**Exhibit 4.3**

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** **

**AMENDMENTAND RESTATEMENT AGREEMENT**

**31January 2007**

 

between

**SMURFIT KAPPA CORPORATION LIMITED**

as the Parent

and

**DEUTSCHEBANK AG, LONDON BRANCH**

as Facility Agent

 

inrespect of a

**SENIOR CREDIT FACILITY**

**dated 30 November 2005 as amendedby an amendment letter dated****27 February 2006 and as further amended by an agreement dated****20 November 2006**

** **

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5Old Broad StreetLondon  EC2N 1DW

 

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**TABLE OF CONTENTS**
|    | ** ** | ** **                                     | ** ** | **Page** |
|----|------------|------------------------------------------------|------------|----------|
| 1. |       | INTERPRETATION                                 |       | 1        |
| 2. |       | AMENDMENT TO THE SENIOR  FACILITY AGREEMENT    |       | 1        |
| 3. |       | EFFECTIVE DATE                                 |       | 1        |
| 4. |       | RATIFICATION OF THE  SENIOR FACILITY AGREEMENT |       | 2        |
| 5. |       | REPRESENTATIONS AND  WARRANTIES                |       | 2        |
| 6. |       | EXPENSES AND STAMP DUTY                        |       | 3        |
| 7. |       | COUNTERPARTS                                   |       | 3        |
| 8. |       | GOVERNING LAW AND  JURISDICTION                |       | 3        |

 

 

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**THIS AGREEMENT** is dated 31January****2007 and is made

**BETWEEN**:

**(1)****                                ****SMURFIT KAPPA CORPORATION LIMITED**(formerly knownas Jefferson Smurfit Group Limited), a company incorporated in Ireland(registered number 357957) (the “**Parent**”); and

**(2)****                                ****DEUTSCHE BANK AG, LONDON BRANCH** as facility agent (in its capacity the “**Facility Agent**”).

**WHEREAS:**

**(A)**                               This Agreement is supplemental to theSenior Credit Facility dated 30 November 2005 between the Parent, the Company,the original borrowers, the original guarantors, the Arrangers, the originalLenders, the Issuing Bank, the Facility Agent and the Security Agent as amendedby an amendment letter dated 27February 2006 and as further amended by an agreement dated 20 November 2006 (the“**Senior Facility Agreement**”).

**(B)****                              **The parties wish to amend and restate theSenior Facility Agreement in its entirety on the terms and subject to theconditions set out in this Agreement.

**IT IS AGREED**as follows:

# **1.****                                      INTERPRETATION**

## **1.1****                              **Subjectto the terms of this Agreement, words and expressions defined in the SeniorFacility Agreement shall have the same meanings in this Agreement.

## **1.2****                              **Inthis Agreement, any reference to a “Clause”, or a “Schedule” is, unless thecontext otherwise requires, reference to a clause or a schedule to thisAgreement.

## **1.3****                              **Inaccordance with the Senior Facility Agreement, the Parent and the FacilityAgent designate this Agreement a Senior Finance Document.

# **2.****                                      AMENDMENTTO THE SENIOR FACILITY AGREEMENT**

Witheffect from the Effective Date (as defined below), the Senior FacilityAgreement shall be amended as set out in Schedule 1 to this Agreement (*Amended and Restated*Senior *FacilityAgreement*) and all references in the Senior Facility Agreement to “thisAgreement” shall include this Agreement.

# **3.****                                      EFFECTIVEDATE**

## The effectivedate (the “**Effective Date**”) ofthis Agreement shall be the later of the date of this Agreement and the date onwhich the Facility Agent confirms (and shall confirm upon receipt) that it hasbeen provided with:

### **(a)****                                 **acopy, certified true by a duly authorised officer of the Parent or a solicitorof Kirkland & Ellis International LLP (London office), of a boardresolution of the Parent approving (i) the execution, delivery and performanceof this Agreement, 

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### (ii) theterms and conditions of this Agreement and (iii) authorising a named person orpersons to sign this Agreement;

### **(b)****                                 **acopy, certified true by a duly authorised officer of the Parent or a solicitorof Kirkland & Ellis International LLP (London office), of the Parent’scorporate constitutional documents;

### **(c)****                                 **alegal opinion from White & Case LLP, legal advisers as to matters ofEnglish law to the Arrangers and the Facility Agent, addressed to the FinanceParties;

### **(d)****                                 **a legal opinion of McCann FitzGerald, legaladvisers as to matters of Irish law to the Arrangers and the FacilityAgent, addressed to the FinanceParties;

### **(e)****                                 **theIPO Structure Paper;

### **(f)****                                   **feeletters from the Facility Agent dated 10 January 2007 countersigned by Parentin respect of fees payable by the Parent in connection with the amendment andrestatement of the Senior Facility Agreement (the “**Fee Letters**”); and

### **(g)****                                **evidencethat all fees and expenses have been or will be paid on the basis of the FeeLetters,

eachin form and substance satisfactory to the Facility Agent acting reasonably.

# **4.****                                      RATIFICATIONOF THE SENIOR FACILITY AGREEMENT**

## **4.1****                              **TheSenior Facility Agreement as amended by this Agreement is ratified andconfirmed.

## **4.2****                              **Subjectas amended by this Agreement, the Parent on behalf of the Guarantors, confirmsthat the provisions of the guarantee and indemnity contained in clause 19 (*Guarantee and Indemnity*) of the SeniorFacility Agreement shall remain in full force and effect on and after theEffective Date and shall apply equally to the obligations of the Borrowersunder Clause 6 (*Expenses and Stamp Duty*)of this Agreement as if set out in full in this Agreement save that referencesin the Senior Facility Agreement to “this Agreement” shall be construed asreferences to this Agreement.

# **5.****                                      REPRESENTATIONSAND WARRANTIES**

## **5.1****                              **TheParent on behalf of the Obligors represents and warrants to the Lenders:

### **(a)****                                 **eachof the repeating representations included in clause 20 (*Representations*) of the Senior Facility Agreement;

### **(b)****                                 **therepresentation included in clause 20.6 (*No Default*) ofthe Senior Facility Agreement;

### **(c)****                                 **therepresentation included in clause 20.7 (*Authorisations*)of the Senior Facility Agreement,

asif such clauses were set out in full in this Agreement.

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## **5.2****                              **Therepresentations referred to in clause 5.1 above shall survive the execution ofthis Agreement.

# **6.****                                      EXPENSESAND STAMP DUTY**

## **6.1****                              **TheParent shall from time to time on demand of the Facility Agent, reimburse theFacility Agent and each of the Arrangers for all costs and expenses (includinglegal fees) together with any VAT in connection with the negotiation,preparation and execution of this Agreement and the transactions contemplatedin this Agreement.

## **6.2****                              **TheParent shall pay all stamp, registration and other taxes to which thisAgreement, or any judgment given in connection with this Agreement, is or atany time may be subject and shall from time to time on demand of the FacilityAgent indemnify the Facility Agent, the Arrangers and the Lenders against anyliabilities, costs, claims and expenses resulting from any failure to pay orany delay in paying any such tax.

# **7.****                                      COUNTERPARTS**

ThisAgreement may be executed in any number of counterparts and all of suchcounterparts taken together shall be deemed to constitute one and the sameinstrument.

# **8.****                                      GOVERNINGLAW AND JURISDICTION**

## **8.1****                              **ThisAgreement shall be governed by and construed in accordance with English law.

## **8.2****                              **Theprovisions of clause 39 (*Governing Law*)and clause 40.1 (*Jurisdiction*)of the Senior Facility Agreement shall be deemed to be incorporated into thisAgreement as if such clause was set out in full save that references in theSenior Facility Agreement to “this Agreement” shall be construed as referencesto this Agreement.

This Agreement has beenentered into on the date stated at the beginning of this Agreement.

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##### **SCHEDULE 1**

##### **AMENDED AND RESTATED SENIOR FACILITYAGREEMENT**

 

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**SIGNATORIES**

**PARENT**
| The Common Seal of                             | )                            |
|------------------------------------------------|------------------------------|
| **SMURFIT KAPPA**                              | )                            |
| **CORPORATION LIMITED**                        | )                            |
| was affixed hereto in the presence of          | )                            |
|                                           | )                            |
| Director                                       | ) /s/ Ian J. Curley          |
|                                           | )                            |
| Director / Secretary                           | ) /s/ Michael O’Riordan |
|                                           | )                            |
|                                           |                         |
| **THE FACILITY AGENT**                         | ** **                   |
| ** **                                     | ** **                   |
| **EXECUTED by DEUTSCHE BANK AG,**              | )                            |
| **LONDON BRANCH** as  Facility Agent           | )                            |
| on behalf of and with the requisite consent    | )                            |
| of the Lenders pursuant to clause 30.1 of | )                            |
| the Senior Facility Agreement, acting by its   | )                            |
| authorised signatories                         | )                            |
|                                           | ) /s/ [Illegible]            |
|                                           | )                            |
| acting under the authority                     | ) /s/ [Illegible]            |
| of that company                                | )                            |

 

 

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**SCHEDULE 1**

**AMENDED AND RESTATED SENIORFACILITY AGREEMENT**

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** **

**ORIGINALLY DATED 30 NOVEMBER 2005**

**SENIOR CREDIT FACILITY AGREEMENT**

**FOR**

**SMURFIT KAPPA ACQUISITIONS**

** **

**ARRANGED BY**

** **

**DEUTSCHE BANK AG, LONDON BRANCHCITIGROUP GLOBAL MARKETS LIMITEDCREDIT SUISSE FIRST BOSTON INTERNATIONALJP MORGAN PLC**

** **

**WITH**

** **

**DEUTSCHE BANK AG, LONDON BRANCH**as Facility Agent

 

and

** **

**DEUTSCHE BANK AG, LONDON BRANCH**as Security Agent

 

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5 Old Broad StreetLondon EC2N 1DW

 

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**TABLE OF CONTENTS**
|     | ** ** | ** **                          | ** ** | **Page** |
|-----|------------|-------------------------------------|------------|----------|
| 1.  |       | INTERPRETATION                      |       | 1        |
| 2.  |       | FACILITIES                          |       | 37       |
| 3.  |       | PURPOSE                             |       | 41       |
| 4.  |       | CONDITIONS PRECEDENT                |       | 42       |
| 5.  |       | UTILISATION — LOANS            |       | 44       |
| 6.  |       | UTILISATION -  DOCUMENTARY CREDITS  |       | 45       |
| 7.  |       | DOCUMENTARY CREDITS                 |       | 46       |
| 8.  |       | ANCILLARY FACILITIES                |       | 52       |
| 9.  |       | OPTIONAL CURRENCIES                 |       | 54       |
| 10. |       | REPAYMENT                           |       | 58       |
| 11. |       | PREPAYMENT AND  CANCELLATION        |       | 60       |
| 12. |       | INTEREST                            |       | 72       |
| 13. |       | TERMS                               |       | 76       |
| 14. |       | MARKET DISRUPTION                   |       | 78       |
| 15. |       | TAXES                               |       | 79       |
| 16. |       | INCREASED COSTS                     |       | 84       |
| 17. |       | MITIGATION AND CONDUCT  OF BUSINESS |       | 87       |
| 18. |       | PAYMENTS                            |       | 89       |
| 19. |       | GUARANTEE AND INDEMNITY             |       | 92       |
| 20. |       | REPRESENTATIONS                     |       | 96       |
| 21. |       | INFORMATION COVENANTS               |       | 104      |
| 22. |       | FINANCIAL COVENANTS                 |       | 111      |
| 23. |       | GENERAL COVENANTS                   |       | 120      |
| 24. |       | DEFAULT                             |       | 155      |
| 25. |       | THE ADMINISTRATIVE  PARTIES         |       | 162      |
| 26. |       | EVIDENCE AND CALCULATIONS           |       | 168      |
| 27. |       | FEES                                |       | 169      |
| 28. |       | INDEMNITIES AND BREAK  COSTS        |       | 170      |
| 29. |       | EXPENSES                            |       | 172      |
| 30. |       | AMENDMENTS AND WAIVERS              |       | 172      |
| 31. |       | CHANGES TO THE PARTIES              |       | 175      |
| 32. |       | DISCLOSURE OF  INFORMATION          |       | 181      |

 

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| 33.                                                  |   | SET-OFF          |   | 182 |
|------------------------------------------------------|--------|------------------|--------|-----|
| 34.                                                  |   | PRO RATA SHARING |   | 182 |
| 35.                                                  |   | SEVERABILITY     |   | 183 |
| 36.                                                  |   | COUNTERPARTS     |   | 183 |
| 37.                                                  |   | NOTICES          |   | 184 |
| 38.                                                  |   | LANGUAGE         |   | 186 |
| 39.                                                  |   | GOVERNING LAW    |   | 186 |
| 40.                                                  |   | ENFORCEMENT      |   | 186 |
| SCHEDULE 1 ORIGINAL  PARTIES                         |   | 188              |
| SCHEDULE 2 CONDITIONS  PRECEDENT DOCUMENTS           |   | 192              |
| SCHEDULE 3 FORM OF  REQUEST                          |   | 199              |
| SCHEDULE 4 CALCULATION  OF THE MANDATORY COST        |   | 200              |
| SCHEDULE 5 FORM OF  TRANSFER CERTIFICATE             |   | 203              |
| SCHEDULE 6 FORM OF  COMPLIANCE CERTIFICATE           |   | 205              |
| SCHEDULE 7 FORM OF  MARGIN CERTIFICATE               |   | 207              |
| SCHEDULE 8 ACCESSION  DEEDS                          |   | 208              |
| SCHEDULE 9 FORMS OF  DOCUMENTARY CREDIT              |   | 211              |
| SCHEDULE 10 REMAINING  DEBT AGREEMENTS               |   | 222              |
| SCHEDULE 11 MATERIAL  SUBSIDIARIES                   |   | 232              |
| SCHEDULE 12 GUARANTEE  LIMITATIONS                   |   | 233              |
| SCHEDULE 13 AGREED  SECURITY PRINCIPLES              |   | 239              |
| SCHEDULE 14 EXISTING  TREASURY TRANSACTIONS          |   | 243              |
| SCHEDULE 15 ADDITIONAL  FACILITY ACCESSION AGREEMENT |   | 246              |

 

 

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**THIS AGREEMENT** dated 30 November2005, as amended and restated by the Amendment and Restatement Agreement, ismade

**BETWEEN**:

**(1)****                                 SMURFITKAPPA CORPORATION LIMITED** (formerly named Jefferson Smurfit Group Limited),a company incorporated in Ireland (registered number 357957) (the “**Parent**”);

**(2)****                                 SMURFITKAPPA ACQUISITIONS**(formerly named JSG Acquisitions), a companyincorporated in Ireland (registered number 358039) (the “**Company**”);

**(3)****                                 THESUBSIDIARIES OF THE PARENT**listed in Part I of Schedule 1 (*Original Parties*) as original borrowers (in this capacitythe “**Original Borrowers**”);

**(4)****                                 THESUBSIDIARIES OF THE PARENT**listed in Part I of Schedule 1 (*Original Parties*) as original guarantors (in this capacity,together with the Parent, the “**Original Guarantors**”);

**(5)****                                 DEUTSCHEBANK AG, LONDON BRANCH, CITIGROUP GLOBAL MARKETS LIMITED, CREDIT SUISSE FIRSTBOSTON INTERNATIONAL AND JP MORGAN PLC** as arrangers (in this capacity the “**Mandated Lead Arrangers**”****or the “**Arrangers**”);

**(6)****                                 THEPERSONS**listed in Part II of Schedule 1 (*OriginalParties*) as original lenders (the “**OriginalLenders**”);

**(7)****                                 DEUTSCHEBANK AG, LONDON BRANCH** as issuing bank for Documentary Credits (in thiscapacity the “**Issuing Bank**”);

**(8)****                                 DEUTSCHEBANK AG, LONDON BRANCH** as facility agent (in this capacity the “**Facility Agent**”); and

**(9)****                                 DEUTSCHEBANK AG, LONDON BRANCH** as security agent (in this capacity the “**Security Agent**”).

**IT IS AGREED** as follows:

# **1.****                                      INTERPRETATION**

## 1.1**                                 Definitions**

In this Agreement:

“**Acceptable Bank**”****means a bank or financial institution which has a rating ofA or higher by Standard & Poor’s Rating Services, Fitch or IBCA or A2 orhigher by Moody’s Investor Services Inc. or a comparable rating from aninternationally recognised credit rating agency for its long-term debtobligations.

“**Accession Deed**”****means a deed, substantially in the form of Part I ofSchedule 8 (*Accession Deeds*),with such amendments as the Facility Agent may approve or reasonably require.

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“**Accounting Date**”means each 31 March, 30 June, 30 September and 31 December,save as adjusted to ensure that such dates fall on the same day of the week orotherwise with the consent of the Facility Agent.

“**Accounting Period**”means a period of approximately one year, three months or one month ending, inthe case of each three month and one year period, on an Accounting Date forwhich Accounts for delivery to the Facility Agent are required to be prepared.

“**Accounting Principles**”means, in respect of the Accounts prepared for Accounting Periods prior to 1January 2007, accounting principles and practices which are generally acceptedin Ireland and which are the same as those used in the preparation of theSmurfit Kappa Group Base Financial Statements, and in respect of the Accountsprepared for Accounting Periods on and from 1 January 2007, IFRS as applied inthe Revised Smurfit Kappa Group Base Financial Statements.

“**Accounts**” meanseach set of financial statements required to be prepared by a member of theGroup and delivered to the Facility Agent pursuant to this Agreement.

“**Acquisition**” meansthe acquisition by the Company of Target Shares pursuant to the Share PurchaseAgreement.

“**Acquisition andRefinancing Costs**” means all fees, costs, expenses and Taxesincurred by (or required to be paid by) any member of the Group in connectionwith the Acquisition, the establishment of the Facilities, the refinancing ofthe Smurfit Kappa Group and the Target Group’s existing indebtedness and theTransaction Documents (including related prepayment penalties and make-wholepayments).

“**Acquisition Documents**”means:

(a)           theShare Purchase Agreement; and

(b)           theAcquisition PIK Note.

“**Acquisition PIK Note**”means a non-cash pay promissory note issued by Smurfit Kappa Group Limited or adirect subsidiary thereof to the Vendors pursuant to Clause 3.4 of the SharePurchase Agreement.

“**Additional Borrower**”means a member of the Group which becomes a Borrower on or after the date ofthis Agreement.

**“Additional Facility”** means anadditional term loan facility referred to in Clause 2.4 (*AdditionalFacilities*) and “**Additional Facilities”**means all or any such Additional Facilities.

**“Additional Facility Accession Agreement”**means a deed in the form of Schedule 15, with such amendments as theFacility Agent may approve or reasonably require.

**“Additional Facility Availability Period”**in relation to an Additional Facility means the period specified in theAdditional Facility Accession Agreement for that Additional Facility.

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**“Additional Facility Fee Letter”**meansany letter entered into from time to time between the Initial AdditionalFacility Lenders of the relevant Additional Facility and/ or the arrangers ofthe relevant Additional Facility and the Company setting out the fees to bepaid by the Company in respect of an Additional Facility.

**“Additional Facility Commitment”**means in relation to:

(a)                                  anInitial Additional Facility Lender the amount in euros or relevant OptionalCurrency set out as the Additional Facility Commitment of a Lender in therelevant Additional Facility Accession Agreement and the amount of any otherAdditional Facility Commitment transferred to it under this Agreement; and

(b)                                 anyother Lender, the amount in euros or relevant Optional Currency (as applicable)transferred to it in accordance with this Agreement,

to the extent not cancelled, reduced or transferred byit in accordance with this Agreement.

“**Additional Guarantor**”means a member of the Group which becomes a Guarantor on or after the date ofthis Agreement.

“**Additional Obligor**”means an Additional Borrower or an Additional Guarantor.

“**Administrative Party**”means an Arranger, the Issuing Bank, the Facility Agent or the Security Agent.

“**Affiliate**”means a Subsidiary or a Holding Company of a person or any other Subsidiary ofthat Holding Company.

“**Agent**” meansthe Facility Agent and/or the Security Agent as the context requires.

“**Agent’s Spot Rate ofExchange**” means the Facility Agent’s spot rate of exchange for thepurchase of the relevant currency in the London foreign exchange market withthe Base Currency at or about 11.00 a.m. on a particular day.

“**Agreed List of Obligorsand Security**” means the list of Obligors and Transaction SecurityDocuments agreed between the Arrangers and the Parent (each acting reasonably)and initialled by the Company or Kirkland & Ellis International LLP and theFacility Agent for identification purposes with such amendments thereto as theCompany and the Facility Agent may agree from time to time consistent theprovisions of Clause 23.32 (*Security*), theStructure Memorandum, the Agreed Security Principles or otherwise which are notmaterially prejudicial to the security package taken as a whole.

“**Agreed SecurityPrinciples**” means the security principles set out in Schedule 13 (*Agreed**Security Principles*).

“**Amendment andRestatement Agreement**” means the the agreement dated 31 January 2007between the parties tothis Agreement pursuant to which this Agreement was amended and restated.

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“**Ancillary Commitment**”means, with respect to any Ancillary Lender and an Ancillary Facility, the BaseCurrency Equivalent of the maximum amount of Ancillary Outstandings that can atany one time be outstanding under the Ancillary Facility Documents to which itis party determined on the first day on which that Ancillary Facility becomesavailable.

“**Ancillary Facility**”means any facility or financial accommodation (including any overdraft, foreignexchange, guarantee or bonding facility) established by a Lender underClause 8 (*Ancillary Facilities*)in place of all or part of its Revolving Credit Commitment.

“**Ancillary FacilityDocument**” means any document evidencing any Ancillary Facility.

“**Ancillary Lender**”means a Lender which establishes an Ancillary Facility.

“**Ancillary Outstandings**”on any date means the equivalent on such date in the Base Currency of theprincipal amount actually or contingently outstanding under an AncillaryFacility, as calculated under Clause 8 (*AncillaryFacilities*) and the Ancillary Facility Document(s) for thatAncillary Facility.

“**Approved Bank**”means Deutsche Bank AG, London Branch and any Acceptable Bank and any otherbank which has been approved by the Facility Agent provided in each case thatsuch bank has been given and has duly acknowledged all notices (if any) to begiven to it pursuant to the Security Documents.

“**Approved IPO**”means the proposed IPO of the shares of the Parent or a Holding Company of theParent to occur in the year 2007 and where the IPO Proceeds of such IPO are tobe applied directly or indirectly (by upstreaming and/or downstreaming suchproceeds by loans, repayment of loans and payment of dividends at thediscretion of the Company, including, at the discretion of the Company, thedownstreaming of an amount to the Company by way of share subscription andimmediate upstreaming by way of repayment of part of the Smurfit Kappa FundingLoan) in all or any of the following permitted purposes: (i) in full or partialprepayment, redemption, defeasance or purchase of the 2012 Senior Cash PayNotes, (ii) in full or partial prepayment of the Acquisition PIK Note, (iii) infull or partial prepayment of the Holdco PIK Note and (iv) towards payment ofthe fees and expenses of such IPO and reduction of indebtedness as set out in(i) (ii) and (iii).

“**A1 Term Loan**”means a Loan under the A1 Term Loan Facility.

“**A1****Term Loan Commitment**” means:

(a)                                  foran Original Lender, the amount set opposite its name in Part II ofSchedule 1 (*Lenders*) underthe heading “**General****Term LoanCommitments — A1**”; and

(b)                                 forany other Lender, the amount of any A1 Term Loan Commitment so designated whichit acquires,

to the extent not cancelled, transferred or reducedunder this Agreement.

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“**A1 Term Loan Facility**”has the meaning given to it in Clause 2 (*Facilities*).

“**A2 Term Loan**”means a Loan under the A2 Term Loan Facility.

“**A2****Term Loan Commitment**” means:

(a)                                  foran Original Lender, the amount set opposite its name in Part II ofSchedule 1 (*Lenders*) underthe heading “**Restricted Term Loan Commitments — A2**”;and

(b)                                 forany other Lender, the amount of any A2 Term Loan Commitment so designated whichit acquires,

to the extent not cancelled, transferred or reducedunder this Agreement.

“**A2 Term Loan Facility**”has the meaning given to it in Clause 2 (*Facilities*).

“**Auditors**” meansPricewaterhouseCoopers, Ernst & Young, KPMG or Deloitte & Touche orsuch other firm of independent public accountants of international standingwhich may be appointed by the Parent as its auditors under Subclause 21.6(*Auditors*).

“**AvailabilityPeriod**” means the period from and including the date of thisAgreement to and including:

(a)                                  forthe Term Loan Facilities, the date falling 10 Business Days after the ClosingDate (or if less than the full amount of any such Facility is drawn on theClosing Date, the remaining undrawn amount of each such Facility shall beavailable until the date falling 90 days after the Closing Date on the termsset out in Clause 2.7(e) (*Limitations*));

(b)                                 forthe Restructuring Loan Facility, the date falling 3 years after the ClosingDate;

(c)           forthe Revolving Credit Facility, the Final Revolving Maturity Date; and

(d)                                 forany Additional Facility, the relevant Additional Facility Availability Period.

“**Barclays L/Cs**”means letters of credit in favour of Barclays Bank plc substantially in theform set out in Part III of Schedule 9 (*Form of Barclays L/C*)to be provided on the Closing Date in connection with certain letters of creditand guarantees issued by it under the senior facility provided to the Target.

“**Base Currency**”means euros.

“**BaseCurrency Amount**”****of a Creditmeans:

(a)           ifthe Credit is denominated in the Base Currency, its amount; or

(b)                                 ifthe Credit is denominated in an Optional Currency, its equivalent in the BaseCurrency calculated on the basis of the Agent’s Spot Rate of Exchange oneBusiness Day before the Rate Fixing Day for that Credit or if so provided 

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in this Agreement on the basis of the Agent’s SpotRate of Exchange on the date of calculation.

“**Base Currency Equivalent**”means, in relation to an amount expressed or denominated in any currency, theequivalent thereof in the Base Currency converted at the Agent’s Spot Rate ofExchange on the date of the relevant calculation, and in relation to an amountexpressed or denominated in the Base Currency, such amount.

“**Base Financial Statements**”means the Smurfit Kappa Group Base Financial Statements and the Target GroupBase Financial Statements.

“**Bond Refinancing Debt**”****means Financial Indebtedness not exceeding an aggregateamount equal to the principal amount of the Securities then outstanding,accrued interest and costs and expenses incurred in connection with the refinancing,including any prepayment penalties, bank or break fees and advisors’ fees onthe refinancing (less the amount of any proceeds received by any member of theGroup from the closing out of any Treasury Transaction entered into inconnection therewith or, if not closed out on refinancing, less the aggregatemark to market value of such Treasury Transactions to the extent such aggregateamount is positive) incurred to refinance the Securities.

“**Borrower**” meansan Original Borrower or an Additional Borrower.

“**Break Costs**”means the amount (if any) by which:

(a)                                  theinterest (excluding, for the avoidance of doubt, the Margin and the MandatoryCost) which a Lender should have received for the period from the date ofreceipt of all or any part of its participation in a Loan or an overdue amountto the last day of the applicable Term in respect of that Loan or overdueamount, had the principal or overdue amount received been paid on the last dayof that Term;

### exceeds:

(b)                                 theamount which that Lender would be able to obtain by placing an amount equal tothe principal amount (including for the avoidance of doubt any component inrespect of interest) of such Loan or overdue amount received or recovered by iton deposit with a leading bank in the Relevant Interbank Market for a periodstarting on the Business Day of receipt (in the case of prepayments of whichthe Facility Agent has at least 2 Business Days notice), and on the BusinessDay following receipt or recovery (in the case where less than 2 Business Daysnotice is given) and ending on the last day of the current Term.

“**Brought Forward Amount**”means has the meaning provided in Clause 22.1(iv)(b).

“**B1 Term Loan**”means a Loan under the B1 Term Loan Facility.

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“**B1****Term Loan Commitment**” means:

(a)                                  foran Original Lender, the amount set opposite its name in Part II ofSchedule 1 (*Lenders*) underthe heading “**General****Term LoanCommitments — B1**”; and

(b)                                 forany other Lender, the amount of any B1 Term Loan Commitment so designated whichit acquires,

to the extent not cancelled, transferred or reducedunder this Agreement.

“**B1 Term LoanFacility**” has the meaning given to it in Clause 2 (*Facilities*).

“**B2 Term Loan**”means a Loan under the B2 Term Loan Facility.

“**B2****Term Loan Commitment**” means:

(a)                                  foran Original Lender, the amount set opposite its name in Part II ofSchedule 1 (*Lenders*) underthe heading “**Restricted Term Loan Commitments — B2**”;and

(b)                                 forany other Lender, the amount of any B2 Term Loan Commitment so designated whichit acquires,

to the extent not cancelled, transferred or reducedunder this Agreement.

“**B2 Term LoanFacility**” has the meaning given to it in Clause 2 (*Facilities*).

“**Business Day**”means a day (other than a Saturday or a Sunday) on which banks are open forgeneral business in London and:

(a)                                  ifon that day a payment in or a purchase of a currency (other than euro) is to bemade, the principal financial centre of the country of that currency; or

(b)                                 ifon that day a payment in or a purchase of euro is to be made, which is also aTARGET Day.

“**Business Plan**”means the business plan referred to in paragraph 16 of Part I in Schedule 2 (*Condition Precedent Documents*).

“**Canadian Dollars**”means the lawful currency for the time being of Canada.

“**Capital Expenditure**”means any expenditure which is treated as capital expenditure in accordancewith the Accounting Principles.

“**Cash**”means cash in hand or:

(a)           ondeposit (including cash on current accounts) with any Acceptable Bank; or

(b)                                 ondeposit (including cash on current accounts) with any other bank or financialinstitution in an aggregate amount not exceeding €25,000,000 (or itsequivalent) provided that (except for an amount not exceeding €10,000,000 (orits equivalent)) it is on deposit with a bank or financial institution approvedby 

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the Arrangers on or prior to the date hereof (plus anamount, in respect of deposits providing cash collateral for a loan as part ofa back to back arrangement, not to exceed €30,000,000 (or its equivalent) atany time),

provided that it is not subject to any SecurityInterest given to support Financial Indebtedness (other than one arising underthe Security Document).

“**CashEquivalent**” means at any time:

(a)                                  certificatesof deposit maturing within one year after the relevant date of calculation,issued by an Acceptable Bank or overnight deposits with an Acceptable Bank;

(b)                                 anyinvestment in marketable obligations issued or guaranteed by the government ofthe United States of America, the U.K., a Participating Member State, any otherOECD country with a rating of AA or higher by Standard & Poor’s RatingServices, Fitch or IBCA or Aa 2 by Moody’s Investor Services Inc. or (in anamount not exceeding US$5,000,000) bonds issued by the government of Colombiaor by an instrumentality or agency of the government of the United States ofAmerica, the U.K., a Participating Member State or such OECD country having anequivalent credit rating, maturing within one year after the relevant date ofcalculation;

(c)                                  openmarket commercial paper and money market investments having a maturity of lessthan a year:

(i)            forwhich a recognised trading market exists;

(ii)                                  issuedin the United States of America, the U.K., a Participating Member State or anyother OECD country with a rating of AA or higher by Standard & Poor’sRating Services, Fitch or IBCA or Aa2 by Moody’s Investor Services Inc.;

(iii)                               whichmatures within one year after the relevant date of calculation; and

(iv)                              whichhas a credit rating of either A-1 by Standard & Poor’s RatingServices or IBCA or P-1 by Moody’s Investor Services Inc, or, if norating is available in respect of the commercial paper or money marketinvestments, the issuer of which has, in respect of its long-term debtobligations, an equivalent rating (or in the case of money market investmentsis guaranteed by an Acceptable Bank);

(d)           UnitedKingdom certificates of tax deposit;

(e)                                  Sterlingbills of exchange eligible for rediscount at the Bank of England and acceptedby an Acceptable Bank; or

(f)                                    anyother debt security approved by the Majority Lenders,

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in each case, to which any member of the Group isbeneficially entitled at that time and which is not subject to any SecurityInterest given to support Financial Indebtedness (other than one arising underthe Security Document).

“**Cash Pay Securities**”means (i) the 2012 Senior Cash Pay Notes, (ii) 2015 Senior Subordinated CashPay Notes and (iii) any SEC registered debt securities issued by Smurfit KappaFunding plc for which any of the foregoing debt securities are exchanged.

“**Cash Pooling Facilities**”****means the facilities used for the purposes of the cashpooling arrangements of the Group consistent with the practice of the Group andthe Target Group as at the date hereof.

“**Certain Funds Credits**”means the Credits to be utilised to complete the Acquisition, to refinance theexisting indebtedness of the Target Group and to refinance the existingindebtedness of the Smurfit Kappa Group and related costs and expenses.

“**Certain Funds Period**”means the period commencing on the date of this Agreement and ending on the lastdate of the Availability Period for the Term Facilities provided that theClosing Date shall have occurred on or before 31 December 2005.

“**Change of Control**”has the meaning given to it in Clause 11.2 (*Mandatory prepayment —change of control/ownership*).

“**Chief Executive Officer**”****means, Gary McGann as chief executive officer of theParent, and in each case includes any replacement therefor (or in the absenceof such officer, any director of the Parent acting as such officer’s deputy inthat capacity).

“**Chief Financial Officer**”****means Ian Curley as finance director of the Parent or anyreplacement therefor (or in the absence of such officer, any director of theParent acting as such officer’s deputy in that capacity).

“**Chief Operating Officer**”means, Anthony Smurfit as chief operating officer of the Parent, and in eachcase means any replacement therefor (or in the absence of such officer, anydirector of the Parent acting as such officer’s deputy in that capacity).

“**Clean-up period**”means the period beginning on the date of this Agreement and ending on the day90 days after the Closing Date.

“**Closing Date**”****means the date on which the Acquisition is completed.

“**Commitment**”means a General Term Loan Commitment, a Restricted Term Loan Commitment, aRestructuring Credit Commitment, a Revolving Credit Commitment and/or anAdditional Facility Commitment of a Lender.

“**Commitment Letter**”means the letter dated 9 September 2005 entered into between the Mandated LeadArrangers and the Company setting out the basic terms of the Commitmentreferred to in this Agreement.

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“**Compliance Certificate**”means a certificate, substantially in the form of Schedule 6 (*Form of Compliance Certificate*), settingout, among other things, calculations of the financial covenants and of theamount of any Excess Cash Flow.

“**Consolidated Cash Flow**”has the meaning given to it in Clause 22 (*FinancialCovenants*).

“**Core Assets**”means any assets (including any paperboard, paper or pulp mill or plant) usedin connection with the Core Business.

“**Core Business**”means (a) the manufacture, sale and distribution of containerboard andcorrugated containers, and (b) the collection of wastepaper for recycling, andin each case includes anything incidental or ancillary to such activities.

“**Credit**”****means a Loan or a Documentary Credit.

“**C1 Term Loan**”means a Loan under the C1 Term Loan Facility.

“**C1 Term LoanCommitment**” means:

(a)                                  foran Original Lender, the amount set opposite its name in Part II ofSchedule 1 (*Lenders*) underthe heading “**General****Term Loan Commitments— C1**”; and

(b)                                 forany other Lender, the amount of any C1 Term Loan Commitment so designated whichit acquires,

to the extent not cancelled, transferred or reducedunder this Agreement.

“**C1 Term Loan Facility**”has the meaning given to it in Clause 2 (*Facilities*).

“**C2 Term Loan**”means a Loan under the C2 Term Loan Facility.

“**C2****Term Loan Commitment**” means:

(a)                                  foran Original Lender, the amount set opposite its name in Part II ofSchedule 1 (*Lenders*) underthe heading “**Restricted Term Loan Commitments — C2**”;and

(b)                                 forany other Lender, the amount of any C2 Term Loan Commitment so designated whichit acquires,

to the extent not cancelled, transferred or reducedunder this Agreement.

“**C2 Term Loan Facility**”has the meaning given to it in Clause 2 (*Facilities*).

“**Cure Amount**”means any amount referred to under Clause 24.21 (*Right toCure Financial Ratios*).

“**Currency Test Date**”has the meaning given to it in Clause 9.6 (*Term Loan, RestructuringLoan or Additional Facility Loan Revaluation*).

“**Czech Commercial Code**”means Act No. 513/1991 Coll., as amended.

 

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“**Danish Kroner**”means the lawful currency for the time being of Denmark.

“**Debt Pushdown**”means the pushdown of debt within the Group substantially in the mannerdescribed in the Structure Memorandum or otherwise in a manner (notified inwriting to the Facility Agent) that does not adversely affect the interests ofthe Lenders in any material respect.

“**Default**”means:

(a)           anEvent of Default; or

(b)                                 anevent which would be (with the expiry of a grace period, the giving of noticeunder the Senior Finance Documents or any combination of them) an Event ofDefault.

“**Documentary Credit**”means a letter of credit, guarantee, bond or other instrument to be issued bythe Issuing Bank pursuant to Clause 6 (*Utilisation- Documentary Credits*).

“**Documentary Credit Claim**”has the meaning given to it in Clause 7.4 (*Claims under a DocumentaryCredit*).

“**Dutch Borrower**”means a Borrower incorporated or established under the laws of the Netherlands.

“**Dutch Banking Act**”means the Dutch 1992 Act on the Supervision of the Credit System 1992 (*Wet toezicht Kredietwezen 1992*).

“**Dutch Exemption Regulation**”means the Dutch 1992 Banking Act Exemption Regulation (*VrijstellingsregelingWtk 1992*).

“**Dutch GAAP**”means accounting principles and practices which, as at the date hereof, aregenerally accepted in the Netherlands and which are the same as those used inthe preparation of the Target Group Base Financial Statements.

“**Environmental Approval**”means any authorisation required by Environmental Law.

“**Environmental Claim**”means any claim by any person in connection with a breach, or alleged breach,of Environmental Law.

“**EnvironmentalLaw**” means any law or regulation concerning:

(a)           theprotection of health and safety;

(b)           theenvironment; or

(c)                                  anyemission or substance which is capable of causing harm to any living organismor the environment.

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“**EquityDocuments**”****means:

(a)           theShareholders Agreement; and

(b)           theconstitutional documents of the Parent.

“**EURIBOR**”relative to a Loan or overdue amount in euro for its Term means:

(a)           theapplicable Screen Rate; or

(b)                                 ifno Screen Rate is available for that Term of that Loan or overdue amount, thearithmetic mean (rounded upward to four decimal places) of the rates assupplied to the Facility Agent at its request quoted by the Reference Banks toleading banks in the European interbank market,

as of 11.00 a.m. (Brussels time) on the RateFixing Day for the offering of deposits in euro for a period comparable to thatTerm.

“**euro**” or “**€**” means the single currency of the Participating MemberStates.

“**Event of Default**”means an event specified as such in this Agreement.

“**Excess Cash Flow**” has the meaning givento it in Clause 11.6 (*Mandatoryprepayment - Excess Cash Flow*).

“**Excess Currency Amount**”has the meaning given to it in Clause 9.6 (*Term Loan, RestructuringLoan or Additional Facility Revaluation*).

“**Existing Kappa Bonds**”****means:

(a)                                  €95,000,000105⁄8% Class A Senior Subordinated Notes due 2009 issued 23 May 2003;

(b)                                 €370,000,000105⁄8% Senior Subordinated Notes due 2009 issued 23 July 1999;

(c)                                  $100,000,000105⁄8% Senior Subordinated Notes due 2009 issued 23 July 1999; and

(d)                                 €145,000,000121⁄2% Senior Subordinated Discount Notes due 2009 issued 23 July 1999.

“**Existing Securitisation**”has the meaning provided in the definition of “Non-Recourse”.

“**Existing TreasuryTransaction**”****means aTreasury Transaction entered into on or before the date of this Agreement andexisting on the date of this Agreement as identified in Schedule 14 (*Existing Treasury Transactions*).

“**Expert Valuation**”means an evaluation issued by a court-appointed expert valuator in accordancewith Section 196a(3)(5) of the Czech Commercial Code in relation to 

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(i) the guarantee to be provided hereunder by KappaPackaging Czech and (ii) the joint and several obligations of Kappa PackagingCzech assumed hereunder.

“**Facility**” meansa Term Loan Facility, a Restructuring Loan Facility, a Revolving CreditFacility or each Additional Facility (if any) made available under thisAgreement or an Ancillary Facility established pursuant to, this Agreement.

“**FacilityOffice**” means the office(s) notified by a Lender to the FacilityAgent:

(a)           onor before the date it becomes a Lender; or

(b)           bynot less than five Business Days’ notice,

as the office(s) through which it will perform itsobligations, and to which payments for its account should be made, under thisAgreement.

“**Fee Letter**”means the letter dated 9 September 2005 entered into between one or moreAdministrative Parties and the Company setting out the amount of certain feesreferred to in this Agreement.

“**Final Maturity Date**”means

### (a)                                  foreach Term Loan Facility and Restructuring Loan Facility, the ninth anniversaryof the Closing Date, or if later, 31 December 2014; and

### (b)                                 foreach Additional Facility, the date specified in the Additional FacilityAccession Agreement,

### or, in each case if that day is not aBusiness Day, the immediately preceding Business Day.

“**Final Revolving MaturityDate**” means the seventh anniversary of the Closing Date.

“**Finance Party**”means a Hedging Bank, a Lender or an Administrative Party from time to timehereunder.

“**FinancialIndebtedness**” means any indebtedness for or in respect of:

(a)           moneysborrowed and debit balances at financial institutions;

(b)           anyacceptance credit or bill discounting facility;

(c)           anybond, note, debenture, loan stock or other similar instrument;

(d)                                 anypreference share by its terms required to be redeemed prior to the FinalMaturity Date;

(e)                                  anyfinance or capital lease or hire purchase, conditional sale or otherarrangement required by the Accounting Principles to be capitalised foraccounting purposes;

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(f)                                    receivablessold or discounted (otherwise than on a non-recourse basis and other thanreceivables sold or discounted by any member of the Group to Smurfit KappaTreasury or pursuant to a Permitted Receivables Securitisation);

(g)                                 theacquisition cost of any asset or service to the extent payable before or afterits acquisition or possession by the party liable where the advance or deferredpayment (as the case may be) (i) is arranged primarily as a method of raisingfinance or financing the acquisition or construction of that asset or theacquisition of that service (other than trade credit on customary commercialterms), or (ii) involves a period of more than six months before or after (asthe case may be) the date of acquisition or supply;

(h)                                 anyderivative transaction protecting against or benefiting from fluctuations inany rate or price (and, except for non-payment of an amount, the thenmark to market value of the derivative transaction will be used to calculateits amount);

(i)                                     anyother transaction (including any forward sale or purchase agreement) which isrequired to be accounted for as a borrowing under the Accounting Principles;

(j)                                     anycounter-indemnity obligation in respect of any guarantee, indemnity,bond, documentary credit or other instrument issued by a bank or financialinstitution; or

(k)                                  anyguarantee, indemnity or similar assurance against financial loss of any personin respect of any item referred to in paragraphs (a) to (j) above and anyagreement to maintain the solvency of any person, whether by investing in,lending to, or purchasing assets from such person,

provided that Financial Indebtedness shall not includethe Holdco PIK Note and the Acquisition PIK Note.

“**Financial Model**”means the base case financial model prepared by or on behalf of the Parent andagreed with the Facility Agent and referred to in paragraph 14 of Part I ofSchedule 2 (*Condition Precedent Documents*).

“**First Drawdown**”means the making of the first Utilisation.

“**First Drawdown Date**”means the date of First Drawdown.

“**Funds Flow Statement**”means the statement prepared by the Parent and agreed with the Facility Agentshowing all payments by the Parent and/or by members of the Group in connectionwith the Acquisition and the refinancing of certain indebtedness of the Group,and the flow of funds occurring on and immediately before and after the FirstDrawdown and in relation to the refinancings anticipated therein, during theCertain Funds Period.

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“**General****Term Loan Commitment**” means:

(a)                                  foran Original Lender, the amount set opposite its name in Part II ofSchedule 1 (*Lenders*) underthe heading “**General****Term LoanCommitments**”; and

(b)                                 forany other Lender, the amount of any General Term Loan Commitment so designatedwhich it acquires,

to the extent not cancelled, transferred or reducedunder this Agreement.

“**General Term Loan Facility**”means the A1 Term Loan Facility, the B1 Term Loan Facility, and the C1 TermLoan Facility.

“**Group**” meansthe Parent and its Subsidiaries but excluding the SPV Group (and for theavoidance of doubt shall prior to the Closing Date mean the Smurfit Kappa Groupand from the Closing Date shall mean the Smurfit Kappa Group (excluding the SPVGroup) and the Target Group).

“**Guarantee**”means the guarantee and indemnity contained in Clause 19.1 (*Guarantee and Indemnity*).

“**Guarantor**”means an Original Guarantor and any Additional Guarantor.

“**Hedging Bank**”has the meaning given to it in the Priority Agreement.

“**Hedging Document**”has the meaning given to it in the Priority Agreement.

“**Holdco PIKNote**”****means the €325,000,000 11.5%senior notes due 2015 issued by Smurfit Kappa Holdings plc on 31 January 2005and any additional such notes issued as interest thereon.

“**Holding Company**”of any person means any company or body corporate in respect of which thatperson is a direct or indirect Subsidiary.

“**Hong Kong Dollars**”means the lawful currency for the time being of Hong Kong.

“**IBOR**” meansLIBOR, EURIBOR or STIBOR as appropriate.

“**IFRS**” meansinternational accounting standards within the meaning of IAS Regulation 1606/2002to the extent applicable to the relevant Accounts.

“**Information Package**”means the Financial Model and the information memorandum (as amended byagreement between the Parent and the Arrangers) for use in the syndication ofthe Facilities.

“**Initial AdditionalFacility Lender**” means a person which becomes a Lender under anAdditional Facility pursuant to Clause 2.4 (*Additional Facilities*).

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“**Intellectual PropertyRights**” means:

(a)                                  anyknow-how, patent, trade mark, service mark, design, business name, domainname, topographical or similar right;

(b)                                 anycopyright, data base or other intellectual property right; or

(c)                                  anyinterest in the above,

in each case whether registered or not and includesany related application.

“**Interest**”means:

(a)                                  interestand amounts in the nature of interest accrued, but excluding any element ofpension costs allocated as interest or financial expense under the AccountingPrinciples;

(b)                                 prepaymentpenalties or premiums incurred in repaying or prepaying any Financial Indebtedness(other than the 2012 Senior Cash Pay Notes, 2025 Bonds and the 2015 SeniorSubordinated Cash Pay Notes);

(c)                                  discountfees and acceptance fees payable or deducted in respect of any FinancialIndebtedness, including fees in respect of Documentary Credits referred to inparagraph (c) of Subclause 7.3 (*Fees inrespect of Documentary Credits*) and all like fees in respect of anyother letters of credit and guarantees;

(d)                                 anyother payments and deductions of the like effect (including, withoutlimitation, the interest element of finance leases) and any net payment (or, ifappropriate in the context, receipt) under any interest rate hedging agreementor instrument (including without limitation under the Hedging Documents),taking into account any premiums payable for the same,

and “**Interest**”includes commitment and non-utilisation fees (including, withoutlimitation, those payable hereunder), but excludes agent’s and front-end,management, arrangement and participation fees with respect to any FinancialIndebtedness (including, without limitation, those payable hereunder or underthe Fee Letters) and excludes any amortisation of financing costs associatedtherewith.

“**Investor**”****means MDP Global Investors Limited, CVC Capital PartnersAdvisory Company Limited and/or Cinven Limited, funds, limited partnerships orcompanies managed or advised by them and/or their principals or affiliatesand/or the senior management of the Group (whether at the Group level or at aHolding Company of the Group).

“**IPO**” means theadmission to trading of all or part of the share capital of a person on anyrecognised stock exchange.

“**IPO Proceeds**”has the meaning given to it in Clause 11.3 (*IPO*).

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“**IPO Structure Paper**”means the structure paper dated 10 January 2007 prepared by William Fry in theform agreed by the Facility Agent subject to any amendments which are notmaterially prejudicial to the Lenders or approved by the Facility Agent.

“**Japanese Yen**”means the lawful currency for the time being of Japan.

“**Joint Venture**”has the meaning given to it in Subclause 23.27 (*Joint Ventures*).

“**Joint Venture Investment**”has the meaning given to it in Subclause 23.27 (*Joint Ventures*).

“**Kappa Holding B.V.**”means Kappa Holding B.V., a private company with limited liability (*besloten vennootschap met beperkte aansprakelijkheid*),incorporated under the laws of the Netherlands, with its statutory seat atEindhoven, the Netherlands and registered at the Chamber of Commerce ofOost-Brabant under number 33303987.

“**Kappa Packaging Czech**”means Kappa Packaging Czech, s.r.o., a limited liability company incorporatedunder the laws of the Czech Republic, with its registered seat at Žebrák,Skandinávská 1000, district Beroun, Post Code 267 53, Business ID No. 25105582.

“**KappaPackaging S.p.A.**” means Kappa Packaging S.p.A., a limited liabilitycompany incorporated under the laws of the Republic of Italy, with registeredaddress at 147 Via Pesciatina, Capannori (LU), Italy, registration number withthe Companies’ Registry of Lucca and Fiscal Code 09836700154 (REA 135818).

“**KappaSlovakia**” means Kappa Štúrovo, a.s., a joint stock companyincorporated under the laws of the Slovak Republic, with its registered seat atTovárenská 1, 943 03 Štúrovo, Slovak Republic, ID No.31 410 146, registered inthe Commercial Registry of District Court Nitra in Sec.Sa, Volume No.126/N.

“**LatinAmerica**” means any country in the Americas other than the UnitedStates of America and Canada.

“**Lender**”means:

(a)           anOriginal Lender;

(b)           anInitial Additional Facility Lender; or

(b)                                 anyperson which becomes a New Lender (as defined in Clause 31.2 (*Assignments and Transfers by Lenders*).

“**LIBOR**”relative to a Loan or overdue amount denominated in a currency other than euroor Swedish Kronor for its Term means:

(a)           theapplicable Screen Rate; or

(b)                                 ifno Screen Rate is available for the relevant currency or the Term of that Loanor overdue amount, the arithmetic mean (rounded upward to four decimal places)of the rates, as supplied to the Facility Agent at its request, 

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quoted by the Reference Banks to leading banks in theLondon interbank market,

as of 11.00 a.m. on the Rate Fixing Day for theoffering of deposits in the currency of that Loan or overdue amount for aperiod comparable to that Term.

“**Loan**” means,unless otherwise stated in this Agreement, the principal amount of eachborrowing under this Agreement or the principal amount outstanding of thatborrowing.

“**Loan Note Guarantee**”means a guarantee in the form set out in Part II of Schedule 9 (*Form of Loan Note Guarantee*) in favour of the holders ofcertain floating rate, guaranteed, unsecured loan notes issued by the Companydue 2007.

“**LTIBR**” meansany interest bearing receivables with a maturity that qualifies as long-termaccording to section 8 No. 1 German Trade Tax Act (*Gewerbesteuergesetz*).

“**Major Default**”means the occurrence of any of the following events:

(a)                                  thereis a breach of any of the following representations and warranties by theCompany (except to the extent that they relate to any other member of theGroup):

(i)                     Clause 20.2 (*Status*);

(ii)                  Clause 20.3 (*Powers and authority*);

(iii)               Clause 20.4 (*Legal validity*); or

(iv)              Clause 20.5 (*Non-conflict*);

(b)                                 thereis a breach of any of the following covenants by the Company (other than breachof a procuring obligation with respect to a member of the Group):

(i)                     Clause 23.5(*Negativepledge*);

(ii)                  Clause 23.6(*Disposals*);

(iii)               Clause 23.7**(*Financial Indebtedness*);

(iv)              Clause 23.15**(*Share capital*);

(v)                 Clause 23.16**(*Dividends*);or

(vi)              Clause 23.22**(*Amendments to documents*);

(c)                                  anyof the following Events of Default:

(i)                     Clause 24.2(*Non-Payment*);

(ii)                  Clause 24.6(*Insolvency*) in respect of the Company;

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(iii)               Clause 24.7 (*Insolvency proceedings*) in respect of the Company; or

(iv)              Clause 24.8 (*Creditors’ process*) in respect of the Company.

“**Majority Lenders**”means, at any time, Lenders:

(a)                                  theaggregate of whose shares in the outstanding Credits and undrawn Commitmentsthen represents 66 2/3 per cent. or more of the aggregate of all theoutstanding Credits and undrawn Commitments of all the Lenders;

(b)                                 ifthere is no Credit then outstanding, whose undrawn Commitments then aggregate66 2/3 per cent. or more of the Total Commitments; or

(c)                                  ifthere is no Credit then outstanding and the Total Commitments have been reducedto zero, whose Commitments aggregated 66 2/3 per cent. or more of the TotalCommitments immediately before the reduction.

“**Mandatory Cost**”means for any Lender the cost of complying with any reserve asset, liquidity,special deposit or other monetary or regulatory requirements affecting it,expressed as a percentage rate per annum, including any reserve assetrequirements of the European Central Bank and, for a Lender participatingthrough a Facility Office in the United Kingdom or a Participating MemberState, those calculated by the Facility Agent in accordance with Schedule 4 (*Calculation of the Mandatory Cost*).

“**Margin**” means,for any amount (including an overdue amount) or Credit outstanding under, orwhich in the reasonable opinion of the Facility Agent is otherwise referableto, a particular Facility, the rate per annum specified below in relation tothat Facility:

(a)                                  theA1 Term Loan Facility, the A2 Term Loan Facility, the Revolving Credit Facilityand the Restructuring A Loans, 2.25 per cent. per annum, as adjusted underSubclause 12.3 (*Margin Adjustments*);

(b)                                 theeuro denominated Loans under the B1 Term Loan Facility, the B2 Term LoanFacility and the Restructuring B Loans, 2.50 per cent. per annum, as adjustedunder Subclause 12.3 (*MarginAdjustments*);

(c)                                  theUS Dollar denominated Loans under the B1 Term Loan Facility and the B2 TermLoan Facility, 2.375 per cent. per annum, as adjusted under Subclause 12.3(*Margin Adjustments*);

(d)                                 theeuro denominated Loans under the C1 Term Loan Facility, the C2 Term LoanFacility and the Restructuring C Loans, 3.00 per cent. per annum, and after theoccurrence of a Qualifying IPO, as adjusted under Subclause 12.3 (*Margin Adjustments*);

(e)                                  theUS Dollar denominated Loans under the C1 Term Loan Facility and the C2 TermLoan Facility, 2.875 per cent. per annum, and after the occurrence of aQualifying IPO, as adjusted under Subclause 12.3 (*Margin Adjustments*);

(f)                                    theRestructuring Loan Facility, prior to the Restructuring Loan FacilityConversion Date, 2.25 per cent. per annum and after the Restructuring Loan

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Facility Conversion Date, the rate described inparagraphs (a), (b) and (d) of this definition, as applicable; and

(g)                                 anyAdditional Facility, the rate set out in the relevant Additional FacilityAccession Agreement, as adjusted in accordance with the terms of such AdditionalFacility Accession Agreement.

“**Margin Certificate**”is a certificate, substantially in the form of Schedule 7 (*Form of Margin Certificate*), setting outthe calculations for determining an adjustable Margin pursuant toSubclause 12.3 (*Margin Adjustments*)as at the relevant date.

“**MaterialAdverse Effect**” means an event, effect or matter:

(a)                                  whichhas a material adverse effect on the business, assets or financial condition ofthe Group taken as a whole; or

(b)                                 whichhas a material adverse effect on the ability of the Obligors (taken together)to perform any of their payment obligations under any of the Senior FinanceDocuments, or

(c)                                  whichhas a material adverse effect on the ability of the Group (taken as a whole) tocomply with its obligations under Clause 22 (*FinancialCovenants*); or

(d)                                 whichresults in any of the guarantees given by any Guarantor or any of the securitygranted pursuant to the Security Documents not being effective or enforceablein accordance with its terms in each case in a manner or to an extent which ismaterially prejudicial to the financial interests of the Lenders under theSenior Finance Documents.

“**Material Group Member**”means an Obligor or a Material Subsidiary.

“**Material IntellectualProperty Right**” means any Intellectual Property Right without which,or without the benefit of which, an Obligor or Material Subsidiary could notcarry on its business substantially as it is being carried on as at the ClosingDate or as at any date on which the representation and warranty set out inSubclause 20.16 (*Intellectual PropertyRights*) is made.

“**Material Subsidiary**”means a Subsidiary of the Company whose unconsolidated EBITDA comprises 5 percent. or more of consolidated Group EBITDA or whose turnover represents 5 percent. or more of the turnover of the Group or whose gross assets (excludingintra-Group items and intra-Group investments) represent 5 per cent. or more ofthe gross assets of the Group (other than Smurfit Kappa European Packaging orany other Securitisation SPV, for so long as it is used primarily for thepurpose of receivables securitisations).

For this purpose:

(a)                                  thegross assets, EBITDA or turnover of a Subsidiary of the Parent will bedetermined from its financial statements (unconsolidated if it hasSubsidiaries) upon which the latest Accounts have been based;

 

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(b)                                 ifa Subsidiary of the Parent becomes a member of the Group after the date onwhich the latest Accounts have been prepared, the gross assets, EBITDA orturnover of that Subsidiary will be determined from its latest financialstatements;

(c)                                  thegross assets, EBITDA or turnover of the Group will be determined from thelatest Accounts adjusted (where appropriate) to reflect the gross assets,EBITDA or turnover of any company or business subsequently acquired or disposedof.

“**Maturity Date**”means, for a Revolving Credit Loan and a Documentary Credit, the last day ofits Term.

“**Net Proceeds**”has the meaning given to it in Subclause 11.4 (*Mandatory Prepayment — disposals, insurance, warranty and report claims*).

“**Non-Core Assets**”means any assets owned by a member of the Group other than Core Assets (butexcluding for the avoidance of doubt any shares in a member of the Group whichdirectly or indirectly owns any Core Assets or carries on a Core Business).

“**Non-Core Business**”means any business carried on by a member of the Group other than a CoreBusiness.

“**Non-Recourse**”****means, in relation to a Permitted ReceivablesSecuritisation, no recourse to the Group other than recourse that is customaryfor trade receivables financings in the relevant jurisdictions provided thatsuch recourse shall be limited to recourse of the type provided (but, for theavoidance of doubt, not the manner in which it is provided) by any Group memberin the receivable securitisation transaction arranged by JP Morgan plc whichwas entered into on 8 September 2004, as amended prior to the date hereof (the “**Existing Securitisation**”) provided further that for theavoidance of doubt such proviso shall not preclude any changes in the manner inwhich recourse is provided by a Group member which are necessary or typical inany relevant jurisdiction to effect recourse of that type.

“**Norwegian Guarantor**”has the meaning given to it in Part X (Limitations on Norwegian Guarantees) ofSchedule 12 (*Guarantee Limitations*).

“**Norwegian Kroner**”means the lawful currency for the time being of Norway.

“**Obligor**” meansa Borrower or a Guarantor.

“**Optional Currency**”****means any currency (other than euros) in which a Credit maybe denominated under this Agreement including without limitation US Dollars,Sterling, Swedish Kronor, Norwegian Kroner, Danish Kroner, Canadian Dollars,Hong Kong Dollars, Japanese Yen or Swiss Francs.

“**OriginalBase Currency Amount**” of a Credit means:

(a)           ifa Credit is denominated in the Base Currency, its amount; or

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(b)                                 ifthe Credit is denominated in an Optional Currency, its equivalent in the BaseCurrency calculated on the basis of the Agent’s Spot Rate of Exchange oneBusiness Day before the Rate Fixing Day for the first Term for that Credit.

“**Original Obligor**”means an Original Borrower or an Original Guarantor.

“**Participating Member State**”means a member state of the European Communities that adopts or has adopted theeuro as its lawful currency under the legislation of the European Union forEuropean Monetary Union.

“**Party**” means aparty to this Agreement.

“**Permitted Acquisition**”means each of the acquisitions in paragraph (b)(ii) to (xi) ofClause 23.10 (*Acquisitions*).

“**Permitted EquityInjections**” shall bear the meaning given to it in Clause 11.6 (*Mandatory prepayment — Excess Cash Flow*).

“**Permitted Joint VentureInvestments**” means Joint Venture Investments permitted by Subclause23.27(b)  (*Joint Ventures*).

“**PermittedPost Closing Drawing Purposes**”****means any ofthe following applications of the Facilities:

(a)                                  thefunding of adjustments to the purchase price for the Acquisition in accordancewith the Share Purchase Agreement;

(b)                                 thefunding of borrowing requirements arising from the differences in respect ofthe Target Group between average working capital for the last 12 months and actualworking capital on the Closing Date; and

(c)           thefunding of Acquisition and Refinancing Costs.

“**Permitted ReceivablesSecuritisation**” means a receivables financing on a Non-Recourse(except for recourse expressly permitted hereunder) true sale, revolving basis,of receivables originated by a member or members of the Group including, forthe avoidance of doubt (i) the Existing Securitisation and (ii) any othertransaction having features equivalent or similar to those above and enteredinto to increase, supplement or refinance such transactions.

“**PermittedReorganisation**” means:

(a)                                  anamalgamation, merger, demerger, reconstruction or other re-organisationon a solvent basis of a member of the Group (not being a Borrower, the Parentor Smurfit Kappa Funding ) where:

(i)                                     allof the business and assets of that member remain within the Group (and, if thatmember of the Group was an Obligor immediately prior to such re-organisationbeing implemented, all of the business and assets of that member are retainedby one or more other Obligors or the 

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condition in sub-paragraph (ii)(B) below issatisfied or the limit in sub-paragraph (ii)(C) below is not exceeded);and

(ii)                                  ifit or its assets or the shares in it were subject to security in favour of theLenders immediately prior to such re-organisation, either (A) the Lenderswill enjoy the same or equivalent security over the same assets and over it andthe shares in it (or in each case over the shares of its successor or if a newHolding Company is inserted as part of such re-organisation, securityover the shares of such Holding Company provided that no security is granted toany third party over the shares of the company re-organised or itssuccessor) after such reorganisation; or (B) that the re-organisation willnot be materially adverse to the Transaction Security (taken as a whole) (andfor the purposes of paragraph (A) and (B) of this sub-paragraph, it shallnot be deemed to be adverse if the re-organisation involves new hardeningperiods running as a result of the release and re-grant of TransactionSecurity if it is not reasonably likely that a liquidator or similar officerwould be able to avoid the relevant Security Interests as a consequence of suchnew hardening periods); or (C) the value determined by the Company actingreasonably of assets and/or shares released from the Transaction Security inconnection with re-organisations does not exceed €30,000,000 per annum(after taking into account any grant of Transaction Security over assets and/orshares in the same year); or

(b)                                 anyother reorganisation of one or more members of the Group approved by theFacility Agent (acting on the instructions of the Majority Lenders); or

(c)                                  theDebt Pushdown and any other transaction described in the Structure Memorandum(in the form delivered to the Facility Agent under Part I of Schedule 2 (*Conditions Precedent Documents*));

PROVIDED that the requirement for a member of theGroup acquiring any business or assets to be an Obligor referred to in (a)(i)above and the requirement for the security referred to in (a)(ii) above willonly be required if it is consistent with the Agreed Security Principles, if itis not unlawful for the relevant person to accede as an Additional Obligor orto execute such security (or, (i) in the case of a member of the Group which isnot wholly owned or is a Joint Venture, if it would not breach any jointventure agreement or existing shareholders agreement applicable to it or (ii)in the case of a member of the Group incorporated in any country located inLatin America or Albania, Belarus, Bosnia & Herzegovina, Bulgaria, Croatia,Czech Republic, Estonia, Georgia, Hungary, Latvia, Lithuania, Macedonia,Moldova, Romania, Serbia & Montenegro, Russia, Slovakia, Slovenia, Turkeyor the Ukraine, it would not breach any negative pledge contained in aRemaining Debt Agreement and would not, in the reasonable opinion of theParent, result in a loss of access to local credit facilities on reasonablecommercial terms) and if such accession or execution would not result inpersonal liability for that person’s directors or other management, and therelevant person has used all reasonable endeavours lawfully to avoid any suchunlawfulness or personal liability, including agreeing to a limit on the amountsecured (and the Facility Agent may (but shall not be obliged to) agree to suchlimit if, in its opinion, to do so might avoid the relevant unlawfulness orpersonal liability).

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“**Policy Guidelines**”means the 2005 Dutch Central Bank’s Policy Guidelines (issued in relation tothe Dutch Exemption Regulation) dated 29 December 2004 (*Beleidsregel2005 kernbegrippen markttoetreding en handhaving Wtk 1992*), asamended from time to time.

“**Pre-approved Jurisdiction**”means Austria, Belgium, Canada, Denmark, France, Germany, Ireland, Italy,Mexico, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, the UKand the United States of America.

“**Priority Agreement**”means the priority agreement dated 30 November 2005 as amended and restatedpursuant to an amendment and restatement deed dated 31 January 2007 between,among others, the Obligors, the Lenders, the counterparties under the HedgingDocuments (each as defined therein) and the Administrative Parties.

“**Professional Market Party**”means a professional market party (*professionele marktpartij*)under the Dutch Exemption Regulation.

“**Pro RataShare**” means:

(a)                                  forthe purpose of determining a Lender’s share in a Utilisation of a Facility, theproportion which its Commitment under that Facility bears to all the Commitmentsunder that Facility immediately prior to the making of that Utilisation; and

(b)           for any other purpose on a particulardate:

(i)                                     theproportion which a Lender’s share of the Credits (if any) bears to all theCredits;

(ii)                                  ifthere is no Credit outstanding on that date, the proportion which itsCommitments bear to the Total Commitments on that date;

(iii)                               ifthe Total Commitments have been cancelled, the proportion which its Commitmentsbore to the Total Commitments immediately before being cancelled; or

(iv)                              whenthe term is used in relation to a Facility, the above proportions but appliedonly to the Credits and Commitments for that Facility (for which purpose theFacility Agent will determine, in the case of a dispute, whether the term inany case relates to a particular Facility).

“**QualifyingIPO**” means an IPO in respect of the shares of any member of theGroup or any Holding Company of the Parent, (for the avoidance of doubt, suchan IPO to include the Approved IPO) and following which the Parent delivers tothe Facility Agent a certificate evidencing that the ratio of ConsolidatedTotal Net Borrowings to Consolidated EBITDA for the most recent fourconsecutive quarterly Accounting Periods of the Smurfit Kappa Funding Group forwhich financial statements have been delivered hereunder, pro forma for theapplication of the relevant IPO Proceeds, is not greater than 4.5:1, providedthat for the purpose of this test the Parent’s abovementioned certificationwill be based on the financial statements delivered with 

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the then-most-recentcompliance certificate hereunder and (in addition to the pro forma adjustmentsfor the application of the relevant IPO Proceeds) the following adjustmentswill be made to the definitions in clause 22.2: Consolidated Total Net Borrowingswill be adjusted to (i) exclude any indebtedness arising under paragraphs (g),(j) or (k) of the definition of Financial Indebtedness (ii) include cash andcash equivalents which would otherwise be excluded from the definition of Cashand Cash Equivalents due to the fact that such cash and cash equivalents werenot held with an Acceptable Bank and (iii) calculate the conversion of allnon-euro amounts in determining Consolidated Total Net Borrowings to euro atthe relevant period end exchange rate. Consolidated EBITDA will be adjusted to include (a) such run ratesynergies which have been achieved at the end of the Accounting Date for whichthe relevant compliance certificate is delivered as certified by the ChiefFinancial Officer or the board of directors of the Parent minus (b) the actuallevel of synergies which are already included in the calculation ofConsolidated EBITDA by virtue of the definition thereof in clause 22.2.

“**Quarter Date**”means any of 31 March, 30 June, 30 September and 31 December.

“**Rate FixingDay**” means:

(a)           thefirst day of a Term for a Loan denominated in Sterling;

(b)                                 thesecond Business Day before the first day of a Term for a Loan denominated inany other currency (other than euro); or

(c)                                  thesecond TARGET Day before the first day of a Term for a Loan denominated ineuro,

or such other day as the Facility Agent determines isgenerally treated as the rate fixing day in the relevant currency by marketpractice in the Relevant Interbank Market.

“**Reconciliation Statement**”means a statement delivered to the Facility Agent pursuant toSubclause 21.2(f)(ii) (*Form and Scopeof Financial Statements*).

“**Reference Banks**”means Deutsche Bank AG, London Branch, Citibank N.A. (or an Affiliate), CreditSuisse First Boston International, JP Morgan plc and the Royal Bank of Scotlandplc and any other prime bank or financial institution operating in the Londoninterbank market appointed as such by the Facility Agent under this Agreementfollowing consultation with the Company.

“**Relevant Interbank Market**”means, in relation to euro, the European interbank market and, in relation toany other currency, the London interbank market.

“**Remaining Debt**”at any time, means all Financial Indebtedness of any member of the Group andthe Target Group then outstanding under or in respect of the Remaining DebtAgreements (other than in respect of the Cash Pooling Facilities).

“**Remaining Debt Agreements**”means the credit and/or loan agreements details of which are set out inSchedule 10 (*Remaining Debt Agreements*)as amended and/or refinanced from time to time (including any refinancing byanother member of the 

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Group provided that the net effect of such refinancingin another Group member is not materially adverse to the interests of theLenders compared to the position if the refinancing had been done through thesame Group member), and provided that no Security Interest or guarantee isgranted by any member of the Group in respect of such amendment or refinancingunless either an equivalent Security Interest or guarantee had been granted asat the date of this Agreement by such member of the Group in respect of theRemaining Debt so amended or refinanced or any such new Security Interest orguarantee is otherwise permitted by this Agreement.

“**Repayment Instalment**”means each instalment for repayment of a Term Loan, identified in thisAgreement by the same designation as such Term Loan, and each instalment forrepayment of an Additional Facility Loan as identified in the relevantAdditional Facility Accession Agreement.

“**Repeating Representations**”means at any time the representations which are deemed to be made or repeatedunder this Agreement pursuant to Subclause 20.25 (*Times for Making Representations*).

“**Report**” meansthe synergies report prepared by PricewaterhouseCoopers LLP as referred to inPart I of Schedule 2 (*Conditions PrecedentDocuments*).

“**Request**” meansa request for a Credit, substantially in the form of Schedule 3 (*Form of Request*).

“**Required RegulatoryDisposal**” means any disposal of assets or a business required by lawor required by any regulatory authority in connection with the Acquisition.

“**Reservations**”means the principle that equitable remedies are remedies which may be grantedor refused at the discretion of the court, the limitation of enforcement bylaws relating to bankruptcy, insolvency, liquidation, examination,reorganisation, court schemes, moratoria, administration and other lawsgenerally affecting the rights of creditors, the time barring of claims underapplicable limitation laws, the possibility that an undertaking to assumeliability for or to indemnify a person against non-payment of stamp dutymay be void, defences of set-off or counterclaim and similar principles,rights and defences under the laws of any jurisdiction in which relevantobligations may have to be performed and qualifications as to matters of lawonly set out in the legal opinions addressed to the Finance Parties deliveredpursuant to this Agreement.

“**Restricted Borrower**”means Smurfit Deutschland GmbH, a limited liability company incorporated inGermany (registered number HRB 90813).

“**Restricted Target Shares**”means shares in each of the members of the Target Group incorporated inGermany.

“**Restricted****Term Loan Commitment**” means:

(a)                                  foran Original Lender, the amount set opposite its name in Part II ofSchedule 1 (*Lenders*) underthe heading “**Restricted****Term LoanCommitments**”; and

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(b)                                 forany other Lender, the amount of any Restricted Term Loan Commitment sodesignated which it acquires,

to the extent not cancelled, transferred or reducedunder this Agreement.

“**Restricted Term LoanFacilities**” means the A2 Term Loan Facility, the B2 Term LoanFacility, and the C2 Term Loan Facility, and “**RestrictedFacility**” means any one of them.

“**Restructuring A Loans**”****means****theRestructuring Loans that are converted into Restructuring A Loans on theRestructuring Loan Facility Conversion Date in accordance with Clause 2.3(*Restructuring Loan Facility*).

“**Restructuring B Loans**”****means****theRestructuring Loans that are converted into Restructuring B Loans on theRestructuring Loan Facility Conversion Date in accordance with Clause 2.3(*Restructuring Loan Facility*).

“**Restructuring C Loans**”****means****theRestructuring Loans that are converted into Restructuring C Loans on theRestructuring Loan Facility Conversion Date in accordance with Clause 2.3(*Restructuring Loan Facility*).

“**RestructuringCredit Commitment**” means:

(a)                                  foran Original Lender, the amount set opposite its name in Part II ofSchedule 1 (*Original Parties*)under the heading Restructuring Credit Commitments and the amount of any otherRestructuring Credit Commitment, as so designated, it acquires; and

(b)                                 forany other Lender, the amount of any Restructuring Credit Commitment itacquires,

to the extent not cancelled, transferred, increased orreduced under this Agreement.

“**Restructuring Loan**”means a Loan under the Restructuring Loan Facility and after the RestructuringLoan Facility Conversion Date shall include the Restructuring A Loans,Restructuring B Loans and Restructuring C Loans as the context requires.

“**Restructuring LoanFacility**”****means therestructuring and acquisition facility made available under this Agreement.

“**Restructuring LoanFacility Conversion Date**”****means the datefalling at the end of the Availability Period for the Restructuring LoanFacility.

“**Restructuring LoanUtilisation**”****means aRestructuring Loan drawn under the Restructuring Loan Facility.

“**Revised Smurfit KappaGroup Base Financial Statements**” means the draft consolidatedfinancial statements of the Smurfit Kappa Group for its annual AccountingPeriod ended 31st December, 2005 delivered to the Facility Agent prior to thedate of the Amendment and Restatement Agreement.

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“**Revolving CreditCommitment**” means:

(a)                                  foran Original Lender, the amount set opposite its name in Part II ofSchedule 1 (*Original Parties*)under the heading **Revolving CreditCommitments** and the amount of any other Revolving Credit Commitment,as so designated, it acquires; and

(b)                                 forany other Lender, the amount of any Revolving Credit Commitment it acquires,

to the extent not cancelled, transferred, increased orreduced under this Agreement.

“**Revolving Credit Facility**”means a revolving credit facility made available under this Agreement.

“**Revolving Credit Loan**”means a Loan under the Revolving Credit Facility.

“**Revolving CreditUtilisation**” means a Revolving Credit Loan or a Documentary Creditissued under the Revolving Credit Facility.

“**RolloverCredit**” means one or more Loans under a Revolving Credit Facility:

(a)                                  tobe made on the same day that a maturing Loan under that Facility is due to berepaid;

(b)                                 theaggregate amount of which is equal to or less than the maturing Loan;

(c)           inthe same currency as the maturing Loan; and

(d)                                 tobe made to the same Borrower for the purpose of refinancing the maturing Loan.

“**Screen Rate**”means:

(a)                                  forLIBOR,  the British Bankers AssociationInterest Settlement Rate (if any) for the relevant currency and Term displayedon the appropriate page of the Reuters screen;

(b)                                 forEURIBOR, the percentage rate per annum determined by the Banking Federation ofthe European Union for the relevant Term displayed on the appropriate page ofthe Reuters screen; and

(c)                                  forSTIBOR, the percentage rate per annum for the relevant currency and Termappearing on the “SIOR” page of the Reuters screen for the relevant Term.

If the relevant page is replaced or the service ceasesto be available, the Facility Agent (after consultation with the Company andthe Lenders) may specify another page or service displaying the appropriaterate.

“**SEC**” the U.S.Securities and Exchange Commission of the United States of America.

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“**Securities**”means the Cash Pay Securities and the 2025 Bonds.

“**Securities Documents**”means the offering memoranda, indentures, notes, instruments and otherdocuments pursuant to which the Securities are constituted or evidenced.

“**Securities PermittedPayments**” means the following in respect of the Securities:

(a)                                  paymentof dividends and interest (in each case whether paid in kind or in cash);

(b)           defaultinterest or liquidated damages;

(c)                                  paymentsdue under any registration rights agreement relating to the Securities;

(d)                                 additionalamounts payable under applicable gross up provisions under the Securities;

(e)                                  theamount of the US registration costs and legal fees incurred in connection withthe issue of the Securities; and

(f)                                    anyother payments not exceeding €500,000 in aggregate in any twelve month period,

and for the avoidance of doubt does not include anyother payment, including payments of principal, any premium which must be paidtogether with principal and any prepayment on, or redemption, defeasance orpurchase of, any of the Securities.

“**Securities Repayments**”means repayment or prepayment of all or a part of the 2012 Senior Cash PayNotes (including any redemption premium and other fees and costs in connectionwith such repayment or prepayment) at any time after a Qualifying IPO, fromwhatever sources the Company may select at its sole discretion.

“**SecuritisationSPV**” has the meaning provided in Clause 23.38 (*PermittedReceivables Securitisations*)

“**SecurityDocument**” means:

(a)                                  eachdocument required to be entered into pursuant to Clause 23.32 (*Security*) or listed in the Agreed List ofObligors and Security; and

(b)                                 anyother document evidencing or creating security over any asset of any Obligor tosecure any obligation of any Obligor to a Finance Party under the SeniorFinance Documents.

“**Security Interest**”means any mortgage, pledge, lien, charge (fixed or floating), assignment,hypothecation or security interest or any other agreement or arrangement havinga similar effect.

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“**Senior Finance Document**”****means:

(a)           thisAgreement;

(b)           theFee Letter;

(c)           theCommitment Letter;

(d)           thePriority Agreement;

(e)           anAccession Deed;

(f)            aTransfer Certificate;

(g)           anAncillary Facility Document;

(h)           aHedging Document;

(i)            aSecurity Document;

(j)            anAdditional Facility Accession Agreement;

(k)           anAdditional Facility Fee Letter; or

(l)                                     anyother document designated as such by the Arrangers and the Company or theFacility Agent and the Company.

“**Senior SubordinatedGuarantee**”****means thesenior subordinated guarantee granted by the Company in favour of the trusteein respect of the 2012 Senior Cash Pay Notes and the holders of the relateddebt securities.

“**Shareholders Agreement**”means the shareholders’ and corporate governance agreement dated on or about 1December 2005 and made between, *inter alios*,Smurfit Kappa Group Limited, Smurfit Kappa, and the additional investorsidentified in the schedule thereto.

“**Share Purchase Agreement**”means the share purchase agreement dated 23 November 2005 and made betweenSmurfit Kappa Group Limited, the Company, the Vendors and Smurfit Kappa.

“**Slovak Commercial Code**”means Act No. 513/1991 Coll., as amended.

“**Smurfit Kappa**”means Smurfit Kappa G.P. Limited (in its capacity as general partner of SmurfitKappa Feeder L.P., a limited partnership formed under the laws of Jersey,Channel Islands, with Registered No. 91096 and whose registered office is at 22Grenville Street, St. Helier, Jersey, Channel Islands).

“**Smurfit Kappa EuropeanPackaging**” means Smurfit Kappa European Packaging Limited (formerlynamed Smurfit European Packaging Limited), a limited liability companyincorporated in Ireland (registered number 347302).

“**Smurfit KappaFunding**” means Smurfit Kappa Funding plc (formerly named JSG Fundingplc), a limited company incorporated in Ireland (registered number 357958).

 

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“**Smurfit Kappa FundingGroup**” means Smurfit Kappa Funding and its Subsidiaries from time totime.

“**Smurfit Kappa Funding Loan**”means the subordinated loans by Smurfit Kappa Funding to the Company of theproceeds of the Cash Pay Securities.

“**Smurfit Kappa FundingLoan Agreements**” means the agreements between:

(a)                                  SmurfitKappa Funding and the Company dated 16th September, 2002 and restated on 27thSeptember, 2002;

(b)           SmurfitKappa Funding and the Company dated 14th February, 2003; and

(c)           SmurfitKappa Funding and the Company dated 31st January 2005.

“**Smurfit Kappa Group**”means the Parent and its Subsidiaries immediately prior to the Closing Date.

“**Smurfit Kappa Group BaseFinancial Statements**” means the audited consolidated financialstatements of the Smurfit Kappa Group for its annual Accounting Period ended31st December, 2004.

“**Smurfit Kappa GroupLimited**” means Smurfit Kappa Group Limited (formerly named JSGPackaging Limited), a limited company incorporated in Ireland (registerednumber 380620).

“**Smurfit Kappa Treasury**”means Smurfit Kappa Treasury (formerly named Smurfit Capital), an unlimitedcompany incorporated in Ireland (registered number 177324).

“**SPV Assets**” hasthe meaning given to it in the SPV Facility Agreement.

“**SPV B.V.**” meansAdavale (Netherlands) B.V., a private company with limited liability (*besloten vennootschap met beperkte aansprakelijkheid*)incorporated under the laws of the Netherlands, with its statutory seat atRotterdam, the Netherlands and registered at the Chamber of Commerce ofAmsterdam under number 24336352.

“**SPV B.V./Parent LoanAgreement**” means the loan agreement in respect of the €125,000,000loan by SPV B.V. to the Parent (formerly known as MDCP Acquisitions Plc), datedSeptember 2002.

“**SPV Facility**”means the €125,000,000 loan facility to SPV Offshore.

“**SPV Facility Agreement**”means the facility agreement in respect of the loan between SPV Ireland, SPVOffshore, Deutsche Bank AG London, Merrill Lynch International, and othersdated 12 September 2002.

“**SPV Group**”means SPV Ireland and its Subsidiaries.

“**SPV Ireland**”means Arlonberg Limited, a limited company incorporated in Ireland (registerednumber 314784).

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“**SPV Offshore**”means Madison Global Holdings Limited, a limited company incorporated in theCayman Islands with registered number CR-118215.

“**Sterling**” meansthe lawful currency for the time being of the U.K.

“**STIBOR**”relative to a Loan or overdue amount denominated in Swedish Kronor for its Termmeans:

(a)           theapplicable Screen Rate; or

(b)                                 ifno Screen Rate is available for Swedish Kronor or the Term of that Loan oroverdue amount, the arithmetic mean (rounded upward to four decimal places) ofthe rates, as supplied to the Facility Agent at its request, quoted by theReference Banks to leading banks in the Stockholm interbank market,

as of 11.00 a.m. on the Rate Fixing Day for theoffering of deposits in Swedish Kronor for a period comparable to that Term.

“**Structure Memorandum**”means the memorandum and charts prepared by or on behalf of the Companyreferred to as such in Part I of Schedule 2 (*ConditionsPrecedent Documents*).

“**Subsidiary**”in relation to a company or corporation, means any company or corporation:

(a)                                  whichis controlled, directly or indirectly, by the first-mentioned company orcorporation;

(b)                                 morethan half the issued share capital of which is beneficially owned, directly orindirectly, by the first-mentioned company or corporation; or

(c)                                  whichis a Subsidiary of another Subsidiary of the first-mentioned company orcorporation,

and, for these purposes, a company or corporationshall be treated as being controlled by another if that other company orcorporation is able to direct its affairs generally and/or to control thecomposition of a majority of its board of directors or equivalent body.

“**Super-majorityLenders**”****means, at anytime, Lenders:

(a)                                  theaggregate of whose shares in the outstanding Credits and undrawn Commitmentsthen represents 80 per cent. or more of the aggregate of all the outstandingCredits and undrawn Commitments of all the Lenders;

(b)                                 ifthere is no Credit then outstanding, whose undrawn Commitments then aggregate80 per cent. or more of the Total Commitments; or

(c)                                  ifthere is no Credit then outstanding and the Total Commitments have been reducedto zero, whose Commitments aggregated 80 per cent. or more of the TotalCommitments immediately before the reduction.

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“**SwedishKronor**” means the lawful currency for the time being of Sweden.

“**Swiss Francs**”means the lawful currency for the time being of Switzerland.

“**Syndication Date**”means the earlier of the date on which the Facility Agent notifies the Parentthat syndication of the Facilities has been or is to be completed and the date6 months after the First Drawdown Date.

“**Synergy Disposals**”****means disposals of assets including businesses to obtainsynergies in connection with the Acquisition as previously disclosed to theLenders in the Report, the Financial Model and the Business Plan or otherassets with broadly similar profiles as determined by the Company and for theavoidance of doubt includes the disposal of Smith Stone Knight or SmurfitTownsend Hook Paper Mills in the UK.

“**Target**” meansKappa Holding B.V.

“**Target Group BaseFinancial Statements**” means the audited consolidated financialstatements of the Target Group for its annual Accounting Period ended 31stDecember, 2004.

“**Target Group**”means Target and its Subsidiaries.

“**Target Shares**”means the existing allotted or issued and fully paid shares in the Target andany further shares in the Target which are allotted or issued before theClosing Date.

“**TARGET Day**”means a day on which the Trans-European Automated Real-time GrossSettlement Express Transfer payment system is open for the settlement ofpayments in euro.

“**Tax**” or “**Taxes**” means any tax, levy, impost, duty or other charge orwithholding of a similar nature (including any related penalty or interest).

“**Term**”means each period determined under this Agreement:

(a)                                  byreference to which interest on a Loan or an overdue amount is calculated; or

(b)                                 forwhich the Issuing Bank may be under a liability under a Documentary Credit.

“**Term Loan**”means a Loan under the Term Loan Facilities.

“**Term Loan Facilities**”means the General Term Loan Facilities and the Restricted Term Loan Facilities.

“**Total Additional FacilityCommitments**” means the aggregate of the Additional FacilityCommitments of all the Lenders.

“**Total Commitments**”means the Commitments of all the Lenders.

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“**Total General Term LoanCommitments**” means the aggregate of the General Term LoanCommitments of all the Lenders.

“**Total Restricted Term LoanCommitments**” means the aggregate of the Restricted Term LoanCommitments of all the Lenders.

“**Total Restructuring CreditCommitments**” means the aggregate of the Restructuring CreditCommitments of all the Lenders.

“**Total Revolving CreditCommitments**” means the aggregate of the Revolving Credit Commitmentsof all the Lenders.

“**Total Term LoanCommitments**” means the aggregate of the Total General Term LoanCommitments and the Total Restricted Term Loan Commitments.

“**Total****Term Loan Facilities**” means the total of all Term LoanFacilities made available under this Agreement.

“**TransactionDocuments**” means:

(a)           theSenior Finance Documents;

(b)           theAcquisition Documents;

(c)           theSmurfit Kappa Funding Loan Agreements;

(d)           theSPV B.V./Parent Loan Agreement;

(e)           theSecurities Documents; and

(f)            theEquity Documents.

“**Transaction Security**”****means the Security granted pursuant to the SecurityDocuments.

“**Transfer Certificate**”means a certificate, substantially in the form of Schedule 5 (*Form of Transfer Certificate*), with suchamendments as the Facility Agent may approve or reasonably require or any otherform agreed between the Facility Agent and the Company.

“**TransferDate**” means, for a Transfer Certificate, the later of:

(a)           theproposed Transfer Date specified in that Transfer Certificate; and

(b)           thedate on which the Facility Agent executes that Transfer Certificate.

“**Treasury Transaction**”means any derivative transaction protecting against or benefiting fromfluctuations in any rate or price.

“**Vendors**”****means the Partners as defined in the Share PurchaseAgreement.

“**U.K.**” means theUnited Kingdom.

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“**US Dollars**” or “**US$**”means the current legal tender of the United States of America.

“**Utilisation**”means a utilisation under this Agreement of a Facility.

“**Utilisation Date**”means each date on which a Facility is utilised by the drawing of a Loan or theissue of a Documentary Credit.

“**2012 Senior Cash Pay Notes**”means the US$750,000,000 and €350,000,000 aggregate principal amount of cashpay senior unsecured debt securities due 2012 issued by Smurfit Kappa Fundingon 30th September, 2002 and 14th February, 2003.

“**2015 Senior SubordinatedCash Pay Notes**” means the US$200,000,000 and €217,500,000 aggregateprincipal amount of cash pay senior subordinated unsecured debt securities due2015 issued by Smurfit Kappa Funding on 31st January 2005.

“**2025 Bonds**”means the US$292 million 7.50% guaranteed notes due 2025 of Smurfit KappaTreasury Funding Limited.

## 1.2                                 **Construction**

### (a)                                  Inthis Agreement, unless the contrary intention appears, a reference to:

#### (i)                                     an“**amendment**” includes a supplement,amendment, novation, restatement or re-enactment and “**amended**” will be construed accordingly;

“**assets**”includes present and future properties, revenues and rights of everydescription;

an “**authorisation**”includes an authorisation, consent, approval, resolution, licence, exemption,filing, registration or notarisation;

“**disposal**” meansa sale, transfer, grant, lease, licence or other disposal, whether voluntary orinvoluntary, and “**dispose**” willbe construed accordingly;

“**indebtedness**”includes any obligation (whether incurred as principal or as surety and whetherpresent or future, actual or contingent) for the payment or repayment of money;

a “**person**”includes any individual, company, corporation, unincorporated association orbody (including a partnership, trust, joint venture or consortium), government,state, agency, organisation or other entity whether or not having separatelegal personality;

a “**regulation**”includes any regulation, rule, official directive, official request orguideline (in each case whether or not having the force of law but, if nothaving the force of law, being of a type with which it is customary for personsto which it applies to comply) of any governmental, inter-governmental orsupranational body, agency, 

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department or regulatory, self-regulatory orother authority or organisation;

#### (ii)                                  acurrency is a reference to the lawful currency for the time being of therelevant country;

#### (iii)                               aDefault being “**outstanding**” meansthat it has not been remedied or expressly waived in writing in compliance withthe provisions of this Agreement;

#### (iv)                              aprovision of law is a reference to that provision as extended, applied, amendedor re-enacted and includes any subordinate legislation;

#### (v)                                 aClause, a Subclause or a Schedule is a reference to a Clause orSubclause of, or a schedule to, this Agreement;

#### (vi)                              aperson includes its successors in title, permitted assigns and permittedtransferees;

#### (vii)                           words impartingthe singular include the plural and vice versa;

#### (viii)                        aTransaction Document or another document is a reference to that TransactionDocument or other document as amended; and

#### (ix)                                atime of day is a reference to London time.

### (b)                                 Unlessthe contrary intention appears, a reference to a “**month**” or “**months**”is a reference to a period starting on one day in a calendar month and endingon the numerically corresponding day in the next calendar month or the calendarmonth in which it is to end, except that:

#### (i)                                     ifthe numerically corresponding day is not a Business Day, the period will end onthe next Business Day in that month (if there is one) or the preceding BusinessDay (if there is not);

#### (ii)                                  ifthere is no numerically corresponding day in that month, that period will endon the last Business Day in that month; and

#### (iii)                               notwithstandingsub-paragraph (i) above, a period which commences on the last BusinessDay of a month will end on the last Business Day in the next month or thecalendar month in which it is to end, as appropriate.

### (c)                                  Unlessexpressly provided to the contrary in a Senior Finance Document, a person whois not a party to a Senior Finance Document may not enforce any of its termsunder the Contracts (Rights of Third Parties) Act 1999 and notwithstanding anyterm of any Senior Finance Document, the consent of any third party is notrequired for any variation (including any release or compromise of anyliability) or termination of that Senior Finance Document.

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### (d)                                 Unlessthe contrary intention appears:

#### (i)                                     areference to a Party will not include that Party if it has ceased to be a partyunder this Agreement;

#### (ii)                                  anamount in euro is payable only in the euro unit;

#### (iii)                               aword or expression used in any other Senior Finance Document or in any noticegiven in connection with any Senior Finance Document has the same meaning inthat Senior Finance Document or notice as in this Agreement;

#### (iv)                              ifthere is an inconsistency between this Agreement and another Senior FinanceDocument, this Agreement will prevail unless that other Senior Finance Documentis the Priority Agreement in which case the Priority Agreement will prevail;and

#### (v)                                 anyobligation of an Obligor under the Senior Finance Documents which is not apayment obligation remains in force for so long as any payment obligation of anObligor (other than solely an indemnity obligation where no amount is due andpayable under such indemnity obligation) is or may be or is capable of becomingoutstanding under the Senior Finance Documents.

### (e)                                  Theindex to and headings in this Agreement do not affect its interpretation.

# **2.****                                      FACILITIES**

## 2.1**                                 TermLoan Facilities**

Subject to the terms of this Agreement, the Lendersmake available to:

### (a)                                  theCompany and other Borrowers agreed to by the Lenders, term loan facilities inan aggregate amount equal to the Total General Term Loan Commitments asfollows:

#### (i)                                     aterm loan facility in the maximum aggregate amount of €467,657,129 (“**A1 Term Loan Facility”**) to be available ineuros;

#### (ii)                                  aterm loan facility in the maximum aggregate amount of €1,132,580,714 (“**B1 Term Loan Facility**”) to be available ineuros; and

#### (iii)                               aterm loan facility in the maximum aggregate amount of €1,132,580,714 (“**C1 Term Loan Facility**”) to be available ineuros;

### (b)                                 theRestricted Borrower in an aggregate amount equal to the Total Restricted TermLoan Commitments as follows:

#### (i)                                     aterm loan facility in the maximum aggregate amount of €32,342,871 (“**A2 Term Loan Facility**”);

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#### (ii)                                  aterm loan facility in the maximum aggregate amount of €78,328,565 (“**B2 Term Loan Facility**”); and

#### (iii)                               aterm loan facility in the maximum aggregate amount of €78,328,565 (“**C2 Term Loan Facility**”).

## 2.2**                                 RevolvingCredit Facilities**

Subject to the terms of this Agreement, the Lendersmake available to certain of the Borrowers revolving credit facilities in anaggregate amount equal to the Total Revolving Credit Commitments.

## 2.3**                                 RestructuringLoan Facility**

### (a)                                  Subjectto the terms of this Agreement, the Lenders make available to certain of theBorrowers the Restructuring Loan Facility in an aggregate amount equal to theTotal Restructuring Credit Commitments.

### (b)                                 Onthe Restructuring Loan Facility Conversion Date, the Restructuring Loans shallconvert into Restructuring A Loans, Restructuring B Loans and Restructuring CLoans as follows:

#### (i)                                     theproportion of the outstanding Restructuring Loans equal to the proportion thatthe aggregate of the A1 Term Loan Commitments and A2 Term Loan Commitments boreto the Total Term Loan Commitments immediately prior to the First Drawdown Dateshall be converted into Restructuring A Loans.

#### (ii)                                  theproportion of the outstanding Restructuring Loans equal to the proportion thatthe aggregate of the B1 Term Loan Commitments and B2 Term Loan Commitments boreto the Total Term Loan Commitments immediately prior to the First Drawdown Dateshall be converted into Restructuring B Loans.

#### (iii)                               theproportion of the outstanding Restructuring Loans equal to the proportion thatthe aggregate of the C1 Term Loan Commitments and C2 Term Loan Commitments boreto the Total Term Loan Commitments immediately prior to the First Drawdown Dateshall be converted into Restructuring C Loans.

## 2.4**                                 AdditionalFacilities**

### (a)                                  Followingthe occurrence of a Qualifying IPO (and subject to paragraphs (e) and (f)below), any person may, subject to the terms of this Agreement, become a Lenderby delivering to the Facility Agent an Additional Facility Accession Agreementin each case duly completed and executed by that person, the Facility Agent,the Company and, if the Additional Facility is to be granted to an AdditionalBorrower, the relevant Additional Borrower. That person shall become a Lenderon the date specified in the Additional Facility Accession Agreement.

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### (b)                                 Uponthe relevant person becoming a Lender, the Total Commitments shall be increasedby the amount set out in the relevant Additional Facility Accession Agreementas that Lender’s Additional Facility Commitment.

### (c)                                  EachAdditional Facility Lender will grant to the relevant Borrower a term loanfacility in the amount specified in the relevant Additional Facility AccessionAgreement in euros or an Optional Currency (as applicable) during theAdditional Facility Availability Period specified in the Additional FacilityAccession Agreement, subject to the terms of this Agreement.

### (d)                                 Theexecution by the Company of an Additional Facility Accession Agreementconstitutes confirmation by each Guarantor that its obligations under Clause 19(*Guarantee and Indemnity*) shall continueunaffected except that those obligations shall extend to the Total Commitmentsas increased by the addition of the relevant Lender’s Commitment and shall beowed to each Finance Party including the relevant Lender. If and to the extentagreed by the Company with the Additional Facility Lenders the AdditionalFacility shall be secured under the Security Documents on a similar basis as theLenders.

### (e)                                  AnAdditional Facility Accession Agreement may not be delivered or executed wherethe aggregate Total Commitments of such proposed Additional Facility AccessionAgreement and all other Additional Facility Accession Agreements would exceed €400,000,000.

### (f)                                    NoAdditional Facility will be permitted unless (i) the Parent provides acertificate signed by a director certifying (A) no Default is existing and (B)on the basis of pro forma calculations taking into account the drawdown of theAdditional Facility in full, the Smurfit Kappa Funding Group will be incompliance with the financial undertakings in Clause 22 (*Financial Covenants*) and is expected to bein compliance with such financial undertakings for the 12 months following thedrawdown under the Additional Facility, (ii) the Final Maturity Date of theAdditional Facility occurs on or later than the latest Final Maturity Date forthe outstanding Facilities and (iii) the pricing is no more onerous than theopening pricing of the euro denominated loans under the C1 Term Loan Facilityas at the date of the Amendment and Restatement Agreement.

## 2.5**                                 DocumentaryCredit**

### The Revolving Credit Facility may also beutilised by way of issue of Documentary Credits.

## 2.6**                                 AncillaryFacilities**

Subject to the terms of this Agreement, a Lender mayalso make available certain other bi-lateral facilities to the Borrowersin respect of the Revolving Credit Facility in place of all or part of itsRevolving Credit Commitment.

 

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## 2.7**                                 Limitations**

### (a)                                  EachGeneral Term Loan Facility shall be utilised *pro rata*with the other General Term Loan Facilities and each Restricted Term LoanFacility shall be utilised *pro rata* withthe other Restricted Term Loan Facilities.

### (b)                                 NoUtilisation of any Facility may be made before the Closing Date.

### (c)                                  Theaggregate principal amount of Documentary Credits outstanding under theRevolving Credit Facility at any time may not exceed €250,000,000.

### (d)                                 Theaggregate of (i) all outstanding Credits bearing the same designation may notexceed the Commitments then in effect bearing that designation; (ii) alloutstanding Revolving Credit Utilisations when aggregated with all AncillaryOutstandings of the Ancillary Lenders may not exceed the Revolving CreditCommitments then in effect (ignoring any reduction thereof on account ofAncillary Commitments); and (iii) the aggregate amount of all AncillaryOutstandings may not at any time exceed the aggregate Ancillary Commitments.

### (e)                                  TheTerm Loan Facilities shall be available for a period of 10 Business Days afterthe Closing Date (or if any undrawn Term Loan Facilities remains after theClosing Date, a period of up to 90 days after the Closing Date in connectionwith (i) the funding of adjustments in purchase price for the Acquisition (ii)the funding of borrowing requirements arising from the difference between LTMaverage working capital and actual working capital on the Closing Date and/or(iii) funding the payment of costs and expenses arising in connection with theAcquisition provided that no more than €1,200 million in aggregate of the TermLoan Facilities shall be available after the date falling ten Business Daysafter the Closing Date).

## 2.8**                                 Natureof a Finance Party’s rights and obligations**

Unless otherwise agreedby all the Finance Parties:

### (a)                                  theobligations of a Finance Party under the Senior Finance Documents are several;

### (b)                                 failureby a Finance Party to perform its obligations does not affect the obligationsof any other Party (including any other Finance Party) under the Senior FinanceDocuments;

### (c)                                  noFinance Party is responsible for the obligations of any other Finance Partyunder the Senior Finance Documents;

### (d)                                 therights of a Finance Party under the Senior Finance Documents are separate andindependent rights;

### (e)                                  adebt arising under the Senior Finance Documents to a Finance Party is aseparate and independent debt; and

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### (f)                                    aFinance Party may, except as otherwise stated in the Senior Finance Documents,separately enforce those rights.

# **3.****                                      PURPOSE**

## 3.1**                                 TermLoan Facilities**

### (a)                                  EachGeneral Term Loan Facility may be used in or towards financing the following:

#### (i)                                     part-financingthe acquisition by the Company of Target Shares other than the RestrictedTarget Shares;

#### (ii)                                  refinancingexisting indebtedness of the Smurfit Kappa Group and the Target Group and theacquisition by Smurfit Deutschland GmbH of loans to Kappa Packaging(Deutschland) GmbH as contemplated in the Structure Memorandum;

#### (iii)                               thepayment of the Acquisition and Refinancing Costs; and

#### (iv)                              tothe extent not otherwise covered herein, the Permitted Post Closing DrawingPurposes.

### (b)                                 EachRestricted Term Loan Facility may only be used in or towards financing theacquisition by the Restricted Borrower of Restricted Target Shares.

## 3.2**                                 RevolvingCredit Loans**

Each Revolving Credit Loan may be used for the workingcapital and general corporate purposes of the Group, including refinancingworking capital and general corporate debt of the Group (and for the avoidanceof doubt including but not limited to financing Capital Expenditure, anyadjustments to the purchase price for the Acquisition in accordance with theShare Purchase Agreement, and the financing of any dividend payments permittedunder Clause 23.16 (*Dividends*)).

## 3.3**                                 RestructuringFacility Loans**

Each RestructuringFacility Loan may only be used for the following purposes:

### (a)                                  financingthe restructuring costs of the Group, including redundancies, disposal costs,merger costs, advisory costs in connection with restructuring and financingcosts in connection with funding such costs; and

### (b)                                 financingPermitted Acquisitions and Permitted Joint Venture Investments and, in eachcase, the fees, costs and expenses related thereto.

## 3.4**                                 AdditionalFacility Loans**

Each Additional Facility Loan may be used in ortowards any of the following purposes:

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### (a)                                  partialor full repayment, prepayment, redemption, defeasance or purchase of the 2012Senior Cash Pay Notes and any payments of premium required in relation theretoand payment of fees and expenses incurred in relation thereto, provided thatprior to any such application of Additional Facility Loans the Parent deliversto the Facility Agent on or prior to the delivery of the relevant Request acertificate evidencing that the ratio of Consolidated Total Net SeniorBorrowings to Consolidated EBITDA for the most recent four consecutivequarterly Accounting Periods of the Smurfit Kappa Funding Group for whichfinancial statements have been delivered hereunder, pro forma for drawing andthe application of the relevant Additional Facility Loans, is not greater than3.75:1, and for the purposes of this paragraph (a) “**Consolidated Total Net Senior Borrowings**” means theConsolidated Total Net Borrowings less amounts outstanding under the Cash PaySecurities; and

### (b)                                 tofinance the making of Permitted Acquisitions by the Group.

## 3.5**                                 DocumentaryCredits**

Each Documentary Credit issued under the RevolvingCredit Facility may only be issued for the purposes set out in Clause 3.2(*Revolving Credit Loans*).

## 3.6**                                 Noobligation to monitor**

No Finance Party is bound to monitor or verify theutilisation of a Facility and no Finance Party will be responsible for, or forthe consequences of, such utilisation.

## 3.7**                                 ProfessionalMarket Party Representation**

### (a)                                  EachLender that makes an advance to a Dutch Borrower, represents to such DutchBorrower, on the date of this Agreement and, if on such date it is arequirement of Dutch law that each Lender is a Professional Market Party, thedate on which an advance (or any portion thereof) is made to the DutchBorrower, that it is a Professional Market Party.

### (b)                                 EachLender acknowledges that the Dutch Borrower has relied upon such representationand undertakes, to the extent necessary, to provide its reasonable assistanceto the Dutch Borrower in verifying such Lender’s Professional MarketParty-status.

# **4.****                                      CONDITIONSPRECEDENT**

## 4.1**                                 Conditionsprecedent documents**

A Request (other than a request for the utilisation ofa Certain Funds Credit, which shall be subject to Clause 4.2 below) maynot be given until the Facility Agent has notified the Company and the Lendersthat it has received all of the documents and evidence set out in Part Iand Part II of Schedule 2 (*ConditionsPrecedent Documents*) in form and substance satisfactory to theFacility Agent (acting reasonably).  TheFacility Agent must give this notification to the Company and the Lenderspromptly upon receipt of such documents and evidence.

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## 4.2**                                 CertainFunds conditions precedent**

Notwithstanding Clauses 4.1 (*Conditions precedent documents*) and 4.3 (*Further conditions precedent*) during theCertain Funds Period, the obligations of each Lender to participate in anyCertain Funds Credits are subject to the following conditions precedent in formand substance satisfactory to the Facility Agent (acting reasonably):

### (a)                                  thedocumentary conditions precedent requirements set out in Part I only ofSchedule 2 (*Conditions PrecedentDocuments*) except to the extent such conditions precedent arerequired to be delivered in respect of any member of the Group (other than theCompany);

### (b)                                 noMajor Default has occurred and is continuing or would result from the making ofsuch Credit;

### (c)                                  itis not illegal or contrary to applicable law or regulation for a Lender toparticipate in the Credit and this Agreement, the Priority Agreement or anydocument creating security over the shares in Target will not be invalid orunenforceable in any materially relevant jurisdiction due to any relevant lawor regulation provided that if such illegality or invalidity orunenforceability subsists the relevant Finance Parties will use reasonableendeavours to enter into a legally valid and binding agreement achieving asubstantially equivalent position to that prior to such event occurring and theCertain Funds Period shall be suspended for 20 Business Days whilst each FinanceParty uses all reasonable efforts to achieve such position;

### (d)                                 noevent or circumstance has occurred which would entitle the Company to declineto complete the Acquisition in accordance with the Acquisition Documents (otherthan as a result of any conditions relating to the availability of funding forthe Acquisition); and

### (e)                                  noChange of Control has occurred.

During the Certain Funds Period, the Lenders will notexercise their rights under Clause 24.17 (*Acceleration*),exercise any rescission or exercise any right of set-off, in each case toprevent the utilisation of any Certain Funds Credits.

## 4.3**                                 Furtherconditions precedent**

The obligations of each Lender to participate in anyCredit (other than a Certain Funds Credit during the Certain Funds Period) aresubject to the further conditions precedent that on both the date of theRequest and the Utilisation Date for that Credit:

### (a)                                  theRepeating Representations are correct in all material respects; and

### (b)                                 noDefault is outstanding or would result from the Credit or, in the case of aRollover Credit, no Event of Default is outstanding and has been acceleratedpursuant to Clause 24.17 (*Acceleration*).

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## 4.4**                                 Maximumnumber**

Unless the Facility Agent agrees, a Request may not begiven if, as a result of making the Utilisation requested, there would be morethan 15 Loans per General Term Loan Facility (provided that until the date60 days after the Closing Date, there may be 30 Loans per Term LoanFacility), 10 Loans per Restricted Facility, 20 Revolving Credit Loans or 20Documentary Credits or 20 Restructuring Loans outstanding.

# **5.****                                      UTILISATION— LOANS**

## 5.1**                                 Givingof Requests**

### (a)                                  ABorrower may borrow a Loan by giving to the Facility Agent a duly completedRequest.

### (b)                                 Unlessthe Facility Agent otherwise agrees, the latest time for receipt by theFacility Agent of a duly completed Request is 11.00 a.m. one Business Daybefore the Rate Fixing Day for the proposed borrowing.

### (c)                                  EachRequest is irrevocable.

## 5.2**                                 Completionof Requests**

A Request for a Loan will not be duly made unless:

### (a)                                  itidentifies the Borrower;

### (b)                                 itidentifies the Facility under which the Loan is to be made;

### (c)                                  theUtilisation Date is a Business Day falling within the relevant AvailabilityPeriod;

### (d)                                 theamount of the Loan requested is either an amount equal to the entire undrawnamount available under this Agreement for Loans under the relevant Facility onthe proposed Utilisation Date, or a minimum of €3,000,000******(or in the case of a TermLoan, when aggregated with any other Term Loans drawn *pro rata*to it on the same date, €3,000,000 in aggregate for such Term Loans) or itsequivalent in accordance with Clause 9 (*OptionalCurrencies*) and an integral multiple of 1,000,000 units of thatcurrency, or is such other amount as the Facility Agent may agree; and

### (e)                                  theproposed currency and Term comply with this Agreement.

## 5.3**                                 Advanceof Loan**

### (a)                                  TheFacility Agent must promptly notify each Lender of the details of the requestedLoan and the amount of its share in that Loan.

### (b)                                 Theamount of each Lender’s share of each Loan will be its Pro Rata Share on theproposed Utilisation Date.

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### (c)                                  NoLender is obliged to participate in a Loan if as a result:

#### (i)                                     itsshare in the Credits under a Facility would exceed its Commitment for thatFacility; or

#### (ii)                                  theCredits would exceed the Total Commitments.

### (d)                                 Ifthe conditions set out in this Agreement have been met, each Lender must makeits share in the Loan available to the Facility Agent for the relevant Borroweron the Utilisation Date.

# **6.****                                      UTILISATION- DOCUMENTARY CREDITS**

## 6.1**                                 Givingof Requests**

### (a)                                  ABorrower may request a Documentary Credit to be issued under the RevolvingCredit Facility by giving to the Facility Agent a duly completed Request.

### (b)                                 Unlessthe Facility Agent otherwise agrees, the latest time for receipt by theFacility Agent of a duly completed Request is 11.00 a.m. three BusinessDays before the proposed Utilisation Date or, in relation to the Loan NoteGuarantee or a Barclays L/C, one Business Day before the proposed UtilisationDate

### (c)                                  EachRequest is irrevocable.

## 6.2**                                 Completionof Requests**

A Request for a Documentary Credit will not be dulymade unless:

### (a)                                  itidentifies the Borrower;

### (b)                                 itspecifies that it is for a Documentary Credit and identifies the Facility underwhich it is drawn;

### (c)                                  theUtilisation Date is a Business Day falling within the relevant AvailabilityPeriod;

### (d)                                 theamount of the Documentary Credit requested is either an amount equal to themaximum undrawn amount available under this Agreement for Documentary Creditson the proposed Utilisation Date or a minimum of €1,000,000 or its equivalentin accordance with Clause 9 (*OptionalCurrencies*) or such other amount as the Facility Agent may agree;

### (e)                                  theform of Documentary Credit is attached and has previously been agreed by theIssuing Bank or is in all material respects in the form set out in Part I ofSchedule 9 (*Form of Documentary Credit*)or in relation to the Loan Note Guarantee, the form set out in Part II ofSchedule 9 (*Form of Loan Note Guarantee*) or inrelation to a Barclays L/C, the form set out in Part III of Schedule 9 (*Form of Barclays L/Cs*);

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### (f)                                    theexpiry date of the Documentary Credit will fall on or before the FinalRevolving Maturity Date save in relation to the Barclays L/C provided that itwill be cash collateralised by the relevant Borrower on or prior to the FinalRevolving Maturity Date; and

### (g)                                 thedelivery instructions for the Documentary Credit are specified.

Only one Documentary Credit may be requested in asingle Request.

## 6.3**                                 Issueof Documentary Credit**

### (a)                                  TheFacility Agent must promptly notify the Issuing Bank and each Lender of thedetails of the requested Documentary Credit and the amount of such Lender’sshare of that Documentary Credit.

### (b)                                 Theamount of each Lender’s share in a Documentary Credit will be its Pro RataShare on the proposed Utilisation Date.

### (c)                                  TheIssuing Bank is not obliged to issue any Documentary Credit if as a result:

#### (i)                                     aLender’s share in the outstanding Credits under the Revolving Credit Facility,would exceed its Revolving Credit Commitment; or

#### (ii)                                  theoutstanding Credits would exceed the Total Commitments; or

#### (iii)                               inthe case of a Documentary Credit issued under the Revolving Credit Facilityonly, the Issuing Bank has not approved the identity of any New Lender (asdefined in Clause 31 (*Changes to theParties*)) which has acquired a Revolving Credit Commitment and suchNew Lender has not provided any deposit required by the Issuing Bank underSubclause 7.5(d) (*Indemnities*).

### (d)                                 Ifthe conditions set out in this Agreement have been met, the Issuing Bank must issuethe Documentary Credit on the Utilisation Date.

### (e)                                  Ifthe Issuing Bank is not obliged to issue any Documentary Credit only for thereason stated in subparagraph 6.3(c)(iii) above, such Documentary Credit will,subject to the other terms of this Agreement, be issued by the Facility Agenton behalf of the Lenders severally in proportion to their Revolving CreditCommitment.

# **7.****                                      DOCUMENTARYCREDITS**

## 7.1**                                 General**

### (a)                                  ADocumentary Credit is “**repaid**” or “**prepaid**” if:

#### (i)                                     aBorrower provides Cash Cover for that Documentary Credit; or

#### (ii)                                  themaximum amount payable under the Documentary Credit is reduced in accordancewith its terms or as a result of its expiry; or

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#### (iii)                               theDocumentary Credit is returned by the beneficiary with its written confirmationthat it is released and cancelled; or

#### (iv)                              theIssuing Bank is satisfied that it has no further liability under thatDocumentary Credit, as a result of its expiry or otherwise.

The amount by which a Documentary Credit is repaid orprepaid under sub-paragraphs (i) and (ii) above is the amount of therelevant Cash Cover or reduction.

### (b)                                 Ifa Documentary Credit or any amount outstanding under a Documentary Creditbecomes immediately payable, the Issuing Bank will notify the Borrower thatrequested the issue of that Documentary Credit, and such Borrower must (to theextent it has not already provided Cash Cover in respect of such amount) repayor prepay that amount immediately.

### (c)                                  “**Cash Cover**” is provided for a DocumentaryCredit if a Borrower pays an amount in the currency of the Documentary Creditto an interest-bearing account with a Finance Party in London in the nameof the Borrower and the following conditions are met:

#### (i)                                     theaccount is with the Facility Agent or with the Issuing Bank (if, subject asprovided below, in either case the Cash Cover is to be provided for all theLenders) or with a Lender if the Cash Cover is to be provided for that Lenderonly);

#### (ii)                                  untilno amount is or may be outstanding under that Documentary Credit, withdrawalsfrom the account may only be made to pay to a Finance Party amounts due andpayable to that Finance Party in respect of that Documentary Credit or underthis Clause; and

#### (iii)                               theBorrower has executed and delivered a security document over that account, inform and substance satisfactory to the Facility Agent or the relevant Lender(acting reasonably), creating a first ranking security interest over thataccount.

Where Cash Cover is to be provided to all the Lenderson whose behalf a Documentary Credit is issued by the Facility Agent, a Lendermay require its portion of the Cash Cover to be paid into its account insteadof an account with the Facility Agent or the Issuing Bank.

### (d)                                 The“**outstanding**” or “**principal**” amount of a Documentary Creditat any time is the maximum amount that is or may be payable by the relevantBorrower in respect of that Documentary Credit at that time (less any CashCover provided by that Borrower in respect of such Documentary Credit whichcomplies with paragraph (c) above and which remains standing to the credit ofthe relevant interest-bearing account).

 

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## 7.2**                                 Assignmentsand transfers**

The consent of the Issuing Bank is required for anyassignment or transfer of any Lender’s rights and obligations with respect toany Documentary Credit issued by the Issuing Bank under this Agreement.  The Issuing Bank shall not withhold itsconsent if the New Lender (as defined in Clause 31 (*Changes to the Parties*)) has a long termcredit rating of A- or more (when rated by Standard & Poor’s RatingServices) or A3 or more (when rated by Moody’s Investor Services Inc.) or has provideda deposit (free of Security Interests or third party claims) with the IssuingBank in an amount equal to the maximum potential liability of such New Lenderto the Issuing Bank (assuming that such assignment or transfer has alreadyoccurred) under Subclause 7.5 (*Indemnities*)in respect of Documentary Credits outstanding on the relevant Transfer Date.

## 7.3**                                 Feesin respect of Documentary Credits**

### (a)                                  Therelevant Borrower must pay to the Issuing Bank for itself a utilisation feecomputed at the rate of 0.125 per cent. per annum on the outstanding faceamount from time to time of each Documentary Credit (less the amount of anyCash Cover provided in respect of such Documentary Credit) issued by ithereunder for such Borrower which is counter-indemnified by the otherLenders (ignoring for this purpose Subclause 7.6 (*Lender as the Issuing Bank*)) underSubclause 7.5(b) (*Indemnities*)for the period from the date of issue of such Documentary Credit to itsMaturity Date, such fee being payable quarterly in arrears and on the date anyDocumentary Credit is repaid or prepaid in full.

### (b)                                 EachBorrower must pay to the Facility Agent for each Lender a Documentary Creditfee computed at the rate of the Revolving Credit Facility Margin on theoutstanding amount (less the amount of any Cash Cover provided by the Obligorsin respect of such Documentary Credit) of each Documentary Credit requested byit for the period from the date of issue of that Documentary Credit until itsMaturity Date.  This fee will bedistributed according to each Lender’s Pro Rata Share, adjusted to reflect anyassignment or transfer to or by that Lender.

### (c)                                  DocumentaryCredit fee is payable quarterly in arrears (or at the end of any shorter periodthat ends on the Maturity Date for that Documentary Credit).  Any accrued Documentary Credit fee withrespect to any Documentary Credit is also payable to the Facility Agent uponrepayment or prepayment in full of that Documentary Credit.

## 7.4**                                 Claimsunder a Documentary Credit**

### (a)                                  Inthe case of a Documentary Credit issued by the Issuing Bank, each Borrower andeach Lender irrevocably and unconditionally authorises the Issuing Bank, and inthe case of a Documentary Credit issued by the Facility Agent, each Borrowerirrevocably and unconditionally authorises each Lender on whose behalf suchDocumentary Credit was issued, to pay any claim made or purported to be madeunder a Documentary Credit requested by it and 

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### which appears on its face to be in order andin accordance with the terms of that Documentary Credit (a “**Documentary Credit Claim**”).

### (b)                                 EachBorrower must immediately on demand pay to the Facility Agent in the case of aDocumentary Credit issued by the Issuing Bank for the Issuing Bank or, in thecase of a Documentary Credit issued by the Facility Agent, for the account ofeach Lender on whose behalf such Documentary Credit was issued by the FacilityAgent, an amount equal to the amount of any Documentary Credit Claim.

### (c)                                  Inthe case of a Documentary Credit issued by the Issuing Bank, each Borrower andeach Lender acknowledges that the Issuing Bank and, in the case of aDocumentary Credit issued by the Facility Agent on behalf of the Lenders, eachBorrower acknowledges that the Facility Agent and each Lender on whose behalfsuch Documentary Credit was issued:

#### (i)                                     isnot obliged to carry out any investigation or seek any confirmation from anyother person before paying a Documentary Credit Claim; and

#### (ii)                                  dealsin documents only and will not be concerned with the legality of a claim or anyunderlying transaction or any available set-off, counterclaim or otherdefence of any person,

and the Issuing Bank, the Facility Agent and each suchLender may assume that any demand, certificate, statement or document whichappears on its face to be in order is correct and properly made.

### (d)                                 Theobligations of a Borrower and, in respect of a Documentary Credit issued by theIssuing Bank, the obligations of the Facility Agent and each Lender under thisClause will not be affected by:

#### (i)                                     thesufficiency, accuracy or genuineness of any claim or any other document; or

#### (ii)                                  anyincapacity of, or limitation on the powers of, any person signing a claim orother document.

### (e)                                  Acertificate signed by the Issuing Bank or a Lender on whose behalf aDocumentary Credit was issued by the Facility Agent certifying the amount dueto the Issuing Bank or such Lender shall be prima facie evidence of the mattersso certified.

## 7.5**                                 Indemnities**

### (a)                                  ABorrower must promptly on demand indemnify the Issuing Bank, the Facility Agentand each Lender on whose behalf a Documentary Credit was issued by the FacilityAgent against any loss or liability which the Issuing Bank, the Facility Agentor such Lender incurs under or in connection with any Documentary Creditrequested by it, except to the extent that the loss or liability is directlycaused by the gross negligence, wilful misconduct or breach of contract of theIssuing Bank, the Facility Agent or such Lender.  

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### Such Borrower must also pay interest underSubclause 12.4 (*Interest on overdueamounts*) on the amount of any such loss or liability of the IssuingBank or any such Lender for the period between payment by the Issuing Bank orany such Lender and reimbursement by the Borrower (provided that if the IssuingBank or any such Lender does not make demand on the relevant Borrower untilafter the day of payment by the Issuing Bank or such Lender, the rate ofinterest under Subclause 12.4 (*Interest onoverdue amounts*) in relation to such amount shall be reduced by1.00% for the period up to the making of such demand).

### (b)                                 EachLender must promptly on demand indemnify the Issuing Bank against its share ofany loss or liability which the Issuing Bank incurs under or in connection withany Documentary Credit issued by the Issuing Bank and which has not been paidfor by an Obligor, except to the extent that the loss or liability is directlycaused by the gross negligence, wilful misconduct or breach of contract of theIssuing Bank.

### (c)                                  ALender’s share of the liability or loss referred to in sub-paragraph (b)above will be its Pro Rata Share on the Utilisation Date, adjusted to reflectany subsequent assignment or transfer under this Agreement.

|  |   | (d) | (i) | Unless the Issuing Bank has confirmed in writing to  any Lender (not being an Original Lender) that it would not require such  Lender to make any deposit with it, the Issuing Bank may require that any  such Lender (which has a long term credit rating of less than A- (when  rated by Standard and Poor’s Rating Services) or A3 (when rated by Moody’s  Investor Services Inc.)) deposits (free of Security Interests or third party  claims) with the Issuing Bank prior to 10.00 a.m. on the Utilisation Date for  any Documentary Credit to be issued by the Issuing Bank (or if later within  3 Business Days of any such request by the Issuing Bank) an amount equal  to the maximum potential liability of such Lender to the Issuing Bank under  this Subclause 7.5 in respect of such Documentary Credit. |
|--|--------|-----|-----|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

(ii)                                  TheIssuing Bank shall be entitled to apply such deposit (by application of funds,set-off, combination of accounts or otherwise as the Issuing Bank shalldetermine) against amounts due to it from such Lender under this Subclause 7.5.

(iii)                               Anysuch deposit shall be on terms that the Issuing Bank shall only be required torepay such deposit to or to the order of such Lender on the expiry (if nodemand has then been made under such Documentary Credit) or repayment in fullof the relevant Documentary Credit or on compliance in full by such Lender withits obligations to the Issuing Bank under this Subclause 7.5.

(iv)                              Anysuch deposit shall be denominated in the same currency as the relevantDocumentary Credit and shall bear interest at a rate, determined by the IssuingBank to be 0.125 per cent. per annum below that at which it can redeposit thefunds with lending banks in the relevant interbank market for appropriateperiods (as calculated on the 

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aggregate amount of the deposit, on the basis of ayear of 360 days for the actual number of days elapsed).  Such interest shall be payable (subject todeduction of Tax if so required by applicable law) by the Issuing Bank to suchLender quarterly in arrears (or as otherwise agreed) until repayment of the depositor application of the deposit by the Issuing Bank against the obligations ofsuch Lender to it under this Subclause 7.5.

### (e)                                  Therelevant Borrower must promptly on demand reimburse any Lender for any paymentit makes to the Issuing Bank under this Subclause 7.5 (other than pursuantto paragraph (d) above).  Such Borrowermust also pay interest under Subclause 12.4 (*Interest on overdue amounts*) on the amount of any suchpayment by a Lender for the period between payment by such Lender and the dateof reimbursement by the Borrower (provided that if the Issuing Bank or any suchLender does not make demand on the relevant Borrower until after the day ofpayment by the Issuing Bank or such Lender, the rate of interest underSubclause 12.4 (*Interest on overdue amounts*)in relation to such amount shall be reduced by 1.00% for the period up to themaking of such demand).

### (f)                                    Theobligations of each Borrower and each Lender under this Clause arecontinuing obligations and will extend to the ultimate balance of all sumspayable by that Borrower or Lender under or in connection with any DocumentaryCredit, regardless of any intermediate payment or discharge in whole or inpart.

### (g)                                 Theobligations of the Borrowers and any Lender under this Clause will not beaffected by any act, omission or thing which, but for this provision, wouldreduce, release or prejudice any of its obligations under thisClause (whether or not known to it or any other person).  This includes:

#### (i)                                     anytime or waiver granted to, or composition with, any person;

#### (ii)                                  anyrelease of any person under the terms of any composition or arrangement;

#### (iii)                               thetaking, variation, compromise, exchange, renewal or release of, or refusal orneglect to perfect, take up or enforce, any rights against, or security overassets of, any person;

#### (iv)                              anynon-presentation or non-observance of any formality or otherrequirement in respect of any instrument or any failure to realise the fullvalue of any security;

#### (v)                                 anyincapacity or lack of power, authority or legal personality of or dissolutionor change in the members or status of any person;

#### (vi)                              anyamendment (however fundamental) of a Senior Finance Document, any DocumentaryCredit or any other document or security; or

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#### (vii)                           anyunenforceability, illegality or invalidity of any obligation of any personunder any Senior Finance Document, any Documentary Credit or any other documentor security.

## 7.6**                                 Lenderas the Issuing Bank**

A Lender which is also the Issuing Bank shall betreated as a separate entity in those capacities capable as a Lender ofcontracting with itself as the Issuing Bank.

## 7.7**                                 Rightsof contribution**

No Obligor will be entitled to any right ofcontribution or indemnity from any Finance Party in respect of any payment itmay make under this Clause.

## 7.8**                                 Changeof Issuing Bank**

The Issuing Bank may (with the consent of the FacilityAgent) resign on giving 3 months notice to the Company and the FacilityAgent, and the Facility Agent may with the consent of the Lender concerned, andafter consultation with the Company, designate any Lender as a replacementIssuing Bank for future Documentary Credits. Any such resignation shall not extend to or affect Documentary Creditsissued prior to such resignation.

# **8.****                                      ANCILLARYFACILITIES**

## 8.1**                                 Availability**

### (a)                                  Ifthe Company and a Lender agree and subject as provided below, that Lender mayprovide an Ancillary Facility on a bi-lateral basis to a Borrower inplace of all or part of that Lender’s Revolving Credit Commitment.

### (b)                                 AnAncillary Facility may not be made available unless the Company has notifiedthe Facility Agent by not less than 5 Business Days’ notice (or suchlesser period as the Facility Agent may agree) and the Facility Agent hasreceived:

#### (i)                                     anotice specifying:

(A)                              themembers of the Group (being Borrowers) which may use the Ancillary Facility;

(B)                                thestart and expiry dates of the Ancillary Facility;

(C)                                thetype of Ancillary Facility being provided;

(D)                               theAncillary Lender; and

(E)                                 theapplicable Ancillary Commitment;

#### (ii)                                  acopy of the Ancillary Facility Document; and

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#### (iii)                               anyother information which the Facility Agent may reasonably require in connectionwith the Ancillary Facility.

### (c)                                  Subjectto compliance with paragraph (b) above, then:

#### (i)                                     theLender concerned will become an Ancillary Lender; and

#### (ii)                                  theAncillary Facility will be available,

with effect from the date agreed by the Company andthe Ancillary Lender.

### (d)                                 TheFacility Agent must promptly notify the other Lenders.

## 8.2**                                 Termsof Ancillary Facilities**

### (a)                                  Exceptas provided below, the terms of any Ancillary Facility will be those agreed bythe Ancillary Lender and the Company.

### (b)                                 However,those terms:

#### (i)                                     mustbe based upon normal commercial terms at that time;

#### (ii)                                  mustonly allow Borrowers to use the Ancillary Facility;

#### (iii)                               mustnot allow the Ancillary Outstandings to exceed the Ancillary Commitment;

#### (iv)                              maynot allow the Ancillary Commitment of a Lender to exceed the Revolving CreditCommitment of that Lender (before reduction on account of the AncillaryFacility); and

#### (v)                                 mustensure that the Ancillary Commitment is reduced to nil, and that all AncillaryOutstandings are repaid and/or cash-collateralised in full, not laterthan the Final Revolving Maturity Date.

### (c)                                  Inthe event of any conflict between the terms of an Ancillary Finance Documentand any of the other Senior Finance Documents, the terms of the relevant SeniorFinance Document shall prevail.

## 8.3**                                 RevolvingCredit Commitment**

For the purposes of:

### (a)                                  calculatingcommitment fee payable under Clause 27.4 (*Revolving/Restructuring Credit Commitment Fee*); and

### (b)                                 calculatingthe amount of a Lender’s share in a Credit under the Revolving Credit Facility:

#### (i)                                     theRevolving Credit Commitment of a Lender will be reduced by the amount of itsAncillary Commitment in force at that time; and

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#### (ii)                                  theRevolving Credit Commitment of a Lender will be increased by the cancelledamount of its Ancillary Commitment at the time of cancellation.

## 8.4**                                 Refinancingof Ancillary Facility**

### (a)                                  NoAncillary Lender may demand repayment or prepayment of any amounts or demandCash Cover for any liabilities made available or incurred by it under itsAncillary Facility, unless:

#### (i)                                     therelevant Total Revolving Credit Commitments have been cancelled in full, or theFacility Agent has declared all outstanding Credits under the Revolving CreditFacilities immediately due and payable; or

#### (ii)                                  theAncillary Outstandings under that Ancillary Facility can be refinanced by aRevolving Credit Utilisation.

### (b)                                 Forthe purposes of determining whether or not the Ancillary Outstandings under anAncillary Facility can be so refinanced by a Revolving Credit Utilisation:

#### (i)                                     theRevolving Credit Commitment of the Ancillary Bank will be increased by theamount of its Ancillary Outstandings (or if less by the amount of its AncillaryCommitments) under that Ancillary Facility; and

#### (ii)                                  theRevolving Credit Utilisation may (provided that paragraph 8.4(a)(i) above doesnot apply) be utilised irrespective of whether a Default is outstanding or anyother applicable condition precedent is not satisfied (but only to the extentthat the proceeds are applied in refinancing those Ancillary Outstandings); and

#### (iii)                               therespective shares in such Revolving Credit Utilisation of the Lenders havingRevolving Credit Commitments shall be such that after the making of suchRevolving Credit Utilisation, the shares of such Lenders in all the outstandingUtilisations of the Revolving Credit Utilisations taken together shall beproportionate to the Revolving Credit Commitments of the Lenders.

## 8.5**                                 Information**

Each Obligor and each Ancillary Lender must, promptlyupon request by the Facility Agent, supply the Facility Agent with anyinformation relating to the operation of an Ancillary Facility (including theAncillary Outstandings) as the Facility Agent may reasonably request.

# **9.****                                      OPTIONALCURRENCIES**

## 9.1**                                 Denomination**

### (a)                                  TermLoans may be denominated in euros or in other Optional Currencies selected bythe Company.

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### (b)                                 RestructuringLoans may be denominated in euros or in other Optional Currencies selected bythe Company.

### (c)                                  RevolvingCredit Loans may be denominated in euros or subject as provided below, anOptional Currency.

### (d)                                 DocumentaryCredits may be denominated in euros or in other Optional Currencies selected bythe Company.

### (e)                                  AdditionalFacility Loans may be denominated in euros or in other Optional Currenciesselected by the Company.

## 9.2**                                 Selection**

### (a)                                  ABorrower must select the currency of a Loan in its Request.

### (b)                                 Theamount of a Revolving Credit Loan under a Revolving Credit Facility requestedin an Optional Currency must be a minimum amount of the equivalent of€3,000,000 and an integral multiple of 1,000,000 units of that currency.

### (c)                                  Unlessthe Facility Agent otherwise agrees, the Revolving Credit Loans may not bedenominated at any one time in more than nine currencies.

## 9.3**                                 Conditionsrelating to Optional Currencies**

### (a)                                  ATerm Loan, a Restructuring Loan or an Additional Facility Loan may only bedenominated in an Optional Currency or a Revolving Credit Utilisation may onlybe denominated in an Optional Currency for a Term if:

#### (i)                                     thatOptional Currency is readily available in the amount required and freelyconvertible into the Base Currency in the relevant interbank market on the RateFixing Day and the first day of that Term; and

#### (ii)                                  thatOptional Currency is US Dollars, Sterling, Swedish Kronor, Norwegian Kroner,Danish Kroner, Canadian Dollars, Hong Kong Dollars, Japanese Yen, or SwissFrancs or has been previously approved by the Facility Agent (acting on theinstructions of all the Lenders).

### (b)                                 Ifthe Facility Agent has received a request from the Company for a currency to beapproved as an Optional Currency, the Facility Agent must, within five BusinessDays, confirm to the Company:

#### (i)                                     whetheror not the Lenders have given their approval; and

#### (ii)                                  ifapproval has been given, the minimum amount (and, if required, integralmultiples) for any Credit in that currency.

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## 9.4**                                 Revocationof currency**

### (a)                                  Notwithstandingany other term of this Agreement, if before 9.30 a.m. on any Rate FixingDay the Facility Agent receives notice from a Lender that:

#### (i)                                     theOptional Currency requested is not readily available to it in the relevantinterbank market in the amount and for the period required; or

#### (ii)                                  participatingin a Loan in the proposed Optional Currency is reasonably likely in the opinionof that Lender to contravene any law or regulation applicable to it,

the Facility Agent must give notice to the Company tothat effect promptly and in any event before 11.00 a.m. on that day.

### (b)                                 Inthis event:

#### (i)                                     thatLender must participate in the Credit in the Base Currency; and

#### (ii)                                  theshare of that Lender in the Credit and any other similarly affected Lender(s)will be treated as a separate Credit denominated in the Base Currency.

### (c)                                  Anypart of a Credit treated as a separate Credit under this Subclause9.4 will not be taken into account for the purposes of any limit on thenumber of Credits or currencies outstanding at any one time.

### (d)                                 ACredit will still be treated as a Rollover Credit if it is not denominated inthe same currency as the maturing Revolving Credit Loan by reason only of theoperation of this Subclause 9.4.

## 9.5**                                 OptionalCurrency equivalents**

The equivalent in the Base Currency of a Credit orpart of a Credit in an Optional Currency for the purposes of calculating:

### (a)                                  whetherany limit under this Agreement has been exceeded;

### (b)                                 theamount of a Credit;

### (c)                                  theshare of a Lender in a Credit;

### (d)                                 theamount of any repayment of a Credit; or

### (e)                                  theundrawn amount of a Lender’s Commitment,

is its Original Base Currency Amount.

## 9.6**                                 TermLoan, Restructuring Loan or Additional Facility Loan Revaluation**

### (a)                                  Ifany Term Loan, Restructuring Loan or Additional Facility Loan is denominated inan Optional Currency the Facility Agent shall at six month intervals from theFirst Drawdown Date (each being a “**CurrencyTest Date**”) 

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### calculate theBase Currency Amount of the outstanding Term Loans, Restructuring Loans orAdditional Facility Loans (for which purpose the Base Currency Amount shall becalculated using the Agent’s Spot Rate of Exchange on the date of calculation).

### (b)                                 Ifthe outstanding Base Currency Amount of the Loans under the General Term LoanFacility, the Restricted Term Loan Facility, the Restructuring Loan Facility orany Additional Facility on any Currency Test Date exceeds by more than 5% theTotal General Term Loan Commitments, Total Restricted Term Loan Commitments,Total Restructuring Credit Commitments and the aggregate Additional FacilityCommitments for the relevant Additional Facility, respectively, at that time(the amount of the excess being the “**ExcessCurrency Amount**”)the Company shall within 5 Business Days of notice from the Facility Agentdeposit in an interest bearing blocked account of the Company held with theFacility Agent in London an amount so that following such deposit the amountstanding to the credit of the account is equal to the Excess Currency Amount.

### (c)                                  Noamount may be withdrawn by the Company from such blocked account unless on anysubsequent Currency Test Date either there is no Excess Currency Amount (inwhich case the full amount standing to the credit of such account may bewithdrawn) or if the Excess Currency Amount is less than the amount standing tothe credit of such account an amount may be withdrawn so that the amountstanding to the credit of such account equals the Excess Currency Amount on thelast Currency Test Date.

### (d)                                 Theblocked account held with the Facility Agent (and any amount held in it) shallbe charged in favour of the Finance Parties on terms satisfactory to theSecurity Agent acting reasonably.

## 9.7**                                 DocumentaryCredit Revaluation**

If any Documentary Credit is denominated in anOptional Currency the Facility Agent shall at six month intervals from theFirst Drawdown Date (each being a “**Currency Test Date**”) calculate the Base Currency Amountof the outstanding Documentary Credits (for which purpose the Base CurrencyAmount shall be calculated using the Agent’s Spot Rate of Exchange on the dateof calculation) and the Parent shall within 5 Business Days notice from theFacility Agent ensure that, following such calculation, the Revolving CreditFacility is prepaid to the extent necessary so that the Base Currency Amount ofall outstanding Utilisations of the Revolving Credit Facility do not exceed theRevolving Credit Facility Commitments.

## 9.8**                                 Notification**

The Facility Agent must notify the Lenders and theCompany of the relevant Base Currency Amount (and the applicable Agent’s SpotRate of Exchange) promptly after they are ascertained.

 

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# **10.****                               REPAYMENT**

## 10.1**                           Repaymentof Term Loans**

### (a)                                  EachBorrower must repay the A1 Term Loans and the A2 Term Loans made to it in fullby instalments on the dates and in the amounts set out below. The amount to berepaid on each date specified below (each a “**repaymentdate**”) in respectof the A1 Term Loans and A2 Term Loans shall be the percentage (set outopposite that repayment date in respect of the A1 Term Loan Facility and the A2Term Loan Facility ) of each A1 Term Loan and A2 Term Loan outstanding as at thedate falling 90 days after the Closing Date.

| Repayment Date  (months following the  Closing Date) | ** ** | **Repayment Amount  (Percentage of A1 Term Loans  and A2 Term Loans)** | ** ** |
|--------------------------------------------------------------------------|------------|----------------------------------------------------------------------------------------------------------------|------------|
| 12                                                                       |       |                                                                                                           | 3          | % |   |
| 18                                                                       |       |                                                                                                           | 3          | % |   |
| 24                                                                       |       |                                                                                                           | 5.40       | % |   |
| 30                                                                       |       |                                                                                                           | 5.40       | % |   |
| 36                                                                       |       |                                                                                                           | 6.40       | % |   |
| 42                                                                       |       |                                                                                                           | 6.40       | % |   |
| 48                                                                       |       |                                                                                                           | 7.40       | % |   |
| 54                                                                       |       |                                                                                                           | 7.40       | % |   |
| 60                                                                       |       |                                                                                                           | 9.50       | % |   |
| 66                                                                       |       |                                                                                                           | 9.50       | % |   |
| 72                                                                       |       |                                                                                                           | 11.60      | % |   |
| 78                                                                       |       |                                                                                                           | 11.60      | % |   |
| 84                                                                       |       |                                                                                                           | 13.40      | % |   |

###  

### (b)                                 EachBorrower must repay the B1 Term Loans and the B2 Term Loans made to it in fullon the eighth anniversary of the Closing Date or, if later, 31 December 2013.

### (c)                                  EachBorrower must repay the C1 Term Loans and the C2 Term Loans made to it in fullon the ninth anniversary of the Closing Date or, if later, 31 December 2014.

### (d)                                 Anyamounts repaid under paragraphs (a), (b) and (c) above may not be re-borrowed.

## 10.2**                           Repaymentof Revolving Credit Loans**

### (a)                                  EachBorrower must repay each Revolving Credit Loan made to it in full on itsMaturity Date.

### (b)                                 Subjectto the other terms of this Agreement, any amounts repaid underparagraph (a) above may be re-borrowed.

### (c)                                  Withoutprejudice to any Borrower’s obligation to repay the full amount of eachRevolving Credit Loan on its due date, on the date of any Rollover Credit drawnby any Borrower, the amount to be repaid and the amount to be drawn

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### down by suchBorrower on such date in the same currency shall be netted off against eachother so that the amount of cash which such Borrower is actually required topay or, as the case may be, the amount of cash which the Lenders are actuallyrequired to pay to such Borrower, shall be the net amount.

### (d)                                 Anyamount of any Revolving Credit Loan still outstanding on the Final RevolvingMaturity Date shall be repaid on the Final Revolving Maturity Date.

## 10.3**                           Repaymentof Restructuring Loans**

### (a)                                  EachBorrower must repay the Restructuring A Loans made to it on each repayment date(as defined in Clause 10.1 (*Repayment of Term Loans*))falling after the Restructuring Loan Facility Conversion Date in an amountequal to (i) the same percentage by which the A1 Term Loans are repaid on eachsuch repayment date multiplied by (ii) the Restructuring A Loans outstanding onsuch date and any Restructuring A Loans still outstanding on the final suchrepayment date shall be repaid on that date.

### (b)                                 EachBorrower must repay the Restructuring B Loans made to it in full on the eighthanniversary of the Closing Date, or if later, 31 December 2013.

### (c)                                  EachBorrower must repay the Restructuring C Loans made to it in full on the ninthanniversary of the Closing Date, or if later, 31 December 2014.

### (d)                                 Anyamounts repaid under paragraphs (a), (b) and (c) above may not be re-borrowed.

## 10.4**                           Repaymentof the Additional Facility Loans**

### (a)                                  EachBorrower must repay the Advances made to it in accordance with the provisionsof the relevant Additional Facility Accession Agreement unless the relevantAdditional Facility Lenders otherwise agree.

## 10.5**                           Repaymentof Documentary Credits**

### (a)                                  EachBorrower must repay each Documentary Credit issued on its behalf in full on itsMaturity Date in accordance with Clause 7.1(a) (*General*).

### (b)                                 Subjectto the other terms of this Agreement, any amounts repaid under paragraph (a)above may be re-utilised.

### (c)                                  AnyDocumentary Credit still outstanding on the Final Revolving Maturity Date shallbe repaid on that date in accordance with Clause 7.1(a) (*General*).

## 10.6**                           AcceleratedRepayment for 2012 Senior Cash Pay Notes**

If the 2012 Senior Cash Pay Notes are not refinancedby the Group prior to 1 July 2012:

### (a)                                  allthe Credits and any other amounts outstanding under the Senior FinanceDocuments shall be immediately due and payable; and/or

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### (b)                                 allof the Total Commitments shall be immediately cancelled; and/or

### (c)                                  fullCash Cover in respect of any or each Documentary Credit is immediately due andpayable.

# **11.****                               PREPAYMENTAND CANCELLATION**

## 11.1**                           Mandatoryprepayment - illegality**

### (a)                                  ALender must notify the Company promptly if it becomes aware that it is unlawfulin any applicable jurisdiction for that Lender to perform any of itsobligations under a Senior Finance Document or to fund or maintain its share inany Credit.

### (b)                                 Afternotification under paragraph (a) above and subject to the Borrower’s right toreplace such Lender pursuant to Clause 17.2(a)(iii) (*Replacementof Lender*):

#### (i)                                     eachBorrower must repay or prepay the share of that Lender in each Credit utilisedby it on the date specified in paragraph (c) below; and

#### (ii)                                  theCommitments of that Lender will be immediately cancelled.

### (c)                                  Thedate for repayment or prepayment of a Lender’s share in a Credit will be:

#### (i)                                     thelast day of the current Term for that Credit following receipt by theCompany of notice from the Lender under paragraph (a) above; or

#### (ii)                                  iflater, the latest date allowed by the relevant law.

## 11.2**                           Mandatoryprepayment - change of control/ownership**

### (a)                                  If:

#### (i)                                     thereis a Change of Control (as defined below) at any time prior to an IPO; or

#### (ii)                                  allor substantially all of the assets or business of the Group are sold,

the Parent must promptly notify the Facility Agent.

### (b)                                 Afternotification under paragraph 11.2(a)(i) or (ii) above the Facility Agentmust, unless the Majority Lenders otherwise require, by notice to the Company:

#### (i)                                     cancelthe Total Commitments; and/or

#### (ii)                                  declareall outstanding Credits, together with accrued interest and all other amountsaccrued under the Senior Finance Documents, to be immediately due and payable.

Any such notice will take effect in accordance withits terms.

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### (c)                                  Ifthere is a Change of Control at any time after an IPO the Parent must notifythe Facility Agent promptly upon becoming aware of such Change of Control andthe Facility Agent may, if so instructed by the Majority Lenders, give theCompany no less than 120 days’ written notice to:

#### (i)                                     cancelthe Total Commitments; and/or

#### (ii)                                  declareall outstanding Credits, together with accrued interest and all other amountsaccrued under the Senior Finance Documents, to be immediately due and payable.

### (d)                                 Inparagraph (a) and (c) above and Clause 11.3 below:

“**Change of Control**”means:

#### (i)                                     duringthe period prior to an IPO:

(A)                              TheInvestors cease to legally and beneficially own (directly or indirectly) atleast 51% of the voting shares of the Parent or to have the right to control amajority of the votes of the board of directors of the Parent;

(B)                                TheParent ceases to own all of the shares of Smurfit Kappa Funding or SmurfitKappa Funding ceases to own all of the shares of the Company (directly orindirectly);

(C)                                TheInvestors cease to have directly or indirectly the largest economic interest inthe Parent (excluding for this purpose the liability of the Parent under theSenior Finance Documents and/or the Securities); or

(D)                               Anyperson or group of persons acting in concert other than the Investors (eitherdirectly or indirectly through one or more Holding Companies) gains control ofthe Parent; and

#### (ii)                                  afteran IPO, any person or group of persons acting in concert (excluding theInvestors) acquires (either directly or indirectly) 30% or more of the votingshares of the Parent and such person or group of persons is the largest shareholder.

“**control**” means the power to direct themanagement and policies of the Parent whether through the ownership of votingshares, by contract or otherwise; and

“**acting inconcert**” has themeaning given to it in the City Code on Takeovers and Mergers.

## 11.3**                           IPO**

### (a)                                  Subjectto paragraph (c) below, where there is an IPO in respect of the shares in theParent or any other member of the Group (or any Holding Company of the Parent)and such IPO does not result in a Change of Control, the Parent 

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### must apply orprocure that the net proceeds (the “**IPOProceeds**”)are applied in prepayment of the Credits under this Agreement in an amountequal to the percentage of the IPO Proceeds set out in the table belowcorresponding to the ratio of Consolidated Total Net Borrowings on theimmediately preceding Quarter Date to Consolidated EBITDA for the 12 monthperiod ending on such Quarter Date:

| Ratio of Consolidated Total Net Borrowings to Consolidated EBITDA | ** ** | **Applicable  Percentage** | ** ** |
|-----------------------------------------------------------------------------------------------------------|------------|----------------------------|------------|
| ** **                                                                                                | ** ** | ** **                 | ** ** |
| Greater than or equal  to 4:1                                                                             |       | 75                         | %          |
|                                                                                                      |       |                       |       |
| Less than 4:1 but  greater than or equal to 3.5:1                                                         |       | 50                         | %          |
|                                                                                                      |       |                       |       |
| Less than 3.5:1 but  greater than or equal to 2.5:1                                                       |       | 25                         | %          |
|                                                                                                      |       |                       |       |
| Less than 2.5:1                                                                                           |       | 0                          |       |

 

(provided that this Subclause shall not apply inrespect of a Subsidiary of the Parent or the Target whose shares are listed ona recognised stock exchange on the date of this Agreement where any such saleor issue does not dilute or reduce the direct or indirect ownership interest ofthe Parent or the Target in such Subsidiary and is otherwise permitted by theterms of this Agreement).

### (b)                                 Theremaining IPO Proceeds shall be retained by the Group and for the avoidance ofdoubt may be applied for any purpose which is not prohibited by this Agreement.

### (c)                                  Clause11.3(a) and (b) shall not apply to the IPO Proceeds of the Approved IPO(including, for the avoidance of doubt any proceeds from an additional issuanceof shares of the Parent or a Holding Company of the Parent occurring any timeup to 40 days after the closing of the Approved IPO), provided that such IPOProceeds are applied as set out in the definition of the Approved IPO.

## 11.4**                           Mandatoryprepayment - disposals, insurance, warranty and report claims**

### (a)                                  Inthis Subclause:

#### (i)                                     “**Net Proceeds**” of any Recovery Event meansthe amount received in Cash or Cash Equivalents (or other instruments whichupon receipt are readily convertible into Cash on reasonable commercial terms)by a member of the Group in respect thereof subject to the following:

(A)                              includingthe amount of any intercompany loan repaid to continuing members of the Group;

(B)                                treatingconsideration initially received in a form other than Cash, Cash Equivalents orsuch other instruments as being received when and if that consideration isconverted into Cash or becomes readily so convertible on reasonable commercialterms;

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(B)                                afterdeducting Taxes (and amounts reasonably reserved in respect of Taxes) payableby members of the Group in connection with that Recovery Event;

(C)                                afterdeducting properly incurred costs and expenses (including without limitationlegal fees, agents’ commission, auditors’ fees, out-of-pocketredundancy costs, out-of-pocket closure costs, out-of-pocketrestructuring costs and out-of-pocket reorganisation costs bothpreparatory to and/or in consequence of the relevant Recovery Event) incurredby members of the Group in connection with that Recovery Event;

(D)                               inthe case of a Recovery Event that is a disposal of a business or asset, afterdeducting the amount of any Financial Indebtedness (and any related prepaymentfee or penalty or make-whole payment) repaid on disposal of such businessor asset (other than, for the avoidance of doubt, the repayment of the Creditsunder this Agreement)(provided that the Company shall promptly notify theFacility Agent of any such repayment of Financial Indebtedness and providedfurther that on the disposal of any asset charged to the Finance Parties underany of the Security Documents no Financial Indebtedness shall be repaid orprepaid, other than (I) Financial Indebtedness secured by a prior rankingSecurity Interest over such business or asset provided that such FinancialIndebtedness and such prior ranking Security Interest were permitted under thisAgreement; and (II) amounts outstanding under the Senior Finance Documents);

(E)                                 afterdeducting reasonable reserves in respect of indemnities or other contingentliabilities in respect of the business or asset disposed of provided that ifsuch reserves are not required to be applied in meeting any such indemnity orcontingent liability such amount shall be deemed to be an amount of NetProceeds;

(F)                                 inthe case of a Recovery Event that is the closing out of an Existing TreasuryTransaction, less any amount applied in repayment or prepayment of the relatedSecurities, Bond Refinancing Debt or Remaining Debt (as applicable).

#### (ii)                                  “**Recovery Event**”****means:

(A)                              thedisposal of a business or asset (including the disposal of receivables), otherthan (I) where the asset (not being a receivable) is to be (and is) replaced byanother asset for use in the Group’s business within 12 months of the date ofdisposal or the Net Proceeds of the disposal are committed or designated by theGroup to be reinvested in replacement assets within 12 months of the date ofthe disposal and are so reinvested within six months thereafter, or (II) adisposal of inventory or stock in the ordinary course of trading, or(III) Synergy Disposals in 

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respect of which the Group has elected in writing tothe Facility Agent to apply the Net Proceeds to reinvest in payment ofrestructuring costs, or (IV) any disposal permitted byClause 23.6(b)(i), (ii), (vi), (vii), (xi), (xii), (xiv), (xv) (but onlyto the extent it relates to 23.5(c)(i) (*Negative pledge*)),23.6(b)(xvi) and 23.6(b)(xviii) (*Disposals*)save as provided in Clause 11.5 (*Mandatory prepayment —Permitted Securitisation*), or (V) disposals in accordance withthe Structure Memorandum, the Financial Model and the Business Plan or (VI) thedisposal of securised receivables pursuant to or in connection with a PermittedReceivables Securitisation;

(B)                                aclaim by a member of the Group under any contract of insurance (other than inrespect of public liability, third party liability or business interruption),other than where the Net Proceeds are to be (and are) applied within 12 monthsof receipt in reinstating or replacing (on a like for like basis) any asset, orreimbursing such member of the Group for any cost or expense actually incurredin reinstating or replacing any asset to which the insurance policy under whichthe claim is made relates, or applied in defraying the loss or liability, towhich the claim relates or are committed or designated to be so applied within12 months of receipt and are so applied within 6 months thereafter;

(C)                                ifany amount is deducted from Net Proceeds under paragraph (i)(E) above, areduction in the amount of the reserves that are required to be maintained oran end to the obligation to maintain such reserves;

(D)                               anyamount is received by any member of the Group in repayment or prepayment of anyloan made by it to a member of the SPV Group or otherwise received by a memberof the Group as contemplated in Clause 23.34 (*SPV Group*);

(E)                                 theclosing out of any Existing Treasury Transaction; and

(F)                                 anyliability claim by the Group in respect of the Acquisition against the Vendoror in respect of the Report against any professional adviser other than wherethe Net Proceeds are applied (or are committed or designated to be applied)within 12 months of receipt (and if committed or designated are applied within6 months thereafter) by the relevant Group member:

(i)                                   tosatisfy (or reimburse the member of the Group who has discharged) anyliability, charge or claim upon a member of the Group by a person who is not amember of the Group; or

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(ii)                                  torectify the deficiency (or to reimburse the member of the Group who hasdischarged) leading to such recovery being claimed, including payment of a taxliability, payment of an environmental liability, payment of litigation costsand to reimburse any working capital deficiency.

### (b)                                 If(i) the Net Proceeds from a Recovery Event exceeds €2,500,000 (the amount ofsuch excess, being the “**Relevant Net Proceeds**”)and (ii) the aggregate amount of Relevant Net Proceeds from Recovery Eventsexceeds €25,000,000 (or its equivalent) during any annual Accounting Period ofSmurfit Kappa Funding, the Company must apply or procure the application of anamount equal to the aggregate amount of such excess towards prepaying theCredits in accordance with Subclause 11.12 (*Application between Term Loan Facilities and Revolving CreditFacilities*) (regardless of its amount and the aggregate amount ofRelevant Net Proceeds) must be so applied, and unless in each case to do sowould be unlawful (and the Company will notify the Facility Agent promptly withdetails of any provision making any such prepayment unlawful) or would incur amaterial tax liability for the Group. Any such amounts not prepaid due to unlawfulness or material tax costsshall be retained by the Group and may be applied by it for any purpose notprohibited hereunder.

### (c)                                  TheCompany will procure that each member of the Group uses all reasonableendeavours to avoid any such unlawfulness and tax costs and to facilitate cashcirculation between members of the Group to enable prepayment of the Credits.

## 11.5**                           Mandatoryprepayment — Permitted Securitisation**

### (a)                                  Forthe purposes of this Subclause 11.5, “**NetSecuritisation Proceeds**” means, without double counting, theconsideration received by any member of the Group in respect of the disposal ofreceivables and related rights transferred pursuant to a Permitted ReceivablesSecuritisation to the extent that such consideration:

#### (i)                                     isnot funded by collections in respect of receivables purchase by theSecuritisation SPV on a previous date;

#### (ii)                                  isnot funded by the issue by the Securitisation SPV of additional notes, bonds orother indebtedness (including commercial paper or other short term instruments)up to the then current maximum amount of such indebtedness which may be issuedby the Securitisation SPV to fund the acquisition of receivables; and

#### (iii)                               doesnot represent the payment of deferred consideration in respect of receivablespurchased by the Securitisation SPV on an earlier date,

net of all third party costs, fees and expenses(including any applicable VAT) properly incurred by members of the Group inarranging and effecting the 

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Permitted Receivables Securitisation or any subsequentincrease in third party funding therefor.

### (b)                                 Oneach date on which Net Securitisation Proceeds are received, the Company mustprocure the application of an amount equal to such Net Securitisation Proceedstowards prepaying the Credits in accordance with Subclause 11.12 (*Application between Term Loan Facilities and Revolving CreditFacilities*) unless to do so would be unlawful (and the Company willnotify the Facility Agent with details of any provision making any suchprepayment unlawful) or would incur a material tax liability for theGroup.  Any such amounts not prepaid dueto unlawfulness or material tax costs shall be retained by the Group and may beapplied by it for any purpose not prohibited hereunder.

## 11.6**                           Mandatoryprepayment - Excess Cash Flow**

### (a)                                  Inthis Subclause:

“**Excess Cash Flow**”means, for any financial year of Smurfit Kappa Funding commencing after 31December 2005 (the first cash sweep shall be for the financial year ending 31December 2006), Consolidated Cash Flow less Consolidated Total Debt Service inexcess of €15,000,000 after deducting (without double counting): (a) an amountequal to any Capital Expenditure limit carried forward from the relevantfinancial year in accordance with the proviso in Clause 22.1(iv)(a) (*Financial Undertakings*), (b) an amount equal to (i) proceedsof events that would have been Recovery Events except that such proceeds havebeen committed or designated to be reinvested as permitted underClause 11.4 (*Mandatory prepayment — disposals, insurance,warranty and report claims*) but have not been applied in suchreinvestment and (ii) proceeds of Recovery Events that do not need to beapplied in prepayment of the Credits, (c) an amount equal to the equity,quasi-equity investments or subordinated loans made by the Investors andfollowing a Qualifying IPO made by any person who is not a member of the Group,in each case in or to the Parent in the relevant financial year (“**Permitted Equity Injections**” including for the avoidance ofdoubt Cure Amounts), (d) an amount equal to the management fees permitted to bepaid to the Investors pursuant to Clause 23.16 (*Dividends*)in the current year, (e) following the occurrence of a Qualifying IPO, anamount equal to any dividends declared in respect of the relevant financialyear as permitted pursuant to Clause 23.16 (*Dividends*) and (f) any fees, costs and expensesincurred by the Group in relation to the amendments to the Finance Documentspursuant to the Amendment and Restatement Agreement and in relation to theApproved IPO and the transactions required in connection therewith and whichwere included in the determination of Consolidated EBITDA.

### (b)                                 Priorto the occurrence of a Qualifying IPO, if the annual audited consolidatedAccounts of Smurfit Kappa Funding reveal Excess Cash Flow, the Company mustapply or procure the application of an amount equal to 66 2/3% (or, ifConsolidated Total Net Borrowings is less than or equal to 3.5 times butgreater than 3.0 times Consolidated EBITDA for the annual Accounting Period,then 50% or, if the Consolidated Total Net Borrowings is less than or equal to3.0 times but greater than 2.5 Consolidated EBITDA for such period, 

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### then 25% or,if the Consolidated Total Net Borrowings is less than 2.5 times ConsolidatedEBITDA, zero) of the amount of Excess Cash Flow in that period (deducting fromthe result of such calculation the aggregate amount of voluntary and mandatoryprepayments made by the Group in the relevant year) towards prepaying theCredits in accordance with Clause 11.12 (*Applicationbetween Term Loan Facilities and Revolving Credit Facilities*).  The Group shall be entitled to retain orapply any Excess Cash Flow not required to be prepaid for any purpose notprohibited by this Agreement.

### (c)                                  Afterthe occurrence of a Qualifying IPO, if the annual audited consolidated Accountsof Smurfit Kappa Funding reveal Excess Cash Flow, the Company must apply orprocure the application of an amount equal to 50% (or, if Consolidated TotalNet Borrowings is less than or equal to 3.5 times but greater than 3.0 timesConsolidated EBITDA for the annual Accounting Period, then 25% or, if theConsolidated Total Net Borrowings is less than or equal to 3.0 times, zero%) ofthe amount of Excess Cash Flow in that period (deducting from the result ofsuch calculation the aggregate amount of voluntary and mandatory prepaymentsmade by the Group in the relevant year) towards prepaying the Credits inaccordance with Clause 11.12 (*Applicationbetween Term Loan Facilities and Revolving Credit Facilities*).  The Group shall be entitled to retain anyExcess Cash Flow not required to be prepaid for any purpose not prohibited bythis Agreement.

### (d)                                 Anyprepayment under this Subclause 11.6 must be made on or before thelast day of the then current Term(s) of the Credits in which the annualaudited consolidated Accounts of Smurfit Kappa Funding establishing that therehas been Excess Cash Flow are delivered to the Facility Agent.

## 11.7**                           Paymentinto a blocked account**

### (a)                                  Inthis Clause “**blocked account**”means an interest bearing blocked account in the name of the Company with theFacility Agent held in London and governed by English law and charged to theFinance Parties.

### (b)                                 Ifthe Company is required to prepay Credits on or before the last day of thecurrent Term(s) for those Credits and the aggregate amount of such prepaymentsexceeds €20,000,000, the Company must promptly ensure that an amount equal tosuch excess is deposited in a blocked account. The Company may retain amounts that it is required to apply to prepayCredits up to €20,000,000 until such amounts are applied to make the prepaymentin accordance with the terms hereof.

### (c)                                  TheCompany irrevocably authorises the Facility Agent to apply any amount depositedwith it under paragraph (b) towards prepayment of the Credits on thelast day of the relevant Term(s) or earlier if the Company so directs.

### (d)                                 Amountsstanding to the credit of a blocked account may only be used to prepay Creditsor (at the discretion of the Majority Lenders) any other amounts due andpayable (but unpaid) under the Senior Finance Documents.

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## 11.8**                           Voluntaryprepayment**

### (a)                                  TheCompany may, by giving not less than three Business Days’ prior notice tothe Facility Agent, prepay (or procure prepayment of) any Credit at any time inwhole or in part without premium or penalty but subject, if applicable, topayment of Break Costs.

### (b)                                 Avoluntary prepayment of part of a Credit must be in a minimum amount of €1,000,000and an integral multiple of €500,000.

## 11.9**                           Automaticcancellation**

The undrawn Commitments of each Lender under eachFacility will be automatically cancelled at the close of business in London onthe last day of the Availability Period for that Facility.

## 11.10**                     Voluntarycancellation**

### (a)                                  TheCompany may, by giving not less than five Business Days’ prior noticeto the Facility Agent, cancel the unutilised amount of the Total RevolvingCredit Commitments in whole or in part.

### (b)                                 Partialcancellation of Total Revolving Credit Commitments pursuant to thisClause must be in a minimum amount of €1,000,000 and an integral multipleof €500,000.

### (c)                                  Anycancellation in part of Total Revolving Credit Commitments pursuant to thisClause will be applied against the relevant Commitment of each Lender *pro rata*.

## 11.11**                     Involuntaryprepayment and cancellation**

### (a)                                  Subjectto the Borrower’s right to replace such Lender pursuant toClause 17.2(a)(iii) (*Replacement of Lender*),if an Obligor is, or will be, required to pay to a Lender any amount underSubclauses 15.1 (*Grossing-up for Taxes*),15.2 (*Tax Indemnity*) or 16.1 (*Increased Costs*), the Company may, whilethe requirement continues, give notice to the Facility Agent requestingprepayment and/or cancellation in respect of the Credits and/or Commitments ofthat Lender.

### (b)                                 Afternotification under paragraph (a) above:

#### (i)                                     eachBorrower must repay or prepay that Lender’s share in each Credit utilised by iton the date specified in paragraph (c) below; and

#### (ii)                                  theCommitments of that Lender will be immediately cancelled.

### (c)                                  Thedate for repayment or prepayment of a Lender’s share in a Credit will be thelast day of the current Term for that Credit or, if earlier, the datespecified by the Company in its notification.

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## 11.12                     **Application between Term Loan Facilities and RevolvingCredit Facilities**

### (a)                                  Subjectto Clause 11.12(b) below, any amount to be applied in permanent prepaymentof Credits pursuant to Clauses 11.4 (*Mandatory prepayment -disposals, insurance, warranty and report claims*) and 11.6 (*Mandatory prepayment - Excess Cash Flow*) shall be applied as follows:

#### (i)                                     first,either (at the Company’s discretion) (x) in prepayment of the next 4consecutive Repayment Instalments of the A1 Term Loans and the A2 Term Loansand the Restructuring A Loans (if applicable), in such order of maturity as theCompany selects, and then in prepayment of A1 Term Loans, A2 Term Loans, B1Term Loans, B2 Term Loans, C1 Term Loans, C2 Term Loans, and, if the prepaymentis on or after the Restructuring Loan Facility Conversion Date, Restructuring ALoans, Restructuring B Loans and Restructuring C Loans *pro rata*and against the relevant Repayment Instalments thereof *pro rata* or (y) in prepayment of the A1Term Loans and A2 Term Loans, B1 Term Loans and B2 Term Loans and C1 Term Loansand C2 Term Loans and, if the prepayment is on or after the Restructuring LoanFacility Conversion Date, Restructuring A Loans, Restructuring B Loans andRestructuring C Loans *pro rata* and against the relevant RepaymentInstalments *pro rata*;

#### (ii)                                  second,if the prepayment is prior to the Restructuring Loan Facility Conversion Dateand following repayment in full of the A1 Term Loans and A2 Term Loans, B1 TermLoans and B2 Term Loans or C1 Term Loans and C2 Term Loans in repayment of theRestructuring Loans *pro rata* andagainst the relevant Repayment Instalments *pro rata*;

#### (iii)                               third,in prepayment of Revolving Credit Loans; and

#### (iv)                              fourth,in prepayment of Documentary Credits issued under the Revolving CreditFacility.

### (b)                                 Inrelation to any prepayment to be made out of the Net Proceeds of a SynergiesDisposal or Required Regulatory Disposal pursuant to Clause 11.4 (*Mandatory prepayment - disposals, insurance, warranty and reportclaims*) or a Permitted Receivables Securitisation pursuant to Clause11.5 (*Mandatory prepayment — Permitted Securitisation*)such prepayment shall be applied as follows:

#### (i)                                     first,in prepayment of the next four consecutive Repayment Instalments of the A1 TermLoans, A2 Term Loans and the Restructuring A Loans (if applicable) or ifinsufficient such amounts as the Borrower directs;

#### (ii)                                  second,50% of the remaining proceeds in prepayment of 50% of the successive RepaymentInstalments of the A1 Term Loans, A2 Term Loans and the Restructuring A Loans(if applicable) and in order of maturity thereof;

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#### (iii)                               third,in prepayment of A1 Term Loans, A2 Term Loans, B1 Term Loans, B2 Term Loans, C1Term Loans and C2 Term Loans and, if the prepayment is on or after theRestructuring Loan Facility Conversion Date, Restructuring A Loans,Restructuring B Loans and Restructuring C Loans *pro rata*andagainst the relevant Repayment Instalments *pro rata*;

#### (iv)                              fourth,the remaining proceeds in prepayment in accordance withClause 11.12(a)(ii), (iii) and (iv) in the order of prepayment set out insuch Clause.

### (c)                                  Lendershaving a participation in the B1 Term Loans, B2 Term Loans, C1 Term Loans or C2Term Loans (and/or, after the Restructuring Loan Facility Conversion Date, theRestructuring B Loans and/or the Restructuring C Loans) shall be entitled, tothe extent any A1 Term Loans, A2 Term Loans or Restructuring A Loans isoutstanding, to decline to accept the partial prepayment of their participationin any or all such Loans by giving written notice to the Company and theFacility Agent promptly upon receiving notification of the proposed prepayment(and in any event on or before the day 2 Business Days, prior to the dateof such prepayment, or such other time as the Facility Agent may specify) andthe amounts which would otherwise have been prepaid to such Lenders in respectof such participations in such Loans shall instead be applied in or towardsprepayment of the other Lenders participations in the B1 Term Loans, B2 TermLoans, C1 Term Loans and C2 Term Loans (and after the Restructuring LoanFacility Conversion Date, the Restructuring B Loans or Restructuring C Loans) *pro rata* (subject to such Lenders right torefuse prepayment) and next in or towards prepayment of the A1 Term Loans, A2Term Loans and, if the prepayment is on or after the Restructuring LoanFacility Conversion Date, the Restructuring A Loans *pro rata* and against the relevant Repayment Instalmentsthereof *pro rata* and thereafterto the extent of any excess in prepayment of the B1 Term Loans, B2 Term Loans,C1 Term Loans and C2 Term Loans (and after the Restructuring Loan FacilityConversion Date, the Restructuring B Loans or Restructuring C Loans) *pro rata*.

### (d)                                 Wherethere is a mandatory or involuntary prepayment of a Revolving Credit Loan or aDocumentary Credit issued under the Revolving Credit Facility, the relevantRevolving Credit Commitments will, at the same time, be reduced by the sameamount.

### (e)                                  Ifthere is no Revolving Credit Loan or (in any case concerning the RevolvingCredit Facility) Documentary Credit to be prepaid, the relevant RevolvingCredit Commitment will be reduced by the amount which would have been requiredto be applied in prepayment of the Revolving Credit Loans or DocumentaryCredits had they been outstanding at that time.

### (f)                                    A1 Term Loans, B1 Term Loans and C1 TermLoans may only be repaid and prepaid pro rata with any repayment or prepaymentof the A2 Term Loans, B2 Term Loans and C2 Term Loans, respectively, and the A1Term Loan Facility, B1 Term Loan Facility and C1 Term Loan Facility may only becancelled pro rata with any cancellation of the A2 Term Loan Facility, B2 TermLoan 

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### Facility and C2 Term Loan Facility, respectively, and *vice versa*, subject to the rights of the Lenders of the B1Term Loans, C1 Term Loans, B2 Term Loans, or C2 Term Loans to refuse anyprepayment.

## 11.13**                     Applicationof Voluntary Prepayments**

A prepayment pursuant to Clause 11.8 (*Voluntary prepayment*) will be appliedagainst the Credits and the Repayment Installments thereof at the Company’ssole discretion.  Lenders having aparticipation in the B1 Term Loans or B2 Term Loans, C1 Term Loans or C2 TermLoans and/or the Restructuring B Loans and/or the Restructuring C Loans shallbe entitled, to the extent any A1 Term Loan, A2 Term Loans or Restructuring ALoans are outstanding, to decline to accept the partial prepayment of theirparticipation in any or all such Loans by giving written notice to the Companyand the Facility Agent promptly upon receiving notification of the proposedprepayment (and in any event on or before the day 2 Business Days, priorto the date of such prepayment, or such other time as the Facility Agent mayspecify) and the amounts which would otherwise have been prepaid to suchLenders in respect of such Loans may instead at the Company’s election beapplied in or towards prepayment of other Lenders participations in the B1 TermLoans, B2 Term Loans, C1 Term Loans, C2 Term Loans, Restructuring B Loans,Restructuring C Loans (subject to such Lenders right to refuse prepayment) andthereafter in or towards prepayment of the A1 Term Loans, A2 Term Loans and theRestructuring A Loans.

## 11.14**                     Applicationbetween Term Loan Facilities, Revolving Credit Facilities and AdditionalFacilities**

The application of Mandatory Prepayments between theTerm Loan Facilities, the Revolving Credit Facilities and the AdditionalFacilities, and the application of any declined prepayments of the B1 TermLoans or B2 Term Loans, C1 Term Loans or C2 Term Loans and/or the RestructuringB Loans and/or the Restructuring C Loans towards prepayment of the AdditionalFacilities, and the right of the Lenders of the Additional Facilities to refuseprepayments and the application of those declined prepayments shall be asagreed between the relevant Initial Additional Facility Lenders, the Parent andthe Facility Agent at the time of the execution of each Additional FacilityAccession Agreement.

## 11.15**                     Re-borrowingof Loans**

### (a)                                  Anyvoluntary prepayment of a Revolving Credit Loan may be re-borrowed on theterms of this Agreement.  Any mandatoryor involuntary prepayment of a Revolving Credit Loan may not be re-borrowed.

### (b)                                 Noamount of a Term Loan or a Restructuring Loan prepaid under this Agreement maysubsequently be re-borrowed.

## 11.16**                     DanishFinancial Assistance**

Any prepayments required under Clauses 11.3 (*IPO*), 11.4 (*Mandatory prepayment -disposals, insurance, warranty and report claims*) or 11.6 (*Mandatory prepayment - Excess Cash Flow*) from Obligorsincorporated in Denmark (the “**Danish Obligors**”)or to be paid with funds borrowed from Danish Obligors as well as anyapplication of 

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such prepayments under Clause 11.12 (*Application between Term Facilities and Revolving Credit Facilities*)shall be limited if and to the extent that (i) the prepayment or the borrowingor the application would constitute unlawful financial assistance within themeaning of the limitation of the Danish guarantees as set forth in Part IX ofSchedule 12, or (ii) such proceeds received or recovered by the Danish Obligorscannot be transferred from the relevant Danish Obligor without that DanishObligor being in breach of any law.

## 11.17**                     Miscellaneousprovisions**

### (a)                                  Anynotice of prepayment and/or cancellation under this Agreement is irrevocableand must specify the relevant date(s) and the affected Credits andCommitments.  The Facility Agent mustnotify the Lenders promptly of receipt of any such notice.

### (b)                                 Allprepayments under this Agreement must be made with accrued interest on theamount prepaid.  No premium or penalty ispayable in respect of any prepayment except for Break Costs (if any) whichshall be paid on the date of prepayment.

### (c)                                  TheMajority Lenders may agree a shorter notice period for a voluntary prepaymentor a voluntary cancellation.

### (d)                                 Noprepayment or cancellation is allowed except in accordance with the expressterms of this Agreement.

### (e)                                  Noamount of the Total Commitments cancelled under this Agreement may subsequentlybe reinstated.

### (f)                                    The Parent shall notify the Facility Agentof the occurrence of any event or circumstance which will give rise to anobligation to make a mandatory prepayment without undue delay after becomingaware thereof and, as soon as reasonably practicable after becoming aware, ofthe date on which such prepayment is to be made.

# **12.****                               INTEREST**

## 12.1**                           Calculationof interest**

The rate of interest on each Loan for each Term is thepercentage rate per annum equal to the aggregate of the applicable:

### (a)                                  Margin;

### (b)                                 EURIBORin the case of a Loan denominated in the Base Currency, STIBOR in the case of aLoan denominated in Swedish Kronor and LIBOR in the case of any Loandenominated in any other Optional Currency; and

### (c)                                  MandatoryCost.

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## 12.2**                           Paymentof interest**

Except where it is provided to the contrary in thisAgreement, each Borrower must pay accrued interest on each Loan made to it onthe last day of each Term and also, if the Term is longer than six months,on the dates falling at six-monthly intervals after the first day ofthat Term.

## 12.3**                           Marginadjustments**

### (a)                                  TheParent must supply to the Facility Agent a Margin Certificate within45 days of the end of each quarterly Accounting Period, beginning with thefirst quarterly Accounting Period ending on or after the first anniversary ofthe First Drawdown Date.

### (b)                                 AMargin Certificate must be signed by two authorised signatories of the Parent,one of whom must be the Chief Financial Officer.

### (c)                                  Subjectto paragraphs (d), (e) and (f) below, the Margin in respect of any A1 TermLoan, A2 Term Loan, Revolving Credit Loan and Restructuring A Loan (on or afterthe Restructuring Loan Facility Conversion Date), the euro denominated B1 TermLoan and B2 Term Loan and the Restructuring B Loan and the US Dollardenominated B1 Term Loan and B2 Term Loan will be adjusted as set out in Column2, Column 3 and Column 4 respectively, of the table below on the date 5Business Days after delivery to the Facility Agent of the relevant MarginCertificate and will be determined by reference to the table below and theinformation set out in the relevant Margin Certificate:

| Column 1  Ratio of  Consolidated Total  Net Borrowings  to Consolidated  EBITDA | ** ** | **Column 2  Margin for A1 Term  Loan, A2 Term Loan,  Revolving Loan and  Restructuring A Loan  (per cent. per annum)** | ** ** | **Column 3  Margin for euro  denominated Loans under  B1 Term Loan, B2 Term  Loan and Restructuring  B Loan (per cent. per annum)** | ** ** | **Column 4  Margin for US Dollar  denominated Loans  under the B1 Term  Loan, B2 Term Loan  (per cent. per annum)** | ** ** |
|-----------------------------------------------------------------------------------------------------|------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|
| Greater than 4.00:1.00                                                                              |       | 2.25                                                                                                                                                                                         |       | 2.50                                                                                                                                                                                                      |       | 2.375                                                                                                                                                                                     |       |
| 4.00:1.00 or less, but more than  3.50:1.00                                                         |       | 2.00                                                                                                                                                                                         |       | 2.25                                                                                                                                                                                                      |       | 2.125                                                                                                                                                                                     |       |
| 3.50:1.00 or less, but more than  3.00:1.00                                                         |       | 1.75                                                                                                                                                                                         |       | 2.00                                                                                                                                                                                                      |       | 2.00                                                                                                                                                                                      |       |
| 3.00:1.00 or less, but more than  2.50:1.00                                                         |       | 1.50                                                                                                                                                                                         |       | 2.00                                                                                                                                                                                                      |       | 2.00                                                                                                                                                                                      |       |
| 2.50:1.00 or  less                                                                                  |       | 1.25                                                                                                                                                                                         |       | 2.00                                                                                                                                                                                                      |       | 2.00                                                                                                                                                                                      |       |

###  

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### (d)                                 Forso long as:

#### (i)                                     theParent is in default of its obligation under this Agreement to provide a MarginCertificate; or

#### (ii)                                  anEvent of Default is outstanding,

the applicable Margin for each Facility will be thehighest applicable rate for that Facility set out in the table in paragraph(c).

### (e)                                  Ifthe Margin in respect of any Loan has been reduced under Subclause (c)ofthis Clause 12.3 but the management Accounts (or audited Accounts) for theperiods ended with the last day of the quarterly Accounting Period endedbefore the date of the Margin Certificate in reliance on which the reductionwas made do not confirm the basis for the reduction, the reduction will bereversed with retrospective effect.  Inthis event the Margin will instead be that calculated by reference to therelevant management Accounts (or audited Accounts).  If, in this event, any amount of interest hasbeen paid by a Borrower on the basis of the Margin Certificate, that Borrowermust immediately pay to the Facility Agent any shortfall in that amount ascompared to that which would have been paid to the Lenders if the Margin hadbeen calculated by reference to the relevant management Accounts (or auditedAccounts).

### (f)                                    Afterthe occurrence of a Qualifying IPO, the Margin in respect of any A1 Term Loan,A2 Term Loan, Revolving Credit Loan and Restructuring A Loan (on or after theRestructuring Loan Facility Conversion Date), the euro denominated B1 Term Loanand B2 Term Loan and the Restructuring B Loan and the US Dollar denominated B1Term Loan and B2 Term Loan and the euro denominated C1 Term Loan, C2 Term Loanand the Restructuring C Loan (on or after the Restructuring Loan FacilityConversion Date) and the US Dollar denominated C1 Term Loan and C2 Term Loanwill be adjusted as set out in Column 2, Column 3, Column 4, Column 5 andColumn 6 respectively, of the table below on the date 5 Business Days afterdelivery to the Facility Agent of the relevant Margin Certificate and will bedetermined by reference to the table below and the information set out in therelevant Margin Certificate:

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| Column 1  Ratio of  Consolidated  Total  Net  Borrowings to  Consolidated  EBITDA | ** ** | **Column 2  Margin for  A1 Term  Loan, A2  Term Loan,  Revolving  Loan and  Restructuring  A Loan  (per cent.  per annum)** | ** ** | **Column 3  Margin for  euro  denominated  Loans under  B1 Term  Loan, B2  Term Loan  and  Restructuring  B Loan  (per cent.  per annum)** | ** ** | **Column 4  Margin for  US Dollar  denominated  Loans under  the B1 Term  Loan, B2  Term Loan  (per cent.  per annum)** | ** ** | **Column 5  Margin for  euro  denominated  Loans under  the C1 Term  Loan, the C2  Term Loan  and the  Restructuring  C Loans  (per cent.  per annum)** | ** ** | **Column 6  Margin for  US Dollar  denominated  Loans under  the C1 Term  Loan and  the C2  Term Loan  (per cent.  per annum)** | ** ** |
|--------------------------------------------------------------------------------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|
| Greater than  4.50:1.00                                                                          |       | 2.25                                                                                                                                                                     |       | 2.50                                                                                                                                                                                    |       | 2.375                                                                                                                                                                     |       | 3.00                                                                                                                                                                                                                |       | 2.875                                                                                                                                                                                  |       |
| 4.50:1.00 or  less, but more  than 3.75:1.00                                                     |       | 2.00                                                                                                                                                                     |       | 2.25                                                                                                                                                                                    |       | 2.125                                                                                                                                                                     |       | 2.75                                                                                                                                                                                                                |       | 2.75                                                                                                                                                                                   |       |
| 3.75:1.00 or  less, but more  than 3.25:1.00                                                     |       | 1.75                                                                                                                                                                     |       | 2.00                                                                                                                                                                                    |       | 2.00                                                                                                                                                                      |       | 2.50                                                                                                                                                                                                                |       | 2.50                                                                                                                                                                                   |       |
| 3.25:1.00 or less,  but more than  2.50:1.00                                                     |       | 1.50                                                                                                                                                                     |       | 2.00                                                                                                                                                                                    |       | 2.00                                                                                                                                                                      |       | 2.50                                                                                                                                                                                                                |       | 2.50                                                                                                                                                                                   |       |
| 2.50:1.00 or  less                                                                               |       | 1.25                                                                                                                                                                     |       | 2.00                                                                                                                                                                                    |       | 2.00                                                                                                                                                                      |       | 2.50                                                                                                                                                                                                                |       | 2.50                                                                                                                                                                                   |       |

###  

## **12.4****                        Intereston overdue amounts**

### (a)                                  Ifan Obligor fails to pay any amount payable by it under the Senior FinanceDocuments, it must immediately on demand by the Facility Agent pay interest onthe overdue amount from its due date up to the date of actual payment, bothbefore, on and after judgment.

### (b)                                 Intereston an overdue amount is payable at a rate determined by the Facility Agent tobe one per cent. per annum above the rate which would have been payable if theoverdue amount had, during the period of non-payment, constituted a Loanhaving the same designation and in the same currency as the Loan or Facility towhich the overdue amount is in the reasonable opinion of the Facility Agentreferable.  For this purpose, theFacility Agent (acting reasonably) may:

#### (i)                                     selectsuccessive Terms of any duration of up to three months; and

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#### (ii)                                  determinethe appropriate Rate Fixing Day for that Term.

### (c)                                  Notwithstandingparagraph (b) above, if the overdue amount is a principal amount of a Loanand becomes due and payable prior to the last day of its current Term,then:

#### (i)                                     thefirst Term for that overdue amount will be the unexpired portion of that Term;and

#### (ii)                                  therate of interest on the overdue amount for that first Term will be one percent. per annum above the rate then payable on that Loan.

After the expiry of the first Term for that overdueamount, the rate on the overdue amount will be calculated in accordance withparagraph (b) above.

### (d)                                 Interest(if unpaid) on an overdue amount will be compounded with that overdue amount atthe end of each of its Terms but will remain immediately due and payable.

## 12.5**                           Notificationof rates of interest**

The Facility Agent must promptly notify each relevantParty of the determination of a rate of interest under this Agreement.

# **13.****                               TERMS**

## 13.1**                           Selection- Term Loans**

### (a)                                  EachTerm Loan and Restructuring Loan has successive Terms.

### (b)                                 ABorrower must select the first Term for a Term Loan and Restructuring Loan inthe relevant Request and each subsequent Term in an irrevocable notice receivedby the Facility Agent not later than 11.00 a.m. one Business Day before theRate Fixing Day for that Term.  Each Termfor a Term Loan and Restructuring Loan will start on its Utilisation Date or onthe expiry of its preceding Term.

### (c)                                  Ifa Borrower fails to select a Term for an outstanding Term Loan andRestructuring Loan under paragraph (b) above, that Term will, subject tothe other provisions of this Clause, be three months.

### (d)                                 Subjectto the following provisions of this Clause, each Term for a Term Loan and aRestructuring Loan will be one, two, three or six months or any other periodshorter than six months agreed by the Company and the Facility Agent or anyother period agreed by the Company and the Lenders.

### (e)                                  Untilthe date which is the earlier of six months after the First Drawdown Date andthe Syndication Date, the duration of each Term shall be one month or suchother period (not exceeding six months) as may be agreed between the Companyand the Facility Agent.

 

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## 13.2**                           Selection- Revolving Credit Loans**

### (a)                                  EachRevolving Credit Loan has one Term only.

### (b)                                 ABorrower must select the Term for a Revolving Credit Loan in the relevantRequest.

### (c)                                  Subjectto the following provisions of this Clause, each Term for a Revolving CreditLoan will be one, two, three or six months or any other period shorter than sixmonths agreed by the Company and the Facility Agent or any other period agreedby the Company and the Lenders.

### (d)                                 Untilthe date which is the earlier of six months after the First Drawdown Date andthe Syndication Date, the duration of each Term shall be one month or suchother period (not exceeding six months) as may be agreed between the Companyand the Facility Agent.

## 13.3**                           Consolidation- Term Loans and Restructuring Loans**

Unless otherwise agreed between the Company and theFacility Agent, a Term for a Term Loan and a Restructuring Loan will end on thesame day as the current Term for any other Term Loan and RestructuringLoan denominated in the same currency as that Term Loan or Restructuring Loanand borrowed by that Borrower under the same Facility.  On the last day of those Terms, thoseTerm Loans and Restructuring Loans will be consolidated and treated as one TermLoan or Restructuring Loan.

## 13.4**                           Coincidencewith Repayment Instalment dates**

### (a)                                  ABorrower may select any Term of less than six months for a Term Loan or aRestructuring Loan (and may re-designate any Term Loan or RestructuringLoan as two Term Loans or Restructuring Loans) to ensure that the aggregateamount of the Term Loans and Restructuring Loans under a Facility with a Termending on a date for repayment of a Repayment Instalment relating to thatFacility is not less than such Repayment Instalment.

### (b)                                 Ifa Borrower fails to make a selection in the circumstances envisaged inparagraph (a) above, the Facility Agent may prior to the Rate Fixing Dayfor the relevant Term shorten any Term for a Term Loan or a Restructuring Loan(and may designate any Term Loan or a Restructuring Loan as two Term Loans orRestructuring Loans) to achieve the same end.

## 13.5**                           Nooverrunning the Final Maturity Date**

If a Term for any Term Loan or Restructuring Loanwould otherwise extend beyond the date for the payment of the last RepaymentInstalment for that Term Loan or Restructuring Loan, it will be shortened sothat it ends on such last date.

## 13.6**                           Otheradjustments**

The Facility Agent and the Company may enter into suchother arrangements as they may agree for the adjustment of Terms and theconsolidation and/or splitting of 

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Loans, provided that no Term in excess of six monthsmay be agreed by the Facility Agent without the prior agreement of all theLenders.

## 13.7**                           Notification**

The Facility Agent must notify the relevant Borrowerand the Lenders of the duration of each Term promptly after ascertaining itsduration.

# **14.****                               MARKETDISRUPTION**

## 14.1**                           Failureof a Reference Bank to supply a rate**

If IBOR is to be calculated by reference to theReference Banks but a Reference Bank does not supply a rate by 12.00 noon(local time) on a Rate Fixing Day, the applicable IBOR will, subject asprovided below, be calculated on the basis of the rates of the remainingReference Banks.

## 14.2**                           Marketdisruption**

### (a)                                  Inthis Clause, each of the following events is a “**market disruption event**”:

#### (i)                                     IBORis to be calculated by reference to the Reference Banks but no, or only one,Reference Bank supplies a rate by 12.00 noon (local time) on the Rate FixingDay; or

#### (ii)                                  theFacility Agent receives by close of business on the Rate Fixing Daynotification from Lenders whose shares in the relevant Loan exceed 35 percent. of that Loan that the cost to them of obtaining matching deposits in therelevant interbank market is in excess of IBOR for the relevant Term.

### (b)                                 TheFacility Agent must promptly notify the Company and the Lenders of a marketdisruption event.

### (c)                                  Afternotification under paragraph (b) above, the rate of interest on eachLender’s share in the affected Loan for the relevant Term will be the aggregateof the applicable:

#### (i)                                     Margin;

#### (ii)                                  ratenotified to the Facility Agent by that Lender as soon as practicable, and inany event before interest is due to be paid in respect of that Term, to be thatwhich expresses as a percentage rate per annum the cost to that Lender offunding its share in that Loan from whatever source it may reasonably select;and

#### (iii)                               MandatoryCost.

## 14.3**                           Alternativebasis of interest or funding**

### (a)                                  Ifa market disruption event occurs and the Facility Agent or the Company sorequires, the Company and the Facility Agent must enter into negotiations for 

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### a period ofnot more than 30 days with a view to agreeing an alternative basis fordetermining the rate of interest and/or funding for the affected Loan and anyfuture Loan.

### (b)                                 Anyalternative basis agreed will be, with the prior consent of all the Lenders,binding on all the Parties.

# **15.****                               TAXES**

## 15.1**                           Grossing-upfor Taxes**

### (a)                                  Ifat any time an Obligor is required by law to make any deduction or withholdingin respect of Taxes from any payment due under any of the Senior Finance Documentsfor the account of any Finance Party (or if the Facility Agent, or as the casemay be, the Security Agent is required to make any such deduction orwithholding from a payment to a Finance Party), the sum due from the Obligor inrespect of such payment shall, subject to Subclause 15.3 (*Qualifying Lenders*), be increased to theextent necessary to ensure that, after the making of such deduction orwithholding, each Finance Party receives on the due date for such payment (andretains, free from any liability in respect of such deduction or withholding) anet sum equal to the sum which it would have received had no such deduction orwithholding been required to be made.

### (b)                                 SuchObligor shall indemnify each Finance Party against any losses or costs incurredby any of them by reason of any failure of the Obligor to make any suchdeduction or withholding or by reason of any increased payment not being madeon the due date for such payment (provided that such indemnity does not entitleany Finance Party to receive any amount which has not been demanded within 6months of the first day on which both (i) the Finance Party has the rightto claim such amount under the indemnity and (ii) the officers of such FinanceParty involved in the administration of its participation in the Facilities areaware of the circumstances giving rise to the right to claim such amount andthat such circumstances give a right to claim such amount).

### (c)                                  Ifthe Obligor reasonably believes that such Taxes were not correctly or legallyasserted, such Finance Party will use reasonable efforts to co-operate with theObligor to obtain a refund of such Taxes so long as such efforts would not, inthe sole determination of such Finance Party, result in any additional costs,expenses or otherwise be disadvantageous to it.

### (d)                                 TheObligor shall promptly deliver to the Facility Agent any receipts, certificatesor other reasonable proof evidencing the amounts (if any) paid or payable inrespect of any such deduction or withholding.

## 15.2**                           TaxIndemnity**

### (a)                                  AnObligor shall, within 10 Business Days of demand by the Facility Agent, pay toa Finance Party which is or will be subject to any liability, or required bylaw to make any payment, for or on account of Taxes in relation to a sumreceived or receivable (or any sum received or receivable in connection withthe Senior Finance Documents), an amount equal to the Tax which that 

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### Finance Partywill or has (directly or indirectly) suffered for or on account of such sum(excluding in all cases amounts with respect to a Tax assessed on a FinanceParty (a) under the law of the jurisdiction in which that Finance Party isincorporated and the jurisdiction (or jurisdictions) in which that FinanceParty is treated as resident for Tax purposes or (b) under the law of thejurisdiction in which that Finance Party’s Facility Office is located, if ineither case that Tax is imposed on or calculated by reference to the netincome, profits or gains received or receivable by that Finance Party, howeverany amount deemed to be received or receivable under applicable law but that isnot actually received by the Finance Party either through the receipt of anypayment, credit, refund or other offset of Taxes will not be treated as netincome received or receivable for this purpose) or (c) to the extentSubclause 15.1(a) (*Grossing-up for Taxes*)applies to such Tax (or would so apply but for the application ofSubclause 15.3 (*Qualifying Lenders*)).

### (b)                                 Ifthe Obligor reasonably believes that such Taxes were not correctly or legally asserted,such Finance Party will use reasonable efforts to co-operate with theObligor to obtain a refund of such Taxes so long as such efforts would not, inthe sole determination of such Finance Party, result in any additional costs,expenses or otherwise be disadvantageous to it.

### (c)                                  Nothingin this Subclause 15.2 shall entitle any Finance Party to receive anyamount which has not been demanded within 6 months of the first day on whichboth (i) the Finance Party has the right to claim such amount under thisSubclause 15.2 and (ii) the officers of such Finance Party involved in theadministration of its participation in the Facilities are aware of thecircumstances giving rise to the right to claim such amount and that suchcircumstances give a right to claim such amount under this Agreement.

## 15.3**                           QualifyingLenders**

If it has not done so already, on the date it becomesa Lender each Lender agrees to notify the Facility Agent and the Company if itis not a Qualifying Lender (in relation to an Obligor to which it makes aFacility available under this Agreement) and thereafter will promptly notifythe Facility Agent and the Company if it ceases to be a Qualifying Lender (inrelation to that Facility).  If anyLender is not or ceases to be a Qualifying Lender, then (save in circumstanceswhere such Lender ceases to be a Qualifying Lender by reason of any change inlaw, regulation or double taxation treaty or in its application orinterpretation, in each case taking effect after the date of this Agreement orthe date such Lender becomes a party to this Agreement, if later) any Obligortax resident in Ireland shall not be liable to pay to that Lender underSubclauses 15.1 (*Grossing-up for Taxes*) or 15.2 (*Tax Indemnity*) any sum in excess of the sum it would havebeen obliged to pay if that Lender had been, or had not ceased to be, aQualifying Lender.  For the purposes ofthis Subclause 15.3, “**Qualifying Lender**” means, in respect of a payment madeby an Obligor tax resident in Ireland only, a person that is, at the datehereof (or in the case of a transferee at the date of transfer) either:
|  |   | (a) | (i) | the holder of a licence for the time being in force  granted under section 9 of the Irish Central Bank 1971 or an authorised  credit institution under the terms of EU Council Directive 2000/12/EC of 20  March |
|--|--------|-----|-----|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

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2000 which has duly established a branch in Ireland orhas made all necessary notifications to its home state competent authoritiesrequired there under in relation to its intention to carry on banking businessin Ireland; and

(ii)                                  recognisedby the Irish Revenue Commissioners as carrying on a bona fide banking businessin the Republic of Ireland for the purposes of section 246(3)(a) of the IrishTaxes Consolidation Act 1997; and

(iii)                               itsFacilities Office is located in the Republic of Ireland; or

### (b)                                 whereinterest payable in respect of the Facilities is paid in the ordinary course ofa trade or business carried on by an Obligor:

#### (i)                                     abody corporate tax resident in a member state of the European Communities(other than Ireland) or in a territory with which Ireland has concluded adouble tax treaty that is in effect (residence of a body corporate for thesepurposes to be determined in accordance with the laws of the territory of whichthe lender claims to be resident); or

#### (ii)                                  aU.S. corporation, provided the U.S. corporation is incorporated in the U.S. andsubject to tax in the U.S. on its worldwide income; or

#### (iii)                               aU.S. LLC, provided the ultimate recipients of the interest are companiesresident in and under the laws of a country with which Ireland has a double taxtreaty or registered in and under the laws of a member state of the EuropeanCommunities (other than Ireland) and the business conducted through the LLC isso structured for market reasons and not for tax avoidance purposes; and

provided in each case at (i), (ii) and (iii) above,the Lender is not carrying on a trade or business in Ireland through an agencyor branch with which the interest paid on the Facilities is connected; or
|  |   | (c) | (i) | resident in a country with which the Republic of  Ireland has a double taxation treaty that is in effect and such treaty  provides that any Obligor which is resident in the Republic of Ireland for  taxation purposes is entitled to make payments of interest on any advances in  which it has an interest to a person that is a resident of that territory for  the purposes of that treaty without any deduction or withholding in respect of  Taxes; and |
|--|--------|-----|-----|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

(ii)                                  entitledto the benefits of such treaty for interest payable in respect of theFacilities; and

(iii)                               priorto the first interest date on which any interest on any of the Loans in whichit has an interest is payable, has made all requisite filings with theappropriate authorities in order to obtain relief under such treaty (or wouldhave done so but for any act or omission by an Obligor); or

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### (d)                                 acompany which is tax resident in Ireland or which carries on a trade in Irelandthrough a branch or agency:

#### (i)                                     whichadvances money under this Agreement in the ordinary course of a trade whichincludes the lending of money; and

#### (ii)                                  inwhose hands any interest payable in respect of the Facilities is taken intoaccount in computing the trading income of the company; and

#### (iii)                               whichhas complied with all of the provisions of Section 246(5)(a) of the Irish TaxesConsolidation Act, 1997 including making the appropriate notificationsthereunder to the Irish Revenue Authority and the relevant Obligor has notceased to be a company to which Section 246(5)(a) applies; or

### (e)                                  aqualifying company within the meaning of Section 110 of the Irish TaxesConsolidation Act 1997, as amended.

## 15.4**                           Stamptaxes**

The Company must pay and indemnify each Finance Partyagainst any stamp duty, registration or other similar Tax payable by or onbehalf of any Finance Party in connection with the entry into, performance orenforcement of any Senior Finance Document, except for any such Tax payable inconnection with the entry into of a Transfer Certificate.

## 15.5**                           Valueadded taxes**

### (a)                                  Anyamount (including costs and expenses) payable under a Senior Finance Documentby an Obligor is exclusive of any value added tax or any other Tax of a similarnature which might be chargeable in connection with that amount.  If any such Tax is chargeable, the Obligormust pay to the Finance Party (in addition to and at the same time as payingthat amount) an amount equal to the amount of that Tax.

### (b)                                 Wherea Senior Finance Document requires an Obligor to reimburse a Finance Party forany costs or expenses, that Obligor shall also at the same time pay andindemnify the Finance Party against all VAT incurred by the Finance Party inrespect of the costs or expenses to the extent that the Finance Partyreasonably determines that it is not entitled to credit or repayment of theVAT.

### (c)                                  Theobligation of any Obligor under paragraph (a) above will be reduced to theextent that the Finance Party is entitled to repayment or a credit in respectof the relevant Tax.

## 15.6**                           TaxConfirmation for German Thin Capitalisation Purposes**

### (a)                                  Forthe purposes of providing evidence to the German tax authorities of the absenceof any detrimental recourse situation in connection with the tax guidelinesissued by the German Federal Ministry of Finance (*Bundesfinanzministerium*)on 15 July 2004 (IV A2 — S2742a — 20/04) and on 22 July 2005 (IV B7 — S2742a —31/05) (together, the “**Decree**”) inrelation to 

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### section 8 a ofthe German Corporation Tax Act (“**KStG**”,*Körperschaftssteuergesetz*), the SecurityAgent agrees, subject to compliance by the Obligors with the provisions ofparagraphs b) and f) below, to deliver to the Parent on behalf of each Borrowerbeing subject to German income tax (each a “**GermanBorrower**”) no later than 40 Business Days after:

#### (i)                                     theClosing Date,

#### (ii)                                  thedate of each accession of a German Borrower to this Agreement as AccedingBorrower pursuant to Clause 23.33 (*Additional Obligors*),and

#### (iii)                               thedate of any amendment to this Agreement or any Security Document which has amaterial adverse impact on the tax position of the Group pursuant to section 8aof the KStG as referred to above,

### a completedbank certificate (the “**Bank Certificate**”)in the form set out in the sample confirmation attached to the letter (*Bescheinigung im Sinne der Rdnr. 5 des BMF-Schreibens vom 22. Juli 2005*)(BStBl. I 2005, S. 829) issued by the German Federal Ministry of Finance (*Bundesministerium für Finanzen*) on 20 October 2005 (the “**Sample**”). For purposes of enabling theSecurity Agent to issue the Bank Certificate, the Parent will provide theSecurity Agent with a list of guarantees, security interests and restrictionsas required in the Sample on (x) the Closing Date, (y) the date of accession ofa German Borrower and (z) the date of any amendment to this Agreement or anySecurity Document as set out under paragraph (iii) above.

### (b)                                 EachObligor undertakes to inform the Security Agent without undue delay if itbecomes aware of any incorrectness or incompleteness of a Bank Certificategiven or to be given from time to time by the Security Agent pursuant toparagraph a) above.

### (c)                                  Thedelivery of a Bank Certificate shall not prejudice the rights of the SecurityAgent or the Lenders under this Agreement or any other Senior Finance Document.In the event of any inconsistencies between the terms of a Bank Certificate andthe terms of an individual Security Document, the terms of the relevantSecurity Document shall prevail. A Bank Certificate shall under nocircumstances constitute a waiver or release of any Security Interest.

### (d)                                 EachObligor confirms to the Security Agent and each Lender that:

#### (i)                                     eachBank Certificate is given by the Security Agent for the purpose of delivery tothe competent tax authorities of the German Borrowers to assist the GermanBorrowers in the administration of their tax affairs and not for any otherpurpose,

#### (ii)                                  theSecurity Agent and the Lenders are not responsible for examining the Obligors’tax position and that the Bank Certificates do not guarantee the achievement ofa specific result or conclusion for tax purposes,

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#### (iii)                               eachBank Certificate is addressed to and is solely for the benefit of the GermanBorrowers in relation to this Agreement, and

#### (iv)                              noBank Certificate creates third party rights of any kind.

### (e)                                  Itis the common understanding of the Parties that no Party is providing any legaland/or tax advice to any other Party with respect to this Agreement, inparticular with respect to the application of section 8 a of the GermanCorporation Tax Act (*Körperschaftssteuergesetz*)and the interpretation of the Decree, and that it is the responsibility of eachParty, in particular each Obligor, to consult its own legal and tax advisers.

### (f)                                    Anycosts and expenses incurred by the Security Agent or any Lender in connectionwith the provision of a Bank Certificate will be borne by the Obligors. Neitherthe Security Agent nor any Lender shall be liable as a result of the deliveryof a Bank Certificate. Each Obligor agrees to indemnify the Security Agent andeach Lender with respect to any potential claims that might be made against theSecurity Agent or any Lender with respect to any Bank Certificate by any thirdparty. No Obligor will raise any claims against the Security Agent or anyLender based on, or in connection with, a (correct/complete orincorrect/incomplete) Bank Certificate.

### (g)                                 Forthe avoidance of doubt:

#### (i)                                     noneof the Security Agent nor any Lender shall be obliged to disclose to any otherperson any confidential information regarding its business or any otherinformation relating to its tax affairs or tax computations (including, withoutlimitation, its tax returns or its calculations) as a result of the operationof this Clause 15.6;

#### (ii)                                  noneof the Security Agent nor any Lender shall be obliged to deliver anyinformation or make any statements pursuant to this Clause 15.6 if by doing soit would contravene the terms of any applicable law or any notice, direction orrequirement of any governmental or regulatory authority (whether or not havingthe force of law); and

#### (iii)                               eachGerman Borrower may disclose the existence and contents of a Bank Certificateto its professional advisers, its Affiliates, as required by applicable law orregulation and to any tax, regulatory or other governmental authority assertingjurisdiction over it.

### (h)                                 EachObligor acknowledges that the Security Agent may only deliver a BankCertificate if and to the extent any Obligor has released the Security Agentfrom its general obligation to maintain confidentiality.

# **16.****                               INCREASEDCOSTS**

## 16.1**                           Increasedcosts**

If the result of any change occurring after the dateof this Agreement or if later after the date on which a Finance Party becomes aparty hereto, in or in the interpretation

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or application of, or the introduction of, any law orany regulation (whether or not having the force of law, but, if not having suchforce, with which banks or financial institutions customarily comply),including (without limitation) those relating to taxation, capital adequacy,liquidity, reserve assets, cash ratio deposits and special deposits, is to:

### (a)                                  subjectany Finance Party to Taxes or change in the basis of taxation of any FinanceParty with respect to any payment under this Agreement (other than Taxes (a)under the law of the jurisdiction in which that Finance Party is incorporatedand the jurisdiction (or jurisdictions) in which that Finance Party is treatedas resident for Tax purposes or (b) under the law of the jurisdiction in whichthat Finance Party’s Facility Office is located, if in either case that Tax isimposed on or calculated by reference to the net income, profits or gainsreceived or receivable by that Finance Party, however any amount deemed to bereceived or receivable under applicable Tax law but that is not actuallyreceived by the Finance Party either through the receipt of any payment,credit, refund or other offset of Taxes, will not be treated as net incomereceived or receivable for this purpose (such excluded Taxes being “**Excluded Taxes**”)); and/or

### (b)                                 increasethe cost to, or impose an additional cost on, any Finance Party or its holdingcompany in making or keeping available all or part of such Finance Party’sCommitments under this Agreement or maintaining or funding all or part of suchFinance Party’s contributions to Credits (in each case, other than to theextent attributable to Excluded Taxes); and/or

### (c)                                  reducethe amount payable or the effective return to any Finance Party under theSenior Finance Documents (in each case, other than to the extent attributableto Excluded Taxes); and/or

### (d)                                 reduceany Finance Party’s or its holding company’s rate of return on its overallcapital by reason of a change in the manner in which it is required to allocatecapital resources to such Finance Party’s obligations under the Senior FinanceDocuments (in each case, other than to the extent attributable to ExcludedTaxes); and/or

### (e)                                  requireany Finance Party or its holding company to make a payment or forgo a returncalculated by reference to or on any amount received or receivable by suchFinance Party under the Senior Finance Documents (in each case, other than tothe extent attributable to Excluded Taxes); and/or

### (f)                                    requireany Finance Party or its holding company to incur or sustain a loss (includinga loss of profits) by reason of being obliged to deduct all or part of suchFinance Party’s Commitments under the Senior Finance Documents or contributionsto Credits from its capital for regulatory purposes,

then and in each such case:

#### (i)                                     suchFinance Party shall notify the Company through the Facility Agent in writing ofsuch event promptly upon its becoming aware of the same, including reasonabledetail of the causes giving rise to such

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#### increasedcosts and the calculation thereof (but not to the extent that such detail wouldrequire disclosure of any matters which such Finance Party or its holdingcompany regards as confidential); and

#### (ii)                                  subjectto the Company’s right to replace a Lender pursuant to Clause 17.2(a)(iii)(*Replacement of Lender*), the Companyshall pay (or procure that the relevant Obligor pays) within five Business Daysof demand, made at any time whether or not such Finance Party’s participationin the Credits has been repaid, to the Facility Agent for the account of suchFinance Party the amount which such Finance Party specifies (in a certificatesetting forth the basis of the computation of such amount, but not includingany matters which such Finance Party or its holding company regards asconfidential) is required to compensate such Finance Party and/or its holdingcompany for such liability to Taxes, increased or additional cost, reduction,payment, forgone return or loss.

For the purposes of this Subclause 16.1 eachFinance Party may in good faith allocate or spread costs and/or losses amongits assets and liabilities (or any class thereof) on such basis as it considersappropriate.

For the purposes of this Subclause 16.1 “**holding company**”means, in relation to a Finance Party, the company or entity (if any) withinthe consolidated supervision of which such Finance Party is included.

## 16.2**                           Exceptionsto increased costs**

Nothing in Subclause 16.1 (*Increasedcosts*) shall entitle any Finance Party to receive any amount inrespect of compensation for any such liability to Taxes, increased oradditional cost, reduction, payment, forgone, return or loss to the extent thatthe same:

### (a)                                  istaken into account in calculating the Mandatory Cost; or

### (b)                                 isalready the subject of an additional payment under Subclauses 15.1 (*Grossing-up for Taxes*) or 15.2 (*Tax Indemnity*) (or would have been subjectto an additional payment but for the application of Subclause 15.3 (*Qualifying Lenders*)); or

### (c)                                  hasnot been demanded within six months of the first day on which both (i) theFinance Party has the right to claim such compensation underSubclause 16.1 (*Increased Costs*)and (ii) the officers of such Finance Party involved in the administration ofits participation in the Facilities are aware of the circumstances giving riseto the right to such compensation and that such circumstances give a right toclaim such compensation under this Agreement; or

### (d)                                 isattributable to the breach by any such Finance Party or its holding company ofany law or regulation, unless such law or regulation was introduced or changedor the interpretation or application of such law or regulation changed afterthe date of this Agreement.

 

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A Finance Party shall at the request of the Parenttake all reasonable steps to mitigate any circumstances which arise and whichresult in or would result in any amount being payable under Subclause 16.1(*Increased Costs*), and the Obligors shallindemnify each Finance Party on demand for all costs and expenses reasonablyincurred by that Finance Party as a result of any step taken pursuant to suchrequest.  A Finance Party need not takeany steps if, in the opinion of that Finance Party, acting reasonably, to do somay be materially prejudicial to it.

# **17.****                               MITIGATIONAND CONDUCT OF BUSINESS**

## 17.1**                           Claw-backof Tax benefit**

### (a)                                  If,following any such deduction or withholding or indemnity payment as is referredto in Subclauses 15.1 (*Grossing-up forTaxes*), 15.2 (*Tax Indemnity*)or 16.1 (*Increased costs*), any Finance Party(with respect to such deduction or withholding or indemnity payment) shallreceive or be granted a refund or credit against or remission for any Taxespayable by it, such Finance Party shall, subject to the relevant Obligor havingmade any increased payment in accordance with Subclauses 15.1 (*Grossing-up for Taxes*), 15.2 (*TaxIndemnity*) or 16.1 (*Increased costs*)and to the extent that such Finance Party can do so without prejudicing theretention of the amount of such refund or credit or remission and withoutprejudice to the right of such Finance Party to obtain any other materialrelief or allowance which may be available to it, reimburse the relevantObligor with such amount as such Finance Party shall in its absolute discretioncertify to be the amount of such refund or credit or remission as will leavesuch Finance Party (after such reimbursement) in no worse position than itwould have been in had there been no such deduction or withholding from thepayment or no indemnity payment by the relevant Obligor as aforesaid.  Such reimbursement shall be made forthwithupon such Finance Party certifying that the amount of such refund or credit orremission has been received by it.

### (b)                                 Noprovision of this Agreement will interfere with the right of any Finance Party to arrange its affairs(tax or otherwise) in whatever manner it thinks fit, oblige any Finance Partyto investigate or claim any credit, relief, remission or repayment available toit or the extent, order and manner of any claim, or oblige any Finance Party todisclose any information relating to its affairs (tax or otherwise) or anycomputations in respect of Tax.  TheCompany will indemnify each Finance Party on demand for any reasonable costincurred by it in investigating whether or not a Tax credit is payable.

### (c)                                  AnyFinance Party claiming any additional amount by virtue of Subclauses 15.1 (*Grossing-up for Taxes*), 15.2 (*TaxIndemnity*) or 16.1 (*Increased Costs*)shall use reasonable efforts (consistent with legal and regulatoryrestrictions) to prepare, file and deliver any certificate, document, form orother instrument reasonably requested by the Parent or to change thejurisdiction of its Facility Office if the preparation, filing and delivery ofany such certificate, document, form or other instrument or the change inlending office or Facility Office would avoid the need for or reduce the amountof any such additional amounts or would avoid the circumstances giving rise tosuch claim to additional amounts and would not in each case, in the soledetermination of such Finance 

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### Party, result in any additional costs,expenses or otherwise be disadvantageous to it. The Company will procure that each Obligor co-operates in a timelyfashion with each Finance Party in providing any necessary information toenable such Finance Party to complete or file any such certificate, document,form or other instrument.

## 17.2**                           Replacementof Lender**

### (a)                                  Ifat any time:

#### (i)                                     anyLender becomes a Non-Consenting Lender (as defined in paragraph (c)below); or

#### (ii)                                  anyLender becomes a Non-Funding Lender (as defined in paragraph (d) below);or

#### (iii)                               anObligor becomes obliged to repay any amount in accordance withSubclause 11.1 (*Mandatory prepayment -Illegality*) or to pay additional amounts pursuant to Subclauses 15.1(*Grossing-up for Taxes*),15.2 (*Tax Indemnity*) or 16.1 (*Increased Costs*) to any Lender in excessof amounts payable to the other Lenders generally,

then the Company may, on ten Business Days prior writtennotice to the Facility Agent and such Lender, replace such Lender by requiringsuch Lender to (and such Lender shall) transfer pursuant to Clause 31 (*Changes to the Parties*) all (and not partonly) of its rights and obligations under this Agreement and any Commitmentcancelled by operation of Clause 11.1 (*Mandatory prepayment —Illegality*)will be deemed reinstated upon such transfer to a Lender or other entity (a “**Replacement Lender**”)selected by the Company, and which is acceptable to the Facility Agent (actingreasonably) and (in the case of any transfer of a Revolving Credit Commitmentor liability under Clause 7.5(b) (*Indemnities*))the Issuing Bank, which confirms its willingness to assume and does assume allthe obligations of the transferring Lender (including the assumption of thetransferring Lender’s participations on the same basis as the transferringLender) for a purchase price in cash payable at the time of transfer equal tothe outstanding principal amount of such Lender’s participation in theoutstanding Credits and all accrued interest (and any breakage costs) and feesand other amounts payable hereunder.

### (b)                                 Thereplacement of a Lender pursuant to this Subclause shall be subject to thefollowing conditions:

#### (i)                                     theCompany shall have no right to replace the Facility Agent or Security Agent;

#### (ii)                                  neitherthe Facility Agent nor any Lender shall have any obligation to the Company tofind a Replacement Lender or other such entity;

#### (iii)                               inthe event of a replacement of a Non-Consenting Lender such replacementmust take place no later than 120 days after the date the Non-ConsentingLender notified the Company and the Facility Agent

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#### of its failure or refusal to agree to anyconsent, waiver or amendment to the Senior Finance Documents requested by theCompany; and

#### (iv)                              inno event shall the Lender replaced under this Subclause be required to payor surrender to such Replacement Lender any of the fees received by such Lenderpursuant to the Senior Finance Documents.

### (c)                                  Inthe event that:

#### (i)                                     theCompany or the Facility Agent (at the request of the Company) has requested theLenders to consent to a waiver or amendment of any provisions of the SeniorFinance Documents;

#### (ii)                                  thewaiver or amendment in question requires the consent of all of the Lenders orthe Super-majority Lenders; and

#### (iii)                               theMajority Lenders have consented to such waiver or amendment,

then any Lender who does not agree to such waiver oramendment shall be deemed a “**Non-ConsentingLender**”.

### (d)                                 A“**Non-Funding Lender**” means:

#### (i)                                     anyLender which has failed to make or participate in a Credit when required to doso by this Agreement;

#### (ii)                                  anyLender which has given notice to a Borrower or the Facility Agent that it doesnot intend to make or participate in any Credit when required to do so inaccordance with the terms of this Agreement or has repudiated its obligationsto do so; or

#### (iii)                               anyLender that has failed to comply with Subclause 7.5(d)(i) (*Indemnities*),

except where the conditions for making orparticipating in any Credit have not been satisfied in accordance with thisAgreement.

### (e)                                  TheCompany’s right to replace a Non-Funding Lender pursuant to thisSubclause supplements rather than replaces the other legal and equitable rightsand remedies available to the Company against such Non-Funding Lenderunder this Agreement or otherwise.

# **18.****                               PAYMENTS**

## 18.1**                           Place**

Unless a Senior Finance Document specifies thatpayments under it are to be made in another manner, all payments by a Party(other than the Facility Agent) under the Senior Finance Documents must be madeto the Facility Agent to its account at such office or bank:

### (a)                                  inthe principal financial centre of the country of the relevant currency; or

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### (b)                                 inthe case of euro, in the principal financial centre of a Participating Member Stateor London,

as it may notify to that Party for this purpose by notless than five Business Days’ prior notice.

## 18.2**                           Funds**

Payments under the Senior Finance Documents to theFacility Agent must be made for value on the due date at such times and in suchfunds as the Facility Agent may specify to the Party concerned as beingcustomary at the time for the settlement of transactions in the relevantcurrency in the place for payment.

## 18.3**                           Distribution**

### (a)                                  Eachpayment received by the Facility Agent under the Senior Finance Documents foranother Party must, except as provided below, be made available by the FacilityAgent to that Party by payment (as soon as practicable after receipt) to itsaccount with such office or bank:

#### (i)                                     inthe principal financial centre of the country of the relevant currency; or

#### (ii)                                  inthe case of euro, in the principal financial centre of a Participating MemberState or London,

as it may notify to the Facility Agent for thispurpose by not less than five Business Days’ prior notice.

### (b)                                 TheFacility Agent may apply any amount received by it for an Obligor in or towardspayment (as soon as practicable after receipt) of any amount then due andpayable from that Obligor under the Senior Finance Documents or in or towardsthe purchase of any amount of any currency to be so applied.

### (c)                                  Wherea sum is paid to the Facility Agent under this Agreement for another Party, theFacility Agent is not obliged to pay that sum to that Party until it hasestablished that it has actually received it. However, the Facility Agent may assume that the sum has been paid to it,and, in reliance on that assumption, make available to that Party acorresponding amount.  If it transpiresthat the sum has not been received by the Facility Agent, that Party must immediatelyon demand by the Facility Agent refund any corresponding amount made availableto it together with interest on that amount from the date of payment to thedate of receipt by the Facility Agent at a rate calculated by the FacilityAgent to reflect its cost of funds.

## 18.4**                           Currency**

### (a)                                  Unlessa Senior Finance Document specifies that payments under it are to be made in adifferent manner, the currency of each amount payable under the Senior FinanceDocuments is determined under this Clause. Interest is payable in the currencyin which the relevant amount in respect of which it is payable is denominated.

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### (b)                                 Arepayment or prepayment of any principal amount is payable in the currency inwhich that principal amount is denominated on its due date.

### (c)                                  Amountspayable in respect of costs and expenses are payable in the currency in whichthey are incurred.

### (d)                                 Eachother amount payable under the Senior Finance Documents is payable in the BaseCurrency.

## 18.5**                           No set-offor counterclaim**

All payments made by an Obligor under the SeniorFinance Documents must be made without set-off or counterclaim (save tothe extent provided for in Clause 10.2(c) (*Repayment of Revolving Credit Loans*) in relation toRevolving Credit Loans).

## 18.6**                           BusinessDays**

### (a)                                  Ifa payment under the Senior Finance Documents is due on a day which is not aBusiness Day, the due date for that payment will instead be the next BusinessDay in the same calendar month (if there is one) or the preceding Business Day(if there is not).

### (b)                                 Duringany extension of the due date for payment of any principal under this Agreementinterest is payable on that principal at the rate payable on the original duedate.

## 18.7**                           Partialpayments**

### (a)                                  Ifany Administrative Party receives a payment insufficient to discharge all theamounts then due and payable by the Obligors under the Senior FinanceDocuments, the Administrative Party must apply that payment towards theobligations of the Obligors under the Senior Finance Documents in the followingorder:

#### (i)                                     **first**, in or towards payment *pro rata* of any unpaid fees, costs and expenses of theAdministrative Parties under the Senior Finance Documents;

#### (ii)                                  **second**, in or towards payment *pro rata* of any accrued interest or fee due but unpaid underthe Senior Finance Documents;

#### (iii)                               **third**, in or towards payment *pro rata* of any principal amount due but unpaid under thisAgreement; and

#### (iv)                              **fourth**, in or towards payment *pro rata* of any other sum due but unpaid under the SeniorFinance Documents.

### (b)                                 TheFacility Agent must, if so directed by the Majority Lenders, vary the order setout in sub-paragraphs (a)(ii) to (iv) above.

### (c)                                  ThisSubclause will override any appropriation made by an Obligor.

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## 18.8**                           Timingof payments**

If a Senior Finance Document does not provide for whena particular payment is due, that payment will be due within three BusinessDays of demand by the relevant Finance Party.

## 18.9**                           SecurityAgent Creditor**

### (a)                                  Eachof the Obligors and each of the Finance Parties agree that the Security Agentshall be the joint and several creditor (together with the relevant FinanceParty) of each and every payment obligation of any Obligor towards each and anyof the Finance Parties under the Senior Finance Documents, and that accordinglythe Security Agent will have its own independent right to demand performance bythe relevant Obligor of that obligation when due (such obligations owing to theSecurity Agent).  However, any dischargeby an Obligor of any such obligation owed to either of the Security Agent orthe relevant Finance Party shall, to the same extent, discharge the obligationowed by such Obligor to the other party and a Finance Party and the SecurityAgent shall not by virtue of this Subclause 18.9 be entitled to pursue theObligor simultaneously for the same obligations.

### (b)                                 Withoutlimiting or affecting the Security Agent’s rights against any Obligor (whetherunder this paragraph or under any other provision of the Senior FinanceDocuments), the Security Agent agrees with each other Finance Party (on aseveral and divided basis) that, subject as set out in the next sentence, itwill not exercise its rights as a joint and several creditor with a FinanceParty except with the consent of that Finance Party.  However, nothing in the previous sentenceshall limit to any extent the Security Agent’s right in whatever capacity totake any action to protect or preserve any rights under any Security Documentor to enforce any Security Interest created thereby as contemplated by thisAgreement and/or the relevant Security Document (or to do any act reasonablyincidental to any of the foregoing).

### (c)                                  ThisSubclause applies except to the extent the Security Agent specifies thatit shall not apply in relation to a specific Obligor or all Obligorsincorporated in a particular jurisdiction.

### (d)                                 Forthe purposes of paragraph (a) above in conjunction with any Security Interestcreated under the laws of the Netherlands, the Security Agent shall qualify asa *hoofdelijk crediteur*.

# **19.****                               GUARANTEEAND INDEMNITY**

## 19.1                           **Guarantee and indemnity**

Each Guarantor jointly and severally and irrevocablyand unconditionally:

### (a)                                  guaranteesto each Finance Party due and punctual performance by each Borrower of all itspayment obligations under the Senior Finance Documents (other than the paymentobligations of the Restricted Borrower under or in connection with theRestricted Term Loan Facilities);

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### (b)                                 undertakeswith each Finance Party that, whenever a Borrower does not pay any amount whendue under any Senior Finance Document (other than any amount payable by theRestricted Borrower under or in connection with the Restricted Term LoanFacilities), it must immediately on demand by the Facility Agent pay thatamount as if it were the principal obligor; and

### (c)                                  indemnifieseach Finance Party immediately on demand against any loss or liability sufferedby that Finance Party if any obligation guaranteed by it is or becomesunenforceable, invalid or illegal; the amount of the loss or liability underthis indemnity will be equal to the amount the Finance Party would otherwisehave been entitled to recover.

## 19.2**                           Continuingguarantee**

This Guarantee is a continuing guarantee and willextend to the ultimate balance of all sums payable by any Obligor under theSenior Finance Documents (other than by the Restricted Borrower under or inconnection with the Restricted Term Loan Facilities), regardless of anyintermediate payment or discharge in whole or in part.

## 19.3**                           Reinstatement**

### (a)                                  Ifany discharge (whether in respect of the obligations of any Obligor or anysecurity for those obligations or otherwise) or arrangement is made in whole orin part on the faith of any payment, security or other disposition which isavoided or must be restored on insolvency, liquidation, administration orotherwise without limitation, the liability of each Guarantor under this Clausewill continue or be reinstated as if the discharge or arrangement had notoccurred.

### (b)                                 EachFinance Party may concede or compromise any claim that any payment, security orother disposition is liable to avoidance or restoration.

## 19.4**                           Waiverof defences**

The obligations of each Guarantor under thisClause will not be affected by any act, omission or thing which, but forthis provision, would reduce, release or prejudice any of its obligations underthis Clause (whether or not known to it or any Finance Party).  This includes:

### (a)                                  anytime or waiver granted to, or composition with, any person;

### (b)                                 anyrelease of any person under the terms of any composition or arrangement;

### (c)                                  thetaking, variation, compromise, exchange, renewal or release of, or refusal orneglect to perfect, take up or enforce, any rights against, or security overassets of, any person;

### (d)                                 anynon-presentation or non-observance of any formality or otherrequirement in respect of any instrument or any failure to realise the fullvalue of any security;

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### (e)                                  anyincapacity or lack of power, authority or legal personality of or dissolutionor change in the members or status of any person;

### (f)                                    anyamendment (however fundamental) of a Senior Finance Document or any otherdocument or security; or

### (g)                                 anyunenforceability, illegality, invalidity or non-provability of anyobligation of any person under any Senior Finance Document or any otherdocument or security.

## 19.5**                           Immediaterecourse**

Each Guarantor waives any right it may have of firstrequiring any Finance Party (or any trustee or agent on its behalf) to proceedagainst or enforce any other right or security or claim payment from any personor file any proof or claim in any insolvency, administration, winding-upor liquidation proceedings relative to any other Obligor or any other personbefore claiming from that Guarantor under this Clause.

## 19.6**                           Appropriations**

Until all amounts which may be or become payable bythe Obligors under the Senior Finance Documents have been irrevocably paid infull, each Finance Party (or any trustee or agent on its behalf) may, providedto do so is reasonable in the circumstances:

### (a)                                  withoutaffecting the liability of any Guarantor under this Clause:

#### (i)                                     refrainfrom applying or enforcing any other moneys, security or rights held orreceived by that Finance Party (or any trustee or agent on its behalf) inrespect of those amounts (unless and until the amounts received by that FinanceParty (or any trustee or agent on its behalf) from the Obligors are sufficientto discharge in full all amounts which may be or become payable by the Obligorsto that Finance Party under the Senior Finance Documents); or

#### (ii)                                  applyand enforce them in such manner and order as it sees fit (whether against thoseamounts or otherwise); and

### (b)                                 holdin an interest-bearing suspense account any moneys received from anyGuarantor or on account of that Guarantor’s liability under this Clause.

## 19.7**                           Non-competition**

Unless:

### (a)                                  allamounts which may be or become payable by the Obligors under the Senior FinanceDocuments have been irrevocably paid in full; or

### (b)                                 theFacility Agent otherwise directs,

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no Guarantor will, aftera claim has been made or by virtue of any payment or performance by it underthis Clause:

#### (i)                                     exerciseany right of subrogation in respect of or claim to be subrogated to any rights,security or moneys held, received or receivable by any Finance Party (or anytrustee or agent on its behalf);

#### (ii)                                  exerciseor claim any right of contribution or indemnity in respect of any payment madeor moneys received on account of that Guarantor’s liability under this Clause;

#### (iii)                               claim,prove or vote (or exercise any right to rank) as a creditor of any Obligor orits estate in competition with any Finance Party (or any trustee or agent onits behalf); or

#### (iv)                              takeany action to receive, claim or have the benefit of any payment, distributionor security from or on account of any Obligor, or exercise any right of set-off(not being an automatic set-off arising by operation of law which doesnot result from any action or election by any Obligor) as against any Obligor(and such Guarantor waives any right it would otherwise have to receive, claimor have the benefit of any such payment, distribution or security or exerciseany such right of set-off).

Each Guarantor must hold in trust for and immediatelypay or transfer to the Facility Agent for the Finance Parties any payment ordistribution or benefit of security received by it contrary to thisClause (or any payment under any set-off arising by operation oflaw) or in accordance with any directions given by the Facility Agent underthis Clause.

## 19.8**                           Additionalsecurity**

This Guarantee is in addition to and is not in any wayprejudiced by any other security now or subsequently held by any Finance Party.

## 19.9**                           GuaranteeLimitations**

### (a)                                  Ifand to the extent any Guarantee secures debt obligations of a Borrower beingsubject to German income tax, the Guarantee shall not be enforced againstassets which qualify as LTIBR to the extent such assets are (i) the subject ofany of the Security Documents, (ii) encumbered in favour of any of the FinanceParties pursuant to a lien based on general business terms of a Finance Party,(iii) the subject of a disposal restriction (*Verfügungsbeschränkung*)in favour of any Finance Party or (iv) enforced pursuant to a submission toimmediate foreclosure in favour of any of the Finance Parties (*Unterwerfung unter die sofortige Zwangsvollstreckung*).

### (b)                                 Theliability of each Guarantor under this Clause 19 shall also be limited to theextent of the limitations (if any) set out in Schedule 12 (*Guarantee**Limitations*) or in the Accession Deedexecuted by the relevant Guarantor.

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# **20.****                               REPRESENTATIONS**

## 20.1**                           Representations**

The representations set out in this Clause aremade by each Obligor or (if so stated) the Parent and the Company to eachFinance Party.

## 20.2                           Status*1

### (a)                                  Itand each of its Subsidiaries which is a Material Group Member is a limitedliability company (except, in the case of the Company, Smurfit Kappa Treasuryand certain other entities in relation to which the status has been disclosedto the Facility Agent or the Security Agent in the process of granting securitypursuant to the Security Documents, or otherwise, which do not have limited liability),duly incorporated and validly existing under the laws of its jurisdiction ofincorporation.

### (b)                                 Itand each of its Subsidiaries which is a Material Group Member has the power toown its assets and carry on its business as it is being and will be conducted.

## 20.3**                           Powersand authority***

It has the power to enter into and perform, and hastaken all necessary action to authorise the entry into and performance of, theTransaction Documents to which it is or will be a party and the transactionscontemplated by those Transaction Documents.

## 20.4**                           Legalvalidity***

### (a)                                  EachTransaction Document to which it is a party is its legally binding, valid and,subject to the Reservations, enforceable obligation.

### (b)                                 EachSecurity Document to which it is a party creates the Security Interests whichthat Security Document purports to create (subject in the case ofenforceability of such Security Interests to the Reservations).

## 20.5**                           Non-conflict***

The entry into and performance by it of, and thetransactions contemplated by, the Transaction Documents to which it is party donot conflict with:

### (a)                                  anylaw or regulation applicable to it, to the extent they are likely to have aMaterial Adverse Effect; or

### (b)                                 itsor any of its Subsidiaries’ constitutional documents in any material respect;or

### (c)                                  anyagreement or instrument which is binding upon it or any of its Subsidiaries orany of its or its Subsidiaries’ assets or constitute a default or terminationevent (however described) under any such agreement or 

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1                      Asterisks(*) in headings denote repeating nature of representation.

 

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## instrument, ineach case to an extent or in a manner which would have a Material AdverseEffect.

## 20.6**                           NoDefault**

### (a)                                  NoDefault is outstanding or is reasonably likely to result from the execution of,or the performance of any transaction contemplated by, any TransactionDocument; and

### (b)                                 noother event is outstanding which constitutes (or with the giving of notice,expiry of any grace period or fulfilment of any other applicable condition willconstitute) a default or termination event (however described) under anydocument which is binding on it or any of its Subsidiaries or any of its or itsSubsidiaries’ assets in each case to an extent or in a manner which would havea Material Adverse Effect.

## 20.7**                           Authorisations**

### Except forregistration of any Security Document to the extent such registration can onlybe completed after entry into of such Security Document, all authorisationsrequired by it in connection with the entry into, performance, validity and enforceabilityof, and the transactions contemplated by, the Transaction Documents have been(or will at the First Drawdown be) obtained or effected (as appropriate) andare (or will at the First Drawdown be) in full force and effect.

## 20.8**                           BaseFinancial Statements**

### (a)                                  Asat the date of this Agreement the Target Group Base Financial Statements, tothe best of the knowledge of the Company after due enquiry:

#### (i)                                     havebeen prepared in accordance with Dutch GAAP consistently applied (subject, inthe case of unaudited Target Group Base Financial Statements, to customary yearend adjustments);

#### (ii)                                  givea true and fair view of (if audited) or fairly present (if unaudited) theconsolidated financial condition and results of operations of the Target Groupas at and for the Accounting Period ended the date to which they were drawn up;and

#### (iii)                               asat the date to which they were prepared, do not include or consolidate theresults of any company or business which is not part of the Target Group.

### (b)                                 Asat the date of this Agreement the Smurfit Kappa Group Base FinancialStatements, to the best of the knowledge of the Company after due enquiry havebeen prepared in accordance with the Accounting Principles consistently applied(subject, in the case of unaudited Smurfit Kappa Group Base FinancialStatements, to customary year end adjustments);

### (c)                                  Asat the date of this Agreement to the best of the knowledge of the Company afterdue enquiry, there has been no material adverse change in the business, assetsor financial condition of the Smurfit Kappa Group and the Target Group

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### since thelatest date to which any of the Base Financial Statements were drawn up.

## 20.9**                           Documents**

### (a)                                  Thedocuments delivered to the Facility Agent by or on behalf of any Obligorpursuant to Subclause 4.1 (*Conditionsprecedent documents*) were genuine (or, in the case of copydocuments, were true, complete and accurate copies of originals which weregenuine), are in full force and effect (or if a copy, the original is in fullforce and effect) and have not been amended, varied or replaced in any respectwhich could adversely affect the interests of the Finance Parties under theSenior Finance Documents.

### (b)                                 Documentsdelivered to the Facility Agent under this Agreement by or on behalf of anyObligor after the First Drawdown were, when delivered, genuine (or, in the caseof copy documents, were true, complete and accurate copies of originals whichwere genuine) and when delivered were in full force and effect (or, if a copy,the original was in full force and effect).

## 20.10**                     Financialstatements**

### (a)                                  Itslatest Accounts supplied under this Agreement (taken together with anyReconciliation Statement accompanying them):

#### (i)                                     havebeen prepared in accordance with the Accounting Principles, consistentlyapplied (subject, in the case of unaudited Accounts, to customary year endadjustments); and

#### (ii)                                  givea true and fair view of (if audited) or fairly present (if unaudited) itsconsolidated financial condition as at, and consolidated results of operationsfor, the Accounting Period ended the date to which they were drawn up, providedthat in the case of any monthly Accounts, such Accounts fairly present itsconsolidated results of operations for that Accounting Period (provided furtherthat in the case of monthly selected balance sheet information such informationhas not been prepared on a consolidated basis and so may be subject toquarterly adjustments).

### (b)                                 Thebudgets and forecasts supplied to the Facility Agent under this Agreement havebeen prepared on the basis of recent historical information and on the basis ofassumptions which were believed by the relevant Obligor to be reasonable as atthe date they were supplied.

### (c)                                  TheCompany may make written disclosures to the Facility Agent against thisrepresentation for the purpose of its repetition after the First Drawdown Dateand this representation will be deemed to be qualified thereby.

 

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## 20.11**                     InformationPackage**

In the case of the Company, Smurfit Kappa Funding andthe Parent only (and given only as at the date the Information Package (or partthereof) is delivered to the Arrangers and as at the Syndication Date):

### (a)                                  tothe best of each of the Parent’s, the Company’s and Smurfit Kappa Funding’sknowledge, the material factual information contained in the InformationPackage (when taken as a whole) was true and accurate in all material respectsas at its date or (if appropriate) as at the date (if any) at which it isstated to be given;

### (b)                                 tothe best of each of the Parent’s, the Company’s and Smurfit Kappa Funding’sknowledge, all expressions of opinion or intention made by the Parent, SmurfitKappa Funding or the Company contained in the Information Package were madeafter careful consideration and were believed by the Parent, Smurfit KappaFunding and the Company to be reasonable as at the date at which they arestated to be given;

### (c)                                  thefinancial projections made by the Parent, Smurfit Kappa Funding or the Companycontained in the Information Package have been prepared as at the date of theInformation Package on the basis of recent historical information andassumptions which were believed by the Parent, Smurfit Kappa Funding, the Companyand by the Chief Executive Officer, the Chief Financial Officer and the ChiefOperating Officer to be reasonable at that date;

### (d)                                 tothe best of each of the Parent’s, the Company’s and Smurfit Kappa Funding’sknowledge, the Information Package did not omit as at its date any informationthe omission of which would make the Information Package untrue or misleadingin any material respect; and

### (e)                                  (asat the Syndication Date) to the best of each of the Parent’s, the Company’s andSmurfit Kappa Funding’s knowledge, nothing has occurred since the date of theInformation Package which has not been fairly disclosed in writing to theFacility Agent and which, if disclosed, would result in the factual informationor financial projections contained in the Information Package being untrue ormisleading in any material respect.

## 20.12**                     Report**

In the case of the Company, Smurfit Kappa Funding andthe Parent only, as at the date of this Agreement to the best of its knowledgeafter due enquiry:
|  |   | (a) | (i) | all written factual information (other than any in  the Report) concerning the Investors, the Original Obligors and the Target  and its Subsidiaries and the transactions contemplated by this Agreement that  it or the Investor (or any of such person’s authorised representatives)  supplied to any of the Arrangers was complete and correct in all material  respects as at its date and did not omit to state a material fact necessary  in order to make such information not materially misleading; |
|--|--------|-----|-----|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

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(ii)                                  allwritten factual information contained or referred in the Report concerning theInvestors, the Original Obligors and the Target and its Subsidiaries and thetransactions contemplated by this Agreement that it or the Investors (or any ofsuch person’s authorised representatives) supplied to any of the Arrangers wascomplete and correct in all material respects as at its date and did not omitto state a material fact necessary in order to make such information notmaterially misleading in the light of the circumstances in which the Report wasmade;

### (b)                                 allwritten factual information relating to the Group or the Target Group or thetransactions contemplated by the Transaction Documents provided to any firmwhich prepared a Report was true in all material respects at its date or (ifappropriate) as at the date (if any) at which it is stated to be given;

### (c)                                  allwritten expressions of opinion or intention given by or on behalf of any memberof the Group or the Target Group and all written forecasts and projectionsfurnished by any member of the Group or the Target Group to each such firm werearrived at after careful consideration, and were based on recent historicalinformation and on assumptions which were believed  by such member of the Group to be reasonableat the date they were supplied;

### (d)                                 theReport did not omit as at its date any factual information which, if disclosed,would make the information contained in the Report untrue or misleading in anymaterial respect in the light of the circumstances in which such Report wasmade available;

### (e)                                  asat the date of this Agreement, nothing has occurred since the date any writtenfactual information was provided to any firm which prepared the Report whichhas not been disclosed in writing by the Company to the Arrangers prior to thedate of this Agreement and which, if disclosed would make any of the factualinformation in the Report untrue or misleading in any material respect in thelight of circumstances in which any such written factual information wasprovided to any firm which prepared the Report; and

### (f)                                    theParent and the Company have not omitted to disclose to the Arrangers anyfactual information which, if disclosed, would make the Report untrue ormisleading in any material respect.

## 20.13**                     Litigationetc.**

### (a)                                  Noundisclosed litigation, arbitration or administrative proceedings orinvestigations of, or before, any court, arbitral body or agency have beenstarted which, if adversely determined are likely to have a Material AdverseEffect.  Any matters disclosed in (i) theinternal memorandum of Jefferson Smurfit Group from Brian Marshall addressed toBrendan Glynn dated 8 November 2005 entitled “Syndication — Legal Due Diligence”and the copy memoranda, letters and e-mail correspondence annexed thereto andprovided to the Lenders prior to the date of this Agreement; and/or (ii) theForms 20-F relating to the annual report for the financial year ending 31December 2004, filed with the SEC in relation to (A) the Parent and the Companyand (B) the 

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### Target, shallbe deemed to have been disclosed for the purpose of this Clause 20.13(a).

### (b)                                 Ithas not (and none of its Subsidiaries have) breached any law or regulationwhich breach would have a Material Adverse Effect.

### (c)                                  Nolabour disputes are current or, to its knowledge, threatened (in writing) whichwould have a Material Adverse Effect.

## 20.14**                     Taxes**

### (a)                                  Itis not (and none of its Subsidiaries are) overdue in the filing of any Taxreturns or filings where failure to do so would result in any materialpenalties or fines.

### (b)                                 Itis not (and none of its Subsidiaries are) overdue in the payment of anymaterial amount of Tax unless any such overdue payment is being contested ingood faith, adequate reserves are being maintained for the payment of suchTaxes, the overdue payment can be lawfully withheld and the non-paymentwill not have a Material Adverse Effect.

### (c)                                  Noclaims or investigations by any tax authority are being or are reasonablylikely to be made or conducted against it (or any of its Subsidiaries) (exceptfor assessments in relation to the ordinary course of the business or claimsbeing contested in good faith and in respect of which adequate provision hasbeen made in its Accounts) which are reasonably likely to result in a liabilityof or claim against any member of the Group which will have a Material AdverseEffect.

## 20.15**                     StructureMemorandum**

In the case of the Company and the Parent only and asat the First Drawdown Date:

### (a)                                  theGroup structure chart delivered to the Facility Agent under Part I of Schedule2 (*Conditions Precedent Documents*)shows all members of the Group, and contains descriptions which in all materialrespects are true, complete and correct of the corporate ownership structure ofthe Group, as it will be immediately after the First Drawdown;

### (b)                                 theStructure  Memorandum sets out (togetherwith the Funds Flow Statement) every material step to be taken at or before theFirst Drawdown for the purpose of achieving the First Drawdown;

### (c)                                  theStructure Memorandum reflects (together with the Funds Flow Statement) allpayments and discharges of indebtedness individually in excess of €1,000,000(or its equivalent) due to be made at or about the First Drawdown by any partyto the Transaction Documents in connection with the transactions and matterscontemplated thereby; and

### (d)                                 theStructure Memorandum shows in all material respects the steps which members ofthe Group are anticipated to undertake and payments which members of the Groupare anticipated to make as part of the Debt Pushdown.

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## 20.16**                     IntellectualProperty Rights**

It and each of its Material Subsidiaries:

### (a)                                  ownsor has licensed to it all the Material Intellectual Property Rights (if any)and it does not (nor do any of the Material Subsidiaries), in carrying on itsbusiness, infringe any Material Intellectual Property Rights of any third partyin any respect which has, or would have, a Material Adverse Effect; and

### (b)                                 hastaken all formal or procedural actions (including payment of fees) required tomaintain the registered Material Intellectual Property Rights if and to theextent owned by it where failure to take such action would have a MaterialAdverse Effect.

## 20.17**                     Environment**

It and each of the Material Subsidiaries has obtainedall requisite Environmental Approvals required for the carrying on of itsbusiness as currently conducted and is in compliance with:

### (a)                                  theterms and conditions of such Environmental Approvals; and

### (b)                                 allother applicable Environmental Laws,

where, in each case, if not obtained or complied withthe failure or its consequences would have a Material Adverse Effect.

## 20.18**                     HoldingCompanies**

In the case of the Parent, Smurfit Kappa Funding andthe Company only:

### (a)                                  theParent is the legal and beneficial owner of all of the shares in Smurfit KappaFunding.  Smurfit Kappa Funding is thelegal and beneficial owner of all of the shares in the Company.  Following the First Drawdown, the Companywill become the beneficial owner, and will become entitled to become the legaland beneficial owner, of the Target Group;

### (b)                                 theEquity Documents contain all the material terms of the arrangements between theInvestors and members of the Group as it will be immediately after the FirstDrawdown.

## 20.19**                     Assets**

### (a)                                  Itis the legal and beneficial owner of the shares, assets and the real propertymaterial to the carrying-on of the Core Business and any other materialproperty which it charges or purports to charge under the Security Documents.

### (b)                                 Itand each of its Material Subsidiaries owns or has leased or licensed to it allmaterial assets necessary to conduct its business (which are not replaceablewithin 90 days), save where not owning, leasing or licensing such assets wouldnot have a Material Adverse Effect.

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## 20.20**                     FinancialIndebtedness and Security Interests**

### (a)                                  Asof the First Drawdown and after giving effect to the application in accordancewith the Funds Flow Statement of the proceeds of the Loans drawn on the FirstDrawdown Date in the manner shown in the Funds Flow Statement, no member of theGroup has any (actual or contingent) Financial Indebtedness outstanding whichis not permitted by the terms of this Agreement.

### (b)                                 Asof the First Drawdown and after giving effect to the application in accordancewith the Funds Flow Statement of the proceeds of the Loans drawn on the FirstDrawdown Date in the manner shown in the Funds Flow Statement, no SecurityInterest exists over the assets of any member of the Group which is notpermitted by the terms of this Agreement.

## 20.21**                     NoWinding Up**

None of the matters listed in Clause 24.7 (*Insolvency proceedings*) has occurred in relation to it orany Material Subsidiary.

## 20.22**                     Claims*Pari Passu***

Under the laws of its jurisdiction of incorporation,and, if different, England, in force at the date of this Agreement, the claimsof the Finance Parties against it under the Senior Finance Documents to whichit is a party rank and will rank at least *paripassu*with the claims of all its unsecured creditors save thosewhose claims are preferred by any bankruptcy, insolvency, liquidation orsimilar laws of general application.

## 20.23**                     AcquisitionDocuments**

### (a)                                  Allmaterial terms and conditions of the Acquisition (including those terms andconditions the absence of disclosure in connection therewith may make theInformation Memorandum incorrect or misleading in any material respect) are setout in the Acquisition Documents and there have been no amendments, variationsor waivers of any terms of the Acquisitions Documents which are materiallyprejudicial to the interests of the Lenders under the Senior Finance Documentssave as approved (by prior written consent) by the Facility Agent.

### (b)                                 TheAcquisition has been, or will, on the Closing Date be, carried out inaccordance with the terms and conditions of the Acquisition Documents save tothe extent as would not be materially prejudicial to the Lenders.

## 20.24**                     ProfessionalMarket Party**

The Dutch Borrower is in compliance with the DutchBanking Act and any regulations issued pursuant thereto (including, but notlimited to, the Policy Guidelines and the Dutch Exemption Regulation).

## 20.25**                     Timesfor making representations**

### (a)                                  Therepresentations set out in this Clause are made by each Original Obligoron the date of this Agreement.

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### (b)                                 Unlessa representation is expressed to be given at or as of a specific date only,each representation (other than those contained in Clauses 20.6 (*No default*), 20.7 (*Authorisations*), 20.8 (*Base Financial Statements*), 20.9 (*Documents*), 20.10 (*Financial Statements*), 20.11 (*Information Package*), 20.12 (*Report*), 20.13 (*Litigation,etc.*), 20.14 (*Taxes*),20.15 (*Structure Memorandum*),20.16 (*Intellectual Property Rights*),20.17 (*Environment*), 20.18 (*Holding Companies*), 20.19 (*Assets*), 20.20 (*Financial Indebtedness and Security Interests*),20.21 (*No Winding Up*), 20.22 (*Claims Pari Passu*), or 20.23 (*Acquisition Documents*)) is deemed to berepeated by:

#### (i)                                     eachAdditional Obligor and the Company on the date that Additional Obligor becomesan Obligor; and

#### (ii)                                  eachObligor on the date of each Request and the first day of each Term.

### (c)                                  Therepresentation contained in Clause 20.10(a) (*FinancialStatements*) is given in relation to a relevant set of Accounts onthe date of delivery of such Accounts under this Agreement.

### (d)                                 Whena representation is repeated, it is applied to the circumstances existing atthe time of repetition save where it is expressed to be made on a certain date.

# **21.****                               INFORMATIONCOVENANTS**

## 21.1**                           Financialstatements**

### (a)                                  TheParent must supply to the Facility Agent in sufficient copies for all theLenders:

#### (i)                                     theaudited consolidated financial statements of Smurfit Kappa Funding for eachannual Accounting Period;

#### (ii)                                  theunaudited consolidated financial statements of Smurfit Kappa Funding for eachquarterly Accounting Period;

#### (iii)                               priorto the occurrence of a Qualifying IPO only, the unaudited consolidatedfinancial statements of Smurfit Kappa Funding for each monthly AccountingPeriod; and

For the purpose of this Subclause only, Lenderswhich are funds and are advised or managed by the same advisor or manager or anAffiliate of such advisor or manager as other funds which are also Lenders,shall be treated as a single Lender.

### (b)                                 AllAccounts must be supplied as soon as they are available and:

#### (i)                                     inthe case of Accounts referred to in (a)(i) above, within 120 days (savethat the relevant period shall be 150 days for financial years ending on orbefore 30 December 2006);

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#### (ii)                                  inthe case of Accounts referred to in (a)(ii) above, within 45 days (save thatthe relevant period for the quarterly Accounting Periods prior to 1 October2006 shall be 60 days); and

#### (iii)                               inthe case of Accounts referred to in (a)(iii) above, within 30 days (save thatthe relevant period for the monthly Accounting Periods, prior to 1 October 2006shall be 45 days),

of the end of the relevant Accounting Period.

## 21.2**                           Formand scope of financial statements**

### (a)                                  TheParent must ensure that all Accounts supplied under this Agreement (i) give (ifaudited) a true and fair view of, or (if unaudited) fairly present, thefinancial condition (consolidated in the case of Smurfit Kappa Funding’sAccounts) of the relevant person as at the date to which those Accounts weredrawn up and the results of operations for the Accounting Period then ended(except that in the case of the monthly Accounts of Smurfit Kappa Funding, suchAccounts must fairly present its consolidated results of operations for thatAccounting Period, provided that in the case of monthly selected balance sheetinformation such information has not been consolidated and so may be subject toquarterly adjustments), and (ii) comprise at least a balance sheet (or in thecase of monthly Accounts selected balance sheet items), profit and loss accountand cash flow statement for or as at the end of the relevant Accounting Period(consolidated in the case of Smurfit Kappa Funding’s Accounts).

### (b)                                 TheParent must ensure that all annual audited Accounts are prepared in accordancewith the Accounting Principles, consistently applied.

### (c)                                  TheParent must ensure that all unaudited Accounts are prepared in accordance withor on a basis consistent in all material respects (subject to year-endadjustments) with the Accounting Principles, consistently applied, and show atleast the information provided for in the Accounts.

### (d)                                 TheParent must ensure that each set of Accounts for an annual or quarterlyAccounting Period is accompanied by a report of the Chief Financial Officerexplaining the main financial issues arising during that period and anymaterial changes against the budget for that period as supplied under thisAgreement and comparing the financial performance for such period against theequivalent period in the previous financial year.

### (e)                                  TheParent must notify the Facility Agent of any material change in the AccountingPrinciples used in the Accounts (excluding for the avoidance of doubt thechange to IFRS as set out in the definition of Accounting Principles).

### (f)                                    Ifrequested by the Facility Agent, the Parent must supply to the Facility Agent:

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#### (i)                                     afull description of any change notified under paragraph (e) above; and

#### (ii)                                  areconciliation statement (the Reconciliation Statement) showing sufficientinformation, in such detail and format as may be reasonably required by theFacility Agent, to enable the Finance Parties to make a proper comparisonbetween the financial position shown by the set of Accounts prepared on thechanged basis and the most recent audited Accounts (or if none, the BaseFinancial Statements) delivered to the Facility Agent under this Agreement andprepared according to the Accounting Principles.

### (g)                                 Ifrequested by the Parent, following any change referred to in paragraph (e)above, the Facility Agent must enter into discussions for a period of not morethan 30 days with a view to using reasonable endeavours to agree anyamendments required to be made to Clause 22.1 (*FinancialUndertakings*), Clause 12.3 (*Margin Adjustments*),Clause 11.6 (*Mandatory Prepayment — Excess Cash Flow*)and Clause 11.3 (*IPO*) and any other provisionswhich the parties consider appropriate to ensure that the change does notresult in a material alteration to the commercial effect of the terms of thisAgreement (including without limitation the headroom for the FinancialUndertakings in Clause 22.1 hereof).  Anyagreement between the Parent and the Facility Agent, with the prior consent ofthe Majority Lenders, will be binding on all the Parties and from the time ofsuch agreement no Reconciliation Statements will need to be delivered inrespect of the relevant changes.

### (h)                                 Ifno agreement is reached under paragraph (g) above on the requiredamendments to this Agreement, the Parent may, at the expiry of the 30 dayperiod mentioned in paragraph (g) or earlier if the Facility Agent acknowledgesthat no agreement will be reached within such period, appoint its auditors oran independent firm of accountant’s (in each case acting as experts and notarbitrators) to determine any amendment required to be made to Clause 22.1 (*Financial Undertakings*), Clause 12.3 (*MarginAdjustments*), Clause 11.6 (*Mandatory Prepayment —Excess Cash Flow*) and Clause 11.3 (*IPO*)and any other provisions which those auditors or accountants consider appropriateto ensure that the change does not result in a material alteration to thecommercial effect of the terms of this Agreement (including without limitationthe headroom for the Financial Undertakings in Clause 22.1 hereof).  Those amendments shall take effect when sodetermined by those auditors or, as the case may be, accountants and from thetime of such determination no Reconciliation Statements will need to bedelivered in respect of the relevant changes. The cost and expense of those auditors or accountants shall be for theaccount of the Company.

### (i)                                     Ifand for so long as no agreement or determination is arrived at as referred toin paragraphs (g) or (h) above on the required amendments to thisAgreement, the Parent must comply with requests by the Facility Agent forReconciliation Statements.

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## 21.3**                           ComplianceCertificate**

### (a)                                  TheParent must supply to the Facility Agent a Compliance Certificate with each setof annual and quarterly Accounts of Smurfit Kappa Funding supplied to theFacility Agent under this Agreement.

### (b)                                 ACompliance Certificate must be signed by an authorised signatory on behalf ofthe Parent (without personal liability) and, in the case of a ComplianceCertificate supplied with Smurfit Kappa Funding’s annual audited consolidated Accounts,the Auditors (but only so long as the Auditors generally agree to give suchcertificates)(provided that the Auditors will not be required to confirm thatno Default is outstanding and may confirm the other matters set out in theCompliance Certificate in the usual form used by such Auditors provided suchconfirmation is addressed to and capable of being relied on by the FinanceParties).

## 21.4**                           Budget**

### (a)                                  TheParent must supply to the Facility Agent promptly following approval by itsboard of directors and in any event not later than 45 days after the beginningof each annual Accounting Period a budget for that Accounting Period.

### (b)                                 Thebudget must be:

#### (i)                                     preparedin the same manner in all material respects, and show in all material respectsthe information provided for, in the applicable annual period in the FinancialModel; and

#### (ii)                                  preparedon a basis consistent with the Accounting Principles; and

#### (iii)                               approvedby the board of directors of the Parent.

### (c)                                  Ifthe Parent materially updates or changes the budget referred to above, it shallpromptly deliver to the Facility Agent, in sufficient copies for each of theLenders, such updated or changed budget together with a written explanation ofthe main changes in such budget.

### (d)                                 Thebudget shall include a projected balance sheet, projected profit and lossaccount, projected cash flow statement and projected cash flow statement andprojected expenditure together with a summary of all material assumptions andother bases upon which those projections were made for the relevant financialyear.

## 21.5**                           Presentations**

Once in every annual Accounting Period, at least twodirectors of the Parent (one of whom must be the Chief Financial Officer) must,if requested to do so by the Facility Agent, give a presentation (on a date andat a venue agreed with the Facility Agent) to the Finance Parties as to:

### (a)                                  theon-going business and financial performance of the Group; and

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### (b)                                 anyother matter which a Finance Party may reasonably request.

## 21.6**                           Auditors**

### (a)                                  SmurfitKappa Funding must promptly appoint one of the firms named in the definition ofAuditors to audit the consolidated annual financial statements of Smurfit KappaFunding .

### (b)                                 IfSmurfit Kappa Funding changes its auditors it must promptly notify the FacilityAgent.  Smurfit Kappa Funding may changeits auditors provided that it may only change its auditors to (i) one ofthe firms specifically named in the definition of Auditors or (ii) to any otherfirm of independent public accountants of international standing unless theFacility Agent notifies it that the Majority Lenders have objected to suchother firm (and it shall notify the Facility Agent of the identity of suchother firm at least 30 days prior to the proposed appointment).

### (c)                                  Ifthe Facility Agent (i) reasonably believes that an Event of Default hasoccurred or is reasonably likely to occur or (ii) has reasonable grounds tobelieve that any financial information provided is materially inaccurate and ineither case wishes to discuss the financial position of any member of the Groupwith the Auditors, the Facility Agent may notify the Parent, stating thequestions or issues which the Facility Agent wishes to discuss with theAuditors.  In this event, the Parent mustensure that the Auditors are authorised (at the expense of the Parent):

#### (i)                                     todiscuss the financial position of each member of the Group with the FacilityAgent on request from the Facility Agent (provided that representatives of theParent shall be given the opportunity to attend any such discussion, and if sorequired representatives of the Parent and Smurfit Kappa Funding (asappropriate) must be present when required by the Facility Agent actingreasonably); and

#### (ii)                                  todisclose to the Facility Agent for the Finance Parties any information whichthe Facility Agent may reasonably request.

## 21.7**                           Information— miscellaneous**

The Parent must supply to the Facility Agent (insufficient copies for all the Lenders if the Facility Agent so requests):

### (a)                                  atthe same time as the same are despatched, copies of all documents required bylaw to be despatched by the Parent to its shareholders generally (or any classof them) and copies of all documents despatched by any Material Group Member toits creditors generally (or any class of them);

### (b)                                 promptlyupon becoming aware of them, details of any litigation, arbitration oradministrative proceedings which are current or pending and which might, ifadversely determined, have a Material Adverse Effect or which would involveliability or potential or alleged liability in excess of €30,000,000;

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### (c)                                  promptlyon request, a list of the then current Material Subsidiaries;

### (d)                                 copiesof any authorisation required under any law or regulation to enable an Obligorto perform its obligations under, or for the validity or enforceability of, anySenior Finance Document (except to the extent that disclosure of theinformation would breach any law, regulation or stock exchange requirement);

### (e)                                  promptlyon any member of the Group making a public filing with the SEC, a copy of anysuch public filing;

### (f)                                    promptlyon request, an up to date copy of its shareholders’ register; and

### (g)                                 promptlyon request, such further information regarding the financial condition, assetsand operations of the Group and/or any member thereof (including any requestedamplification or explanation of any item in the Accounts, budgets or othermaterial provided by any Obligor under this Agreement) as any Finance Partythrough the Facility Agent may reasonably request.

## 21.8**                           Notificationof Default**

### (a)                                  Unlessthe Facility Agent has already been so notified by another Obligor, eachObligor must notify the Facility Agent of any Default (and the steps, if any,being or proposed to be taken to remedy it) promptly upon becoming aware of itsoccurrence.

### (b)                                 Promptlyon request by the Facility Agent (such request not to be made more than once inany financial year unless the Facility Agent has reasonable grounds forbelieving that there is an outstanding Default), the Parent must supply to theFacility Agent a certificate, signed by two of its authorised signatories onits behalf, certifying that no Default is outstanding or, if a Default isoutstanding, specifying the Default and the steps, if any, being or proposed tobe taken to remedy it.

## 21.9**                           Yearend**

The Parent must:

### (a)                                  procurethat each annual Accounting Period, and each financial year-end of it andeach Material Group Member, falls on 31st December or, in the case of aMaterial Group Member other than the Parent and Smurfit Kappa Funding, if noton 31st December, on such date in the seven days before or after such date asmay be permitted by the Accounting Principles; and

### (b)                                 procurethat each quarterly Accounting Period and each financial quarter of it and eachMaterial Group Member ends on an Accounting Date or, in the case of a MaterialGroup Member other than the Parent and Smurfit Kappa Funding, if not anAccounting Date, on such date in the seven days before or after such date asmay be permitted by the Accounting Principles.

 

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## 21.10**                     Syndication**

The Parent must ensurethat all members of the Group:

### (a)                                  provideall reasonably requested financial and other information in its possession andall reasonable assistance to the Arrangers in the preparation of an informationmemorandum for syndication of the Facilities;

### (b)                                 complywith all reasonable requests from the Arrangers and the Facility Agent (onbehalf of potential lenders) for information and access to the Group’soperating sites; and

### (c)                                  makeavailable senior management to give presentations to prospective lenders atreasonable times and venues agreed by the Parent and the Arrangers.

## 21.11**                     Use ofwebsites**

### (a)                                  Exceptas provided below, the Parent may deliver any information under this Agreementto a Lender by posting it on to an electronic website if:

#### (i)                                     theFacility Agent and the Majority Lenders agree;

#### (ii)                                  theParent and the Facility Agent designate an electronic website for this purpose;

#### (iii)                               theParent notifies the Facility Agent of the address of and password for thewebsite; and

#### (iv)                              theinformation posted is in a format agreed between the Parent and the FacilityAgent.

The Facility Agent must supply each relevant Lenderwith the address of and password for the website.

### (b)                                 Notwithstandingthe above, the Parent must supply to the Facility Agent in paper form a copy ofany information posted on the website together with sufficient copies for:

#### (i)                                     anyLender not agreeing to receive information via the website; and

#### (ii)                                  withinfive Business Days of request any other Lender, if that Lender so requests.

### (c)                                  TheParent must promptly upon becoming aware of its occurrence, notify the FacilityAgent if:

#### (i)                                     thewebsite cannot be accessed;

#### (ii)                                  thewebsite or any information on the website is infected by any electronic virusor similar software;

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#### (iii)                               thepassword for the website is changed; or

#### (iv)                              anyinformation to be supplied under this Agreement is posted on the website oramended after being posted.

If the circumstances in paragraphs (i) or (ii) aboveoccur, the Parent must supply any information required under this Agreement inpaper form.

# **22.****                               FINANCIALCOVENANTS**

## 22.1**                           FinancialUndertakings**

The Parent will procurethat:

#### (i)                                     **Consolidated EBITDA to Consolidated Total Net InterestPayable**:  Consolidated EBITDAfor any period comprising an annual Accounting Period of the Smurfit KappaFunding Group or four (or less, taking into account Clause 22.3 (*Initial Periods*)) consecutive quarterlyAccounting Periods of the Smurfit Kappa Funding Group (taken together as oneperiod) ending on any Accounting Date with the first test date on 30 September2006 falling on or about any of the dates specified in the table below, shallnot be less than W times Consolidated Total Net Interest Payable for suchperiod, where W has the value indicated in such table opposite such date;

#### (ii)                                  **Consolidated Cash Flow to Consolidated Total DebtService**:  Consolidated CashFlow for any period comprising an annual Accounting Period of the Smurfit KappaFunding Group or four consecutive quarterly Accounting Periods of the SmurfitKappa Funding Group (taken together as one period) and ending on any AccountingDate falling on or about any of the dates specified in the table below, shallnot be less than X times Consolidated Total Debt Service for such period, whereX has the value indicated in such table opposite such date;

#### (iii)                               **Consolidated Total Net Borrowings to ConsolidatedEBITDA**:  Subject to Clause22.3 (*Initial Periods*), Consolidated Total NetBorrowings as at each of the Accounting Dates falling on or about any of thedates specified in the table below shall not, prior to the occurrence of aQualifying IPO, be more than Y times, and after a Qualifying IPO be more than Ztimes, Consolidated EBITDA for any period comprising an annual AccountingPeriod of the Smurfit Kappa Funding Group or four consecutive quarterlyAccounting Periods of the Smurfit Kappa Funding Group (taken together as oneperiod) ending on any such Accounting Date, where Y or Z, as applicable, hasthe value indicated in such table opposite such date.

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| Accounting Date | ** ** | ** ** | ** ** | **W**      | ** ** | **X**         | ** ** | **Y**   | ** ** | **Z**      | ** ** |
|----------------------|------------|------------|------------|------------|------------|---------------|------------|---------|------------|------------|------------|
| ** **           | ** ** | **(x)**    | ** ** | **(x)**    | ** ** | **(x)**       | ** ** | **(x)** | ** ** |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **31/09/06**         | ** ** |       | **2.00**   | ** ** |       | **(no test)** | ** ** |    | **6.75**   | ** ** |       |   | **5.00** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **31/12/06**         | ** ** |       | **2.10**   | ** ** |       | **1.00**      | ** ** |    | **6.50**   | ** ** |       |   | **5.00** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **31/03/07**         | ** ** |       | **2.15**   | ** ** |       | **1.00**      | ** ** |    | **6.45**   | ** ** |       |   | **5.00** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **30/06/07**         | ** ** |       | **2.20**   | ** ** |       | **1.00**      | ** ** |    | **6.25**   | ** ** |       |   | **5.00** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **30/09/07**         | ** ** |       | **2.25**   | ** ** |       | **1.00**      | ** ** |    | **6.00**   | ** ** |       |   | **5.00** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **31/12/07**         | ** ** |       | **2.35**   | ** ** |       | **1.00**      | ** ** |    | **5.85**   | ** ** |       |   | **5.00** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **31/03/08**         | ** ** |       | **2.40**   | ** ** |       | **1.00**      | ** ** |    | **5.75**   | ** ** |       |   | **4.95** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **30/06/08**         | ** ** |       | **2.45**   | ** ** |       | **1.00**      | ** ** |    | **5.45**   | ** ** |       |   | **4.90** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **30/09/08**         | ** ** |       | **2.50**   | ** ** |       | **1.00**      | ** ** |    | **5.25**   | ** ** |       |   | **4.85** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **31/12/08**         | ** ** |       | **2.55**   | ** ** |       | **1.00**      | ** ** |    | **4.95**   | ** ** |       |   | **4.75** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **31/03/09**         | ** ** |       | **2.60**   | ** ** |       | **1.00**      | ** ** |    | **4.90**   | ** ** |       |   | **4.70** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **30/06/09**         | ** ** |       | **2.65**   | ** ** |       | **1.00**      | ** ** |    | **4.75**   | ** ** |       |   | **4.65** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **30/09/09**         | ** ** |       | **2.75**   | ** ** |       | **1.00**      | ** ** |    | **4.65**   | ** ** |       |   | **4.60** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **31/12/09**         | ** ** |       | **2.80**   | ** ** |       | **1.00**      | ** ** |    | **4.50**   | ** ** |       |   | **4.50** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **31/03/10**         | ** ** |       | **2.85**   | ** ** |       | **1.00**      | ** ** |    | **4.40**   | ** ** |       |   | **4.45** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **30/06/10**         | ** ** |       | **2.90**   | ** ** |       | **1.00**      | ** ** |    | **4.30**   | ** ** |       |   | **4.40** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **30/09/10**         | ** ** |       | **2.95**   | ** ** |       | **1.00**      | ** ** |    | **4.25**   | ** ** |       |   | **4.35** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **31/12/10**         | ** ** |       | **3.00**   | ** ** |       | **1.00**      | ** ** |    | **4.20**   | ** ** |       |   | **4.25** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **31/03/11**         | ** ** |       | **3.05**   | ** ** |       | **1.00**      | ** ** |    | **4.15**   | ** ** |       |   | **4.20** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **30/06/11**         | ** ** |       | **3.10**   | ** ** |       | **1.00**      | ** ** |    | **4.10**   | ** ** |       |   | **4.15** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **30/09/11**         | ** ** |       | **3.15**   | ** ** |       | **1.00**      | ** ** |    | **4.05**   | ** ** |       |   | **4.10** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **31/12/11**         | ** ** |       | **3.20**   | ** ** |       | **1.00**      | ** ** |    | **4.00**   | ** ** |       |   | **4.00** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **31/03/12**         | ** ** |       | **3.20**   | ** ** |       | **1.00**      | ** ** |    | **3.95**   | ** ** |       |   | **4.00** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **30/06/12**         | ** ** |       | **3.20**   | ** ** |       | **1.00**      | ** ** |    | **3.90**   | ** ** |       |   | **4.00** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **30/09/12**         | ** ** |       | **3.20**   | ** ** |       | **1.00**      | ** ** |    | **3.85**   | ** ** |       |   | **4.00** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **31/12/12**         | ** ** |       | **3.20**   | ** ** |       | **1.00**      | ** ** |    | **3.85**   | ** ** |       |   | **4.00** | ** ** |   |
| ** **           | ** ** |       | ** ** | ** ** |       | ** **    | ** ** |    | ** ** | ** ** |       |   | ** ** | ** ** |   |
| **31/03/13**         | ** ** |       | **3.20**   | ** ** |       | **1.00**      | ** ** |    | **3.85**   | ** ** |       |   | **4.00** | ** ** |   |

 

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|              | ** ** |   | ** ** | ** ** |   | ** ** | ** ** |   | ** ** | ** ** |   |   | ** ** | ** ** |   |
|--------------|------------|--------|------------|------------|--------|------------|------------|--------|------------|------------|--------|--------|------------|------------|--------|
| **30/06/13** | ** ** |   | **3.20**   | ** ** |   | **1.00**   | ** ** |   | **3.85**   | ** ** |   |   | **4.00**   | ** ** |   |
| ** **   | ** ** |   | ** ** | ** ** |   | ** ** | ** ** |   | ** ** | ** ** |   |   | ** ** | ** ** |   |
| **30/09/13** | ** ** |   | **3.20**   | ** ** |   | **1.00**   | ** ** |   | **3.85**   | ** ** |   |   | **4.00**   | ** ** |   |
| ** **   | ** ** |   | ** ** | ** ** |   | ** ** | ** ** |   | ** ** | ** ** |   |   | ** ** | ** ** |   |
| **31/12/13** | ** ** |   | **3.20**   | ** ** |   | **1.00**   | ** ** |   | **3.85**   | ** ** |   |   | **4.00**   | ** ** |   |
| ** **   | ** ** |   | ** ** | ** ** |   | ** ** | ** ** |   | ** ** | ** ** |   |   | ** ** | ** ** |   |
| **31/03/14** | ** ** |   | **3.20**   | ** ** |   | **1.00**   | ** ** |   | **3.85**   | ** ** |   |   | **4.00**   | ** ** |   |
| ** **   | ** ** |   | ** ** | ** ** |   | ** ** | ** ** |   | ** ** | ** ** |   |   | ** ** | ** ** |   |
| **30/06/14** | ** ** |   | **3.20**   | ** ** |   | **1.00**   | ** ** |   | **3.85**   | ** ** |   |   | **4.00**   | ** ** |   |
| ** **   | ** ** |   | ** ** | ** ** |   | ** ** | ** ** |   | ** ** | ** ** |   |   | ** ** | ** ** |   |
| **30/09/14** | ** ** |   | **3.20**   | ** ** |   | **1.00**   | ** ** |   | **3.85**   | ** ** |   |   | **4.00**   | ** ** |   |
| ** **   | ** ** |   | ** ** | ** ** |   | ** ** | ** ** |   | ** ** | ** ** |   |   | ** ** | ** ** |   |
| **30/12/14** | ** ** |   | **3.20**   | ** ** |   | **1.00**   | ** ** |   | **3.85**   | ** ** |   |   | **4.00**   | ** ** |   |

####  

#### (iv)                              **Maximum Capital Expenditure**. In respect ofeach of the annual Accounting Periods ending on or about the dates set out incolumn (1) below (each an “**Expenditure Period**”) the Group taken as a whole willnot make Capital Expenditure (excluding: (a) Capital Expenditure to the extentpaid out of disposal or insurance proceeds received in respect of a damaged ordestroyed asset; (b) Capital Expenditure to the extent paid out of the ExcessCash Flow for such period that is not prepaid under Subclause 11.6 (*Mandatory Prepayment - Excess Cash Flow*)or from Permitted Equity Injections; (c) to the extent it has been included inCapital Expenditure, the amount of consideration for the Target Shares andrelated costs and expenses to the extent provided for in the StructureMemorandum and/or Funds Flow Statement and/or the Financial Model; and(d) Capital Expenditure financed by hire purchase or a finance lease tothe extent permitted under this Agreement) on assets in excess of the amountset out in column (2) below against the relevant date:

| (1)          | ** ** | **(2)**    | ** ** |
|--------------|------------|------------|------------|
| **Date**     | ** ** | ** ** | ** ** | **€ million** | ** ** |
| **31/12/06** | ** ** | **440.0**  | ** ** |
| **31/12/07** | ** ** | **410.0**  | ** ** |
| **31/12/08** | ** ** | **365.0**  | ** ** |
| **31/12/09** | ** ** | **345.0**  | ** ** |
| **31/12/10** | ** ** | **360.0**  | ** ** |
| **31/12/11** | ** ** | **435.0**  | ** ** |
| **31/12/12** | ** ** | **435.0**  | ** ** |
| **31/12/13** | ** ** | **395.0**  | ** ** |
| **31/12/14** | ** ** | **395.0**  | ** ** |
|              |            |            |            |  |  |

 

PROVIDED THAT:

(a)                                  upto fifty per cent. (50%) of any such Capital Expenditure limit not utilised inany Expenditure Period may be carried forward for one Expenditure Period onlyand added (otherwise than for the purposes of the further application of thisproviso) to the Capital Expenditure limit for the next Expenditure Period; and

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(b)                                 inany Expenditure Period up to fifty per cent. (50%) of the Capital Expenditurelimit for the next Expenditure Period may be utilised in the currentExpenditure Period (the “**Brought Forward Amount**”), with the Capital Expenditure forthe next Expenditure Period being reduced by an amount equal to the BroughtForward Amount.

Any amount carried forward from one Expenditure Periodto the next shall be deemed to be spent before all of the other capitalexpenditure permitted to be spent in such Expenditure Period has been spent.

## 22.2**                           Definitions**

### (a)                                  Subjectto Clause 22.3 (*Initial Periods*),in this Agreement the following terms have the meanings set out below:

#### (i)                                     “**ConsolidatedCash Flow**” for theSmurfit Kappa Funding Group for any period means Consolidated EBITDA for theSmurfit Kappa Funding Group for such period:

**plus** the amount of any taxrebate or credit in respect of any advance corporation tax, mainstreamcorporation tax or withholding tax or their equivalents in any relevantjurisdiction actually received in cash by any member of the Smurfit KappaFunding Group during such period;

**plus** (to the extent nototherwise included) the amount (net of tax) of any dividends or other profitdistributions received in cash by any member of the Smurfit Kappa Funding Group(which is not a Joint Venture) from any associated company (not being a memberof the Group) during such period;

**minus** all Capital Expenditureactually paid (excluding: (a) Capital Expenditure to the extent paid out ofdisposal proceeds or out of insurance proceeds received in respect of a damagedor destroyed asset; (b) capital Expenditure to the extent paid out of theretained Excess Cash Flow for any previous period or from Permitted EquityInjections; (c) to the extent it has been included in Capital Expenditure, theamount of consideration for the Target Shares and related costs and expenses tothe extent provided for in the Structure Memorandum and/or Funds Flow Statementand/or the Financial Model; and (d) Capital Expenditure financed by hirepurchase or a finance lease to the extent permitted under this Agreement) bymembers of the Smurfit Kappa Funding Group during such period;

**minus**all advance corporationtax, mainstream corporation tax, capital gains tax and withholding tax actuallypaid during such period and minus the amount of any withholding tax withheldfrom any amount paid to any member of the Smurfit Kappa Funding Group which hasbeen taken into account in calculating Consolidated EBITDA for the SmurfitKappa Funding Group for such period;

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**minus**any increase or **plus** any decrease in Consolidated Net Working Investment forthe Smurfit Kappa Funding Group between the Accounting Dates at the beginningand end of such period;

**minus**all non-cash creditsand **plus** all non-cash debits andother non-cash charges included in establishing Consolidated EBITDA forthe Smurfit Kappa Funding Group for such period (to the extent not included incalculating Consolidated Net Working Investment for the Smurfit Kappa FundingGroup as at the Accounting Date on which such period ends);

**plus**any positive and **minus** any negative extraordinary or exceptional itemsreceived or which are paid by any member of the Smurfit Kappa Funding Group incash during such period to the extent not already taken into account incalculating Consolidated EBITDA for the Smurfit Kappa Funding Group for suchperiod excluding any restructuring costs funded by a Utilisation under theRestructuring Facility or funded by Synergy Disposals;

**plus** any proceeds of disposalsduring such period (without double counting) to the extent such proceeds arenot reinvested or committed to be reinvested as permitted under Clause11.4(a)(ii)(A) (*Mandatory Prepayment —disposals, insurance, warranty and report claims*) or prepaid orrequired to be prepaid as required under Clause 11 (*Prepayment and Cancellation*) and in relation to RequiredRegulatory Disposals, the relevant amounts will be included regardless ofwhether they are applied in reinvestment, committed to be reinvested, prepaidor required to be prepaid;

**minus** the amount of dividends orother distributions paid by any member of the Smurfit Kappa Funding Group toany shareholder of or, as the case may be, partner in such member of theSmurfit Kappa Funding Group who is not a member of the Smurfit Kappa FundingGroup;

**plus** the proceeds of any claimagainst Vendors under the Share Purchase Agreement but after deduction of alltaxes applicable on and all reasonable costs, fees and expenses incurred inconnection with such claim and to the extent such proceeds are not reinvestedas permitted under Clause 11.4(a)(ii)(F) (*MandatoryPrepayment — disposals, insurance, warranty and report claims*) orpre-paid as permitted or required under Clause 11 (*Prepayment and cancellation*);

**plus** the amount of any Cure Amount as permittedpursuant to Clause 24.21 (*Right to CureFinancial Ratios*) (save to the extent already included inConsolidated EBITDA) during the relevant period and, for the avoidance ofdoubt, excludes any addition of the amount of any Permitted Equity Injectionsexcept as permitted pursuant to Clause 24.21 (*Rightto Cure Financial Ratios*);

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**plus** the proceeds of any permitted subscription forequity in any member of the Group (to the extent paid in cash) by any personwho is not a member of the Group excluding any IPO Proceeds;

**plus** the cash proceeds of permitted subordinatedloans to members of the Group by any person who is not a member of the Group.

#### (ii)                                  “**ConsolidatedEBITDA**” for theSmurfit Kappa Funding Group for any period means the total operating profit ofthe Smurfit Kappa Funding Group for such period:

**before deducting** anydepreciation, depletion or amortisation whatsoever (including for the avoidanceof doubt amortisation of any goodwill arising from the Acquisition at the FirstDrawdown and **before deducting** the amortisationof any Acquisition and Refinancing Costs);

**before taking**into account allextraordinary items and all exceptional items (in each case whether positive ornegative) (including the restructuring costs and any fees, costs and expensesincurred by any member of the Group during relevant period in relation to theamendments to the Finance Documents pursuant to the Amendment and RestatementAgreement and in relation to the Approved IPO and the transactions required inconnection therewith);

**before deducting**advancecorporation tax, mainstream corporation tax, capital gain tax and theirequivalents in any relevant jurisdiction and any withholding by one member ofthe Smurfit Kappa Funding Group in respect of a payment to another member ofthe Smurfit Kappa Funding Group (without double counting);

**before taking into account**ConsolidatedTotal Net Interest Payable (including any gross-up payments in respect ofwithholding taxes for any Interest included in Consolidated Total Net InterestPayable) and any prepayment penalties and premiums;

**after adding back** (to the extentotherwise deducted) any loss against book value incurred by the Smurfit KappaFunding Group on the sale, lease or other disposal of any asset (other than thesale of trading stock), or on the revaluation thereof, during such period;

**after deducting** (to the extentotherwise included) any gain over book value arising in favour of the SmurfitKappa Funding Group on the sale, lease or other disposal of any asset (otherthan the sale of trading stock) during such period and any gain arising on anyrevaluation of any asset during such period;

**after deducting**the amount ofprofit of any entity in which any member of the Smurfit Kappa Funding Group hasan ownership interest (but which is not itself a member of the Smurfit KappaFunding Group) to the extent that the amount of such profit included in 

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the Accounts of the Smurfit Kappa Funding Groupexceeds the amount (net of any applicable withholding tax) received in cash bymembers of the Smurfit Kappa Funding Group through dividends or distributionsby such entity;

**after adding** net losses withrespect to investment in any person other than a Subsidiary during the periodto the extent the amount by which such net losses included in the Accounts ofSmurfit Kappa Funding Group exceed the amount of Cash or Cash Equivalentscontributed to such person on account of such net losses during the period;

**after adding**(to the extent notalready included) the proceeds from any business interruption insurance policy;

**after adding back**(to the extentotherwise deducted) the management fees paid in compliance with this Agreementand any Arranger’s fee paid to the Arrangers under the Fee Letter during suchperiod;

**after adding back**(to the extentotherwise deducted) any increase in pension fund provisions during such period,and after deducting (to the extent otherwise included) any decrease in pensionfund provisions during such period, to the extent, in each case, that suchpension fund provisions arise solely from adjustments to the method ofcalculating pension liabilities (including relevant investment assumptions)which the Smurfit Kappa Funding Group is required by law to use;

**after adding** any Cure Amount (asdefined in Clause 24.21 (*Right to Cure Financial Ratios*)) contributedin the Relevant Period to the Group pursuant to an exercise of the Cure Rightpursuant to Clause 24.21 (*Right to Cure Financial Ratios*) and, forthe avoidance of doubt, excludes any addition of the amount of any PermittedEquity Injections except as permitted pursuant to Clause 24.21 (*Right to Cure Financial Ratios*);

**before deducting** accounting charges related to share-basedpayments or any other employee incentive schemes, entered into as part ofequity based remuneration of employees of the Smurfit Kappa Funding Group; and

**before taking into account** any gains or losses for change in fair valuearising in respect of biological assets,

together with any otheradjustments requested by the Company and approved by the Facility Agent to bemade to the total operating profit of the Smurfit Kappa Funding Group providedthat such adjustment  would be consistentwith the treatment in Consolidated EBITDA as calculated immediately prior tothe adoption of IFRS as the Accounting Principles applicable to the SmurfitKappa Funding Group accounts.

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#### (iii)                               “**ConsolidatedNet Working Investment**”as at any Accounting Date (for which purpose the Closing Date shall be deemedto be an Accounting Date) means in respect of the Smurfit Kappa Funding GroupConsolidated Current Commercial Assets for the Smurfit Kappa Funding Groupminus Consolidated Current Commercial Liabilities for the Smurfit Kappa FundingGroup, all as at such Accounting Date. For this purpose:

(A)                              “**Consolidated Current Commercial Assets**” inrespect of the Smurfit Kappa Funding Group as at any Accounting Date means allof the current assets (other than Cash, Cash Equivalents, any credit receivablefor advance corporation tax, mainstream corporation tax, withholding taxsuffered (or their equivalents in any other jurisdiction), Interest receivableand repayments of Financial Indebtedness) of the Smurfit Kappa Funding Group asat such Accounting Date;

(B)                                “**Consolidated Current Commercial Liabilities**” in respect of the Smurfit KappaFunding Group as at any Accounting Date means all of the current liabilities(excluding Financial Indebtedness within paragraphs (a), (b), (c), (d), (e),(f), (h), (i), (j) or (k) (unless consisting of a liability in relation toitems falling within paragraph (g) without double counting of that definition)and any accrued or unpaid Interest and any liabilities in respect of advancecorporation tax, mainstream corporation tax, withholding tax, and dividends,redemptions and other distributions payable to shareholders of Smurfit KappaFunding (whether or not declared)) as at such Accounting Date.

#### (iv)                              “**ConsolidatedTotal Debt Service**”for the Smurfit Kappa Funding Group for any period means Consolidated Total NetInterest Payable for the Smurfit Kappa Funding Group for such period (butexcluding any net payment made to the providers of interest rate hedging inplace prior to the date of this Agreement pursuant to the close-out ofinterest rate hedging agreements in place prior to the date of this Agreement);

**plus**all scheduled FinancialIndebtedness of members of the Smurfit Kappa Funding Group which fell due forrepayment whether or not paid during or deferred for payment after such periodand/or was repaid during such period, but excluding any principal amount whichfell due under any overdraft or revolving credit facility (including withoutlimitation, the Revolving Credit Facility and any Ancillary Facility) and whichwas available for simultaneous redrawing according to the terms of suchfacility, and excluding any principal amount of Remaining Debt repaid to theextent refinanced from a drawing under another Remaining Debt Agreement.

#### (v)                                 “**ConsolidatedTotal Borrowings**”in respect of the Smurfit Kappa Funding Group at any time means the aggregateat that time of the Financial Indebtedness (including, for the avoidance ofdoubt, any 

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#### indebtedness under any bond, note or othersimilar instrument issued under any Permitted Receivables Securitisation, butexcluding: (i) Financial Indebtedness calculated on a mark-to-market basisunder any interest rate hedging agreement or instrument, including withoutlimitation under the Hedging Documents, (ii) (to the extent they are notrequired to be accounted for as borrowings under the Accounting Principles)performance bonds and guarantees provided in the ordinary course of business,but not provided in respect of Financial Indebtedness of a person and (iii) (tothe extent they are not required to be accounted for as borrowings under theAccounting Principles) guarantees provided to pension scheme trustees,administrators and like entities) of the members of the Smurfit Kappa FundingGroup from sources external to the Smurfit Kappa Funding Group less (for theperiod from the Closing Date to 30 September 2006) the amount of any costsincurred by the Smurfit Kappa Funding Group in connection with anyrestructuring during the period after the Closing Date to 30 September 2006.

#### (vi)                              **“Consolidated Total Net Borrowings”**inrespect of the Smurfit Kappa Funding Group at any time means Consolidated TotalBorrowings less the aggregate amount at that time of all Cash and CashEquivalents held by any member of the Smurfit Kappa Funding Group (includingany cash or cash equivalents which would constitute Cash or Cash Equivalentsbut for the fact that they are subject to a Security Interest).

#### (vii)                           **“Consolidated Total Net Interest Payable”**for the Smurfit Kappa Funding Group for any period means the Interest accruedduring such period as an obligation of any member or members of the SmurfitKappa Funding Group (whether or not paid or capitalised during or deferred forpayment after such period), less (i) any Interest income received and/orreceivable by the Smurfit Kappa Funding Group during such period and(ii) any Interest obligations to any other member of the Group.

#### (viii)                        **“Smurfit Kappa Funding Group”** means SmurfitKappa Funding and its Subsidiaries.

|  |   | (b) | (i) | All the terms defined in paragraph (a) above are to  be determined on a consolidated basis and (except as expressly included or  excluded in the relevant definition) in accordance with the Accounting  Principles and as determined from the consolidated Accounts of the Smurfit  Kappa Funding Group for the relevant periods delivered pursuant to  Clause 21.1 (*Financial statements*).  All non-euro amounts shall be  converted to euro at the rate used to calculate Consolidated EBITDA in the  relevant Accounts in accordance with the Accounting Principles |
|--|--------|-----|-----|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

(ii)                                  Forthe purposes of paragraph (a) above no item shall be deducted or credited morethan once in any calculation.

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## 22.3**                           Initialperiods**

For the purposes of calculating the Consolidated TotalNet Interest Payable, the Consolidated Total Net Interest Payable in respect ofthe period from 1 January 2006 to 30 September 2006 shall be deemed annualisedby multiplying the Consolidated Total Net Interest Payable for the 9 monthperiod to 30 September 2006 by 4/3.  Forthe purpose of calculating Consolidated EBITDA as at 30 September 2006, theConsolidated EBITDA of the combined Group (as calculated on the basis of thelast twelve months’ actual results shall be used).

# **23.****                               GENERALCOVENANTS**

## 23.1**                           General**

Each Obligor agrees to be bound by the covenants setout in this Clause relating to it and, where the covenant is expressed toapply to each member of the Group, each Obligor must ensure that each of itsSubsidiaries (other than members of the SPV Group unless otherwise specified inthis Clause) also performs that covenant.

## 23.2**                           Authorisations**

### (a)                                  EachObligor must promptly obtain, maintain and comply with the terms of any authorisationrequired under any law or regulation to enable it to perform its obligationsunder, or for the validity or enforceability of, any Transaction Document.

### (b)                                 Eachmember of the Group must obtain, maintain and comply with the terms of anyauthorisation required under any law or regulation to enable it to carry on itsbusiness where failure to do so would have a Material Adverse Effect.

## 23.3**                           Compliancewith laws**

Each member of the Group must comply in all respectswith all laws to which it is subject where failure to do so would have aMaterial Adverse Effect.

## 23.4**                           PariPassu ranking**

Each Obligor must ensure that its payment obligationsunder the Senior Finance Documents will at all times rank at least pari passuwith all its other present and future unsecured unsubordinated paymentobligations, except for obligations mandatorily preferred by law applying tocompanies generally in its jurisdiction of incorporation or in any jurisdictionin which it carries on its business.

## 23.5**                           Negativepledge**

### (a)                                  Exceptas provided below, no member of the Group may create or allow to exist anySecurity Interest on any of its assets.

### (b)                                 Paragraph (a)does not apply to:

#### (i)                                     anySecurity Interest created or evidenced by the Security Documents;

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#### (ii)                                  anySecurity Interest over the assets of members of the Target Group in existenceon the Closing Date, provided such Security Interest is released and dischargedwithin 60 days of the Closing Date;

#### (iii)                               anySecurity Interest in existence at the Closing Date securing any Remaining Debtlisted in Schedule 10 (*Remaining DebtAgreements*), but only to the extent that the principal amountsecured by that Security Interest has not been increased or its maturity dateextended in contemplation of, or since, the Closing Date, and replacementsecurity over the same assets securing any permitted amendments or refinancingsof Remaining Debt;

#### (iv)                              anySecurity Interest comprising a netting or set-off arrangement (and ifcustomary in the relevant jurisdiction, any other Security Interest over cashbalances granted in favour of the bank providing clearing arrangements) enteredinto by a member of the Group in the ordinary course of its bankingarrangements for the purpose of netting debit and credit balances, providedthat this does not permit credit balances of Obligors to be netted with debitbalances of members of the Group which are not Obligors or for credit balancesof Obligors to be charged to secure any liabilities of members of the Groupwhich are not Obligors to the extent that loans by Obligors to such members ofthe Group which are not Obligors (or guarantees by Obligors in respect of theirobligations) would not be permitted under Clause 23.14 (*Loans out*) (or Clause 23.12 (*Third party guarantees*));

#### (v)                                 anynetting of payments under permitted Treasury Transactions;

#### (vi)                              anylien arising by operation of law or by agreement to substantially the sameeffect and in the ordinary course of business and not as a result of anydefault or omission by any member of the Group;

#### (vii)                           anySecurity Interest over and existing at the time of acquisition on an asset ofany person, acquired by a member of the Group after the First Drawdown Date butonly to the extent that the principal amount secured by that Security Interesthas not been incurred or increased or its maturity date extended incontemplation of, or since, the acquisition;

#### (viii)                        anySecurity Interest over goods and documents of title thereto arising underdocumentary credit transactions entered into in the ordinary course of tradeand on terms customary in that trade;

#### (ix)                                aretention of title arrangement over goods acquired in the ordinary course oftrade where the purchase of the asset is not in breach of  paragraph (c)(iii) below;

#### (x)                                   anySecurity Interest under finance leases, hire purchase agreements, conditionalsale agreements or other agreements for the acquisition of assets on deferredpayment terms to the extent such Security Interest relates only to the assetleased or acquired and provided that the 

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#### FinancialIndebtedness secured thereby is permitted under the terms of this Agreement;

#### (xi)                                anySecurity Interest created with the prior written consent of the Facility Agent(acting on the instructions of the Majority Lenders);

#### (xii)                             anySecurity Interest granted in favour of the bondholders of the 2025 Bonds to theextent such Security Interests are required by the terms of the indenture forsuch bonds by reason of the granting of the Security Interests under theSecurity Documents and provided such Security Interests are also charged in favourof the Finance Parties under the Security Documents and are subject to theterms of the Priority Agreement;

#### (xiii)                          anySecurity Interest securing the Bond Refinancing Debt but only to the extent itis over assets also charged in favour of the Finance Parties under the SecurityDocuments and subject to such Security Interests being subject to the PriorityAgreement;

#### (xiv)                         anySecurity Interest granted pursuant to or in connection with a PermittedReceivables Securitisation;

#### (xv)                            anySecurity Interest in property situated in any country in Latin America orAlbania, Belarus, Bosnia & Herzegovina, Bulgaria, Croatia, Czech Republic,Estonia, Georgia, Hungary, Latvia, Lithuania, Macedonia, Moldova, Romania,Serbia & Montenegro, Russia, Slovakia, Slovenia, Turkey or the Ukraine, inwhich the Group has operations from time to time as permitted by this Agreement(not being over any asset subject to any Security Interest under the SecurityDocuments and not being over any asset of the Obligors or any of the PrincipalProperties) securing Remaining Debt owed by a member of the Group in suchjurisdiction the aggregate amount of which does not exceed €75,000,000 (or itsequivalent) at any time;

#### (xvi)                         rightsover cash deposits granted in favour of a landlord for the purposes of securingperformance of rent and service charge obligations under licences, subleases orleases of real property not prohibited by this Agreement in respect of theGroup;

#### (xvii)                      statutoryliens imposed by the taxing authorities of any applicable jurisdiction inrespect of any taxes, assessments or levies which are being contested in goodfaith by appropriate proceedings, provided that adequate reserves with respectto such contested taxes are maintained on the books of the appropriate members ofthe Group in conformity with the Accounting Principles;

#### (xviii)                   SecurityInterests securing intra-Group loans if claims under such SecurityInterests and intra-Group loans are the subject of Transaction Security;

#### (xix)                           CashCover relating to a Bank Guarantee or Ancillary Facility;

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#### (xx)                              SecurityInterests over the properties at Alcalá de Henares, Madrid, Canovelles,Barcelona and Quart de Poblet, Valencia in connection with certain litigationin Spain to which certain members of the Smurfit Kappa Group are party;

#### (xxi)                           anySecurity Interest granted by Kappa Van Dam B.V. to a developer over real estateowned by it in Helmond, The Netherlands to secure development costs of a newsite in Helmond; and

#### (xxii)                        inaddition to the foregoing, any Security Interest securing indebtedness theamount of which (when aggregated with the amount of any other indebtednesswhich has the benefit of a Security Interest not permitted under the precedingsub-paragraphs) does not exceed €80,000,000 (or its equivalent) at anytime;

### (c)                                  Nomember of the Group may:

#### (i)                                     sell,transfer or otherwise dispose of any of its assets on terms where it is or maybe or may be required to be leased to or re-acquired or acquired by amember of the Group or any of its related entities unless (1) the disposal (notbeing of real property over which the Finance Parties have a mortgage or chargeunder the Security Documents registered at the relevant land registry or titlesoffice) and lease of the asset occurs within 180 days of the date ofacquisition of the asset and provided that the disposal, lease, acquisition andany related Financial Indebtedness is otherwise permitted under this Agreementor (2) the disposal is in connection with a Permitted ReceivablesSecuritisation;

#### (ii)                                  sell,transfer or otherwise dispose of any of its receivables (unless the sale,transfer or other disposal (A) is to an Obligor and is in accordance with pastpractice of the Group (and shall include, for the avoidance of doubt, the extensionof current invoice discounting practices to new Group members) or (B) is by amember of the Group which is not an Obligor to another member of the Groupwhich is not an Obligor or (C) is by an Obligor and is a disposalpermitted pursuant to Clause 23.6 (*Disposals*)or (D) is pursuant to or in connection with a Permitted ReceivablesSecuritisation (and for the avoidance of doubt the Net Securitisation Proceedsof which shall be subject to the application of Subclause 11.5 (*Mandatory prepayment — Permitted Securitisation*))or (E) is the discounting of bills and notes in the ordinary course of businesswhere the resulting Financial Indebtedness is permitted by Clause 23.7 (*Financial Indebtedness*) or (F) is thefactoring of trade receivables in an aggregate amount not exceeding €30,000,000at any time outstanding; or

#### (iii)                               purchaseany asset on retention of title terms (other than hire purchase arrangementsotherwise permitted by this Agreement),

in circumstances where the transaction is entered intoprimarily as a method of raising Financial Indebtedness or of financing theacquisition of an asset.

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## 23.6**                           Disposals**

### (a)                                  Exceptas provided in paragraph (b) below, no member of the Group may, either in asingle transaction or in a series of transactions and whether related or notand whether voluntarily or involuntarily, dispose of all or any part of itsassets.

### (b)                                 Paragraph(a) does not apply to any disposal:

#### (i)                                     oftrading stock or cash made in the ordinary course of the trading activities ofthe disposing entity or for payments made under the Senior Finance Documents orthe Securities;

#### (ii)                                  ofassets (other than shares or securities and interests in real property) on arm’slength terms in exchange for (or where and to the extent the proceeds of saleare used to acquire) other assets comparable or superior as to type, value,quality and title or otherwise used in the business of the Group, provided thata fixed asset disposed of may only be exchanged or replaced by another fixedasset;

#### (iii)                               ofsurplus, obsolete or redundant vehicles, plant and equipment, on arm’s lengthterms;

#### (iv)                              ofNon-Core Assets and Non-Core Businesses (or all of the shares in acompany which only owns Non-Core Assets and/or which only carries on aNon-Core Business) on arm’s length terms and provided that the aggregatevalue of Non-Core Assets and Non-Core Businesses (or shares in anysuch company) which have been disposed of from the date of this Agreement maynot exceed €250,000,000 (or its equivalent) when aggregated with the value ofthe assets or businesses disposed of under Synergy Disposals after the datehereof;

#### (v)                                 thatis a Synergy Disposal provided that the aggregate value of Synergy Disposalsfrom the date of this Agreement may not exceed €250,000,000 (or its equivalent)when aggregated with the value of the Non-Core Assets or Non-Core Businessesdisposed of after the date hereof;

#### (vi)                              ofassets (1) to an Obligor, or (2) by a non-Obligor to any member of theGroup or (3) by an Obligor to a non-Obligor where, in the case of (3)only, one of the following conditions is met: (A) where an equivalent SecurityInterest as was originally in place over the asset being sold, transferred ordisposed of is given over the asset by the new owner and if necessary andreasonably practicable (as determined by the Company or the new owner, actingreasonably) such new owner grants a guarantee in favour of the Lenders withsole recourse to the relevant asset or (B) the new owner of the asset gives aSecurity Interest in favour of an Obligor which is on-assigned to thebenefit of the Lenders and either (x) the Security Agent and the Company agree(each acting reasonably) that the grant of a direct Security Interest in favourof the Lenders is impractical or (y) the Company elects not to 

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#### grant a directSecurity Interest over the asset and the aggregate consideration receivable forsuch disposals in respect of which the Company has made such elections does notexceed €50,000,000 or its equivalent in any annual Accounting Period of theParent; provided further that where the asset to be sold is subject toTransaction Security, it will be transferred subject to the existing SecurityInterest if the transfer is within the same jurisdiction unless the Companyreasonably decides that it would be impractical to leave it in place in whichcase it will be released; or (C) the disposal is in accordance with theStructure Memorandum or Synergies Report, Business Plan or a PermittedReorganisation or (D) the disposal is on commercially reasonable terms (asdetermined by the Company or the disposing Obligor, acting reasonably) and theaggregate consideration receivable for such disposals does not exceed, in thefirst 2 years from the Closing Date, €150,000,000 and thereafter €25,000,000 orits equivalent in any annual Accounting Period of the Parent and providedfurther that such baskets in this sub-paragraph (E) shall be increased bythe aggregate amount of disposals made by non-Obligors to Obligors afterthe date hereof;

#### (vii)                           ofCash Equivalents for cash or in exchange for other Cash Equivalents;

#### (viii)                        beingthe leasing or sub-leasing of vacant property on arm’s length terms;

#### (ix)                                withthe prior written consent of the Facility Agent (acting on the instructions ofMajority Lenders);

#### (x)                                   bythe licence of Intellectual Property Rights;

#### (xi)                                toother members of the Group specifically provided for in the StructureMemorandum;

#### (xii)                             ofcash where such disposal does not breach the other terms of the Senior FinanceDocuments;

#### (xiii)                          ofassets to Joint Ventures to the extent permitted by Subclause 23.27 (*Joint Ventures*);

#### (xiv)                         ofassets on arm’s length terms and for cash otherwise permitted bySubclause 23.5(c) (*Negative pledge*);

#### (xv)                            consistingof set-off or netting arrangements under permitted Treasury Transactions;

#### (xvi)                         toanother member of the Group as part of a Permitted Reorganisation;

#### (xvii)                      ofshares in entities which are not a direct or indirect wholly-ownedSubsidiary of the Group (and are not Obligors or Material Subsidiaries)pursuant to co-sales, take-along or pre-emption arrangementsexisting 

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#### prior to thedate of this Agreement where any member of the Group can be required by a thirdparty to dispose of such shares;

#### (xviii)                   pursuantto or in connection with a Permitted Receivables Securitisation;

#### (xix)                           thatare Required Regulatory Disposals;

#### (xx)                              providedfor in the Business Plan;

#### (xxi)                           offixed assets where the proceeds of the disposal are used within 12 monthsof that disposal (or committed to be used within 12 months and are so usedwithin 18 months of that disposal) for either (A) the purchase of replacementfixed assets useful to the business or (B) the making of acquisitions permittedpursuant to Clause 23.10 (*Acquisitions*);

#### (xxii)                        onarm’s length terms where the consideration receivable (when aggregated with theconsideration for any other disposal not allowed under the precedingparagraphs) does not exceed €25,000,000 or its equivalent in any annualAccounting Period of the Parent; or

#### (xxiii)                     pursuantto the transactions described in the definition of Approved IPO and in the IPOStructure Paper or, in the case of the Parent, of shares to a Holding Company.

### (c)                                  Nomember of the Group may enter into any put or call option or similararrangement under which a person that is not a member of the Group has apresent or contingent right to require a member of the Group to dispose of orto acquire all or any part of such person’s shares or assets, where thedisposal or acquisition would breach the terms of any of the Senior FinanceDocuments (other than (a) put or call option or similar arrangements existingprior to the date hereof, including arrangements to acquire minority interestsin Cajas de Carton Sultana S.A de C.V., Industria Cartonera Dominicana,Fustelpak S.p.A., Carton de Venezuela C.A., Carton de Colombia, S.A.and Celulosa y Papel de Colombia, S.A., and (b) put and call arrangementsfacilitating the acquisition of minority interests in a member of the Group bya member of a Group).  If sucharrangements are entered into as part of an arrangement having the commercialeffect of a borrowing, the effective borrowing concerned and the exercise orperformance of any such option must not breach any provision of this Agreement.

### (d)                                 TheParent shall not, without prior written consent of the Majority Lenders,dispose of any of its shares in SPV Ireland and shall procure that SPV Irelanddoes not dispose of any of its shares in SPV Offshore or SPV B.V.

## 23.7**                           FinancialIndebtedness**

### (a)                                  Exceptas provided in paragraph (b) below, no member of the Group may incur or permitto be outstanding any Financial Indebtedness or enter into any off-balancesheet financing arrangement.

 

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### (b)                                 Paragraph(a) does not apply to:

#### (i)                                     FinancialIndebtedness incurred under the Senior Finance Documents, the Securities andany Bond Refinancing Debt;

#### (ii)                                  anyFinancial Indebtedness of any person (the “**acquiredperson**”) acquiredby a member of the Group after the First Drawdown Date which is incurred underarrangements in existence at the date of acquisition, but not incurred orincreased or its maturity date extended in contemplation of, or since, thatacquisition provided that notwithstanding anything else contained in thisAgreement no member of the Group (excluding the acquired person and itsSubsidiaries as at the date of acquisition) shall guarantee, indemnify orotherwise become liable for such Financial Indebtedness, provide Cash Cover inrespect of or grant any Security Interest as security for such FinancialIndebtedness;

#### (iii)                               anyFinancial Indebtedness under finance or capital leases of vehicles, plant,equipment or computers and any Financial Indebtedness under conditional saleagreements or other agreements for the acquisition of assets on deferredpayment terms, provided that the aggregate capital value of all such assets soleased or acquired under outstanding leases or outstanding conditional saleagreements or agreements for the acquisition of assets by members of the Groupdoes not exceed €150,000,000;

#### (iv)                              anyFinancial Indebtedness arising under any Treasury Transaction permittedpursuant to Subclause 23.13 (*TreasuryTransactions*);

#### (v)                                 anyFinancial Indebtedness arising under any loan permitted underSubclause 23.14 (*Loans out*)and Subclause 23.16 (*Dividends*);

#### (vi)                              anyFinancial Indebtedness arising under the loan of €125,000,000 by SPV B.V. madeunder the SPV B.V./Parent Loan Agreement;

#### (vii)                           anyFinancial Indebtedness arising under guarantees permitted underSubclause 23.12 (*Third party guarantees*);

#### (viii)                        anyFinancial Indebtedness to the extent covered by a Documentary Credit or aletter of credit or guarantee issued under an Ancillary Facility;

#### (ix)                                anyFinancial Indebtedness consisting of the Remaining Debt in an aggregateprincipal amount at any time outstanding not exceeding €190,000,000;

#### (x)                                   anyFinancial Indebtedness under the Cash Pooling Facilities in an aggregateprincipal amount at any time not exceeding €60,000,000;

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#### (xi)                                anyFinancial Indebtedness consisting of letters of credit and bank guarantees tosupport rental obligations, performance bonds or similar obligations;

#### (xii)                             anyFinancial Indebtedness required by the Structure Memorandum;

#### (xiii)                          anyFinancial Indebtedness incurred or outstanding pursuant to or in connectionwith a Permitted Receivables Securitisation;

#### (xiv)                         anyFinancial Indebtedness incurred by members of the Group to another member ofthe Group to the extent the payment of dividends or other payments arecontemplated under Clause 23.16(a) (*Dividends*)(without double-counting); or

#### (xv)                            inaddition to the aforementioned, Financial Indebtedness of members of the Groupwhich in aggregate does not exceed €50,000,000 or its equivalent at any time.

## 23.8**                           Changeof business**

The Parent must ensure that no substantial change ismade to the general nature of the business of the Group taken as a whole fromthat carried on at the date of this Agreement.

## 23.9**                           Mergers**

No member of the Group may enter into anyamalgamation, demerger, merger or reconstruction other than a PermittedReorganisation, an acquisition by way of merger provided that the acquisitionis permitted under Subclause 23.10 (*Acquisitions*)and other than any amalgamation, demerger, merger, reorganisation orreconstruction contemplated by the Structure Memorandum or the IPO StructurePaper.

## 23.10**                     Acquisitions**

### (a)                                  Exceptas provided below, no member of the Group may acquire or subscribe for sharesin or securities of any company or acquire any business.

### (b)                                 Paragraph(a) does not apply to:

#### (i)                                     theAcquisition;

#### (ii)                                  acquisitionsof members of the Group and incorporations of companies referred to in theStructure Memorandum or as part of a Permitted Reorganisation;

#### (iii)                               theincorporation of wholly owned Subsidiaries;

#### (iv)                              theacquisition of Cash Equivalents for treasury management purposes;

#### (v)                                 thesubscription for shares in a member of the Group which immediately prior to thesubscription was its direct Subsidiary, provided that if the shares of suchSubsidiary are charged under any 

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#### SecurityDocument the relevant shares are upon acquisition charged under the SecurityDocuments;

#### (vi)                              theacquisition of minority interests on arm’s length terms in members of the Groupprovided that the aggregate consideration for all such acquisitions does notexceed €25,000,000 in any annual Accounting Period of the Parent;

#### (vii)                           theacquisition of shares in any Joint Venture to the extent permitted bySubclause 23.27 (*Joint Ventures*);

#### (viii)                        theacquisition of securities (not being the Cash Pay Securities) issued by amember of the Group evidencing Financial Indebtedness of such member of theGroup to the extent such acquisition does not breach any of the other terms ofthe Senior Finance Documents;

#### (ix)                                theacquisition of shares in a trade debtor which is insolvent in exchange for therelease of a trade debt where such exchange is required by law or court orderand not as a result of an election or agreement by a member of the Group;

#### (x)                                   acquisitionswith the prior written consent of the Facility Agent (acting on the instructionsof the Majority Lenders);

#### (xi)                                anyacquisition by a member of the Group of all or part of the issued share capitalor other ownership interest or of the business or assets (being assets thatconstitute a business or an operating unit or division of a business) (the “**Proposed Target**”) of any Person which priorto such acquisition was not owned by a member of the Group where the ProposedTarget is carrying on a similar or complementary business to the business ofthe Group, and the making of investments in such entities as part of suchacquisition (comprising the making of loans and contributions (in cash or inkind) and granting of guarantees)) and where:

(A)                              priorto the occurrence of a Qualifying IPO, the acquisition has been financedentirely from drawings under the Restructuring Loan Facility  and the aggregate consideration for theacquisition (including Financial Indebtedness repaid or which remainsoutstanding at the date of the acquisition), taken together with otheracquisitions financed entirely from drawings under the Restructuring LoanFacility, does not exceed €100,000,000 or its equivalent in any annualAccounting Period of the Parent and in the case of such acquisition the Parenthas delivered to the Facility Agent:

(1)                                  certifiedtrue copies of financial, tax and legal due diligence undertaken in connectionwith the acquisition; and

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(2)                                  acertificate confirming that, on the basis of pro forma calculations for suchacquisition, the Group would have been in compliance with the financialundertakings in Clause 22 (*FinancialCovenants*) during the 12 month period preceding the acquisitionand is expected to be in compliance with such financial undertakings for the 12months following the acquisition, in each case taking into account reasonablyexpected synergies and cost savings; or

(B)                                priorto the occurrence of a Qualifying IPO, the acquisition has been funded fromsources other than entirely from the Restructuring Loan Facility and theaggregate consideration for the acquisition (including Financial Indebtednessrepaid or which remains outstanding at the date of the acquisition), takentogether with other acquisitions not financed using drawings under theRestructuring Loan Facility, does not exceed €100,000,000 or its equivalent inany annual Accounting Period of the Parent and in the case of such acquisition:

(1)                                  unlessthe consideration (including Financial Indebtedness repaid or which remainsoutstanding at the date of the acquisition) is less than €10,000,000, theCompany delivers a certificate signed by a director that:

(I)                                    forthe most recent complete 12 month period preceding the acquisition theProposed Target had positive earnings before interest, tax, depreciation andamortisation (calculated on the same basis as Consolidated EBITDA) after takingaccount of reasonably expected synergies,

(II)                                ona pro forma basis for the acquisition the Group would have been in compliancewith the financial undertakings in Clause 22 (*Financial**Covenants*)at the last Quarter Date taking into account cost savings and synergiesreasonably anticipated as a result of the acquisition,

(III)                            theratio of Consolidated Total Net Borrowings to Consolidated EBITDA after givingeffect to the acquisition (taking into account reasonably anticipated synergiesand cost savings as a result of the acquisition) would not exceed the lower of:(x) the ratio level with which the Group was required to comply pursuant toClause 22.1(iii) (*Financial Undertakings*)on the Accounting Date immediately preceding the acquisition and (y) the ratioof Consolidated Total Net Borrowings to Consolidated EBITDA on the Closing Date(calculated using the Consolidated 

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EBITDA for the Group and the Target Group in thepreceding 12 month period) in each case calculated as if the relevantacquisition had been completed on the first day of the 12 month periodending on each of the periods referred to in (x) and (y),

(2)                                  ifthe consideration for the acquisition (including Financial Indebtedness repaidor which remains outstanding at the date of the acquisition) exceeds €20,000,000,the Parent delivers a certificate signed by a director confirming that on thebasis of pro forma calculations taking into account the acquisition andreasonably expected synergies and costs savings the ratio of Consolidated TotalNet Borrowings to Consolidated EBITDA of the Group is expected to be incompliance with Clause 22.1(iii) (*Financial Undertakings*)for the next 12 months; and

(3)                                  noEvent of Default has occurred and is outstanding on the date of the acquisitionand no Default would occur as a result of the acquisition; or

(C)                                afterthe occurrence of a Qualifying IPO, the aggregate consideration for theacquisition (including Financial Indebtedness repaid or which remainsoutstanding at the date of the acquisition), taken together with otheracquisitions financed in any annual Accounting Period of the Parent does notexceed €500,000,000 (such basket to be increased by the amounts of any retainedExcess Cash Flow, any Capital Expenditure permitted to be carried forwardpursuant to Clause 22.1 (*Financial Undertakings*),any disposal proceeds not required to be applied in prepayment of theFacilities in accordance with Clause 11.4 (*Mandatory prepayment —disposals, insurance, warranty and report claims*) and cash proceedsof any permitted subordinated borrowings or new issues of equity), givingcredit (as a deemed offset to the purchase price) of an amount equal to thereduction (if any) in Capital Expenditure spending as a result of making suchacquisition (it being acknowledged that a reduction in Capital Expenditurewhich is identified for this purpose and applied in such acquisitions will notthereafter be capable of being applied towards Capital Expenditure), and in thecase of such acquisition (unless the consideration (including the FinancialIndebtedness repaid or which remains outstanding at the date of theacquisition) is less than €10,000,000), the Parent has delivered to theFacility Agent:

(1)                                  certifiedtrue copies of financial, tax and legal due diligence undertaken in connectionwith the acquisition; and

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(2)                                  acertificate confirming that, on the basis of pro forma calculations for suchacquisition, the Group would have been in compliance with the financialundertakings in Clause 22 (*FinancialCovenants*) during the 12 month period preceding the acquisitionand is expected to be in compliance with such financial undertakings for the 12months following the acquisition, in each case taking into account reasonablyexpected synergies and cost savings; and

provided that in each case (aa) the Proposed Targetdoes not have material contingent liabilities which have not been taken into accountin the purchase price for the acquisition or in respect of which the Group hasnot received indemnities or insurance in either case on and subject tocommercially reasonable terms and conditions and (bb) no more than, prior tothe occurrence of a Qualifying IPO, €200,000,000, and post the occurrence of aQualifying IPO, €350,000,000 may be outstanding at any time from the RevolvingFacility on account of drawings made to fund acquisitions (other than theAcquisition).

## 23.11**                     Environmentalmatters**

### (a)                                  Eachmember of the Group must ensure that:

#### (i)                                     itis, and has been, in compliance with all Environmental Law and EnvironmentalApprovals applicable to it;

#### (ii)                                  itobtains all requisite Environmental Approvals; and

#### (iii)                               itimplements (or if already in place, maintains) procedures to monitor compliancewith and to prevent liability under any Environmental Law,

in each case where failure to do so would have aMaterial Adverse Effect.

### (b)                                 EachObligor must promptly upon becoming aware notify the Facility Agent of:

#### (i)                                     anyEnvironmental Claim current, or to its knowledge, pending or threatened inwriting; or

#### (ii)                                  anycircumstances reasonably likely to result in an Environmental Claim,

which, if substantiated, would have a Material AdverseEffect.

## 23.12**                     Thirdparty guarantees**

### (a)                                  Inthis Subclause, a guaranteeincludes any guarantee or an indemnity or other assurance against loss as wellas any agreement to maintain the solvency of any person.

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### (b)                                 Nomember of the Group may incur or allow to be outstanding any guarantee by suchmember of the Group or any of its Subsidiaries (excluding any member of the SPVGroup) in respect of the liabilities or obligations of any person.

### (c)                                  Paragraph (b)does not apply to:

#### (i)                                     anyguarantee arising under the Senior Finance Documents;

#### (ii)                                  anyguarantee comprising a netting or set-off arrangement entered into by amember of the Group in the ordinary course of its banking arrangements for thepurposes of netting debit and credit balances of that member of the Group or ofother members of the Group, provided that such arrangement does not permitcredit balances of Obligors to be netted with debit balances of members of theGroup which are not Obligors to the extent that loans by Obligors to suchmembers of the Group which are not Obligors (or guarantees by Obligors inrespect of their obligations) would not be permitted under Clause 23.14 (*Loans**out*)(and, for the avoidance of doubt, the amount of any such guarantees for suchnetting or set-off arrangements by an Obligor for the benefit of a non-Obligorwill be aggregated with the amount of any relevant loans for the purpose ofdetermining compliance with permitted loan baskets in Clause 23.14 (*Loans out*));

#### (iii)                               theSenior Subordinated Guarantee and any guarantee provided by the Company infavour of Smurfit Kappa Funding with respect to any Financial Indebtednessincurred by Smurfit Kappa Funding to refinance the 2012 Senior Cash Pay Notes;

#### (iv)                              guaranteesin existence on the First Drawdown Date (or any replacement or renewals thereofor any guarantee given by the same members of the Group in respect of anypermitted refinancing of the obligations guaranteed by such existing guaranteeprovided that any limit on the amount guaranteed is not subsequentlyincreased);

#### (v)                                 customaryindemnities to purchasers under sale agreements for any disposal that ispermitted under Subclause 23.6 (*Disposals*);

#### (vi)                              theendorsement of negotiable instruments in the ordinary course of trade;

#### (vii)                           guarantees,indemnities and performance bonds guaranteeing performance by a member of theGroup under any contract (not being a contract incurring FinancialIndebtedness) entered into in the ordinary course of business or lease ofpremises entered into in the ordinary course of business;

#### (viii)                        guaranteesin respect of the Financial Indebtedness of members of the Group which areObligors where such Financial Indebtedness is permitted by the terms of thisAgreement (but, without prejudice to 

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#### (iii) above,not being given in respect of any obligation or liability of the Parent or SmurfitKappa Funding);

#### (ix)                                guaranteesof Joint Ventures to the extent permitted by Subclause 23.27 (*Joint Ventures*);

#### (x)                                   guaranteesin respect of third party loans to directors, officers, managers andconsultants employed by members of the Group or pursuant to any employee ormanagement incentive or stock option plan referred to in Subclause **Error! Reference source not found.** (*Sharecapital*) in an aggregate amount (when aggregated with any loansunder Subclause 23.14(b)(viii)(A) (*Loansout*)) not exceeding €15,000,000;

#### (xi)                                guaranteesin favour of the holders of the 2025 Bonds to the extent required by theindenture under which they were issued;

#### (xii)                             guaranteesgiven in respect of the Bond Refinancing Debt and customary underwritingguarantees and undertakings relating to any Refinancing Bonds;

#### (xiii)                          guaranteesgiven by a member of a Group in respect of the obligations of another member ofsuch Group and would, if it were a loan by that member of the Group to theother member of that Group, be permitted under Clause 23.14 (*Loans out*) (and, for the avoidance ofdoubt, the amount of any such guarantees will be aggregated with the amount ofany relevant loans for the purpose of determining compliance with permittedloan baskets in Clause 23.14 (*Loans out*));

#### (xiv)                         guaranteesgiven to a landlord of a member of the Group in relation to lease agreementsentered into in the ordinary course of business including:

(A)                              aguarantee or performance bond given by a member of a Group for the obligationsof another member of such Group under such agreements; or

(B)                                aguarantee given by a member of a Group in respect of a guarantee, indemnity,bond, standby or documentary letter of credit or other instrument issued by abank or financial institution (on normal commercial terms) to support theobligations of a member of such Group under such agreements;

#### (xv)                            guaranteesgiven with the consent of the Facility Agent (acting on the instructions of theMajority Lenders);

#### (xvi)                         guaranteesrequired pursuant to the transactions described in the Structure Memorandum;

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#### (xvii)                      theagreements made by the Company in the registration rights or purchaseagreements relating to the Securities or Bond Refinancing Debt;

#### (xviii)                   anyguarantees granted pursuant to or in connection with a Permitted ReceivablesSecuritisation;

#### (xix)                           guaranteesprovided by the Company in relation to its subsidiaries incorporated in Irelandand the Netherlands, in each case solely for the pupose of satisfying, and tothe extent required to satisfy, the requirements of Irish and Dutch law whichexempt companies from preparing and filing their own audited accounts if suchparent company guarantees are filed;

#### (xx)                              customaryindemnities granted in favour of the underwriters on any IPO; and

#### (xxi)                           guarantees(not being given in respect of any obligation or liability of the Parent orSmurfit Kappa Funding or given in respect of the Smurfit Kappa Funding LoanAgreements) not otherwise permitted by any of the other paragraphs where theaggregate liability actual or contingent of members of the Group does notexceed €40,000,000 at any time.

## 23.13**                     Treasurytransactions**

### (a)                                  Within120 days of the Closing Date, the Company must have entered into interest ratehedging agreements hedging at least 50% of the Term Loan Facilities for atleast 2 years provided that the Company may maintain its existing hedgingprovided that the existing hedge providers accede to the Priority Agreement(within such 120 day period).  TheLenders hereby consent to such accession. The Company may not terminate such agreements within such 2 year periodwithout the prior approval of the Majority Lenders (save as permitted by thePriority Agreement).  The Company mayamend and/or extend such hedging agreements or enter into additional hedgingarrangements on terms satisfactory to the Facility Agent acting reasonably, *provided* that following the occurrence of a Qualifying IPOthe satisfaction of the Facility Agent with the terms shall not be required and*provided* that the Company may, within120 days after the Closing Date, amend the terms of the hedging existing on theClosing Date in the Target Group, without the consent of the Facility Agent, tothe extent such amendments are required to conform such hedging agreements withthe terms of the hedging agreements to which the Company and other members ofthe Smurfit Kappa Group are party or other changes as are not materiallyprejudicial to the interests of the Lenders (as a whole) under the SeniorFinance Documents or the Hedging Documents.

### (b)                                 Nomember of the Group may enter into any Treasury Transactions after the date ofthis Agreement, other than:

#### (i)                                     TreasuryTransactions existing at the Closing Date as amended and/or extended (but notincreased) from time to time;

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#### (ii)                                  interestrate or currency hedging transactions to hedge actual or projected interestrate exposures or currency exposures of the Group in respect of the Facilitiesand other permitted Financial Indebtedness of the Group and, if secured by theSecurity Documents, these transactions shall be documented by the HedgingDocuments;

#### (iii)                               spotforeign exchange contracts entered into in the ordinary course of business;

#### (iv)                              anyTreasury Transaction entered into for the hedging of actual or projected realexposures arising in the ordinary course of trading activities of a member ofthe Group for a period, prior to the occurrence of a Qualifying IPO, of notmore than 24 months and, after the occurrence of a Qualifying IPO, of not morethan 48 months and not for speculative purposes and, if secured by the SecurityDocuments, documented by the Hedging Documents; and

#### (v)                                 TreasuryTransactions entered into pursuant to this Clause 23.13(a).

## 23.14**                     Loansout**

### (a)                                  Exceptas provided below, no member of the Group may be the creditor in respect of anyFinancial Indebtedness.

### (b)                                 Paragraph(a) does not apply to:

#### (i)                                     tradecredit extended by any member of the Group to its customers or suppliers onnormal commercial terms and in the ordinary course of its trading activities(including where any such trade credit is extended into a term loan or noteunder any law or court order on the insolvency of any trade debtor and not as aresult of an election or agreement by any member of the Group);

#### (ii)                                  loansoutstanding prior to the Closing Date as amended and/or refinanced from time totime provided that the aggregate principal amount outstanding of all such loansdoes not increase from the amount outstanding at the Closing Date;

#### (iii)                               loansmade by one member of the Group to another member of the Group provided that ifthe lender is an Obligor, (A) the borrower must also be an Obligor, or (B) theborrower must be a Group member whose shares have been pledged to the SecurityAgent pursuant to the Transaction Security and the aggregate amount outstandingat any time of such loans does not exceed €100,000,000, or (C) the loan must bemade via a Group treasury vehicle being an Obligor incorporated in theNetherlands or Ireland and who has entered into an assignment of its loanreceivables to the Security Agent pursuant to the Transaction Security and theaggregate amount outstanding at any time of such loans does not exceed€250,000,000, or (D) the borrower must have given security for such loan to anObligor who has entered into an assignment of its loan receivable to theSecurity Agent pursuant to the 

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#### TransactionSecurity and (x) the aggregate amount outstanding at any time of such loansdoes not exceed €250,000,000 in which case consent of the Facility Agent is notrequired or (y) unless the Facility Agent, acting reasonably, agrees that itwould be impractical for the borrower to give security directly to the SecurityAgent in respect of such loans and when the Facility Agent so agrees the basketin (x) it will not be depleted by the relevant amount.

#### (iv)                              loansmade by one member of the Group to another member of the Group (not being theParent or Smurfit Kappa Funding) identified in the Structure Memorandum or theFunds Flow Memorandum including in respect of the Debt Pushdown;

#### (v)                                 loansfrom the Company to the Parent and/or Smurfit Kappa Funding to enable theParent and/or Smurfit Kappa Funding and/or its Holding Companies to pay capitalduty in accordance with the Funds Flow Memorandum;

#### (vi)                              loansmade by Smurfit Kappa Funding to the Company under the Smurfit Kappa FundingLoan Agreements, including any refinancing thereof;

#### (vii)                           loansto SPV Ireland or SPV Offshore in respect of the sale of SPV Assets or otherloans (in an aggregate amount not exceeding €10,000,000) to a member of the SPVGroup;

#### (viii)                        loansto directors, officers, managers and consultants employed by members of theGroup and to employees of members of the Group (A) pursuant to any employee ormanagement incentive or stock option plan referred to in Subclause **Error! Reference source not found.** (*Share capital*) in an aggregate amount(when aggregated with any guarantees under Subclause 23.12(c)(x) (*Third party guarantees*)) not exceeding€15,000,000 (and loans by the Company to the Parent and/or Smurfit KappaFunding to fund such loans if made by the Parent and/or Smurfit Kappa Funding);and (B) otherwise in an aggregate amount not exceeding €2,000,000 or itsequivalent, in each case outstanding at any time;

#### (ix)                                loansbetween members of the Group and between members of the Target Groupoutstanding on the Closing Date;

#### (x)                                   (ifthe loan is permitted by the Priority Agreement) loans to Smurfit Kappa Fundingin an aggregate amount in any twelve month period not exceeding (whenaggregated with the amount of any dividends paid by the Company to SmurfitKappa Funding and any interest or other amount paid in cash by the Company toSmurfit Kappa Funding under the Smurfit Kappa Funding Loan Agreements in thattwelve month period and any management or advisory fee or any other amount paidby the Company or any of its Subsidiaries to Smurfit Kappa Funding or theParent in that twelve month period) the amount of the Securities Permitted Paymentsand/or Securities Repayments (plus the amount of 

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#### such othermanagement or advisory fees and other fees and expenses of the Parent orSmurfit Kappa Funding agreed to by the Facility Agent) for such period, toenable Smurfit Kappa Funding to make Securities Permitted Payments and/orSecurities Repayments and/or to enable the Parent or Smurfit Kappa Funding topay such agreed upfront fees and expenses and to pay agreed management fees andother reasonable expenses of Parent and Smurfit Kappa Funding in an amountagreed to by the Facility Agent, in each case where such loans are subject tothe terms of the Priority Agreement;

#### (xi)                                FinancialIndebtedness (not being amounts lent to Smurfit Kappa Funding or the Parent)not otherwise allowed under this Subclause not exceeding €10,000,000 orits equivalent at any time outstanding;

#### (xii)                             loansto Joint Ventures to the extent permitted by Subclause 23.27 (*Joint Ventures*);

#### (xiii)                          loanswhich are made as part of Cash Pooling Facilities;

#### (xiv)                         loanson arm’s length terms in respect of outstanding purchase price made topurchasers in connection with disposals of assets or business permitted underSubclause 23.6 (*Disposals*)to the extent that such outstanding purchase price is otherwise permitted underthis Agreement and where the aggregate of all such loans outstanding at anytime does not exceed €75,000,000 (or its equivalent);

#### (xv)                            loansor other Financial Indebtedness made or outstanding pursuant to or inconnection with any Permitted Receivables Securitisation;

#### (xvi)                         thetransactions and other matters described in the definition of Approved IPO andin the IPO Structure Paper; and

#### (xvii)                      loansmade to other members of the Group and to Holding Companies of the Group to theextent the payment of dividends or other payments are contemplated under Clause23.16(a) (*Dividends*) (without double-counting).

## 23.15**                     Sharecapital**

### (a)                                  Exceptas provided in paragraph (b) below, no member of the Group may:

#### (i)                                     redeem,purchase, defease, retire or repay any of its share capital or resolve to doso;

#### (ii)                                  issueany shares which by their terms are redeemable prior to the Final MaturityDate; or

#### (iii)                               issueany share capital to any person other than its Holding Company.

 

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### (b)                                 Paragraph (a)does not apply to:

#### (i)                                     anytransaction expressly provided for by the Acquisition Documents or allowedunder the Senior Finance Documents (provided that this sub-paragraph(b)(i) does not permit the Parent, Smurfit Kappa Funding or the Company to takeany of the actions referred to in sub-paragraphs (a)(i) to (iii) above);or

#### (ii)                                  theissue of warrants or shares by the Parent for cash where such issue does noteffect (or in the case of warrants, may not result in) a Change of Control orthe issue, redemption, repurchase, defeasance or retirement of shares by theParent under any management or employee incentive or option scheme approved bythe Facility Agent; or

#### (iii)                               theissue of shares for cash by a member of the Group whose shares are at the dateof this Agreement listed on any recognised stock exchange to a person who isnot a member of the Group where such issue of shares does not reduce theproportion of the total or each class of shares in such Subsidiary held by anyother member of the Group; or

#### (iv)                              theissue of shares by a member of the Group to another member of the Group whichis its immediate Holding Company or (except in the case of Smurfit KappaFunding, the Company and Target) the issue of shares by a member of the Groupto another member of the Group (not being the Parent, Smurfit Kappa Funding orthe Company), provided that if any of the shares of the issuing company arecharged or pledged under the Security Documents such new shares become thesubject of a charge in favour of the Finance Parties on substantially the sameterms as any other shares in such member of the Group which are charged to theFinance Parties by way of security under the Security Documents and that priorto the issue of such shares the Parent notifies the Facility Agent of suchissue; or

#### (v)                                 theredemption, repurchase, defeasance or retirement of shares by a member of theGroup (not being the Parent, Smurfit Kappa Funding or the Company) held byanother member of the Group, provided that no such repurchase, redemption,defeasance or retirement is permitted if such shares are charged under theSecurity Documents unless the member of the Group which is repurchasing,redeeming defeating or retiring such shares is an Obligor and such repurchase,redemption, defeasance or retirement would not have a material adverse effecton the security package taken as a whole; or

#### (vi)                              theDebt Pushdown; or

#### (vii)                           theissuance of shares to minority shareholders in a member of the Group providedthat a proportionate number of shares are issued to its direct Holding Company;or

#### (viii)                        thetransactions and other matters described in the IPO Structure Paper; or

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#### (ix)                                theredemption, repurchase, defeasance or retirement of shares by a member of theGroup held by another member of the Group or a Holding Company thereof to theextent the payment of dividends or other payments are contemplated under Clause23.16(a) (*Dividends*) (without double-counting),and the relevant member of the Group may resolve to redeem, repurchase, defeaseor retire its shares prior to the time the related dividends are permittedunder Clause 23.16 (*Dividends*)provided that such resolution is made subject to the occurrence of the eventwhich would permit the relevant dividends to be made under Clause 23.16 (*Dividends*).

## 23.16**                     Dividends**

### (a)                                  Except:

#### (i)                                     toenable Smurfit Kappa Funding or the Parent to make Securities PermittedPayments or Securities Repayments; or

#### (ii)                                  toenable the Parent or Smurfit Kappa Funding or their Holding Companies  to pay agreed upfront fees and expenses asreflected in the Financial Model; or

#### (iii)                               toenable the Parent or Smurfit Kappa Funding to pay costs and expenses incurredby the Investors in respect of their investment in the Group in an aggregateamount not to exceed €3,000,000 in any twelve month period; or

#### (iv)                              toenable the Parent or its Holding Companies to repurchase the shares, stock oroptions of any director, manager, consultant or employee no longer employed bythe Group under any management or employee incentive or stock option scheme inan aggregate amount for all such purchases in any annual Accounting Period notexceeding €5,000,000, provided that to the extent not utilised in an annualAccounting Period such amount may be carried forward for up to 4 annualAccounting Periods; or

#### (v)                                 toenable the Parent or its Holding Companies to pay fees to other parties(including the Investors) for transaction-specific corporate advisoryservices provided on an arm’s length terms subject to a cap of €3,000,000 foreach transaction; or

#### (vi)                              topay or allow the Parent, Smurfit Kappa Funding or their Holding Companies topay any director’s or management fees to or to the order of its shareholders(or any of their affiliates who is not a member of the Group) incurred inrelation to the directorship or management of the Parent or any of its HoldingCompanies in an aggregate amount not exceeding €3,000,000 in any twelve-monthperiod commencing on 1 January 2006 and rolling over during the currency ofthis Agreement (with such limit for each 12 month period following the firstanniversary of the Closing Date to be indexed each anniversary by 

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#### reference tothe U.K. Retail Price Index using the RPI Inflator statistic for the month inwhich the Closing Date fell as base year); or

#### (vii)                           toenable the Parent to pay its and its Holding Companies, reasonable ongoingoperating costs and expenses including taxes, auditors’ fees, legal fees,listing fees and costs of complying with statutory obligations; or

#### (viii)                        priorto the completion of a Qualifying IPO, if following the payment of the relevantdividend the ratio of Consolidated Total Net Borrowings to EBITDA would be3.0:1 or lower calculated on a pro forma basis, in respect of 50% of ExcessCash Flow (being amounts not required to be prepaid in accordance withClause 11.6 (*Mandatory prepayment — Excess Cash Flow*));or

#### (ix)                                toenable the payment of reasonable fees, costs and expenses incurred inconnection with an IPO or a secondary public offering; or

#### (x)                                   inconnection with the transactions and other matters described in the IPOStructure Paper; or

#### (xi)                                inconnection with the transactions described in the definition of Approved IPO;or

#### (xii)                             afterthe occurrence of a Qualifying IPO, where the ratio of Consolidated Total NetBorrowings to Consolidated EBITDA as calculated in respect of the most recentlypreceding Accounting Date for which a compliance certificate has been deliveredin accordance with this Agreement (calculated for four consecutive quarterlyAccounting Periods of the Smurfit Kappa Funding Group) falls within one of theranges in the first column of the table below, dividends (including for theavoidance of doubt interim dividends) may be declared to persons outside theGroup up to a maximum aggregate amount for the relevant financial year asspecified in the second column of the table opposite the relevant range(provided that each such calculation of the ratio of Consolidated Total NetBorrowings to Consolidated EBITDA is pro forma for the payment of suchdividends),

| Ratio of Consolidated Total Net Borrowings to Consolidated EBITDA | ** ** | **Aggregate amount of  permitted dividends  per financial year** | ** ** |
|-----------------------------------------------------------------------------------------------------------|------------|-------------------------------------------------------------------------------------------|------------|
|                                                                                                      |       |                                                                                      |       |
| Less than 4.5:1  but greater than or equal to 3.75:1                                                      |       | €100,000,000                                                                         |       |
|                                                                                                      |       |                                                                                      |       |
| Less than 3.75:1  but greater than or equal to 3:1                                                        |       | €150,000,000                                                                         |       |
|                                                                                                      |       |                                                                                      |       |
| Less than 3:1                                                                                             |       | Unlimited                                                                                 |       |

 

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neither the Company nor Smurfit Kappa Funding nor theParent may:

(A)                              declare,make or pay, or pay interest on any unpaid amount of, any dividend, charge, feeor other distribution (whether in cash or in kind) on or in respect of itsshare capital (or any class of its share capital);

(B)                                repayor distribute any share premium account;

(C)                                pay,and the Company will procure that none of its Subsidiaries will pay, anymanagement, advisory, consultancy or other fee to or to the order of SmurfitKappa Funding or the Parent; or

(D)                               lendor otherwise pay or transfer cash to, and the Company will procure that none ofits direct or indirect Subsidiaries will lend or otherwise pay or transfer cashor Cash Equivalents to, Smurfit Kappa Funding or Parent; or

(E)                                 repay,prepay, purchase or defease or pay any interest on the Smurfit Kappa FundingLoan other than from Bond Refinancing Debt.

The Company will not, and the Company will procurethat none of its Subsidiaries will pay, any management advisory, consultancy orother fee to or to the order of any of the shareholders of the Parent (or anyaffiliate of any shareholder which is not a member of the Group).

No payment otherwise permitted by paragraphs (a)(ix),(x) and (xii) may be made if there is an outstanding Event of Default (unlessotherwise permitted under Subclause 7.2(b)(ii) of the Priority Agreement).

If a Qualifying IPO has occurred then (notwithstandinganything to the contrary in the Finance Documents) to the extent the entitywhich is the subject of the Qualifying IPO declares dividends at at time whenthe upstreaming of funds (whether by dividend, loan, loan repayment, redemptionof capital or otherwise) from members of the Group to pay such dividend ispermitted under Clauses 23.7 (*Financial Indebtedness*),23.14 (*Loans Out*), 23.15 (*Sharecapital*) and/or this Clause 23.16 (*Dividends*),then such upstreaming of funds shall be permitted subsequently to fund suchpayment of dividends.

## 23.17**                     Intellectualproperty rights**

### (a)                                  Exceptas provided below, each member of the Group must to the extent that failure todo so is likely to have a Material Adverse Effect:

#### (i)                                     makeany registration and pay any fee or other amount which is necessary to keep theMaterial Intellectual Property Rights in force if and to the extent suchMaterial Intellectually Property Rights are owned, leased or licensed by thatmember of the Group;

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#### (ii)                                  recordits interest in those Material Intellectual Property Rights;

#### (iii)                               whereit is the owner, lessee or licensor of the Material Intellectual PropertyRights, take such steps as are necessary and commercially reasonable (includingthe institution of legal proceedings) to prevent third parties infringing thoseMaterial Intellectual Property Rights;

#### (iv)                              notuse or permit any Material Intellectual Property Right to be used in a way, ortake or omit to take any action which may, adversely affect the existence orvalue of such Material Intellectual Property Right; and

#### (v)                                 notenter into licence arrangements in respect of those rights.

### (b)                                 Paragraphs (a)(iv)and (a)(v) do not apply to:

#### (i)                                     licencearrangements entered into between members of the Group for so long as theyremain members of the Group; or

#### (ii)                                  licencearrangements entered into on normal commercial terms and in the ordinary courseof its business.

## 23.18**                     Insurance**

### (a)                                  Eachmember of the Group must insure its assets and business to such an extent andagainst such risks as companies engaged in a similar business in itsjurisdiction normally insure.

### (b)                                 Withoutprejudice to paragraph (a) above, any insurance taken out by any Obligoror any Material Subsidiary must substantially cover the replacement (subject toa reasonable deductible) value of the relevant asset.  This means substantially the total cost ofentirely rebuilding, reinstating or replacing the asset if it is destroyed(subject to such reasonable deductible).

### (c)                                  Allinsurance of the Group must be with reputable independent insurance companiesor underwriters.

### (d)                                 Withoutprejudice to paragraph (a) above, the Group must maintain insuranceagainst business interruption, loss of profits, product liability, accidentalpollution and public liability at levels no lower than those (if any) in placeprior to the First Drawdown provided such insurance continues to be availableon reasonable commercial terms.

### (e)                                  Eachmember of the Group must promptly pay any premium and do anything necessary tokeep in force the insurances required to be maintained by it under thisSubclause.

### (f)                                    EachObligor must:

#### (i)                                     promptlysupply to the Facility Agent on request copies of any insurance policy requiredto be maintained by it or any Material Group Member which is its Subsidiaryunder this Subclause; and

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#### (ii)                                  ensurethat the interest of “other parties” is noted on each such policy (other thanthird party liability policies).

## 23.19**                     HoldingCompanies**

The Parent and Smurfit Kappa Funding and the Companymust not carry on any trade and must not own any assets or incur any FinancialIndebtedness, other than:

### (a)                                  theownership of shares of (A) in the case of the Parent, Smurfit Kappa Funding andSPV Ireland and (B) in the case of Smurfit Kappa Funding, the Company and (C)in the case of the Company, its Subsidiaries, provided such shares are securedby the Security Documents;

### (b)                                 openingbank accounts (provided that such bank accounts are charged under the SecurityDocuments and the bank or financial institution concerned has acknowledged suchcharge) and holding cash;

### (c)                                  inacting as a holding company including the provision of administrative services(including corporate governance of the Group, treasury services, and enteringinto hedging agreements) to other members of the Group and in the case of theParent to members of the SPV Group of a type customarily provided by a HoldingCompany to its Subsidiaries;

### (d)                                 incurring(and to the extent otherwise permitted under the Senior Finance Documents,repaying) Financial Indebtedness under (i) the Senior Finance Documents or (ii)(except in the case of the Company and the Parent) the Securities or BondRefinancing Debt, provided that the same is permitted by the Senior Finance Documentsor (iii) in the case of the Company, the Smurfit Kappa Funding Loan Agreementsin each case including any refinancing thereof in connection with BondRefinancing Debt and the Senior Subordinated Guarantee and any subsequentguarantee in connection with a refinancing of the 2012 Cash Pay Notes or (iv)in the case of the Company, Loans from Group members to it for purpose ofupstreaming cash to pay principal and interest under the Facilities or (v)guarantees existing on the Closing Date and in replacement or renewal thereof;

### (e)                                  inthe case of Smurfit Kappa Funding lending cash under the Smurfit Kappa FundingLoan Agreements and in the case of the Company lending cash to other members ofthe Group, as otherwise permitted under this Agreement; or

### (f)                                    incurring and repaying Financial Indebtednessas described in the definition of Approved IPO.

## 23.20**                     Inter-companydebt**

No member of the Group which is the creditor inrespect of any Financial Indebtedness of any other member of the Group may takeany action to cause that Financial Indebtedness to become due or to be paid (i)in breach of the terms of the Priority Agreement or (ii) if not alreadyprohibited by paragraph (i), unless the other member of the Group hassufficient readily available cash to pay the sum which is due or demanded orthe amount due is capitalised.

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## 23.21**                     Arm’s-lengthterms**

No member of the Group may enter into any materialtransaction after the date hereof with any person on terms which are lessadvantageous to the relevant member of the Group than arm’s-length terms,save for:

### (a)                                  intercompanyloans permitted pursuant to this Agreement;

### (b)                                 paymentsdirectly or indirectly to Investors permitted pursuant to Clause 23.16 (*Dividends*);

### (c)                                  othertransactions between members of the Group which are permitted by other terms ofthis Agreement provided that the terms for such transactions do not result inan effective transfer of value from an Obligor to a member of the Group whichis not an Obligor; and

### (d)                                 PermittedReceivables Securitisations.

## 23.22**                     Amendmentsto documents**

### (a)                                  Nomember of the Group may:

#### (i)                                     priorto the occurrence of a Qualifying IPO, enter into any agreement with anyshareholders in the Parent (other than as set out in the ShareholdersAgreement) or any of their Affiliates which is not a member of the Group; or

#### (ii)                                  priorto the occurrence of a Qualifying IPO, amend or waive any term of the EquityDocuments; or

#### (iii)                               amendor waive any term of the Acquisition Documents or any of the other documentsdelivered to the Facility Agent pursuant to Clause 4.1 (*Conditions precedent documents*),

without the prior written consent of the FacilityAgent if to do so is reasonably likely to affect materially and adversely theinterests of any of the Finance Parties under the Senior Finance Documents andthe Parent must promptly supply to the Facility Agent a copy of any materialamendment or waiver of the Acquisition Documents and, prior to the occurrenceof a Qualifying IPO only, the Equity Documents in each case or any amendment orwaiver of the Acquisition Documents and, prior to the occurrence of aQualifying IPO only, the Equity Documents which is reasonably likely toadversely affect the interests of any of the Finance Parties.

## 23.23**                     BankAccounts**

No Obligor may open or maintain any account with anybranch of any bank or other financial institution providing similar servicesother than an account maintained with an Approved Bank or a Finance Party or anAffiliate of a Finance Party where (if cash security is being taken by theFinance Parties in that jurisdiction) the account is charged under the SecurityDocuments and the bank or financial institution concerned 

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has acknowledged such charge other than a bank accountmaintained solely for the purpose of a Permitted Receivables Securitisation.

## 23.24**                     Access**

### (a)                                  Uponreasonable notice being given by the Facility Agent, each member of the Groupmust allow any one or more representatives of the Facility Agent and/oraccountants or other professional advisers appointed by the Facility Agent (at theCompany’s expense) to have access during normal business hours to the premises,assets, books and records of that member of the Group.

### (b)                                 TheFacility Agent may not give notice under paragraph (a) above more thanonce every financial year unless it believes in good faith that an Event ofDefault is outstanding or may have occurred or is likely to occur.

## 23.25**                     Pensionschemes**

### (a)                                  Eachmember of the Group must:

#### (i)                                     bein compliance with any laws or contract relating to any of its pension schemeswhere failure to so comply would have a Material Adverse Effect; and

#### (ii)                                  maintainand fund its pension schemes to at least the extent required by local law andpractice save where failure to do so would not have a Material Adverse Effect.

### (b)                                 TheCompany must supply the Facility Agent with a copy of any report in respect ofany pension scheme operated by a member of the Group which the Facility Agentmay reasonably request.

## 23.26**                     Taxes**

### (a)                                  Eachmember of the Group must pay all material Taxes due and payable by it prior tothe accrual of any fine or penalty for late payment, unless (and only to theextent that):

#### (i)                                     paymentof those Taxes is being contested in good faith; and

#### (ii)                                  adequatereserves are being maintained for those Taxes; and

#### (iii)                               failureto pay those Taxes would not have a Material Adverse Effect.

### (b)                                 (i)            None of the Parent, Smurfit KappaFunding, the Company or any Borrower may change its residence for Tax purposes;

(ii)                                  Noother Material Group Member may change its residence for Tax purposes if it wouldhave a Material Adverse Effect.

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## 23.27**                     JointVentures**

### (a)                                  Subjectto paragraph (b) below, no member of the Group may after the date of thisAgreement enter into, invest in, acquire any share or interest in, transfer anyasset to, lend to, or guarantee or give any indemnity (other than an indemnityof a type referred to in Subclause 23.12(c)(v) (*Third party guarantees*) in respect of the sale of any suchJoint Venture) in respect of the obligations of, any joint venture entity,partnership or similar person (a “**JointVenture**”) or enterinto any agreement or obligation where it would have any obligation to do anyof the foregoing or to maintain the solvency of or provide working capital toany Joint Venture or trade with or sell to or acquire assets or services fromany Joint Venture otherwise than on arm’s length-terms.

### (b)                                 Membersof the Group may enter into, invest in, acquire any shares or interest in,transfer any asset to, lend to, or guarantee or give an indemnity in respect ofthe obligations of, a Joint Venture (including any existing Joint Venture)which carries on a business of the same type as the business of the Group or abusiness which is complementary provided that the aggregate amount invested inor paid to acquire any shares or interest in, or value of assets transferredto, or lent to or the actual or contingent liability under any guarantee orindemnity (other than an indemnity of a type referred to inSubclause 23.12(c)(v) (*Third partyguarantees*) in respect of the sale of any such Joint Venture) of theobligations of, any Joint Venture (each a “**JointVenture Investment**”)does not exceed €40,000,000 (plus the aggregate Net Proceeds received in cashby members of the Group from the disposal of Joint Venture Investments) inaggregate over the life of the Facilities.

## 23.28**                     Limitat****i****on on restrictions affecting movement of cash Intra-Group**

### (a)                                  Nomember of the Group may agree to any restriction on its ability to move cash toanother member of the Group, whether by way of dividend or other distribution,inter-company loan, redemption of shares or otherwise.

### (b)                                 Paragraph (a)above does not apply to any restriction contained in a Senior Finance Document,the Securities, the Remaining Debt Agreements (provided that no amendments orrefinancing of any Remaining Debt may include a more onerous restriction thanany restriction in force on the date of this Agreement in the Remaining DebtAgreement being amended or refinanced), the 2025 Bonds, the Bond RefinancingDebt (provided that the restrictions are no more onerous on any member of theGroup than those in this Agreement) or pursuant to or in connection with aPermitted Receivables Securitisation.

## 23.29**                     AcquisitionDocuments**

The Company shall promptly pay (or shall procure thatthere is promptly paid) all amounts payable by the Company under theAcquisition Documents as and when the same become due.

 

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## 23.30**                     RefinancingDebt**

### (a)                                  Promptlyfollowing the Closing Date, the Company shall take all such steps as shall benecessary to ensure that all liabilities of all members of the Group in respectof the Existing Kappa Bonds (and any Security Interest in relation to suchdebt) are unconditionally and irrevocably repaid and discharged by no laterthan the date falling 90 days after the Closing Date.

### (b)                                 Priorto drawing any Term Loan the proceeds of which are to repay (or enable anymember of the Group to repay) the Existing Kappa Bonds or the senior facilitiesoutstanding from the Group and the Target Group on the Closing Date, theCompany shall supply to the Facility Agent evidence satisfactory to the Lendersthat all existing Financial Indebtedness of, and all existing security grantedby the Group (other than Remaining Debt and other Financial Indebtednesspermitted to remain outstanding under this Agreement) will be repaid anddischarged within 90 days after the Closing Date from the proceeds of suchdrawing of the Facilities.

### (c)                                  TheCompany shall procure that, as soon as reasonably practicable after the ClosingDate, the Debt Pushdown is completed in all material respects in the manner setout in the Structure Memorandum (or otherwise in a manner which does notadversely affect the interests of the Lenders in any material respect) orotherwise in a manner approved by the Majority Lenders acting reasonably.

## 23.31**                     Guarantees**

### (a)                                  TheCompany shall procure that each of the Target and those of its Subsidiaries identifiedin the Agreed List of Obligors and Security will become Additional Guarantorshereunder in accordance with the provisions of Clause 23.33 (*Additional Obligors*) at the time providedfor in that Schedule provided that in the case of:

#### (i)                                     companiesincorporated in Ireland, Northern Ireland or England and Wales, the AccessionDeed will provide that the guarantee granted on or before the First DrawdownDate shall be limited to liabilities in respect of Refinancing Credits andimmediately following compliance with the procedures referred to in paragraph(b) below (as applicable), each such Additional Guarantor shall accede as anAdditional Guarantor with no such limitation; and

#### (ii)                                  KappaPackaging Czech immediately after the relevant Expert Valuation has beenobtained.

### (b)                                 TheCompany shall, as soon as reasonably practicable after the Closing Date procurethat the Additional Guarantors incorporated in (i) England & Wales, complywith Sections 155-158 of the Companies Act 1985, (ii) Ireland, complywith Section 60 of the Companies Act 1963; and (iii) Northern Ireland, complywith Section 161 of the Companies (Northern Ireland) Order 1986 in each case inrespect of the guarantees and security contemplated to be provided by themunder this Agreement, except where failure to do so would not have a MaterialAdverse Effect.

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### (c)                                  Where,at any time after the Closing Date, it is determined (by reference to Accountsdelivered hereunder) that any member of the Group is a Material Subsidiary or amember of the Group wishes to become an Additional Borrower, promptly (and inany event within 30 Business Days of the delivery of such Accounts) or at thetime it becomes an Additional Borrower, subject to the Agreed SecurityPrinciples, the Company shall procure that such Material Subsidiary orAdditional Borrower becomes an Additional Guarantor in accordance withClause 23.33 (*Additional Obligors*)(to the extent it has not already done so).

### (d)                                 Inthe event that any guideline is issued by the German Federal Ministry of Financeor a change in law occurs, in each case after the date hereof, regarding theinterpretation or application of Section 8a of the German Corporation Tax Act (*Körperschaftsteuergesetz*, “**KStG**”),clarifying that the relief, in particular the possibility to provide acounterproof regarding the absence of a back-to-back financing,  provided by the tax guidelines issued by theGerman Federal Ministry of Finance (*Bundesfinanzministerium*)on 15 July 2004 (IV A2 - S2742s - 20/04) and 22 July 2005 (IV B7 — S2742a — 31/05)in relation to Section 8a of the KStG also applies to loans which qualify underSection 8a paragraph VI of the KStG, the Company shall promptly take suchaction as the Facility Agent may reasonably require to extend the guaranteesgranted under this Agreement to include the obligations and liabilities of theRestricted Borrower under the Restricted Term Loan Facilities.

### (e)                                  Subjectto the Agreed Security Principles the Company will ensure that members of theGroup which on an unconsolidated basis account for 75% of the Group’sConsolidated EBITDA and 75% of the Group’s turnover and 75% of the Group’sgross assets (excluding intercompany items and intercompany investments) either(i) give a guarantee and security over its material assets and undertakingto the Security Agent or to an Obligor who has secured its interest under suchguarantee and security to the Security Agent or (ii) have their sharespledged (or their direct or indirect holding company incorporated in the samejurisdiction has its shares pledged) in favour of the Security Agent or infavour of an Obligor who has secured such guarantee and security interest infavour of the Security Agent *provided* thatno Securitisation SPV will be required to provide a guarantee or security.  If any company shall become a member of theGroup after the Closing Date and it is a Material Subsidiary, subject to theAgreed Security Principles it will have its shares pledged and it will grantsecurity over its material assets and undertaking.

### (f)                                    TheCompany need only perform its obligations under paragraph (c) or (d) above ifit is not unlawful for the relevant person to become a Guarantor (or (i) in thecase of a member of the Group which is not wholly owned or is a Joint Venture,if it would not breach any joint venture or any existing shareholders agreementapplicable to it or, (ii) in the case of a member of the Group incorporated inany country in Latin America or Albania, Belarus, Bosnia & Herzegovina,Bulgaria, Croatia, Czech Republic, Estonia, Georgia, Hungary, Latvia,Lithuania, Macedonia, Moldova, Romania, Serbia & Montenegro, Russia,Slovakia, Slovenia, Turkey or the Ukraine, it also would not breach anynegative pledge contained in a Remaining Debt Agreement or in the 

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### reasonableopinion of the Parent result in a loss of access to local credit lines onreasonable commercial terms) and that person becoming a Guarantor would notresult in personal liability for that person’s directors or othermanagement.  Each Obligor must use, andmust procure that the relevant person uses, all reasonable endeavours lawfullyto avoid any such unlawfulness (including, without limitation) by complyingwith paragraph (b) above) or personal liability.  This includes agreeing to a limit on theamount secured or guaranteed.  TheFacility Agent may (but shall not be obliged to) agree to such a limit if to doso might avoid the relevant unlawfulness or personal liability.

### (g)                                 TheCompany shall, as soon as reasonably practicable after the Closing Date,procure that Kappa Packaging Czech will file an application with the relevantcourt to appoint an expert valuator who shall promptly prepare the ExpertValuation.

## 23.32**                     Security**

### (a)                                  TheParent shall procure that, subject to the Agreed Security Principles:

#### (i)                                     theSecurity Documents identified in the Agreed List of Obligors and Security areexecuted and delivered to the Security Agent on or before the time provided forin that Schedule;

#### (ii)                                  theSecurity Documents identified in the Agreed List of Obligors and Security areexecuted and delivered to the Security Agent as soon as it is not unlawful forthe relevant person to execute such Security Document (or (i) in the case of amember of the Group which is not wholly owned or is a Joint Venture, if itwould not breach any joint venture or any existing shareholders agreementapplicable to it or, (ii) in the case of a member of the Group incorporated inany country in Latin America or Albania, Belarus, Bosnia & Herzegovina,Bulgaria, Croatia, Czech Republic, Estonia, Georgia, Hungary, Latvia,Lithuania, Macedonia, Moldova, Romania, Serbia & Montenegro, Russia,Slovakia, Slovenia, Turkey or the Ukraine, it also would not breach anynegative pledge contained in a Remaining Debt Agreement or in the reasonableopinion of the Parent result in a loss of access to local credit lines onreasonable commercial terms) and if such execution would not result in personalliability for that person’s directors or other management.  Each Obligor must, and must procure that therelevant person uses, all reasonable endeavours lawfully to avoid any suchunlawfulness or personal liability.  Thisincludes agreeing to a limit on the amount secured.  The Facility Agent may (but shall not beobliged to) agree to such a limit if to do so might avoid the relevant unlawfulnessor personal liability;

#### (iii)                               anygrantor of a Security Document referred to in (i) above will provide anynotices required and execute such other documentation as is required to perfectthe security granted under the Security Documents;

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#### (iv)                              anymember of the Group (other than any grantor of a Security Document referred in(i) above) which becomes at any time a Material Subsidiary after the ClosingDate and/or which is required pursuant to the terms of Clause 23.31 (*Guarantees*) to accede hereto as anAdditional Guarantor shall execute Security Documents over all or substantiallyall of it assets in substantially similar terms, and to similar effect, as theSecurity Documents executed by other Obligors incorporated in the samejurisdiction (or if none as required by the Security Agent acting reasonably)provided that the Obligors listed in the Agreed List of Obligors and Securityshall only be required to provide the Security specified therein;

#### (v)                                 anyObligor which has executed a Security Document pursuant hereto and whichacquires a material asset (or makes a material loan to another member of theGroup) which would not be immediately and effectively charged by the thenexisting Security Documents and is of a type which is charged by the then existingSecurity Documents, executes and delivers to the Security Agent such further oradditional Security Documents in relation to such assets as the MajorityLenders may reasonably require and in form and substance reasonablysatisfactory to them.

### (b)                                 Subjectto the Agreed Security Principles, each Obligor shall execute and deliver tothe Security Agent such further or additional Security Documents in such formas the Majority Lenders (acting reasonably) shall require creating an effectivefirst ranking fixed Security****Interestover the shares in any entity which becomes a Material Subsidiary after theFirst Drawdown.

### (c)                                  TheParent and each Obligor need only perform its obligations under paragraphs(a)(iv) and (b) above if it is not unlawful for the relevant person to executesuch Security Documents (or (i) in the case of a member of the Group which isnot wholly owned or is a Joint Venture, if it would not breach any jointventure agreement or any existing shareholders agreement applicable to it or,(ii) in the case of a member of the Group incorporated in any country in LatinAmerica or Albania, Belarus, Bosnia & Herzegovina, Bulgaria, Croatia, CzechRepublic, Estonia, Georgia, Hungary, Latvia, Lithuania, Macedonia, Moldova,Romania, Serbia & Montenegro, Russia, Slovakia, Slovenia, Turkey or theUkraine, it would also not breach any negative pledge contained in a RemainingDebt Agreement and would not in the reasonable opinion of the Parent result ina loss of access to local credit lines on reasonable commercial terms) and ifsuch performance would not result in personal liability for that person’sdirectors or other management.  EachObligor must, and must procure that the relevant person uses, all reasonableendeavours lawfully to avoid any such unlawfulness or personal liability.  This includes agreeing to a limit on theamount secured.  The Facility Agent may(but shall not be obliged to) agree to such a limit if to do so might avoid therelevant unlawfulness or personal liability.

### (d)                                 TheParent shall, and shall procure that each other relevant member of the Groupwhich is its Subsidiary shall, at its own expense, execute and do all suchassurances, acts and things as the Security Agent may reasonably require:

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#### (i)                                     forperfecting or protecting the security intended to be afforded by the SecurityDocuments; and/or

#### (ii)                                  ifthe Security Documents have become enforceable, for facilitating therealisation of all or any part of the assets which are subject to the SecurityDocuments and the exercise of all powers, authorities and discretions vested inthe Security Agent or in any receiver of all or any part of those assets,

and in particular shall execute all transfers,conveyances, assignments and releases of that property whether to the SecurityAgent or to its nominees and give all notices, orders and discretions which theSecurity Agent may reasonably think expedient.

### (e)                                  Ifat any time any Obligor is the creditor in respect of any loans made pursuantto (and to the extent permitted by) Subclause 23.14 (*Loans out*), such Obligor shall procurethat security is granted to the Lenders over such loans on terms acceptable tothe Security Agent (acting on the instructions of the Majority Lenders (actingreasonably)).

### (f)                                    Oneach date that a Security Document is entered into after the First Drawdown,each Obligor shall procure that the documents listed in Part III of Schedule 2(*Conditions Precedent Documents*)in respect of the Obligor entering into such Security Document are delivered tothe Security Agent.

### (g)                                 TheCompany shall procure that the articles of association of the Target areamended as soon as reasonably practical and, in any event, within 90 days ofthe Closing Date in such a way as to permit a first priority ranking perfectedpledge to be granted by the direct Holding Company thereof in favour of theSecurity Agent over the shares in the capital of the Target.

## 23.33**                     AdditionalObligors**

### (a)                                  TheCompany shall procure that any person required under Subclause 23.31 (*Guarantees*) to become an AdditionalGuarantor, or a person who wishes to become an Additional Guarantor or anAdditional Borrower, must:

#### (i)                                     executeand deliver to the Facility Agent an Accession Deed (duly executed by theCompany on behalf of all existing Borrowers and Guarantors);

#### (ii)                                  deliverto the Facility Agent each of the documents and evidence listed in Part III ofSchedule 2 (*Conditions Precedent Documents*);

#### (iii)                               deliverto the Facility Agent such other reports, opinions and documents (if any) asthe Facility Agent may reasonably require in respect of the AdditionalGuarantor or Additional Borrower, each in form and substance satisfactory tothe Facility Agent;

#### (iv)                              accedeto the Priority Agreement as an Obligor in the manner required pursuant to thePriority Agreement; and

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#### (v)                                 complywith the other requirements of this Subclause 23.33.

### (b)                                 Therelevant Subsidiary will become an Additional Obligor on the date of theAccession Deed executed by it.

### (c)                                  Subjectto the other provisions of this Agreement, the Company must comply with itsobligations under paragraph (a):

#### (i)                                     withinfourteen days of the relevant person becoming a Material Subsidiary; or

#### (ii)                                  ifthe relevant person is an Additional Borrower, before the Additional Borrowermay use any Facility.

### (d)                                 Theprior consent of all the Lenders (not to be unreasonably withheld) is requiredif an Additional Obligor is to be an Additional Borrower (except in respect ofan Additional Borrower which is a limited liability company and which is awholly-owned Subsidiary (directly or indirectly) of the Company and isincorporated and tax resident in a Pre-approved Jurisdiction, to theextent the Additional Borrower will be a Borrower under the Revolving CreditFacility or the Restructuring Loan Facility. It shall not be unreasonable for a Lender to withhold or delay itsconsent if the Additional Borrower is domiciled in a jurisdiction which wouldcause the Lender to breach any law or regulation or any internal rule or policyof such Lender.

### (e)                                  TheLenders may impose such limitations on the ability of an Additional Borrower toborrow under any Facility as they deem reasonably necessary.

### (f)                                    Inthe case of an Additional Borrower, until the Facility Agent notifies the otherFinance Parties and the Company that those documents and evidence are in formand substance satisfactory to it (acting reasonably), that Additional Borrowermay not use any Facility.  The FacilityAgent must give this notification as soon as reasonably practicable afterreceipt of such documents and evidence in form and substance satisfactory to it(acting reasonably).

### (g)                                 Deliveryof an Accession Deed, executed by the relevant Subsidiary and the Company, tothe Facility Agent constitutes confirmation by that Subsidiary and the Companythat the Repeating Representations relating to representations and warrantiesmade by the Company or to be made by that Subsidiary are then correct in allmaterial respects, as if made with reference to the facts and circumstancesthen existing.

### (h)                                 TheCompany shall, and shall procure that each relevant member of the Group that isits Subsidiary shall, promptly give the Facility Agent all assistance itreasonably requires in relation to the security and guarantees to be grantedpursuant to this Agreement including, without limitation, promptly answeringall reasonable questions and requisitions of the Facility Agent and itsadvisors in relation to the assets of the Target Group.

 

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## 23.34**                     SPV Group**

The Parent shall procure that members of the SPV Groupshall, on the disposal of any SPV Asset to any third party apply an amountequal to the net proceeds received by it on any such disposal in repayment orprepayment of any loan made by a member of the Group to a member of the SPVGroup, or, at the option of the Parent, lend such proceeds to the Parent, andthe Parent shall contribute such proceeds to the Company.

## 23.35**                     Securities**

The Parent will procure that on or before issuing anysecurities in respect of the Bond Refinancing Debt, the trustee appointed underany indenture or equivalent document under which any such securities are issuedwill become a party to the Priority Agreement by executing and delivering adeed of accession to the Security Agent as contemplated in the PriorityAgreement in form and substance satisfactory to the Security Agent to theextent that there is a requirement under the Bond Refinancing Debt to provideratable security.

## 23.36**                     FinancialAssistance**

The Parent will ensure that all payments and provisionof guarantees, security and other assistance by and between members of theGroup have been and will be made in compliance with applicable local laws andregulations concerning financial assistance by a company for the acquisition ofor subscription for its own shares or the shares of its parent or any othercompany or concerning the protection of shareholders’ capital except wherefailure to do so would not have a Material Adverse Effect.

## 23.37**                     FinancialStatements**

The Parent will ensure that its audited consolidatedfinancial statements to be provided in compliance with Clause 21.1 (*Financial statements*) will be prepared incompliance with the Accounting Principles in all material respects.

## 23.38**                     PermittedReceivables Securitisations**

### (a)                                  Notwithstandingany provision of this Agreement to the contrary, in connection with a PermittedReceivable Securitisation, any Group member may without limitation, do any ofthe following:

#### (i)                                     establishor procure the establishment of any type of company, fund or other entity forthe purposes of such securitisation whether or not a member of the Group (eachsuch entity a “**Securitisation SPV**”);

#### (ii)                                  transferreceivables to the Securitisation SPV either directly or indirectly;

#### (iii)                               create,in respect of the bank accounts into which the collections in respect of thetransferred receivables are paid, trusts, pledges, charges or other accountprotection arrangements, whether contractual or proprietary in nature; and/ordirect customers (including in respect of receivables which are not, or are noteligible to be, purchased by the 

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#### Securitisation SPV), to one or morecollection accounts (whether or not in the name of a Group member or theSecuritisation SPV); or

#### (iv)                              provideFinancial Indebtedness in any form directly or indirectly to the SecuritisationSPV in connection with such securitisation,

and all the representations, warranties, covenants andother terms of each Finance Document (including the security package, whichwill permit the automatic release if possible or otherwise authorise therelease of receivables from security to enable a Permitted ReceivablesSecuritisation) will be construed in such a way to permit any PermittedReceivables Securitisation (and as necessary security over receivables will bedeemed to be released to enable such Permitted ReceivablesSecuritisation).  For the avoidance ofdoubt Smurfit Kappa European Packaging (and any entity which replaces it) shallnot be required to give security to the Lenders.

### (b)                                 Theparties acknowledge that (i) certain Group members entered into the ExistingSecuritisation and that such transaction is a Permitted ReceivablesSecuritisation; and (ii) Smurfit Kappa European Packaging is a SecuritisationSPV and will not be nor will it be required to be an Additional Obligor for solong as it is a Securitisation SPV.

# **24.****                               DEFAULT**

## 24.1**                           Eventsof Default**

Each of the events set out in this Clause is anEvent of Default.

## 24.2**                           Non-payment**

An Obligor does not pay on the due date any amount payableby it under the Senior Finance Documents in the manner required under theSenior Finance Documents, unless the non-payment:

### (a)                                  iscaused by technical or administrative error in the transmission of funds bybanks and such non-payment is remedied within 3 days of the due date; or

### (b)                                 isin respect of fees and expenses (but not principal or interest due under theSenior Finance Documents) and such non-payment is remedied within 3 daysof the due date.

## 24.3**                           Breachof other obligations**

### (a)                                  AnObligor does not comply with any term of Clauses 23.4 (*Pari Passu ranking*), 23.5 (*Negative pledge*), 23.6 (*Disposals*), 23.9 (*Mergers*), 23.10 (*Acquisitions*), 23.14 (*Loans out*), 23.15 (*Share**capital*)or 23.16 (*Dividends*).

### (b)                                 Thereis a breach of Clause 22 (*Financial**Covenants*) and this is notremedied by means of Clause 24.21 (*Rightto Cure Financial Ratios*) within 15 Business Days of the delivery offinancial statements evidencing breach.

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### (c)                                  AnObligor does not comply with any other term of the Senior Finance Documents notalready referred to in this Clause, unless the non-compliance:

#### (i)                                     iscapable of remedy; and

#### (ii)                                  isremedied within 20 Business Days of the earlier of the Facility Agent givingnotice and any Obligor becoming aware of the non-compliance.

## 24.4**                           Misrepresentation**

A representation or warranty made or repeated by anObligor in any Senior Finance Document or in any document delivered by or onbehalf of any Obligor under any Senior Finance Document is incorrect in anymaterial respect when made or deemed to be repeated, unless the circumstancesgiving rise to the misrepresentation:

### (a)                                  arecapable of remedy; and

### (b)                                 areremedied within 20 Business Days of the earlier of the Facility Agent givingnotice and any Obligor becoming aware of the misrepresentation.

## 24.5**                           Cross-default**

Any of the following occurs in respect of a member ofthe Group:

### (a)                                  anyof its Financial Indebtedness (or any amount payable in respect thereof) is notpaid when due (after the expiry of any originally applicable grace period); or

### (b)                                 anyof its Financial Indebtedness:

#### (i)                                     becomesprematurely due and payable; or

#### (ii)                                  isplaced on demand; or

#### (iii)                               iscapable of being declared by a creditor to be prematurely due and payable orbeing placed on demand,

in each case, as a result of an event of default(howsoever described);

unless (I) the aggregate principal amount of FinancialIndebtedness of members of the Group falling within paragraphs (a) - (b)above is less than €45,000,000 or its equivalent or (II) in the case ofFinancial Indebtedness under the 2025 Bonds, the relevant event has occurred byreason of the Acquisition or the original acquisition of the Smurfit KappaGroup by the Company, and the 2025 Bonds are repaid in full within one month ofthe first occasion on which any of the events in paragraph (a) and (b) aboveoccur and prior to such repayment in full no material action is taken by or onbehalf of any of the bondholders to enforce any security, demand under anyguarantee or taken any steps referred to in Subclauses 24.7 (*Insolvency proceedings*) or 24.8 (*Creditor’s**process*) against any member of the Group (provided thatduring such one month period there shall be no Default in respect of the eventsreferred to in paragraphs (a) to (b) above in respect of the 2025 Bonds if theconditions referred to 

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above are complied with) or (III) if the FinancialIndebtedness is owed by one member of the Group to another member of the Group,no Event of Default shall occur unless the creditor takes any step toaccelerate such Financial Indebtedness or otherwise enforces its rights inrespect of such Financial Indebtedness, and the default giving rise to such isnot remedied or waived within 20 Business Days after the date of suchacceleration or enforcement action (V) the Financial Indebtedness was incurredand/or is outstanding pursuant to or in connection with a Permitted ReceivablesSecuritisation.

## 24.6**                           Insolvency**

Any of the following occurs in respect of the Companyor a Material Group Member:

### (a)                                  itis, or is deemed for the purposes of any applicable law to be, unable to payits debts as they fall due or insolvent; or

### (b)                                 itadmits its inability to pay its debts as they fall due; or

### (c)                                  itsuspends making payments on its debts generally (or any class of them) orannounces an intention to do so; or

### (d)                                 byreason of actual or anticipated financial difficulties, it reschedules orrestructures any of its indebtedness; or

### (e)                                  amoratorium is declared in respect of any of its indebtedness.

## 24.7**                           Insolvencyproceedings**

### (a)                                  Exceptas provided below in paragraph (b), any of the following occurs in respect ofthe Company or a Material Group Member:

#### (i)                                     anyformal or legal step is taken with a view to a composition, assignment or similararrangement with any of its creditors; or

#### (ii)                                  ameeting of its shareholders, directors or other officers is convened for thepurpose of considering any resolution for, to petition for or to file documentswith a court for, its winding-up, administration, examination ordissolution or for the seeking of relief under any applicable bankruptcy,insolvency or similar law or any such resolution is passed; or

#### (iii)                               anyperson presents a petition, or files documents with a court, for its winding-up,administration, examination or dissolution or seeking relief under anyapplicable bankruptcy, insolvency or similar law; or

#### (iv)                              anorder for its winding-up, administration, examination or dissolution ismade or other relief is granted under any applicable bankruptcy, insolvency orsimilar law; or

#### (v)                                 anyliquidator, trustee in bankruptcy, judicial custodian, compulsory manager,receiver, examiner, administrative receiver, administrator or 

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#### similarofficer is appointed in respect of it or any of its assets with an aggregatevalue in excess of €25,000,000; or

#### (vi)                              itsdirectors, shareholders or other officers request the appointment of, or givenotice of their intention to appoint, a liquidator, trustee in bankruptcy,judicial custodian, compulsory manager, receiver, examiner, administrativereceiver, administrator or similar officer in respect of it or any of itsassets; or

#### (vii)                           anyother analogous step or procedure is taken in any jurisdiction.

### (b)           Paragraph (a) does not apply to:

#### (i)                                     anystep or procedure which is part of a Permitted Reorganisation; or

#### (ii)                                  apetition for winding-up presented by a creditor which is being contestedin good faith and with due diligence and is discharged, withdrawn or struck outwithin 20 Business Days.

## 24.8**                           Creditors’process**

Any attachment, sequestration, distress, execution oranalogous event affects assets of the Company or a Material Group Member,having an aggregate value of €25,000,000 (or its equivalent), and is notdischarged within twenty-one days from the entry or making thereof.

## 24.9**                           Cessationof business**

The Group taken as a whole ceases to carry on all or asubstantial part of its business except:

### (a)                                  aspart of a Permitted Reorganisation; or

### (b)                                 asa result of any disposal allowed under this Agreement.

## 24.10**                     SeniorFinance Documents**

### (a)                                  Itis or becomes unlawful for any Obligor to perform any of its obligations underthe Senior Finance Documents, which obligation is materially prejudicial to theLenders.

### (b)                                 AnySenior Finance Document is not effective or is alleged by an Obligor to beineffective for any reason in any respect materially prejudicial to theLenders.

### (c)                                  ASecurity Document does not create the security it purports to create in anyrespect which is materially prejudicial to the Lenders.

### (d)                                 AnObligor repudiates a Senior Finance Document or evidences an intention torepudiate a Senior Finance Document.

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### (e)                                  Anyevent of default (however defined) occurs under any of the Securities entitlingany holders of the Securities to make demand for repayment of any FinancialIndebtedness on any member of the Group.

## 24.11**                     Ownershipof the Obligors**

An Obligor (other than the Parent) is not or ceases tobe a direct or indirect Subsidiary of the Parent (other than pursuant to aPermitted Reorganisation or as a result of a disposal which is permitted underthe terms this Agreement).

## 24.12**                     PriorityAgreement**

### (a)                                  (i)            Any party to the Priority Agreement(other than a Finance Party) does not comply with the terms of the PriorityAgreement in any respect which is materially prejudicial to the Lenders’interests under the Finance Documents; or

(ii)                                  arepresentation or warranty given by that party in the Priority Agreement isincorrect in any material respect,

and, if the non-compliance or circumstancesgiving rise to the misrepresentation are capable of remedy, it is not remediedwithin 20 Business Days of the earlier of the Facility Agent giving notice tothat party of or that party becoming aware of the non-compliance ormisrepresentation; or

### (b)                                 thesubordination created or purported to be created by the Priority Agreement isnot effective or is alleged by a party to it (other than a Finance Party) to beineffective in any way which is materially prejudicial to the Lenders’interests under the Finance Documents; or

### (c)                                  anyparty to the Priority Agreement (other than a Finance Party) repudiates thePriority Agreement or clearly evidences an intention to repudiate it.

## 24.13**                     Litigation**

There shall occur any litigation, arbitrationadministrative, regulatory or other proceedings or enquiry (including withoutlimitation, any such by any monopoly, anti-trust or competition authorityor commission, or any equivalent body in the European Commission or anydivision of any thereof or authority deriving power from any thereof)concerning or arising in consequence of any of the Transaction Documents andthe same has in the reasonable opinion of the Majority Lenders a MaterialAdverse Effect (provided that without prejudice to any other event orcircumstances which has a Material Adverse Effect the mere acceleration or non-paymentof the 2025 Bonds following any such litigation or proceedings shall notconstitute a Material Adverse Effect if such bonds are repaid in full withinone month of the date of acceleration or non-payment).

## 24.14**                     Auditqualification**

The Auditors qualify their report on any auditedconsolidated financial statements of the Parent in terms or as to issues whichhave a Material Adverse Effect.

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## 24.15**                     Expropriation**

The authority or ability of the Company or anyMaterial Group Member, to conduct its business is wholly or substantiallycurtailed by any seizure, expropriation, nationalisation, intervention,restriction or other action by or on behalf of any governmental, regulatory orother authority or other person (each an **expropriation**)and such expropriation has a Material Adverse Effect.

## 24.16**                     Materialadverse effect**

Any event or series of events (whether related or not)occurs which has a Material Adverse Effect.

## 24.17**                     Acceleration**

Subject to Subclauses 24.19 (*Clean-Up Period*) and 24.20 (*Cancellation during Certain Funds Period*),if an Event of Default is outstanding, the Facility Agent may, and must if soinstructed by the Majority Lenders, by notice to the Company:

### (a)                                  declarethat an Event of Default has occurred; and/or

### (b)                                 cancelsome or all of the Total Commitments; and/or

### (c)                                  declarethat all or part of any amounts outstanding under the Senior Finance Documentsare:

#### (i)                                     immediatelydue and payable; and/or

#### (ii)                                  payableon demand by the Facility Agent acting on the instructions of the MajorityLenders, and/or

### (d)                                 declarethat full Cash Cover in respect of any or each Documentary Credit isimmediately due and payable.

Any notice given under this Subclause will takeeffect in accordance with its terms.

## 24.18**                     Accelerationfor Certain Funds Credits**

If there is a Major Default During the Certain FundsPeriod then the Facility Agent may, and must if so instructed by the MajorityLenders, by notice to the Company:

### (a)                                  declarethat a Major Default has occurred; and/or

### (b)                                 cancelsome or all of the Total Commitments; and/or

### (c)                                  declarethat all or part of any Certain Funds Credit outstanding under the SeniorFinance Documents are:

#### (i)                                     immediatelydue and payable; and/or

#### (ii)                                  payableon demand by the Facility Agent acting on the instructions of the MajorityLenders.

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Any notice given under this provision will take effectin accordance with its terms.

## 24.19**                     Clean-UpPeriod**

If during the Clean up Period (or such longer period,in any particular instance, as the Facility Agent acting on the instruction ofthe Majority Lenders may agree) any event or circumstance which (but for thisSubclause 24.19) would constitute a Default (the **PotentialEvent of Default**) shall exist, then the following shall apply:

### (a)                                  theCompany or the Target shall notify the Facility Agent in writing of that factpromptly after becoming aware thereof, giving a reasonable description of:

#### (i)                                     thePotential Event of Default and its causes; and

#### (ii)                                  theremedial action in relation to that Potential Event of Default which the Companyand/or the Target propose to take;

### (b)                                 thatPotential Event of Default shall not constitute a Default, and the FacilityAgent shall not with respect to that Potential Event of Default be entitled totake any of the actions set out in Subclause 24.17 (*Acceleration*) (but, for the avoidance ofdoubt, not so as to restrict the Facility Agent’s rights to take such actionwith respect to any other Event of Default which is not a Potential Event ofDefault), until (assuming that the Potential Event of Default is thencontinuing) the date that the Clean-up Period has expired, unless in eachcase there is a Material Adverse Effect,

provided that this Subclause shall not apply withrespect to any Potential Event of Default under any of Subclauses 24.2 (*Non-payment*), 24.6 (*Insolvency*), 24.7 (*Insolvency**proceedings*), 24.8 (*Creditors’ process*), 24.10 (*Senior Finance Documents*) or 24.15 (*Expropriation*).

## 24.20**                     Cancellationduring Certain Funds Period**

During the Certain Funds Period, the Finance Partiesshall not save as provided in Subclause 24.18 (*Acceleration for Certain Funds Credits*):

### (a)                                  havethe right to cancel, rescind or terminate the Facilities during the CertainFunds Period if the effect of such cancellation, rescission or terminationwould prevent or limit the making of any of the Certain Funds Credits duringthe Certain Funds Period; or

### (b)                                 makeor enforce any claims they may have under this Agreement if the effect of suchclaim or enforcement would prevent or limit the making or utilisation of theCertain Funds Credits during the Certain Funds Period; or

### (c)                                  otherwiseexercise during the Certain Funds Period any right of set-off or similarright or remedy which it may have in relation to any of the Certain FundsCredits; or

### (d)                                 cancelor declare any Certain Funds Credit immediately due and payable or payable ondemand.

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## 24.21**                     Rightto Cure Financial Ratios**

The Company shall have the right (a “**Cure Right**”) to receive contributions of equity or quasi-equityto cure any actual or prospective breach of financial ratios by:

### (a)                                  contributionof up to €20 million of equity cash injection to be made within 15 BusinessDays of delivery of related compliance certificate and to be added toConsolidated Cash Flow and Consolidated EBITDA for the sole purpose ofmeasuring the Financial Ratios (and not for any other purpose) and theConsolidated Total Net Borrowings figure will be notionally reduced and theConsolidated Total Net Interest Payable also adjusted accordingly to reflectthe notional lower Consolidated Total Net Borrowings position for the durationof the relevant period provided that only a single cure amount may be takeninto account during any relevant period of 12 months; and

### (b)                                 contributionsof equity cash injections at any time to be added to Consolidated Cash Flow(but not Consolidated EBITDA) for the purpose of the ratio of Consolidated CashFlow to Consolidated Total Debt Service and applied in repayment of debt inreduction of Consolidated Total Net Borrowings (for all covenants) providedthat any such cure may be exercised only once in any relevant period of12 months,

### each suchcontribution, a “**Cure Amount**”.

# **25.****                               THEADMINISTRATIVE PARTIES**

## 25.1**                           Appointmentand duties of the Agents**

### (a)                                  EachFinance Party (other than such Agent) irrevocably appoints each Agent to act asits agent (and, in the case of the Security Agent, its agent and its trustee)under and in respect of the Senior Finance Documents.

### (b)                                 EachFinance Party irrevocably authorises each Agent to:

#### (i)                                     performthe duties and to exercise the rights, powers and discretions that arespecifically given to it under the Senior Finance Documents, together with anyother incidental rights, powers and discretions; and

#### (ii)                                  executeeach Senior Finance Document and any Documentary Credit expressed to be executedby such Agent on its behalf.

### (c)                                  EachFinance Party (other than the relevant Administrative Party) confirms that eachof the Arrangers and the Facility Agent has authority to accept on its behalfthe terms of any reliance letter or engagement letters relating to the Reportsor any reports or letters provided by accountants or Auditors in connectionwith the Senior Finance Documents or the transactions contemplated therein andto bind it in respect of such Reports, reports or letters and to sign such letterson its behalf and to the extent already entered into ratifies such actions andeach Finance Party further confirms that it accepts the terms andqualifications set out in such letters.

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### (d)                                 EachAgent has only those duties which are expressly specified in the Senior FinanceDocuments.  Those duties are solely of amechanical and administrative nature.

### (e)                                  EachAgent shall be released from the restrictions of self-dealing set out insection 181 of the German Civil Code (*Bürgerliches Gesetzbuch*)or restrictions having a similar effect under any applicable law.

## 25.2**                           Roleof the Arrangers**

Except as specifically provided in the Senior FinanceDocuments, no Arranger has any obligations of any kind to any other Party inconnection with any Senior Finance Document.

## 25.3**                           Nofiduciary duties**

Except as specifically provided in a Senior FinanceDocument and except in the case of the Security Agent, in relation to theSecurity Documents and monies recovered pursuant thereto:

### (a)                                  nothingin the Senior Finance Documents makes an Administrative Party a trustee orfiduciary for any other Party or any other person; and

### (b)                                 noAdministrative Party need hold in trust any moneys paid to or recovered by itfor a Party pursuant to the Senior Finance Documents or be liable to accountfor interest on those moneys.

## 25.4**                           Individualposition of an Administrative Party**

### (a)                                  Ifit is also a Lender, each Administrative Party has the same rights and powersunder the Senior Finance Documents as any other Lender and may exercise thoserights and powers as though it were not an Administrative Party.

### (b)                                 EachAdministrative Party may:

#### (i)                                     carryon any business with any Obligor or its related entities (including acting asan agent or a trustee for any other financing); and

#### (ii)                                  retainany profits or remuneration it receives under the Senior Finance Documents orin relation to any other business it carries on with any Obligor or its relatedentities.

## 25.5**                           Reliance**

Each Agent may:

### (a)                                  relyon any notice or document believed by it to be genuine and correct and to havebeen signed by, or with the authority of, the proper person;

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### (b)                                 relyon any statement made by any person regarding any matters which may reasonablybe assumed to be within his knowledge or within his power to verify;

### (c)                                  engage,pay for and rely on professional advisers selected by it (including thoserepresenting a Party other than that Agent); and

### (d)                                 actunder the Senior Finance Documents through its personnel and agents.

## 25.6**                           MajorityLenders’ instructions**

### (a)                                  EachAgent is fully protected if it acts on the instructions of the Majority Lendersin the exercise of any right, power or discretion or any matter not expresslyprovided for in the Senior Finance Documents. Any such instructions given by the Majority Lenders will be binding onall the Lenders.  In the absence ofinstructions, each Agent may act or refrain from acting as it considers to bein the best interests of all the Lenders. Without prejudice to the foregoing, the Agent shall have the authorityto agree the Agreed List of Obligors and Security and to make amendmentsthereto as set out in the definition of that term.

### (b)                                 NeitherAgent is authorised to act on behalf of a Lender (without first obtaining thatLender’s consent) in any legal or arbitration proceedings in connection withany Senior Finance Document.

### (c)                                  AnAgent may require the receipt of security satisfactory to it, whether by way ofpayment in advance or otherwise, against any liability or loss which it mayincur in complying with the instructions of the Majority Lenders.

## 25.7**                           Responsibility**

### (a)                                  NoAdministrative Party is responsible to any other Finance Party for theadequacy, accuracy or completeness of:

#### (i)                                     anySenior Finance Document or any other document; or

#### (ii)                                  anystatement or information (whether written or oral) made in or supplied inconnection with any Senior Finance Document.

### (b)                                 Withoutaffecting the responsibility of any Obligor for information supplied by it oron its behalf in connection with any Senior Finance Document, each Lenderconfirms that it:

#### (i)                                     hasmade, and will continue to make, its own independent appraisal of all risksarising under or in connection with the Senior Finance Documents (including thefinancial condition and affairs of each Obligor and its related entities andthe nature and extent of any recourse against any Party or its assets); and

#### (ii)                                  hasnot relied exclusively on any information provided to it by any AdministrativeParty in connection with any Senior Finance Document.

 

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## 25.8                           **Exclusion of liability**

### (a)                                  NeitherAgent is liable or responsible to any other Finance Party for any action takenor not taken by it in connection with any Senior Finance Document, unlessdirectly caused by its gross negligence or wilful misconduct.

### (b)                                 NoParty may take any proceedings against any officer, employee or agent of anAgent in respect of any claim it might have against that Agent or in respect ofany act or omission of any kind by that officer, employee or agent inconnection with any Senior Finance Document. Any officer, employee or agent of an Agent may rely on this Subclause.

## 25.9                           **Default**

### (a)                                  NeitherAgent is obliged to monitor or enquire whether a Default has occurred.  Neither Agent is deemed to have knowledge ofthe occurrence of a Default unless it has received notice from a Partydescribing such Default and specifying that the event or circumstance concernedis a Default.

### (b)                                 Ifan Agent:

#### (i)                                     receivesnotice from a Party referring to this Agreement, describing a Default andstating that the event is a Default; or

#### (ii)                                  isaware of the non-payment of any principal or interest or any fee payableto a Lender under any Senior Finance Document,

it must promptly notify the Lenders.

## 25.10**                     Information**

### (a)                                  EachAgent must promptly forward to the person concerned the original or a copy ofany document which is delivered to that Agent by a Party for that person.

### (b)                                 Exceptwhere a Senior Finance Document specifically provides otherwise, neither Agentis obliged to review or check the adequacy, accuracy or completeness of anydocument it forwards to another Party.

### (c)                                  Exceptas provided above, neither Agent has any duty:

#### (i)                                     eitherinitially or on a continuing basis to provide any Lender with any credit orother information concerning the risks arising under or in connection with theSenior Finance Documents (including any information relating to the financialcondition or affairs of any Obligor or its related entities or the nature orextent of recourse against any Party or its assets) whether coming into itspossession before, on or after the date of this Agreement; or

#### (ii)                                  unlessspecifically requested to do so by a Lender in accordance with a Senior FinanceDocument, to request any certificate or other document from any Obligor.

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### (d)                                 Inacting as an Agent, the agency division of each Agent is treated as a separateentity from its other divisions and departments.  Any information acquired by an Agent which,in its opinion, is acquired by it otherwise than in its capacity as an Agentmay be treated as confidential by that Agent and will not be treated asinformation possessed by that Agent in its capacity as such.

### (e)                                  NoAgent is obliged to disclose to any person any confidential informationsupplied to it by a member of the Group solely for the purpose of evaluatingwhether any waiver or amendment is required to any term of the Senior FinanceDocuments.

### (f)                                    EachObligor irrevocably authorises each Agent to disclose to the other FinanceParties any information which, in such Agent’s opinion, is received by it inits capacity as an Agent.

## 25.11**                     Indemnities**

### (a)                                  Withoutlimiting the liability of any Obligor under the Senior Finance Documents, eachLender must indemnify each Agent for that Lender’s Pro Rata Share of any lossor liability incurred by that Agent in acting as an Agent, except to the extentthat the loss or liability is caused by that Agent’s gross negligence or wilfulmisconduct.

### (b)                                 EachAgent may deduct from any amount received by it for a Lender any amount due tothat Agent from that Lender under a Senior Finance Document but unpaid.

## 25.12**                     Compliance**

Each Agent may refrain from doing anything (includingdisclosing any information) which might, in its opinion, constitute a breach ofany law or regulation or be otherwise actionable at the suit of any person, andmay do anything which, in its opinion, is necessary to comply with any law orregulation.

## 25.13**                     Resignation**

### (a)                                  EachAgent may resign and appoint any of its Affiliates as successor Agent to it bygiving notice to the Lenders and the Company.

### (b)                                 Alternatively,each Agent may resign by giving notice to the Lenders and the Company, in whichcase the Majority Lenders may appoint a successor Agent to it.

### (c)                                  Ifno successor Agent has been appointed under paragraph (b) above within30 days after notice of resignation was given, the relevant Agent may(after consultation with the Company) appoint a successor Agent to it.

### (d)                                 Theperson(s) appointing a successor Agent must, if practicable, consult with theCompany prior to the appointment.  Any successorAgent must have an office in the U.K.

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### (e)                                  Theresignation of an Agent and the appointment of any successor Agent will bothbecome effective only when:

#### (i)                                     thesuccessor Agent notifies all the Parties that it accepts its appointment; and

#### (ii)                                  ongiving the notification, the successor Agent will succeed to the position ofthe retiring Agent and the Facility Agent or Security Agent (as applicable)will mean the successor Agent; and

#### (iii)                               inthe case of  the Security Agent, theFacility Agent confirms that it is satisfied that the Security Documents (andany related documentation) have been transferred to or into (and where requiredregistered in) the name of the proposed successor Security Agent.

### (f)                                    Theretiring Agent must, at its own cost, make available to the successor Agentsuch documents and records and provide such assistance as the successor Agentmay reasonably request for the purposes of performing its functions as Agentunder the Senior Finance Documents.

### (g)                                 Uponits resignation becoming effective, this Clause will continue to benefit aretiring Agent in respect of any action taken or not taken by it in connectionwith the Senior Finance Documents while it was an Agent, and, subject toparagraph (f) above, it will have no further obligations under any SeniorFinance Document.

### (h)                                 TheMajority Lenders may, by notice to any Agent, require it to resign underparagraph (b) above.

### (i)                                     TheObligors will (at their own cost) take such action and execute such documentsas is required by the Security Agent (acting reasonably) so that the SecurityDocuments provide for effective and perfected security in favour of anysuccessor Security Agent.

## 25.14**                     Relationshipwith Lenders**

### (a)                                  EachAgent may treat each Lender as a Lender, entitled to payments under thisAgreement and as acting through its Facility Office(s) until it has receivednot less than five Business Days’ prior notice from that Lender to thecontrary.

### (b)                                 EachAgent may at any time, and must if requested to do so by the Majority Lenders,convene a meeting of the Lenders.

### (c)                                  EachAgent must keep a register of all the Parties and supply any other Party with acopy of the register on request.  Theregister will include each Lender’s Facility Office(s) and contact details forthe purposes of this Agreement.

## 25.15**                     Noticeperiod**

Where this Agreement specifies a minimum period ofnotice to be given to the Facility Agent, the Facility Agent may, at itsdiscretion, accept a shorter notice period.

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## 25.16**                     SecurityAgent**

### (a)                                  TheSecurity Agent shall hold the security constituted by the Security Documents ontrust or to the extent required by any applicable local law as agent for theFinance Parties or in its own name in accordance with the Senior FinanceDocuments and subject to the terms of the Priority Agreement.

### (b)                                 TheSecurity Agent shall not be liable for any failure, omission, or defect inregistering, protecting or perfecting the security constituted by any SecurityDocument or any security created thereby.

### (c)                                  TheSecurity Agent has no obligation to enquire into or check the title which anyObligor may have to any property over which security is intended to be createdby any Security Documents or to insure any such property.

### (d)                                 Savewhere the Security Agent holds a legal mortgage (or equivalent security) over,or over an interest in, real property or shares, the Security Agent is notunder any obligation to hold any title deeds, Security Documents or any otherdocuments in connection with the property charged by any Security Document orany other such security in its own possession or to take any steps to protector preserve the same.  The Security Agentmay permit the relevant Obligor, any bank providing safe custody services orany professional adviser of the Security Agent to retain all such title deeds,Security Documents and other documents in its possession.

### (e)                                  Allamounts received by the Security Agent under the Senior Finance Documents maybe:

#### (i)                                     investedin any investment for the time being authorised by English law for theinvestment by trustees of trust money or in any other investments which may beselected by the Security Agent with the consent of the Majority Lenders; or

#### (ii)                                  placedon deposit at such bank or institution (including any Agent or Lender) and uponsuch terms as the Security Agent may think fit. Any and all such monies and all interest thereon shall be paid over tothe Facility Agent forthwith upon demand by the Facility Agent.

### (f)                                    EachFinance Party confirms its approval of the Security Documents and authorisesand directs the Security Agent (by itself or by such person(s) as it maynominate) to execute and enforce the same as trustee (or agent or in its ownname) or as otherwise provided (and whether or not expressly in the Lenders’names) on its behalf.

# **26.****                               EVIDENCEAND CALCULATIONS**

## 26.1**                           Accounts**

Accounts maintained by a Finance Party in connectionwith this Agreement are prima facie evidence of the matters to which theyrelate for the purpose of any litigation or arbitration proceedings.

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## 26.2                           **Certificates and determinations**

Any certification or determination by a Finance Party(showing reasonable detail, if applicable) of a rate or amount under the SeniorFinance Documents will be, in the absence of manifest error, conclusiveevidence of the matters to which it relates.

## 26.3**                           Calculations**

Any interest or fee accruing under this Agreementaccrues from day to day and is calculated on the basis of the actual number ofdays elapsed and a year of 360 days (or in the case of any amount denominatedin Sterling 365 days or otherwise depending on what the Facility Agentdetermines to be market practice).

# **27.****                               FEES**

## 27.1**                           Agents’fee**

The Company must pay to each Agent for its own accountan agency fee in the manner agreed in the Fee Letter between that Agent and theCompany.

## 27.2                           **Arrangement fee**

The Company must pay to the Arrangers for their ownaccount an arrangement fee in the manner agreed in the Fee Letter between theArrangers and the Company.

## 27.3**                           TermLoan Commitment fee**

### (a)                                  TheCompany must pay a commitment fee computed at the rate of 0.25 % per annumfrom and including the 30th day after the Signing Date for a period of 30 daysand thereafter at the rate of 0.50% per annum on the undrawn, uncancelledamount of each Lender’s Total Term Loan Commitments.

### (b)                                 Accruedcommitment fee is payable on the First Drawdown Date and thereafter quarterlyin arrears.  Accrued commitment fee isalso payable to the Facility Agent for a Lender on the date its Total Term LoanCommitments are cancelled in full.

### (c)                                  Commitmentfee accrued and paid under this Agreement in respect of the Total Term LoanCommitments is in place of any commitment fee accrued under the CommitmentLetter in respect of a corresponding amount of Term Loan Commitments and theCompany shall not be required to pay commitment fee for the same period underboth this Agreement and the Commitment Letter.

## 27.4**                           Revolving/RestructuringCredit commitment fee**

### (a)                                  TheCompany must pay a commitment fee computed at the rate of 0.75% per annum onthe undrawn, uncancelled amount of each Lender’s Revolving Credit Commitmentsand Restructuring Credit Commitments from the Closing Date.

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### (b)                                 Accruedcommitment fee is payable on the First Drawdown Date and thereafter quarterlyin arrears.  Accrued commitment fee isalso payable to the Facility Agent for a Lender on the date its RevolvingCredit Commitments or Restructuring Credit Commitments (as the case may be) arecancelled in full.

## 27.5**                           AdditionalFacility fees**

### (a)                                  TheCompany shall pay to the Facility Agent for distribution to each InitialAdditional Facility Lender any commitment fee required pursuant to the terms ofthe relevant Additional Facility Accession Agreement (to be computed andpayable as set out in such Additional Facility Accession Agreement).

### (b)                                 TheCompany must pay to each relevant Initial Additional Facility Lender and/or thearranger(s) of the relevant Additional Facility for their own account any otherfees as may be set out in an Additional Facility Fee Letter.

# **28.****                               INDEMNITIESAND BREAK COSTS**

## 28.1**                           Currencyindemnity**

### (a)                                  TheCompany shall, as an independent obligation, indemnify each Finance Partyagainst any loss or liability which that Finance Party incurs as a consequenceof:

#### (i)                                     thatFinance Party receiving an amount in respect of an Obligor’s liability underthe Senior Finance Documents; or

#### (ii)                                  thatliability being converted into a claim, proof, judgment or order,

in a currency other than the currency in which theamount is expressed to be payable under the relevant Senior Finance Document.

### (b)                                 Unlessotherwise required by law, each Obligor waives any right it may have in anyjurisdiction to pay any amount under the Senior Finance Documents in a currencyother than that in which it is expressed to be payable.

## 28.2**                           Acquisitionindemnity**

The Company agrees to indemnify each Finance Partyagainst any loss or liability incurred by that Finance Party in connection withor arising out of the Acquisition or the funding of the Acquisition (includingbut not limited to all costs reasonably incurred in connection with anylitigation, arbitration or administrative proceedings or regulatory enquiryconcerning the Acquisition), unless such loss or liability is caused by thegross negligence, wilful misconduct or breach of contract of that FinanceParty.

## 28.3**                           Environmentalindemnity**

Each Obligor agrees to indemnify each Finance Party,each receiver appointed under any Security Document and their respectiveofficers, employees, agents and delegates (together the **IndemnifiedParties**) against any loss or liability suffered or incurred by thatIndemnified Party (except to the extent caused by such Indemnified Party’s (orits 

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officers, employees, agents or delegates) ownnegligence, wilful default or breach of contract which:

### (a)                                  arisesby virtue of any actual or alleged breach of any Environmental Law (whether byany Obligor, an Indemnified Party or any other person); or

### (b)                                 arisesin connection with an Environmental Claim,

which relates to the Group, any assets of the Group orthe operation of all or part of the business of the Group (or in each case anymember of the Group) and which would not have arisen if the Senior FinanceDocuments or any of them had not been executed by that Finance Party.

## 28.4**                           Otherindemnities**

### (a)                                  TheCompany must indemnify each Finance Party against any loss or liability whichthat Finance Party incurs as a consequence of:

#### (i)                                     theoccurrence of any Event of Default;

#### (ii)                                  anyfailure by an Obligor to pay any amount due under a Senior Finance Document onits due date, including any resulting from any distribution or redistributionof any amount among the Lenders under this Agreement;

#### (iii)                               (otherthan by reason of negligence or default by that Finance Party) a Credit notbeing made after a Request has been delivered for that Credit; or

#### (iv)                              aCredit (or part of a Credit) not being prepaid in accordance with a notice ofprepayment or any Loan or overdue amount being repaid or prepaid other than onthe last day of the current Term for such Loan or overdue amount.

The Obligor’s liability in each case includes any lossor expense on account of funds borrowed, contracted for or utilised to fund anyamount payable under any Senior Finance Document, any amount repaid or prepaidor any Credit.

### (b)                                 TheCompany must indemnify the Facility Agent against any loss or liabilityincurred by the Facility Agent as a result of:

#### (i)                                     investigatingany event which the Facility Agent reasonably believes to be a Default; or

#### (ii)                                  actingor relying on any notice which the Facility Agent reasonably believes to begenuine, correct and appropriately authorised.

## 28.5**                           BreakCosts**

### (a)                                  EachBorrower must pay to each Lender its Break Costs in relation to Loans oroverdue amounts repaid or prepaid to it otherwise than on the last day of aTerm applicable thereto.

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### (b)                                 EachLender must supply to the Facility Agent for the relevant Borrower details ofthe amount of any Break Costs claimed by it under this Subclause.

# **29.****                               EXPENSES**

## 29.1**                           Initialcosts**

The Company must pay to each Administrative Party theamount of all costs and expenses (including legal fees) reasonably incurred byit in connection with the negotiation, preparation, printing and execution ofthe Senior Finance Documents and other documents contemplated thereby andsyndication of the Facilities, subject to the limits agreed between the Companyand such Administrative Parties in the Fee Letter.

## 29.2**                           Subsequentcosts**

The Company must pay to the Facility Agent the amountof all costs and expenses (including legal fees) reasonably incurred by it inconnection with:

### (a)                                  thenegotiation, preparation, printing and execution of any Senior Finance Document(other than a Transfer Certificate) executed after the Closing Date and whichwere not included in the limits agreed in the Fee Letter;

### (b)                                 anyamendment, waiver or consent made or granted in connection with the SeniorFinance Documents; and

### (c)                                  anyother matter not of an ordinary administrative nature arising out of or inconnection with any Senior Finance Document.

## 29.3**                           Enforcementcosts**

The Company must pay to each Finance Party the amountof all third party costs and expenses (including legal fees) incurred by it inconnection with the enforcement of, or the preservation of any rights under,any Senior Finance Document.

# **30.****                               AMENDMENTSAND WAIVERS**

## 30.1**                           Procedure**

### (a)                                  Exceptas provided in this Clause or as otherwise provided in the Agreement, any termof the Senior Finance Documents may be amended or waived with the agreement ofthe Parent and the Majority Lenders.  TheFacility Agent may effect, on behalf of any Finance Party, an amendment orwaiver allowed under this Clause.  EachObligor agrees to any such amendment or waiver agreed to by the Parent.

### (b)                                 EachFinance Party irrevocably agrees to any technical and mechanical amendments tothe Finance Documents which are necessary for the effective operation of any AdditionalFacility provided that all such amendments taken as a whole are no more onerousthat the provisions applicable to any C1 Term Loan and provided further thatsuch amendments would not adversely affect the interests of any Finance Party.Each Obligor agrees to any such amendment agreed to by the Parent.  For the avoidance of doubt the Facility 

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### Agent and theSecurity Agent shall be entitled without the consent of any Lender to amend orrelease and retake any Security Document if to do so is necessary or advisablein connection with ensuring that the Additional Facility Loans are secured bythe Security Documents.

### (c)                                  TheFacility Agent must promptly notify the other Parties of any amendment orwaiver effected by it under paragraph (a) or (b) above.  Any such amendment or waiver is binding onall the Parties.

## 30.2**                           Exceptions**

### (a)                                  Anamendment or waiver which relates to:

#### (i)                                     the definition of Majority Lendersand Super Majority Lenders in Clause 1.1 (*Definitions*);

#### (ii)                                  theranking or subordination provided for in the Priority Agreement (other than byway of increases of senior commitments envisaged therein);

#### (iii)                               Clause 34(*Pro Rata Sharing*);

#### (iv)                              aterm of a Senior Finance Document which expressly requires the consent of eachLender;

#### (v)                                 achange of Borrowers, save as expressly provided for in this Agreement; or

#### (vi)                              thisClause,

may only be made with the consent of all the Lenders.

### (b)                                 Anamendment or waiver which relates to:

#### (i)                                     anextension of the date of payment of any amount to a Lender under the SeniorFinance Documents other than under Subclauses 11.4 (*Mandatoryprepayment — disposals, insurance, warranty and report claims*) or11.6 (*Mandatory prepayment - Excess Cash Flow*);

#### (ii)                                  areduction in the Margin or a reduction in the amount of any payment ofprincipal, interest, fee or other amount payable to a Lender under the SeniorFinance Documents, other than under Subclauses 11.4 (*Mandatoryprepayment — disposals, insurance, warranty and report claims*) or11.6 (*Mandatory prepayment - Excess Cash Flow*)or 12.3 (*Margin adjustments*);

#### (iii)                               anincrease in, or a redenomination of an extension of, a Commitment or the TotalCommitments;

#### (iv)                              theright of a Lender to assign or transfer its rights or obligations under theSenior Finance Documents;

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may only be made with the consent of each Lender whichis directly affected by such amendment or waiver.

### (c)                                  Anamendment or waiver which relates to:

#### (i)                                     unlessprovided for in this Agreement (including without limitation any disposal underSubclause 23.6(b)(xi) (*Disposals*)or any Permitted Reorganisation, which require Majority Lender consent) or thePriority Agreement, a release of security over any shares or over any otherassets worth €5,000,000 or its equivalent or more granted under the SecurityDocuments;

#### (ii)                                  arelease of an Obligor other than a Borrower, save as expressly provided for inthis Agreement;

may only be made with the consent of the SuperMajority Lenders.

### (d)                                 Anamendment or waiver which relates to the rights or obligations of anAdministrative Party may only be made with the consent of that AdministrativeParty.

### (e)                                  Anamendment or waiver which relates to the rights or obligations of the IssuingBank or any Ancillary Lender, in their respective capacities as such, may notbe effected without the prior consent of the Issuing Bank or, as the case maybe, that Ancillary Lender.

### (f)                                    Lendersnot responding to waiver or amendment requests within 10 Business Days (or suchlonger period as the Facility Agent may reasonably determine is appropriateafter consultation in good faith with the Company and is notified to theLenders) will be excluded from the voting calculation.

## 30.3**                           Changeof currency**

If a change in any currency of a country occurs(including where there is more than one currency or currency unit recognised atthe same time as the lawful currency of a country), the Senior FinanceDocuments will be amended to the extent the Facility Agent (acting reasonablyand after consultation with the Company) determines is necessary to reflect thechange.

## 30.4**                           Waiversand remedies cumulative**

The rights of each Finance Party under the SeniorFinance Documents:

### (a)                                  maybe exercised as often as necessary;

### (b)                                 arecumulative and not exclusive of its rights under the general law; and

### (c)                                  maybe waived only in writing and specifically.

Delay in exercising or non-exercise of any rightis not a waiver of that right.

 

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# **31.****                               CHANGESTO THE PARTIES**

## 31.1**                           Assignmentsand transfers by Obligors**

No Obligor may assign or transfer any of its rightsand obligations under the Senior Finance Documents without the prior consent ofall the Lenders.

## 31.2**                           Assignmentsand transfers by Lenders**

### (a)                                  ALender (the “**Existing Lender**”) may, subject to the followingprovisions of this Subclause, at any time assign or transfer (including by wayof novation) any of its rights and obligations under this Agreement to anyother person (the “**New Lender**”).

### (b)                                 Unlessthe Company and the Facility Agent otherwise agree, a transfer of part of aCommitment or the rights and obligations under this Agreement by an ExistingLender must (a) be in a minimum amount of €5,000,000 or, in respect of anyLender which participates in the B1 Term Loan Facility, B2 Term Loan Facility,C1 Term Loan Facility or C2 Term Loan Facility only, €2,500,000) and (b) of anamount such that if the Existing Lender retains any Commitment it is of aminimum amount of €2,500,000 PROVIDED THAT for the purpose of paragraph (a)above:

#### (i)                                     ifan Existing Lender is a Fund, it may transfer to another Fund that is either anExisting Lender or a Related Fund of a Fund that is an Existing Lender in anyamount;

#### (ii)                                  inthe case of concurrent transfers by an Existing Lender to two or more RelatedFunds, all such concurrent transfers shall be aggregated; and

#### (iii)                               ifon the same date two or more Existing Lenders are transferring part of theirCommitments or the rights and obligations under this Agreement to the sametransferee the minimum amount so transferred by any Existing Lender to suchtransferee may be less than €5,000,000 (or €2,500,000 in the case of transfersof B1 Term Loan Commitments, B2 Term Loan Commitments, C1 Term Loan Commitmentsor C2 Term Loan Commitments) so long as the aggregate amount transferred tosuch transferee on such date is €5,000,000 (or €2,500,000 in the case oftransfers of B1 Term Loan Commitments, B2 Term Loan Commitments, C1 Term LoanCommitments or C2 Term Loan Commitments) or more,

#### and, in eachcase, any threshold in this Clause 31.2 shall apply to the aggregate of the (i)A1 Term Loan Commitments and A2 Term Loan Commitments; or (ii) B1 Term LoanCommitments and B2 Term Loan Commitments; or (iii) C1 Term Loan Commitments andC2 Term Loan Commitments, (as applicable) so transferred or retained.

### (c)                                  Exceptduring the Syndication Period an Existing Lender must consult with the Companyprior to making an assignment or transfer to a New Lender.  The 

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### consultationwith the Company in relation to an assignment, transfer, sub participation orsub contract shall not be required:

#### (i)                                     ifsuch assignment, transfer, sub participation, or sub contract is to an ExistingLender or affiliate of such a Lender;

#### (ii)                                  ifsuch assignment, transfer, sub participation, or sub contract is to a fundwithin the same investor group as a fund which is an Existing Lender; or

#### (iii)                               ifan Event of Default is continuing.

### (d)                                 Atransfer of rights and obligations will be effective only if either:

#### (i)                                     therights and obligations are novated in accordance with the following provisionsof this Clause; or

#### (ii)                                  theNew Lender confirms to the Facility Agent and the Company in form and substancesatisfactory to the Facility Agent that it is bound by the terms of thisAgreement and the Priority Agreement as a Lender.  On the transfer becoming effective in thismanner the Existing Lender will be released from its rights and obligationsunder this Agreement to the extent that they are transferred to the New Lender.

### (e)                                  Unlessthe Facility Agent otherwise agrees, the New Lender must pay to the FacilityAgent for its own account, on or before the date any assignment or transferoccurs, a fee of €1,500.

### (f)                                    Anyreference in this Agreement to a Lender includes a New Lender but excludes aLender if no amount is or may be owed to or by it under this Agreement.

### (g)                                 ALender may sub-participate or sub-contract its obligations underthis Agreement provided that if voting rights are given to any sub-participantor sub-contractor the relevant Lender must first consult with the Company(subject to paragraph (c)).

### (h)                                 Ifany Lender assigns or transfers any of its rights and/or obligations under thisAgreement, a copy of the written instrument by which such rights are assignedor transferred will be notified by the New Lender to any Obligor incorporatedin the Republic of France by bailiff (huissier) in accordance with theprovisions of Article 1690 of the French Civil Code.

### (i)                                     Withoutprejudice to Subclause 31.6 (*Costs resulting fromchange of Lender or Facility Office*) or any other provision of thisAgreement relating to assignment or transfer by any Lender of its rights andobligations under this Agreement any Lender which is a fund may, without theconsent of the Company or the Facility Agent pledge all or any portion of itsLoans to a trustee for the benefit of investors in such fund and in support ofits obligations to such investors or trustee. No such pledge or assignment shall release the relevant Lender from theobligations hereunder.

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### (j)                                     Forthe purposes of and pursuant to Article 1263 of the Italian Civil Code, it ishereby expressly agreed that, in the event of any assignment or transfer ofrights or obligations made by an Existing Lender under this Clause 31.2 (*Assignment and transfers by Lenders*), all Security Interestscreated or evidenced by the Security Documents shall be preserved for thebenefit of the New Lender and each other Lender in accordance with the terms ofthe Security Documents.

## 31.3**                           Representationby Dutch Borrowers and New Lenders**

If at the time of any such assignment or transfer itis a requirement of Dutch law that the New Lender is a Professional MarketParty:

### (a)                                  theDutch Borrower represents on the date of such assignment to each Finance Partythat it has verified (solely by virtue of the Dutch Borrower receiving anunqualified written confirmation to that effect, as referred to below, from therelevant New Lender (through the Administrative Agent)) the status of the NewLender as a Professional Market Party under the Dutch Exemption Regulation; and

### (b)                                 onthe date that a New Lender becomes party to this Agreement as a Lender to theDutch Borrower, that New Lender represents and warrants to the Dutch Borrower(by delivery of an unqualified written confirmation to that effect) that onsuch date (i) it is a Professional Market Party and (ii) it is aware that ittherefore does not benefit from the (creditor) protection for non-ProfessionalMarket Parties under the Dutch Banking Act.

## 31.4**                           Procedurefor transfer by way of novations**

### (a)                                  Anovation is effected if:

#### (i)                                     theExisting Lender and the New Lender deliver to the Facility Agent a dulycompleted Transfer Certificate; and

#### (ii)                                  theFacility Agent executes it.

The Facility Agent must execute as soon as reasonablypracticable a Transfer Certificate delivered to it and which appears on itsface to be in order.

### (b)                                 EachParty (other than the Existing Lender and the New Lender) irrevocablyauthorises the Facility Agent to execute any duly completed Transfer Certificateon its behalf.

### (c)                                  Onthe Transfer Date:

#### (i)                                     theNew Lender will assume the rights and obligations of the Existing Lenderexpressed to be the subject of the novation in the Transfer Certificate insubstitution for the Existing Lender; and

#### (ii)                                  theExisting Lender will be released from those obligations and cease to have thoserights; and

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#### (iii)                               theNew Lender will become a party to this Agreement as a Lender and to thePriority Agreement as a Senior Creditor (as defined in the Priority Agreement).

### (d)                                 Therights and obligations of the Existing Lender in respect of any DocumentaryCredit outstanding on the Transfer Date will not be novated or released, unlessthe Issuing Bank consents pursuant to Subclause 7.2 (*Assignments and transfers*).

### (e)                                  TheFacility Agent shall provide the Parent with a copy of each TransferCertificate.

### (f)                                    Thenovation shall in no event affect the obligations of the Company or any Obligorunder this Agreement and therefore the substitution of a New Lender in therights and obligations of an Existing Lender will not extinguish suchobligations.  For the purposes ofArticles 1278 *et seq* of the French Civil Codeand Article 1528 of the Spanish Civil Code the Obligors and the Finance Partiesagree that upon any novation under this Clause 31, the security andguarantees created by the Senior Finance Documents shall be preserved for thebenefit of the New Lender.

## 31.5**                           Limitationof responsibility of Existing Lender**

### (a)                                  Unlessexpressly agreed to the contrary, an Existing Lender is not responsible to aNew Lender for the legality, validity, adequacy, accuracy, completeness orperformance of:

#### (i)                                     anyFinance Document or any other document; or

#### (ii)                                  anystatement or information (whether written or oral) made in or supplied inconnection with any Finance Document,

and any representations or warranties implied by laware excluded.

### (b)                                 EachNew Lender confirms to the Existing Lender and the other Finance Parties thatit:

#### (i)                                     hasmade, and will continue to make, its own independent appraisal of all risksarising under or in connection with the Senior Finance Documents (including thefinancial condition and affairs of each Obligor and its related entities andthe nature and extent of any recourse against any Party or its assets) inconnection with its participation in this Agreement; and

#### (ii)                                  hasnot relied exclusively on any information supplied to it by the Existing Lenderin connection with any Senior Finance Document.

### (c)                                  Nothingin any Senior Finance Document requires an Existing Lender to:

#### (i)                                     accepta re-transfer from a New Lender of any of the rights and obligationsassigned or transferred under this Clause; or

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#### (ii)                                  supportany losses incurred by the New Lender by reason of the non-performance byany Obligor of its obligations under any Senior Finance Document or otherwise.

## 31.6**                           Costsresulting from change of Lender or Facility Office**

If:

### (a)                                  aLender assigns or transfers any of its rights and obligations under the SeniorFinance Documents or changes its Facility Office; and

### (b)                                 asa result of circumstances existing at the date the assignment, transfer orchange occurs, an Obligor would be obliged to make a payment under Clauses 15.1(*Grossing-up for Taxes*),15.2 (*Tax Indemnity*) or 16.1 (*Increased Costs*),

then, unless the assignment, transfer or change ismade to mitigate any circumstances giving rise to such payment or a right to beprepaid and/or cancelled by reason of illegality, the Obligor need only paythat amount to the same extent that it would have been obliged to if noassignment, transfer or change had occurred.

## 31.7**                           Releaseof Security**

### (a)                                  Ifa disposal to a person or persons outside the Group of assets or shares ownedby an Obligor over which security has been created by the Security Documentsis:

#### (i)                                     permittedby the terms of Clause 23.6 (*Disposals*)or Clause 23.38 (*Permitted Receivables Securitisations*)and will not result directly or indirectly in any breach of the terms of thisAgreement; or

#### (ii)                                  isbeing effected at the request of the Majority Lenders in circumstances where anyof the security created by the Security Documents has become enforceable; or

#### (iii)                               suchdisposal is being effected by enforcement of the Security Documents,

the Security Agent shall (and is authorised by theFinance Parties to) on the completion of the disposal release (at the expenseof the relevant Obligor) from the Security Documents, the assets which aresubject to that disposal and (where the disposal is such that an Obligor ceasesto be a member of the Group) the assets of that entity.  The Security Agent shall (at the reasonablerequest and at the expense of the Company) provide confirmation of the releaseof any asset from the Security under the Security Documents or (where relevant)confirmation of non-crystallisation of a floating charge, such confirmationto be in such form as the Security Agent may determine.

### (b)                                 Notwithstandingany other provisions in this Agreement, the release of any security over assetsor shares created by a Security Document governed by Swedish law or Danish lawwill (unless the proceeds of the disposal of the asset secured or charged areapplied in prepayment of amounts outstanding under this Agreement) always besubject to the prior written consent of the 

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### SecurityAgent, such consent to be granted at the Security Agent’s sole discretion.  In exercising such discretion the SecurityAgent shall in good faith have regard to Clause 23.6 (*Disposals*) but shall not be under anyobligation to give any consent.

## 31.8**                           Changesto the Reference Banks**

If a Reference Bank which is a Lender (or, if aReference Bank is not a Lender, the Lender of which it is an Affiliate) ceasesto be a Lender, the Facility Agent must (in consultation with the Company)appoint another Lender or Affiliate of a Lender to replace that Reference Bank.

## 31.9**                           Affiliatesof Lenders**

### (a)                                  EachLender may fulfil its obligations in respect of any Credit through an Affiliateif:

#### (i)                                     therelevant Affiliate is specified in this Agreement as a Lender or becomes aLender by means of a Transfer Certificate in accordance with this Agreement;and

#### (ii)                                  theCredit in which that Affiliate will participate are specified in this Agreementor in a notice given by that Lender to the Facility Agent and the Company.

In this event, the Lender and the Affiliate willparticipate in that Credit in the manner provided for in sub-paragraph(ii) above.

### (b)                                 Ifparagraph (a) applies, the Lender and its Affiliate will be treated as having asingle Commitment and a single vote, but, for all other purposes, will betreated as separate Lenders.

## 31.10**                     NewIssuing Banks**

### (a)                                  Ifa Lender or an Affiliate of a Lender wishes to become an Issuing Bank then itmay, with the consent of the Company and the Facility Agent, deliver an IssuingBank Accession Deed to the Facility Agent in a form approved by the FacilityAgent.

### (b)                                 Therelevant Lender or Affiliate of a Lender will become an Issuing Bank when theFacility Agent notifies the other Finance Parties and the Company that suchIssuing Bank Accession Deed is in form and substance satisfactory to it andexecutes such Issuing Bank Accession Deed. The Facility Agent must give this notification as soon as reasonablypracticable.

## 31.11**                     Maintenanceof Register**

The Company hereby designates the Facility Agent toserve as the Company’s agent, solely for purposes of this Subclause 31.11to maintain a register (the “**Register**”)on which it will record the Commitments from time to time of each of theLenders, the Loans made by each of the Lenders and each repayment in respect ofthe principal amount of the Loans of each Lender.  Failure to make any such recordation, or any 

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error in such recordation shall not affect the Company’sor any Obligor’s obligations in respect of such Loans.  Notwithstanding any other provision in thisClause 31, with respect to any Lender, the transfer of the Commitments ofsuch Lender and the rights to the principal of, and interest on, any Loan madepursuant to such Commitments shall not be effective until such transfer isrecorded on the Register maintained by the Facility Agent with respect toownership of such Commitments and Loans and prior to such recordation allamounts owing to the transferor with respect to such Commitments and Loansshall remain owing to the transferor. Notwithstanding any other provision in this Clause 31, the registrationof assignment or transfer of all or part of any Commitments and Loans shall berecorded by the Facility Agent on the Register only upon the delivery to andacceptance by the Facility Agent of properly executed and delivered transferdocuments pursuant to this Clause 31 and no assignment or transfer shallbe effective until so recorded.  TheFacility Agent will promptly update the Register upon receipt by it of suchdocuments.

# **32.****                               DISCLOSUREOF INFORMATION**

### (a)                                  EachFinance Party must keep confidential any information supplied to it by or onbehalf of any Obligor in connection with the Senior Finance Documents.  However, a Finance Party is entitled todisclose information:

#### (i)                                     whichis publicly available, other than as a result of a breach by that Finance Partyof this Clause;

#### (ii)                                  inconnection with any legal or arbitration proceedings;

#### (iii)                               ifrequired to do so under any law or regulation;

#### (iv)                              toa governmental, banking, taxation or other regulatory authority if required;

#### (v)                                 toits professional advisers on a confidential basis;

#### (vi)                              tothe extent allowed under paragraph (b) below;

#### (vii)                           toany one or more of Fitch Ratings Limited, Moody’s Investors Service, Inc. orStandard & Poor’s Rating Services, a division of The McGraw-Hill Companies,Inc., for the purpose of rating the Facilities or the relevant Lender, providedthat such Lender takes reasonable steps to procure that each such rating agencymaintains the confidentiality of that information; or

#### (viii)                        withthe agreement of the relevant Obligor.

### (b)                                 AFinance Party may disclose to an Affiliate or any person with whom it mayenter, or has entered into, any kind of transfer, participation or otheragreement in relation to this Agreement (a “**participant**”):

#### (i)                                     acopy of any Senior Finance Document; and

#### (ii)                                  anyinformation which that Finance Party has acquired under or in connection withany Senior Finance Document.

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However, before a participant may receive anyconfidential information, it must agree in writing with the relevant FinanceParty (and for the benefit of the Company) to keep that informationconfidential on the terms of paragraph (a) above.

### (c)                                  ThisClause supersedes any previous confidentiality undertaking given by aFinance Party in connection with this Agreement prior to it becoming a Party.

# **33.****                               SET-OFF**

After the occurrence and during the continuance of anEvent of Default, a Finance Party may set off any matured obligation owed to itby an Obligor under the Senior Finance Documents (to the extent beneficiallyowned by that Finance Party) against any obligation (whether or not matured)owed by that Finance Party to that Obligor, regardless of the place of payment,booking branch or currency of either obligation.  If the obligations are in different currencies,the Finance Party may convert either obligation at a market rate of exchange inits usual course of business for the purpose of the set-off.  A Finance Party may also at any time afterthe occurrence and during the continuance of an Event of Default combine orconsolidate accounts held with it by any Obligor.

# **34.****                               PRORATA SHARING**

## 34.1**                           Redistribution**

If any amount owing by an Obligor under any of theSenior Finance Documents to a Lender (the “**recovering Lender**”) is discharged by payment, set-offor any other manner other than through the Facility Agent under this Agreement(a “**recovery**”), then:

### (a)                                  therecovering Lender must, within three Business Days, supply details of therecovery to the Facility Agent;

### (b)                                 theFacility Agent must calculate whether the recovery is in excess of the amountwhich the recovering Lender would have received if the recovery had beenreceived by the Facility Agent under this Agreement; and

### (c)                                  therecovering Lender must pay to the Facility Agent an amount equal to the excess(the **redistribution**) within fivedays of demand by the Facility Agent.

## 34.2**                           Effectof redistribution**

### (a)                                  TheFacility Agent must treat a redistribution as if it were a payment by therelevant Obligor under this Agreement and distribute it among the Lenders,other than the recovering Lender, accordingly.

### (b)                                 Whenthe Facility Agent makes a distribution under paragraph (a) above, therecovering Lender will be subrogated to the rights of the Finance Parties whichhave shared in that redistribution.

### (c)                                  Ifand to the extent that the recovering Lender is not able to rely on any rightsof subrogation under paragraph (b) above, the relevant Obligor will owethe 

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### recoveringLender a debt which is equal to the redistribution, immediately payable and ofthe type originally discharged.

### (d)                                 If:

#### (i)                                     arecovering Lender must subsequently return a recovery, or an amount measured byreference to a recovery, to an Obligor; and

#### (ii)                                  therecovering Lender has paid a redistribution in relation to that recovery,

each Finance Party must reimburse the recovering Lenderall or the appropriate portion of the redistribution paid to that FinanceParty, together with interest for the period while it held the re-distribution.  In this event, the subrogation inparagraph (b) above will operate in reverse to the extent of thereimbursement.

## 34.3**                           Exceptions**

Notwithstanding any other term of this Clause, arecovering Lender need not pay a redistribution to the extent that:

### (a)                                  itwould not, after the payment, have a valid claim against the relevant Obligorin the amount of the redistribution; or

### (b)                                 itwould be sharing with another Finance Party any amount which the recoveringLender has received or recovered as a result of legal or arbitrationproceedings, where:

#### (i)                                     therecovering Lender notified the Facility Agent of those proceedings; and

#### (ii)                                  theother Finance Party had an opportunity to participate in those proceedings butdid not do so or did not take separate legal or arbitration proceedings as soonas reasonably practicable after receiving notice of them.

# **35.****                               SEVERABILITY**

If a term of a Senior Finance Document is or becomesillegal, invalid or unenforceable in any jurisdiction, that shall not affect:

### (a)                                  thelegality, validity or enforceability in that jurisdiction of any other term ofthe Senior Finance Documents; or

### (b)                                 thelegality, validity or enforceability in other jurisdictions of that or anyother term of the Senior Finance Documents.

# **36.****                               COUNTERPARTS**

Each Senior Finance Document may be executed in anynumber of counterparts.  This has thesame effect as if the signatures on the counterparts were on a single copy ofthe Senior Finance Document.

 

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# **37.****                               NOTICES**

## 37.1**                           Inwriting**

### (a)                                  Anycommunication in connection with a Senior Finance Document must be in writingand, unless otherwise stated, may be given:

#### (i)                                     inperson, by post, telex, fax or any other electronic communication approved bythe Facility Agent; or

#### (ii)                                  ifbetween the Facility Agent and a Lender and the Facility Agent and the Lenderagree, by e-mail or other electronic communication.

### (b)                                 Forthe purpose of the Senior Finance Documents, an electronic communication willbe treated as being in writing.

### (c)                                  Unlessit is agreed to the contrary, any consent or agreement required under a SeniorFinance Document must be given in writing.

## 37.2**                           Contactdetails**

### (a)                                  Exceptas provided below, the contact details of each Party for all communications inconnection with the Senior Finance Documents are those notified by that Partyfor this purpose to the Facility Agent on or before the date it becomes aParty.

### (b)                                 Thecontact details of the Parent, Smurfit Kappa Funding and the Company for thispurpose are:

Address:                                                               ThreeFirst National Plaza70 West MadisonSuite 3800Chicago, Illinois 60602Fax number: 1 312 895 1001E-mail:                                             smencoff@mdcp.com,tsouleles@mdcp.comAttention:         Sam Mencoff/TomSouleles

With a copy to:                             Ian Curley and Paul ReganSmurfit Kappa Corporation LimitedBeech Hill, Clonskeagh, Dublin 4Fax:  353 1 2600 709Tel:  353 1 2600 900

### (c)                                  Thecontact details of the Facility Agent for this purpose are:

Address:                                                               WinchesterHouse1 Great Winchester StreetLondon EC2N 2DBFax number: +44 (0)20 7547 6419E-mail:                                             Christopher.Benham@db.com/ Maria.de-Lellis@db.comAttention:         ChristopherBenham / Maria de-Lellis

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### (d)                                 AnyParty may change its contact details by giving five Business Days’ notice tothe Facility Agent or (in the case of the Facility Agent) to the other Parties.

### (e)                                  Wherea Party nominates a particular department or officer to receive acommunication, a communication will not be effective if it fails to specifythat department or officer.

## 37.3**                           Effectiveness**

### (a)                                  Exceptas provided below, any communication in connection with a Senior FinanceDocument will be deemed to be given as follows:

#### (i)                                     ifdelivered in person, at the time of delivery;

#### (ii)                                  ifposted, five days after being deposited in the post, postage prepaid, in acorrectly addressed envelope;

#### (iii)                               ifby telex, when despatched, but only if, at the time of transmission, thecorrect answerback appears at the start and at the end of the sender’s copy ofthe notice;

#### (iv)                              ifby fax, when received in legible form;

#### (v)                                 ifby e-mail or any other electronic communication, when received in legibleform; and

#### (vi)                              ifby posting to an electronic website, at the time of posting or if the relevantrecipient did not at such time have access to such website, the time at whichsuch recipient is given access.

### (b)                                 Acommunication given under paragraph (a) above but received on a non-workingday or after business hours in the place of receipt will only be deemed to begiven on the next working day in that place.

### (c)                                  Acommunication to the Facility Agent will only be effective on actual receipt byit.

## 37.4**                           Obligors**

### (a)                                  Allcommunications under the Senior Finance Documents to or from an Obligor must besent through the Facility Agent.

### (b)                                 Allcommunications under the Senior Finance Documents to or from an Obligor (otherthan the Company) must be sent through the Company.

### (c)                                  EachObligor (other than the Company) irrevocably appoints the Company to act as itsagent:

#### (i)                                     togive and receive all communications under the Senior Finance Documents;

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#### (ii)                                  tosupply all information concerning itself to any Finance Party; and

#### (iii)                               toagree and sign all documents under or in connection with the Senior FinanceDocuments without further reference to the other Obligors.

### (d)                                 Anycommunication given to the Company in connection with a Senior Finance Documentwill be deemed to have been given also to the other Obligors.

### (e)                                  TheFacility Agent and the other Finance Parties may assume that any communicationmade by the Company is made with the consent of each other Obligor.

## 37.5**                           PersonalLiability**

If an individual signs a certificate on behalf of anyParty and the certificate proves to be incorrect, the individual will incur nopersonal liability as a result.

# **38.****                               LANGUAGE**

### (a)                                  Anynotice given in connection with a Senior Finance Document must be in English.

### (b)                                 Anyother document required to be provided in connection with a Senior FinanceDocument must be:

#### (i)                                     inEnglish; or

#### (ii)                                  (unlessthe Facility Agent otherwise agrees) accompanied by a certified Englishtranslation.  In this case, the Englishtranslation prevails unless the document is a statutory or other officialdocument.

# **39.****                               GOVERNINGLAW**

This Agreement is governed by English law.

# **40.****                               ENFORCEMENT**

## 40.1**                           Jurisdiction**

### (a)                                  Subjectto paragraph (c) below, the English courts have exclusive jurisdiction tosettle any dispute arising out of or in connection with any Senior FinanceDocument and each Party submits to the exclusive jurisdiction of the Englishcourts.

### (b)                                 TheEnglish courts are appropriate and convenient courts to settle any such disputeand each Obligor waives objection to those courts on the grounds ofinconvenient forum or otherwise in relation to proceedings in connection withany Senior Finance Document.

### (c)                                  ThisClause is for the benefit of the Finance Parties only.  To the extent allowed by law, a Finance Partymay take:

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#### (i)                                     proceedingsin any other court; and

#### (ii)                                  concurrentproceedings in any number of jurisdictions.

## 40.2**                           Serviceof process**

### (a)                                  EachObligor not incorporated in England and Wales irrevocably appoints Smurfit UKLimited (whose address is Darlington Road, West Aukland, County Durham DL4 9PE)as its agent under this Agreement, the Priority Agreement, each Accession Deed,any Fee Letter, any Security Document governed by English law and any otherSenior Finance Document from time to time requested by the Facility Agent forservice of process in any proceedings before the English courts.

### (b)                                 Ifany person appointed as process agent is unable for any reason to act as agentfor service of process, the Company (on behalf of all the Obligors) mustpromptly appoint another agent on terms acceptable to the Facility Agent.  Failing this, the Facility Agent may appointanother agent for this purpose.

### (c)                                  EachObligor agrees that failure by a process agent to notify it of any process willnot invalidate the relevant proceedings.

### (d)                                 ThisClause does not affect any other method of service allowed by law.

## 40.3**                           Waiverof immunity**

Each Obligor irrevocably and unconditionally:

### (a)                                  agreesnot to claim any immunity from proceedings brought by a Finance Party againstit in relation to a Senior Finance Document and to ensure that no such claim ismade on its behalf;

### (b)                                 consentsgenerally to the giving of any relief or the issue of any process in connectionwith those proceedings; and

### (c)                                  waivesall rights of immunity in respect of it or its assets.

## 40.4**                           Waiverof trial by jury**

EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A JURYTRIAL OF ANY CLAIM OR CAUSE OF ACTION IN CONNECTION WITH ANY SENIOR FINANCEDOCUMENT OR ANY TRANSACTION CONTEMPLATED BY ANY SENIOR FINANCE DOCUMENT.  THIS AGREEMENT MAY BE FILED AS A WRITTENCONSENT TO TRIAL BY COURT.

ThisAgreement has been entered into on the date stated at the beginning of thisAgreement.

 

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