**EXHIBIT2.17**

 

**INDENTURE**

 

**datedas of May 22, 2003**

 

**between**

 

**KAPPABEHEER B.V.**

 

**and**

 

**KAPPAPACKAGING B.V.**

 

**and**

 

**THEBANK OF NEW YORK, LONDON BRANCH**

 

----

 

**€95,000,000105/8% Class A Senior Subordinated Notes due 2009**

 

**(withauthority to issue additional notes)**

 

----

 

 

**Skadden,Arps, Slate, Meagher & Flom (UK) LLP**

**OneCanada Square**

**CanaryWharf**

**London,E14 5DS**

 

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**CROSS-REFERENCETABLE**

 
| **Indenture  Trust Indenture Act Section** |                 | **Section** |
|--------------------------------------------|----------------------|-------------|
| § 310                                 | (a)(1)               |        | 7.09 |
|                                       | (a)(2)               |        | 7.09 |
|                                       | (a)(3)               |        | N.A. |
|                                       | (a)(4)               |        | N.A. |
|                                       | (a)(5)               |        | 7.09 |
|                                       | (b)                  |        | 7.09, 13.02 |
|                                       | (c)                  |        | N.A. |
| § 311                                 | (a)                  |        | 7.10 |
|                                       | (b)                  |        | 7.10 |
|                                       | (c)                  |        | N.A. |
| § 312                                 | (a)                  |        | N.A. |
|                                       | (b)                  |        | 13.03 |
|                                       | (c)                  |        | 13.03 |
| § 313                                 | (a)                  |        | 7.06 |
|                                       | (b)(1)               |        | N.A. |
|                                       | (b)(2)               |        | 7.06 |
|                                       | (c)                  |        | 7.06, 13.02 |
|                                       | (a)                  |        | 4.01 |
|                                       | (d)                  |        | 7.06 |
| § 314                                 | (a)                  |        | 4.04, 4.13,  13.02 |
|                                       | (a)(4)               |        | 4.01 |
|                                       | (b)                  |        | N.A. |
|                                       | (c)(1)               |        | 13.04. |
|                                       | (c)(2)               |        | 13.04. |
|                                       | (c)(3)               |        | N.A. |
|                                       | (d)                  |        | N.A. |
|                                       | (e)                  |        | 13.05. |
|                                       | (f)                  |        | N.A. |
| § 315                                 | (a)                  |        | 7.01(a) and  (b) |
|                                       | (b)                  |        | 7.05, 13.02 |
|                                       | (c)                  |        | 7.01(a) |
|                                       | (d)                  |        | 7.01(c) |
|                                       | (e)                  |        | 6.11. |
| § 316                                 | (a)(last sentence)   |        | N.A. |
|                                       | (a)(1)(A)            |        | 6.05 |
|                                       | (a)(1)(B)            |        | 6.04 |
|                                       | (a)(2)               |        | N.A. |
|                                       | (b)                  |        | 6.07 |
|                                       | (c)                  |        | 10.04 |
| § 317                                 | (a)(1)               |        | 6.08 |
|                                       | (a)(2)               |        | 6.09 |
|                                       | (b)                  |        | 2.18 |
| § 318                                 | (a)                  |        | 13.01 |
| N.A.                                       | means Not Applicable |        |   |

 

NOTE:            This Cross-Reference Table shallnot, for any purpose, be deemed to be a part of this Indenture.

 

 

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**TABLEOF CONTENTS**

 
| ARTICLE I DEFINITIONS AND INCORPORATION BY  REFERENCE |
|-------------------------------------------------------|
| SECTION  1.01                                         | DEFINITIONS |
| SECTION  1.02                                         | INCORPORATION  BY REFERENCE TO TRUST INDENTURE ACT |
| SECTION  1.03                                         | RULES  OF CONSTRUCTION |
|                                                  |   |
| ARTICLE II THE NOTES                                  |
| SECTION  2.01                                         | TITLE  AND TERMS. |
| SECTION  2.02                                         | DENOMINATIONS. |
| SECTION  2.03                                         | EXECUTION,  AUTHENTICATION, DELIVERY AND DATING. |
| SECTION  2.04                                         | FORM  OF NOTES |
| SECTION  2.05                                         | TEMPORARY  NOTES. |
| SECTION  2.06                                         | REGISTER,  REGISTRATION OF TRANSFER AND EXCHANGE. |
| SECTION  2.07                                         | MUTILATED,  DESTROYED, LOST AND STOLEN NOTES. |
| SECTION  2.08                                         | PAYMENT  OF INTEREST; INTEREST RIGHTS PRESERVED. |
| SECTION  2.09                                         | PERSONS  DEEMED OWNERS. |
| SECTION  2.10                                         | CANCELLATION. |
| SECTION  2.11                                         | COMPUTATION  OF INTEREST. |
| SECTION  2.12                                         | “CUSIP”  and/or “ISIN” Numbers. |
| SECTION  2.13                                         | BOOK-ENTRY  PROVISIONS FOR GLOBAL NOTES, CERTIFICATED NOTES. |
| SECTION  2.14                                         | TRANSFER  AND EXCHANGE OF NOTES. |
| SECTION  2.15                                         | SPECIAL  TRANSFER PROVISIONS. |
| SECTION  2.16                                         | ISSUANCE  OF ADDITIONAL NOTES. |
| SECTION  2.17                                         | [INTENTIONALLY  LEFT BLANK] |
| SECTION  2.18                                         | PAYING  AGENT TO HOLD MONEY IN TRUST |
| SECTION  2.19                                         | TRUSTEE’S  REQUIREMENTS REGARDING PAYING AGENTS |
| SECTION  2.20                                         | STATUS |
| SECTION  2.21                                         | PROOF |
| SECTION  2.22                                         | REDENOMINATION  IN GUILDERS |
|                                                  |   |
| ARTICLE III REDEMPTION OF NOTES                       |
| SECTION  3.01                                         | RIGHT  OF REDEMPTION. |
| SECTION  3.02                                         | NOTICES  TO TRUSTEE |
| SECTION  3.03                                         | SELECTION  OF NOTES TO BE REDEEMED |
| SECTION  3.04                                         | NOTICE  OF REDEMPTION |
| SECTION  3.05                                         | EFFECT  OF NOTICE OF REDEMPTION |
| SECTION  3.06                                         | DEPOSIT  OF REDEMPTION PRICE |
|                                                  |   |
| ARTICLE IV COVENANTS                                  |
| SECTION  4.01                                         | GENERAL |
| SECTION  4.02                                         | MAINTENANCE  OF OFFICE OR AGENCY; EXCHANGE LISTING |

 

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| SECTION  4.03                        | PAYMENT  OF NOTES.                                                                |
|--------------------------------------|-----------------------------------------------------------------------------------|
| SECTION  4.04                        | FINANCIAL  REPORTS.                                                               |
| SECTION  4.05                        | LIMITATION  ON INDEBTEDNESS.                                                      |
| SECTION  4.06                        | LIMITATION  ON RESTRICTED PAYMENTS                                                |
| SECTION  4.07                        | LIMITATION  ON RESTRICTIONS ON DISTRIBUTIONS FROM RESTRICTED SUBSIDIARIES.        |
| SECTION  4.08                        | LIMITATION  ON ASSET DISPOSITIONS.                                                |
| SECTION  4.09                        | LIMITATION  ON AFFILIATE TRANSACTIONS.                                            |
| SECTION  4.10                        | CHANGE  OF CONTROL.                                                               |
| SECTION  4.11                        | LIMITATION  ON BUSINESS ACTIVITIES                                                |
| SECTION  4.12                        | LIMITATION  ON LIENS                                                              |
| SECTION  4.13                        | CORPORATE  EXISTENCE                                                              |
| SECTION  4.14                        | PAYMENT  OF TAXES AND OTHER CLAIMS.                                               |
| SECTION  4.15                        | MAINTENANCE  OF PROPERTIES AND INSURANCE                                          |
| SECTION  4.16                        | COMPLIANCE  WITH LAWS.                                                            |
| SECTION  4.17                        | FURTHER  INSTRUMENTS AND ACTS.                                                    |
| SECTION  4.18                        | LIMITATION  OF ISSUANCES OF CERTAIN GUARANTEES                                    |
| SECTION  4.19                        | ADDITIONAL  AMOUNTS                                                               |
|                                 |                                                                              |
| ARTICLE V                            |                                                                              |
| SECTION  5.01                        | MERGERS;  SUCCESSOR CORPORATION                                                   |
|                                 |                                                                              |
| ARTICLE VI DEFAULT AND REMEDIES      |
| SECTION  6.01                        | EVENTS  OF DEFAULT                                                                |
| SECTION  6.02                        | ACCELERATION                                                                      |
| SECTION  6.03                        | OTHER  REMEDIES                                                                   |
| SECTION  6.04                        | WAIVER  OF PAST DEFAULT                                                           |
| SECTION  6.05                        | CONTROL  BY MAJORITY                                                              |
| SECTION  6.06                        | LIMITATION  ON SUITS                                                              |
| SECTION  6.07                        | RIGHTS  OF HOLDERS TO RECEIVE PAYMENT                                             |
| SECTION  6.08                        | COLLECTION  SUIT BY TRUSTEE                                                       |
| SECTION  6.09                        | TRUSTEE  MAY FILE PROOFS OF CLAIM                                                 |
| SECTION  6.10                        | PRIORITIES                                                                        |
| SECTION  6.11                        | PRESCRIPTION                                                                      |
|                                 |                                                                              |
| ARTICLE VII TRUSTEE                  |
| SECTION  7.01                        | DUTIES  OF TRUSTEE                                                                |
| SECTION  7.02                        | RIGHTS  OF TRUSTEE                                                                |
| SECTION  7.03                        | INDIVIDUAL  RIGHTS OF TRUSTEE                                                     |
| SECTION  7.04                        | TRUSTEE’S  DISCLAIMER                                                        |
| SECTION  7.05                        | NOTICE  OF DEFAULTS/ACCELERATION                                                  |
| SECTION  7.06                        | REPORTS  BY TRUSTEE TO HOLDERS                                                    |
| SECTION  7.07                        | COMPENSATION  AND INDEMNITY                                                       |
| SECTION 7.08                         | REPLACEMENT OF TRUSTEE                                                            |
| SECTION 7.09                         | ELIGIBILITY; DISQUALIFICATION                                                     |
| SECTION 7.10                         | PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE  ISSUER OR THE SUBSIDIARY GUARANTOR |
|                                 |                                                                              |
| ARTICLE  VIII SUBORDINATION OF NOTES |
| SECTION 8.01                         | AGREEMENT TO SUBORDINATE                                                          |
| SECTION  8.02                        | LIQUIDATION,  DISSOLUTION, BANKRUPTCY                                             |

 

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| SECTION 8.03                                                   | DEFAULT ON DESIGNATED SENIOR INDEBTEDNESS.                                    |
|----------------------------------------------------------------|-------------------------------------------------------------------------------|
| SECTION 8.04                                                   | ACCELERATION OF PAYMENT OF NOTES.                                             |
| SECTION 8.05                                                   | SUBROGATION.                                                                  |
| SECTION 8.06                                                   | RELATIVE RIGHTS.                                                              |
| SECTION 8.07                                                   | SUBORDINATION MAY NOT BE IMPAIRED BY  ISSUER.                                 |
| SECTION 8.08                                                   | RIGHTS OF TRUSTEE AND PAYING AGENT.                                           |
| SECTION 8.09                                                   | DISTRIBUTION OR NOTICE TO REPRESENTATIVE.                                     |
| SECTION 8.10                                                   | ARTICLE EIGHT NOT TO PREVENT EVENTS OF  DEFAULT OR LIMIT RIGHT TO ACCELERATE. |
| SECTION 8.11                                                   | TRUST MONEYS NOT SUBORDINATED.                                                |
| SECTION 8.12                                                   | TRUSTEE ENTITLED TO RELY.                                                     |
| SECTION 8.13                                                   | TRUSTEE TO EFFECTUATE SUBORDINATION.                                          |
| SECTION 8.14                                                   | TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR  INDEBTEDNESS.                    |
| SECTION 8.15                                                   | RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS  ON SUBORDINATION PROVISIONS.      |
|                                                           |                                                                          |
| ARTICLE IX DISCHARGE OF INDENTURE;  DEFEASANCE                 |
| SECTION 9.01                                                   | TERMINATION OF ISSUER’S OBLIGATIONS                                      |
| SECTION 9.02                                                   | APPLICATION OF TRUST MONEY                                                    |
| SECTION 9.03                                                   | REPAYMENT TO THE ISSUER                                                       |
| SECTION 9.04                                                   | REINSTATEMENT                                                                 |
| SECTION 9.05                                                   | ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE                                        |
|                                                           |                                                                          |
| ARTICLE X AMENDMENTS, SUPPLEMENTS AND WAIVERS                  |
| SECTION 10.01                                                  | WITHOUT CONSENT OF HOLDERS                                                    |
| SECTION 10.02                                                  | WITH CONSENT OF HOLDERS                                                       |
| SECTION 10.03                                                  | COMPLIANCE WITH TRUST INDENTURE ACT                                           |
| SECTION 10.04                                                  | REVOCATION AND EFFECT OF CONSENTS                                             |
| SECTION 10.05                                                  | TRUSTEE TO SIGN AMENDMENTS, ETC.                                              |
|                                                           |                                                                          |
| ARTICLE XI GUARANTEE                                           |
| SECTION 11.01                                                  | GUARANTEE.                                                                    |
| SECTION 11.02                                                  | ENFORCEMENT OF SUBSIDIARY GUARANTEE                                           |
| SECTION 11.03                                                  | SUBORDINATION OF SUBSIDIARY GUARANTEE.                                        |
| SECTION 11.04                                                  | SEVERABILITY.                                                                 |
| SECTION 11.05                                                  | RELEASE OF SUBSIDIARY GUARANTOR FROM THE  SUBSIDIARY GUARANTEE                |
| SECTION 11.06                                                  | WAIVER OF SUBROGATION.                                                        |
| SECTION 11.07                                                  | EXECUTION OF SUBSIDIARY GUARANTEE.                                            |
| SECTION 11.08                                                  | WAIVER OF STAY OR EXECUTION LAWS.                                             |
| SECTION  11.09                                                 | EFFECTIVENESS  OF SUBSIDIARY GUARANTEE.                                       |
|                                                           |                                                                          |
| ARTICLE  XII SUBORDINATION OF SUBSIDIARY GUARANTEE OBLIGATIONS |
| SECTION  12.01                                                 | AGREEMENT  TO SUBORDINATE                                                     |
| SECTION  12.02                                                 | LIQUIDATION,  DISSOLUTION, BANKRUPTCY                                         |
| SECTION  12.03                                                 | DEFAULT  ON DESIGNATED SENIOR INDEBTEDNESS                                    |
| SECTION  12.04                                                 | PAYMENT  OF SUBSIDIARY GUARANTEE                                              |
| SECTION  12.05                                                 | SUBROGATION                                                                   |
| SECTION  12.06                                                 | RELATIVE  RIGHTS                                                              |

 

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| SECTION  12.07                                                                                                                                                                    | SUBORDINATION  MAY NOT BE IMPAIRED BY SUBSIDIARY GUARANTOR                 |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|----------------------------------------------------------------------------|
| SECTION  12.08                                                                                                                                                                    | RIGHTS  OF TRUSTEE AND PAYING AGENT                                        |
| SECTION  12.09                                                                                                                                                                    | ARTICLE  XII NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT RIGHT TO ACCELERATE |
| SECTION  12.10                                                                                                                                                                    | TRUST  MONEYS NOT SUBORDINATED                                             |
| SECTION  12.11                                                                                                                                                                    | TRUSTEE  ENTITLED TO RELY                                                  |
| SECTION  12.12                                                                                                                                                                    | RELIANCE  BY HOLDERS OF SENIOR INDEBTEDNESS ON SUBORDINATION PROVISIONS    |
|                                                                                                                                                                              |                                                                       |
| ARTICLE  XIII MISCELLANEOUS                                                                                                                                                       |
| SECTION  13.01                                                                                                                                                                    | TRUST  INDENTURE ACT CONTROLS                                              |
| SECTION  13.02                                                                                                                                                                    | NOTICES                                                                    |
| SECTION  13.03                                                                                                                                                                    | COMMUNICATIONS  BY HOLDER WITH OTHER HOLDERS                               |
| SECTION  13.04                                                                                                                                                                    | CERTIFICATE  AND OPINION AS TO CONDITIONS PRECEDENT                        |
| SECTION  13.05                                                                                                                                                                    | STATEMENTS  REQUIRED IN CERTIFICATE OR OPINION                             |
| SECTION  13.06                                                                                                                                                                    | RULES  FOR MEETINGS OF HOLDERS; RULES BY PAYING AGENT AND REGISTRAR        |
| SECTION  13.07                                                                                                                                                                    | GOVERNING  LAW                                                             |
| SECTION  13.08                                                                                                                                                                    | JURISDICTION,  PROCEEDINGS, SERVICE OF PROCESS                             |
| SECTION  13.09                                                                                                                                                                    | SUCCESSORS                                                                 |
| SECTION  13.10                                                                                                                                                                    | COUNTERPART  ORIGINALS                                                     |
| SECTION  13.11                                                                                                                                                                    | SEVERABILITY                                                               |
| SECTION  13.12                                                                                                                                                                    | NO  ADVERSE INTERPRETATION OF OTHER AGREEMENTS                             |
| SECTION  13.13                                                                                                                                                                    | LEGAL  HOLIDAYS                                                            |
| SECTION  13.14                                                                                                                                                                    | JUDGMENT  CURRENCY                                                         |
| SECTION  13.15                                                                                                                                                                    | THIRD  PARTY RIGHTS                                                        |
|                                                                                                                                                                              |                                                                       |
| EXHIBIT  A Form of Face of Note                                                                                                                                                   |
|                                                                                                                                                                              |
| EXHIBIT  B FORM OF TRANSFER CERTIFICATE —  RESTRICTED GLOBAL SECURITY TO REGULATION S GLOBAL SECURITY  (Transfers pursuant to Sections 2.14(b)(ii) of the Indenture)         |
|                                                                                                                                                                              |
|                                                                                                                                                                              |
| EXHIBIT  C FORM OF TRANSFER CERTIFICATE —  RESTRICTED GLOBAL SECURITY TO UNRESTRICTED GLOBAL SECURITY  (Transfers Pursuant to Sections 2.14(b)(iii) of the Indenture)        |
|                                                                                                                                                                              |
| EXHIBIT  D FORM OF TRANSFER CERTIFICATE —  REGULATION S GLOBAL SECURITY TO RESTRICTED GLOBAL SECURITY  (Transfers to QIBs Pursuant to Sections 2.14(b)(iv) of the Indenture) |
|                                                                                                                                                                              |
| EXHIBIT  E FORM OF CERTIFICATE TO BE DELIVERED  IN CONNECTION WITH TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS  (Transfers Pursuant to Section 2.15 of the Indenture)         |
|                                                                                                                                                                              |
| SCHEDULE  1  PROVISIONS FOR  MEETINGS OF HOLDERS                                                                                                                             |

 

iv

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INDENTURE dated as of May 22,2003, between Kappa Beheer B.V., a private company with limited liabilityorganised under the laws of The Netherlands (the “**Issuer**” (as more fully defined below)), Kappa Packaging B.V.(the “**Subsidiary Guarantor**”), aprivate company with limited liability organised under the laws of TheNetherlands and The Bank of New York, a company organised under the laws of theState of New York, acting through its London branch (the “**Trustee**” (as more fully defined below)).

 

**RECITALS OF THEISSUER AND SUBSIDIARY GUARANTOR**

 

The Issuer has duly authorised the creation of an issue of €95,000,000Class A 105/8% Senior Subordinated Notes due 2009 (the “**Notes**” (as more fully defined below)) andthe Subsidiary Guarantor has duly authorised the guarantee of the Notes; and,to provide therefor, each of the Issuer and the Subsidiary Guarantor has dulyauthorised the execution and delivery of this Indenture.

 

All things necessary to make theNotes, when duly issued and executed by the Issuer and authenticated anddelivered hereunder, and the Subsidiary Guarantee of the Subsidiary Guarantor,the valid obligations of the Issuer and the Subsidiary Guarantor respectivelyand to make this Indenture a valid and binding agreement of the Issuer and theSubsidiary Guarantor, have been done.

 

Each party hereto agrees as followsfor the benefit of each other party and for the equal and rateable benefit ofthe Holders of the Notes:

 

NOW, THEREFORE, THIS INDENTUREWITNESSETH: For and in consideration of the premises and the purchase of theNotes by the Holders thereof, it is mutually covenanted and agreed, for theequal and proportionate benefit of all Holders of the Notes, as follows:

 

1

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**ARTICLEI**

 

**DEFINITIONS AND INCORPORATION BY REFERENCE**

 
| **SECTION 1.01** |   | **DEFINITIONS** |
|------------------|--------|-----------------|

** **

“**1999 Indentures**” means collectively, the indenture governingthe Issuer’s €370,000,000 105/8% Senior SubordinatedNotes due 2009, dated as of July 23, 1999 between the Issuer, the SubsidiaryGuarantor, Kappa Holding B.V. (“Kappa Holding”) and The Bank of New York, astrustee, as amended; the indenture governing the Issuer’s €145,000,000 121/2%Senior Subordinated Discount Notes due 2009, dated as of July 23, 1999 betweenthe Issuer, the Subsidiary Guarantor, Kappa Holding and The Bank of New York,as trustee, as amended; and the indenture governing the Issuer’s $100,000,000105/8% Senior Subordinated Notes due 2009 , dated as ofJuly 23, 1999 between the Issuer, the Subsidiary Guarantor, Kappa Holding andThe Bank of New York, as trustee.

 

“**1999 Trustees**” means, collectively, the trustees under the1999 Indentures.

 

“**Acquired Indebtedness**” means, with respect to any specifiedPerson:

 

(a) Indebtedness of any otherPerson existing at the time such other Person is merged with or into or becamea Restricted Subsidiary of such specified Person, whether or not suchIndebtedness is incurred in connection with, or in contemplation of, such otherPerson merging with or into, or becoming a subsidiary of, such specifiedperson; and

 

(b) Indebtedness secured by aLien encumbering any asset acquired by such specified Person.

 

“**Acquisition**” means the acquisition by the Issuer’sSubsidiaries of those companies carrying on the paper and board connectingbusinesses of NV Koninklijke KNP BT, completed on and with effect from May 31, 1998.

 

“**Additional Amounts**” has the meaning specified in Section 4.19.

 

“**Additional Assets**” means any:

 

(a)                                  propertyor assets (other than Indebtedness and Capital Stock) to be used by the Issueror a Restricted Subsidiary for purposes related to Permitted Businesses;

 

(b)                                 CapitalStock of a Person that becomes a Restricted Subsidiary as a result of theacquisition of such Capital Stock by the Issuer or another RestrictedSubsidiary; or

 

(c)                                  CapitalStock constituting a minority interest in any Person that at such time is aRestricted Subsidiary,

 

2

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provided, that any suchRestricted Subsidiary described in clauses (b) and (c) is primarily engaged inPermitted Businesses.

 

“**Additional Notes**” means additional Notes of the Issuer issuedafter the Existing Notes Issue Date (up to an aggregate principal amount nogreater than 50% of the then aggregate principal amount outstanding of theNotes) pursuant to Section 2.16 of this Indenture.

 

“**Affiliate**” of any specified Person means any other Person,directly or indirectly, controlling or controlled by or under direct orindirect common control with such specified Person.  For the purposes of this definition, “control” when used withrespect to any Person means the power to direct the management and policies ofsuch Person, directly or indirectly, whether through the ownership of votingsecurities, by contract or otherwise, and the terms “controlling” and“controlled” have meanings correlative to the foregoing.

 

“**Agency Agreement**” means the agreement appointing the initialPaying Agents (including the Principal Paying Agent (as defined therein)) andthe Registrar in relation to the Notes for the purposes specified therein andany other agreement for the time being in force appointing successor payingagents and/ or registrar in relation to the Notes, or in connection with theirduties, the terms of which have previously been approved in writing by theTrustee, together with any agreement for the time being in force amending ormodifying with the prior written approval of the Trustee any of the aforesaidagreements in relation to the Notes.

 

“**Agent**” means any Registrar or Paying Agent.

 

“**Agent Member**” means any member of, or participant in, suchCommon Depositary.

 

“**Appointee**” means any attorney, manager, agent, delegate orother person appointed by the Trustee under this Indenture.

 

“**Asset Disposition**” means any direct or indirect sale, lease,transfer, conveyance or other disposition (or series of related sales, leases,transfers, conveyances or dispositions) of shares of Capital Stock of aRestricted Subsidiary (other than directors’ qualifying shares), property orother assets (each referred to for the purposes of this definition as a“disposition”) by the Issuer or any Restricted Subsidiary (including anydisposition by means of a merger, consolidation or similar transaction)involving an amount in excess of NLG 20 million other than:

 

(a)           a disposition by a Restricted Subsidiary to the Issuer, orby the Issuer or a Restricted Subsidiary to a Restricted Subsidiary;

 

(b) a disposition of propertyor assets at fair market value in the ordinary course of business andconsistent with past practices of the Issuer or any of its RestrictedSubsidiaries, as applicable (including, without limitation, sales of productsto customers, disposition of excess inventory and dispositions of used,worn-out, obsolete, damaged or replaced equipment);

 

3

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(c) for purposes of thecovenant in Section 4.08 only, a disposition that constitutes a RestrictedPayment permitted by Section 4.06;

 

(d) for purposes of thecovenant in Section 4.08 only, a disposition of shares of Capital Stock,property or other assets by the Issuer or any Restricted Subsidiary to anyPerson as an Investment in such Person; provided, that (i) the Issuer or suchRestricted Subsidiary receives consideration at the time of such disposition atleast equal to the fair market value of such shares, property or other assets,(ii) such Investment is a Permitted Investment described under paragraph (h) ofthe definition of Permitted Investment and (iii) the amount of anyconsideration in the form of cash or Temporary Cash Investments shall betreated as Net Available Cash for purposes of such covenant,

 

(e) the disposition of all orsubstantially all of the assets of the Issuer in a manner permitted underSection 5.01 or any disposition that constitutes a Change of Control;

 

(f) the making of anyRestricted Payment or Permitted Investment that is permitted to be made, and ismade, pursuant to Section 4.06;

 

(g) any sale of Capital Stockin, or Indebtedness or other securities of, an Unrestricted Subsidiary; and

 

(h) sales of accountsreceivable and related assets of the type specified in the definition ofQualified Receivables Transaction to a Receivables Subsidiary or any otherperson for the fair market value thereof including cash or Temporary CashInvestments in an amount at least equal to 75% of the fair market value thereofas determined in accordance with GAAP,

 

provided, that for purposes ofthe definition of Consolidated Coverage Ratio, Asset Disposition shall includeall such asset dispositions regardless of amount.

 

“**Asset Swap**” means, concurrent purchase and sale or exchange ofRelated Business Assets or a combination of Related Business Assets and cash orTemporary Cash Investments between the Issuer or any of its RestrictedSubsidiaries and another Person; provided, that any cash received must beapplied in accordance with Section 4.08.

 

“**Auditors**” means the auditors for the time being of the Issueror the Subsidiary Guarantor, as the case may be, or, in the event of theirbeing unable or unwilling promptly to carry out any action requested of thempursuant to the provisions of this Indenture, such other firm of accountants asmay be nominated by the Issuer or the Subsidiary Guarantor, as the case may beand approved in writing by the Trustee (or, failing any such nomination by theIssuer or the Subsidiary Guarantor, as the case may be, within a reasonableperiod or approval, nominated by the Trustee) for the purposes of thisIndenture.

 

“**Average Life**”  means,as of the date of determination, with respect to any Indebtedness, the quotientobtained by dividing (x) the sum of the products of the numbers of years fromthe date of determination to the date of each successive scheduled principalpayment of such Indebtedness or scheduled redemption, multiplied by the amountof such payment, by (y) the sum of all such payments.

 

4

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“**Bank Indebtedness**” means any and all Indebtedness and otheramounts payable under or in respect of the Senior Credit Agreement includingprincipal, premium (if any), interest (including interest accruing at the contractrate specified in the Senior Credit Agreement (including any rate applicableupon default)) and amounts due under the security documents related thereto, onor after the filing of any petition in bankruptcy, or the commencement of anysimilar state, federal or foreign reorganisation or liquidation proceeding,relating to the Issuer and interest (that would accrue but for the commencementof such proceeding whether or not a claim for post-filing interest is allowedin such proceedings)) fees, charges, expenses, reimbursement obligations,guarantees and all other amounts payable thereunder or in respect thereof.

 

“**Bankruptcy Law**” means (to the extent applicable) (i) Title 11of the U.S. Bankruptcy Code, (ii) the Insolvency Act 1986 (together with the rulesand regulations made pursuant thereto) or (iii) any other law of the UnitedStates or the United Kingdom or any political subdivision thereof or any otherapplicable jurisdiction relating to bankruptcy, insolvency, winding up,liquidation, reorganisation or relief of debtors.

 

“**Beheer Shareholder Loan**” means the 9.21% junior subordinatedloans made by the Parent to the Issuer on July 27, 1998, in an aggregateprincipal amount of NLG 440 million.

 

“**Board of Directors**” means the supervisory board of the Parentor any committee thereof duly authorised to act on behalf of such board.

 

“**Board Resolution**” means a duly adopted resolution of the Boardof Directors in full force and effect at the time of determination andcertified as such by the Secretary or an Assistant Secretary of the Parent.

 

“**Bund Rate**” means the rate per annum equal to the equivalentyield to maturity as of the redemption date of the Comparable German BundIssue, assuming a price for the Comparable German Bund Issue (expressed as apercentage of its principal amount) equal to the Comparable German Bund Pricefor such redemption date, where:

 

(a)                                  “ComparableGerman Bund Issue” means the German Bundesanleihe security selected by anyReference German Bund Dealer as having a fixed maturity most nearly equal tothe period from such redemption date to July 15, 2004, and that would beutilized, at the time of selection and in accordance with customary financialpractice, in pricing new issues of euro denominated corporate debt securitiesin a principal amount approximately equal to the then outstanding principalamount of the Notes and of a maturity most nearly equal to July 15, 2004;provided, however, that if the period from such redemption date to July 15,2004 is less than one year, a fixed maturity of one year shall be used;

 

(b)                                 “ComparableGerman Bund Price” means, with respect to any Redemption Date, the average ofthe Reference German Bund Dealer Quotations for such Redemption Date, afterexcluding the highest and lowest such Reference German Bund Dealer Quotations,or, if the Trustee obtains fewer than four such Reference German Bund DealerQuotations, the average of all such quotations;

 

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(c)                                  “ReferenceGerman Bund Dealer” means any dealer of German Bundesanleihe securitiesappointed by the Trustee in consultation with the Issuer; and

 

(d)                                 “ReferenceGerman Bund Dealer Quotations” means, with respect to each Reference GermanBund Dealer and any Redemption Date, the average as determined by the Trusteeof the bid and offered prices for the Comparable German Bund Issue (expressedin each case as a percentage of its principal amount) quoted in writing to theTrustee by such Reference German Bund Dealer at 3.30 p.m. Frankfurt, Germanytime on the third business day preceding such Redemption Date.

 

“**Business Day**” means any day on which commercial bankinginstitutions are open for business in New York City, London, and TheNetherlands.

 

“**Capitalised Lease Obligation**” means an obligation that isrequired to be classified and accounted for as a capitalised lease forfinancial reporting purposes in accordance with GAAP.  The amount of Indebtedness represented by such obligation shallbe the capitalised amount of such obligation determined in accordance withGAAP.  The Stated Maturity thereof shallbe the date of the last payment of rent or any other amount due under suchlease prior to the first date upon which such lease may be terminated by thelessee without payment of a penalty.

 

“**Capital Stock**” of any Person means any and all shares,interests, rights to purchase, warrants, options, participations or otherequivalents of or interests (including partnership interests) in, (howeverdesignated), equity of such Person, including any Preferred Stock, but excludingany debt securities convertible into or exchangeable for such equity.

 

“**Certificated Note**” means any certificated Note in registereddefinitive form.

 

“**Clearstream**” means Clearstream Banking, société anonyme.

 

“**Code**” means the U.S. Internal Revenue Code of 1986, asamended, and U.S. Treasury regulations promulgated thereunder.

 

“**Common Depositary**” means The Bank of New York, as commondepositary for Euroclear and/or Clearstream, together with its successors insuch capacity.

 

“**Consolidated Coverage Ratio**” as of any date of determination(the “**Transaction Date**”) means theratio of (x) the aggregate amount of EBITDA for the most recent fourconsecutive fiscal quarters for which financial statements are internallyavailable to (y) Consolidated Interest Expense for such four fiscal quarters;provided, that:

 

(a)           if the Issuer or any Restricted Subsidiary has incurredany Indebtedness since the beginning of such period that remains outstanding onsuch Transaction Date or if the transaction giving rise to the need tocalculate the Consolidated Coverage Ratio is an incurrence of Indebtedness, orboth, EBITDA and Consolidated Interest Expense for such period shall becalculated after giving effect on a pro forma basis to (i) such Indebtedness asif such Indebtedness had been incurred on the first day of such period and (ii)the discharge of any other Indebtedness repaid, repurchased, defeased or

 

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otherwise discharged with theproceeds of such new Indebtedness as if such discharge had occurred on thefirst day of such period;

 

(b) if the Issuer or anyRestricted Subsidiary has repaid, repurchased, defeased or otherwise dischargedany Indebtedness since the beginning of such period or if any Indebtedness isto be repaid, repurchased, defeased or otherwise discharged (in each case otherthan Indebtedness incurred under any revolving credit facility unless suchIndebtedness has been permanently repaid and has not been replaced) on theTransaction Date, EBITDA and Consolidated Interest Expense for such periodshall be calculated on a pro forma basis as if such discharge had occurred onthe first day of such period and as if the Issuer or such Restricted Subsidiaryhad not earned the interest income actually earned during such period inrespect of cash or Temporary Cash Investments used to repay, repurchase,defease or otherwise discharge such Indebtedness;

 

(c) if since the beginning ofsuch period the Issuer or any Restricted Subsidiary shall have made any AssetDisposition, the EBITDA for such period shall be reduced by an amount equal tothe EBITDA (if positive) directly attributable to the assets which are thesubject of such Asset Disposition for such period or increased by an amountequal to the EBITDA (if negative) directly attributable thereto for such periodand Consolidated Interest Expense for such period shall be reduced by an amountequal to the Consolidated Interest Expense directly attributable to anyIndebtedness of the Issuer or any Restricted Subsidiary repaid, repurchased,defeased or otherwise discharged with respect to the Issuer and its continuingRestricted Subsidiaries in connection with such Asset Disposition for suchperiod (or, if the Capital Stock of any Restricted Subsidiary is sold, the ConsolidatedInterest Expense for such period directly attributable to the Indebtedness ofsuch Restricted Subsidiary to the extent the Issuer and its continuingRestricted Subsidiaries are no longer liable for such Indebtedness after suchsale);

 

(d) if since the beginning ofsuch period the Issuer or any Restricted Subsidiary (by merger or otherwise)shall have made an Investment in any Restricted Subsidiary (or any Person whichbecomes a Restricted Subsidiary) or an acquisition of assets, including any acquisitionof assets occurring in connection with a transaction causing a calculation tobe made hereunder, EBITDA and Consolidated Interest Expense for such periodshall be calculated after giving pro forma effect thereto (including theincurrence of any Indebtedness and including the changes resulting therefrom,including as a result of cost reductions which are considered in the reasonedjudgment of the Chief Financial Officer of the Issuer as probable to berealised) as if such Investment or acquisition occurred on the first day ofsuch period; and

 

(e) if since the beginning ofsuch period any Person (that subsequently became a Restricted Subsidiary or wasmerged with or into the Issuer or any Restricted Subsidiary since the beginningof such period) shall have made any Asset Disposition or any Investmentrequiring an adjustment pursuant to clause (c) or (d) above if made by theIssuer or a Restricted Subsidiary during such period, EBITDA and ConsolidatedInterest Expense for such period shall be calculated after giving pro formaeffect thereto as if such Asset Disposition, Investment or acquisition ofassets occurred on the first day of such period.

 

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For purposes of this definition,whenever pro forma effect is to be given to an Investment or an acquisition ofassets, the amount of income or earnings relating thereto and the amount ofConsolidated Interest Expense associated with any Indebtedness incurred inconnection therewith, the pro forma calculations shall be determined in goodfaith by a responsible financial or accounting officer of the Issuer.  If any Indebtedness bears a floating rate ofinterest and is being given pro forma effect, the interest expense on suchIndebtedness shall be calculated as if the rate in effect on the date ofdetermination had been the applicable rate for the entire period (taking intoaccount any Interest Rate Protection Agreement applicable to such Indebtednessif such Interest Rate Protection Agreement has a remaining term as at theTransaction Date in excess of 12 months). For purposes of this definition, whenever pro forma effect is to begiven to any Indebtedness Incurred pursuant to a revolving credit facility theamount outstanding under such Indebtedness shall be equal to the average of theamount outstanding during the period commencing on the first day of the firstof the four most recent fiscal quarters for which financial statements areinternally available and ending on the date of determination.

 

“**Consolidated Interest Expense**” means, for any period, the sumof:

 

(a)           total interest expenseof the Issuer and its consolidated Restricted Subsidiaries, including, to theextent not otherwise included in such interest expense (without duplication),and to the extent incurred by the Issuer or its Restricted Subsidiaries:

 

(i)                                     interestexpense attributable to Capitalised Lease Obligations;

 

(ii)                                  amortisationof debt discount but not debt issuance cost;

 

(iii)                               capitalisedinterest;

 

(iv)                              non-cashinterest expense;

 

(v)                                 accruedinterest;

 

(vi)                              amortisationof commissions, discounts and other fees and charges owed with respect toletters of credit and bankers’ acceptance financing;

 

(vii)                           interestactually paid by the Issuer or any such Restricted Subsidiary under anyGuarantee of Indebtedness or other obligation of any other Person;

 

(viii)                        net costsassociated with Hedging Obligations (excluding amortisation of fees paid at thetime of entering into such Hedging Obligation); and

 

(ix)                                amortisationof the interest portion of any deferred obligation; provided, that anyaccretion of environmental, post-retirement health insurance or other reservesnot in respect of Indebtedness shall not be included in Consolidated InterestExpense;

 

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(b) Preferred Stock dividendspaid during such period in respect of all Preferred Stock of RestrictedSubsidiaries of the Issuer held by Persons other than the Issuer or a WhollyOwned Subsidiary; and

 

(c) cash contributions to anyemployee stock ownership plan or other trust for the benefit of employees tothe extent such contributions are used by such plan or trust to pay interest orfees to any Person (other than the Issuer) in connection with Indebtednessincurred by such plan or trust to purchase Capital Stock of the Issuer;

 

provided, however, that, exceptfor purposes of the definition of EBITDA (i) the accrual of interest, the payment of interest on any Indebtednessin the form of Indebtedness with the same terms, and the payment of dividends onDisqualified Stock in the form of additional shares of the same series and withthe same terms as such Disqualified Stock, in each case solely in respect ofthe Beheer Shareholder Loan or any Parent Subordinated Indebtedness shall notbe included in Consolidated Interest Expense, (ii) debt issuance costs or theamortisation thereof shall not constitute Consolidated Interest Expense and(iii) the amortisation of fees paid at the time of entering into HedgingObligations shall not be included in Consolidated Interest Expense.

 

“**Consolidated Net Income**” means, for any period, the net income(loss) of the Issuer, and its consolidated Subsidiaries, provided, however,that there shall not be included in determining such Consolidated Net Income:

 

(a)           any net income (orloss) of any Person if such Person is not a Restricted Subsidiary, except that:

 

(i)                                     theIssuer’s equity in the net income of any such Person for such period shall beincluded in such Consolidated Net Income up to the aggregate amount of cashthat could have been distributed by such Person during such period to theIssuer or a Restricted Subsidiary as a dividend or other distribution (subject,in the case of a dividend or other distribution to a Restricted Subsidiary, tothe limitations contained in clause (c) below); and

 

(ii)                                  theIssuer’s equity in a net loss of any such Person for such period shall beincluded in determining such Consolidated Net Income;

 

(b) any net income (or loss) ofany Person acquired by the Issuer or a Subsidiary in a pooling of intereststransaction for any period prior to the date of such acquisition;

 

(c) for purposes of Section4.06 only, any net income (or loss) of any Restricted Subsidiary if suchRestricted Subsidiary is subject to consensual restrictions, directly or indirectly,on the payment of dividends or the making of distributions by such RestrictedSubsidiary, directly or indirectly, to the Issuer, except that:

 

(i)                                     theIssuer’s equity in the net income of any such Restricted Subsidiary for suchperiod shall be included in such Consolidated Net Income up to the aggregateamount of cash that could have been distributed by such Restricted Subsidiary(including, but not limited to, amounts that could have been distributed as aresult of an existing

 

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waiver of thePayment Restrictions) during such period to the Issuer or another Subsidiary asa dividend or other distribution (subject, in the case of a dividend to anotherSubsidiary, to the limitation contained in this clause); and

 

(ii)                                  equityin a net loss of any such Restricted Subsidiary for such period shall beincluded in determining such Consolidated Net Income;

 

(d) any gain or loss realisedupon the sale or other disposition of any assets of the Issuer, its consolidatedSubsidiaries or any other Person which is not sold or otherwise disposed of inthe ordinary course of business and any gain or loss realised upon the sale orother disposition of any Capital Stock of any Person;

 

(e) any extraordinary gain orloss and exceptional items;

 

(f) the non-recurringcumulative effect of a change in accounting principles;

 

(g) to the extent reflected innet income, the fees, expenses, and other costs incurred in the offering of theExisting Notes; and

 

(h) to the extent reflected innet income, the effect of any non-cash items resulting from any write-up,write-down or write-off of assets of the Issuer and its Restricted Subsidiariesin connection with the Acquisition or any future acquisition.

 

Notwithstanding the foregoing,for the purposes of Section 4.06 only, there shall be excluded fromConsolidated Net Income any dividends, repayments of loans or advances or othertransfers of assets from Unrestricted Subsidiaries to the Issuer or aRestricted Subsidiary to the extent such dividends, repayments or transfersincrease the amount of Restricted Payments permitted pursuant to Section4.06(b)(iii)(D).

 

“**Consolidated Tangible Assets**” means, as of any date ofdetermination, the total assets, less goodwill and other intangibles (otherthan patents, trademarks, copyrights, licenses and other intellectual property)shown on the balance sheet of the Issuer and its Restricted Subsidiaries forthe most recently ended fiscal quarter for which financial statements areavailable, determined on a consolidated basis in accordance with GAAP.

 

“**Consolidated Total Assets**” means the total consolidated assetsof the Issuer and its Restricted Subsidiaries, as set forth on the Issuer’smost recent consolidated balance sheet.

 

“**Currency Exchange Protection Agreement**” means, in respect ofany Person, any foreign exchange contract, currency swap agreement, currencyoption or other similar agreement or arrangement designed to protect suchPerson against fluctuations in currency exchange rates.

 

“**Custodian**” means any receiver, administrative receiver,liquidator, administrator, trustee, manager or similar official.

 

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“**Default**” means any event which is, or after notice or passageof time or both would be, an Event of Default.

 

“**Designated Government Obligations**” means direct obligations(or certificates representing an ownership interest in such obligations) of theUnited States of America (including any agency or instrumentality thereof) orof a country of Western Europe, as the case may be, for the payment of whichthe full faith and credit of the United States of America or of a country ofWestern Europe, as the case may be, is pledged and which are not callable atthe issuer’s option.

 

“**Designated Non-Cash Contribution**” means any non-cashcontribution with respect to the Capital Stock of the Issuer.

 

“**Designated Senior Indebtedness**” means:

 

(a)                                  theBank Indebtedness; and

 

(b)                                 anyother Senior Indebtedness which, at the date of determination, has an aggregateprincipal amount outstanding of, or under which, at the date of determination,the holders thereof are committed to lend up to, at least NLG 50 million and isspecifically designated by the Issuer in the instrument evidencing or governingsuch Senior Indebtedness as “Designated Senior Indebtedness” for purposes ofthe 1999 Indentures or this Indenture.

 

“**Disqualified Stock**” of a Person, with respect to any Person,means any Capital Stock which by its terms (or by the terms of any securityinto which it is convertible or for which it is exchangeable at the option ofthe holder) or upon the happening of any event:

 

(a)                                  maturesor is mandatorily redeemable pursuant to a sinking fund obligation or otherwiseprior to the Stated Maturity of the Notes;

 

(b)                                 isconvertible or exchangeable at the option of the holder for Indebtedness orDisqualified Stock; or

 

(c)                                  ismandatorily redeemable or must be purchased, upon the occurrence of certainevents or otherwise, in whole or in part, in each case on or prior to the firstanniversary of the Stated Maturity of the Notes,

 

and any Preferred Stock of aRestricted Subsidiary of such Person, provided, however, that any Capital Stockthat would not constitute Disqualified Stock but for provisions thereof givingholders thereof the right to require such Person to purchase or redeem suchCapital Stock upon the occurrence of an “asset sale” or “change of control”occurring prior to the first anniversary of the Stated Maturity of the Notesshall not constitute Disqualified Stock if:

 

(a)                                  the“asset sale” or “change of control” provisions applicable to such Capital Stockare not more favourable to the holders of such Capital Stock than the termsapplicable to the Notes under Section 4.08 and Section 4.10 hereof; and

 

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(b)                                 anysuch requirement only becomes operative after compliance with such termsapplicable to the Notes, including the purchase of any Notes tendered pursuantthereto.

 

If Capital Stock is issued toany plan for the benefit of employees of the Issuer or its Subsidiaries or byany such plan to such employees, such Capital Stock shall not constituteDisqualified Stock solely because it may be required to be repurchased by theIssuer or any Subsidiary in order to satisfy applicable statutory or regulatoryobligations.

 

“**EBITDA**” for any period means the sum of Consolidated NetIncome plus the following to the extent deducted in calculating suchConsolidated Net Income:

 

(a)                                  allincome tax expense, advanced corporation tax, mainstream corporation tax andtheir equivalents in any relevant jurisdiction or any other tax on income orgains of the Issuer and its consolidated Restricted Subsidiaries;

 

(b)                                 ConsolidatedInterest Expense;

 

(c)                                  depreciationexpense and amortisation expense of the Issuer and its consolidated RestrictedSubsidiaries;

 

(d)                                 allother non-cash items of the Issuer and its consolidated Restricted Subsidiaries(excluding any such non-cash charge to the extent that it represents an accrualof or reserve for cash expenditures in any future period reducing ConsolidatedNet Income) less all non-cash items increasing Consolidated Net Income(excluding the reversal of any over accrual or reserve referred to in thepreceding parenthetical) in each case for such period; and

 

(e)                                  anyfees, expenses or charges related to any public equity offering, equity sale,acquisition or Indebtedness permitted to be incurred by the Indentures (whetheror not successful) (including such fees, expenses or charges related to the offeringof Existing Notes).

 

“**Established Rate**” means the irrevocably fixed rate for theconversion of Guilders (including compliance with rules relating to rounding inaccordance with applicable European Union regulations) into Euro adopted by theCouncil of the European Union pursuant to the Treaty.

 

“**Euro**” means the single currency introduced at the start of thethird stage of economic and monetary union pursuant to the Treaty.

 

“**Euroclear**” means Euroclear Bank S.A./N.V. as operator of theEuroclear system.

 

“**Event of Default**” has the meaning set forth in Section 6.01.

 

“**Exchange Act**” means the United States Securities Exchange Actof 1934, as amended, or any successor statute or statutes thereto.

 

“**Existing Notes**” means the notes issued under the 1999 Indentures.

 

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“**Existing Notes Issue Date**” means July 23, 1999, the first dateon which the Existing Notes were issued.

 

“**Extraordinary Resolution**” has the meaning set forth inparagraph 19 of Schedule 1.

 

“**fair market value**” means, with respect to any asset orproperty, the price which could be negotiated in an arm’s-length, free markettransaction, for cash, between a willing seller and a willing and able buyer,neither of which is under undue pressure or compulsion to complete thetransaction.  Fair market value shall bedetermined by the Board of Directors acting reasonably and in good faith andshall be evidenced by a Board Resolution delivered to the Trustee.

 

“**GAAP**” means generally accepted accounting principles in TheNetherlands.

 

“**Global Note**” means a registered global note without couponsattached, representing all or a part of the Notes substantially in the form ofExhibit A attached hereto.

 

“**Group**” means the Parent and its Subsidiaries from time totime, including, for the avoidance of doubt, the Issuer.

 

“**Guarantee**” means any obligation, contingent or otherwise, ofany Person directly or indirectly guaranteeing any Indebtedness or otherobligation of any other Person and any obligation, direct or indirect,contingent or otherwise, of such Person:

 

(a)                                  topurchase or pay (or advance or supply funds for the purchase or payment of)such Indebtedness or other obligation of such other Person (whether arising byvirtue of partnership arrangements, or by agreement to keep-well, to purchaseassets, goods, securities or services, to take-or-pay or to maintain financialstatement conditions or otherwise); or

 

(b)                                 enteredinto for purposes of assuring in any other manner the obligee of suchIndebtedness or other obligation of the payment thereof or to protect suchobligee against loss in respect thereof (in whole or in part),

 

provided, however, that the term“Guarantee” shall not include:

 

(a)                                  endorsementsfor collection or deposit in the ordinary course of business; or

 

(b)                                 obligations,warranties and indemnities, not with respect to Indebtedness of any Person,that have been or are undertaken or made in the ordinary course of business orin connection with any Asset Disposition permitted pursuant to Section 4.08 andnot for the benefit of or in favour of an Affiliate of the Issuer or any of itsSubsidiaries.  The term “guarantee” usedas a verb has a corresponding meaning.

 

“**Hedging Obligations**” of any Person means the obligations ofsuch Person pursuant to any Interest Rate Protection Agreement or CurrencyExchange Protection Agreement or other similar agreement or arrangementinvolving interest rates, currencies, commodities or otherwise.

 

“**Holder**” means the Person in whose name a Note is registered inthe Register.

 

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“**Holding Company**” of any Person means any corporation,association, partnership or other business entity, which owns or controls morethan 50% of the total voting power of shares of voting stock directly orindirectly of such Person or, in the case of the Issuer, any Person in respectof which the Issuer is a Subsidiary.

 

“**Indebtedness**” means, with respect to any Person on any date ofdetermination (without duplication):

 

(a)           the principal of andpremium (if any such premium is then due and owing) in respect of:

 

(i)                                     indebtednessof such Person for money borrowed; and

 

(ii)                                  indebtednessevidenced by notes, debentures, bonds or other similar instruments for thepayment of which such Person is responsible or liable;

 

(b) all Capitalised LeaseObligations of such Person;

 

(c) all obligations of suchPerson issued or assumed as the deferred purchase price of property (whichpurchase price is due more than 180 days after taking title to such property),all conditional sale obligations of such Person and all obligations of suchPerson under any title retention agreement (but excluding trade accountspayable, operating lease payments, accrued expenses or similar currentliabilities other than the current portion of long term Indebtedness);

 

(d) all obligations of suchPerson for the reimbursement of any obligor on any letter of credit, banker’sacceptance or similar credit transaction (other than obligations with respectto letters of credit securing obligations (other than obligations described in(a) through (c) above) entered into in the ordinary course of business of suchPerson to the extent such letters of credit are not drawn upon or, if and tothe extent drawn upon, such drawing is reimbursed no later than the fifteenthBusiness Day following receipt by such Person of a demand for reimbursementfollowing payment on the letter of credit);

 

(e) the amount of allobligations of such Person with respect to the redemption, repayment or otherrepurchase of any Disqualified Stock of such Person (but excluding, in eachcase, any accrued dividends);

 

(f) all obligations of the typereferred to in clauses (a) through (e) of other Persons and all dividends ofother Persons for the payment of which, in either case, such Person isresponsible or liable, directly or indirectly, as obligor, guarantor orotherwise, including by means of any Guarantee;

 

(g) all obligations of the typereferred to in clauses (a) through (f) of other Persons secured by any Lien onany property or asset of such Person (whether or not such obligation is assumedby such Person), the amount of such obligation being deemed to be the lesser ofthe value of such property or assets or the amount of the obligation sosecured; and

 

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(h) to the extent not otherwiseincluded in this definition, Hedging Obligations of such Person;

 

if and to the extent any of theforegoing items (other than letters of credit, Capitalised Lease Obligations,and Hedging Obligations which shall in any event be included in the definitionof Indebtedness) would appear as a liability upon a balance sheet of suchPerson prepared in accordance with GAAP.

 

For purposes of this definition,the obligation of such person with respect to the redemption, repayment orrepurchase price of any Disqualified Stock that does not have a fixedredemption, repayment or repurchase price shall be calculated in accordancewith the terms of such Disqualified Stock as if such Disqualified Stock wereredeemed, repaid or repurchased on any date on which Indebtedness shall berequired to be determined pursuant to the Indenture; provided, however, that ifsuch Disqualified Stock is not then permitted to be redeemed, repaid orrepurchased, the redemption, repayment or repurchase price shall be the bookvalue of such Disqualified Stock as reflected in the most recent financialstatements of such Person.  The amountof Indebtedness of any Person at any date shall be the outstanding balance atsuch date of all unconditional obligations as described above and, with respectto contingent obligations, the amount of liability required by GAAP to beaccrued or reflected on the most recently published balance sheet of suchPerson; provided, that:

 

(a)                                  theamount outstanding at any time of any Indebtedness issued with original issuediscount is the face amount of such Indebtedness less the remaining unamortisedportion of the original issue discount of such Indebtedness at such time asdetermined in conformity with GAAP; and

 

(b)                                 Indebtednessshall not include any liability for federal, state, local or other taxes.

 

“**Indenture**” means this Indenture including the Schedules, asamended or supplemented from time to time.

 

“**Initial Global Note**” means the Regulation S Global Note asdefined in Section 2.04.

 

“**Initial Notes**” means the €95,000,000 105/8%Class A Senior Subordinated Notes due 2009 of the Issuer issued under thisIndenture on the Issue Date.

 

“**Initial Purchaser**” means Barclays Bank plc, acting through itsLondon branch.

 

“**Institutional Accredited Investor**” means an institutional“accredited investor” (as defined in rule 501(a)(1), (2), (3) or (7) ofRegulation S under the Securities Act).

 

“**Intercreditor Deed**” means the Intercreditor Agreement datedMay 17, 2001 relating to an Amended and Restated Intercreditor Deed dated July23, 1998 as amended on September 3, 1998, amended and restated on July 23, 1999(pursuant to an amendment and restatement deed (the “**Deed**”)) and further amended on May 17, 2001 among, interalias, the Subsidiary Guarantor and the Issuer, and as may be further amended,varied, restated, novated or supplemented from time to time in

 

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accordance with its terms, whichsets out, inter alia, the respective rights of certain creditors (including theHolders) of the Issuer and its Subsidiaries as regards ranking of debts andenforcement and to which the Trustee became a party by executing the Deed.

 

“**Interest Bearing Note Applicable Premium**” means, with respectto a Note on any Redemption Date, the greater of:

 

(a)           1% of the principalamount of the Note; or

 

(b)           the excess of:

 

(i)                                     thepresent value at such Redemption Date of (1) the Redemption Price of such Noteat July 15, 2004 (such Redemption Price being set forth in the table in Section3.01(a) hereof) plus (2) all required interest payments due on such Notethrough July 15, 2004 (excluding accrued but unpaid interest) computed using adiscount rate equal to the Bund Rate at such Redemption Date plus 50 basispoints; over

 

(ii)                                  theoutstanding principal amount of the Note.

 

“**Interest Payment Date**” means the stated maturity of aninstalment of interest on the Notes.

 

“**Interest Rate Protection Agreement**” means, in respect of anyPerson, any interest rate swap agreement, interest rate option agreement,interest rate cap agreement, interest rate collar agreement, interest ratefloor agreement or other similar agreement or arrangement designed to protectsuch Person against fluctuations in interest rates.

 

“**Investment**” by any Person in any other Person means any director indirect advance, loan (other than advances to customers or suppliers in theordinary course of business that are recorded as accounts receivable on thebalance sheet of such former Person) or other extension of credit (including byway of Guarantee or similar arrangement) or capital contribution to (by meansof any transfer of cash or other property to others or any payment for propertyor services for the account or use of others), or any purchase or acquisitionof Capital Stock, Indebtedness or other similar instruments issued by suchlatter Person that are or would be classified as investments on a balance sheetof such former Person prepared in accordance with GAAP.  In determining the amount of any Investmentin respect of any property or assets other than cash, such property or assetshall be valued at its fair market value at the time of such Investment (unlessotherwise specified in this definition), as determined in good faith by theBoard of Directors.  For purposes of thedefinitions of “Unrestricted Subsidiary”, “Restricted Payment” and “PermittedInvestment” and Section 4.06:

 

(a)                                  “Investment”shall include the portion (proportionate to the Issuer’s equity interest insuch Subsidiary) of the fair market value of the net assets of any Subsidiaryof the Issuer at the time that such Subsidiary is designated an UnrestrictedSubsidiary; provided, however, that upon a redesignation of such Subsidiary asa Restricted Subsidiary, the Issuer shall be deemed to continue to have apermanent “Investment” in an Unrestricted Subsidiary equal to an amount (ifpositive) equal to (x) the Issuer’s

 

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“Investment” in such Subsidiaryat the time of such redesignation less (y) the portion (proportionate to theIssuer’s equity interest in such Subsidiary) of the fair market value of thenet assets of such Subsidiary at the time of such redesignation; and

 

(b)                                 anyproperty transferred to or from an Unrestricted Subsidiary shall be valued atits fair market value at the time of such transfer, in each case as determinedin good faith by the Board of Directors.

 

“**Issue Date**” means May 22, 2003.

 

“**Issuer**” means the party named as the “Issuer” in the first paragraphof this Indenture until a successor replaces such party pursuant to theapplicable provisions of Article Five, and thereafter “Issuer” shall mean suchsuccessor.

 

“**Issuer Order**” or “**IssuerRequest**” means a written request or order signed in the name of theIssuer by any two Officers of the Issuer and delivered to the Trustee.

 

“**Liability**” means any loss, damage, cost, charge, claim,demand, expense, judgment, action, proceeding or other liability whatsoever(including, without limitation, in respect of taxes, duties, levies, impostsand other charges) and including any value added tax or similar tax charged orchargeable in respect thereof and legal fees and expenses on a full indemnitybasis.

 

“**Lien**” means any, mortgage, pledge, security interest,encumbrance, lien or charge of any kind (including any conditional sale orother title retention agreement or lease in the nature thereof).

 

“**Maturity Date**” means the date, which is set forth on the faceof the Notes, on which the Notes will mature.

 

“**Net Available Cash**” from an Asset Disposition means theaggregate amount of cash or Temporary Cash Investments received in respect ofan Asset Disposition (including any cash payments received by way of deferredpayment of principal pursuant to a note or instalment receivable or otherwiseand any cash received upon the sale or other disposition of any PermittedNon-Cash Consideration, but only as and when received, but excluding any otherconsideration received in the form of assumption by the acquiring person ofIndebtedness or other obligations relating to such properties or assets orreceived in any other non-cash form) therefrom, in each case net of:

 

(a)                                  alllegal, title and recording tax expenses, commissions and other fees andexpenses incurred (including fees and expenses of counsel and investmentbankers), and all taxes required to be paid or accrued as a liability underGAAP as a consequence of such Asset Disposition;

 

(b)                                 allpayments made on any Indebtedness which is secured by any assets subject to suchAsset Disposition, in accordance with the terms of any Lien upon such assets,or which must by its terms, or in order to obtain a necessary consent to suchAsset Disposition, or by applicable law, be repaid out of the proceeds fromsuch Asset Disposition;

 

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(c)                                  alldistributions and other payments required to be made to minority interestholders in Restricted Subsidiaries or joint ventures as a result of such AssetDisposition; and

 

(d)                                 thededuction of appropriate amounts to be provided by the seller as a reserve, inaccordance with GAAP, against any liabilities associated with the assetsdisposed of in such Asset Disposition and including, pension and otherpost-employment benefit liabilities, liabilities related to environmentalmatters and liabilities under any indemnification obligations associated withsuch Asset Dispositions, all as determined in conformity with GAAP, retained bythe Issuer or any Restricted Subsidiary after such Asset Disposition.

 

“**Net Cash Proceeds**” with respect to any issuance or sale ofCapital Stock, means the cash proceeds of such issuance or sale net ofattorneys’ fees, accountants’ fees, printing costs, underwriters’ or placementagents’ fees, discounts or commissions and brokerage stock exchange listingfees, consultant and other fees actually incurred in connection with suchissuance or sale and net of taxes paid or payable as a result thereof.

 

“**Notes**” means the Initial Global Notes, the Unrestricted GlobalNotes and Additional Notes (if any), treated as a single class of Notes, asamended or supplemented from time to time pursuant to the terms of thisIndenture, that are issued under this Indenture.

 

“**Obligations**” means all obligations in respect of principal,premium, interest, Additional Amounts, penalties, fees, indemnifications,reimbursements, damages and other Liabilities payable under any documentationgoverning any Indebtedness, including the Notes.

 

“**Offering Memorandum**” means the final offering memorandum in relationto the offering of the Existing Notes dated July 16, 1999.

 

“**Officer**” means, with respect to any Person, the Chairman, anyManaging Director, any Director or the Secretary or member of the executivecommittee, of such Person.

 

“**Officer’s Certificate**” means a certificate signed by any twodirectors or members of the executive committee of the Issuer or the SubsidiaryGuarantor.

 

“**Opinion of Counsel**” means a written opinion of counselacceptable to the Trustee, which may be an employee of or counsel for theIssuer.

 

“**outstanding**” means in relation to the Notes all the Notesissued other than:

 

(a)                                  thoseNotes which have been redeemed pursuant to this Indenture;

 

(b)                                 thoseNotes in respect of which the date for redemption in accordance with thisIndenture has occurred and the redemption moneys (including premium (if any)and all interest payable thereon) have been duly paid to the Trustee or to thePaying Agent in the manner provided in the Agency Agreement (and whereappropriate notice to that effect has been given to the relative Holders);

 

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(c)           those Notes which have been purchased and cancelledpursuant to Change of Control Offer under Section 4.10 hereof;

 

(d)           those mutilated or defaced Notes which have beensurrendered and cancelled and in respect of which replacements have beenissued;

 

(e)           (for the purpose only of ascertaining the principal amountof the Notes outstanding and without prejudice to the status for any otherpurpose of the relevant Notes) those Notes which are alleged to have been lost,stolen or destroyed and in respect of which replacements have been issued; and

 

(f)            any Global Note to the extent that it shall have beenexchanged for another Global Note or for Registered Notes pursuant to itsprovisions;

 

PROVIDED THAT for each of the following purposes, namely:

 

(a)           the right to attend and vote at any meeting of the Holdersor any of them;

 

(b)           the determination of how many and which Notes are for thetime being outstanding for the purposes of Sections 6.02, 6.04, 6.05 and 10.02and paragraphs 2, 5, 6 and 9 of Schedule 1;

 

(c)           any discretion, power or authority (whether contained inthis Indenture or vested by operation of law) which the Trustee is required,expressly or impliedly, to exercise in or by reference to the interests of theHolders or any of them; and

 

(d)           the determination by the Trustee whether any event,circumstance, matter or thing is, in its opinion, materially prejudicial to theinterests of the Holders or any of them,

 

those Notes (if any) which are for the time being held by or on behalfof the Issuer, the Subsidiary Guarantor or any of their respective Subsidiariesor any holding company of the Issuer or any other Subsidiary of any suchholding company, in each case as beneficial owner, shall (unless and untilceasing to be so held) be deemed not to remain outstanding.

 

“**Parent**” means KappaHolding B.V.

 

“**Parent Subordinated Indebtedness**”means subordinated debt of the Issuer issued to and held by any Holding Companywhich:

 

(a)           by its terms (i) does not (including upon the happening ofany event) mature and is not (including upon the happening of any event)mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, orredeemable at the option of the holder, in whole or in part, and does notinclude any provision requiring repurchase by the Issuer or any of itsRestricted Subsidiaries (including upon the happening of any event) prior to ayear and a day after the date on which the Notes mature, (ii) does not(including upon the happening of any event) require or provide for the payment,in cash or otherwise, of interest or any other amounts prior to its statedmaturity (provided that interest may accrete while such subordinated debt isoutstanding and accreted interest may become due upon acceleration of maturityas permitted by

 

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clause (iii) and any interestmay be satisfied at any time by the issue to the holders thereof of furtherParent Subordinated Indebtedness), (iii) does not provide (including upon thehappening of any event) for the acceleration of its maturity (other thanfollowing the winding up or bankruptcy of the Issuer, but only if the maturityof the Notes has been accelerated) or the exercise of remedies prior to thedate on which the Notes mature and are repaid, (iv) is not secured by a lien onany assets of the Issuer or any of its Restricted Subsidiaries and is notGuaranteed by any Restricted Subsidiary, (v) does not (including upon thehappening of any event) restrict the payment of monies due under the 1999Indentures and (vi) is not (including upon the happening of any event)mandatorily convertible or exchangeable, or convertible or exchangeable at theoption of the holder, in whole or in part, prior to the date on which the Notesmature other than into or for Capital Stock (other than Disqualified Stock);and

 

(b)           is contractually subordinated (pursuant to a bindingagreement with the Trustee for the benefit of the Holders) and junior in rightof payment to the prior payment in full in cash of all obligations (includingprincipal, interest, premium (if any) and Additional Amounts (if any)) of theIssuer under the Notes and the 1999 Indentures such that (i) the Issuer shallmake no payment in respect of such subordinated debt (whether in cash,securities or otherwise, except as permitted by clause (a)(ii)) and may notacquire such subordinated debt except as permitted by the 1999 Indentures untilthe prior payment in full in cash of all obligations in respect of the Notesand the 1999 Indentures, (ii) upon any total or partial liquidation,dissolution, or winding up of the Issuer or in a bankruptcy, reorganization,insolvency, receivership or similar proceeding relating to the Issuer or itsproperty, the holders of the Notes will be entitled to receive payment in fullin cash of the obligations under the 1999 Indentures and the Notes before theholders of such subordinated debt will be entitled to receive any payment inrespect of such subordinated debt, (iii) such subordinated debt may not beamended such that it would cease to qualify as a Parent SubordinatedIndebtedness until the date that is after the prior payment in full in cash ofall obligations in respect of the Notes and the 1999 Indentures and (iv) theholders of such subordinated debt shall assign any rights to vote, including byway of proxy, in a bankruptcy, insolvency or similar proceeding to the Trustee:provided, however, that any sale or transfer of such subordinated debt or anysubsequent issuance or transfer of Capital Stock or other action that resultsin such subordinated debt being held by a Person other than a Permitted Holder,a Holding Company or the Issuer and any event or circumstance that results insuch subordinated debt ceasing to qualify as Parent Subordinated Indebtednessshall be deemed, in each case, to constitute an incurrence of such subordinateddebt by the Issuer.

 

“**Participants**” meansinstitutions that have accounts with Euroclear or Clearstream or theirrespective nominees.

 

“**Paying Agent**” means anyperson authorised by the Issuer to pay the principal of, premium, if any, orinterest on any Notes on behalf of the Issuer, including without limitation thePrincipal Paying Agent (as defined in the Agency Agreement).

 

“**Permitted Businesses**”means (a) the paper and packaging business or any business reasonably related,incidental or ancillary to any of the foregoing or (b) an acquired businesswhere, upon consummation of such acquisition, a majority of the assets and

 

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revenues of the Issuer and its Subsidiaries continue to be related tothe businesses in clause  (a).

 

“**Permitted Holders**” means(a) Cinven and its Affiliates or funds or investors managed or advised by them,(b) CVC Capital Partners Europe Limited and its Affiliates or funds orinvestors managed or advised by them and (c) individuals serving in managementpositions with the Issuer or the Parent now or any time in the future and“Permitted Holder” means any of the above.

 

“**Permitted Investment**”means an Investment in:

 

(a)           the Issuer or a Restricted Subsidiary or a Person whichwill, upon the making of such Investment, become a Restricted Subsidiary;

 

(b)           another Person, if as a result of such Investment suchother Person is merged or consolidated with or into, or transfers or conveysall or substantially all its assets to, the Issuer or a Restricted Subsidiary;

 

(c)           Temporary Cash Investments;

 

(d)           trade-receivables;

 

(e)           loans or advances to officers, directors or employees ofthe Issuer or any of its Restricted Subsidiaries for travel, transportation,entertainment, and moving and other relocation expenses and other businessexpenses and that are made in the ordinary course of business;

 

(f)            loans or advances toemployees made in the ordinary course of business consistent with customary andreasonable industry practice or such Restricted Subsidiary, as the case may be,not in excess of NLG  15  million outstanding at any one time;

 

(g)           stock, obligations orsecurities received:

 

(i)            in settlement of debts created inthe ordinary course of business and owing to the Issuer or any RestrictedSubsidiary;

 

(ii)           in satisfaction of judgments;

 

(iii)          as consideration in connection with anAsset Disposition pursuant to Section 4.08; and

 

(iv)          as a result of the acquisition of aPerson that at the time of such acquisition held instruments constitutingInvestments that were not acquired in contemplation of the acquisition of suchPerson;

 

(h) Unrestricted Subsidiaries, joint venturesand other Persons provided, that at the time such Investment is made the netamount of all Investments made pursuant to this clause (h) and clause (h) ofthe definition of Permitted Investments in the 1999 Indentures after theExisting Notes Issue Date does not exceed 5.0% of Consolidated TangibleAssets.  The net amount of suchInvestments as of any date of determination

 

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shall be determined by subtracting (A) theaggregate amount of all payments of interest on Indebtedness, dividends orrepayments of loans or other transfers of cash or assets received by the Issueror a Restricted Subsidiary as a return of or on such Investments or received bythe Issuer or any Restricted Subsidiary from the disposition of suchInvestments from (B) the aggregate amount of all such Investments made by theIssuer and the Restricted Subsidiaries pursuant to this clause (h) and clause(h) of the definition of Permitted Investments in the 1999 Indentures;

 

(i) any Investment by the Issuer or any ofits Restricted Subsidiaries in a Receivables Subsidiary or any Investment by aReceivables Subsidiary in any other Person in connection with a QualifiedReceivables Transaction; provided, that each such Investment is in the form ofa Purchase Money Note, an equity interest or interests in accounts receivablesgenerated by the Issuer or any of its Restricted Subsidiaries;

 

(j) Investments in Hedging Obligationsotherwise permitted under the Indenture;

 

(k) Guarantees of Indebtedness permittedunder Section 4.05; and

 

(l) any transaction to the extent itconstitutes an Investment that is permitted and made in accordance with theprovisions of Section 4.09.

 

“**Permitted Liens**” means, with respect to any Person:

 

(a)           pledgesor deposits by such Person under workmen’s compensation laws, unemploymentinsurance laws or similar legislation, or good faith deposits in connectionwith bids, tenders, contracts (other than for the payment of Indebtedness) orleases to which such Person is a party, or deposits to secure public orstatutory obligations of such Person or deposits or cash or government bonds tosecure surety or appeal bonds to which such Person is a party, or deposits assecurity for contested taxes or import duties or for the payment of rent, ineach case incurred in the ordinary course of business;

 

(b)           Liensimposed by law, including carriers’, warehousemen’s and mechanics’ Liens, ineach case for sums not yet due or being contested in good faith by appropriateproceedings; or other Liens arising out of judgments or awards against suchPerson with respect to which such Person shall then be proceeding with anappeal or other proceedings for review;

 

(c) Liens for taxes, assessments or othergovernmental charges or claims not yet subject to penalties for non-payment orwhich are being contested in good faith by appropriate proceedings; provided,that appropriate reserves have been taken on the books of the Issuer;

 

(d) Liens in favour of issuers of surety bondsor letters of credit issued pursuant to the request of and for the account ofsuch Person in the ordinary course of its business;

 

(e) Liens securing Hedging Obligationsentered into in the ordinary course of business;

 

(f) Liens for the purpose of securing thepayment (or the refinancing of the payment) of all or a part of anyIndebtedness relating to assets or property acquired or

 

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constructed directly or indirectly, whichIndebtedness is permitted pursuant to Section 4.05(b)(vii); provided, that (x)the aggregate principal amount of Indebtedness secured by such Liens shall notexceed the cost of the assets or property so acquired or constructed and (y)such Liens shall not encumber any other assets or property of the Issuer or anyRestricted Subsidiary other than such assets or property and assets affixed orappurtenant thereto;

 

(g) Liens arising from precautionary UniformCommercial Code financing statement filings regarding operating leases enteredinto by the Issuer and its Subsidiaries in the ordinary course of business;

 

(h) Liens securing any Senior Indebtednessincurred by the Issuer or any Restricted Subsidiary which was not prohibited bythe terms of the 1999 Indentures;

 

(i) Liens on property of a Person existing atthe time such Person is merged with or into or consolidated with the Issuer orany Subsidiary of the Issuer; provided, that such Liens were in existence priorto the contemplation of such merger or consolidation and do not extend to anyassets other than those of the Person merged into or consolidated with theIssuer or the Subsidiary;

 

(j) Liens on property existing at the time ofacquisition by the Issuer or any Subsidiary of the Issuer, provided, that suchLiens were in existence prior to the contemplation of such acquisition;

 

(k) Liens to secure the performance ofstatutory obligations, performance bonds or other obligations of a like natureincurred in the ordinary course of business;

 

(l) Liens on assets of a Receivables Subsidiaryincurred in connection with a Qualified Receivables Transaction;

 

(m) Liens incurred in the ordinary course ofbusiness of the Issuer or any Subsidiary of the Issuer with respect toobligations which do not exceed NLG 15 million at any one time outstanding;

 

(n) easements (including reciprocal easementagreements), rights-of-way, building, zoning and similar restrictions, utilityagreements, covenants, reservations, restrictions, encroachments, charges andother similar encumbrances or title defects incurred, or leases or sub-leasesgranted to others, in the ordinary course of business, that do not in theaggregate materially detract from the aggregate value of the properties of theIssuer and its Subsidiaries, taken as a whole or in the aggregate materiallyinterfere with or adversely affect in any material respect the ordinary courseof the business of the Issuer and its Subsidiaries on the properties subjectthereto, taken as a whole;

 

(o) Liens arising by operation of law (or byagreement to the same effect) in the ordinary course of business and not as aresult of any default or omission on the part of the Issuer or any RestrictedSubsidiary; and

 

(p) Liens over credit balances on bankaccounts of the Issuer or any Restricted Subsidiary with Approved Banks (asdefined in the Senior Credit Agreement) created in order to facilitate theoperation of such bank accounts and other bank accounts of

 

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such companies with such Approved Banks on anet balance basis with credit balances and debit balances on the variousaccounts being netted off for interest purposes.

 

“**Permitted Non-Cash Consideration**” means the fair market valueof any non-cash consideration received by the Issuer or one of its Restricted Subsidiariesin connection with an Asset Disposition that is designated as PermittedNon-Cash Consideration pursuant to an Officers’ Certificate, setting forth thebasis of such valuation, executed by an officer or director of the Issuer whichshall be a report of an internationally recognised investment banking firm withrespect to the receipt in one or a series of related transactions of PermittedNon-Cash Consideration with a fair market value in excess of NLG 50 million.  A particular item of Permitted Non-CashConsideration shall no longer be considered to be outstanding when it has beensold for cash or redeemed or paid in full in the case of non-cash considerationin the form of promissory notes or equity.

 

“**Person**” means any individual, corporation, partnership,limited liability company, joint venture, association, joint-stock company,trust, unincorporated organisation, government or any agency or politicalsubdivision thereof or any other entity.

 

“**Predecessor Note**” of any particular Note means every previousNote evidencing all or a portion of the same debt as that evidenced by suchparticular Note; and, for the purposes of this definition, any Noteauthenticated and delivered under Section 2.07 in exchange for a mutilated Noteor in lieu of a lost, destroyed or stolen Note shall be deemed to evidence thesame debt as the mutilated, lost, destroyed or stolen Note.

 

“**Preferred Stock**” as applied to the Capital Stock of anycorporation, means Capital Stock of any series (however designated) which ispreferred as to the payment of dividends, or as to the distribution of assetsupon any voluntary or involuntary liquidation or dissolution of suchcorporation, over shares of Capital Stock of any other series of suchcorporation.

 

“**principal**” of a Note means the principal of the Note plus thepremium, if any, payable on the Note which is due or overdue or is to becomedue at the relevant time.

 

“**Purchase Money Note**” means a promissory note evidencing a lineof credit, which may be irrevocable, from, or evidencing other Indebtednessowed to, the Issuer or any of its Restricted Subsidiaries in connection with aQualified Receivables Transaction, which note shall be repaid from cashavailable to the maker of such note, other than amounts required to beestablished as reserves pursuant to agreements, amounts paid to investors inrespect of interest, principal and other amounts owing to such investors andamounts paid in connection with the purchase of newly generated receivables.

 

“**QIB**” means a “qualified institutional buyer” as defined inRule 144A.

 

“**Qualified Receivables Transaction**” means any transaction orseries of transactions that may be entered into by the Issuer or any of itsRestricted Subsidiaries pursuant to which the Issuer or any of its RestrictedSubsidiaries may sell, convey or otherwise transfer to a Receivables Subsidiaryor any other Person or may grant a security interest in, any accountsreceivable (whether now existing or arising in the future) of

 

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the Issuer or any of itsRestricted Subsidiaries and any assets related thereto including, withoutlimitation, all collateral securing such accounts receivable, all contracts andall guarantees or other obligations in respect of such accounts receivable,proceeds of such accounts receivable and other assets that are customarilytransferred, or in respect of which security interests are customarily granted,in connection with asset securitization transactions involving accountsreceivable.

 

“**Receivables Subsidiary**” means a Subsidiary of the Issuer thatengages in no activities other than directly or indirectly in connection withthe financing of accounts receivable and that is designated by the Board ofDirectors of the Issuer (as provided below) as a Receivables Subsidiary and:

 

(a)           has no Indebtedness orother obligations (contingent or otherwise) that:

 

(i)            are guaranteed by the Issuer or anyof its Restricted Subsidiaries, other than contingent liabilities pursuant to aStandard Securitisation Undertaking;

 

(ii)           are recourse to or obligate theIssuer or any of its Restricted Subsidiaries in any way other than pursuant toStandard Securitisation Undertakings; or

 

(iii)          subjects any property or assets of theIssuer or any of its Restricted Subsidiaries, directly or indirectly,contingently or otherwise, to the satisfaction thereof, other than pursuant toStandard Securitisation Undertakings;

 

(b) has no contract, agreement, arrangementor undertaking (except in connection with a Purchase Money Note or QualifiedReceivables Transaction) with the Issuer or any of its Restricted Subsidiariesthat are on terms no less favourable to the Issuer or such RestrictedSubsidiaries than those that might be obtained at the time from Persons thatare not Affiliates of the Issuer, other than fees payable in the ordinarycourse of business in connection with servicing accounts receivables and otheramounts payable under swaps or other hedging instruments entered into with theReceivable Subsidiary provided such instruments are permitted to be incurredpursuant to Section 4.05; and

 

(c) neither the Issuer nor any of itsRestricted Subsidiaries has any obligation to maintain or preserve theReceivables Subsidiary’s financial condition or cause the ReceivablesSubsidiary to achieve certain levels of operating results other than pursuantto Standard Securitisation Undertakings.

 

Any such designation by theBoard of Directors shall be evidenced to the Trustee by filing with the Trusteea certified copy of the resolution of the Board of Directors giving effect tosuch designation and an Officers’ Certificate certifying, to the best of suchOfficers’ knowledge and belief after consulting with counsel, that suchdesignation complied with the foregoing conditions.

 

“**Redemption Date**” when used with respect to any Note to beredeemed, means the date fixed for such redemption pursuant to this Indenture.

 

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“**Redemption Price**” when used with respect to any Note to beredeemed, means the price fixed for such redemption pursuant to this Indentureas set forth in the form of Note annexed as Exhibit A.

 

“**Redenomination Date**” means any date for payment of interest onthe Notes pursuant to their terms that falls on or after the date that the Euroceases to be the currency of The Netherlands or the single currency of amajority of the members of the European Union.

 

“**Refinancing Indebtedness**” means Indebtedness that refunds,refinances, replaces, renews, repays or extends (including pursuant to anydefeasance or discharge mechanism) (collectively, “refinances,” and“refinanced” shall have a correlative meaning) any Indebtedness existing on theExisting Notes Issue Date or incurred in compliance with the 1999 Indentures orthis Indenture (including Indebtedness of the Issuer that refinancesIndebtedness of any Restricted Subsidiary) and Indebtedness of the SubsidiaryGuarantor that refinances Indebtedness of the Issuer or any RestrictedSubsidiary including Indebtedness that refinances Refinancing Indebtedness;provided, that:

 

(a)           the RefinancingIndebtedness has a Stated Maturity no earlier than any Stated Maturity of theIndebtedness being refinanced;

 

(b)           the RefinancingIndebtedness has an Average Life at the time such Refinancing Indebtedness is incurredthat is equal to or greater than the Average Life of the Indebtedness beingrefinanced; and

 

(c)           such RefinancingIndebtedness is incurred in an aggregate principal amount (or if issued withoriginal issue discount, an aggregate issue price) that is equal to or lessthan the sum of:

 

(i)            the aggregate principal amount (orif issued with original issue discount, the aggregate accreted value) of theIndebtedness being refinanced (including, with respect to both the RefinancingIndebtedness and the Indebtedness being refinanced, amounts then outstandingand amounts available thereunder); plus

 

(ii)           unpaid interest, prepaymentpenalties, redemption or repurchase premiums, defeasance costs, fees, expensesand other amounts owing with respect thereto, plus reasonable financing feesand other reasonable out-of-pocket expenses incurred in connection therewith,

 

provided, further, that (i)Refinancing Indebtedness shall not include Indebtedness of a RestrictedSubsidiary (other than a Subsidiary Guarantor) that refinances Indebtedness ofthe Issuer and (ii) clauses (a) and (b) above will not apply to anyIndebtedness that refinances Indebtedness incurred pursuant to the SeniorCredit Agreement.

 

“**Register**” has the meaning set forth in Section 2.06.

 

“**Registrar**” has the meaning set forth in Section 2.06.

 

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“**Regular Record Date**” for the interest payable on any InterestPayment Date means the January 1 or July 1 (whether or not a Business Day), asthe case may be, preceding such Interest Payment Date.

 

“**Regulation S**” means Regulation S promulgated under theSecurities Act (including any successor regulation thereto) as it may beamended from time to time.

 

“**Related Business Assets**” means assets (other than cash orTemporary Cash Investments) used or useful in a Permitted Business; providedthat any assets received by the Issuer or a Restricted Subsidiary in exchangefor assets transferred by the Issuer or a Restricted Subsidiary shall not bedeemed to be Related Business Assets if they consist of securities of a Person,unless upon receipt of the securities of such Person, such Person would becomea Restricted Subsidiary.

 

“**Relevant Date**” means the date on which the payment firstbecomes due but, if the full amount of the money payable has not been receivedby the Paying Agent or the Trustee on or before the due date, it means the dateon which the full amount of the money having been so received, notice to thateffect shall have been duly given to the Holders by the Issuer in accordancewith this Indenture.

 

“**repay**”, “**redeem**”and “**pay**” shall each include boththe others and cognate expressions shall be construed accordingly.

 

“**Representative**” means the trustee, agent or otherrepresentative (if any) for an issue of Senior Indebtedness.

 

“**Restricted Investment**” means an Investment other than aPermitted Investment.

 

“**Restricted Period**” means the forty-day period commencing fromand including, the later of the offering of the Notes and the original IssueDate of such Notes.

 

“**Restricted Subsidiary**” means any Subsidiary of the Issuerother than an Unrestricted Subsidiary.

 

“**Rule 144**” means Rule 144 of the Securities Act.

 

“**Rule 144A**” means Rule 144A of the Securities Act.

 

“**SEC**” or “**Commission**”means the United States Securities and Exchange Commission.

 

“**Securities Act**” means the United States Securities Act of1933, as amended, and the rules and provisions promulgated by the SECthereunder.

 

“**Security Agent**” means Barclays Bank plc or such other personacting as security agent under the Intercreditor Deed.

 

“**Senior Credit Agreement**” means the Senior Credit Agreementdated as of July 23, 1998, between inter alia the Issuer, the Parent, theSubsidiary Guarantor,  Barclays

 

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Capital, as Arranger and BT AlexBrown International, Paribas, Deutsche Bank AG London, Goldman Sachs CreditPartners L.P., ING Bank N.V. and Salomon Brothers Holding Inc.  as Co-Arrangers and Barclays Bank Plc as FacilityAgent and Security Agent, together with the related documents thereto(including, without limitation, any guarantee agreements and securitydocuments, and any interest swap obligations relating thereto), as amended andrestated, and in each case as the same (including any amendment and restatementthereof) may be further amended, supplemented or otherwise modified from timeto time, including any agreement extending the maturity of, refinancing,replacing or otherwise restructuring (including increasing the amount ofavailable borrowings thereunder (provided that such increase in borrowings ispermitted pursuant to Section 4.05) or adding Restricted Subsidiaries of theissuer as additional borrowers or Subsidiary Guarantor thereunder) all or anyportion of the Indebtedness under such agreement or any successor orreplacement agreement and whether by the same or any other agent, lender orgroup of lenders.

 

“**Senior Indebtedness**” means:

 

(a)           all Bank Indebtedness;

 

(b)           Hedging Obligations withrespect to Bank Indebtedness, the Notes, the Existing Notes, the Guarantees ofthe Existing Notes or the Subsidiary Guarantee; and

 

(c)           all other Indebtedness,including interest and fees thereon, whether outstanding on the Existing NotesIssue Date or thereafter issued or incurred, unless in the instrument creatingor evidencing the same or pursuant to which the same is outstanding, it isprovided that such obligations are subordinate or junior in right of payment tothe Existing Notes or the Guarantees of the Existing Notes,

 

provided, that Senior Indebtednessshall not include:

 

(i)            any liability for Federal, state,local or other taxes owed or owing;

 

(ii)           any Trade Payables;

 

(iii)          any Indebtedness, Guarantee orobligation which is subordinate or junior in any respect to any otherIndebtedness, Guarantee or obligation including any Senior SubordinatedIndebtedness and any Subordinated Obligations; and

 

(iv)          any obligations with respect to anyCapital Stock.

 

“**Senior Subordinated Indebtedness**” means the Existing Notes,the Guarantees of the Existing Notes, the Notes and the Subsidiary Guaranteeand any other Indebtedness of the Issuer or the Subsidiary Guarantor thatspecifically provides that such Indebtedness is to rank equally with the Notesor the applicable Guarantee in right of payment and is not subordinated by itsterms in right of payment to any Indebtedness or other obligation of the Issueror the Subsidiary Guarantor which is not Senior Indebtedness.

 

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“**Significant Subsidiary**” means a Restricted Subsidiary of theIssuer that is a “significant subsidiary” as defined in Rule 1-02 of RegulationS-X promulgated under the Securities Act and the Exchange Act.

 

“**Special Record Date**” for the payment of any Defaulted Interestmeans a date fixed by the Trustee pursuant to Section 2.08.

 

“**Standard Securitisation Undertakings**” means representations,warranties, covenants and indemnities entered into by the Issuer or any of itsRestricted Subsidiaries and subordinate loans made by the Issuer or any of itsRestricted Subsidiaries to a Receivables Subsidiary or another person that arereasonably customary in an accounts receivable transaction.

 

“**Stated Maturity**” means, with respect to any security, the datespecified in such security as the fixed date on which the payment of principalof such security is due and payable, including pursuant to any mandatoryredemption provision (but excluding any provision providing for the repurchaseof such security at the option of the holder thereof upon the happening of anycontingency beyond the control of the issuer unless such contingency hasoccurred).

 

“**Subordinated Obligation**” means, any Indebtedness of the Issueror the Subsidiary Guarantor (whether outstanding on the Existing Notes IssueDate or thereafter incurred) that is contractually subordinated or junior inright of payment to the Existing Notes or the Guarantees of the Existing Notespursuant to a written agreement.

 

“**Subsidiary**” of any Person means, any corporation, association,partnership or other business entity of which more than 50% of the total votingpower of shares of Voting Stock is at the time owned or controlled, directly orindirectly, by:

 

(a)           suchPerson;

 

(b)           suchPerson and one or more Subsidiaries of such Person; or

 

(c)           oneor more Subsidiaries of such Person.

 

Unless the context requiresotherwise, “Subsidiary” shall refer to a Subsidiary of the Issuer.

 

“**Subsidiary Guarantee**” means the guarantee issued by theSubsidiary Guarantor (or other Subsidiary of the Issuer, in place of theSubsidiary Guarantor), hereunder for the benefit of the Holders, of theIssuer’s obligations with respect to the Notes.

 

“**Subsidiary Guarantor**” means, as of the date of issue of theNotes, Kappa Packaging B.V.

 

“**Temporary Cash Investments**” means, any of the following:

 

(a)           investmentsin Designated Government Obligations;

 

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(b)           investmentsin time deposit accounts, certificates of deposit and money market depositsmaturing within 365 days of the date of acquisition thereof issued by a bank ortrust company which is organised under the laws of the United States ofAmerica, any State thereof or any foreign country recognised by the UnitedStates of America having capital, surplus and undivided profits aggregating inexcess of $500 million (or the foreign currency equivalent thereof on the dateof such investment) and whose long-term debt is rated “A –” or higher accordingto Moody’s Investors Service, Inc.  (orsuch equivalent rating by at least one “nationally recognised statisticalrating organisation” (as defined in Rule 436 under the Securities Act));

 

(c)           repurchaseobligations with a term of not more than 30 days for underlying securities ofthe types described in clause (a) above entered into with a bank meeting thequalifications described in clause (b) above;

 

(d)           investmentsin commercial paper, maturing not more than 90 days after the date ofacquisition, issued by a corporation (other than an Affiliate of the Issuer)organised and in existence under the laws of any state of the United States ofAmerica or any foreign country recognised by the United States of America witha rating at the time as of which any investment therein is made of “P-1” (orhigher) according to Moody’s Investors Service, Inc. or “A-1” (or higher)according to Standard and Poor’s Corporation;

 

(e)           investmentsin securities with maturities of six months or less from the date ofacquisition issued or fully guaranteed by any state, commonwealth or territoryof the United States of America, or by any political subdivision or taxingauthority thereof, or by any member state of the European Union, or by anypolitical subdivision or taxing authority thereof, and rated at least “A” byStandard & Poor’s Ratings Group or “A” by Moody’s Investors Service, Inc;and

 

(f)            investmentsin investment funds investing at least 95% of their assets in securities of thetypes described in clauses (a) through (e).

 

“**TIA**” means the United States Trust Indenture Act of 1939 (15U.S. Code § § 77aaa-77bbbb) as in effect on the date of this Indenture.

 

“**Trade Payables**” means, with respect to any Person, anyaccounts payable or any indebtedness or monetary obligation to trade creditorscreated, assumed or guaranteed by such Person arising in the ordinary course ofbusiness of such Person in connection with the acquisition of goods orservices.

 

“**Treaty**” means the Treaty establishing the European Community,as amended.

 

“**Trustee**” means the party named as the “Trustee” in the firstparagraph of this Indenture until a successor replaces such party pursuant tothe applicable provisions of Section 7.08, and thereafter “Trustee” shall meansuch successor.

 

“**Trustee Acts**” means the Trustee Act 1925 and the Trustee Act2000.

 

“**Trust Officer**” means any officer within the corporate trustadministration department (or any successor group) of the Trustee including anyvice president, assistant vice president, senior trust officer, trust officer,assistant secretary or any

 

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other officer or assistantofficer of the Trustee customarily performing functions similar to thoseperformed by the persons who at that time shall be such officers, and alsomeans, with respect to a particular corporate trust matter, any other officerto whom such trust matter is referenced because of his knowledge of andfamiliarity with the particular subject.

 

“**Unrestricted Subsidiary**” means:

 

(1)                                  any Subsidiary of theIssuer that at the time of determination shall be or continues to be designatedan Unrestricted Subsidiary by the Board of Directors in the manner providedbelow; and

 

(2)                                  any Subsidiary of anUnrestricted Subsidiary.

 

The Board of Directors maydesignate any Subsidiary of the Issuer (including any newly acquired or newlyformed Subsidiary) to be an Unrestricted Subsidiary (a “**Designation**”) unless:

 

(1)                                  a Default or Event ofDefault shall have occurred and be continuing at the time of or after givingeffect to the Designation;

 

(2)                                  such Subsidiary or any ofits Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lienon any property of, the Issuer or any other Restricted Subsidiary of the Issuerthat is not a Subsidiary of the Subsidiary to be so designated; and

 

(3)                                  either (x) the assets ofsuch Subsidiary do not exceed NLG 1,000 or (y) the Issuer would be permittedunder the Indenture to make an Investment at the time of Designation (assumingthe effectiveness of such Designation) pursuant to Section 4.06.

 

The Board of Directors mayrevoke any designation of a Subsidiary as an Unrestricted Subsidiary (a “**Revocation**”) if:

 

(1)                                  no Default or Event ofDefault shall have occurred and be continuing at the time of such Revocation;and

 

(2)                                  all Liens andIndebtedness of such Unrestricted Subsidiary outstanding immediately followingsuch Revocation would, if incurred at such time, have been permitted to beincurred for all purposes of the Indenture and for all purposes of theIndenture shall be deemed to have been incurred at such time.

 

All Designations and Revocationsmust be evidenced by resolutions of the Board of Directors delivered to the1999 Trustees certifying compliance with the foregoing provisions.

 

“**Voting Stock**” of a Person means all series of Capital Stock orother interests (including partnership interests) of such Person then outstandingand normally entitled (without regard to the occurrence of any contingency) tovote in the election of directors, managers or trustees thereof.

 

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“**Western Europe**” means, the United Kingdom, Ireland, Spain,Portugal, Italy, France, Germany, Switzerland, Denmark, The Netherlands,Belgium or Luxembourg.

 

“**Wholly Owned Subsidiary**” means a Restricted Subsidiary of theIssuer, all the Capital Stock of which (other than directors’ qualifyingshares) is owned by the Issuer or another Wholly Owned Subsidiary.

 
| **SECTION  1.02** |   | **INCORPORATION BY REFERENCE TO TRUST  INDENTURE ACT** |
|-------------------|--------|--------------------------------------------------------|

 

Whenever this Indenture refersto a provision of the TIA, the provision is incorporated by reference in andmade a part of this Indenture.  Thefollowing terms used in this Indenture have the following meanings:

 

“**Commission**” means the SEC;

 

“**indenture Notes**” means the Notes;

 

“**indenture note holder**” means a Holder;

 

“**indenture trustee**” or “**institutionaltrustee**” means the Trustee; and

 

“**obligor**” on the indenture Notes means the Issuer, theSubsidiary Guarantor or any other obligor in respect of the Notes.

 

All other TIA terms used in thisIndenture that are defined by the TIA, defined by TIA reference to anotherstatute or defined by Commission rule and not otherwise defined herein have themeanings assigned to them therein.

 
| **SECTION  1.03** |   | **RULES OF CONSTRUCTION** |
|-------------------|--------|---------------------------|

 

Unless the context otherwiserequires:

 

(a) a term has the meaning assigned to it;

 

(b) an accounting term not otherwise definedhas the meaning assigned to it in accordance with generally accepted accountingprinciples in The Netherlands in effect from time to time, and any otherreference in this Indenture to “generally accepted accounting principles”refers to GAAP;

 

(c) “or” is not exclusive;

 

(d) words in the singular include the plural,and words in the plural include the singular;

 

(e) provisions apply to successive events andtransactions;

 

(f) “herein,” “hereof” and other words ofsimilar import refer to this Indenture as a whole and not to any particularArticle, Section or other subdivision;

 

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(g) all references in this Indenture to anystatute or any provision of any statute shall be deemed also to refer to anystatutory modification or re-enactment thereof or any statutory instrument,order or registration made thereunder or under any such modification orre-enactment;

 

(h) all references in this Indenture toguarantees or to an obligation being guaranteed shall be deemed to includerespectively references to indemnities or to an indemnity being given inrespect thereof;

 

(i) all references in this Indenture to anyaction, remedy or method of proceeding for the enforcement of the rights ofcreditors shall be deemed to include, in respect of any jurisdiction other thanEngland, references to such action, remedy or method of proceeding for theenforcement of the rights of creditors available or appropriate in suchjurisdiction as shall most nearly approximate to such action, remedy or methodof proceeding described or referred to in this Indenture;

 

(j) all references in this Indenture totaking proceedings against the Issuer or the Subsidiary Guarantor shall bedeemed to include references to proving in the winding up of the Issuer or theSubsidiary Guarantor;

 

(k) all references in this Indenture or theNotes to “principal amount” of a Note shall, unless the context otherwiserequires, be deemed to be references to the nominal amount of such Note and thepremium, if any, including the Redemption Prices and purchase prices referencedto herein, on such Note and any Additional Amount.

** **

**ARTICLEII**THE NOTES

** **
| **SECTION  2.01** |   | **TITLE AND TERMS.** |
|-------------------|--------|----------------------|

** **

Subject to Section 2.16 theaggregate principal amount of Notes which may be authenticated and deliveredunder this Indenture is initially limited to €95,000,000 except for Notesauthenticated and delivered upon registration of transfer of, or in exchangefor, or in lieu of, other Notes pursuant to Sections 2.05, 2.06, 2.07, or asotherwise provided hereunder.

 

The Initial Notes shall be knownand designated as the €95,000,000 105/8% Class A SeniorSubordinated Notes due 2009.  The finalStated Maturity of the Notes shall be July 15, 2009.  Interest on the Notes will accrue at a rate of 105/8%per annum accruing from May 22, 2003 or from the most recent Interest PaymentDate to which cash interest has been paid or duly provided for and will bepayable semi-annually in arrears on January 15 and July 15 of each year,commencing July 15, 2003 to the Holders of record on the immediately precedingRegular Record Date.  Interest on theNotes will be computed on the basis of a 360-day year comprised of twelve30-day months.  In accordance withSection 2.16, Additional Notes may be issued from time to time under thisIndenture after the date hereof, subject to the provisions of this Indenture.

 

Payments in respect of theprincipal of, premium, if any, and interest on the Notes will be made inaccordance with Section 2.13 hereof.

 

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The Notes shall be redeemable asprovided in Article Three.

 
| **SECTION  2.02** |   | **DENOMINATIONS.** |
|-------------------|--------|--------------------|

** **

The Notes (including any GlobalNote) shall be issuable only in registered form without coupons and only indenominations of €1000 or any integral multiple above such amount.  The Notes shall not be issuable in bearerform.  No service charge shall be madefor any registration of transfer or exchange of Notes, but the Issuer mayrequire payment of a sum sufficient to cover any tax or other governmentalcharge payable in connection therewith.

 
| **SECTION  2.03** |   | **EXECUTION, AUTHENTICATION, DELIVERY AND  DATING.** |
|-------------------|--------|------------------------------------------------------|

 

The Notes shall be executed onbehalf of the Issuer by any Director, its President or a Vice President orother duly authorised person.  Thesignature of any of these officers on the Notes may be manual or facsimile signaturesof the present or any future such authorized officer and may be imprinted orotherwise reproduced on the Notes.

 

Notes bearing the manual orfacsimile signatures of individuals who were at any time the proper officers ofthe Issuer shall bind the Issuer, notwithstanding that such individuals or anyof them have ceased to hold such offices prior to the authentication anddelivery of such Notes or did not hold such offices at the date of suchNotes.  In addition, any Note may besigned on behalf of the Issuer by such Persons as, at the actual date of theexecution of such Note, shall be the proper officers of the Issuer, although atthe date of such Note or of the execution of this Indenture any such Person wasnot such an officer.

 

At any time and from time totime after the execution and delivery of this Indenture, the Issuer may deliverNotes executed by the Issuer to the Trustee for authentication, together withan Issuer Order for the authentication and delivery of such Notes, and theTrustee in accordance with such Issuer Order shall authenticate and deliversuch Notes.

 

Each Note shall be dated thedate of its authentication.  No Noteshall be entitled to any benefit under this Indenture or be valid or obligatoryfor any purpose unless there appears on such Note a certificate of authenticationsubstantially in the form provided for herein duly executed by the Trustee bymanual or facsimile signature of an authorized signatory, and such certificateupon any Note shall be conclusive evidence, and the only evidence, that suchNote has been duly authenticated and delivered hereunder and is entitled to thebenefits of this Indenture.

 

The Trustee shall authenticate(i) the Initial Global Notes, (ii) **[intentionallyleft blank]**, (iii) the Additional Notes or (iv) Unrestricted GlobalNotes from time to time issued only in exchange for a like aggregate principalamount of Initial Global Notes or Additional Notes, upon a writtenauthorisation of the Issuer in the form of an Officers’ Certificate of theIssuer.  Each such written order shallspecify the aggregate principal amount of Notes to be authenticated and thedate on which such Notes are to be authenticated, whether such Notes are to beInitial Global Notes, Additional Notes

 

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or Unrestricted Global Notes andwhether such Notes are to contain any legend and such other information as theTrustee may reasonably request.  Inaddition, in respect of authentication pursuant to clause (iv) of the firstsentence of this paragraph, each such written order from the Issuer shall beaccompanied by an Opinion of Counsel of the Issuer in a form satisfactory tothe Trustee stating that the issuance of the Unrestricted Global Notes does notgive rise to an Event of Default, complies with the provisions of thisIndenture, is made in compliance with the Securities Act and any applicablesecurities laws of any state of the United States and has been duly authorisedby the Issuer.

 
| **SECTION  2.04** |   | **FORM OF NOTES** |
|-------------------|--------|-------------------|

** **

(a) *RestrictedGlobal Notes*.

 

(i)            [**Intentionallyleft blank**]

 

(ii)           Each Restricted Global Note shall beregistered in the name of a nominee of the Common Depositary or its nominee anddeposited with the Common Depositary, on behalf of Euroclear and Clearstream,duly executed by the Issuer and authenticated by the Trustee as hereinbeforeprovided for credit to the respective accounts of Euroclear andClearstream.  The aggregate principalamount of a Restricted Global Note may from time to time be increased ordecreased by adjustments made on the records of the Common Depositary, inconnection with a corresponding decrease or increase in the aggregate principalamount of a Regulation S Global Note or an Unrestricted Global Note, ashereinafter provided.

 

(b) *RegulationS Global Notes*.

 

(i)            Initial Notes shall be initiallyissued in the form of a Global Note in fully registered form without interestcoupons, with such applicable legends as are provided for in Exhibit A hereto,except as otherwise permitted herein. Until such time as the Restricted Period shall have terminated, theGlobal Note shall be referred to herein as the “Regulation S Global Note”.After such time as the Restricted Period shall have terminated, such RegulationS Global Note shall be referred to herein as the “Unrestricted Global Note”.

 

(ii)           The Regulation S Global Note andUnrestricted Global Note shall be registered in the name of the CommonDepositary or its nominee and deposited with the Common Depositary, ascustodian for Euroclear and Clearstream, duly executed by the Issuer and authenticatedby the Trustee as hereinbefore provided, for credit to the respective accountsof Euroclear and Clearstream.  Theaggregate principal amount of a Regulation S Global Note or an UnrestrictedGlobal Note may from time to time be increased or decreased by adjustments madeon the records of the Common Depositary, as custodian for Euroclear andClearstream, in connection with a corresponding decrease or increase in theaggregate principal amount of a Restricted Global Note, as hereinafterprovided.

 

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(c) [**Intentionallyleft blank**].

 

(d) In case the Issuer, pursuant to ArticleFive, shall be consolidated or merged with or into any other Person or shallconvey, transfer, lease or otherwise dispose of its properties and assetssubstantially as an entirety to any Person, and the successor Person resulting from such consolidation, or survivingsuch merger, or into which the Issuer shall have been merged, or the Person whichshall have received a conveyance, transfer, lease or other disposition asaforesaid, shall have executed an indenture supplemental hereto with theTrustee pursuant to Article Five, any of the Notes authenticated or deliveredprior to such consolidation, merger, conveyance, transfer, lease or otherdisposition may, from time to time, at the request of the successor Person, beexchanged for other Notes executed in the name of the successor Person withsuch changes in phraseology and form as may be appropriate, but otherwise insubstance of like tenor as the Notes surrendered for such exchange and of likeprincipal amount; and the Trustee, upon an Issuer Request of the successorPerson, shall authenticate and deliver Notes as specified in such request forthe purpose of such exchange.  If Notes shallat any time be authenticated and delivered in any new name of a successorPerson pursuant to this Section in exchange or substitution for or uponregistration of transfer of any Notes, such successor Person, at the option ofthe Holders but without expense to them, shall provide for the exchange of allNotes at the time outstanding for Notes authenticated and delivered in such newname.

** **
| **SECTION  2.05** |   | **TEMPORARY NOTES.** |
|-------------------|--------|----------------------|

** **

Pending the preparation ofdefinitive Notes, the Issuer may execute, and upon an Issuer Order the Trusteeshall authenticate and deliver, temporary Notes which are printed,lithographed, typewritten, mimeographed or otherwise produced, in anyauthorized denomination, substantially of the tenor of the definitive Notes inlieu of which they are issued and with such appropriate insertions, omissions,substitutions and other variations as the officers executing such Notes maydetermine, as conclusively evidenced by their execution of such Notes.

 

If temporary Notes are issued,the Issuer will cause definitive Notes to be prepared without unreasonabledelay.  After the preparation ofdefinitive Notes,  the temporary Notesshall be exchangeable for definitive Notes upon surrender of the temporaryNotes at the office or agency of the Issuer designated for such purposepursuant to Section 4.02, without charge to the Holder.  Upon surrender for cancellation of any oneor more temporary Notes, the Issuer shall execute and the Trustee shallauthenticate and deliver in exchange therefor a like principal amount ofdefinitive Notes of authorized denominations. Until so exchanged, the temporary Notes shall in all respects beentitled to the same benefits under this Indenture as definitive Notes.

 
| **SECTION  2.06** |   | **REGISTER, REGISTRATION OF TRANSFER AND  EXCHANGE.** |
|-------------------|--------|-------------------------------------------------------|

** **

The Issuer shall cause to bekept a register outside the United Kingdom (the register maintained in suchoffice and in any other office or agency designated pursuant to Section 4.02being herein sometimes referred to as the “**Register**”)in which, subject to such reasonable regulations as it may prescribe, theIssuer shall provide for the registration of Notes and of transfers andexchange of Notes.  The Register shallbe in written form or any other form capable of being converted into writtenform within a

 

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reasonable time.  At all reasonable times, the Register shallbe open to inspection by the Trustee. The Trustee is hereby initially appointed as registrar (the “**Registrar**”) for the purpose of registeringNotes and transfers and exchanges of Notes as herein provided.

 

Upon surrender for registrationof transfer of any Note at the office or agency of the Issuer designatedpursuant to Section 4.02 (in each case outside the United Kingdom), the Issuershall execute, the Trustee shall authenticate and deliver, and the Registrarshall register, if the requirements of such transfer are met, in the name ofthe designated transferee or transferees, one or more new Notes of anyauthorized denomination or denominations of a like aggregate principal amount.

 

At the option of the Holder,Notes may be exchanged for other Notes of any authorized denomination and of alike aggregate principal amount upon surrender of the Notes to be exchanged atsuch office or agency.  Whenever anyNotes are so surrendered for exchange, the Issuer shall execute, the Trusteeshall authenticate and deliver, and the Registrar shall register, the Noteswhich the Holder making the exchange is entitled to receive.

 

All Notes issued upon anyregistration of transfer or exchange of Notes shall be the valid obligations ofthe Issuer, evidencing the same debt, and entitled to the same benefits underthis Indenture, as the Notes surrendered upon such registration of transfer orexchange.

 

Every Note presented orsurrendered for registration of transfer or for exchange shall (if so requiredby the Issuer or the Registrar) be duly endorsed, or be accompanied by awritten instrument of transfer, in form satisfactory to the Issuer and theRegistrar, duly executed by the Holder thereof or his attorney duly authorizedin writing.

 

No service charge shall be madefor any registration of transfer or exchange or redemption of Notes, but theIssuer may require payment of a sum sufficient to cover any tax or othergovernmental charge that may be imposed in connection with any registration oftransfer or exchange of Notes.

 

The Issuer shall not be required(i) to issue, register the transfer of or exchange any Note during a periodbeginning at the opening of business 15 days before the selection of Notes tobe redeemed under Section 3.03 and ending at the close of business on the dayof such mailing of the relevant notice of redemption or (ii) to register thetransfer of or exchange any Note so selected for redemption in whole or inpart, except the unredeemed portion of any Note being redeemed in part.

 
| **SECTION  2.07** |   | **MUTILATED, DESTROYED, LOST AND STOLEN  NOTES.** |
|-------------------|--------|---------------------------------------------------|

** **

If (i) any mutilated Note issurrendered to the Trustee or (ii) the Issuer and the Trustee receive evidenceto their satisfaction of the destruction, loss or theft of any Note, and thereis delivered to the Issuer and the Trustee such Note or indemnity as may berequired by them to save each of them harmless, then, in the absence of noticeto the Issuer or the Trustee that such Note has been acquired by a bona fidepurchaser, the Issuer shall execute and upon Issuer Order the Trustee shallauthenticate and deliver,

 

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in exchange for any suchmutilated Note or in lieu of any such destroyed, lost or stolen Note, a newNote of like tenor and principal amount, bearing a number not contemporaneouslyoutstanding.

 

In case any such mutilated,destroyed, lost or stolen Note has become or is about to become due andpayable, the Issuer in its discretion may, instead of issuing a new Note, paysuch Note.

 

Upon the issuance of any newNote under this Section, the Issuer may require the payment of a sum sufficientto cover any tax or other governmental charge that may be imposed in relationthereto and any other expenses (including the fees and expenses of the Trustee)connected therewith.

 

Every new Note issued pursuantto this Section in lieu of any mutilated, destroyed, lost or stolen Note shallconstitute an original additional contractual obligation of the Issuer, whetheror not the mutilated, destroyed, lost or stolen Note shall be at any timeenforceable by anyone, and shall be entitled to all benefits of this Indentureequally and proportionately with any and all other Notes duly issued hereunder.

 

The provisions of this Sectionare exclusive and shall preclude (to the extent lawful) all other rights andremedies with respect to the replacement or payment of mutilated, destroyed,lost or stolen Notes.

 
| **SECTION  2.08** |   | **PAYMENT OF INTEREST; INTEREST RIGHTS  PRESERVED.** |
|-------------------|--------|------------------------------------------------------|

** **

Interest on any Note which ispayable, and is punctually paid or duly provided for, on any Interest PaymentDate shall be paid to the Person in whose name such Note (or one or morePredecessor Notes) is registered at the close of business on the Regular RecordDate for such interest at the office or agency of the Issuer maintained forsuch purpose pursuant to Section 4.02.

 

Any interest on any Note whichis payable, but is not punctually paid or duly provided for, on any InterestPayment Date shall forthwith cease to be payable to the Holder on the RegularRecord Date by virtue of having been such Holder, and such defaulted interestand (to the extent lawful) interest on such defaulted interest at the rateborne by the Notes (such defaulted interest and interest thereon hereincollectively called “**Defaulted Interest**”)may be paid by the Issuer, at its election in each case, as provided inparagraph (a) or (b) below:

 

(a) The Issuer may elect to make payment ofany Defaulted Interest to the Persons in whose names the Notes (or theirrespective Predecessor Notes) are registered at the close of business on aSpecial Record Date for the payment of such Defaulted Interest, which shall befixed in the following manner.  TheIssuer shall notify the Trustee in writing of the amount of Defaulted Interestproposed to be paid on each Note and the date of the proposed payment, and atthe same time the Issuer shall deposit with the Trustee an amount of moneyequal to the aggregate amount proposed to be paid in respect of such DefaultedInterest or shall make arrangements satisfactory to the Trustee for suchdeposit prior to the date of the proposed payment, such money when deposited tobe held in trust for the benefit of the Persons entitled

 

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to such Defaulted Interest as in this clauseprovided.  Thereupon the Trustee shallfix a Special Record Date for the payment of such Defaulted Interest whichshall be not more than 15 days and not less than 10 days prior to the date ofthe proposed payment and not less than 10 days after the receipt by the Trusteeof the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special RecordDate, and in the name and at the expense of the Issuer, shall cause notice ofthe proposed payment of such Defaulted Interest and the Special Record Datetherefor to be given in the manner provided for in Section 13.02, not less than10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and theSpecial Record Date therefor having been so given, such Defaulted Interestshall be paid to the Persons in whose names the Notes (or their respectivePredecessor Notes) are registered at the close of business on such SpecialRecord Date and shall no longer be payable pursuant to the followingparagraph(b).

 

(b) The Issuer may make payment of anyDefaulted Interest in any other lawful manner not inconsistent with therequirements of any securities exchange or system on which the Notes may belisted or eligible for trading, and upon such notice as may be required by suchexchange or system, if, after notice given by the Issuer to the Trustee of theproposed payment pursuant to this clause, such manner of payment shall bedeemed practicable by the Trustee.

 

Subject to the foregoingprovisions of this Section, each Note delivered under this Indenture uponregistration of transfer of or in exchange for or in lieu of any other Noteshall carry the rights to interest accrued and unpaid, and to accrue, whichwere carried by such other Note.

 
| **SECTION  2.09** |   | **PERSONS DEEMED OWNERS.** |
|-------------------|--------|----------------------------|

** **

Prior to the due presentment ofa Note for registration of transfer, the Issuer, the Trustee and any agent ofthe Issuer or the Trustee may treat the Person in whose name such Note isregistered as the owner of such Note for the purpose of receiving payment ofprincipal of (and premium, if any) and (subject to Sections 2.05 and 2.07)interest on such Note and for all other purposes whatsoever, whether or notsuch Note be overdue, and none of the Issuer, the Trustee or any agent of theIssuer or the Trustee shall be affected by notice to the contrary.

 
| **SECTION  2.10** |   | **CANCELLATION.** |
|-------------------|--------|-------------------|

** **

All Notes surrendered forpayment,  redemption, registration oftransfer or exchange shall, if surrendered to any Person other than theTrustee, be delivered to the Trustee and shall be promptly cancelled byit.  The Issuer may at any time deliverto the Trustee for cancellation any Notes previously authenticated anddelivered hereunder which the Issuer may have acquired in any mannerwhatsoever, and may deliver to the Trustee (or to any other Person for deliveryto the Trustee) for cancellation any Notes previously authenticated hereunder whichthe Issuer has not issued and sold, and all Notes so delivered shall bepromptly cancelled by the Trustee.  Ifthe Issuer shall so acquire any of the Notes, however, such acquisition shallnot operate as a redemption or satisfaction of the indebtedness represented bysuch Notes unless and until the same are surrendered to the Trustee forcancellation.  No Notes shall beauthenticated in lieu of or in exchange for any Notes cancelled as provided inthis Section, except as expressly permitted by this Indenture.  All cancelled Notes held by the Trusteeshall

 

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be disposed of by the Trustee inaccordance with its customary procedures and certification of their disposaldelivered to the Issuer unless by Issuer Order the Issuer shall direct thatcancelled Notes be returned to it.

 
| **SECTION  2.11** |   | **COMPUTATION OF INTEREST.** |
|-------------------|--------|------------------------------|

** **

Interest on the Notes shall becomputed on the basis of a 360-day year comprised of twelve 30-day months.

 
| **SECTION  2.12** |   | **“CUSIP” and/or “ISIN” Numbers.** |
|-------------------|--------|--------------------------------------------------------|

** **

The Issuer in issuing the Notesmay use a “CUSIP” and/or “ISIN” number (if then generally in use), and if so,the Trustee and the Common Depositary shall use “CUSIP” and/or “ISIN” numbersin notices of redemption or exchange as a convenience to Holders; provided,however, that any such notice may state that no representation is made as tothe correctness or accuracy of such numbers either as printed in the notice oron the Notes, and that reliance may be placed only on the other identificationnumbers printed on the Notes.  TheIssuer shall promptly notify the Trustee and the Common Depositary in writingof any change in the “CUSIP” or “ISIN” numbers of the Notes.

 
| **SECTION  2.13** |   | **BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES,  CERTIFICATED NOTES.** |
|-------------------|--------|------------------------------------------------------------------|

 

All payments on a Global Notewill be made to the order of the Common Depositary or its nominee, as the casemay be, as the registered holder of such Global Note.  In each case, the Issuer will be fully discharged by payment toor to the order of the Common Depositary from any responsibility or liabilityin respect of each amount so paid.  TheCommon Depositary will instruct a Paying Agent to make payments in respect ofthe Notes to Euroclear and Clearstream in amounts proportionate to theirrespective beneficial interests in the principal amount of each Global Note,and Euroclear and Clearstream will credit Participants’ accounts with paymentsin amounts proportionate to their respective beneficial interests in theprincipal amount of such Global Note as shown on the records of Euroclear andClearstream.

 

Unless and until it is exchangedin whole or in part for Certificated Notes, a Global Note may not betransferred except as a whole by the relevant Common Depositary or nomineethereof to another nominee of the Common Depositary or to a successor of CommonDepositary or a nominee of such successor.

 

Owners of beneficial interestsin the Global Notes shall be entitled or required, as the case may be, but onlyunder the circumstances described in this Section 2.13, to receive physicaldelivery of Certificated Notes.

 

Interests in a Global Note shallbe exchangeable or transferable, as the case may be, for Certificated Notesonly if (i) Euroclear and Clearstream notify the Issuer that they are unwillingor unable to continue as clearing agencies for such Global Note and a successorreasonably acceptable to the Trustee is not appointed by the Issuer within 90days, (ii) the Common Depositary notifies the Issuer that it is unwilling orunable

 

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to continue as the CommonDepositary for such Global Note, and a successor Common Depositary is notappointed by the Issuer within one hundred twenty (120) days of such notice or(iii) in the case of any Global Note, an Event of Default has occurred and iscontinuing with respect thereto, and the Trustee determines that CertificatedNotes shall be issued.  Upon theoccurrence of any of the events described in the preceding sentence the Issuershall cause the appropriate Certificated Notes to be delivered to the owners ofbeneficial interests in the Global Notes or the participants in Euroclear orClearstream through which such owners hold their beneficial interest.  Certificated Notes shall be exchangeable ortransferable for interests in other Certificated Notes as described herein.

 
| **SECTION  2.14** |   | **TRANSFER AND EXCHANGE OF NOTES.** |
|-------------------|--------|-------------------------------------|

** **

(a) ***Obligationswith Respect to Transfers and Exchanges of Notes***.  Upon surrender for registration of transferof any Note of a series to the Registrar, and subject to the other provisionsof this Section 2.14, the Issuer shall execute, and the Trustee shallauthenticate and deliver, in the name of the designated transferee ortransferees, one or more new Notes of such series of any authorized denominationsand of a like aggregate principal amount.

 

At the option of the Holder, andsubject to the other provisions of this Section 2.14, Notes of any series maybe exchanged for other Notes of such series of any authorized denominations andof a like aggregate principal amount, upon surrender of the Notes to beexchanged at such office or agency. Whenever any Notes are so surrendered for exchange, and subject to theother provisions of this Section 2.14, the Issuer shall execute, and theTrustee shall authenticate and deliver, the Notes which the Holder making theexchange is entitled to receive.

 

All Notes issued upon anyregistration of transfer or exchange of Notes shall be the valid obligations ofthe Issuer, evidencing the same debt, and subject to the other provisions ofthis Section 2.14, entitled to the same benefits under this Indenture, as theNotes surrendered upon such registration of transfer or exchange.

 

Every Note presented orsurrendered for registration of transfer or for exchange shall (if so requiredby the Issuer, the Trustee or the Common Depositary) be duly endorsed, or beaccompanied by a written instrument of transfer in form satisfactory to theIssuer or the Registrar and be duly executed by the Holder thereof or hisattorney duly authorized in writing.

 

No service charge shall be madefor any registration of transfer or exchange of Notes, but the Issuer mayrequire payment of a sum sufficient to cover any tax or governmental chargepayable in connection with any registration of transfer or exchange of Notes.

 

(b) ***Transfer andExchange of Global Notes***. Notwithstanding any provisions of this Indenture or the Notes, transfersof a Global Note, in whole or in part, transfers and exchanges of intereststherein of the kinds described in clauses (ii), (iii) and (iv) below andexchange of interests in Global Notes or of other Notes as described in clause(v) below, shall be made only in accordance with this Section 2.14(b).

 

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Transfers and exchanges subject to thisSection 2.14 shall also be subject to the other provisions of the Indenturethat are not inconsistent with this Section 2.14.

 

(i)            *General*.  A Global Note may not be transferred, inwhole or in part, to any Person other than the Common Depositary or a nomineethereof or a successor Common Depositary or its nominee, and no such transferto any such other Person may be registered; provided that this clause (i) shallnot prohibit any transfer of a Note that is issued in exchange for a GlobalNote but is not itself a Global Note. No transfer of a Note to any Person shall be effective under thisIndenture or the Notes unless and until such Note has been registered in thename of such Person.  Nothing in thisSection 2.14(b)(i) shall prohibit or render ineffective any transfer of abeneficial interest in a Global Note effected in accordance with the otherprovisions of this Section 2.14(b).

 

(ii)           *RestrictedGlobal Note to Regulation S Global Note*.  If the Holder of a beneficial interest in a Restricted GlobalNote wishes at any time to transfer such interest to a Person who wishes totake delivery thereof in the form of a beneficial interest in a Regulation SGlobal Note, such transfer may be effected, subject to the ApplicableProcedures, only in accordance with the provisions of this Section2.14(b)(ii).  Upon receipt by theRegistrar of (A) written instructions given in accordance with the ApplicableProcedures from Euroclear or Clearstream directing the Registrar to credit orcause to be credited to Euroclear’s or Clearstream’s account a beneficialinterest in a Regulation S Global Note in a principal amount equal to that ofthe beneficial interest in a Restricted Global Note to be so transferred; (B) awritten order given in accordance with the Applicable Procedures containinginformation regarding the account of Euroclear or Clearstream to be creditedwith, and the account of Euroclear or Clearstream to be debited for, suchbeneficial interest and  (C) acertificate in substantially the form set forth in Exhibit B given by theHolder of such beneficial interest, the principal amount of a Restricted GlobalNote shall be reduced, and the principal amount of a Regulation S Global Noteshall be increased, by the principal amount of the beneficial interest in aRestricted Global Note to be so transferred, in each case by means of anappropriate adjustment on the records of the Registrar and the Registrar shallinstruct the Common Depositary or its authorized representative to make acorresponding adjustment to its records and to credit or cause to be creditedto the account of Euroclear or Clearstream a beneficial interest in aRegulation S Global Note having a principal amount equal to the amount sotransferred.

 

(iii)          *RestrictedGlobal Note to Unrestricted Global Note*.  If the Holder of a beneficial interest in a Restricted GlobalNote wishes at any time to transfer such interest to a Person who wishes totake delivery thereof in the form of a beneficial interest in an UnrestrictedGlobal Note, such transfer may be effected, subject to the ApplicableProcedures, only in accordance with this Section 2.14(b)(iii).  Upon

 

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receiptby the Registrar of (A) written instructions given in accordance with theApplicable Procedures from Euroclear or Clearstream directing the Registrar tocredit or cause to be credited to Euroclear’s or Clearstream’s account abeneficial interest in an Unrestricted Global Note in a principal amount equalto that of the beneficial interest in a Restricted Global Note to be sotransferred, (B) a written order given in accordance with the ApplicableProcedures containing information regarding the account of Euroclear orClearstream to be credited with, and the account of Euroclear or Clearstream tobe debited for, such beneficial interest and (C) a certificate in substantiallythe form set forth in Exhibit C given by the Holder of such beneficialinterest, the principal amount of the Restricted Global Note shall be reduced,and the principal amount of an Unrestricted Global Note shall be increased, bythe principal amount of the beneficial interest in a Restricted Global Note tobe so transferred, in each case by means of an appropriate adjustment on therecords of the Registrar and the Registrar shall instruct the Common Depositaryor its authorized representative to make a corresponding adjustment to itsrecords and to credit or cause to be credited to the account of Euroclear orClearstream a beneficial interest in a Regulation S Global Note having aprincipal amount equal to the amount so transferred.

 

(iv)          *RegulationS Global Note or Unrestricted Global Note to Restricted Global Note*.  If the Holder of a beneficial interest in aRegulation S Global Note or an Unrestricted Global Note wishes at any time totransfer such interest to a Person who wishes to take delivery thereof in theform of a beneficial interest in a Restricted Global Note, such transfer may beeffected, subject to the Applicable Procedures, only in accordance with thisSection 2.14(b)(iv).  Upon receipt bythe Registrar of (A) written instructions given in accordance with theApplicable Procedures from Euroclear or Clearstream directing the Registrar tocredit or cause to be credited to Euroclear’s or Clearstream’s account abeneficial interest in a Restricted Global Note in a principal amount equal tothat of the beneficial interest in a Regulation S Global Note or anUnrestricted Global Note to be so transferred, (B) a written order given inaccordance with the Applicable Procedures containing information regarding theaccount of Euroclear or Clearstream to be credited with, and the account ofEuroclear or Clearstream to be debited for, such beneficial interest and (C)with respect to a transfer of a beneficial interest in a Regulation S GlobalNote (but not an Unrestricted Global Note) to a Person whom the transferorreasonably believes is a “qualified institutional buyer” within the meaning ofRule 144A under the Securities Act, a certificate in substantially the form setforth in Exhibit D given by the Holder of such beneficial interest, theprincipal amount of a Restricted Global Note shall be increased, and theprincipal amount of a Regulation S Global Note or an Unrestricted Global Noteshall be reduced, by the principal amount of the beneficial interest in aRestricted Global Note to be so transferred, in each case by means of anappropriate adjustment on the records of the Registrar and the Registrar shall

 

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instruct the Common Depositary or itsauthorized representative to make a corresponding adjustment to its records andto credit or cause to be credited to the account of the Person specified insuch instructions a beneficial interest in a Restricted Global Note having aprincipal amount equal to the amount so transferred.

 

(v)           *Exchangesof Global Note for Non-Global Note*. In the event that a Global Note or any portion thereof is exchanged forNotes other than Global Notes, such other Notes may in turn be exchanged (ontransfer or otherwise) for Notes that are not Global Notes or for beneficialinterests in a Global Note (if any is then Outstanding) only in accordance withsuch procedures, which shall be substantially consistent with the provisions ofclauses (i) through (iv) above and (vi) below (including the certificationrequirements intended to insure that transfers and exchanges of beneficialinterests in a Global Note comply with Rule 144A, Rule 144 or Regulation S, asthe case may be) and any Applicable Procedures, as may be from time to timeadopted by the Issuer and the Trustee.

 

(vi)          *Interestin Global Note to be Held Through Euroclear or Clearstream*.  Interests in a Global Note may be held onlythrough Agent Members acting for and on behalf of Euroclear and Clearstream,provided that this clause (vi) shall not prohibit any transfer in accordancewith Section 2.14(b)(iv) hereof.

 

(c) ***Legends***.  Each Restricted Note and the Global Noteissued hereunder shall, upon issuance, bear the legends set forth in Exhibit Ahereto that are required to be applied to such a Note and such required legendsshall not be removed from such Note except as provided in the next sentence orSection 2.14(d).  The legend requiredfor a Restricted Note may be removed from a Note if there is delivered to theIssuer and the appropriate Registrar such satisfactory evidence, which mayinclude an opinion of independent counsel licensed to practice law in the Stateof New York, as may be reasonably required by the Issuer that neither suchlegend nor the restrictions on transfer set forth therein are required toensure that transfers of such Note will not violate the registrationrequirements of the Securities Act. Upon provision of such satisfactory evidence, the Trustee, at thedirection of the Issuer, shall authenticate and deliver in exchange for suchNote another security or securities having an equal aggregate principal amountthat does not bear such legend.  If sucha legend required for a Restricted Note has been removed from a Note asprovided above, it shall not be a Restricted Note and no other Note issued inexchange for all or any part of such Note shall bear such legend, unless theIssuer has reasonable cause to believe that such other security is a“restricted security” within the meaning of Rule 144 and instructs the Trusteeto cause a legend to appear thereon.

 

(d) ***Global Notes***.  The provisions of clauses (i), (ii), (iii),and (iv) below shall apply only to Global Notes;

 

(i)            *General*.  Each Global Note authenticated under theIndenture shall be registered in the name of the Common Depositary or a nomineethereof and delivered to the Common Depositary or a nominee thereof orcustodian therefor.

 

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(ii)           *Transferto Persons other than the Common Depositary*.  Notwithstanding any other provision in theIndenture or the Notes, no Global Note may be exchanged in whole or in part forNotes registered, and no transfer of a Global Note in whole or in part may beregistered, in the name of any person other than the Common Depositary or anominee thereof unless (A) in the case of a Global Note, Euroclear andClearstream notify the Issuer that they are unwilling or unable to continue asclearing agencies for such Global Note, and successor clearing agencies are notappointed by the Issuer within ninety (90) days, (B) in the case of a GlobalNote, the Common Depositary notifies the Issuer that it is unwilling or unableto continue as depositary for such Global Note, and a successor Common Depositaryis not appointed by the Issuer within one hundred twenty (120) days or (C) inthe case of any Global Note, an Event of Default has occurred and is continuingwith respect thereto and the owner of a beneficial interest therein requestssuch exchange or transfer.  Any GlobalNote exchanged pursuant to clause (A), (B) or (C) above shall be so exchangedin whole and not in part.  Any Noteissued in exchange for a Global Note shall be a Global Note, provided that anysuch Note so issued that is registered in the name of a Person other than theappropriate Common Depositary or a nominee thereof shall not be a Global Note.

 

(iii)          *GlobalNote to Definitive Note*. Notes issued in exchange for a Global Note pursuant to clause (ii) aboveshall be issued in definitive, fully registered form without interest coupons,shall have an aggregate principal amount equal to that of such Global Note tobe so exchanged, shall be registered in such names and be in such authorizeddenominations as the appropriate depositary shall designate and shall bear anylegends required hereunder.  Any GlobalNote to be exchanged shall be surrendered by the appropriate Common Depositaryto the appropriate Registrar.  Upon anysuch surrender, the Trustee shall authenticate and deliver the Note issuable onsuch exchange to or upon the order of the appropriate Common Depositary or anauthorized representative thereof.

 

(iv)          In the event of the occurrence of anyof the events specified in clause (iii) above, the Issuer will promptly makeavailable to the Trustee a reasonable supply of Certificated Securities indefinitive, fully registered form, without interest coupons.

 

(v)           *NoRights of Agent Members in Global Note*.  No Agent Member of any Common Depositary nor any other Persons onwhose behalf Agent Members may act (including Euroclear and Clearstream andaccount Holders and Participants therein) shall have any rights under theIndenture with respect to any Global Note, or under any Global Note, and eachCommon Depositary or its nominee, as the case may be, may be treated by theIssuer, the Trustee and any agent of the Issuer or the Trustee as the absoluteowner and Holder of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing,

 

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nothing hereinshall prevent the Issuer, the Trustee or any agent of the Issuer or the Trusteefrom giving effect to any written certification, proxy or other authorizationfurnished by the Common Depositary or nominee, or impair, as between Euroclearand Clearstream, their respective Agent Members and any other person on whosebehalf an Agent Member may act, the operation of customary practices of suchPersons governing the exercise of the rights of a Holder of any Note.

 
| **SECTION 2.15** |   | **SPECIAL TRANSFER PROVISIONS.** |
|------------------|--------|----------------------------------|

 

(a) ***Transfers to InstitutionalAccredited Investors***.  IfNotes are being transferred to an Institutional Accredited Investor, the Notesshall be accompanied by delivery of a transferee certificate for InstitutionalAccredited Investors substantially in the form of Exhibit E hereto and anopinion of counsel reasonably satisfactory to the Issuer to the effect thatsuch transfer is in compliance with the Securities Act.

 

(b) ***Other Transfers***.  If a Holder proposes to transfer an Initial Notepursuant to any exemption from the registration requirements of the SecuritiesAct other than as provided for above, the Registrar shall only register suchtransfer or exchange if such transferor delivers to the Registrar and theTrustee an Opinion of Counsel satisfactory to the Issuer and the Registrar thatsuch transfer is in compliance with the Securities Act and the terms of thisIndenture; provided that the Issuer may, based upon the opinion of its counsel,instruct the Registrar by an Issuer Order not to register such transfer in anycase where the proposed transferee is not a QIB, an Institutional AccreditedInvestor or a non-U.S. Person.

 

(c) ***General***.  By its acceptance of any Note bearingLegends, each Holder of such a Note acknowledges the restrictions on transferof such Note set forth in this Indenture and in the Legends and agrees that itwill transfer such Note only as provided in this Indenture.

 

The Registrar shall retain copies of all letters, notices and otherwritten communications received pursuant to this Section 2.15 for a period oftwo years, after which time such letters, notices and other writtencommunications shall at the written request of the Issuer be delivered to theIssuer.  The Issuer shall have the rightto inspect and make copies of all such letters, notices or other writtencommunications at any reasonable time upon the giving of reasonable priorwritten notice to the Registrar.

 
| **SECTION 2.16** |   | **ISSUANCE OF ADDITIONAL NOTES.** |
|------------------|--------|-----------------------------------|

 

The Issuer shall be entitled, subject to its compliance with Section4.05, to issue Additional Notes, from time to time, under this Indenture which(i) in the event Additional Notes are offered and sold in reliance onRegulation S, such Additional Notes shall have identical terms as the InitialNotes issued on the Issue Date, other than with respect to principal amount,the date of issuance, issue price and amount of interest payable on the firstpayment date applicable thereto (and, if such Additional Notes shall be issuedin the form of Unrestricted Notes or Unrestricted Global Notes, other than withrespect to transfer restrictions) and (ii) in the event Additional Notes areoffered and sold in reliance on Rule 144A, such Additional Notes shall beissued in the form of a Global Note (the “Restricted Global Note”) in fullyregistered form 

 

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without interest coupons, with such applicable legends as are providedfor in Exhibit A hereto, except as otherwise permitted herein, such AdditionalNotes shall have identical terms as the Initial Notes issued on the Issue Date,other than with respect to principal amount, the date of issuance, issue priceand amount of interest payable on the first payment date applicable thereto(and, if such Additional Notes shall be issued in the form of UnrestrictedNotes or Unrestricted Global Notes, other than with respect to transferrestrictions).  The Initial Notes issuedon the Issue Date and any Additional Notes shall be treated as a single classfor all purposes under this Indenture. The Issuer acknowledges that any issue of Additional Notes will be madepursuant to a new offering memorandum and subject to review by the LuxembourgStock Exchange.

 

With respect to any Additional Notes, the Issuer shall set forth in aresolution of the Supervisory Board and an Officers’ Certificate, a copy ofeach of which shall be delivered to the Trustee, the following information:

 

(i)            the aggregateprincipal amount of such Additional Notes to be authenticated and deliveredpursuant to this Indenture;

 

(ii)           the issue price, theissue date, the CUSIP and/or ISIN number of such Additional Notes and theamount of interest payable on the first payment date applicable thereto; and

 

(iii)          whether such AdditionalNotes shall be Restricted Definitive Notes or Restricted Global Notes andissued in the form of Initial Notes or shall be issued in the form ofUnrestricted Definitive Notes or Unrestricted Global Notes.

 
| **SECTION 2.17** |   | **[INTENTIONALLY LEFT BLANK]**          |
|------------------|--------|-----------------------------------------|
|             |   |                                    |
| **SECTION 2.18** |   | **PAYING AGENT TO HOLD MONEY IN TRUST** |

 

Each of the Issuer and the Subsidiary Guarantor, without prejudice toits contractual obligations under the Intercreditor Deed, shall require eachPaying Agent not a party to this Indenture to agree in writing to hold in trustfor the benefit of Holders or the Trustee all money held by the Paying Agentfor the payment of principal of or premium, if any, and Additional Amounts, ifany, on the Notes (whether such money has been paid to it by the Issuer, theSubsidiary Guarantor or any other obligor on the Notes), and the Issuer, theSubsidiary Guarantor and the Paying Agent shall each notify the Trustee of anydefault by the Issuer, the Subsidiary Guarantor or any other obligor on theNotes in making any such payment. Neither the Issuer, the Subsidiary Guarantor nor any of its Subsidiariesmay act as Paying Agent.  The Issuer orthe Subsidiary Guarantor (as the case may be) at any time may require a PayingAgent to pay all money held by it to the Trustee and account for any fundsdisbursed and the Trustee may at any time during the continuance of any paymentdefault, upon written request to a Paying Agent, require such Paying Agent topay all money held by it to the Trustee and to account for any funds disbursed.  Upon making such payment the Paying Agentshall have no further liability for the money delivered to the Trustee.

 

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| **SECTION 2.19** |   | **TRUSTEE’S REQUIREMENTS REGARDING PAYING AGENTS** |
|------------------|--------|---------------------------------------------------------|

 

As any time after an Event of Default shall have occurred and shall becontinuing or the Notes shall otherwise have become due and repayable or theTrustee shall have received any money which it proposes to pay under Section6.10 to the Holders, the Trustee may:

 

(a) by notice in writing to theIssuer, the Subsidiary Guarantor, the Paying Agent and the Registrar require:

 

(i)            (1) The Paying Agent pursuant to the Agency Agreement to act thereafter asPaying Agent of the Trustee in relation to payments to be made by or on behalfof the Trustee under the provisions of this Indenture mutatis mutandis on theterms provided in the Agency Agreement (save that the Trustee’s liability underany provisions thereof for the indemnification, remuneration and payment ofout-of-pocket expenses of the Paying Agent shall be limited to the amounts forthe time being held by the Trustee on the trusts of this Indenture relating tothe relative Notes and available for such purpose) and thereafter to hold allNotes and all sums, documents and records held by it in respect of Notes onbehalf of the Trustee; and/or

 

(2)  The Registrar, subject to applicable law, to act thereafterpursuant to the Agency Agreement only with the prior written consent of theTrustee (such consent not to be unreasonably withheld or delayed) and thereafterto hold all Notes and all sums, documents and records held by it in respect ofNotes as the Trustee may request in writing from time to time; or

 

(ii)           the Paying Agent to deliver up allNotes all sums, documents and records held by it in respect of Notes to theTrustee or as the Trustee shall direct in such notice provided that such noticeshall be deemed not to apply to any documents or records which the Paying Agentis obliged not to release by any law or regulation; and

 

(b) by notice in writing to theIssuer and the Subsidiary Guarantor require the Issuer and the SubsidiaryGuarantor to make all subsequent payments in respect of the Notes to or to theorder of the Trustee and not to the Paying Agent with effect from the issue ofany such notice to the Issuer and the Subsidiary Guarantor and until suchnotice is withdrawn the references in Section 4.03 to the Paying Agent shallcease to have effect.

 
| **SECTION 2.20** |   | **STATUS** |
|------------------|--------|------------|

 

The Notes and the Subsidiary Guarantee are Senior SubordinatedIndebtedness obligations of the Issuer and the Subsidiary Guarantorrespectively and rank pari passu in right of payment with all present andfuture Senior Subordinated Indebtedness of the Issuer and the SubsidiaryGuarantor respectively.

 

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| **SECTION 2.21** |   | **PROOF** |
|------------------|--------|-----------|

** **

Proof that as regards any specified Note the Issuer has made default inpaying any amount due in respect of such Note shall (unless the contrary beproved) be sufficient evidence that the same default has been made as regardsall other Notes in respect of which the relevant amount is due and payable.

 
| **SECTION 2.22** |   | **REDENOMINATION IN GUILDERS** |
|------------------|--------|--------------------------------|

 

The Issuer may, without the consent of the Holders, on giving at least30 days’ prior notice to the Trustee and the Holders, elect that, with effecton and from the Redenomination Date specified in the notice, the Notes shall beredenominated in Dutch guilders (“**Guilders**”)..  The election will have effect asfollows:

 

(a) with effect on and from theRedenomination Date, each €1,000 in principal amount of the Notes will bedeemed to be denominated in such amount of Guilders as is equivalent to itsdenomination in Euro at the Established Rate, subject to such provisions (ifany) as to rounding up or down (and payments in respect of fractions consequenton rounding) as the Issuer may decide, with the prior written approval of theTrustee (which approval shall not be unreasonably withheld), which shall bespecified in the notice;

 

(b) on and after theRedenomination Date, all payments in respect of the Notes will be made solelyin Guilders,  including payments ofinterest in respect of the interest period commencing immediately before theRedenomination Date, as though references in the Notes and the Indenture to Eurowere to Guilders; and

 

(c) with effect on and from theRedenomination Date, such changes shall be made to this Indenture and theAgency Agreement as the Issuer may decide, with the prior written approval ofthe Trustee (which approval shall not be unreasonably withheld) and (in thecase of the Agency Agreement) the Paying Agent, which shall be specified in thenotice, to conform them to conventions then applicable to the issue, terms andconditions or trading of instruments denominated in Guilders or to enable theNotes to be consolidated with one or more issues of other notes of the Issuer,if any, whether or not originally denominated in Euro.

 

The Issuer may also, without the consent of the Holders, on giving notless than 30 days’ prior notice to the Trustee and the Holders, elect that,with effect on and from the Redenomination Date or such later date for paymentof interest under the Notes as it may specify in the notice, the Notes shall beexchangeable for Notes expressed to be denominated in Guilders in accordancewith such arrangements as the Issuer may decide, with the prior writtenapproval of the Trustee (which approval shall not be unreasonably withheld),which shall be specified in the notice.

 

Nothing in this Section 2.22 nor the circumstances and consequencesdescribed in this section shall entitle the Issuer, the Subsidiary Guarantor orany holder of Notes to early redemption, rescission, notice or repudiation ofthe Notes or this Indenture or to raise other defences or to request any compensationclaim, nor will they affect any of the other obligations of the Issuer or theSubsidiary Guarantor under the Notes or this Indenture.

 

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**ARTICLEIIIREDEMPTION OF NOTES**

 
| **SECTION 3.01** |   | **RIGHT OF REDEMPTION.** |
|------------------|--------|--------------------------|

 

(a) **Optional Redemption of the Notes**

 

The Notes will be redeemable at the option ofthe Issuer, in whole or in part, at any time or from time to time on or afterJuly 15, 2004, upon not less than 30 nor more than 60 days’ prior notice, atthe Redemption Prices (expressed as a percentage of principal amount atmaturity) set forth below, plus accrued and unpaid interest thereon, if any, tothe date of redemption, if redeemed during the 12 month period beginning onJuly 15 of the years indicated below:

 

 

| **Year**             |   | **Redemption Price** |   |
|----------------------|--------|----------------------|--------|
| 2004                 |   | 105.313              | %      |
| 2005                 |   | 103.542              | %      |
| 2006                 |   | 101.771              | %      |
| 2007 and  thereafter |   | 100.000              | %      |

 

(b) [**Intentionally left blank**]

 

(c) **Other Optional Redemption of the Notes**

 

At any time on or prior to July 15, 2004, theNotes may be redeemed, as a whole but not in part, at the option of the Issuer,upon not less than 30 nor more than 60 days’ prior notice mailed by first-classmail to each holder’s registered address, at a Redemption Price equal to 100%of the principal amount thereof plus the Interest Bearing Note ApplicablePremium as of, and accrued but unpaid interest, if any, to the Redemption Date,subject to the right of holders on the relevant record date to receive interestdue on the relevant interest payment date.

 

(d) **Redemption For Changes In Withholding Taxes**

 

The Issuer, at its option, may redeem theNotes of each series in whole, but not in part, at any time upon giving notless than 30 nor more than 60 days’ notice to the holders of the Notes (whichnotice shall be irrevocable), at a Redemption Price equal to the principalamount thereof plus accrued and unpaid interest if any, to the Redemption Datefixed by the Issuer and all Additional Amounts, if any, then due and which willbecome due on such Redemption Date as a result of the redemption or otherwise,if the Issuer determines that as a result of:

 

(i)            any change in, oramendment to, the law or treaties (or any regulations or rulings promulgatedthereunder) of the Relevant Taxing Jurisdiction (as defined in Section 4.19) affectingtaxation which becomes effective on or after the Issue Date,

 

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(ii)           any change in positionregarding the application, administration or interpretation of such laws,treaties, regulations or rulings (including a holding, judgment or order by acourt of competent jurisdiction or any change in any practice or concession ofthe taxing authority regarding the foregoing), which change in position becomeseffective on or after the Issue Date, or

 

(iii)          the issuance ofdefinitive certified Notes due to the Common Depositary being at any timeunwilling or unable to continue as a common depositary and a successor commondepositary is not able to be appointed by the Issuer within 120 days of suchnotice,

 

the Issuer or the Subsidiary Guarantor is, or on the next interestpayment date in respect of the Notes would be, required to pay AdditionalAmounts, and the Issuer determines that such payment obligation cannot beavoided by the Issuer or the Subsidiary Guarantor, as the case may be, takingreasonable measures.  Notwithstandingthe foregoing, no such notice of redemption shall be given earlier than 90 daysprior to the earliest date on which the Issuer or the Subsidiary Guarantor, asthe case may be, would be obliged to make such payment or withholding if apayment in respect of the Notes were then due. Prior to the publication or, where relevant, mailing of any notice ofredemption of the Notes pursuant to the foregoing, the Issuer will deliver tothe Trustee an opinion of a tax counsel reasonably satisfactory to the Trusteeto the effect that the circumstances referred to above exist.  The Trustee shall accept such opinion assufficient evidence of the satisfaction of the conditions precedent describedabove, in which event it shall be conclusive and binding on the holders of theNotes.

 
| **SECTION 3.02** |   | **NOTICES TO TRUSTEE** |
|------------------|--------|------------------------|

 

If the Issuer elects to redeem Notes pursuant to Section 3.01(a) at theapplicable Redemption Price set forth therein, it shall notify the Trustee andthe Paying Agent in writing of the Redemption Date and the principal amount ofNotes to be so redeemed.

 

The Issuer shall give the notice provided for in Section 3.01 at least75 days before the Redemption Date (unless a shorter notice shall be agreed toby the Trustee in writing), together with an Officer’s Certificate stating thatsuch redemption will comply with the conditions contained herein.

 
| **SECTION 3.03** |   | **SELECTION OF NOTES TO BE REDEEMED** |
|------------------|--------|---------------------------------------|

 

In the event that less than all of the Notes are to be redeemed at anytime, selection of such Notes for redemption will be made by the Trustee incompliance with the requirements of the principal securities exchange, if any,on which such Notes are listed or, if such Notes are not listed on a securitiesexchange, on a pro rata basis, by lot or by such method as the Trustee shallapprove in writing in advance.

 
| **SECTION 3.04** |   | **NOTICE OF REDEMPTION** |
|------------------|--------|--------------------------|

 

At least 30 days but not more than 60 days before a Redemption Date,notice of redemption shall be published in a leading newspaper having a generalcirculation in

 

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London (which is expected to be the Financial Times) and, so long asthe Notes are listed on the Luxembourg Stock Exchange and the rules of such StockExchange shall so require, a newspaper having a general circulation inLuxembourg (which is expected to be the Luxemburger Wort) and notified by firstclass mail to the Holder of any Global Note to be redeemed at its registeredaddress with a copy to the Trustee.  Onand after the Redemption Date, interest will cease to accrue on Notes orportions thereof called for redemption as long as the Issuer has deposited withthe Paying Agent funds in satisfaction of the applicable Redemption Pricepursuant to Section 3.06.

 

The notice shall identify the Notes to be redeemed and shall state:

 

(a) the Redemption Date;

 

(b) the Redemption Price andthe amount of accrued interest to the Redemption Date;

 

(c) the CUSIP or CINS number,if any;

 

(d) the name and address of thePaying Agent to which the Notes are to be surrendered for redemption;

 

(e) that Notes called forredemption must be surrendered to the Paying Agent to collect the RedemptionPrice and accrued interest, if any;

 

(f) that, unless the Issuer andthe Subsidiary Guarantor default in making the redemption payment, interest onNotes called for redemption ceases to accrue on and after the Redemption Dateand the only remaining right of the Holders is to receive payment of theRedemption Price upon surrender to the Paying Agent;

 

(g) the aggregate principalamount of the Notes to be redeemed and the aggregate principal amount of theNotes which will be outstanding after the partial redemption;

 

(h) if any Global Note is beingredeemed in part, the portion of the principal amount of such Note to beredeemed and that, after the Redemption Date, upon surrender of such GlobalNote, the Global Note with a notation on Schedule A thereof adjusting theprincipal amount thereof to be equal to the unredeemed portion, will bereturned; and

 

(i) if any Note is beingredeemed in part, the portion of the principal amount of such Note to beredeemed and that, after the Redemption Date, upon surrender of such Note, anew Note or Notes in principal amount equal to the unredeemed portion thereofwill be issued.

 

On receipt of an Issuer Request, the Trustee shall give the notice ofredemption on behalf of the Issuer, in the name of the Issuer and at theIssuer’s expense.

 
| **SECTION 3.05** |   | **EFFECT OF NOTICE OF REDEMPTION** |
|------------------|--------|------------------------------------|

 

Once a notice of redemption is mailed and/or published, Notes calledfor redemption shall become due and repayable on the specified Redemption Dateand at the specified Redemption Price. Upon surrender to the Paying Agent, Notes shall be paid

 

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at the specified Redemption Price, plus accrued interest thereon to theRedemption Date.

 
| **SECTION 3.06** |   | **DEPOSIT OF REDEMPTION PRICE** |
|------------------|--------|---------------------------------|

 

At least one Business Day before the Redemption Date, the Issuer shalldeposit with the Paying Agent money sufficient to pay the Redemption Price ofand accrued interest on all Notes to be redeemed on that date other than Notesor portions thereof called for redemption on that date which have beendelivered by the Issuer to the Trustee for cancellation.

 

**ARTICLEIVCOVENANTS**

 
| **SECTION 4.01** |   | **GENERAL** |
|------------------|--------|-------------|

 

So long as any of the Notes remains outstanding (or, in the case ofparagraphs (g), (h) (in relation to the Paying Agent only), (k) (in relation tothe Paying Agent only), (l) and (n) (in relation to the Paying Agent only), solong as any of the Notes remains liable to prescription or, in the case ofparagraph (m), until the expiry of a period of 30 days after the Relevant Datein respect of the payment of principal in respect of all such Notes remainingoutstanding at such time) each of the Issuer and the Subsidiary Guarantor (solong as the Subsidiary Guarantor remains subject to its Subsidiary Guarantee)covenant with the Trustee that it shall:

 

(a) give or procure to be givento the Trustee such opinions, certificates, reports, information and evidenceas it shall require and in such form as it shall properly require (includingwithout limitation the procurement by the Issuer or the Subsidiary Guarantor ofall such Officers’ Certificates called for by the Trustee pursuant to Section7.02) for the purpose of the discharge or exercise of the duties, trusts,powers, authorities and discretions vested to it under this Indenture or byoperation of law;

 

(b) use all reasonableendeavours to cause to be prepared and certified by the Auditors in respect ofeach financial accounting period accounts in such form as will comply with allrelevant legal and accounting requirements and all requirements for the timebeing of the Luxembourg Stock Exchange and/or such other stock exchange onwhich the Notes are listed;

 

(c) at all times keep andprocure its Subsidiaries to keep proper books of account and, following theoccurrence of a Default or an Event of Default or if the Trustee has reasonablegrounds to believe that a Default or an Event of Default has occurred or isabout to occur, upon the prior written request of the Trustee, allow andprocure its Restricted Subsidiaries to allow the Trustee and any personappointed by the Trustee to whom the Issuer, the Subsidiary Guarantor or therelevant Restricted Subsidiary (as the case may be) shall have no reasonableobjection free access to such books of account during normal business hours;

 

(d) send to the Trustee (i) (inaddition to any copies to which it may be entitled as a holder of any Notes ofthe Issuer) every document issued or sent to holders of its securities (otherthan its shareholders but including the Holders) as a class in their capacityas such after the issue or publication thereof and (ii) from such date asshares

 

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or common stock of the Issuershall become listed on a stock exchange, every document issued or sent to itsshareholders as a class, in their capacity as such;

 

(e) send to the Trustee (i)within seven days after demand by the Trustee therefor and (ii) (without thenecessity for any such demand) promptly after the publications of its auditedaccounts in respect of each financial period commencing with the financialperiod ended December 31, 1999 and in any event not later than 120 days afterthe end of each such financial period an Officers’ Certificate to the effectthat as at a date not more than seven days before delivering such certificate(the “relevant date”) there did not exist and had not existed since therelevant date of the previous certificate (or in the case of the first suchcertificate the date hereof) any Default or any Event of Default (or if suchexists or existed specifying the same, the status thereof and the action the Issueror the Subsidiary Guarantor (as the case may be) is taking or proposes to takewith respect thereto), and the Issuer shall also comply with §314(a)(4) of theTIA;

 

(f) at all times maintain thePaying Agent, and a Registrar in accordance with the Agency Agreement;

 

(g) procure the Paying Agent tonotify the Trustee forthwith in the event that it does not, on or before thedue date for any payment in respect of the Notes or any of them, receiveunconditionally pursuant to the Agency Agreement payment of the full amount inthe requisite currency of the moneys payable on such due date on all suchNotes;

 

(h) in the event of theunconditional payment to the Paying Agent or the Trustee of any sum due inrespect of the Notes or any of them being made after the due date for paymentthereof forthwith give or procure to be given notice to the relevant Holderthat such payment has been made;

 

(i) use all best endeavours tomaintain the listing of the Notes on the Luxembourg Stock Exchange or, if it isunable to do so having used all best endeavours, use all best endeavours toobtain and maintain a quotation or listing of the Notes on such other stockexchange or exchanges or securities market or markets as the Issuer may (withthe prior written approval of the Trustee), decide and shall also uponobtaining a quotation or listing of the securities on such other stock exchangeor exchanges or securities market or markets enter into a supplementalindenture to effect such consequential amendments to this Indenture as shall benecessary to comply with the requirements of any such stock exchange orsecurities market, provided that the Issuer may seek an alternative listing forthe Notes other than the Luxembourg Stock Exchange in order to avoid theimposition of withholding tax on the Notes by reason of the introduction ofwithholding tax rules on member states of the European Union, provided further,that in such event the Issuer shall use its best endeavours to obtain andmaintain a listing of the Notes on a stock exchange in such country locatedoutside the European Union and such stock exchange is approved in advance inwriting by the Trustee;

 

(j) give notice to the Holdersof any appointment, resignation or removal of any Paying Agent or Registrar(other than the appointment of the initial Paying Agent and Registrar) afterhaving obtained the prior written approval of the Trustee thereto or any changeof any paying Agent’s or Registrar’s specified office and (except as

 

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provided by the AgencyAgreement or this Indenture) not more than 60 nor less than 45 days prior tosuch event taking effect; PROVIDED ALWAYS THAT so long as any of the Notesremains outstanding in the case of the termination of the appointment of the Registraror so long as any of the Notes remains liable to prescription in the case ofthe termination of the appointment of the Paying Agent no such terminationshall take effect until a new Registrar or Paying Agent (as the case may be)has been appointed on terms previously approved in writing by the Trustee;

 

(k) obtain the prior writtenapproval of the Trustee to, and promptly give to the Trustee two copies of theform of every notice given to the Holders (such approval, unless so expressed,not to constitute approval for the purposes of Section 57 of the FinancialServices Act 1986 of the United Kingdom of any such notice which is aninvestment advertisement (as therein defined));

 

(l) if payments of principal orinterest in respect of the Notes by the Issuer or the Subsidiary Guarantorshall become subject generally to the taxing jurisdiction of any territory orany political subdivision or any authority therein or thereof having power totax other than or in addition to The Netherlands or any such politicalsubdivision or any such authority therein or thereof, immediately upon becomingaware thereof notify the Trustee of such event and (unless the Trusteeotherwise agrees) enter forthwith into a supplemental indenture, giving to theTrustee an undertaking or covenant in form and manner satisfactory to theTrustee in terms corresponding to the terms of Section 4.19 with thesubstitution for (or, as the case may be, the addition to) the referencestherein to The Netherlands or any political subdivision or any authoritytherein or thereof having power to tax of reference to that other or additionalterritory or any political subdivision or any authority therein or thereofhaving power to tax to whose taxing jurisdiction such payments shall havebecome subject as aforesaid, such supplemental indenture also to modify theparagraph “Redemption for Changes in Withholding Taxes” of the Notes so thatsuch paragraph shall make reference to the other or additional territory, anypolitical subdivision or any authority therein or thereof having power to taxand to make such consequential changes (if any) to the terms of Section 4.19 asmay be necessary;

 

(m) comply with and perform allits obligations under the Agency Agreement and procure that the Paying Agentand the Registrar comply with and perform all their respective obligationsthereunder and not make any amendment or modification to such Agreement withoutthe prior written approval of the Trustee;

 

(n) in order to enable theTrustee to ascertain the principal amount of Notes for the time beingoutstanding for any of the purposes referred to in the proviso to thedefinition of “outstanding”, deliver to the Trustee forthwith upon being sorequested in writing by the Trustee an Officers’ Certificate setting out the totalnumber and aggregate principal amount of Notes which:

 

(i)            up to and including the date of suchcertificates have been redeemed by the Issuer and cancelled; and

 

(ii)           are at the date of such certificateheld by, for the benefit of, or on behalf of, the Issuer, the SubsidiaryGuarantor or any Subsidiary of the Issuer or the Subsidiary Guarantor;

 

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(o) instruct the Auditors toprovide to the Trustee at the same time as sending to it the certificates referredto in paragraph (e) above, a certificate of the Auditors listing those membersof the Group which as at the relevant date (as defined in paragraph (e) above)of the relevant certificate given under paragraph (e) above or, as the case maybe, as at the last day of the most recently ended financial period of theSubsidiary Guarantor, were Significant Subsidiaries; and

 

(p) instruct the Auditors toprovide to the Trustee, as soon as reasonably practicable after the acquisitionor disposal of any Subsidiary of the Issuer which thereby becomes or ceases tobe a Significant Subsidiary or after any transfer is made to any members of theGroup which thereby becomes a Significant Subsidiary, a certificate of theAuditors to such effect.

 
| **SECTION 4.02** |   | **MAINTENANCE OF OFFICE OR AGENCY; EXCHANGE LISTING** |
|------------------|--------|-------------------------------------------------------|

** **

The Issuer shall maintain in the Borough of Manhattan, The City of NewYork, and for so long as the Notes are listed on the Luxembourg Stock Exchangein Luxembourg, an office or agency where Notes may be surrendered forregistration of transfer or exchange. The Issuer shall give prompt written notice to the Trustee of thelocation, and any change in the location, of such office or agency.  If at any time the Issuer shall fail tomaintain any such required office or agency or shall fail to furnish theTrustee with the address thereof, such surrenders may be made at the address ofthe Trustee set forth in Section 13.02.

 

The Issuer may also from time to time designate one or more otheroffices or agencies where the Notes may be surrendered for any or all suchpurposes and may from time to time rescind such designations provided that nosuch designation or rescission shall in any manner relieve the Issuer of itsobligation to maintain an office or agency in the Borough of Manhattan, TheCity of New York and for so long as the Notes are listed on the LuxembourgStock Exchange in Luxembourg, for such purposes.  The Issuer shall give prompt written notice to the Trustee of anysuch designation or rescission and of any change in the location of any suchother office or agency.

 

The Issuer hereby designates (i) the New York City office of The Bankof New York as its office or agency in the Borough of Manhattan, New York City,and (ii) Kredietbank S.A. Luxembourgeoise, at 43 Boulevard Royal, 2955,Luxembourg, as its office or agency in Luxembourg.

 
| **SECTION 4.03** |   | **PAYMENT OF NOTES.** |
|------------------|--------|-----------------------|

 

The Issuer shall promptly pay the principal of and interest onAdditional Amounts on the Notes on the dates and in the manner provided in theNotes and in this Indenture. Principal and interest shall be considered paid onthe date due if on such date the Trustee or the Paying Agent holds inaccordance with this Indenture money sufficient to pay all principal andinterest then due and the Trustee or the Paying Agent, as the case may be, isnot prohibited from paying such money to the Holders on that date pursuant tothe terms of this Indenture.

 

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The Issuer shall pay interest on overdue principal at the ratespecified therefor in the Notes, and it shall pay interest on overdueinstalments of interest at the same rate, in each case, to the extent lawful.

 

The Trustee shall hold these covenants on trust for itself and theHolders in accordance with their respective interests pursuant to thisIndenture.

 
| **SECTION 4.04** |   | **FINANCIAL REPORTS.** |
|------------------|--------|------------------------|

 

Whether or not the Issuer is required by the SEC, Issuer will provideto the Trustee and the Holders of the Notes within the time periods specifiedin the SEC’s Rules and Regulations (unless otherwise noted):

 

(a) within 120 days after theend of the Issuer’s fiscal year, all annual financial information that would berequired under Form 20–F (including a “Management’s Discussion and Analysis”and, in relation to the annual financial statements therein only, a reportthereon by the Issuer’s accountants); and

 

(b) within 60 days after theend of each of the Issuer’s fiscal quarters, commencing with the quarter endedSeptember 30, 1999, all quarterly financial statements that would be requiredby Form 10–Q (in GAAP with a footnote reconciliation to US GAAP, *provided*that such reconciliation need notbe provided for any period ending on or before December 31, 1999.) if theIssuer were subject to such Form (including a Financial Review consisting of adiscussion of (1) the financial condition and results of operations of theIssuer and material changes between the current quarterly period and thequarterly period of the prior year and (2) material developments in thebusiness of the Issuer, and (3) financial developments and trends in thebusiness in which the Issuer is engaged; and

 

(c) the following informationin current reports on Form 8–K that would be required to be filed with the SECif the Issuer were required to file such reports:  all the information set forth in items (1) through (6) and (8);with respect to item 7, an unaudited *proforma*balance sheet as of a recent date of the Issuer giving effectto the acquired business and an unaudited pro forma income statement (whichincome statement shall suffice so long as it permits the calculation of EBITDAin accordance with GAAP) for the fiscal year recently ended and for the mostrecent quarter of the Issuer giving effect to the acquired business, in eachcase all such information above to be provided within the time periodsapplicable to each item in Form 8–K and the general instructions thereto.

 

The information set forth in paragraphs (b) and (c) above shall befiled with the SEC on Form 6–K.  Inaddition, whether or not required by the rules and regulations of the SEC, theIssuer will file a copy of all such information and reports with the SEC forpublic availability (unless the SEC will not accept such filing).

 

Insofar as the information set forth in paragraphs (a) through (c)above constitutes financial information, such paragraphs will be satisfied byproviding the relevant financial information of the Parent for so long as theIssuer constitutes the principal asset of the Parent.

 

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For so long as the Notes are listed on the Luxembourg Stock Exchangeand the rules of that Stock Exchange shall so require, the above informationwill also be made available in Luxembourg through the offices of the PayingAgent in Luxembourg.

 
| **SECTION 4.05** |   | **LIMITATION ON INDEBTEDNESS.** |
|------------------|--------|---------------------------------|

 

(a) The Issuer will not, andwill not permit any Restricted Subsidiary to, directly or indirectly, create,incur, assume, guarantee, acquire or otherwise become directly or indirectlyliable for payment of (“**Incur**”)any Indebtedness including Acquired Indebtedness; provided, however, that theIssuer or any Restricted Subsidiary may Incur Indebtedness if, on the date ofsuch incurrence and after giving effect thereto on a pro forma basis, theConsolidated Coverage Ratio would be equal to or greater than 2.0 to 1.0.

 

(b) Notwithstanding theforegoing paragraph (a), the Issuer and the Restricted Subsidiaries may Incurany or all of the following Indebtedness:

 

(i)            Indebtedness Incurred by the Issueror any Restricted Subsidiary pursuant to the Senior Credit Agreement; provided,that, after giving effect to any such Incurrence, the aggregate principalamount of such Indebtedness then outstanding does not exceed NLG 1,700 million;

 

(ii)           Indebtedness owed to and held by theIssuer or any Restricted Subsidiary; provided, however, that (A) any subsequentissuance or transfer of any Capital Stock which results in any such RestrictedSubsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer ofsuch Indebtedness (other than to the Issuer or a Restricted Subsidiary) shallbe deemed, in each case, to constitute the Incurrence of such Indebtedness and(B) if the Issuer is the obligor on such Indebtedness, the payment of suchIndebtedness is expressly subordinate to the prior payment in full in cash ofall obligations with respect to the Notes;

 

(iii)          Indebtedness under the Notes (otherthan the Additional Notes) and the Subsidiary Guarantee (other than in respectof the Additional Notes) and the Existing Notes (other than the additionalnotes under the 1999 Indentures) and related guarantees thereof;

 

(iv)          other Indebtedness, including theBeheer Shareholder Loan, outstanding on the Existing Notes Issue Date and anyaccrued but unpaid interest thereon as of the date of this Indenture;

 

(v)           Refinancing Indebtedness in respectof Indebtedness Incurred pursuant to paragraph (a) above (or Section 4.05(a) ofthe 1999 Indentures) or pursuant to clause (iii) or (iv), or this clause (v)(or clauses (iii), (iv) or (v) of section 4.05(b) of the 1999 Indentures);provided, however, that if such Refinancing Indebtedness directly or indirectlyrefinances Indebtedness of a Restricted Subsidiary, such RefinancingIndebtedness shall be Incurred only by such Restricted Subsidiary;

 

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(vi)          Hedging Obligations that are incurredfor the purpose of fixing or hedging interest rate risk with respect to anyfloating or fixed rate Indebtedness that is permitted by the terms of the 1999Indentures and the incurrence of Indebtedness under other hedging agreementsproviding protection against fluctuations in currency values or in the price ofenergy, commodities and raw materials in connection with the Issuer’s or any ofits Restricted Subsidiaries’ operations so long as management of the Issuer orsuch Restricted Subsidiary has determined that entering into such other hedgingagreements are bona fide hedging activities, are not for speculative purposesand are consistent with reasonable and customary industry practice;

 

(vii)         Indebtedness, including, CapitalisedLease Obligations and purchase money Indebtedness, incurred by the Issuer orits Restricted Subsidiaries to finance all or any part of the acquisition ofproperty (real or personal) or equipment or capital expenditures (whetherthrough the direct purchase of assets or the indirect purchase of assets, suchas through the purchase of the Capital Stock of any Person owning such assets),and Indebtedness incurred by the Issuer or its Restricted Subsidiaries torefinance such Indebtedness, in an aggregate outstanding principal amountwhich, when added together with the amount of Indebtedness incurred pursuant tothis clause (vii) (and Section 4.05(b)(vii) of the 1999 Indentures) and thenoutstanding, does not exceed NLG 230 million at any time;

 

(viii)        Indebtedness in respect of performancebonds, bankers’ acceptances, surety or appeal bonds or completion guaranteesprovided by the Issuer or any of its Restricted Subsidiaries in the ordinary courseof business;

 

(ix)           any Guarantee by:  (x) the Issuer of Indebtedness or otherobligations of any of the Restricted Subsidiaries and (y) any RestrictedSubsidiary of Indebtedness or other obligations of the issuer or anotherRestricted Subsidiary; *provided*,that in each case such Indebtedness is not prohibited by the terms of thisIndenture;

 

(x)            the incurrence of Indebtedness by aReceivables Subsidiary in a Qualified Receivables Transaction that isnon-recourse to the Issuer or any of its Restricted Subsidiaries (except forStandard Securitisation Undertakings); *provided*,that the aggregate amount of Indebtedness outstanding under this Clause (x) andClauses (i) and (xvi) does not exceed NLG 1,900 million;

 

(xi)           the accrual of interest, theaccretion or amortisation of original issue discount, the payment of intereston any Indebtedness in the form of additional Indebtedness with the same terms,and the payment of dividends on Disqualified Stock in the form of additionalshares of the same series of Disqualified Stock will not be deemed to be anincurrence of Indebtedness for purposes of this covenant;

 

(xii)          Parent Subordinated Indebtedness;

 

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(xiii)         Indebtedness arising from agreements ofthe Issuer or a Restricted Subsidiary providing for indemnification, adjustmentof purchase price or similar obligations, in each case, incurred or assumed inconnection with the disposition of any business, assets or a Subsidiary otherthan guarantees of Indebtedness incurred by any Person acquiring all or aportion of such business, assets or a subsidiary for the purpose of financingsuch acquisition; *provided*, that(a) such Indebtedness is not reflected on the balance sheet of the Issuer orany Restricted Subsidiary (contingent obligations referred to in a footnote tofinancial statements and not otherwise reflected on such balance sheet will notbe deemed to be reflected on such balance sheet for purposes of this clause(a)) and (b) the maximum assumable liability in respect of all suchIndebtedness shall at no time exceed the gross proceeds including non-cashproceeds (the fair market value of such non-cash proceeds being measured at thetime received and without giving effect to any subsequent changes in value) actuallyreceived by the Parent, the Issuer and its Restricted Subsidiaries inconnection with such disposition;

 

(xiv)        guarantees granted in the ordinarycourse of business in favour of an Approved Bank (as defined in the SeniorCredit Agreement) to facilitate the operation of bank accounts of the Parentand its Subsidiaries maintained with such Approved Bank on a net balance basiswhere such balances arise in connection with ordinary banking arrangements tomanage the cash balances of the Parent and its Subsidiaries as a group and notfor the purpose of obtaining net external financing;

 

(xv)         any Indebtedness arising under BACSfacilities entered into in the ordinary course of business; and

 

(xvi)        additional Indebtedness of the Issuer orany of its Restricted Subsidiaries in an aggregate principal amount which doesnot exceed NLG 170 million at any one time outstanding.

 

(c) Notwithstanding theforegoing, the Issuer or any Restricted Subsidiary shall not Incur anyIndebtedness pursuant to the foregoing paragraph (b) if the proceeds thereofare used, directly or indirectly, to refinance any Subordinated Obligations,unless such Indebtedness shall be subordinated to the Notes to at least thesame extent as such Subordinated Obligations.

 

(d) For purposes of determiningcompliance with this Section 4.05, (1) in the event that an item ofIndebtedness meets the criteria of more than one of the types of Indebtednessdescribed in Sections 4.05(a) or (b) above, the Issuer, in its sole discretion,will classify or, from time to time may reclassify, such item of Indebtednessand only be required to include the amount and type of such Indebtedness in oneof the clauses of sections 4.05(a) or (b) and (2) an item of Indebtedness maybe divided and classified under more than one of the types of Indebtednessdescribed above.

 

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(e) Notwithstanding Sections4.05(a) and 4.05(b), none of the Issuer, nor any Restricted Subsidiary shallIncur any Indebtedness if such Indebtedness is contractually subordinate orjunior in right of payment in any respect to any Senior Indebtedness, unlesssuch Indebtedness is *pari passu*withor is expressly subordinated in right of payment to Senior SubordinatedIndebtedness.

 

(f) Notwithstanding Sections4.05(a) and 4.05(b), the Subsidiary Guarantor shall Incur any Indebtedness ifsuch Indebtedness is contractually subordinate or junior in right of payment inany respect to any Senior Indebtedness, unless such Indebtedness is SeniorSubordinated Indebtedness or is expressly subordinated in right of payment toSenior Subordinated Indebtedness.

 

(g)Indebtedness shall not bedeemed to be incurred solely because of fluctuations in the exchange rates ofthe currencies in which any existing Indebtedness is denominated.

 
| **SECTION 4.06** |   | **LIMITATION ON RESTRICTED PAYMENTS** |
|------------------|--------|---------------------------------------|

 

(a) The Issuer will not, andwill not permit any Restricted Subsidiary, directly or indirectly,  to:

 

(i)            declare or pay any dividend or makeany distribution on account of the Issuer’s or any of its RestrictedSubsidiaries’ Capital Stock, other than:

 

(1)               dividends or distributionspayable in Capital Stock (other than Disqualified Stock) of the Issuer or suchRestricted Subsidiary; or

 

(2)               dividends or distributionspayable to the Issuer or any Restricted Subsidiary of the Issuer;

 

(ii)           purchase, redeem or otherwise acquireor retire for value any Capital Stock of the Issuer, other than any suchCapital Stock owned by the Issuer or any Restricted Subsidiary of the Issuer;

 

(iii)          voluntarily purchase, redeem orotherwise acquire or retire for value any Subordinated Obligations, except thepurchase, redemption, acquisition or retirement of Subordinated Obligations inanticipation of satisfying a sinking fund obligation, principal instalment orfinal maturity, in each case due within one year of the date of purchase,redemption, acquisition or retirement;

 

(iv)          make any Restricted Investment; or

 

(v)           pay any interest in cash on anySubordinated Obligation of the Issuer

 

(all such payments and other actions in (i) to (v) collectively “**Restricted Payments**”).

 

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(b) The Issuer or a RestrictedSubsidiary may make a Restricted Payment if at the time of such RestrictedPayment:

 

(i)            no Default or Event of Default shallhave occurred and be continuing (or would result therefrom);

 

(ii)           the Issuer is able to Incur anadditional NLG 1.00 of Indebtedness pursuant to Section 4.05(a) after givingpro forma effect to such Restricted Payment; and

 

(iii)          the aggregate amount of suchRestricted Payment and all other Restricted Payments made since the ExistingNotes Issue Date would not exceed the sum of (without duplication):

 

(A)             50%of the Consolidated Net Income accrued during the period (treated as oneaccounting period) from the beginning of the fiscal quarter in which theExisting Notes Issue Date occurred to the end of the most recent fiscal quarterprior to the date of such Restricted Payment for which consolidated incomestatements of the Issuer are available internally (or, in case suchConsolidated Net Income is a deficit, less 100% of such deficit); plus

 

(B)              100%of the aggregate Designated Non-Cash Contributions or Net Cash Proceedsreceived by the Issuer from the issuance or sale of its Capital Stock (other thanDisqualified Stock) or received by the Issuer as a capital contribution withrespect to its Capital Stock (other than Disqualified Stock) subsequent to theExisting Notes Issue Date and on or prior to the date of such RestrictedPayment (other than an issuance or sale to a Subsidiary of the Issuer or anissuance or sale to an employee stock ownership plan or to a trust establishedby the Issuer or any of its Subsidiaries for the benefit of their employees ifthe cash used by such plan or trust to purchase such Capital Stock wasborrowed, directly or indirectly, from the Issuer or a Restricted Subsidiary)provided that Net Cash Proceeds from a public equity offering shall be excludedfrom this sub-paragraph to the extent utilised to redeem any Notes or ExistingNotes; plus

 

(C)              theamount by which the Indebtedness of the Issuer or any Restricted Subsidiary isreduced on the Issuer’s balance sheet upon the conversion or exchange (otherthan by a Subsidiary of the Issuer) subsequent to the Existing Notes Issue Dateand on or prior to the date of such Restricted Payment of any Indebtedness ofthe Issuer or any Restricted Subsidiary convertible or exchangeable for CapitalStock (other than Disqualified Stock) of the Issuer (less the amount of anycash, or the fair value of any other property, distributed by the Issuer or anyRestricted Subsidiary upon such conversion or exchange); plus

 

(D)              anamount equal to the sum of (x) the net reduction in Investments in UnrestrictedSubsidiaries made after the Existing Notes Issue Date and Investments madeafter the Existing Notes Issue Date in other Persons constituting a RestrictedPayment resulting from

 

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dividends, repayments of loans or advances orother transfers of assets, in each case to the Issuer or any RestrictedSubsidiary from such Unrestricted Subsidiaries or other Persons or received bythe Issuer or any Restricted Subsidiary from the disposition of such Investmentand (y) the portion (proportionate to the Issuer’s equity interest in suchSubsidiary) of the fair market value of the net assets of an UnrestrictedSubsidiary at the time such Unrestricted Subsidiary is designated a RestrictedSubsidiary or such other Person at the time such other Person becomes aRestricted Subsidiary; provided, however, that the foregoing sum shall notexceed the aggregate amount of Investments previously made (and treated as aRestricted Payment) by the Issuer or any Restricted Subsidiary.

 

For purposes of calculating the amount of Restricted Payments permittedby sub-paragraph (b) above, such amount shall be increased by the fair marketvalue of the property contributed *provided*,such value shall not exceed the lesser of (i) the total cash investment of thePermitted Holders with respect to such property (excluding any indebtedness towhich such property is subject or for which the Issuer and its RestrictedSubsidiaries will become responsible, and any expenses relating to theacquisition of such property by the Permitted Holders), and (ii) the fairmarket value thereof as determined as of the date of such contribution to theIssuer by an internationally recognised investment banking firm or professionalappraisal firm (although such a valuation opinion will not be required if thecash invested by the Permitted Holders is less than NLG 50 million); *provided*, (1) the contribution of suchproperty shall occur within 12 months of the date such property was acquired bythe Permitted Holders, and (2) such property is a business in which 662/3%of its assets and revenues are derived from its paper and packaging business orany business reasonably related, incidental or ancillary to the paper andpackaging business or is an asset in any such business.

 

(c) The provisions of Section4.06(a) shall not prohibit:

 

(i)            the acquisition of any Capital Stockof the Issuer or a Restricted Subsidiary, either:

 

(1)               solely in exchange for shares ofCapital Stock of the Issuer; or

 

(2)               through the application of theproceeds of a substantially concurrent sale of shares of Capital Stock of theIssuer (other than Disqualified Stock and other than Capital Stock issued orsold to a Subsidiary of the Issuer) or options, warrants or other rights topurchase such Capital Stock; provided, that the Net Cash Proceeds from suchsale shall be excluded from sub-paragraph (b)(iii)(B) above to the extentutilised to acquire any Capital Stock of the Issuer;

 

(ii)           the acquisition of any SubordinatedObligations of the Parent or the Issuer or any Restricted Subsidiary:

 

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(1)               solely in exchangefor shares of Capital Stock of the Parent or Issuer;

 

(2)               through theapplication of the direct or indirect proceeds of a substantially concurrent:

 

(A)          saleof shares of Capital Stock of the Issuer (other than Disqualified Stock andother than Capital Stock issued or sold to a Subsidiary of the Parent or theIssuer) or options, warrants or other rights to purchase such Capital Stock;provided, the Net Cash Proceeds from such sale shall be excluded fromsub-paragraph (b)(iii)(B) above to the extent utilised to acquire any CapitalStock of the Parent or the Issuer; or

 

(B)           incurrenceof Refinancing Indebtedness permitted to be incurred pursuant to Section 4.05;or

 

(3)               from Net AvailableCash to the extent permitted under Section 4.08;

 

(iii)          dividends paid within 60 days afterthe date of declaration thereof if at such date of declaration such dividendwould have complied with this covenant;

 

(iv)          if no Default or Event of Defaultshall have occurred and be continuing (or result therefrom), (a) payments withrespect to employee or director shares, stock options, stock incentive plans orrestricted stock plans of the Issuer or the Parent or any RestrictedSubsidiary; *provided*, that the amountof any such payment for any 12-month period shall not exceed NLG 10 million or(b) repurchases of Capital Stock of the Issuer or the Parent deemed to occurupon the exercise of share options to the extent Capital Stock represents aportion of the exercise price of such options;

 

(v)           if no Default or Event of Defaultshall have occurred and be continuing (or result therefrom), the purchase ordefeasance of Subordinated Obligations upon a Change of Control or an AssetDisposition to the extent required by the indenture or other agreement orinstrument pursuant to which such Subordinated Obligations were issued, butonly if the Issuer:

 

(1)               in the case of aChange of Control, has first or simultaneously complied with Section 4.10; or

 

(2)               in the case of anAsset Disposition, has complied with Section 4.08;

 

(vi)          the acquisition or retirement ofDisqualified Stock, either:

 

(A)             solely in exchange for shares ofDisqualified Stock of the Issuer; or

 

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(B)              through the application of netproceeds of a substantially concurrent sale of shares of Disqualified Stock ofthe Issuer (other than Disqualified Stock issued or sold to a Subsidiary of theIssuer) (“**Refinancing Disqualified Stock**”);provided, that:

 

(x)            the Refinancing Disqualified Stockdoes not mature or become mandatorily redeemable or subject to purchasepursuant to a sinking fund obligation, upon the occurrence of certain events orotherwise earlier than the Disqualified Capital Stock being acquired;

 

(y)           the amount of all obligations withrespect to the redemption, repayment or other repurchase of such RefinancingDisqualified Stock does not exceed the amount of all obligations with respectto the redemption, repayment or other repurchase of the Disqualified CapitalStock being acquired (calculated in each case in accordance with the definitionof “Indebtedness”); and

 

(z)            if the Disqualified Stock beingacquired or retired is issued by a Restricted Subsidiary, such RefinancingDisqualified Stock shall be issued only by such Restricted Subsidiary;

 

(vii)         dividends, other distributions or otheramounts paid by the Issuer to Parent (a) in amounts equal to amounts requiredfor the Parent to pay (i) audit fees and expenses, (ii) directors’ fees,remuneration and expenses and (iii) other expenses required to maintain itscorporate existence incurred in the ordinary course of business and reasonablyrelated to business of the Issuer and its Subsidiaries, provided that, theaggregate amount paid by the Issuer pursuant to this clause (a) shall notexceed NLG 10 million (or its foreign currency equivalent) in any fiscal year,(b) in amounts equal to amounts required for the Parent to provide for otheroperating costs, in each case only to the extent related to its ownership andmanagement of the Issuer, provided that, the aggregate amount paid pursuant tothis sub-clause (b) shall not exceed the aggregate of NLG 3 million (or itsforeign currency equivalent) in each fiscal year or (c) to pay, or reimbursethe Parent for, the customary costs, fees and expenses incident to a privateplacement or public offering of any of the Capital Stock of the Parent, so longas the net proceeds of such offering (if it is completed) are contributed to,or otherwise used for the benefit of, the Issuer;

 

(viii)        cash dividends or other distributions onthe Issuer’s Capital Stock used to fund the payment of fees and expensesincurred and owed to Affiliates, to the extent permitted pursuant to Section4.09;

 

(ix)           the payment of any dividend by aRestricted Subsidiary of the Issuer, to the holders of its Capital Stock on apro rata basis; or

 

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(x)            if no Default or Event of Defaultshall have occurred and be continuing (or result therefrom), RestrictedPayments in an aggregate amount not to exceed NLG 45 million from and after theExisting Notes Issue Date.

 

In determining the aggregate amount of Restricted Payments madesubsequent to the Existing Notes Issue Date in accordance with clause  4.06(b)(iii) amounts expended pursuant toclauses 4.06(c)(iii), (iv)(a), (v) and (viii) of the immediately precedingparagraph shall be included in such calculation.

 

For the avoidance of doubt, no payment or other transaction permittedby Section 4.09(b)(iv), (vi), (viii), (x), (xi), (xii) and (xiii) shall beconsidered a Restricted Payment for purposes of, or otherwise restricted by,this Indenture.

 
| **SECTION 4.07** |   | **LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM  RESTRICTED SUBSIDIARIES.** |
|------------------|--------|--------------------------------------------------------------------------------|

** **

The Issuer will not, and will not permit any Restricted Subsidiary to,create or otherwise cause or permit to exist or become effective any consensualencumbrance or restriction on the ability of any Restricted Subsidiary to (a)pay dividends or make any other distributions on its Capital Stock, (b) makeany loans or advances or pay any Indebtedness owed to the Issuer or anyRestricted Subsidiary; or (c) transfer any of its property or assets to theIssuer or any Restricted Subsidiary ((a) through (c) collectively “**Payment Restrictions**”).

 

The Payment Restrictions will not apply to encumbrances or restrictionsexisting under or by reason of:

 

(a) the Senior CreditAgreement, the Indenture, the 1999 Indentures, the Notes, the Existing Notesand any agreement in effect at or entered into on the Existing Notes IssueDate;

 

(b) with respect to anyRestricted Subsidiary acquired since the Existing Notes Issue Date orhereafter, an agreement relating to any Indebtedness Incurred by a RestrictedSubsidiary on or prior to the date on which such Restricted Subsidiary wasacquired by the Issuer or any Restricted Subsidiary (other than IndebtednessIncurred as consideration in, or to provide all or any portion of the funds orcredit support utilized to consummate, the transaction or series of relatedtransactions pursuant to which such Subsidiary became a Subsidiary of, or wasacquired by, the Issuer) and outstanding on such date;

 

(c) any agreement effectingRefinancing Indebtedness Incurred pursuant to an agreement referred to inclause (a) or (b) above or this clause (c) or contained in any amendment to anagreement referred to in clause (a) or (b) above or this clause (c); providedthat the Payment Restrictions with respect to such Restricted Subsidiarycontained in any such refinancing agreement or amendment are no less favourableto the holders of the Notes than those with respect to such RestrictedSubsidiary contained in such predecessor agreements;

 

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(d) purchase money Indebtednessfor property acquired in the ordinary course of business that only imposelimitations upon the property acquired or proceeds therefrom;

 

(e) customary non-assignmentprovisions in leases, licenses, and similar agreements;

 

(f) an agreement entered intofor the sale or disposition of all or any material portion of the Capital Stockor assets of a Restricted Subsidiary;

 

(g) applicable law orgovernmental regulation;

 

(h) Permitted Liens securingIndebtedness that limit the right of the debtor to dispose of the assetssubject to such Permitted Lien;

 

(i) provisions with respect tothe disposition or distribution of assets or property in joint ventureagreements and other similar agreements entered into in the ordinary course ofbusiness;

 

(j) restrictions on cash orother deposits or net worth imposed by customers under contracts entered intoin the ordinary course of business;

 

(k) any Purchase Money Note orother Indebtedness or other contractual requirements of a ReceivablesSubsidiary in connection with a Qualified Receivables Transaction; *provided*, that such restrictions applyonly to such Receivables Subsidiary;

 

(l) any customary encumbrancesor restrictions created under any agreement with respect to Senior Indebtednesspermitted to be incurred subsequent to the Existing Notes Issue Date pursuantto Section 4.05 (including covenants and restrictions not materially morerestrictive than those contained in the Senior Credit Agreement on the ExistingNotes Issue Date;  *provided*, that such agreement does not prohibit the payment of interest withrespect to the Notes or the Subsidiary Guarantee absent a default or event ofdefault under such agreement);

 

(m)  any encumbrances or restrictions required by any governmental,local or regulatory authority having jurisdiction over the Issuer or any of itsRestricted Subsidiaries or any of their businesses in connection with anydevelopment grant made or other assistance provided to the Issuer or any of itsRestricted Subsidiaries by such governmental authorities; and

 

(n) any encumbrances orrestrictions imposed by any amendments, modifications, restatements, renewals,increases, supplements, refundings, replacements or refinancings of thecontracts, instruments or obligations referred to in clauses (a) through (m) above,  *provided*,that such amendments, modifications, restatements, renewals, increases,supplements, refundings, replacements or refinancings are, in the good faithjudgment of the Board of Directors, not materially more restrictive withrespect to such Payment Restrictions, prior to such amendment, modification,restatement, renewal, increase, supplement, refunding, replacement orrefinancing.

 

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| **SECTION 4.08** |   | **LIMITATION ON ASSET DISPOSITIONS.** |
|------------------|--------|---------------------------------------|

 

(a) The Issuer will not, andwill not permit any Restricted Subsidiary to, make any Asset Dispositionunless:

 

(i)            the Issuer or suchRestricted Subsidiary receives consideration at the time of such AssetDisposition at least equal to the fair market value (including as to the valueof all non-cash consideration) of the shares and assets subject to such AssetDisposition; and

 

(ii)           in the event such AssetDisposition involves the transfer by the Issuer or any Restricted Subsidiary ofassets having an aggregate fair market value, as determined by the Board ofDirectors of the Issuer in good faith, in excess of NLG 25 million, the termsof such Asset Disposition have been approved by a majority of the members ofthe Board of Directors; and

 

(iii)          except in the case of AssetSwaps not prohibited by the 1999 Indentures, at least 75% of the considerationtherefor received by the Issuer or such Restricted Subsidiary is in the form ofcash or Temporary Cash Investments and is received at the time of suchdisposition;  *provided*, that the amount of:

 

(1)           any liabilities as shown on theIssuer’s or the Restricted Subsidiary’s most recent balance sheet or in thenotes thereto, of the Issuer or any Restricted Subsidiary, that are assumed bythe transferee of any such assets;

 

(2)           any securities, notes or otherobligations received by the Issuer or any Restricted Subsidiary from suchtransferee that are converted by the Issuer or any such Restricted Subsidiaryinto cash within 30 days following the closing of such Asset Disposition; and

 

(3)           any Permitted Non-Cash Considerationreceived by the Issuer or any Restricted Subsidiary in such Asset Dispositionhaving an aggregate fair market value, taken together with all other PermittedNon-Cash Consideration received pursuant to this clause (3) that is at thattime outstanding, not to exceed NLG 100 million at the time of the receipt ofsuch Permitted Non-Cash Consideration (with a fair market value of each item ofPermitted Non-Cash Consideration being measured at the time received and withoutgiving effect to subsequent changes in value),

 

shall be deemed to be Temporary Cash Investments, forpurposes of this clause (iii).

 

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(b) The Issuer will not, andwill not permit any Restricted Subsidiary to, engage in any Asset Swaps, *unless*:

 

(i)                                     atthe time of entering into such Asset Swap and immediately after giving effectto such Asset Swap, no Default or Event of Default shall have occurred and becontinuing or would occur as a consequence thereof;

 

(ii)                                  inthe event such Asset Swap involves the transfer by the Issuer or any RestrictedSubsidiary of assets having an aggregate fair market value, as determined bythe Board of Directors of the Issuer in good faith, in excess of NLG 15million, the terms of such Asset Swap have been approved by a majority of themembers of the Board of Directors of the Issuer; and

 

(iii)                               inthe event such Asset Swap involves the transfer by the Issuer or any RestrictedSubsidiary of assets having an aggregate fair market value, as determined bythe Board of Directors of the Issuer in good faith, in excess of NLG 50million, the Issuer has received a written opinion from an internationallyrecognised independent investment banking firm or professional appraisal firm thatsuch Asset Swap is with respect to the Issuer or such Restricted Subsidiary, asthe case may be, not materially less favourable than that which mightreasonably have been obtained in a comparable transaction at such time on anarms-length basis from a Person that is not an Affiliate.

 

(c) Within 12 months after anyAsset Disposition, the Issuer or the Restricted Subsidiary, as the case may be,may apply at its option the Net Available Cash from such Asset Disposition:

 

(i)                                     toprepay any obligations under Senior Indebtedness and in the case of payments ona revolving credit facility, effect a permanent reduction in the availabilityunder such facility or to prepay any obligations under Indebtedness ofRestricted Subsidiaries which are not Subsidiary Guarantors in each case otherthan Indebtedness owed to the Issuer, the Parent or any Holding Company or aSubsidiary;

 

(ii)                                  toacquire Additional Assets; *provided*,that the acquisition of Additional Assets pursuant to a definitive agreementexecuted within 12 months following the date of the Asset Disposition willsatisfy this requirement even if the acquisition occurs more than 12 monthsafter the Asset Disposition, *provided,however*, that the acquisition is consummated within 6 months of theexecution of the definitive agreement;

 

(iii)                               acombination of prepayment and investment permitted by the foregoing clauses (i)and (ii); or

 

(iv)                              pendingthe final application of any such Net Available Cash, the Issuer maytemporarily reduce revolving credit borrowings

 

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or otherwiseinvest such Net Available Cash in any manner that is not prohibited by theIndenture.

 

Any Net Available Cash fromAsset Dispositions that is not applied or invested as provided in the precedingparagraph will constitute “**Excess Proceeds**”.  When the aggregate amount of Excess Proceedsexceeds NLG 50 million, the Issuer will make an offer to all holders of Notes,and to all holders of other Indebtedness that ranks equally with the Notes containingprovisions similar to those set forth in this Indenture with respect to offersto purchase or redeem with the proceeds of sales of assets, to purchase themaximum principal amount of Notes and such other Senior SubordinatedIndebtedness that may be purchased with the Excess Proceeds (the  “**AssetDisposition Offer**”).  Theoffer price in any Asset Disposition Offer will be equal to 100% of principalamount plus accrued and unpaid interest to the date of purchase.  If any Excess Proceeds remain after consummationof an Asset Disposition Offer, the Issuer may use such Excess Proceeds for anypurpose not otherwise prohibited by the 1999 Indentures.  If the aggregate principal amount of Notesand such other Senior Subordinated Indebtedness tendered into such AssetDisposition Offer exceeds the amount of Excess Proceeds, the applicable Trusteeshall select the Notes and such other Senior Subordinated Indebtedness to bepurchased on a pro rata basis.  Uponcompletion of each Asset Disposition Offer, the amount of Excess Proceeds shallbe reset at zero.

 

The Issuer will comply with therequirements of Section 14(e) of the Exchange Act and any other securities lawsand regulations thereunder, to the extent such laws and regulations areapplicable, in connection with the purchase of the Notes as a result of anAsset Disposition Offer.  To the extentthat, since the Existing Notes Issue Date, changes in the provisions of anysuch securities laws or regulations have occurred which conflict with Section4.08, the Issuer will comply with such securities laws and regulations andshall not be deemed to have breached its obligations pursuant to Section 4.08by virtue thereof.

 
| **SECTION 4.09** |   | **LIMITATION ON AFFILIATE TRANSACTIONS.** |
|------------------|--------|-------------------------------------------|

 

(a) The Issuer will not, andwill not permit any Restricted Subsidiary to enter into or permit to exist anytransaction (including the purchase, sale, lease or exchange of any property,employee compensation arrangements or the rendering of any service) with anyAffiliate of the Issuer (an “**AffiliateTransaction**”) unless

 

(i)                                     suchAffiliate Transaction is on terms that are no less favourable to the Issuer orthe relevant Restricted Subsidiary than those that could have been obtained ina comparable transaction by the Issuer or such Restricted Subsidiary with anunrelated Person; and

 

(ii)                                  theIssuer delivers to the Trustee:

 

(1)          with respect to anyAffiliate Transaction or series of related Affiliate Transactions involving anamount in excess of NLG 15 million, a resolution of the Board of Directorsresolving that such Affiliate Transaction complies with the criteria set forthin clause 

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(i) above andsuch Affiliate Transaction is approved by a majority of the disinterestedmembers of the Board of Directors or, if there are no disinterested members, bya majority of the Board of Directors; and

 

(2) withrespect to any Affiliate Transaction or series of related AffiliateTransactions involving an amount in excess of NLG 50 million (other thanissuances of Capital Stock by the Issuer to an Affiliate) the Board ofDirectors shall also have received a written opinion from an internationallyrecognised investment banking firm, an accounting firm or an appraisal firm ofnational prominence, with experience in evaluating the terms and conditions ofsuch type of business or transactions that is not an Affiliate of the Issuer,to the effect that such Affiliate Transaction is fair from a financial point ofview, to the Issuer and its Restricted Subsidiaries.

 

(b) The provisions of thisSection 4.09 shall not prohibit:

 

(i)                                     anyPermitted Investment and any Restricted Payment permitted to be paid pursuantto Section 4.06;

 

(ii)                                  anyissuance of securities, or other payments, awards, or grants in cash,securities or otherwise pursuant to, or the funding of, employmentarrangements, stock options and stock ownership plans approved by thedisinterested members of the Board of Directors;

 

(iii)                               thegrant of stock options or similar rights to employees and directors of theIssuer, the Parent and its Restricted Subsidiaries pursuant to plans approvedby the disinterested members of the Board of Directors, or if there are nodisinterested members, by a majority of all members of the Board of Directors;

 

(iv)                              transactionsin the ordinary course of business (including expense advances andreimbursements) between the Issuer or any of its Restricted Subsidiaries, onthe one hand, and any employee thereof, on the other hand;

 

(v)                                 thegranting and performance of registration rights for shares of Capital Stock ofthe Issuer under a written registration rights agreement approved by thedisinterested members of the Board of Directors or, if there are nodisinterested members, by a majority of all members of the Board of Directors;

 

(vi)                              transactionswith Affiliates solely in their capacity as holders of Indebtedness or CapitalStock of the Issuer or any of its Restricted Subsidiaries where such Affiliatesare treated no more favourably than holders of such Indebtedness or suchCapital Stock generally;

 

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(vii)                           transactionswith or among the Issuer and a Restricted Subsidiary or between or amongRestricted Subsidiaries;

 

(viii)                        transactionsundertaken pursuant to any arrangements in existence on and disclosed inSchedule 2 to the 1999 Indentures on or prior to the Existing Notes Issue Date,as such arrangements may be amended or restated, renewed, extended, refinanced,refunded or replaced from time to time *provided*,that such amendment or restatement, renewal, extension, refinancing, refundingor replacement shall be on terms and conditions that are no less favourable tothe Issuer or any of its Restricted Subsidiaries, which, if determined by amajority of the disinterested members of the Board of Directors or, if thereare no disinterested members, by a majority of all members of the Board ofDirectors shall be conclusive;

 

(ix)                                therepurchase of Capital Stock of the Issuer from directors, officers or employeesof the Issuer or any Restricted Subsidiary permitted by Section 4.06;

 

(x)                                   paymentof compensation to employees, officers, directors or consultants of the Parent,the Issuer or any Restricted Subsidiaries in the ordinary course of business;

 

(xi)                                maintenancein the ordinary course of business (and payments required thereby) of benefitprograms, or arrangements for employees, officers or directors, includingvacation plans, health and life insurance plans, deferred compensation plans,directors’ and officers’ indemnification agreements and retirement or savingplan and similar plans;

 

(xii)                             paymentsby the Issuer or any of its Restricted Subsidiaries directly or indirectly (forinstance, through any type of payment through the Parent) to Cinven Limited,CVC Capital Partners Europe Limited and their Affiliates (whether or not suchPersons are Affiliates of the Issuer) made for any financial advisory,financing, underwriting or placement services or in respect of other investmentbanking activities, including in connection with acquisitions or divestitures,which payments are reasonably related to the services performed and customaryfor the nature of the services performed and approved by the Board of Directorsand the Board of Directors of the Parent in good faith;

 

(xiii)                          paymentof certain fees and expenses related to the issuance of the Existing Notes;

 

(xiv)                         to theextent such Indebtedness is on terms that taken as a whole are no lessfavourable to the Issuer or the relevant Restricted Subsidiary than those thatcould have been obtained in any comparable transaction with a Person who is notan Affiliate, incurrence of Indebtedness from an Affiliate permitted by Section4.05;

 

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(xv)                            dividends,other distributions or other amounts paid by the Issuer to the Parent (a) inamounts equal to amounts required for the Parent to pay (i) audit fees andexpenses, (ii) directors’ fees, remuneration and expenses and (iii) otherexpenses required to maintain its corporate existence incurred in the ordinarycourse of business and reasonably related to business of the Issuer and itsSubsidiaries, *provided*that, theaggregate amount paid by the Issuer pursuant to this clause (a) shall notexceed NLG 10 million (or its foreign currency equivalent) in any fiscal year,(b) in amounts equal to amounts required for the Parent to provide for otheroperating costs, in each case only to the extent related to its ownership andmanagement of the Issuer, *provided*that, the aggregate amount paid pursuant to this clause (b) shall not exceedthe aggregate of NLG 3 million (or its foreign currency equivalent) in eachfiscal year or (c) to pay, or reimburse the Parent for, the customary costs,fees and expenses incident to a private placement or public offering of any ofthe Capital Stock of the Parent or the Issuer, so long as the net proceeds ofsuch offering (if it is completed) are contributed to, or otherwise used forthe benefit of, the Issuer; and

 

(xvi)                         thepayment of annual management, consulting and advisory fees and related expensesdirectly and indirectly (for instance, through any type of payment to theParent) to Cinven Limited, CVC and their affiliates reasonably related to theservices performed and customary for the nature of the services performed and whichfees are approved by the Board of Directors in good faith.

 
| **SECTION 4.10** |   | **CHANGE OF CONTROL.** |
|------------------|--------|------------------------|

 

Upon the occurrence of any ofthe following events (each a “**Change ofControl**”), each holder shall have the right to require Issuer torepurchase such holder’s Notes at a purchase price in cash equal to 101% of theprincipal amount thereof plus accrued and unpaid interest, if any, to the dateof purchase:

 

(a) any “person” or “group” (assuch terms are used in Sections 13(d) and 14(d) of the Exchange Act), otherthan one or more of the Permitted Holders, becomes the beneficial owner (asdefined in Rules 13d-3 and 13d-5 under the Exchange Act), directly orindirectly, of more than 50% of the total voting power of the Voting Stock ofIssuer;

 

(b) the completion of atransaction (including without limitation, any merger or consolidation), theresult of which is that any Person (other than a Permitted Holder) becomes thebeneficial owner (as defined above) of Voting Stock of the Issuer entitlingsuch Person to have more voting power than the voting power of the Voting Stockof the Issuer beneficially owned by the Permitted Holders as a group, and thePermitted Holders as a group do not have the right or ability by voting power,contract or otherwise to elect or designate for election a majority of theBoard of Directors;

 

(c) after an initial publicoffering of Capital Stock by Issuer, the Parent or any other Holding Company,during any period of two consecutive years, individuals who at the beginning ofsuch period constituted the Board of Directors (together with any new

 

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directors whose election bysuch Board of Directors or whose nomination for election by the stockholders ofthe Parent was approved by the Permitted Holders or pursuant to the vote of 662/3%of the members of the Board of Directors of the Parent then still in office whowere either members at the beginning of such period or whose election ornomination for election was previously so approved) cease for any reason toconstitute a majority of the Board of Directors then in office; or

 

(d) the merger or consolidationof Issuer with or into another Person or the merger of another Person with orinto Issuer, or the sale or transfer of all or substantially all the assets ofIssuer (computed on a consolidated basis) to another Person and, in the case ofany such merger or consolidation, in each case in one transaction or a seriesof transactions with such Person with the effect that either (A) immediately aftersuch transaction any Person (other than a Permitted Holder) shall have becomethe beneficial owner of securities of the surviving corporation of such mergeror consolidation representing more than 50% of the combined voting power of theVoting Stock of the surviving corporation or (B) the securities of Issuer thatare outstanding immediately prior to such transaction and that represent 100%of the aggregate voting power of the Voting Stock of Issuer are changed into orexchanged for cash, securities or property, unless pursuant to such transactionsuch securities are changed into or exchanged for, in addition to any otherconsideration, securities of the surviving Person that represent, immediatelyafter such transaction, at least a majority of the aggregate voting power ofthe Voting Stock of the surviving corporation.

 

Within thirty days after anyChange of Control, unless notice of redemption of the Notes has been givenpursuant to Article Three the Issuer will mail a notice to each holder of Notesat its registered address, with a copy to the Trustees (the “**Change of Control Offer**”) stating:

 

(a)                                  thata Change of Control has occurred, that a Change of Control Offer is being madepursuant to this Section 4.10 and that all Notes tendered will be accepted forpayment;

 

(b)                                 thecircumstances and relevant facts regarding such Change of Control (includinginformation with respect to pro forma historical income, cash flow andcapitalisation after giving effect to such Change of Control);

 

(c)                                  thepurchase price and the purchase date (which shall be no earlier than 30 daysnor later than 60 days’ from the date such notice is mailed); and

 

(d)                                 theinstructions determined by us, consistent with the covenant described underthis caption, that a holder must follow in order to have its Notes repurchased.

 

In addition, within thirty daysthe Issuer will:

 

(a)                                  publishsuch notice in a leading newspaper having a general circulation in London(which is expected to be the *Financial Times*),and, if the Notes are listed on the Luxembourg Stock Exchange and the rules ofsuch Stock Exchange so require, a newspaper having a general circulation inLuxembourg (which is expected to be the *LuxembourgWort*); and

 

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(b)                                 ifthe Notes are listed on the Luxembourg Stock Exchange and the rules of theStock Exchange so require, notify such Stock Exchange of the Change of Control.

 

The Issuer will not be requiredto make a Change of Control Offer following a Change of Control if a third partymakes the Change of Control Offer in the manner, at the times and otherwise incompliance with the requirements set forth herein, and purchases all Notesvalidly tendered and not withdrawn under such Change of Control Offer.

 

The Issuer will comply with therequirements of Section 14(e) of the Exchange Act and any other securities lawsand regulations (but only to the extent those laws and regulations areapplicable) in connection with the repurchase of the Notes as a result of aChange in Control.  To the extent that,since the Existing Notes Issue Date, changes in the provisions of any suchsecurities laws or regulations have occurred which conflict with the foregoingprovisions the Issuer will comply with the applicable securities laws andregulations and shall not be deemed to have breached its obligations hereunderby virtue thereof.

 
| **SECTION 4.11** |   | **LIMITATION ON BUSINESS ACTIVITIES** |
|------------------|--------|---------------------------------------|

 

The Issuer will not, and willnot permit any Restricted Subsidiary to, engage in any business other thanPermitted Businesses except to such extent as would not be material to theIssuer and its Restricted Subsidiaries taken as a whole.

 
| **SECTION 4.12** |   | **LIMITATION ON LIENS** |
|------------------|--------|-------------------------|

 

The Issuer will not, and willnot permit any Restricted Subsidiary to, create, incur, assume or suffer toexist any Liens of any kind securing Indebtedness or trade payables (other thanPermitted Liens) upon any of their respective assets or properties now owned oracquired after the date of the 1999 Indentures or any income or profitstherefrom unless:

 

(a) in the case of Lienssecuring Indebtedness that is expressly subordinate or junior in right ofpayment to the Notes, the Notes are secured by a Lien on such property, assetsor proceeds that is senior in priority to such Lien;  and

 

(b) in all other cases, theNotes are equally and ratably secured.

 

This Section 4.12 will not applyto:

 

(a)                                  Liensexisting as of the Existing Notes Issue Date to the extent and in the mannersuch Liens were in effect on the Existing Notes Issue Date;

 

(b)                                 Liensgranted to lenders and hedging banks under the Senior Credit Agreement;

 

(c)                                  Lienssecuring the Notes and the Subsidiary Guarantee;

 

(d)                                 Liensof the Issuer or a Restricted Subsidiary of the Issuer on assets of anyRestricted Subsidiary of the Issuer;

 

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(e)                                  Lienssecuring the Hedging Obligations in respect of the Existing Notes, the relatedguarantees, the Notes and the Subsidiary Guarantee;

 

(f)                                    Lienssecuring Refinancing Indebtedness which is incurred to refinance anyIndebtedness which has been secured by a Lien not prohibited under the 1999Indentures; *provided*, that suchLiens do not extend to or cover any property or assets of the Issuer or any ofits Restricted Subsidiaries other than that pledged under the Liens securingthe Indebtedness being refinanced; and

 

(g)                                 PermittedLiens.

 
| **SECTION 4.13** |   | **CORPORATE EXISTENCE** |
|------------------|--------|-------------------------|

 

Except as otherwise permitted byArticle Five, the Issuer shall do or cause to be done, at its own cost andexpense, all things necessary to preserve and keep in full force and effect itscorporate existence and the corporate existence of each of its RestrictedSubsidiaries in accordance with the respective organizational documents of eachof them (as the same may be amended from time to time) and the material rights(charter and statutory) and franchises of the Issuer and each such RestrictedSubsidiary; provided, however, that neither the Issuer nor any RestrictedSubsidiary shall be required to preserve any right or franchise, or thecorporate, partnership or other existence of any Restricted Subsidiary, if theBoard of Directors of the Issuer shall reasonably determine that thepreservation thereof is no longer desirable in the conduct of the business ofthe Issuer and its Subsidiaries, taken as a whole.

 
| **SECTION 4.14** |   | **PAYMENT OF TAXES AND OTHER CLAIMS.** |
|------------------|--------|----------------------------------------|

 

The Issuer shall pay ordischarge or cause to be paid or discharged, before the same shall becomedelinquent, (i) all material taxes, assessments and governmental charges(including withholding taxes and any penalties, interest and additions totaxes) levied or imposed upon it or any of its Restricted Subsidiaries orproperties of it or any of its Restricted Subsidiaries and (ii) all lawfulclaims for labour, materials and supplies that, if unpaid, might by law becomea Lien upon the property of it or any of its Restricted Subsidiaries (otherthan Liens relating to the foregoing as may be created in the ordinary courseof business) where failure to do so would have, or would be reasonably likelyto have, a material adverse effect on the business, assets or financialcondition of the Group taken as a whole; provided, however, that the Issuershall not be required to pay or discharge or cause to be paid or discharged anysuch tax, assessment, charge or claim whose amount, applicability or validityis being contested in good faith by appropriate proceedings properly institutedand diligently conducted for which reserves, to the extent required under andin accordance with GAAP, have been taken.

 
| **SECTION 4.15** |   | **MAINTENANCE OF PROPERTIES AND INSURANCE** |
|------------------|--------|---------------------------------------------|

 

(a) The Issuer shall, and shallcause each of its Restricted Subsidiaries to, maintain its material propertiesin good working order and condition (subject to ordinary wear and tear) andmake all necessary repairs, renewals, replacements, additions, betterments andimprovements thereto and actively conduct and carry on its business; provided,

 

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however, that nothing in thisSection 4.15 shall prevent the Issuer or any of its Restricted Subsidiariesfrom discontinuing the operation or maintenance of any of its properties, ifsuch discontinuance is, in the reasonable good faith judgment of the Issuer orthe Restricted Subsidiary, as the case may be, desirable in the conduct of thebusiness of the Issuer and its Subsidiaries, taken as a whole.

 

(b) The Issuer shall provide orcause to be provided, for itself and each of its Restricted Subsidiaries,insurance (including reasonably appropriate self-insurance consistent with pastpractice or the practice of companies similarly situated in the industry)against loss or damage of the kinds that, in the good faith judgment of theBoard of Directors, are adequate and appropriate for the conduct of thebusiness of the Issuer and such Restricted Subsidiaries in a prudent manner,with reputable insurers or with the government of The Netherlands or an agencyor instrumentality thereof, in such amounts, with such deductibles, and by suchmethods as shall be appropriate, in the reasonable good faith judgment of theBoard of Directors.

 
| **SECTION 4.16** |   | **COMPLIANCE WITH LAWS.** |
|------------------|--------|---------------------------|

 

The Issuer shall comply, andshall cause each of its Restricted Subsidiaries to comply, with all applicablestatutes, rules, regulations, orders and restrictions of The Netherlands, allstates and municipalities thereof, and of any governmental department,commission, board, regulatory authority, bureau, agency and instrumentality ofthe foregoing, in respect of the conduct of their respective businesses and theownership of their respective properties, except for such non compliances asare not in the aggregate reasonably likely to have a material adverse effect onthe financial condition or results of operations of the Group, taken as awhole.

 
| **SECTION  4.17** |   | **FURTHER INSTRUMENTS AND ACTS.** |
|------------------------|--------|-----------------------------------|

 

Upon request of the Trustee, theIssuer shall execute and deliver such further instruments and do such furtheracts as may be necessary or proper to carry out more effectively the purpose ofthis Indenture.

 
| **SECTION 4.18** |   | **LIMITATION OF ISSUANCES OF CERTAIN GUARANTEES** |
|------------------|--------|---------------------------------------------------|

 

The Issuer will not permit anyof its Restricted Subsidiaries to guarantee the payment of any Indebtedness ofthe Issuer or of the Subsidiary Guarantor (other than Designated SeniorIndebtedness) unless:

 

(a) such Restricted Subsidiaryis a Subsidiary Guarantor; or

 

(b) such Restricted Subsidiarybecomes a Subsidiary Guarantor by executing and delivering a supplementalindenture to the Indenture evidencing and providing for its guarantee of theNotes, in substantially the same form as the Subsidiary Guarantee, and theobligations under any such guarantee shall rank equally in right of payment tothe Notes, if such guarantee is given in respect of Indebtedness that ranksequally with the Notes, or shall rank subordinate in right of payment to theNotes, if such guarantee is given in respect of Indebtedness that is expresslysubordinate in right of payment to

 

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the Notes, but only to the sameextent that such Indebtedness is so subordinate to the Notes.

 

The Parent will not guaranteethe payment of any Indebtedness of the Issuer or any of its RestrictedSubsidiaries (other than the Existing Notes or the Designated SeniorIndebtedness).

 

In the event such Restricted Subsidiarybecomes a Subsidiary Guarantor at a time when the Notes are listed on theLuxembourg Stock Exchange and the rules of that Stock Exchange shall sorequire, such Stock Exchange will be notified of such event, and notice will bepublished in a newspaper having a general circulation in Luxembourg (which isexpected to be the Luxemburger Wort) and a supplemental offering memorandummeeting the requirements of that Stock Exchange will be filed with that StockExchange.

 
| **SECTION 4.19** |   | **ADDITIONAL AMOUNTS** |
|------------------|--------|------------------------|

 

All payments made by the Issueron the Notes (whether or not in the form of definitive Notes) and all paymentsmade by the Subsidiary Guarantor under the Subsidiary Guarantee will be madewithout withholding or deduction for, or on account of, any present or futuretaxes, duties, assessments or governmental charges of whatever nature (“**Taxes**”) imposed or levied by or on behalfof (a) The Netherlands or any political subdivision or governmental authoritythereof or therein having power to tax, (b) any jurisdiction from or throughwhich payment on the Notes is made by the Issuer or a successor company or itsPaying Agent in its capacity as such, or payments on the Subsidiary Guaranteeare made by the Subsidiary Guarantor or a successor company or its Paying Agentin its capacity as such, or any political subdivision or governmental authoritythereof or therein having the power to tax or (c) any other jurisdiction inwhich the Issuer or the Subsidiary Guarantor is organized or otherwiseconsidered to be a resident for tax purposes, or in which such payments shallbecome subject generally, or any political subdivision or governmentalauthority thereof or therein having the power to tax (each of (a), (b) and (c),a “**Relevant Taxing Jurisdiction**”)unless the withholding or deduction of such Taxes is then required by law.  If any deduction or withholding for, or onaccount of, any Taxes of any Relevant Taxing Jurisdiction, shall at any time berequired from any payments made by or on behalf of the Issuer with respect tothe Notes, including payments of principal, Redemption Price, interest orpremium, or payments under the Subsidiary Guarantee, the Issuer or theSubsidiary Guarantor, as the case may be, will pay (together with suchpayments) such additional amounts (the “**AdditionalAmounts**”) as may be necessary in order that the net amounts receivedin respect of such payments by the holders of the Notes or the Trustee, as thecase may be, after such withholding or deduction (including any such deductionor withholding from such Additional Amounts), equal the respective amountswhich would have been received in respect of such payments on the Notes or theSubsidiary Guarantee in the absence of such withholding or deduction; exceptthat no such Additional Amounts will be payable with respect to:

 

(a) any payments on a Note orthe Subsidiary Guarantee held by or on behalf of a holder or beneficial ownerwho is liable for such Taxes in respect of such Note by reason of the holder orbeneficial owner having any present or former connection with

 

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the Relevant TaxingJurisdiction (including being a citizen or resident or national of, or carryingon a business or maintaining a permanent establishment in, or being physicallypresent in, the Relevant Taxing Jurisdiction) other than by the mere holdingoutside of the Relevant Taxing Jurisdiction of such Note or enforcement ofrights thereunder or the receipt of payments in respect thereof;

 

(b) any Taxes that are imposedor withheld where such withholding or imposition is by reason of the failure ofthe holder or beneficial owner of the Note to comply with any reasonable andtimely request by the Issuer to provide information concerning the nationality,residence or identity of such holder or beneficial owner or to make anydeclaration or similar claim or satisfy any certification, information or otherreporting requirement relating to such matters, which is required or imposed bya statute, treaty, regulation, protocol, or administrative practice of theRelevant Taxing Jurisdiction as a precondition to exemption from all or part ofsuch Taxes;

 

(c) except in the case of thewinding up of the Issuer, any Note presented for payment (where presentation isrequired) in the Relevant Taxing Jurisdiction (unless by reason of the Issuer’sactions presentment could not have been made elsewhere and except to the extentthat the holder would have been entitled to Additional Amounts had the Notesbeen presented elsewhere);

 

(d) any Note presented forpayment (where presentation is required) more than 30 days after the relevantpayment is first made available for payment to the holder (except to the extentthat the holder would have been entitled to Additional Amounts had the Notebeen presented on the last day of such 30 day period);

 

(e) any payment in respect ofdefinitive Notes which have been issued at the request of the holder or anyprevious holder of such Notes other than following an Event of Default (unlessall Notes have been exchanged for definitive Notes);

 

(f) any estate, inheritance,gift, sale, transfer, personal property or similar tax, assessment or othergovernmental charge; or

 

(g) a withholding or deductionimposed on a payment to an individual that is required to be made pursuant toany European Union Directive on the taxation of savings income (including adirective similar to the draft directive published on July 19, 2001 orotherwise implementing the conclusions of the ECOFIN Council meeting ofNovember 26 and 27, 2000 or January 21, 2003) or any law implementing orcomplying with, or introduced in order to conform to such directive by a memberstate or the European Union.

 

Such Additional Amounts willalso not be payable where, had the beneficial owner of the Note been the holderof the Note, it would not have been entitled to payment of Additional Amountsby reason of clauses (a) to (g) inclusive above.

 

Upon request, the Issuer willprovide the Trustee with documentation satisfactory to the Trustee evidencingthe payment of Additional Amounts. Copies of such documentation will be available for inspection duringordinary business hours at the office of the Trustee by the holders of theNotes upon request.

 

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The Issuer will pay any presentor future stamp, court or documentary taxes, or any other excise or propertytaxes, charges or similar levies which arise in any jurisdiction from theexecution, delivery or registration of the Notes or any other document orinstrument referred to therein (other than a transfer of the Notes), or thereceipt of any payments with respect to the Notes, excluding any such taxes,charges or similar levies imposed by any jurisdiction outside The Netherlands,the United States or any jurisdiction in which a Paying Agent is located, otherthan those resulting from, or required to be paid in connection with, theenforcement of the Notes or any other such document or instrument following theoccurrence of any Event of Default with respect to the Notes.

 

The foregoing obligations inthis Section 4.19 shall survive any termination, defeasance or discharge ofthis Indenture.

 

**ARTICLEV**

 
| **SECTION 5.01** |   | **MERGERS; SUCCESSOR CORPORATION** |
|------------------|--------|------------------------------------|

 

The Issuer may not consolidatewith or merge with or into (whether or not the Issuer is the survivingcorporation), or sell, assign or convey, transfer or lease, in one transactionor a series of transactions, all or substantially all its assets (determined ona consolidated basis for the Issuer and its Restricted Subsidiaries) to, anyother Person, unless:

 

(a) the resulting, surviving ortransferee person, if other than the Issuer (the “**Successor Company**”), shall be a Person organised and existingunder the laws of any country in Western Europe or any State of the UnitedStates and shall expressly assume, by an indenture supplemental to thisIndenture, executed and delivered to the Trustee, in form reasonablysatisfactory to such Trustee, all the obligations of the Issuer under the Notesand the 1999 Indentures (and the Subsidiary Guarantee shall be confirmed asapplying to such Person’s obligations);

 

(b) immediately after givingeffect to such transaction (and treating any Indebtedness which becomes anobligation of the Issuer or the Successor Company, as applicable, or any Subsidiaryas a result of such transaction as having been incurred by the Issuer or theSuccessor Company or such Subsidiary at the time of such transaction), noDefault or Event of Default shall have occurred and be continuing;

 

(c) immediately after giving effectto such transaction, (a) the Successor Company would be able to incur anadditional NLG 1.00 of Indebtedness pursuant to Section 4.05 or (b) theSuccessor Company on a *pro forma*basiswill have a consolidated Coverage Ratio at least equal to the ConsolidatedCoverage Ratio of the Issuer prior to such transaction; and

 

(d) the Issuer shall havedelivered to the Trustee an Officer’s Certificate and an Opinion of Counsel,each stating that such consolidation, merger or transfer and such supplementalindenture (if any) comply with the Indenture.

 

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The Successor Company shall bethe successor to the Issuer and shall succeed to, and be substituted for andmay exercise every right and power of, the Issuer under the Indenture, but theIssuer, in the case of a conveyance, transfer or lease, shall not be releasedfrom the obligation to pay the principal of and interest on the Notes.

 

The Issuer may not permit theSubsidiary Guarantor to consolidate with or merge with or into (whether or notsuch Subsidiary Guarantor is the Surviving Corporation), or sell, assign,convey, transfer or lease, in one transaction or a series of transactions, allor substantially all of its assets to, any Person unless:

 

(a)                                  theresulting, surviving or transferee Person (if not such Subsidiary) shall beorganised and existing under the laws of any country in Western Europe or anyState of the United States, and shall expressly assume, by executing aGuarantee, all the obligations of such Subsidiary, if any, under its Guarantee;

 

(b)                                 immediatelyafter giving effect to such transaction (and treating any Indebtedness whichbecomes an obligation of the resulting, surviving or transferee Person as aresult of such transaction as having been issued by such Person at the time ofsuch transaction), no Default or Event of Default shall have occurred and becontinuing;

 

(c)                                  immediatelyafter giving effect to such transaction, the Issuer would be able to incur atleast NLG  1.00 of additional Indebtednesspursuant to Section 4.05; and

 

(d)                                 theIssuer delivers to the Trustee an Officer’s Certificate and an Opinion ofCounsel, each stating that such consolidation, merger or transfer and suchGuarantee, if any, complies with this Indenture.

 

The provisions of clauses (a),(b) and (c) above shall not apply to any one or more transactions whichconstitute an Asset Disposition if the Issuer has complied with Section 4.08.

 

Nothing contained in thisSection 5.01 shall prohibit (i) any Restricted Subsidiary from consolidatingwith, merging with or into, or transferring all or part of its properties andassets to the Issuer or (ii) the Issuer from merging with an Affiliate for thepurpose of reincorporating the Issuer in another jurisdiction to realise tax orother benefits;  *provided, however*, that in connection withany such merger, consolidation or asset transfer no consideration, other thancommon stock in the Successor the Issuer or the Issuer shall be issued ordistributed and, after giving effect to any such merger, consolidation or assettransfer, no Default or Event of Default shall have occurred and be continuing.

 

**ARTICLEVIDEFAULT AND REMEDIES**

 
| **SECTION 6.01** |   | **EVENTS OF DEFAULT** |
|------------------|--------|-----------------------|

 

The following events shall eachconstitute an “Event of Default”:

 

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(a) the failure to pay interest(including Additional Amounts, if any) on any Notes when the same becomes dueand payable and the default continues for a period of 30 days (whether or notsuch payment shall be prohibited by the subordination provisions of theIndenture or the Intercreditor Deed, as the case may be);

 

(b) the failure to pay the,principal or premium on any Notes when such principal or premium becomes dueand payable, at maturity, upon redemption or otherwise (whether or not suchpayment shall be prohibited by the subordination provisions of this Indentureor the Intercreditor Deed, as the case may be);

 

(c) the failure by the Parent,the Issuer or any of its Restricted Subsidiaries to comply with its obligationsin Sections 4.08, 4.10 or 5.01;

 

(d) a default by the Issuer orany of the Issuer’s Restricted Subsidiaries in the observance or performance ofany other covenant or agreement contained in this Indenture which defaultcontinues for a period of 30 days after the Issuer receives written noticespecifying the default (and demanding that such default be remedied) from theTrustee;

** **

(e) Indebtedness of the Parent,Issuer or any Significant Subsidiary is not paid within any applicable graceperiod after final maturity or is accelerated by the holders thereof followinga default and the total amount of such Indebtedness unpaid or acceleratedexceeds NLG 35 million;

 

(f) any judgment or decree forthe payment of money in an aggregate amount in excess of NLG 35 million shallhave been rendered against the Subsidiary Guarantor or any of its RestrictedSubsidiaries and such judgments remain outstanding for a period of 60 daysafter such judgment and is not discharged, waived or stayed within 20 days afternotice;

 

(g) the Subsidiary Guaranteeceases to be in full force and effect or becomes unenforceable or invalid or isdeclared null and void (other than in accordance with the terms of the(Subsidiary Guarantee) or the Subsidiary Guarantor denies or disaffirms itsobligations under the Subsidiary Guarantee;

 

(h) a court of competentjurisdiction enters an order or decree under any applicable law that:

 

(a)                                  is for relief against the Issuer orany Significant Subsidiary in an involuntary case;

 

(b)                                 appoints a Custodian of the Issueror any Significant Subsidiary or for any substantial part of its property; or

 

(c)                                  orders the winding up or liquidationof the Issuer or any Significant Subsidiary;

 

or any similar relief is grantedand the order or decree remains unstayed and in effect for 60 days;

 

(i) the Issuer, the SubsidiaryGuarantor or any Significant Subsidiary:

 

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(a)                                  passes any resolution or initiatesany legal proceedings for the suspension of payments generally or any processgiving protection against creditors or for the dissolution, liquidation oradministration of the Issuer, the Subsidiary Guarantor or any SignificantSubsidiary;

 

(b)                                 consents to any person taking anylegal proceedings of the type referred to in (a) above;

 

(c)                                  consents to the appointment of aCustodian of it or for all or substantially all of its property;

 

(d)                                 enters into a moratorium orcomposition with or makes a general assignment for the benefit of itscreditors; or

 

(e)                                  ceases or suspends generally paymentof its debts or announces an intention so to do or is (or is deemed for thepurposes of any law applicable to it to be) unable to pay its debts as theyfall due, commences negotiations with, or makes a proposal to, its creditorsgenerally with a view to a readjustment or rescheduling of its Indebtedness ormakes a general assignment for the benefit of or a composition with itscreditors generally or a moratorium is declared in respect of any of itsIndebtedness,

 

Provided that a default undersub-paragraphs (d), (e), (h) or (i) (with respect to a Significant Subsidiary)or (f) will not constitute an Event of Default until the applicable Trustee orthe holders of 25% in principal amount of the outstanding Notes notify the Issuerof the default and the Issuer does not cure such default (or cause such defaultto be cured) within the time specified after receipt of such notice.

 
| **SECTION 6.02** |   | **ACCELERATION** |
|------------------|--------|------------------|

 

If an Event of Default (otherthan under sub-paragraphs (h) or (i) of Section 6.01 relating to the Issuer)occurs, the Trustee or Holders holding at least 25 per cent. in principalamount of the outstanding Notes may declare the principal of and accruedinterest, if any, and Additional Amounts, if any, on all the Notes to be dueand payable by notice in writing to the Issuer and, if applicable, the Trusteespecifying the relative Event of Default and that it is a “notice ofacceleration” (the “Acceleration Notice”), and the Notes shall becomeimmediately due and payable PROVIDED THAT so long as any Indebtedness permittedto be incurred pursuant to the Senior Credit Agreement shall be outstanding,such acceleration shall not be effective until the earlier of (i) anacceleration of any such Indebtedness under the Senior Credit Agreement or (ii)five Business Days following delivery of notice to the Representative under theSenior Credit Agreement by the Trustee of written notice of suchacceleration.  If an Event of Defaultspecified in sub-paragraphs (h) or (i) of Section 6.01 occurs, all unpaidprincipal of, and accrued and unpaid interest, if any, and Additional Amounts,if any, on all of the outstanding Notes shall ipso facto become and beimmediately due and payable without any declaration or other act on the part ofthe Trustee or any Holder.

 

At any time after the giving ofan Acceleration Notice as described in the preceding paragraph, Holders holdinga majority in principal amount of the Notes may rescind

 

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and cancel such declaration andits consequences (a) if the rescission would not conflict with any judgment ordecree of a court of competent jurisdiction (b) if all existing Events ofDefault have been cured or waived except non-payment of principal or interestthat has become due solely because of the acceleration, (c) to the extent thepayment of such interest is lawful, interest on overdue instalments of interestand overdue principal, which has become due otherwise than by such declarationof acceleration, has been paid, (d) if the Issuer has paid the Trustee in fullits compensation and reimbursed in full the Trustee for all its costs, charges,expenses, disbursements and advances and (e) in the event of the cure or waiverof an Event of Default of the type described in clause (h) or (i) of Section6.01 above, the Trustee shall have received an Officers’ Certificate and anOpinion of Counsel that such Event of Default has been cured or waived.  No such rescission shall affect anysubsequent Default or Event of Default or impair any right consequent thereto.

 
| **SECTION 6.03** |   | **OTHER REMEDIES** |
|------------------|--------|--------------------|

 

The Trustee may (subject to theprovisions of the Intercreditor Deed) at any time, at its discretion andwithout notice, pursue any available remedy by proceeding at law or in equityagainst the Issuer and/or the Subsidiary Guarantor as it may think fit toenforce any provision of the Notes, the Subsidiary Guarantee or this Indentureincluding the collection of any payment of principal of or interest, if any,and Additional Amounts, if any, on the Notes.

 

The Trustee may maintain aproceeding even if it does not possess any of the Notes or does not produce anyof them in the proceeding.  A delay oromission by the Trustee or any Holder in exercising any right or remedy shallnot impair the right or remedy or constitute a waiver thereof or acquiescencetherein.  No remedy is exclusive of anyother remedy.  All available remediesare cumulative to the extent permitted by law.

 
| **SECTION 6.04** |   | **WAIVER OF PAST DEFAULT** |
|------------------|--------|----------------------------|

 

Subject to Sections 6.07, 8.02and 10.02, the Holders of a majority in principal amount of the Notes for thetime being outstanding by written notice to the Trustee may waive an existingDefault or Event of Default under this Indenture and its consequences, except aDefault or Event of Default in the payment of principal of or interest on anyNote as specified in clauses (a) and (b) of Section 6.01 or a Default or Eventof Default in respect of any term or provision of this Indenture that may notbe amended or modified without the consent of each Holder affected as providedin Section 10.02.  The Issuer shalldeliver to the Trustee an Officers’ Certificate stating that the requisitepercentage of Holders have consented to such waiver and attaching copies ofsuch consents.  In case of any suchwaiver, the Issuer, the Subsidiary Guarantor, the Trustee and the Holders shallbe restored to their former positions and rights hereunder and under the Notes,respectively.  This paragraph of thisSection 6.04 shall be in lieu of §316(a)(1)(B) of the TIA and such§316(a)(1)(B) of the TIA is hereby expressly excluded from this Indenture andthe Notes, as permitted by the TIA.

 

Upon any such waiver, suchDefault shall cease to exist and be deemed to have been cured and not to haveoccurred, and any such Event of Default shall be deemed to have been cured andnot to have occurred for every purpose of this Indenture and the

 

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Notes but no such waiver shallextend to any subsequent or other Default or Event of Default or impair anyright consequent thereon.

 
| **SECTION 6.05** |   | **CONTROL BY MAJORITY** |
|------------------|--------|-------------------------|

 

Holders may not enforce thisIndenture or the Notes except as provided in this Article Six and under the TIAand subject to the provisions of the Intercreditor Deed.  The Holders of not less than a majority inaggregate principal amount of the Notes then outstanding may direct the time,method and place of conducting any proceeding for any remedy available to theTrustee or exercising any trust or power conferred on it.  However, the Trustee may refuse to followany direction that conflicts with law or this Indenture or the IntercreditorDeed, that the Trustee determines may be unduly prejudicial to the rights ofany other Holder or Holders, or that may involve the Trustee in personalliability; provided, however, that the Trustee may take any other action deemedproper by the Trustee which is not inconsistent with such direction.

 

In the event the Trustee or anyAppointee takes any action or follows any direction pursuant to this Indenture,the Trustee shall be entitled to indemnification satisfactory to it in its solediscretion against any loss, cost, charge, expense or other liability caused orincurred by the Trustee or any Appointee taking such action or following suchdirection.  This Section 6.05 shall bein lieu of §316(a)(1)(A) of the TIA and such §316(a)(1)(A) of the TIA is herebyexpressly excluded from this Indenture and the Notes, as permitted by the TIA.

 
| **SECTION 6.06** |   | **LIMITATION ON SUITS** |
|------------------|--------|-------------------------|

 

Otherwise than to enforce theright to receive payment of principal, premium (if any) Additional Amounts orinterest when due, no Holder of any Notes may pursue any remedy with respect tothis Indenture or the Notes unless prior to pursuing such remedy:

 

(a) the Holder gives to theTrustee written notice of a continuing Event of Default;

 

(b) the Holders of at least 25per cent. in aggregate principal amount of the Notes for the time beingoutstanding make a written request to the Trustee to pursue a remedy;

 

(c) such Holder or Holdersoffer and, if requested, provide to the Trustee indemnity satisfactory to theTrustee against any loss, cost, charge, expense or other Liability;

 

(d) the Trustee does not complywith such written request within 60 days after receipt of such notice, requestand offer and, if requested, the provision of indemnity; and

 

(e) during such 60-day periodthe Holders of a majority in principal amount of the Notes for the time beingoutstanding do not give the Trustee a direction which, in the opinion of theTrustee, is inconsistent with such request.

 

A Holder may not use thisIndenture to prejudice the rights of any other Holder or Holders or to obtain apreference or priority over such other Holder or Holders.

 

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| **SECTION 6.07** |   | **RIGHTS OF HOLDERS TO RECEIVE PAYMENT** |
|------------------|--------|------------------------------------------|

 

Notwithstanding any otherprovision of this Indenture, the right of any Holder to receive payment ofprincipal of and interest on a Note, on or after the respective due datesexpressed or provided for in the Note, or to bring suit for the enforcement ofany such payment on or after such respective dates, shall not be impaired oraffected without the consent of the Holder.

 
| **SECTION 6.08** |   | **COLLECTION SUIT BY TRUSTEE** |
|------------------|--------|--------------------------------|

 

If an Event of Default inpayment of interest or principal specified in Section 6.01(a) or (b) occurs andis continuing, the Trustee may recover judgment in its own name and as trusteeof an express trust against the Issuer, the Subsidiary Guarantor and/or anyother obligor in respect of the Notes for the whole amount of principal andaccrued interest and Additional Amounts (if any) remaining unpaid, togetherwith interest on overdue interest, in each case at the rate per annum borne bythe Notes and such further amount as shall be sufficient to cover the costs andexpenses of collection, including all costs, charges and expenses incurred byand the compensation, disbursements and advances of the Trustee and theAppointees.

 
| **SECTION 6.09** |   | **TRUSTEE MAY FILE PROOFS OF CLAIM** |
|------------------|--------|--------------------------------------|

 

Subject to Clause 11.03 of theIntercreditor Deed, the Trustee may file such proofs of claim and other papersor documents as may be necessary or advisable in order to have the claims ofthe Trustee (including any claim for the costs, charges and expenses incurredby and the compensation, disbursements and advances of the Trustee and theAppointees) and the Holders allowed in any judicial proceedings relative to theIssuer, the Subsidiary Guarantor or any other obligor in respect of the Notes,its creditors or its property and shall be entitled and empowered to collectand receive any monies or other property payable or deliverable on any suchclaims and to distribute the same, and any Custodian in any such judicialproceedings is hereby authorised by each Holder to make such payments to theTrustee and, in the event that the Trustee shall consent to the making of suchpayments directly to the Holders, to pay to the Trustee any amount due to itfor the costs, charges and expenses incurred by and the compensation, disbursementsand advances of the Trustee and the Appointees, and any other amounts due tothe Trustee under this Indenture including Section 7.07.  Nothing herein contained shall be deemed toauthorise the Trustee to authorise or consent to or accept or adopt on behalfof any Holder any plan of reorganisation, arrangement, adjustment orcomposition affecting the Notes or the rights of any Holder thereof, or toauthorise the Trustee to vote in respect of the claim of any Holder in any suchproceeding.

 
| **SECTION 6.10** |   | **PRIORITIES** |
|------------------|--------|----------------|

 

If the Trustee collects anymoney or property pursuant to this Article Six, it shall (subject to theprovisions of the Intercreditor Deed) pay out such money or property in thefollowing order:

 

First:                                             to the Trustee for amounts due underthis Indenture including Section 7.07;

 

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Second:                             to Holders for amounts due andunpaid on the Notes for principal, interest, if any, and Additional Amounts, ifany, rateably, without preference or priority of any kind, according to theamounts due and payable on the Notes for principal, interest, if any, andAdditional Amounts, if any, respectively; and

 

Third:                                        the balance, if any, to the Issuer(without prejudice to, or liability in respect of, any question as to how suchpayment to the Issuer shall be dealt with as between the Issuer, the SubsidiaryGuarantor and any other person).

 

The Trustee, upon prior writtennotice to the Issuer and the Subsidiary Guarantor, may fix a record date andpayment date for any payment to Holders pursuant to this Section 6.10.

 
| **SECTION 6.11** |   | **PRESCRIPTION** |
|------------------|--------|------------------|

 

Claims against the Issuer or theSubsidiary Guarantor for the payment of principal, if any, or AdditionalAmounts, if any, on the Notes shall be prescribed ten years after theapplicable due date for payment thereof. Claims against the Issuer and the Subsidiary Guarantor for the paymentof interest on the Notes shall be prescribed five years after the due date forpayment of interest.

 

**ARTICLEVIITRUSTEE**

** **
| **SECTION 7.01** |   | **DUTIES OF TRUSTEE** |
|------------------|--------|-----------------------|

 

(a) If an Event of Default hasoccurred and is continuing, the Trustee shall exercise such of the rights andpowers vested in it by this Indenture, and use the same degree of care andskill in their exercise as a prudent person would exercise or use under thecircumstances in the conduct of such person’s own affairs.

 

(b) The Trustee will performsuch duties and only such duties as are specifically set forth herein and noimplied covenants or obligations shall be read into this Indenture against theTrustee.  The Trustee may, in theabsence of manifest error, conclusively rely, as to the truth of the statementsand the correctness of the opinions expressed therein, upon any certificates oropinions conforming to the requirements of this Indenture.

 

(c) The Trustee shall not berelieved from liability for its own negligence, fraud or its own wilfulmisconduct, except that:

 

(i)                                     thisparagraph does not limit the effect of paragraph (a) or (b) of this Section7.01;

 

(ii)                                  theTrustee shall not be liable for any error of judgment made in good faith by aTrust Officer, unless it is proved that such Trust Officer was grosslynegligent in ascertaining the pertinent facts;

 

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(iii)                               theTrustee shall not be liable with respect to any action it takes or omits totake in accordance with a direction received by it pursuant to Section 6.05;and

 

(iv)                              noprovision of this Indenture shall require the Trustee to expend or risk its ownfunds or otherwise incur any financial liability of whatever nature in theperformance of any of its duties hereunder or in the exercise of any of itsdiscretions, authorities, rights or powers, if it believes that repayment ofsuch funds or adequate indemnity against such risk or liability is notreasonably assured to it.

 

Notwithstanding the foregoing,nothing in this Indenture shall in any case in which the Trustee has failed toshow the degree of care and diligence required of it as Trustee having regardto the provisions of this Indenture conferring on it any trusts, powers,authorities or discretions exempt the Trustee from or indemnify it against anyliability for breach of trust of which it may be guilty in relation to itsduties under this Indenture.

 

(d) The Trustee shall not beliable for interest on any money received by it except as the Trustee may agreein writing with the Issuer.

 

(e) Money held in trust by theTrustee need not be segregated from other funds except to the extent requiredby law.

 

(f) Every provision of thisIndenture that in any way relates to the Trustee is subject to the provisionsof this Section 7.01 including Section 7.01(c) and to the provisions of theTIA.

 

(g) The Trustee shall be underno obligation to exercise any of the discretions, authorities, rights or powersvested in it by this Indenture at the request or direction of any of theHolders pursuant to this Indenture, unless such Holders shall have offered tothe Trustee an indemnity satisfactory to it against the losses, costs, charges,expenses and other liabilities which might be incurred by it in compliance withsuch request or direction.

 

(h) In connection with theexercise by it of any of its trusts, powers, rights, authorities or discretions(including, without limitation, any modification, waiver, authorisation orsubstitution), the Trustee shall have regard to the interests of the Holders asa class and, in particular but without limitation, shall not have regard to theconsequences of the exercise of its trusts, powers, rights, authorities ordiscretions for individual Holders resulting from their being for any purposedomiciled or resident in, or otherwise connected with or subject to thejurisdiction of, any particular territory. The Trustee shall not be entitled to require, and no Holder shall beentitled to claim, from the Issuer or the Subsidiary Guarantor or any otherperson any indemnification or payment in respect of any tax consequence of anysuch exercise upon individual Holders except to the extent already provided forunder Section 4.19 and/or any undertaking given in addition thereto, or insubstitution for, pursuant to this Indenture.

 

All references in this Indentureto the powers, rights, authorities or discretions of the Trustee, or theexercise thereof, under this Indenture shall, where applicable, include

 

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references to the powers, rightsauthorities or discretions of the Trustee, or the exercise thereof, (as thecase may be) under the Intercreditor Deed.

 
| **SECTION 7.02** |   | **RIGHTS OF TRUSTEE** |
|------------------|--------|-----------------------|

 

Where there are any inconsistencies between the Trustee Acts and theprovisions of this Indenture, the Notes and the Schedules, the provisions ofthis Indenture, the Notes and the Schedules shall, to the extent allowed by law,prevail and, in the case of any such inconsistency with the Trustee Act 2000,the provisions of this Indenture, the Notes and the Schedules shall constitutea restriction or exclusion for the purposes of that Act.  The Trustee shall have all the powers conferredupon trustees by the Trustee Acts and by way of supplement thereto it isexpressly declared as follows:

 

(a) The Trustee may rely on anydocument believed by it to be genuine and to have been signed or presented bythe proper person.  The Trustee need notinvestigate any fact or matter or the expediency of any transaction or thingstated or referred to in the document.

 

(b) Before the Trustee acts orrefrains from acting, it may require an Officer’s Certificate and an Opinion ofCounsel, in each case as to any fact or matter or the expediency of anytransaction or thing.  The Trustee shallnot be bound in any such case to call for further evidence and shall not beliable for any action it or any other person takes or omits to take in goodfaith in reliance on such Certificate or Opinion.

 

(c) The Trustee shall not becharged with knowledge of any Default or Event of Default under Sections6.01(c) to (i) (inclusive) hereof, of the identity of any Subsidiary orSignificant Subsidiary, of the existence of any Change of Control or AssetDisposition unless an officer of the Trustee shall have received written noticethereof from the Issuer or the Subsidiary Guarantor.

 

(d) The Trustee may in relationto this Indenture act on the advice or opinion of or any information obtainedfrom any lawyer, valuer, accountant, surveyor, banker, broker, auctioneer orother expert whether obtained by the Issuer, the Subsidiary Guarantor, theTrustee or otherwise and shall not be responsible for any liability occasionedby so acting.

 

(e) Any such advice, opinion orinformation may be sent or obtained by letter, telex, telegram, facsimiletransmission or cable and the Trustee shall not be liable for acting on anyadvice, opinion or information purporting to be conveyed by any such letter,telex, telegram, facsimile transmission or cable although the same shallcontain some error or shall not be authentic.

 

(f) The Trustee shall be atliberty to hold this Indenture and any other documents relating thereto or todeposit them in any part of the world with any banker or banking company orcompanies whose business includes undertaking the safe custody of documents orlawyer or firm of lawyers considered by the Trustee to be of good repute andthe Trustee shall not be responsible for or required to insure against anyliability incurred in connection with any such holding or deposit and may payall sums required to be paid on account of or in respect of any such deposit.

 

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(g) The Trustee shall not beresponsible for the receipt or application of the proceeds of the issue of anyof the Notes by the Issuer or the exchange of any Global Note for anotherGlobal Note or for definitive notes.

 

(h) The Trustee shall not bebound to give notice to any person of the execution of any documents comprisedor referred to in this Indenture or to take any steps to ascertain whether anyEvent of Default or any Default has happened and, subject to Section 7.02(c),the Trustee shall be entitled to assume that no Event of Default or Default hashappened and that each of the Issuer and the Subsidiary Guarantor is observingand performing all its obligations under this Indenture, the Notes, theIntercreditor Deed.

 

(i) Save as expressly otherwiseprovided in this Indenture, the Trustee shall have absolute and uncontrolleddiscretion as to the exercise or non-exercise of its trusts, powers,authorities and discretions under this Indenture and the Intercreditor Deed(the exercise or non-exercise of which as between the Trustee and the Holdersshall be conclusive and binding on the Holders) and shall not be responsiblefor any liability which may result from their exercise or non-exercise.

 

(j) The Trustee shall not beliable to any person by reason of having acted upon any ExtraordinaryResolution in writing or any Extraordinary Resolution or other resolutionpurporting to have been passed at any meeting of the Holders of Notes of all orany series in respect whereof minutes have been made and signed even thoughsubsequent to its acting it may be found that there was some defect in theconstitution of the meeting or the passing of the resolution or (in the case ofan Extraordinary Resolution in writing) that not all Holders had signed theExtraordinary Resolution or that for any reason the resolution was not valid orbinding upon such Holders.

 

(k) Without limitation toSection 7.02(a) the Trustee shall not be liable to any person by reason ofhaving accepted as valid or not having rejected any Note purporting to be suchand subsequently found to be forged or not authentic.

 

(l) Any consent or approvalgiven by the Trustee for the purposes of this Indenture or the IntercreditorDeed may be given on such terms and subject to such conditions (if any) as theTrustee thinks fit and notwithstanding anything to the contrary in thisIndenture may be given retrospectively.

 

(m) Save as otherwise expresslyprovided in this Indenture, the Trustee shall not (unless and to the extentordered so to do by a court of competent jurisdiction) be required to discloseto any Holder any information (including, without limitation, information of aconfidential, financial or price sensitive nature) made available to theTrustee by the Issuer or the Subsidiary Guarantor or any other person inconnection with this Indenture or the Notes and no Holder shall be entitled totake any action to obtain from the Trustee any such information.

 

(n) Save as otherwise expresslyprovided in the Agency Agreement, where it is necessary or desirable for anypurpose in connection with this Indenture to convert any sum from one currencyto another it shall (unless otherwise provided by this Indenture or required bylaw) be converted at such rate or rates, in accordance with such method and asat such date for the determination of such rate of exchange, as may be agreedby the Trustee, the Issuer and the Subsidiary Guarantor, and any rate,

 

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method and date so agreed shallbe binding on the Issuer, the Subsidiary Guarantor and the Holders.

 

(o) The Trustee as betweenitself and the Holders may determine all questions and doubts arising inrelation to any of the provisions of this Indenture or the IntercreditorDeed.  Every such determination, whetheror not relating in whole or in part to the acts or proceedings of the Trustee,shall be conclusive and shall bind the Trustee and the Holders.

 

(p) Any Trustee of thisIndenture being a lawyer, accountant, broker or other person engaged in anyprofession or business shall be entitled to charge and be paid all usualprofessional and other charges for business transacted and acts done by him orhis firm in connection with the trusts of this Indenture and also hisreasonable charges in addition to disbursements for all other work and businessdone and all time spent by him or his firm in connection with matters arisingin connection with this Indenture.

 

(q) The Trustee may whenever inits reasonable judgment it thinks fit delegate by power of attorney orotherwise to any person or persons or fluctuating body of persons (whetherbeing a joint trustee of this Indenture or not) all or any of its trusts,powers, authorities and discretions under this Indenture or the IntercreditorDeed.  Such delegation may be made uponsuch terms (including power to sub-delegate) and subject to such conditions andregulations as the Trustee may in the interests of the Holders and in itsreasonable judgment think fit.  TheTrustee shall not be under any obligation to supervise the proceedings or actsof any such delegate or sub-delegate or be in any way responsible for anyliability incurred by reason of any misconduct or default on the part of anysuch delegate or sub-delegate.  TheTrustee shall promptly after any such delegation or any renewal, extension ortermination thereof give notice thereof to the Issuer.

 

(r) The Trustee may in theconduct of the trusts of this Indenture instead of acting personally employ andpay an agent (whether being a lawyer or other professional person) to transactor conduct, or concur in transacting or conducting, any business and to do , orconcur in doing, all acts required to be done in connection with this Indentureor the Intercreditor Deed (including the receipt and payment of money).  The Trustee shall not be in any wayresponsible for any liability incurred by reason of any misconduct or defaulton the part of any such agent or be bound to supervise the proceedings or actsof any such agent.

 

(s) The Trustee shall not beresponsible for the execution, delivery, legality, effectiveness, adequacy,genuineness, validity, performance, enforceability or admissibility in evidenceof this Indenture or any other document relating or expressed to besupplemental thereto and shall not be liable for any failure to obtain anylicence, consent or other authority for the execution, delivery, legality,effectiveness, adequacy, genuineness, validity, performance, enforceability oradmissibility in evidence of this Indenture or any other document relating orexpressed to be supplemental thereto.

 

(t) Notwithstanding anyprovision of this Indenture, the Trustee shall not be liable to any person byreason of having complied with its obligations, performed its rights orexercised its powers under and in accordance with the Intercreditor Deed.

 

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| **SECTION 7.03** |   | **INDIVIDUAL RIGHTS OF TRUSTEE** |
|------------------|--------|----------------------------------|

** **

Neither the Trustee nor anydirector or officer or holding company, Subsidiary or associated company of acorporation acting as a trustee under this Indenture shall by reason of its orhis fiduciary position be in any way precluded from:

 

(a) entering into or beinginterested in any contract or financial or other transaction or arrangementwith the Issuer or the Subsidiary Guarantor or any person or body corporateassociated with the Issuer or the Subsidiary Guarantor  (including without limitation any contract,transaction or arrangement of a banking or insurance nature or any contract,transaction or arrangement in relation to the making of loans or the provisionof financial facilities or financial advice to, or the purchase, placing orunderwriting of or the subscribing or procuring subscriptions for or otherwiseacquiring, holding or dealing with, or acting as paying agent in respect of, theNotes or any other notes, bonds, stocks, shares, debenture stock, debentures orother securities of, the Issuer or the Subsidiary Guarantor or any person orbody corporate associated as aforesaid); or

 

(b) accepting or holding thetrusteeship of any other trust deed constituting or securing any othersecurities issued by or relating to the Issuer or the Subsidiary Guarantor orany such person or body corporate so associated or any other office of profitunder the Issuer or the Subsidiary Guarantor or any such person or bodycorporate so associated

 

and shall be entitled toexercise and enforce its rights, comply with its obligations and perform itsduties under or in relation to any such contract, transaction or arrangement asis referred to in (a) above or, as the case may be, any such trusteeship oroffice of profit as is referred to in (b) above without regard to the interestsof the Holders and notwithstanding that the same may be contrary or prejudicialto the interests of the Holders and shall not be responsible for any Liabilityoccasioned to the Holders thereby and shall be entitled to retain and shall notbe in any way liable to account for any profit made or share of brokerage orcommission or remuneration or other amount or benefit received thereby or inconnection therewith.

 

Where any holding company,Subsidiary or associated company of the Trustee or any director or officer ofthe Trustee acting other than in his capacity as such a director or officer hasany information pursuant to this Indenture, the Trustee shall not thereby bedeemed also to have knowledge of such information and, unless it shall haveactual knowledge of such information, shall not be responsible for any losssuffered by Holders resulting from the Trustee’s failing to take suchinformation into account in acting or refraining from acting under or inrelation to this Indenture.  Any Agentmay do the same with like rights. However, the Trustee is subject to Sections 7.09 and 7.10.

 
| **SECTION 7.04** |   | **TRUSTEE’S DISCLAIMER** |
|------------------|--------|-------------------------------|

 

The Trustee shall not beresponsible for and makes no representation as to the validity or adequacy ofthis Indenture, the Notes, the Subsidiary Guarantee, or the Intercreditor Deed,shall not be accountable for the Issuer’s use of the proceeds from the issue ofNotes, and shall not be responsible for any statement of the Issuer or theSubsidiary Guarantor in this Indenture or any document issued in connectionwith the

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sale of Notes or any statementin the Notes or the Subsidiary Guarantee other than the Trustee’s certificateof authentication.

 
| **SECTION 7.05** |   | **NOTICE OF DEFAULTS/ACCELERATION** |
|------------------|--------|-------------------------------------|

 

If a Default or an Event ofDefault occurs and is continuing and if it is known to the Trustee pursuant toSection 7.02(c), the Trustee shall at the expense of the Issuer (failing which,the Subsidiary Guarantor) mail to each Holder notice of the Default or Event ofDefault (as the case may be) within 14 days after it first becomes so known tothe Trustee.  The Trustee shall, upon anacceleration pursuant to section 6.02, promptly notify the Security Agent andthe representative of the hedging banks under the Hedging Obligations of suchacceleration.

 
| **SECTION 7.06** |   | **REPORTS BY TRUSTEE TO HOLDERS** |
|------------------|--------|-----------------------------------|

 

If required by TIA §313(a), butsubject to the provisions of Section 7.07, within 60 days after each May 1beginning with May 1, 2000, the Trustee shall mail to each Holder a reportdated as of such May 1 that complies with TIA §313(a).  The Trustee also shall comply with TIA§313(b)(2), (c) and (d).

 

A copy of each such report atthe time of its mailing to the Holders shall be filed with the SEC, (so long asthe Notes are listed on the Luxembourg Stock Exchange) the Luxembourg StockExchange and every other stock exchange, if any, on which the Notes are listed.

 

The Issuer shall promptly notifythe Trustee in writing if the Notes become listed on any stock exchange or ofany delisting thereof.

 
| **SECTION 7.07** |   | **COMPENSATION AND INDEMNITY** |
|------------------|--------|--------------------------------|

 

The Issuer shall pay to theTrustee from time to time such compensation as the Issuer and the SubsidiaryGuarantor and the Trustee shall from time to time agree in writing for itsservices.  The Trustee’s compensationshall not be limited by any law on compensation of a trustee of an expresstrust.  The Issuer shall reimburse theTrustee upon request for all disbursements, costs, charges, expenses andadvances (including fees, disbursements, costs, charges and expenses of itsagents and counsel) properly incurred or made by it in relation to thepreparation and execution of, the exercise of its powers and the performance ofits duties under, and in any other manner in relation to, this Indenture, orthe Intercreditor Deed, including but not limited to travel expenses and anystamp, issue, registration, documentary and other taxes or duties (not beingtaxes on net income) properly paid or payable by the Trustee in connection withany action taken or contemplated by or on behalf of the Trustee for enforcing,or resolving any doubt concerning, or for any other purpose in relation to,this Indenture, in addition to the compensation for its services properlyincurred except any such disbursements, expenses and advances as may beattributable to the Trustee’s negligence, wilful misconduct or breach of trust.  The Issuer shall in addition pay to theTrustee an amount equal to the amount of any value added tax or similar taxchargeable in respect of its remuneration under this Indenture.

 

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Without prejudice to the rightof indemnity by law given to trustees, each of the Issuer and the SubsidiaryGuarantor shall severally indemnify the Trustee and every of its agents anddelegates for, and hold it harmless against, any and all costs, charges, andexpenses properly incurred and other Liabilities, arising out of or inconnection with the acceptance or administration of the trust or trustshereunder or the execution or purported execution of any of its trusts, powers,authorities and discretions under this Indenture or the Intercreditor Deed orits functions under any such appointment or in respect of any other matter orthing done or omitted in any way in relation to this Indenture or theIntercreditor Deed or any such appointment, including the costs and expenses ofdefending itself against any claim or liability in connection with the exerciseor performance of any of its powers or duties hereunder, except to the extentthat such liability is due to the Trustee’s own negligence, wilful misconductor breach of trust.  The Trustee shallnotify the Issuer and the Subsidiary Guarantor promptly of any claim assertedagainst the Trustee for which it may seek an indemnity.  However, the failure by the Trustee so tonotify the Issuer and the Subsidiary Guarantor shall not relieve the Issuer andthe Subsidiary Guarantor of their respective obligations hereunder.  The Issuer or the Subsidiary Guarantor shalldefend the claim and the Trustee shall cooperate in the defence (and may employits own counsel,) at the Issuer’s and/or the Subsidiary Guarantor’sexpense.  Neither the Issuer nor theSubsidiary Guarantor need pay for any settlement made without its writtenconsent, which consent shall not be unreasonably withheld or delayed and shall,in any event, be given if the Trustee’s counsel advises the Trustee that theclaim should be admitted.  Neither theIssuer nor the Subsidiary Guarantor need reimburse any expense or indemnifyagainst any loss or liability incurred by the Trustee as a result of the breachof this Indenture by the Trustee caused by the Trustee’s negligence or wilfulmisconduct.

 

All amounts payable pursuant tothis Section 7.07 shall be payable by the Issuer or the Subsidiary Guarantor(as the case may be) on the date specified in a demand by the Trustee and inthe case of payments actually made by the Trustee prior to such demand shall(if not paid within three days after such demand and the Trustee so requires)carry interest at the rate of two per cent. per annum above the base rate fromtime to time of National Westminster Bank Plc from the date specified in suchdemand, and in all other cases shall (if not paid on the date specified in suchdemand or, if later, within three days after such demand and, in either case,the Trustee so requires) carry interest at such rate from the date specified insuch demand.  All remuneration payableto the Trustee shall carry interest at such rate from the due date therefor.

 

Unless otherwise specificallystated in any discharge of this Indenture, the provisions of this Section 7.07 shallcontinue in full force and effect notwithstanding such discharge.

 
| **SECTION 7.08** |   | **REPLACEMENT OF TRUSTEE** |
|------------------|--------|----------------------------|

 

The Trustee may resign at anytime by notifying the Issuer and the Subsidiary Guarantor in writing.  The Holders of a majority in principal amountof the Notes for the time being outstanding may remove the Trustee by notifyingthe Trustee, the Issuer and the Subsidiary Guarantor in writing and may appointa successor Trustee

 

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with the Issuer’s and theSubsidiary Guarantor’ written consent. The Issuer and the Subsidiary Guarantor may remove the Trustee if:

 

(a) the Trustee fails to complywith Section 7.09;

 

(b) the Trustee is adjudged abankrupt or insolvent under any Bankruptcy Law;

 

(c) a Custodian or other publicofficer takes charge of the Trustee or its property; or

 

(d) the Trustee becomesincapable of acting as trustee of this Indenture.

 

If the Trustee resigns or isremoved or if a vacancy exists in the office of Trustee for any other reason(the Trustee in such event being referred to herein as the “retiring Trustee”),the Issuer and the Subsidiary Guarantor shall promptly appoint a successorTrustee.  Within one year after suchsuccessor Trustee takes office, the Holders of a majority in principal amountof the Notes for the time being outstanding may appoint a successor Trustee toreplace the successor Trustee appointed by the Issuer and the SubsidiaryGuarantor.

 

Each successor Trustee shalldeliver a written acceptance of its appointment to the relevant retiringTrustee and to the Issuer and the Subsidiary Guarantor.  As promptly as practicable after that, suchretiring Trustee shall transfer, after payment of all sums then owing to itpursuant to Section 7.07, all property held by it as Trustee to such successorTrustee,  in which event the resignationor removal of such retiring Trustee shall become effective and such successorTrustee shall have the rights, powers, discretions, authorities, trusts andduties of the Trustee under this Indenture and the Intercreditor Deed.  A successor Trustee shall mail notice of itssuccession to each Holder.

 

If a successor Trustee does nottake office within 30 days after the retiring Trustee resigns or is removed,the retiring Trustee, the Issuer, the Subsidiary Guarantor or the Holders of atleast 10 per cent. in principal amount of the Notes for the time beingoutstanding may petition any court of competent jurisdiction for theappointment of a successor Trustee.

 

If the Trustee fails to complywith Section 7.09, any Holder who has been a bona fide holder of a Note for atleast six months may petition any court of competent jurisdiction for theremoval of the Trustee and the appointment of a successor Trustee.

 

Notwithstanding the replacementof the Trustee pursuant to this Section 7.08, the Issuer’s and the SubsidiaryGuarantor’ respective obligations under Section 7.07 shall continue after suchreplacement for the benefit of the retiring Trustee.

 
| **SECTION 7.09** |   | **ELIGIBILITY; DISQUALIFICATION** |
|------------------|--------|-----------------------------------|

 

This Indenture shall always havea Trustee which shall be eligible to act as Trustee under TIA §§310(a)(1), (2)and (5).  The Trustee shall have acombined capital and surplus of at least U.S.$50,000,000 as set forth in itsmost recent published annual report of condition.  If the Trustee has or shall acquire a “conflicting interest”within the meaning of TIA §310(b), the Trustee, the Issuer and the SubsidiaryGuarantor shall comply with the provisions of TIA §310(b) (subject to thepenultimate paragraph

 

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thereof).  If at any time the Trustee shall cease to beeligible in accordance with the provisions of this Section 7.09, the Trusteeshall resign immediately in the manner and with the effect specified in Section7.08.

 
| **SECTION 7.10** |   | **PREFERENTIAL COLLECTION OF CLAIMS AGAINST  THE ISSUER OR THE SUBSIDIARY GUARANTOR** |
|------------------|--------|---------------------------------------------------------------------------------------|

 

The Trustee shall comply withTIA §311(a), excluding any creditor relationship listed in TIA §311(b).  A Trustee who has resigned or been removedshall be subject to TIA §311(a) to the extent indicated therein.

 

**ARTICLEVIII**

 

**SUBORDINATION OF NOTES**

 
| **SECTION 8.01** |   | **AGREEMENT TO SUBORDINATE** |
|------------------|--------|------------------------------|

 

The Issuer agrees and eachHolder by accepting a Note agrees, that the Indebtedness evidenced by the Notesis subordinated in right of payment, to the extent and in the manner providedin this Article Eight and the Intercreditor Deed, to the prior payment in fullin cash of all Senior Indebtedness, and that the subordination is for thebenefit of and enforceable by the holders of such Senior Indebtedness. TheNotes shall in all respects rank pari passu with all other Senior SubordinatedIndebtedness of the Issuer and only Indebtedness which is Senior Indebtednessshall rank senior to the Notes in accordance with the provisions set forthherein. All provisions of this Article Eight shall be subject to Section 8.11.

 
| **SECTION 8.02** |   | **LIQUIDATION, DISSOLUTION, BANKRUPTCY** |
|------------------|--------|------------------------------------------|

 

Upon any payment or distributionof the assets of the Issuer to creditors upon a total or partial liquidation ora total or partial dissolution of the Issuer or in a bankruptcy,re-organisation, insolvency, receivership or similar proceeding relating to theIssuer or its property:

 

(a) holders of SeniorIndebtedness shall be entitled to receive payment in full of such SeniorIndebtedness in accordance with its terms before Holders shall be entitled toreceive any payment of principal of or interest on the Notes;

 

(b) until such SeniorIndebtedness is paid in full, any payment or distribution to which Holderswould be entitled but for this Article Eight shall be made to holders of suchSenior Indebtedness in accordance with its terms as their interests may appear,except that Holders may receive shares of Capital Stock and any debt securitiesthat are subordinated to such Senior Indebtedness to at least the same extentas the Notes;

 

(c) the claims of the Trusteeand the Holders against the Issuer in respect of the Notes (the “**Note Claims**”) shall be subordinated in themanner hereinafter set out in this Section 8 and accordingly, while the NoteClaims are so subordinated, no amount shall be payable to the Holders and anyamount in respect of the Notes paid to the Trustee shall, subject to the priorperformance by the parties thereto of their

 

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obligations (if any) under theIntercreditor Deed be held by the Trustee upon trust to apply in accordancewith Section 6.10 and the said trust, shall be performed by the Trustee byrepaying to the liquidator for the time being of the Issuer (the “**Liquidator**”) the amount certified by theLiquidator as provided below so to be applied on terms that the Liquidatorshall distribute the same accordingly and the Trustee shall be under noobligation to supervise and shall not be liable in any way in relation to suchdistribution;

 

(d) the receipt by theLiquidator of any moneys paid by the Trustee pursuant to (c) above shall be agood discharge to the Trustee for the performance by the Trustee of therelative trust mentioned in such clause;

 

(e) the Trustee shall beentitled and is hereby authorised to call for and accept as conclusive evidencethereof a certificate by the Liquidator as to:

 

(i)                                     theamounts of the claims of all the other creditors to be applied as referred toin Section 8.02(c); and

 

(ii)                                  thepersons entitled thereto and their respective entitlements.

 
| **SECTION 8.03** |   | **DEFAULT ON DESIGNATED SENIOR INDEBTEDNESS.** |
|------------------|--------|------------------------------------------------|

 

(a) The Issuer shall not paythe principal of, premium, if any, on or interest on the Notes or make anydeposit pursuant to Section 9.01 (collectively, “pay the Notes”) if (1) anyDesignated Senior Indebtedness is not paid when due or (2) any other default onDesignated Senior Indebtedness occurs and is continuing and the maturity ofsuch Designated Senior Indebtedness is accelerated by the holders thereof inaccordance with its terms unless, in either of (1) or (2), (x) the default hasbeen cured or waived and any such acceleration has been rescinded or (y) suchDesignated Senior Indebtedness has been paid in full; provided, however, thatthe Issuer may pay the Notes without regard to the foregoing if the Trusteereceives written notice approving such payment from the Representative of suchDesignated Senior Indebtedness.

 

(b) During the continuance ofany default (other than a default under (1) or (2) of sub-clause (a) above)with respect to any Designated Senior Indebtedness pursuant to which thematurity thereof may be accelerated either immediately without further notice(except such notice as may be required to effect such acceleration) or afterthe expiration of any applicable grace periods, the Issuer shall not pay theNotes for a period (a “Payment Blockage Period”) commencing upon the receipt bythe Issuer and the Trustee of written notice (a “Blockage Notice”) of suchdefault from the Representative of such Designated Senior Indebtednessspecifying an election to effect a Payment Blockage Period and ending 179 daysthereafter unless such Payment Blockage Period is terminated earlier, (1) bywritten notice to the Trustee from the Person or Persons who gave such BlockageNotice, or (2) if the default giving rise to such Blockage Notice is cured,waived or otherwise no longer continuing or (3) if such Designated SeniorIndebtedness has been discharged or repaid in full).

 

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(c) Notwithstanding sub-clause(b) above  (but subject to sub-clause(a) above), unless the holders of such Designated Senior Indebtedness or theRepresentative of such holders shall have accelerated the maturity of suchDesignated Senior Indebtedness, the Issuer may resume payments on the Notesupon termination of such Payment Blockage Period. No more than one BlockageNotice may be given in any consecutive 360-day period, irrespective of thenumber of defaults with respect to Designated Senior Indebtedness during suchperiod.  For purposes of this Section8.03, no default or event of default which existed or was continuing on thedate of the commencement of any Payment Blockage Period with respect to theDesignated Senior Indebtedness initiating such Payment Blockage Period shallbe, or be made, the basis of the commencement of a subsequent Payment BlockagePeriod, whether or not within a period of 360 consecutive days, unless such defaultor event of default shall have been cured or waived for a period of not lessthan 90 consecutive days.

 
| **SECTION 8.04** |   | **ACCELERATION OF PAYMENT OF NOTES.** |
|------------------|--------|---------------------------------------|

 

If payment of the Notes isaccelerated because of an Event of Default, the Issuer or the Trustee shallpromptly notify the holders of the Designated Senior Indebtedness (or theirRepresentatives) of the acceleration. The Trustee shall give notice of suchacceleration, of which it has actual knowledge pursuant to this Indenture, toall holders of Designated Senior Indebtedness. Prior to the Trustee’s giving such notice, the Issuer shall notify theTrustee of the name and address of any such holder of Designated SeniorIndebtedness.

 
| **SECTION 8.05** |   | **SUBROGATION.** |
|------------------|--------|------------------|

 

Subject to the payment in fullin cash, or such payment duly provided for to the satisfaction of the holdersof Designated Senior Indebtedness, of all Designated Senior Indebtedness, theHolders shall (subject to the provisions of the Intercreditor Deed) besubrogated to the rights of the holders of Designated Senior Indebtedness toreceive payments or distributions of assets of the Issuer applicable to theDesignated Senior Indebtedness, and for the purpose of such subrogation nopayments or distributions to the holders of Designated Senior Indebtedness byor on behalf of the Issuer, or by or on behalf of the Holders by virtue of thisArticle Eight, which otherwise would have been made to the Holders shall, asbetween the Issuer, the Subsidiary Guarantor and the Holders, be deemed to be apayment by the Issuer to the holders of, or on account of, the DesignatedSenior Indebtedness.

 
| **SECTION 8.06** |   | **RELATIVE RIGHTS.** |
|------------------|--------|----------------------|

 

This Article Eight defines therelative rights of Holders and holders of Designated Senior Indebtedness.Nothing in this Indenture shall:

 

(a) impair, as between theIssuer and Holders, the obligation of the Issuer, which is absolute andunconditional, to pay principal of and interest on the Notes in accordance withtheir terms; or

 

(b) prevent the Trustee or anyHolder from exercising its available remedies upon a Default or Event ofDefault, subject to the rights of holders of Senior Indebtedness to

 

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receive distributions otherwisepayable to Holders and subject to the rights of the holders of SeniorIndebtedness under the Intercreditor Deed.

 
| **SECTION 8.07** |   | **SUBORDINATION MAY NOT BE IMPAIRED BY  ISSUER.** |
|------------------|--------|---------------------------------------------------|

 

No right of any holder of SeniorIndebtedness to enforce the subordination of the Indebtedness evidenced by theNotes shall be impaired by any act or failure to act by the Issuer or by itsfailure to comply with this Indenture.

 
| **SECTION 8.08** |   | **RIGHTS OF TRUSTEE AND PAYING AGENT.** |
|------------------|--------|-----------------------------------------|

 

Notwithstanding Section 8.03,the Trustee or Paying Agent may continue to make payments on the Notes and shallnot be charged with knowledge of the existence of facts that would prohibit themaking of any such payments unless, not less than five Business Days prior tothe date of such payment, a Trust Officer of the Trustee receives noticesatisfactory to it that payments may not be made under this Article Eight. TheIssuer, the Registrar or co-registrar, the Paying Agent, a Representative or aholder of Senior Indebtedness may give the notice; provided, however, that, ifan issue of Senior Indebtedness has a Representative, only the Representativemay give the notice.

 

The Trustee in its individual orany other capacity may hold Senior Indebtedness with the same rights it wouldhave if it were not Trustee. The Registrar and co-registrar and the PayingAgent may do the same with like rights. The Trustee shall be entitled to allthe rights set forth in this Article Eight with respect to any SeniorIndebtedness which may at any time be held by it, to the same extent as anyother holder of such Senior Indebtedness; and nothing in this Article Eightshall deprive the Trustee of any of its rights as such holder. Nothing in thisArticle Eight shall apply to claims of, or payments to, the Trustee under orpursuant to Section 7.07.

 
| **SECTION 8.09** |   | **DISTRIBUTION OR NOTICE TO REPRESENTATIVE.** |
|------------------|--------|-----------------------------------------------|

 

Whenever a distribution is to bemade or a notice given to holders of Senior Indebtedness, the distribution maybe made and the notice given to their Representative (if any).

 
| **SECTION 8.10** |   | **ARTICLE EIGHT NOT TO PREVENT EVENTS OF  DEFAULT OR LIMIT RIGHT TO ACCELERATE.** |
|------------------|--------|-----------------------------------------------------------------------------------|

 

The failure to make a paymentpursuant to the Notes by reason of any provision in this Article Eight shallnot be construed as preventing the occurrence of a Default or Event of Default.Nothing in this Article Eight shall have any effect on the right of the Holdersor the Trustee to accelerate the maturity of the Notes.

 

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| **SECTION 8.11** |   | **TRUST MONEYS NOT SUBORDINATED.** |
|------------------|--------|------------------------------------|

 

Notwithstanding anythingcontained herein to the contrary, payments from money or the proceeds of U.S.Government Obligations held in trust under Article Nine by the Trustee for thepayment of principal of and interest on the Notes shall not be subordinated tothe prior payment of any Senior Indebtedness or subject to the restrictions setforth in this Article Eight, and none of the Holders shall be obligated to payover any such amount to the Issuer, the Subsidiary Guarantor or any holder ofSenior Indebtedness or any other creditor of the Subsidiary Guarantor or theIssuer.

 
| **SECTION 8.12** |   | **TRUSTEE ENTITLED TO RELY.** |
|------------------|--------|-------------------------------|

 

Upon any payment or distributionpursuant to this Article Eight, the Trustee and the Holders shall be entitledto rely (1) upon any order or decree of a court of competent jurisdiction inwhich any proceedings of the nature referred to in Section 8.02 are pending,(2) upon a certificate of the Liquidator, the liquidating trustee or agent orother Person making such payment or distribution to the Trustee or to theHolders or (3) upon the Representatives for the holders of Senior Indebtednessfor the purpose of ascertaining the Persons entitled to participate in suchpayment or distribution, the holders of such Senior Indebtedness and otherIndebtedness of the Issuer, the amount thereof or payable thereon, the amountor amounts paid or distributed thereon and all other facts pertinent thereto orto this Article Eight. In the event that the Trustee determines, in good faith,that evidence is required with respect to the right of any Person as a holderof Senior Indebtedness to participate in any payment or distribution pursuantto this Article Eight, the Trustee may request such Person to furnish evidenceto the satisfaction of the Trustee as to the amount of such Senior Indebtednessheld by such Person, the extent to which such Person is entitled to participatein such payment or distribution and other facts pertinent to the rights of suchPerson under this Article Eight, and, if such evidence is not furnished, theTrustee may defer any payment to such Person pending judicial determination asto the right of such Person to receive such payment. The provisions of Sections7.01 and 7.02 shall be applicable to all actions or omissions of actions by theTrustee pursuant to this Article Eight.

 
| **SECTION 8.13** |   | **TRUSTEE TO EFFECTUATE SUBORDINATION.** |
|------------------|--------|------------------------------------------|

 

(a) Each Holder by accepting aNote authorizes and directs the Trustee on his behalf to take such action asmay be necessary or appropriate to acknowledge or effectuate the subordinationbetween the Holders and the holders of Senior Indebtedness and the pari passuranking between the Holders and the holders of other Senior SubordinatedIndebtedness as provided in this Article Eight and Article Twelve and appointsthe Trustee as attorney-in-fact for any and all such purposes.  The Trustee shall, at the request in writingof the Issuer, enter into such inter-creditor arrangements with holders ofDesignated Senior Indebtedness and/or other Senior Subordinated Indebtednessincurred by the Issuer or any Restricted Subsidiary at any time, the incurrenceof which is not prohibited by the terms of this Indenture, as shall be proposedby the Issuer to give effect to the subordination and pari passu provisions ofArticle Eight and Article Twelve; provided that (i) the Issuer shall, withoutprejudice to the intent to give effect to such provisions, comply with suchreasonable requirements as the Trustee may direct in relation thereto in theinterest of the Holders; and (ii) the Trustee is satisfied that, save to theextent that they provide for

 

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subordination and/or pari passuranking on the terms of this Article Eight and Article Twelve, the saidarrangements are not materially prejudicial to the interests of theHolders.  Not later than 14 days afterthe entry into arrangements as aforesaid and after compliance with the saidrequirements of the Trustee, the Issuer shall give notice thereof in a formpreviously approved by the Trustee to the Holders in accordance with Section13.02.

 

(b) The Trustee is herebyexpressly authorized by the Holders to enter into the Intercreditor Deed andhas, concurrently with the entering into of this Indenture, entered into theIntercreditor Deed for the purpose of, among other things, (1) giving effect tothe provisions set forth in Article Eight and Article Twelve subordinating theNotes and the Subsidiary Guarantee to Senior Indebtedness and (2) providing forcertain other subordination related provisions set forth in the IntercreditorDeed solely for the benefit of the holders of Senior Indebtedness set forth inthe Intercreditor Deed in effect as of the date of this Indenture.

 
| **SECTION 8.14** |   | **TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR  INDEBTEDNESS.** |
|------------------|--------|----------------------------------------------------------------|

 

The Trustee shall not be deemedto owe any fiduciary duty to the holders of Senior Indebtedness and shall notbe liable to any such holders if it shall mistakenly pay over or distribute toHolders, the Issuer, the Subsidiary Guarantor or any other Person, money orassets to which any holders of Senior Indebtedness shall be entitled by virtueof this Article Eight or otherwise.

 
| **SECTION 8.15** |   | **RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS  ON SUBORDINATION PROVISIONS.** |
|------------------|--------|------------------------------------------------------------------------------|

 

Each Holder by accepting a Noteacknowledges and agrees that the foregoing subordination provisions are, andare intended to be, an inducement and a consideration to each holder of anySenior Indebtedness whether such Senior Indebtedness was created or acquiredbefore or after the issuance of the Notes, to acquire and continue to hold, orto continue to hold, such Senior Indebtedness and such holder of such SeniorIndebtedness shall be deemed conclusively to have relied on such subordinationprovisions in acquiring and continuing to hold, or in continuing to hold, suchSenior Indebtedness.

 

**ARTICLEIX**

 

**DISCHARGE OF INDENTURE; DEFEASANCE**

 
| **SECTION 9.01** |   | **TERMINATION OF ISSUER’S OBLIGATIONS** |
|------------------|--------|----------------------------------------------|

 

(a) This Indenture will bedischarged and will cease to be of further effect (except as to survivingrights or registration of transfer or exchange of the Notes, as expresslyprovided for in this Indenture) as to all outstanding Notes when (a) either (i)all the Notes authenticated and delivered (except lost, stolen or destroyedNotes which have been replaced or paid and Notes the payment of which has beendeposited in trust or segregated and held in trust by the Issuer and thereafterrepaid to the Issuer pursuant

 

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to Section 9.03 or dischargedfrom such trust) have been delivered to the Trustee for cancellation or (ii)all Notes not theretofore delivered to the Trustee for cancellation have becomedue and payable and the Issuer has irrevocably deposited or caused to bedeposited with the Trustee funds in an amount sufficient to pay and dischargethe entire Indebtedness on the Notes not theretofore delivered to the Trusteefor cancellation, for principal of, and interest, if any, and AdditionalAmounts, if any, on, the Notes to the date of deposit together with irrevocableinstructions from the Issuer directing the Trustee to apply such funds to thepayment thereof at maturity or redemption, as the case may be, (b) the Issuerhas paid all other sums payable under this Indenture by the Issuer and (c) theIssuer has delivered to the Trustee an Officers’ Certificate and an Opinion ofCounsel stating that all conditions precedent under this Indenture relating tothe satisfaction and discharge of this Indenture have been complied with.

 

The Issuer may, at its optionand at any time, elect to have its obligations discharged with respect to theoutstanding Notes (“Legal Defeasance”) whereupon the Issuer shall be deemed tohave paid and discharged the entire Indebtedness represented by the outstandingNotes, except for (a) the rights of Holders to receive payments in respect of theprincipal of, and interest, if any, and Additional Amounts, if any, on, theNotes when such payments are due, (b) the Issuer’s obligations with respect tothe Notes concerning issuing temporary Notes, registration of Notes, replacingmutilated, destroyed, lost or stolen Notes and the maintenance of an office oragency for payments, (c) the rights, powers, authorities, discretions, trusts,duties and immunities of the Trustee and the Issuer’s obligations in connectiontherewith and (d) this Section 9.01.  Inaddition, the Issuer may, at its option and at any time, elect to have theobligations of the Issuer released with respect to Sections 4.04 to 4.12, 4.18,(and thereafter any omission to comply with such obligations shall notconstitute a Default or Event of Default with respect to the Notes), 5.01 (c)and (d), 6.01 (e), (f) and (with respect to Significant Subsidiaries) 6.01 (h)and (i) thereafter any omission to comply with such obligations shall notconstitute a Default or Event of Default with respect to the Notes. (“CovenantDefeasance”).

 

In order to exercise eitherLegal Defeasance or Covenant Defeasance:

 

(a)           the Issuer mustirrevocably deposit with the Trustee, in trust, for the benefit of the Holdersmoney in an amount, or Designated Government Obligations, or a combinationthereof, in such amounts as will be sufficient, in the opinion of aninternationally recognised firm of independent public accountants, to pay theprincipal of, and interest, if any, and Additional Amounts, if any, on, the Noteson the stated date for payment thereof or on the applicable Redemption Date, asthe case may be;

 

(b)           in the case of LegalDefeasance, the Issuer shall have delivered to the Trustee (1) an Opinion ofCounsel in the United States (subject to customary assumptions, exceptions andlimitations) reasonably acceptable to the Trustee confirming that the Holderswill not recognise income, gain or loss for U.S. federal income tax purposes asa result of such Legal Defeasance and will be subject to U.S. federal incometax on the same amounts, in the same manner and at the same times as would havebeen the case if such Legal Defeasance had not occurred;

 

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(c)           in the case ofCovenant Defeasance, the Issuer shall have delivered to the Trustee (1) anOpinion of Counsel in the United States (subject to customary assumptions,exceptions and limitations) reasonably acceptable to the Trustee confirmingthat the Holders will not recognise income, gain or loss for U.S. federalincome tax purposes as a result of such Covenant Defeasance and will be subjectto U.S. federal income tax on the same amounts, in the same manner and at thesame times as would have been the case if such Covenant Defeasance had notoccurred;

 

(d)           no Default or Eventof Default shall have occurred and be continuing on the date of such deposit orinsofar as Events of Default in connection with bankruptcy or insolvency eventsare concerned, at any time in the period ending on the 91st day after the dateof deposit;

 

(e)           such LegalDefeasance or Covenant Defeasance shall not result in a breach or violation of,or constitute a default under this Indenture or any other material agreement orinstrument to which the Subsidiary Guarantor or any of their respectiveSubsidiaries (including the Issuer) are bound;

 

(f)            the Issuer shallhave delivered to the Trustee an Officers’ Certificate stating that the depositwas not made by the Issuer with the intent of preferring the Holders over anyother creditors of the Issuer or the Subsidiary Guarantor or with the intent ofdefeating, hindering, delaying or defrauding any other creditors of the Issueror the Subsidiary Guarantor;

 

(g)           the Issuer shallhave delivered to the Trustee an Officers’ Certificate and an Opinion ofCounsel satisfactory to the Trustee, each stating that all conditions precedentprovided for or relating to Legal Defeasance or Covenant Defeasance, as thecase may be, have been complied with;

 

(h)           the Issuer shallhave delivered to the Trustee an Opinion of Counsel in the United States, TheNetherlands and the United Kingdom respectively (subject to customaryexceptions) to the effect that (A) the trust funds referred to in paragraph (a)above will not be subject to any rights of holders of Senior Debt, including,without limitation, those arising under the Intercreditor Deed or thisIndenture, (B) after the 91st day following the deposit, such trust funds willnot be subject to the effect of any applicable bankruptcy, insolvency,reorganisation of similar laws affecting creditors’ rights generally under U.K.law, Dutch law or U.S. Federal or state law (as the case may be) and (C) theTrustee has a perfected first-ranking security interest in such trust funds forthe rateable benefit of itself and the Holders; and

 

(i)            if the Notes are tobe redeemed prior to the Maturity Date, notice of such redemption shall havebeen duly given pursuant to this Indenture or provision therefor satisfactoryto the Trustee shall have been made.

 
| **SECTION 9.02** |   | **APPLICATION OF TRUST MONEY** |
|------------------|--------|--------------------------------|

 

The Trustee or Paying Agentshall hold in trust money and/or Designated Government Obligations depositedwith it pursuant to Section 9.01, and, subject to the provisions of Section6.10, shall apply the deposited money and/or Designated Government Obligationsin accordance with this Indenture to the payment of the principal of, and

 

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interest, if any, and AdditionalAmounts, if any, on the Notes.  TheTrustee shall be under no obligation to invest said money and/or DesignatedGovernment Obligations except as it may agree in writing with the Issuer.

 

The Issuer shall pay andindemnify the Trustee against any tax, fee or other charge or duty imposed onor assessed against the money and/or Designated Government Obligationsdeposited pursuant to Section 9.01 or the principal and interest received inrespect thereof other than any such tax, fee or other charge or duty whichbylaw is for the account of the Holders of outstanding Notes.

 
| **SECTION 9.03** |   | **REPAYMENT TO THE ISSUER** |
|------------------|--------|-----------------------------|

 

Subject to Sections 9.01 and9.02, the Trustee and the Paying Agent shall promptly pay to the Issuer uponrequest the balance (if any) of money and/or Designated Government Obligationsheld by them at any time following the application thereof in accordance withSection 9.02 and thereupon shall be relieved from all liability with respect tosuch money and/or Designated Government Obligations .  The Trustee and the Paying Agent shall pay to the Issuer uponrequest any money held by them for the payment of principal of, or interest, ifany on, the Notes that remains unclaimed for one year; provided, however, thatthe Trustee or such Paying Agent, before being required to make any suchpayment, may at the expense of the Issuer cause to be published once in anewspaper of general circulation in the City of New York and Londonrespectively or mail to each Holder entitled to such money notice that suchmoney remains unclaimed and that after a date specified therein which shall beat least 30 days from the date of such publication or mailing any unclaimedbalance of such money then remaining will be repaid to the Issuer.  After payment to the Issuer, Holdersentitled to such money must look to the Issuer for payment as general creditorsunless an applicable law designates another Person.

 
| **SECTION 9.04** |   | **REINSTATEMENT** |
|------------------|--------|-------------------|

 

If the Trustee or Paying Agentis unable to apply any money and/or Designated Government Obligations inaccordance with Section 9.02 by reason of any legal proceeding or by reason ofany order or judgment of any court or governmental authority enjoining,restraining or otherwise prohibiting such application, the Issuer’s obligationsunder this Indenture and the Notes shall be revived and reinstated as though nodeposit had occurred pursuant to Section 9.01; provided, however, that if theIssuer has made any payment of principal of or interest on any Notes because ofthe reinstatement of its obligations, the Issuer shall be surrogated to therights of the Holders of such Notes to receive such payment from the moneyand/or Designated Government Obligations held by the Trustee or Paying Agent.

 
| **SECTION 9.05** |   | **ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE** |
|------------------|--------|--------------------------------------------|

 

After (i) the conditions ofSection 9.01 have been satisfied, (ii) the Issuer has paid or caused to be paidall other sums payable hereunder by the Issuer and (iii) the Issuer hasdelivered to the Trustee an Officers’ Certificate and an Opinion of Counselsatisfactory to the Trustee each stating that all conditions precedent referredto in Section 9.01 above relating to the satisfaction and discharge of thisIndenture,

 

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including as to Legal Defeasanceor Covenant Defeasance, as applicable, have been complied with, the Trusteeupon request shall acknowledge in writing the discharge or defeasances, asapplicable, of the Issuer’s obligations under this Indenture except for thosesurviving obligations specified in Section 9.01.

 

**ARTICLEX**

 

**AMENDMENTS, SUPPLEMENTS AND WAIVERS**

 
| **SECTION 10.01** |   | **WITHOUT CONSENT OF HOLDERS** |
|-------------------|--------|--------------------------------|

 

From time to time, the Issuerand the Trustee, without the consent of the Holders, may amend or supplementthis Indenture or the Notes for certain specified purposes, including, withoutlimitation:

 

(a) to cure any ambiguity,defect or inconsistency in the opinion of the Trustee;

 

(b) to provide foruncertificated Notes in addition to or in place of certificated Notes (providedthat the uncertificated Notes are issued in registered form for purposes ofSection 163(f) of the Code, or in a manner such that the uncertificated Notesare described in Section 163(f)(2)(B) of the Code);

 

(c) to provide for theassumption by a successor company of the obligations of the Issuer under theIndenture;

 

(d) to add a SubsidiaryGuarantee with respect to the Notes or to secure the Notes;

 

(e) to add to the covenants ofthe Issuer for the benefit of the holders of the Notes or to surrender anyright or power conferred upon the Issuer;

 

(f) to make any change that isnot materially prejudicial to the interests of any such holder;

 

(g) to comply with requirementsof the SEC in order to effect or maintain the qualification of this Indentureunder the TIA; or

 

(h)                                 tomake any modifications to the provisions of the Intercreditor Deed, includingany definition set forth or otherwise incorporated therein, in order to providefor the pari passu ranking of any Senior Subordinated Indebtedness permitted tobe Incurred by the Issuer, the Subsidiary Guarantor or any of the RestrictedSubsidiaries in accordance with the provisions of this indenture (including thecreation of Senior Subordinated Indebtedness); provided, however, that theIssuer and the Subsidiary Guarantor have delivered to the Trustee an Opinion ofCounsel satisfactory to the Trustee stating that such modification or changecomplies with the provisions of this clause (h) and the Trustee shall be fullyprotected in relying on any such Opinion;

 

provided, however, that theIssuer and the Subsidiary Guarantor have delivered to the Trustee an Opinion ofCounsel satisfactory to the Trustee stating that such amendment or supplementcomplies with the provisions of this Section 10.01.

 

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| **SECTION 10.02** |   | **WITH CONSENT OF HOLDERS** |
|-------------------|--------|-----------------------------|

 

Subject to Section 6.07 and10.01, the Issuer and the Trustee may amend or supplement this Indenture or theNotes with the written consent of the Holders of a majority in principal amountof the Notes for the time being outstanding. Subject to Section 6.07, the Holders of at least a majority in principalamount of the Notes for the time being outstanding may waive compliance by theIssuer or the Subsidiary Guarantor with any provision of this Indenture or theNotes (other than any provision relating to the remuneration or indemnity ofthe Trustee).  However, without thewritten consent of each affected Holder, an amendment, supplement or waiver,including a waiver pursuant to Section 6.04, may not:

 

(a) reduce the principal amountof the Notes whose holders must consent to an amendment or waiver;

 

(b) reduce the rate of orextend the time for payment of interest on any Note;

 

(c) reduce the principal of orchange the Stated Maturity of any Note;

 

(d) reduce the amount payableupon the redemption of any Note or change the date on which any Note may beredeemed or repurchased other than the provisions relating to the right to havethe Note repurchased (but not the amounts that would otherwise be payable)under Section 4.10;

 

(e) make any Note payable inmoney other than that stated in the Notes (except as described in Section2.22);

 

(f) impair the right of anyholder of the Notes to receive payment of principal of and interest on suchholder’s Notes on or after the due dates therefor or to institute suit for theenforcement of any payment on or with respect to such holder’s Notes;

 

(g) make any change in theamendment provisions or in the waiver provisions of this Indenture whichrequire each holder’s consent;

 

(h) make any change to thesubordination provisions of this Indenture that would adversely affect theholders of the Notes;

 

(i) make any change in theSubsidiary Guarantee that would adversely affect the holders of the Notes inany material respect.

 

(j) modify or change anyprovision of the Intercreditor Deed, including any definition set forth orotherwise incorporated therein, in a manner which, in the opinion of theTrustee, adversely affects the interests of the Holders.

 

An amendment under this Section10.02 may not make any change under Article Eight, Article Nine, Article Elevenor Article Twelve or the definitions used therein that adversely affects therights of any holder of Senior Indebtedness then outstanding unless such holderof such Senior Indebtedness (or any trustee thereof authorised to give aconsent or Representative) shall have consented in writing to such change.

 

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It shall not be necessary forthe consent of the Holders under this Section to approve the particular form ofany proposed amendment, supplement or waiver, but it shall be sufficient ifsuch consent approves the substance thereof.

 

After an amendment, supplementor waiver under Section 10.01 or 10.02 becomes effective, the Issuer shall,unless the Trustee agrees otherwise, give to the Holders affected thereby anotice describing the amendment, supplement or waiver (as the case maybe).  Any failure of the Issuer to givesuch notice or any defect therein, shall not, however, in any way impair oraffect the validity of such amendment, supplement or waiver (as the case maybe).

 
| **SECTION 10.03** |   | **COMPLIANCE WITH TRUST INDENTURE ACT** |
|-------------------|--------|-----------------------------------------|

 

Every amendment to or supplementof this Indenture or the Notes shall comply with the TIA as then in effect.

 
| **SECTION 10.04** |   | **REVOCATION AND EFFECT OF CONSENTS** |
|-------------------|--------|---------------------------------------|

 

Until an amendment, supplementor waiver becomes effective, a consent to it by a Holder of a Note or Notespursuant to this Article Ten is a continuing consent by the Holder and everysubsequent Holder of such Note or Notes or portion of that Note or Notes, evenif notation of the consent is not made on such Note or Notes.  Subject to the following paragraph, any suchHolder or subsequent Holder may revoke the consent as to such Holder’s Note orNotes or portion of such Note or Notes by notice to the Trustee, the Issuer andthe Subsidiary Guarantor received before the date on which the Trustee receivesan Officers’ Certificate certifying that the Holders of the requisite principalamount of Notes have consented (and not theretofore revoked such consent) tothe relevant amendment, supplement or waiver.

 

The Issuer may, but shall not beobliged to, fix a record date for the purpose of determining the Holdersentitled to consent to any amendment, supplement or waiver.  If a record date is fixed, then,notwithstanding the last sentence of the immediately preceding paragraph, thosepersons who were Holders at such record date (or their duly designated proxiesor representatives), and only those persons, shall be entitled to consent tosuch an amendment, supplement or waiver or to revoke any consent previouslygiven, whether or not such persons continue to be Holders after such recorddate.  No such consent shall be valid oreffective for more than 90 days after such record date.

 

After an amendment, supplementor waiver becomes effective, it shall bind the Issuer, the SubsidiaryGuarantor, the Trustee and every Holder.

 
| **SECTION 10.05** |   | **TRUSTEE TO SIGN AMENDMENTS, ETC.** |
|-------------------|--------|--------------------------------------|

 

The Trustee shall be entitled toreceive, and shall be fully protected in relying upon, an Opinion of Counsel andan Officers’ Certificate of the Issuer and/or the Subsidiary Guarantor, in eachcase stating that the execution of any amendment, supplement or waiverauthorized pursuant to this Article Ten is authorized or permitted by this

 

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Indenture and that suchamendment or supplement constitutes the legal, valid and binding obligation ofthe Issuer and the Subsidiary Guarantor respectively enforceable in accordancewith its terms (subject to customary exceptions).  The Trustee may, but shall not be obliged to, execute any suchamendment, supplement or waiver which affects the Trustee’s own rights, duties,trusts, discretions, authorities or immunities under this Indenture orotherwise.  In signing any amendment, supplementor waiver, the Trustee shall be entitled to receive an indemnity satisfactoryto it.

 

**ARTICLEXI**

 

**GUARANTEE**

** **
| **SECTION 11.01** |   | **GUARANTEE.** |
|-------------------|--------|----------------|

 

Subject as may be provided inSection 11.02 with respect to the guarantee obligations of the Subsidiary Guarantor,the Subsidiary Guarantor guarantees (such guarantee to be referred to herein asthe “Guarantee”) to each Holder of a Note authenticated and delivered by theTrustee and to the Trustee and its successors and assigns, that: (i) theprincipal of, interest, premium, if any, and Additional Amounts, if any, on theNotes will be promptly paid in full when due, subject to any applicable graceperiod, whether at maturity, by acceleration or otherwise and interest on theoverdue principal, if any, and interest on any interest, to the extent lawful,of the Notes and all other obligations of the Issuer to the Holders or theTrustee under the Indenture or the Notes will be promptly paid in full orperformed, all in accordance with the terms hereof and thereof; and (ii) incase of any extension of time of payment or renewal of any Notes or of any suchother obligations, the same will be promptly paid in full when due or performedin accordance with the terms of the extension or renewal, subject to anyapplicable grace period, whether at stated maturity, by acceleration orotherwise.

 

Subject as may be provided inSection 11.02 with respect to the Subsidiary Guarantee, the Subsidiary Guarantor further agrees that, asbetween the Subsidiary Guarantor on one hand, and the Holders and the Trusteeon the other hand, (x) the maturity of the Obligations guaranteed hereby may beaccelerated as provided in Article Six for the purposes of the SubsidiaryGuarantee, notwithstanding any stay, injunction or other prohibition preventingsuch acceleration in respect of the Obligations guaranteed hereby, and (y) inthe event of any acceleration of such Obligations as provided in Article Six,such Obligations (whether or not due and payable) shall forthwith become dueand payable by the Subsidiary Guarantor for the purposes of the SubsidiaryGuarantee.

 

Subject as may be provided inSection 11.02 with respect to the guarantee obligations of the SubsidiaryGuarantee, the Subsidiary Guarantor hereby agrees that its obligationshereunder shall be unconditional, irrespective of the validity, regularity orenforceability of the Notes or this Indenture, the absence of any action toenforce the same, any waiver or consent by any Holder of the Notes with respectto any provisions hereof or thereof, the recovery of any judgment against theIssuer, any action to enforce the same or any other circumstance which mightotherwise constitute a legal or equitable discharge or defence of aguarantor.  Subject to Section 11.02,the Subsidiary Guarantor hereby waives diligence, presentment, demand of

 

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payment, filing of claims with acourt in the event of insolvency or bankruptcy of the Issuer, any right torequire a proceeding first against the Issuer, protest, notice and all demandswhatsoever and covenants that it will not be discharged except by completeperformance of the Obligations contained in the Notes, this Indenture and inthe Subsidiary Guarantee.  If any Holder or theTrustee is required by any court or otherwise to return to the Issuer, theSubsidiary Guarantor, or any custodian, trustee, liquidator or other similarofficial acting in relation to the Issuer or the Subsidiary Guarantor, anyamount paid by the Issuer or the Subsidiary Guarantor to the Trustee or suchHolder, the Subsidiary Guarantor, to the extent theretofore discharged, shallbe reinstated in full force and effect. The Subsidiary Guarantor hereby agrees that, in the event of default inthe payment of principal (or premium, if any) or interest on such Notes,whether at their Stated Maturity, by acceleration, called for redemption,purchase or otherwise, legal proceedings may be instituted by the Trustee onbehalf of, or by, the Holder of such Notes, subject to the terms and conditionsset forth in this Indenture, directly against the Subsidiary Guarantor toenforce the Subsidiary Guarantor without first proceeding against theIssuer.  The Subsidiary Guarantor agreesthat if, after the occurrence and during the continuance of an Event ofDefault, the Trustee or any Holders are prevented by applicable law fromexercising their respective rights to accelerate the maturity of the Notes, tocollect interest on the Notes, or to enforce any other right or remedy withrespect to the Notes, the Subsidiary Guarantor agrees to pay to the Trustee forthe account of the Holders, upon demand therefor, the amount that wouldotherwise have been due and payable had such rights and remedies been permittedto be exercised by the Trustee or any of the Holders.

 
| **SECTION 11.02** |   | **ENFORCEMENT OF SUBSIDIARY GUARANTEE** |
|-------------------|--------|-----------------------------------------|

 

(a) Subject to (b) below,during such time as any Designated Senior Indebtedness remains outstanding atany time, neither the Holders nor the Trustee will be entitled to:

 

(i)                                     callor enforce the Subsidiary Guarantee (including by seeking attachment,exercising rights of set-off or otherwise); or

 

(ii)                                  petitionfor (or vote in favour of any resolution for) or initiate or support or takeany steps with a view to any winding-up, bankruptcy, insolvency, liquidation,reorganisation, moratorium, administration, dissolution or analogousproceedings or any voluntary arrangement or assignment for the benefit ofcreditors or any similar proceedings involving the Subsidiary Guarantor or anyof its Subsidiaries, whether by petition, convening a meeting, voting for aresolution or otherwise; or

 

(iii)                               bringor support any other legal proceedings against the Subsidiary Guarantor or anyof its Subsidiaries, other than solely for the purpose of obtaining injunctiverelief (or similar such proceedings in jurisdictions outside England and Wales)to restrain any actual or putative breach of the Notes, the SubsidiaryGuarantee or the Intercreditor Deed or for specific performance not claimingdamages, where doing so would not conflict with the foregoing.

 

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(b) Payment under theSubsidiary Guarantee will become due in accordance with Section 11.01 when:

 

(i)                                     subjectas provided below, any Designated Senior Indebtedness has been accelerated; or

 

(ii)                                  aperiod of 120 days has elapsed from the date of a payment default under theNotes (without such default being remedied or waived); or

 

(iii)                               subjectas provided below:

 

(A)                                        a resolution is passed or an orderis made for the winding-up, bankruptcy, liquidation, dissolution,administration or reorganisation of the Subsidiary Guarantor; or

 

(B)                                          the Subsidiary Guarantor becomes subject to anyinsolvency, bankruptcy, reorganisation, receivership (whether relating to allor some only of its assets and whether or not resulting from the enforcement ofany security), liquidation, dissolution or similar proceeding whether voluntaryor involuntary; or

 

(C)                                          the Subsidiary Guarantor assigns its assets forthe benefit of its creditors or enters into any composition or arrangement withits creditors generally or any arrangement is ordered or declared whereby itsaffairs and/or assets are submitted to the control of or are protected from itscreditors; or

 

(D)                                         the Subsidiary Guarantor becomes subject to anydistribution of its assets in consequence of insolvency, bankruptcy,reorganisation, liquidation, dissolution or administration; or

 

(E)                                           any event similar to any of thosedescribed in paragraphs (A) to (D) above occurs in relation to the Subsidiary Guarantor or its assets in anyjurisdiction.

 

Notwithstanding the occurrenceof the events referred to in (b)(i) or (iii) above, payment under the Subsidiary Guarantee from the Subsidiary Guarantor will not be due andneither the Holders nor the Trustee may make any demand on the Subsidiary Guarantor or take any other actionagainst the SubsidiaryGuarantor until a separate 120-day period has elapsed from the date of theoccurrence of such event under (i) or (iii) above but in no event shall suchperiod exceed the period of 120 days provided under (ii) above, if any holderof the security given under the Designated Senior Indebtedness confirms to theapplicable Trustee that it is enforcing or taking formal steps to enforce thesecurity it holds over the Subsidiary Guarantor, any Holding Company or any Subsidiary of the Subsidiary Guarantor by selling or procuringthe sale of the Capital Stock or any assets of the Subsidiary Guarantor, any such Holding Companyor any such Subsidiary.

 

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(c) For the avoidance of doubt,the provisions of this Section 11.02 shall not be construed as constituting anevent of default as set out in paragraph (g) of Section 6.01.

 
| **SECTION 11.03** |   | **SUBORDINATION OF SUBSIDIARY GUARANTEE.** |
|-------------------|--------|--------------------------------------------|

 

The obligations of the Subsidiary Guarantor to the Holders of theNotes and to the Trustee pursuant to the Subsidiary Guarantee and this Indenture are expresslysubordinate and subject in right of payment to the prior payment in full of allDesignated Senior Indebtedness to the extent and in the manner provided inArticle Twelve.

 
| **SECTION 11.04** |   | **SEVERABILITY.** |
|-------------------|--------|-------------------|

 

In case any provision of the Subsidiary Guarantee shall be invalid, illegalor unenforceable, the validity, legality, and enforceability of the remainingprovisions shall not in any way be affected or impaired thereby.

 
| **SECTION 11.05** |   | **RELEASE OF SUBSIDIARY GUARANTOR FROM THE  SUBSIDIARY GUARANTEE** |
|-------------------|--------|--------------------------------------------------------------------|

 

(a) The Subsidiary Guaranteewill be released upon the occurrence of the following events:

 

(i)                                     immediatelyupon the sale of all of the common shares of the Subsidiary Guarantor or of adirect or indirect Holding Company of the Subsidiary Guarantor to any personwhich is not a Subsidiary or Affiliate of the Issuer resulting from theenforcement of (or exercise of voting rights or powers resulting from) anysecurity in respect of Designated Senior Indebtedness;

 

(ii)                                  inthe event that the Subsidiary Guarantor is otherwise to be released inaccordance with the terms of the Designated Senior Indebtedness and/or theNotes; and

 

(iii)                               uponthe sale or other disposition (including by way of consolidation or merger) ofthe Subsidiary Guarantor or the sale or disposition of all or substantially allthe assets of the Subsidiary Guarantor (in each case other than to the Issueror an Affiliate of the Issuer) permitted under Section 5.01 (including pursuantto the exercise of remedies in respect of any Lien on the Capital Stock of theSubsidiary Guarantor, which Lien secures outstanding Designated Senior Indebtedness).

 

(b) The release of theSubsidiary Guarantor under (a) above shall only occur at such times as theSubsidiary Guarantor shall be unconditionally released from its guaranteeobligations under all Designated Senior Indebtedness.

 

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| **SECTION 11.06** |   | **WAIVER OF SUBROGATION.** |
|-------------------|--------|----------------------------|

 

Until payment in full is made ofthe Notes and all other obligations of the Issuer to the Holders or the Trusteehereunder and under the Notes, the Subsidiary Guarantor hereby irrevocably waivesany claim or other rights which it may now or hereafter acquire against theIssuer that arise from the existence, payment, performance or enforcement ofthe SubsidiaryGuarantor’s obligations under the Subsidiary Guarantee and this Indenture, includingwithout limitation, any right of subrogation, reimbursement, exoneration,indemnification, and any right to participate in any claim or remedy of anyHolder of Notes against the Issuer, whether or not such claim, remedy or rightarises in equity, or under contract, statute or common law, including, withoutlimitation, the right to take or receive from the Issuer, directly orindirectly, in cash or other property or by set-off or any other manner,payment or Note on account of such claim or other rights.  If any amount shall be paid to the Subsidiary Guarantor in violation of thepreceding sentence and the Notes shall not have been paid in full, such amountshall have been deemed to have been paid to the Subsidiary Guarantor for the benefit of, andheld in trust for the benefit of, the Holders of the Notes, and shall forthwithbe paid to the Trustee for the benefit of such Holders to be credited andapplied upon the Notes, whether matured or unmatured, in accordance with theterms of this Indenture.  The Subsidiary Guarantor acknowledges that it willreceive direct and indirect benefits from the financing arrangementscontemplated by this Indenture and that the waiver set forth in this Section11.06 is knowingly made in contemplation of such benefits.

 
| **SECTION 11.07** |   | **EXECUTION OF SUBSIDIARY GUARANTEE.** |
|-------------------|--------|----------------------------------------|

 

To evidence its guarantee to theHolders set forth in this Article Eleven, the Subsidiary Guarantor hereby agrees to executethe SubsidiaryGuarantee in substantially the form included in Exhibit A, which shall beendorsed on such Note ordered to be authenticated and delivered by theTrustee.  The Subsidiary Guarantor hereby agrees that the Subsidiary Guarantee set forth in this ArticleEleven shall remain in full force and effect notwithstanding any failure toendorse on each Note a notation of the Subsidiary Guarantee. The SubsidiaryGuarantee shall be signed on behalf of the Subsidiary Guarantor by one Officer or authorisedsignatory of the Subsidiary Guarantor (whom shall have been duly authorized by all requisitecorporate actions) prior to the authentication of the Note on which it isendorsed, and the delivery of such Note by the Trustee, after theauthentication thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee on behalf of the Subsidiary Guarantor.  Such signatures upon the Subsidiary Guarantee may be by manual orfacsimile signature of such officers and may be imprinted or otherwisereproduced on the Subsidiary Guarantee, and in case any such Officer who shall have signed the Subsidiary Guarantee shall cease to be suchofficer before the Note on which the Subsidiary Guarantee is endorsed shall have beenauthenticated and delivered by the Trustee or disposed of by the Issuer, suchNote nevertheless may be authenticated and delivered or disposed of as thoughthe person who signed the Subsidiary Guarantee had not ceased to be such Officer of the Subsidiary Guarantor.

 

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| **SECTION 11.08** |   | **WAIVER OF STAY OR EXECUTION LAWS.** |
|-------------------|--------|---------------------------------------|

 

The Subsidiary Guarantor shall not at any timeinsist upon, or plead, or in any manner whatsoever claim or take the benefit oradvantage of, any stay or execution law wherever enacted, now or at any timehereafter in force, which may affect the covenants or the performance of thisIndenture; and (to the extent that it may lawfully do so) the Subsidiary Guarantor hereby expressly waivesall benefit or advantage of any such law, and shall not hinder, delay or impede the execution of any power hereingranted to the Trustee, but shall suffer and permit the execution of every suchpower as though no such law had been enacted.

 
| **SECTION 11.09** |   | **EFFECTIVENESS OF SUBSIDIARY GUARANTEE.** |
|-------------------|--------|--------------------------------------------|

 

The Subsidiary Guarantee shall (i) remain in fullforce and effect and shall be valid to the fullest extent permitted byapplicable law (including, without limitation, the law applicable to the Subsidiary Guarantor) and (ii) continue to beeffective should any petition be filed by or against the Issuer for liquidationor reorganization, should the Issuer become insolvent or make an assignment forthe benefit of creditors or should a receiver or trustee be appointed for allor any significant part of the Issuer’s assets, and shall, to the fullestextent permitted by law, continue to be effective or be reinstated, as the casemay be, if at any time payment and performance of the Notes, is, pursuant toapplicable law, rescinded or reduced in amount, or must otherwise be restoredor returned by any obligee on the Notes, whether as a “voidable preference,”“fraudulent transfer,” or otherwise, all as though such a payment orperformance had not been made.  If anypayments, or any part thereof, is rescinded, reduced, restored or returned, theNotes shall, to the fullest extent permitted by law, be reinstituted and deemedreduced only by such amount paid and not so rescinded, reduced, restored orreturned.

 

**ARTICLEXII**

 

**SUBORDINATION OF SUBSIDIARY GUARANTEEOBLIGATIONS**

 
| **SECTION 12.01** |   | **AGREEMENT TO SUBORDINATE** |
|-------------------|--------|------------------------------|

 

The Subsidiary Guarantor agrees, and each Holderby accepting a Note agrees, that any payment of obligations by the Subsidiary Guarantor in respect of its Subsidiary Guarantee (its “**Subsidiary****Guarantee Obligations**”) is subordinated in right ofpayment, to the extent and in the manner provided in this Article Twelve andthe Intercreditor Deed, to the prior payment of all Senior Indebtedness andthat the subordination is for the benefit of and enforceable by the holders ofsuch Senior Indebtedness. The Subsidiary Guarantee Obligations shall in all respectsrank pari passu with all other Senior Subordinated Indebtedness of the Subsidiary Guarantor and only Indebtednesswhich is Senior Indebtedness of the Subsidiary Guarantor shall rank senior to the Subsidiary Guarantee Obligations in accordancewith the provisions set forth herein. All provisions of this Article Twelve shall be subject to Section 12.10.

 

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| **SECTION 12.02** |   | **LIQUIDATION, DISSOLUTION, BANKRUPTCY** |
|-------------------|--------|------------------------------------------|

 

Upon any payment or distributionof the assets of the Subsidiary Guarantor to creditors upon a total or partialliquidation or a total or partial dissolution of the Subsidiary Guarantor or ina bankruptcy, reorganization, insolvency, receivership or similar proceedingrelating to the Subsidiary Guarantor or its property:

 

(a) holders of SeniorIndebtedness shall be entitled to receive payment in full of such SeniorIndebtedness before Holders shall be entitled to receive any payment withrespect to the Subsidiary Guarantor’s Subsidiary Guarantee;

 

(b) until such SeniorIndebtedness is paid in full, any payment with respect to the SubsidiaryGuarantee to which Holders would be entitled but for this Article Twelve shallbe made to holders of such Senior Indebtedness as their interests may appear,except that Holders may receive shares of Capital Stock and any debt securitiesthat are subordinated to the Senior Indebtedness to at least the same extent asthe Subsidiary Guarantee;

 

(c) the claims of the Trusteeand the Holders against the Subsidiary Guarantor in respect of its SubsidiaryGuarantee (the “**Subsidiary Guarantee Claims**”)shall be subordinated in the manner hereinafter set out in this Section 12 andaccordingly, while the Subsidiary Guarantee Claims are so subordinated, noamount shall be payable to the Holders and any amount in respect of theSubsidiary Guarantee paid to the Trustee shall, subject to the priorperformance by the parties hereto of their obligations (if any) under theIntercreditor Deed be held by the Trustee upon trust to apply in accordancewith Section 6 and the said trust shall be performed by the Trustee by repayingto the liquidator for the time being of the Subsidiary Guarantor (the“Liquidator”) the amount certified by the Liquidator as provided below so to beapplied on terms that the Liquidator shall distribute the same accordingly andthe Trustee shall be under no obligation to supervise and shall not be liablein any way in relation to such distribution;

 

(d) the receipt by theLiquidator of any moneys paid by the Trustee pursuant to (c) above shall be agood discharge to the Trustee for the performance by the Trustee of therelative trust mentioned in such clause; and

 

(e) the Trustee shall beentitled and is hereby authorised to call for and accept as conclusive evidencethereof a certificate by the Liquidator as to:

 

(i)                                     theamounts of the claims of all the other creditors to be applied as referred toin Section 12.02(c); and

 

(ii)                                  thepersons entitled thereto and their respective entitlements.

 
| **SECTION 12.03** |   | **DEFAULT ON DESIGNATED SENIOR INDEBTEDNESS** |
|-------------------|--------|-----------------------------------------------|

 

(a) The Subsidiary Guarantormay not make any payment with respect to its Subsidiary Guarantee Obligationsor make any deposit pursuant to Section 9.01

 

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(collectively, “pay theSubsidiary Guarantee”) if (1) any Designated Senior Indebtedness is not paidwhen due or (2) any other default on such Designated Senior Indebtedness occursand the maturity of such Designated Senior Indebtedness is accelerated by the holdersthereof in accordance with its terms unless, in either case, (x) the defaulthas been cured or waived and any such acceleration has been rescinded or (y)such Designated Senior Indebtedness has been paid in full; provided, however,that the Subsidiary Guarantor may pay the Subsidiary Guarantee without regardto the foregoing if the Trustee receives written notice approving such paymentfrom the Representative of Designated Senior Indebtedness guaranteed by theSubsidiary Guarantor.

 

(b) During the continuance ofany default (other than a default described in clause (1) or (2) of sub-clause(a) above) with respect to Designated Senior Indebtedness pursuant to which thematurity thereof may be accelerated either immediately without further notice(except such notice as may be required to effect such acceleration) or afterthe expiration of any applicable grace periods, the Subsidiary Guarantor shallpay the Subsidiary Guarantee for a period (a “**PaymentBlockage Period**”) commencing upon the receipt by the SubsidiaryGuarantor and the Trustee of written notice (a “**Blockage Notice**”) of such default from the Representative ofsuch Designated Senior Indebtedness specifying an election to effect a PaymentBlockage Period and ending 179 days thereafter (unless such Payment BlockagePeriod is terminated earlier (1) by written notice to the Trustee from thePerson or Persons who gave such Blockage Notice, (2) if the default giving riseto such Blockage Notice is cured, waived or otherwise no longer continuing or(3) because such Designated Senior Indebtedness has been discharged or repaidin full).

 

(c) Notwithstanding sub-clause(b) above (but subject to sub-clause (a) above), unless the holders ofDesignated Senior Indebtedness or the Representative of such holders shall haveaccelerated the maturity of such Designated Senior Indebtedness, the SubsidiaryGuarantor may resume payments on the Subsidiary Guarantee upon termination ofsuch Payment Blockage Period. Not more than one Blockage Notice may be given inany consecutive 360-day period, irrespective of the number of defaults withrespect to such Designated Senior Indebtedness during such period.  For purposes of this Section 12.03, nodefault or event of default which existed or was continuing on the date of thecommencement of any Payment Blockage Period with respect to Designated SeniorIndebtedness initiating such Payment Blockage Period shall be, or be made, thebasis of the commencement of a subsequent Payment Blockage Period, whether ornot within a period of 360 consecutive days, unless such default or event ofdefault shall have been cured or waived for a period of not less than 90consecutive days.

 
| **SECTION 12.04** |   | **PAYMENT OF SUBSIDIARY GUARANTEE** |
|-------------------|--------|-------------------------------------|

 

If payment of a Subsidiary Guarantee becomes due pursuant toSection 11, the Subsidiary Guarantor or the Trustee shall promptly notify theholders of Designated Senior Indebtedness (or their Representatives) of suchevent. The Trustee shall give notice of such event to all holders of DesignatedSenior Indebtedness.  Prior to theTrustee’s giving such notice, the Issuer (or the Subsidiary Guarantor) shall notify the Trusteeof the name and address of any such holder of Designated Senior Indebtedness.

 

115

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| **SECTION 12.05** |   | **SUBROGATION** |
|-------------------|--------|-----------------|

 

Subject to the payment in fullin cash, or such payment duly provided for to the satisfaction of the holdersof Designated Senior Indebtedness, of all Designated Senior Indebtedness, theHolders shall (subject to the provisions of the Intercreditor Deed) besubrogated to the rights of the holders of Designated Senior Indebtedness toreceive payments or distributions of assets of the Subsidiary Guarantorapplicable to the Designated Senior Indebtedness, and for the purpose of suchsubrogation no payments or distributions to the holders of Designated SeniorIndebtedness by or on behalf of the Subsidiary Guarantor, or by or on behalf ofthe Holders by virtue of this Article Twelve, which otherwise would have beenmade to the Holders shall, as between the Subsidiary Guarantor and the Holders,be deemed to be a payment by the Subsidiary Guarantor to the holders of, or onaccount of, the Designated Senior Indebtedness.

 
| **SECTION 12.06** |   | **RELATIVE RIGHTS** |
|-------------------|--------|---------------------|

 

This Article Twelve defines therelative rights of Holders and holders of Senior Indebtedness. Nothing in thisIndenture shall:

 

(a) impair, as between theSubsidiary Guarantor and Holders, the obligation of the Subsidiary Guarantor,which is absolute and unconditional, to pay the Subsidiary GuaranteeObligations in accordance with their terms; or

 

(b) prevent the Trustee or anyHolder from exercising its available remedies upon a Default or Event ofDefault, subject to the rights of holders of a Senior Indebtedness to receivedistributions otherwise payable to Holders.

 
| **SECTION 12.07** |   | **SUBORDINATION MAY NOT BE IMPAIRED BY SUBSIDIARY GUARANTOR** |
|-------------------|--------|---------------------------------------------------------------|

 

No right of any holder of aSenior Indebtedness to enforce the subordination of the Indebtedness evidencedby the Subsidiary Guarantee shall be impaired by any act or failure to act by the Subsidiary Guarantor or by its failure tocomply with this Indenture.

 
| **SECTION 12.08** |   | **RIGHTS OF TRUSTEE AND PAYING AGENT** |
|-------------------|--------|----------------------------------------|

 

Notwithstanding Section 12.03,the Trustee or Paying Agent may continue to make payments in respect of a Guaranteeand shall not be charged with knowledge of the existence of facts that wouldprohibit the making of any such payments unless, not less than four BusinessDays prior to the date of such payment, a Trust Officer of the Trustee receivesnotice satisfactory to it that payments may not be made under this ArticleTwelve.  The Registrar or co-registrar,the Paying Agent, a Representative or a holder of Senior Indebtedness may givethe notice; provided, however, that, if an issue of Senior Indebtedness has aRepresentative, only the Representative may give the notice.

 

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The Trustee in its individual orany other capacity may hold Senior Indebtedness with the same rights it wouldhave if it were not Trustee. The Registrar and co-registrar, the Paying Agentand the Subsidiary Guarantor may do the same with like rights. The Trusteeshall be entitled to all the rights set forth in this Article Twelve withrespect to the Subsidiary Guarantor’s Senior Indebtedness which may at any timebe held by it, to the same extent as any other holder of the SubsidiaryGuarantor’s Senior Indebtedness; and nothing in this Article Twelve shalldeprive the Trustee of any of its rights as such holder. Nothing in thisArticle Twelve shall apply to claims of, or payments to, the Trustee under orpursuant to Section 7.07.

 
| **SECTION 12.09** |   | **ARTICLE XII NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT RIGHT TO  ACCELERATE** |
|-------------------|--------|--------------------------------------------------------------------------------|

 

The failure to make a paymentrelating to the Subsidiary Guarantee Obligations by reason of any provision inthis Article Twelve shall not be construed as preventing the occurrence of aDefault or Event of Default. Nothing in this Article Twelve shall have anyeffect on the right of the Holders or the Trustee to accelerate the maturity ofthe Notes.

 
| **SECTION 12.10** |   | **TRUST MONEYS NOT SUBORDINATED** |
|-------------------|--------|-----------------------------------|

 

Notwithstanding anythingcontained herein to the contrary, payments from money or the proceeds of U.S.Government Obligations held in trust under Article Nine by the Trustee for thepayment of principal of and interest on the Notes shall not be subordinated tothe prior payment of any Senior Indebtedness or subject to the restrictions setforth in this Article Twelve, and none of the Holders shall be obligated to payover any such amount to the Subsidiary Guarantor or any holder of SeniorIndebtedness or any other creditor of the Subsidiary Guarantor.

 
| **SECTION 12.11** |   | **TRUSTEE ENTITLED TO RELY** |
|-------------------|--------|------------------------------|

 

Upon any payment or distributionpursuant to this Article Twelve, the Trustee and the Holders shall be entitledto rely (1) upon any order or decree of a court of competent jurisdiction inwhich any proceedings of the nature referred to in Section 12.02 are pending,(2) upon a certificate of the Liquidator, the liquidating trustee or agent orother Person making such payment or distribution to the Trustee or to theHolders or (3) upon the Representatives for the holders of Senior Indebtednessfor the purpose of ascertaining the Persons entitled to participate in suchpayment or distribution, the holders of Senior Indebtedness and otherIndebtedness of the Subsidiary Guarantor, the amount thereof or payablethereon, the amount or amounts paid or distributed thereon and all other factspertinent thereto or to this Article Twelve. In the event that the Trusteedetermines, in good faith, that evidence is required with respect to the rightof any Person as a holder of Senior Indebtedness to participate in any paymentor distribution pursuant to this Article Twelve, the Trustee may request suchPerson to furnish evidence to the satisfaction of the Trustee as to the amountof such Senior Indebtedness held by such Person, the extent to which suchPerson is entitled to participate in such payment or distribution and otherfacts pertinent to the rights of such Person under this Article Twelve, and, ifsuch evidence is not furnished, the Trustee may defer any payment to suchPerson pending judicial determination as to

 

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the right of such Person toreceive such payment. The provisions of Sections 7.01 and 7.02 shall beapplicable to all actions or omissions of actions by the Trustee pursuant tothis Article Twelve.

 
| **SECTION 12.12** |   | **RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON SUBORDINATION  PROVISIONS** |
|-------------------|--------|-----------------------------------------------------------------------------|

 

Each Holder by accepting a Noteacknowledges and agrees that the foregoing subordination provisions are, andare intended to be, an inducement and a consideration to each holder of anySenior Indebtedness whether such Senior Indebtedness was created or acquiredbefore or after the issuance of the Notes, to acquire and continue to hold, orto continue to hold, such Senior Indebtedness and such holder of such SeniorIndebtedness shall be deemed conclusively to have relied on such subordinationprovisions in acquiring and continuing to hold, or in continuing to hold, suchSenior Indebtedness.

 

**ARTICLEXIII**

 

**MISCELLANEOUS**

 
| **SECTION 13.01** |   | **TRUST INDENTURE ACT CONTROLS** |
|-------------------|--------|----------------------------------|

 

This Indenture is subject to theprovisions of the TIA that are required by applicable law to be a part of theIndenture and shall, to the extent applicable, but subject to Section 14.07 begoverned by such provisions.  If anyprovision of this Indenture modifies any TIA provision that may be so modified,such TIA provision shall be deemed to apply to this Indenture as somodified.  If any provision of thisIndenture excludes any TIA provision that may be so excluded, such TIAprovision shall be excluded from this Indenture.

 

The provisions of TIA §§310through 317 that impose duties on any Person (including the provisionsautomatically deemed included unless expressly excluded by this Indenture) area part of and govern this Indenture, whether or not physically containedherein.

 
| **SECTION 13.02** |   | **NOTICES** |
|-------------------|--------|-------------|

 

Any notice or communicationshall be sufficiently given if in writing and delivered in person, byfacsimile, and confirmed by overnight courier, or mailed by first-class mailaddressed as follows:

 

If to the Issuer and/or theSubsidiary Guarantor

 

Kappa Beheer B.V.

Dr. Holtroplaan 5

5652 XR Eindhoven

The Netherlands

Attention:   Han Wagter

Facsimile:                                            +31 40 214 0799

 

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| Telephone: | +31 40 214 0777 |
|------------|-----------------|

 

with a copy to

 

Kirkland & EllisInternational

Tower 42

25 Old Broad Street

London EC2N 1HQ
| Attention: | Stuart L. Mills        |
|------------|------------------------|
| Facsimile: | +44 20 7816  8800 |

 

 

if to the Trustee:

 

The Bank of New York, LondonBranch

48th Floor

One Canada Square

London E14 5AL, England
| Attention: | Corporate Trust Administration |
|------------|--------------------------------|
| Facsimile: | +44 20 7964 6399               |

 

with a copy to, for as long as there is any Senior Indebtednessoutstanding, the Security Agent at:

 

Barclays Bank Limited

5 The North Colonnade

Canary Wharf

London E14 4BB
| Telephone: | +44 20 7623 2323                  |
|------------|-----------------------------------|
| Facsimile: | +44 20 7773 1819                  |
| Attention: | Frank Rogers (Agency  Department) |

 

The Issuer, the Subsidiary Guarantor or the Trustee by notice to allthe others may designate additional or different addresses for subsequentnotices or communications.

 

Except as otherwise provided herein, all notices to the Holders will bevalid if published in a leading English language daily newspaper published inLondon, or such other English language daily newspaper with general circulationin Europe (as the case may be) as the Trustee may approve and, so long as theNotes are listed on the Luxembourg Stock Exchange, in one daily newspaperpublished in Luxembourg approved by the Trustee.  Any notice shall be deemed to have been given on the date ofpublication or, if so published more than once or on different date of thefirst publication.

 

It is expected that publication will normally be made in the FinancialTimes, and, so long as the Notes are listed on the Luxembourg Stock Exchange,the Luxemburger Wort. If publication as provided above is not practicable,notice will be given in such other manner, and shall be deemed to have beengiven on such date, as the Trustee may approve.

 

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Except as otherwise providedherein, any notice or communication mailed, first class, postage prepaid, to aHolder, including any notice delivered in connection with TIA, § 310(b), TIA §313(c), TIA § 314(a) and TIA § 315(b), shall be mailed to him.  To the extent required by the TIA, anynotice or communication shall also be mailed to any person described in TIA §313(c).

 

Failure to mail a notice or communication to a Holder or any defect init shall not affect its sufficiency with respect to other Holders.  Except for a notice to the Trustee, which isdeemed given only when received, if a notice or communication is mailed in themanner provided above, it is duly given, whether or not the addressee receivesit.

 

In case by reason of thesuspension of regular mail service or by reason of any other cause it shall beimpracticable to give any notice by mail, then such notification as shall bemade with the prior written approval of the Trustee shall constitute asufficient notification for every purpose hereunder.

 
| **SECTION 13.03** |   | **COMMUNICATIONS BY HOLDER WITH OTHER HOLDERS** |
|-------------------|--------|-------------------------------------------------|

 

Holders may communicate pursuantto TIA § 312(b) with other Holders with respect to their rights under thisIndenture or the Notes.  The Issuer, theSubsidiary Guarantor, (subject to Section 7.01(c)) the Trustee, the Registrarand any other person shall have the protection of TIA § 312(c).

 
| **SECTION 13.04** |   | **CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT** |
|-------------------|--------|--------------------------------------------------------|

 

Upon any request or applicationby the Issuer or the Subsidiary Guarantor to the Trustee to take or refrainfrom taking any action under this Indenture, the Issuer or the SubsidiaryGuarantor (as the case may be) shall furnish to the Trustee at the request ofthe Trustee:

 

(a) an Officers’ Certificate inform satisfactory to the Trustee stating that, in the opinion of the signers,all conditions precedent, if any, provided for in this Indenture relating tothe proposed action have been complied with; and

 

(b) an Opinion of Counsel inform satisfactory to the Trustee stating that, in the opinion of such Counsel,all such conditions precedent have been complied with.

 
| **SECTION 13.05** |   | **STATEMENTS REQUIRED IN CERTIFICATE OR OPINION** |
|-------------------|--------|---------------------------------------------------|

 

Each certificate or opinion withrespect to compliance with a covenant or condition provided for in thisIndenture shall include:

 

(a) a statement that the personmaking such certificate or opinion has read such covenant or condition;

 

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(b) a brief statement as to thenature and scope of the examination or investigation upon which the statementsor opinions contained in such certificate or opinion are based;

 

(c) a statement that, in theopinion of such person, he has made such examination or investigation as isnecessary to enable him to express an informed opinion as to whether or notsuch covenant or condition has been complied with; and

 

(d) a statement as to whetheror not, in the opinion of such person, such covenant or condition has beencomplied with; provided, however, that with respect to matters of fact anOpinion of Counsel may rely on an Officers’ Certificate or applicablecertificates of public officials of competent jurisdiction.

 
| **SECTION 13.06** |   | **RULES FOR MEETINGS OF HOLDERS; RULES BY PAYING AGENT AND REGISTRAR** |
|-------------------|--------|------------------------------------------------------------------------|

 

The rules for action by or at ameeting of Holders are set out in Schedule 1 to this Indenture.  The Paying Agent or Registrar may makereasonable rules for their respective functions.

 
| **SECTION 13.07** |   | **GOVERNING LAW** |
|-------------------|--------|-------------------|

 

The laws of England shall governthis Indenture, the Notes and the Subsidiary Guarantee except that theprovisions included or deemed to be included herein and therein under themandatory provisions of the US Trust Indenture Act 1939 shall be governed bythe federal laws of the United States of America.

 
| **SECTION 13.08** |   | **JURISDICTION, PROCEEDINGS, SERVICE OF PROCESS** |
|-------------------|--------|---------------------------------------------------|

 

(a) The courts of England shallhave jurisdiction to settle any claim, dispute or matter of difference whichmay arise out of or in connection with these presents and accordingly any legalaction or proceedings arising out of or in connection with these presents(“Proceedings”) may be brought in such courts. The Issuer and the Subsidiary Guarantor each irrevocably submits to thejurisdiction of the courts of England and waives any objections to Proceedingsin such courts whether on the ground of venue or on the ground that theProceedings have been brought in an inconvenient forum.  These submissions are for the benefit of theTrustee and each of the Holders and shall not limit the right of any of them(subject to the provision of these presents) to take Proceedings in any othercourt of competent jurisdiction nor shall the taking of Proceedings in any oneor more jurisdictions preclude the taking of Proceedings in any otherjurisdiction (whether concurrently or not) if and to the extent permitted byapplicable law.

 

(b) Each of the Issuer and theSubsidiary Guarantor irrevocably appoints Kappa Packaging UK Limited at itsregistered office, from time to time, being at the date hereof at Arnsley Road,Weldon Industrial Estate, Corby, Northamptonshire, NN17 5DW, England as itsauthorised agent for service of process in England.  Such service shall be deemed completed on delivery to suchprocess agent (whether or not it is forwarded to or received by the Issuer orthe Subsidiary Guarantor).  If for anyreason

 

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such process agent ceases to beable to act as such or no longer has an address in England each of the Issuerand the Subsidiary Guarantor irrevocably agrees to appoint a substitute processagent acceptable to the Trustee and shall immediately notify the Trustee ofsuch appointment.  Nothing shall affectthe right to serve process in any other manner permitted by law.

 
| **SECTION 13.09** |   | **SUCCESSORS** |
|-------------------|--------|----------------|

 

All of the respective agreementsof the Issuer and the Subsidiary Guarantor in this Indenture, the Notes and theSubsidiary Guarantee shall bind their successors.  All agreements of the Trustee in this Indenture shall bind itssuccessor.

 
| **SECTION 13.10** |   | **COUNTERPART ORIGINALS** |
|-------------------|--------|---------------------------|

 

The parties may sign any numberof copies of this Indenture.  Eachsigned copy shall be an original, but all of them together represent the sameagreement.

 
| **SECTION 13.11** |   | **SEVERABILITY** |
|-------------------|--------|------------------|

 

In case any provision in thisIndenture, the Notes or the Subsidiary Guarantee shall be invalid, illegal orunenforceable, the validity, legality and enforceability of the remainingprovisions therein shall not in any way be affected or impaired thereby, and aHolder shall have no claim therefor against any party hereto.

 
| **SECTION 13.12** |   | **NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS** |
|-------------------|--------|---------------------------------------------------|

 

This Indenture may not be usedto interpret another indenture, loan or debt agreement of the Issuer, theSubsidiary Guarantor or any Subsidiary of the Subsidiary Guarantor.  Any such indenture, loan or debt agreementmay not be used to interpret this Indenture.

 
| **SECTION 13.13** |   | **LEGAL HOLIDAYS** |
|-------------------|--------|--------------------|

 

If a payment date is not aBusiness Day, payment may be made on the next succeeding Business Day, and nointerest shall accrue for the intervening period.

 
| **SECTION 13.14** |   | **JUDGMENT CURRENCY** |
|-------------------|--------|-----------------------|

 

Each of the Issuer, the Subsidiary Guarantor and any other guarantoragrees to indemnify the Trustee and each Holder against any cost, charge,expense or other liability incurred by any of them as a result of any judgmentor order being given or made for any amount due under this Indenture or theNotes and such judgment or order being expressed an paid in a currency (the“Judgment Currency”) other than pounds sterling and as a result of anyvariation as between (i) the rate of exchange at which the pounds sterlingamount is the converted into the Judgment Currency for the purpose of suchjudgment or order and (ii) the spot rate of exchange in London at which anysuch person on the date of payment of such judgment or order is able topurchase pounds sterling with the amount of the Judgment Currency actuallyreceived by such person.  The foregoingindemnities shall continue in full force and effect notwithstanding any suchjudgment or order as aforesaid.  Theterm “spot rate of

 

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exchange” shall include any premiums and costs of exchange payable inconnection with the purchase of, or conversion into, pounds sterling.

 
| **SECTION 13.15** |   | **THIRD PARTY RIGHTS** |
|-------------------|--------|------------------------|

 

A Person who is not party to this Indenture has no right under theContracts (Rights of Third Parties) Act 1999 to enforce any term of thisIndenture but this does not affect any right or remedy of a third party whichexists or is available apart from that Act.

 

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IN WITNESS whereof thisIndenture has been executed as a deed by the Issuer, the Subsidiary Guarantorand the Trustee and delivered on the date first stated on page 1.

 

 
| SIGNED as a deed                        |   |
|-----------------------------------------|--------|
| by                                      | )      |
| for and on behalf of KAPPA  BEEHER B.V. | )      |
| in the presence of:                     | )      |
|                                    |   |
| Witness’ Signature:                |   |
|                                    |   |
| Name:                                   |   |
| Address:                                |   |
|                                    |   |
| Occupation:                             |   |
|                                    |   |
|                                    |   |
| SIGNED as a deed                        |   |
| by                                      | )      |
| for and on behalf of                    | )      |
| KAPPA PACKAGING B.V.                    | )      |
| in the presence of:                     | )      |
|                                    |   |
| Witness’ Signature:                |   |
|                                    |   |
| Name:                                   |   |
| Address:                                |   |
|                                    |   |
| Occupation:                             |   |
|                                    |   |
|                                    |   |
| EXECUTED as a deed                      | )      |
| by THE BANK OF NEW YORK                 | )      |
| acting by                               | )      |
| under the authority of that  company    | )      |
| in the presence of:                     | )      |
|                                    |   |
| Witness’ Signature:                |   |
|                                    |   |
| Name:                                   |   |
| Address:                                |   |
|                                    |   |
| Occupation:                             |   |

 

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**EXHIBIT A**

 

**Form of Face ofNote**

 

[If a Global Note, then insert:]THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTERREFERRED TO AND IS REGISTERED IN THE NAME OF [THE DEPOSITARY TRUST COMPANY],EUROCLEAR OR CLEARSTREAM (EACH, A “DEPOSITARY”) OR A NOMINEE OF A DEPOSITARY ORA SUCCESSOR DEPOSITARY.  THIS NOTE ISNOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN ADEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THEINDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE ASA WHOLE BY A DEPOSITARY TO A NOMINEE OF A DEPOSITARY OR BY A NOMINEE OF ADEPOSITARY TO A DEPOSITARY OR ANOTHER NOMINEE OF A DEPOSITARY) MAY BEREGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

 

[If a Global Note, then insert:]UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF ADEPOSITARY, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE,OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF SUCHDEPOSITARY OR A NOMINEE OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZEDREPRESENTA­TIVE OF A DEPOSITARY (AND ANY PAYMENT IS MADE TO ITS NOMINEE OR TOSUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRE­SENTATIVE OF ADEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BYOR TO ANY PERSON IS WRONG­FUL INASMUCH AS THE REGISTERED OWNER HEREOF, ANOMINEE OF A DEPOSITARY, HAS AN INTEREST HEREIN.

 

[If a Restricted Global Note,then insert:]    THE SECURITIESEVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIESACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR OTHERSECURITIES LAWS.  NEITHER THIS SECURITYNOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OFSUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.  THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1)REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE144A UNDER THE SECURITIES ACT (“RULE 144A”)), (2) AGREES THAT IT WILL NOT PRIORTO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTEDBY RULE 144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER)AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OFTHIS SECURITY) OR THE LAST DAY ON WHICH THE ISSUER OR ANY

 

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AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY OR ANYPREDECESSOR OF THIS SECURITY AND (Y) SUCH LATER DATE, IF ANY, AS MAY BEREQUIRED BY APPLICABLE LAWS (THE “RESALE RESTRICTION TERMINATION DATE”), OFFER,SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANYSUBSIDIARY THEREOF, (B) PURSUANT TO THE REGISTRATION STATEMENT WHICH HAS BEEN DECLAREDEFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES AREELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVESIS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FORITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOMNOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR(D) PURSUANT TO OFFERS AND SALES TO PERSONS THAT ARE NOT US PERSONS THAT OCCUROUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH THEREQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT (“REGULATION S”) OR (E)PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OFTHE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIESLAWS OF ANY STATE OF THE UNITED STATES OR ANY APPLICABLE JURISDICTION AND (3)AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED ANOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.  OFFERS, SALES OR OTHER TRANSFERS OF THIS SECURITY UNDER CLAUSES(C), (D) AND (E) ABOVE ARE SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHTPRIOR TO ANY SUCH OFFERS, SALES OR OTHER TRANSFERS TO REQUIRE THE DELIVERY OFAN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TOEACH OF THEM.  THIS LEGEND WILL BEREMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATIONDATE.  AS USED HEREIN, THE TERMS“OFFSHORE TRANSACTION”, “UNITED STATES” AND “US PERSON” HAVE THE RESPECTIVEMEANINGS GIVEN TO THEM BY REGULATION S.

 

[If a Regulation S Note, theninsert:] THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIESACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR OTHERSECURITIES LAWS, AND, PRIOR TO THE EXPIRATION OF THE DISTRIBUTION COMPLIANCEPERIOD (DEFINED AS 40 DAYS AFTER THE ISSUE DATE WITH RESPECT TO THESECURITIES), MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT(A)(1) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OFREGULATION S OR (2) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS AQUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THESECURITIES ACT (“RULE 144A”) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE144A, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATESOF THE UNITED STATES.

 

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THE OFFER AND SALE OF THE NOTESIS RESTRICTED PURSUANT TO APPLICABLE RULES OF DUTCH LAW.  THE NOTES MAY NOT BE OFFERED, SOLD,TRANSFERRED, OR DELIVERED, WHETHER DIRECTLY OR INDIRECTLY, TO ANY INDIVIDUAL ORLEGAL ENTITY, OTHER THAN TO INDIVIDUALS OR LEGAL ENTITIES, WHETHER SITUATED INOR OUTSIDE THE NETHERLANDS, WHO OR WHICH TRADE OR INVEST IN SECURITIES IN THECONDUCT OF THEIR PROFESSION OR TRADE (WHICH INCLUDES BANKS, SECURITIES FIRMS,INVESTMENTS INSTITUTIONS, INSURANCE COMPANIES, PENSION FUNDS, OTHERINSTITUTIONAL INVESTORS AND COMMERCIAL ENTERPRISES WHICH REGULARLY, AS ANANCILLARY ACTIVITY, INVEST IN SECURITIES).

 

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**KappaBeheer B.V.**

€95,000,000 105/8% Class A Senior Subordinated Notes due 2009

 

 
| [CUSIP] [ISIN] [Common Code]: |   |   |
|-------------------------------|--------|--------|
| No.                           |   | i      |

 

Kappa Beheer B.V.,  a private company with limited liabilityorganized and existing under the laws of the Netherlands (the “Issuer”), forvalue received, hereby promises to payto                                     or registered assigns, the principal sum of                     euro or such amount as may be increased or decreased in accordance with theterms of the Indenture and as set forth on the Schedule of Exchanges of Interestbut not to exceed €95,000,000 on July 15, 2009.

 
|   | Interest Payment Dates:  January 15 and July 15. |
|--------|--------------------------------------------------|
|   |                                             |
|   | Record Dates: January 1 and  July 1 .            |

 

Reference is hereby made to thefurther provisions of this Note set forth on the reverse hereof, which furtherprovisions shall for all purposes have the same effect as if set forth at thisplace.

 

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IN WITNESS WHEREOF, the Issuerhas caused this instrument to be signed manually or by facsimile by its dulyauthorized officer.

 
| Dated: |   | **KAPPA BEHEER  B.V.** |
|--------|--------|------------------------|
|   |   |                   |   |
|   |   |                   |   |
|   |   | By:                    |   |   |
|   |   |                   | Authorized Signatory |

 

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FORM OFTRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

 

The Trustee’s certificate ofauthentication shall be in substantially the following form:

 
|   | TRUSTEE’S CERTIFICATE OF  AUTHENTICATION |
|--------|-----------------------------------------------|
|   |                                          |
|   | Dated:                                        |
|   |                                          |
|   |                                          |
|   | **THE BANK OF  NEW YORK**                     |
|   | as Trustee                                    |
|   |                                          |
|   | By:                                           |   |   |
|   |                                          | Authorized Signatory |

 

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[REVERSE OFNOTE]

 

 

KAPPA BEHEERB.V.

 

€95,000,000 105/8%CLASS A

SENIORSUBORDINATED NOTES DUE 2009

 

1.                                       Interest.  Kappa Beheer B.V., a private company withlimited liability organized and existing under the laws of the Netherlands (the“Issuer”), promises to pay, until the principal hereof is paid or madeavailable for payment, interest on the principal amount set forth on the facehereof at a rate of 105/8% perannum.  Interest hereon will accrue fromand including the most recent date to which interest has been paid or, if nointerest has been paid, from and including May 22, 2003 to but excluding thedate on which interest is paid. Interest shall be payable in arrears on each January 15 and July 15commencing July 15, 2003.  Interest willbe computed on the basis of a 360-day year of twelve 30-day months.  The Issuer shall pay interest on overdueprincipal and on overdue interest (to the full extent permitted by law) at therate borne by the Notes.

 

2.                                       Methodof Payment.  The Issuer will payinterest hereon (except defaulted interest) to the Persons who are registeredHolders at the close of business on January 1 or July 1 next preceding theInterest Payment Date (whether or not a Business Day).  Holders must surrender Notes to a PayingAgent to collect principal payments. The Issuer will pay principal and interest in euro.  However, the Issuer may pay principal,premium, if any and interest by its check payable in euro.  The Issuer may deliver any such interestpayment to the Paying Agent or to the Holder at the Holder’s registeredaddress.

 

3.                                       PayingAgent and Registrar.  Initially, TheBank of New York will act as Paying Agent and Registrar (the “Paying Agent”)and Kredietbank S.A. Luxembourgeoise will act as Paying Agent inLuxembourg.  The Issuer may change anyPaying Agent or Registrar without prior notice.  The Issuer or any of its Subsidiar­ies may, subject to certainexceptions, act as Registrar.

 

4.                                       Indenture.  The Issuer issued €95,000,000 105/8% Class A SeniorSubordinated Notes due 2009 (the “Notes”) under an Indenture dated as of May22, 2003, (the “Indenture”) between the Issuer, Kappa Packaging B.V., a privatecompany with limited liability organized and existing under the laws of theNetherlands and the Bank of New York, as Trustee (the “Trustee”).  The terms of the Notes include those statedin the Indenture and those made part of the Indenture by reference to the TrustIndenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb), as amended from time totime.  The Notes are subject to all suchterms, and Holders are referred to the Inden­ture and such Act for a statementof them.  Capitalized and certain otherterms used herein and not otherwise defined have the meanings set forth in theIndenture.  To the extent of anyconflict between the terms of the Notes and the Indenture, the applicable termsof the Indenture shall govern.

 

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The Notes are general unsecured senior subordinated obligations of theIssuer.  Payment on each Note isguaranteed on a senior subordinated basis by the Subsidiary Guarantor pursuantto Article Eleven of the Indenture.  The Notes are subordinated in right of payment to all SeniorIndebtedness (as defined in the Indenture) to the extent and in the mannerprovided in the Indenture and the Intercreditor Deed (as defined in theIndenture).  The Subsidiary Guaranteewill be subordinated to Senior Indebtedness on the same basis and to the sameextent as the Notes are subordinated to Senior Indebtedness as provided in theIndenture and the Intercreditor Deed. Each Holder of a Note, by accepting a Note, agrees to suchsubordination, authorizes the Trustee to give effect to such subordination andappoints the Trustee as attorney for such purpose. The Issuer shall be entitled, subject to its compliance with Section4.05 of the Indenture, to issue Addi­tional Notes pursuant to Section 2.16 ofthe Indenture.

 

5.                                       AdditionalAmounts.  The Issuer will pay to theHolders of Notes such Additional Amounts as may become payable under Section4.19 of the Indenture.

 

6.                                       OptionalRedemption of the Notes.  The Noteswill be redeemable at the option of the Issuer, in whole or in part, at anytime or from time to time on or after July 15, 2004, upon not less than 30 normore than 60 days’ prior notice, at the Redemption Prices (expressed as apercentage of principal amount) set forth below, plus accrued and unpaidinterest thereon, if any, to the Redemption Date, if redeemed during the 12-month period beginning on July 15 of the years indicated below:

 
| **YEAR**            |   | **Percentage** |   |
|---------------------|--------|----------------|--------|
|                |   |           |   |
| 2004                |   | 105.313        | %      |
| 2005                |   | 103.542        | %      |
| 2006                |   | 101.771        | %      |
| 2007 and thereafter |   | 100.000        | %      |

 

7.                                       [Intentionallyleft blank]

 

8.                                       OtherOptional Redemption of the Notes. At any time on or prior to July 15, 2004, the Notes may be redeemed, asa whole but not in part, at the option of the Issuer, upon not less than 30 ormore than 60 days’ prior notice mailed by first-class mail to each Holder’sregistered address, at a Redemption Price equal to 100% of the principal amountthereof plus the Interest Bearing Note Applicable Premium as of, and accruedbut unpaid interest, if any, to the Redemption Date, subject to the right ofHolders on the relevant Record Date to receive interest due on the relevantInterest Payment Date.

 

9.                                       Redemptionfor Taxation Reasons.  The Issuermay, at its option, redeem the Notes in whole, but not in part, at any timeupon giving not less than 30 nor more than 60 days’ notice to the holders ofthe Notes (which notice shall be irrevocable), at a Redemption Price equal tothe principal amount thereof plus accrued unpaid interest, if any, to theRedemption Date and all Additional Amounts, if any, then due and which willbecome due on such Redemption

 

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Date as aresult of the redemption or otherwise, if the Issuer, the Subsidiary Guarantor,is or on the next interest payment date in respect of the Notes, would berequired to pay Additional Amounts (as defined under Section 4.19 of theIndenture) as a result of any of the events or circumstances described inSection 3.01(d) of the Indenture.

 

10.                                 MandatoryRedemption.  Except as set forthunder Section 4.08 and Section 4.10 of the Indenture, the Issuer is notrequired to make mandatory redemption payments with respect to the Notes.

 

11.                                 Noticeof Redemption.  Notice of redemptionwill be mailed at least 30 days but not more than 60 days before the RedemptionDate to each Holder of Notes to be redeemed at his registered address.  On and after the Redemption Date, unless theIssuer defaults in making the redemption payment, interest ceases to accrue onNotes or portions thereof called for redemption.

 

12.                                 Offersto Purchase. The Indenture provides that upon the occurrence of a Change ofControl or certain Asset Dispositions and subject to further limitationscontained therein, the Issuer shall make an Offer to Purchase outstanding Notesin accordance with the procedures set forth in the Indenture.

 

13.                                 **[Intentionally left blank]**

 

14.                                 Denominations,Transfer, Exchange. The Notes are in registered form, without coupons, indenominations of i1000and integral multiples thereof.  AHolder may transfer or exchange Notes in accordance with the Indenture.  The Registrar may require a Holder, amongother things, to furnish appropriate endorsements and transfer documents and topay to it any taxes and fees required by law or permitted by theIndenture.  Under certain circumstancesset forth in the Indenture, the Registrar need not register the transfer of orexchange any Notes.

 

15.                                 PersonsDeemed Owners.  The registeredHolder of this Note may be treated as the owner of this Note for all purposes.

 

16.                                 Prescription.  Claims against the Issuer and the SubsidiaryGuarantor for (i) the payment of principal or Additional Amounts, if any, onthe Notes shall be prescribed ten years after the applicable due date forpayment there of and (ii) for the payment of interest on the Notes shall beprescribed five years after the applicable due date for payment ofinterest.  The Trustee and the PayingAgent will pay any money in respect of claims so prescribed back to the Issuerat its written request.  Upon expiry ofthe time periods in (i) or (ii) above, all liability of the Issuer and theSubsidiary Guarantor with respect to such monies shall cease.

 

17.                                 Amendment,Supplement, Waiver, etc.  The Issuerand the Trustee may, without the consent of the Holders of any outstand­ingNotes, amend, waive or supplement the Indenture or the Notes for certainspecified purposes, including, among other things, curing ambiguities, defectsor inconsistencies.  Other amendments andmodifications of the Indenture or the Notes may be made by the Issuer and theTrustee with the consent of the Holders of not less

 

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than amajority of the aggregate principal amount of the outstanding Notes (voting asone class and with other holders of Notes of other series issued under theIndenture, subject to certain exceptions requiring the consent of the Holdersof the particular Notes to be affected).

 

18.                                 RestrictiveCovenants.  The Indenture imposescertain limitations on the ability of the Issuer and its RestrictedSubsidiaries to, among other things, incur additional Indebtedness, makeRestricted Payments, make certain Investments, create or incur Liens, enterinto transactions with Affiliates, enter into agreements restricting theability of Restricted Subsidiaries to pay dividends and make distributions andon the ability of the Issuer to merge or consoli­date with any other person ortransfer all or substantially all of the Issuer’s assets.  Such limitations are subject to a number ofimportant qualifications and exceptions. Pursuant to the Indenture, the Issuer must annually report to theTrustee on compliance with such limitations.

 

19.                                 Defaultsand Remedies. Events of Default are set forth in the Indenture.  Subject to certain limitations in theIndenture, if an Event of Default (other than certain events of bankruptcy,insolvency or reorganization affecting the Issuer) occurs and is continuing, theTrustee or the Holders of not less than 25% in aggregate principal amount ofthe outstanding Notes under the Indenture may declare all principal of andaccrued interest as of such date on all Notes to be immediately due and payableand such amounts shall become immediately due and payable.

 

20.                                 TrusteeDealings with Issuer.  The Trustee,in its individual or any other capacity, may make loans to, accept depositsfrom, and perform services for the Subsidiary Guarantor, the Issuer or itsAffiliates and may otherwise deal with the Subsidiary Guarantor, the Issuer orits Affili­ates, as if it were not Trustee.

 

21.                                 NoRecourse Against Others.  No boardmember, officer, employee, incorporator or shareholder of the Issuer or theSubsidiary Guarantor shall have any liability (other than imposed by applicablemandatory law) for any obligations of the Issuer or the Subsidiary Guarantorunder the Notes, the Indenture or the Subsidiary Guarantee for a claim basedon, in respect of, or by reason of, such obligations or their creation byreason of his, her or its status as such. Each Holder of Notes by accepting a Note waives and releases all suchliability.  The waiver and release arepart of the consideration for the issuance of the Notes.

 

22.                                 Discharge.  The Issuer’s obligations pursuant to theIndenture will be discharged, except for obligations pursuant to certainsections thereof, subject to the terms of the Indenture, upon the payment ofall the Notes or upon the irrevocable deposit with the Trustee of money and/orDesignated Government Obligations sufficient to pay when due principal of andinterest on the Notes to maturity or redemption.

 

23.                                 Authentication.  This Note shall not be valid until theTrustee signs the certificate of authentication on the other side of this Note.

 

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24.                                 GoverningLaw.  THIS NOTE SHALL BE GOVERNED BYAND CONSTRUED IN ACCORDANCE WITH ENGLISH LAW EXCEPT TO THE EXTENT MANDATORYPROVI­SIONS OF THE TRUST INDENTURE ACT ARE INCLUDED OR DEEMED TO BE INCLUDEDHEREIN UNDER THE TRUST INDENTURE ACT AS TO WHICH THE TRUST INDENTURE ACT SHALLGOVERN.  Each of the Trustee, theIssuer, the Subsidiary Guarantor and the Holders agree to submit to thejurisdiction of the courts of England and Wales in any action or proceedingarising out of or relating to the Indenture, the Subsidiary Guarantee or theNotes.

 

25.                                 Abbreviations.  Customary abbreviations may be used in thename of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by theentireties), JT TEN (= joint tenants with right of survivorship and not astenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to MinorsAct).

 

26.                                 Currencyof Account.  euro is the solecurrency of account and payment for all sums payable by the Issuer and the SubsidiaryGuarantor under the Notes.

 

27.                                 CUSIPand ISIN Numbers.  The Issuer hascaused CUSIP or ISIN numbers, as applicable, to be printed on the Notes and theTrustee may use CUSIP or ISIN numbers, as applicable, in notices of redemptionas a convenience to Holders.  Norepresen­tation is made as to the accuracy of such numbers either as printed onthe Notes or as contained in any notice of redemption and reliance may beplaced only on the other identification numbers placed hereon.

 

The Issuer will furnish to any Holder upon written request and withoutcharge a copy of the Indenture. Requests may be made to:

 

Kappa Beheer B.V.

Dr Holtroplaan 5

5652 XR Eindhoven

The Netherlands

 

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[FORM OF NOTATION ON NOTESRELATING TO GUARANTEE]

 

SENIORSUBORDINATED GUARANTEE

 

The Subsidiary Guarantor (as defined in the Indenture referred to inthe Note upon which this notation is endorsed) hereby guarantees on a seniorsubordinated basis (such guarantee being referred to herein as the “Guarantee”)the due and punctual payment of the principal of, and premium, if any,interest, and Additional Amounts (if any) on, the Notes, whether at maturity,by acceleration or otherwise, the due and punctual payment of interest on the overdueprincipal of, and premium, if any, interest Additional Amounts (if any) on, theNotes, and the due and the punctual performance of all other obligations of theIssuer and the Subsidiary Guarantor to the Holders or the Trustee, all inaccordance with the terms set forth in Article Eleven of the Indenture.

 

The obligations of the Subsidiary Guarantor to the Holders and to theTrustee pursuant to the Guarantee and the Indenture are expressly set forth,and are expressly subordinated and subject in right of payment to the priorpayment in full of all Senior Indebtedness, to the extent and in the mannerprovided, in Article Twelve of the Indenture, and reference is hereby made tosuch Indenture for the precise terms of the Subsidiary Guarantee therein made.

 

The Subsidiary Guarantee shall not be valid or obligatory for anypurpose until the certificate of authentication on the Note upon with theSubsidiary Guarantee are noted shall have been executed by the Trustee underthis Indenture by the manual or facsimile signature of one of its authorizedofficers.

 

The Subsidiary Guarantee shall be governed by and construed inaccordance with the laws of England.

 

The Subsidiary Guarantee is subject to release upon the terms set forthin the Indenture.

 

 
| **KAPPA PACKAGING B.V.** |
|--------------------------|
|                     |   |
| By:                      |   |   |
|                     |   | Name: |
|                     |   | Title: |
|                          |  |  |  |

 

136

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FORM OFASSIGNMENT

 

If you, the holder, want to assign this Note,fill in the form below and have your signature guaranteed:

 

I or we assign and transfer this Note to:

 

(Insertassignee’s social security or tax ID number)

 

 

 

(Print or typeassignee’s name, address and zip code)

 

and irrevocably appoint                                                                                                                                                                             of                                                                                                                                                            Agentto transfer this Note on the books of the Issuer.  The Agent may substitute another to act for such agent.

 

In connection with any transfer of this Noteoccurring prior to the date which is the earlier of (i) the date of thedeclaration by the United States Securities and Exchange Commission of theeffectiveness of a registration statement under the Securities Act of 1933, asamended (the “Securities Act”), covering resales of this Note (whicheffectiveness shall not have been suspended or terminated at the date of thetransfer) and (ii) the date two years (or such shorter period of time as may bepermitted by Rule 144(k) under the Securities Act or any successor provisionthereunder) after the later of the original issuance date appearing on the faceof this Note (or any Predecessor Note) or the last date on which the Issuer orany Affiliate of the Issuer was the owner of this Note (or any PredecessorNote), the undersigned confirms that it has not utilized any generalsolicitation or general advertising in connection with the transfer and that:

 

[Check One]

 
| o      |   | (a) this Note is being  transferred in compliance with the exemption from registration under the  Securities Act provided by Rule 144A thereunder.                                                                                                                                     |
|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                   |
| or     |
|   |   |                                                                                                                                                                                                                                                                                   |
| o      |   | (b) this Note is being  transferred other than in accordance with (a) above and documents, including  a transferee certificate substantially in the form attached hereto, are being  furnished which comply with the conditions of transfer set forth in this Note  and the Indenture. |

 

If neither of the foregoing boxes is checkedand, in the case of (b) above, if the appropriate document is not attached orotherwise furnished to the Trustee, the Trustee or Registrar shall not beobligated to register this Note in the name of any person other than the Holderhereof unless and until the conditions to any such

 

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transfer or registration set forth herein and in Section 2.14 andSection 2.15 of the Indenture shall have been satisfied.

 

 
| Dated: |   |                                                                 |   | Your signature: |   |   |
|--------|--------|----------------------------------------------------------------------|--------|-----------------|--------|--------|
|   |   | (Sign exactly as your name  appears on the other  side of this Note) |
|   |   |                                                                 |
|   |   |                                                                 |
|   |   | By:                                                                  |   |            |
|   |   |                                                                 |
|   |   | NOTICE: To be executed by an  executive   officer                    |
|        |        |                                                                      |        |                 |        |        |  |

 

 
| [Signature Guaranteed: |   |
|------------------------|--------|

Participant in a recognizedSignature Guarantee Medallion Program (or other signature guarantor programacceptable to the Trustee)]

 

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TO BECOMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:

 

The undersigned represents and warrants thatit is purchasing this Note for its own account or an account with respect to whichit exercises sole investment discretion and that it and any such account is a“qualified institutional buyer” within the meaning of Rule 144A under theSecurities Act and is aware that the sale to it is being made in reliance onRule 144A and acknowledges that it has received such information regarding theIssuer as the undersigned has requested pursuant to Rule 144A (including theinformation specified in Rule 144A(d)(4)) or has determined not to request suchinformation and that it is aware that the transferor is relying upon theundersigned’s foregoing representations in order to claim the exemption fromregistration provided by Rule 144A.

 

 
| Dated: |                                                 |   |   |
|--------|------------------------------------------------------|--------|--------|
|   | NOTICE:  To be executed by an executive officer |

 

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OPTION OFHOLDER TO ELECT PURCHASE

 

If you wish to have this Note purchased bythe Issuer pursuant to Section 4.08 or Section 4.10 of the Indenture, check thebox:

 
| o  Section 4.08 |   | o  Section 4.10 |
|----------------------|--------|----------------------|

 

If you wish to have a portion of this Notepurchased by the Issuer pursuant to Section 4.08 or Section 4.10 of theIndenture,  state the amount:

 
| €                          |   |   |
|---------------------------------|--------|--------|
|   (multiple of €1000) |   |   |

 
| Dated: |   |                                                                 |   | Your Signature: |   |   |
|--------|--------|----------------------------------------------------------------------|--------|-----------------|--------|--------|
|   |   | (Sign exactly as your name  appears on  the other side of this Note) |

 
| Signature Guaranteed: |                                                                                                                                 |
|-----------------------|--------------------------------------------------------------------------------------------------------------------------------------|
|                  | Participant in a recognized  Signature Guarantee Medallion Program (or other signature guarantor program  acceptable to the Trustee) |

 

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SCHEDULE OFEXCHANGES OF INTERESTS IN THE GLOBAL NOTE

 
| **Date of  Exchange** |   | **Amount of  decrease in  Principal  Amount at  maturity of this  Global Note** |   | **Amount of  increase in  Principal Amount  at maturity of this  Global Note** |   | **Principal  Amount at  maturity of this  Global Note  following such  decrease (or  increase** |   | **Signature of  authorized  officer of Trustee  or Note  Custodian** |   |
|-----------------------|--------|---------------------------------------------------------------------------------|--------|--------------------------------------------------------------------------------|--------|-------------------------------------------------------------------------------------------------|--------|----------------------------------------------------------------------|--------|
|                  |   |                                                                            |   |                                                                           |   |                                                                                            |   |                                                                 |   |
|                  |   |                                                                            |   |                                                                           |   |                                                                                            |   |                                                                 |   |
|                  |   |                                                                            |   |                                                                           |   |                                                                                            |   |                                                                 |   |
|                  |   |                                                                            |   |                                                                           |   |                                                                                            |   |                                                                 |   |
|                  |   |                                                                            |   |                                                                           |   |                                                                                            |   |                                                                 |   |

 

141

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**EXHIBIT B**

 

FORM OF TRANSFER CERTIFICATE —RESTRICTED GLOBAL SECURITY TOREGULATION S GLOBAL SECURITY(Transfers pursuant to Sections 2.14(b)(ii) of the Indenture)

 

The Bank of New York

as Trustee

One Canada Square

London

E14 5AL

Corporate Trust Administration

 
| **Re:** |   | **Kappa Beheer  B.V. €95,000,000 105/8% Class A Senior Subordinated  Notes due 2009 (the “Notes”)** |
|---------|--------|--------------------------------------------------------------------------------------------------------------------|

 

Reference is hereby made to theIndenture, dated as of May 22, 2003 between the Issuer, the SubsidiaryGuarantor and The Bank of New York, as trustee, (the “**Indenture**”).  Terms used but not defined herein and defined in Regulation Sunder the U.S. Securities Act of 1933 (the “**SecuritiesAct**”) or in the Indenture shall have the meanings given to them inRegulation S or the Indenture, as the case may be. This certificate relates to€95,000,000 (Ninety-five million Euro) principal amount of Notes, which areevidenced by the following certificate(s) (the “**Specified Notes**”):

 

[CUSIP][CINS][ISIN] No(s).

 

CERTIFICATE No(s).

 

The person in whose name thiscertificate is executed below (the “**Undersigned**”)hereby certifies that either (i) it is the sole beneficial owner of theSpecified Notes or (ii) it is acting on behalf of all the beneficial owners ofthe Specified Notes and is duly authorized by them to do so.  Such beneficial owner or owners are referredto herein collectively as the “**Owner**”.  If the Specified Notes are represented by aGlobal Note, they are held through the appropriate Common Depositary or anAgent Member in the name of the Undersigned, as or on behalf of the Owner.

 

The Owner has requested that theSpecified Notes be transferred to a person (the “**Transferee**”) who will take delivery in the form of an interestin the Regulation S Global Note.  Inconnection with such transfer, the Owner hereby certifies that such transfer isbeing effected in accordance with Rule 904 under the Securities Act and withall applicable securities laws of the states of the United States and otherjurisdictions.  Accordingly, the Ownerhereby further certifies as follows:

 

1.                                       the Owner is not a distributor ofthe Specified Notes, an Affiliate of the Issuer or any such distributor or aperson acting on behalf of any of the foregoing;

 

2.                                       the offer of the Specified Notes wasnot made to a person in the United States;

 

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3.                                       either:

 

(a)                                  at the time the buy order wasoriginated, the Transferee was outside the United States or the Owner and anyperson acting on its behalf reasonably believed that the Transferee was outsidethe United States; or

 

(b)                                 the transaction is being executedin, on or through the facilities of the Eurobond market, as regulated by theAssociation of International Bond Dealers, or another designated offshoresecurities market and neither the Owner nor any person acting on its behalfknows that the transactions have been prearranged with a buyer in the UnitedStates;

 

4.                                       no directed selling efforts havebeen made in the United States by or on behalf of the Owner or any Affiliatethereof;

 

5.                                       if the Owner is a dealer in securitiesor has received a selling concession, fee or other remuneration in respect ofthe Specified Notes, and the transfer is to occur during the Restricted Period,then the requirements of Rule 904(c)(1) have been satisfied;

 

6.                                       the transaction is not part of aplan or scheme to evade the registration requirements of the Securities Act;and

 

7.                                       upon completion of the transaction,the beneficial interest being transferred will be held through an Agent Memberacting for and on behalf of Euroclear or Clearstream.

 

This certificate and thestatements contained herein are made for your benefit and the benefit of theIssuer and the Initial Purchasers under the Purchase Agreement.

 
| Dated: |                                                                                                                                            |
|--------|-------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                            |   |
|   | (Print the name of the  Undersigned, as such term is defined in the second paragraph of this  certificate.)                                     |
|   |                                                                                                                                            |
|   |                                                                                                                                            |
|   | By:                                                                                                                                             |   |   |
|   |                                                                                                                                            | Name: |
|   |                                                                                                                                            | Title: |
|   |                                                                                                                                            |
|   | (If the Undersigned is a  corporation, partnership or fiduciary, the title of the person signing on  behalf of the Undersigned must be stated.) |
|        |                                                                                                                                                 |  |  |

 

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**EXHIBIT C**

 

FORM OF TRANSFER CERTIFICATE —RESTRICTED GLOBAL SECURITY TO UNRESTRICTEDGLOBAL SECURITY

(Transfers Pursuant to Sections2.14(b)(iii) of the Indenture)

 

The Bank of New York

as Trustee

One Canada Square

London

E14 5AL

Corporate Trust Administration

 

Re:                               **Kappa Beheer B.V. €95,000,000105/8% Class A Senior Subordinated Notes due 2009 (the“Notes”)**

 

Reference is hereby made to theIndenture, dated as of May 22, 2003 between the Issuer, the SubsidiaryGuarantor and The Bank of New York, as trustee, (the “**Indenture**”).  Terms used but not defined herein and defined in Regulation Sunder the U.S. Securities Act of 1933 (the “**SecuritiesAct**”) or in the Indenture shall have the meanings given to them inRegulation S or the Indenture, as the case may be.

 

This certificate relates to €95,000,000(Three hundred and Ninety-five million Euro) principal amount of Notes, whichare evidenced by the following certificate(s) (the “**Specified Notes**”):

 

[CUSIP][CINS][ISIN] No(s).                                                         

 

CERTIFICATE No(s).                                           

 

The person in whose name thiscertificate is executed below (the “**Undersigned**”)hereby certifies that either (i) it is the sole beneficial owner of theSpecified Notes or (ii) it is acting on behalf of all the beneficial owners ofthe Specified Notes and is duly authorized by them to do so.  Such beneficial owner or owners are referredto herein collectively as the “**Owner**”.  If the Specified Notes are represented by aGlobal Note, they are held through the appropriate Common Depositary or anAgent Member in the name of the Undersigned, as or on behalf of the Owner.

 

The Owner has requested that theSpecified Notes be transferred to a person (the “Transferee”) who will takedelivery in the form of an interest in the Regulation S Global Security.  In connection with such transfer, the Ownerhereby certifies that such transfer is being effected in accordance with Rule904 or Rule 144 under the Securities Act and with all applicable securitieslaws of the states of the United States and other jurisdictions.  Accordingly, the Owner hereby furthercertifies as follows:

 

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(1)           *Rule 904 Transfers*.  If the transfer is being effected inaccordance with Rule 904:

 

(A)          the Owner is not a distributor of the Specified Notes, anAffiliate of the Issuer or any such distributor or a person acting on behalf ofany of the foregoing;

 

(B)           the offer of the Specified Notes was not made to a personin the United States;

 

(C)           either:

 

(i)            at the time the buy order was originated, the Transfereewas outside the United States or the Owner and any person acting on its behalfreasonably believed that the Transferee was outside the United States; or

 

(i)            the transaction is being executed in, on or through thefacilities of the Eurobond market, as regulated by the Association ofInternational Bond Dealers, or another designated offshore securities marketand neither the Owner nor any person acting on its behalf knows that thetransactions has been prearranged with a buyer in the United States;

 

(D)          no directed selling efforts have been made in the UnitedStates by or on behalf of the Owner or any Affiliate thereof;

 

(E)           if the Owner is a dealer in securities or has received aselling concession, fee or other remuneration in respect of the SpecifiedNotes, and the transfer is to occur during the Restricted Period, then therequirements of Rule 904(c)(1) have been satisfied; and

 

(F)           the transaction is not part of a plan or scheme to evade theregistration requirements of the Securities Act.

 

(2)           *Rule 144 Transfers*.  If the transfer is being effected pursuantto Rule 144:

 

(A)          the transfer is occurring after [date one year after thelatest date of issuance of any of the Specified Notes] and is being effected inaccordance with the applicable amount, manner of sale and notice requirementsof Rule 144; or

 

(B)           the transfer is occurring after [date two years after thelatest date of issuance of any of the Specified Notes] and the Owner is not, andduring the preceding three months has not been, an Affiliate of the Issuer.

 

This certificate and thestatements contained herein are made for your benefit and the benefit of theIssuer and the Initial Purchasers under the Purchase Agreement.

 

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| Dated: |                                                                                                        |   |
|--------|-------------------------------------------------------------------------------------------------------------|--------|
|   |                                                                                                        |
|   | (Print the name of the  Undersigned, as such term is defined in the second paragraph of this  certificate.) |
|   |                                                                                                        |
|   | By:                                                                                                         |   |   |
|   |                                                                                                        | Name:  |
|   |                                                                                                        | Title: |
|        |                                                                                                             |        |  |  |

 

(If the Undersigned is acorporation, partnership or fiduciary, the title of the person signing onbehalf of the Undersigned must be stated.)

 

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**EXHIBIT D**

 

FORM OF TRANSFER CERTIFICATE —REGULATION S GLOBAL SECURITY TORESTRICTED GLOBAL SECURITY

(Transfers to QIBs Pursuant to Sections2.14(b)(iv) of the Indenture)

 

The Bank of New York

as Trustee

One Canada Square

London

E14 5AL

Corporate Trust Administration

 

**Re:****                            ****Kappa Beheer B.V.€95,000,000 105/8% Class A Senior Subordinated Notes due2009 (the “Notes”)**

 

Reference is hereby made to theIndenture, dated as of May 22, 2003 between the Issuer, the SubsidiaryGuarantor and The Bank of New York, as trustee, (the “**Indenture**”).  Terms used but not defined herein and defined in Regulation Sunder the U.S. Securities Act of 1933 (the “**SecuritiesAct**”) or in the Indenture shall have the meanings given to them inRegulation S or the Indenture, as the case may be.

 

This certificate relates to€95,000,000 (Ninety-five million Euro) principal amount of Notes, which areevidenced by the following certificate(s) (the “**Specified Notes**”):

 

[CUSIP][CINS][ISIN] No(s).                                

 

CERTIFICATE No(s).                         

 

The person in whose name thiscertificate is executed below (the “**Undersigned**”)hereby certifies that either (i) it is the sole beneficial owner of theSpecified Notes or (ii) it is acting on behalf of all the beneficial owners ofthe Specified Notes and is duly authorized by them to do so.  Such beneficial owner or owners are referredto herein collectively as the “**Owner**”.  If the Specified Notes are represented by aGlobal Note, they are held through the appropriate Common Depositary or an AgentMember in the name of the Undersigned, as or on behalf of the Owner.

 

The Owner has requested that theSpecified Notes be transferred to a person (the “**Transferee**”) who will take delivery in the form of an interestin the Restricted Global Note.  In connectionwith such transfer, the Owner hereby certifies that such transfer is beingeffected in accordance with Rule 144A under the Securities Act and with allapplicable securities laws of the states of the United States and otherjurisdictions.  Accordingly, the Ownerhereby further certifies as follows:

 

(1)           the Specified Notes are being transferred to a person thatthe Owner and any person acting on its behalf reasonably believe is a“qualified institutional

 

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buyer” within the meaning of Rule 144A, acquiring for its own accountor for the account of a qualified institutional buyer; and

 

(2)           the Owner and any person acting on its behalf have takenreasonable steps to ensure that the Transferee is aware that the Owner may berelying on Rule 144A in connection with the transfer.

 

This certificate and thestatements contained herein are made for your benefit and the benefit of theIssuer and the Initial Purchasers under the Purchase Agreement.

 
| Dated: |                                                                                                        |   |
|--------|-------------------------------------------------------------------------------------------------------------|--------|
|   |                                                                                                        |
|   | (Print the name of the  Undersigned, as such term is defined in the second paragraph of this  certificate.) |
|   |                                                                                                        |
|   | By:                                                                                                         |   |   |
|   |                                                                                                        | Name:  |
|   |                                                                                                        | Title: |
|        |                                                                                                             |        |  |  |

 

(If the Undersigned is a corporation, partnership or fiduciary, thetitle of the person signing on behalf of the Undersigned must be stated.)

 

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**EXHIBIT E**

 

FORM OF CERTIFICATE TO BEDELIVERED IN CONNECTION WITHTRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS

(Transfers Pursuant to Section2.15 of the Indenture)

 

 

The Bank of New York

 as Trustee

One Canada Square

London

E14 5AL

Corporate Trust Administration

 

**Re:****                             KappaBeheer B.V.****€95,000,000 10****5****/8% Class A Senior Subordinated Notes due 2009 (the “Notes”)**

 

Ladies and Gentlemen:

 

Reference is hereby made to the Indenture, dated as of May 22, 2003between the Issuer, the Subsidiary Guarantor and The Bank of New York, astrustee (the **“Indenture”**).  Terms used but not defined herein have themeanings given to them in the Indenture.

 

This certificate relates to €95,000,000 (Ninety-five million Euro)principal amount of Notes, which are evidenced by the following certificate(s)(the **“Notes”**):

 

1.                                                                                                                                       Weunderstand that the Notes have not been registered under the Securities Act of1933, as amended (the “Securities Act”), and may not be sold except aspermitted in the following sentence.  Weunderstand and agree, on our own behalf and on behalf of any accounts for whichwe are acting as hereinafter stated, that such Notes are being offered only ina transaction not involving any public offering within two years after the dateof the original issuance of the Notes or if within three months after we ceaseto be an affiliate (within the meaning of Rule 144 under the Securities Act) ofthe Issuer, such Notes may be resold, pledged or transferred only (i) to theIssuer, (ii) so long as the Notes are eligible for resale pursuant to Rule 144Aunder the Securities Act (“Rule 144A”), to a person whom we reasonably believeis a “qualified institution buyer” (as defined in Rule 144A) (“QIB”) thatpurchases for its own account or for the account of a QIB to whom notice isgiven that the resale, pledge or transfer is being made in reliance on Rule144A (as indicated by the box checked by the transferor on the Certificate ofTransfer on the reverse of the certificate for the Notes), (iii) in an offshoretransaction in accordance with Regulation S under the Securities Act (asindicated by the

 

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box checked bythe transferor on the Certificate of Transfer on the reverse of the Note if theNote is not in book-entry form), and, if such transfer is being effected bycertain transferors prior to the expiration of the “40-day distributioncompliance period” (within the meaning of Rule 903(b)(2) of Regulation S underthe Securities Act), a certificate that may be obtained from the Trustee isdelivered by the transferee, (iv) to an institution that is an “accreditedinvestor” as defined in Rule 501(a)(1), (2), (3) or (7) under the SecuritiesAct (as indicated by the box checked by the transferor on the Certificate ofTransfer on the reverse of the certificate for the Notes) which has certifiedto the Issuer and the Trustee for the Notes that it is such an accreditedinvestor and is acquiring the Notes for investment purposes and not fordistribution (provided that no Notes purchased from a foreign purchaser or fromany person other than a QIB or an institutional accredited investor pursuant tothis clause (iii) shall be permitted to transfer any Notes so purchased to aninstitutional accredited investor pursuant to this clause (iv) prior to theexpiration of the “applicable restricted period” (within the meaning ofRegulation S under the Securities Act), (v) pursuant to an exemption fromregistration under the Securities Act provided by Rule 144 (if applicable)under the Securities Act, or (vi) pursuant to an effective registrationstatement under the Securities Act, in each case in accordance with anyapplicable securities laws of any state of the United States, and we willnotify any purchaser of the Notes from us of the above resale restriction, ifthen applicable.  We further understandthat in connection with any transfer of the Notes by us that the Issuer and theTrustee for the Notes may request, and if so requested we will furnish, suchcertificates, legal opinions and other information as they may reasonablyrequire to confirm that any such transfer complies with the foregoingrestrictions.

 

2.                                                                                                                                       Weare able to fend for ourselves in the transactions contemplated by thisOffering Circular, we have such knowledge and experience in financial andbusiness matters as to be capable of evaluating the merits and risks of ourinvestment in the Notes, and we and any accounts for which we are acting areeach able to bear the economic risk of our or its investment and can afford thecomplete loss of such investment.

 

3.                                                                                                                                       Weunderstand that the Issuer and Barclays Bank plc, as the initial purchaser ofthe Notes (“the Initial Purchaser”), and others will rely upon the truth andaccuracy of the foregoing acknowledgments, representations and agreements andwe agree that if any of the acknowledgments, representations and warrantiesdeemed to have been made by us by our purchase of Notes, for our own account orof one or more accounts as to

 

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each of whichwe exercise sole investment discretion, are no longer accurate, we shallpromptly notify the Issuer and the Initial Purchaser.

 

4.                                                                                                                                       Weare acquiring the Notes purchased by us for investment purposes and not fordistribution of our own account or for one or more accounts as to each of whichwe exercise sole investment discretion and we are or such account is aninstitutional “accredited investor” (as defined in rule 501(a)(1), (2), (3) or(7) of Regulation D under the Securities Act).

 

5.                                                                                                                                       Youare entitled to rely upon this letter and you are irrevocably authorized toproduce this letter or a copy hereof to any interested party in anyadministrative or legal proceeding or official inquiry with respect to thematters covered hereby.

 

 
|   | Very truly yours,   |
|--------|---------------------|
|   |                |
|   |                |
|   | (Name of Purchaser) |
|   |                |
|   |                |
|   | By:                 |   |
|   |                |
|   |                |
|   | Date:               |   |
|        |                     |  |  |

 

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**SCHEDULE 1**

** **

**PROVISIONS FOR MEETINGS OF HOLDERS**

 

1.                                       (a)           As used in thisSchedule the following expressions shall have the following meanings unless thecontext otherwise requires:

 

(i)                                     “**24 hours**” shall mean a period of 24 hoursincluding all or part of a day upon which banks are open for business in boththe place where the relevant meeting is to be held and in each of the placeswhere the Agents have their specified office (disregarding for this purpose theday upon which such meeting is to be held) and such period shall be extended byone period or, to the extent necessary, more periods of 24 hours until there isincluded as aforesaid all or part of a day upon which banks are open for businessin all of the places as aforesaid; and

 

(ii)                                  “**48 hours**” shall mean a period of 48 hoursincluding all or part of two days upon which banks are open for business bothin the place where the relevant meeting is to be held and in each of the placeswhere the Agents have their specified office (disregarding for this purpose theday upon which such meeting is to be held) and such period shall be extended byone period or, to the extent necessary, more periods of 24 hours until there isincluded as aforesaid all or part of two days upon which banks are open forbusiness in all of the places as aforesaid.

 

(b)                                 (i)            A holder of the Notes (whetherrepresented by a Global Note) may, by an instrument in writing in the Englishlanguage (a “**form of proxy**”)signed by the holder or, in the case of a corporation, executed under itscommon seal or signed on its behalf by an attorney or a duly authorised officerof the corporation and delivered to the specified office of the Registrar notless than 48 hours before the time fixed for the relevant meeting, appoint anyperson (a “**proxy**”) to act on hisor its behalf in connection with any meeting of the Holders and any adjournedsuch meeting.

 

(ii)                                  Anyholder of Notes which is a corporation may by resolution of its directors orother governing body authorise any person to act as its representative (a “**representative**”) in connection with anymeeting of the Holders and any adjourned such meeting.

 

(iii)                               Anyproxy appointed pursuant to sub-paragraph (i) above or representative appointedpursuant to sub-paragraph (ii) above shall so long as such appointment remainsin force be deemed, for all purposes in connection with the relevant meeting oradjourned meeting of the Holders, to be the holder of the Notes to which suchappointment relates and the holder of the Notes shall be deemed for suchpurposes not to be the holder.

 

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2.                                       TheIssuer or the Trustee may at any time and the Issuer shall upon a requisitionin writing signed by the holders of not less than one-tenth in principal amountof the Notes for the time being outstanding convene a meeting of the Holdersand if the Issuer makes default for a period of seven days in convening such ameeting the same may be convened by the Trustee or the requisitionists.  Every such meeting shall be held at suchtime and place as the Trustee may appoint or approve.

 

3.                                       Atleast 21 days’ notice (exclusive of the day on which the notice is given andthe day on which the meeting is to be held) specifying the place, day and hourof meeting shall be given to the Holders prior to any meeting of the Holders inthe manner provided by Section 13.02 of this Indenture.  Such notice, which shall be in the Englishlanguage, shall state generally the nature of the business to be transacted atthe meeting thereby convened but (except for an Extraordinary Resolution) itshall not be necessary to specify in such notice the terms of any resolution tobe proposed.  Such notice shall includestatements, if applicable, to the effect that the holders of Notes may appointproxies by executing and delivering a form of proxy in the English language tothe specified office of the Registrar not less than 48 hours before the timefixed for the meeting or, in the case of corporations, may appointrepresentatives by resolution of their directors or other governing body.  A copy of the notice shall be sent by postto the Trustee (unless the meeting is convened by the Trustee), to the Issuer(unless the meeting is convened by the Issuer) and to the Subsidiary Guarantor(unless the meeting is convened by the Subsidiary Guarantor).

 

4.                                       Aperson (who may but need not be a Holder) nominated in writing by the Trusteeshall be entitled to take the chair at the relevant meeting or adjournedmeeting but if no such nomination is made or if at any meeting or adjournedmeeting the person nominated shall not be present within 15 minutes after thetime appointed for holding the meeting or adjourned meeting the Holders presentshall choose one of their number to be Chairman, failing which the Issuer orthe Subsidiary Guarantor may appoint a Chairman.  The Chairman of an adjourned meeting need not be the same personas was Chairman of the meeting from which the adjournment took place.

 

5.                                       Atany such meeting one or more persons present being proxies or representativesand holding or representing in the aggregate not less than one-twentieth of theprincipal amount of the Notes for the time being outstanding shall (except forthe purpose of passing an Extraordinary Resolution) form a quorum for thetransaction of business and no business (other than the choosing of a Chairman)shall be transacted at any meeting unless the requisite quorum be present atthe commencement of the relevant business. The quorum at any such meeting for passing an Extraordinary Resolutionshall (subject as provided below) be one or more persons present being proxiesor representatives and holding or representing in the aggregate a clearmajority in principal amount of the Notes for the time being outstandingPROVIDED THAT at any meeting the business of which includes any of thefollowing matters (each of which shall, subject to Sections 10.01 and 10.02 ofthis

 

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Indenture, onlybe capable of being effected after having been approved by ExtraordinaryResolution) namely:

 

(i)                                     anyof the events itemised in (a) through (j) inclusive of Section 10.02 of thisIndenture;

 

(ii)                                  alterationof the majority required to pass an Extraordinary Resolution;

 

(iii)                               thesanctioning of any such scheme or proposal as is described in paragraph 18(I)below; and

 

(iv)                              alterationof this proviso or the proviso to paragraph 6 below;

 

the quorum for passing the requisite Extraordinary Resolution shall beone or more persons present being proxies or representatives and holding orrepresenting in the aggregate not less than two-thirds of the principal amountof the Notes for the time being outstanding.

 

6.                                       Ifwithin 15 minutes (or such longer period not exceeding 30 minutes as theChairman may decide) after the time appointed for any such meeting a quorum isnot present for the transaction of any particular business, then, subject andwithout prejudice to the transaction of the business (if any) for which aquorum is present, the meeting shall if convened upon the requisition ofHolders be dissolved.  In any other caseit shall stand adjourned to the same day in the next week (or if such day is apublic holiday the next succeeding Business Day) at the same time and place(except in the case of a meeting at which an Extraordinary Resolution is to beproposed in which case it shall stand adjourned for such period, being not lessthan 13 clear days nor more than 42 clear days, and to such place as may beappointed by the Chairman either at or subsequent to such meeting and approvedby the Trustee).  If within 15 minutes(or such longer period not exceeding 30 minutes as the Chairman may decide)after the time appointed for any adjourned meeting a quorum is not present forthe transaction of any particular business, then, subject and without prejudiceto the transaction of the business (if any) for which a quorum is present, theChairman may either (with the approval of the Trustee) dissolve such meeting oradjourn the same for such period, being not less than 13 clear days (butwithout any maximum number of clear days), and to such place as may beappointed by the Chairman either at or subsequent to such adjourned meeting andapproved by the Trustee, and the provisions of this sentence shall apply to allfurther adjourned such meetings.  At anyadjourned meeting one or more persons present being proxies or representatives(whatever the principal amount of the Notes so held or represented by them)shall (subject as provided below) form a quorum and shall (subject as providedbelow) have power to pass any Extraordinary Resolution or other resolution andto decide upon all matters which could properly have been dealt with at themeeting from which the adjournment took place had the requisite quorum beenpresent PROVIDED THAT at any adjourned meeting the quorum for the transactionof business comprising any of the matters specified in the proviso to paragraph5 above shall be one or

 

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more personspresent being proxies or representatives and holding or representing in theaggregate not less than one-third of the principal amount of the Notes for thetime being outstanding.

 

7.                                       Noticeof any adjourned meeting at which an Extraordinary Resolution is to besubmitted shall be given in the same manner as notice of an original meetingbut as if 10 were substituted for 21 in paragraph 3 above and such notice shallstate the relevant quorum.  Subject asaforesaid it shall not be necessary to give any notice of an adjourned meeting.

 

8.                                       Everyquestion submitted to a meeting shall be decided in the first instance by ashow of hands and in case of equality of votes the Chairman shall both on ashow of hands and on a poll have a casting vote in addition to the vote orvotes (if any) to which he may be entitled as a Holder or as a proxy or as arepresentative.

 

9.                                       Atany meeting unless a poll is (before or on the declaration of the result of theshow of hands) demanded by the Chairman, the Issuer, the Trustee or any personpresent being a proxy or representative (whatever the principal amount of theNotes so held or represented by him) a declaration by the Chairman that aresolution has been carried or carried by a particular majority or lost or notcarried by a particular majority shall be conclusive evidence of the factwithout proof of the number or proportion of the votes recorded in favour of oragainst such resolution.

 

10.                                 Subjectto paragraph 12 below, if at any such meeting a poll is so demanded it shall betaken in such manner and subject as hereinafter provided either at once orafter an adjournment as the Chairmen directs and the result of such poll shallbe deemed to be the resolution of the meeting at which the poll was demanded asat the date of the taking of the poll. The demand for a poll shall not prevent the continuance of the meetingfor the transaction of any business other than the motion on which the poll hasbeen demanded.

 

11.                                 TheChairman may with the consent of (and shall if directed by) any such meetingadjourn the same from time to time and from place to place but no businessshall be transacted at any adjourned meeting except business which mightlawfully (but for the lack of required quorum) have been transacted at themeeting from which the adjournment took place.

 

12.                                 Anypoll demanded at any such meeting on the election of a Chairman or on anyquestion of adjournment shall be taken at the meeting without adjournment.

 

13.                                 TheTrustee and its lawyers and any director, officer or employee of a corporationbeing a trustee of this Indenture and any director or officer of the Issuer orthe Subsidiary Guarantor and the lawyers of either of them and any other personauthorised so to do by the Trustee may attend and speak to any meeting.  Save as aforesaid, but without prejudice tothe proviso to the definition of “**outstanding**”in Section 1.01, no person shall be entitled to attend and speak nor shall anyperson be entitled to vote at any meeting of the Holders or join with others inrequesting the convening of such a meeting or to

 

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exercise therights conferred on the Holders by Sections 6.02 and 6.03 unless he is a proxyor a representative.  No person shall beentitled to vote at any meeting in respect of Notes held by, for the benefitof, or on behalf of, the Issuer, any Subsidiary of the Issuer, including theSubsidiary Guarantor, any holding company of the Issuer or any other Subsidiaryof such holding company.  Nothing hereinshall prevent any of the proxies named in any form of proxy or anyrepresentative from being a director, officer or representative of or otherwiseconnected with the Issuer.

 

14.           Subjectas provided in paragraph 13 hereof at any meeting:

 

(a)                                  ona show of hands every person who is a proxy or representative shall have onevote; and

 

(b)                                 ona poll every person who is so present shall have one vote in respect of each€1,000 or such other amount as the Trustee may in its absolute discretionstipulate in principal amount of the Notes in respect of which he is a proxy orrepresentative.

 

Without prejudice to the obligations of the proxies named in any formof proxy any person entitled to more than one vote need not use all his votesor cast all the votes to which he is entitled in the same way.

 

15.           Theproxies named in any form of proxy and representatives need not be Holders.

 

16.           Eachform of proxy shall be deposited by the Registrar at such place as the Trusteeshall approve not less than 24 hours before the time appointed for holding themeeting or adjourned meeting at which the proxies named in the form of proxypropose to vote and in default the form of proxy shall not be treated as validunless the Chairman of the meeting decides otherwise before such meeting oradjourned meeting proceeds to business. A notarially certified copy of each form of proxy shall be depositedwith the Trustee before the commencement of the meeting or adjourned meetingbut the Trustee shall not thereby be obliged to investigate or be concernedwith the validity of or the authority of the proxies named in any such form ofproxy.

 

17.           Anyvote given in accordance with the terms of a form of proxy shall be validnotwithstanding the previous revocation or amendment of the form of proxy or ofany of the Holders’ instructions pursuant to which it was executed providedthat no intimation in writing of such revocation or amendment shall have beenreceived from the holder thereof by the Issuer at its registered office (orsuch other place as may have been required or approved by the Trustee for thepurpose) by the time being 48 hours before the time appointed for holding themeeting or adjourned meeting at which the form of proxy is to be used.

 

18.           Subjectalways to the provisions of Sections 10.01 and 10.02 of this Indenture, ameeting of the Holders shall in addition to the powers hereinbefore given havethe following powers exercisable only by Extraordinary Resolution (subject tothe provisions relating to quorum contained in paragraphs 5 and 6 above)namely:

 

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(a)                                  Powerto sanction any compromise or arrangement proposed to be made between theIssuer, the Subsidiary Guarantor, the Trustee, any Appointee and the Holders orany of them.

 

(b)                                 Powerto sanction any abrogation, modification, compromise or arrangement in respectof the rights of the Trustee, any Appointee, the Holders, the Issuer or theSubsidiary Guarantor against any other or others of them or against any oftheir property whether such rights shall arise under this Indenture orotherwise.

 

(c)                                  Powerto assent to any modification of the provisions of this Indenture which shallbe proposed by the Issuer, the Subsidiary Guarantor, the Trustee or any Holder.

 

(d)                                 Powerto give any authority or sanction which under the provisions of this Indentureis required to be given by Extraordinary Resolution.

 

(e)                                  Powerto appoint any persons (whether Holders or not) as a committee or committees torepresent the interests of the Holders and to confer upon such committee orcommittees any powers or discretions which the Holders could themselvesexercise by Extraordinary Resolution.

 

(f)                                    Powerto approve of a person to be appointed a trustee and power to remove anytrustee or trustees for the time being of this Indenture.

 

(g)                                 Powerto discharge or exonerate the Trustee and/or any Appointee from all liability inrespect of any act or omission for which the Trustee and/or such Appointee mayhave become responsible under this Indenture.

 

(h)                                 Powerto authorise the Trustee and/or any Appointee to concur in and execute and doall such deeds, instruments, acts and things as may be necessary to carry outand give effect to any Extraordinary Resolution.

 

(i)                                     Powerto sanction any scheme or proposal for the exchange or sale of the Notes for orthe conversation of the Notes into or the cancellation of the Notes in considerationof shares, stock, notes, bonds, debentures, debenture stock and/or otherobligations and/or notes of the Issuer or any other company formed or to beformed, or for or into or in consideration of cash, or partly for or into or inconsideration of such shares, stocks, notes, bonds debentures, debenture stockand/or other obligations and/or securities as aforesaid and partly for or intoor in consideration of cash and for the appointment of some person with poweron behalf of the Holders to execute an instrument of transfer of the Notes heldby them in favour of the persons with or to whom the Notes are to be exchangedor sold respectively.

 

19.           Anyresolution passed at a meeting of the Holders duly convened and held inaccordance with this Indenture shall be binding upon all the Holders whetherpresent or not present at such meeting and whether or not voting and each ofthem shall be bound to give effect thereto accordingly and the passing of any

 

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suchresolution shall be conclusive evidence that the circumstances justify thepassing thereof.  Notice of the resultof the voting on any resolution duly considered by the Holders shall be givenby the Issuer to the Holders in accordance with Section 13.02 within 14 days ofsuch result being known PROVIDED THAT the non-publication of such notice shallnot invalidate such result.

 

(a)                                  Theexpression “**Extraordinary Resolution**”when used in this Indenture means (a) a resolution passed at a meeting of theHolders duly convened and held in accordance with this Indenture by a majorityconsisting of not less than three-fourths of the persons voting thereat upon ashow of hands or if a poll is duly demanded by a majority consisting of notless than three-fourths of the votes cast on such poll or (b) a resolution inwriting signed by or on behalf of all Holders, which resolution in writing maybe contained in one document or in several documents in like form each signedby or on behalf of one or more of the Holders.

 

20.                                 Minutesof all resolutions and proceedings at every meeting of the Holders shall bemade and entered in books to be from time to time provided for that purpose bythe Issuer and any such Minutes as aforesaid if purporting to be signed by theChairman of the meeting at which such resolutions were passed or proceedingstransacted shall be conclusive evidence of the matters therein contained anduntil the contrary is proved every such meeting in respect of the proceedingsof which Minutes have been made shall be deemed to have been duly held andconvened and all resolutions passed or proceedings transacted thereat to havebeen duly passed or transacted.

 

21.                                 Subjectto all other provisions of this Indenture the Trustee may without the consentof the Issuer, the Subsidiary Guarantor or the Holders prescribe such furtherregulations regarding the requisitioning and/or the holding of meetings ofHolders and attendance and voting thereat as the Trustee may in its solediscretion think fit.

 

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