Exhibit 4.1


 





 


BUHRMANN US INC.,


 


 


as Issuer,


 


 


BUHRMANN N.V.,


 


 


and


 


 


the other GUARANTORS named herein,


 


 


as Guarantors,


 


 


and


 


 


THE BANK OF NEW YORK,


 


 


as Trustee










 


 


INDENTURE


 


Dated as of March 2, 2005










 


 


$150,000,000










 


7 7/8% Senior Subordinated Notes due 2015




 





 





















 


CROSS-REFERENCE
TABLE


 


	
  TIA

  Section

  	
   

  	
  Indenture

  Section

  
	
   

  	
   

  	
   

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.08; 7.10

  
	
  (b)

  	
   

  	
  7.08; 7.10; 13.02

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.05

  
	
  (b)

  	
   

  	
  13.03

  
	
  (c)

  	
   

  	
  13.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  7.06

  
	
  (b)(2)

  	
   

  	
  7.06

  
	
  (c)

  	
   

  	
  7.06; 13.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.06(a), 4.19; 13.02

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  7.02; 13.04; 13.05

  
	
  (c)(2)

  	
   

  	
  7.02; 13.04; 13.05

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  13.05

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.01(b)

  
	
  (b)

  	
   

  	
  7.05

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  6.05; 7.01(c)

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a)(last sentence)

  	
   

  	
  2.09

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  9.02

  
	
  (b)

  	
   

  	
  6.07

  
	
  (c)

  	
   

  	
  9.05

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (b)

  	
   

  	
  2.04

  
	
  318(a)

  	
   

  	
  13.01

  
	
  (c)

  	
   

  	
  13.01

  



 










N.A. means Not Applicable


 


Note:                   This Cross-Reference Table shall not, for any
purpose, be deemed to be a part of the Indenture


 





















 


TABLE OF
CONTENTS


 


	
  ARTICLE
  ONE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
   

  	
  Definitions

  	
   

  
	
  SECTION 1.02.

  	
   

  	
  Other Definitions

  	
   

  
	
  SECTION 1.03.

  	
   

  	
  Incorporation by Reference of TIA.

  	
   

  
	
  SECTION 1.04.

  	
   

  	
  Rules of Construction.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  TWO

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  THE
  SECURITIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
   

  	
  Form and Dating

  	
   

  
	
  SECTION 2.02.

  	
   

  	
  Execution and Authentication

  	
   

  
	
  SECTION 2.03.

  	
   

  	
  Registrar and Paying Agent

  	
   

  
	
  SECTION 2.04.

  	
   

  	
  Paying Agent To Hold Assets in Trust

  	
   

  
	
  SECTION 2.05.

  	
   

  	
  Holder Lists

  	
   

  
	
  SECTION 2.06.

  	
   

  	
  Transfer and Exchange.

  	
   

  
	
  SECTION 2.07.

  	
   

  	
  Replacement Securities.

  	
   

  
	
  SECTION 2.08.

  	
   

  	
  Outstanding Securities

  	
   

  
	
  SECTION 2.09.

  	
   

  	
  Treasury Securities.

  	
   

  
	
  SECTION 2.10.

  	
   

  	
  Temporary Securities.

  	
   

  
	
  SECTION 2.11.

  	
   

  	
  Cancellation.

  	
   

  
	
  SECTION 2.12.

  	
   

  	
  Defaulted Interest.

  	
   

  
	
  SECTION 2.13.

  	
   

  	
  CUSIP Number.

  	
   

  
	
  SECTION 2.14.

  	
   

  	
  Deposit of Moneys.

  	
   

  
	
  SECTION 2.15.

  	
   

  	
  Book-Entry Provisions for Global
  Securities.

  	
   

  
	
  SECTION 2.16.

  	
   

  	
  Special Transfer Provisions.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  THREE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  REDEMPTION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
   

  	
  Notices to Trustee

  	
   

  
	
  SECTION 3.02.

  	
   

  	
  Selection of Securities To Be Redeemed

  	
   

  
	
  SECTION 3.03.

  	
   

  	
  Notice of Redemption

  	
   

  
	
  SECTION 3.04.

  	
   

  	
  Effect of Notice of Redemption.

  	
   

  
	
  SECTION 3.05.

  	
   

  	
  Deposit of Redemption Price.

  	
   

  
	
  SECTION 3.06.

  	
   

  	
  Securities Redeemed in Part

  	
   

  



 


i





















 


	
  ARTICLE
  FOUR

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
   

  	
  Payment of Securities

  	
   

  
	
  SECTION 4.02.

  	
   

  	
  Maintenance of Office or Agency.

  	
   

  
	
  SECTION 4.03.

  	
   

  	
  Corporate Existence

  	
   

  
	
  SECTION 4.04.

  	
   

  	
  Payment of Taxes and Other Claims.

  	
   

  
	
  SECTION 4.05.

  	
   

  	
  [Reserved]

  	
   

  
	
  SECTION 4.06.

  	
   

  	
  Compliance Certificate; Notice of Default

  	
   

  
	
  SECTION 4.07.

  	
   

  	
  [Reserved]

  	
   

  
	
  SECTION 4.08.

  	
   

  	
  Waiver of Stay, Extension or Usury Laws.

  	
   

  
	
  SECTION 4.09.

  	
   

  	
  Change of Control.

  	
   

  
	
  SECTION 4.10.

  	
   

  	
  Limitation on Incurrence of Additional
  Indebtedness.

  	
   

  
	
  SECTION 4.11.

  	
   

  	
  Limitation on Restricted Payments.

  	
   

  
	
  SECTION 4.12.

  	
   

  	
  Limitation on Liens.

  	
   

  
	
  SECTION 4.13.

  	
   

  	
  Limitation on Asset Sales.

  	
   

  
	
  SECTION 4.14.

  	
   

  	
  Limitations on Transactions with
  Affiliates.

  	
   

  
	
  SECTION 4.15.

  	
   

  	
  Limitation on Dividend and Other Payment
  Restrictions Affecting Restricted Subsidiaries.

  	
   

  
	
  SECTION 4.16.

  	
   

  	
  Additional Subsidiary Guarantees.

  	
   

  
	
  SECTION 4.17.

  	
   

  	
  Limitation on Preferred Stock of
  Non-Guarantors.

  	
   

  
	
  SECTION 4.18.

  	
   

  	
  Prohibition on Incurrence of Senior
  Subordinated Debt.

  	
   

  
	
  SECTION 4.19.

  	
   

  	
  Reports to Holders.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  FIVE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SUCCESSOR CORPORATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
   

  	
  Merger, Consolidation and Sale of Assets.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  SIX

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  DEFAULT AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
   

  	
  Events of Default.

  	
   

  
	
  SECTION 6.02.

  	
   

  	
  Acceleration.

  	
   

  
	
  SECTION 6.03.

  	
   

  	
  Other Remedies.

  	
   

  
	
  SECTION 6.04.

  	
   

  	
  Waiver of Past Defaults.

  	
   

  
	
  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.

  	
   

  	
  Undertaking for Costs.

  	
   

  



 


ii





















 


	
  ARTICLE
  SEVEN

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  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 Default.

  	
   

  
	
  SECTION 7.06.

  	
   

  	
  Reports by Trustee to Holders.

  	
   

  
	
  SECTION 7.07.

  	
   

  	
  Compensation and Indemnity.

  	
   

  
	
  SECTION 7.08.

  	
   

  	
  Replacement of Trustee.

  	
   

  
	
  SECTION 7.09.

  	
   

  	
  Successor Trustee by Merger, Etc.

  	
   

  
	
  SECTION 7.10.

  	
   

  	
  Eligibility; Disqualification.

  	
   

  
	
  SECTION 7.11.

  	
   

  	
  Preferential Collection of Claims Against
  Company.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  EIGHT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  DISCHARGE OF INDENTURE; DEFEASANCE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
   

  	
  Termination of the Company’s Obligations.

  	
   

  
	
  SECTION 8.02.

  	
   

  	
  Legal Defeasance and Covenant Defeasance.

  	
   

  
	
  SECTION 8.03.

  	
   

  	
  Conditions to Legal Defeasance or Covenant
  Defeasance.

  	
   

  
	
  SECTION 8.04.

  	
   

  	
  Application of Trust Money.

  	
   

  
	
  SECTION 8.05.

  	
   

  	
  Repayment to the Company.

  	
   

  
	
  SECTION 8.06.

  	
   

  	
  Reinstatement.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  NINE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  AMENDMENTS, SUPPLEMENTS AND WAIVERS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
   

  	
  Without Consent of Holders.

  	
   

  
	
  SECTION 9.02.

  	
   

  	
  With Consent of Holders.

  	
   

  
	
  SECTION 9.03.

  	
   

  	
  Effect on Senior Debt.

  	
   

  
	
  SECTION 9.04.

  	
   

  	
  Compliance with TIA.

  	
   

  
	
  SECTION 9.05.

  	
   

  	
  Revocation and Effect of Consents.

  	
   

  
	
  SECTION 9.06.

  	
   

  	
  Notation on or Exchange of Securities.

  	
   

  
	
  SECTION 9.07.

  	
   

  	
  Trustee To Sign Amendments, Etc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  TEN

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SUBORDINATION OF SECURITIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
   

  	
  Securities Subordinated to Senior Debt.

  	
   

  
	
  SECTION 10.02.

  	
   

  	
  Suspension of Payment When Senior Debt Is
  in Default.

  	
   

  
	
  SECTION 10.03.

  	
   

  	
  Securities Subordinated to Prior Payment of
  All Senior Debt on Dissolution, Liquidation or Reorganization of Company.

  	
   

  
	
  SECTION 10.04.

  	
   

  	
  Payments May Be Paid Prior to Dissolution.

  	
   

  
	
  SECTION 10.05.

  	
   

  	
  Holders To Be Subrogated to Rights of
  Holders of Senior Debt.

  	
   

  
	
  SECTION 10.06.

  	
   

  	
  Obligations of the Company Unconditional.

  	
   

  
	
  SECTION 10.07.

  	
   

  	
  Notice to Trustee.

  	
   

  



 


iii





















 


	
  SECTION 10.08.

  	
   

  	
  Reliance on Judicial Order or Certificate
  of Liquidating Agent.

  	
   

  
	
  SECTION 10.09.

  	
   

  	
  Trustee’s Relation to Senior Debt.

  	
   

  
	
  SECTION 10.10.

  	
   

  	
  Subordination Rights Not Impaired by Acts
  or Omissions of the Company or Holders of Senior Debt.

  	
   

  
	
  SECTION 10.11.

  	
   

  	
  Securityholders Authorize Trustee To
  Effectuate Subordination of Securities.

  	
   

  
	
  SECTION 10.12.

  	
   

  	
  This Article Ten Not To Prevent Events of
  Default.

  	
   

  
	
  SECTION 10.13.

  	
   

  	
  Trustee’s Compensation Not Prejudiced.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  ELEVEN

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  GUARANTEE OF SECURITIES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.01.

  	
   

  	
  Unconditional Guarantee.

  	
   

  
	
  SECTION 11.02.

  	
   

  	
  Limitations on Guarantees.

  	
   

  
	
  SECTION 11.03.

  	
   

  	
  Additional Amounts.

  	
   

  
	
  SECTION 11.04.

  	
   

  	
  Execution and Delivery of Guarantee.

  	
   

  
	
  SECTION 11.05.

  	
   

  	
  Release of a Guarantor.

  	
   

  
	
  SECTION 11.06.

  	
   

  	
  Waiver of Subrogation.

  	
   

  
	
  SECTION 11.07.

  	
   

  	
  Immediate Payment.

  	
   

  
	
  SECTION 11.08.

  	
   

  	
  No Set-Off.

  	
   

  
	
  SECTION 11.09.

  	
   

  	
  Guarantee Obligations Absolute.

  	
   

  
	
  SECTION 11.10.

  	
   

  	
  Guarantee Obligations Continuing.

  	
   

  
	
  SECTION 11.11.

  	
   

  	
  Guarantee Obligations Not Reduced.

  	
   

  
	
  SECTION 11.12.

  	
   

  	
  Guarantee Obligations Reinstated.

  	
   

  
	
  SECTION 11.13.

  	
   

  	
  Guarantee Obligations Not Affected.

  	
   

  
	
  SECTION 11.14.

  	
   

  	
  Waiver.

  	
   

  
	
  SECTION 11.15.

  	
   

  	
  No Obligation To Take Action Against the
  Company.

  	
   

  
	
  SECTION 11.16.

  	
   

  	
  Dealing with the Company and Others.

  	
   

  
	
  SECTION 11.17.

  	
   

  	
  Default and Enforcement.

  	
   

  
	
  SECTION 11.18.

  	
   

  	
  Amendment, Etc.

  	
   

  
	
  SECTION 11.19.

  	
   

  	
  Acknowledgment.

  	
   

  
	
  SECTION 11.20.

  	
   

  	
  Costs and Expenses.

  	
   

  
	
  SECTION 11.21.

  	
   

  	
  No Merger or Waiver; Cumulative Remedies.

  	
   

  
	
  SECTION 11.22.

  	
   

  	
  Survival of Guarantee Obligations.

  	
   

  
	
  SECTION 11.23.

  	
   

  	
  Guarantee in Addition to Other Guarantee
  Obligations.

  	
   

  
	
  SECTION 11.24.

  	
   

  	
  Severability.

  	
   

  
	
  SECTION 11.25.

  	
   

  	
  Successors and Assigns.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  TWELVE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SUBORDINATION OF GUARANTEE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.01.

  	
   

  	
  Guarantee Obligations Subordinated to
  Guarantor Senior Debt.

  	
   

  
	
  SECTION 12.02.

  	
   

  	
  Suspension of Guarantee Obligations When
  Guarantor Senior Debt Is in Default.

  	
   

  
	
  SECTION 12.03.

  	
   

  	
  Guarantee Obligations Subordinated to Prior
  Payment of All Guarantor Senior Debt on Dissolution, Liquidation or
  Reorganization of Such Guarantor.

  	
   

  
	
  SECTION 12.04.

  	
   

  	
  Payments May Be Paid Prior to Dissolution.

  	
   

  



 


iv





















 


	
  SECTION 12.05.

  	
   

  	
  Holders of Guarantee Obligations To Be
  Subrogated to Rights of Holders of Guarantor Senior Debt.

  	
   

  
	
  SECTION 12.06.

  	
   

  	
  Guarantee Obligations of the Guarantors
  Unconditional.

  	
   

  
	
  SECTION 12.07.

  	
   

  	
  Notice to Trustee.

  	
   

  
	
  SECTION 12.08.

  	
   

  	
  Reliance on Judicial Order or Certificate
  of Liquidating Agent.

  	
   

  
	
  SECTION 12.09.

  	
   

  	
  Trustee’s Relation to Guarantor Senior
  Debt.

  	
   

  
	
  SECTION 12.10.

  	
   

  	
  Subordination Rights Not Impaired by Acts
  or Omissions of the Guarantors or Holders of Guarantor Senior Debt.

  	
   

  
	
  SECTION 12.11.

  	
   

  	
  Holders Authorize Trustee To Effectuate
  Subordination of Guarantee Obligations.

  	
   

  
	
  SECTION 12.12.

  	
   

  	
  This Article Twelve Not To Prevent Events
  of Default.

  	
   

  
	
  SECTION 12.13.

  	
   

  	
  Trustee’s Compensation Not Prejudiced.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  THIRTEEN

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 13.01.

  	
   

  	
  TIA Controls.

  	
   

  
	
  SECTION 13.02.

  	
   

  	
  Notices.

  	
   

  
	
  SECTION 13.03.

  	
   

  	
  Communications by Holders 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 by Trustee, Paying Agent, Registrar.

  	
   

  
	
  SECTION 13.07.

  	
   

  	
  Agent for Service; Submission to
  Jurisdiction; Waiver of Immunities.

  	
   

  
	
  SECTION 13.08.

  	
   

  	
  Judgment Currency.

  	
   

  
	
  SECTION 13.09.

  	
   

  	
  Legal Holidays.

  	
   

  
	
  SECTION 13.10.

  	
   

  	
  Governing Law.

  	
   

  
	
  SECTION 13.11.

  	
   

  	
  No Adverse Interpretation of Other
  Agreements.

  	
   

  
	
  SECTION 13.12.

  	
   

  	
  No Recourse Against Others.

  	
   

  
	
  SECTION 13.13.

  	
   

  	
  Successors.

  	
   

  
	
  SECTION 13.14.

  	
   

  	
  Duplicate Originals.

  	
   

  
	
  SECTION 13.15.

  	
   

  	
  Severability.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signatures

  	
   

  	
   

  	
   

  



 


	
  Exhibit A

  	
  -

  	
  Form of Note

  	
   

  
	
  Exhibit B

  	
  -

  	
  Form of Legends

  	
   

  
	
  Exhibit C

  	
  -

  	
  Form of Certificate To Be Delivered in
  Connection with Transfers to Non-QIB Accredited Investors

  	
   

  
	
  Exhibit D

  	
  -

  	
  Form of Certificate To Be Delivered in
  Connection with Transfers Pursuant to Regulation S

  	
   

  
	
  Exhibit E

  	
  -

  	
  Form of Notation of Guarantee

  	
   

  



 


Note:                   This Table of
Contents shall not, for any purpose, be deemed to be part of the Indenture


 


v





















 


INDENTURE dated as of March 2, 2005 among BUHRMANN US INC., a Delaware
corporation (the “Company”), as issuer, Buhrmann N.V., a public company with limited
liability under the laws of the Netherlands (“Parent”), and each of the other
Guarantors named herein, as Guarantors, and THE BANK OF NEW YORK, a New York
banking corporation, as Trustee (the “Trustee”).


 


The Company has duly authorized the creation of an issue of 7 7/8%
Senior Subordinated Notes due 2015 and, to provide therefor, the Company has
duly authorized the execution and delivery of this Indenture.  All things necessary to make the Securities,
when duly issued and executed by the Company and authenticated and delivered
hereunder, the valid and binding obligations of the Company and to make this
Indenture a valid and binding agreement of the Company have been done.


 


Each party hereto agrees as follows for the benefit of each other party
and for the equal and ratable benefit of the Holders of the Securities:


 


ARTICLE ONE


 


DEFINITIONS AND INCORPORATION BY REFERENCE


 


SECTION 1.01.                                         Definitions.


 


“2014 Notes” means the Company’s 8 1/4% Senior Subordinated
Notes due 2014.


 


“Acquired Indebtedness” means Indebtedness of a Person or any of
its Subsidiaries existing at and prior to the time such Person becomes a
Restricted Subsidiary of Parent or at the time it merges or consolidates with
or into Parent or any of its Subsidiaries or assumed in connection with the
acquisition of assets from such Person; provided that
such Indebtedness shall not have been incurred by such Person in connection
with, or in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary of Parent or such acquisition, merger or consolidation.


 


“Additional Interest” has the meaning given to such term in the
Registration Rights Agreement.


 


“Additional Securities” means any securities originally issued
under the terms of this Indenture after the Issue Date in addition to the
Initial Securities (but, for the avoidance of doubt, excluding any Securities issued
pursuant to Sections 2.07, 2.10, 2.15(d) or 3.06).


 


“Adjusted Net Assets” of a Guarantor at any date shall mean the
lesser of the amount by which (x) the fair value of the assets of such
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities, but excluding liabilities under its
Guarantee, of such Guarantor at such date and (y) the present fair salable
value of the assets of such Guarantor at such date exceeds the amount that will
be required to pay the probable liability of such Guarantor on its debts (after
giving effect to all other fixed and contingent liabilities and after giving
effect to any collection from any Subsidiary of such Guarantor in respect of
the obligations of such Guarantor under its Guarantee), excluding Indebtedness
in respect of its Guarantee, as they become absolute and matured.


 


“Affiliate” means, with respect to any specified Person, any
other Person who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified
Person.  The term “control” means
the possession, directly or indirectly, of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership


 





















 


of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative of the foregoing.


 


“Agent” means any Registrar, Paying Agent or co-Registrar.


 


“Applicable Premium” means, with respect to any note on any
redemption date, the greater of: (1) 1.0% of the principal amount of the Securities;
or (2) the excess of: (a) the present value at such redemption date
of (i) the redemption price of the Securities at March 1, 2010 (such
redemption price being set forth in Paragraph 6 of the Securities) plus
(ii) all required interest payments due on the Securities through March 1,
2010 (excluding accrued but unpaid interest to the redemption date), computed
using a discount rate equal to the Treasury Rate as of such redemption date
plus 50 basis points; over (b) the principal amount of the Securities, if
greater.


 


“Asset Acquisition” means (1) an Investment by Parent or any
Restricted Subsidiary in any other Person pursuant to which such Person shall
become a Restricted Subsidiary, or shall be merged with or into Parent or any
Restricted Subsidiary, or (2) the acquisition by Parent or any Restricted
Subsidiary of the assets of any Person (other than a Restricted Subsidiary)
which constitute all or substantially all of the assets of such Person or
comprises any division or line of business of such Person or any other assets
of such Person other than in the ordinary course of business.


 


“Asset Sale” means any Transfer by Parent or any of its
Restricted Subsidiaries of (x) any Equity Interests of any Restricted
Subsidiary or (y) any other assets of Parent or any Restricted Subsidiary other
than sales of inventory in the ordinary course of business; provided that the term “Asset Sale” shall not include any of
the following:


 


(a)                                  any
Transfer between or among Parent and/or one or more Restricted Subsidiaries;


 


(b)                                 any
transaction or series of related transactions for which Parent and its
Restricted Subsidiaries receive aggregate consideration of less than $15.0
million;


 


(c)                                  any
Transfer covered by, and made in compliance with Section 5.01;


 


(d)                                 sales
of accounts receivable and related assets of the type specified in the
definition of Qualified Receivables Transaction to a Receivables Subsidiary for
the fair market value thereof, including cash in an amount at least equal to
75% of the book value thereof as determined in accordance with GAAP, and transfers
of accounts receivable and related assets of the type specified in the
definition of Qualified Receivables Transaction (or a fractional undivided
interest therein) by a Receivables Subsidiary in a Qualified Receivables
Transaction;


 


(e)                                  surrender
or waiver of contract rights or settlement of claims;


 


(f)                                    Liens
not prohibited by this Indenture;


 


(g)                                 the
Transfer of Cash Equivalents;


 


(h)                                 any
Transfer of damaged, worn-out or obsolete equipment in the ordinary course of
business;


 


2





















 


(i)                                     the
lease or sublease of any real or personal property in the ordinary course of
business;


 


(j)                                     the
licensing of intellectual property in the ordinary course of business;


 


(k)                                  any
Restricted Payment permitted by Section 4.11; and


 


(l)                                     Permitted
Investments.


 


“Australian Subsidiary” shall mean Corporate Express
Australia Ltd. (or any successor) or any of its Subsidiaries.


 


‘‘Bank Waiver’’ means the waiver of
certain restrictions in the Credit Agreement, without which the issuance of the
Notes would constitute a default under the Credit Agreement.


 


“Bankruptcy Law” means Title 11, U.S.
Code or any similar Federal, state or foreign law for the relief of debtors.


 


“Board of Directors” means (1) with
respect to Parent, (x) for purposes of the definitions of “Change of
Control,” “Continuing Directors” and “Independent Financial Advisor,” its board
of supervisory directors and (y) for all other purposes, its board of
managing directors and (2) with respect to any other Person, the board of
directors or similar governing body of such Person.


 


“Board Resolution” means, with respect
to any Person, a copy of a resolution certified by the Secretary or an
Assistant Secretary of such Person to have been duly adopted by the Board of
Directors of such Person and to be in full force and effect on the date of such
certification, and delivered to the Trustee.


 


“Business Day” means any day other
than a Saturday, Sunday or any other day on which banking institutions in the
City of New York are required or authorized by law or other governmental action
to be closed.


 


“Capitalized Lease Obligation” means,
as to any Person, the obligations of such Person under a lease that are
required to be classified and accounted for as capital lease obligations under GAAP
and, for purposes of this definition, the amount of such obligations at any
date shall be the capitalized amount of such obligations at such date, determined
in accordance with GAAP.


 


“Capital Stock” means:


 


(a)                                  with
respect to any Person that is a corporation, any and all shares, interests,
participations or other equivalents (however designated and whether or not
voting) of corporate stock, including each class of Common Stock and Preferred
Stock of such Person; and


 


(b)                                 with
respect to any Person that is not a corporation, any and all partnership,
membership or other equity interests of such Person.


 


“Cash Equivalents” means:


 


(1)                                  cash;


 


3





















 


(2)                                  debt
securities denominated in euro, pounds sterling, Swiss francs, Canadian dollars
or U.S. dollars, as applicable, to be issued or directly and fully guaranteed
or insured by the government of a Participating Member State (on the Issue
Date), the U.K., Switzerland, Canada or the U.S., as applicable, where the debt
securities have not more than twelve months to final maturity and are not
convertible into any other form of security;


 


(3)                                  debt
securities denominated in euro, pounds sterling, Swiss francs, Canadian dollars
or U.S. dollars which have not more than twelve months to final maturity, are
not convertible into any other form of security, are rated P-1 by Moody’s or A-1
by Standard & Poor’s and are not issued or guaranteed by Parent or any
of its Subsidiaries;


 


(4)                                  `commercial
paper denominated in euro, pounds sterling, Swiss francs, Canadian dollars or
U.S. dollars maturing no more than one year from the date of creation thereof
and, at the time of acquisition, having a rating of at least P-1 from Moody’s
and A-1 from Standard & Poor’s;


 


(5)                                  certificate
of deposit denominated in euro, pounds sterling, Swiss franc, Canadian dollars
or U.S. dollars having not more than twelve months to maturity issued by a bank
or financial institution incorporated or having a branch in a Participating
Member State (on the Issue Date) in the United Kingdom, Switzerland, Canada or
the United States, provided that
the bank is rated P-1 by Moody’s or A-1 by Standard & Poor’s;


 


(6)                                  any
cash deposit denominated in euro, pounds sterling, Swiss francs, Canadian
dollars or U.S. dollars with any commercial bank or other financial
institution, in each case whose long term unsecured, unsubordinated debt rating
is a least Aa3 by Moody’s or AA by Standard & Poor’s;


 


(7)                                  repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in clause (2) above entered into with any bank or
financial institution meeting the qualifications specified in clause (6)
above; and


 


(8)                                  investments
in money market funds which invest substantially all their assets in securities
of the types described in clauses (2) through (7) above.


 


“Change of
Control” means the occurrence of one or more of the following events
(whether or not otherwise in compliance with the provisions of this Indenture):


 


(a)                                  any
transaction (including any merger or consolidation) shall be consummated after
which any Person or Group, together with any Affiliates thereof, shall become
the owner, directly or indirectly, beneficially or of record, of Equity
Interests representing 50% or more of the aggregate ordinary voting power of
the Equity Interests of Parent; provided that
(x) such ownership by Stichting B solely by reason of the issuance of
Parent’s Preference Shares B pursuant to Section 4.10(b)(xi) shall not result
in a Change of Control under this clause (a) so long as Stichting B Continuing
Directors shall not cease to constitute a majority of the executive committee
of Stichting B and (y) ownership of record of Parent’s Preference Shares A
by Stichting shall not result in a Change of Control under this clause (a) so
long as the Stichting A Continuing Directors shall not cease to constitute a
majority of the executive committee of Stichting A;


 


4





















 


(b)                                 Parent
shall cease to own, directly or indirectly, beneficially and of record, 100% of
the Equity Interests of the Company;


 


(c)                                  the
approval by the holders of Equity Interests of Parent of any plan or proposal
for the liquidation or dissolution of Parent; or


 


(d)                                 Continuing
Directors cease to constitute a majority of the Board of Directors of Parent.


 


For purposes of this definition, “Group”
means a group for purposes of Section 13(d) of the Exchange Act, and “beneficial”
ownership has the meaning under Rule 13d-3 under the Exchange Act.


 


“Commission” means the Securities and
Exchange Commission.


 


“Common Stock” of any Person means any
and all shares, interests or other participations in, and other equivalents
(however designated and whether voting or non-voting) of such Person’s common
stock, whether outstanding on the Issue Date or issued after the Issue Date,
and includes, without limitation, all series and classes of such common stock.


 


“Company” means the party named as
such in this Indenture until a successor replaces it pursuant to this Indenture
and thereafter shall mean such successor corporation.


 


“Consolidated EBITDA” means, with
respect to any Person, for any period, the sum (without duplication) of:


 


(a)                                  Consolidated
Net Income; and


 


(b)                                 to
the extent Consolidated Net Income has been reduced thereby:


 


(i)                                     all
income taxes of such Person and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period (other than income taxes attributable to
extraordinary, unusual or nonrecurring gains or losses or taxes attributable to
sales or dispositions outside the ordinary course of business);


 


(ii)                                  Consolidated
Interest Expense;


 


(iii)                               Consolidated
Non-cash Charges less any non-cash items increasing Consolidated Net
Income for such period; and


 


(iv)                              cash
dividends on Designated Preferred Stock for such period;


 


all as determined on a consolidated basis for
such Person and its Restricted Subsidiaries in accordance with GAAP.


 


“Consolidated Fixed Charge Coverage Ratio”
means, with respect to any Person, the ratio of Consolidated EBITDA of such
Person during the four full fiscal quarters (the “Four Quarter Period”)
ending on or prior to the date of the transaction giving rise to the need to
calculate the Consolidated Fixed Charge Coverage Ratio for which financial
statements are available (the “Transaction Date”) to Consolidated Fixed
Charges of such Person for the Four Quarter Period.  In addition to and without limitation of


 


5





















 


the foregoing, for purposes of this
definition, “Consolidated EBITDA” and “Consolidated Fixed Charges” shall be
calculated after giving effect on a pro forma basis
for the period of such calculation to:


 


(a)                                  the
incurrence or repayment of any Indebtedness of such Person or any of its
Restricted Subsidiaries (and the application of the proceeds thereof) giving
rise to the need to make such calculation and any incurrence or repayment of
other Indebtedness (and the application of the proceeds thereof), other than
the incurrence or repayment of Indebtedness in the ordinary course of business
for working capital purposes pursuant to working capital facilities, occurring
at any time on or after the first day of the Four Quarter Period and on or
prior to the Transaction Date, as if such incurrence or repayment, as the case
may be (and the application of the proceeds thereof), occurred on the first day
of the Four Quarter Period; and


 


(b)                                 any
asset sales or other dispositions outside the ordinary course of business or
Asset Acquisitions (including, without limitation, any Asset Acquisition giving
rise to the need to make such calculation as a result of such Person or one of
its Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise
being liable for Indebtedness and also including any Consolidated EBITDA
(including any Pro Forma Cost Savings) attributable to the assets which are the
subject of the Asset Acquisition or asset sale or other disposition during the
Four Quarter Period) occurring at any time on or after the first day of the
Four Quarter Period and on or prior to the Transaction Date, as if such asset
sale or other disposition or Asset Acquisition (including the incurrence,
assumption or liability for any such Indebtedness) occurred on the first day of
the Four Quarter Period.


 


If such Person or any of its Restricted
Subsidiaries directly or indirectly guarantees Indebtedness of a third Person,
the preceding sentence shall give effect to the incurrence of such guaranteed
Indebtedness as if such Person or any Restricted Subsidiary of such Person had
directly incurred or otherwise assumed such guaranteed Indebtedness.  The foregoing adjustments shall be made with
respect to any such incurrences, repayments, asset sales or other dispositions
or Asset Acquisitions by any Person that becomes a Restricted Subsidiary, or
any Restricted Subsidiary that ceases to be a Restricted Subsidiary, as the
case may be, at any time on or after the first day of the Four Quarter Period
and on or prior to the Transaction Date.


 


Furthermore, in calculating “Consolidated
Fixed Charges” for purposes of determining the denominator (but not the
numerator) of this “Consolidated Fixed Charge Coverage Ratio”:


 


(a)                                  interest
on outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall
be deemed to have accrued at a fixed rate per annum equal to the rate of
interest on such Indebtedness in effect on the Transaction Date; and


 


(b)                                 notwithstanding
clause (1) above, interest on Indebtedness determined on a fluctuating basis,
to the extent such interest is covered by agreements relating to Interest
Hedging Agreements, shall be deemed to accrue at the rate per annum resulting
after giving effect to the operation of such agreements.


 


“Consolidated Fixed Charges” means,
with respect to any Person for any period, the sum, without duplication, of:


 


6





















 


(a)                                  Consolidated
Interest Expense; plus


 


(b)                                 without
duplication the product of (x) the amount of all dividend payments on any
series of Preferred Stock of such Person and, to the extent permitted under
this Indenture, its Restricted Subsidiaries (other than dividends paid in
Qualified Equity Interests) paid during such period times (y) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current effective consolidated tax rate of such Person, expressed as a decimal.


 


“Consolidated Interest Expense” means,
with respect to any Person for any period, the sum of, without duplication:


 


(a)                                  the
aggregate of the interest expense of such Person and its Restricted
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP, including without limitation: 
(a) any amortization of debt discount; (b) the net costs under
Interest Hedging Agreements; (c) all capitalized interest; and
(d) the interest portion of any deferred payment obligation (but excluding
amortization or write-off of debt issuance costs); and


 


(b)                                 the
interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Restricted Subsidiaries
during such period as determined on a consolidated basis in accordance with
GAAP.


 


“Consolidated Leverage Ratio” with respect to any Person as of
any date of determination means, the ratio of (1) consolidated
Indebtedness of such person as of the end of the most recent fiscal quarter for
which internal financial statements are available to (2) the aggregate
amount of the Consolidated EBITDA of such Person during the four full fiscal
quarters ending on or prior to the date of the transaction giving rise to the
need to calculate the Consolidated Leverage Ratio for which financial statements
are available, in each with such pro forma
adjustments to consolidated Indebtedness and Consolidated EBITDA as are
appropriate and consistent with the pro
forma provisions set forth in the definition of Consolidated Fixed
Charge Coverage Ratio.


 


“Consolidated Net Income” means, with respect to any Person, for
any period, the aggregate net income (or loss) of such Person and its
Restricted Subsidiaries for such period on a consolidated basis, determined in
accordance with GAAP; provided that
there shall be excluded therefrom:


 


(a)                                  after-tax
gains and losses from Asset Sales (without regard to the exceptions in clauses
(2) and (4) in the proviso of the definition thereof) or abandonments or
reserves relating thereto;


 


(b)                                 after-tax
items classified as extraordinary or nonrecurring gains or losses;


 


(c)                                  the
net income (or loss) of any Person acquired in a “pooling of interests”
transaction accrued prior to the date it becomes a Restricted Subsidiary of the
referent Person or is merged or consolidated with the referent Person or any
Restricted Subsidiary of the referent Person;


 


(d)                                 the
net income (but not loss) of any Restricted Subsidiary of the referent Person
to the extent that the declaration of dividends or similar distributions by
that Restricted Subsidiary of that income is restricted by contract, operation
of law or otherwise;


 


7





















 


(e)                                  the
net income of any Person, other than a Restricted Subsidiary of the referent
Person, except to the extent of cash dividends or distributions paid to the
referent Person or to a Restricted Subsidiary of the referent Person by such
Person;


 


(f)                                    any
restoration to income of any contingency reserve, except to the extent that
provision for such reserve was made out of Consolidated Net Income accrued at
any time following the Issue Date;


 


(g)                                 income
or loss attributable to discontinued operations (including, without limitation,
operations disposed of during such period whether or not such operations were
classified as discontinued but excluding Parent’s information systems
division);


 


(h)                                 the
cumulative effect of a change in accounting principles;


 


(i)                                     one-time
non-cash compensation charges; and


 


(j)                                     in
the case of a successor to the referent Person by consolidation or merger or as
a transferee of the referent Person’s assets, any earnings of the successor
corporation prior to such consolidation, merger or transfer of assets;


 


provided further
that any cash dividends on Designated Preferred Stock for such period shall
decrease Consolidated Net Income.


 


“Consolidated Non-cash Charges” means,
with respect to any Person, for any period, the aggregate depreciation,
amortization and other non-cash expenses of such Person and its Restricted
Subsidiaries reducing Consolidated Net Income of such Person and its Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP (excluding any such charges constituting an extraordinary item or
loss or any such charge which requires an accrual of or a reserve for cash
charges for any future period).


 


“Continuing Director” means a director
who either was a member of the Board of Directors of Parent on the Issue Date
or who became a director of Parent subsequent to the Issue Date and whose
election, or nomination for election by Parent’s stockholders, was duly
approved by a majority of the Continuing Directors then on the Board of
Directors of Parent, either by a specific vote or by approval of the proxy
statement issued by Parent on behalf of the entire Board of Directors of Parent
in which such individual is named as nominee for director.


 


“Corporate Trust Office” means the
principal office of the Trustee at which at any time its corporate trust
business shall be administered, which office at the dated hereof is located at
101 Barclay Street, Floor 8 West, New York, New York 10286, Attention:  Corporate Trust Administration, or such other
address as the Trustee may designate from time to time by notice to the Holders
and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as such successor Trustee may designate from
time to time by notice to the Holders and the Company).


 


“Credit Agreement” means the Credit
Agreement dated as of December 23, 2003, between Parent, the Company, the
lenders party thereto in their capacities as lenders thereunder and Deutsche
Bank AG London, as administrative agent, together with the related documents
thereto (including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including any
amendment and restatement thereof), supplemented or otherwise


 


8





















 


modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including increasing the amount of available borrowings
thereunder or adding Restricted Subsidiaries of Parent as additional borrowers
or guarantors thereunder) all or any portion of the Indebtedness under such
agreement or any successor or replacement agreement and whether by the same or
any other agent, lender or group of lenders.


 


“Credit Facilities” means one or more debt facilities
(including, without limitation, the Credit Agreement) or commercial paper
facilities, in each case, with banks or other institutional lenders providing
for revolving credit loans, term loans, receivables financing (including
through the sale of receivables to such lenders or to special purpose entities
formed to borrow from such lenders against such receivables) or letters of
credit, in each case, as amended, restated, modified, renewed, refunded, replaced
(whether upon or after termination or otherwise) or refinanced (including by
means of sales of debt securities to institutional investors) in whole or in
part from time to time.


 


“Currency/Commodity
Hedging Agreement” means any agreement entered into between the Parent or
any Restricted Subsidiary of the Parent and a bank or financial institution in
respect of any currency swap agreements, commodity agreements or other similar
agreements or arrangements.


 


“Custodian” means any receiver,
trustee, assignee, liquidator, sequestrator or similar official under any
Bankruptcy Law.


 


“Default” means an event or condition
the occurrence of which is, or with the lapse of time or the giving of notice
or both would be, an Event of Default.


 


“Depository” shall mean The Depository
Trust Company, New York, New York, or a successor thereto registered under the
Exchange Act or other applicable statute or regulation.


 


“Designated Preferred Stock” means
preferred stock that is so designated as Designated Preferred Stock, pursuant
to an Officers’ Certificate executed by the principal executive officer and the
principal financial officer of the Company, on the issuance date thereof, the
Net Cash Proceeds of which are excluded from the calculation set forth in
Section 4.11(a)(3) and are not used for purposes of Section 4.11(b)(iv) or (v).


 


“Designated Senior Debt” means (1)
Indebtedness under or in respect of the Credit Agreement and (2) any other
Indebtedness constituting Senior Debt which, at the time of determination, has
an aggregate principal amount of at least $25.0 million and is
specifically designated in the instrument evidencing such Senior Debt as “Designated
Senior Debt” by Parent.


 


“Disqualified Equity Interests” means
that portion of any Capital Stock which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder thereof), or upon the happening of any event (other than
an event which would constitute a Change of Control), matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
redeemable at the sole option of the holder thereof (except, in each case, upon
the occurrence of a Change of Control) on or prior to the date which is 91 days
after the final maturity date of the Securities.


 


“Equity Interests” means, with respect
to any Person, the Capital Stock of such Person, any warrants, options or other
options to purchase or acquire such Capital Stock and any securities
convertible into or exchangeable for such Capital Stock.


 


9





















 


“Equity Offering” means any issuance
and sale of Qualified Equity Interests of Parent.


 


“Exchange Act” means the Securities
Exchange Act of 1934, as amended, or any successor statute or statutes thereto.


 


“Exchange Offer” has the meaning set forth in the Registration
Rights Agreement.


 


“Exchange Securities” means the
Securities issued in the Exchange Offer pursuant to Section 2.06 hereof.


 


“fair market value” means, with
respect to any asset, the price which could be negotiated in an arm’s-length,
free market transaction, for cash, between a willing seller and a willing and
able buyer, neither of whom is under undue pressure or compulsion to complete
the transaction.  Fair market value
(other than of any asset with a public trading market) in excess of $10.0
million shall be determined by the Board of Directors of Parent acting
reasonably and in good faith and shall be evidenced by a Board Resolution of
the Board of Directors of Parent delivered to the Trustee.  For purposes of Section 4.11, fair market
value (other than of any asset with a public trading market) in excess of $25.0
million shall be determined by an Independent Financial Advisor.


 


“GAAP” means generally accepted
accounting principles in the Netherlands as consistently applied by Parent for
all applicable periods, which are in effect as of the Issue Date. At any time
after the Issue Date, the Parent, if required by applicable law to adopt
International Financial Reporting Standards (“IFRS”), may elect to apply
for all purposes of the Indenture IFRS, in lieu of GAAP, and, upon any such
election, references therein to GAAP shall be construed to mean IFRS, provided that (1) any such election
once made shall be irrevocable, (2) all financial statements and reports
required to be provided, after such election, pursuant to this Indenture shall
be prepared on the basis of IFRS and (3) from and after such election, all
ratios, computations and other determinations based on GAAP contained in this
Indenture shall be computed in conformity with IFRS.


 


“Global Security” shall mean one or
more Regulation S Global Securities and 144A Global Securities.


 


“Government Securities” means direct
obligations of, and obligations guaranteed by, the United States of America for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer’s option.


 


“Guarantee” means a guarantee, by a
Guarantor pursuant to the provisions of this Indenture of (x) the Company’s
obligations under this Indenture and the Securities and (y) each other
such guarantee.


 


“Guarantor Senior Debt” means, with
respect to any Guarantor:  the principal
of, premium, if any, and interest (including any interest accruing subsequent
to the filing of a petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an allowed
claim under applicable law) on any Indebtedness of a Guarantor, whether
outstanding on the Issue Date or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Guarantee of such Guarantor.  Without
limiting the generality of the foregoing, “Guarantor Senior Debt” shall also
include the principal of, premium, if any, interest (including any interest
accruing subsequent to the filing of a petition of bankruptcy


 


10





















 


at the rate provided for in the documentation
with respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of:


 


(x)                                   all
monetary obligations (including guarantees thereof) of every nature of such
Guarantor under, or with respect to, the Credit Agreement, including, without
limitation, obligations to pay principal and interest, reimbursement
obligations under letters of credit, fees, expenses and indemnities (and guarantees
thereof);


 


(y)                                 all
Interest Hedging Agreements (and guarantees thereof); and


 


(z)                                   all
obligations (and guarantees thereof) under Currency/Commodity Hedging Agreements;


 


in each case whether outstanding on the Issue
Date or thereafter incurred.


 


Notwithstanding
the foregoing, “Guarantor Senior Debt” shall not include:


 


(a)                                  any
Indebtedness of such Guarantor to Parent or any of its Subsidiaries;


 


(b)                                 Indebtedness
to, or guaranteed on behalf of, any director, officer or employee of such
Guarantor or any Subsidiary of such Guarantor (including, without limitation,
amounts owed for compensation);


 


(c)                                  obligations
to trade creditors and other amounts incurred (but not under the Credit
Agreement) in connection with obtaining goods, materials or services;


 


(d)                                 Indebtedness
represented by Disqualified Equity Interests;


 


(e)                                  any
liability for taxes owed or owing by such Guarantor;


 


(f)                                    that
portion of any Indebtedness incurred in violation of Section 4.10 (but, as to
any such obligation, no such violation shall be deemed to exist for purposes of
this clause (f) if the holder(s) of such obligation or their representative
shall have received an Officers’ Certificate of the Company to the effect that
the incurrence of such Indebtedness does not (or, in the case of revolving
credit indebtedness, that the incurrence of the entire committed amount thereof
at the date on which the initial borrowing thereunder is made would not)
violate such provisions of this Indenture);


 


(g)                                 Indebtedness
which, when incurred and without respect to any election under Section 1111(b)
of Title 11, United States Code, is without recourse to such Guarantor;
and


 


(h)                                 any
Indebtedness which is, by its express terms, subordinated in right of payment
to any other Indebtedness of such Guarantor (including, without limitation,
guarantees of the 2014 Notes).


 


“Guarantors” means: (1) Parent,
(2) ASAP Software Express, Inc., BTOP USA Corp., BTOPI Holding
(U.S.), Buhrmann Swaps, Inc., Corporate Express Document & Print
Management, Inc., Corporate Express Office Products, Inc., CE Philadelphia
Real Estate, Inc., Corporate Express Promotional Marketing, Inc.,
Corporate Express of Texas, Inc., Corporate Express, Inc., License
Technologies


 


11





















 


Group, Inc., Buhrmann Financieringen
B.V., Buhrmann Fined B.V., Buhrmann II B.V., Buhrmann International B.V.,
Buhrmann Nederland B.V., Buhrmann Nederland Holding B.V., Tetterode-Nederland
B.V., Veenman B.V. (formerly known as Corporate Express Document Automatisering
B.V.), Buhrmann Office Products Nederland B.V., Buhrmann Europcenter N.V.,
Buhrmann Luxembourg S.á.r.l. and (3) each Restricted Subsidiary of Parent
that, after the date of this Indenture, executes a supplemental indenture in
which such Restricted Subsidiary agrees to be bound by the terms of this
Indenture as a Guarantor; provided
that any Person constituting a Guarantor as described above shall cease to
constitute a Guarantor when its respective Guarantee is released in accordance
with the terms of the Indenture.


 


“Holder”
or “Securityholder” means the Person in
whose name a Security is registered on the Registrar’s books.


 


“Indebtedness” means with respect to
any Person, without duplication:


 


(a)                                  all
indebtedness of such Person for borrowed money;


 


(b)                                 all
indebtedness of such Person evidenced by bonds, debentures, notes or other
similar instruments;


 


(c)                                  all
Capitalized Lease Obligations of such Person;


 


(d)                                 all
obligations of such Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all obligations under any title
retention agreement (but excluding trade accounts payable and other accrued
liabilities arising in the ordinary course of business);


 


(e)                                  all
obligations for the reimbursement of any obligor on any letter of credit,
banker’s acceptance or similar credit transaction;


 


(f)                                    guarantees
and other contingent obligations in respect of Indebtedness referred to in
clauses (a) through (e) above and clause (h) below, other than Standard
Securitization Undertakings;


 


(g)                                 all
obligations of any other Person of the type referred to in clauses (a) through
(f) that are secured by any Lien on any asset of such Person, the amount of
such Obligation being deemed to be the lesser of the fair market value of such
asset or the amount of the Obligation so secured;


 


(h)                                 all
obligations under Currency/Commodity Hedging Agreements, Interest Hedging Agreements
and other hedging arrangements of such Person; and


 


(i)                                     all
Disqualified Equity Interests issued by such Person with the amount of
Indebtedness represented by such Disqualified Equity Interests being equal to
the greater of its voluntary or involuntary liquidation preference and its
maximum fixed repurchase price, but excluding accrued dividends, if any.


 


The amount of any Indebtedness outstanding as
of any date will be the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount, and the principal amount of
the Indebtedness, in the case of any other Indebtedness.  For purposes hereof, the “maximum fixed repurchase


 


12





















 


price” of any Disqualified Equity Interests
which does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Disqualified Equity Interests as if such Disqualified Equity
Interests were purchased on any date on which Indebtedness shall be required to
be determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Equity Interests, such
fair market value shall be determined reasonably and in good faith by the Board
of Directors of the issuer of such Disqualified Equity Interests.


 


“Indenture” means this Indenture, as
amended or supplemented from time to time in accordance with the terms hereof.


 


“Independent Financial Advisor” means
a firm:  (1) which does not, and whose
directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in Parent; and (2) which, in the judgment of the
Board of Directors of Parent, is otherwise independent and qualified to perform
the task for which it is to be engaged.


 


“Initial Purchasers” means Deutsche
Bank Securities Inc., BNP Paribas Securities Corp. and ING Bank N.V.


 


“Initial Securities” means the Company’s
7 7/8% Senior Subordinated Notes due 2015 issued on the Issue Date (and any
Securities issued in respect thereof pursuant to Section 2.07, 2.10, 2.15(d)
or 3.06).


 


“Institutional Accredited Investor” or
“IAI” means an institution that is an “accredited investor” as that term
is defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.


 


“interest” means, with respect to the
Securities, interest and any Additional Interest on the Securities.


 


“Interest Payment Date” means the
stated maturity of an installment of interest on the Securities.


 


“Interest Hedging Agreement” means any
agreement entered into between the Parent or a Restricted Subsidiary of the
Parent and a bank or financial institution in respect of any interest rate
swap, currency swap, foreign exchange contracts, cap, floor, collar or optional
transaction or any other treasury transaction or any combination of it or any
other transaction entered into in connection with protection against or benefit
from fluctuating in any rate or price.


 


“Investment” means, with respect to
any Person, any direct or indirect loan or other extension of credit
(including, without limitation, a guarantee) or capital contribution to (by
means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase or
acquisition by such Person of any Capital Stock, bonds, notes, debentures or
other securities or evidences of Indebtedness issued by, any Person.  “Investment” shall exclude extensions of
trade credit by Parent and its Restricted Subsidiaries on commercially
reasonable terms in accordance with normal trade practices of Parent or such
Restricted Subsidiary, as the case may be. 
If Parent or any Restricted Subsidiary of Parent sells or otherwise
disposes of any Common Stock of any direct or indirect Restricted Subsidiary of
Parent such that, after giving effect to any such sale or disposition, Parent
no longer owns, directly or indirectly, greater than 50% of the outstanding
Common Stock of such Restricted Subsidiary, Parent shall be deemed to have made
an Investment on the date of any such sale or disposition equal to the fair
market value of the Common Stock of such Restricted Subsidiary not sold or


 


13





















 


disposed of. 
Other than in the case of any designation of an Australian Subsidiary,
upon designation of any Subsidiary as an Unrestricted Subsidiary in accordance
with the definition thereof, Parent shall be deemed to have made an Investment
equal to the fair market value of such Subsidiary at that time.


 


“Issue Date” means March 2, 2005, the
date of original issuance and authentication of the Securities.


 


“Lien” means any lien, mortgage, deed
of trust, pledge, security interest, charge or encumbrance of any kind
(including any conditional sale or other title retention agreement, any lease
in the nature thereof and any agreement to give any security interest), but not
including any interests in accounts receivable and related assets conveyed by
Parent or any of its Subsidiaries in connection with a Qualified Receivables
Transaction.


 


“Maturity Date” means March 1,
2015.


 


“Net Cash Proceeds” means


 


(A)                              with
respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents
including payments in respect of deferred payment obligations when received in
the form of cash or Cash Equivalents (other than the portion of any such
deferred payment constituting interest) received by Parent or any of its
Restricted Subsidiaries from such Asset Sale, net of:


 


(i)                                     reasonable
out-of-pocket fees and expenses relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees and sales
commissions);


 


(ii)                                  taxes
paid or payable with respect to such Asset Sale after taking into account any
reduction in consolidated tax liability due to available tax credits or
deductions and any tax sharing arrangements;


 


(iii)                               repayment
of Indebtedness that is secured by the assets that are the subject of such
Asset Sale; and


 


(iv)                              appropriate
amounts to be provided by Parent or any Restricted Subsidiary, as the case may
be, as a reserve, in accordance with GAAP, against any liabilities associated
with such Asset Sale and retained by Parent or any Restricted Subsidiary, as
the case may be, after such Asset Sale, including, without limitation, pension
and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale; and


 


(B)                                with
respect to any issuance and sale of Equity Interests or any capital
contribution, the proceeds in the form of cash or Cash Equivalents received by
Parent therefrom, net of out-of-pocket fees and expenses, including
underwriting commissions and discounts and any other investment banking fees in
respect thereof.


 


“Non-Guarantor Restricted Subsidiary”
means any Restricted Subsidiary that is not a Guarantor at the time of
determination.


 


“Non-U.S. Person” has the meaning
assigned to such term in Regulation S.


 


14





















 


“Obligations” means all obligations
for principal, premium, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness, and all guarantees of any of the foregoing.


 


“Offering Memorandum” means the
offering memorandum of the Company and the Guarantors dated February 23, 2005 relating
to the Securities.


 


“Officer” means, with respect to any
Person, the Chairman of the Board, the Chief Executive Officer, the President,
any Vice President, the Chief Financial Officer, the Controller, or the Secretary
of such Person.


 


“Officers’ Certificate” means a
certificate signed by two Officers of the Company satisfying the requirements
of Section 13.05.


 


“144A Global Security” means a
permanent global security in registered form representing the aggregate
principal amount of Securities sold in reliance on Rule 144A under the Securities
Act.


 


“Opinion of Counsel” means a written
opinion from legal counsel satisfying the requirements of Section 13.05.


 


“Parent” means Buhrmann N.V., a Dutch
limited liability company, and its successors.


 


“Participating Member State” means each state so described in
any European Monetary Union legislation.


 


“Permitted Investments” means:


 


(a)                                  loans
made pursuant to Section 4.10(b)(vi) or (vii);


 


(b)                                 Investments
(other than loans) in the Company or any Guarantor or any Person that will
become immediately after such Investment the Company or a Guarantor or that
will merge or consolidate into the Company or a Guarantor;


 


(c)                                  Investments
by Parent or any Restricted Subsidiary in any Restricted Subsidiary;


 


(d)                                 investments
in cash and Cash Equivalents;


 


(e)                                  loans
and advances to employees and officers of Parent and its Restricted
Subsidiaries in the ordinary course of business for bona fide business purposes
not in excess of $10.0 million at any one time outstanding;


 


(f)                                    Interest
Hedging Agreements in compliance with Section 4.10(b)(iv) and Currency/Commodity
Hedging Agreements in compliance with Section 4.10(b)(v);


 


(g)                                 Investments
in securities of trade creditors or customers received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers;


 


(h)                                 Investments
made by Parent or any Restricted Subsidiary as a result of consideration
received in an Asset Sale made in compliance with Section 4.13;


 


15





















 


(i)                                     any
Investment by the Company or any Guarantor in a Receivables Subsidiary or any
Investment by a Receivables Subsidiary in any other Person, in each case in
connection with a Qualified Receivables Transaction; provided
that the foregoing Investment is in the form of a note that the Receivables
Subsidiary or other Person is required to repay as soon as practicable from
available cash collections less amounts required to be established as reserves
pursuant to contractual arrangements with entities that are not Affiliates
entered into as part of a Qualified Receivables Transaction;


 


(j)                                     accounts
receivable created or acquired in the ordinary course of business;


 


(k)                                  guarantees
permitted by Section 4.10(b)(xiv);


 


(l)                                     Investments,
payment for which consists exclusively of Qualified Equity Interests of Parent;


 


(m)                               Investments
in Unrestricted Subsidiaries made after the issue date of the 2014 Notes in an
aggregate amount not to exceed $25.0 million at any one time outstanding;


 


(n)                                 Investments
in Permitted Joint Ventures in an aggregate amount not to exceed $25.0 million
at any one time outstanding; and


 


(o)                                 additional
Investments not to exceed $75.0 million at any one time outstanding.


 


“Permitted Joint Venture” means an
entity characterized as a joint venture (however structured) engaged in a
business where Parent and its Subsidiaries are engaged on the date of this
Indenture and where Parent or a Restricted Subsidiary (a) owns at least 20% of
the ownership interest or (b) has the right to receive at least 20% of the
profits or distributions; provided that
such joint venture is not a Subsidiary.


 


“Permitted Liens” means the following
types of Liens:


 


(a)                                  Liens
for taxes, assessments or governmental charges or claims either (a) not
delinquent or (b) contested in good faith by appropriate proceedings and as to
which Parent or its Restricted Subsidiaries shall have set aside on its books
such reserves as may be required pursuant to GAAP;


 


(b)                                 statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen and other Liens imposed by law incurred in the ordinary
course of business for sums not yet delinquent or being contested in good
faith, if such reserve or other appropriate provision, if any, as shall be
required by GAAP shall have been made in respect thereof;


 


(c)                                  Liens
incurred or deposits made in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social
security, including any Lien securing letters of credit issued in the ordinary
course of business consistent with past practice in connection therewith, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the payment
of borrowed money);


 


16





















 


(d)                                 Liens
upon specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligations in respect of bankers’ acceptances issued or
created for the account of such Person to facilitate the purchase, shipment or
storage of such inventory or other goods;


 


(e)                                  Liens
securing reimbursement obligations with respect to commercial letters of credit
which encumber documents and other property relating to such letters of credit
and products and proceeds thereof;


 


(f)                                    Liens
encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual or warranty requirements of Parent or any of its
Restricted Subsidiaries, including rights of offset and set-off; and


 


(g)                                 bankers’
liens, rights of setoff and other similar liens existing solely with respect to
cash and Cash Equivalents on deposit in one or more of accounts maintained by
Parent or any of its Restricted Subsidiaries, in each case granted in the
ordinary course of business in favor of the bank or banks with which such
accounts are maintained, securing amounts owing to such bank with respect to
cash management and operating account arrangements, including those involving
pooled accounts and netting arrangements; provided that
in no case shall any such Liens secure (either directly or indirectly) the
repayment of any Indebtedness.


 


“Person” means an individual,
partnership, corporation, unincorporated organization, trust or joint venture,
or a governmental agency or political subdivision thereof.


 


“Preferred Stock” of any Person means
any Capital Stock of such Person that has preferential rights to any other
Capital Stock of such Person with respect to dividends or redemptions or upon
liquidation.


 


“Private Placement Legend” means the
legends initially set forth on the Securities in the form set forth in Exhibit B.


 


“Pro Forma Cost Savings” means, with
respect to any period, the reduction in costs that occurred during the Four
Quarter Period that were (1) directly attributable to an Asset Acquisition and
calculated on a basis that is consistent with Article 11 of Regulation S-X
under the Securities Act as in effect on the date of this Indenture or (2)
implemented by the business that was the subject of any such Asset Acquisition
within one year of the date of the Asset Acquisition and that are supportable
and quantifiable by the underlying accounting records of such business, as if,
in the case of each of clauses (1) and (2), all such reductions in costs had
been effected as of the beginning of such period, decreased by any incremental
expenses (except to the extent capitalized on Parent’s consolidated balance
sheet) incurred or to be incurred during the Four Quarter Period in order to
achieve such reduction in costs.


 


“Purchase Money Indebtedness” means
Indebtedness of Parent and its Restricted Subsidiaries incurred in the normal
course of business for the purpose of financing all or any part of the purchase
price, or the cost of installation, construction or improvement, of property or
equipment (whether through the direct purchase of assets or the Capital Stock
of any Person owning such assets).


 


“Qualified Equity Interests” means any
Equity Interests other than (1) any Disqualified Equity Interests and
(2) any debt securities convertible into or exchangeable for Capital
Stock.


 


17





















 


“Qualified Institutional Buyer” or “QIB”
shall have the meaning specified in Rule 144A under the Securities Act.


 


“Qualified Receivables Transaction”
means any transaction or series of transactions that may be entered into by the
Company, any Guarantor or any Receivables Subsidiary pursuant to which the
Company, any Guarantor or any Receivables Subsidiary may sell, convey or
otherwise transfer to, or grant a security interest in for the benefit of,
(a) a Receivables Subsidiary (in the case of a transfer or encumbrancing
by the Company or any Guarantor) and (b) any other Person (solely in the
case of a transfer or encumbrancing by a Receivables Subsidiary), solely
accounts receivable (whether now existing or arising in the future) of the
Company or any Guarantor which arose in the ordinary course of business of the
Company or any Guarantor, and any assets related thereto, including, without
limitation, all collateral securing such accounts receivable, all contracts and
all guarantees or other obligations in respect of such accounts receivable,
proceeds of such accounts receivable and other assets which are customarily
transferred or in respect of which security interests are customarily granted
in connection with asset securitization transactions involving accounts
receivable.


 


“Receivables Subsidiary” means a
Wholly Owned Restricted Subsidiary of Parent which engages in no activities
other than in connection with the financing of accounts receivable and which is
designated by the Board of Directors of Parent (as provided below) as a
Receivables Subsidiary (a) no portion of any Indebtedness or any other
obligations (contingent or otherwise) of which, directly or indirectly,
contingently or otherwise, (1) is guaranteed by Parent or any other
Subsidiary of Parent (excluding Standard Securitization Undertakings),
(2) is recourse to or obligates Parent or any other Subsidiary of Parent
in any way other than pursuant to Standard Securitization Undertakings, or
(3) subjects any asset of Parent or any other Subsidiary of Parent to the
satisfaction thereof, other than Standard Securitization Undertakings,
(b) with which neither Parent nor any other Subsidiary of Parent has any
material contract, agreement, arrangement or understanding other than those
customarily entered into in connection with Qualified Receivables Transactions
or those related to the remitting of the proceeds received from a Qualified
Receivables Transaction by such Wholly Owned Restricted Subsidiary to the
Parent or one or more Guarantors in the form of payments by such Wholly Owned
Restricted Subsidiary of the purchase price of accounts receivables acquired
from the Parent or any Guarantor, and (c) with which neither Parent nor
any other Subsidiary of Parent has any obligation, directly or indirectly,
contingently or otherwise, to maintain or preserve such Subsidiary’s financial
condition or cause such Subsidiary to achieve certain levels of operating
results.  Any such designation by the
Board of Directors of Parent shall be evidenced to the Trustee by the filing
with the Trustee a Board Resolution of the Board of Directors of Parent giving
effect to such designation and an Officers’ Certificate certifying that such
designation complied with the foregoing conditions.


 


“Record Date” means the applicable
Record Date specified in the Securities; provided that
if any such date is not a Business Day, the Record Date shall be the first day
immediately preceding such specified day that is a Business Day.


 


“Redemption Date,” when used with
respect to any Security to be redeemed, means the date fixed for such
redemption pursuant to this Indenture and the Securities.


 


“Redemption Price,” when used with
respect to any Security to be redeemed, means the price fixed for such
redemption, payable in immediately available funds, pursuant to this Indenture
and the Securities.


 


18





















 


“Refinance” means, in respect of any
security or Indebtedness, to refinance, extend, renew, refund, repay, prepay,
redeem, defease or retire, or to issue a security or Indebtedness in exchange
or replacement for, such security or Indebtedness in whole or in part.  “Refinanced” and “Refinancing”
shall have correlative meanings.


 


“Refinancing Indebtedness” means any
Refinancing by Parent or any Restricted Subsidiary of Parent of Indebtedness
incurred in accordance with Section 4.10(b)(i) or (iii) or pursuant to the
Coverage Ratio Exception, in each case that does not:


 


(a)                                  result
in an increase in the aggregate principal amount of Indebtedness of such Person
as of the date of such proposed Refinancing (plus the amount of any premium required
to be paid under the terms of the instrument governing such Indebtedness and
plus the amount of reasonable expenses incurred by Parent in connection with
such Refinancing); or


 


(b)                                 create
Indebtedness with:  (a) a Weighted
Average Life to Maturity that is less than the Weighted Average Life to
Maturity of the Indebtedness being Refinanced; or (b) a final maturity
earlier than the final maturity of the Indebtedness being Refinanced; provided that (x) no Subsidiary of the Company that is
not an obligor with respect to such Indebtedness being Refinanced shall be an
obligor with respect to such Refinancing Indebtedness and (y) if such
Indebtedness being Refinanced is subordinate or junior to the Securities or the
Guarantees, then such Refinancing Indebtedness shall be subordinate to the
Securities or the Guarantees, as the case may be, at least to the same extent
and in the same manner as the Indebtedness being Refinanced.


 


“Registration Rights Agreement” means
the Registration Rights Agreement dated as of the Issue Date among the Company,
the Guarantors and the Initial Purchasers.


 


“Regulation S” means
Regulation S under the Securities Act.


 


“Regulation S Global Security” means a
permanent global security in registered form representing the aggregate
principal amount of Securities sold in reliance on Regulation S under the Securities
Act.


 


“Representative” means the indenture
trustee or other trustee, agent or representative in respect of any Designated
Senior Debt; provided that if, and for so long
as, any Designated Senior Debt lacks such a representative, then the
Representative for such Designated Senior Debt shall at all times constitute
the holders of a majority in outstanding principal amount of such Designated
Senior Debt in respect of any Designated Senior Debt.


 


“Responsible Officer” means, when used
with respect to the Trustee, any officer in the Corporate Trust Office of the
Trustee including any vice president, assistant vice president, treasurer,
assistant treasurer, or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such officer’s knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.


 


“Restricted Security” means a Security
that constitutes a “Restricted Security” within the meaning of Rule 144(a)(3)
under the Securities Act; provided, however, that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Security
constitutes a Restricted Security.


 


19





















 


“Restricted Subsidiary” of any Person
means any Subsidiary of such Person which at the time of determination is not
an Unrestricted Subsidiary.  Unless
otherwise indicated, references to Restricted Subsidiaries shall be to
Restricted Subsidiaries of Parent, including the Company.


 


“Rights Issue” means the issuance of
rights to purchase common shares of Buhrmann N.V.


 


“Rule 144A” means Rule 144A under
the Securities Act.


 


“Sale and Leaseback Transaction” means
any direct or indirect arrangement with any Person or to which any such Person
is a party, providing for the leasing to Parent or a Restricted Subsidiary of
any assets, whether owned by Parent or any Restricted Subsidiary at the Issue
Date or later acquired, which has been or is to be sold or transferred by Parent
or such Restricted Subsidiary to such Person or to any other Person from whom
funds have been or are to be advanced by such Person on the security of such assets.


 


“Securities” means the Initial
Securities and any Additional Securities (and any Securities issued pursuant to
Section 2.07, 2.10, 2.15(d) or 3.06).


 


“Securities Act” means the Securities
Act of 1933, as amended, or any successor statute or statutes thereto.


 


“Securityholder” or “Holder”
means the Person in whose name a Security is registered on the Registrar’s
books.


 


“Senior Debt” means the principal of,
premium, if any, and interest (including any interest accruing subsequent to
the filing of a petition of bankruptcy at the rate provided
for in the documentation with respect thereto, whether or not such interest is
an allowed claim under applicable law) on any Indebtedness of the Company,
whether outstanding on the Issue Date or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Securities.  Without
limiting the generality of the foregoing, “Senior Debt” shall also include the
principal of, premium, if any, interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law) on, and
all other amounts owing in respect of:


 


(a)                                  all
monetary obligations of every nature of the Company under, or with respect to,
the Credit Agreement, including, without limitation, obligations to pay
principal and interest, reimbursement obligations under letters of credit,
fees, expenses and indemnities (and guarantees thereof);


 


(b)                                 all
Interest Hedging Agreements (and guarantees thereof); and


 


(c)                                  all
obligations (and guarantees thereof) under Currency/Commodity Hedging Agreements;


 


in each case whether outstanding on the Issue
Date or thereafter incurred.


 


20





















 


Notwithstanding
the foregoing, “Senior Debt” shall not include:


 


(a)                                  any
Indebtedness of the Company to Parent or any of its Subsidiaries;


 


(b)                                 Indebtedness
to, or guaranteed on behalf of, any director, officer or employee of Parent or
any of its Subsidiaries (including, without limitation, amounts owed for
compensation);


 


(c)                                  obligations
to trade creditors and other amounts incurred (but not under the Credit
Agreement) in connection with obtaining goods, materials or services;


 


(d)                                 Indebtedness
represented by Disqualified Equity Interests;


 


(e)                                  any
liability for taxes owed or owing by the Company;


 


(f)                                    that
portion of any Indebtedness incurred in violation of Section 4.10 (but, as to
any such obligation, no such violation shall be deemed to exist for purposes of
this clause (f) if the holder(s) of such obligation or their representative
shall have received an Officers’ Certificate of the Company to the effect that
the incurrence of such Indebtedness does not (or, in the case of revolving
credit indebtedness, that the incurrence of the entire committed amount thereof
at the date on which the initial borrowing thereunder is made would not)
violate such provisions of this Indenture);


 


(g)                                 Indebtedness
which, when incurred and without respect to any election under
Section 1111(b) of Title 11, United States Code, is without recourse
to the Company; and


 


(h)                                 any
Indebtedness which is, by its express terms, subordinated in right of payment
to any other Indebtedness of the Company (including, without limitation, the
2014 Notes).


 


“Significant Subsidiary”, means
(a) any Restricted Subsidiary of Parent that satisfies the criteria for a “significant
subsidiary” set forth in Rule 1.02(w) of Regulation S-X under the Exchange Act
or (b) any one or more Restricted Subsidiaries of Parent that (1) are not
otherwise Significant Subsidiaries, (2) as to which any event described in
Section 6.01 (e), (f) or (g) has occurred and is continuing and (3) would
together constitute a Significant Subsidiary under clause (a) of this
definition.


 


“Standard Securitization Undertakings”
means representations, warranties, covenants and indemnities entered into by
the Company or any Guarantor which are reasonably customary in an accounts
receivable securitization transaction.


 


“Stichting A” means Stichting
Administratiekantoor Preferente Aandelen Buhrmann N.V. and its successors.


 


“Stichting A Continuing Director”
means a member of the executive committee of Stichting A on the Issue Date or
who became a member of such executive committee subsequent to the Issue Date
and who was appointed by a majority of the Stichting A Continuing Directors
then on the executive committee of Stichting A.


 


“Stichting B” means Stichting
Preferente Aandelen Buhrmann N.V. and its successors.


 


21





















 


“Stichting B Continuing Director”
means a member of the executive committee of Stichting B on the Issue Date or
who became a member of such executive committee subsequent to the Issue Date
and who was appointed by a majority of the Stichting B Continuing Directors
then on the executive committee of Stichting B.


 


“Subsidiary”, with respect to any
Person, means:


 


(a)                                  any
corporation of which the outstanding Capital Stock having at least a majority
of the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such
Person; or


 


(b)                                 any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.


 


“Subsidiary Guarantor” means any
Guarantor other than any direct or indirect parent company of the Company.


 


“Tax” means any tax, duty, levy,
impost, assessment or other governmental charge (including penalties, interest
and any other liabilities related thereto).


 


“Taxing Authority” means any
government or political subdivision or territory or possession of any
government or any authority or agency therein or thereof having power to tax.


 


“TIA” means the Trust Indenture Act of
1939 (15 U.S.C. §§ 77aaa-77bbbb), as amended, as in effect on the date of the
execution of this Indenture until such time as this Indenture is qualified
under the TIA, and thereafter as in effect on the date on which this Indenture
is qualified under the TIA, except as otherwise provided in Section 9.04.


 


“Total Assets” means the total assets
of Parent and its Restricted Subsidiaries on a consolidated basis determined in
accordance with GAAP, as shown on the most recently available consolidated
balance sheet of Parent.


 


“Transfer” means to sell, assign,
transfer, lease (other than pursuant to an operating lease entered into in the
ordinary course of business), convey or otherwise dispose of, including by Sale
and Leaseback Transaction, consolidation, merger or otherwise.


 


“Treasury Rate” means, as of any
redemption date, the yield to maturity as of such redemption date of United
States Treasury securities with a constant maturity (as compiled and published
in the most recent Federal Reserve Statistical Release H.15 (519) that has
become publicly available at least two business days prior to the redemption
date (or, if such Statistical Release is no longer published, any publicly
available source of similar market data)) most nearly equal to the period from
the redemption date to March 1, 2010; provided, however,
that if the period from the redemption date to March 1, 2010 is less than one
year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year will be used.


 


“Trustee” means the party named as
such in this Indenture until a successor replaces it in accordance with the
provisions of this Indenture and thereafter means such successor.


 


22





















 


“Unrestricted Global Securities” means
a Global Security that does not and is not required to bear the Private
Placement Legend in the form set forth in Exhibit B, including.


 


“Unrestricted Securities” means one or
more Securities that do not and are not required to bear the Private Placement
Legend in the form set forth in Exhibit B, including, without
limitation, the Exchange Securities.


 


“Unrestricted Subsidiary” of any
Person means:


 


(a)                                  any
Subsidiary of such Person that at the time of determination shall be or
continue to be designated an Unrestricted Subsidiary by the Board of Directors
of such Person in the manner provided below; and


 


(b)                                 any
Subsidiary of an Unrestricted Subsidiary.


 


The Board of Directors may designate any
Subsidiary of Parent (including any newly acquired or newly formed Subsidiary
but excluding the Company) to be an Unrestricted Subsidiary unless such
Subsidiary owns any Capital Stock of, or owns or holds any Lien on any assets
of, Parent or any other Subsidiary of Parent that is not a Subsidiary of the
Subsidiary to be so designated; provided that:


 


(a)                                  Parent
certifies to the Trustee that such designation complies with Section 4.11; provided, however, that
the Australian Subsidiaries may be designated as Unrestricted Subsidiaries
without complying with such covenant if, after giving pro forma effect to such designation, the
Parent is able to incur $1.00 of additional Indebtedness pursuant to the
Coverage Ratio Exception; and


 


(b)                                 each
Subsidiary to be so designated and each of its Subsidiaries has not at the time
of designation, and does not thereafter, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the assets of
Parent or any of its Restricted Subsidiaries; provided,
however, that Parent and its
Restricted Subsidiaries may guarantee Indebtedness incurred by Unrestricted
Subsidiaries to the extent permitted by Section 4.11.


 


The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary only if:


 


(a)                                  immediately
after giving effect to such designation, Parent is able to incur at least $1.00
of additional Indebtedness pursuant to the Coverage Ratio Exception; and


 


(b)                                 immediately
before and immediately after giving effect to such designation, no Default
shall have occurred and be continuing. 
Any such designation by the Board of Directors shall be evidenced to the
Trustee by promptly filing with the Trustee a copy of the Board Resolution
giving effect to such designation and an Officers’ Certificate certifying that
such designation complied with the foregoing provisions.


 


As of the Issue Date, none of the Parent’s Subsidiaries are designated
as Unrestricted Subsidiaries.


 


23





















 


“U.S. Legal Tender” means such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts.


 


“Weighted Average Life to Maturity”
means, when applied to any Indebtedness at any date, the number of years
obtained by dividing (a) the then outstanding aggregate principal amount of
such Indebtedness into (b) the sum of the total of the products obtained by
multiplying (i) the amount of each then remaining installment, sinking fund,
serial maturity or other required payment of principal, including payment at
final maturity, in respect thereof, by (ii) the number of years (calculated to
the nearest one-twelfth) which will elapse between such date and the making of
such payment.


 


“Wholly Owned Guarantor” means any
Guarantor that is a Wholly Owned Restricted Subsidiary of Parent.


 


“Wholly Owned Restricted Subsidiary”
of any Person means any Wholly Owned Subsidiary of such Person which at the
time of determination is a Restricted Subsidiary of such Person.


 


“Wholly Owned Subsidiary” of any
Person means any Subsidiary of such Person of which all the outstanding voting
securities (other than in the case of a foreign Subsidiary, directors’
qualifying shares or an immaterial amount of shares required to be owned by
other Persons pursuant to applicable law) are owned by such Person or any
Wholly Owned Subsidiary of such Person.


 


SECTION 1.02.                                         Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in Section

  
	
   

  	
   

  	
   

  
	
  “Acceleration
  Notice”

  	
   

  	
  6.02

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Additional
  Amounts”

  	
   

  	
  11.03

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.14

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Change of
  Control Date”

  	
   

  	
  4.09

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Change of
  Control Offer”

  	
   

  	
  4.09

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Change of
  Control Payment Date”

  	
   

  	
  4.09

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Company
  Surviving Entity”

  	
   

  	
  5.01

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.02

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Coverage
  Ratio Exception”

  	
   

  	
  4.10

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Event of
  Default”

  	
   

  	
  6.01

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Four
  Quarter Period”

  	
   

  	
  1.01

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Guarantee Obligations”

  	
   

  	
  11.01

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “incur”

  	
   

  	
  4.10

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Judgment
  Currency”

  	
   

  	
  13.08

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Net
  Proceeds Offer”

  	
   

  	
  4.13

  	
   

  



 


24





















 


	
  “Net
  Proceeds Offer Payment Date”

  	
   

  	
  4.13

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Net
  Proceeds Offer Trigger Date”

  	
   

  	
  4.13

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Non-Payment
  Default”

  	
   

  	
  10.02

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Non-US
  Guarantor”

  	
   

  	
  11.03

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Other Debt”

  	
   

  	
  4.13

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Parent
  Surviving Entity”

  	
   

  	
  5.01

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Participants”

  	
   

  	
  2.15

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Paying
  Agent”

  	
   

  	
  2.03

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Payment
  Blockage Notice”

  	
   

  	
  10.02

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Payment
  Blockage Period”

  	
   

  	
  10.02

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Payment
  Default”

  	
   

  	
  10.02

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Physical
  Securities”

  	
   

  	
  2.01

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Reference
  Date”

  	
   

  	
  4.11

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Registrar”

  	
   

  	
  2.03

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Relevant
  Party”

  	
   

  	
  4.14

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Replacement
  Assets”

  	
   

  	
  4.13

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Restricted
  Payment”

  	
   

  	
  4.11

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Security
  Amount”

  	
   

  	
  4.13

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Security
  Portion of Unutilized Net Cash Proceeds”

  	
   

  	
  4.13

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “spot rate
  of exchange”

  	
   

  	
  13.08

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Surviving
  Entity”

  	
   

  	
  5.01

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Taxing
  Jurisdiction”

  	
   

  	
  11.03

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Transaction
  Date”

  	
   

  	
  1.01

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Unutilized
  Net Cash Proceeds”

  	
   

  	
  4.13

  	
   

  



 


SECTION 1.03.                                         Incorporation
by Reference of TIA.


 


Whenever this Indenture refers to a provision
of the TIA, such provision is incorporated by reference in, and made a part of,
this Indenture.  The following TIA terms
used in this Indenture have the following meanings:


 


“indenture securities” means the
Securities.


 


“indenture security holder” means a
Holder or a Securityholder.


 


“indenture to be qualified” means this
Indenture.


 


“indenture trustee” or “institutional
trustee” means the Trustee.


 


25





















 


“obligor” on the indenture securities
means the Company, any Guarantor or any other obligor on the Securities.


 


All other TIA terms used in this Indenture
that are defined by the TIA, defined by TIA reference to another statute or
defined by Commission rule and not otherwise defined herein have the meanings
assigned to them therein.


 


SECTION 1.04.                                         Rules
of Construction.


 


Unless the context otherwise requires:


 


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


 


(2)                                  an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;


 


(3)                                  “or”
is not exclusive;


 


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


 


(5)                                  provisions
apply to successive events and transactions;


 


(6)                                  “herein,”
“hereof” and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision; and


 


(7)                                  the
words “including,” “includes” and similar words shall be deemed to be followed
by “without limitation.”


 


ARTICLE TWO


 


THE SECURITIES


 


SECTION 2.01.                                         Form
and Dating.


 


The Securities and the Trustee’s certificate
of authentication shall be substantially in the form of Exhibit A hereto.  The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage.  The Company shall approve the form of the
Securities and any notation, legend or endorsement on them.  Each Security shall be dated the date of its
authentication.  Each Security shall have
an executed Guarantee from each of the Guarantors endorsed thereon
substantially in the form of Exhibit E.


 


The terms and provisions contained in the
Securities and the Guarantees shall constitute, and are hereby expressly made, a
part of this Indenture and, to the extent applicable, the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.


 


26


















 


Securities offered and sold in reliance on Rule 144
and Securities offered and sold in reliance on Regulation S shall be
issued initially in the form of one or more Global Securities, substantially in
the form set forth in Exhibit A, deposited with the Trustee, as
custodian for the Depository, duly executed by the Company (and having an
executed Guarantee from each of the Guarantors endorsed thereon) and
authenticated by the Trustee as hereinafter provided and shall bear the legends
set forth in Exhibit B.  The
aggregate principal amount of the Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depository, as hereinafter provided.


 


Securities issued in exchange for interests
in a Global Security pursuant to Section 2.16 may be issued in the form of
permanent certificated Securities in registered form in substantially the form
set forth in Exhibit A (the “Physical Securities”).


 


SECTION 2.02.              Execution
and Authentication.


 


Two Officers, or an Officer and an Assistant
Secretary, shall sign, or one Officer shall sign and one Officer or an
Assistant Secretary (each of whom shall, in each case, have been duly authorized
by all requisite corporate actions) shall attest to, the Securities for the
Company by manual or facsimile signature.


 


If an Officer
whose signature is on a Security or Guarantee, as the case may be, was an
Officer at the time of such execution but no longer holds that office at the
time the Trustee authenticates the Security, the Security shall nevertheless be
valid.


 


A Security shall not be valid until an
authorized signatory of the Trustee manually signs the certificate of
authentication on the Security.  The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.


 


The Trustee shall authenticate Securities for
original issue on the Issue Date in the aggregate principal amount of $150,000,000
upon a written order of the Company in the form of an Officers’ Certificate.  In addition, the Trustee shall authenticate Additional
Securities from time to time after the Issue Date to the extent otherwise
permitted (including, without limitation, under Section 4.10 hereof), in
each case upon receipt of a written order of the Company in the form of an
Officers’ Certificate.  Additional
Securities will be treated as the same series of Securities as the Initial
Securities, for all purposes under this Indenture, including, without
limitation, for purposes of waivers, amendments, redemption and offers to
purchase.  Each such Officers’
Certificate shall specify the amount of Securities to be authenticated and the
date on which the Securities are to be authenticated.


 


The Trustee may appoint an authenticating
agent reasonably acceptable to the Company to authenticate Securities.  Unless otherwise provided in the appointment,
an authenticating agent may authenticate Securities whenever the Trustee may do
so.  Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.  An authenticating agent has the same rights
as an Agent to deal with the Company and Affiliates of the Company.


 


The Securities shall be issuable only in
registered form without coupons in denominations of $1,000 and integral multiples
thereof.


 


27





















 


SECTION 2.03.              Registrar
and Paying Agent.


 


The Company shall maintain an office or
agency in the Borough of Manhattan, The City of New York, where (a) Securities
may be presented or surrendered for registration of transfer or for exchange (“Registrar”),
(b) Securities may be presented or surrendered for payment (“Paying
Agent”) and (c) notices and demands to or upon the Company in respect
of the Securities and this Indenture may be served.  The Company may also from time to time
designate one or more other offices or agencies where the Securities may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York, for such
purposes.  The Company may act as its own
Registrar or Paying Agent except that for the purposes of Articles Three and
Eight and Sections 4.09 and 4.13, neither the Company nor any Affiliate of the
Company shall act as Paying Agent.  The
Registrar shall keep a register of the Securities and of their transfer and exchange.  The Company, upon notice to the Trustee, may
have one or more co-Registrars and one or more additional paying agents
reasonably acceptable to the Trustee. 
The term “Paying Agent” includes any additional paying agent.  The Company initially appoints the Trustee as
Registrar and Paying Agent until such time as the Trustee has resigned or a
successor has been appointed.


 


The Company shall enter into an appropriate
agency agreement with any Agent not a party to this Indenture, which agreement
shall implement the provisions of this Indenture that relate to such
Agent.  The Company shall notify the
Trustee, in advance, of the name and address of any such Agent.  If the Company fails to maintain a Registrar
or Paying Agent, the Trustee shall act as such.


 


SECTION 2.04.              Paying
Agent To Hold Assets in Trust.


 


The Company shall require each Paying Agent
other than the Trustee to agree in writing that, subject to Article Ten
and Article Twelve, each Paying Agent shall hold in trust for the benefit
of Holders or the Trustee all assets held by the Paying Agent for the payment
of principal of, or interest on, the Securities (whether such assets have been
distributed to it by the Company or any other obligor on the Securities), and
shall notify the Trustee of any Default by the Company (or any other obligor on
the Securities) in making any such payment. 
The Company at any time may require a Paying Agent to distribute all
assets held by it to the Trustee and account for any assets disbursed and the
Trustee may at any time during the continuance of any payment Default, upon
written request to a Paying Agent, require such Paying Agent to distribute all
assets held by it to the Trustee and to account for any assets
distributed.  Upon distribution to the
Trustee of all assets that shall have been delivered by the Company to the
Paying Agent, the Paying Agent shall have no further liability for such assets.


 


SECTION 2.05.              Holder
Lists.


 


The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders.  If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least two (2) Business
Days prior to each Interest Payment Date and at such other times as the Trustee
may request in writing a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Holders, which list may be
conclusively relied upon by the Trustee.


 


28





















 


SECTION 2.06.              Transfer
and Exchange.


 


Subject to Sections 2.15 and 2.16, when Securities are presented to the
Registrar or a co-Registrar with a request to register the transfer of such
Securities or to exchange such Securities for an equal principal amount of
Securities of other authorized denominations, the Registrar or co-Registrar
shall register the transfer or make the exchange as requested if its
requirements for such transaction are met; provided, however, that the Securities surrendered for transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar or co-Registrar,
duly executed by the Holder thereof or his attorney duly authorized in writing
including the signature of a participant in a Signature Guarantee Medallion
Program.  To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar’s or co-Registrar’s request.  No service charge shall be made for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith.


 


The Registrar or co-Registrar shall not be required to register the
transfer of or exchange of any Security (i) during a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of
Securities and ending at the close of business on the day of such mailing, (ii) selected
for redemption in whole or in part pursuant to Article Three, except the
unredeemed portion of any Security being redeemed in part, and (iii) during
a Change of Control Offer or an Net Proceeds Offer if such Security is tendered
pursuant to such Change of Control Offer or Net Proceeds Offer and not withdrawn.


 


Any Holder of a beneficial interest in a Global Security shall, by
acceptance of such beneficial interest, agree that transfers of beneficial
interests in such Global Securities may be effected only through a book-entry
system maintained by the Holder of such Global Security (or its agent), and
that ownership of a beneficial interest in the Security shall be required to be
reflected in a book-entry system.


 


Upon the occurrence of the Exchange Offer in accordance with the Registration
Rights Agreement, the Company will issue and, upon receipt of an authentication
order in accordance with Section 2.02 hereof, the Trustee will
authenticate (a) one or more Unrestricted Global Securities in an aggregate
principal amount equal to the principal amount of the beneficial interests in
the restricted Global Securities accepted for exchange in the Exchange Offer
and (b) unrestricted Securities in an aggregate principal amount equal to
the principal amount of the Restricted Securities accepted for exchange in the
Exchange Offer. Concurrently with the issuance of such Securities, the Trustee
will cause the aggregate principal amount of the applicable restricted Global
Security to be reduced accordingly, and the Company will execute and the Trustee
will authenticate and deliver to the persons designated by the Holders of Securities
so accepted Unrestricted Securities in the appropriate principal amount.


 


SECTION 2.07.              Replacement
Securities.


 


If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security if the Trustee’s requirements are met. 
Such Holder must provide an indemnity bond or other indemnity,
sufficient in the judgment of both the Company and the Trustee, to protect the
Company, the Trustee or any Agent from any loss which any of them may suffer if
a Security is replaced.  The Company may
charge such Holder for its reasonable out-of-pocket expenses in


 


29





















 


replacing a Security pursuant to this Section 2.07, including
reasonable fees and expenses of counsel and of the Trustee.


 


Every replacement Security is an additional obligation of the Company
and every replacement Guarantee shall constitute an additional obligation of
the Guarantor thereof.


 


SECTION 2.08.              Outstanding
Securities.


 


Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee except those cancelled by it, those delivered
to it for cancellation and those described in this Section as not outstanding.  A Security does not cease to be outstanding
because the Company, the Guarantors or any of their respective Affiliates holds
the Security (subject to the provisions of Section 2.09).


 


If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless a Responsible Officer of the Trustee receives proof satisfactory to it
that the replaced Security is held by a protected purchaser.  A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section 2.07.  If the principal amount of any Security is
considered paid under Section 4.01, it ceases to be outstanding and
interest ceases to accrue.


 


If on a Redemption Date or the Maturity Date
the Trustee or Paying Agent (other than Parent or a Subsidiary thereof) holds
U.S. Legal Tender or Government Securities sufficient to pay all of the
principal and interest due on the Securities payable on that date, then on and
after that date such Securities cease to be outstanding and interest on them
ceases to accrue.


 


SECTION 2.09.              Treasury
Securities.


 


In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by Parent, any of its Subsidiaries or any of their respective Affiliates shall
be disregarded, except that, for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Securities that a Responsible Officer of the Trustee actually knows are so
owned shall be disregarded.


 


SECTION 2.10.              Temporary
Securities.


 


Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities.  Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. 
Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Securities in exchange for temporary
Securities.  Until such exchange,
temporary Securities shall be entitled to the same rights, benefits and
privileges as definitive Securities.  Notwithstanding
the foregoing, so long as the Securities are represented by a Global Security,
such Global Security may be in typewritten form.


 


SECTION 2.11.              Cancellation.


 


The Company at any time may deliver Securities to the Trustee for
cancellation.  The Registrar and the
Paying Agent shall forward to the Trustee any Securities surrendered to them
for transfer, exchange or payment.  The
Trustee, or at the direction of the Trustee, the Registrar or the Paying


 


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Agent (other than the Company or a
Subsidiary), and no one else, shall cancel and, at the written direction of the
Company, shall dispose of all Securities surrendered for transfer, exchange,
payment or cancellation in accordance with its customary procedures.  Subject to Section 2.07, the Company may
not issue new Securities to replace Securities that it has paid or delivered to
the Trustee for cancellation.  If the
Company or any Guarantor shall acquire any of the Securities, such acquisition
shall not operate as a redemption or satisfaction of the Indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation pursuant to this Section 2.11.


 


SECTION 2.12.              Defaulted
Interest.


 


If the Company defaults in a payment of interest on the Securities, it
shall, unless the Trustee fixes another record date pursuant to Section 6.10,
pay the defaulted interest, plus (to the extent lawful) any interest payable on
the defaulted interest, in any lawful manner. 
The Company may pay the defaulted interest to the persons who are
Holders on a subsequent special record date, which date shall be the fifteenth
day next preceding the date fixed by the Company for the payment of defaulted
interest or the next succeeding Business Day if such date is not a Business
Day.  At least 15 days before any such
subsequent special record date, the Company shall mail to each Holder, with a copy
to the Trustee, a notice that states the subsequent special record date, the
payment date and the amount of defaulted interest, and interest payable on such
defaulted interest, if any, to be paid.


 


SECTION 2.13.              CUSIP
Number.


 


The Company in issuing the Securities may use a “CUSIP” number, and if
so, the Trustee shall use the CUSIP number in notices of redemption or exchange
as a convenience to Holders; provided, however, that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities, and that reliance may be placed
only on the other identification numbers printed on the Securities.  The Company will promptly notify the Trustee
of any change in the CUSIP numbers.


 


SECTION 2.14.              Deposit
of Moneys.


 


Prior to 10:00 a.m. New York City time on each Interest Payment
Date, Maturity Date, Redemption Date, Change of Control Payment Date and Net
Proceeds Offer Payment Date, the Company shall have deposited with the Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such Interest Payment Date, Maturity Date, Redemption Date, Change
of Control Payment Date and Net Proceeds Offer Payment Date, as the case may
be, in a timely manner which permits the Paying Agent to remit payment to the
Holders on such Interest Payment Date, Maturity Date, Redemption Date, Change
of Control Payment Date and Net Proceeds Offer Payment Date, as the case may
be.


 


SECTION 2.15.              Book-Entry
Provisions for Global Securities.


 


(a)           The
Global Securities initially shall (i) be registered in the name of the
Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set
forth in Exhibit B.


 


Members of, or participants in, the
Depository (“Participants”) shall have no rights under this Indenture
with respect to any Global Security held on their behalf by the Depository, or
the Trustee as its custodian, or under the Global Security, and the Depository
may be treated by the Company, the Trustee


 


31





















 


and any agent of the Company or the Trustee
as the absolute owner of the Global Security for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and Participants, the operation of customary practices governing the exercise
of the rights of a Holder of any Security.


 


(b)           Transfers
of Global Securities shall be limited to transfers in whole, but not in part,
to the Depository, its successors or their respective nominees.  Interests of beneficial owners in the Global
Securities may be transferred or exchanged for Physical Securities in
accordance with the rules and procedures of the Depository and the
provisions of Section 2.16.  In
addition, Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in Global Securities if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for any Global Security and a successor Depository is not appointed
by the Company, with a copy to the Trustee, within 90 days of such notice or (ii) an
Event of Default has occurred and is continuing and the Registrar has received
a written request from the Depository to issue Physical Securities.


 


(c)           In
connection with any transfer or exchange of a portion of the beneficial
interest in a Global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Securities are
to be issued) reflect on its books and records the date and a decrease in the
principal amount of such Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more Physical Securities of authorized denominations in an aggregate
principal amount equal to the principal amount of the beneficial interest in
the Global Security so transferred.


 


(d)           In
connection with the transfer of a Global Security as an entirety to beneficial
owners pursuant to paragraph (b) of this Section 2.15, such Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, the Guarantors shall execute notations of Guarantees
on and the Trustee shall upon written instructions from the Company
authenticate and deliver, to each beneficial owner identified by the Depository
in exchange for its beneficial interest in such Global Security, an equal
aggregate principal amount of Physical Securities of authorized denominations.


 


(e)           Any
Physical Security constituting a Restricted Security delivered in exchange for
an interest in a Global Security pursuant to paragraph (b) or (c) of
this Section 2.15 shall, except as otherwise provided by Section 2.16,
bear the Private Placement Legend.


 


(f)            The
Holder of any Global Security may grant proxies and otherwise authorize any
Person, including Participants and Persons that may hold interests through
Participants, to take any action which a Holder is entitled to take under this
Indenture or the Securities.


 


SECTION 2.16.              Special
Transfer Provisions.


 


(a)           Transfers
to Non-QIB Institutional Accredited Investors and Non-U.S. Persons.  The following provisions shall apply with
respect to the registration of any proposed transfer of a Restricted Security
to any Institutional Accredited Investor which is not a QIB or to any Non-U.S.
Person:


 


(i)            the
Registrar shall register the transfer of any Restricted Security, whether or
not such Security bears the Private Placement Legend, if (x) the requested
transfer is after the second anniversary of the Issue Date; provided, however, that
neither the Company nor any Affiliate of


 


32





















 


the Company
has held any beneficial interest in such Security, or portion thereof, at any
time on or prior to the second anniversary of the Issue Date or (y) (1) in
the case of a transfer to an Institutional Accredited Investor which is not a
QIB (excluding Non-U.S. Persons), the proposed transferee has delivered to the
Registrar a certificate substantially in the form of Exhibit C
hereto and any legal opinions and certifications required thereby and (2) in
the case of a transfer to a Non-U.S. Person, the proposed transferor has
delivered to the Registrar a certificate substantially in the form of Exhibit D
hereto;


 


(ii)           if
the proposed transferee is a Participant and the Securities to be transferred
consist of Physical Securities which after transfer are to be evidenced by an interest
in the Regulation S Global Security upon receipt by the Registrar of the
Physical Security and (x) written instructions given in accordance with
the Depository’s and the Registrar’s procedures and (y) the appropriate
certificate, if any, required by clause (y) of paragraph (i) above, the
Registrar shall register the transfer and reflect on its books and records the
date and an increase in the principal amount of the Regulation S Global
Security in an amount equal to the principal amount of Physical Securities to
be transferred, and the Registrar shall cancel the Physical Securities so transferred;
and


 


(iii)          if
the proposed transferor is a Participant seeking to transfer an interest in a
Global Security, upon receipt by the Registrar of (x) written instructions
given in accordance with the Depository’s and the Registrar’s procedures and
(y) the appropriate certificate, if any, required by clause (y) of paragraph (i) above,
the Registrar shall register the transfer and reflect on its books and records the
date and (A) a decrease in the principal amount of the Global Security
from which such interests are to be transferred in an amount equal to the
principal amount of the Securities to be transferred and (B) an increase
in the principal amount of the Regulation S Global Security in an amount
equal to the principal amount of the Securities to be transferred.


 


(b)           Transfers
to QIBs.  The following provisions
shall apply with respect to the registration of any proposed transfer of a
Restricted Security to a QIB:


 


(i)            the
Registrar shall register the transfer of any Restricted Security, whether or
not such Security bears the Private Placement Legend, if (x) the requested
transfer is after the second anniversary of the Issue Date; provided, however, that
neither the Company nor any Affiliate of the Company has held any beneficial
interest in such Security, or portion thereof, at any time on or prior to the
second anniversary of the Issue Date or (y) such transfer is being made by
a proposed transferor who has checked the box provided for on the form of
Security stating, or has otherwise advised the Company and the Registrar in
writing, that the sale has been made in compliance with the provisions of Rule 144A
to a transferee who has signed the certification provided for on the form of
Security stating, or has otherwise advised the Company and the Registrar in
writing, that it is purchasing the Security for its own account or an account
with respect to which it exercises sole investment discretion and that it and any
such account is a QIB within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration provided by Rule 144A;


 


(ii)           if
the proposed transferee is a Participant and the Securities to be transferred
consist of Physical Securities which after transfer are to be evidenced by an
interest in the 144A


 


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Global
Security, upon receipt by the Registrar of the Physical Security and written
instructions given in accordance with the Depository’s and the Registrar’s
procedures, the Registrar shall register the transfer and reflect on its book
and records the date and an increase in the principal amount of the 144A Global
Security in an amount equal to the principal amount of Physical Securities to
be transferred, and the Registrar shall cancel the Physical Securities so
transferred; and


 


(iii)          if
the proposed transferor is a Participant seeking to transfer an interest in the
Regulation S Global Security, upon receipt by the Registrar of written
instructions given in accordance with the Depository’s and the Registrar’s
procedures, the Registrar shall register the transfer and reflect on its books
and records the date and (A) a decrease in the principal amount of the
Regulation S Global Security in an amount equal to the principal amount of
the Securities to be transferred and (B) an increase in the principal
amount of the 144A Global Security in an amount equal to the principal amount
of the Securities to be transferred.


 


(c)           Restrictions
on Transfer and Exchange of Global Securities.  Notwithstanding any other provisions of this
Indenture, a Global Security may not be transferred as a whole except by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor Depository.


 


(d)           Private
Placement Legend.  Upon the transfer,
exchange or replacement of Securities not bearing the Private Placement Legend,
the Registrar or co-Registrar shall deliver Securities that do not bear the Private
Placement Legend.  Upon the transfer,
exchange or replacement of Securities bearing the Private Placement Legend, the
Registrar or co-Registrar shall deliver only Securities that bear the Private
Placement Legend unless (i) there is delivered to the Trustee an Opinion
of Counsel reasonably satisfactory to the Company and the Trustee to the effect
that neither such legend nor the related restrictions on transfer are required
in order to maintain compliance with the provisions of the Securities Act or (ii) such
Security has been offered pursuant to an effective registration statement under
the Securities Act.


 


(e)           General.  By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in
the Private Placement Legend and agrees that it will transfer such Security
only as provided in this Indenture.


 


The Registrar shall retain copies of all
letters, notices and other written communications received pursuant to Section 2.15
or this Section 2.16.  The Company
shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of
reasonable written notice to the Registrar.


 


The Trustee shall have no obligation or duty
to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers between
or among Depositary Participants or beneficial owners of interests in any
Global Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by the terms of, this Indenture, and to examine the same
to determine substantial compliance as to form with the express requirements
hereof.


 


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ARTICLE THREE


 


REDEMPTION


 


SECTION 3.01.              Notices
to Trustee.


 


If the Company elects to redeem Securities
pursuant to Paragraphs 6, 7, 8 or 9 of the Securities, it shall notify the
Trustee in writing of the Redemption Date, the Redemption Price and the
principal amount of Securities to be redeemed. 
The Company shall give notice of redemption to the Paying Agent and Trustee
at least 30 days but not more than 60 days before the Redemption Date (unless a
shorter notice shall be agreed to by the Trustee in writing and except where
the Company shall request the Trustee to mail the notice of redemption pursuant
to Section 3.03 in which case the Company shall give at least 35 days
notice under this Section 3.01), together with an Officers’ Certificate
stating that such redemption will comply with the conditions contained herein.


 


SECTION 3.02.              Selection
of Securities To Be Redeemed.


 


In the event that less than all of the
Securities are to be redeemed at any time, selection of such Securities for
redemption will be made by the Trustee in compliance with the requirements of
the principal national securities exchange, if any, on which such Securities
are listed or, if such Securities are not then listed on a national securities
exchange, on a pro  rata basis, by lot or by such method as the
Trustee shall deem fair and appropriate; provided, however, that no Securities of a principal amount of $1,000
or less shall be redeemed in part; and provided, further, that if a partial redemption is made with the Net
Cash Proceeds of an Equity Offering, selection of the Securities or portions
thereof for redemption shall be made by the Trustee only on a pro rata basis or on as nearly a pro rata
basis as is practicable (subject to the procedures of the Depository), unless
such method is otherwise prohibited.


 


SECTION 3.03.              Notice
of Redemption.


 


At least 30 days but not more than 60 days
before a Redemption Date, the Company shall mail a notice of redemption by
first class mail, postage prepaid, to each Holder whose Securities are to be
redeemed at its registered address.  At
the Company’s request, the Trustee shall forward the notice of redemption in
the Company’s name and at the Company’s expense.  Each notice for redemption shall identify the
Securities (including the CUSIP number) to be redeemed and shall state:


 


(1)           the
Redemption Date;


 


(2)           the
Redemption Price and the amount of accrued interest, if any, to be paid;


 


(3)           the
name and address of the Paying Agent;


 


(4)           that
Securities called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price plus accrued interest, if any;


 


(5)           that,
unless the Company defaults in making the redemption payment, interest on
Securities called for redemption ceases to accrue on and after the Redemption
Date, and the only remaining right of the Holders of such Securities is to
receive payment of the Redemption Price upon surrender to the Paying Agent of
the Securities redeemed;


 


35





















 


(6)           if
any Security is being redeemed in part, the portion of the principal amount of
such Security to be redeemed and that, after the Redemption Date, and upon
surrender of such Security, a new Security or Securities in aggregate principal
amount equal to the unredeemed portion thereof will be issued;


 


(7)           if
fewer than all the Securities are to be redeemed, the identification of the
particular Securities (or portion thereof) to be redeemed, as well as the
aggregate principal amount of Securities to be redeemed and the aggregate
principal amount of Securities to be outstanding after such partial redemption;
and


 


(8)           the
Paragraph of the Securities pursuant to which the Securities are to be redeemed.


 


The notice, if mailed in a manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice.  In any case, failure to
give such notice by mail or any defect in the notice to the Holder of any
Security designated for redemption in whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security.


 


SECTION 3.04.              Effect
of Notice of Redemption.


 


Once notice of redemption is mailed in
accordance with Section 3.03, Securities called for redemption become due
and payable on the Redemption Date and at the Redemption Price plus accrued
interest, if any.  Upon surrender to the
Trustee or Paying Agent, such Securities called for redemption shall be paid at
the Redemption Price (which shall include accrued interest thereon to the Redemption
Date), but installments of interest, the maturity of which is on or prior to
the Redemption Date, shall be payable to Holders of record at the close of business
on the relevant Record Dates.


 


SECTION 3.05.              Deposit
of Redemption Price.


 


On or before 10:00 a.m. New York time on
the Redemption Date, the Company shall deposit with the Paying Agent U.S. Legal
Tender sufficient to pay the Redemption Price plus accrued interest, if any, of
all Securities to be redeemed on that date.


 


If the Company complies with the preceding
paragraph, then, unless the Company defaults in the payment of such Redemption
Price plus accrued interest, if any, interest on the Securities to be redeemed
will cease to accrue on and after the applicable Redemption Date, whether or
not such Securities are presented for payment.


 


SECTION 3.06.              Securities
Redeemed in Part.


 


Upon surrender of a Security that is to be
redeemed in part only, the Trustee shall upon written instruction from the
Company authenticate for the Holder a new Security or Securities in a principal
amount equal to the unredeemed portion of the Security surrendered.


 


36





















 


ARTICLE FOUR


 


COVENANTS


 


SECTION 4.01.              Payment
of Securities.


 


The Company shall pay the principal of and
interest on the Securities in the manner provided in the Securities.  An installment of principal of or interest on
the Securities shall be considered paid on the date it is due if the Trustee or
Paying Agent (other than Parent or a Subsidiary thereof) holds on that date
U.S. Legal Tender designated for and sufficient to pay the installment.  Interest on the Securities will be computed
on the basis of a 360-day year comprised of twelve 30-day months.


 


SECTION 4.02.              Maintenance
of Office or Agency.


 


The Company shall maintain in the Borough of
Manhattan, The City of New York, the office or agency required under Section 2.03.  The Company shall give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency.  If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 13.02.


 


The Company may also from time to time
designate one or more other offices or agencies where the Securities may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations.  The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.


 


The Company hereby initially designates the
Corporate Trust Office of the Trustee located in the Borough of Manhattan, The
City of New York, as such office of the Company in accordance with Section 2.03.


 


SECTION 4.03.              Corporate
Existence.


 


Except as otherwise permitted by Article Five,
Parent shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence and the corporate, partnership
or other existence of each of its Restricted Subsidiaries in accordance with
the respective organizational documents of each such Restricted Subsidiary and
the rights (charter and statutory) and material franchises of Parent and each
of its Restricted Subsidiaries; provided, however, that Parent shall not be required to preserve any
such right, franchise or corporate existence with respect to each such
Restricted Subsidiary if the Board of Directors of Parent shall determine that
the loss thereof would not, individually or in the aggregate, have a material adverse
effect on the business, financial condition or results of operations of Parent
and its Restricted Subsidiaries taken as a whole (a “Material Adverse Effect”).


 


SECTION 4.04.              Payment
of Taxes and Other Claims.


 


Parent shall pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, (a) all
material taxes, assessments and governmental charges levied or imposed upon it
or any of its Subsidiaries or upon the income, profits or property of it or any
of its Restricted Subsidiaries and (b) all lawful claims for labor,
materials and supplies which, in each case, if unpaid, might by law


 


37





















 


become a material liability or Lien upon the
property of it or any of its Restricted Subsidiaries; provided,
however, that Parent shall not be
required to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, (i) the applicability or validity is being
contested in good faith by appropriate proceedings and for which appropriate
provision has been made or (ii) where the failure to effect such payment
or discharge would not, individually or in the aggregate, have a Material
Adverse Effect.


 


SECTION 4.05.              [Reserved]


 


SECTION 4.06.              Compliance
Certificate; Notice of Default.


 


(a)           The
Company shall deliver to the Trustee, within 120 days after the close of each
fiscal year (which on the date hereof is December 31) an Officers’
Certificate signed by the chief executive, chief financial or chief accounting
officer stating that a review of the activities of Parent and its Subsidiaries
has been made under the supervision of the signing officers with a view to
determining whether it has kept, observed, performed and fulfilled its obligations
under this Indenture and further stating, as to each such Officer signing such
certificate, that to the best of such Officer’s knowledge, the Company during
such preceding fiscal year has kept, observed, performed and fulfilled each and
every such covenant and no Default occurred during such year and at the date of
such certificate there is no Default that has occurred and is continuing or, if
such signers do know of such Default, the certificate shall describe its status
with particularity.  The Officers’
Certificate shall also notify the Trustee should the Company elect to change
the manner in which it fixes its fiscal year end.


 


(b)           The
annual financial statements delivered pursuant to Section 4.19 shall be accompanied
by a written report of Parent’s independent accountants (who shall be a firm of
established national reputation) that in conducting their audit of such
financial statements nothing has come to their attention that would lead them
to believe that any provision of Article Four or Article Five of this
Indenture has been violated insofar as they relate to accounting matters or, if
any such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.


 


(c)           The
Company shall deliver to the Trustee as soon as possible and in any event
within five days after the Company becomes aware of the occurrence of any
Default an Officers’ Certificate specifying the Default and describing its
status with particularity and the action proposed to be taken thereto.


 


SECTION 4.07.              [Reserved]


 


SECTION 4.08.              Waiver
of Stay, Extension or Usury Laws.


 


Each of the Company and each Guarantor
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury law or other law that
would prohibit or forgive the Company or such Guarantor from paying all or any
portion of the principal of and/or interest on the Securities or the Guarantee
of any such Guarantor as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance
of this Indenture, and (to the extent that it may lawfully do so) each hereby
expressly waives all benefit or advantage of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to


 


38





















 


the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.


 


SECTION 4.09.              Change
of Control.


 


(a)           Upon
the occurrence of a Change of Control, the Company must offer to purchase all the
Securities pursuant to the offer described below (the “Change of Control
Offer”), at a purchase price equal to 101% of the principal amount thereof,
plus accrued interest to the date of purchase.


 


(b)           Within
35 days following the date upon which a Change of Control occurs (the “Change
of Control Date”), the Company shall send, by first class mail, a notice to
each Holder, with a copy to the Trustee, which notice shall govern the terms of
the Change of Control Offer.  The notice
to the Holders shall contain all instructions and materials necessary to enable
such Holders to tender Securities pursuant to the Change of Control Offer.  Such notice shall state:


 


(i)            that
the Change of Control Offer is being made pursuant to this Section 4.09
and that all Securities tendered and not withdrawn will be accepted for payment;


 


(ii)           the
purchase price (including the amount of accrued interest) and the payment date
(the “Change of Control Payment Date”), which shall be a Business Day,
that is not earlier than 30 days or later than 60 days from the date such
notice is mailed;


 


(iii)          that
any Security not tendered will continue to accrue interest;


 


(iv)          that,
unless the Company defaults in making payment therefor, any Security accepted
for payment pursuant to the Change of Control Offer shall cease to accrue
interest after the Change of Control Payment Date;


 


(v)           that
Holders who tender their Securities in a Change of Control Offer must tender prior
to the Change of Control Payment Date;


 


(vi)          that
Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the second Business Day prior to the Change of Control
Payment Date, a telegram, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Securities the Holder delivered
for purchase and a statement that such Holder is withdrawing his election to
have such Security purchased;


 


(vii)         that
Holders whose Securities are purchased only in part will be issued new Securities
in a principal amount equal to the unpurchased portion of the Securities surrendered;
and


 


(viii)        the
circumstances and relevant facts regarding such Change of Control.


 


(c)           On
or before the Change of Control Payment Date, the Company shall (i) accept
for payment Securities or portions thereof tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price plus accrued interest, if any, of all
Securities so tendered and (iii) deliver to the Trustee Securities so
accepted together with an Officers’ Certificate stating the Securities or
portions thereof being purchased by the Company.  The Paying Agent shall promptly mail to the
Holders of Securities so accepted payment in an amount equal to the purchase
price plus accrued interest, if any, and upon written order of the Company the
Trustee shall


 


39





















 


promptly authenticate and mail to such Holders new Securities equal in
principal amount to any unpurchased portion of the Securities surrendered.  Any Securities not so accepted shall be
promptly mailed by the Company to the Holder thereof.  For purposes of this Section 4.09, the
Trustee shall act as the Paying Agent. 
Any amounts remaining with the Paying Agent after the purchase of
Securities pursuant to a Change of Control Offer shall be returned by the
Trustee to the Company upon written request.


 


(d)           Prior
to the mailing of the notice referred to above, but in any event within 30 days
following any Change of Control, the Company covenants to:


 


(i)            (x)
repay in full all Indebtedness, and terminate all commitments, under the Credit
Agreement and all other Senior Debt the terms of which require repayment upon a
Change of Control or prohibit the consummation of the Change of Control Offer
or (y) offer to repay in full all Indebtedness, and terminate all commitments,
under the Credit Agreement and all such other Senior Debt and repay the
Indebtedness owed to each lender which has accepted such offer; or


 


(ii)           obtain
the requisite consents under the Credit Agreement and all such other Senior
Debt to permit the repurchase of the Securities as provided below.


 


The Company shall first comply with this Section 4.09(d) before
it shall be required to purchase Securities pursuant to this Section 4.09.  The Company’s failure to comply with this Section 4.09(d),
and any resulting failure to make a Change of Control Offer as otherwise
required above, may (with notice and lapse of time) constitute an Event of
Default under Section 6.01(c) but shall not constitute an Event of
Default under Section 6.01(b).


 


(e)           The
Company will comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the repurchase of
Securities pursuant to a Change of Control Offer.  To the extent that the provisions of any
securities laws or regulations conflict with this Section 4.09, the
Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section 4.09
by virtue thereof.


 


(f)            The
Company will not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in this
Indenture applicable to a Change of Control Offer made by the Company and
purchases all Securities validly tendered and not withdrawn under such Change
of Control Offer.


 


SECTION 4.10.              Limitation
on Incurrence of Additional Indebtedness.


 


(a)           Parent
will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, assume, guarantee, acquire, become liable,
contingently or otherwise, with respect to, or otherwise become responsible for
payment of (collectively, “incur”) any Indebtedness; provided that if no Default shall have occurred and be
continuing at the time of or as a consequence of the incurrence of any such Indebtedness,
the Company or any Guarantor may incur Indebtedness, and any Non-Guarantor
Restricted Subsidiary may incur Acquired Indebtedness, in each case, if on the
date of the incurrence of such Indebtedness, after giving effect to the
incurrence of such Indebtedness and all other Indebtedness to be incurred on
such date, the Consolidated Fixed Charge Coverage Ratio of Parent is greater
than 2.0 to 1.0 (this proviso, the “Coverage Ratio Exception”).


 


40





















 


(b)           Section 4.10(a) shall
not prohibit any of the following:


 


(i)            The
Securities incurred on the Issue Date and the related Guarantees;


 


(ii)           Indebtedness
of the Company or any Guarantor incurred pursuant to Credit Facilities in an
aggregate principal amount at any time outstanding not to exceed the aggregate
of Euro 490 million and $752 million;


 


(iii)          other
Indebtedness of Parent and its Restricted Subsidiaries outstanding on the Issue
Date (after giving effect to the repurchase of Existing Notes tendered in the
Debt Tender);


 


(iv)          Interest
Hedging Agreements entered into by the Parent or any Restricted Subsidiary for
non-speculative pursposes;


 


(v)           Currency/Commodity
Hedging Agreements entered into by the Parent or any of its Restricted
Subsidiaries in the ordinary course of business so long as any such Currency/Commodity
Hedging Agreement is not speculative in nature and is (i) related to
income derived from foreign sales or operations of the Parent or any Restricted
Subsidiary or otherwise related to purchase permitted hereunder from foreign
suppliers, (ii) entered into to protect the Parent and/or its Restricted
Subsidiaries against fluctuations in the prices of raw materials unused in
their business or (iii) entered into to protect the Parent or any of its
Restricted Subsidiaries from exposure to adverse movements in foreign exchange;


 


(vi)          Indebtedness
of the Company or any Guarantor to the Company, any Guarantor or any
Non-Guarantor Restricted Subsidiary; provided that (a) any
such Indebtedness of the Company shall be subordinated, pursuant to a written
agreement, to the Company’s obligations under this Indenture and the
Securities, (b) any such Indebtedness of any Guarantor to any
Non-Guarantor Restricted Subsidiary shall be subordinated, pursuant to a
written agreement, to such Guarantor’s obligations under this Indenture and its
Guarantee and (c) at the first time that any Person other than Parent or
any Restricted Subsidiary owns or holds any such Indebtedness or any Person
other than the Company or (other than in the case of Indebtedness owed by the
Company) any Guarantor holds a Lien in respect of such Indebtedness, the debtor
of such Indebtedness shall be deemed to have incurred at such time Indebtedness
not permitted by this clause (vi);


 


(vii)         Indebtedness
of any Non-Guarantor Restricted Subsidiary to Parent or any Restricted
Subsidiary; provided that (a) any such
Indebtedness owed to the Company or any Guarantor shall be unsubordinated and (b) at
the first time that any Person other than Parent or any Restricted Subsidiary
owns or holds any such Indebtedness or any Person (other than the Company or
any Guarantor) holds a Lien in respect of such Indebtedness, such Non-Guarantor
Restricted Subsidiary shall be deemed to have incurred at such time
Indebtedness not permitted by this clause (vii);


 


(viii)        obligations
incurred in the ordinary course of business in respect of bank overdrafts and
with respect to cash management and operating account arrangements; provided that such arrangements are not the functional
equivalent of extensions of Indebtedness for borrowed money and so long as all
obligations arising in connection with such obligations are extinguished within
five Business Days of the date when such obligations arise;


 


41





















 


(ix)           Indebtedness
in respect of performance bonds, bankers’ acceptances, workers’ compensation
claims, surety or appeal bonds, payment obligations in connection with
self-insurance or similar obligations in the ordinary course of business;


 


(x)            Indebtedness
represented by Capitalized Lease Obligations and Purchase Money Indebtedness
incurred in the ordinary course of business, and Refinancings thereof, not to exceed
$75.0 million at any one time outstanding;


 


(xi)           any
of Parent’s Preference Shares B issued to Stichting B in accordance with
the terms of Parent’s Articles of Association as the terms of Parent’s
Preference Shares B thereunder are in effect on the date of this Indenture
and in accordance with the put and call arrangements with Stichting B as in
effect on the date of this Indenture or, in each case, as thereafter amended in
a manner no less favorable to the Holders;


 


(xii)          Indebtedness
of a Receivables Subsidiary in a Qualified Receivables Transaction, which
Indebtedness shall not be guaranteed by or otherwise recourse (other than
pursuant to Standard Securitization Undertakings) to Parent or any of its
Restricted Subsidiaries or any of their assets (other than such Receivables Subsidiary
and its assets);


 


(xiii)         guarantees
by the Company or any Guarantor of any Indebtedness of the Company or any
Guarantor that was permitted to be incurred pursuant to this Indenture,
substantially concurrently with such incurrence or at the time such Person
becomes a Guarantor;


 


(xiv)        Indebtedness
of the Company or any Guarantor payable to one or more sellers of any Person
acquired by Parent or any Restricted Subsidiary, which Indebtedness shall be
unsecured and subordinated, pursuant to a written agreement, to the Company’s
or such Guarantor’s obligations under this Indenture and the Securities or such
Guarantor’s Guarantee, as the case may be, and Refinancings of such
Indebtedness by the Company or any Guarantor, in an aggregate amount not to
exceed $150.0 million at any one time outstanding;


 


(xv)         Indebtedness
in the form of guarantees of Indebtedness of the Australian Subsidiaries of the
Parent made by the Issuer or any Guarantor to the extent permitted by Section 4.11;


 


(xvi)        Indebtedness
not for borrowed money arising from agreements of Parent or any Restricted
Subsidiary providing for indemnification, adjustment of purchase price or
similar obligations, in each case, incurred in connection with the disposition
of any assets; provided that the maximum
aggregate liability in respect of all such Indebtedness shall at no time exceed
the gross proceeds actually received by Parent and its Restricted Subsidiaries
in connection with such disposition;


 


(xvii)       Indebtedness
consisting of guarantees of loans made by third parties to management for the
purpose of permitting management to purchase Equity Interests of Parent, in an
aggregate amount not to exceed $10.0 million at any one time outstanding;


 


(xviii)      Refinancing
Indebtedness; and


 


(xix)         additional
Indebtedness in an aggregate principal amount not to exceed $150.0 million at
any one time outstanding.


 


42





















 


(c)           For
purposes of determining any particular amount of Indebtedness under this Section 4.10,
guarantees, Liens or letter of credit obligations supporting Indebtedness
otherwise included in the determination of such particular amount shall not be
included.  For purposes of determining
compliance with this Section 4.10, in the event that an item of Indebtedness
meets the criteria of more than one of the Sections 4.10(b)(i) through (xix)
above or is entitled to be incurred pursuant to the Coverage Ratio Exception,
Parent shall, in its sole discretion, classify (or later reclassify) such item
of Indebtedness in any manner that complies with this Section 4.10.  Any (1) accrual of interest, (2) accretion
or amortization of original issue discount, (3) payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms, (4) payment
of dividends on Disqualified Equity Interests in the form of additional shares
of the same class of Disqualified Equity Interests, (5) change in the
amount outstanding due solely to the result of fluctuations in the exchange
rates of currencies, or (6) the reclassification of preferred stock or
preference shares as Indebtedness due to a change in accounting principles will
not be deemed to be an incurrence of Indebtedness or an issuance of
Disqualified Equity Interests for purposes of this Section 4.10.


 


SECTION 4.11.              Limitation
on Restricted Payments.


 


(a)           Parent
will not, and will not cause or permit any of its Restricted Subsidiaries to, directly
or indirectly:


 


(i)            declare
or pay any dividend or make any distribution (other than dividends or
distributions payable in Qualified Equity Interests of Parent) on or in respect
of shares of Parent’s Equity Interests to holders of such Equity Interests;


 


(ii)           purchase,
redeem or otherwise acquire or retire for value any Capital Stock of Parent or
any warrants, options or other rights to purchase or acquire any such Capital
Stock;


 


(iii)          make
any principal payment on, purchase, defease, redeem, prepay, decrease or
otherwise acquire or retire for value, prior to any scheduled final maturity,
scheduled repayment or scheduled sinking fund payment, any Indebtedness of the
Company or any Guarantor that is subordinate or junior in right of payment to
the Securities or such Guarantor’s Guarantee; or


 


(iv)          make
any Investment (other than Permitted Investments) (each of the foregoing
actions set forth in clauses (i), (ii), (iii) and (iv) being referred
to as a “Restricted Payment”);


 


if at the time of such Restricted Payment or
immediately after giving effect thereto,


 


(1)           a
Default shall have occurred and be continuing; or


 


(2)           Parent is not able to
incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio
Exception; or


 


(3)           the aggregate amount of
all Restricted Payments including such proposed Restricted Payment (other than
any Restricted Payment pursuant to Section 4.11(b)(v)(y), (vi), (vii), (viii),
(vix) or (x)) made subsequent to March 31, 2004 (the amount expended for
such purposes, if other than in cash, being the fair market value of such
assets) shall exceed the sum of:


 


43





















 


(w)          50%
of the cumulative Consolidated Net Income (or if cumulative Consolidated Net
Income shall be a loss, minus 100% of such loss) of Parent from March 31,
2004 through the last day of the fiscal quarter ended immediately preceding the
date the Restricted Payment occurs (the “Reference Date”) (treating such
period as a single accounting period); plus


 


(x)            100%
of the aggregate Net Cash Proceeds or the fair market value of property
received by Parent from any Person (other than a Subsidiary of Parent) from the
issuance and sale subsequent to the Issue Date and on or prior to the Reference
Date of Qualified Equity Interests of Parent; plus


 


(y)           without
duplication of any amounts included in clause (3)(x) above, 100% of the aggregate
Net Cash Proceeds or the fair market value of property of any equity
contribution received by Parent (other than from a Subsidiary of Parent); plus


 


(z)            without
duplication, the sum of:


 


(1)            the aggregate amount returned in cash on or with
respect to Investments (other than Permitted Investments) made subsequent to
the Issue Date whether through interest payments, principal payments, dividends
or other distributions or payments;


 


(2)            the Net Cash Proceeds or the fair market value of
property received by Parent or any of its Restricted Subsidiaries from the
disposition of all or any portion of such Investments (other than to a
Subsidiary of Parent); and


 


(3)            other than in the case of any redesignation of an
Australian Subsidiary, upon redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary, the fair market value of such Subsidiary.


 


(b)           Notwithstanding
the foregoing, Section 4.11(a) shall not prohibit:


 


(i)            the
payment of any dividend within 60 days after the date of declaration of such
dividend if the dividend would have been permitted on the date of declaration;


 


(ii)           the
payment of dividends with respect to Parent’s Preference Shares A or
Preference Shares B in amounts not greater than the amounts, and not
earlier than at the times, required by Parent’s Articles of Association as the
terms of the Parent’s Preference Shares A or Preference Shares B
thereunder, as the case may be, are in effect on the date of this Indenture or
as thereafter amended in a manner no less favorable to the Holders; provided that, in the case of the Preference Shares B, such
shares were issued in compliance with Section 4.10(b)(xi);


 


(iii)          the
redemption by Parent of any of its Preference Shares B, at their issue
price plus any accrued and unpaid dividends, which shares were issued pursuant
to Section 4.10(b)(xi);


 


(iv)          the
redemption by Parent of any of its Preference Shares C, at their issue price
plus any accrued and unpaid dividends, out of the Net Cash Proceeds of the
Notes;


 


44





















 


(v)           any
Restricted Payment either (x) solely in exchange for Qualified Equity Interests
of Parent or (y) through the application of Net Cash Proceeds of a substantially
concurrent sale (other than to a Subsidiary of Parent) of Qualified Equity
Interests of Parent;


 


(vi)          payments
on or the acquisition of any Indebtedness of the Company or any Guarantor that
is subordinate or junior in right of payment to the Securities or such
Guarantor’s Guarantee either (x) solely in exchange for Qualified Equity
Interests of Parent or (y) through the application of Net Cash Proceeds of a
substantially concurrent sale (other than to a Subsidiary of Parent) of (a) shares
of Qualified Equity Interests of Parent or (b) Refinancing Indebtedness;


 


(vii)         repayment
of Indebtedness incurred pursuant to Section 4.10(b)(vi), (vii) or (xiv);


 


(viii)        the
acquisition by a Receivables Subsidiary in connection with a Qualified
Receivables Transaction of Equity Interests of a trust or other Person
established by such Receivables Subsidiary to effect such Qualified Receivables
Transaction;


 


(ix)           payments
in lieu of fractional shares in an amount not to exceed $200,000 in the
aggregate per annum;


 


(x)            the
declaration and payment of dividends to holders of any class or series of
Designated Preferred Stock (other than Disqualified Equity Interests) issued
after the date of this Indenture; provided that,
at the time of such issuance, the Company, after giving effect to such issuance
on a pro forma basis, could incur an additional $1.00 of Indebtedness pursuant
to the Coverage Ratio Exception;


 


(xi)           upon
the occurrence of a Change of Control and within 60 days after the completion
of the offer to repurchase the Securities pursuant to Section 4.09
(including the purchase of the Securities tendered), any purchase or redemption
of subordinated Indebtedness or Capital Stock required pursuant to the terms
thereof as a result of such Change of Control at a purchase or redemption price
not to exceed the outstanding principal amount thereof, plus any accrued and
unpaid interest; provided that (a) at the
time of such purchase or redemption no Default shall have occurred and be
continuing (or would result therefrom), and (b) the Company could incur an
additional $1.00 of Indebtedness pursuant to the Coverage Ratio Exception after
giving pro forma effect to such Restricted Payment;


 


(xii)          additional
Restricted Payments in an aggregate amount not to exceed $150.0 million since
the Issue Date; and


 


(xiii)         payments
of dividends on Disqualified Equity Interests (to the extent constituting
Preferred Stock) issued in accordance with Section 4.10 above;


 


provided that in the
case of clause (ii), (iii), (v), (vi), (vii), (viii) (with respect to
Indebtedness of the Company referred to therein), (xi), (xii), (xiii) or (xiv),
no Default shall have occurred and be continuing.


 


45





















 


SECTION 4.12.              Limitation
on Liens.


 


Parent will not, and will not cause or permit any of the Guarantors to,
directly or indirectly, create, incur, assume or permit or suffer to exist any
Lien of any kind against or upon any assets of Parent or any of the Guarantors whether
owned on the Issue Date or acquired after the Issue Date, or any proceeds
therefrom, or assign or otherwise convey any right to receive income or profits
therefrom, which Lien secures Indebtedness (other than Senior Debt or Guarantor
Senior Debt) or trade payables, unless:


 


(1)           in
the case of Liens securing Indebtedness that is expressly subordinate or junior
in right of payment to the Securities or the Guarantees, the Securities or the
Guarantees, as the case may be, are secured by a Lien on such assets or
proceeds that is senior in priority to such Liens; and


 


(2)           in
all other cases, the Securities are at least equally and ratably secured;


 


except, for, in either case of clause (1) or
(2):


 


(a)           Liens
existing as of the date of this Indenture to the extent and in the manner such
Liens are in effect on such date;


 


(b)           Liens
securing the Securities and the Guarantees;


 


(c)           Liens
in favor of Parent or any Restricted Subsidiary;


 


(d)           Liens
on assets of a Receivables Subsidiary incurred in connection with a Qualified
Receivables Transaction;


 


(e)           Liens
securing Capitalized Lease Obligations and Purchase Money Indebtedness;


 


(f)            Liens
securing Acquired Indebtedness incurred in accordance with Section 4.10; provided that such Liens do not extend to or cover any
assets of Parent or any Guarantor other than the assets that secured the
Acquired Indebtedness prior to the time such Indebtedness became Acquired
Indebtedness of Parent or a Guarantor and are no more favorable to the
lienholders than those securing the Acquired Indebtedness prior to the
incurrence of such Acquired Indebtedness by Parent or a Guarantor;


 


(g)           Liens
securing Refinancing Indebtedness which is incurred to Refinance any
Indebtedness secured by a Lien permitted under this Indenture and incurred in
accordance with the provisions of this Indenture; provided
that such Liens: (x) are no less favorable to the Holders and are not more
favorable to the lienholders with respect to such Liens than the Liens in
respect of the Indebtedness being Refinanced; and (y) do not extend to or
cover any assets of Parent or any Guarantor not securing the Indebtedness so
Refinanced; and


 


(h)           Permitted
Liens.


 


SECTION 4.13.              Limitation
on Asset Sales.


 


(a)           Parent
will not, and will not permit any of its Restricted Subsidiaries to, consummate
an Asset Sale unless:


 


46





















 


(i)            Parent
or the applicable Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market
value of the assets sold or otherwise disposed of;


 


(ii)           at
least 75% of the consideration received by Parent or the Restricted Subsidiary,
as the case may be, from such Asset Sale shall be in the form of cash or Cash
Equivalents and is received at the time of such disposition; and


 


(iii)          upon
the consummation of an Asset Sale, Parent shall apply, or cause such Restricted
Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within
365 days of receipt thereof either:


 


(1)           to
prepay any Senior Debt or Guarantor Senior Debt or any Indebtedness of the
Restricted Subsidiary whose assets were the subject of the Asset Sale if such
Restricted Subsidiary is not a Guarantor and, in the case of any such
Indebtedness under any revolving credit facility, effect a permanent reduction
in the availability under such revolving credit facility;


 


(2)           to
make an investment in (x) assets that replace the assets that were the
subject of such Asset Sale or in assets that will be used in the business of
Parent and its Restricted Subsidiaries as existing on the Issue Date or in
businesses reasonably related thereto or (y) Capital Stock of an entity
that holds any such assets (provided that
in the case of this clause (y) such investment is permitted by Section 4.11
(collectively, “Replacement Assets”); and/or


 


(3)           a
combination of prepayment and investment permitted by the foregoing clauses (iii)(1) and
(iii)(2).


 


(b)           To
the extent that all or part of the Net Cash Proceeds of any Asset Sale are not
applied within 365 days of such Asset Sale as set forth in Section 4.13(a) (such
Net Cash Proceeds, the “Unutilized Net Cash Proceeds”), the Company
shall, on the 366th day (the “Net Proceeds Offer Trigger Date”), make an
offer to purchase (a “Net Proceeds Offer”), with a copy to the Trustee,
not less than 30 nor more than 60 days following such 366th day (the “Net
Proceeds Offer Payment Date”), all outstanding Securities up to a maximum
principal amount (expressed as a multiple of $1,000) of Securities equal to the
Security Portion of Unutilized Net Cash Proceeds, at a purchase price in cash
equal to 100% of the principal amount thereof, plus accrued interest thereon to
the date of purchase; provided, however, that the Net Proceeds Offer may be deferred until
there are aggregate Unutilized Net Cash Proceeds equal to or in excess of $20.0
million, at which time the entire amount of such Unutilized Net Cash Proceeds,
and not just the amount in excess of $20.0 million, shall be applied as
required pursuant to this paragraph.


 


(c)           In
the event that any other Indebtedness of the Company that ranks pari passu with the Securities or any other Indebtedness of
any Guarantor that ranks pari passu with
such Guarantor’s Guarantee (“Other Debt”) requires an offer to purchase
to be made to repurchase such Other Debt upon the consummation of an Asset
Sale, the Company may apply the Unutilized Net Cash Proceeds otherwise required
to be applied to a Net Proceeds Offer to offer to purchase such Other Debt and
to a Net Proceeds Offer so long as the amount of such Unutilized Net Cash
Proceeds applied to purchase the Securities is not less than the Security
Portion of Unutilized Net Cash Proceeds. 
With respect to any Unutilized Net Cash Proceeds, the Company shall make
the Net Proceeds Offer in respect thereof at the same


 


47





















 


time as the analogous offer to purchase is made pursuant to any Other
Debt and the purchase date in respect of the Securities shall be the same as
the purchase date in respect of such Other Debt.


 


(d)           For
purposes of this Section 4.13, “Security Portion of Unutilized Net Cash
Proceeds” means (1) if no Other Debt is being offered to be purchased,
the amount of the Unutilized Net Cash Proceeds and (2) if Other Debt is
being offered to be purchased, the amount of the Unutilized Net Cash Proceeds
equal to the product of (x) the Unutilized Net Cash Proceeds and
(y) a fraction the numerator of which is the principal amount of all
Securities tendered pursuant to the Net Proceeds Offer related to such
Unutilized Net Cash Proceeds (the “Security Amount”) and the denominator
of which is the sum of the Security Amount and the lesser of the aggregate principal
face amount or accreted value as of the relevant purchase date of all Other
Debt tendered pursuant to a concurrent offer to purchase such Other Debt made
at the time of such Net Proceeds Offer.


 


(e)           With
respect to any Net Proceeds Offer effected pursuant to this Section 4.13,
to the extent the aggregate principal amount of Securities tendered pursuant to
such Net Proceeds Offer exceeds the Security Portion of Unutilized Net Cash
Proceeds to be applied to the repurchase thereof, such Securities shall be
purchased pro rata based on the aggregate
principal amount of such Securities tendered by each Holder.


 


(f)            To
the extent the Security Portion of Unutilized Net Cash Proceeds exceeds the
aggregate principal amount of Securities tendered by the Holders pursuant to
such Net Proceeds Offer, the Company may retain and utilize any portion of the
Security Portion of Unutilized Net Cash Proceeds not applied to purchase the
Securities for any purpose consistent with the other terms of this Indenture,
and such amounts shall thereafter not constitute Unutilized Net Cash Proceeds.


 


(g)           At
any time any non-cash consideration received by Parent or any of its Restricted
Subsidiaries, as the case may be, in connection with any Asset Sale is converted
into or sold or otherwise disposed of for cash (other than interest received
with respect to any such non-cash consideration), such conversion or
disposition shall be deemed to constitute an Asset Sale hereunder and the Net
Cash Proceeds thereof shall be applied in accordance with this Section 4.13.


 


(h)           In
the event of the Transfer of substantially all (but not all) of the assets of
Parent and its Restricted Subsidiaries as an entirety to a Person in a
transaction permitted by Section 5.01, which transaction does not
constitute a Change of Control, the successor or transferee corporation shall
be deemed to have sold the assets of Parent and its Restricted Subsidiaries not
so transferred for purposes of this Section, and shall comply with the provisions
of this Section with respect to such deemed sale as if it were an Asset
Sale.  In addition, the fair market value
of such assets of Parent and its Restricted Subsidiaries deemed to be sold
shall be deemed to be Net Cash Proceeds for purposes of this Section.


 


(i)            For
the purposes of Section 4.13(a)(ii), the following will be deemed to be
cash:


 


(i)            the
assumption by the transferee of Indebtedness (other than Subordinated
Indebtedness) of the Company or a Guarantor, or Indebtedness of any other
Restricted Subsidiary and the release of the Parent or such Restricted
Subsidiary from all liability on such Indebtedness in connection with such
Asset Sale;


 


(ii)           securities,
notes or other obligations received by the Parent or any Restricted Subsidiary
of the Parent from the transferee that are promptly converted by the Parent or
such Restricted Subsidiary into cash;


 


48





















 


(iii)          Indebtedness
of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a
result of such Asset Sale, to the extent that the Parent and each other
Restricted Subsidiary are released from any guarantee of payment of the
principal amount of such Indebtedness in connection with such Asset Sale; and


 


(iv)          consideration
consisting of Indebtedness of the Parent or any Restricted Subsidiary which
Indebtedness is either repaid in full or cancelled.


 


(j)            Notwithstanding
Sections 4.13(a) and (b), Parent or any of its Restricted Subsidiaries
will be permitted to consummate an Asset Sale without complying with Section 4.13(a) and
(b) to the extent that:


 


(i)            at
least 75% of the consideration for such Asset Sale constitutes Replacement
Assets; and


 


(ii)           such
Asset Sale is for fair market value; provided that
any consideration not constituting Replacement Assets received by Parent or any
of its Restricted Subsidiaries in connection with any Asset Sale permitted to
be consummated under this paragraph shall constitute Net Cash Proceeds (to the
extent received in the form of cash or Cash Equivalents) subject to Sections
4.13(a) and (b).


 


(k)           Each
Net Proceeds Offer will be mailed to the record Holders as shown on the
register of Holders within 25 days following the Net Proceeds Offer Trigger
Date, with a copy to the Trustee, and shall comply with the procedures set
forth in this Indenture.  The notice
shall contain all instructions and materials necessary to enable such Holders
to tender Securities pursuant to the Net Proceeds Offer and shall state the
following terms:


 


(i)            that
the Net Proceeds Offer is being made pursuant to this Section 4.13 and
that all Securities tendered will be accepted for payment; provided,
however, that if the principal amount of
Securities tendered in the Net Proceeds Offer exceeds the aggregate amount of
Net Proceeds Offer Amount, the Company shall select the Securities to be
purchased on a pro rata basis;


 


(ii)           the
purchase price (including the amount of accrued interest, if any) and the
purchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed, other than as may be required by applicable
law);


 


(iii)          that
any Security not tendered will continue to accrue interest;


 


(iv)          that,
unless the Company defaults in making payment therefor, any Security accepted
for payment pursuant to the Net Proceeds Offer shall cease to accrue interest
after the Net Proceeds Offer Payment Date;


 


(v)           that
Holders electing to have a Security purchased pursuant to the Net Proceeds
Offer will be required to surrender the Security, with the form entitled “Option
of Holder to Elect Purchase” on the reverse of the Security completed, to the
Paying Agent at the address specified in the notice prior to the close of
business on the Net Proceeds Offer Payment Date;


 


49





















 


(vi)          that
Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the second Business Day prior to the Net Proceeds
Offer Payment Date, a facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Security the Holder delivered for
purchase and a statement that such Holder is withdrawing his election to have
such Security purchased; and


 


(vii)         that
Holders whose Securities are purchased only in part will be issued new Securities
in a principal amount at maturity equal to the unpurchased portion of the
Securities surrendered.


 


Upon receiving notice of the Net Proceeds
Offer, Holders may elect to tender their Securities in whole or in part in
integral multiples of $1,000.  A Net
Proceeds Offer shall remain open for a period of 20 business days or such
longer period as may be required by law. 
On or before the Net Proceeds Offer Payment Date, the Company shall (i) accept
for payment Securities or portions thereof tendered pursuant to the Net Proceeds
Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to
pay the purchase price, plus accrued interest, if any, of all Securities to be
purchased and (iii) deliver to the Trustee Securities so accepted together
with an Officers’ Certificate stating the Securities or portions thereof being
purchased by the Company.  The Paying
Agent shall promptly mail to the Holders of Securities so accepted payment in
an amount equal to the purchase price, plus accrued interest, if any, thereon
set forth in the notice of such Net Proceeds Offer.  Any Security not so accepted shall be
promptly mailed by the Company to the Holder thereof.  For purposes of this Section 4.13, the
Trustee shall act as the Paying Agent.


 


(l)            The
Company will comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the purchase of
Securities pursuant to a Net Proceeds Offer. 
To the extent that the provisions of any securities laws or regulations
conflict with this Section 4.13, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.13 by virtue thereof.


 


SECTION 4.14.              Limitations
on Transactions with Affiliates.


 


(a)           Parent
will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, enter into or permit to exist any transaction or series of
related transactions (including the purchase, sale, lease or exchange of any
assets or the rendering of any service) with, or for the benefit of, any of its
Affiliates (each, an “Affiliate Transaction”), other than (x) Affiliate
Transactions permitted under the third paragraph of this covenant below and (y)
Affiliate Transactions on terms that are no less favorable than those that
might reasonably have been obtained in a comparable transaction at such time on
an arm’s-length basis from a Person that is not an Affiliate of Parent or such
Restricted Subsidiary.


 


(b)           All
Affiliate Transactions (and each series of related Affiliate Transactions which
are similar or part of a common plan) involving aggregate payments or other
assets with a fair market value in excess of $10.0 million shall be approved by
the Board of Directors of Parent or such Restricted Subsidiary, as the case may
be, such approval to be evidenced by a Board Resolution stating that such Board
of Directors has determined that such transaction complies with the foregoing
provisions.  If Parent or any Restricted
Subsidiary of Parent enters into an Affiliate Transaction (or a series of
related Affiliate Transactions related to a common plan) that involves an aggregate
fair market value of more than $25.0 million, Parent or such Restricted
Subsidiary, as the case may be, shall, prior to the consummation thereof,
obtain a favorable opinion from an Independent Financial Advisor that (a) the
terms thereof are


 


50





















 


no less favorable to the Relevant Party than the terms that might
reasonably be obtained in a comparable transaction at such time on an arm’s-length
basis from a Person that is not an Affiliate of Parent or such Restricted
Subsidiary or (b) such transaction or series of related transactions are
fair to the Relevant Party from a financial point of view, and file such
opinion with the Trustee.  “Relevant
Party” means (x) in any transaction involving the Company or any
Guarantor, the Company and the Guarantors involved and (y) in any other
transaction, the Restricted Subsidiaries involved.


 


(c)           Section 4.14(a) and
(b) shall not apply to:


 


(i)            reasonable
fees and compensation paid to and indemnity provided on behalf of, officers,
directors, employees or consultants of Parent or any of its Restricted
Subsidiaries as determined in good faith by Parent’s Board of Directors or
senior management;


 


(ii)           transactions
exclusively between or among the Parent and/or one or more of its Restricted Subsidiaries;


 


(iii)          transactions
with Parent’s Australian Subsidiaries in the ordinary course of business;


 


(iv)          any
agreement existing on the date of this Indenture or any amendment thereto or
replacement thereof or any transaction contemplated thereby so long as any such
amendment or replacement agreement is no less favorable in any material respect
to the Holders than the original agreement as in effect on the date of this
Indenture;


 


(v)           Restricted
Payments permitted by Section 4.11 and Permitted Investments;


 


(vi)          issuance
or sale of Qualified Equity Interests of Parent;


 


(vii)         transactions
effected as part of a Qualified Receivables Transaction;


 


(viii)        the
existence of, or the performance by Parent or any of its Restricted
Subsidiaries of its obligations under the terms of, any stockholders agreement
(including any registration rights agreement or purchase agreement related
thereto) to which it is a party as of the date of this Indenture and any
similar agreements which it may enter into thereafter; provided
that the existence of, or the performance by Parent or any of its Restricted
Subsidiaries of obligations under, any future amendment to any such existing
agreement or under any similar agreement entered into after the date of this
Indenture shall only be permitted by this clause (viii) to the extent that
the terms of any such amendment or new agreement are not disadvantageous to the
Holders of the Securities in any material respect; and


 


(ix)           transactions
with customers, clients, suppliers, joint venture partners or purchasers or
sellers of goods or services, in each case in the ordinary course of business
(including, without limitation, pursuant to joint venture agreements) and
otherwise in compliance with the terms of this Indenture which are fair to
Parent and its Restricted Subsidiaries in the reasonable determination of the
Board of Directors of Parent, or are on terms at least as favorable as might
reasonably have been obtained at such time from an unaffiliated party.


 


51





















 


SECTION 4.15.            Limitation
on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.


 


(a)           Parent
will not, and will not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, create or otherwise cause or permit to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary of Parent to:


 


(i)            pay
dividends or make any other distributions on or in respect of its Capital
Stock;


 


(ii)           make
loans or advances or to pay any Indebtedness or other obligation owed to Parent
or any of its other Restricted Subsidiaries; or


 


(iii)          transfer
any of its assets to Parent or any of its other Restricted Subsidiaries;


 


except for such encumbrances or restrictions
existing under or by reason of:


 


(a)           applicable
law;


 


(b)           this
Indenture;


 


(c)           customary
non-assignment provisions of any contract or any lease governing a leasehold
interest of any Restricted Subsidiary of Parent;


 


(d)           any
instrument existing at the time of acquisition of any Person so acquired and
not entered into in connection with, or in anticipation or contemplation of,
such Person being acquired, including those governing Acquired Indebtedness,
which encumbrances or restrictions are not applicable to any Person, or the
assets of any Person, other than the Person or the assets of the Person so
acquired;


 


(e)           agreements
existing on the date of this Indenture, including the Credit Agreement, to the
extent and in the manner such encumbrances or restrictions are in effect on the
date of this Indenture or as thereafter amended in a manner no less favorable
to the Holders;


 


(f)            restrictions
imposed by Indebtedness of the Company or any of the Guarantors ranking pari
passu with the Securities or the Guarantees, as applicable; provided such restrictions are no more restrictive taken as
a whole than those imposed by this Indenture and the Securities;


 


(g)           restrictions
imposed by any Senior Debt incurred in accordance with Section 4.10; provided such restrictions are no more restrictive taken as
a whole than those imposed by the Credit Agreement as of the Issue Date;


 


(h)           restrictions
imposed by any agreement to sell assets or Equity Interests to any Person
pending the closing of such sale relating to such assets or Equity Interests;


 


(i)            restrictions
on transfer contained in Purchase Money Indebtedness incurred not in violation
of Section 4.10; provided such
restrictions relate only to the transfer of the property acquired with the
proceeds of such Purchase Money Indebtedness;


 


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(j)            Liens
of the type described in clause (iii) above incurred in accordance with Section 4.12;


 


(k)           customary
restrictions in Capitalized Lease Obligations, security agreements or mortgages
securing Indebtedness of Parent or a Restricted Subsidiary to the extent such
restrictions restrict the transfer of the property subject to such Capitalized
Lease Obligations, security agreements or mortgages;


 


(l)            customary
provisions in joint venture agreements and other similar agreements (in each
case relating solely to the respective joint venture or similar entity or the
equity interests therein) entered into in the ordinary course of business;


 


(m)          contracts
entered into in the ordinary course of business, not relating to Indebtedness,
and that do not, individually or in the aggregate, detract from the value of
any assets of Parent or any Restricted Subsidiary in any manner material to
Parent or any Restricted Subsidiary;


 


(n)           Indebtedness
or other contractual requirements of a Receivables Subsidiary in connection
with a Qualified Receivables Transaction; provided that
such restrictions apply only to such Receivables Subsidiary; or


 


(o)           an
agreement governing Indebtedness incurred to Refinance the Indebtedness issued,
assumed or incurred pursuant to an agreement referred to in clause (b), (d),
(e), (k) or (n) above; provided that
the encumbrances or restrictions contained in any such Indebtedness are no less
favorable to the Holders than the encumbrances or restrictions contained in
agreements referred to in such clause (b), (d), (e), (k) or (n), as determined
in good faith by the Board of Directors of Parent.


 


SECTION 4.16.              Additional
Subsidiary Guarantees.


 


(a)           If,
after the date of this Indenture, (a) any Restricted Subsidiary becomes an
obligor (whether as borrower or guarantor) under the Credit Agreement, or (b) any
Unrestricted Subsidiary is redesignated a Restricted Subsidiary in accordance
with the definition of “Unrestricted Subsidiary,” and such Restricted
Subsidiary is an obligor (whether as borrower or guarantor) under the Credit
Agreement, then, in any such case, Parent shall cause such Restricted
Subsidiary to:


 


(i)      execute and deliver to the
Trustee (i) a supplemental indenture in form and substance satisfactory to
the Trustee pursuant to which such Restricted Subsidiary shall unconditionally
guarantee all of the Company’s obligations under the Securities and this
Indenture on the terms set forth in Article Eleven, and  (ii) a notation of Guarantee set forth in
Exhibit E hereto; provided,
however, that such Guarantor’s Guarantee
may contain limitations substantially consistent with any limitations contained
in such Guarantor’s guarantee of Indebtedness under the Credit Agreement; and


 


(ii)     deliver
to the Trustee one or more opinions of counsel that such supplemental indenture
(and such Guarantee) (i) has been duly authorized, executed and delivered
by such Restricted Subsidiary and (ii) constitutes a valid and legally
binding obligation of such Restricted Subsidiary, enforceable against such
Restricted Subsidiary in accordance with its terms, subject, in the case of
clause (ii), to (a) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors’ rights generally,


 


53





















 


(b) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (c) in the
case of any Restricted Subsidiary organized outside of the United States, such
other qualifications as are customary under the laws of its jurisdiction of
organization.


 


(b)           Notwithstanding
the foregoing, (x) any Restricted Subsidiary that is not an obligor
(whether as borrower or guarantor) with respect to the Credit Agreement shall
not be required to become a Guarantor, (y) in the event that a Restricted
Subsidiary is a borrower under the Credit Agreement but it is illegal under the
laws of any jurisdiction outside the United States for such Restricted
Subsidiary to execute an unconditional guarantee, such guarantee shall be
limited to the extent that it would be allowed under applicable law and (z) in
the event that it is illegal under the laws of any jurisdiction outside the
United States for a Restricted Subsidiary to become a Guarantor, such
Restricted Subsidiary shall not be required to become a Guarantor.


 


SECTION 4.17.              Limitation
on Preferred Stock of Non-Guarantors.


 


Parent will not cause or permit any of its
Restricted Subsidiaries that is not the Company or a Guarantor to issue any
Preferred Stock (other than to the Company, Parent or a Wholly Owned Guarantor)
or permit any Person (other than the Company, Parent or a Wholly Owned
Guarantor) to own any Preferred Stock of any Restricted Subsidiary of Parent
that is not the Company or a Guarantor.


 


SECTION 4.18.              Prohibition
on Incurrence of Senior Subordinated Debt.


 


Parent will not, and will not cause or permit
the Company or any Restricted Subsidiary that is a Guarantor to, incur or
suffer to exist Indebtedness that is senior in right of payment to the
Securities or such Guarantor’s Guarantee, as the case may be, and subordinate
in right of payment to any other Indebtedness of the Company or such Guarantor,
as the case may be.


 


SECTION 4.19.              Reports
to Holders.


 


(a)           Whether
or not required by the rules and regulations of the Commission, so long as
any Securities are outstanding, Parent will file with the Commission, and
furnish, or caused to be furnished to the Holders, copies of:


 


(i)            all
quarterly and annual reports that would be required to be filed with the
Commission on Forms 10-K and 10-Q (or successor forms) if Parent were required
to file such reports (or Forms 20-F and 6-K (or successor forms) if Parent
would qualify as a “foreign private issuer” as defined in Rule 405 under
the Securities Act), which, in the case of annual reports, shall include a
report thereon by Parent’s certified independent accounts; and


 


(ii)           all
current reports that would be required to be filed with the Commission on Form 8-K
(or successor form) if Parent were required to file such reports (or Form 6-K
(or successor form) if Parent would qualify as a “foreign private issuer” as
defined in Rule 405 under the Securities Act),


 


in each case within 15 days of the time
periods specified for filing of such reports in the Commission’s rules and
regulations.


 


54





















 


(b)           In
addition, for so long as any Securities remain outstanding, Parent will furnish
to the Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.


 


(c)           Delivery
of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers’ Certificates).


 


ARTICLE FIVE


 


SUCCESSOR
CORPORATION


 


SECTION 5.01.              Merger,
Consolidation and Sale of Assets.


 


(A)          Parent
will not, in a single transaction or series of related transactions,
consolidate or merge with or into any Person, or Transfer (or cause or permit
any Restricted Subsidiary of Parent to Transfer) all or substantially all of
Parent’s assets (determined on a consolidated basis for Parent and its
Subsidiaries) whether as an entirety or substantially as an entirety to any
Person, unless:


 


(1)           either:


 


(a)           Parent shall be the
surviving or continuing corporation; or


 


(b)           the
Person (if other than Parent) formed by such consolidation or into which Parent
is merged or the Transferee of such assets (the “Parent Surviving Entity”):


 


(x)            shall
be a corporation or limited liability company (or its equivalent thereof under
foreign law) organized and validly existing under the laws of The Netherlands,
England or the United States or any State thereof or the District of Columbia;
and


 


(y)           shall
expressly assume, by supplemental indenture (in form and substance satisfactory
to the Trustee), executed and delivered to the Trustee, all of the obligations
of Parent on its Guarantee and the performance of every covenant of Parent’s
Guarantee, this Indenture, the Escrow Agreement and the Registration Rights
Agreement on the part of Parent to be performed or observed;


 


(2)           unless
such transaction is with a Wholly Owned Restricted Subsidiary, immediately
after giving effect to such transaction and the assumption contemplated by
clause (A)(1)(b)(y) above (including giving effect to any Indebtedness incurred
or anticipated to be incurred in connection with or in respect of such
transaction), Parent or the Parent Surviving Entity, as the case may be, shall
be able to incur at least $1.00 of additional Indebtedness pursuant to the
Coverage Ratio Exception;


 


55





















 


(3)           immediately
before and immediately after giving effect to such transaction and the
assumption contemplated by clause (A)(1)(b)(y) above (including giving effect
to any Indebtedness incurred or anticipated to be incurred and any Lien granted
in connection with or in respect of the transaction), no Default shall have
occurred or be continuing; and


 


(4)           Parent
or the Parent Surviving Entity shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such transaction and,
if a supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article Five and that all
conditions precedent in this Indenture relating to such transaction have been
satisfied.


 


For purposes of the foregoing, the Transfer
in a single transaction or series of related transactions of all or
substantially all of the assets of one or more Restricted Subsidiaries of
Parent, the Capital Stock of which constitutes all or substantially all of the
assets of Parent (determined on a consolidated basis for Parent and its
Subsidiaries), shall be deemed to be the Transfer of all or substantially all
of the assets of Parent.


 


Upon any consolidation or merger in which
Parent is not the continuing corporation, or any Transfer of all or
substantially all of the assets of Parent in accordance with the foregoing, the
Parent Surviving Entity shall succeed to, and be substituted for, and may
exercise every right and power of, Parent under its Guarantee, this Indenture
and the Registration Rights Agreement with the same effect as if such Parent
Surviving Entity had been named as such.


 


(B)           The
Company will not, in a single transaction or series of related transactions,
consolidate or merge with or into any Person, or Transfer (or cause or permit
any Restricted Subsidiary of the Company to Transfer) all or substantially all
of the Company’s assets (determined on a consolidated basis for the Company and
its Subsidiaries) whether as an entirety or substantially as an entirety to any
Person, unless:


 


(1)           either:


 


(a)           the Company shall be
the surviving or continuing corporation; or


 


(b)           the
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or the Transferee of such assets (the “Company Surviving
Entity”):


 


(x)            shall
be a corporation or limited liability company organized and validly existing
under the laws of the United States or any State thereof or the District of Columbia;
and


 


(y)           shall
expressly assume, by supplemental indenture (in form and substance satisfactory
to the Trustee), executed and delivered to the Trustee, the due and punctual
payment of the principal of, and premium, if any, and interest on all of the
Securities and the performance of every covenant of the Securities, this
Indenture, the Escrow Agreement and the Registration Rights Agreement on the
part of the Company to be performed or observed;


 


(2)           unless
such transaction is with Parent or a Wholly Owned Restricted Subsidiary,
immediately after giving effect to such transaction and the assumption
contemplated by clause


 


56





















 


(B)(1)(b)(y) above (including giving effect
to any Indebtedness incurred or anticipated to be incurred in connection with
or in respect of such transaction), Parent could satisfy the provisions of
paragraph (A)(2) above;


 


(3)           immediately
before and immediately after giving effect to such transaction and the
assumption contemplated by clause (B)(1)(b)(y) above (including giving effect
to any Indebtedness incurred or anticipated to be incurred and any Lien granted
in connection with or in respect of the transaction), no Default shall have
occurred or be continuing; and


 


(4)           the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such transaction and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture comply with this Article Five and that all conditions precedent
in this Indenture relating to such transaction have been satisfied.


 


For purposes of the foregoing, the Transfer
in a single transaction or series of related transactions of all or
substantially all of the assets of one or more Restricted Subsidiaries of the
Company, the Capital Stock of which constitutes all or substantially all of the
assets of the Company (determined on a consolidated basis for the Company and
its Subsidiaries), shall be deemed to be the Transfer of all or substantially
all of the assets of the Company.


 


Upon any consolidation or merger in which the
Company is not the continuing corporation or any Transfer of all or
substantially all of the assets of the Company in accordance with the
foregoing, the Company Surviving Entity shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under the
Securities, this Indenture and the Registration Rights Agreement with the same
effect as if such Company Surviving Entity had been named as such.


 


(C)           No
Guarantor (other than Parent) will, and Parent will not cause or permit any
such Guarantor to, consolidate with or merge with or into any Person unless:


 


(1)           either:


 


(a)           such
Guarantor shall be the surviving or continuing corporation; or


 


(b)           the
Person (if other than such Guarantor) formed by such consolidation or into
which such Guarantor is merged shall expressly assume, by supplemental
indenture (in form and substance satisfactory to the Trustee), executed and
delivered to the Trustee, all of the obligations of such Guarantor on its
Guarantee and the performance of every covenant of such Guarantor’s Guarantee,
this Indenture and the Registration Rights Agreement on the part of such
Guarantor to be performed or observed;


 


(2)           unless
such transaction is with Parent or a Wholly Owned Restricted Subsidiary,
immediately after giving effect to such transaction and the assumption
contemplated by clause (C)(1)(b) above (including giving effect to any
Indebtedness incurred or anticipated to be incurred in connection with or in
respect of such transaction), Parent could satisfy the provisions of paragraph
(A)(2) above;


 


(3)           immediately
before and immediately after giving effect to such transaction and the
assumption contemplated by clause (C)(1)(b) above (including giving effect
to any Indebtedness


 


57





















 


incurred or anticipated to be incurred and
any Lien granted in connection with or in respect of the transaction), no
Default shall have occurred or be continuing; and


 


(4)           Parent
shall have delivered to the Trustee an Officers’ Certificate and an opinion of
counsel, each stating that such transaction and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with this Article Five and that all conditions precedent in this
Indenture relating to such transaction have been satisfied.


 


The requirements of this paragraph (C) shall
not apply to (x) a consolidation or merger of any Guarantor with and into the
Company or any Guarantor, so long as the Company or a Guarantor survives such
consolidation or merger, or (y) a Transfer of any Guarantor that complies with Section 4.13.


 


ARTICLE SIX


 


DEFAULT AND
REMEDIES


 


SECTION 6.01.              Events
of Default.


 


The following events are defined as “Events
of Default”:


 


(a)           the
failure to pay interest on any Securities when the same becomes due and payable
and the default continues for a period of 30 days (whether or not such payment
shall be prohibited by Article Ten or Article Twelve);


 


(b)           the
failure to pay the principal on any Securities, when such principal becomes due
and payable, at maturity, upon redemption or otherwise (including the failure
to make a payment to purchase Securities tendered pursuant to a Change of Control
Offer or a Net Proceeds Offer) (whether or not such payment shall be prohibited
by Article Ten or Article Twelve);


 


(c)           a
default in the observance or performance of any other covenant or agreement
contained in this Indenture which default continues for a period of 60 days
after Parent receives written notice specifying the default (and demanding that
such default be remedied) from the Trustee or the Holders (with a copy to the
Trustee) of at least 25% of the outstanding principal amount of the Securities
(except in the case of a default under Article Five, which will constitute
an Event of Default with such notice requirement but without such passage of
time requirement);


 


(d)           the
failure to pay at final maturity (giving effect to any applicable grace periods
and any extensions thereof) the principal amount of any Indebtedness of Parent
or any of its Restricted Subsidiaries, or the acceleration of the final stated
maturity of any such Indebtedness (which acceleration is not rescinded,
annulled or otherwise cured within 30 days of receipt by Parent or such
Restricted Subsidiary of notice of any such acceleration) if the aggregate
principal amount of such Indebtedness, together with the principal amount of
any other such Indebtedness in default for failure to pay principal at final
maturity or which has been accelerated (in each case with respect to which the
30-day period described above has elapsed), aggregates $25.0 million or more at
any time;


 


58





















 


(e)           one
or more judgments in an aggregate amount in excess of $25.0 million shall have
been rendered against Parent, the Company or any of Parent’s Significant
Subsidiaries and such judgments remain undischarged, unpaid or unstayed for a
period of 60 days after such judgment or judgments become final and
non-appealable;


 


(f)            the
Company, Parent or any of Parent’s Significant Subsidiaries (i) commences
a voluntary case or proceeding under any Bankruptcy Law with respect to itself,
(ii) consents to the entry of a judgment, decree or order for relief
against it in an involuntary case or proceeding under any Bankruptcy Law, (iii) consents
to the appointment of a Custodian of it or for substantially all of its
property, (iv) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it, (v) makes a general
assignment for the benefit of its creditors or (vi) takes any corporate
action to authorize or effect any of the foregoing;


 


(g)           a
court of competent jurisdiction enters a judgment, decree or order for relief
in respect of the Company, Parent or any of Parent’s Significant Subsidiaries
in an involuntary case or proceeding under any Bankruptcy Law, which shall (i) approve
as properly filed a petition seeking reorganization, arrangement, adjustment or
composition in respect of the Company, Parent or any of Parent’s Significant
Subsidiaries, (ii) appoint a Custodian of the Company, Parent or any of
Parent’s Significant Subsidiaries or for substantially all of any of its
property or (iii) order the winding-up or liquidation of its affairs; and
such judgment, decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or


 


(h)           (x)
the Guarantee of Parent or any Significant Subsidiary ceases to be in full force
and effect (other than by reason of release of such Guarantor from its
Guarantee in accordance with the terms of this Indenture), is declared to be
null and void and unenforceable or is found to be invalid, or (y) any Guarantor
denies its liability under its Guarantee (other than by reason of release of
such Guarantor from its Guarantee in accordance with the terms of this Indenture).


 


SECTION 6.02.              Acceleration.


 


If an Event of Default (other than an Event of Default specified in Section 6.01(f) or
(g) with respect to Parent or the Company) shall occur and be continuing,
the Trustee or the Holders of at least 25% in principal amount of outstanding
Securities may declare the principal of and accrued interest on all the
Securities to be due and payable by notice in writing to the Company and the
Trustee specifying the respective Event of Default and that it is a “notice of
acceleration” (the “Acceleration Notice”), and the same:


 


(x)            shall
become immediately due and payable; or


 


(y)           if
there are any amounts outstanding under the Credit Agreement, shall become
immediately due and payable upon the first to occur of an acceleration under
the Credit Agreement or 5 business days after receipt by the Company and the
Representative under the Credit Agreement of such Acceleration Notice but only
if such Event of Default is then continuing.


 


If an Event of Default specified in either clause (f) or (g) above
with respect to Parent or the Company occurs and is continuing, then all unpaid
principal of, and premium, if any, and accrued and unpaid interest on all of
the outstanding Securities shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.


 


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At any time after
a declaration of acceleration with respect to the Securities as described in
the preceding paragraph, the Holders of a majority in principal amount of the
Securities may rescind and cancel such declaration and its consequences:


 


(a)           if
the rescission would not conflict with any judgment or decree;


 


(b)           if
all existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration;


 


(c)           to
the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid;


 


(d)           if
the Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements and advances; and


 


(e)           in
the event of the cure or waiver of an Event of Default of the type set forth in
Section 6.01(f) or (g), the Trustee shall have received an Officers’
Certificate and an Opinion of Counsel that such Event of Default has been cured
or waived.


 


No such rescission shall affect any
subsequent Default or impair any right consequent thereto.


 


SECTION 6.03.              Other
Remedies.


 


If an Event of
Default occurs and is continuing, the Trustee may pursue any available remedy
by proceeding at law or in equity to collect the payment of principal of or
interest on the Securities or to enforce the performance of any provision of
the Securities or this Indenture.


 


The Trustee may
maintain a proceeding even if it does not possess any of the Securities or does
not produce any of them in the proceeding. 
A delay or omission by the Trustee or any Securityholder in exercising
any right or remedy accruing upon an Event of Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the Event of
Default.  No remedy is exclusive of any
other remedy.  All available remedies are
cumulative to the extent permitted by law.


 


SECTION 6.04.              Waiver
of Past Defaults.


 


The Holders of a
majority in principal amount of the outstanding Securities by notice to the
Trustee may waive an existing Default or Event of Default and its consequences,
except a Default in the payment of principal of or interest on any Security as
specified in Sections 6.01(a) or (b). 
The Company shall deliver to the Trustee an Officers’ Certificate
stating that the requisite percentage of Holders have consented to such waiver
and attaching copies of such consents. 
When a Default is waived, it is cured and ceases.


 


SECTION 6.05.              Control
by Majority.


 


The Holders of not
less than a majority in principal amount of the outstanding Securities may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it.  Subject to Section 7.01, however, the
Trustee may refuse to follow any direction that conflicts with any law or this
Indenture, that the Trustee determines


 


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may be unduly prejudicial to the rights of
another Securityholder, or that may involve the Trustee in personal liability; provided that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.


 


In the event the
Trustee takes any action or follows any direction pursuant to this Indenture,
the Trustee shall be entitled to indemnification against any loss or expense
caused by taking such action or following such direction.


 


SECTION 6.06.              Limitation
on Suits.


 


A Securityholder
may not pursue any remedy with respect to this Indenture or the Securities
unless:


 


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


 


(b)           the Holder or Holders
of at least 25% in principal amount of the outstanding Securities make a
written request to the Trustee to pursue the remedy;


 


(c)           such Holder or Holders
offer and provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;


 


(d)           the Trustee does not
comply with the request within 45 days after receipt of the request and the
offer and the provision of indemnity; and


 


(e)           during such 45-day
period the Holder or Holders of a majority in principal amount of the
outstanding Securities do not give the Trustee a direction which, in the
opinion of the Trustee, is inconsistent with the request.


 


A Securityholder
may not use this Indenture to prejudice the rights of another Securityholder or
to obtain a preference or priority over such other Securityholder.


 


SECTION 6.07.              Rights
of Holders To Receive Payment.


 


Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and interest on a Security, on or after the respective
due dates expressed in such Security, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of the Holder.


 


SECTION 6.08.              Collection
Suit by Trustee.


 


If an Event of
Default in payment of principal or interest specified in Section 6.01(a) or
(b) occurs and is continuing, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Company or any other
obligor on the Securities for the whole amount of principal and accrued
interest and fees remaining unpaid, together with interest on overdue principal
and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per  annum
borne by the Securities and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.


 


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SECTION 6.09.              Trustee
May File Proofs of Claim.


 


The Trustee may
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and the Securityholders allowed in any judicial proceedings
relating to the Company, its creditors or its property and shall be entitled
and empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and any Custodian in
any such judicial proceedings is hereby authorized by each Securityholder to
make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Securityholders, to pay
to the Trustee any amount due to it for the compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.07.  Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Securityholder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.


 


SECTION 6.10.              Priorities.


 


If the Trustee
collects any money or property pursuant to this Article Six, it shall pay
out the money or property in the following order:


 


First: 
to the Trustee for amounts due under Section 7.07;


 


Second: 
to Holders for interest accrued on the Securities, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Securities for interest;


 


Third: 
to Holders for principal amounts due and unpaid on the Securities,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Securities for principal; and


 


Fourth: 
to the Company or, if applicable, the Guarantors, as their respective
interests may appear.


 


The Trustee, upon
prior notice to the Company, may fix a record date and payment date for any
payment to Securityholders pursuant to this Section 6.10.


 


SECTION 6.11.              Undertaking
for Costs.


 


In any suit for
the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court
in its discretion may require the filing by any party litigant in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in the suit, having due regard to the merits and
good faith of the claims or defenses made by the party litigant.  This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a
suit by a Holder or Holders of more than 10% in principal amount of the
outstanding Securities.


 


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ARTICLE SEVEN


 


TRUSTEE


 


SECTION 7.01.              Duties
of Trustee.


 


(a)           If
a Default or an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.


 


(b)           Except
during the continuance of a Default or an Event of Default:


 


(i)            The
Trustee need perform only those duties as are specifically set forth herein or
in the TIA and no duties, covenants, responsibilities or obligations shall be
implied in this Indenture against the Trustee.


 


(ii)           In
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates (including Officers’ Certificates) or opinions
(including Opinions of Counsel) furnished to the Trustee and conforming to the
requirements of this Indenture.  However,
in the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or not they conform
to the requirements of this Indenture.


 


(c)           Notwithstanding
anything to the contrary herein, the Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:


 


(i)            This
paragraph does not limit the effect of paragraph (b) of this Section 7.01.


 


(ii)           The
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.


 


(iii)          The
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.


 


(d)           No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder or to take or omit to take any action under this Indenture
or take any action at the request or direction of Holders if it shall have
reasonable grounds for believing that repayment of such funds is not assured to
it.


 


(e)           Every
provision of this Indenture that in any way relates to the Trustee is subject
to this Section 7.01.


 


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(f)            The
Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Company.  Money held in trust by the Trustee need not
be segregated from other funds except to the extent required by law.


 


(g)           In
the absence of bad faith, negligence or willful misconduct on the part of the
Trustee, the Trustee shall not be responsible for the application of any money
by any Paying Agent other than the Trustee.


 


SECTION 7.02.              Rights
of Trustee.


 


Subject to Section 7.01:


 


(a)           The
Trustee may rely conclusively on any document (whether in original or facsimile
form) believed by it to be genuine and to have been signed or presented by the
proper Person.  The Trustee need not
investigate any fact or matter stated in the document.


 


(b)           Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate and an Opinion of Counsel, which shall conform to the provisions of
Section 13.05.  The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such certificate or opinion.


 


(c)           The
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent (other than an agent who is an
employee of the Trustee) appointed with due care.


 


(d)           The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it reasonably believes to be authorized or within its rights or
powers.


 


(e)           The
Trustee may consult with counsel of its selection and the advice or opinion of
such counsel as to matters of law shall be full and complete authorization and
protection from liability in respect of any action taken, omitted or suffered
by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.


 


(f)            The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Holders pursuant to the provisions of this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity satisfactory to it
against the costs, expenses and liabilities which may be incurred therein or
thereby.


 


(g)           The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate (including any Officers’ Certificate),
statement, instrument, opinion (including any Opinion of Counsel), notice,
request, direction, consent, order, bond, debenture, or other paper or
document, but the Trustee may make such further inquiry or investigation into
such facts or matters as it may see fit and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled, upon
reasonable notice to the Company, to examine the books, records, and premises
of the Company, personally or by agent or attorney at the sole cost of the
Company.


 


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(h)           The
Trustee shall not be required to give any bond or surety in respect of the performance
of its powers and duties hereunder.


 


(i)            The
permissive rights of the Trustee to do things enumerated in this Indenture
shall not be construed as duties.


 


(j)            The
Trustee shall not be deemed to have notice of any Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written notice of
any event which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture.


 


(k)           The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and to each agent, custodian and other Person employed to act hereunder.


 


(l)            the
Trustee may request that the Company deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such
time to take specified actions pursuant to this Indenture, which Officers’
Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.


 


SECTION 7.03.              Individual
Rights of Trustee.


 


The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company, its Subsidiaries, or their respective
Affiliates with the same rights it would have if it were not Trustee.  Any Agent may do the same with like
rights.  However, the Trustee must comply
with Sections 7.10 and 7.11.


 


SECTION 7.04.              Trustee’s
Disclaimer.


 


The Trustee shall
not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company’s use of the proceeds from the Securities, and it shall not be
responsible for any statement of the Company in this Indenture or any document
issued in connection with the sale of Securities or any statement in the
Securities other than the Trustee’s certificate of authentication.  The Trustee makes no representations with
respect to the effectiveness or adequacy of this Indenture.


 


SECTION 7.05.              Notice
of Default.


 


If a Default
occurs and is continuing and the Trustee receives actual notice of such
Default, the Trustee shall mail to each Securityholder notice of the uncured
Default within 60 days after such Default occurs.  Except in the case of a Default in payment of
principal of, or interest on, any Security, including an accelerated payment
and the failure to make payment on the Change of Control Payment Date pursuant
to a Change of Control Offer or the Net Proceeds Offer Payment Date pursuant to
a Net Proceeds Offer, the Trustee may withhold the notice if and so long as the
Board of Directors, the executive committee, or a trust committee of directors
and/or Responsible Officers, of the Trustee in good faith determines that
withholding the notice is in the interest of the Securityholders.


 


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SECTION 7.06.              Reports
by Trustee to Holders.


 


Within 60 days
after each February 15, beginning with February 15, 2005, the Trustee
shall, to the extent that any of the events described in TIA § 313(a) occurred
within the previous twelve months, but not otherwise, mail to each
Securityholder a brief report dated as of such date that complies with TIA § 313(a).  The Trustee also shall comply with TIA §§ 313(b),
313(c) and 313(d).


 


A copy of each
report at the time of its mailing to Securityholders shall be mailed to the
Company and filed with the Commission and each securities exchange, if any, on
which the Securities are listed.


 


The Company shall
notify the Trustee if the Securities become listed on any securities exchange
or of any delisting thereof and the Trustee shall comply with TIA § 313(d).


 


SECTION 7.07.              Compensation
and Indemnity.


 


The Company shall
pay to the Trustee from time to time such compensation as the Company and the
Trustee shall from time to time agree in writing for its services
hereunder.  The Trustee’s compensation
shall not be limited by any law on compensation of a trustee of an express
trust.  The Company shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
(including reasonable fees and expenses of counsel) incurred or made by it in
addition to the compensation for its services, except any such disbursements,
expenses and advances as may be attributable to the Trustee’s negligence, bad
faith or willful misconduct.  Such
expenses shall include the reasonable fees and expenses of the Trustee’s agents
and counsel.


 


The Company and
the Guarantors, jointly and severally, shall indemnify each of the Trustee or
any predecessor Trustee and its agents, employees, officers, stockholders and
directors for, and hold them harmless against, any and all loss, damage, claims
including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee), liability or expense incurred by them except for such
actions to the extent caused by any negligence, bad faith or willful misconduct
on their part, arising out of or in connection with the acceptance or
administration of this trust including the reasonable costs and expenses of
defending themselves against or investigating any claim (whether asserted by
the Company, the Holders or any other Person) or liability in connection with
the exercise or performance of any of the Trustee’s rights, powers or duties hereunder.  The Trustee shall notify the Company promptly
of any claim asserted against the Trustee or any of its agents, employees,
officers, stockholders and directors for which it may seek indemnity.  The Company may, subject to the approval of
the Trustee, defend the claim and the Trustee shall cooperate in the
defense.  The Trustee and its agents,
employees, officers, stockholders and directors subject to the claim may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel; provided, however,
that the Company will not be required to pay such fees and expenses if, subject
to the approval of the Trustee, it assumes the Trustee’s defense and there is
no conflict of interest between the Company and the Trustee and its agents,
employees, officers, stockholders and directors subject to the claim in
connection with such defense as reasonably determined by the Trustee.  The Company need not pay for any settlement
made without its written consent which consent shall not be unreasonably
withheld.  The Company need not reimburse
any expense or indemnify against any loss or liability to the extent incurred
by the Trustee through its own negligence, bad faith or willful misconduct.


 


To secure the
Company’s payment obligations in this Section 7.07, the Trustee shall have
a senior claim prior to the Securities against all money or property held or
collected by the Trustee, in its


 


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capacity as Trustee.  The obligations of the Company and the
Guarantors under this Section shall not be subordinated to the payment of
Senior Debt pursuant to Article Ten or Article Twelve except assets
or money held in trust to pay principal of or interest on particular
Securities.


 


When the Trustee
incurs expenses or renders services after an Event of Default specified in Section 6.01(f) or
(g) occurs, such expenses and the compensation for such services shall be
paid to the extent allowed under any Bankruptcy Law.


 


Notwithstanding
any other provision in this Indenture, the foregoing provisions of this Section 7.07
shall survive the satisfaction and discharge of this Indenture or the
appointment of a successor Trustee.


 


SECTION 7.08.              Replacement
of Trustee.


 


The Trustee may
resign at any time by so notifying the Company in writing.  The Holders of a majority in principal amount
of the outstanding Securities may remove the Trustee by so notifying the
Company and the Trustee and may appoint a successor Trustee.  The Company may remove the Trustee if:


 


(a)           the
Trustee fails to comply with Section 7.10;


 


(b)           the
Trustee is adjudged a bankrupt or an insolvent;


 


(c)           a
receiver or other public officer takes charge of the Trustee or its property;
or


 


(d)           the
Trustee becomes incapable of acting.


 


If the Trustee
resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall notify each Holder of such event and shall promptly
appoint a successor Trustee.  Within one
year after the successor Trustee takes office, the Holders of a majority in
principal amount of the Securities may appoint a successor Trustee to replace
the successor Trustee appointed by the Company.


 


A successor
Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company.  Immediately
after that, the retiring Trustee shall transfer, after payment of all sums then
owing to the Trustee pursuant to Section 7.07, all property held by it as
Trustee to the successor Trustee, subject to the Lien provided in Section 7.07,
the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture.  A
successor Trustee shall mail notice of its succession to each Securityholder.


 


If a successor
Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of at least 10%
in principal amount of the outstanding Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee at the
expense of the Company.


 


If the Trustee
fails to comply with Section 7.10, any Securityholder may petition any
court of competent jurisdiction for the removal of the Trustee and the appointment
of a successor Trustee.


 


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Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the Company’s
obligations under Section 7.07 shall continue for the benefit of the
retiring Trustee.


 


SECTION 7.09.              Successor
Trustee by Merger, Etc.


 


If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the resulting,
surviving or transferee corporation without any further act shall, if such
resulting, surviving or transferee corporation is otherwise eligible hereunder,
be the successor Trustee; provided that
such corporation shall be otherwise qualified and eligible under this Article Seven.


 


SECTION 7.10.              Eligibility;
Disqualification.


 


This Indenture
shall always have a Trustee who satisfies the requirement of TIA §§ 310(a)(1),
310(a)(2) and 310(a)(5).  The
Trustee shall have a combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report of condition.  In addition, if the Trustee is a corporation
included in a bank holding company system, the Trustee, independently of the
bank holding company, shall meet the capital requirements of TIA § 310(a)(2).  The Trustee shall comply with TIA § 310(b);
provided, however,
that there shall be excluded from the operation of TIA § 310(b)(1) any
indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are outstanding,
if the requirements for such exclusion set forth in TIA § 310(b)(1) are
met.  The provisions of TIA § 310
shall apply to the Company and any other obligor of the Securities.


 


SECTION 7.11.              Preferential
Collection of Claims Against Company.


 


The Trustee, in
its capacity as Trustee hereunder shall comply with TIA § 311(a),
excluding any creditor relationship listed in TIA § 311(b).  A Trustee who has resigned or been removed
shall be subject to TIA § 311(a) to the extent indicated.


 


ARTICLE EIGHT


 


DISCHARGE OF
INDENTURE; DEFEASANCE


 


SECTION 8.01.              Termination
of the Company’s Obligations.


 


This Indenture
will be discharged and will cease to be of further effect as to all Securities
issued hereunder, except those obligations referred to in the penultimate
paragraph of this Section 8.01, if all Securities previously authenticated
and delivered (other than destroyed, lost or stolen Securities which have been
replaced or paid or Securities for whose payment U.S. Legal Tender has
theretofore been deposited with the Trustee or the Paying Agent in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company, as provided in Section 8.05) have been delivered to the Trustee
for cancellation and the Company has paid all sums payable by it hereunder, or
if:


 


(a)           either
(i) pursuant to Article Three, the Company shall have given notice to
the Trustee and mailed a notice of redemption to each Holder of the redemption
of all of the Securities in accordance with the provisions hereof or (ii) all
Securities have otherwise become due and payable or will become due and payable
within one (1) year hereunder;


 


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(b)           the
Company shall have irrevocably deposited or caused to be deposited with the
Trustee or a trustee satisfactory to the Trustee, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the Trustee,
as trust funds in trust solely for the benefit of the Holders of that purpose,
U.S. Legal Tender in such amount as is sufficient without consideration of
reinvestment of such interest, to pay principal of, premium, if any, and
interest on the outstanding Securities to maturity or redemption; provided that the Trustee shall have been irrevocably instructed
to apply such U.S. Legal Tender to the payment of said principal, premium, if
any, and interest with respect to the Securities; and provided,
further, that from and after the time of
deposit, the money deposited shall not be subject to the rights of holders of
Senior Debt or Guarantor Senior Debt pursuant to the provisions of Article Ten
or Twelve, as the case may be;


 


(c)           no
Default or Event of Default with respect to this Indenture or the Securities
shall have occurred and be continuing on the date of such deposit or shall
occur as a result of such deposit and such deposit will not result in a breach
or violation of, or constitute a default under, the Indenture, the Credit
Agreement, any other material agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which it is bound;


 


(d)           the
Company shall have paid all other sums payable by it hereunder; and


 


(e)           the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent providing for or
relating to the satisfaction and discharge of the Company’s obligations under
the Securities and this Indenture have been complied with.


 


Subject to the next
sentence and notwithstanding the foregoing paragraph, the Company’s obligations
in Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 7.07, 8.05 and 8.06 shall
survive until the Securities are no longer outstanding pursuant to the last
paragraph of Section 2.08.  After
the Securities are no longer outstanding, only the Company’s obligations in
Sections 7.07, 8.05 and 8.06 shall survive such satisfaction and discharge.


 


After such
delivery or irrevocable deposit, the Trustee upon request shall acknowledge in
writing the discharge of the Company’s and the Guarantors’ obligations under
the Securities and this Indenture except for those surviving obligations
specified above.


 


SECTION 8.02.              Legal
Defeasance and Covenant Defeasance.


 


(a)           The
Company may, at its option by Board Resolution of the Board of Directors of the
Company, at any time, elect to have either paragraph (b) or (c) below
be applied to all outstanding Securities upon compliance with the conditions
set forth in Section 8.03.


 


(b)           Upon
the Company’s exercise under paragraph (a) hereof of the option applicable
to this paragraph (b), the Company and each of the Guarantors shall, subject to
the satisfaction of the conditions set forth in Section 8.03, be deemed to
have been discharged from their respective obligations with respect to all
outstanding Securities on the date the conditions set forth below are satisfied
(hereinafter, “Legal Defeasance”). 
For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Securities (including the Security Guarantees), which shall
thereafter be deemed to be “outstanding” only for the purposes of Section 8.04
and the other Sections of this Indenture referred to in (i) and (ii) below,
and to have satisfied all its other obligations under such Securities and this
Indenture (and the Trustee, on demand of and at the


 


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expense of the Company, shall execute proper instruments acknowledging
the same), and Holders of the Securities and any amounts deposited under Section 8.03
shall cease to be subject to any obligations to, or the rights of, any holder
of Senior Debt under Article Ten or otherwise, except for the following
provisions, which shall survive until otherwise terminated or discharged
hereunder:  (i) the rights of
Holders of outstanding Securities to receive solely from the trust fund
described in Section 8.04, and as more fully set forth in such Section,
payments in respect of the principal of premium, if any, and interest on such
Securities when such payments are due, (ii) the Company’s obligations with
respect to such Securities under Article Two and Section 4.02, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith and (iv) this Article Eight.  Subject to compliance with this Article Eight,
the Company may exercise its option under this paragraph (b) notwithstanding
the prior exercise of its option under paragraph (c) hereof.


 


(c)           Upon
the Company’s exercise under paragraph (a) hereof of the option applicable
to this paragraph (c), the Company and each of the Guarantors shall, subject to
the satisfaction of the conditions set forth in Section 8.03, be released
from their respective obligations under the covenants contained in Sections
4.03 (except to the extent relating to Parent or the Company), 4.04, 4.05,
4.07, 4.09 through 4.19 and Article Five with respect to the outstanding
Securities on and after the date the conditions set forth below are satisfied
(hereinafter, “Covenant Defeasance”), and the Securities (including the
Security Guarantees) shall thereafter be deemed not “outstanding” for the
purposes of any direction, waiver, consent or declaration or act of Holders
(and the consequences of any thereof) in connection with such covenants, but
shall continue to be deemed “outstanding” for all other purposes hereunder (it
being understood that such Securities shall not be deemed outstanding for
accounting purposes) and Holders of the Securities and any amounts deposited
under Section 8.03 shall cease to be subject to any obligations to, or the
rights of, any holder of Senior Debt under Article Ten or otherwise.  For this purpose, such Covenant Defeasance
means that, with respect to the outstanding Securities and Security Guarantees,
the Company and each of the Guarantors may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under Section 6.01(c),
but, except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby. 
In addition, upon the Company’s exercise under paragraph (a) hereof
of the option applicable to this paragraph (c), subject to the satisfaction of
the conditions set forth in Section 8.03, Sections 6.01(c), 6.01(d) and
6.01(e) shall not constitute Events of Default.


 


SECTION 8.03.              Conditions
to Legal Defeasance or Covenant Defeasance.


 


The following
shall be the conditions to the application of either Section 8.02(b) or
8.02(c) hereof to the outstanding Securities:


 


In order to
exercise either Legal Defeasance or Covenant Defeasance:


 


(a)           the
Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders, U.S. Legal Tender or Government Securities or a combination
thereof which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms, will provide, not later than
one day before the due date of any payment on the Securities, U.S. Legal Tender
in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal of,
premium, if any, and interest


 


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on the Securities on the stated date for payment thereof or on the
applicable redemption date, as the case may be;


 


(b)           in
the case of an election under Section 8.02(b) hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has been a change in
the applicable federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders will not
recognize income, gain or loss for federal income tax purposes as a result of
such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Legal Defeasance had not occurred;


 


(c)           in
the case of an election under Section 8.02(c), the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that the Holders of the Securities will
not recognize income, gain or loss for federal income tax purposes as a result
of such Covenant Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;


 


(d)           such
Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under this Indenture, the Credit
Agreement or any other material agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;


 


(e)           the
Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Company with the intent of preferring the
Holders over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the Company
or others; and


 


(f)            the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant Defeasance have been complied
with.


 


Notwithstanding
the foregoing, the Opinion of Counsel required by Section 8.03(b) need
not be delivered if all Securities not theretofore delivered to the Trustee for
cancellation (1) have become due and payable or (2) will become due
and payable on the maturity date within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company.


 


SECTION 8.04.              Application
of Trust Money.


 


The Trustee or
Paying Agent shall hold in trust U.S. Legal Tender or Government Securities
deposited with it pursuant to this Article Eight, and shall apply the
deposited U.S. Legal Tender and the money from Government Securities in accordance
with this Indenture to the payment of principal of and interest on the Securities.  The Trustee shall be under no obligation to
invest said U.S. Legal Tender or Government Securities except as it may agree
with the Company.


 


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The Company shall
pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the U.S. Legal Tender or Government Securities deposited
pursuant to Section 8.03 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the outstanding Securities.


 


Anything in this Article Eight
to the contrary notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon the Company’s request any U.S. Legal Tender or Government
Securities held by it as provided in Section 8.03 which, in the opinion of
a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.


 


SECTION 8.05.              Repayment
to the Company.


 


Subject to this Article Eight, the
Trustee and the Paying Agent shall promptly pay to the Company upon request any
excess U.S. Legal Tender or Government Securities held by them at any time and
thereupon shall be relieved from all liability with respect to such money.  The Trustee and the Paying Agent shall pay to
the Company upon request any money held by them for the payment of principal or
interest that remains unclaimed for one year; provided
that the Trustee or such Paying Agent, before being required to make any
payment, may at the expense of the Company cause to be published once in a
newspaper of general circulation in the City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that after
a date specified therein which shall be at least 30 days from the date of such
publication or mailing any unclaimed balance of such money then remaining will
be repaid to the Company.  After payment
to the Company, Holders entitled to such money must look to the Company for
payment as general creditors unless an applicable law designates another Person.


 


SECTION 8.06.              Reinstatement.


 


If the Trustee or Paying Agent is unable to
apply any U.S. Legal Tender or Government Securities in accordance with this Article Eight
by reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company’s obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Eight until such time as the Trustee or Paying
Agent is permitted to apply all such U.S. Legal Tender or Government Securities
in accordance with this Article Eight; provided that
if the Company has made any payment of interest on or principal of any
Securities because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to receive such
payment from the U.S. Legal Tender or Government Securities held by the Trustee
or Paying Agent.


 


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ARTICLE NINE


 


AMENDMENTS, SUPPLEMENTS AND WAIVERS


 


SECTION 9.01.              Without
Consent of Holders.


 


Subject to Section 9.03,
the Company, the Guarantors and the Trustee, together, may amend or supplement
this Indenture, the Securities or the Guarantees without notice to or consent
of any Securityholder:


 


(a)           to
cure any ambiguity, defect or inconsistency;


 


(b)           to
evidence the succession in accordance with Article Five hereof of another
Person to the Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities;


 


(c)           to
provide for uncertificated Securities in addition to or in place of
certificated Securities;


 


(d)           to
make any other change that does not adversely affect the rights of any Securityholders
hereunder in any material respect;


 


(e)           to
comply with any requirements of the Commission in connection with the
qualification of this Indenture under the TIA; or


 


(f)            to
add or release any Guarantor pursuant to the terms of this Indenture;


 


provided that the
Company has delivered to the Trustee an Opinion of Counsel and an Officers’
Certificate, each stating that such amendment or supplement complies with the
provisions of this Section 9.01.


 


SECTION 9.02.              With
Consent of Holders.


 


(a)           Subject
to Sections 6.07 and 9.03, the Company, the Guarantors and the Trustee, together,
with the written consent of the Holder or Holders of at least a majority in
aggregate principal amount of the outstanding Securities, may amend or
supplement this Indenture, the Securities or the Guarantees, without notice to
any other Securityholders.  Subject to
Sections 6.07 and 9.03, the Holder or Holders of a majority in aggregate principal
amount of the outstanding Securities may waive compliance with any provision of
this Indenture, the Securities or the Guarantees without notice to any other
Securityholders.


 


(b)           Notwithstanding
Section 9.02(a), without the consent of each Securityholder affected, no
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may:


 


(i)            reduce
the amount of Securities whose Holders must consent to an amendment, supplement
or waiver;


 


(ii)           reduce
the rate of or change or have the effect of changing the time for payment of
interest, including default interest, on any Securities;


 


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(iii)          reduce
the principal of or change or have the effect of changing the fixed maturity of
any Securities, or change the date on which any Securities may be subject to
redemption or repurchase, or reduce the redemption or purchase price therefor;


 


(iv)          make
any Securities payable in money other than that stated in the Securities;


 


(v)           make
any change in provisions of this Indenture protecting the right of each Holder
to receive payment of principal of and interest on such Security on or after
the due date thereof or to bring suit to enforce such payment, or permitting
Holders of a majority in principal amount of the Securities to waive Defaults;
or


 


(vi)          modify
or change any provision of this Indenture or the related definitions affecting
the subordination or ranking of the Securities or any Guarantee, in a manner
which adversely affects the Holders.


 


(c)           Notwithstanding
Section 9.02(a), without the consent of Holders of 75% of the aggregate
principal amount of the Securities outstanding, no amendment may release Parent
or any Guarantor that is a Significant Subsidiary of Parent from any of its
obligations under its Guarantee or this Indenture otherwise than in accordance
with the terms of this Indenture.


 


(d)           It
shall not be necessary for the consent of the Holders under this Section to
approve the particular form of any proposed amendment, supplement or waiver but
it shall be sufficient if such consent approves the substance thereof.


 


(e)           After
an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver.  Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.


 


SECTION 9.03.              Effect
on Senior Debt.


 


No amendment of,
or supplement or waiver to, this Indenture shall adversely affect the rights of
any holder of Senior Debt or Guarantor Senior Debt under the subordination
provisions of this Indenture or applicable to the Guarantees (including without
limitation the provisions of Articles Ten and Twelve hereof) without the
consent of such holder.


 


SECTION 9.04.              Compliance
with TIA.


 


From the date on
which this Indenture is qualified under the TIA, every amendment, waiver or
supplement of this Indenture, the Securities or the Guarantees shall comply
with the TIA as then in effect.


 


SECTION 9.05.              Revocation
and Effect of Consents.


 


Until an
amendment, waiver or supplement becomes effective, a consent to it by a Holder
is a continuing consent by the Holder and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting Holder’s
Security, even if notation of the consent is not made on any Security.  However, any such Holder or subsequent Holder
may revoke the consent as to his Security or portion of his Security by notice
to the Trustee or the Company received before the date on


 


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which the Trustee receives an Officers’ Certificate certifying that the
Holders of the requisite principal amount of Securities have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.


 


The Company may,
but shall not be obligated to, fix a record date for the purpose of determining
the Holders entitled to consent to any amendment, supplement or waiver which
record date shall be at least 30 days prior to the first solicitation of such
consent.  If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date.  No such consent shall be
valid or effective for more than 90 days after such record date.  The Company shall inform the Trustee in
writing of the fixed record date if applicable.


 


After an
amendment, supplement or waiver becomes effective, it shall bind every
Securityholder, unless it makes a change described in any of clauses (i) through
(vi) of Section 9.02(b), in which case, the amendment, supplement or
waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder’s Security; provided
that any such waiver shall not impair or affect the right of any Holder to
receive payment of principal of and interest on a Security, on or after the
respective due dates expressed in such Security, or to bring suit for the
enforcement of any such payment on or after such respective dates without the
consent of such Holder.


 


SECTION 9.06.              Notation
on or Exchange of Securities.


 


If an amendment,
supplement or waiver changes the terms of a Security, the Company may require
the Holder of the Security to deliver it to the Trustee.  The Company shall provide the Trustee with an
appropriate notation on the Security about the changed terms and cause the
Trustee to return it to the Holder at the Company’s expense.  Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.  Failure to make the appropriate notation or
issue a new Security shall not affect the validity and effect of such
amendment, supplement or waiver.


 


SECTION 9.07.              Trustee
To Sign Amendments, Etc.


 


The Trustee shall
execute any amendment, supplement or waiver authorized pursuant to this Article Nine;
provided that the Trustee may, but shall
not be obligated to, execute any such amendment, supplement or waiver which
affects the Trustee’s own rights, duties or immunities under this
Indenture.  The Trustee shall be provided
with, and shall be fully protected in relying upon, an Opinion of Counsel and
an Officers’ Certificate each stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Nine is authorized
or permitted by this Indenture and constituted the legal, valid and binding
obligations of the Company enforceable in accordance with its terms.  Such Opinion of Counsel shall be at the
expense of the Company.


 


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ARTICLE TEN


 


SUBORDINATION OF SECURITIES


 


SECTION 10.01.            Securities
Subordinated to Senior Debt.


 


Anything herein to
the contrary notwithstanding, the Company, for itself and its successors, and
each Holder, by his or her acceptance of Securities, agrees that the payment of
all Obligations owing to the Holders in respect of the Securities is
subordinated, to the extent and in the manner provided in this Article Ten,
to the prior payment in full in cash or Cash Equivalents, or such payment duly provided
for to the satisfaction of the holders of Senior Debt, of all Obligations on
Senior Debt (including the Obligations with respect to the Credit Agreement,
whether outstanding on the Issue Date or thereafter incurred).  Notwithstanding the foregoing, payments and
distributions made relating to the Securities from the trust established
pursuant to Article Eight shall not be so subordinated in right of
payment, so long as (i) the conditions specified in Article Eight
(without any waiver or modification of the requirement that the deposits
pursuant thereto do not conflict with the terms of the Credit Agreement or any
other Senior Debt or Guarantor Senior Debt) are satisfied on the date of any
deposit pursuant to said trust and (ii) such payments and distributions
did not violate the provisions of this Article Ten or Article Twelve
of this Indenture.


 


This Article Ten
shall constitute a continuing offer to all Persons who become holders of, or continue
to hold, Senior Debt, and such provisions are made for the benefit of the
holders of Senior Debt and such holders are made obligees hereunder and any one
or more of them may enforce such provisions.


 


SECTION 10.02.            Suspension
of Payment When Senior Debt Is in Default.


 


(a)           If
any default occurs and is continuing in the payment when due, whether at
maturity, upon any redemption, by declaration or otherwise, of any principal
of, interest on, unpaid drawings for letters of credit issued in respect of, or
regularly accruing fees with respect to, any Senior Debt (a “Payment Default”),
then no payment or distribution of any kind or character shall be made by or on
behalf of the Company or any other Person on its or their behalf with respect
to any Obligations on or relating to the Securities or to acquire any of the
Securities for cash or property or otherwise until the date on which all
Payment Defaults shall have been cured or waived or cease to exist or such
Senior Debt shall have been discharged or paid in full in cash or Cash
Equivalents.


 


(b)           If
any other event of default (other than a Payment Default) occurs and is
continuing with respect to any Designated Senior Debt (as such event of default
is defined in the instrument creating or evidencing such Designated Senior
Debt) permitting the holders of such Designated Senior Debt then outstanding to
accelerate the maturity thereof (a “Non-payment Default”) and if the
Representative for the respective issue of Designated Senior Debt gives notice
of the event of default to the Trustee stating that such notice is a payment
blockage notice (a “Payment Blockage Notice”), then during the period
(the “Payment Blockage Period”) beginning upon the delivery of such
Payment Blockage Notice and ending on the earlier of the 180th day after such
delivery and the date on which (x) all events of default with respect to
all Designated Senior Debt have been cured or waived or cease to exist,
(y) all Designated Senior Debt with respect to which any such event of
default has occurred and is continuing is discharged or paid in full in cash or
Cash Equivalents, or (z) the Trustee receives notice thereof from the
Representative for the respective issue of Designated Senior Debt terminating
the Payment Blockage Period, neither


 


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the Company nor any other
Person on its behalf shall (x) make any payment of any kind or character with
respect to any Obligations on or with respect to the Securities or (y) acquire
any of the Securities for cash or property or otherwise.  Notwithstanding anything herein to the
contrary, (x) in no event will a Payment Blockage Period extend beyond 180 days
from the date the applicable Payment Blockage Notice is received by the Trustee
and (y) only one such Payment Blockage Period may be commenced within any 360
consecutive days.  For all purposes of
this Section 10.02(b), no event of default which existed or was continuing
on the date of the commencement of any Payment Blockage Period with respect to
the Designated Senior Debt shall be, or be made, the basis for the commencement
of a second Payment Blockage Period by the Representative of such Designated
Senior Debt whether or not within a period of 360 consecutive days, unless such
event of default shall have been cured or waived for a period of not less than
90 consecutive days (it being acknowledged that any subsequent action, or any
breach of any financial covenants for a period ending after the date of commencement
of such Payment Blockage Period that, in either case, would give rise to an
event of default pursuant to any provisions under which an event of default
previously existed or was continuing shall constitute a new event of default
for this purpose).


 


(c)           The
foregoing Section 10.02(a) and (b) shall not apply to payments
and distributions made relating to the Securities from the trust established
pursuant to Article Eight, so long as (i) the conditions specified in
Article Eight (without any waiver or modification of the requirement that
the deposits pursuant thereto do not conflict with the terms of the Credit
Agreement or any other Senior Debt or Guarantor Senior Debt) are satisfied on
the date of any deposit pursuant to said trust and (ii) such payments and
distributions did not violate the provisions of this Article Ten when
made.


 


(d)           In
the event that, notwithstanding the foregoing, any payment shall be received by
the Trustee or any Holder when such payment is prohibited by the foregoing
provisions of this Section 10.02, such payment shall be held in trust for
the benefit of, and shall be paid over or delivered to, the holders of Senior
Debt (pro rata to such holders on the basis of the respective amount of Senior
Debt held by such holders) or their respective Representatives, as their
respective interests may appear.  The
Trustee shall be entitled to rely on information regarding amounts then due and
owing on the Senior Debt, if any, received from the holders of Senior Debt (or
their Representatives) or, if such information is not received from such
holders or their Representatives, from the Company and only amounts included in
the information provided to the Trustee shall be paid to the holders of Senior
Debt.


 


Nothing contained
in this Article Ten shall limit the right of the Trustee or the Holders of
Securities to take any action to accelerate the maturity of the Securities
pursuant to Section 6.02 or to pursue any rights or remedies hereunder; provided that all Senior Debt thereafter due or declared to
be due shall first be paid in full in cash or Cash Equivalents before the
Holders are entitled to receive any payment of any kind or character with respect
to Obligations on the Securities.


 


SECTION 10.03.          Securities
Subordinated to Prior Payment of All Senior Debt on Dissolution, Liquidation or
Reorganization of Company.


 


(a)           Upon
any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to creditors upon any total or partial
liquidation, dissolution, winding-up, reorganization, assignment for the
benefit of creditors or marshaling of assets and liabilities of the Company or
in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its assets, whether voluntary or
involuntary, all Obligations due or to become due upon all Senior Debt shall
first be paid in full in cash or Cash Equivalents, or such payment duly provided
for to the satisfaction of the holders of Senior Debt, before any payment or
distribution of any kind or character is made on account of any Obligations on
or relating to the Securities, or for the acquisition


 


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of any of the Securities for
cash or property or otherwise.  Upon any
such dissolution, winding-up, liquidation, reorganization, receivership or similar
proceeding, any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of the
Securities or the Trustee under this Indenture would be entitled, except for
the provisions hereof, shall be paid by the Company or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, or by the Holders or by the Trustee under this Indenture if
received by them, directly to the holders of Senior Debt (pro rata to such
holders on the basis of the respective amounts of Senior Debt held by such
holders) or their respective Representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Debt may have been
issued, as their respective interests may appear, for application to the
payment of Senior Debt remaining unpaid until all such Senior Debt has been
paid in full in cash or Cash Equivalents after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of Senior
Debt.


 


(b)           To
the extent any payment of Senior Debt (whether by or on behalf of the Company,
as proceeds of security or enforcement of any right of setoff or otherwise) is
declared to be fraudulent or preferential, set aside or required to be paid to
any receiver, trustee in bankruptcy, liquidating trustee, agent or other
similar Person under any bankruptcy, insolvency, receivership, fraudulent
conveyance or similar law, then, if such payment is recovered by, or paid over
to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other
similar Person, the Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.


 


It is further
agreed that any diminution (whether pursuant to court decree or otherwise,
including without limitation for any of the reasons described in the preceding
sentence) of the Company’s obligation to make any distribution or payment
pursuant to any Senior Debt, except to the extent such diminution occurs by
reason of the repayment (which has not been disgorged or returned) of such
Senior Debt in cash or Cash Equivalents, shall have no force or effect for
purposes of the subordination provisions contained in this Article Ten,
with any turnover of payments as otherwise calculated pursuant to this Article Ten
to be made as if no such diminution had occurred.


 


(c)           In
the event that, notwithstanding the foregoing, any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, shall be received by any Holder when such payment or distribution
is prohibited by this Section 10.03, such payment or distribution shall be
held in trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior Debt (pro rata to such holders on the basis of the respective
amount of Senior Debt held by such holders) or their respective
Representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of Senior Debt remaining
unpaid until all such Senior Debt has been paid in full in cash or Cash
Equivalents, after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Senior Debt.


 


(d)           The
consolidation of the Company with, or the merger of the Company with or into,
another corporation, partnership, trust or limited liability company or the
liquidation or dissolution of the Company following the conveyance or transfer
of all or substantially all of its assets, to another corporation, partnership,
trust or limited liability company upon the terms and conditions provided in Article Five
hereof and as long as permitted under the terms of the Senior Debt shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, assume the Company’s obligations
hereunder in accordance with Article Five hereof.


 


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SECTION 10.04.            Payments
May Be Paid Prior to Dissolution.


 


Nothing contained
in this Article Ten or elsewhere in this Indenture shall prevent (i) the
Company, except under the conditions described in Sections 10.02 and 10.03,
from making payments at any time for the purpose of making payments of
principal of and interest on the Securities, or from depositing with the
Trustee any moneys for such payments, or (ii) in the absence of actual
knowledge by the Trustee that a given payment would be prohibited by Section 10.02
or 10.03, the application by the Trustee of any moneys deposited with it for
the purpose of making such payments of principal of, and interest on, the
Securities to the Holders entitled thereto unless at least two Business Days
prior to the date upon which such payment would otherwise become due and
payable a Responsible Officer of the Trustee shall have actually received the
written notice provided for in the first sentence of Section 10.02(b) or
in Section 10.07 (provided that,
notwithstanding the foregoing, the Holders receiving any payments made in
contravention of Section 10.02 and/or 10.03 (and the respective such
payments) shall otherwise be subject to the provisions of Section 10.02
and Section 10.03).  The Company
shall give prompt written notice to the Trustee of any dissolution, winding-up,
liquidation or reorganization of the Company, although any delay or failure to
give any such notice shall have no effect on the subordination provisions
contained herein.


 


SECTION 10.05.            Holders
To Be Subrogated to Rights of Holders of Senior Debt.


 


Subject to the
payment in full in cash or Cash Equivalents of all Senior Debt, the Holders of
the Securities shall be subrogated to the rights of the holders of Senior Debt
to receive payments or distributions of cash, property or securities of the
Company applicable to the Senior Debt until the Securities shall be paid in
full; and, for the purposes of such subrogation, no such payments or
distributions to the holders of the Senior Debt by or on behalf of the Company,
or by or on behalf of the Holders by virtue of this Article Ten, which
otherwise would have been made to the Holders shall, as between the Company and
the Holders, be deemed to be a payment by the Company to or on account of the
Senior Debt, it being understood that the provisions of this Article Ten
are and are intended solely for the purpose of defining the relative rights of
the Holders, on the one hand, and the holders of Senior Debt, on the other
hand.


 


SECTION 10.06.            Obligations
of the Company Unconditional.


 


Nothing contained
in this Article Ten or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors other than the
holders of Senior Debt, and the Holders, the obligation of the Company, which
is absolute and unconditional, to pay to the Holders the principal of and any
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of the Company other than the holders of
the Senior Debt, nor shall anything herein or therein prevent the Holder of any
Security or the Trustee on its behalf from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.


 


SECTION 10.07.            Notice
to Trustee.


 


The Company shall
give prompt written notice to the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in respect
of the Securities pursuant to the provisions of this Article Ten, although
any delay or failure to give any such notice shall have no effect on the subordination
provisions contained herein.  Regardless
of anything to the contrary contained in this Article Ten or elsewhere in
this Indenture, the Trustee shall not be charged with


 


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knowledge of the
existence of any default or event of default with respect to any Senior Debt or
of any other facts which would prohibit the making of any payment to or by the
Trustee unless and until the Trustee shall have received notice in writing from
the Company, or from a holder of Senior Debt or a Representative therefor and,
prior to the receipt of any such written notice, the Trustee shall be entitled
to assume (in the absence of actual knowledge to the contrary) that no such
facts exist.  The Trustee shall be
entitled to rely on the delivery to it of any notice pursuant to this Section 10.07
to establish that such notice has been given by a holder of Senior Debt (or a
trustee thereof).


 


In the event that
the Trustee determines in good faith that any evidence is required with respect
to the right of any Person as a holder of Senior Debt to participate in any
payment or distribution pursuant to this Article Ten, the Trustee may
request such Person to furnish evidence to the satisfaction of the Trustee as
to the amounts of Senior Debt held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article Ten, and
if such evidence is not furnished the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.


 


SECTION 10.08.            Reliance
on Judicial Order or Certificate of Liquidating Agent.


 


Upon any payment
or distribution of assets of the Company referred to in this Article Ten,
the Trustee, subject to the provisions of Article Seven hereof, and the
Holders of the Securities shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which any insolvency,
bankruptcy, receivership, dissolution, winding-up, liquidation, reorganization
or similar case or proceeding is pending, or upon a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, assignee for the benefit
of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or the Holders of the Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article Ten.


 


SECTION 10.09.            Trustee’s
Relation to Senior Debt.


 


The Trustee and
any agent of the Company or the Trustee shall be entitled to all the rights set
forth in this Article Ten with respect to any Senior Debt which may at any
time be held by it in its individual or any other capacity to the same extent
as any other holder of Senior Debt and nothing in this Indenture shall deprive
the Trustee or any such agent of any of its rights as such holder.


 


With respect to
the holders of Senior Debt, the Trustee undertakes to perform or to observe
only such of its covenants and obligations as are specifically set forth in
this Article Ten, and no implied covenants or obligations with respect to
the holders of Senior Debt shall be read into this Indenture against the
Trustee.  The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Debt.


 


Whenever a
distribution is to be made or a notice given to holders or owners of Senior
Debt, the distribution may be made and the notice may be given to their
Representative, if any.


 


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SECTION 10.10.            Subordination
Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior
Debt.


 


No right of any
present or future holders of any Senior Debt to enforce subordination as provided
herein shall at any time in any way be prejudiced or impaired by any act or failure
to act on the part of the Company or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company with the
terms of this Indenture, regardless of any knowledge thereof which any such
holder may have or otherwise be charged with.


 


Without in any way
limiting the generality of the foregoing paragraph, the holders of Senior Debt
may, at any time and from time to time, without the consent of or notice to the
Trustee, without incurring responsibility to the Trustee or the Holders of the
Securities and without impairing or releasing the subordination provided in
this Article Ten or the obligations hereunder of the Holders of the Securities
to the holders of the Senior Debt, do any one or more of the following:  (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Debt, or
otherwise amend or supplement in any manner Senior Debt, or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (iii) release any Person liable in any
manner for the payment or collection of Senior Debt; and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.


 


SECTION 10.11.            Securityholders
Authorize Trustee To Effectuate Subordination of Securities.


 


Each Holder of
Securities by its acceptance of them authorizes and expressly directs the
Trustee on its behalf to take such action as may be necessary or appropriate to
effectuate, as between the holders of Senior Debt and the Holders of
Securities, the subordination provided in this Article Ten, and appoints
the Trustee its attorney-in-fact for such purposes, including, in the event of
any dissolution, winding-up, liquidation or reorganization of the Company
(whether in bankruptcy, insolvency, receivership, reorganization or similar
proceedings or upon an assignment for the benefit of credits or otherwise)
tending towards liquidation of the business and assets of the Company, the
filing of a claim for the unpaid balance of its Securities and accrued interest
in the form required in those proceedings.


 


If the Trustee
does not file a proper claim or proof of debt in the form required in such
proceeding prior to 30 days before the expiration of the time to file such
claim or claims, then the holders of the Senior Debt or their Representative
are or is hereby authorized to have the right to file and are or is hereby
authorized to file an appropriate claim for and on behalf of the Holders of
said Securities.  Nothing herein contained
shall be deemed to authorize the Trustee or the holders of Senior Debt or their
Representative to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee or the holders of Senior Debt or their Representative to vote in
respect of the claim of any Holder in any such proceeding.


 


SECTION 10.12.            This Article Ten
Not To Prevent Events of Default.


 


The failure to
make a payment on account of principal of or interest on the Securities by
reason of any provision of this Article Ten will not be construed as
preventing the occurrence of an Event of Default.


 


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SECTION 10.13.            Trustee’s
Compensation Not Prejudiced.


 


Nothing in this Article Ten
will apply to amounts due to the Trustee pursuant to other sections of this
Indenture.


 


ARTICLE ELEVEN


 


GUARANTEE OF
SECURITIES


 


SECTION 11.01.            Unconditional
Guarantee.


 


Subject to the
provisions of this Article Eleven, each of the Guarantors hereby, jointly
and severally, unconditionally and irrevocably guarantees, on a senior
subordinated basis to each Holder of a Security authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns, irrespective of
the validity and enforceability of this Indenture, the Securities or the
obligations of the Company or any other Guarantors to the Holders or the
Trustee hereunder or thereunder:  (a) (x) the
due and punctual payment of the principal of, premium, if any, and interest on
the Securities when and as the same shall become due and payable, whether at
maturity, upon redemption or repurchase, by acceleration or otherwise,
(y) the due and punctual payment of interest on the overdue principal and
(to the extent permitted by law) interest, if any, on the Securities and
(z) the due and punctual payment and performance of all other obligations
of the Company and all other obligations of the other Guarantors (including
under the Guarantees), in each case, to the Holders or the Trustee hereunder or
thereunder (including amounts due the Trustee under Section 7.07 hereof),
all in accordance with the terms hereof and thereof (collectively, the “Guarantee
Obligations”); and (b) in case of any extension of time of payment or
renewal of any Securities or any of such other obligations, the due and
punctual payment and performance of Guarantee Obligations in accordance with
the terms of the extension or renewal, whether at maturity, upon redemption or
repurchase, by acceleration or otherwise. 
Failing payment when due of any amount so guaranteed, or failing
performance of any other obligation of the Company to the Holders under this
Indenture or under the Securities, for whatever reason, each Guarantor shall be
obligated to pay, or to perform or cause the performance of, the same
immediately.  An Event of Default under
this Indenture or the Securities shall constitute an event of default under
this Guarantee, and shall entitle the Holders of Securities to accelerate the
obligations of the Guarantors hereunder in the same manner and to the same
extent as the obligations of the Company.


 


Each of the
Guarantors hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Securities or
this Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Securities with respect to any provisions hereof
or thereof, any release of any other Guarantor, the recovery of any judgment
against the Company, any action to enforce the same, whether or not a Guarantee
is affixed to any particular Security, or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a
Guarantor.  Each of the Guarantors hereby
waives the benefit of diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice
and all demands whatsoever and covenants that its Guarantee shall not be
discharged except by complete performance of the obligations contained in the Securities,
this Indenture and this Guarantee.  This
Guarantee is a guarantee of payment and not of collection.  If any Holder or the Trustee is required by
any court or otherwise to return to the Company or to any Guarantor, or any
custodian, trustee, liquidator or other similar official


 


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acting in relation
to the Company or such Guarantor, any amount paid by the Company or such
Guarantor to the Trustee or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect.  Each Guarantor further agrees that, as between
it, on the one hand, and the Holders of Securities and the Trustee, on the
other hand, (a) subject to this Article Eleven, the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Six for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations guaranteed
hereby, and (b) in the event of any acceleration of such obligations as provided
in Article Six hereof, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantors for the purpose of
this Guarantee.


 


No stockholder,
officer, director, employee or incorporator, past, present or future, of any
Guarantor, as such, shall have any personal liability under this Guarantee by
reason of his, her or its status as such stockholder, officer, director,
employee or incorporator.


 


SECTION 11.02.            Limitations
on Guarantees.


 


The obligations of
each Subsidiary Guarantor are limited to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities of such Subsidiary
Guarantor (including, without limitation, any Guarantor Senior Debt) and after
giving effect to any collections from or payments made by or on behalf of any
other Subsidiary Guarantor in respect of the obligations of such other
Subsidiary Guarantor under its Guarantee or pursuant to its contribution
obligations under this Indenture, result in the obligations of such Subsidiary
Guarantor under its Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under applicable law. 
Each Subsidiary Guarantor that makes a payment or distribution under its
Guarantee shall be entitled to a contribution from each other Subsidiary
Guarantor in a pro rata amount based on the Adjusted Net Assets of each
Subsidiary Guarantor.


 


SECTION 11.03.            Additional
Amounts.


 


(a)           All
payments made by any Guarantor which is not formed or incorporated under the
laws of the United States or any State thereof (each a “non-US Guarantor”)
under or with respect to such non-US Guarantor’s Guarantee will be made free
and clear of and without withholding or deduction for or on account of any
present or future Taxes imposed or levied by or on behalf of any Taxing Authority
within the Netherlands, or within any other jurisdiction in which such non-US
Guarantor is organized or engaged in business for tax purposes, unless such
non-US Guarantor is required to withhold or deduct Taxes by law or by the
interpretation or administration thereof. If any non-US Guarantor is required
to withhold or deduct any amount for or on account of Taxes imposed by a Taxing
Authority within the Netherlands, or within any other jurisdiction in which such
non-US Guarantor is organized or engaged in business for tax purposes (any of
the aforementioned being a “Taxing Jurisdiction”), from any payment made
under or with respect to the Guarantee of such non-US Guarantor, such non-US
Guarantor will pay such additional amounts (“Additional Amounts”) as may
be necessary so that the net amount received by each holder of Securities (including
Additional Amounts) after such withholding or deduction will equal the amount
the holder would have received if such Taxes had not been withheld or deducted;
provided, however, that no
Additional Amounts will be payable with respect to:


 


(1)           any
Tax imposed by the United States or by any political subdivision or taxing
authority thereof or therein;


 


(2)           any
Taxes that would not have been so imposed, deducted or withheld but for the
existence of any connection between the Holder or beneficial owner of a Security
(or between a


 


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fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of power over, the Holder
or beneficial owner of such Security, if the Holder or beneficial owner is an
estate, nominee, trust, partnership or corporation) and the relevant Taxing
Jurisdiction (other than the mere receipt of such payment or the ownership or
holding of the execution, delivery, registration or enforcement of such
Security);


 


(3)           any
estate, inheritance, gift, sales excise, transfer or personal property tax or
similar tax, assessment or governmental charge, subject to the last paragraph
of this Section 11.03;


 


(4)           any
Taxes payable otherwise than by deduction or withholding from payments under or
with respect to the Guarantee of such Security;


 


(5)           any
Taxes that would not have been so imposed, deducted or withheld if the Holder
or beneficial owner of the Security or beneficial owner of any payment on the
Guarantee of such Security had (i) made a declaration of non-residence, or
any other claim or filing for exemption, to which it is entitled or (ii) complied
with any certification, identification, information, documentation or other
reporting requirement concerning the nationality, residence, identity or
connection with the relevant Taxing Jurisdiction of such Holder or beneficial
owner of such Security or any payment on such Security (provided that
(x) such declaration of non-residence or other claim or filing for
exemption or such compliance is required by the applicable law of the Taxing
Jurisdiction as a precondition to exemption from, or reduction in the rate of
the imposition, deduction or withholding of, such Taxes and (y) at least
30 days prior to the first payment date with respect to which such
declaration of non-residence or other claim or Filing for exemption or such
compliance is required under the applicable law of the Taxing Jurisdiction,
Holders at that time have been notified by such Guarantor or any other person
through whom payment may be made that a declaration of non-residence or other
claim or Filing for exemption or such compliance is required to be made);


 


(6)           any
Taxes that would not have been so imposed, deducted or withheld if the
beneficiary of the payment had presented the Security for payment within
30 days after the date on which such payment or such Security became due
and payable or the date on which payment thereof is duly provided for,
whichever is later (except to the extent that the Holder would have been
entitled to Additional Amounts had the Security been presented on the last day
of such 30-day period);


 


(7)           any
payment under or with respect to a Security to any Holder that is a fiduciary
or partnership or any person other than the sole beneficial owner of such
payment or Security, to the extent that a beneficiary or settlor with respect
to such fiduciary, a member of such partnership or the beneficial owner of such
payment, or Security would not have been entitled to the Additional Amounts had
such beneficiary, settlor, member or beneficial owner been the actual Holder of
such Security;


 


(8)           any
note where such withholding or deduction is imposed on a payment to an
individual and is required to be made pursuant to Council Directive 2003/48/EC
of June 3, 2003 on taxation of savings income in the form of interest
payments or any law implementing or complying with, or introduced in order to
conform to, that Directive; or


 


(9)           any
combination of items (1) through (8) above.


 


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(b)           The
foregoing provisions shall survive any termination or discharge of this
Indenture and shall apply mutatis mutandis
to any Taxing Jurisdiction with respect to any successor Person to a non-US
Guarantor.


 


(c)           Each
applicable non-US Guarantor will also make any applicable withholding or
deduction and remit the full amount deducted or withheld to the relevant authority
in accordance with applicable law.  Each
applicable non-US Guarantor will furnish to the Trustee, within 30 days
after the date the payment of any Taxes deducted or withheld is due pursuant to
applicable law, certified copies of tax receipts or, if such tax receipts are
not reasonably available to such non-US Guarantor, such other documentation
that provides reasonable evidence of such payment by such non-US Guarantor.  Copies of such receipts or other documentation
will be made available to the Holders or the paying agents, as applicable, upon
request.


 


(d)           At
least 30 days prior to each date on which any payment under or with
respect to any Security is due and payable, unless such obligation to pay
Additional Amounts arises after the 30th day prior to such date, in which case
it shall be promptly paid thereafter, if any non-US Guarantor will be obligated
to pay Additional Amounts with respect to such payment, such non-US Guarantor
will deliver to the Trustee and the paying agent an Officer’s Certificate
stating the fact that such Additional Amounts will be payable and the amounts
so payable and will set forth such other information necessary to enable such
Trustee and paying agent to pay such Additional Amounts to Holders of such Securities
on the payment date.  Each Officer’s Certificate
shall be relied upon until receipt of a further Officer’s Certificate addressing
such matters.


 


(e)           Whenever
in this Indenture there is mentioned, in any context, the payment of principal,
premium, if any, interest or of any other amount payable under or with respect
to any Security, such mention shall be deemed to include mention of the payment
of Additional Amounts to the extent that, in such context, Additional Amounts
are, were or would be payable in respect thereof.


 


The non-US Guarantors
will pay any present or future stamp, court or documentary taxes or any other
excise or property taxes, charges or similar levies that arise in any
jurisdiction from the execution, delivery, enforcement or registration of their
respective Guarantees of the Securities, this Indenture or any other document
or instrument in relation thereto, excluding all such taxes, charges or similar
levies imposed by any jurisdiction outside the United States in which any
non-US Guarantor or any successor Person is organized or resident for tax
purposes or any jurisdiction in which a paying agent is located, and the non-US
Guarantors will agree to indemnify the Holders of the Notes for any such
non-excluded taxes paid by such Holders.


 


SECTION 11.04.            Execution
and Delivery of Guarantee.


 


To further
evidence the Guarantee set forth in Section 11.01, each Guarantor hereby
agrees that a notation of such Guarantee, substantially in the form of Exhibit E
hereto shall be endorsed on each Security authenticated and delivered by the
Trustee.  Such Guarantee shall be
executed on behalf of each Guarantor by either manual or facsimile signature of
one Officer or other person duly authorized by all necessary corporate action
of each Guarantor who shall have been duly authorized to so execute by all
requisite corporate action.  The validity
and enforceability of any Guarantee shall not be affected by the fact that it
is not affixed to any particular Security.


 


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Each of the Guarantors
hereby agrees that its Guarantee set forth in Section 11.01 shall remain
in full force and effect notwithstanding any failure to endorse on each
Security a notation of such Guarantee.


 


If an Officer of a
Guarantor whose signature is on this Indenture or a Guarantee no longer holds
that office at the time the Trustee authenticates the Security on which such
Guarantee is endorsed or at any time thereafter, such Guarantor’s Guarantee of
such Security shall nevertheless be valid.


 


The delivery of
any Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of any Guarantee set forth in this Indenture on behalf
of each Guarantor.


 


SECTION 11.05.            Release
of a Guarantor.


 


(a)           Any
Guarantee by a Restricted Subsidiary will be automatically and unconditionally
released and discharged, without any further action required on the part of the
Trustee or any Holder, upon:


 


(i)            any
Transfer (including by consolidation or merger) to any Person which is not a
Guarantor of all of the Capital Stock held by Parent or any Restricted
Subsidiary in, or all or substantially all of the assets of, such Restricted
Subsidiary made in compliance with Section 4.13; or


 


(ii)           the
designation of such Restricted Subsidiary as an Unrestricted Subsidiary in accordance
with Section 4.11 and the definition of “Unrestricted Subsidiary”; or


 


(iii)          the
release of such Guarantor from its guarantee of the Credit Agreement.


 


The Trustee shall
execute an appropriate instrument prepared by the Company evidencing the release
of a Guarantor from its obligations under its Guarantee upon receipt of a
request by the Company or such Guarantor accompanied by an Officers’
Certificate and an Opinion of Counsel certifying as to the compliance with this
Section 11.05; provided, however, that the legal counsel delivering such Opinion of
Counsel may rely as to matters of fact on one or more Officers’ Certificates of
the Company.


 


Except as set
forth in Articles Four and Five and this Section 11.05, nothing contained
in this Indenture or in any of the Securities shall prevent any consolidation
or merger of a Guarantor with or into the Company or another Guarantor or shall
prevent any sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another Guarantor.


 


SECTION 11.06.            Waiver
of Subrogation.


 


Until this
Indenture is discharged and all of the Securities are discharged and paid in
full, each Guarantor hereby irrevocably waives and agrees not to exercise any
claim or other rights which it may now or hereafter acquire against the Company
that arise from the existence, payment, performance or enforcement of the
Company’s obligations under the Securities or this Indenture and such Guarantor’s
obligations under this Guarantee and this Indenture, in any such instance
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, and any right to participate in any
claim or remedy of the Holders against the Company, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law,
including, without limitation, the right to take or receive from the Company,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim or other rights.  If any amount shall be


 


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paid to any Guarantor
in violation of the preceding sentence and any amounts owing to the Trustee or
the Holders of Securities under the Securities, this Indenture, or any other
document or instrument delivered under or in connection with such agreements or
instruments, shall not have been paid in full, such amount shall have been
deemed to have been paid to such Guarantor for the benefit of, and held in
trust for the benefit of, the Trustee or the Holders and shall forthwith be
paid to the Trustee for the benefit of itself or such Holders to be credited
and applied to the obligations in favor of the Trustee or the Holders, as the
case may be, whether matured or unmatured, in accordance with the terms of this
Indenture.  Each Guarantor acknowledges
that it will receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section 11.06
is knowingly made in contemplation of such benefits.


 


SECTION 11.07.            Immediate
Payment.


 


Each Guarantor
agrees to make immediate payment to the Trustee on behalf of the Holders of all
Guarantee Obligations owing or payable to the respective Holders upon receipt
of a demand for payment therefor by the Trustee to such Guarantor in writing.


 


SECTION 11.08.            No
Set-Off.


 


Each payment to be
made by a Guarantor hereunder in respect of the Guarantee Obligations shall be
payable in the currency or currencies in which such Guarantee Obligations are
denominated, and shall be made without set-off, counterclaim, reduction or
diminution of any kind or nature.


 


SECTION 11.09.            Guarantee
Obligations Absolute.


 


The obligations of
each Guarantor hereunder are and shall be absolute and unconditional and any
monies or amounts expressed to be owing or payable by each Guarantor hereunder
which may not be recoverable from such Guarantor on the basis of a Guarantee
shall be recoverable from such Guarantor as a primary obligor and principal
debtor in respect thereof.


 


SECTION 11.10.            Guarantee
Obligations Continuing.


 


The obligations of
each Guarantor hereunder shall be continuing and shall remain in full force and
effect until all such obligations have been paid and satisfied in full.  Each Guarantor agrees with the Trustee that
it will from time to time deliver to the Trustee suitable acknowledgments of
this continued liability hereunder and under any other instrument or
instruments in such form as counsel to the Trustee may advise and as will
prevent any action brought against it in respect of any default hereunder being
barred by any statute of limitations now or hereafter in force and, in the
event of the failure of a Guarantor so to do, it hereby irrevocably appoints
the Trustee the attorney and agent of such Guarantor to make, execute and
deliver such written acknowledgment or acknowledgments or other instruments as
may from time to time become necessary or advisable, in the judgment of the
Trustee on the advice of counsel, to fully maintain and keep in force the
liability of such Guarantor hereunder.


 


SECTION 11.11.            Guarantee
Obligations Not Reduced.


 


The obligations of
each Guarantor hereunder shall not be satisfied, reduced or discharged solely
by the payment of such principal, premium, if any, interest, fees and other
monies or amounts as may at any time prior to discharge of this Indenture
pursuant to Article Eight be or become owing or payable under or by virtue
of or otherwise in connection with the Securities or this Indenture.


 


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SECTION 11.12.            Guarantee
Obligations Reinstated.


 


The obligations of
each Guarantor hereunder shall continue to be effective or shall be reinstated,
as the case may be, if at any time any payment which would otherwise have
reduced the obligations of any Guarantor hereunder (whether such payment shall
have been made by or on behalf of the Company or by or on behalf of a
Guarantor) is rescinded or reclaimed from any of the Holders upon the
insolvency, bankruptcy, liquidation or reorganization of the Company or any
Guarantor or otherwise, all as though such payment had not been made.  If demand for, or acceleration of the time
for, payment by the Company or any other Guarantor is stayed upon the
insolvency, bankruptcy, liquidation or reorganization of the Company or such
Guarantor, all such Indebtedness otherwise subject to demand for payment or
acceleration shall nonetheless be payable by each Guarantor as provided herein.


 


SECTION 11.13.            Guarantee
Obligations Not Affected.


 


The obligations of
each Guarantor hereunder shall not be affected, impaired or diminished in any
way by any act, omission, matter or thing whatsoever, occurring before, upon or
after any demand for payment hereunder (and whether or not known or consented
to by any Guarantor or any of the Holders) which, but for this provision, might
constitute a whole or partial defense to a claim against any Guarantor
hereunder or might operate to release or otherwise exonerate any Guarantor from
any of its obligations hereunder or otherwise affect such obligations, whether
occasioned by default of any of the Holders or otherwise, including, without
limitation:


 


(a)           any
limitation of status or power, disability, incapacity or other circumstance
relating to the Company or any other Person, including any insolvency,
bankruptcy, liquidation, reorganization, readjustment, composition,
dissolution, winding-up or other proceeding involving or affecting the Company
or any other Person;


 


(b)           any
irregularity, defect, unenforceability or invalidity in respect of any
indebtedness or other obligation of the Company or any other Person under this
Indenture, the Securities or any other document or instrument;


 


(c)           any
failure of the Company or any other Guarantor, whether or not without fault on
its part, to perform or comply with any of the provisions of this Indenture,
the Securities or any Guarantee, or to give notice thereof to a Guarantor;


 


(d)           the
taking or enforcing or exercising or the refusal or neglect to take or enforce
or exercise any right or remedy from or against the Company or any other Person
or their respective assets or the release or discharge of any such right or
remedy;


 


(e)           the
granting of time, renewals, extensions, compromises, concessions, waivers,
releases, discharges and other indulgences to the Company or any other Person;


 


(f)            any
change in the time, manner or place of payment of, or in any other term of, any
of the Securities, or any other amendment, variation, supplement, replacement
or waiver of, or any consent to departure from, any of the Securities or this
Indenture, including, without limitation, any increase or decrease in the
principal amount of or premium, if any, or interest on any of the Securities;


 


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(g)           any
change in the ownership, control, name, objects, businesses, assets, capital
structure or constitution of the Company or a Guarantor;


 


(h)           any
merger or amalgamation of the Company or a Guarantor with any Person or Persons;


 


(i)            the
occurrence of any change in the laws, rules, regulations or ordinances of any
jurisdiction by any present or future action of any governmental authority or
court amending, varying, reducing or otherwise affecting, or purporting to
amend, vary, reduce or otherwise affect, any of the Guarantee Obligations or
the obligations of a Guarantor under its Guarantee; and


 


(j)            any
other circumstance, including release of the Guarantor pursuant to Section 11.05
(other than by complete, irrevocable payment) that might otherwise constitute a
legal or equitable discharge or defense of the Company under this Indenture or
the Securities or of a Guarantor in respect of its Guarantee hereunder.


 


(k)           With respect to
(g) and (h) above, the Luxembourg Guarantor expressly accepts and
confirms for the purposes of Article 1281 of the Luxembourg civil code
that, notwithstanding any assignment, transfer and/or novation in respect of
the Company as issuer of the Securities, the Guarantee given by the Luxembourg
Guarantor guarantees all obligations of the Company (including without
limitation, all obligations with respect to all rights and/or obligations so
assigned, transferred or novated) and that any security interest created under
this Indenture to which the Luxembourg Guarantor is a party shall be preserved
for the benefit of any new issuer.


 


SECTION 11.14.            Waiver.


 


Without in any way
limiting the provisions of Section 11.01, each Guarantor hereby waives
notice of acceptance hereof, notice of any liability of any Guarantor
hereunder, notice or proof of reliance by the Holders upon the obligations of
any Guarantor hereunder, and diligence, presentment, demand for payment on the
Company, protest, notice of dishonor or non-payment of any of the Guarantee
Obligations, or other notice or formalities to the Company or any Guarantor of
any kind whatsoever.


 


SECTION 11.15.            No
Obligation To Take Action Against the Company.


 


Neither the
Trustee nor any other Person shall have any obligation to enforce or exhaust
any rights or remedies against the Company or any other Person or any property
of the Company or any other Person before the Trustee is entitled to demand
payment and performance by any or all Guarantors of their liabilities and obligations
under their Guarantees or under this Indenture.


 


SECTION 11.16.          Dealing
with the Company and Others.


 


The Holders,
without releasing, discharging, limiting or otherwise affecting in whole or in
part the obligations and liabilities of any Guarantor hereunder and without the
consent of or notice to any Guarantor, may


 


(a)           grant
time, renewals, extensions, compromises, concessions, waivers, releases,
discharges and other indulgences to the Company or any other Person;


 


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(b)           take
or abstain from taking security or collateral from the Company or from
perfecting security or collateral of the Company;


 


(c)           release,
discharge, compromise, realize, enforce or otherwise deal with or do any act or
thing in respect of (with or without consideration) any and all collateral,
mortgages or other security given by the Company or any third party with
respect to the obligations or matters contemplated by this Indenture or the
Securities;


 


(d)           accept
compromises or arrangements from the Company;


 


(e)           apply
all monies at any time received from the Company or from any security upon such
part of the Guarantee Obligations as the Holders may see fit or change any such
application in whole or in part from time to time as the Holders may see fit;
and


 


(f)            otherwise
deal with, or waive or modify their right to deal with, the Company and all
other Persons and any security as the Holders or the Trustee may see fit.


 


SECTION 11.17.            Default
and Enforcement.


 


If any Guarantor
fails to pay in accordance with Section 11.07 hereof, the Trustee may
proceed in its name as trustee hereunder in the enforcement of the Guarantee of
any such Guarantor and such Guarantor’s obligations thereunder and hereunder by
any remedy provided by law, whether by legal proceedings or otherwise, and to
recover from such Guarantor the obligations.


 


SECTION 11.18.            Amendment,
Etc.


 


No amendment,
modification or waiver of any provision of this Indenture relating to any
Guarantor or consent to any departure by any Guarantor or any other Person from
any such provision will in any event be effective unless it is signed by such
Guarantor and the Trustee.


 


SECTION 11.19.            Acknowledgment.


 


Each Guarantor
hereby acknowledges communication of the terms of this Indenture and the Securities
and consents to and approves of the same.


 


SECTION 11.20.            Costs
and Expenses.


 


Each Guarantor
shall pay on demand by the Trustee any and all costs, fees and expenses
(including, without limitation, legal fees on a solicitor and client basis)
incurred by the Trustee, its agents, advisors and counsel or any of the Holders
in enforcing any of their rights under any Guarantee.


 


SECTION 11.21.            No
Merger or Waiver; Cumulative Remedies.


 


No Guarantee shall
operate by way of merger of any of the obligations of a Guarantor under any
other agreement, including, without limitation, this Indenture.  No failure to exercise and no delay in
exercising, on the part of the Trustee or the Holders, any right, remedy, power
or privilege hereunder or under this Indenture or the Securities, shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder or under this Indenture or the Securities
preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or


 


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privilege.  The rights, remedies, powers and privileges
in the Guarantee and under this Indenture, the Securities and any other
document or instrument between a Guarantor and/or the Company and the Trustee
are cumulative and not exclusive of any rights, remedies, powers and privilege provided
by law.


 


SECTION 11.22.            Survival
of Guarantee Obligations.


 


Without prejudice
to the survival of any of the other obligations of each Guarantor hereunder,
the obligations of each Guarantor under Section 11.01 shall survive the
payment in full of the Guarantee Obligations and shall be enforceable against
such Guarantor without regard to and without giving effect to any defense,
right of offset or counterclaim available to or which may be asserted by the
Company or any Guarantor.


 


SECTION 11.23.            Guarantee
in Addition to Other Guarantee Obligations.


 


The obligations of
each Guarantor under its Guarantee and this Indenture are in addition to and not
in substitution for any other obligations to the Trustee or to any of the
Holders in relation to this Indenture or the Securities and any guarantees or
security at any time held by or for the benefit of any of them.


 


SECTION 11.24.            Severability.


 


Any provision of
this Article Eleven which is prohibited or unenforceable in any jurisdiction
shall not invalidate the remaining provisions and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction unless its removal would
substantially defeat the basic intent, spirit and purpose of this Indenture and
this Article Eleven.


 


SECTION 11.25.            Successors
and Assigns.


 


Each Guarantee
shall be binding upon and inure to the benefit of each Guarantor and the
Trustee and the other Holders and their respective successors and permitted
assigns, except that no Guarantor may assign any of its obligations hereunder
or thereunder.


 


ARTICLE TWELVE


 


SUBORDINATION OF GUARANTEE


 


SECTION 12.01.            Guarantee
Obligations Subordinated to Guarantor Senior Debt.


 


Anything herein to
the contrary notwithstanding, each of the Guarantors, for itself and its
successors, and each Holder, by his or her acceptance of Guarantees, agrees
that the payment of all Obligations owing to the Holders in respect of its
Guarantee is subordinated, to the extent and in the manner provided in this Article Twelve,
to the prior payment in full in cash or Cash Equivalents, or such payment duly provided
for to the satisfaction of the holders of Guarantor Senior Debt, of all
Obligations on Guarantor Senior Debt of such Guarantor (including the
Obligations with respect to the Credit Agreement, whether outstanding on the
Issue Date or thereafter incurred). 
Notwithstanding the foregoing, payments and distributions made relating
to the Securities from the trust established pursuant to Article Eight
shall


 


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not be so
subordinated in right of payment, so long as (i) the conditions specified
in Article Eight (without any waiver or modification of the requirement
that the deposits pursuant thereto do not conflict with the terms of the Credit
Agreement or any other Senior Debt or Guarantor Senior Debt) are satisfied on
the date of any deposit pursuant to said trust and (ii) such payments and
distributions did not violate the provisions of Article Ten or this Article Twelve.


 


This Article Twelve
shall constitute a continuing offer to all Persons who become holders of, or
continue to hold, Guarantor Senior Debt, and such provisions are made for the
benefit of the holders of Guarantor Senior Debt and such holders are made
obligees hereunder and any one or more of them may enforce such provisions.


 


SECTION 12.02.            Suspension
of Guarantee Obligations When Guarantor Senior Debt Is in Default.


 


(a)           If
any default occurs and is continuing in the payment when due, whether at
maturity, upon any redemption, by declaration or otherwise, of any principal
of, interest on, unpaid drawings for letters of credit issued in respect of, or
regularly accruing fees with respect to, any Guarantor Senior Debt (including,
without limitation, guarantees of the foregoing items which constitute Guarantor
Senior Debt), then no payment of any kind or character shall be made by or on
behalf of such Guarantor or any other Person on its behalf with respect to any
Obligations in respect of the Guarantee or to acquire any of the Securities for
cash or property or otherwise and until such Payment Default shall have been
cured or waived or ceases to exist or such Guarantor Senior Debt shall have
been discharged or paid in full in cash or Cash Equivalents.


 


(b)           During
any Payment Blockage Period (as determined in accordance with Section 10.02(b),
including the limitations set forth therein), neither any Guarantor nor any
other Person on any Guarantor’s behalf shall (x) make any payment of any kind
or character with respect to any Guarantee or (y) acquire any of the Securities
for cash or property or otherwise.


 


(c)           The
foregoing Section 12.02(a) and (b) shall not apply to payments
and distributions made relating to the Securities from the trust established
pursuant to Article Eight, so long as (i) the conditions specified in
Article Eight (without any waiver or modification of the requirement that
the deposits pursuant thereto do not conflict with the terms of the Credit
Agreement or any other Senior Debt or Guarantor Senior Debt) are satisfied on
the date of any deposit pursuant to said trust and (ii) such payments and
distributions did not violate the provisions of Article Ten this Article Twelve
or Article II of any German Guarantee when made.


 


(d)           In
the event that, notwithstanding the foregoing, any payment shall be received by
the Trustee or any Holder when such payment is prohibited by the foregoing
provisions of this Section 12.02, such payment shall be held in trust for
the benefit of, and shall be paid over or delivered to, the holders of
Guarantor Senior Debt (pro rata to such holders on the basis of the respective
amount of Guarantor Senior Debt held by such holders) or their respective
Representatives, as their respective interests may appear.  The Trustee shall be entitled to rely on
information regarding amounts then due and owing on the Guarantor Senior Debt,
if any, received from the holders of Guarantor Senior Debt (or their Representatives)
or, if such information is not received from such holders or their
Representatives, from a Guarantor and only amounts included in the information provided
to the Trustee shall be paid to the holders of Guarantor Senior Debt.


 


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SECTION 12.03.          Guarantee
Obligations Subordinated to Prior Payment of All Guarantor Senior Debt on
Dissolution, Liquidation or Reorganization of Such Guarantor.


 


(a)           Upon
any payment or distribution of assets of any Guarantor of any kind or
character, whether in cash, property or securities, to creditors upon any total
or partial liquidation, dissolution, winding-up, reorganization, assignment for
the benefit of creditors or marshaling of assets of such Guarantor or in a
bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to such Guarantor or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Guarantor Senior
Debt shall first be paid in full in cash or Cash Equivalents, or such payment
duly provided for to the satisfaction of the holders of Guarantor Senior Debt,
before any payment or distribution of any kind or character is made on account
of any Obligations relating to any Guarantee or for the acquisition of any of
the Securities for cash or property or otherwise.  Upon any such dissolution, winding-up,
liquidation, reorganization, receivership or similar proceeding, any payment or
distribution of assets of such Guarantor of any kind or character, whether in
cash, property or securities, to which the Holders or the Trustee under this
Indenture would be entitled, except for the provisions hereof, shall be paid by
such Guarantor or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the Holders or
by the Trustee under this Indenture if received by them, directly to the
holders of Guarantor Senior Debt (pro rata to such holders on the basis of the
respective amounts of Guarantor Senior Debt held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Guarantor Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of Guarantor
Senior Debt remaining unpaid until all such Guarantor Senior Debt has been paid
in full in cash or Cash Equivalents after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of Guarantor
Senior Debt.


 


(b)           To
the extent any payment of Guarantor Senior Debt (whether by or on behalf of a
Guarantor, as proceeds of security or enforcement of any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required
to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then, if such payment is recovered by, or
paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person, the Guarantor Senior Debt or part thereof originally
intended to be satisfied shall be deemed to be reinstated and outstanding as if
such payment had not occurred.


 


It is further
agreed that any diminution (whether pursuant to court decree or otherwise,
including without limitation for any of the reasons described in the preceding
sentence) of any Guarantor’s obligation to make any distribution or payment
pursuant to any Guarantor Senior Debt, except to the extent such diminution
occurs by reason of the repayment (which has not been disgorged or returned) of
such Guarantor Senior Debt in cash or Cash Equivalents, shall have no force or
effect for purposes of the subordination provisions contained in this Article Twelve,
with any turnover of payments as otherwise calculated pursuant to this Article Twelve
to be made as if no such diminution had occurred.


 


(c)           In
the event that, notwithstanding the foregoing, any payment or distribution of
assets of any Guarantor of any kind or character, whether in cash, property or
securities, shall be received by any Holder when such payment or distribution
is prohibited by this Section 12.03, such payment or distribution shall be
held in trust for the benefit of, and shall be paid over or delivered to, the
holders of Guarantor Senior Debt (pro rata to such holders on the basis of the
respective amount of Guarantor Senior Debt held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Guarantor Senior Debt may have been issued, as
their respective


 


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interests may appear, for
application to the payment of Guarantor Senior Debt remaining unpaid until all
such Guarantor Senior Debt has been paid in full in cash or Cash Equivalents,
after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Guarantor Senior Debt.


 


(d)           The
consolidation of any Guarantor with, or the merger of any Guarantor with or
into, another corporation, partnership, trust or limited liability company or
the liquidation or dissolution of a Guarantor following the conveyance or
transfer of all or substantially all of its assets, to another corporation, partnership,
trust or limited liability company upon the terms and conditions provided in Article Five
and as long as permitted under the terms of the Guarantor Senior Debt shall not
be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, assumes the Guarantee of such
Guarantor hereunder in accordance with Article Five.


 


SECTION 12.04.            Payments
May Be Paid Prior to Dissolution.


 


Nothing contained
in this Article Twelve or elsewhere in this Indenture shall prevent (i) any
Guarantor, except under the conditions described in Sections 12.02 and 12.03,
from making payments at any time for the purpose of making payments on
Guarantee Obligations, or from depositing with the Trustee any moneys for such
payments, or (ii) in the absence of actual knowledge by the Trustee that a
given payment would be prohibited by Section 12.02 or 12.03, the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments on Guarantee Obligations to the Holders entitled thereto
unless at least two Business Days prior to the date upon which such payment
would otherwise become due and payable a Responsible Officer of the Trustee
shall have actually received the written notice provided for in the first
sentence of Section 10.02(b) or in Section 12.07 (provided that, notwithstanding the foregoing, the Holders
receiving any payments made in contravention of Sections 12.02 and/or 12.03
(and the respective such payments) shall otherwise be subject to the provisions
of Section 12.02 and Section 12.03). Each Guarantor shall give prompt
written notice to the Trustee of any dissolution, winding-up, liquidation or
reorganization of such Guarantor, although any delay or failure to give any
such notice shall have no effect on the subordination provisions contained
herein.


 


SECTION 12.05.            Holders
of Guarantee Obligations To Be Subrogated to Rights of Holders of Guarantor
Senior Debt.


 


Subject to the
payment in full in cash or Cash Equivalents of all Guarantor Senior Debt, the
Holders of Guarantee Obligations of any Guarantor shall be subrogated to the
rights of the holders of Guarantor Senior Debt of such Guarantor to receive
payments or distributions of cash, property or securities of such Guarantor
applicable to such Guarantor Senior Debt until all amounts owing on or in respect
of the Guarantee Obligations shall be paid in full; and, for the purposes of
such subrogation, no such payments or distributions to the holders of such
Guarantor Senior Debt by or on behalf of such Guarantor, or by or on behalf of
the Holders by virtue of this Article Twelve, which otherwise would have
been made to the Holders shall, as between such Guarantor and the Holders, be
deemed to be a payment by such Guarantor to or on account of such Guarantor
Senior Debt, it being understood that the provisions of this Article Twelve
are and are intended solely for the purpose of defining the relative rights of
the Holders, on the one hand, and the holders of Guarantor Senior Debt, on the
other hand.


 


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SECTION 12.06.            Guarantee
Obligations of the Guarantors Unconditional.


 


Nothing contained
in this Article Twelve or elsewhere in this Indenture or in the Guarantees
is intended to or shall impair, as among the Guarantors, their creditors other
than the holders of Guarantor Senior Debt, and the Holders, the obligation of
the Guarantors, which is absolute and unconditional, to pay to the Holders all
amounts due and payable under the Guarantees as and when the same shall become
due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the Holders and creditors of the Guarantors other
than the holders of the Guarantor Senior Debt, nor shall anything herein or
therein prevent any Holder or the Trustee on its behalf from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, in respect of cash, property or
securities of the Guarantors received upon the exercise of any such remedy.


 


SECTION 12.07.            Notice
to Trustee.


 


Each Guarantor
shall give prompt written notice to the Trustee of any fact known to such
Guarantor which would prohibit the making of any payment to or by the Trustee
in respect of the Guarantees pursuant to the provisions of this Article Twelve,
although any delay or failure to give any such notice shall have no effect on
the subordination provisions contained herein. 
Regardless of anything to the contrary contained in this Article Twelve
or elsewhere in this Indenture, the Trustee shall not be charged with knowledge
of the existence of any default or event of default with respect to any
Guarantor Senior Debt or of any other facts which would prohibit the making of
any payment to or by the Trustee unless and until the Trustee shall have
received notice in writing from a Guarantor, or from a holder of Guarantor
Senior Debt or a Representative therefor and, prior to the receipt of any such
written notice, the Trustee shall be entitled to assume (in the absence of
actual knowledge to the contrary) that no such facts exist.  The Trustee shall be entitled to rely on the
delivery to it of any notice pursuant to this Section 12.07 to establish
that such notice has been given by a holder of Senior Debt (or a trustee
thereof).


 


In the event that
the Trustee determines in good faith that any evidence is required with respect
to the right of any Person as a holder of Guarantor Senior Debt to participate
in any payment or distribution pursuant to this Article Twelve, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amounts of Guarantor Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Twelve, and if such evidence is not furnished
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.


 


SECTION 12.08.            Reliance
on Judicial Order or Certificate of Liquidating Agent.


 


Upon any payment
or distribution of assets of a Guarantor referred to in this Article Twelve,
the Trustee, subject to the provisions of Article Seven hereof, and the
Holders shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which any insolvency, bankruptcy, receivership,
dissolution, winding-up, liquidation, reorganization or similar case or
proceeding is pending, or upon a certificate of the trustee in bankruptcy, liquidating
trustee, receiver, assignee for the benefit of creditors, agent or other person
making such payment or distribution, delivered to the Trustee or the Holders,
for the purpose of ascertaining the persons entitled to participate in such
payment or distribution, the holders of the Guarantor Senior Debt and other
Indebtedness of such Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Twelve.


 


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SECTION 12.09.            Trustee’s
Relation to Guarantor Senior Debt.


 


The Trustee and
any agent of a Guarantor or the Trustee shall be entitled to all the rights set
forth in this Article Twelve with respect to any Guarantor Senior Debt
which may at any time be held by it in its individual or any other capacity to
the same extent as any other holder of Guarantor Senior Debt and nothing in
this Indenture shall deprive the Trustee or any such agent of any of its rights
as such holder.


 


With respect to
the holders of Guarantor Senior Debt, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set
forth in this Article Twelve, and no implied covenants or obligations with
respect to the holders of Guarantor Senior Debt shall be read into this
Indenture against the Trustee.  The
Trustee shall not be deemed to owe any fiduciary duty to the holders of
Guarantor Senior Debt.


 


Whenever a
distribution is to be made or a notice given to holders or owners of Guarantor
Senior Debt, the distribution may be made and the notice may be given to their
Representative, if any.


 


SECTION 12.10.          Subordination
Rights Not Impaired by Acts or Omissions of the Guarantors or Holders of
Guarantor Senior Debt.


 


No right of any
present or future holders of any Guarantor Senior Debt to enforce subordination
as provided herein shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of any Guarantor or by any act or failure
to act, in good faith, by any such holder, or by any noncompliance by any Guarantor
with the terms of this Indenture, regardless of any knowledge thereof which any
such holder may have or otherwise be charged with.


 


Without in any way
limiting the generality of the foregoing paragraph, the holders of Guarantor
Senior Debt may, at any time and from time to time, without the consent of or
notice to the Trustee, without incurring responsibility to the Trustee or the
Holders of the Securities and without impairing or releasing the subordination provided
in this Article Twelve or the obligations hereunder of the Holders of the
Securities to the holders of Guarantor Senior Debt, do any one or more of the
following:  (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Guarantor Senior Debt, or otherwise amend or supplement in any manner Guarantor
Senior Debt, or any instrument evidencing the same or any agreement under which
Guarantor Senior Debt is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Guarantor Senior Debt; (iii) release any Person liable in any manner for
the payment or collection of Guarantor Senior Debt; and (iv) exercise or
refrain from exercising any rights against the Guarantors and any other Person.


 


SECTION 12.11.          Holders
Authorize Trustee To Effectuate Subordination of Guarantee Obligations.


 


Each Holder of
Guarantee Obligations by its acceptance of them authorizes and expressly
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate, as between the holders of Guarantor Senior Debt and
the Holders, the subordination provided in this Article Twelve, and
appoints the Trustee its attorney-in-fact for such purposes, including, in the
event of any dissolution, winding-up, liquidation or reorganization of any
Guarantor (whether in bankruptcy, insolvency, receivership, reorganization or
similar proceedings or upon an assignment for the benefit of credits or
otherwise) tending towards liquidation of the business and assets of any
Guarantor, the filing of a claim for


 


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the unpaid balance
under its Guarantee Obligations and accrued interest in the form required in
those proceedings.


 


If the Trustee
does not file a proper claim or proof of debt in the form required in such
proceeding prior to 30 days before the expiration of the time to file such
claim or claims, then the holders of the Guarantor Senior Debt or their
Representative are or is hereby authorized to have the right to file and are or
is hereby authorized to file an appropriate claim for and on behalf of the
Holders of said Guarantee Obligations. 
Nothing herein contained shall be deemed to authorize the Trustee or the
holders of Guarantor Senior Debt or their Representative to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Guarantee
Obligations or the rights of any Holder thereof, or to authorize the Trustee or
the holders of Guarantor Senior Debt or their Representative to vote in respect
of the claim of any Holder in any such proceeding.


 


SECTION 12.12.            This Article Twelve
Not To Prevent Events of Default.


 


The failure to
make a payment on account of principal of or interest on the Guarantees by
reason of any provision of this Article Twelve will not be construed as
preventing the occurrence of an Event of Default.


 


SECTION 12.13.            Trustee’s
Compensation Not Prejudiced.


 


Nothing in this Article Twelve
will apply to amounts due to the Trustee pursuant to other sections of this
Indenture.


 


ARTICLE THIRTEEN


 


MISCELLANEOUS


 


SECTION 13.01.            TIA
Controls.


 


If any provision
of this Indenture limits, qualifies, or conflicts with another provision which
is required or deemed to be included in this Indenture by the TIA, such
required or deemed provision shall control.


 


SECTION 13.02.            Notices.


 


Any notices or
other communications required or permitted hereunder shall be in writing, and
shall be sufficiently given if made by hand delivery, by telex, by telecopier
or registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:


 


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if to the Company
or a Guarantor:


 


c/o Buhrmann N.V.

Hoogoorddreef 62

1101 BE Amsterdam ZO

PO Box 23456

1100 DZ Amsterdam

The Netherlands

Attention:  General Counsel




Telephone:  +31-20-651-1111

Facsimile:  +31-20-651-1003


 


with a copy to:


 


Latham & Watkins

99 Bishopsgate

London, England EC2M 3XF

Attention:  Alexander F. Cohen




Telephone:  +44-207-710-1000

Facsimile:  +44-207-374-4460


 


if to the Trustee:


 


The Bank of New York

101 Barclay Street 8W

New York, NY 10286

Attention:  Corporate Trust
Administration




Telephone:  (212) 815-5498

Facsimile:  (212) 815-5707


 


Each of the
Company and the Trustee by written notice to each other such Person may
designate additional or different addresses for notices to such Person.  Any notice or communication to the Company
and the Trustee, shall be deemed to have been given or made as of the date so
delivered if personally delivered; when answered back; when receipt is
acknowledged, if telecopied; and five (5) calendar days after mailing if
sent by registered or certified mail, postage prepaid (except that a notice of
change of address shall not be deemed to have been given until actually
received by the addressee).


 


Any notice or
communication mailed to a Securityholder shall be mailed to him by first class
mail or other equivalent means at his address as it appears on the registration
books of the Registrar and shall be sufficiently given to him if so mailed
within the time prescribed.


 


Failure to mail a
notice or communication to a Securityholder or any defect in it shall not
affect its sufficiency with respect to other Securityholders.  If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives
it.


 


98





















 


SECTION 13.03.            Communications
by Holders with Other Holders.


 


Securityholders
may communicate pursuant to TIA § 312(b) with other Securityholders
with respect to their rights under this Indenture, the Securities or the
Guarantees.  The Company, the Trustee,
the Registrar and 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 application by the Company to the Trustee to take any action under this
Indenture (except in connection with the Initial Securities), the Company shall
furnish to the Trustee at the request of the Trustee:


 


(a)           an
Officers’ Certificate, in form and substance satisfactory to the Trustee,
stating that, in the opinion of the signers, all conditions precedent to be
performed or effected by the Company, if any, provided for in this Indenture
relating to the proposed action have been complied with; and


 


(b)           an
Opinion of Counsel stating that, in the opinion of such counsel, any and all such
conditions precedent have been complied with.


 


SECTION 13.05.            Statements
Required in Certificate or Opinion.


 


Each certificate
or opinion with respect to compliance with a condition or covenant provided for
in this Indenture, other than the Officers’ Certificate required by Section 4.06,
shall include:


 


(a)           a
statement that the Person making such certificate or opinion has read such
covenant or condition;


 


(b)           a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based;


 


(c)           a
statement that, in the opinion of such Person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with or satisfied;
and


 


(d)           a
statement as to whether or not, in the opinion of each such Person, such
condition or covenant has been complied with; provided,
however, that with respect to matters of
fact an Opinion of Counsel may rely on an Officers’ Certificate or certificates
of public officials.


 


SECTION 13.06.            Rules by
Trustee, Paying Agent, Registrar.


 


The Trustee,
Paying Agent or Registrar may make reasonable rules for its functions.


 


SECTION 13.07.            Agent
for Service; Submission to Jurisdiction; Waiver of Immunities.


 


By the execution
and delivery of this Indenture, the Company and each Guarantor (i) acknowledges
that it has, by separate written instruments, designated and appointed CT Corporation,
111 Eighth Avenue, 13th Floor, New York, New York 10011 (“CT Corporation”)
(and any successor entity), as its authorized agent upon which process may be
served in any suit or proceeding arising out of or


 


99





















 


relating to this
Indenture that may be instituted in any federal or state court in the Borough
of Manhattan, City of New York, State of New York or brought under foreign,
federal or state securities laws, and represents and warrants that CT
Corporation has accepted such designation, (ii) submits to the
jurisdiction of any such court in any such suit or proceeding and (iii) agrees
that service of process upon CT Corporation and written notice of said service
to the Company or such Guarantor in accordance with Section 13.02 shall be
deemed in every respect effective service of process upon the Company or such
Guarantor, as the case may be, in any such suit or proceeding.  Each of the Company and each Guarantor
further agrees to take any and all action, including the execution and filing
of any and all such documents and instruments, as may be necessary to continue
such designation and appointment of CT Corporation in full force and effect for
as long as any of the Securities remain outstanding (subject to the limitation
set forth in clause (i)); provided, however, that the Company or any Guarantor may, and to the
extent CT Corporation ceases to be able to be served on the basis contemplated
herein shall, by written notice to the Trustee, designate such additional or alternative
agent for service of process under this Section 13.07 that (i) maintains
an office located in the Borough of Manhattan, City of New York, State of New
York, and (ii) is either (x) United States counsel for the Company or
any Guarantor or (y) a corporate service company which acts as agent for
service of process for other persons in the ordinary course of its
business.  Such written notice shall
identify the name of such agent for service of process and the address of the
office of such agent for service of process in the Borough of Manhattan, City
of New York, State of New York.


 


To the extent that
the Company or any Guarantor has or hereafter may acquire any immunity from
jurisdiction of any court of (i) any jurisdiction in which the Company or such
Guarantor owns or leases property or assets, (ii) the United States or the
State of New York or (iii) the Netherlands or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
property and assets or this Indenture or any of the Securities or actions to
enforce judgments in respect of any thereof, each of the Company or such
Guarantor, as the case may be, hereby irrevocably waives such immunity in
respect of its obligations under the above-referenced documents, to the extent
permitted by law.


 


SECTION 13.08.            Judgment
Currency.


 


Each of the
Company and each Guarantor hereby agrees to indemnify each of the Holders and
the Trustee against any loss incurred by such person as a result of any
judgment or order being given or made against the Company or such Guarantor for
any U.S. dollar amount due under this Indenture and such judgment or order
being expressed and paid in a currency (the “Judgment Currency”) other
than United States dollars and as a result of any variation as between (i) the
rate of exchange at which the United States dollar amount is converted into the
Judgment Currency for the purpose of such judgment or order and (ii) the
spot rate of exchange in The City of New York at which such party on the date
of payment of such judgment or order is able to purchase United States dollars
with the amount of the Judgment Currency actually received by such party.  The foregoing indemnity shall continue in
full force and effect notwithstanding any such judgment or order as
aforesaid.  The term “spot rate of
exchange” shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, United States dollars.


 


SECTION 13.09.            Legal
Holidays.


 


If a payment date
is not a Business Day, payment may be made on the next succeeding day that is a
Business Day.


 


100





















 


SECTION 13.10.            Governing
Law.


 


THIS INDENTURE, THE
SECURITIES AND THE GUARANTEES (OTHER THAN ANY GERMAN GUARANTEES) WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.


 


SECTION 13.11.            No
Adverse Interpretation of Other Agreements.


 


This Indenture may
not be used to interpret another indenture, loan or debt agreement of any of
the Company or any of its Subsidiaries. 
Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.


 


SECTION 13.12.            No
Recourse Against Others.


 


A director,
officer, employee, stockholder or incorporator, as such, of Parent or any of
its subsidiaries shall not have any liability for any obligations of the
Company under the Securities, this Indenture or the Guarantees or for any claim
based on, in respect of or by reason of such obligations or their
creation.  Each Securityholder by
accepting a Security waives and releases all such liability.  Such waiver and release are part of the consideration
for the issuance of the Securities.


 


SECTION 13.13.            Successors.


 


All agreements of the
Company and the Guarantors in this Indenture, the Securities and the Guarantees
shall bind their respective successors. 
All agreements of the Trustee in this Indenture shall bind its
successor.


 


SECTION 13.14.            Duplicate
Originals.


 


All parties may
sign any number of copies of this Indenture. 
Each signed copy or counterpart shall be an original, but all of them
together shall represent the same agreement.


 


SECTION 13.15.            Severability.


 


In case any one or
more of the provisions in this Indenture, in the Securities or in the
Guarantees shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.


 


101





















 


SIGNATURES


 


IN WITNESS
WHEREOF, the parties hereto have caused this Indenture to be duly executed all
as of the date first written above.


 


	
   

  	
  BUHRMANN US INC.,

  
	
   

  	
  as Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BUHRMANN
  N.V.,

  
	
   

  	
  as Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOR AND ON
  BEHALF OF EACH OF THE

  GUARANTORS IDENTIFIED ON SCHEDULE I

  HERETO, as Guarantors

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF
  NEW YORK,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


S-1





















 


SCHEDULE 1


 


Additional
Guarantors


 


	
  U.S. Guarantors

  
	
   

  
	
  1.

  	
   

  	
  ASAP
  Software Express, Inc.

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  BTOP USA Corp.

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  BTOPI
  Holding (U.S.)

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Buhrmann
  Swaps, Inc.

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Corporate
  Express Document & Print Management, Inc.

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Corporate
  Express Office Products, Inc.

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  CE
  Philadelphia Real Estate, Inc.

  
	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Corporate
  Express Promotional Marketing, Inc.

  
	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Corporate
  Express of Texas, Inc.

  
	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Corporate
  Express, Inc.

  
	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  License
  Technologies Group, Inc.

  



 


	
  Dutch Guarantors

  
	
   

  
	
  1.

  	
   

  	
  Buhrmann
  Financieringen B.V.

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Buhrmann
  Fined B.V.

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Buhrmann II
  B.V.

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Buhrmann
  International B.V.

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Buhrmann
  Nederland B.V.

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Buhrmann
  Nederland Holding B.V.

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Tetterode-Nederland
  B.V.

  
	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Veenman B.V. (formerly known as Corporate
  Express Document 

  



 


SC-1





















 


	
   

  	
   

  	
  Automatisering
  B.V.)

  
	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Buhrmann
  Office Products Nederland B.V.

  



 


	
  Belgian
  Guarantors

  
	
   

  
	
  Buhrmann
  Europcenter N.V.

  



 


	
  Luxembourg
  Guarantors

  
	
   

  
	
  Buhrmann
  Luxembourg S.A.R.L.

  



 


SC-2





















 


EXHIBIT A


 


BUHRMANN US INC.

7 7/8% Senior Subordinated Notes 2015


 


	
   

  	
   

  	
  CUSIP No.

  	
   

  
	
  No.

  	
   

  	
  $

  	
   

  



 


BUHRMANN US INC., a
Delaware corporation (the “Company”, which term includes any successor
corporation), for value received promises to pay to CEDE & CO. or its
registered assigns, the principal sum of                  
         on March 1, 2015.


 


Interest Payment
Dates: September 1 and March 1, commencing September 1, 2005.


 


Record Dates:  August 15 and February 15.


 


Reference is made
to the further provisions of this Security contained herein, which will for all
purposes have the same effect as if set forth at this place.


 


A-1





















 


IN WITNESS
WHEREOF, the Company has caused this Security to be signed manually or by
facsimile by its duly authorized officers.


 


Dated:


 


	
   

  	
  BUHRMANN US
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-2





















 


[FORM OF
TRUSTEE’S CERTIFICATE OF AUTHENTICATION]


 


This is one of the
7 7/8% Senior Subordinated Notes due 2015 described in the within-mentioned
Indenture.


 


	
  Dated:

  	
  THE BANK OF NEW YORK,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  	
   

  



 


A-3





















 


(REVERSE OF SECURITY)


 


BUHRMANN US INC.


 


7 7/8% Senior Subordinated Notes 2015


 


1.             Interest.


 


BUHRMANN US INC.,
a Delaware corporation (the “Company”), promises to pay interest on the
principal amount of this Security at the rate per annum shown above.  The Company will pay interest semi-annually
on September 1 and March 1 of each year (the “Interest Payment Date”),
commencing September 1, 2005. 
Interest on this Security will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from March 2,
2005.  Interest on this Security will be
computed on the basis of a 360-day year of twelve 30-day months.


 


The Company shall
pay interest on overdue principal from time to time on demand at the rate borne
by this Security and on overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful.


 


2.             Method
of Payment.


 


The Company shall
pay interest on the Securities (except defaulted interest) to the persons who
are the registered Holders at the close of business on the Record Date
immediately preceding the Interest Payment Date even if the Securities are
cancelled on registration of transfer or registration of exchange after such
Record Date.  Holders must surrender
Securities to a Paying Agent to collect principal payments.  The Company shall pay principal and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts (“U.S. Legal Tender”).  However, the Company may pay principal and
interest by wire transfer of Federal funds, or interest by check payable in
such U.S. Legal Tender.  The Company may
deliver any such interest payment to the Paying Agent or to a Holder at the
Holder’s registered address.


 


3.             Paying
Agent and Registrar.


 


Initially, The
Bank of New York (the “Trustee”) will act as Paying Agent and Registrar.  The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders.  The Company or any of its Subsidiaries may,
subject to certain exceptions, act as Registrar or co-Registrar.


 


4.             Indenture.


 


The Company issued
the Securities under an Indenture, dated as of March 2, 2005 (the “Indenture”),
among the Company, Buhrmann N.V. and the other Guarantors named therein, and
the Trustee.  This Security is one of a
duly authorized issue of Securities of the Company designated as its 7 7/8 Senior
Subordinated Notes due 2015 (the “Securities”). 
The Securities are treated as a single class of securities under the
Indenture unless otherwise specified in the Indenture.  Capitalized terms herein are used as defined
in the Indenture unless otherwise defined herein.  The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act


 


A-4





















 


of 1939 (15 U.S.C.
§§ 77aaa-77bbbb) (the “TIA”), as in effect on the date of the
Indenture until such time as the Indenture is qualified under the TIA, and
thereafter as in effect on the date on which the Indenture is qualified under
the TIA.  Notwithstanding anything to the
contrary herein, the Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and the TIA for a statement of them.


 


5.             Subordination.


 


The payment of all
Obligations on or relating to the Securities is subordinated in right of
payment to the prior payment in full in cash or Cash Equivalents of all
Obligations on Senior Debt of the Company (including all Obligations with
respect to the Credit Agreement, whether outstanding on the Issue Date or
thereafter incurred).  Notwithstanding
the foregoing, payments and distributions made from the trust established
pursuant to the provisions described in Article Eight shall not be so
subordinated in right of payment so long as the payments into the trust were
made in accordance with the requirements described in Article Eight and
did not violate the subordination provisions when they were made.


 


6.             Optional
Redemption.


 


Except as set forth in
Paragraphs 7, 8, 9, 10 and 11 the Securities are not redeemable before March 1,
2010.  Thereafter, the Company may redeem
the Securities at its option, in whole or in part, upon not less than 30 nor
more than 60 days’ notice, at the following redemption prices (expressed as
percentages of the principal amount thereof) if redeemed during the
twelve-month period commencing on July 1 of the year set forth below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2010

  	
   

  	
  103.938

  	
  %

  
	
  2011

  	
   

  	
  102.625

  	
  %

  
	
  2012

  	
   

  	
  101.313

  	
  %

  
	
  2013 and
  thereafter

  	
   

  	
  100.000

  	
  %

  



 


In addition, the
Company must pay accrued and unpaid interest on the Securities redeemed.


 


7.             Optional
Redemption upon Equity Offerings.


 


At any time, or
from time to time, on or prior to March 2, 2008, the Company may, at its
option, use the Net Cash Proceeds of one or more Equity Offerings (as defined
below) to redeem up to 35% of the principal amount of the Securities issued
under the Indenture at a redemption price of 107.875% of the principal amount
thereof plus accrued and unpaid interest thereon, if any, to the date of
redemption; provided that:


 


(a)           at
least 65% of the principal amount of Securities issued under the Indenture
remains outstanding immediately after any such redemption; and


 


(b)           the
Company gives notice of such redemption not more than 60 days after the
consummation of any such Equity Offering.


 


8.             Special
Mandatory Redemption.


 


The Company must redeem the Notes, in whole
but not in part, upon not less than five days notice at a redemption price
equal to 101% of the issue price of the Notes plus accrued interest to,


 


A-5





















 


but not including, the redemption date, if
the Rights Issue is not consummated and the Bank Waiver is not received on or
prior to April 29, 2005. The redemption date shall be no later than the
fifth busines day after April 29, 2005. The Company will redeem the Notes
with the amounts held in the Escrow Account upon five days prior notice.


 


9.             Special
Optional Redemption.


 


The Company may redeem the Notes, at its
option, in whole but not in part, at any time prior to April 29, 2005 at a
redemption price equal to 101% of the issue price of the Notes plus accrued
interest to, but not including, the redemption date if the Company determines,
in its reasonable judgment, that (i) the Rights Issue will not be
consummated on or prior to April 29, 2005 or (ii) the Bank Waiver
will not be forthcoming. If the Company exercises this option, the Company will
redeem the Notes with the amounts held in the escrow account upon five days
prior notice.


 


10.           Make-Whole
Optional Redemption.


 


On or prior to March 2,
2010, the Company may also redeem all or a part of the Securities upon not less
than 30 nor more than 60 days’ prior notice to Holders, at a redemption price
equal to 100% of the principal amount of Securities redeemed plus the
Applicable Premium as of, and accrued and unpaid interest, if any, to the date
of redemption, subject to the rights of Holder on the relevant record date to receive
interest due on the relevant interest payment date.


 


Neither the
Company nor the Parent is prohibited, however, from acquiring Securities by
means other than a redemption, whether pursuant to an issuer tender offer or
otherwise, assuming such acquisition does not otherwise violate the terms of
the Indenture.


 


11.           Redemption
of Securities for Changes in Withholding Taxes.


 


The Company may,
at its option, redeem all, but not less than all, of the then outstanding Securities
at a redemption price equal to 100% of the principal amount of the Securities,
plus accrued and unpaid interest thereon to the redemption date.  This redemption applies only if at such time any
non-US Guarantor is then making payments to the Holders of the Securities
pursuant to its Guarantee of the Securities and as a result of any amendment
to, or change in, the laws or treaties (including any rulings or regulations
promulgated thereunder) of the Netherlands or any other jurisdiction in which
any non-US Guarantor is organized or is a resident for tax purposes or any
political subdivision or taxing authority or agency thereof or therein (or, in
the case of Additional Amounts payable by a successor person to such non-US
Guarantor, of the jurisdiction in which such successor person is organized or
is a resident for tax purposes or any political subdivision or taxing authority
or agency thereof or therein) or any amendment to or change in any official
position concerning the interpretation, administration or application of such
laws, treaties, rulings or regulations (including a holding by a court of
competent jurisdiction), which amendment or change is effective on or after the
Issue Date (or, in the case of Additional Amounts payable by a successor person
to such non-US Guarantor, the date on which such successor person became such
pursuant to the applicable provisions of the Indenture), that a non-US
Guarantor becomes or will become obligated to pay Additional Amounts on the
next date on which any amount would be payable with respect to its Guarantee of
the Securities and such non-US Guarantor determines in good faith that (x) such
Additional Amounts would be material and (y) such obligation cannot be avoided
(including, without limitation, by changing the jurisdiction from which or
through which payment is made (including by making the payment through the
Company)) by the use of reasonable measures available to such non-US Guarantor.


 


A-6





















 


No such notice of
redemption may be given earlier than 90 days prior to the earliest date on
which a non-US Guarantor would be obligated to pay such Additional Amounts were
a payment in respect of its Guarantee of the Securities then due or later than
180 days after such amendment or change referred to in the preceding
paragraph.  At the time such notice of
redemption is given, such obligation to pay such Additional Amount must remain
in effect.  Immediately prior to the
mailing of any notice of redemption described above, the Company shall deliver
to the Trustee (i) a certificate stating that the Company is entitled to
elect to effect such redemption and setting forth a statement of facts showing
that the conditions precedent to the right of the Company so to elect to redeem
have occurred and (ii) an opinion of counsel qualified under the laws of
the relevant jurisdiction to the effect that the applicable non-US Guarantor or
such successor Person, as the case may be, has or will become obligated to pay
such Additional Amounts as a result of such amendment or change.


 


12.           Notice
of Redemption.


 


Notice of
redemption will be mailed by first class mail at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Securities to be
redeemed at such Holder’s registered address. 
No Securities of a principal amount of $1,000 or less shall be redeemed
in part.  If a partial redemption is made
with the proceeds of an Equity Offering, the Trustee will select the Securities
only on a pro rata basis or on as nearly a pro rata basis as is practicable (subject to DTC
procedures).  On and after the redemption
date, interest will cease to accrue on Securities or portions thereof called
for redemption as long as the Company has deposited with the Paying Agent funds
in satisfaction of the applicable redemption price.


 


13.           Change
of Control Offer.


 


Upon the
occurrence of a Change of Control, and subject to certain conditions as
described in Section 4.09 of the Indenture, the Company will be required
to offer to purchase all of the outstanding Securities at a purchase price
equal to 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, thereon to the date of repurchase.


 


14.           Limitation
on Asset Sales.


 


The Company is,
subject to certain conditions and exceptions, obligated to make an offer to
purchase Securities at 100% of their principal amount, plus accrued and unpaid
interest, if any, thereon to the date of repurchase with certain net cash
proceeds of certain sales or other dispositions of assets in accordance with
the Indenture.


 


15.           Denominations;
Transfer; Exchange.


 


The Securities are
in registered form, without coupons, in denominations of $1,000 and integral multiples
of $1,000.  A Holder shall register the
transfer of or exchange Securities in accordance with the Indenture.  The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay certain transfer taxes or similar governmental charges payable in
connection therewith as permitted by the Indenture.  The Registrar need not register the transfer
of or exchange any Securities or portions thereof selected for redemption,
except the unredeemed portion of any security being redeemed in part.


 


16.           Persons
Deemed Owners.


 


A registered
Holder shall be treated as the owner of a Security for all purposes.


 


A-7





















 


17.           Unclaimed
Funds.


 


If funds for the
payment of principal or interest remain unclaimed for one year, the Trustee and
the Paying Agent will repay the funds to the Company at its request.  After that, all liability of the Trustee and
such Paying Agent with respect to such funds shall cease.


 


18.           Discharge
Prior to Redemption or Maturity.


 


The Company and
the Guarantors may be discharged from their obligations under the Indenture,
the Securities and the Guarantees except for certain provisions thereof, and
may be discharged from obligations to comply with certain covenants contained
in the Indenture, the Securities and the Guarantees, in each case upon
satisfaction of certain conditions specified in the Indenture.


 


19.           Amendment;
Supplement; Waiver.


 


Subject to certain
exceptions, the Indenture, the Securities and the Guarantees may be amended or
supplemented with the written consent of the Holders of at least a majority in
aggregate principal amount of the Securities then outstanding, and any existing
Default or compliance with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Securities then
outstanding.  Without notice to or
consent of any Holder, the parties thereto may amend or supplement the
Indenture, the Securities and the Guarantees to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Securities in
addition to or in place of certificated Securities or comply with any
requirements of the Commission in connection with the qualification of the
Indenture under the TIA, or make any other change that does not in any material
respect adversely affect the rights of any Holder of a Security.


 


20.           Restrictive
Covenants.


 


The Indenture
contains certain covenants that, among other things, limit the ability of Parent
and its Restricted Subsidiaries to make restricted payments, to incur
indebtedness, to create liens, to sell assets, to permit restrictions on
dividends and other payments by Restricted Subsidiaries of Parent, to
consolidate, merge or sell all or substantially all of its assets or to engage
in transactions with affiliates.  The
limitations are subject to a number of important qualifications and
exceptions.  The Company must annually
report to the Trustee on compliance with such limitations.


 


21.           Defaults
and Remedies.


 


If an Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of Securities then outstanding may declare all the
Securities to be due and payable immediately in the manner and with the effect provided
in the Indenture.  Holders of Securities
may not enforce the Indenture, the Securities or the Guarantees except as provided
in the Indenture.  The Trustee is not
obligated to enforce the Indenture, the Securities or the Guarantees unless it
has received indemnity satisfactory to it. 
The Indenture permits, subject to certain limitations therein provided,
Holders of a majority in aggregate principal amount of the Securities then
outstanding to direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders of
Securities notice of certain continuing Defaults if it determines that
withholding notice is in their interest.


 


A-8





















 


22.           Trustee
Dealings with Company.


 


The Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with Parent, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.


 


23.           No
Recourse Against Others.


 


No stockholder,
director, officer, employee or incorporator, as such, of Parent or any of its
Subsidiaries shall have any liability for any obligation of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. 
Each Holder of a Security by accepting a Security waives and releases
all such liability.  The waiver and
release are part of the consideration for the issuance of the Securities.


 


24.           Authentication.


 


This Security
shall not be valid until the Trustee or authenticating agent signs the
certificate of authentication on this Security.


 


25.           Abbreviations
and Defined Terms.


 


Customary
abbreviations may be used in the name of a Holder of a Security or an assignee,
such as:  TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).


 


26.           Governing
Law.


 


This Security
shall be governed by, and construed in accordance with, the laws of the State
of New York without giving effect to applicable principles of conflicts of laws
to the extent that the application of the laws of another jurisdiction would be
required thereby.


 


27.           CUSIP
Numbers.


 


Pursuant to a
recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the
Securities as a convenience to the Holders of the Securities.  No representation is made as to the accuracy
of such numbers as printed on the Securities and reliance may be placed only on
the other identification numbers printed hereon.


 


28.           Registration
Rights.(a)


 


Pursuant to, but
subject to the exceptions in, the Registration Rights Agreement, the Company
and the Guarantors will be obligated to consummate an exchange offer pursuant
to which the Holder of this Security shall have the right to exchange this
Security for a 7 7/8% Senior Subordinated


 










(a)           Not applicable to Form of
Exchange Securities.


 


A-9





















 


Note due 2015 of the Company which shall have been registered under the
Securities Act, in like principal amount and having terms identical in all
material respects as this Security.  The
Holders shall be entitled to receive certain additional interest payments in
the event such exchange offer is not consummated or the Securities are not
offered for resale and upon certain other conditions, all pursuant to and in
accordance with the terms of the Registration Rights Agreement.


 


29.           Indenture.


 


Each Holder, by
accepting a Security, agrees to be bound by all of the terms and provisions of
the Indenture, as the same may be amended from time to time.  Capitalized terms used herein and not defined
herein have the meanings ascribed thereto in the Indenture.


 


30.           Guarantees.


 


This Security will
be entitled to the benefits of certain senior subordinated Guarantees made for
the benefit of the Holders.  Reference is
hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and obligations thereunder of, and the
subordination provisions applicable to, the Guarantors, the Trustee and the
Holders.


 


The Company will
furnish to any Holder of a Security upon written request and without charge a
copy of the Indenture.  Requests may be
made to:  c/o BUHRMANN N.V.,
Hoogoorddreef 62, 1101 BE Amsterdam ZO, P.O. Box 23456, 1100 DZ Amsterdam,
The Netherlands, Attention: Office of General Counsel.


 


A-10





















 


ASSIGNMENT FORM


 


I or we assign
and transfer this Security to


 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Print or
  type name, address and zip code of assignee or transferee)

  



 


	
   

  	
   

  
	
  (Insert
  Social Security or other identifying number of assignee or transferee)

  	
   

  



 


and irrevocably appoint                                                             
agent to transfer this Security on the books of the Company.  The agent may substitute another to act for
him.


 


	
  Dated: 

  	
   

  	
   

  	
  Signed:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (Sign exactly as name appears on

  the other side of this Security)

  	
   

  
	
   

  	
   

  



 


 


	
  Signature Guarantee:

  	
   

  	
   

  
	
  Participant in a recognized Signature Guarantee Medallion

  Program (or other signature guarantor program reasonably

  acceptable to the Trustee)

  



 


In connection with any transfer of this
Security occurring prior to the date which is the earlier of (i) the date
of the declaration by the Commission of the effectiveness of a registration
statement under the Securities Act of 1933, as amended (the “Securities Act”)
covering resales of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) March 2,
2007 the undersigned confirms that it has not utilized any general solicitation
or general advertising in connection with the transfer:


 


[Check One]


 


	
  (1)

  	
  o

  	
  to the Company or a subsidiary thereof; or

  
	
   

  	
   

  	
   

  
	
  (2)

  	
  o

  	
  pursuant to and in compliance with Rule 144A under the
  Securities Act of 1933, as amended; or

  
	
   

  	
   

  	
   

  
	
  (3)

  	
  o

  	
  to an institutional “accredited investor” (as defined in Rule 501(a)(1),
  (2), (3) or (7) under the Securities Act of 1933, as amended) that
  has furnished to the Trustee a signed letter containing certain
  representations and agreements (the form of which letter can be obtained from
  the Trustee); or

  
	
   

  	
   

  	
   

  
	
  (4)

  	
  o

  	
  outside the United States to a “foreign purchaser” in compliance with
  Rule 904 of Regulation S under the Securities Act of 1933, as amended;
  or

  
	
   

  	
   

  	
   

  
	
  (5)

  	
  o

  	
  pursuant to the exemption from registration provided by Rule 144
  under the Securities Act of 1933, as amended; or

  



 





















 


	
  (6)

  	
  o

  	
  pursuant to an effective registration statement under the Securities
  Act of 1933, as amended; or

  
	
   

  	
   

  	
   

  
	
  (7)

  	
  o

  	
  pursuant to another available exemption from the registration
  statement requirements of the Securities Act of 1933, as amended.

  



 


and unless the box below is checked, the
undersigned confirms that such Security is not being transferred to an “affiliate”
of the Company as defined in Rule 144 under the Securities Act of 1933, as
amended (an “Affiliate”):


 


o            The
transferee is an Affiliate of the Company.


 


Unless one of the items is checked, the
Trustee will refuse to register any of the Securities evidenced by this
certificate in the name of any person other than the registered Holder thereof;
provided, however,
that if item (3), (4), (5) or (7) is checked, the Company or the
Trustee may require, prior to registering any such transfer of the Securities,
in their sole discretion, such written legal opinions, certifications
(including an investment letter in the case of box (3) or (4) and
other information as the Trustee or the Company have reasonably requested to
confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act
of l933, as amended.


 


If none of the foregoing items are checked,
the Trustee or Registrar shall not be obligated to register this Security in
the name of any person other than the Holder hereof unless and until the conditions
to any such transfer of registration set forth herein and in Section 2.16
of the Indenture shall have been satisfied.


 


	
  Dated: 

  	
   

  	
   

  	
  Signed:  

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (Sign exactly as name appears on the other side of this Security)

  



 


	
  Signature Guarantee:

  	
   

  



 


TO BE COMPLETED BY PURCHASER IF (2) ABOVE
IS CHECKED


 


The undersigned represents and warrants that
it is purchasing this Security for its own account or an account with respect
to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A
under the Securities Act of 1933, as amended, and is aware that the sale to it
is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned’s foregoing representations in order to claim the exemption from
registration provided by Rule 144A.


 


	
  Dated: 

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  NOTICE:

  	
  To be executed by an executive officer

  
						



 


2





















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you want to
elect to have this Security purchased by the Company pursuant to Section 4.09
or Section 4.13 of the Indenture, check the appropriate box:


 


Section 4.09
o
Section 4.13 o


 


If you want to elect to
have only part of this Security purchased by the Company pursuant to Section 4.09
or Section 4.13 of the Indenture, state the amount:  $            


 


 


	
  Dated: 

  	
   

  	
   

  	
  Signed:  

  	
   

  	
   

  
	
   

  	
   

  	
  (Sign exactly as name 

  appears on the other

  side of this Security)

  	
   

  



 


 


	
  Signature Guarantee:

  	
   

  	
   

  
	
   

  	
  Participant in a recognized Signature Guarantee Medallion 

  Program (or other signature guarantor program reasonably 

  acceptable to the Trustee)

  



 


3





















 


EXHIBIT B


 


FORM OF LEGENDS


 


Each Global
Security and Physical Security that constitutes a Restricted Security or is
sold in compliance with Regulation S shall bear the following legend (the “Private
Placement Legend”) on the face thereof until after the second anniversary
of the Issue Date, unless otherwise agreed by the Company and the Holder
thereof:


 


THIS SECURITY HAS
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET
FORTH BELOW.  BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN
ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), or (7) UNDER
THE SECURITIES ACT (AN “ACCREDITED INVESTOR”)); (2) AGREES THAT IT WILL
NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO DESIRES)
OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.  IN CONNECTION WITH ANY TRANSFER
OF THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY,
IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.  AS USED HEREIN, THE
TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE
MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.


 


B-1





















 


Each Global
Security authenticated and delivered hereunder shall also bear the following
legend:


 


THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY.  THIS SECURITY IS NOT EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


 


TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 2.16 OF THE INDENTURE.


 


B-2





















 


EXHIBIT C


 


Form of Certificate To Be


Delivered in
Connection with


Transfers to
Non-QIB Accredited Investors


 


[             ],
[    ]


 


The Bank of New York


101 Barclay Street 8W


New York, NY 10286


 


Ladies and
Gentlemen:


 


In connection with
our proposed purchase of 7 7/8% Senior Subordinated Notes due 2015 (the “Notes”)
of BUHRMANN US INC., a Delaware corporation (the “Company”), we confirm that:


 


1.             We
have received a copy of the Offering Memorandum (the “Offering Memorandum”),
dated February 23, 2005, relating to the Securities and such other
information as we deem necessary in order to make our investment decision.  We acknowledge that we have read and agreed
to the matters stated in the section entitled “Notice to Investors” of
such Offering Memorandum, including the restrictions on duplication and
circulation of the Offering Memorandum.


 


2.             We
understand that any subsequent transfer of the Securities is subject to certain
restrictions and conditions set forth in the Indenture relating to the
Securities (the “Indenture”) as described in the Offering Memorandum and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Securities except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the “Securities Act”),
and all applicable State securities laws.


 


3.             We
understand that the offer and sale of the Securities have not been registered
under the Securities Act, and that the Securities may not be offered or sold
except as permitted in the following sentence. 
We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell any Securities, we
will do so only (i) to the Company or any of its subsidiaries, (ii) inside
the United States in accordance with Rule 144A under the Securities Act to
a “qualified institutional buyer” (as defined in Rule 144A under the
Securities Act), (iii) inside the United States to an institutional “accredited
investor” (as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to the Trustee (as defined in
the Indenture) a signed letter containing certain representations and agreements
relating to the restrictions on transfer of the Securities (the form of which
letter can be obtained from the Trustee), (iv) outside the United States
in accordance with Regulation S promulgated under the Securities Act to
non-U.S. persons, (v) pursuant to the exemption from registration provided
by Rule 144 under the Securities Act (if available), (vi) in
accordance with another exemption from the registration requirements of the
Securities Act (and based upon an opinion of counsel if the Company so
requests) or (vii) pursuant to an effective registration statement under
the Securities Act, and we further agree to provide to any person purchasing
any of the Securities from us a notice advising such purchaser that resales of
the Securities are restricted as stated herein.


 


4.             We
are not acquiring the Securities for or on behalf of, and will not transfer the
Securities to, any pension or welfare plan (as defined in Section 3 of the
Employee Retirement Income


 


C-1





















 


Security Act of
1974 as amended) or plan (as defined in Section 4975 of the Internal
Revenue Code of 1986, as amended), except as permitted in the section entitled
“Notice to Investors” of the Offering Memorandum.


 


5.             We
understand that, on any proposed resale of any Securities, we will be required
to furnish to the Trustee and the Company such certification, legal opinions
and other information as the Trustee and the Company may reasonably require to
confirm that the proposed sale complies with the foregoing restrictions.  We further understand that the Securities
purchased by us will bear a legend to the foregoing effect.


 


6.             We
are an institutional “accredited investor” (as defined in Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Securities,
and we and any accounts for which we are acting are each able to bear the economic
risk of our or their investment, as the case may be.


 


7.             We
are acquiring the Securities purchased by us for our account or for one or more
accounts (each of which is an institutional “accredited investor”) as to each
of which we exercise sole investment discretion.


 


C-2





















 


You, the Company,
the Trustee and others are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [Name of Transferee]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


C-3





















 


EXHIBIT D


 


Form of Certificate To Be Delivered in
Connection with Transfers Pursuant to Regulation S


 


[           ], [    ]


 


The Bank of New York


101 Barclay Street 8W


New York, NY 10286


 


Re:            Buhrmann US Inc. (the “Company”) 7 7/8% Senior
Subordinated Notes due 2015 (the “Securities”)


 


Ladies and
Gentlemen:


 


In connection with our proposed sale of
$[        ] aggregate principal amount
of the Securities, we confirm that such sale has been effected pursuant to and
in accordance with Regulation S under the U.S. Securities Act of 1933, as
amended (the “Securities Act”), and, accordingly, we represent that:


 


(1)            the offer of the Securities was not made to a person
in the United States;


 


(2)            either (a) at the time the buy offer was
originated, the transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor any
person acting on our behalf knows that the transaction has been pre-arranged
with a buyer in the United States;


 


(3)            no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;


 


(4)            the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act; and


 


(5)            we have advised the transferee of the transfer
restrictions applicable to the Securities.


 


You, the Company
and counsel for the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. 
Terms used in this certificate have the meanings set forth in Regulation
S.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signature

  	
   

  



 


D-1





















 


EXHIBIT E


 


SENIOR SUBORDINATED GUARANTEE


 


For value
received, each of the undersigned hereby unconditionally guarantees, as
principal obligor and not only as a surety, to the Holder of this Security the
cash payments in United States dollars of principal of, premium, if any, and
interest on this Security in the amounts and at the times when due and interest
on the overdue principal, premium, if any, and interest, if any, of this
Security, if lawful, and the payment or performance of all other obligations of
the Company under the Indenture (as defined below) or the Securities, to the
Holder of this Security and the Trustee, all in accordance with and subject to
the terms and limitations of this Security, Article Eleven of the
Indenture and this Guarantee.  This
Guarantee will become effective in accordance with Article Eleven of the
Indenture and its terms shall be evidenced therein.  The validity and enforceability of any
Guarantee shall not be affected by the fact that it is not affixed to any
particular Security.


 


Capitalized terms
used but not defined herein shall have the meanings ascribed to them in the Indenture
dated as of March 2, 2005, among Buhrmann US Inc., a Delaware corporation,
as issuer (the “Company”), Buhrmann N.V. and the other Guarantors named therein
and The Bank of New York, as trustee (the “Trustee”), as amended or
supplemented (the “Indenture”).


 


The obligations of
the undersigned to the Holders of Securities and to the Trustee pursuant to
this Guarantee and the Indenture are expressly set forth in Article Eleven
of the Indenture and reference is hereby made to the Indenture for the precise
terms of the Guarantee and all of the other provisions of the Indenture to
which this Guarantee relates.


 


No stockholder,
officer, director, employee or incorporator, as such, past, present, or future,
of any Guarantor shall have any personal liability under the Guarantee by
reason of his, her or its status as such stockholder, officer, director,
employee or incorporator.


 


This Guarantee is
subordinated in right of payment, in the manner and to the extent set forth in Article Twelve
of the Indenture, to the prior payment in full in cash or Cash Equivalents of
all Guarantor Senior Debt of the Guarantors, whether outstanding on the date of
the Indenture or thereafter created, incurred, assumed or guaranteed.


 


THIS GUARANTEE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.  The undersigned Guarantor hereby agrees to
submit to the jurisdiction of the courts of the State of New York in any action
or proceeding arising out of or relating to this Guarantee.


 


This Guarantee is
subject to release upon the terms set forth in the Indenture.


 


E-1





















 


IN WITNESS
WHEREOF, each Guarantor has caused its Guarantee to be duly executed.


 


Date:


 


	
   

  	
  [                         ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF
  NEW YORK,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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