agreement.
Security Agreement
means that certain Pledge and Security agreement, dated as of the
date hereof, by and among the Agent and each of the Grantors (as defined therein) party thereto,
together with each other pledge and security agreement and pledge and security agreement supplement
delivered pursuant to Section 5.01(h), in each case as amended, restated, supplemented or otherwise
modified from time to time.
Senior Financial Officer
means the President, the Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer and the Treasurer of the Company.
Senior Notes
has the meaning given to such term in the Preliminary Statements
hereto.
Solvency Certificate
has the meaning given to such term in
Section 3.01(h)
.
Solvent
has the meaning given to such term in the Solvency Certificate.
Sealed Air Credit Agreement
42
Single Employer Plan
means a single employer plan, as defined in Section 4001(a)(15)
of ERISA, that (a) is maintained for employees of any Borrower or any ERISA Affiliate and no Person
other than the Borrowers and the ERISA Affiliates or (b) was so maintained and in respect of which
any Borrower or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event
such plan has been or were to be terminated.
Specified Foreign Restructuring Transactions
means the transactions described on
Schedule IV
hereto.
Specified Representations
means the representations and warranties made in Sections
4.01(a)(i)
,
(a)(ii)
,
(b)
,
(d)(i)
(to the extent reasonably expected
to result in a Material Adverse Effect),
(d)(iii)
,
(j)
,
(o)
,
(q
),
(t)
,
(u)
and
(v)
, (to the extent required to be pledged pursuant to the
Collateral Documents).
Specified Structured Finance Transactions
means the Japanese Structured Finance
Transaction and the French Structured Finance Transaction.
Specified Transaction
means, with respect to any period, any Investment, sale,
transfer or other Disposition of assets or property, incurrence or repayment of Indebtedness,
Restricted Payment, acquisition, Subsidiary designation, Incremental Borrowing or other event that
by the terms of the Credit Documents requires Pro Forma Compliance with a test or covenant
hereunder or requires such test or covenant to be calculated on a Pro Forma Basis.
Spot Rate
for a currency means the rate quoted by the Agent as the spot rate for the
purchase by the Agent of such currency with another currency through its principal foreign exchange
trading office at approximately 11:00 A.M. (New York City time) on the date two Business Days prior
to the date of such determination;
provided
that in the case of the lawful currency of
Canada, the Spot Rate will be determined at approximately 11:00 A.M. (New York City time) on the
date that is one Business Day prior to the date of such determination and in the case of AU$, the
Spot Rate will be determined at approximately 11:00 A.M. (Sydney time) on the date that is two
Business Days prior to the date of such determination by reference to Reuters monitor system page
AFX= (or any page that replaces that page);
provided
further
that the Agent may
obtain such spot rate from another financial institution designated by the Agent if the Person
acting in such capacity does not have as of the date of determination a spot buying rate for any
such currency.
Subordinated Indebtedness
means unsecured Indebtedness for borrowed money of the
Company, which Indebtedness shall rank in payment and upon liquidation junior to the Obligations
under the Loan Documents on terms reasonably satisfactory to the Agent.
Subordinated Obligations
has the meaning specified in
Section 7.05
.
Subsidiary
of any Person and relation to any Person incorporated in The Netherlands
a subsidiary (
dochtermaatschappij
) within the meaning of Section 24a of Book 2 of the Dutch Civil
Code means any corporation, partnership, joint venture, limited liability company, joint stock
company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding
capital stock having ordinary voting power and/or the power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time capital
Sealed Air Credit Agreement
43
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 Persons other Subsidiaries.
Subsidiary Guarantors
means, collectively, the Wholly-Owned Subsidiaries of the
Company listed on
Schedule 1.01(ii)
, each other Subsidiary Guarantor of the Company that
guarantees Obligations pursuant to
Section 5.01(h)
. In addition, the Company may cause any
Restricted Subsidiary that is not a Guarantor to guarantee the Obligations by causing such
Restricted Subsidiary to execute a joinder or supplement to the applicable Guaranty in form and
substance reasonably satisfactory to the Agent, and any such Restricted Subsidiary shall be a
Subsidiary Guarantor hereunder for all purposes.
Subsidiary Guarantees
means, collectively, the Foreign Subsidiary Guarantees and the
US Subsidiary Guarantees.
Suspension Covenants
shall have the meaning ascribed to such term in the last
paragraph of
Section 5.02
.
Suspension Event
shall have the meaning ascribed to such term in the last paragraph
of
Section 5.02
.
Suspension Period
means the period of time between the date of a Suspension Event
and the Reversion Date.
Swap Contract
means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a
Master Agreement
), including any such
obligations or liabilities under any Master Agreement.
Swap Obligations
means, as applied to the Company or any Subsidiary thereof, any
direct or indirect liability, contingent or otherwise, of such Person in respect of Swap Contracts
provided by the Agent, any Lender or any Affiliate thereof at the time such Swap Obligations are
entered into, including obligations for the payment of fees, interest, charges,
Sealed Air Credit Agreement
44
expenses, attorneys fees and disbursements in connection therewith to the extent provided for
in the documents evidencing such Swap Contract.
Swing Line Advance
means a revolving credit advance made by the Swing Line Bank
pursuant to
Section 2.01(d)
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 CBNA.
Swing Line Borrowing
means a Borrowing consisting of a Swing Line Advance made by
the Swing Line Bank.
Swing Line Exposure
means, at any time, the aggregate outstanding principal amount
of the Swing Line Advances at such time. The Swing Line Exposure of any US Revolving Lender at any
time will be its Ratable Share of the total Swing Line Exposure at such time, as may be adjusted in
accordance with
Section 2.19
.
Swing Line Sublimit
has the meaning specified in
Section 2.01(d)
.
Tax Affiliate
means, with respect to any Person, any Subsidiary or Affiliate of such
Person with which such Person files consolidated, combined or unitary tax returns.
Tax Return
has the meaning specified in
Section 4.01(h)(i)
.
Taxes
has the meaning specified in
Section 2.15
.
Term A Advance
means an advance made by any Term A Lender under the Term A Facility.
Term A Borrowing
means a borrowing consisting of simultaneous Term A Advances of the
same Type and, in the case of Eurocurrency Rate Advances, having the same Interest Period made by
each of the Term A Lenders pursuant to
Section 2.01(a)(i)
.
Term A Commitment
means, as to each Term A Lender, its obligation to make Term A
Advances to the Company pursuant to
Section 2.01(a)(i)
in an aggregate principal amount at
any one time outstanding not to exceed the amount set forth opposite such Term A Lenders name on
Schedule I under the caption
Term A Commitment
.
Term A Facility
means, at any time, (a) on or prior to the Closing Date, the
aggregate amount of the Term A Commitments at such time and (b) thereafter, the aggregate principal
amount of the Term A Advances of all Term A Lenders outstanding at such time.
Term A Lender
means (a) at any time on or prior to the Closing Date, any Lender that
has a Term A Commitment at such time and (b) at any time after the Closing Date, any Lender that
holds Term A Advances at such time.
Sealed Air Credit Agreement
45
Term A Note
means a promissory note made by the Company in favor of a Term A Lender
evidencing Term A Advances made by such Term A Lender, substantially in the form of Exhibit B-1.
Term Advance
means a Term A Advance, a CDN Term A Advance, a JPY Term A Advance, a
Euro Term A Advance, a Term B Advance, a Euro Term B Advance, an Incremental Term Advance or an
Other Term Advance, as applicable.
Term Borrowing
means a Term A Borrowing, a CDN Term A Borrowing, a JPY Term A
Borrowing, a Euro Term A Borrowing, a Term B Borrowing, a Euro Term B Borrowing or an Incremental
Term Borrowing, as applicable.
Term B Advance
means an advance made by any Term B Lender under the Term B Facility.
Term B Borrowing
means a borrowing consisting of simultaneous Term B Advances of the
same Type and, in the case of Eurocurrency Rate Advances, having the same Interest Period made by
each of the Term B Lenders pursuant to
Section 2.01(b)
.
Term B Commitment
means, as to each Term B Lender, its obligation to make Term B
Advances to the Company pursuant to
Section 2.01(b)
in an aggregate principal amount at any
one time outstanding not to exceed the amount set forth opposite such Term B Lenders name on
Schedule I under the caption
Term B Commitment
.
Term B Facility
means, at any time, (a) on or prior to the Closing Date, the
aggregate amount of the Term B Commitments at such time and (b) thereafter, the aggregate principal
amount of the Term B Advances of all Term B Lenders outstanding at such time.
Term B Lender
means (a) at any time on or prior to the Closing Date, any Lender that
has a Term B Commitment at such time and (b) at any time after the Closing Date, any Lender that
holds Term B Advances at such time.
Term B Note
means a promissory note made by the Company in favor of a Term B Lender
evidencing Term B Advances made by such Term B Lender, substantially in the form of Exhibit B-2.
Term Commitment
means a Term A Commitment, a CDN Term A Commitment, a JPY Term A
Commitment, a Euro Term A Commitment, a Term B Commitment, Euro Term B Commitment or an Incremental
Term Commitment, as applicable.
Term Facility
means the Term A Facility, the CDN Term A Facility, the JPY Term A
Facility, the Euro Term A Facility, the Term B Facility, Euro Term B Facility or the Incremental
Term Facility, as applicable.
Term Lender
means a Term A Lender, a CDN Term A Lender, a JPY Term A Lender, a Euro
Term A Lender, a Term B Lender, Euro Term B Lender or Incremental Term Lender, as applicable.
Sealed Air Credit Agreement
46
Termination Date
means (a) with respect to the US Revolving Credit Facility and the
Multicurrency Revolving Credit Facility, the earlier of (i) October 3, 2016 and (ii) the date of
termination in whole of the Commitments pursuant to
Section 2.06
or
6.01
, (b) with
respect to the Term A Facility, the CDN Term A Facility, the JPY Term A Facility and the Euro Term
A Facility, October 3, 2016, (c) with respect to the Term B Facility and the Euro Term B Facility,
October 3, 2018 and (d) with respect to each Incremental Facility, if any, the date specified as
such in the respective Incremental Supplement. However, if the Termination Date falls on a day
which is not a Business Day, the Termination Date shall fall on the previous Business Day.
Test Period
means the four consecutive fiscal quarters of the Company then last
ended, in each case taken as one accounting period.
Total Availability
shall mean, at any time, the sum of the (a) the aggregate amount
of all Multicurrency Revolving Credit Commitments (expressed in Dollars)
minus
(b) the
Dollar Equivalent of the aggregate amount of the Multicurrency Revolving Exposure of all
Multicurrency Revolving Lenders. The Total Availability at any time shall be determined by
reference to the most recent Total Availability Certificate delivered to the Agent pursuant to
Section
5.01(a)(iv)
.
Total Availability Certificate
means a certificate, signed and certified as accurate
and complete by a Financial Officer of the Company, specifying Total Availability as of the second
preceding Business Day prior to the date of such certificate, in a form that is reasonably
acceptable to the Agent in its reasonable discretion.
Transaction
means, (i) the Acquisition, (ii) the issuance of the Senior Notes, (iii)
the Refinancing, (iv) the transactions contemplated by the Loan Documents, (v) the issuance of the
Companys common stock to pay the equity portion of the consideration for the Acquisition, (vi) any
related transaction undertaken or consummated in connection with clauses (i) through (v) of this
definition and (vii) the payment of fees and expenses in connection with clauses (i) through (vi)
of this definition.
Type
means, with respect to an Advance, its character as a Base Rate Advance or a
Eurocurrency Rate Advance.
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 Plans actuary in the most recent annual valuation of such Plan.
Unissued Letter of Credit Commitment
means, (a) with respect to any US Issuing Bank,
the obligation of such US Issuing Bank to issue US Letters of Credit for the account of any
Borrower in an amount equal to the excess of (i) the amount of its Letter of Credit Commitment
minus
(ii) the aggregate Available Amount of all US Letters of Credit issued by such US
Issuing Bank; or (b) with respect to any Multicurrency Issuing Bank, the obligation of such
Multicurrency Issuing Bank to issue Multicurrency Letters of Credit for the account of any
Sealed Air Credit Agreement
47
Borrower in an amount equal to the excess of (i) the amount of its Letter of Credit Commitment
minus
(ii) the aggregate Available Amount of all Multicurrency Letters of Credit issued by
such Multicurrency Issuing Bank.
Unpaid Drawings
shall have the meaning assigned to such term in the definition of
L/C Exposure.
Unrestricted Subsidiary
means any Subsidiary of the Company (other than any Borrower
or any Guarantor as of the Closing Date (or any Person required to become a Guarantor pursuant to
Section 5.01(h)
)) listed on Schedule 1.01(i) or designated by the Company as an
Unrestricted Subsidiary pursuant to
Section 5.01(l)
subsequent to the date hereof.
Unused Revolving Credit Commitment
means, with respect to each Revolving Credit
Lender at any time, (a) the amount of such Lenders US Revolving Credit Commitment and
Multicurrency Revolving Credit Commitment, if any, at such time
minus
(b) the sum of the
aggregate principal amount of all Revolving Credit Advances (based in respect of any Revolving
Credit Advances denominated in a Committed Currency other than Dollars on the Equivalent in Dollars
at such time) made by such Lender (in its capacity as a Lender) and outstanding at such time,
plus
such Lenders L/C Exposure and Swing Line Exposure.
US Issuing Bank
means an Initial Issuing Bank or any Eligible Assignee to which a
portion of the US 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 US Letter of Credit Commitment.
US Letter of Credit
has the meaning specified in
Section 2.01(e)
.
US Letter of Credit Commitment
means, with respect to each US Issuing Bank, the
obligation of such US Issuing Bank to issue Letters of Credit for the account of any Borrower in
(a) the amount set forth opposite the US Issuing Banks name on the signature pages hereto under
the caption US Letter of Credit Commitment, or (b) if such Issuing Bank has entered into one or
more Assignment and Acceptances, the amount set forth for such US Issuing Bank in the Register
maintained by the Agent pursuant to
Section 9.07(d)
as such US Issuing Banks
US
Letter of Credit Commitment
, in each case as such amount may be reduced prior to such time
pursuant to
Section 2.06
.
US Letter of Credit Sublimit
means, at any time, an amount equal to $100,000,000, as
such amount may be reduced at or prior to such time pursuant to
Section 2.06
. The US
Letter of Credit Sublimit is part of, and not in addition to, the US Revolving Credit Facility.
US Revolving Credit Advance
means an Advance by a US Revolving Lender to any
Borrower as part of a US Revolving Credit Borrowing and refers to a Base Rate Advance or a
Eurocurrency Rate Advance.
Sealed Air Credit Agreement
48
US Revolving Credit Borrowing
means a borrowing consisting of simultaneous US
Revolving Credit Advances of the same Type made by each of the US Revolving Lenders pursuant to
Section 2.01(c)(i)
.
US Revolving Credit Commitment
means, as to any US Revolving Lender, the commitment,
if any, of such Lender to make US Revolving Advances and/or to acquire participations in Letters
Credit and Swing Line Advances hereunder, denominated in dollars, as such commitment may be (a)
reduced from time to time in accordance with the terms of this Agreement and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender pursuant to any Assignment
and Acceptance. The initial amount of the US Revolving Credit Commitment of each US Revolving
Lender party hereto on the date of this Agreement is set forth on Schedule I, and the initial
amount of the US Revolving Commitment of each US Revolving Lender becoming party hereto after the
date of this Agreement shall be as set forth in the Assignment and Acceptance pursuant to which
such Lender becomes party hereto.
US Revolving Credit Facility
means, at any time, the aggregate amount of the US
Revolving Lenders US Revolving Credit Commitments at such time.
US Revolving Exposure
means, with respect to any US Revolving Lender at any time,
the sum of the aggregate outstanding principal amount of such Lenders US Revolving Credit Advances
and its L/C Exposure under the US Revolving Credit Facility and Swing Line Exposure at such time.
US Revolving Lender
means a Lender with a US Revolving Credit Commitment or a US
Revolving Exposure.
US Revolver Borrower
has the meaning specified in the Preamble.
US Subsidiary Guaranty
has the meaning specified in
Section 3.01(a)(iii)
.
US Tax Return
has the meaning specified in
Section 4.01(h)(i)
.
Voting Stock
means capital stock or share capital, as applicable, 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.
W.R. Grace Liabilities
means the obligations of the Company and Cryovac, Inc.
(
Cryovac
) pursuant to that certain Settlement Agreement and Release (the
Settlement
Agreement
), dated November 10, 2003, by and among the Company, Cryovac, and the official
committees appointed to represent asbestos personal injury claimants and asbestos property damage
claimants (the
Grace Asbestos Committees
) in the jointly administered Chapter 11 cases of
W.R. Grace & Co. and its affiliated debtors, Case No. 01-01139 (JKF) (Bankr. D. Del.) (the
Grace Chapter 11 Cases
). The Settlement Agreement was approved by order of the United
States Bankruptcy Court for the District of Delaware dated June 27, 2005. The Settlement Agreement
contemplates that, upon the effectiveness of an appropriate plan of reorganization in connection
with the Grace Chapter 11 Cases, and subject to the terms of the
Sealed Air Credit Agreement
49
Settlement Agreement and in resolution of an adversary proceeding brought by the Grace
Asbestos Committees against the Company and Cryovac (Case No. 02-2210 (D. Del.)), Cryovac will
transfer to one or more trusts established pursuant to 11 U.S.C. § 524(g): (a) $512.5 million in
cash, plus interest thereon from December 21, 2002 through the
Effective Date
(as defined
in the Settlement Agreement); and (b) 9 million shares of common stock of the Company, subject to
certain anti-dilution provisions (this number has since been adjusted to 18 million shares of
common stock of the Company as a result of a two-for-one stock split in March 2007). Pursuant to
the Settlement Agreement, the Company guarantees performance of Cryovacs obligations in (a) and
(b) above.
Wholly-Owned
means, as to any Person, (i) any corporation 100% of whose capital
stock (other than directors qualifying shares and, in the case of a Foreign Subsidiary, other than
up to 2.0% of the capital stock of such Foreign Subsidiary, to the extent that it is required to be
held by a third party pursuant to a requirement of law) 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.
Withdrawal Liability
has the meaning specified in Part I of Subtitle E of Title IV
of ERISA.
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 in effect from time to time in the United States, applied on a
basis consistent (except for changes concurred with by the Borrowers independent registered public
accountants) with the most recent audited Consolidated financial statements of the Company
delivered to the Agent (
GAAP
);
provided
that, if the Company notifies the Agent
that the Company 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 Company that the
Required Lenders wish to amend
Article V
for such purpose), then the Borrowers 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 Company and the Required Lenders.
SECTION 1.04
Exchange Rates; Currency Equivalents
.
(a) The Agent shall determine the Spot Rates as of each Revaluation Date to be used for
calculating Equivalent amounts of Advances and Available Amounts denominated in JPY, Euro and other
Committed Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall
be the Spot Rates employed in converting any amounts between the applicable currencies until the
next Revaluation Date to occur. Except for purposes of financial
Sealed Air Credit Agreement
50
statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or
except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for
purposes of the Loan Documents shall be such Equivalent amount as so determined by the Agent.
(b) Wherever in this Agreement in connection with an Advance, conversion, continuation or
prepayment of a Eurocurrency Rate Advance or the issuance, amendment or extension of a Letter of
Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such
Advance, Eurocurrency Rate Loan or Letter of Credit is denominated in a Committed Currency, such
amount shall be the relevant Equivalent of such Dollar amount (rounded to the nearest unit of
Committed Currency, with 0.5 of a unit being rounded upward), as determined by the Agent.
SECTION 1.05
Construction
. English language words used in this Agreement to describe Japanese Law,
Dutch law, Belgium law or Luxembourg law concepts intend to describe such concepts only and the
consequences of the use of those words in New York law or any other foreign law are to be
disregarded.
SECTION 1.06
Dutch Terms
. In this Agreement, where it relates to a Dutch entity, a reference to:
(a) A necessary action to authorize, where applicable, includes without limitation:
(i) any action required to comply with the Dutch Works Council Act (
Wet op de
ondernemingsraden
); and
(ii) obtaining unconditional positive advice (
advies
) from each competent works
council;
(b) a winding-up, administration or dissolution includes a Dutch entity being:
(i) declared bankrupt (
failliet verklaard
)
(ii) dissolved (
ontbonden
)
(c) a moratorium includes
surséance van betaling
and granted a moratorium includes
surséance verleend
;
(d) a trustee in bankruptcy includes a
curator
;
(e) an administrator includes a
bewindvoerder
;
(f) a receiver or an administrative receiver does not include a
curator
or
bewindvoerder
;
and
(g) an attachment includes a
beslag
.
Sealed Air Credit Agreement
51
SECTION 1.07
Quebec Matters
. For purposes of any assets, liabilities or entities located in the
Province of Québec and for all other purposes pursuant to which the interpretation or construction
of this Agreement may be subject to the laws of the Province of Québec or a court or tribunal
exercising jurisdiction in the Province of Québec, (a) personal property shall include movable
property, (b) real property or real estate shall include immovable property, (c) tangible
property shall include corporeal property, (d) intangible property shall include incorporeal
property, (e) security interest, mortgage and lien shall include a hypothec, right of
retention, prior claim and a resolutory clause, (f) all references to filing, perfection,
priority, remedies, registering or recording under the Uniform Commercial Code or a Personal
Property Security Act shall include publication under the Civil Code of Québec, (g) all references
to perfection of or perfected liens or security interest shall include a reference to an
opposable or set up lien or security interest as against third parties, (h) any right of
offset, right of setoff or similar expression shall include a right of compensation, (i)
goods shall include corporeal movable property other than chattel paper, documents of title,
instruments, money and securities, (j) an agent shall include a mandatary, (k) construction
liens shall include legal hypothecs; (l) joint and several shall include solidary; (m)
gross negligence or wilful misconduct shall be deemed to be intentional or gross fault; (n)
beneficial ownership shall include ownership on behalf of another as mandatary; (o) easement
shall include servitude; (p) priority shall include prior claim; (q) survey shall include
certificate of location and plan; (r) state shall include province; (s) fee simple title
shall include absolute ownership; (t) accounts shall include claims. The parties hereto
confirm that it is their wish that this Agreement and any other document executed in connection
with the transactions contemplated herein be drawn up in the English language only and that all
other documents contemplated thereunder or relating thereto, including notices, may also be drawn
up in the English language only. Les parties aux présentes confirment que cest leur volonté que
cette convention et les autres documents de crédit soient rédigés en langue anglaise seulement et
que tous les documents, y compris tous avis, envisagés par cette convention et les autres documents
peuvent être rédigés en langue anglaise seulement.
SECTION 1.08
Code of Banking Practice
. The parties hereto agree that the Code of
Banking Practice does not apply to the Loan Documents.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01
The Advances and Letters of Credit
. (a)
(i)
The Term A Advance
. Subject to the terms and conditions set forth
herein, each Term A Lender severally agrees to make a single loan to the Company on the
Closing Date in an amount not to exceed such Term A Lenders Term A Commitment. The Term A
Borrowing shall consist of Term A Advances made simultaneously by the Term A Lenders in
accordance with their respective Ratable Share of the Term A Facility. Amounts borrowed
under this
Section 2.01(a)(i)
and repaid or prepaid may not be reborrowed. Term A
Advances may be Base Rate Advances or Eurocurrency Rate Advances, as further provided
herein.
Sealed Air Credit Agreement
52
(ii)
The CDN Term A Advance
. Subject to the terms and conditions set forth
herein, each CDN Term A Lender severally agrees to make a single loan to the CDN Borrower
on the Closing Date, denominated in CDN, in an amount not to exceed such CDN Term A Lenders
CDN Term A Commitment, which shall be made as Eurocurrency Rate Advances. The CDN Term A
Borrowing shall consist of CDN Term A Advances made simultaneously by the CDN Term A Lenders
in accordance with their respective Ratable Share of the CDN Term A Facility. Amounts
borrowed under this
Section 2.01(a)(ii)
and repaid or prepaid may not be reborrowed.
(iii)
The JPY Term A Advance
. Subject to the terms and conditions set
forth herein, each JPY Term A Lender severally agrees to make a single loan to the JPY
Borrower on the Closing Date, denominated in JPY, in an amount not to exceed such JPY Term A
Lenders JPY Term A Commitment, which shall be made as Eurocurrency Rate Advances. The JPY
Term A Borrowing shall consist of JPY Term A Advances made simultaneously by the JPY Term A
Lenders in accordance with their respective Ratable Share of the JPY Term A Facility.
Amounts borrowed under this
Section 2.01(a)(iii)
and repaid or prepaid may not be
reborrowed.
(iv)
The Euro Term A Advance
. Subject to the terms and conditions set
forth herein, each Euro Term A Lender severally agrees to make a single loan to the Euro TLA
Borrowers on the Closing Date, denominated in Euros, in an amount not to exceed such Euro
Term A Lenders Euro Term A Commitment, which shall be made as Eurocurrency Rate Advances.
The Euro Term A Borrowing shall consist of Euro Term A Advances made simultaneously by the
Euro Term A Lenders in accordance with their respective Ratable Share of the Euro Term A
Facility. Amounts borrowed under this
Section 2.01(a)(iv)
and repaid or prepaid may
not be reborrowed.
(b) (i)
The Term B Advance
. Subject to the terms and conditions set forth herein,
each Term B Lender severally agrees to make a single loan to the Company on the Closing Date, in an
amount not to exceed such Term B Lenders Term B Commitment. The Term B Borrowing shall consist of
Term B Advances made simultaneously by the Term B Lenders in accordance with their respective
Ratable Share of the Term B Facility. Amounts borrowed under this
Section 2.01(b)
and
repaid or prepaid may not be reborrowed. Term B Advances may be Base Rate Advances or Eurocurrency
Rate Advances, as further provided herein.
(ii)
The Euro Term B Advance
. Subject to the terms and conditions set
forth herein, each Euro Term B Lender severally agrees to make a single loan to the Euro TLB
Borrowers on the Closing Date, denominated in Euros, in an amount not to exceed such Euro
Term B Lenders Euro Term B Commitment, which shall be made as Eurocurrency Rate Advances.
The Euro Term B Borrowing shall consist of Euro Term B Advances made simultaneously by the
Euro Term B Lenders in accordance with their respective Ratable Share of the Euro Term B
Facility. Amounts borrowed under this
Section 2.01(b)
and repaid or prepaid may not
be reborrowed.
Sealed Air Credit Agreement
53
(c)
Revolving Credit Advances
.
(i)
US
. Each US Revolving Lender severally agrees, on the terms and
conditions hereinafter set forth, to make US Revolving Credit Advances denominated in
Dollars to the US Revolver Borrower from time to time on any Business Day during the period
from the Closing Date until the Termination Date applicable to the US Revolving Credit
Facility under
clause (a)
of the definition of Termination Date, in an aggregate
amount not to exceed such Lenders Unused Revolving Credit Commitment.
(ii)
Multicurrency
. Each Multicurrency Revolving Lender severally agrees,
on the terms and conditions hereinafter set forth, to make Multicurrency Revolving Credit
Advances denominated in a Committed Currency to the Borrowers from time to time on any
Business Day during the period from the Closing Date until the Termination Date applicable
to the Multicurrency Revolving Credit Facility under
clause (a)
of the definition of
Termination Date, in an aggregate amount not to exceed such Lenders Unused Revolving
Credit 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
Lenders Revolving Credit Commitment, the Borrowers may borrow under this
Section 2.01(c)
,
prepay pursuant to
Section 2.11
and reborrow under this
Section 2.01(c)
.
(d)
The Swing Line Advances.
The Swing Line Bank agrees, on the terms and
conditions hereinafter set forth, to make Swing Line Advances, denominated in Dollars, to the
Company from time to time on any Business Day during the period from the date hereof until the
Termination Date applicable to the US Revolving Credit Facility under
clause (a)
of the
definition of Termination Date(i) in an aggregate amount not to exceed at any time outstanding
$50,000,000 (the
Swing Line Sublimit
) and (ii) in an amount for each such Swing Line
Advance not to exceed the Unused Revolving Credit Commitments of the US Revolving Lenders
immediately prior to the making of such Swing Line Advance. The Swing Line Bank agrees to make one
or more Swing Line Advances on any Business Day. No Swing Line Advance shall be used for the
purpose of funding the payment of principal of any other Swing Line Advance. Each Swing Line
Borrowing shall be in an amount of $1,000,000 or an integral multiple of $500,000 in excess thereof
and, notwithstanding
Section 2.10
, shall consist of a Base Rate Advance made by the Swing
Line Bank. Within the limits of the Swing Line Sublimit and within the limits referred to in
clause (ii) above, the Company may borrow under this
2.01(d)
, prepay pursuant to
Section 2.11
and reborrow under this
Section 2.01(d)
.
(e)
US Letters of Credit
. Each US Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit (each, a
US Letter of
Credit
) for the account of any Borrower under the US Revolving Credit Facility from time to
time on any Business Day during the period from the Closing Date until 30 days before the
Termination Date applicable to the US Revolving Credit Facility under
clause (a)(i)
of the
definition of Termination Date (i) in an aggregate Available Amount for all US Letters of Credit
not to
Sealed Air Credit Agreement
54
exceed at any time the US Letter of Credit Sublimit, (ii) in an amount for each US Issuing
Bank not to exceed the amount of such US Issuing Banks US Letter of Credit Commitment at such time
(iii) in an amount for each such US Letter of Credit not to exceed an amount equal to the aggregate
Unused Revolving Credit Commitments of the US Revolving Lenders at such time and (iv) issued to
provide support with respect to the undertakings of the Company and/or any Subsidiary of the
Company. Each US Letter of Credit shall be in an amount of $500,000 or more and shall be
denominated in Dollars. No US Letter of Credit shall have an expiration date (including all rights
of such Borrower or the beneficiary to require renewal) of greater than one year or later than the
Termination Date applicable to the US Revolving Credit Facility under
clause (a)(i)
of the
definition of Termination Date;
provided
that any US 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 US Issuing Bank has the unconditional right to prevent any such
automatic extension from taking place. Within the limits referred to above, any Borrower under the
US Revolving Credit Facility may request the issuance of Letters of Credit under this
Section
2.01(e)
, repay any Advances resulting from drawings thereunder pursuant to
Section
2.03(c)
and request the issuance of additional Letters of Credit under this
Section
2.01(e)
. If a US Letter of Credit shall be requested on behalf of a Subsidiary that is not a
Borrower hereunder, the Company shall have furnished to the US Issuing Bank, in form and substance
reasonably satisfactory to the US Issuing Bank, customary know your customer information
regarding such Subsidiary at least three Business Days prior to the date of the requested issuance.
Each Existing US Letter of Credit listed on Part A of Schedule 2.01(e) shall be deemed to
constitute a US Letter of Credit issued hereunder, and each Lender that is an issuer of such a US
Letter of Credit shall, for purposes of
Section 2.03
, be deemed to be an US Issuing Bank
for each such letter of credit,
provided
that any renewal or replacement of any such letter
of credit shall be issued by an US Issuing Bank pursuant to the terms of this Agreement. The terms
issue, issued, issuance and all similar terms, when applied to a US Letter of Credit, shall
include any renewal, extension or amendment thereof.
(f)
Multicurrency Letters of Credit
. Each Multicurrency Issuing Bank agrees, on
the terms and conditions hereinafter set forth, to issue multicurrency letter of credit (each, a
Multicurrency Letter of Credit
) for the account of any Borrower under the Multicurrency
Revolving Credit Facility from time to time on any Business Day during the period from the Closing
Date until 30 days before the Termination Date applicable to the Multicurrency Revolving Credit
Facility under
clause (a)(i)
of the definition of Termination Date (i) in an aggregate
Available Amount (by reference to the Equivalent thereof in Dollars determined on the date of
delivery of the applicable Notice of Issuance) for all Multicurrency Letters of Credit not to
exceed at any time the Multicurrency Letter of Credit Sublimit, (ii) in an amount (by reference to
the Equivalent thereof in Dollars determined on the date of delivery of the applicable Notice of
Issuance) for each Multicurrency Issuing Bank not to exceed the amount of such Multicurrency
Issuing Banks Multicurrency Letter of Credit Commitment at such time (iii) in an amount (by
reference to the Equivalent thereof in Dollars determined on the date of delivery of the applicable
Notice of Issuance) for each such Multicurrency Letter of Credit not to exceed an amount equal to
the aggregate Unused Revolving Credit Commitments of the Multicurrency Revolving Lenders at such
time and (iv) issued to provide support with respect to the undertakings of the Company and/or any
Subsidiaries that are Foreign Subsidiaries. Each Multicurrency Letter of Credit shall be in an
amount equal to the Equivalent of $500,000 or more and may be denominated in any Committed
Currency. No Multicurrency Letter of Credit shall
Sealed Air Credit Agreement
55
have an expiration date (including all rights of such Borrower or the beneficiary to require
renewal) of greater than one year or later than the Termination Date applicable to the
Multicurrency Revolving Credit Facility under
clause (a)(i)
of the definition of
Termination Date;
provided
that any Multicurrency 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 Multicurrency Issuing Bank has the unconditional right to prevent any
such automatic extension from taking place. Within the limits referred to above, any Borrower
under the Multicurrency Revolving Credit Facility may request the issuance of Letters of Credit
under this
Section 2.01(f)
, repay any Advances resulting from drawings thereunder pursuant
to
Section 2.03(c)
and request the issuance of additional Letters of Credit under this
Section 2.01(f)
. If a Multicurrency Letter of Credit shall be requested on behalf of a
Foreign Subsidiary that is not a Borrower hereunder, the Company shall have furnished to the
Multicurrency Issuing Bank, in form and substance reasonably satisfactory to the Multicurrency
Issuing Bank, customary know your customer information regarding such Foreign Subsidiary at least
three Business Days prior to the date of the requested issuance. Each letter of credit listed on
Part B of Schedule 2.01(e) shall be deemed to constitute a Multicurrency Letter of Credit issued
hereunder, and each Lender that is an issuer of such a Multicurrency Letter of Credit shall, for
purposes of
Section 2.03
, be deemed to be a Multicurrency Issuing Bank for each such letter
of credit,
provided
that any renewal or replacement of any such letter of credit shall be
issued by a Multicurrency Issuing Bank pursuant to the terms of this Agreement. The terms issue,
issued, issuance and all similar terms, when applied to a Multicurrency Letter of Credit, shall
include any renewal, extension or amendment thereof.
(g)
Incremental Advances
. Each Lender having an Incremental Term Commitment or an
Incremental Revolving Credit Commitment agrees, on the terms and conditions set forth in the
applicable Incremental Assumption Agreement, to make Incremental Term Advances to the Company
and/or Incremental Revolving Facility Loans to the Borrowers, in an aggregate principal amount not
to exceed its Incremental Term Loan Commitment or Incremental Revolving Facility Commitment, as the
case may be.
SECTION 2.02
Borrowing Mechanics
.
(a) Each Term Borrowing and each Revolving Credit Borrowing shall be made upon the
applicable Borrowers irrevocable notice to the Agent. Each such notice must be received by the
Agent not later than (I) 11:00 A.M. (New York City time) on the third Business Day prior to the
date of any proposed Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars,
(II) 4:00 P.M. (London time) on the third Business Day prior to the date of any Borrowing
consisting of Eurocurrency Rate Advances denominated in Euros, (III) 11:00 A.M. (New York City
time) on the third Business Day prior to the date of any proposed Borrowing consisting of
Eurocurrency Rate Advances denominated in CDN, (IV) 2:00 P.M. (New York City time) on the fourth
Business Day prior to the date of any proposed Borrowing consisting of Eurocurrency Rate Advances
denominated in JPY, (V) 10:30 A.M. (Sydney time) on the fourth Business Day prior to the date of
any proposed Borrowing denominated in AU$, and (VI) 11:00 A.M. (New York City time) on the date of
the proposed Borrowing consisting of Base Rate Advances, and the Agent shall then give to each
Lender prompt notice thereof by telecopier. Each such notice of a Term Borrowing or a Revolving
Credit Borrowing (a
Notice of Borrowing
) shall be given by telephone, confirmed promptly
in writing or telecopier in
Sealed Air Credit Agreement
56
substantially the form of Exhibit C hereto, specifying therein the (i) applicable Borrower,
(ii) applicable Facility, (iii) date of such Borrowing, (iv) Type of Advances comprising such
Borrowing, (v) aggregate amount of such Borrowing, (vi) in the case of a Borrowing consisting of
Eurocurrency Rate Advances, the initial Interest Period for such Advance, and (vii) currency for
each such Advance;
provided
, that the applicable Borrower shall not be entitled to request
any Borrowing that, if made, would result in more than fifteen different Interest Periods being in
effect hereunder at any one time. Each Lender shall, (I) before 1:00 P.M. (New York City time) on
the date of such Borrowing, in the case of a Borrowing consisting of Advances denominated in
Dollars, (II) before 3:00 P.M. (New York City time) on the date of such Borrowing, in the case of a
Borrowing consisting of Advances denominated in CDN, (III) before 3:00 P.M. (New York City time) on
the date of such Borrowing, in the case of a Borrowing consisting of Advances denominated in JPY,
(IV) before 3:00 P.M. (Sydney time) on the date of such Borrowing, in the case of a Borrowing
consisting of Advances denominated in AU$, and (V) before 11:00 A.M. (London time) on the date of
such Borrowing, in the case of a Borrowing consisting of Eurocurrency Rate Advances denominated in
Euros, make available for the account of its Applicable Lending Office to the Agent at the
applicable Agents Account, in same day funds, such Lenders ratable portion of such Borrowing.
After the Agents 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 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 applicable 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, 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 applicable to the US Revolving Credit Facility under
clause (a)
of the definition of 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 Agents Account,
in same day funds. After the Agents 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 US Revolving Lender will purchase from the Swing Line Bank, and the
Swing Line Bank shall sell and assign to each such other US Revolving Lender, such other US
Revolving Lenders 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 Agents 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 US
Revolving 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
Sealed Air Credit Agreement
57
demand is given after such time. Upon any such assignment by the Swing Line Bank to any other
US Revolving Lender of a portion of a Swing Line Advance, the Swing Line Bank represents and
warrants to such other US Revolving 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 US Revolving Lender shall not have so made its Ratable
Share of such Swing Line Advance available to the Agent, such US Revolving Lender agrees to pay to
the Agent forthwith on demand such amount together with interest thereon, for each day from the
date such US Revolving 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 US Revolving 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 US
Revolving Lender on such Business Day for purposes of this Agreement, and the outstanding principal
amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by such amount on
such Business Day.
(c) Anything in subsection (a) above to the contrary notwithstanding, (i) after giving
effect to all Term A Borrowings, CDN Term A Borrowings, JPY Term A Borrowings and Euro Term A
Borrowings, there shall not be more than (W) five Interest Periods in effect in respect of the Term
A Facility, (X) five Interest Periods in effect in respect of the CDN Term A Facility, and (Y) five
Interest Periods in effect in respect of the JPY Term A Facility and (Z) five Interest Periods in
effect in respect of the Euro Term A Facility, (ii) after giving effect to all Term B Borrowings,
there shall not be more than five Interest Periods in effect in respect of the Term B Facility,
(iii) after giving effect to all Euro Term B Borrowings, there shall not be more than five Interest
Periods in effect in respect of the Euro Term B Facility and (iv) after giving effect to all
Revolving Credit Borrowings, there shall not be more than (A) ten Interest Periods in effect in
respect of the US Revolving Credit Facility and (B) ten Interest Periods in effect in respect of
the Multicurrency Revolving Credit Facility.
(d) Each Notice of Borrowing and Notice of Swing Line Borrowing of any Borrower shall be
irrevocable and binding on such Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurocurrency Rate Advances, the Borrower requesting such
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 Borrowing for
such 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
Advance to be made by such Lender as part of such Borrowing when such Advance, as a result of such
failure, is not made on such date.
(e) Unless the Agent shall have received notice from a Lender prior to the time of any
Borrowing under the applicable Revolving Credit Facility that such Lender will not make available
to the Agent such Lenders ratable portion of such Borrowing under the applicable Revolving Credit
Facility, the Agent may assume that such Lender has made such portion available to the Agent on the
date of such Borrowing under the applicable Revolving Credit Facility 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 Borrowing
Sealed Air Credit Agreement
58
under the applicable Revolving Credit Facility 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 Agents 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 interest rate applicable at the time to Advances
comprising such Borrowing under the applicable Revolving Credit Facility 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 JPY or Committed Currencies. If such Lender shall repay to the Agent such corresponding amount,
such amount so repaid shall constitute such Lenders Advance as part of such Borrowing for purposes
of this Agreement.
(f) The failure of any Lender to make the Advance to be made by it as part of any
Borrowing 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
Issuance of and Drawings and Reimbursement Under Letters of Credit.
(a)
Request for Issuance
. Each Letter of Credit issued under a Revolving Credit
Facility shall be issued upon notice (a
Notice of Issuance
), given not later than 11:00
A.M. (New York City time) on the third 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) or 10:30
A.M. (Sydney time) on the fourth Business Day prior to the date of the proposed issuance of such
Letter of Credit if denominated in AU$, by (i) any Borrower under the US Revolving Credit Facility
to any US Issuing Bank and/or (ii) any Borrower under the Multicurrency Revolving Credit Facility
to any Multicurrency Issuing Bank, and in each case of clauses (i) and (ii) of this sentence, such
US Issuing Bank or Multicurrency Issuing Bank, as the case may be, shall give the Agent prompt
notice thereof by facsimile, following its receipt of a Notice of Issuance from the applicable
Borrower; provided that any Letter of Credit requested pursuant to this Agreement may state or
indicate that the Company or any of its Restricted Subsidiaries is the Account Party,
Applicant, applicant, Requesting Party or any similar designation. Each such Notice of
Issuance of a Letter of Credit shall be initially made by telephone, confirmed promptly thereafter
in writing or by facsimile, and shall specify therein the requested (A) date of such issuance
(which shall be a Business Day), (B) Available Amount of such Letter of Credit, (C) Revolving
Credit Facility under which such Letter of Credit is to be issued, (D) if applicable, the Committed
Currency in which such Multicurrency Letter of Credit is to be denominated, (E) expiration date of
such Letter of Credit (which shall not be later than the earlier of five Business Days prior to the
scheduled Termination Date applicable to the
Sealed Air Credit Agreement
59
applicable Revolving Credit Facility (under
clause (a)(i)
of the definition of 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 after such scheduled Termination Date), (F) name and
address of the beneficiary of such Letter of Credit, and (G) form of such Letter of Credit, and
shall be accompanied by such customary application and agreement for issuance of letters 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. Each
Borrower hereby acknowledges and agrees that, notwithstanding anything to the contrary in any
Letter of Credit requested pursuant to or issued under this Agreement which may state or indicate
that the Account Party, Applicant, applicant, Requesting Party or any similar designation
with respect to such requested Letter of Credit is a Person other than the applicable requesting
Borrower, (i) such Borrower is, and shall at all times remain, the Applicant (as defined in
Section 5-102(a) of the Uniform Commercial Code, as in effect in the State of New York) with
respect to each Letter of Credit issued by the Issuing Bank pursuant to a Notice of Issuance, and
(ii) all such Letters of Credit shall constitute Letters of Credit under, and as defined in, this
Agreement.
(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 Revolving Credit Lenders under the applicable Revolving Credit
Facility, such Issuing Bank hereby grants to each such applicable Revolving Credit Lender under
such Revolving Credit Facility, and each such Revolving Credit Lender hereby acquires from such
Issuing Bank, a participation in such Letter of Credit equal to such Lenders 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 of the Revolving Credit Lenders under
each Revolving Credit Facility hereby absolutely and unconditionally agree to pay to the Agent, for
the account of such Issuing Bank under such Revolving Credit Facility, such Revolving Credit
Lenders Ratable Share of each drawing made under a Letter of Credit issued under such Revolving
Credit Facility and funded by such Issuing Bank, and not reimbursed by the applicable Borrower by
payment in full to the Agent not later than 3:00 p.m. (New York City time) on the Business Day
following the date of such payment, in accordance with the terms of this Agreement, or of any
reimbursement payment required to be refunded to any Borrower for any reason. Each Revolving
Credit Lender hereby 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 any
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
Sealed Air Credit Agreement
60
be automatically adjusted to reflect such Lenders Ratable Share of the Available Amount of
such Letter of Credit under the applicable Revolving Credit Facility at each time such Lenders
Revolving Credit Commitment is amended pursuant to an assignment in accordance with
Section
9.07
or otherwise pursuant to this Agreement.
(c)
Drawing and Reimbursement
. Not later than 3:00 p.m. (New York City time) on
the Business Day following the date of any payment by the applicable Issuing Bank under a Letter of
Credit or 3:00 P.M. (Sydney time) on the Business Day following the date of any payment by the
applicable Issuing Bank under a Letter of Credit denominated in AU$, the Company shall pay (or
shall cause the applicable Borrower to pay) to the Agent, an amount equal to the full amount of
such drawing plus all accrued and unpaid interest thereon from the date of such drawing through and
including the date of such payment (which shall accrue at the Base Rate), which amount shall be
payable in the Committed Currency in which such Letter of Credit was issued, and the Agent shall
promptly apply such amount to either (x) reimburse the applicable Issuing Bank for the full amount
of such drawing plus all accrued and unpaid interest thereon, or (y) to the extent that the
Revolving Credit Lenders under the applicable Revolving Credit Facility shall have already funded
participations or Revolving Credit Advances with respect to the payment under such Letter of
Credit, pursuant to
Section 2.03(b)
above or this
Section 2.03(c)
, to pay to each
such Revolving Credit Lender an amount equal to such Revolving Credit Lenders Ratable Share of
such drawing plus all accrued and unpaid interest thereon (which shall accrue at the Base Rate).
If the Company does not comply with the provisions of the preceding sentence, then 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 a Revolving Credit Advance under the applicable
Revolving Credit Facility, which shall be a Base Rate Advance, in the amount of such draft (and if
such Letter of Credit was originally denominated in a Committed Currency other than Dollars, such
deemed Advance shall also automatically be exchanged for an Equivalent amount of Dollars at the
then applicable Spot Rate). The applicable 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 Revolving Credit Lender under the applicable Revolving
Credit Facility shall pay to the Agent such Revolving Credit Lenders Ratable Share of such
outstanding Revolving Credit Advance under such Revolving Credit Facility, 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 Agents 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 Revolving Credit
Lender acknowledges and agrees that its obligation to make Revolving Credit 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 Revolving Credit Lender agrees to fund its Ratable
Share of an outstanding Advance on (i) the Business Day on 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 11:00 A.M. (Sydney time)
Sealed Air Credit Agreement
61
on such Business Day in the case of Advances denominated in AU$, 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 Revolving Credit Lender shall not have so made the amount of such Revolving Credit
Advance available to the Agent, such Revolving Credit 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.
(d)
Letter of Credit Reports
. The applicable Issuing Bank shall furnish (A) to
the Agent (which shall promptly notify the applicable Revolving Credit Lenders) on the first
Business Day of each month a written report summarizing issuance and expiration dates of Letters of
Credit under each Revolving Credit Facility 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.
SECTION 2.04
Incremental Commitments
.
(a) The Company may, by written notice to the Agent from time to time, request Incremental
Term Commitments and/or Incremental Revolving Credit Commitments, as applicable, in an amount not
to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental
Revolving Credit Lenders (which may include any existing Lender) willing to provide such
Incremental Term Advances and/or Incremental Revolving Credit Advances, as the case may be, in
their sole discretion;
provided
, that each Incremental Term Lender and/or Incremental
Revolving Credit Lender (which is not an existing Lender) shall be subject to the approval
requirements of
Section 9.07
. Such notice shall set forth (A) the amount of the
Incremental Term Commitments and/or Incremental Revolving Credit Commitments being requested (which
shall be in minimum increments of $5,000,000 and a minimum amount of $25,000,000 or equal to the
remaining Incremental Amount), (B) the date on which such Incremental Term Commitments and/or
Incremental Revolving Credit Commitments are requested to become effective (the
Increased
Amount Date
) and (C) (i) whether such Incremental Term Commitments are to be commitments to
make term advances (
Other Term Advances
) and/or (ii) whether such Incremental Revolving
Credit Commitments are to be Revolving Credit Commitments or commitments to make revolving advances
with pricing and/or amortization terms different from the Revolving Facility Advances (
Other
Revolving Credit Advances
).
(b) The applicable Borrower and such other Loan Parties as may be required with respect to
such Incremental Term Commitment or Incremental Revolving Credit Commitment and each Incremental
Term Lender and/or Incremental Revolving Credit Lender shall execute and deliver to the Agent an
Incremental Assumption Agreement, guarantor acknowledgments and consents, Notes (if requested in
advance by the applicable Lenders) and such other closing or corporate documentation as the Agent
(acting at the direction of the applicable Incremental Lenders) shall reasonably request. Each
Incremental Assumption Agreement shall specify the terms of the Incremental Term Advances and/or
Incremental Revolving Credit Advances to be made thereunder, and shall be made (x) on terms and
conditions agreed to by the applicable Borrower and the applicable Incremental Lenders, and in a
Sealed Air Credit Agreement
62
form that is reasonably acceptable to the Agent;
provided
, that (i) the Other Term
Advances and Other Revolving Facility Advances shall rank pari passu in right of payment and of
security with the Term Advances and Revolving Credit Advances, as applicable, (ii) the final
maturity date of (A) any Other Term Advances shall be no earlier than the scheduled Termination
Date applicable to the Term B Facility and Euro Term B Facility (as set forth in
clause (c)
of the definition of Termination Date) and/or (B) any Other Revolving Facility Advances shall be
no earlier than the scheduled Termination Date applicable to the Revolving Credit Facilities (under
clause (a)(i)
of the definition of Termination Date), (iii) the weighted average life to
maturity of any Other Term Advances shall be no shorter than the weighted average life to maturity
of the Term B Advances or Euro Term B Advances, (iv) the Other Revolving Facility Advances shall
require no scheduled amortization or mandatory commitment reductions prior to the scheduled
Termination Date applicable to the Revolving Credit Facilities (under
clause (a)(i)
of the
definition of Termination Date), (v) no Default shall have occurred and be continuing or would
result from such Incremental Term Advances and/or Incremental Revolving Credit Advances and (vi) in
the event that the Applicable Margin for any Other Term Advances or Other Revolving Facility
Advances is more than 50 basis points greater than the Applicable Margin for the Term Advances or
Revolving Credit Advances, as applicable, then the Applicable Margin for the Term Advances or
Revolving Credit Advances, as applicable, shall be increased to the extent necessary so that the
Applicable Margin for the Other Term Advances or Other Revolving Facility Advances is no more than
50 basis points greater than the Applicable Margin for the Term Advances or Revolving Credit
Advances, as applicable;
provided
further
, that in determining the Applicable
Margin applicable to the Term Advances, Revolving Credit Advances, Other Term Advances and Other
Revolving Credit Advances, (x) original issue discount (
OID
) or upfront fees (which shall
be deemed to constitute like amounts of OID) payable by such Borrower to the Lenders in the primary
syndication thereof shall be included (with OID being equated to interest based on an assumed
four-year life to maturity), (y) customary arrangement or commitment fees payable to the arrangers
(or their affiliates) of such loans shall be excluded and (z) if the Eurocurrency Rate floor
applicable to the Other Term Advances or Other Revolving Facility Advances is higher than the
Eurocurrency Rate floor applicable to the Term B Advances or Euro Term B Advances or Revolving
Credit Advances, as applicable, then the amount of such difference shall be deemed to be an
increase in the Applicable Margin for the Other Term Advances or Other Revolving Facility Advances
for purposes of determining compliance with this clause (vi) (it being agreed, however, that the
Company may elect to satisfy, at least in part, the requirements of this clause (vi) by increasing
the Eurocurrency Rate floor applicable to the relevant existing Term B Advances or Euro Term B
Advances or Revolving Credit Advances to a rate that is no greater than the Eurocurrency Rate
floor applicable to the applicable Other Term Advances and Other Revolving Credit Advances). The
Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption
Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any
Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the
extent) necessary to reflect the existence and terms of the Incremental Term Commitments and/or
Incremental Revolving Credit Commitments evidenced thereby. Any such deemed amendment may be
memorialized in writing by the Agent with the Companys consent (not to be unreasonably withheld,
delayed or conditioned) and furnished to the other Persons then party to this Agreement.
Sealed Air Credit Agreement
63
(c) Notwithstanding the foregoing, no Incremental Term Commitment or Incremental
Revolving Facility Commitment shall become effective under this
Section 2.04
unless (i) on
the date of such effectiveness, the representations and warranties set forth in
Section
4.01
shall be true and correct and the Agent (acting at the direction of the applicable
Incremental Lenders) shall have received a certificate to that effect dated such date and executed
by a Responsible Officer of the Borrower, (ii) the Agent shall have received legal opinions, board
resolutions and other closing certificates and documentation as required by the relevant
Incremental Assumption Agreement and consistent with those delivered on the Closing Date under
Section 3.01
and such additional documents and filings (including amendments to the
Mortgages and other Security Documents and title endorsement bringdowns) as the Agent may
reasonably require to assure that the Incremental Term Advances and/or Incremental Revolving
Facility Advances are secured by the Collateral ratably with the existing Term Advances and
Revolving Credit Advances, and (iii) the Borrowers would be in Pro Forma Compliance, calculated as
of the last day of the most recently ended fiscal quarter for which financial statements delivered
under Section 5.01(a)(i) are available, determined on a Pro Forma Basis giving effect to such
Incremental Term Commitment and/or Incremental Revolving Credit Commitments (assuming for such
purpose that any such Incremental Revolving Credit Commitments are fully drawn) and the Advances to
be made thereunder and the application of the proceeds therefrom as if made and applied on such
date.
(d) Each of the parties hereto hereby agrees that the Agent may take any and all action as may
be reasonably necessary to ensure that all Incremental Term Advances and/or Incremental Revolving
Facility Advances (other than Other Term Advances or Other Revolving Credit Advances), when
originally made, are included in each Borrowing of outstanding Term Advances or Revolving Facility
Advances on a pro rata basis.
SECTION 2.05
Fees
. (a)
Commitment Fee
. The Company will pay, or will cause another
Borrower to pay (with regard to the Japanese Borrower, to the extent permitted by Japanese Law, if
applicable), to the Agent for the account of each Revolving Credit Lender under the applicable
Revolving Credit Facility (other than any Defaulting Lender), three Business Days after the last
day of March, June, September and December in each year, and on the Termination Date of such
Revolving Credit Facility (pursuant to
clause (a)
of the definition of Termination Date),
a commitment fee (the
Commitment Fee
) on the daily amount of the Unused Revolving Credit
Commitments of such Revolving Credit Facility Lender during the preceding quarter (or shorter
period commencing with the Closing Date or ending with such Termination Date), which shall accrue
at 0.50% per annum;
provided
such rate per annum shall be reduced to 0.375% per annum for
any period in which the Net Total Leverage Ratio, calculated as of the last day of the most
recently ended and reported fiscal quarter, is equal to or less than 2.75:1.00. All Commitment
Fees shall be computed on the basis of the actual number of days elapsed in a year of 360 days.
For the purpose of calculating any US Revolving Lenders Commitment Fee, the outstanding Swing Line
Advances during the period for which such US Revolving Lenders Commitment Fee is calculated shall
be deemed to be zero. The Commitment Fee due to each Revolving Credit Lender shall commence to
accrue on the Closing Date and shall cease to accrue on the Termination Date applicable to such
Revolving Credit Facility.
Sealed Air Credit Agreement
64
(b)
Letter of Credit Fees
. (i) The Company will pay, or will cause another Borrower
to pay (with regard to the Japanese Borrower, to the extent permitted by Japanese Law, if
applicable), to the Agent for the account of each Revolving Credit Lender a commission on such
Revolving Credit Lenders Ratable Share of the average daily aggregate Available Amount of all
Letters of Credit under each Revolving Credit Facility issued and outstanding from time to time at
a rate per annum equal to the Applicable Margin for Eurocurrency Rate Advances for Revolving Credit
Advances in effect from time to time during each calendar quarter, payable in arrears quarterly
within three Business Days after the last day of each March, June, September and December,
commencing with the quarter ended December 31, 2011, and on the Termination Date (pursuant to
clause (a)
of the definition of Termination Date) and thereafter payable upon demand.
(ii) The Company will pay (with regard to the Japanese Borrower, to the extent permitted
by Japanese Law, if applicable), or will cause another Borrower to pay, to the respective
Issuing Bank, for its own account, (x) a fronting fee equal to 0.125% per annum on the
aggregate face amount of each Letter of Credit issued by such Issuing Bank under the
applicable Revolving Credit Facility and (y) other customary administrative, issuance,
amendment and other charges.
(c)
Agents Fees
. The Company will pay (with regard to the Japanese Borrower, to the
extent permitted by Japanese Law, if applicable), or will cause another Borrower to pay, to the
Agent for its own account such fees as may from time to time be agreed between the Company and the
Agent.
(d)
Defaulting Lender
. Anything herein to the contrary notwithstanding, during such
period as a Lender is a Defaulting Lender, such Defaulting Lender shall not be entitled to any fees
accruing during such period pursuant to
Section 2.19(b)(iii)
and this
Section 2.05
(without prejudice to the rights of the Non-Defaulting Lenders in respect of such fees),
provided
that (a) to the extent that a portion of the L/C Exposure or Swing Line Exposure
of such Defaulting Lender is reallocated to the Non-Defaulting Lenders pursuant to
Section
2.19(a)
, such fees that would have accrued for the benefit of such Defaulting Lender shall
instead accrue for the benefit of and be payable to such Non-Defaulting Lenders,
pro
rata
in accordance with their respective Commitments, and (b) to the extent of any portion
of such L/C Exposure or Swing Line Exposure that cannot be so reallocated such fees shall instead
accrue for the benefit of and be payable to the Issuing Banks and the Swing Line Bank as their
interests appear (and the
pro
rata
payment provisions of
Section 2.19(b)
shall automatically be deemed adjusted to reflect the provisions of this Section).
SECTION 2.06
Termination or Reduction of the Commitments
. (a)
Optional
. The Company
shall have the right, upon at least five Business Days notice to the Agent, to terminate in whole
or permanently reduce, ratably among the Revolving Credit Lenders under the applicable Revolving
Credit Facility (except as otherwise permitted by
Section 2.19
), the respective Unused
Revolving Credit Commitments of such 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.
Sealed Air Credit Agreement
65
(b)
Mandatory
.
(i) The aggregate Term Commitments under each Term Facility shall be automatically and
permanently reduced to zero on the date of the Borrowings in respect of such Term Facility.
(ii) If, after giving effect to any reduction or termination of US Revolving Credit
Commitments under this
Section 2.06
, the aggregate amount of the US Letter of Credit
Sublimit plus the Swing Line Sublimit exceeds the total amount of the US Revolving Credit
Facility at such time, then the US Letter of Credit Sublimit and/or the Swing Line Sublimit
shall be automatically reduced by the amount of such excess (
provided
, that the
Company may determine the allocation of reductions between the US Letter of Credit Sublimit
and/or the Swing Line Sublimit, except to the extent that its ability to reduce the US
Letter of Credit Sublimit is limited by outstanding Letters of Credit and/or Unpaid
Amounts).
(iii) If, after giving effect to any reduction or termination of Multicurrency
Revolving Credit Commitments under this
Section 2.06
, the aggregate amount of the
Multicurrency Letter of Credit Sublimit exceeds the total amount of the Multicurrency
Revolving Credit Facility at such time, then the Multicurrency Letter of Credit Sublimit
shall be automatically reduced by the amount of such excess.
(c)
Termination of Defaulting Lender
. The Company may terminate the unused amount of
the Commitment of any Lender that is a Defaulting Lender upon not less than five Business Days
prior notice to the Agent (which shall promptly notify the Lenders thereof), and in such event the
provisions of
Section 2.19(b)
will apply to all amounts thereafter paid by the Company for
the account of such Defaulting Lender under this Agreement (whether on account of principal,
interest, fees, indemnity or other amounts),
provided
that (i) no Event of Default shall
have occurred and be continuing and (ii) such termination shall not be deemed to be a waiver or
release of any claim the Borrower, the Agent, the Issuing Banks, the Swing Line Bank or any Lender
may have against such Defaulting Lender.
SECTION 2.07
Repayment of Advances
. (a)
(i)
Term A Advances
. The Company shall repay to the Term A Lenders, in
Dollars, the aggregate principal amount of all Term A Advances outstanding on the following
dates in the respective amounts set forth opposite such dates (which amounts shall be
reduced as a result of the application of prepayments in accordance with the order or
priority set forth in
Section 2.11
):
|
|
|
|
|
Principal Amortization Payment
|
|
|
(shown as a % of
|
Date
|
|
Original Principal Amount)
|
December 31, 2011
|
|
1.25%
|
March 31, 2012
|
|
1.25%
|
June 30, 2012
|
|
1.25%
|
September 30, 2012
|
|
1.25%
|
December 31, 2012
|
|
2.50%
|
March 31, 2013
|
|
2.50%
|
Sealed Air Credit Agreement
66
|
|
|
|
|
Principal Amortization Payment
|
|
|
(shown as a % of
|
Date
|
|
Original Principal Amount)
|
June 30, 2013
|
|
2.50%
|
September 30, 2013
|
|
2.50%
|
December 31, 2013
|
|
2.50%
|
March 31, 2014
|
|
2.50%
|
June 30, 2014
|
|
2.50%
|
September 30, 2014
|
|
2.50%
|
December 31, 2014
|
|
6.25%
|
March 31, 2015
|
|
6.25%
|
June 30, 2015
|
|
6.25%
|
September 30, 2015
|
|
6.25%
|
December 31, 2015
|
|
12.50%
|
March 31, 2016
|
|
12.50%
|
June 30, 2016
|
|
12.50%
|
October 3, 2016
|
|
Outstanding Principal Amount
|
|
|
Total:
|
|
100.00%
|
|
|
provided
,
however
, that the final principal repayment installment of the
Term A Advances shall be repaid on the Termination Date applicable to the Term A Facility
(under
clause (b)
of the definition of Termination Date) and in any event shall be
in an amount equal to the aggregate principal amount of all Term A Advances outstanding on
such date.
(ii)
CDN Term A Advances
. The CDN Borrower shall repay, or cause to be repaid,
to the CDN Term A Lenders, in CDN, the aggregate principal amount of all CDN Term A Advances
outstanding on the following dates in the respective amounts set forth opposite such dates
(which amounts shall be reduced as a result of the application of prepayments in accordance
with the order or priority set forth in
Section 2.11
):
|
|
|
|
|
Principal Amortization Payment
|
|
|
(shown as a % of
|
Date
|
|
Original Principal Amount)
|
December 31, 2011
|
|
1.25%
|
March 31, 2012
|
|
1.25%
|
June 30, 2012
|
|
1.25%
|
September 30, 2012
|
|
1.25%
|
December 31, 2012
|
|
2.50%
|
March 31, 2013
|
|
2.50%
|
June 30, 2013
|
|
2.50%
|
September 30, 2013
|
|
2.50%
|
December 31, 2013
|
|
2.50%
|
March 31, 2014
|
|
2.50%
|
June 30, 2014
|
|
2.50%
|
September 30, 2014
|
|
2.50%
|
Sealed Air Credit Agreement
67
|
|
|
|
|
Principal Amortization Payment
|
|
|
(shown as a % of
|
Date
|
|
Original Principal Amount)
|
December 31, 2014
|
|
6.25%
|
March 31, 2015
|
|
6.25%
|
June 30, 2015
|
|
6.25%
|
September 30, 2015
|
|
6.25%
|
December 31, 2015
|
|
12.50%
|
March 31, 2016
|
|
12.50%
|
June 30, 2016
|
|
12.50%
|
October 3, 2016
|
|
Outstanding Principal Amount
|
|
|
Total:
|
|
100.00%
|
|
|
provided
,
however
, that the final principal repayment installment of the CDN
Term A Advances shall be repaid on the Termination Date applicable to the CDN Term A
Facility (under
clause (b)
of the definition of Termination Date) and in any event
shall be in an amount equal to the aggregate principal amount of all CDN Term A Advances
outstanding on such date.
(iii)
JPY Term A Advances
. The JPY Borrower shall repay, or cause to be
repaid, to the JPY Term A Lenders, in JPY, the aggregate principal amount of all JPY Term A
Advances outstanding on the following dates in the respective amounts set forth opposite
such dates (which amounts shall be reduced as a result of the application of prepayments in
accordance with the order or priority set forth in
Section 2.11
):
|
|
|
|
|
Principal Amortization Payment
|
|
|
(shown as a % of
|
Date
|
|
Original Principal Amount)
|
December 31, 2011
|
|
1.25%
|
March 31, 2012
|
|
1.25%
|
June 30, 2012
|
|
1.25%
|
September 30, 2012
|
|
1.25%
|
December 31, 2012
|
|
2.50%
|
March 31, 2013
|
|
2.50%
|
June 30, 2013
|
|
2.50%
|
September 30, 2013
|
|
2.50%
|
December 31, 2013
|
|
2.50%
|
March 31, 2014
|
|
2.50%
|
June 30, 2014
|
|
2.50%
|
September 30, 2014
|
|
2.50%
|
December 31, 2014
|
|
6.25%
|
March 31, 2015
|
|
6.25%
|
June 30, 2015
|
|
6.25%
|
September 30, 2015
|
|
6.25%
|
December 31, 2015
|
|
12.50%
|
March 31, 2016
|
|
12.50%
|
Sealed Air Credit Agreement
68
|
|
|
|
|
Principal Amortization Payment
|
|
|
(shown as a % of
|
Date
|
|
Original Principal Amount)
|
June 30, 2016
|
|
12.50%
|
October 3, 2016
|
|
Outstanding Principal Amount
|
|
|
Total:
|
|
100.00%
|
|
|
provided
,
however
, that the final principal repayment installment of the JPY
Term A Advances shall be repaid on the Termination Date applicable to the JPY Term A
Facility (under
clause (b)
of the definition of Termination Date) and in any event
shall be in an amount equal to the aggregate principal amount of all JPY Term A Advances
outstanding on such date.
(iv)
Euro Term A Advances
. The Euro TLA Borrowers shall repay, or cause to be
repaid, to the Euro Term A Lenders, in Euros, the aggregate principal amount of all Euro
Term A Advances outstanding on the following dates in the respective amounts set forth
opposite such dates (which amounts shall be reduced as a result of the application of
prepayments in accordance with the order or priority set forth in
Section 2.11
):
|
|
|
|
|
Principal Amortization Payment
|
|
|
(shown as a % of
|
Date
|
|
Original Principal Amount)
|
December 31, 2011
|
|
1.25%
|
March 31, 2012
|
|
1.25%
|
June 30, 2012
|
|
1.25%
|
September 30, 2012
|
|
1.25%
|
December 31, 2012
|
|
2.50%
|
March 31, 2013
|
|
2.50%
|
June 30, 2013
|
|
2.50%
|
September 30, 2013
|
|
2.50%
|
December 31, 2013
|
|
2.50%
|
March 31, 2014
|
|
2.50%
|
June 30, 2014
|
|
2.50%
|
September 30, 2014
|
|
2.50%
|
December 31, 2014
|
|
6.25%
|
March 31, 2015
|
|
6.25%
|
June 30, 2015
|
|
6.25%
|
September 30, 2015
|
|
6.25%
|
December 31, 2015
|
|
12.50%
|
March 31, 2016
|
|
12.50%
|
June 30, 2016
|
|
12.50%
|
October 3, 2016
|
|
Outstanding Principal Amount
|
|
|
Total:
|
|
100.00%
|
|
|
Sealed Air Credit Agreement
69
provided
,
however
, that the final principal repayment installment of the
Euro Term A Advances shall be repaid on the Termination Date applicable to the Euro Term A
Facility (under
clause (b)
of the definition of Termination Date) and in any event
shall be in an amount equal to the aggregate principal amount of all Euro Term A Advances
outstanding on such date.
(b) (i)
Term B Advances
. The Company shall repay, or cause to be repaid, to
the Term B Lenders, in Dollars, the aggregate principal amount of all Term B Advances
outstanding on the following dates in the respective amounts set forth opposite such dates
(which amounts shall be reduced as a result of the application of prepayments in accordance
with
Section 2.07(h)
and
Section 2.11
):
|
|
|
|
|
Principal Amortization Payment
|
|
|
(shown as a % of
|
Date
|
|
Original Principal Amount)
|
December 31, 2011
|
|
0.25%
|
March 31, 2012
|
|
0.25%
|
June 30, 2012
|
|
0.25%
|
September 30, 2012
|
|
0.25%
|
December 31, 2012
|
|
0.25%
|
March 31, 2013
|
|
0.25%
|
June 30, 2013
|
|
0.25%
|
September 30, 2013
|
|
0.25%
|
December 31, 2013
|
|
0.25%
|
March 31, 2014
|
|
0.25%
|
June 30, 2014
|
|
0.25%
|
September 30, 2014
|
|
0.25%
|
December 31, 2014
|
|
0.25%
|
March 31, 2015
|
|
0.25%
|
June 30, 2015
|
|
0.25%
|
September 30, 2015
|
|
0.25%
|
December 31, 2015
|
|
0.25%
|
March 31, 2016
|
|
0.25%
|
June 30, 2016
|
|
0.25%
|
September 30, 2016
|
|
0.25%
|
December 31, 2016
|
|
0.25%
|
March 31, 2017
|
|
0.25%
|
June 30, 2017
|
|
0.25%
|
September 30, 2017
|
|
0.25%
|
December 31, 2017
|
|
0.25%
|
March 31, 2018
|
|
0.25%
|
June 30, 2018
|
|
0.25%
|
October 3, 2018
|
|
Outstanding Principal Amount
|
|
|
Total:
|
|
100.00%
|
|
|
Sealed Air Credit Agreement
70
provided
,
however
, that the final principal repayment installment of the
Term B Advances shall be repaid on the Termination Date applicable to the Term B Facility
(under
clause (c)
of the definition of Termination Date) and in any event shall be
in an amount equal to the aggregate principal amount of all Term B Advances outstanding on
such date.
(ii)
Euro Term B Advances
. The Euro TLB Borrowers shall repay, or cause to be
repaid, to the Euro Term B Lenders, in Euros, the aggregate principal amount of all Euro
Term B Advances outstanding on the following dates in the respective amounts set forth
opposite such dates (which amounts shall be reduced as a result of the application of
prepayments in accordance with
Section 2.07(h)
and
Section 2.11
):
|
|
|
|
|
Principal Amortization Payment
|
|
|
(shown as a % of
|
Date
|
|
Original Principal Amount)
|
December 31, 2011
|
|
0.25%
|
March 31, 2012
|
|
0.25%
|
June 30, 2012
|
|
0.25%
|
September 30, 2012
|
|
0.25%
|
December 31, 2012
|
|
0.25%
|
March 31, 2013
|
|
0.25%
|
June 30, 2013
|
|
0.25%
|
September 30, 2013
|
|
0.25%
|
December 31, 2013
|
|
0.25%
|
March 31, 2014
|
|
0.25%
|
June 30, 2014
|
|
0.25%
|
September 30, 2014
|
|
0.25%
|
December 31, 2014
|
|
0.25%
|
March 31, 2015
|
|
0.25%
|
June 30, 2015
|
|
0.25%
|
September 30, 2015
|
|
0.25%
|
December 31, 2015
|
|
0.25%
|
March 31, 2016
|
|
0.25%
|
June 30, 2016
|
|
0.25%
|
September 30, 2016
|
|
0.25%
|
December 31, 2016
|
|
0.25%
|
March 31, 2017
|
|
0.25%
|
June 30, 2017
|
|
0.25%
|
September 30, 2017
|
|
0.25%
|
December 31, 2017
|
|
0.25%
|
March 31, 2018
|
|
0.25%
|
June 30, 2018
|
|
0.25%
|
October 3, 2018
|
|
Outstanding Principal Amount
|
|
|
Total:
|
|
100.00%
|
|
|
Sealed Air Credit Agreement
71
provided
,
however
, that the final principal repayment installment of the
Euro Term B Advances shall be repaid on the Termination Date applicable to the Euro Term B
Facility (under
clause (d)
of the definition of Termination Date) and in any event
shall be in an amount equal to the aggregate principal amount of all Euro Term B Advances
outstanding on such date.
(c)
US Revolving Credit Advances
. Each Borrower thereunder shall repay to the Agent
for the ratable account of the US Revolving Lenders on the Termination Date applicable to the US
Revolving Credit Facility (under
clause (a)
of the definition of Termination Date), in
Dollars the aggregate principal amount of the Revolving Credit Advances made to it and then
outstanding.
(d)
Multicurrency Revolving Credit Advances
. Each Borrower thereunder shall repay to
the Agent for the ratable account of the Multicurrency Revolving Lenders on the Termination Date
applicable to the Multicurrency Revolving Credit Facility (under
clause (a)
of the
definition of Termination Date) the aggregate principal amount of the Multicurrency Revolving
Credit Advances made to it and then outstanding;
provided
, that each Multicurrency
Revolving Credit Advance shall be repaid in the Committed Currency in which such Multicurrency
Revolving Credit Advance was borrowed.
(e)
Swing Line Advances
. Each Borrower of a Swing Line Borrowing shall repay to the
Agent for the account of (i) the Swing Line Bank and (ii) each other US Revolving Lender which has
made a Swing Line Advance by purchase from the Swing Line Bank pursuant to
Section 2.02(b)
,
in Dollars, the outstanding principal amount of each Swing Line Advance made to such Borrower on
the Swing Line Advance Maturity Date specified in the applicable Notice of Swing Line Borrowing.
(f)
Incremental Advances
. In the event that any Incremental Advances are made on an
Increased Amount Date, the applicable Borrower shall repay such Incremental Advances on the dates
and in the amounts set forth in the Incremental Assumption Agreement.
(g)
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
reimburse a drawing under a Letter of Credit, or to repay any Revolving Credit Advance that results
from payment of a drawing under a Letter of Credit, shall in any event 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 such 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 such Borrower thereof):
(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
);
Sealed Air Credit Agreement
72
(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 Borrowers obligations hereunder.
(h)
Application of Payments
. Subject to
Section 2.19
, prepayments from:
(i) Except as otherwise provided in
Section 2.11(c)
, all Net Cash Proceeds
pursuant to
Section 2.11(b)(ii)
and Excess Cash Flow pursuant to
Section
2.11(b)(iii)
to be applied to prepay Term Advances shall be applied (A) to reduce on a
pro rata basis (based on the relative size of such amortization payments) in direct order of
occurrence the next eight unpaid quarterly scheduled amortization payments under paragraphs
(a) and (b) above in respect of the Term A Advances, CDN Term A Advances, JPY Term A
Advances, Euro Term A Advances, Term B Advances and Euro Term B Advances, and (B)
thereafter, to reduce on a pro rata basis the remaining scheduled amortization payments in
respect of the Term A Advances, CDN Term A Advances, JPY Term A Advances, Euro Term A Advances, Term B Advances and Euro Term B
Advances; and
(ii) any optional prepayments of the Term Advances pursuant to
Section 2.11(a)
shall be applied to reduce the remaining scheduled amortization payments of the either the
Term A Advances, CDN Term A Advances, JPY Term A Advances, Euro Term A Advances, Term B
Advances or the Euro Term B Advances, as directed by the Company in its sole discretion,
provided
such optional prepayments will be applied on a pro rata basis within each
of the selected Term Facilities.
Sealed Air Credit Agreement
73
(i) Notwithstanding anything to the contrary in this Agreement, no Excluded Foreign Subsidiary
shall be obligated to repay any Advance or loan made to the Company or any of its Domestic
Subsidiaries or any other obligation of the Company or any of its Domestic Subsidiaries.
SECTION 2.08
Interest on Advances
. (a)
Scheduled Interest
. Each Borrower shall pay
interest (computed in accordance with Section 2.14) on the unpaid principal amount of each Advance
owing by it 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 Advance is a Base Rate
Advance and for each Swing Line Advance, a rate per annum equal at all times to the sum of
(x) the Base Rate in effect from time to time
plus
(y) the Applicable Margin in
effect from time to time, payable in arrears (A) in the case of a Base Rate Advance that is
not a Swing Line Advance, quarterly on the last Business Day of each March, June, September
and December during such periods and on the date such Base Rate Advance shall be Converted
or paid in full or (B) in the case of a Base Rate Advance that is a Swing Line Advance, on
the date such Swing Line Advance shall be paid in full, in each case payable in Dollars.
(ii)
Eurocurrency Rate Advances
. During such periods as such Advance is a
Eurocurrency Rate Advance, a rate per annum equal at all times during each Interest Period
for such Advance to the sum of (x) the Eurocurrency Rate for such Interest Period for such
Advance
plus
(y) the Applicable Margin in effect 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, in each case payable in the Committed Currency
(or JPY, in applicable) in which the applicable Advance was borrowed.
(b)
Default Interest
. If all or a portion of (i) the principal amount of any Advance
or (ii) any interest payable thereon shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate per annum which is
the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this
Section 2.08
plus 2.00% per annum from the date of such non-payment
until such amount is paid in full. If all or a portion of any fee or other amount payable under
this Agreement that is not specified in clause (i) or (ii) above shall not be paid when due, then
such amount shall bear interest at a rate per annum equal to the rate per annum then required to be
paid on Base Rate Advances plus 2.00% from the date of such non-payment until such amount is paid
in full. For purposes of this Agreement, principal shall be overdue only if not paid in
accordance with the provisions of
Section 2.07.
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. 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
Sealed Air Credit Agreement
74
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 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 JPY or a Committed Currency (other than Dollars),
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 JPY or 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 JPY or a Committed Currency
(other than Dollars), 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
$5,000,000, 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 JPY or a Committed Currency
Sealed Air Credit Agreement
75
(other than Dollars), 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, upon the request
of the Required Lenders, (i) each Eurocurrency Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, (A) if such Eurocurrency Rate Advance is denominated in
Dollars, be Converted into Base a Rate Advance and (B) if such Eurocurrency Rate Advance is
denominated in JPY or a Committed Currency (other than Dollars), be exchanged for an Equivalent
amount of Dollars and be Converted into a Base Rate Advance and (ii) the obligation of the Lenders
to make, or to Convert Advances into, Eurocurrency Rate Advances shall be automatically suspended.
(f) If Reuters Page EURIBOR01 (or its successor or substitute page) is unavailable
and
fewer than two Reference Banks furnish timely information to the Agent for determining the
Eurocurrency Rate for any Eurocurrency Rate Advances, then:
(i) the Agent shall forthwith notify the Company and the relevant Borrower and the
Lenders that the interest rate cannot be determined for such Eurocurrency Rate Advances,
(ii) each such Eurocurrency Rate Advances 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 JPY or a Committed Currency (other than Dollars), 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 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.
(g) For the purposes of the
Interest Act
(Canada) and disclosure thereunder, whenever any
interest or any fee to be paid hereunder or in connection herewith is to be calculated on the basis
of a 360-day or 365-day year, the yearly rate of interest to which the rate used in such
calculation is equivalent is the rate so used multiplied by the actual number of days in the
calendar year in which the same is to be ascertained and divided by 360 or 365, as applicable. The
rates of interest under this Agreement are nominal rates, and not effective rates or yields. The
principle of deemed reinvestment of interest does not apply to any interest calculation under this
Agreement.
(h) If any provision of this Agreement would oblige the CDN Borrower to make any payment of
interest or other amount payable to any Lender in an amount or calculated at a rate which would be
prohibited by applicable Law or would result in a receipt by that Lender of interest at a
criminal rate (as such terms are construed under the
Criminal Code
(Canada)), then,
notwithstanding such provision, such amount or rate shall be deemed to have
Sealed Air Credit Agreement
76
been adjusted with
retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be
so prohibited by Law or so result in a receipt by that Lender of interest at a criminal rate,
such adjustment to be effected, to the extent necessary (but only to the extent necessary), as
follows (i) first, by reducing the amount or rate of interest required to be paid to the affected
Lender under Section 2.08 and (ii) thereafter, by reducing any fees, commissions, costs, expenses,
premiums and other amounts required to be paid to the affected Lender which would constitute
interest for purposes of section 347 of the
Criminal Code
(Canada).
SECTION 2.10
Optional Conversion of Advances
. Each Borrower may on any Business Day, upon notice
given to the Agent (x) 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
in the case of conversion of Base Rate Advances to Eurocurrency Rate Advances, and
(y) not later than 11:00 A.M. (New York City time) on the date of the proposed conversion in the
case of conversion of Eurocurrency Rate Advances to Base Rate Advances, Convert all Advances
denominated in Dollars of one Type comprising the same Borrowing into Advances denominated in
Dollars of the other Type (
provided
,
however
, that the Conversion of Eurocurrency
Rate Advances into Base Rate Advances made on any date other than the last day of an Interest
Period for such Eurocurrency Rate Advances shall be subject to the payment by the Borrowers of
breakage and other costs pursuant to Section 9.04(c)), any Conversion of Base Rate Advances into
Eurocurrency Rate Advances shall be in an amount not less than the Eurocurrency Rate Borrowing
Minimum or the Eurocurrency Rate Borrowing Multiple in excess thereof and no Conversion of any
Advances shall result in more separate Borrowings than permitted under
Section 2.02(a)
.
Each such notice of a Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Dollar denominated 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 Term Advances, Revolving Credit Advances and Swing Line Advances
. (a)
Optional
. (i) Each Borrower may, upon notice at least three Business Days prior
to the date of such prepayment (or in the case of Advances denominated in AU$, at least five
Business Days) (which notice shall be revocable by the applicable Borrower only to the extent that
such prepayment notice stated that such prepayment was conditioned upon the effectiveness of other
credit facilities, in which case such notice may be revoked by the applicable Borrower (by written
notice from the Company to the Agent on or prior to the specified effective date) if such condition
to prepayment is or will not be satisfied), in the case of Eurocurrency Rate Advances, and not
later than 11:00 A.M. (New York City time), or 10:30 A.M. Sydney time in the case of AU$ Advances,
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 Term Advances comprising part of the
same Term Borrowing, 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 (x) each partial prepayment shall be in an
aggregate principal amount of (A) not less than $1,000,000 or a whole multiple of $100,000 in
excess thereof in the case of a Term Advance, (B) not less than the Revolving Credit Borrowing
Minimum or a Revolving Credit
Sealed Air Credit Agreement
77
Borrowing Multiple in excess thereof in the case of Revolving Credit
Advances or (V) not less than $500,000 or an integral multiple thereof in the case of Swing Line
Advances and (y) in the event of any such prepayment of a Eurocurrency Rate Advance, other than on
the last day of an Interest Period thereunder, the Borrower making such prepayment shall be
obligated to reimburse the Lenders in respect thereof pursuant to
Section 9.04(c)
;
(ii) At the time of the effectiveness of any Repricing Transaction that is consummated
prior to the first anniversary of the Closing Date, the Borrowers agree to pay to the Agent,
for the ratable account of each Lender with outstanding Term B Advances which are repaid or
prepaid pursuant to such Repricing Transaction, a fee in an amount equal to 1.00% of the
aggregate principal amount of all Term B Advances prepaid in connection with such Repricing
Transaction. Such fees shall be due and payable upon the date of the effectiveness of such
Repricing Transaction.
(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 Available Amount of all Letters of Credit
denominated in Dollars then outstanding
plus
(B) the Equivalent in Dollars (determined on
the second 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 Available
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, prepay or cause to be prepaid 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) The Company shall, within five Business Days (or in the case of any Indebtedness
incurred pursuant to Section 5.02(b)(xiv), ten Business Days) of receipt by the Company or
any Restricted Subsidiary of Net Cash Proceeds arising from (A) any Asset Disposition in
respect of a sale or other disposition of any property or assets of the Company or any such
Restricted Subsidiary but excluding any Asset Disposition permitted by
Sections
5.02(e)(ii)
,
(iv)
through
(vii)
,
(ix)
,
(xi)
and
(xv)
, (B) any Insurance and Condemnation Event with respect to any property of the
Company or any Restricted Subsidiary in excess of $10,000,000 or (C) the issuance or
incurrence of Indebtedness by the Company or any Restricted Subsidiary (other than
Indebtedness permitted by
Section 5.02(b)
, except as provided in
subsection
(b)(xi)
or
(b)(xiv)
thereof), immediately pay or cause to be paid to the Agent
for the account of the Lenders an amount equal to 100% of such Net Cash Proceeds;
provided
,
however
, that, so long as no Event of Default shall have occurred
and be continuing the Company may, upon any such receipt of
Sealed Air Credit Agreement
78
proceeds referred to in
clause (A)
or
(B)
, reinvest such Net Cash Proceeds in the business of the
Company or any Subsidiary, within the earlier of (I) the last Termination Date scheduled to
occur under the definition thereof and (II) the later of (A) 12 months following the date of
receipt of such Net Cash Proceeds and (B) 18 months following the date of receipt of such
Net Cash Proceeds if the Company or such Restricted Subsidiary has committed to reinvest
such proceeds within such 12 month period referred to in clause (A).
(iii) Not later than 90 days after the end of each Excess Cash Flow Period, the Company
shall calculate Excess Cash Flow for such Excess Cash Flow Period and an amount equal to 50%
the amount by which (A) Excess Cash Flow exceeds (B) the
sum
of (1) the aggregate
principal amount of voluntary prepayments of Term Advances pursuant to
Section
2.11(a)
and (2) permanent voluntary reductions of Revolving Facility Commitments
pursuant to
Section 2.06(a)
, in each case, during the period from the beginning of
such Excess Cash Flow Period to the date of payment of Excess Cash Flow for such Excess Cash
Flow Period (but excluding any such prepayments or reductions which reduce the payment due
under this subsection in respect of any preceding Excess Cash Flow Period), shall be applied
to prepay Term Advances in accordance with
Section 2.07(h)
;
provided
, that
the foregoing percentage shall be reduced to (i) 25% if the Net Total Leverage Ratio is
equal to or less than 3.00:1.00 and (ii) 0% if the Net Total Leverage Ratio is equal to or
less than 2.00:1.00,
provided
,
further
, that to the extent any Term Advance
is prepaid at a discount to par, for purpose of this subsection (b)(iii), the amount of such
prepayment shall be the actual amount of cash expended for such prepayment and not the face
amount of such Term Advance.
(iv) 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 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.
(c) Notwithstanding anything to the contrary contained in this
Section 2.11
or any
other provision of this Agreement, the Company may prepay any outstanding Term Advances at a
discount to par pursuant to one or more auctions (each, an
Auction
) on the following
basis (any such prepayment, an
Auction Prepayment
):
(i) All Term Lenders (other than Defaulting Lenders) with respect to the applicable
Term Facility shall be permitted (but not required) to participate in each Auction. Any
such Lender who elects to participate in an Auction may choose to offer all or part of such
Lenders Term Advance of the applicable Term Facility for prepayment.
(ii) Each Auction Prepayment shall be subject to the conditions that (A) the Agent
shall have received a certificate to the effect that (I) immediately prior to and after
giving effect to the Auction Prepayment, no Default shall have occurred and be
Sealed Air Credit Agreement
79
continuing,
(II) as of the date of the Auction Notice (as defined in
Exhibit M
), the Company is
not in possession of any material non-public information with respect to the Company or any
of its Subsidiaries that either (x) has not been disclosed to the Lenders (other than
Lenders that do not wish to receive material non-public information with respect to Borrower
or any of its Restricted Subsidiaries) prior to such date or (y) if not disclosed to the
Lenders, could reasonably be expected to have a Material Adverse Effect upon, or otherwise
be material to, (1) a Lenders decision to participate in any Auction or (2) the market
price of the Term Advances subject to such Auction, and (III) each of the conditions to such
Auction Prepayment has been satisfied, (B) each offer of prepayment made pursuant to this
Section 2.11(c)
must be in an amount not less than $1,000,000, (C) no Auction
Prepayment shall be made from the proceeds of any Revolving Credit Advance or Swing Line
Advance, and (D) any Auction Prepayment shall be offered to all Lenders with Term Advances
on a pro rata basis.
(iii) All Term Advances prepaid by the Company pursuant to this
Section 2.11(c)
shall be accompanied by all accrued interest on the par principal amount so prepaid to, but
not including, the date of the Auction Prepayment. Auction Prepayments shall not be subject
to
Section 9.04(c)
. The par principal amount of Term Advances prepaid pursuant to
this
Section 2.11(c)
shall be applied pro rata to reduce the remaining scheduled
installments of principal thereof pursuant to
Section 2.07(a)
through
(d)
,
as applicable.
(iv) The aggregate principal amount (calculated on the face amount thereof) of all Term
Advances so purchased by the Company shall automatically be cancelled and retired by the
Company on the settlement date of the relevant purchase (and may not be resold).
(v) Each Auction shall comply with the Auction Procedures and any such other procedures
established by the Agent in its reasonable discretion and agreed to by the Borrowers.
(vi) This
Section 2.11(c)
shall neither (A) require the Company to undertake
any Auction nor (B) limit or restrict the Company from making voluntary prepayments of Term
Advances in accordance with
Section 2.11(a)
.
SECTION 2.12
Increased Costs
. (a) If, after the date hereof, 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, and for the avoidance of doubt, including any changes
resulting from (A) requests, rules, guidelines or directives issued in connection with the
Dodd-Frank Wall Street Reform and Consumer Protection Act and (B) all requests, rules, guidelines
or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, and in each case for both clauses (A) and (B),
regardless of the date enacted, adopted or issued), there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining
Sealed Air Credit Agreement
80
Eurocurrency 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 (x) taxes other than taxes on
its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits,
reserves, other liabilities or capital attributable thereto and (y) Excluded Taxes), 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, showing calculations in reasonable detail,
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 in each case made subsequent to the
date hereof (whether or not having the force of law, and for the avoidance of doubt, including any
changes resulting from (i) requests, rules, guidelines or directives concerning capital adequacy
issued in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act and (ii)
all requests, rules, guidelines or directives promulgated by the Bank for International
Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or
the United States or foreign regulatory authorities, in each case pursuant to Basel III, and in
each case for both clauses (i) and (ii), regardless of the date enacted, adopted or issued) 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 Lenders 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 Lenders commitment to lend hereunder. A
certificate as to such amounts submitted to the Company and the Agent by such Lender (which
certificate shall, if the Company so requests, include reasonably detailed calculations) 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 in Dollars or another Committed Currency or to fund or
maintain Eurocurrency Rate Advances in Dollars or another Committed Currency in Dollars or any
Foreign Currency hereunder on the last day of the applicable Interest Period (or earlier if
required by law, regulation or other Governmental Authority), (a) each Eurocurrency Rate Advance in
the applicable currency will automatically, upon such demand, Convert into a Base Rate Advance, (i)
if such Eurocurrency Rate Advance is denominated in Dollars, be Converted into a Base Rate Advance,
and (ii) if such Eurocurrency Rate Advance is denominated in any Foreign Currency, be exchanged
into an Equivalent amount of Dollars and be Converted into a Base Rate Advance, and (b) the
obligation of the Lenders to make Eurocurrency Rate Advances in such currency or to Convert
Revolving Credit Advances
Sealed Air Credit Agreement
81
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 Agents 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 Agents 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 2.12
,
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(d)
, 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) All computations of interest based on the Base Rate or the Australian Bill 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 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.
(c) Whenever any payment hereunder 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 to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day.
(d) 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
Sealed Air Credit Agreement
82
distributed to each Lender on such due
date an amount equal to the amount then due such Lender. If and to the extent such Borrower shall
not have so made such payment in full to the Agent, each Lender shall repay to the Agent forthwith
on demand such amount distributed to such Lender together with interest thereon, for each day from
the date such amount is distributed to such Lender until the date such Lender repays such amount to
the Agent, at (i) the Federal Funds Rate in the case of Advances denominated in Dollars or (ii) the
cost of funds incurred by the Agent in respect of such amount in the case of Advances denominated
in Foreign Currencies.
(e) 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(e)
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(e)
.
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 any Loan Document 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 (
Taxes
), excluding, (i) in the
case of each Lender and the Agent, taxes imposed on net income, or franchise taxes imposed in lieu
of net income taxes, in either case as a result of a present or former connection between such
Lender and the jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such connection arising from
such Lender or Agent having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document), (ii) any withholding or similar tax
imposed on a Lender pursuant to Sections 1471 through 1474 of the Code, as currently in effect, or
any substantially similar amended versions that are not materially more onerous to comply with
(including any regulations promulgated thereunder or published administrative guidance issued
pursuant thereto implementing such law) (
FATCA
), (iii) withholding taxes resulting from
any requirement of law in effect on the date such Lender becomes a party to this Agreement (or
designates a new lending office), except to the extent that such Lender (or such Lenders assignor)
was entitled, at the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding taxes pursuant to this
Section 2.15
, (iv) any Tax imposed on a Lender pursuant to section 49 para 1 no 5 lit c)
aa) German Income Tax Act (
Einkommensteuergesetz
), (v) Taxes attributable to a Lenders failure to
comply with subsections (e) or (f) and, (vi) any withholding Tax required in respect of the
Luxembourg law(s) implementing the EU Savings Directive
Sealed Air Credit Agreement
83
(Council Directive 2003/48/EC or any
amendment thereof) and several agreements entered into between Luxembourg and some EU dependent and
associated territories or the Luxembourg law of 23 December 2005 (all such non-excluded Taxes in
respect of payments hereunder or any Loan Document hereinafter referred to as
Indemnified
Taxes
, and any Taxes excluded under clauses (i) through (vi) above being hereinafter referred
to as the
Excluded Taxes
). If any Borrower shall be required by law to deduct any
Indemnified Taxes from or in respect of any sum payable hereunder or under any Loan Document, (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, property, intangible, mortgage recording, or similar taxes, charges or levies
that arise from any payment made hereunder or under any Loan Documents or from the execution,
delivery or registration of, performing under, or otherwise with respect to, this Agreement or any
other Loan Document, including a Belgian documentary duty of EUR 0.15 to be paid in respect of each
original copy of this Agreement if executed in Belgium and for Belgian documentary and registration
duties in respect of the Collateral Documents governed by Belgian law (hereinafter referred to as
Other Taxes
), except for any
Luxembourg tax payable due to a registration of Notes (or 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) when such registration is not required to maintain,
preserve, establish or enforce the rights of the Lender or the Agent.
(c) Each Borrower shall indemnify each Lender and the Agent for and hold it harmless against
the full amount of Indemnified Taxes or Other Taxes (including Indemnified Taxes imposed 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, excluding for the avoidance of doubt, any Excluded Taxes. 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, stating the amounts of Indemnified Taxes or Other Taxes paid
or payable and describing the basis for the indemnification claim.
(d) Within 30 days after the date of any payment of Indemnified Taxes paid by a Borrower
pursuant to
Section 2.15(a)
, 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.
(e)
(i) Each Lender that is a United States person shall deliver to the Company and the
Agent on or before the date on which it becomes a party to this Agreement two properly
completed and duly signed copies of U.S. Internal Revenue
Sealed Air Credit Agreement
84
Service Form W-9 (or any successor
form) certifying that such Lender is exempt from U.S. federal withholding tax. Each Lender
that is not a United States person (a Non-U.S. Lender), on or prior to the date on which
it becomes party to this Agreement, 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 (i) two original Internal Revenue
Service Forms W-8BEN, W-8ECI or W-8IMY (together with any applicable underlying IRS forms),
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, (ii) in the case of a
Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of portfolio interest, a statement
substantially in the form of Exhibit L and the applicable IRS Form W-8, or any subsequent
versions thereof or successors thereto, properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S. federal
withholding tax on payments under this Agreement and the other Loan Documents, or (iii) any
other form prescribed by applicable requirements of U.S. federal income tax law, or
reasonably requested by a Borrower or the Agent, as will permit payments under any Loan
Document to be made without or at a reduced rate of U.S. federal withholding tax, duly
completed together with such supplementary documentation as may be prescribed by applicable
requirements of law to permit the Company and the Agent to determine the withholding or
deduction required to be made. Notwithstanding
any other provision of this Section, a Non-U.S. Lender shall not be required to deliver
any form pursuant to this Section that such Non-U.S. Lender is not legally able to deliver.
For purposes of this subsection (e), the term
United States person
shall have the
meaning specified in Section 7701(a)(30) of the Internal Revenue Code.
(ii) If a payment made to a Lender under any Loan Document would be subject to U.S.
federal withholding tax imposed by FATCA if such Lender were to fail to comply with the
applicable reporting requirements of FATCA (including those contained in Section 1471(b) or
1472(b) of the Code, as applicable), such Lender shall deliver to the Company and Agent, at
the time or times prescribed by law and at such time or times reasonably requested by the
Company or Agent, such documentation prescribed by applicable law (including as prescribed
by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
requested by the Company or Agent as may be necessary for the Company or Agent to comply
with their obligations under FATCA, to determine that such Lender has or has not complied
with such Lenders obligations under FATCA or to determine the amount to deduct and withhold
from such payment.
(f) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which a Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to such
Borrower (with a copy to the Agent), at the time or times prescribed by applicable law or
reasonably requested by such Borrower, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without or at a reduced rate
of withholding; provided that such Lender is legally entitled to complete, execute and
Sealed Air Credit Agreement
85
deliver such
documentation and that doing so does not subject such Lender to any material unreimbursed costs.
(g) If the Agent or any Lender determines, in its sole discretions, that it has received a
refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a Borrower or
with respect to which a Borrower has paid additional amounts pursuant to this
Section 2.15
,
it shall pay over such refund to such Borrower (but only to the extent of indemnity payments made,
or additional amounts paid, by such Borrower under this
Section 2.15
with respect to the
Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of
the Agent or such Lender and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund). Nothing in this paragraph shall be construed
to require the Agent or any Lender to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to any Borrower or any other Person.
SECTION 2.16
Sharing of Payments, Etc.
Subject to
Section 2.19
in the case of a Defaulting
Lender, if any Lender shall obtain any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) on account of any Advances owing to it (other than
pursuant to
Section 2.11(c)
,
2.12
,
2.15
or
9.04(c)
) in excess of
its Ratable Share of payments on account of such Advances obtained by the applicable Lenders, such
Lender shall forthwith purchase from the other applicable Lenders such participations in the relevant 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 Lenders ratable share (according to the proportion of (i)
the amount of such Lenders 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 Term Advance, Revolving Credit Advance and each Swing Line Advance owing to
such Lender from time to time, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder in respect of Term Advances, 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 Term Note or Revolving Credit Note is
required or appropriate in order for such Lender to evidence (whether for purposes of pledge,
enforcement or otherwise) the Term Advances, 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 Term Note or Revolving Credit Note, as the case may be, payable to the order of such
Lender in a principal amount up to the Revolving Credit Commitment of such Lender.
Sealed Air Credit Agreement
86
(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 Lenders 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 (a) the Term Advances shall be available (and each
Loan Party agrees that it shall use such proceeds) in connection with the Transactions and (b) the
Revolving Credit Advances and Incremental Advances shall be available (and each Loan Party agrees
that it shall use such proceeds) solely for the working capital and general corporate purposes of
the Company and its Subsidiaries (including, without limitation, any acquisition permitted
hereunder);
provided
that on the Closing Date the Revolving Credit Advances shall be
available only (i) in an amount up to $400,000,000 to finance liabilities incurred by the Company
arising out of the W.R Grace Liability, (ii) in an amount of up to $25,000,000 to finance, in part,
the Transactions, (iii) to fund OID or upfront fees in connection with the Facilities and the Notes
in an amount sufficient to fund any OID or upfront fees required to be funded on the Closing Date,
(iv) in an amount up to $100,000,000 for working capital purposes and (v) in an amount up to
$250,000,000 to effect the defeasance of the Existing Diversey Notes as part of the Diversey
Refinancing.
SECTION 2.19
Defaulting Lenders
. (a) In addition to the other conditions precedent herein set
forth, if any Lender becomes, and during the period it remains, a Defaulting Lender, the Issuing
Banks will not be required to issue any Letter of Credit or to amend any outstanding Letter of
Credit, and the Swing Line Bank will not be required to make any Swing Line Advance, unless any of
clauses (i), (ii) or (iii) below is satisfied:
(i) in the case of a Defaulting Lender, so long as no Default has occurred and is
continuing, the L/C Exposure and Swing Line Exposure of such Defaulting Lender is
reallocated to the Non-Defaulting Lenders as provided in clause (i) of
Section
2.19(b)
;
(ii) to the extent full reallocation does not occur as provided in clause (i) above,
the Company Cash Collateralizes the obligations of the Borrowers in respect of such Letter
of Credit or Swing Line Advance in an amount at least equal to the aggregate amount of the
unallocated obligations (contingent or otherwise) of such
Sealed Air Credit Agreement
87
Defaulting Lender in respect of
such Letter of Credit or Swing Line Advance, or makes other arrangements satisfactory to the
Agent, the Issuing Bank and the Swing Line Bank in their reasonable discretion to protect
them against the risk of non-payment by such Defaulting Lender; and
(iii) to the extent that neither full reallocation nor full Cash Collateralization
occurs pursuant to clauses (i) and/or (ii), then in the case of a proposed issuance of a
Letter of Credit or making of a Swing Line Advance, by an instrument or instruments in form
and substance reasonably satisfactory to the Agent, and to the Issuing Banks and the Swing
Line Bank, as the case may be, (A) the Company agrees that the face amount of such requested
Letter of Credit or the principal amount of such requested Swing Line Advance will be
reduced by an amount equal to the unallocated, non Cash-Collateralized portion thereof as to
which such Defaulting Lender would otherwise be liable, and (B) the Non-Defaulting Lenders
confirm, in their discretion, that their
obligations in respect of such Letter of Credit or Swing Line Advance shall be on a
pro
rata
basis in accordance with the Commitments of the Non-Defaulting
Lenders, and that the
pro
rata
payment provisions of
Section 2.16
will be deemed adjusted to reflect this provision.
(b) If a Lender becomes, and during the period it remains, a Defaulting Lender, the following
provisions shall apply with respect to any L/C Exposure or Swing Line Exposure of such Defaulting
Lender:
(i) so long as no Default has occurred and is continuing, the LC Exposure and the Swing
Line Exposure of such Defaulting Lender will, upon notice by the Agent, and subject in any
event to the limitation in the first proviso below, automatically be reallocated (effective
on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders
pro
rata
in accordance with their respective Commitments;
provided
that (a) the sum of the total outstanding Revolving Credit Advances and Swing Line Advances
owed to each Non-Defaulting Lender and its L/C Exposure may not in any event exceed the
Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation, (b)
such reallocation will not constitute a waiver or release of any claim the Borrowers, the
Agent, the Issuing Banks, the Swing Line Bank or any other Lender may have against such
Defaulting Lender, and (c) neither such reallocation nor any payment by a Non-Defaulting
Bank as a result thereof will cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) to the extent that any portion (the
unreallocated portion
) of the
Defaulting Lenders L/C Exposure and/or Swing Line Exposure cannot be so reallocated,
whether by reason of the first proviso in clause (i) above or otherwise, the Company shall,
not later than three Business Days after demand by the Agent, (a) Cash Collateralize the
obligations of the Borrowers to the Issuing Banks and the Swing Line Bank in respect of such
L/C Exposure or Swing Line Exposure, as the case may be, in an amount at least equal to the
aggregate amount of the unreallocated portion of such L/C Exposure or Swing Line Exposure,
(b) in the case of such Swing Line Exposure, prepay in full the unreallocated portion
thereof, or (c) make other arrangements reasonably satisfactory to the Agent, and to the
Issuing Banks and the Swing Line Bank, as the case
Sealed Air Credit Agreement
88
may be, in their reasonable discretion to
protect them against the risk of non-payment by such Defaulting Lender; and
(iii) any amount paid by the Company for the account of a Defaulting Lender under this
Agreement (whether on account of principal, interest, fees, indemnity payments or other
amounts) will not be paid or distributed to such Defaulting Lender, but shall instead be
retained by the Agent in a segregated escrow account until (subject to
Section
2.19(c)
) the termination of the Commitments and payment in full of all obligations of
the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by
law, to the making of payments from time to time in the following order of priority:
first
to the payment of any amounts owing by such Defaulting Lender to
the Agent under this Agreement,
second
to the payment of any amounts owing by such Defaulting Lender to
the Issuing Banks or the Swing Line Bank (
pro
rata
as to the
respective amounts owing to each of them) under this Agreement,
third
to the payment of post-default interest and then current interest
due and payable to the Non-Defaulting Lenders hereunder, ratably among them in
accordance with the amounts of such interest then due and payable to them,
fourth
to the payment of fees then due and payable to the
Non-Defaulting Lenders hereunder, ratably among them in accordance with the amounts
of such fees then due and payable to them,
fifth
to pay principal and unreimbursed Letters of Credit then due and
payable to the Non-Defaulting Lenders hereunder ratably in accordance with the
amounts thereof then due and payable to them,
sixth
to the ratable payment of other amounts then due and payable to
the Non-Defaulting Lenders,
seventh
as the Company may direct to the funding of any Loan in respect
of which a Defaulting Lender has failed to fund its portion,
eighth
to any amounts owing by the Defaulting Lender to the Company or
any of its Subsidiaries, and
ninth
after the termination of the Commitments and payment in full of
all obligations of the Borrowers hereunder, to pay amounts owing under this
Agreement to such Defaulting Lender or as a court of competent jurisdiction may
otherwise direct.
(c) If the Company, the Agent, the Issuing Banks and the Swing Line Bank agree in writing that
a Lender that is a Defaulting Lender should no longer be deemed to be a
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89
Defaulting Lender, the
Agent will so notify the parties hereto, whereupon as of the effective date specified in such
notice and subject to any conditions set forth therein (which may include arrangements with respect
to any amounts then held in the segregated escrow account referred to in
Section 2.19(b)
),
such Lender shall purchase such portions of the outstanding Advances of the other Lenders, and/or
make such other adjustments, as the Agent may determine to be necessary to cause the Lenders to
hold Loans on a
pro
rata
basis in accordance with their respective Commitments,
whereupon such Lender shall cease to be a Defaulting Lender and will be a Non-Defaulting Lender
(and the L/C Exposure and Swing Line Exposure of each Lender shall automatically be adjusted on a
prospective basis to reflect the foregoing);
provided
that no adjustments shall be made
retroactively with respect to fees accrued or payments made by or on behalf of the Company and
applied as set forth in
Section 2.19(b)(iii)
while such Lender was a Defaulting Lender; and
provided
,
further
, that except to the extent otherwise expressly agreed by the
affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender shall
constitute a waiver or release of any claim of any party hereunder arising from such Lenders
having been a Defaulting Lender.
SECTION 2.20
Replacement of Lenders
. (a) If any Lender requests compensation under
Section
2.12
or if the Company is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to
Section 2.15
then such
Lender shall use reasonable efforts to designate a different lending office for funding or booking
its Advances hereunder or to assign its rights and obligations hereunder to another of its offices,
branches or Affiliates, if, in the reasonable judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to
Section 2.12
or
2.15
, as applicable, in the future and (ii) would not subject such Lender to any material
unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender in any
material respect. The Company hereby agrees to pay all reasonable costs and expenses incurred by
any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under
Section 2.12
, or if the Company is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to
Section 2.15
, or if any Lender is a Defaulting Lender, or if any
Lender is subject to the provisions of
Section 2.13
, then the Company may, at its sole
expense and effort, upon notice to such Lender and the Agent, require any such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in
Section 9.07
), all its interests, rights and obligations under this Agreement to an
assignee that shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment);
provided
, that (i) to the extent that such prospective assignee
is not an existing Lender, an Approved Fund or an Affiliate of an existing Lender, the Company
shall have received the prior written consent of the Agent (and, if in respect of any Revolving
Credit Commitment or Revolving Credit Advance, the Swing Line Bank and the Issuing Banks), which
consent shall not unreasonably be withheld or delayed, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal of its Advance and participations in Letters of
Credits and Swing Line Advances, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Company (in the case of all other amounts) (iii) in the case of any such
assignment resulting from a claim for compensation under
Section 2.12
or payments required
to be made pursuant to
Section 2.15
, such assignment will result in a reduction in such
Sealed Air Credit Agreement
90
compensation or payments, (iv) the Company shall have paid to the Agent the assignment fee
specified in
Section 9.07
, and (v) such assignment does not conflict with any applicable
Laws. A Lender shall not be required to make any such assignment or delegation if, prior thereto,
as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to
require such assignment cease to apply. Nothing in this
Section 2.20
shall be deemed to
prejudice any rights that the Company or any of its Subsidiaries may otherwise have against any
Lender that is a Defaulting Lender.
(c) If any Lender has failed to consent to a proposed amendment, waiver, discharge or
termination that pursuant to the terms of
Section 9.01
requires the consent of all the
Lenders affected and with respect to which the Required Lenders shall have granted their consent
(any such Lender referred to above, a
Non-Consenting Lender
) or if the Company opts to
replace any Protesting Lender pursuant to
Section 9.09(A)(i)
then so long as no Event of
Default then exists, the Company shall have the right (unless such Non-Consenting Lender grants
such consent) to replace any such Non-Consenting Lender by requiring such Non-Consenting Lender to
assign all of its Advances and Commitments hereunder to one or more assignees selected by the
Company and that are reasonably acceptable to the Agent (and, if in respect of any Revolving Credit
Commitment or Revolving Credit Advance, the Swing Line Bank and the Issuing Banks);
provided
, that the replacement Lender shall pay in full to such Non-Consenting Lender,
concurrently with such assignment, a price equal to the principal amount thereof
plus
accrued and unpaid interest thereon and fees in connection therewith. In connection with any such
assignment the Company, the Agent, such Non-Consenting Lender and the replacement Lender shall
otherwise comply with
Section 9.07
.
SECTION 2.21
Borrower Representative
. Each Borrower hereby designates and appoints the Company as its
representative and agent on its behalf (the
Borrower Representative
) for the purposes of
issuing Notices of Borrowings, Notices of Conversion/continuation, Notices of Issuance, Notices of
Swing Line Borrowing and delivering certificates including Compliance Certificates, giving
instructions with respect to the disbursement of the proceeds of the Advances, selecting interest
rate options, giving and receiving all other notices and consents hereunder or under any of the
other Loan Documents and taking all other actions (including in respect of compliance with
covenants) on behalf of any Borrower or Borrowers under the Loan Documents. Borrower
Representative hereby accepts such appointment. The Agent and each Lender may regard any notice or
other communication pursuant to any Loan Document from Borrower Representative as a notice or
communication from all Borrowers. Each warranty, covenant, agreement and undertaking made on
behalf of a Borrower by Borrower Representative shall be deemed for all purposes to have been made
by such Borrower and shall be binding upon and enforceable against such Borrower to the same extent
as if the same had been made directly by such Borrower.
SECTION 2.22
Public Offer
(a) Each Joint Lead Arranger represents and warrants that: (x) it has
made or will make on or before the date of the first Advance, jointly with each other Joint Lead
Arranger, on behalf of each Borrower invitations in a form agreed with the Australian Borrowers to
become a Lender under this Agreement publicly in an electronic form on either the Bloomberg or
Reuters screen: or (y) as dealer, manager, or underwriter, in relation to the placement of debt
interests issued under this Agreement, will jointly with each other Joint
Sealed Air Credit Agreement
91
Lead Arranger, make
invitations to become a Lender under this Agreement within 30 days after the date of this
Agreement in a way consistent with Section 2.22(a)(x).
(b) Each Australian Borrower represents and warrants that it does not know, or have reasonable
grounds to suspect, that an Offshore Associate of any Australian Borrower will become a Lender
under this Agreement and agrees to notify the Joint Lead Arrangers immediately if any proposed
substitute Lender disclosed to it is known or suspected by it to be an Offshore Associate of the
Australian Borrower.
(c) Each Lender that becomes a Lender as a result of an invitation under Section 2.22(a)
represents and warrants that except as disclosed to the Australian Borrower and
the Joint Lead Arrangers, it is not, so far as its relevant officers involved in the
transaction on a day to day basis are actually aware, an Offshore Associate of the Australian
Borrower.
(d) If, for any reason, the requirements of 128F of the Australian Tax Act have not been
satisfied in relation to interest payable hereunder (except to an Offshore Associate of an
Australian Borrower), then on request by a Joint Lead Arranger or an Australian Borrower, each
party hereto shall co-operate and take steps reasonably requested with a view to satisfying those
requirements:
(i) where a Joint Lead Arranger breached Section 2.22(a) or a Lender has
breached Section 2.22(d), at the cost of that Joint Lead Arranger or Lender (as the
case may be); or
(ii) in all other cases, at the cost of the Australian Borrower.
(e) Each Joint Lead Arranger and each Lender undertakes that it will not directly or
indirectly offer or sell any debt interest or distribute or circulate any offer document or other
material in connection with this Agreement or any debt interest hereunder in any jurisdiction
except under circumstances which would result in compliance with the laws and regulations of that
jurisdiction.
Notwithstanding any other provision of this Section 2.22 the guarantee, indemnity and other
obligations of any Dutch Obligor expressed to be assumed in this Section 2.22 shall be deemed not
to be assumed by such Dutch Obligor to the extent that the same would constitute unlawful financial
assistance within the meaning of Article 2:207c or 2:98c Dutch Civil Code or any other applicable
financial assistance rules under any relevant jurisdiction (the
Prohibition
) and the
provisions of this Agreement and the other Loan Documents shall be construed accordingly. For the
avoidance of doubt, it is expressly acknowledged that the relevant Dutch Obligors will continue to
guarantee all such obligations which, if included, do not constitute a violation of the
Prohibition.
ARTICLE III
CONDITIONS TO LENDING
SECTION 3.01
Conditions Precedent to the Initial Advances
. The obligation of each Issuing Bank and
each Lender to make the initial Advances hereunder is subject to the
Sealed Air Credit Agreement
92
satisfaction (or waiver in
accordance with
Section 9.01
) of the following conditions precedent on or prior to the date
of such initial Advances:
(a)
Execution of Loan Documents and Notes
. The Agents receipt of the
following, each of which shall be originals or facsimiles, or pdf scans of originals
(followed promptly by originals) unless otherwise specified, each duly executed by a
Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case
of certificates of governmental officials, a recent date before the Closing Date) and each
in form and substance reasonably satisfactory to the Agent and each of the Lenders
(
provided
, that each Lender that delivers its executed counterpart to this Agreement
to the Agent shall be deemed to be satisfied with the form and substance of each of the
following):
(i) this Agreement, executed and delivered by each of the Borrowers, the
Lenders named on the signature pages hereof, the Swing Line Bank, the Issuing Banks
and the Agent;
(ii) a Note executed by the applicable Borrower in favor of each Lender
requesting a Note;
(iii) A guaranty in substantially the form of Exhibit E-1 hereto (together with
each other guaranty or guaranty supplement delivered pursuant to
Section
5.01(h)
, in each case as amended, the
US Subsidiary Guaranty
),
executed by each of the US Subsidiaries listed on Schedule 1.01(ii) hereto;
(iv) A guaranty in substantially the form of Exhibit E-2 hereto (together with
each other guaranty or guaranty supplement delivered pursuant to
Section
5.01(h)
, in each case as amended, the
Foreign Subsidiary Guaranty
),
executed by each of the Foreign Subsidiaries listed on Schedule 1.01(ii) hereto;
(v) the Security Agreement, executed and delivered by the Company and each Loan
Party, together with proper UCC-1 Financing Statements in form appropriate for
filing under the Uniform Commercial Code of all jurisdictions that the Agent may
deem necessary in order to perfect the Liens created under each of the Collateral
Documents, covering the Collateral described in the Collateral Documents; and
(vi) the Intercreditor Agreement, executed and delivered by the Agent and the
Lenders.
(b)
Incumbency
. Each Loan Party shall have certified to the Agent the name and
signature of each of the Responsible Officers authorized (i) to sign on its respective
behalf this Agreement and each of the other Loan Documents to which it is a party and (ii)
in the case of the Company and the Designated Borrowers, to borrow under this Agreement.
The Lenders may conclusively rely on such certifications until they receive notice in
writing from the respective Loan Party to the contrary.
Sealed Air Credit Agreement
93
(c)
Loan Certificates
. The Agent shall have received a loan certificate of
each Loan Party, in substantially the form of
Exhibit F
attached hereto, together
with appropriate attachments which shall include the following items: (i) a true, complete
and correct copy of the articles of incorporation, certificate of limited partnership,
certificate of formation or organization or other constitutive document of such Loan Party,
to the extent applicable certified by an appropriate Governmental Authority, (ii) a true,
complete and correct copy of the by-laws, partnership agreement or limited liability company
or operating agreement (or other applicable organizational document) of such Loan Party,
(iii) a copy of the resolutions of the board of directors or other appropriate entity of
such Loan Party authorizing the execution, delivery and performance by such Loan Party of
this Agreement and the other Loan Documents to which it is a party and,
with respect to the Borrower, authorizing the borrowings hereunder, (iv) certificates
of existence, to the extent available, of such Loan Party issued by an appropriate
Governmental Authority and (v) in respect of each Australian Loan Party, confirmation that
there will be no contravention of section 260A of the Corporations Act as a consequence of
the execution, delivery or performance of the Loan Documents or the drawing and application
of funds thereunder.
(d)
No Diversey Material Adverse Effect
. Since December 31, 2010, no Diversey
Material Adverse Effect shall have occurred.
(e)
Consummation of the Acquisition
. The Agent shall have received a true and
correct copy of the Merger Agreement (as certified by a Responsible Officer of the Borrower)
and any related agreements and the Acquisition shall be consummated substantially
concurrently with the initial funding of the Facilities in accordance with the Merger
Agreement, and the Merger Agreement shall not have been amended or modified or any condition
therein waived, in each case in any respect that is materially adverse to the Lenders,
without the prior written consent of the Lead Arrangers (such consent not to be unreasonably
withheld or delayed);
provided
that without the consent of each Lead Arranger, the
Company shall not have increased the portion of the purchase price of the Acquired Business
payable in cash, except to the extent that such increase in the cash portion of the purchase
price is funded entirely from proceeds of a contemporaneous equity offering.
(f)
Indebtedness
. The Agent shall have received satisfactory evidence
(including, without limitation, receipt of payoff letters and UCC-3 termination statements
(or equivalents)) that (i) the Refinancing shall have been consummated and (ii) all
outstanding Indebtedness of the Loan Parties (other than any Indebtedness permitted under
Section 5.02(b)) shall have been paid in full and terminated.
(g)
Financial Statements
. The Agent shall have received, (a) at least 40 days
before the Closing Date, unaudited consolidated balance sheets and related statements of
income, stockholders equity and cash flows of each of the Company and Diversey as of and
for each quarterly period of the Company and Diversey, respectively, ended after the date of
the Commitment Letter, but at least 90 days prior to the consummation of the Acquisition
(the
Interim Financial Statements
), (b) a pro forma consolidated balance sheet and
related statements of income of the Company as of the ending date of and for
Sealed Air Credit Agreement
94
(i) the latest
Fiscal Year of the Company ended at least 120 days before the Closing Date and (ii) if
applicable, for the latest interim period for which the Company will be required to provide
the Interim Financial Statements pursuant to
clause (a)
above, in each case, after
giving effect to the Transaction as if the Transaction had occurred as of such date (in the
case of the balance sheet) or at the beginning of the period (in the case of the income
statements) and (c) the most recent projections of the Company through the 2016 Fiscal Year,
prepared on a quarterly basis through the end of 2012.
(h)
Solvency
. The Agent shall have received a solvency certificate from the
chief financial officer of the Company in the form of Exhibit G (the
Solvency
Certificate
).
(i)
Opinions of Counsel to the Loan Parties
. The Lenders shall have received
favorable opinions of:
(i) Simpson Thacher & Bartlett LLP, special New York counsel to the Loan
Parties, substantially in the form of Exhibit H-1 hereto;
(ii) Clifford Chance LLP, special counsel to the Loan Parties, substantially in
the form of Exhibit H-2 hereto;
(iii) opinions of special counsel for the Agent, dated the Closing Date and
covering such additional matters relating to the transactions contemplated hereby as
the Agent may reasonably request; and
(iv) opinions of special counsel for certain Restricted Subsidiaries of the
Company in each of the jurisdictions in which the Agent may reasonably request,
substantially in the form of Exhibit H-3 hereto.
(j)
Certain Representations and Warranties
. The Specified Representations and
the Merger Agreement Representations shall be true and correct in all material respects.
(k)
Patriot Act
. The Agent shall have received all documentation and other
information required by regulatory authorities under applicable know your customer and
anti-money laundering rules and regulations, including the Patriot Act that has been
requested by the Agent in writing at least 5 days prior to the Closing Date.
(l)
Fees
. Payment of all fees required to be paid on the Closing Date pursuant
to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing
Date pursuant to the Commitment Letter, to the extent invoiced at least 2 business days
prior to the Closing Date, shall have been paid (which amounts may be offset against the
proceeds of the Facilities).
SECTION 3.02
Conditions to all Advances
. The obligation of each Lender to make an Advance, and the
obligation of each Issuing Bank to issue a Letter of Credit shall be subject to the following
conditions precedent (
provided
, that
clause (a)
shall not apply to Advances made on
the Closing Date):
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95
(a) the following statements shall be true (and each of the giving of the applicable
Notice of Borrowing, Notice of Swing Line Borrowing, Notice of Issuance 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) all representations and warranties made by any Loan Party in this Agreement
and in each other Loan Document shall be true and correct in all material respects,
with the same effect as though such representations and warranties were made on and
as of the date of such Borrowing or issuance (except that (x) where such representations and warranties expressly relate to an
earlier date, in which case such representations and warranties shall have been true
and correct in all material respects as of such earlier date and (y) where such
representations and warranties are already qualified as to materiality or Material
Adverse Effect, such qualified representations and warranties shall be true and
correct);
(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 Default;
and (b) the Agent shall have received a Notice of Borrowing, Notice of Swing Line Borrowing or
Notice of Issuance, as applicable, in accordance with the requirements hereof.
SECTION 3.03
Determinations Under Section 3.01
. For purposes of determining compliance with the
conditions specified in
Section 3.01
, each Lender shall be deemed to have consented to,
approved or accepted or to be satisfied with each document or other matter required thereunder to
be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of
the Agent responsible for the transactions contemplated by this Agreement shall have received
notice from such Lender prior to the date that the Company, by notice to the Lenders, designates as
the proposed Closing Date, specifying its objection thereto. The Agent shall promptly notify the
Lenders of the occurrence of the Closing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01
Representations and Warranties of the Borrowers
. Each Borrower represents and
warrants as follows:
(a)
Organization, Existence and Good Standing
. Each of the Company and its
Restricted Subsidiaries (i) is duly organized or incorporated, validly existing or
incorporated and registered (as applicable) 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
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96
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, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors rights and
to equitable principles (regardless of whether enforcement is sought in equity or at law).
(c)
Real Property.
(i)
Schedule 4.1(c)(i)
sets forth a complete list of all real property
owned by each of the Loan Parties and their Subsidiaries as of the Closing Date
(each, an
Owned Property
), showing, as of the Closing Date, the street
address, county or other relevant jurisdiction, state or province, record owner and
book value thereof. Except as otherwise disclosed on
Schedule 4.1(c)(i)
,
the Loan Parties, or their Subsidiaries (as applicable), have good and marketable
fee simple title to all Owned Property located within the United States and a
substantially equivalent ownership interest in the Owned Property located in each
other jurisdiction and all buildings, structures and other improvements located
thereon, free and clear of all Liens, other than Permitted Liens.
(ii)
Schedule 4.1(c)(ii)
sets forth a complete list of all material
Leases under which any of the Loan Parties or their Subsidiaries are the lessee as
of the Closing Date (each a
Leased Property
), showing the street address,
county or other relevant jurisdiction, state or province and lessee. Each of the
Leases with respect to the Leased Property is in full force and effect. Except as
disclosed in Schedule 4.1(c)(ii), each of the Loan Parties or their Subsidiaries (as
applicable) has a valid, binding and enforceable leasehold interest and actual
possession in and to the properties and all buildings, structures or other
improvements located on the Leased Property in each case free and clear of all
Liens, except Permitted Liens.
(iii) All of the buildings, fixtures and improvements included on or in the
Owned Property or the Leased Property are in satisfactory condition and repair for
the continued use of the Owned Property or the Leased Property in the ordinary
course of business consistent with past practices.
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97
(d)
No Conflict
. 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 Restricted
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 Restricted 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 Restricted Subsidiaries, except in the case of
subclauses (i)
and
(ii)
of this
clause (d)
where such contravention
or breach would not reasonably be expected to have a Material Adverse Effect.
(e)
Governmental Consents
. 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 (ii) the perfection of the Liens
created under the Collateral Documents or (iii) the legality, validity, binding effect or
enforceability of any Loan Document, except, in each case, where such failure to obtain
authorization would not reasonably be expected to have a Material Adverse Effect.
(f)
Financial Statements; Financial Condition
. The audited Consolidated
balance sheet of the Company and its Restricted Subsidiaries for the Fiscal Year ended
December 31, 2010 and the related Consolidated statements of income or operations,
shareholders equity and cash flows for such Fiscal Year of the Company and its Restricted
Subsidiaries (i) were prepared in accordance with generally accepted accounting principles
consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (ii) fairly present in all material respects the financial condition of
the Company and its Restricted 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 June 30, 2011, and the related Consolidated statements of income or
operations, and cash flows for the three months ended on June 30, 2011 (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 Restricted
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98
Subsidiaries as
of the date thereof and their results of operations for the period covered thereby. Since
December 31, 2010 there has been no change in the business, results of operations or
financial condition of the Company and its Restricted Subsidiaries, taken as a whole, that
would reasonably be expected to have a Material Adverse Effect.
(g)
Adverse Proceedings
. Except as disclosed in the Companys 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 Restricted 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.
(h)
Taxes
. Except to the extent the following would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect:
(i) All U.S. federal and state tax returns, reports and statements (excluding
information returns) (the
US Tax Returns
) and all local U.S. tax returns
and all U.S. information returns, foreign tax returns, reports and statements
(collectively, the
Other Tax Returns
and, together with the US Tax
Returns, the
Tax Returns
) required to be filed by each Loan Party or any
of its Tax Affiliates have been filed with the appropriate governmental authorities,
all such Tax Returns are true and correct, and all taxes, charges and other
impositions reflected therein have been paid prior to the date when due except where
contested in good faith and by appropriate proceedings if adequate reserves have
been established on the books of such Loan Party or such Tax Affiliate in conformity
with GAAP;
(ii) Proper amounts have been withheld by each Loan Party from its employees
for all periods in full compliance with the tax, social security and unemployment
withholding provisions of applicable requirements of law and such withholdings have
been timely paid to the respective governmental authorities; and
(iii) Each of the Foreign Subsidiaries has paid or made adequate provision for
the payment of all Taxes levied on it or on its property or income that are due and
payable, including interest and penalties, or has accrued such amounts in its
financial statements for the payment of such Taxes except Taxes that are not
material in amount, that are not delinquent or if delinquent are being contested,
and in respect of which non-payment would not individually or in the aggregate
constitute, or be reasonably likely to cause, a Material Adverse Effect.
(i)
True and Complete Disclosure
. All written information (taken as a whole)
heretofore or contemporaneously furnished by or on behalf of the Company or any of its
Restricted Subsidiaries in writing to any Lender (including, without limitation, all
information relating to the Company and its Restricted Subsidiaries contained in the Loan
Documents but excluding any forecasts and projections of financial information and
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99
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 materially misleading at such time in light of the circumstances under which such
information was provided.
(j)
Margin Regulations
. (i) No part of the proceeds of any Advance will be
used by any Borrower or any Restricted 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.
(ii) 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.
(k)
Compliance with ERISA/Pension Laws
.
(i) No Reportable Event has occurred or is reasonably expected to occur with
respect to a Plan, except for any such event which would not reasonably be expected
to have, either individually or in the aggregate, a Material Adverse Effect.
(ii) Schedule SB (Actuarial Information) to the most recent annual report (Form
5500 Series) for each Plan, copies of which have been filed with the United States
Department of Labor and furnished to the Lenders, is complete and accurate and
fairly presents the funding status of each such Plan as of the end of the most
recent Plan year for which such report was so filed, and since the date of such
Schedule SB through the date of this Agreement there has been no material adverse
change in such funding status.
(iii) Neither any Borrower nor any ERISA Affiliate has incurred or is
reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan,
except as would not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.
(iv) Neither any Borrower nor any ERISA Affiliate has been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in Reorganization,
Insolvent or has been determined to be in endangered or critical status within
the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA, and
no such Multiemployer Plan is reasonably expected to be in Reorganization, Insolvent
or in endangered or critical status, except as would not reasonably be expected
to have, either individually or in the aggregate, a Material Adverse Effect
(v) (a) Except as would not reasonably be expected to have, either individually
or in the aggregate, a Material Adverse Effect (i) each Canadian Pension Plan is
duly registered under all applicable federal, provincial and
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100
territorial pension
benefits legislation and the
Income Tax Act
(Canada), (ii) all obligations of any
Borrower or Restricted Subsidiary required to be performed in connection with each
Canadian Pension Plan or the funding agreements therefor have been performed in a
timely fashion and there are no outstanding disputes concerning the assets held
pursuant to any such funding agreement, except as would not reasonably be expected
to have, either individually or in the aggregate, a Material Adverse Effect, (iii)
all contributions or premiums required to be made by any Borrower or Restricted
Subsidiary each Canadian Pension Plan have been made in a timely fashion in accordance with the terms of such Canadian Pension
Plan and applicable laws and regulations, (iv) all employee contributions to each
Canadian Pension Plan required to be made by the employees of any Borrower or
Restricted Subsidiary by way of authorized payroll deduction have been properly
withheld by such Borrower or Restricted Subsidiary and fully paid into the
applicable Canadian Pension Plan in a timely fashion, (v) all reports and
disclosures relating to each Canadian Pension Plan required by any applicable laws
or regulations have been filed or distributed in a timely fashion, (vi) there have
been no improper withdrawals, or applications of, the assets of any Canadian Pension
Plan, (vii) no amount is owing by any Canadian Pension Plans under the
Income Tax
Act
(Canada) or any provincial or territorial taxation statute, except as would not
reasonably be expected to have, either individually or in the aggregate, a Material
Adverse Effect, (viii) none of the Canadian Pension Plans is the subject of an
investigation, proceeding, action or claim and there exists no state of facts which
after notice or lapse of time or both could give rise to any such proceeding, action
or claim and (ix) each Canadian Pension Plan is in compliance with the applicable
terms thereof, any funding requirements and all applicable law, except as would not
reasonably be expected to have, either individually or in the aggregate, a Material
Adverse Effect and (b) no material changes have occurred to any Canadian Pension
Plan since the last filed actuarial valuation in respect of such plan or the
financial statements of a Borrower or Restricted Subsidiary, and the actuarial
assumptions used in such actuarial valuation have not changed since the last filed
valuation (other than as required under Canadian actuarial standards).
(l)
Subsidiaries; Equity Interests; Loan Parties
. As of the Closing Date, the
Company has no Subsidiaries other than those specifically disclosed in Schedule 4.01(n), and
all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are
fully paid and non-assessable and are owned by each Loan Party in the percentages specified
on Schedule 4.01(l) free and clear of all Liens except those created under the Collateral
Documents or permitted by this Agreement and the other Loan Documents. Schedule 4.01(l)
indicates which subsidiaries are Loan Parties as of the Effective Date showing (as to each
Loan Party) the jurisdiction of its incorporation, the address of its principal place of
business and its U.S. taxpayer identification number or, in the case of any non-U.S. Loan
Party that does not have a U.S. taxpayer identification number, its unique identification
number issued to it by the jurisdiction of its incorporation, if any.
(m)
Environmental Matters
. (i) Each of the Company and its Restricted
Subsidiaries is, to the knowledge of the Senior Financial Officers, in compliance with all
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101
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 Restricted 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.
(n)
No Default
. No Default has occurred and is continuing, or would result
from the consummation of the transactions contemplated by this Agreement or any other Loan
Documents.
(o)
Investment Company Act
. Neither the Company nor any of its Restricted
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.
(p)
Employee Matters
. Neither the Company nor any of its Restricted
Subsidiaries is engaged in any unfair labor practice that would reasonably be expected to
have a Material Adverse Effect.
(q)
Solvency
. The Company and its Subsidiaries, taken as a whole, are Solvent.
No Subsidiary having its center of main interests in Germany is unable to pay its debts
when they fall due (
zahlungsunfähig
) or over-indebted (
überschuldet
) within the meaning
sect. 17 or 19 of the German Insolvency Code or has filed for the opening of insolvency
proceedings; no third party has filed for the opening of insolvency proceedings with respect
to such subsidiary.
(r)
Compliance with Laws
. The Company and each Restricted Subsidiary thereof
is in compliance with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves have been
provided in accordance with GAAP or (b) the failure to comply therewith, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(s)
Intellectual Property; Licenses, Etc.
The Company and each of its
Restricted Subsidiaries own, or have the right to use, all of the trademarks, service marks,
trade names, copyrights, patents, patent rights, licenses and other intellectual property
rights (collectively,
IP Rights
) that are reasonably necessary for the operation
of their respective businesses, except where the failure to own or have the right to use
such IP
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102
Rights could not reasonably be expected to have a Material Adverse Effect. To the
knowledge of the Company, the use of such IP Rights by the Company or any Restricted
Subsidiary does not infringe upon any intellectual property rights held by any other Person,
except for any infringement that could not reasonably be expected to have a Material Adverse
Effect. No claim or litigation regarding any of the foregoing is pending or, to the
knowledge of the Company, threatened, which, either individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.
(t)
Senior Debt
. The Obligations constitute Senior Debt (or the equivalent
term) as such term is defined in each subordinated debt document to which the Company or any
of its Restricted Subsidiaries is a party and that contains such a definition or any similar
definition.
(u)
Foreign Assets Control Regulations; Patriot Act
. No Loan Party (i) is or
will become a Person or entity described by section 1 of Executive Order 13224 of September
24, 2001 Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to
Commit, or Support Terrorism (12 C.F.R. 595), and no Loan Party engages in dealings or
transactions with any such Persons or entities; or (ii) is in violation of the Patriot Act
or any foreign Law to similar effect with respect to materiality.
(v)
Collateral Documents
. As and when executed and delivered, the provisions
of the Collateral Documents are or will be effective to create in favor of the Agent for the
benefit of the Secured Parties legal, valid and enforceable Liens on all right, title and
interest of the Collateral owned by the Loan Parties and described therein, subject to
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) and by a covenant of good faith and fair dealing.
When filings or recordations are made or other actions taken to reflect the liens and
security interests in the Collateral as required pursuant to the terms of this Agreement and
the Collateral Documents, the Liens in the Collateral described herein and therein will be
perfected and prior to all other Liens, except any Liens permitted to be prior to the Liens
of the Secured Parties under the terms of the Loan Documents.
(w)
No Financial Assistance
. The proceeds of any Advances have not been and
will not be used to finance or refinance the acquisition of or subscription for shares in
any Loan Party incorporated under the laws of the Netherlands and/or Belgium (save for share
buy-backs carried out in accordance with Belgian company law).
(x)
No Listed Securities
. None of the Borrowers and Guarantors incorporated in
Belgium has issued listed securities, or is a Subsidiary of a Belgian company that has
issued listed securities.
(y)
Trustee
. None of the Borrowers or Guarantors organized under the laws of
Australia have entered into any Loan Document, or hold any property, as a trustee.
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103
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01
Affirmative Covenants
. So long as any Advance or Letter of Credit 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 Restricted
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 Restricted 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)
Compliance Certificate
. At the time of the delivery of the
financial statements provided for in 5.01(a)(i) and (ii), a certificate of a
Financial Officer of the Company certifying that to the best of such officers
knowledge, no Default has occurred and is continuing (a
Compliance
Certificate
), 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 Compliance
Certificate shall also set forth (a) the calculations required to establish whether
the Company was in compliance with
Section 5.03
, at the end of such fiscal
quarter or year, as the case may be, (b) a list of names of all Immaterial
Subsidiaries for the following fiscal quarter, certifying that each Subsidiary set
forth on such list individually qualifies as an Immaterial Subsidiary and that all
such Subsidiaries in the aggregate do not exceed the limitations set forth in
clauses (i) and (ii) of the definition of the term Immaterial Subsidiary, and (c) a
list of names of all Unrestricted Subsidiaries, certifying that
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104
each Subsidiary set forth on such list individually qualifies as an
Unrestricted Subsidiary.
(iv)
Total Availability Certificate
. Concurrently with any delivery of
financial statements under clause (i) or (ii) above, a Total Availability
Certificate dated as of such date of delivery, together with such supporting
information in connection therewith as the Agent may reasonably request;
provided
that if Total Availability (calculated as of the most recently
delivered Total Availability Certificate) shall be an amount that is less than 15%
of the aggregate Multicurrency Revolving Credit Commitments at such date of
determination, then the Company shall deliver a Total Availability Certificate on
the first Business Day of each calendar month, until such time as the Total
Availability (calculated as of the then-most recently delivered Total Availability
Certificate) shall have exceed 15% of the aggregate Multicurrency Revolving Credit
Commitments for a period of at least 30 consecutive days.
(v)
Notice of Default 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 Default or Event of Default or (B) a
development or event which would reasonably be expected to have a Material Adverse
Effect.
(vi)
Other Information
. From time to time, such other information or
documents (financial or otherwise) as any Lender may reasonably request.
Notwithstanding the foregoing, the obligations in
clauses (i)
and
(ii)
of this
Section 5.01(a)
may be satisfied with respect to financial information of the Company and
its Restricted Subsidiaries by the Company furnishing a Form 10-K or 10-Q, as applicable, filed
with the SEC.
(b)
Books, Records and Inspections
. The Company will, and will cause each of
its Restricted Subsidiaries to, permit officers and designated representatives of the Agent
or the 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 Restricted Subsidiary, and to examine the books of account of the Company or
such Restricted Subsidiary and discuss the affairs, finances and accounts of the Company or
such Restricted 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 Lenders may request;
provided
that such Lender shall have given the Companys Chief Financial Officer or
Treasurer a reasonable opportunity to participate therein in person or through a designated
representative;
provided
,
further
that, excluding any such visits and
inspections during the continuation of an Event of Default, only the Agent on behalf of the
Lenders may exercise rights of the Agent and the Lenders under this Section 5.01(b) and the
Agent shall not exercise such rights more often than once during any calendar year absent
the existence of an Event of Default at the Borrowers expense; and
provided
,
further
, that when an Event of Default exists, the Agent or any Lender (or any of
their respective representatives or independent contractors) may do any of the
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105
foregoing at the expense of the Company at any time during normal business hours and
upon reasonable advance notice. The Agent and the Lenders shall give the Company the
opportunity to participate in any discussions with the Companys independent public
accountants.
(c)
Maintenance of Insurance
.
(i) Each of the Company and the Restricted Subsidiaries will maintain insurance
issued by financially sound and reputable insurance companies with respect to its
properties and business in such amounts and against such risks as is usually carried
by owners of similar businesses and properties in the same general areas in which
the Company or such Restricted Subsidiary operates. The Company will furnish to the
Agent, upon a reasonable request of the Agent (which may be at the direction, and
for the benefit, of a Lender) from time to time, full information as to the
insurance maintained in accordance with this
Section 5.01
.
(ii) With respect to any Mortgaged Property, if at any time the area in which
the property is located is designated a flood hazard area in any Flood Insurance
Rate Map published by the Federal Emergency Management Agency (or any successor
agency), the Company will obtain and maintain flood insurance in an amount
sufficient to comply with the National Flood Insurance Program as set forth in the
Flood Disaster Protection Act of 1973, as it may be amended from time to time.
(d)
Maintenance of Existence
. The Company and each of its Restricted
Subsidiaries will (i) preserve, renew and maintain in full force and effect its legal
existence and good standing under the Laws of the jurisdiction of its organization except in
a transaction permitted by
Sections 5.02(d)
or
5.02(e)
; (ii) take all
reasonable action to maintain in rights, privileges, permits, licenses and franchises
necessary for the normal conduct of its business, the non-maintenance of which could
reasonably be expected to have a Material Adverse Effect; and (iii) preserve or renew all of
its registered patents, trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse Effect.
(e)
Maintenance of Properties
. The Company and each of its Restricted
Subsidiaries shall, and shall cause each of their respective Restricted Subsidiaries to,
maintain and preserve (i) in good working order and condition (subject to ordinary wear and
tear) all of its properties necessary in the conduct of its business, (ii) all rights,
permits, licenses, approvals and privileges necessary in the conduct of its business and
(iii) all registered patents, trademarks, trade names, copyrights and service marks with
respect to its business, except where failure to so maintain and preserve the items set
forth in clauses (i), (ii) and (iii) above could not, in the aggregate over all such
failures, reasonably be expected to have a Material Adverse Effect.
(f)
Compliance with Laws, etc.
The Company will, and will cause each of its
Restricted Subsidiaries to, comply in all material respects with all applicable statutes,
Sealed Air Credit Agreement
106
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 Restricted Subsidiaries), except where the necessity of compliance therewith is being
contested in good faith or where failure to so comply could not reasonably be expected to
have a Material Adverse Effect.
(g)
ERISA
. (i)
Reportable Events and ERISA Reports
. (A) Promptly and
in any event within 10 days after any Borrower or any ERISA Affiliate knows or has reason to
know that any Reportable Event has occurred, a statement of the Chief Financial Officer of
the Borrowers describing such Reportable Event and the action, if any, that such Borrower or
such ERISA Affiliate has taken and proposes to take with respect thereto and (B) on the date
any records, documents or other information must be furnished to the PBGC with respect to
any Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and
information.
(ii)
Plan Terminations
. Promptly and in any event within two business
days after receipt thereof by any Borrower or any ERISA Affiliate, copies of each
notice from the PBGC stating its intention to terminate any Plan or to have a
trustee appointed to administer any Plan.
(iii)
Plan Annual Reports
. Promptly and in any event within 30 days
after the filing thereof with the United States Department of Labor, copies of each
Schedule SB (Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Plan.
(iv)
Multiemployer Plan Notices
. Promptly and in any event within five
business days after receipt thereof by any Borrower or any ERISA Affiliate from the
sponsor of a Multiemployer Plan, copies of each notice concerning (A) the imposition
of Withdrawal Liability by any such Multiemployer Plan, or (B) such Multiemployer
Plan is in Reorganization, Insolvent or a determination has been made that the
Multiemployer Plan is in endangered or critical status within the meaning of
Section 432 of the Internal Revenue Code or Section 305 of ERISA and (C) the amount
of liability incurred, or that may be incurred, by such Borrower or any ERISA
Affiliate in connection with any event described in
clause (a)
or (B).
(v) Each Borrower and each Restricted Subsidiary Guarantor shall (a) cause each
of the Canadian Pension Plans of which a Borrower or a Restricted Subsidiary is the
administrator or plan sponsor, to be administered in accordance with the
requirements of the applicable pension plan texts, funding agreements, the
Income
Tax Act
(Canada) and applicable federal, provincial or territorial pension benefits
legislation, except as would not reasonably be expected to have, either individually
or in the aggregate, a Material Adverse Effect; (b) not voluntarily terminate, or
voluntarily cause to be terminated, any Canadian Pension Plan of which a Borrower or
a Restricted Subsidiary is the administrator or plan
Sealed Air Credit Agreement
107
sponsor if such plan would have a solvency deficiency or wind-up deficiency on
termination that could reasonably be expected to have, either individually or in the
aggregate, including following a filing by such Borrower or Restricted Subsidiary
for protection from its creditors pursuant to the Companies Creditors Arrangement
Act (Canada), a Material Adverse Effect; (c) promptly provide the Agent with any
documentation relating to the Canadian Pension Plans as the Agent may reasonably
request, subject to applicable law; (d) notify the Agent within thirty (30) days of
becoming aware of (i) a material increase in the liabilities of any Canadian Pension
Plan, (ii) the establishment of a new registered pension plan, or (iii) the
commencement of payments of contributions to any Canadian Pension Plan to which any
Borrower or Restricted Subsidiary had not previously been paying or contributing, in
each case as could reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect,; (e) promptly notify the Agent on becoming
aware of any order or notice of intention to issue an order from the applicable
pensions standards regulator that could reasonably be expected to cause the
termination, in whole or in part, of any Canadian Pension Plan and (f) promptly
notify the Agent on becoming aware of the occurrence of any event with respect to a
Canadian Pension Plan that is reasonably likely to result in the occurrence by a
Borrower or a Restricted Subsidiary, of any liability, fine or penalty and in the
notice to the Agent thereof, provide copies of all documentation in the possession
of any Borrower or Restricted Subsidiary (or documentation which such Borrower or
Restricted Subsidiary may reasonably request) relating thereto.
(h)
Covenant to Guarantee Obligations and Give Security
.
(i) Upon (w) the formation or acquisition of any new direct or indirect
Wholly-Owned Subsidiary by any Loan Party in a jurisdiction listed on Part I of
Schedule 5.01(h) hereto or any other jurisdiction (other than any jurisdiction
listed on Part II of Schedule 5.01(h) until such time as the Agent reasonably
determines that the costs associated with the respective Subsidiaries entering into
guaranties and granting Liens, and the perfection therof, in such jurisdiction
listed on Part II of Schedule 5.01(h) are materially less than in effect on the
Closing Date) in which, as of the end of the fiscal quarter immediately preceding
the date of determination, the aggregate ebitda (as defined at the end of this
subsection (h)) for the 12 month period ending in such quarter of the Subsidiaries
of the Company operating primarily in such jurisdiction is greater than 3% of ebitda
of the Company and its Restricted Subsidiaries for such 12 month period and for
which the Agent acting in consultation with the Company has reasonably determined
that the value of the guarantees and Liens granted by such Subsidiaries outweighs
the aggregate costs associated in connection therewith, (x) any Subsidiary ceasing
to qualify as an Immaterial Subsidiary, (y) the Borrowers designation of a
Wholly-Owned Unrestricted Subsidiary as a Restricted Subsidiary pursuant to
Section 5.01(l)
(unless such Subsidiary is an Immaterial Subsidiary) or (z)
the acquisition of any property by any Loan Party (subject to the applicable
limitations set forth in the Security Agreement) that is not already subject to a
perfected first priority security interest (subject to
Sealed Air Credit Agreement
108
Permitted Liens) in favor of the Agent for the benefit of the Secured Parties, the Company shall,
in each case at the Companys expense:
(A) in the case of any Domestic Subsidiary, within 60 days after such
formation, acquisition, designation or failure to qualify as an Immaterial
Subsidiary, except to the extent prohibited or restricted by applicable law
or by contract existing on the Closing Date, cause such Domestic Subsidiary
to duly execute and deliver to the Agent a counterpart of the US Subsidiary
Guaranty guaranteeing the other Loan Parties obligations under the Loan
Documents;
provided
the foregoing requirement shall not apply to (i)
Domestic Subsidiaries which are owned directly or indirectly, by one or more
Foreign Subsidiaries, (ii) any Wholly-Owned domestic Restricted Subsidiary
substantially all of the assets of which constitute the equity of controlled
foreign corporations, (iii) Subsidiaries which are designated as, and which
qualify as, Unrestricted Subsidiaries, (iv) captive insurance company
subsidiaries, (v) not-for-profit subsidiaries, (vi) special purpose entities
and (vii) Immaterial Subsidiaries.
(B) in the case of any Foreign Subsidiary, within 60 days after such
formation, acquisition, designation or failure to qualify as an Immaterial
Subsidiary, cause such Foreign Subsidiary to duly execute and deliver to the
Agent a counterpart of the Foreign Subsidiary Guaranty guaranteeing the
other Foreign Subsidiaries obligations under the Loan Documents;
provided
the foregoing requirement shall not apply to (i)
Unrestricted Subsidiaries, (ii) captive insurance companies, (iii)
not-for-profit subsidiaries, (iv) special purpose entities and (v)
Immaterial Subsidiaries.
(C) within 60 days after such formation, acquisition, designation or
failure to qualify as an Immaterial Subsidiary, furnish to the Agent a
description of the real and personal properties of such Subsidiary in detail
reasonably satisfactory to the Agent;
(D) within 60 days after such formation, acquisition, designation or
failure to qualify as an Immaterial Subsidiary, take, and cause such
Subsidiary to take, whatever action (including, without limitation,
supplements to the Security Agreement, supplements to the Intellectual
Property Security Agreements and other security and pledge agreements, in
all such cases, as specified by and in form and substance reasonably
satisfactory to the Agent (including delivery of all Pledged Debt of such
Subsidiary, and other instruments representing such Pledged Debt indorsed in
blank to the extent required by the applicable Collateral Document), in all
such cases to the same extent that such documents and instruments would have
been required to have been delivered by Persons that were Guarantor
Subsidiaries on the Effective Date, securing payment of all the Obligations
of such Subsidiary under the Loan Documents;
Sealed Air Credit Agreement
109
provided
that in no event shall Excluded Foreign Subsidiaries
be required to grant Liens on their properties to secure the Obligations of
the Company or any Domestic Subsidiary of the Company;
(E) with respect to any Material Owned Real Property of a Subsidiary
not owned by such Subsidiary as of the Closing Date, within 60 days after
such formation, acquisition, designation or failure to qualify as an
Immaterial Subsidiary, take, and cause such Subsidiary Guarantor or such
parent to take, whatever action (including, without limitation, the
recording of mortgages, assignments, the filing of Uniform Commercial Code
financing statements, the giving of notices and the endorsement of notices
on title documents) as may be necessary or advisable in the reasonable
opinion of the Agent to vest in the Agent (or in any representative of the
Agent designated by it) valid and subsisting Liens on the Material Owned
Real Property including without limitation delivery of each item set forth
in
Section 5.02(n)
with respect to the property to be mortgaged;
provided
that in no event shall Excluded Foreign Subsidiaries be
required to grant Liens on their properties to secure the Obligations of the
Company or any Domestic Subsidiary of the Company;
(F) contemporaneously with the delivery of such Collateral Documents
required to be delivered to the Agent, upon the request of the Agent in its
reasonable discretion, a signed copy of an opinion, addressed to the Agent
and the other Secured Parties, of counsel for the Loan Parties reasonably
acceptable to the Agent, as to the validity and enforceability of the
agreements entered into pursuant to this
Section 5.01(h)
and as to
such other related matters as the Agent may reasonably request, within 60
days after such formation or acquisition; and
(G) at any time and from time to time, promptly execute and deliver any
and all further instruments and documents and take all such other action as
the Agent may reasonably deem necessary or desirable in perfecting and
preserving the Liens of the Secured Parties under the mortgages, pledges,
assignments, security agreement supplements, Intellectual Property Security
Agreement supplements and security agreements required under the terms of
the Loan Documents.
(ii) The time periods set forth in this
Section 5.01(h)
may be extended
in the reasonable discretion of the Agent, upon the request of the Company, if the
Company and the Loan Parties are actively pursuing same. Any documentation
delivered pursuant to this
Section 5.01(h)
shall constitute a Loan Document
hereunder and any such document creating or purporting to create a Lien in favor of
the Agent for the benefit of the Secured Parties shall constitute a Collateral
Document hereunder.
The foregoing requirements of this
Section 5.01(h)
(a) shall not apply to (i) pledges and
security interests prohibited or restricted by applicable law (including any requirement to obtain
the
Sealed Air Credit Agreement
110
consent of any Governmental Authority or third party), (ii) pledges and security interests in
agreements, licenses and leases that are prohibited or restricted by such agreements, licenses and
leases (including any requirement to obtain the consent of any Governmental Authority or third
party), to the extent prohibited or restricted thereby, and except to the extent such prohibition
or restriction is ineffective under the Uniform Commercial Code or other applicable law, other than
proceeds thereof, the assignment of which is expressly deemed effective under the Uniform
Commercial Code notwithstanding such prohibition, (iii) any assets or guaranty to the extent a
security interest in such assets or the making of such guaranty would result in material adverse
tax consequences as reasonably determined by US Borrower and the Agent, (iv) any real property
interest constituting Principal Property, as defined in the Existing Sealed Air Notes and the
capital stock of any subsidiary which cannot be pledged thereunder without triggering the equal and
ratable clauses thereunder, while any Existing Sealed Air Notes remain outstanding, (v) any
immaterial fee-owned real property and any leasehold interest (it being understood there shall be
no requirement to obtain any landlord waivers, estoppels or collateral access letters), (vi) letter
of credit rights and commercial tort claims valued at less than $5,000,000, (vii) any governmental
licenses or state or local franchises, charters and authorizations, to the extent a security
interest in any such license, franchise, charter or authorization is prohibited or restricted
thereby, (viii) margin stock and to the extent prohibited by the terms of any applicable charter,
joint venture agreement, shareholders agreement or similar agreement, equity interests in any
person other than material Wholly-Owned Restricted Subsidiaries, (ix) any lease, license or
agreement or any property subject to a purchase money security interest or similar arrangement to
the extent that a grant of a security interest therein would violate or invalidate such lease,
license or agreement or purchase money arrangement or create a right of termination in favor of any
other party thereto after giving effect to the applicable anti-assignment provisions of the Uniform
Commercial Code or other applicable law, other than proceeds and receivables thereof, the
assignment of which is expressly deemed effective under the Uniform Commercial Code or other
applicable law notwithstanding such prohibition and (x) in the case of the capital stock of any
Excluded Foreign Subsidiary to secure the Obligations of the Company or any Domestic Subsidiary of
the Company, shall be limited to 65% of the stock of such foreign subsidiary or such U.S. entity,
as the case may be, (b) shall require no actions to perfect a security interest in letter of credit
rights, chattel paper, hedge agreements, tax refunds, motor vehicles and other assets subject to
certificates of title or commercial tort claims other than the filing of a Uniform Commercial Code
financing statement or analogous form and (c) shall require no control agreements with respect to
any Collateral.
For purposed of clause (i) above, ebitda means the net income of the respective Subsidiary for
the respective 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 net income (a) 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 and (f)
depreciation.
(i)
Use of Proceeds
. The Borrowers shall use the entire amount of the proceeds
of the Advances as provided in
Section 2.18
.
Sealed Air Credit Agreement
111
(j)
Payment of Taxes, Etc.
The Company and each Subsidiary shall, pay and
discharge before the same shall become delinquent, all lawful governmental claims, taxes,
assessments, charges and levies (including but not limited to, taxes or levies imposed
pursuant to ERISA), except where (a) contested in good faith, by proper proceedings and
adequate reserves therefor have been established on the books of the Company, the
appropriate Subsidiary in conformity with GAAP or (b) the failure to comply with the
covenants in this
Section 5.01
would not, in the aggregate over all such failures,
have a Material Adverse Effect.
(k)
Maintenance of Ratings
. Use commercially reasonable efforts to maintain at
all times (a) corporate family ratings from Moodys and corporate credit ratings from S&P
and (b) ratings for the Facilities from Moodys and S&P.
(l)
Designation of Subsidiaries
. The board of directors of the Company may at
any time designate any Subsidiary (other than the Company, JPY Borrower or CDN Borrower) as
an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary;
provided
that (a) immediately before and after such designation, no Default
(including in respect of
Section 5.02(d)
) shall have occurred and be continuing and
(b) immediately after giving effect to such designation, the Borrowers shall be in
compliance, on a Pro Forma Basis, with the covenant set forth in
Section 5.03
. The
designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an investment
by the Borrowers therein (and must comply as such with the limitations investments under
Section 5.02(d)
) at the date of designation in an amount equal to the net book value
of the Borrowers investment therein. The designation of any Unrestricted Subsidiary as a
Restricted Subsidiary shall constitute the incurrence at the time of designation of any
Indebtedness or Liens of such Subsidiary existing at such time. Any Subsidiary designated
as an Unrestricted Subsidiary may subsequently be re-designated as a Restricted Subsidiary;
provided
that no Restricted Subsidiary may be designated as an Unrestricted
Subsidiary if it was previously designated as an Unrestricted Subsidiary.
(m)
Post-Closing Matters
. The Borrowers shall ensure that the matters
specified in Schedule 5.01(m) shall be completed or otherwise satisfied as set forth and in
the time periods (as extended by the Agent in its discretion) in such Schedule.
(n)
Belgian Real Estate
. Each Borrower and Guarantor which at any time
acquires real estate located in Belgium shall, within ten Business Days thereof and unless
it has already done so previously, deliver to the Agent a mandate for notarial
acknowledgment of debt granted by it to persons nominated by the Agent, duly executed by two
directors (or, if applicable, such other number of directors or officers as have full
representation powers pursuant to the statutes) of such Borrower or Guarantor, in such form
as the Agent shall request.
(o)
Accounting Changes
. The Loan Parties and Restricted Subsidiaries shall
provide written notice to the Agent at least thirty (30) days prior to any changes in (i)
its accounting policies or reporting practices, except as permitted or required by GAAP or
(ii) its Fiscal Year.
Sealed Air Credit Agreement
112
(p)
Existing Diversey Notes Defeasance
. The Company shall ensure that the
Existing Diversey Notes on
Schedule 5.02(b)
shall be defeased on the Closing Date
strictly in accordance with the terms of the related indenture and shall be satisfied in
full within 70 days of the Closing Date.
(q)
Australian PPSA
. If the Agent determines that a Loan Document (or a
transaction in connection with it) is or contains a security interest for the purposes of
the Australian PPSA, each Borrower and Guarantor agrees to do anything (
such
as
obtaining consents, signing and producing documents, getting documents completed and signed
and supplying information) which the Agent asks and considers necessary for the purposes of:
(i) ensuring that the security interest is enforceable, perfected (including,
where possible, by control in addition to registration) and otherwise effective; or
(ii) enabling the Agent to apply for any registration, or give any
notification, in connection with the security interest so that the security interest
has the priority required by the Agent; or
(iii) enabling the Agent to exercise rights in connection with the security
interest.
SECTION 5.02
Negative Covenants
. So long as any Advance or Letter of Credit shall remain
outstanding or any Lender shall have any Commitment hereunder:
(a)
Liens
. The Company will not, and will not permit any of its Restricted
Subsidiaries to, create, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except:
(i) Liens arising under the Collateral Documents or any incremental amendment
agreement;
(ii) Liens on any asset securing Indebtedness permitted under
Section
5.02(b)(viii)
;
(iii) Liens existing on the date hereof and listed on
Schedule 5.02(a)
hereto;
(iv) 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;
(v) 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;
Sealed Air Credit Agreement
113
(vi) 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;
(vii) 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;
(viii) [Reserved].
(ix) Permitted Liens;
(x) Liens not otherwise permitted by this
Section 5.02(a)
securing
Indebtedness in an aggregate principal amount outstanding at any time not exceeding
$250,000,000;
(xi) Liens pursuant to a Permitted Receivables Financing; and
(xii) Liens pursuant to the Specified Structured Finance Transaction.
(b)
Indebtedness
. None of the Loan Parties will, or will permit any of its
Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness,
except:
(i) Indebtedness under the Loan Documents;
(ii) Indebtedness existing on the date hereof and listed on
Schedule
5.02(b)
hereto and any Permitted Refinancing Indebtedness in respect thereof;
(iii) Indebtedness in respect of the Senior Notes and any Permitted Refinancing
Indebtedness in respect thereof;
(iv) 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
determined 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;
(v) Indebtedness of (A) any Loan Party to any other Loan Party; (B) any Group
Member which is not a Loan Party to any other Group Member
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114
which is also not a Loan
Party; (C) any Loan Party to any Group Member which is not a Loan Party and (D) any Group Member which is not a Loan Party to any Loan Party
to the extent permitted pursuant to
Section 5.02(d)(x)
, and in each case as
applicable including Indebtedness in connection with obligations under Liquidity
Structures;
provided
that in each case of
subclauses (A)
through
(D)
of this
clause (v)
, (x) all such Indebtedness owing by or
payable by a Loan Party, shall be subordinated to the Secured Obligations on terms
reasonably satisfactory to the Agent and (y) all such Indebtedness to the extent
owed to a Loan Party, be pledged to the Agent for the benefit of the applicable
Secured Parties under the applicable Collateral Documents;
(vi) Indebtedness in connection with issuance of one or more performance bonds
securing obligations of the type set forth in
clauses (a)
and
(b)
of
the definition of Permitted Liens;
(vii) Indebtedness in connection with Cash Management Obligations;
(viii) Capital Lease Obligations and purchase money obligations for fixed or
capital assets in an aggregate amount not to exceed $100,000,000 outstanding at any
time;
(ix) Subject to the proviso at the end of this
Section 5.02(b)
, other
Indebtedness;
provided
that no Event of Default has occurred and is
continuing at the time of incurrence thereof and on the date of incurrence thereof
either (a) the Company shall be in compliance with the financial covenant set forth
in
Section 5.03
(except that for purposes of determining compliance with
this
clause (ix)
, the applicable Net Total Leverage Ratio in
Section
5.03
shall be reduced by 0.50:1.00) determined as of the end of the fiscal
quarter immediately preceding such date on a Pro Forma Basis to include such
Indebtedness and all other Indebtedness incurred since the end of such fiscal
quarter or (b) the Company shall be in compliance with the financial covenant set
forth in
Section 5.03
determined as of the end of the fiscal quarter
immediately preceding such date on a Pro Forma Basis to include such Indebtedness
and all other Indebtedness incurred since the end of such fiscal quarter
and
the Interest Coverage Ratio is equal to or greater than 2.00:1.00, as determined on
a Pro Forma Basis as of the end of the fiscal quarter immediately preceding such
date;
(x) other Indebtedness in an aggregate principal amount not to exceed
$400,000,000 outstanding at any one time;
(xi) Indebtedness in respect of Permitted Receivables Financings and the
Specified Structured Finance Transactions;
provided
that, in the event the
aggregate size of Permitted Receivables Financings pursuant to this
clause
(xi)
exceeds $150,000,000 (or the Equivalent thereof at the time of incurrence),
then 100% of all additional Indebtedness in respect of Permitted Receivables
Financings shall be applied to the mandatory repayment of indebtedness under this
Agreement under the terms of
Section 2.11(b)(ii)(C)
hereof
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115
(xii) any liability arising under a declaration of joint and several liability
(
hoofdelijke aansprakelijkheid
) as referred to in Section 2:403 of the Dutch Civil
Code;
(xiii) any liability arising as a result of Group Members forming part of a
fiscal unity (
fiscale eenheid
);
(xiv) unsecured Indebtedness of any Foreign Subsidiary in an aggregate amount
not to exceed $250,000,000 outstanding at any time;
provided
that, 100% of
all Indebtedness incurred pursuant to this
clause (xiv)
shall be applied to
the mandatory repayment of indebtedness under this Agreement under the terms of
Section 2.11(b)(ii)(C)
hereof; and
(xv) Indebtedness of the Company or any Restricted Subsidiary in connection
with obligations under Liquidity Structures.
provided
that notwithstanding anything to the contrary contained in
clauses
(ix)
and
(x)
above, the total aggregate amount of Indebtedness incurred
thereunder by all Restricted Subsidiaries that are not Subsidiary Guarantors shall not
exceed an aggregate amount of $250,000,000 outstanding at any time.
(c)
Restricted Payments
. Neither the Company nor any Restricted Subsidiary
will, directly or indirectly, declare or make any Restricted Payment or incur any obligation
(contingent or otherwise) to do so, except:
(i) the Company and its Restricted Subsidiaries may make dividends and other
distributions payable solely in Equity Interests of such Person;
(ii) (A) any Group Member may make distributions to the Company or to any Loan
Party, and (B) any Group Member which is not a Loan Party may make distributions to
any other Group Member which is also not a Loan Party;
provided
that in the
case of Restricted Payments in the form of distributions from Subsidiaries of the
Company that are not Wholly-Owned Subsidiaries of the Company (whether directly or
indirectly held), such distributions are made on a ratable basis to all equity
holders;
provided
further
that in no event shall any Domestic
Subsidiaries be permitted to make Restricted Payments to any Foreign Subsidiaries
that are not Loan Parties under this provision (it being understood and agreed that
(i) distributions may be made by Loan Parties to any Group Member that is not a Loan
Party as part of a related series of transactions in which the money or property
being distributed ultimately is received by a Loan Party and (ii) distributions may
be made by Domestic Subsidiaries to Foreign Subsidiaries that are not Loan Parties
as part of a related series of transactions in which the money or property being
distributed ultimately is received by a Foreign Subsidiary that is a Loan Party;
provided
however, that to the extent any related series of transactions,
as referred to in this
Section 5.02(c)(ii)
, involves a transaction that is
not a distribution, such transaction, as determined by the Agent, shall not
adversely affect the interests of the Lenders);
Sealed Air Credit Agreement
116
(iii) repurchases of Equity Interests in a cashless transaction deemed to occur
upon exercise or vesting of restricted stock, stock options or warrants;
(iv) to the extent constituting Restricted Payments, the Company and its
Restricted Subsidiaries may enter into transactions permitted by
Sections
5.02(e)
and
5.02(f)
;
(v) the Company may make Restricted Payments in cash in an aggregate amount not
to exceed (a) for the Fiscal Year ended December 31, 2011, $40,000,000, (b)
$135,000,000 for the Fiscal Year ended December 31, 2012, (c) $150,000,000 for the
Fiscal Year ended December 31, 2013, (d) $160,000,000 for the Fiscal Year ended
December 31, 2014 and (e) $175,000,000 for the Fiscal Year ended December 31, 2015
and each Fiscal Year thereafter;
provided
,
however
, that if the
amount of Restricted Payments in cash by the Company is less than the amount
permitted hereunder in the applicable Fiscal Year (the
Unused Amount
), the
Unused Amount may be carried forward for such payments permitted hereunder in the
immediately succeeding two Fiscal Years; and
provided
,
further
, to
the extent any such Unused Amount is carried forward to subsequent years, it will be
deemed used in the applicable subsequent Fiscal Year before the amount provided
above for such Fiscal Year;
(vi) the Company may make Restricted Payments in cash if the Net Total Leverage
Ratio as of the end of the fiscal quarter immediately preceding the date of such
Restricted Payment on a Pro Forma Basis is less than 2.50:1.00;
(vii) the Company may make Restricted Payments in cash in an aggregate amount
not to exceed the Available Basket Amount on the date of such Restricted Payment;
(viii) Restricted Payments by the Company and its Restricted Subsidiaries in
respect of the Specified Structured Finance Transactions and Specified Foreign
Restructuring Transactions; and
(ix) Restricted Payments to pay for the settlement, repurchase, retirement or
other acquisition or retirement for value, or satisfaction of any obligation, of
Equity Interests of the Company or any direct or indirect parent company of the
Company held by any future, present or former employee, director, manager or
consultant of the Company, any of its Subsidiaries or any direct or indirect parent
company of the Company pursuant to any management equity plan or stock option plan
or any other management or employee benefit plan or agreement, or any stock
subscription or shareholder agreement (including, for the avoidance of doubt, any
principal and interest payable on any notes issued by the Company or any direct or
indirect parent company of the Company in connection with such repurchase,
retirement or other acquisition), including any Equity Interests rolled over by
management of the Company or any direct or indirect parent company of the Company in
connection with the Transactions; provided that the aggregate Restricted Payments
made under this clause (ix) do
Sealed Air Credit Agreement
117
not exceed in any calendar year $10,000,000 (with unused amounts in any
calendar year being carried over to succeeding calendar years subject to a maximum
(without giving effect to the following proviso) of $15,000,000 in any calendar
year); provided further that such amount in any calendar year may be increased by an
amount not to exceed: (A) the cash proceeds from the sale of Equity Interests of
the Company and, to the extent contributed to the Company, the cash proceeds from
the sale of Equity Interests of any direct or indirect parent company of the
Company, in each case to any future, present or former employees, directors,
managers or consultants of the Company, any of its Subsidiaries or any direct or
indirect parent company of the Company that occurs after the Closing Date, plus (B)
the cash proceeds of key man life insurance policies received by the Company and the
Restricted Subsidiaries after the Closing Date, less (C) the amount of any
Restricted Payments previously made pursuant to clauses (A) and (B) of this clause
(ix); and provided further that cancellation of Indebtedness owing to the Company or
any Restricted Subsidiary from any future, present or former employees, directors,
managers or consultants of the Company, any direct or indirect parent company of the
Company or any Restricted Subsidiary in connection with a repurchase of Equity
Interests of the Company or any direct or indirect parent company of the Company
will not be deemed to constitute a Restricted Payment for purposes of this Section
5.02(c) or any other provision of this Agreement; and
(x) any Restricted Payment made in connection with the Transactions and the
fees and expenses related thereto or used to fund amounts owed to Affiliates
(including dividends to any direct or indirect parent company of Holdings to permit
payment by such parent of such amount), to the extent permitted by Section 5.02(h).
(d)
Investments
. Neither the Company nor any Restricted Subsidiary will,
directly or indirectly, make or hold any Investments, except:
(i) Investments held by the Company or any of its Restricted Subsidiaries in
the form of Cash Equivalents;
(ii) Investments existing on the date hereof and listed on
Schedule
5.02(d)
(or with respect to Investments in Equity Interests, listed on Schedule
4.01(l)) hereto and extensions, renewals, modifications, restatements or
replacements thereof;
provided
, that no such extension, renewal,
modification or restatement shall increase the amount of the original loan, advance
or investment, except by an amount equal to any premium or other reasonable amount
paid in respect of the underlying obligations and fees and expenses incurred in
connection with such replacement, renewal or extension;
(iii) advances to officers, directors and employees of the Company and its
Restricted Subsidiaries in an aggregate amount not to exceed $15,000,000 at any time
outstanding, for travel, entertainment, relocation and analogous ordinary business
purposes;
Sealed Air Credit Agreement
118
(iv) Investments consisting of extensions of credit in the nature of accounts
receivable or notes receivable arising from the grant of trade credit in the
ordinary course of business, and Investments received in satisfaction or partial
satisfaction thereof from financially troubled account debtors to the extent
reasonably necessary in order to prevent or limit loss;
(v) Investments (including debt obligations and Equity Interests) received in
satisfaction of judgments or in connection with the bankruptcy or reorganization of
suppliers and customers of the Company and its Restricted Subsidiaries and in
settlement of delinquent obligations of, and other disputes with, such customers and
suppliers arising in the ordinary course of business;
(vi) Permitted Acquisitions;
(vii) Investments consisting of extensions of credit or endorsements for
collection or deposit in the ordinary course of business;
(viii) promissory notes and other similar non-cash consideration received by
the Company and its Restricted Subsidiaries in connection with dispositions not
otherwise prohibited under this Agreement;
(ix) Investments in Swap Contracts entered into in order to manage existing or
anticipated interest rate, exchange rate or commodity price risks and not for
speculative purposes;
(x) (A) Investments by the Company or its Restricted Subsidiaries in any Loan
Party or entity that becomes a Loan Party as a result of such Investment,
provided
that, the amount of Investments by any Domestic Loan Party under
this clause (x)(A) in any Loan Party that is not a Domestic Loan Party shall be
subject to the applicable restriction in the definition of Liquidity Structures, (B)
Investments by any Group Member which is not a Loan Party in any other Group Member
which is also not a Loan Party and (C) Investments by any Loan Party in a Group
Member which is not a Loan Party in an aggregate amount not to exceed $200,000,000
(exclusive of any amounts permitted pursuant to clause (A) above) at any time (net
of any returns of capital);
(xi) Guarantees of Leases and of other obligations not constituting
Indebtedness of the Company and its Restricted Subsidiaries entered into in the
ordinary course of business;
(xii) Investments by the Company or any of its Restricted Subsidiaries if the
Net Total Leverage Ratio as of the end of the fiscal quarter immediately preceding
the date of such Investment on a Pro Forma Basis is less than 2.50:1.00;
(xiii) Investments by the Company and its Restricted Subsidiaries in an
aggregate amount not to exceed the Available Basket Amount on the date of such
Investment;
Sealed Air Credit Agreement
119
(xiv) Investments the by Company and its Restricted Subsidiaries made in cash
in an aggregate amount not to exceed $125,000,000 at any time outstanding;
(xv) Investments by the Company and its Restricted Subsidiaries in respect of
the Specified Structured Finance Transactions and the Specified Foreign
Restructuring Transactions;
(xvi) any Investments made in connection with the Transactions and the fees and
expenses related thereto or used to fund amounts owed to Affiliates, to the extent
permitted by Section 5.02(h); and
(xvii) Investments constituting loans and advances among the Company and its
Restricted Subsidiaries for working capital and other ordinary course purposes
pursuant to, and in accordance with, the Liquidity Structures,
provided
that, notwithstanding anything to the contrary contained herein, the
Company may, or may cause its Subsidiaries to, purchase preferred stock of Diversey on or
about the date hereof.
(e)
Dispositions
. Neither the Company nor any Restricted Subsidiary will make
any Disposition or enter into any agreement to make any Disposition, except:
(i) Dispositions of obsolete, worn out, damaged, surplus or otherwise no longer
used or useful machinery, parts, equipment or other assets no longer used or useful
in the conduct of the business of the Company or any of its Restricted Subsidiaries
in the ordinary course of business;
(ii) Dispositions of Cash Equivalents and inventory in the ordinary course of
business (including the sale, transfer or other disposition of overdue or disputed
accounts receivable, in connection with the compromise or collection thereof) and
the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(iii) Dispositions of property subject to Events of Loss;
(iv) the sale or issuance of any Subsidiarys Equity Interests to the Company
or any Restricted Subsidiary;
provided
that any Subsidiary Guarantor shall
only issue or sell its Equity Interests to the Company or another Loan Party;
(v) Dispositions by the Company to any Subsidiary, or by any Subsidiary to the
Company or to another Subsidiary of the Company;
provided
that if the
transferor is a Restricted Subsidiary, the transferee thereof must either be the
Company or a Restricted Subsidiary;
provided
,
further
that if the
transferor is the Company or a Guarantor, the transferee must be either the Company
or a Guarantor;
provided
,
further
that the immediately preceding
proviso shall not be applicable if either (i) (w) the transferor is a Domestic Loan
Party and the transferee is a Foreign Subsidiary that is not a Loan Party, (x) the
assets being
Sealed Air Credit Agreement
120
transferred are Equity Interests in a Foreign Subsidiary and are being
transferred as part of a foreign subsidiary rationalization program effected in good
faith by the Company and (y) the transfer is made for fair market value as
determined by the Company in its reasonable discretion or (ii) (w) the transferor is
a Foreign Subsidiary that is Loan Party and the transferee is a Foreign Subsidiary
that is not a Loan Party, (x) the assets being transferred are Equity Interests, (y)
the transfer is made for cash consideration payable in immediately available funds
and (z) the transfer is made for fair market value as determined by the Company in
its reasonable discretion (it being understood and agreed that Dispositions may be
made between Loan Parties as part of a related series of transactions in which the
money or property being transferred ultimately is received by a Loan Party;
provided
however, to the extent any related series of transactions, as
referred to in this
Section 5.02(e)(v)
, involves a transaction with a Person
that is not a Loan Party, such transaction shall not adversely affect the interests
of the Lenders as determined by the Agent);
(vi) Dispositions that are Investments not prohibited by
Section
5.02(d)
;
(vii) Dispositions of property or assets from a Loan Party to a Subsidiary that
is not a Loan Party or to a joint venture of a Loan Party;
provided
, that as
of the date of such Disposition the aggregate fair market value of property and
assets subject to such Dispositions (determined at the time of such Dispositions)
pursuant to this clause (vii) during the term of this Agreement does not exceed
$50,000,000;
(viii) Dispositions of Unrestricted Subsidiaries;
(ix) Leases, subleases, licenses or sublicenses of assets or properties in the
ordinary course of business and which do not materially interfere with the business
of the Company and its Restricted Subsidiaries;
(x) Dispositions of IP Rights which, in the reasonable good faith determination
of the Borrower, are not material to the conduct of the business of the Company and
its Restricted Subsidiaries, the expiration and abandonment of IP Rights and other
transfers of IP Rights and copyrighted material in the ordinary course of business
or that are otherwise not material to the conduct of the business of the Company and
its Restricted Subsidiaries;
(xi) Dispositions of assets or properties to the extent that such assets or
properties are exchanged for credit against the purchase price of similar
replacement assets or properties or the proceeds of such Disposition are reasonably
promptly applied to the purchase price of such replacement assets or properties, in
each case, in the ordinary course of business;
(xii) termination of Swap Contracts;
Sealed Air Credit Agreement
121
(xiii) other Dispositions by the Company and its Restricted Subsidiaries;
provided
that (a) at the time of such Disposition, no Event of Default has
occurred and is continuing, (b) the aggregate book value of all property Disposed of
in reliance on this clause (xiii) in any Fiscal Year shall not exceed 15% of the
Companys Consolidated Net Tangible Assets, as determined as of the last day of the
preceding Fiscal Year, and (c) at least 75% of the consideration received in
connection with each such Disposition shall be in the form of cash or Cash
Equivalents;
(xiv) any other Disposition identified prior to the Closing Date and set forth
on
Schedule 5.02(e)
hereto;
(xv) sales of any receivables in connection with a single Permitted Receivables
Financing with a total aggregate maximum facility size not to exceed $250,000,000
(or the Equivalent thereof at the time of incurrence); and
(xvi) Dispositions pursuant to the Specified Structured Finance Transaction.
(f)
Fundamental Changes
. The Company will not, and will not permit any of the
Restricted Subsidiaries to, enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey,
sell, lease, assign, transfer or otherwise dispose of, all or substantially all its business
units, assets or other properties, except that:
(i) so long as no Default or Event of Default has occurred and is continuing or
would result therefrom, any Subsidiary of the Company or any other Person may be
merged, amalgamated or consolidated with or into the Company or any Borrower;
provided
that (A) the Company or such Borrower shall be the continuing or
surviving entity or (B) if the Person formed by or surviving any such merger,
amalgamation or consolidation is not the Company or such Borrower (such other
Person, the
Successor Borrower
), (1) the Successor Borrower shall, as the
case may be, be an entity organized or existing under the laws of the United States,
any state thereof, the District of Columbia or any territory thereof or in the case
of a Borrower that is a Foreign Subsidiary, under the law of the jurisdiction where
the relevant Borrower that is a Foreign Subsidiary was organized, (2) the Successor
Borrower shall expressly assume all the obligations of the Company or such Borrower
under this Agreement and the other Loan Documents pursuant to a supplement hereto or
thereto in form reasonably satisfactory to the Agent, (3) each Guarantor, unless it
is the other party to such merger or consolidation, shall have by a supplement to
the Guarantee confirmed that its guarantee thereunder shall apply to any Successor
Borrowers obligations under this Agreement, (4) each Subsidiary grantor and each
Subsidiary pledgor, unless it is the other party to such merger or consolidation,
shall have by a supplement to any applicable Security Document, affirmed that all of
its obligations thereunder shall still apply and (6) the Successor Borrower shall
have delivered to the Agent an officers certificate
Sealed Air Credit Agreement
122
stating that such merger or consolidation and such supplements preserve the
enforceability of the Guarantee and the perfection and priority of the Liens under
the applicable Security Documents (it being understood that if the foregoing are
satisfied, the Successor Borrower will succeed to, and be substituted for, the
Company or such Borrower, as applicable, under this Agreement);
(ii) so long as no Default or Event of Default has occurred and is continuing
or would result therefrom, any Subsidiary of the Company or any other Person may be
merged, amalgamated or consolidated with or into any one or more Subsidiaries of the
Company,
provided
that (i) in the case of any merger, amalgamation or
consolidation involving one or more Restricted Subsidiaries, (A) a Restricted
Subsidiary shall be the continuing or surviving Person or (B) the Company shall take
all steps necessary to cause the Person formed by or surviving any such merger,
amalgamation or consolidation (if other than a Restricted Subsidiary) to become a
Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation
involving one or more Guarantors, a Guarantor shall be the continuing or surviving
Person or the Person formed by or surviving any such merger, amalgamation or
consolidation (if other than a Guarantor) shall, execute a supplement to the
Guarantee Agreement and the relevant Security Documents in form and substance
reasonably satisfactory to the Agent in order to become a Guarantor and pledgor,
mortgagor and grantor, as applicable, thereunder for the benefit of the Secured
Parties, (iii) no Default or Event of Default has occurred and is continuing or
would result from the consummation of such merger, amalgamation or consolidation and
(iv) the Company shall have delivered to the Agent an officers certificate stating
that such merger, amalgamation or consolidation and any such supplements to any
Security Document preserve the enforceability of the Guarantees and the perfection
and priority of the Liens under the applicable Security Documents;
(iii) the Acquisition may be consummated;
(iv) any Restricted Subsidiary that is not a Loan Party may sell, lease,
transfer or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Company or any other Restricted Subsidiary;
(v) any Subsidiary may sell, lease, transfer or otherwise dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to any Loan Party,
provided
that the consideration for any such disposition by any Person other
than a Guarantor shall not exceed the fair value of such assets;
(vi) any Restricted Subsidiary may liquidate or dissolve if the Company
determines in good faith that such liquidation or dissolution is in the best
interests of the Company and is not materially disadvantageous to the Lenders;
(vii) to the extent that no Default or Event of Default would result from the
consummation of such disposition or investment, the Company and the
Sealed Air Credit Agreement
123
Restricted Subsidiaries may consummate a merger, dissolution, liquidation,
consolidation, investment or disposition, the purpose of which is to effect a
Disposition permitted pursuant to
Section 5.02(e)
or an Investment permitted
pursuant to
Section 5.02(d)
;
(viii) the Company and the Restricted Subsidiaries may consummate an Asset Sale
constituting the sale of manufacturing facilities and related assets, in connection
with establishing outsourcing arrangements providing substantially similar
functionality;
(ix) the Specified Foreign Restructuring Transactions may be consummated; and
(x) any other transaction set forth on
Schedule 5.02(e)
may be
consummated;
provided
,
however
, except as permitted by
Section 5.01(e)(x)(v)
,
Section 5.02(e)(xiv)
,
Section 5.02(f)(ix)
or
Section 5.02(f)(x)
, 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
to the extent that such transfer or series of related transfers (A)
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, (B) are made for cash consideration payable in immediately available
funds (provided that this clause (B) shall not apply to any transfer of Equity Interest for which
reasonable equivalent non-cash value is given),
and
(C) are made for consideration equal to
the value of the asset or assets that would be attributed to such asset or assets being transferred
by an independent and unaffiliated third party purchasing such assets in an arms-length sale
transaction as of such date, as determined in good faith by the Company.
(g)
Change in Nature of Business
. The Company will not, and will not permit
any of its Restricted 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 Closing Date,
plus
extensions and expansions thereof, and businesses and activities incidental or
related thereto.
(h)
Transactions with Affiliates
. Neither any Loan Party nor any Restricted
Subsidiary will effect any transaction with any Affiliate of the Company that is not a
Restricted Subsidiary, having a value, or for consideration having a value, in excess of
$50,000,000 unless the board of directors (or the person duly authorized to perform similar
functions) of the Company or such Restricted Subsidiary shall make a good faith
determination that the terms of such transaction are, taken as a whole, no less favorable to
the Company or such Restricted Subsidiary, as the case may be, than would at the time be
obtainable for a comparable transaction in arms-length dealing with an unrelated third
party;
provided
,
however
, that this
Section 5.02(h)
shall not apply
to (i) overhead and other ordinary course allocations of costs and services on a reasonable
basis, (ii) allocations of tax liabilities and other tax-related items among the Company and
its
Sealed Air Credit Agreement
124
Affiliates based principally upon the financial income, taxable income, credits and
other amounts directly related to the respective parties, to the extent that the share of
such liabilities and other items allocable to the Company and its Restricted Subsidiaries
shall not exceed the amount that such Persons would have been responsible for as a direct
taxpayer and (iii) any Investment permitted by
Section 5.02(d)
or any Restricted
Junior Payment permitted by
Section 5.02(m)
, and (iv) the Specified Foreign
Restructuring Transactions, the Liquidity Structure and/or the Specified Structured Finance
Transactions;
provided
,
further
, that this provision shall not permit
Dispositions, sales, loans, leases, assignments, transfers or other dispositions to any
Foreign Subsidiary which is otherwise restricted under any other provisions of this
Section 5.02
.
(i)
Speculative Hedging Activities
. Neither the Company nor any Restricted
Subsidiary will enter into any Swap Contracts other than in the ordinary course of business
for non-speculative purposes and consistent with sound business practice.
(j)
Amendments of Certain Documents
. None of the Loan Parties will enter into
any amendment, or agree to or accept any waiver, of any of the provisions of (i) the
certificate of incorporation, formation or organization, by-laws, limited liability company
agreement, partnership agreement, operating agreement or any other governing and
organizational document of any of the Loan Parties or (ii) the Merger Agreement or the
Senior Notes, in each case if doing so would materially adversely affect the rights of the
Loan Parties, the Agent and the Lenders, or any of them.
(k)
Sales and Leasebacks
. Except as set forth on
Schedule 5.02(k)
,
neither any Loan Party nor any Restricted Subsidiary will (i) become or remain liable as
lessee or as a guarantor or other surety with respect to any lease of any property, whether
now owned or hereafter acquired (A) which such Loan Party has sold or transferred or is to
sell or transfer to any other Person (other than another Loan Party) or (B) which such Loan
Party intends to use for substantially the same purpose as any other property which has been
or is to be sold or transferred by a Loan Party to any Person (other than another Loan
Party) in connection with such lease, or (ii) create, incur, assume or suffer to exist any
obligations as lessee under operating leases or agreements to lease having an original term
of one year or more that would cause the direct and contingent liabilities of the Company
and its Subsidiaries, on a consolidated basis, in respect of all such obligations to exceed
$50,000,000 payable in any period of 12 consecutive months.
(l)
Negative Pledge
. Neither any Loan Party nor any Restricted Subsidiary will
enter into or suffer to exist, or permit any of its Restricted Subsidiaries to enter into or
suffer to exist, any agreement prohibiting or conditioning the creation or assumption of any
Lien upon any of its assets or property except (i) agreements in favor of the Secured
Parties, (ii) agreements governing Indebtedness or other arrangements secured by Liens
permitted under
Section 5.02(a))
so long as such restrictions extend only to the
property acquired with or subject to such Indebtedness, (iii) agreements in existence on the
Closing Date and set forth on
Schedule 5.02(l)
including any renewals, extensions or
replacements of such agreements on terms not materially less favorable to the interests of
the Lenders than those in effect on the date of this Agreement, (vi) purchase money
obligations for property acquired in the ordinary course of business, (v) pursuant to any
Sealed Air Credit Agreement
125
requirement of law or any applicable rule, regulation or order, (vi) any agreement or
other instrument of a Person acquired by or merged or consolidated with or into the Company
or any Restricted Subsidiary, or of an Unrestricted Subsidiary that is designated a
Restricted Subsidiary, or that is assumed in connection with the acquisition of assets from
such Person, in each case that is in existence at the time of such transaction (but not
created in contemplation thereof), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person and its
Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired or
designated, (vii) contracts for the sale of assets, including customary restrictions with
respect to a Subsidiary of Holdings pursuant to an agreement that has been entered into for
the sale or disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary, (viii) restrictions on cash or other deposits or net worth imposed by customers
under contracts entered into in the ordinary course of business, (ix) customary provisions
in joint venture agreements or arrangements and other similar agreements or arrangements
relating solely to such joint venture, (x) customary provisions contained in leases,
sub-leases, licenses, sub-licenses or similar agreements, in each case, entered into in the
ordinary course of business and (xi) restrictions created in connection with any Permitted
Receivables Financing that, in the good faith determination of the board of directors of
Holdings, are necessary or advisable to effect such Permitted Receivables Financing.
(m)
Restricted Junior Payments
. Neither any Loan Party nor any Restricted
Subsidiary will, or will permit any of their Restricted Subsidiaries to, directly or
indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior
Payment, except:
(i) the Company may make Restricted Junior Payments if the Net Total Leverage
Ratio as of the end of the fiscal quarter immediately preceding the date of such
Restricted Junior Payment on a Pro Forma Basis is less than 2.50:1.00;
(ii) the Company may make Restricted Junior Payments in cash in an aggregate
amount not to exceed the Available Basket Amount on the date of such Restricted
Junior Payment;
(iii) the Company may make Restricted Junior Payments by the conversion of the
applicable Indebtedness to common equity of the Company or Qualified Preferred
Equity of the Company, applying the Net Cash Proceeds of the issuance of such common
equity or such Qualified Preferred Equity to the payment of such Indebtedness or
exchanging such Indebtedness solely for such common equity or such Qualified
Preferred Equity or Subordinated Indebtedness of the Company; and
(iv) the Company may make other Restricted Junior Payments in cash in an
aggregate amount not to exceed $100,000,000 during the term of this Agreement.
Sealed Air Credit Agreement
126
provided
that, notwithstanding anything to the contrary herein, the Company may, or
may cause its Subsidiaries to, enact the Diversey Refinancing or otherwise prepay, redeem or
defease the Existing Diversey Notes.
(n)
Capital Increase
. The Company and the Loan Parties shall procure that the
stated share capital of (i) any Loan Party incorporated in Germany as a limited liability
company (
Gesellschaft mit beschränkter Haftung
) or (ii) any general partner of a Loan Party
which is established in Germany as a limited liability partnership or a partnership (
GmbH &
Co. KG / GmbH & Co. oHG
) will not be increased without the prior written consent of the
Agent.
Notwithstanding anything in this Agreement to the contrary, (i) during any period of time that (A)
the Ratings Condition has been satisfied and, as of the applicable date of determination, has
remained satisfied for an uninterrupted period of at least 30 consecutive days,
and
(B) no
Event of Default has occurred and is continuing (the simultaneous occurrence of both of the events
described in the foregoing clauses (A) and (B) being collectively referred to as a
Covenant
Suspension Event
), the Company and the Restricted Subsidiaries will not be required comply
with the terms of
Sections 5.02(c)
,
5.02(d)
,
5.02(e)
,
5.02(k)
and
5.02(m)
collectively, the
Suspension Covenants
), and (ii) during any period of
time when a Covenant Suspension Event shall have occurred and be continuing
and
the
Interest Coverage Ratio is greater than or equal to 2.00:1.00 (as determined on a Pro Forma Basis,
giving effect to each anticipated indebtedness incurrence event, as of the end of the fiscal
quarter immediately preceding such date), the Company and the Restricted Subsidiaries will not be
required to comply with the terms of
clauses (i)
through
(xi)
of
Section
5.02(b)
(but, for the avoidance of doubt, will still be required to comply with the proviso at
the end of
Section 5.02(b)
) of such
Section 5.02(b)
(the
Suspension Debt
Covenant
). In the event that the Company and the Restricted Subsidiaries are not required to
comply with the Suspension Covenants or the Suspension Debt Covenant for any period of time as a
result of the foregoing, and on any subsequent date (the
Reversion Date
) the Ratings
Condition is not satisfied (or in the case of the Suspension Debt Covenant, the Interest Coverage
Ratio shall be less than 2.00:1.00 as of such date), then the Company and the Restricted
Subsidiaries will thereafter again be required to comply with the Suspension Covenants, and the
Suspension Debt Covenant with respect to any future events or transactions. Notwithstanding that
the Suspension Covenants and the Suspension Debt Covenant may be reinstated, no Default, Event of
Default or breach of any kind shall be deemed to exist under any Loan Document with respect to the
Suspension Covenants or Suspension Debt Covenant, as the case may be, and none of the Company or
any of its Subsidiaries shall bear any liability for any actions taken or events occurring during
the Suspension Period, or any actions taken at any time pursuant to any contractual obligation
arising prior to the Reversion Date, as a result of a failure to comply with the Suspension
Covenants or the Suspension Debt Covenant during the Suspension Period (or upon termination of the
Suspension Period or after that time based solely on events that occurred during the Suspension
Period);
provided
, that all prepayment obligations contained herein that make reference to
any Suspension Covenant shall survive regardless of the occurrence of a Covenant Suspension Event.
SECTION 5.03
Company Net Total Leverage Ratio
. So long as any Advance or Letter of Credit shall
remain outstanding or any Lender shall have any Commitment hereunder, the Company will not permit
the Net Total Leverage Ratio for any Test Period ending
Sealed Air Credit Agreement
127
on the last day of a fiscal quarter set forth below to be greater than the ratio set forth
opposite such Test Period below:
|
|
|
|
|
Fiscal Quarter Ending
|
|
Net Total Leverage Ratio
|
December 31, 2011
|
|
|
5.50:1.00
|
|
March 31, 2012
|
|
|
5.50:1.00
|
|
June 30, 2012
|
|
|
5.75:1.00
|
|
September 30, 2012
|
|
|
5.50:1.00
|
|
December 31, 2012
|
|
|
5.25:1.00
|
|
March 31, 2013
|
|
|
5.00:1.00
|
|
June 30, 2013
|
|
|
4.75:1.00
|
|
September 30, 2013
|
|
|
4.75:1.00
|
|
December 31, 2013
|
|
|
4.50:1.00
|
|
March 31, 2014
|
|
|
4.50:1.00
|
|
June 30, 2014
|
|
|
4.25:1.00
|
|
September 30, 2014
|
|
|
4.25:1.00
|
|
December 31, 2014
|
|
|
4.00:1.00
|
|
March 31, 2015
|
|
|
4.00:1.00
|
|
June 30, 2015
|
|
|
3.75:1.00
|
|
September 30, 2015
|
|
|
3.75:1.00
|
|
December 31, 2015
|
|
|
3.50:1.00
|
|
March 31, 2016
|
|
|
3.50:1.00
|
|
June 30, 2016
|
|
|
3.25:1.00
|
|
September 30, 2016 and thereafter
|
|
|
3.25:1.00
|
|
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 five 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)(v)(A
),
5.01(d)
,
5.01(i)
,
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)
and other
Sealed Air Credit Agreement
128
than
Section 5.03
but including
Sections 5.02(f)
and
(g)
)
contained in this Agreement and such default described in this clause (ii) shall continue
unremedied for a period of 30 days after written notice to the Company by the Agent or the
Required Lenders; or
(d)
Default Under Other Agreements
. (i) The Company or any of its
Subsidiaries shall (x) default in any payment of any Indebtedness (other than the Notes)
beyond the period of grace, if any, provided in the instrument or agreement under which such
Indebtedness was created or (y) default in the observance or performance of any agreement or
condition relating to any Indebtedness (other than the Notes) or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause (determined without regard to whether any notice is required),
any such Indebtedness to become due prior to its stated maturity, or (ii) any Indebtedness
of the Company or any of its Subsidiaries shall be declared to be due and payable, or
required to be prepaid other than by a regularly scheduled or other mandatory required
prepayment or by reason of optional prepayment or tender by the issuer at its discretion,
prior to the stated maturity thereof;
provided
that it shall not constitute an Event
of Default pursuant to this clause (d) unless the aggregate amount of all Indebtedness
referred to in clauses (i) and (ii) above exceeds $75,000,000 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, in the case of a Foreign Subsidiary, any similar proceedings
in the jurisdiction or state under the laws of which such Foreign Subsidiary is organized;
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 any Material Subsidiary having its center of main
interests in German is unable to pay its debts when they fall due (
zahlungsunfähig
) or
over-indebted (
überschuldet
) within the meaning sect. 17 or 19 of the German Insolvency
Code, or any third party has filed for the opening of
Sealed Air Credit Agreement
129
insolvency proceedings with respect to such Material Subsidiary unless such filing is
obviously frivolous (
offensichtlich rechtsmissbräuchlich
) and is dismissed by the relevant
insolvency court within 14 days, or the managing directors of such Material Subsidiary have
filed for the opening of insolvency proceedings; or any Material Subsidiary incorporated in
Australia (i) is in liquidation, in provisional liquidation, under administration or wound
up or has had a Controller (as defined in the Corporations Act) appointed to its property
and (ii) is subject to any arrangement, assignment, moratorium or composition, protected
from creditors under any statute or dissolved (in each case, other than to carry out a
reconstruction or amalgamation while solvent on terms approved by the Agent); or
(f)
ERISA
. (i) any Reportable Event shall have occurred with respect to a
Plan and the sum (determined as of the date of occurrence of such Reportable Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans with respect to
which a Reportable Event shall have occurred and then exist (or the liability of the
Borrowers and the ERISA Affiliates related to such Reportable Event) exceeds $75,000,000;
(ii) any Borrower or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such
Multiemployer Plan in an amount that, when aggregated with all other amounts
required to be paid to Multiemployer Plans by the Borrowers and the ERISA Affiliates
as Withdrawal Liability (determined as of the date of such notification), exceeds
$75,000,000;
(iii) any Borrower or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in Reorganization,
Insolvent or has been determined to be in endangered or critical status within
the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA, and
as a result of such Reorganization, insolvency or determination, the aggregate
annual contributions of the Borrowers and the ERISA Affiliates to all Multiemployer
Plans that are then in Reorganization, Insolvent or in endangered or critical status
have been or will be increased over the amounts contributed to such Multiemployer
Plans for the plan years of such Multiemployer Plans immediately preceding the plan
year in which such Reorganization, insolvency or determination occurs by an amount
exceeding $75,000,000; and
(iv) a Canadian Pension Event shall occur which results in or could reasonably
be expected to result in liability of any Borrower or Restricted Subsidiary in an
aggregate amount in excess of $75,000,000.
(g)
Judgments
. One or more judgments or decrees shall be entered against the
Company or any of its Subsidiaries involving in the aggregate for the Company and its
Subsidiaries a liability (not paid or fully covered by insurance) of $75,000,000 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. For the avoidance of doubt,
Sealed Air Credit Agreement
130
a settlement related to the W.R. Grace Liabilities shall neither be considered to be a
judgment nor decree for the purposes of this
Section 6.01(g)
; or
(h)
Guaranty
.
Article VII
hereof, the Subsidiary Guarantees or any
material 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 Guarantors obligations under Article VII
hereof or the Subsidiary Guarantees, as the case may be; or
(i)
Change of Control
. A Change of Control shall occur; or
(i) any Lien purported to be created under any Collateral Document shall cease
to be a valid and perfected Lien on Collateral with aggregate fair market value of
at least $75,000,000 with the priority required by the applicable Collateral
Document, or any Lien purported to be created under any Collateral Document shall be
asserted by any Loan Party not to be a valid and perfected Lien on any Collateral
with the priority required by the applicable Collateral Document, except (i) as a
result of the release of a Loan Party or the sale or other disposition of the
applicable Collateral in a transaction permitted under the Loan Documents or (ii) as
a result of the Agents failure to maintain possession of any stock certificates,
promissory notes or other instruments delivered to it under the Collateral
Agreement; or
(ii)(A) the Obligations shall fail to constitute Senior Debt (or the
equivalent thereof) and Designated Senior Debt (or the equivalent thereof) under
the documentation governing any subordinated obligations of any Loan Party, or (B)
the subordination provisions thereunder shall be invalidated or otherwise cease, or
shall be asserted in writing by any Loan Party to be invalid or to cease, to be
legal, valid and binding obligations of the parties thereto, enforceable in
accordance with their terms;
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 2.03(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 such 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 2.03(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
Sealed Air Credit Agreement
131
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.
Solely for the purposes of determining whether an Event of Default has occurred under clause (d),
(e) or (g) of
Section 6.01
, any reference in any such clause to any Subsidiary shall be
deemed not to include any Immaterial Subsidiary affected by any event or circumstance referred to
in any such clause.
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 Agents
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 Agents 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
. 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 (i) this Agreement or any Notes (including, without
limitation, any extensions, modifications, substitutions, amendments or
Sealed Air Credit Agreement
132
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, (ii) Cash Management Obligations and (iii) Swap Obligations
(and such obligations referred to clause (i), (ii) and (iii) 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 Companys liability shall extend
to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other
Borrower to the Agent or any Lender under or in respect of this Agreement or any Notes but for the
fact that they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such other Borrower.
SECTION 7.02
Guaranty Absolute
. The Company guarantees payment of the Guaranteed Obligations
strictly in accordance with the terms of this Agreement and any Notes, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of the Agent or any Lender with respect thereto. The obligations of the Company under
or in respect of this Guaranty are independent of the Guaranteed Obligations or any other
obligations of any other Borrower under or in respect of this Agreement 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;
Sealed Air Credit Agreement
133
(f) any failure of the Agent or any Lender to disclose to the Company any
information relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Borrower now or hereafter known to the
Agent or such Lender (the Company waiving any duty on the part of the Agent and the Lenders
to disclose such information);
(g) the failure of any other Person to execute or deliver this any other guaranty
or agreement or the release or reduction of liability of any other guarantor or surety with
respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any statute of
limitations) or any existence of or reliance on any representation by the Agent or any
Lender that might otherwise constitute a defense available to, or a discharge of, any
Borrower or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by the
Agent or any Lender or any other Person upon the insolvency, bankruptcy or reorganization of any
other Borrower or otherwise, all as though such payment had not been made.
SECTION 7.03
Waivers and Acknowledgments
. The Company hereby unconditionally and irrevocably
waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of
nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any
of the Guaranteed Obligations and this Guaranty and any requirement that the Agent or any Lender
protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or
take any action against any Borrower or any other Person or any collateral.
(a) 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.
(b) 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.
(c) 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.
(d) The Company acknowledges that it will receive substantial direct and indirect benefits
from the financing arrangements contemplated by this Agreement and any
Sealed Air Credit Agreement
134
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 last-occurring 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 Companys 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 last-occurring 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 last-occurring
Termination Date shall have occurred, the Agent and the Lenders will, at the Companys request and
expense, execute and deliver to the Company appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to the Company of an
interest in the Guaranteed Obligations resulting from such payment made by the Company pursuant to
this Guaranty.
SECTION 7.05
Subordination
. The Company hereby subordinates any and all debts, liabilities and
other obligations owed to the Company by each other Borrower (the
Subordinated
Obligations
) to the Guaranteed Obligations to the extent and in the manner hereinafter set
forth in this
Section 7.05
:
(a)
Prohibited Payments, Etc.
Except during the continuance of a Default
(including the commencement and continuation of any proceeding under any Bankruptcy Law
relating to any other Borrower), the Company may receive regularly scheduled payments from
any other Borrower on account of the Subordinated Obligations. After the occurrence and
during the continuance of any Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other
Sealed Air Credit Agreement
135
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 (other than the Cash
Management Obligations and the Swap Obligations) and (ii) the last-occurring 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.
Sealed Air Credit Agreement
136
ARTICLE VIII
THE AGENT
SECTION 8.01
Authorization and Action
. (a) Each Lender (in its capacities as a Lender, Swing Line
Bank 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 and the
other Loan Documents, including as collateral agent for such Lender and the other Secured Parties
under the Collateral Documents as are delegated to the Agent by the terms hereof and the other Loan
Documents, together with such powers and discretion as are reasonably incidental thereto. As to
any matters not expressly provided for by this Agreement (including, without limitation,
enforcement or collection of the Notes), the Agent shall not be required to exercise any discretion
or take any action, but shall be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the instructions of the Required Lenders,
and such instructions shall be binding upon all Lenders and all holders of Notes;
provided
,
however
, that the Agent shall not be required to take any action that exposes the Agent to
personal liability or that is contrary to this Agreement or applicable law. The Agent agrees to
give to each Lender prompt notice of each notice given to it by the Borrowers pursuant to the terms
of this Agreement.
(b) In furtherance of the foregoing, each Lender (in its capacities as a Lender, Swing
Line Bank and Issuing Bank, as applicable) hereby appoints and authorizes the Agent to act as the
agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on
Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such
powers and discretion as are reasonably incidental thereto (including, but not limited to,
execution, amendment, transfer, termination and renewal of Collateral Documents, and application
for registration of creation, transfer and release of Lien on any Collateral).
(c) Each Lender (in its capacities as a Lender, Swing Line Bank and Issuing Bank, as
applicable) irrevocably authorizes each of the Agent, at its option and in its discretion, (i) to
release any Lien on any property granted to or held by the Agent under any Loan Document (A) upon
termination of the Commitments and payment in full of all Obligations (other than contingent
indemnification obligations) and the expiration, termination or Cash Collateralization of all
Letters of Credit, (B) that is sold or to be sold as part of or in connection with any sale
permitted hereunder or under any other Loan Document, or (C) if approved, authorized or ratified in
writing in accordance with
Section 9.01
hereof, (ii) to release any
Guarantor from its obligations under the Loan Documents if such person ceases to be a
Subsidiary as a result of a transaction permitted hereunder; and (iii) to subordinate any Lien on
any property granted to or held by the Agent under any Loan Document to the holder of any Lien on
such property that is permitted by
Section 5.02(a)(ii)
. Upon request by the Agent at any
time, the Required Lenders will confirm in writing the Agents authority to release its interest in
particular types or items of property, or to release any Guarantor from its obligations under the
Loan Documents.
SECTION 8.02
Agents 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
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137
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 or telegram)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.03
CBNA and Affiliates
. With respect to its Commitments, the Advances made by it and the
Note issued to it, CBNA 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 CBNA in its individual capacity.
CBNA 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 CBNA 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 Lenders 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
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138
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 Agents gross negligence, bad
faith or willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its Ratable Share (determined at the time indemnification is
sought hereunder) of any out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by a Borrower. In the case of any investigation, litigation or
proceeding giving rise to any Indemnified Costs, this
Section 8.05
applies whether any such
investigation, litigation or proceeding is brought by the Agent, any Lender or a third party.
(b) Each Lender severally agrees to indemnify the Issuing Banks (to the extent not
promptly reimbursed by the Company) from and against such Lenders 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 Banks gross
negligence, bad faith 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
Lenders 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
Appointment as Agent and Administrator in Relation to German Collateral
. (a) In relation
to the German Collateral, the Agent shall:
Sealed Air Credit Agreement
139
(i) hold, administer and (subject to the same having become enforceable and
to the terms of this Agreement) realise any such German Collateral which is
Collateral transferred or assigned (
Sicherungseigentum/Sicherungsabtretung
) or
otherwise granted under a non-accessory security right (
nicht akzessorische
Sicherheit
) to it in its own name as trustee (
treuhänderisch
) for the benefit of the
Secured Parties; and
(ii) administer and (subject to the same having become enforceable and to
the terms of this Agreement) realise in the name of and on behalf of the Secured
Parties any German Collateral which is pledged (
Verpfändung
) or otherwise
transferred to any Secured Party under an accessory security right (
akzessorische
Sicherheit
) in the name and on behalf of the Secured Parties.
(b) Each Secured Party (other than the Agent) hereby authorises the Agent to accept as its
representative (
Stellvertreter
) any pledge or other creation of any accessory security right made
to such Secured Party in relation to the Loan Documents and to act and execute on its behalf as its
representative (
Stellvertreter
), subject to the terms of the Loan Documents, amendments or releases
of, accessions and alterations to, and to carry out similar dealings with regard to any German
Collateral Document which creates a pledge or any other accessory security right (
akzessorische
Sicherheit
).
(c) Each Secured Party which becomes a party to any Loan Document ratifies and approves
all acts and declarations previously done by the Agent on such Secured Partys behalf (including
for the avoidance of doubt the declarations made by the Agent as representative without power of
attorney (
Vertreter ohne Vertretungsmacht
)) in relation to the creation of any pledge (
Pfandrecht
)
on behalf and for the benefit of any Secured Party in respect of the German Collateral Documents.
(d) Each relevant Loan Party and the Company and each relevant Secured Party agrees that
the German Collateral Documents shall be subject to the terms of this Agreement.
(e) The Agent shall and is hereby authorised by each of the Secured Parties (and to the
extent it may have any interest therein, every other party hereto) to execute on behalf of itself
and each other party hereto where relevant without the need for any further referral to, or
authority from, any other person all necessary releases or confirmations of any security created
under the German Collateral Documents in relation to the disposal of any asset which is permitted
under the German Collateral Documents or consented or agreed upon in accordance with the Loan
Documents.
(f) Each Secured Party hereby irrevocably authorises the Agent to act on its behalf and if
required under applicable law, or if otherwise appropriate, in its name and on its behalf in
connection with the preparation, execution and delivery of the German Collateral Documents and the
perfection and monitoring of the German Collateral, including but not limited to, any share pledge,
mortgage, assignment or transfer of title for security purposes. The Agent is authorised to make
all statements necessary or appropriate in connection with the foregoing sentence.
Sealed Air Credit Agreement
140
(g) Each of the Loan Parties and the Secured Parties hereby relieves the Agent from the
restrictions pursuant to section 181 of the German Civil Code (
Bürgerliches Gesetzbuch BGB
) or any
comparable provision under any other jurisdiction restricting self-dealing and/or representing
several parties at the same time in order to enable the Agent to perform its duties and obligations
as Agent hereunder.
(h) It is hereby agreed that, in relation to any jurisdiction the courts of which would
not recognise or give effect to the trust expressed to be created by this
Section 8.06
(
Appointment as Agent and administrator in relation to German Collateral
), the relationship of the
Secured Parties to the Agent in relation to any German Collateral shall be construed as one of
principal and agent but, to the extent permissible under the laws of such jurisdiction, all the
other provisions of this by this
Section 8.06
(
Appointment as Agent and administrator in
relation to German Security Collateral
) shall have full force and effect between the Parties.
SECTION 8.07
Successor Agent
. The Agent may resign at any time by giving written notice thereof to
the Lenders and the Company. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Agent, provided that such successor shall, be (x) a U.S. Person, a
branch of a Non-U.S. bank treated as a U.S. Person in accordance with Treasury Regulation section
1.1441-1(b)(2)(iv) (or, in each case, an Affiliate thereof which is a U.S. Person) and (y) treated
as a financial institution pursuant to Treasury Regulation section 1.1441-1(b)(2). 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 Agents 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 Agents 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.
Anything herein to the contrary notwithstanding, if at any time the Required Lenders determine
that the Person serving as Agent is (without taking into account any provision in the definition of
Defaulting Lender requiring notice from the Agent or any other party) a Defaulting Lender, the
Required Lenders (determined after giving effect to
Section 9.01
) may by notice to the
Company and such Person remove such Person as Agent and appoint a replacement Agent hereunder with
the consent of the Company (such consent not to be unreasonably withheld),
provided
that
(i) such removal shall, to the fullest extent permitted by applicable law, in any event become
effective if no such replacement Agent is appointed hereunder within 30 days after the giving of
such notice and (ii) no such consent of the Company shall be required if an Event of Default has
occurred and is continuing at the time of such appointment.
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.
Sealed Air Credit Agreement
141
SECTION 8.09
Delegation of Duties
. The Agent may perform any and all of its duties and exercise
its rights and powers hereunder or under any other Loan Document by or through any one or more
co-agents or sub-agents appointed by the Agent. The Agent and any such co-agent or sub-agent may
perform any and all of its duties and exercise its rights and powers by or through their respective
Related Parties. Each such co-agent and sub-agent and the Related Parties of the Agent and each
such co-agent and sub-agent shall be entitled to the benefits of all provisions of this Article
VIII and Article IX (as though such co-agents and sub-agents were the Agent under the Loan
Documents) as if set forth in full herein with respect thereto.
SECTION 8.10
Appointment for the Province of Québec
. Without prejudice to Section 8.01 above,
each of the Secured Parties hereby appoints the Agent as the person holding the power of attorney
(
fondé pouvoir
) of the Secured Parties as contemplated under Article 2692 of the Civil Code of
Québec, to enter into, to take and to hold on their behalf, and for their benefit, any deed of
hypothec (
Deed of Hypothec
) to be executed by any Borrower or Restricted Subsidiary
granting a hypothec pursuant to the laws of the Province of Québec (Canada) and to exercise such
powers and duties which are conferred thereupon under such deed. Each of the Secured Parties
hereby additionally appoints the Agent as agent, mandatary, custodian and depositary for and on
behalf of the Secured Parties (a) to hold
and to be the sole registered holder of any bond (
Bond
) issued under the Deed of
Hypothec, the whole notwithstanding Section 32 of the Act respecting the Special Powers of Legal
Persons (Québec) or any other applicable law, and (b) to enter into, to take and to hold on their
behalf, and for their benefit, a bond pledge agreement (
Pledge
) to be executed by such
Borrower or Restricted Subsidiary pursuant to the laws of the Province of Québec and creating a
pledge of the Bond as security for the payment and performance of, inter alia, the Secured
Obligations. In this respect, (a) the Agent as agent, mandatary, custodian and depositary for and
on behalf of the Secured Parties, shall keep a record indicating the names and addresses of, and
the pro rata portion of the obligations and indebtedness secured by the Pledge, owing to each of
the Secured Parties for and on behalf of whom the Bond is so held from time to time, and (b)each of
the Secured Parties will be entitled to the benefits of any property or assets charged under the
Deed of Hypothec and the Pledge and will participate in the proceeds of realization of any such
property or assets. The Agent, in such aforesaid capacities shall (i)have the sole and exclusive
right and authority to exercise, except as may be otherwise specifically restricted by the terms
hereof, all rights and remedies given to the Agent with respect to the property or assets charged
under the Deed of Hypothec and Pledge, any other applicable law or otherwise, and(ii) benefit from
and be subject to all provisions hereof with respect to the Agent
mutatis mutandis
, including,
without limitation, all such provisions with respect to the liability or responsibility to and
indemnification by the Secured Parties, the Borrowers or the Restricted Subsidiaries. The
execution prior to the date hereof by the Agent of any Deed of Hypothec, Pledge or other security
documents made pursuant to the laws of the Province of Québec (Canada) is hereby ratified and
confirmed. The constitution of the Agent as the person holding the power of attorney (
fondé de
pouvoir
), and of the Agent, as agent, mandatary, custodian and depositary with respect to any Bond
that may be issued and pledged from time to time to the Agent for the benefit of the Secured
Parties, shall be deemed to have been ratified and confirmed by each Person accepting an assignment
of, a participation in or an arrangement in respect of, all or any potion of any of the Secured
Parties rights and obligations under this Agreement by the execution of an assignment, including
an Assignment and Acceptance Agreement or other agreement pursuant to which it becomes such
Sealed Air Credit Agreement
142
assignee or participant, and by each successor Agent by the execution of an assignment agreement or
other agreement, or by the compliance with other formalities, as the case may be, pursuant to which
it becomes a successor Agent hereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01
Amendments, Etc.
No amendment or waiver of any provision of this Agreement or any other
Loan Document, nor consent to any departure by any Loan Party therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the specific purpose for
which given;
provided
,
however
, that no amendment, waiver or consent shall, unless
in writing and signed by (or consented to 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 other than as provided
in
Section 2.19
;
(c) reduce the principal of, or rate of interest on, the Revolving Credit Advances,
the Term Advances, the Letters of Credit, 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 other than as provided in
Section 2.20
;
(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) Reserved;
(g) other than pursuant to the terms of the Subsidiary Guarantees, release the
Subsidiary Guarantors (or otherwise limit such Subsidiary Guarantors liability with respect
to the obligations owing to the Agent and the Lenders under the Subsidiary Guaranties) if
such release or limitation is in respect of substantially all of the value of the Subsidiary
Guaranties to the Agent and the Lenders;
(h) release all or substantially all of the Collateral in any transaction or series
of related transactions;
(i) release the Company (or otherwise limit the Companys liability with respect to
the obligations of the Subsidiary Borrowers) from its guaranty set forth in
Article
VII
hereof; or
Sealed Air Credit Agreement
143
(j) amend this
Section 9.01
or the definition of Required Lenders;
and
provided
further
that (w) 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, (x) 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 (y) 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 and (z) the consent of Lenders having at least a majority (based on the
Equivalent in Dollars at such time) in interest of a Facility shall be required with respect to any
amendment or waiver that by its terms adversely affects the rights of Lenders under such Facility
in respect of payments hereunder in a manner different than such amendment or waiver affects other
Facilities. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any
right to approve or disapprove any amendment, waiver or consent hereunder, except that (x) the
Commitment of any Defaulting Lender may not be increased or extended without the consent of such
Lender and (y) any waiver, amendment or modification
requiring the consent of all Lenders or each affected Lender that by its terms affects any
Defaulting Lender more adversely than other affected Lenders shall require the consent of such
Defaulting Lender.
Notwithstanding the foregoing, in addition to any credit extensions and related incremental
amendment agreements effectuated without the consent of Lenders in accordance with
Section
2.04(b)
, this Agreement may be amended (or amended and restated) with the written consent of
the Required Lenders, the Agent and the Company (a) to add one or more additional credit facilities
to this Agreement and to permit the extensions of credit from time to time outstanding thereunder
and the accrued interest and fees in respect thereof to share ratably in the benefits of this
Agreement and the other Loan Documents with the Advances hereunder and the accrued interest and
fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities
in any determination of the Required Lenders and other definitions related to such new loans.
In addition, notwithstanding the foregoing, this Agreement may be amended with the written
consent of the Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as
defined below) to permit the refinancing, replacement or modification of all outstanding Term A
Advances, all outstanding CDN Term A Advances, all outstanding JPY Term A Advances, all outstanding
Euro Term A Advances, all outstanding Term B Advances or all outstanding Euro Term B Advances
(
Replaced Term Loans
) with a replacement term loan tranche hereunder (
Replacement
Term Loans
),
provided
that (a) the aggregate principal amount of such Replacement Term
Loans shall not exceed the aggregate principal amount of such Replaced Term Loans, (b) the
Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin
for such Replaced Term Loans, (c) the weighted average life to maturity of such Replacement Term
Loans shall not be shorter than the weighted average life to maturity of such Replaced Term Loans
at the time of such refinancing, and (d) all other terms applicable to such Replacement Term Loans
shall be substantially identical to, or no less favorable to the Lenders providing such Replacement
Term
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144
Loans taken as a whole than, those applicable to such Replaced Term Loans, except to the
extent necessary to provide for covenants and other terms applicable to any period after the latest
final maturity of the Term Advances as applicable in effect immediately prior to such refinancing.
Furthermore, and notwithstanding anything else to the contrary contained in this
Section
9.01
, (i) if the Agent and the Company shall have jointly identified an obvious error or any
error or omission of a technical nature, in each case, in any provision of this Agreement or any
other Loan Document, then the Agent and the Company shall be permitted to amend such provision and
(ii) the Agent and the Company shall be permitted to amend any provision of any Collateral Document
to better implement the intentions of this Agreement and the other Loan Documents, and in each
case, such amendments shall become effective without any further action or consent of any other
party to any Loan Document if the same is not objected to in writing by the Required Lenders within
five Business Days following receipt of notice thereof.
SECTION 9.02
Notices, Etc.
(a) All notices and other communications provided for hereunder shall be
either (x) in writing (including telecopier communication) and mailed, telecopied 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 Companys address at 200 Riverfront Blvd., 3
rd
Floor, Elmwood Park, New Jersey 07407, Attention: Treasurer, with a copy to Attention: General
Counsel; if to any Initial Lender, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender; if to the Agent, at its address at
1615 Brett Road, Building #3, New Castle, Delaware 19720, Attention: Bank Loan Syndications; or if
to the Agents Australian Affiliate, at its address at Citisecurities Limited, Level 24, Citigroup
Centre, 2 Park Street, Sydney NSW 2000, Attention: Maria Mills/Craig Guyan, Fax: 61-2 8225-5244,
Email: maria.mills@citi.com, craig.guyan@citi.com, with a copy to: Citicorp International Limited,
9/F., Two Harbourfront, 22 Tak Fung Street, Hunghom, Kowloon, Hong Kong, Attention: Regional Loans
Agency, Fax: 852-2621-3183/852-2621-3184 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 or e-mailed, be effective when
deposited in the mails, telecopied 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 during its normal business hours. 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 CBNA 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
Sealed Air Credit Agreement
145
Agreement, the
Notes or any of the transactions contemplated hereby (collectively, the
Communications
)
available to the Lenders by posting such notices on Intralinks or a substantially similar
electronic system (the
Platform
). The Company acknowledges that (i) the distribution of
material through an electronic medium is not necessarily secure and that there are confidentiality
and other risks associated with such distribution, (ii) the Platform is provided as is and as
available and (iii) neither the Agent nor any of its Affiliates warrants the accuracy, adequacy or
completeness of the Communications or the Platform and each expressly disclaims liability for
errors or omissions in the Communications or the Platform. No warranty of any kind, express,
implied or statutory, including, without limitation, any warranty of merchantability, fitness for a
particular purpose, non-infringement of third party rights or freedom from viruses or other code
defects, is made by the Agent or any of its Affiliates in connection with the Platform.
(c) Each Lender agrees that notice to it (as provided in the next sentence) (a
Notice
) specifying that any Communications have been posted to the Platform shall
constitute effective delivery of such information, documents or other materials to such Lender for
purposes
of this Agreement;
provided
that if requested by any Lender the Agent shall deliver a
copy of the Communications to such Lender by email or telecopier. Each Lender agrees (i) to notify
the Agent in writing of such Lenders 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 and
documented out-of-pocket costs and expenses of the Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this Agreement and the other
documents to be delivered hereunder, including, without limitation, (i) the syndication of the
Revolving Facility provided for herein, the preparation, negotiation, execution, delivery,
interpretation and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) the creation, perfection or protection
of the Liens under any Loan Document and (iii) the reasonable and documented out-of-pocket legal
expenses of one firm of one counsel to the Agent and the Lenders and, if necessary, one local legal
counsel in each relevant jurisdiction (and, to the extent required by the subject matter, one
specialist counsel for each such specialized area of law in each appropriate jurisdiction). The
Company further agrees to pay on demand all costs and expenses of the Agent and the Lenders, if any
(including the reasonable and documented out-of pocket legal fees of one firm of counsel to the
Agent, the Issuing Banks and the Lenders and, if necessary, one local legal counsel in each
relevant jurisdiction (and, to the extent required by the subject matter, one specialist counsel
for each
Sealed Air Credit Agreement
146
such specialized area of law in each appropriate jurisdiction), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement 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) Each Borrower 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 (including the reasonable and
documented out-of-pocket legal expenses of one firm of counsel and one local legal counsel in each
relevant jurisdiction and, to the extent required by the subject matter, one specialist counsel for
each such specialized area of law in each appropriate jurisdiction and, upon notice
from an Indemnified Party of a conflict of interest (as determined in the sole discretion of
such Indemnified Party), one counsel for each such affected Indemnified Party) or disbursements
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) this
Agreement, any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances, (i) 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 Partys gross negligence, bad faith or willful misconduct, (ii) which
resulted from a material breach of any Loan Documents by such Indemnified Party as determined in a
final, non-appealable judgment by a court of competent jurisdiction or (iii) any dispute solely
among the indemnified persons and not arising out of any act or omission of the US Borrower, or any
of their affiliates (except when one of the parties to such action was acting in its capacity as an
agent, an arranger a bookrunner or another agency capacity);
provided
that the Company
shall not be liable for any indirect, special, punitive or consequential damages (other than in
respect of any such damages required to be indemnified pursuant to this
Section 9.04
including, without limitation, as to any claims by Persons not party to the Loan Documents, or
claims brought in violation of this paragraph. 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, equity holders 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 this Agreement, any of
the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurocurrency Rate Advance is
made by any Borrower to or for the account of a Lender (i) other than on the last day of the
Interest Period for such Advance, as a result of a payment or Conversion pursuant to
Section
2.09
,
2.10
,
2.11
or
2.13
, acceleration of the maturity of the Advances
or Notes pursuant to
Section 6.01
or for any other reason, or (ii) as a result of a payment
or Conversion pursuant to
Section 2.09
,
2.10
,
2.13
or
2.20
such
Borrower shall, upon demand by such Lender (with a copy
Sealed Air Credit Agreement
147
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 Lenders liability in
respect of such Advances, such Lender agrees to remit to the Company such excess. A certificate as
to such amounts submitted to the Company and the Agent by such Lender pursuant to this
Section
9.04(c)
(which certificate shall, if the Company so requests, include reasonably detailed
calculations) shall be conclusive and binding for all purposes, absent manifest error.
(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(e)
,
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.
Sealed Air Credit Agreement
148
SECTION 9.07
Assignments and Participations
. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Advances at the time owing to it);
provided
that any
such assignment shall be subject to the following conditions:
(a)
Minimum Amounts
.
(i) in the case of an assignment of the entire remaining amount of the
assigning Lenders Commitments and/or the Advances at the time owing to it or in the
case of an assignment to a Lender or an Affiliate of a Lender, no minimum amount
need be assigned; and
(ii) in any case not described in paragraph (a)(i) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Advances
outstanding thereunder) or, if the applicable Commitment is not then in effect, the
principal outstanding balance of the Advances of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Agent or, if
Trade Date
is
specified in the Assignment and Acceptance Agreement, as of the Trade Date) shall
not be less than $5,000,000 in respect of the Revolving Credit Facilities or
$2,000,000 in respect of the Term Facilities, unless each of the Agent and, so long
as no Event of Default or a Prepayment Event has occurred and is continuing, the
Company otherwise consents (each such consent not to be unreasonably withheld or
delayed).
(b)
Proportionate Amounts
. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lenders rights and obligations
under this Agreement with respect to the Advance or the Commitments assigned.
(c)
Required Consents
. No consent shall be required for any assignment
except to the extent required by paragraph (a)(ii) of this Section and, in addition:
(i) the consent of the Company (such consent not to be unreasonably
withheld, conditioned or delayed) shall be required unless (x) an Event of Default
under Section 6.01(a) or (e) has occurred and is continuing at the time of such
assignment, or (y) such assignment is to a Lender, an Approved Fund, an Affiliate of
a Lender or to any Federal Reserve Bank as collateral security pursuant to
Regulation A of the F.R.S. Board and any Operating Circular issued by such Federal
Reserve Bank;
provided
that in the case of an assignment of any Term
Advance, the Company shall be deemed to have consented to any such assignment unless
it shall object thereto by written notice to the Agent within 5 Business Days after
having received notice thereof and
provided
,
further
, that the
Borrowers consent shall not be required for assignments during the primary
syndication of the Commitments hereunder which are made within 90 days of the
Closing Date to financial institutions identified to the Company by the Agent on a
list provided prior to the date hereof and pursuant to the Commitment Letter;
Sealed Air Credit Agreement
149
(ii) the consent of the Agent (such consent not to be unreasonably withheld
or delayed) shall be required for assignments in respect of the Commitments if such
assignment is to a Person that is not a Lender, an Affiliate of a Lender or an
Approved Fund, unless such assignment is to any Federal Reserve Bank as collateral
security pursuant to Regulation A of the F.R.S. Board and any Operating Circular
issued by such Federal Reserve Bank; and
(iii) the consent of each Issuing Bank and the Swing Line Bank shall be
required for any assignment in respect of Revolving Credit Commitments unless such
assignment is to any Federal Reserve Bank as collateral security pursuant to
Regulation A of the F.R.S. Board and any Operating Circular issued by such Federal
Reserve Bank.
(d)
Register
. 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 will record such information in the Register) and a register for the recordation of
the names and addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the
Register
). The entries in
the Register shall be conclusive and binding for all purposes, absent manifest error, and
the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrowers or any Lender at any reasonable time and from time
to time upon reasonable prior notice.
(e)
Assignment and Acceptance
. The parties to each assignment shall
execute and deliver to the Agent an Assignment and Acceptance, for its acceptance and
recording in the Register, together with a processing and recordation fee of $3,500;
provided
that the Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment;
provided
,
further
, no
processing and recordation fee shall be required upon any assignment to any Federal Reserve
Bank as collateral security pursuant to Regulation A of the F.R.S. Board and any Operating
Circular issued by such Federal Reserve Bank. The assignee, if it is not already a Lender,
shall deliver to the Agent an Administrative Questionnaire.
(f)
No Assignment to Certain Persons
. No such assignment shall be made to
(A) the Company or any of the Companys Affiliates or Subsidiaries except as provided in
Section 2.11(c)
, (B) to any Defaulting Lender or any of their respective
Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of
the foregoing Persons described in this clause (f) or (C) to any Offshore Associate of any
Australian Borrower.
(g)
No Assignment to Natural Persons
. No such assignment shall be made to
a natural Person.
(h)
Certain Pledges
. Notwithstanding anything to the contrary contained
herein, any Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender, including
Sealed Air Credit Agreement
150
any pledge or assignment to secure obligations to a Federal Reserve Bank;
provided
that no such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(i)
Certain Additional Payments
. In connection with any assignment of
rights and obligations of any Defaulting Lender hereunder, no such assignment shall be
effective unless and until, in addition to the other conditions thereto set forth herein,
the parties to the assignment shall make such additional payments to the Agent in an
aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright
payment, purchases by the assignee of participations or subparticipations, or other
compensating actions, including funding, with the consent of the Company and the Agent, the
applicable Ratable Share of Advances previously requested but not funded by the Defaulting
Lender, to each of which the applicable assignee and assignor hereby
irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed
by such Defaulting Lender to the Agent, each Issuing Bank, the Swing Line Bank and each
other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as
appropriate) its full Ratable Share of all Advances and participations in Letters of Credit
and Swing Line Advances. Notwithstanding the foregoing, in the event that any assignment of
rights and obligations of any Defaulting Lender hereunder shall become effective under
applicable law without compliance with the provisions of this paragraph, then the assignee
of such interest shall be deemed to be a Defaulting Lender for all purposes of this
Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Agent pursuant to paragraph (c)(ii) of this
Section, from and after the effective date specified in each Lender Assignment and Acceptance, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lenders rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of
Sections 2.12
,
2.15
,
2.16
,
8.05
,
9.04
,
9.05
and
9.08
with respect to facts and circumstances occurring prior
to the effective date of such assignment;
provided
, that except to the extent otherwise
expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a
waiver or release of any claim of any party hereunder arising from that Lenders having been a
Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance with
paragraph (c)(iii) of this Section.
(j) Any Lender may at any time sell to one or more commercial banks or other
financial institutions (each of such commercial banks and other financial institutions being
herein called a
Participant
) participating interests in any of its Advances, its
Commitment, or other interests of such Lender hereunder, including participations pursuant
to the Intercreditor Agreement;
provided
that:
Sealed Air Credit Agreement
151
(i) no participation contemplated in this
Section 9.07(j)
shall
relieve such Lender from its Commitment(s) or its other obligations hereunder;
(ii) such Lender shall remain solely responsible for the performance of its
Commitment(s) and such other obligations;
(iii) the Company and the Agent shall continue to deal solely and directly
with such Lender in connection with such Lenders rights and obligations under this
Agreement and each of the other Loan Documents;
(iv) no Participant, unless such Participant is an Affiliate of such
Lender, shall be entitled to require such Lender to take or refrain from taking any
action hereunder or under any other Loan Document, except that such Lender
may agree with any Participant that such Lender will not, without such
Participants consent, take any actions of the type described in
clause (a)
or (c) of
Section 9.01
;
(v) no Borrower shall be required to pay any amount under
Sections
2.12
and
2.15
that is greater than the amount which it would have been
required to pay had no participating interest been sold and no Borrower shall be
required to pay any amount under
Section
2.15
unless such
Participant has complied with
Section 2.15(e)
and
(f)
as if it were
a Lender; and
(vi) each Lender that sells a participation under this
Section
9.07(j)
shall, acting solely for this purpose as a non-fiduciary agent of the
Company, maintain a register on which it enters the name and address of each
Participant and the principal amounts (and stated interest on) each of the
Participants interest in the Lenders Advances, Commitments or other interests
hereunder (the
Participant Register
). The entries in the Participant
Register shall be conclusive absent manifest error, and such Lender may treat each
person whose name is recorded in the Participant Register as the owner of such
participation for all purposes hereunder. No Lender shall have any obligation to
disclose all or any portion of the Participant Register to any Person except to the
extent that such disclosure is necessary to establish that such Advance, Commitment,
or other interest is in registered form under Section 5f.103-1(c) of the United
States Treasury Regulations.
The Company acknowledges and agrees that each Participant, for purposes of
Sections 2.12
and
2.15
only, shall be considered a Lender.
(k) Each Loan Party incorporated under the laws of Luxembourg expressly accepts and
confirms for the purposes of article 1281 and article 1278 of the Luxembourg civil code
that, notwithstanding any assignment and/or transfer made pursuant to this Agreement, any
guarantee given by it and any security interest created under the Loan Documents to which it
is a party, shall be preserved for the benefit of any new Lender or Participant.
Sealed Air Credit Agreement
152
SECTION 9.08
Confidentiality
. Each of the Agent and the Lender Parties agree to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its Affiliates and to its Related Parties (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed
to keep such Information confidential); (b) to the extent required or requested by any regulatory
authority purporting to have jurisdiction over such Person or its Related Parties (including any
self-regulatory authority, such as the National Association of Insurance Commissioners); (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process; (d)
to any other party hereto; (e) in connection with the exercise of any remedies hereunder or under
any other Loan Document or any action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder; (f) subject to an
agreement containing provisions substantially the same as those of this Section, to (i) any
assignee in, or any prospective assignee in, any of its rights and obligations under this
Agreement, or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative
or other transaction under which payments are to be made by reference to the Company and its
obligations, this Agreement or payments hereunder; (g) on a confidential basis to (i) any rating
agency in connection with rating the Company or its Subsidiaries or the Advances or (ii) the CUSIP
Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP
numbers with respect to the Advances; (h) with the consent of the Company; or (i) to the extent
such Information (x) becomes publicly available other than as a result of a breach of this Section,
or (y) becomes available to any Lender or any of their respective Affiliates on a nonconfidential
basis from a source other than the Company. For purposes of this Section, Information means all
information received from the Company or any of its Subsidiaries relating to the Company or any of
its Subsidiaries or any of their respective businesses, other than any such information that is
available to any Lender on a nonconfidential basis prior to disclosure by the Company or any of its
Subsidiaries;
provided
that, in the case of information received from the Company or any of
its Subsidiaries after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information.
SECTION 9.09
Designated Borrower
.
(a)
Designation
. Subject to any applicable limitations set forth herein and in
the other Loan Documents, 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 a specified Wholly-Owned
Subsidiary, in substantially the form of
Exhibit J
hereto, designate such Subsidiary as a
Borrower for purposes of this Agreement and the Revolving Credit Facilities hereunder
(
provided
, that, in any event, a Domestic Subsidiary may only become a Borrower under the
US Revolving Credit Facility, and a Foreign Subsidiary may only become a Borrower under the
Multicurrency Revolving Credit Facility), and such designation shall become effective upon the
execution and delivery to the Agent (each in form and substance reasonably satisfactory to the
Agent) of (i) the aforementioned executed Borrower Designation Agreement, (ii) a loan certificate
of such Subsidiary, in substantially the form of
Exhibit F
hereto, and including the
attachments thereto specified in
Section 3.01(c)
hereof, (iii) all amendments or joinders
to any
Sealed Air Credit Agreement
153
Notes issued under the applicable Revolving Credit Facility, (iv) if such Subsidiary is not
already a Guarantor, all Collateral Documents, guarantees and other documents and instruments as
such Subsidiary shall be required to deliver to become a Guarantor (v) all documentation and other
information required by regulatory authorities under applicable know your customer and anti-money
laundering rules and regulations and (vi) reaffirmations of their respective guarantees by each
Guarantor of the Obligations under the applicable Revolving Credit Facility;
provided
that,
to the extent any proposed Designated Borrower is not organized under the law of Australia, Canada,
Japan, Luxembourg the Netherlands or any state of the U.S., the Agent shall have received tax and
regulatory advice satisfactory to the Agent (on the basis of the effect on the
Revolving Credit Lenders) in respect of such proposed Designated Borrower becoming a Borrower
hereunder and the Loan Parties shall enter into an amendment as reasonably requested by the Agent
in connection therewith. The Agent shall promptly notify each Lender of each such designation by
the Company and the identity of the respective Subsidiary.
As soon as practicable and in any event within five Business Days after notice of the
designation under Section 9.09(a) of a Designated Borrower that is organized under the laws of a
jurisdiction other than of the United States, Australia, Canada, Japan, Luxembourg, the Netherlands
or a political subdivision thereof, any Lender that may not legally lend to, or whose internal
policies, consistently applied, preclude lending to, such Designated Borrower (a Protesting
Lender) shall so notify the Company and the Agent in writing. With respect to each Protesting
Lender, the Company shall, effective on or before the date that such Designated Borrower shall
have the right to borrow hereunder, either (A) (i) replace such Protesting Lender in accordance
with Section 2.20 or (ii) notify the Agent and such Protesting Lender that the Commitments of such
Protesting Lender shall be terminated; provided that (x) the Company shall have received the prior
written consent of the Administrative Agent, which consent shall not unreasonably be withheld and
(y) such Protesting Lender shall have received payment of an amount equal to the aggregate
outstanding principal amount of its Advances, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder or (B) cancel its request to designate such Subsidiary as a
Designated Borrower hereunder.
(b)
Termination
. Upon the payment and performance in full of all of the
indebtedness, liabilities and obligations under this Agreement of any Borrower (other than the
Company) then, so long as at the time no Notice of Borrowing, Notice of Issuance or Letter of
Credit in respect of such Borrower is outstanding, such Persons status as 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 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
Sealed Air Credit Agreement
154
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 CBNAs 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
CBNAs 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 exclusive jurisdiction of any New York
State court or federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action
or proceeding may be heard and determined in any such New York State court or, to the extent
permitted by law, in such federal court. Each Borrower hereby agrees that service of process in
any such action or proceeding brought in the any such New York State court or in such federal court
may be made upon the Company at its offices specified in
Section 9.02(a)
and each Borrower
hereby irrevocably appoints the Company its authorized agent to accept such service of process, and
agrees that the failure of the Company to give any notice of any such service shall not impair or
affect the validity of such service or of any judgment rendered in any action or proceeding based
thereon. Each Borrower hereby further irrevocably consents to the service of process in any action
or proceeding in such courts by the mailing thereof by any parties hereto by registered or
certified mail, postage prepaid, to such
Sealed Air Credit Agreement
155
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 Designated Borrower has or
hereafter may acquire any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, each Borrower and each Designated
Borrower hereby irrevocably waives such immunity in respect of its obligations under this
Agreement.
(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any New York 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
. (i) 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) 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;
(ii) If a judgment or order made by any court for the payment of any amount in respect of any
Obligations of a Loan Party under, or with respect to, this Agreement or the Advances is expressed
in a currency other than the currency that such Advances were originally funded in, the Borrowers
and the Domestic Loan Parties will indemnify the Lenders against any deficiency arising from any
variation in rates of exchange between the date as of which the denomination currency is notionally
converted into the judgment currency for the purposes of the judgment or order and the date of
actual payment;
provided
that the Agent and the Lenders shall reimburse the relevant Loan
Party if there is any excess amount arising from any variation in rates of exchange between the
date as of which the denomination currency is notionally converted into the judgment currency for
the purposes of the judgment or order and the date of actual payment.
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
Sealed Air Credit Agreement
156
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 Banks
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 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.
SECTION 9.17
Release of Collateral
. (a) Notwithstanding any other provision herein or in any
other Loan Document, the Agent is hereby authorized and shall release the Collateral from the Liens
granted under the Collateral Documents securing the obligations under this Agreement on a Business
Day specified by the Company (the
Optional Release Date
), upon the satisfaction of the
following conditions precedent (the
Optional Release Conditions
).
(i) the Company shall have given notice to the Agent at least 10 days prior to the
Optional Release Date, specifying the proposed Optional Release Date;
(ii) the Ratings Condition has been satisfied, as of the date of such notice has
remained satisfied for an uninterrupted period of at least 30 consecutive days, and shall
remain satisfied as of the Optional Release Date;
(iii) no Default shall have occurred and be continuing as of the date of such
notice or as of the Optional Release Date;
(iv) all Liens on the Collateral securing the Notes and any other obligations
pursuant to the Collateral Documents, have been released as of the Optional
Release Date or are released simultaneously with the release of the Collateral from the
Liens securing obligations under the Loan Documents pursuant to this Section; and
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157
(v) on the Optional Release Date, the Agent shall have received (A) a certificate,
dated the Optional Release Date and executed on behalf of the Company by a Senior Financial
Officer thereof, confirming the satisfaction of the Optional Release Conditions set forth in
clauses (ii), (iii) and (iv) above and (B) such other evidence and calculations as the Agent
may reasonably require confirming the satisfaction of the Optional Release Conditions set
forth above.
If the conditions set forth above are satisfied on the Optional Release Date, then (i) on and after
the Optional Release Date the Agent shall execute and deliver all such instruments, releases,
financing statements or other agreements, and take all such further actions, at the request and
expense of the Company, as shall be necessary to effectuate the release of the Liens granted under
the Collateral Documents and (ii) as of the Optional Release Date all representations and
warranties and covenants contained in this Agreement, the Security Agreement and any other
Collateral Document related to the grant or perfection of Liens on the Collateral shall be deemed
to be of no force or effect. Any such release shall be without recourse to, or representation or
warranty by, the Agent and shall not require the consent of any Lender.
(b) Without limiting the provisions of
Section 9.04
, the Company shall reimburse
the Agent for all costs and expenses, including attorneys fees and disbursements, incurred by it
in connection with any action contemplated by this Section.
(c) The Lenders hereby irrevocably agree that the Liens granted to the Agent by the Loan
Parties on any Collateral shall be automatically released (i) in full, upon the termination of this
Agreement and the payment of all Obligations hereunder (except for contingent indemnification
obligations in respect of which a claim has not yet been made and any obligations which are
expressly stated to survive), (ii) upon the sale or other disposition of such Collateral (including
as part of or in connection with any other sale or other disposition permitted hereunder) to any
Person other than another Loan Party, to the extent such sale or other disposition is made in
compliance with the terms of this Agreement (and the Agent may rely conclusively on a certificate
to that effect provided to it by any Loan Party upon its reasonable request without further
inquiry), (iii) to the extent such Collateral is comprised of property leased to a Loan Party, upon
termination or expiration of such lease, (iv) if the release of such Lien is approved, authorized
or ratified in writing by the Required Lenders (or such other percentage of the Lenders whose
consent may be required in accordance with this Section 9.01), (v) to the extent the property
constituting such Collateral is owned by any Loan Party, upon the release of such Loan Party from
its obligations under the applicable Guarantee (in accordance with the following sentence), (vi)
with respect to any Obligations of the Company or its Domestic Subsidiaries, upon the sale or other
disposition of such Collateral (including as part of or in connection with any other sale or other
disposition permitted hereunder) to any Excluded Foreign Subsidiary, to the extent such sale or
other disposition is made in compliance with the terms of this Agreement (and the Agent may rely
conclusively on a certificate to that effect provided to it by any Loan Party upon its reasonable
request without further inquiry), (vii) as required to effect any sale or other disposition of
Collateral in connection with any exercise of remedies of the Agent pursuant to the Collateral
Documents and (viii) upon any Principal
Property (as defined in the Existing Sealed Air Notes) or capital stock constituting
Collateral triggering the equal and ratable clauses under the Existing Sealed Air Notes, such
Principal Property and capital stock constituting Collateral, while any Existing Sealed Air Notes
remain
Sealed Air Credit Agreement
158
outstanding, to the extent that such Collateral violates such equal and ratable clauses.
Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens
(other than those being released) upon (or obligations (other than those being released) of the
Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of
any sale, all of which shall continue to constitute part of the Collateral except to the extent
otherwise released in accordance with the provisions of the Loan Documents. Additionally, the
Lenders hereby irrevocably agree that any Restricted Subsidiary that is a Loan Party shall be
released from the Guarantees upon consummation of any permitted transaction resulting in such
Subsidiary ceasing to constitute a Restricted Subsidiary. The Lenders hereby authorize the Agent
to execute and deliver any instruments, documents, and agreements necessary or desirable to
evidence and confirm the release of any Loan Party or Collateral pursuant to the foregoing
provisions of this paragraph, all without the further consent or joinder of any Lender.
SECTION 9.18
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.
SECTION 9.19
Parallel Debt
. (a)
Definitions
. In this Section:
Corresponding Debt
means the Obligations.
Parallel Debt
means any amount which a Borrower owes to the Agent under this Clause.
(b) Each Loan Party irrevocably and unconditionally undertakes to pay to the Agent amounts
equal to, and in the currency or currencies of, its Corresponding Debt.
(c) The Parallel Debt of each Loan Party:
(i) shall become due and payable at the same time as its Corresponding Debt; and
(ii) is independent and separate from, and without prejudice to, its Corresponding
Debt.
(d) For purposes of this Section, the Agent:
(i) is the independent and separate creditor of each Parallel Debt;
(ii) acts in its own name and not as agent, representative or trustee of the
Lenders and its claims in respect of each Parallel Debt shall not be held on trust; and
(iii) shall have the independent and separate right to demand payment of each
Parallel Debt in its own name (including, without limitation, through any suit, execution,
enforcement of security, recovery of guarantees and applications for and voting in any kind
of insolvency proceeding).
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159
(e) The Parallel Debt of a Loan Party shall be (a) decreased to the extent that its
Corresponding Debt has been irrevocably and unconditionally paid or discharged, and (b) increased
to the extent to that its Corresponding Debt has increased, and the Corresponding Debt of a Loan
Party shall be (x) decreased to the extent that its Parallel Debt has been irrevocably and
unconditionally paid or discharged, and (y) increased to the extent that its Parallel Debt has
increased, in each case provided that the Parallel Debt of a Loan Party shall never exceed its
Corresponding Debt.
(f) All amounts received or recovered by the Agent in connection with this Section, to the
extent permitted by applicable law, shall be applied in accordance with Section
2.11(b)(ii)(C)
.
(g) This Section applies for the purpose of determining the secured obligations in any
Collateral Document and is (i) for the purpose of the Dutch law Collateral Documents governed by
Dutch law and (ii) for the purpose of the Belgian law Collateral Documents governed by Belgian law.
SECTION 9.20
Intercreditor Agreement
.
REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT.
EACH LENDER HEREUNDER FROM TIME TO TIME IS DEEMED TO HAVE EXECUTED THE INTERCREDITOR AGREEMENT AND
(A) AGREES THAT IT WILL BE BOUND BY AND COMPLY WITH THE PROVISIONS OF THE INTERCREDITOR AGREEMENT,
(B) CONSENTS TO THE ALLOCATION OF PARTICIPATIONS PROVIDED FOR THEREIN, (C) MAKES ALL
REPRESENTATIONS AND WARRANTIES SPECIFIED IN THE INTERCREDITOR AGREEMENT, (D) AGREES TO TAKE NO
ACTION CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND (E) AUTHORIZES AND INSTRUCTS
THE AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT AS AGENT AND ON BEHALF OF SUCH LENDER.
SECTION 9.21
Exceptions to the Application of the Bank Transaction Agreement
. The Agreement on
Bank Transactions (
ginko torihiki yakujosho
) and the Agreement on Financial Transactions (
kinyu
torihiki yakujosho
) separately submitted by any Japanese Loan Parties to any of the Lenders or
entered into between any Japanese Loan Parties and any of the Lenders, if any, shall not apply to
this Agreement and the transactions contemplated in this Agreement
SECTION 9.22
Financial Assistance Australian Loan Party
Notwithstanding any other provision of this
Agreement or any of the Loan Documents, the parties agree that in respect of each Australian Loan
Party, the provisions of this Agreement and each other Loan Document and the obligations incurred
under them in so far as such obligations may constitute financial assistance under section 260A of
the Corporations Act have no effect in respect of, and do not apply to, any Australian Loan Party
until such time as the steps set out in section 260B of the Corporations Act have been complied
with and all statutory periods required under section 260B of the Corporations Act have elapsed.
Sealed Air Credit Agreement
160
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, along with the
two witnesses below.
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SEALED AIR CORPORATION
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By:
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/s/ Tod S. Christie
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Name:
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Tod S. Christie
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Title:
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Interim Chief Financial Officer
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Signature Page to
Credit Agreement
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SEALED AIR CORPORATION (US)
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By:
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/s/ H. Katherine White
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Name:
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H. Katherine White
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Title:
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Director
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Signature Page to
Credit Agreement
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DIVERSEY CANADA, INC.
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By:
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/s/ David C. Quast
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Name:
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David C. Quast
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Title:
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Secretary
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Signature Page to
Credit Agreement
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DIVERSEY CO., LTD.
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By:
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/s/ Andrew Warren
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Name:
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Andrew Warren
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Title:
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Director
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Signature Page to
Credit Agreement
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SEALED AIR B.V.
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By:
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/s/ H. Katherine White
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Name:
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H. Katherine White
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Title:
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Director
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Signature Page to
Credit Agreement
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DIVERSEY EUROPE B.V.
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By:
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/s/ David C. Quast
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Name:
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David C. Quast
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Title:
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Director
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Signature Page to
Credit Agreement
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SEALED AIR LUXEMBOURG S.C.A
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By:
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/s/ H. Katherine White
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Name:
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H. Katherine White
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Title:
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Authorized Signatory
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Signature Page to
Credit Agreement
Executed by
CRYOVAC AUSTRALIA PTY
LIMITED ACN 004 207 532
by its
Attorney under a Power of Attorney dated
September 30, 2011 and the Attorney declares
that the Attorney has not received any notice
of the revocation of such Power of Attorney:
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/s/ H. Katherine White
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/s/ Guy Chayoun
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Signature of Attorney
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Signature of Witness
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H. Katherine White
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Guy Chayoun
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Name of Attorney
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Name of Witness
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Executed by
SEALED AIR AUSTRALIA (HOLDINGS)
PTY. LIMITED ACN 102 261 307
by its
Attorney under a Power of Attorney dated
September 30, 2011 and the Attorney declares
that the Attorney has not received any notice
of the revocation of such Power of Attorney:
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/s/ H. Katherine White
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/s/ Guy Chayoun
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Signature of Attorney
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Signature of Witness
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H. Katherine White
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Guy Chayoun
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Name of Attorney
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Name of Witness
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Signature Page to
Credit Agreement
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CITIBANK, N.A.
as Agent, Issuing Bank and a Lender
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By:
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/s/ Christopher Wood
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Name:
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Christopher Wood
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Title:
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Vice President
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Signature Page to
Credit Agreement
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CITIBANK JAPAN LTD.,
as a Lender
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By:
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/s/ Mikio Naito
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Name:
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Mikio Naito
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Title:
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Director
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Signature Page to
Credit Agreement
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CITIBANK, N.A., Canadian Branch
as a Lender
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By:
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/s/ Cal Fryer
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Name:
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Cal Fryer
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Title:
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Authorised Signer
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Signature Page to
Credit Agreement
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BANK OF AMERICA, N.A.,
as a Lender
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By:
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/s/ W.H. Pegler, Jr.
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Name:
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W.H. Pegler, Jr.
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Title:
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Managing Director
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Signature Page to
Credit Agreement
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BNP PARIBAS,
as a Lender
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By:
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/s/ John Treadwell, Jr.
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Name:
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John Treadwell, Jr.
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Title:
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Vice President
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By:
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/s/ Nicolas Rabier
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Name:
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Nicolas Rabier
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Title:
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Director
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Signature Page to
Credit Agreement
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THE ROYAL BANK OF SCOTLAND
PLC, as a Lender
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By:
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/s/ Uche S. Osugi
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Name:
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Uche S. Osugi
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Title:
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Authorized Signatory
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Signature Page to
Credit Agreement