FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER

 

Exhibit 4.11.1

FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER

W I T N E S S E T H

 

 

 

 

 

 

 

 

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	BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender
By:	/s/ Steven K. Kessler
Name:	Steven K. Kessler
Title:	Senior Vice President

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CREDIT AGREEMENT

Dated as of June 5, 2007

(as amended as of March 23, 2009)

among

APPLETON PAPERS INC.,

as the U.S. Borrower,

BEMROSEBOOTH LIMITED,

as the UK Borrower

(prior to August 1, 2008),

The Other Designated Foreign Subsidiary Borrowers Party Hereto,

PAPERWEIGHT DEVELOPMENT CORP.,

as Holdings,

BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and

L/C Issuer,

and

The Other Lenders Party Hereto

BANC OF AMERICA SECURITIES LLC,

as Joint Lead Arranger and Joint Book Manager,

and

UBS SECURITIES LLC,

as Joint Lead Arranger, Joint Book Manager and Syndication Agent,

BNP PARIBAS,

LASALLE BANK NATIONAL ASSOCIATION,

and

SUNTRUST BANK,

as Co-Documentation Agents

 

 

TABLE OF CONTENTS

 

 

 

CREDIT AGREEMENT

This CREDIT AGREEMENT (“ Agreement ”) is entered into as of June 5, 2007 (as amended as of March 23, 2009) among APPLETON PAPERS INC., a Delaware corporation (the “ U.S. Borrower ”), BEMROSEBOOTH LIMITED, a company organized under the laws of the United Kingdom (the “ UK Borrower ”), certain Subsidiaries of the U.S. Borrower party hereto pursuant to Section 2.15 (each such Subsidiary, as well as the UK Borrower, a “ Designated Foreign Subsidiary Borrower ” and, together with the UK Borrower, collectively, the “ Designated Foreign Subsidiary Borrowers ” and, together with the U.S. Borrower, collectively, the “ Borrowers ”), PAPERWEIGHT DEVELOPMENT CORP., a Wisconsin corporation (“ Holdings ”), each lender from time to time party hereto (collectively, the “ Lenders ” and individually, a “ Lender ”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.

PRELIMINARY STATEMENTS :

The Borrowers have requested that the Lenders provide a term B loan facility and a revolving credit facility, and the Lenders have indicated their willingness to lend and the L/C Issuer has indicated its willingness to issue letters of credit, in each case, on the terms and subject to the conditions set forth herein.

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

 

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

As used in this Agreement, the following terms shall have the meanings set forth below:

“ Acquisition Agreement ” means that Purchase Agreement, dated as of July 5, 2001, among the U.S. Borrower, AWA and the other parties thereto, as amended prior to the date hereof and, if in accordance with the terms hereof, on or after the date hereof.

“ Acquisition Documentation ” means collectively, the Acquisition Agreement and all schedules, exhibits and annexes thereto and all side letters and agreements affecting the terms thereof or entered into in connection therewith including, without limitation, the Fox River Indemnity Arrangements.

“ Administrative Agent ” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02 , or such other address or account as the Administrative Agent may from time to time notify to the U.S. Borrower and the Lenders.

“ Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

 

 

“ Affiliate ” means, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person.  For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.

“ Aggregate Commitments ” means the Commitments of all the Lenders.

“ Aggregate Credit Exposures ” means, at any time, in respect of (a) the Term B Facility, the aggregate amount of the Term B Loans, as the case may be, outstanding at such time and (b) in respect of the Revolving Credit Facility, the sum of (i) the unused portion of the Revolving Credit Facility at such time and (ii) the Total Revolving Credit Outstandings at such time.

“ Agreement ” means this Credit Agreement.

“ AIG Credit Support ” means the Indemnity Claim Insurance Policy No. 5295316, issued on November 9, 2001, by Commerce & Industry Insurance Company in favor of Bermuda Company, as amended and endorsed as of the date hereof.

“ Alternative Currency ” means each of British Pounds Sterling, Euro and each other lawful currency (other than Dollars) that is freely available, freely transferable and convertible into Dollars and that is approved by all the Revolving Credit Lenders in accordance with Section 1.09 .

“ Alternative Currency Equivalent ” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.

“ Alternative Currency Sublimit ” means an amount equal to $15,000,000.  The Alternative Currency Sublimit is part of, and not in addition to, the aggregate Revolving Credit Commitments.

“ Applicable Currency ” means Dollars or an Alternative Currency, as applicable.

“ Applicable Foreign Loan Party Documents ” has the meaning specified in Section 5.24(a).

“ Applicable Percentage ” means (a) in respect of the Term B Facility, with respect to any Term B Lender at any time, the percentage (carried out to the ninth decimal place) of the Term B Facility represented by the principal amount of such Term B Lender’s Term B Loans at such time and (b) in respect of the Revolving Credit Facility, with respect to any Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility represented by such Revolving Credit Lender’s Revolving Credit Commitment at such time.  If the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.01 , or if the Commitments have expired, then the Applicable Percentage of each Lender in respect of the applicable Facility shall be determined based on the Applicable Percentage of such Lender in respect of such Facility most recently in effect, giving effect to any subsequent assignments.  The initial Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

 

 

“ Applicable Rate ” means from time to time, for the purposes of calculating (a) the commitment fee for the purposes of Section 2.09(a) , (b) the Letter of Credit Fee for purposes of Section 2.03(i) , (c) the interest rate applicable to Revolving Credit Loans that are Eurodollar Rate Loans for the purposes of Section 2.08 and (d) the interest rate applicable to Revolving Credit Loans and Swing Line Loans that are Base Rate Loans for the purposes of Section 2.08 , the following percentages per annum, based upon the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a) :

Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is required to be delivered pursuant to Section 6.02(a) (i.e., 45 days after the end of each of the first three fiscal quarters of Holdings’ fiscal year and 90 days after the end of Holdings’ fiscal year); provided , however , that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 4 shall apply in respect of the Revolving Credit Facility as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered until the first Business Day after actual delivery thereof.  The Applicable Rate in effect from the First Amendment Effective Date through the first Business Day immediately following the date a Compliance Certificate is required to be delivered pursuant to Section 6.02(a) for the fiscal quarter ending on or about September 30, 2009 shall be determined based upon Pricing Level 4.

Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b) .

“ Applicable Revolving Credit Percentage ” means with respect to any Revolving Credit Lender at any time, such Revolving Credit Lender’s Applicable Percentage in respect of the Revolving Credit Facility at such time.

“ Applicable Time ” means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.

 

 

“ Appropriate Lender ” means, at any time, (a) with respect to any of the Term B Facility or the Revolving Credit Facility, a Lender that has a Commitment with respect to such Facility or holds a Term B Loan or a Revolving Credit Loan, respectively, at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03(a) , the Revolving Credit Lenders and (c) with respect to the Swing Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a) , the Revolving Credit Lenders.

“ Approved Fund ” means any Fund 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.

“ Arranger ” means Banc of America Securities LLC in its capacities as joint lead arranger and joint book manager.

“ Asset Sale ” means any Disposition of property or series of related Dispositions of property, excluding any such Disposition (i) to any Loan Party or (ii) permitted by clause (a), (b), (c) or (d) of Section 7.05 ).

“ Assignee Group ” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b) ), and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form approved by the Administrative Agent.

“ Availability Period ” means, in respect of the Revolving Credit Facility, the period from and including the Closing Date to the earliest of (i) the Maturity Date for the Revolving Credit Facility, (ii) the date of termination of the Revolving Credit Commitments pursuant to Section 2.06 , and (iii) the date of termination of the commitment of each Revolving Credit Lender to make Revolving Credit Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.01 .

“ Available Revolving Commitment ” means as to any Revolving Credit Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Revolving Credit Commitment then in effect over (b) such Lender’s Outstanding Amount of Revolving Credit Loans.

“ AWA ” means Arjo Wiggins Appleton p.l.c.

 “ AWA Environmental Indemnity ” means the indemnification provided pursuant to the terms of (i) the Fox River AWA Environmental Agreement dated November 9, 2001, as amended, among Holdings, the U.S. Borrower, Arjo Wiggins Appleton PLC and New Appleton LLC, (ii) the insurance policy (Policy No. 529 5316) issued by Commerce & Industry Insurance Company to Arjo Wiggins Appleton (Bermuda) Limited and (iii) any other environmental indemnification agreement or related insurance policy in favor of the U.S. Borrower.

 

 

“ AWA Environmental Indemnity Agreement ” means the Fox River AWA Environmental Indemnity Agreement, dated as of November 9, 2001, among Holdings, the U.S. Borrower and AWA, as amended prior to the date hereof and, if in accordance with the terms hereof, on or after the date hereof.

“ Bank of America ” means Bank of America, N.A. and its successors.

“ Base Rate ” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and (c) the Eurodollar Rate that would be applicable to a new Eurodollar Rate Loan with a one month Interest Period plus 1%.  The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

“ Base Rate Loan ” means a Revolving Credit Loan or a Term B Loan that bears interest based on the Base Rate.

“ Bermuda Company ” means Arjo Wiggins Appleton (Bermuda) Limited, a company limited by shares organized under the Companies Act of 1981 of the Island of Bermuda.

“ Bermuda Company Agreements ” means the collective reference to (a) the Amended and Restated Relationship Agreement, dated as of June 11, 2004, among Holdings, AWA, Holdings Sub, and AWA Sub, (b) the Assignment and Assumption Deed, dated as of November 9, 2001, between AWA and the Bermuda Company, (c) the By-Laws and Memorandum of Association of the Bermuda Company, (d) the Certificate of Incorporation and By-laws of Holdings Sub, (e) the By-Laws and Memorandum of Association of AWA Sub and (f) the Bermuda Security Agreement.

“ Bermuda Security Agreement ” means the Collateral Assignment, dated as of November 9, 2001, by the Bermuda Company in favor of the U.S. Borrower.

 “ Bilateral Facility ” means any facility or financial accommodation (including any revolving, overdraft, foreign exchange, guarantee, letter of credit, bonding, credit card or automated payments facility) made available to the UK Borrower by one or more Bilateral Facility Lenders in aggregate principal amount not to exceed, for all Bilateral Facilities, 7,000,000 British Pounds Sterling at any one time outstanding.

“ Bilateral Facility Documents ” means all instruments or other agreements between the UK Borrower and the respective Bilateral Facility Lender or Bilateral Facility Lenders relating to the Bilateral Facility.

“ Bilateral Facility Lender ” means any Person that, at the time it enters into a Bilateral Facility, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Bilateral Facility.

“ Borrowers ” has the meaning specified in the introductory paragraph hereto.

“ Borrower Materials ” has the meaning specified in Section 6.02 .

 

 

“ Borrowing ” means a Revolving Credit Borrowing, a Swing Line Borrowing or a Term B Borrowing, as the context may require.

“ British Pounds Sterling ” means the lawful currency of the United Kingdom.

“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state of New York or the state where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and:

“ Capital Expenditures ” means, for any period, with respect to any Person, the aggregate of all expenditures by such Person and its Subsidiaries for the acquisition or leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) that should be capitalized under GAAP on a consolidated balance sheet of such Person and its Subsidiaries.

“ Capital Lease Obligations ” means as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.

“ Capital Stock ” means, with respect to any Person, all of the shares of Capital Stock of (or other ownership or profit interests in) such Person, all 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, all 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 all 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.

 

 

“ Cash Collateralize ” has the meaning specified in Section 2.03(g) (and derivatives of such term have corresponding meanings).

“ Cash Equivalents ” means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition, or in the case of any Foreign Subsidiary only, such local currencies held by it from time to time in the ordinary course of business; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of one year or less from the date of acquisition issued by any Lender or by any commercial bank organized under the laws of the United States, any state thereof or any member nation of the Organization for Economic Cooperation and Development   having combined capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated at least A-1 by Standard & Poor’s Ratings Services (“ S&P ”) or P-1 by Moody’s Investors Service, Inc. (“ Moody’s ”), or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within one year from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Moody’s; (f) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition; (g) shares of money market mutual or similar funds at least 95% of the assets of which satisfy the requirements of clauses (a) through (f) of this definition; or (h) in the case of any Foreign Subsidiary only, instruments equivalent to those referred to in clauses (a) through (g) above in each case denominated in any foreign currency comparable in credit quality and tenor to those referred to in such clauses above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Foreign Subsidiary.

“ Cash Management Agreement ” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card (including corporate purchase and travel card), electronic funds transfer and other cash management arrangements.

“ Cash Management Bank ” means any Person that (i) at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender or (ii) at the time it or its Affiliate becomes a Lender, is a party to a Cash Management Agreement, in each case in its capacity as a party to such Cash Management Agreement.

“ CERCLA ” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980.

“ CERCLIS ” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.

“ CFC ” means a Person that is a controlled foreign corporation under Section 957 of the Code.

 

 

“ Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

“ Closing Date ” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 11.01 .

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Collateral ” means all property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document.

“ Commitment ” means a Term B Commitment or a Revolving Credit Commitment, as the context may require.

“ Committed Loan Notice ” means a notice of (a) the Term B Borrowing, (b) a Revolving Credit Borrowing, (c) a conversion of Loans from one Type to the other, or (d) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a) , which, if in writing, shall be substantially in the form of Exhibit A .

“ Commonly Controlled Entity ” means an entity, whether or not incorporated, that is under common control with Holdings or the U.S. Borrower within the meaning of Section 4001 of ERISA or is part of a group that includes Holdings or the U.S. Borrower and that is treated as a single employer under Section 414 of the Code.

“ Compliance Certificate ” means a certificate substantially in the form of Exhibit D .

“ Confidential Information Memorandum ” means the information memorandum dated April 2007 used by the Arranger in connection with the syndication of the Commitments.

“ Consolidated Current Assets ” means at any date, all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of Holdings and its Subsidiaries at such date.

“ Consolidated Current Liabilities ” means at any date, all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of Holdings and its Subsidiaries at such date, but excluding (a) the current portion of any Indebtedness of Holdings and its Subsidiaries and (b) without duplication of clause (a) above, all Indebtedness consisting of Revolving Credit Loans or Swing Line Loans to the extent otherwise included therein.

 

 

“ Consolidated EBITDA ” means, for any period, the sum of (i) Consolidated Net Income for such period plus (ii) without duplication and to the extent reflected as a charge in the statement of such Consolidated Net Income for such period, the sum of (a) income tax expense, (b) interest expense, amortization or writeoff of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness (including the Loans), (c) depreciation and amortization expense (including, but not limited to, goodwill), (d) any extraordinary charges or losses determined in accordance with GAAP, (e) non-cash charges from employee compensation deferrals and employer matching contributions pursuant to the ESOP Documentation relating to ESOP Stock Issuances, (f) cash losses from Asset Sales, (g) cash restructuring charges and/or non-recurring cash charges or losses not to exceed $2,000,000 in any twelve month period   and (h) any other non-cash charges, non-cash expenses or non-cash losses of Holdings or any of its Subsidiaries ( provided , however , that cash payments made in any future period in respect of such non-cash charges added back in determining Consolidated EBITDA for periods ending after the Closing Date (as with any other non-cash charge, expense or loss added to Consolidated Net Income pursuant to this clause (h)) shall be subtracted from Consolidated Net Income in calculating Consolidated EBITDA in the period when such payments are made) minus (iii) to the extent included in the statement of such Consolidated Net Income for such period, the sum of, without duplication, (a) interest income, (b) any extraordinary income or gains determined in accordance with GAAP, (c) any cancellation-of-debt income resulting from repurchases of Indebtedness after the Closing Date, (d) cash gains from Asset Sales and (e) any other non-cash income (excluding any items that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period that are described in the parenthetical to clause (h) above), all as determined on a consolidated basis.

For the purposes of calculating Consolidated EBITDA for any period of four consecutive fiscal quarters (each, a “ Reference Period ”) pursuant to any determination of the Consolidated Leverage Ratio or the Consolidated Senior Secured Leverage Ratio, (i) if at any time during such Reference Period the U.S. Borrower or any Subsidiary shall have made any Material Disposition (as defined below), the Consolidated EBITDA for such Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Material Disposition for such Reference Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period and (ii) if during such Reference Period the U.S. Borrower or any Subsidiary shall have made a Material Acquisition (as defined below), Consolidated EBITDA for such Reference Period shall be calculated after giving pro forma effect thereto as if such Material Acquisition occurred on the first day of such Reference Period.  As used in this definition, “ Material Acquisition ” means any acquisition of property or series of related acquisitions of property that (a) constitutes assets comprising all or substantially all of an operating unit of a business or constitutes all or substantially all of the common stock of a Person and (b) involves the payment of consideration by the U.S. Borrower and its Subsidiaries in excess of $5,000,000; and “ Material Disposition ” means any Disposition of property or series of related Dispositions of property that yields gross proceeds to the U.S. Borrower or any of its Subsidiaries in excess of $5,000,000.

“ Consolidated Fixed Charge Coverage Ratio ” means, for any period, the ratio of (a) Consolidated EBITDA for such period minus the lesser of (i) $8,000,000 per fiscal quarter for such period and (ii) Capital Expenditures for such period to (b) the sum of the aggregate amounts of (i) scheduled principal payments on Indebtedness during such period, (ii) Consolidated Interest Expense during such period and (iii) repurchases of Holdings’ common stock pursuant to the ESOP Documentation during such period.

“ Consolidated Interest Coverage Ratio ” means, for any period, the ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense for such period.

 

 

“ Consolidated Interest Expense ” means, for any period, total cash interest expense (including that attributable to Capital Lease Obligations but, for the avoidance of doubt, in any event excluding any amortization or write-off of financing costs) of Holdings and its Subsidiaries for such period with respect to all outstanding Indebtedness of Holdings and its Subsidiaries (including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under Hedge Agreements in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP).

“ Consolidated Leverage Ratio ” means, at any time, the ratio of (a) Consolidated Total Debt as of the last day of the most recently completed fiscal quarter to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters ended on such last day.

“ Consolidated Net Income ” means, for any period, the consolidated net income (or loss) of Holdings and its Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary of Holdings or is merged into or consolidated with Holdings or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary of Holdings) in which Holdings or any of its Subsidiaries has an ownership interest, except to the extent that any such income is actually received by Holdings or such Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of any Subsidiary of Holdings that is not a Loan Party to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document) or Requirement of Law applicable to such Subsidiary.

“ Consolidated Senior Secured Leverage Ratio ” means, at any time, the ratio of (a) Consolidated Total Debt as of the last day of the most recently completed fiscal quarter (excluding the Senior Unsecured Notes, the Senior Subordinated Notes, the Existing Senior Subordinated Notes, any Permitted Refinancing Debt and any other Indebtedness that is (i) subordinated to the Obligations in a manner (x) no less favorable to the Lenders than the subordination provisions of the Senior Subordinated Notes or (y) otherwise acceptable to the Administrative Agent or (ii) otherwise unsecured) to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters ended on such last day.

“ Consolidated Tangible Assets ” means, with respect to Holdings and its Subsidiaries as of any date, the aggregate of the assets of Holdings and its Subsidiaries excluding goodwill, patents, trade names, trade marks, copyrights, franchises, experimental expense, organization expense and any other assets properly classified as intangible assets in accordance with GAAP, as of the date in which the most recent financial statements were delivered pursuant to Section 6.01(a) or (b) (or Section 5.01 ) on a consolidated basis, determined in accordance with GAAP. In the event that information relating to Consolidated Tangible Assets is not available as of any date, then the most recently available information will be used.

“ Consolidated Total Debt ” means at any date, the aggregate principal amount of all Indebtedness of Holdings and its Subsidiaries at such date, as the same would be shown on a consolidated balance sheet of Holdings and its consolidated Subsidiaries as at such date in accordance with GAAP, but in any event excluding Indebtedness permitted under clauses (i) , (j) and (k) of Section 7.02 .

 “ Consolidated Working Capital ” means, at any date, the excess of Consolidated Current Assets on such date over Consolidated Current Liabilities on such date.

 

 

“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

“ Credit Extension ” means each of the following:  (a) a Borrowing and (b) an L/C Credit Extension.

“ 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 or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

“ Defaulting Lender ” means any Impacted Lender and any other Lender that (a) has failed to fund any portion of the Term B Loans, Revolving Credit Loans, participations in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of any proceeding under any Debtor Relief Laws.

“ Derivatives Counterparty ” means any financial institution, commodities or stock exchange or clearinghouse.

“ Designated Foreign Subsidiary Borrower ” has the meaning specified in the recitals hereto.

“ Designated Foreign Subsidiary Borrower Obligations ” means the principal of and interest on (including interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Designated Foreign Subsidiary Borrowers whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans made to Designated Foreign Subsidiary Borrowers and all other Obligations of the Designated Foreign Subsidiary Borrowers, including, without limitation all debts, obligations and liabilities arising under the Bilateral Facility Documents, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including, without limitation, all fees and disbursements of counsel to the Administrative Agent or to the Lenders that are required to be paid by the Designated Foreign Subsidiary Borrowers pursuant to the terms of this Agreement) or otherwise.

“ Disposition ” or “ Dispose ” means the sale, transfer or other disposition (including any sale and leaseback transaction, but excluding the granting of Liens permitted by this Agreement and any exercise of remedies in connection therewith, leases, licenses, sub-leases, sub-licenses and transfers pursuant to condemnation and similar proceedings) of any property by any Person, including any such sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

 

 

“ Disqualified Capital Stock ” means any Capital Stock which, by its terms (or by the terms of any security or other Capital Stock into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Capital Stock that is not Disqualified Capital Stock), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Capital Stock that is not Disqualified Capital Stock), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Capital Stock that would constitute Disqualified Capital Stock, in each case, prior to the date that is ninety-one (91) days after the Maturity Date of the Term B Loans.

“ Dollar ” and “ $ ” mean lawful money of the United States.

“ Dollar Equivalent ” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.

“ Domestic Subsidiary ” means any Subsidiary that is organized under the laws of any political subdivision of the United States.

“ Eligible Assignee ” means any Person that meets the requirements to be an assignee under Section 11.06(b)(iii) , (v) and (vi) (subject to such consents, if any, as may be required under Section 11.06(b)(iii) ); provided , however , that an Eligible Assignee with respect to the Revolving Credit Facility shall include only a Lender, an Affiliate of a Lender or another Person, which, through its Lending Offices, is capable of lending the applicable Alternative Currencies to the relevant Borrowers without the imposition of any additional Indemnified Taxes.

“ EMU Legislation ” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

 “ Environmental Laws ” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.

“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the U.S. Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

 

“ Environmental Permit ” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

“ ESOP ” means the Appleton Papers Retirement Savings and Employee Stock Ownership Plan.

“ ESOP Component ” means the employee stock ownership plan component of the ESOP.

“ ESOP Documentation ” means the collective reference to (a) the Appleton Papers Retirement Savings and Employee Stock Ownership Plan, restated effective January 1, 2001, (b) the Appleton Papers Inc. Employee Stock Ownership Trust, adopted July 19, 2001 and (c) all amendments, supplements or other modifications to any of the foregoing, all schedules, exhibits and annexes thereto and all agreements affecting the terms thereof or entered into in connection therewith.

“ ESOP Stock Issuances ” means with respect to any period, any issuance of common stock by Holdings to the ESOP during such period.

“ ESOP Trust ” means the Appleton Papers Inc. Employee Stock Ownership Trust.

“ Euro ” means the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.

“ Eurodollar Rate ” means:

(a) For any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“ BBA LIBOR ”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.  If such rate is not available at such time for any reason, then the “Eurodollar Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in the relevant currency for delivery on the first day of such Interest Period in Same Day Funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch (or other Bank of America branch or Affiliate) to major banks in the London or other offshore interbank market for such currency at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.

 

 

(b) For any interest rate calculation with respect to a Base Rate Loan, the rate per annum equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time, two Business Days prior to the date of determination (provided that if such day is not a Business Day, the next preceding London Business Day) for deposits in the relevant currency being delivered in the London interbank market for a term of one month commencing that day or (ii) if such published rate is not available at such time for any reason, the rate determined by the Administrative Agent to be the rate at which deposits in the relevant currency for delivery on the date of determination in same day funds in the approximate amount of the Base Rate Loan being made, continued or converted by Bank of America and with a term equal to one month would be offered by Bank of America’s London Branch to major banks in the London interbank Eurodollar market at their request at the date and time of determination.

Notwithstanding the foregoing, in no event shall the Eurodollar Rate be less than 2.00% for any purpose.

“ Eurodollar Rate Loan ” means a Revolving Credit Loan or a Term B Loan that bears interest at a rate based on the Eurodollar Rate. All Loans denominated in an Alternative Currency must be Eurodollar Rate Loans.

“ Event of Default ” has the meaning specified in Section 8.01 .

“ Excess Cash Flow ” means, for any fiscal year of Holdings, the excess, if any, of (a) the sum of (without duplication) (i) Consolidated Net Income for such fiscal year, (ii) the amount of all non-cash charges (including depreciation   and amortization) deducted in arriving at such Consolidated Net Income, (iii) decreases in Consolidated Working Capital for such fiscal year and (iv) the aggregate net amount of non-cash loss on Disposition of property by Holdings and its Subsidiaries during such fiscal year (other than sales of inventory in the ordinary course of business), to the extent deducted in arriving at such Consolidated Net Income over (b) the sum of (i) the amount of all non-cash income included in arriving at such Consolidated Net Income, (ii) the sum of all cash payments made during such period as described in the proviso to clause (h) of the definition of Consolidated EBITDA, (iii) the excess of (A) the aggregate amount actually paid by the U.S. Borrower and its Subsidiaries in cash during such fiscal year on account of Capital Expenditures, over (B) the sum of (x) the principal amount of Indebtedness incurred to finance such expenditures (excluding the Loans hereunder and net of any repayments of any such Indebtedness during such period) and (y) any such expenditures financed with the proceeds of any Dispositions not used to prepay the Term B Loans pursuant to Section 2.05(b)(ii) , (iv) the aggregate amount of all regularly scheduled principal payments of Indebtedness (including the Term B Loans) of the U.S. Borrower and its Subsidiaries made during such fiscal year (other than in respect of any revolving credit facility to the extent there is not an equivalent permanent reduction in commitments thereunder), (v) the aggregate amount paid in cash to prepay or retire the U.S. Borrower’s Existing Senior Subordinated Notes, Senior Unsecured Notes and Senior Subordinated Notes, plus any related cash premiums, during such fiscal year in accordance with Section 7.08 (other than with the proceeds of Permitted Refinancing Debt or, except to the extent such prepayment or repurchase is utilizing the $50,000,000 basket contained in Section 7.08(a)(C) , Loans hereunder), together with the aggregate amount paid in cash to voluntarily and permanently prepay and retire any other Indebtedness of the Group Members (excluding the Term B Loans and the Revolving Credit Loans) during such fiscal year, (vi) increases in Consolidated Working Capital, (vii) the aggregate net amount of income on the disposition of property by Holdings and its Subsidiaries during such fiscal year (other than sales of inventory in the ordinary course of business), to the extent included in arriving at such Consolidated Net Income, and (viii) the excess (if any) of (A) all aggregate amount of cash payments, loans, advances, distributions or dividends made by the U.S. Borrower to Holdings to permit Holdings to satisfy its obligations to repurchase its common stock pursuant to the ESOP Documentation during such fiscal year over (B) the aggregate amount of cash received by Holdings in respect of ESOP Stock Issuances during such period, which cash has been, in turn, contributed to the U.S. Borrower during such fiscal year.

 

“ Exchange Rate ” means on any day, with respect to any currency, the rate at which such currency may be exchanged into any other currency, as set forth at approximately 11:00 A.M., New York City time, on such date on the Reuters World Currency Page for such currency.  In the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the U.S. Borrower, or, in the absence of such agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about 10:00 A.M., local time, on such date for the purchase of Dollars with the relevant currency for delivery two Business Days later; provided that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent, after consultation with the U.S. Borrower, may use any reasonable method it deems appropriate to determine such rate, and such determination shall be presumed correct absent manifest error.

“ Excluded Foreign Subsidiary ” means any Foreign Subsidiary (a) in respect of which either (i) the pledge of all of the Capital Stock of such Subsidiary as Collateral or (ii) the guaranteeing by such Subsidiary of the Obligations, would, in the good faith judgment of the U.S. Borrower, result in adverse tax consequences to the U.S. Borrower or (b) that, together with its Subsidiaries, has, on any date of determination, (i) total assets constituting less than five percent (5%)   of the consolidated total assets of the Group Members and (ii) for the twelve month period most recently ended, revenues constituting less than five percent (5%) of the consolidated revenues of the Group Members for such period, in each case based upon the financial statements most recently delivered to the Administrative Agent pursuant to Section 6.01 .

“ Excluded Taxes ” means, with respect to the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits taxes imposed by the United States (or any political subdivision thereof) or any similar tax imposed by any other jurisdiction (or any political subdivision thereof) in which the Borrower is located and (c) except as provided in the following sentence, in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 11.13 ), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(e) , except to the extent that such Foreign Lender (or its assignor, if any) 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 tax pursuant to Section 3.01(a) .  Notwithstanding anything to the contrary contained in this definition, "Excluded Taxes" shall not include any withholding tax imposed at any time on payments made by or on

 

 

behalf of a Foreign Subsidiary to any Lender hereunder or under any other Loan Document, so long as such Lender shall have complied with the last two (2) paragraphs of Section 3.01(e) , as applicable; provided , that the definition of “Excluded Taxes” shall include any withholding tax imposed on amounts payable to an assignee of such Lender except to the extent that such Lender was entitled to receive additional amounts from such Foreign Subsidiary with respect to such withholding tax pursuant to Section 3.01(a) at the time of assignment.

“ Existing Credit Agreement ” means that certain Credit Agreement dated as of June 11, 2004 among the U.S. Borrower, Bear Stearns Corporate Lending Inc., as agent, and a syndicate of lenders, as amended prior to the date hereof.

“ Existing Letters of Credit ” means those existing letters of credit issued by certain of the Lenders and described on Schedule 1.01(a) .

“ Existing Senior Subordinated Notes ” means the existing 12.5% Series B Senior Subordinated Notes due 2008 issued by the U.S. Borrower.

“ Extraordinary Receipt ” means any cash received by or paid to or for the account of any Person not in the ordinary course of business, including but not limited to tax refunds, pension plan reversions, proceeds of insurance (other than proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings), indemnity payments and any purchase price adjustments.

“ Facility ” means the Term B Facility or the Revolving Credit Facility, as the context may require.

“ Federal Funds Rate ”   means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

“ Fee Letter ” means the letter agreement, dated April 24, 2007, among the U.S. Borrower, the Administrative Agent and the Arranger.

“ First Amendment Effective Date ” means March 23, 2009.

 “ Foreign Lender ” means any Lender that is organized under the laws of a jurisdiction other than that in which the applicable Borrower is resident for tax purposes.  For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

“ Foreign Loan Party ” means any Loan Party that is not a U.S. Loan Party.

 

 

“ Foreign Obligations ” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Foreign Loan Party arising under any Loan Document or otherwise with respect to any Loan 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 Foreign Loan Party 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. The foregoing shall also include any Hedge Agreement between any Foreign Loan Party and any Lender or Affiliate of a Lender and all obligations under any Treasury Management Agreement between any Foreign Loan Party and any Lender or an Affiliate of a Lender.

“ Foreign Pledge Agreements ” means the collective reference to UK Share Charge and each other pledge agreement pursuant to which shares of Foreign Subsidiaries may be pledged from time to time pursuant to Section 6.09 , in each case in form and substance reasonably satisfactory to the Administrative Agent.

“ Foreign Security Agreements ” means the collective reference to the UK Guarantee and Debenture and each other security agreement, mortgage, charge, pledge or other security document granting a Lien on property of a Foreign Subsidiary to secure the obligations and liabilities of any Loan Party hereunder that may be executed and delivered to the Administrative Agent pursuant to Section 6.09 , in each case in form and substance reasonably satisfactory to the Administrative Agent.

“ Foreign Subsidiary ” means any Subsidiary that is not a Domestic Subsidiary.

“ Foreign Subsidiary Guarantees ” means the collective reference to the UK Guarantee and Debenture and each other guarantee of all or a portion of the Obligations by a Foreign Subsidiary that may be executed and delivered to the Administrative Agent pursuant to Section 6.09 or otherwise under the Loan Documents, in each case in form and substance reasonably satisfactory to the Administrative Agent.

“ Fox River Indemnity Arrangements ” means the collective reference to the PDC Environmental Indemnity Agreement, the AWA Environmental Indemnity Agreement, the AIG Credit Support, the Fox River Security Agreement, the Bermuda Company Agreements and the NCR Agreements.

“ Fox River Security Agreement ” means the Security Agreement, relating to the AWA Environmental Indemnity Agreement, dated as of November 9, 2001, among the U.S. Borrower, Holdings and AWA.

“ FRB ” means the Board of Governors of the Federal Reserve System of the United States.

“ 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.

 “ GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination.

 

 

“ 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 ” means the collective reference to Holdings, the U.S. Borrower and their respective Subsidiaries.

           “ Guarantee and Collateral Agreement ” has the meaning specified in Section 4.01(a)(iii) .

           “ Guarantee Obligation ” means, as to any Person (the “ guaranteeing person ”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “ primary obligations ”) of any other third Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing 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 (1) for the purchase or payment of any such primary obligation or (2) 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 owner of any such primary obligation against loss in respect thereof; provided , however , that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business.  The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the U.S. Borrower in good faith.

“ Guarantors ” means, collectively, Holdings, the Subsidiaries of Holdings listed on Schedule 6.09 and each other Subsidiary of Holdings that shall be required to execute and deliver a guaranty or guaranty supplement pursuant to Section 6.09 , in each case unless and until released pursuant to the terms of the Loan Documents.

“ Guaranty ” means, collectively, the Guaranty made by the U.S. Borrower under Article X in favor of the Secured Parties and the Guarantee and Collateral Agreement, together with each other guaranty and guaranty supplement delivered pursuant to Section 6.09 .

“ Hazardous Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

 

 

“ Hedge Agreements ” means all interest rate swaps, caps or collar agreements or similar arrangements dealing with interest rates or currency exchange rates or the exchange of nominal interest obligations or commodity agreements or other similar arrangements designed to protect against fluctuations in commodity prices, either generally or under specific contingencies.

“ Hedge Bank ” means any Person that, at the time it enters into a Hedge Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Hedge Agreement.

“ Hedge Termination Value ” means, in respect of any one or more Hedge Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedge Agreements, (a) for any date on or after the date such Hedge Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedge Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedge Agreements (which may include a Lender or any Affiliate of a Lender).

“ Holdings ” has the meaning specified in the introductory paragraph hereto.

“ Impacted Lender ” means any Lender as to which (a) L/C Issuer has a good faith belief that the Lender has defaulted in fulfilling its obligations under one or more other syndicated credit facilities or (b) the Lender or an entity that controls the Lender has been deemed insolvent or become subject to a bankruptcy or other similar proceeding.

“ Indebtedness ” means, of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than current trade payables incurred in the ordinary course of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all obligations created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property, provided that, if recourse in respect of such Indebtedness is so limited, the amount of such Indebtedness shall be deemed to be the lesser of the principal amount thereof and the fair market value of the property encumbered by such Lien as determined in good faith by the Board of Directors of Holdings), (e) all Capital Lease Obligations and all Synthetic Debt of such Person, (f) all obligations of such Person, contingent or otherwise, as an account par